STATE OF WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES BUREAU FOR PUBLIC HEALTH Commissioner?s Of?ce Earl Ray Tomblm 350 Capitol Street, Room 702 Karen L. Bowlmg Governor Charleston, West Virginia 25301-3712 Cabinet Secretary Telephone: (304) 558-2971 Fax: (304) 558-1035 December 15, 2015 The Honorable William P. Cole President West Virginia Senate Room 229M, Building 1 State Capitol Complex Charleston, West Virginia 25305 The Honorable Tim Armstead Speaker West Virginia House of Delegates Room 228M, Building 1 State Capitol Complex Charleston, West Virginia 25305 Dear President Cole and Speaker Armstead: As required by West Virginia Code ?22-31-2, please find enclosed the Public Water System Supply Study Commission Report to the Joint Committee on Government and Finance of the West Virginia Legislature. If you have any questions or concerns, please feel free to contact the BPH at 350 Capitol Street, Room 702, Charleston, West Virginia 25301-3714 or call (304) 558-2971. Sincerely, Rahul Gupta, MD, MPH, FACP Commissioner and State Health Officer RG/jr Enclosure Report to the Joint Committee on Government and Finance of the West Virginia Legislature By The Public Water System Supply Study Commission Rahul Gupta, MD, MPH, FACP Chairman December 15, 2015 Table of Contents Introduction .................................................................................................................. 1 Members of the Commission ........................................................................................2 Recommendations ........................................................................................................3 Work Group 1 ...........................................................................................................3 Work Group 2 ...........................................................................................................4 Work Group 3 ........................................................................................................... 5 Work Group 4 ...........................................................................................................6 Work Group 5 ...........................................................................................................6 Acronyms ......................................................................................................................9 Appendix A.................................................................................................................. 10 Appendix B ................................................................................................................. 29 Appendix C ................................................................................................................. 34 Appendix D ................................................................................................................. 37 Appendix E ................................................................................................................. 39 Appendix F .................................................................................................................. 47 Appendix G ................................................................................................................ 48 Introduction On March 8, 2014 the West Virginia Legislature passed Senate Bill No. 373 (SB373) which established the Public Water System Supply Study Commission (Commission). The first meeting of the Commission commenced on September 22, 2014. The initial report was submitted to the Legislature’s Joint Committee on Government and Finance on December 15, 2104. Since the submission of the 2014 report, the West Virginia Legislature passed Senate Bill No. 423 (SB423) on March 14, 2015, with an effective date of June 12, 2015. The bill’s purpose was to amend the Aboveground Storage Tank Act to address and correct certain unintended consequences of the original enactment. Much of W.Va. Code §2231 has been deleted although key provisions have been moved into W.Va. Code §2230. SB423 modified the membership of the Commission to add two representatives designated by the West Virginia Business Industry Council; and one representative designated by West Virginia Rivers Coalition in addition to the previous members appointed by the Governor, one of whom to be a professional engineer experienced in the design and construction of public water systems; one a professional hydrologist and one an environmental toxicologist or other public health expert familiar with the impact of contaminants on the human body and one citizen representative. No longer included in the Commission are the appointees from the West Virginia House and Senate. The State agencies and other organizations that served previously under SB373 remain on the Commission. However, the position of Commission chair transferred from the Director of the Division of Homeland Security and Emergency Management (DHSEM) to the Commissioner of the Bureau for Public Health (BPH). The charge to the Commission, as outlined in SB423, is consistent with the charge under SB373. As specified by both bills, the Commission was created for the purpose of studying and reporting back to the Legislature. The following is a list of the current members of the Commission. 1 Members of the Commission Rahul Gupta, MD, MPH, FACP, Chair Representing Bureau for Public Health Jimmy Gianato Representing West Virginia Division of Homeland Security and Emergency Management Tim Ball, Morgantown Utility Board Representing the West Virginia Municipal League David Acord (Designee) Representing West Virginia Public Service Commission Michael McCawley, PhD West Virginia University Representing an environmental toxicologist or other public health expert who is familiar with the impact of contaminants on the human body Pam Nixon Citizen Representative Terry Polen, PhD (Designee) Representing the West Virginia Department of Environmental Protection Rick Roberts, E.L. Robinson Engineering Representing a professional engineer experienced in the design and construction of public water systems Amy Swann Representing the West Virginia Rural Water Association Evan Hansen, Downstream Strategies Representing West Virginia Rivers Coalition Ed Watson, Canaan Valley Institute Representing a hydrologist or other expert experienced in determining the flow characteristics of rivers and streams Jeffrey McIntyre, President West Virginia American Water Company Representing West Virginia Business Industry Council Rebecca McPhail, President West Virginia Manufacturers Association Representing West Virginia Business Industry Council 2 Commission Recommendations The Commission has been charged by SB423 with making recommendations related to five specific tasks. The first recommendations were submitted to the Legislature in December 2014 in order to achieve the tasks set out through passage of SB373 in 2014. SB423 updated provisions of the previous bill. Since its original appointment in 2014, the Commission has met on ten occasions, five times in 2014 and five times in 2015. The Work Groups which were created in 2014 and continued into 2015, took on the tasks as outlined in SB423. The following is a compilation of the Work Group recommendations which have been approved and are being advanced by the full Commission. The minutes of the Commission’s 2015 meetings may be found in Appendix A, with the exception of those from December 11, 2015 which have not yet been approved by the Commission. The composition of the Work Groups is listed in Appendix C. Work Group 1 (1) A review and assessment of the effectiveness and the quality of information contained in updated Source Water Protection Plans (SWPPs) required for certain public water systems by the provisions of section nine-c, article one, chapter sixteen of this code Recommendation of Work Group 1 At the time of this report, the BPH is beginning to receive a few SWPPs from Public Water Systems (PWSs) subject to provisions of SB423 (Appendix B). The agency has not approved any plans at this time. Recommendation 1.1: The Commission advances the recommendation to require either an annual evaluated and documented exercise of the SWPP or a documented annual review, and update if necessary, of the SWPP, with the utility reporting this information to the BPH. Narrative: An annual exercise of the SWPP would allow the PWS to review, refine and update the actions and goals identified in the plan. An exercise allows the opportunity for partners outside of the PWS to become more aware of the SWPP and the water system. Exercises can benefit all parties in implementing plans, identifying deficiencies and/or weaknesses which can subsequently be addressed. Exercises should be conducted in a format prescribed by the DHSEM that follows federal Homeland Security exercise guidelines. An alternative would be to have an annual review and update of the SWPP. This would consist of bringing together emergency responders and other stakeholders to review and provide comments on the SWPP as necessary. 3 Recommendation 1.2: The Commission advances the recommendation to modify W.Va. Code §22-30-14 to clarify what information can be released by the Public Water System Supply Study Commission (PWSSSC) and making it permissible to release information that is already in the public domain. The proposed modification may be found in Appendix D. Narrative: As water systems are preparing their SWPPs, they are also providing information to the public. The current code limits the information that can be presented regarding the potential contaminant sources. Many of the potential contaminant sources are currently within the public domain. This modification would clarify that PWSs may identify potential contaminant sources that are already subject to public disclosure when engaging the public. It also clarifies the rulemaking authority of the DHSEM regarding restricting information from public disclosure. Recommendation 1.3: The Commission advances the recommendation that DEP and the owner/operator notify downstream water utilities if there is a change in substance and/or a substantive change within an aboveground storage tank as outlined in W.Va. Code §22-30-9 (b) 1-6. Such notification is to be made as soon as possible. Narrative: As the owners of aboveground storage tanks modify the tanks or contents, the downstream water utilities should be notified as soon as possible of the changes. That would allow the water utilities to make any necessary adjustments to their SWPPs, thereby keeping the plans as current as possible. This also keeps the water utility knowledgeable on potential contaminates within the watershed. Work Group 2 (2) A review and assessment of the effectiveness of legislation enacted during the 2014 Regular Session of the West Virginia Legislature, as it pertains to assisting PWSs in identifying and reacting or responding to identified potential sources of significant contamination, and increasing public awareness and public participation in the emergency planning and response process 4 Recommendation of Work Group 2 Since the legislation has been in effect a relatively short period of time, this Work Group is still evaluating recommendations. Due to the recent passage of SB 423, the Commission was unable to assess the overall effectiveness of the legislation in this area. There are no final recommendations at this time, the Work Group will continue its work on evaluating the effectiveness of the legislation. The current findings, discussions and report that this Work Group is considering may be found in Appendix E. Work Group 3 (3) The extent of available financing and funding alternatives which are available to existing PWSs to pursue projects which are designed to create alternate sources of supply or increased stability of supply in the event of a spill, release or contamination event which impairs the water system’s primary source of supply Recommendations of Work Group 3 Recommendation 3.1: The Commission advances a recommendation for a continuing two million dollar appropriation to the BPH. Narrative: Funding would allow for continuation of BPH’s State-level Source Water Protection Program efforts and provide a continuing source of grant monies available to systems as they move forward on their statutorily required 3-year updates. Recommendation 3.2: The Commission advances a recommendation that the West Virginia Legislature amend West Virginia Code 16-1-9c as found in Appendix F. Narrative: This recommended change in statute allows the BPH to develop rules to provide for a staggering of second round submissions of SWPPs. Staggering submissions allows the agency to more effectively review proposed plans as well as provide technical assistance to public water utilities. This staggering should only apply to the second round submissions. It is the intention of this new rulemaking authority that all future submissions would adhere to a 3-year cycle. 5 Recommendation 3.3: The Commission advances a recommendation that the West Virginia Infrastructure and Jobs Development Council (IJDC) and BPH, Office of Environmental Health Services, Drinking Water Treatment Revolving Fund amend their preliminary project ranking and/or scoring structures to add emphasis for source water protection. Narrative: This recommendation will assist in placing a particular emphasis on water projects seeking funding for a source water protection project. Work Group 4 (4) A review and consideration of the recommendations of the U.S. Chemical Safety and Hazard and Investigation Board after its investigation of the Bayer Crop Science incident of 2008 Recommendation of Work Group 4 There are no final recommendations at this time. The Work Group will meet in January 2016 to resume consideration of the recommendations of the U.S. Chemical Safety and Hazard Investigation Board. The Work Group is reviewing an outline of a West Virginia Chemical Release Prevention Program that has been vetted by the U.S. Chemical Safety and Hazard Investigation Board and is included in Appendix G. Narrative: The outline was developed by a cross-sector committee convened by People Concerned About Chemical Safety to implement the United States Chemical Safety Board (CSB) recommendations that reduce the frequency and severity of chemical incidents in the Kanawha Valley. Work Group 5 (5) Any recommendations or suggestions the study commission may offer to improve the infrastructure of existing Public Water Systems, to provide safe and reliable sources of supplies, and to pursue other measures designed to protect the integrity of public water service Recommendation of Work Group 5 Recommendation 5.1: The Commission advances that the Legislature should clarify that the utility does not have an implied duty to complete gaps in information on Safety Data Sheets (SDSs) that are provided/submitted. SB373 (2014) previously required Material SDSs to be submitted with the Spill Prevention Response Plan, but changes made in SB 423 (2015) removed this requirement. It is our recommendation that the legislation be amended to 6 require the SDS information be provided with the Spill Prevention and Response Plans. If there is missing information, the entity submitting the SDS should have the burden of providing additional information. Furthermore, a current web link shall be provided by DEP to ensure that SDS information is available at a central repository accessible to PWSs. The Commission advances a recommendation that Legislative Rules adopted to implement W.Va. Code §22-30-10 (a) shall ensure that downstream PWSs are provided with the type and quantity of fluid stored in the regulated aboveground storage tanks at the facility and the location of the SDS associated with the fluids in storage. Narrative: The Work Group discussed SDSs and recommended that the legislation be amended to require SDS information be provided with the Spill Prevention and Response Plans. The Work Group also discussed the need for an active and live web link to be established by DEP so SDS information is available at a central repository accessible to public utilities. Recommendation 5.2: The Commission advances multiple recommendations on the single topic of spill notifications: a) All spills must immediately, upon discovery, be relayed to any potentially impacted PWSs and to the BPH. The Commission further recommends that such notification be made through protocols established and coordinated with existing spill notification systems (spill reporting hotlines), with emergency response systems (county 911 systems) and with existing geographic information systems (GIS) and databases (such as those operated by the DHSEM, county 911 systems and the DEP), if possible. By efficiently utilizing existing GIS data, the spill location should be cross-referenced with a database of PWS information and the PWSs which may be impacted so that they can be quickly determined and automatically notified. Every effort will be made to determine location using GIS coordinates. b) The reporting system should, at a minimum, provide information on the precise location of the spill, the date and time of occurrence, the material(s) released and the stream(s) potentially impacted. Additional training/scripts for those taking the calls is recommended to obtain consistent information for each event. c) All spills must be reported with reference to standardized global positioning system (GPS) coordinates. The Commission further recommends that the system be based upon the widely used and well-understood Latitude/Longitude system with location data obtained from a GPS receiver. Furthermore, correction notices will be issued, as necessary, and confirmation of the response and confirmation of the resolution shall be distributed. 7 Narrative: The intent of the recommendations is to ensure the timeliest and most accurate information regarding spills that may enter the waterways is provided to the appropriate entities. At times, reports received related to spills are incomplete and in some cases inaccurate based on initial reporting from the scene. Additional training/scripts provided to those receiving the spill notification calls would improve consistency and accuracy of the information obtained from the entity submitting the notification for the event. Recommendation 5.3: The Commission advances a recommendation that DHSEM and Local Emergency Planning Committees (LEPC) provide available information to the PWSs, that they are not statutorily prohibited from providing to the public, to assist PWSs in identifying mobile threats. Narrative: The Work Group discussed mobile threats which were not specifically addressed in SB373 (2014) or SB 423 (2015). Mobile threats pose as great or greater threat to PWSs as fixed facilities. Due to the dynamic nature of chemicals moved in transportation, this presents a difficult challenge to having complete SWPPs. LEPCs and local emergency responders are an invaluable resource to PWSs and should be consulted in the development of SWPPs. LEPCs have information such as commodity flow studies, hazard analysis, transportation routes and other key information that is vital to PWS’s SWPP development. Recommendation 5.4: The Commission advances a recommendation that the Legislature should consider legislation to establish income tax credits for landowners for source water protection. Narrative: Similar programs have succeeded in many states, including Maryland (Md. Code § 10723) and Virginia (Va. Code Ann. § 58.1-510-513) and provide incentives for landowners to protect source water. Any tax credits would be offset by other revenue sources. 8 Acronyms BPH Bureau for Public Health CSB United States Chemical Safety Board DEP Department of Environmental Protection DHHR Department of Health and Human Resources DHSEM Division of Homeland Security and Emergency Management GIS Geographic Information System GPS Global Positioning System IJDC Infrastructure and Jobs Development Council LEPC Local Emergency Planning Committee PSC Public Service Commission PWS Public Water System PWSSSC Public Water System Supply Study Commission SB373 Senate Bill 373 SB423 Senate Bill 423 SDS Safety Data Sheet SWPP Source Water Protection Plan 9 Appendix A Commission Meeting Minutes Public Water System Supply Study Commission Meeting Minutes August 5, 2015 at 10:00 am Governor’s Cabinet & Conference Room-Suite #10 Members Present: Agency: Rahul Gupta (Chair) David Acord on behalf of Rick Hitt Amy Swann Edward Watson (by phone) Rick Roberts Tim Ball Pamela Nixon Michael McCawley Terry Polen Jimmy Gianato & Melissa Cross Evan Hansen Jeffrey McIntyre Rebecca Randolph Bureau for Public Health WV Public Service Commission WV Rural Water Association Canaan Valley Institute EL Robinson WV Municipal League Citizen Representative WVU School of Public Health WV DEP WV DHSEM WV Rivers Coalition WV Business & Industry Council WV Business & Industry Council Others Present: Luke Mitchell John Law T.D. Lively Ken Ward Jr. Doug Cummings Randall Isom Connie Graytop Lewis DHHR/BPH/Center for Threat Preparedness Kanawha-Charleston Health Department WVDHSEM Gazette-Mail WVMA WVNG WVE Council Call To Order Chair, Dr. Gupta conducted the introductions, gave opening comments and then asks everyone to take a moment to review the minutes from the December 8, 2014 meeting. Amy Swann mentioned that her last name was misspelled and wanted to correct it by adding an additional “n” to her last name. Dr. Gupta made a motion to approve the correction as well as the minutes from the last meeting with all in favor; all approved. Dr. Gupta shared a copy of the December report and encouraged everyone to review as well as reminded everyone the task to prepare a report that will need to be Dr. Gupta ask everyone if they had reviewed SB’s 423 & 373 and if anyone had any questions; no questions were ask and also added that if anyone would like a summary of the changes then BPH will make those available. The Bureau for Public Health will post the minutes on the Division of Homeland Security and Emergency Management’s website as well as create a location on the Bureau for Public Health site. 10 Tim Ball commented that the role of the commission should be clarified with respect to role in state bureaucracy. He felt that the report was ignored by the Legislature and feels that it is critical that the role needs to be created and the voice strengthened or the work done by the group goes unnoticed. Dr. Gupta asks if there were any other comments and there was “no response”. Presentation by Colonel Isom Some comments during the presentation below: ● The Water Crisis Response project focused on the LEBC response plan Emergency Response; ● They are a 1/3 of the way into Phase II and looked at the water modeling proposal from WVU and settled on IC Water. They wrote annex HH of the state response plan; ● Looked at various reports. Established themes coordination, communication, emergency water resources; ● Found there were multiple individuals trying to obtain information from CDC at any one time. CDC gets their information from the ATSDR duty officer and from NTP. They also found that there was a break-down between WV EOC and West Virginia organizations. Dr. Gupta would lead the science cell and tailor the council based upon the incident; ● The scientists would be talking to scientists and experts to experts in order to expedite and get answers quicker; ● IC Water was used to mainly determine weaponized chemicals. We need to model constituents like benzene. The model and bell curve can help tell when to shut down intake and when to reopen; ● They are pretty close to setting up and ready to use the model. Whoever will be modeling will require training; ● Goals and objectives total 6. Working on goal 3. Last thing they will do is a table top exercise. There will be exercise trainings in a regions only not the entire state; ● Ready to beta test and will be beta testing with WVAWC as well; ● Ready to go into implementation stage; ● LEPC will be working with LEPC's and CWS will say what they need. The goal is to respond faster, have picked training sites and be ready to go; ● Evan had question about IC Water as to whether it is publically available and the National Guard is not sure if it is available to the private sector; ● Will be testing regionally with LEPCs. Science cell will be part of the rewrite of the state EOP. They decided to go with Science cell because FEMA is going that way; and ● Dr. Gupta said, there will be a similar fed level science cell to make this effective. ● Rick Roberts would like a phase 1 report. ● Shared brief update on NTP - news release in packet. ● There was a brief discussion of Work Groups. 11 2015 WORK GROUPS (Includes new members) Work Group 1 (A Review and assessment of the effectiveness and the quality of information contained in updated Source Water Protection Plans required for certain public water systems by the provisions of sections nine-c, article one, chapter sixteen of this code) The following changes were voted on by all of the members and all members voted yes to the changes: ● Amy Swann nominated Dr. Gupta as chair of Work Group 1; ● Evan Hansen, Ed Watson and Jeffrey McIntyre volunteered to be in Work Group 1. Dr. Gupta (Chair) (Walt Ivey serving as proxy) Tim Ball Evan Hansen Michael McCawley Jeffrey McIntyre Ed Watson Work Group 2 (A review and assessment of the effectiveness of the legislation enacted during the 2014 Regular Session of the West Virginia Legislature, as it pertains to assisting public water systems in identifying and reacting or responding to the identified potential sources of significant contamination and increasing public awareness and public participation in the emergency planning and response process) ● Evan Hansen volunteered to be added to Work Group 2. Terry Polen (Chair) Tim Ball Dr. Rahul Gupta (Walt Ivey serving as proxy) Evan Hansen Pam Nixon Amy Swann Work Group 3 (The extent of available financing and funding alternatives which are available to existing public water systems to pursue projects which are designed to create alternate sources of supply or increased stability of supply in the event of a spill, release or contamination event which impairs the water system’s primary source of supply) ● Jeffrey McIntyre volunteered to be added to Work Group 3. Amy Swann (Chair) Mike Albert (Rick Hitt) Jeffrey McIntyre Rick Roberts Ed Watson 12 Work Group 4 (A review and consideration of the recommendations of the U.S. Chemical Safety and Hazard and Investigation Board after its investigation of the Bayer CropScience incident of 2008) ● Rebecca Randolph volunteered to be added to Work Group 4. Mike McCawley (Chair) Pam Nixon Rebecca Randolph Ed Watson Work Group 5 (Any recommendations or suggestions the study commission may offer to improve the infrastructure of existing public water systems, to provide safe and reliable sources of supplies and to pursue other measures designed to protect the integrity of public water services) ● Jeffrey McIntyre volunteered to be added to Work Group 5. Rick Hitt (Chair) Tim Ball Jeffrey McIntyre Rick Roberts Amy Swann Dr. Rahul Gupta (Walt Ivey serving as proxy) The members discussed that there should be a timeline for reports and workgroup meetings and that it will be the Chair’s responsibility to schedule their groups meeting. Rick Roberts indicated it would be helpful to be able to see/review some of the Sourcewater Plans. Next Meeting The members suggested that the next meeting should take place in October and then two additional meetings should be held in December. Public Comments: No comments or questions from the public. Dr. Gupta made a motion to adjourn all members agreed. 13 Public Water Supply System Study Commission Meeting Minutes October 16, 2015 at 10:00 am Governor’s Cabinet & Conference Room-Suite #10 Members Present: Rahul Gupta (Chair) Rick Roberts David Acord Michael McCawley Terry Polen Jimmy Gianato Brett Morgan on behalf of Jeffrey McIntyre Edward Watson Doug Smith on behalf of Tim Ball Evan Hansen Amy Swann Edward Watson Pamela Nixon Rebecca Randolph (by phone) Agency: Bureau for Public Health E.L. Robinson Engineering Company WV Public Service Commission WVU School of Public Health WV DEP WVDHSSEM WV Business & Industry Council Canaan Valley Institute WV Municipal League WV Rivers Coalition WV Rural Water Association Canaan Valley Institute Citizen WV Business & Industry Council Others Present: Philip Price Jim Hatfield Norm Ferguson Walt Ivey Barbara Taylor Brian Skinner Toby Wagoner Bill Toomey Julie Randolph Neoteric Associates Public Public DHHR/BPH/Environmental Health DHHR/BPH DHHR/BPH DHHR/BPH DHHR/BPH/Environmental Health DHHR/BPH Call To Order Dr. Gupta (Chair) conducted the introductions, gave opening comments and then asks everyone to take a moment to review the minutes from the August 5, 2015 meeting. The group had a few corrections which were noted and amended copies of the minutes were emailed to all the members. Dr. Gupta made a motion to approve the corrections as well as the minutes from the last meeting. All voted in favor. Dr. Gupta stated that Colonel Isom gave an update on the Source Water Protection Plan at the previous meeting and welcomed Bill Toomey with the WVDHHR Office of Environmental Health Services who gave a presentation on the Source Water Protection Plan (SWPP) updates. (Copies of the SWPP were provided for the members). ● Bill Toomey provided a copy of the Source Water Protection Plan Presentation Talking Points which are attached. 14 2015 WORK GROUPS (Includes new members) Work Group 1 (A Review and assessment of the effectiveness and the quality of information contained in updated Source Water Protection Plans required for certain public water systems by the provisions of sections nine-c, article one, chapter sixteen of this code) ● Dr. Gupta stated that Work Group 1 had just recently received a few Source Water Protection Plans that had been submitted which are still under review but will have to be completed by July 2016. The Group is planning to meet as they receive these Plans and then will be able to report on the status. Dr. Gupta (Chair) (Walt Ivey serving as proxy) Tim Ball Evan Hansen Michael McCawley Jeffrey McIntyre Ed Watson Work Group 2 (A review and assessment of the effectiveness of the legislation enacted during the 2014 Regular Session of the West Virginia Legislature, as it pertains to assisting public water systems in identifying and reacting or responding to the identified potential sources of significant contamination and increasing public awareness and public participation in the emergency planning and response process) ● Terry Polen (Chair) stated that Work Group 2 have met and are working on moving beyond to put together a strong plan relatively rather quickly. Terry Polen (Chair) Tim Ball Dr. Rahul Gupta (Walt Ivey serving as proxy) Evan Hansen Pam Nixon Amy Swann Work Group 3 (The extent of available financing and funding alternatives which are available to existing public water systems to pursue projects which are designed to create alternate sources of supply or increased stability of supply in the event of a spill, release or contamination event which impairs the water system’s primary source of supply) ● Amy Swan (Chair) reported that their Work Group met on Monday, October 12, 2015 at 1:30 pm at the West Virginia American Water Company and that they looked over their recommendations from last year and it looks like the Bureau for Public Health is going to provide the group with some updated cost information, based upon last year's estimated plan of hundred thousand dollars, and now that they have some plans, can they look at the cost and see if that is reasonable. The next meeting will focus on some ideas for funding. 15 Amy Swann (Chair) Rick Hitt (Designee for Mike Albert) Jeffrey McIntyre Rick Roberts Ed Watson Work Group 4 (A review and consideration of the recommendations of the U.S. Chemical Safety and Hazard and Investigation Board after its investigation of the Bayer CropScience incident of 2008) ● Mike McCawley (Chair) reported that Work Group 4 is working on outlining a strong end document and that as soon as it is completed, they will send it out to the group for any edits, which will then follow-up with a meeting where they will work together as a group to review and make the proper edits. Mike McCawley (Chair) David Acord Pam Nixon Terry Polen Rebecca Randolph Ed Watson Work Group 5 (Any recommendations or suggestions the study commission may offer to improve the infrastructure of existing public water systems, to provide safe and reliable sources of supplies and to pursue other measures designed to protect the integrity of public water services) ● Dave Acord (Chair) reported that Work Group 5 also met on October 12, 2015, at 3:00 pm, also at the West Virginia American Water Company where they discussed a number of items and looked at sheets with the NSDS information, spill reporting, local threats, possible adjustments or amendments to some West Virginia Code sections and also maybe some income and tax credits. These were the bases for their recommendations in 2014 and are re-evaluating some of those and will probably be proposed again as a final recommendation and others may no longer be needed. They will have a meeting soon to hopefully come up with the final recommendations. Dave Acord (Chair) Tim Ball Jeffrey McIntyre Rick Roberts Amy Swann Dr. Rahul Gupta (Walt Ivey serving as proxy) Evan Hansen 16 Discussion A final report has to be submitted to the joint committee by December 15, 2015 and to meet that deadline the Work Groups have to submit their recommendations. Once submitted the group will work together to create a final report for submission to the legislature. Next Meeting Dr. Gupta explained to the members that the Commission will have to meet a few more times to finalize the report and then the last meeting of the year may be around three to four hours so everything can be reviewed and decided. Julie Randolph will send out a doodle to decide upon some dates everyone can be available to meet. Public Comments: Jim Hatfield directed a question to Work Group 3 in terms of funding for second water sources. Second source for the Elk River Plant his understanding by looking at the budget for West Virginia American Water is that they budgeted on an order of one million dollars this year to study the Kanawha River for a possible second source as an alternative in case the Elk River suffers another spill. He wanted to bring to everyone's attention of an additional water source that serves three thousand people which is the reservoir at Coon Skin Park. Norman Ferguson just wanted to thank everyone for the work that they are doing to hopefully prevent anything from happening again with the public water system. Dr. Gupta thanked them for their comments. Dr. Gupta made a motion to adjourn all members agreed. 17 Public Water System Supply Study Commission Meeting Minutes November 18, 2015 at 10:00 am South Charleston Public Library Members Present: Rahul Gupta (Chair) David Acord Amy Swann Edward Watson Rick Roberts Tim Stranko (by phone on behalf of Tim Ball) Pamela Nixon Michael McCawley Terry Polen (by phone) Evan Hansen Jeffrey McIntyre Agency: Bureau for Public Health WV Public Service Commission WV Rural Water Association Canaan Valley Institute EL Robinson WV Municipal League Citizen WVU School of Public Health WV DEP WV Rivers Coalition WV Business & Industry Council Others Present: David Gutman Lew Baker Walt Ivey Barbara Taylor Brent Bailey Terrell Ellis Toby Wagoner Brian Skinner Gazette-Mail Rural Water Association DHHR/BPH/Environmental Health DHHR/BPH WV Land Trust WV Land Trust DHHR/BPH DHHR/BPH Call to Order Chair, Dr. Gupta conducted the introductions, gave opening comments and then asks everyone to take a moment to review the minutes from the October 16, 2015 meeting. Jeff McIntyre made a motion to approve the minutes; Rick Roberts seconded the motion, all voted in favor. Dr. Gupta asks if there were any other comments; there was “no response”. Dr. Gupta introduced Terrell Ellis with West Virginia Land Trust, who gave a presentation on “Land Conservation in West Virginia”. 2015 WORK GROUPS (Includes new members) Work Group 1 (A Review and assessment of the effectiveness and the quality of information contained in updated Source Water Protection Plans required for certain public water systems by the provisions of sections nine-c, article one, chapter sixteen of this code) ● Walt Ivey reported recommendations: that Work 18 Group 1 worked on the following 1. Review of the Source Water Protection Plans – This is being done based on the template that was provided to the commission members; 2. Revise a previous recommendation that will require an annual exercise of the protection plan to include an alternative would be for the water system to do an annual review of the protection plan. This would be provided to the Bureau for Public Health; 3. Modify 22-30-14 to clarify what can be released by the Public Water System to the public. Especially information that is already in the public domain; 4. Hazard Rating of chemicals defined and provided to public water systems. This will be investigated further and developed into a recommendation for this workgroup or another one; and 5. Clarify when potential contaminant sources will be updated and provided to public water systems. This would include when the contents in above ground storage tanks were changed or new tanks were installed/permitted. The first four were identified by Walt Ivey and the fifth one was identified by Jeff McIntyre. Dr. Gupta (Chair) (Walt Ivey serving as proxy) Tim Ball Evan Hansen Michael McCawley Jeffrey McIntyre Ed Watson Work Group 2 (A review and assessment of the effectiveness of the legislation enacted during the 2014 Regular Session of the West Virginia Legislature, as it pertains to assisting public water systems in identifying and reacting or responding to the identified potential sources of significant contamination and increasing public awareness and public participation in the emergency planning and response process) ● In an attempt to clarify the effectiveness and efficiency of the legislation, the workgroup has separated this question into four more specifically identifiable and quantifiable questions. Additionally, the workgroup has expanded the charge to beyond the 2014 legislation to the 2015 legislation and the proposed legislation. A 12 page strawman was sent out on November 15, 2015 for discussion within the group. A teleconference meeting is scheduled for December 1 to, it is hoped, finalize the comments. Terry Polen (Chair) Tim Ball Dr. Rahul Gupta (Walt Ivey serving as proxy) Evan Hansen Pam Nixon Amy Swann 19 Work Group 3 (The extent of available financing and funding alternatives which are available to existing public water systems to pursue projects which are designed to create alternate sources of supply or increased stability of supply in the event of a spill, release or contamination event which impairs the water system’s primary source of supply) ● The Work Group decided that the main recommendation would be to ask the Legislature to provide two million dollars per year to provide assistance for water systems to continue updating their Source Water Protection Plans as required by law. ● There was discussion on making a recommendation to stagger the submittals of the updated Source Water Protection Plans. The updated plans are due every three years. It would be more manageable to have the submittal of the updated Source Water Protection Plans evenly over the three year period instead of all within one year. The code will be reviewed and a recommendation will be made to allow for the staggering of the updated protection plans. ● Discussion as to what can be done to provide priority funding opportunities for source water protection projects. There may need to be some discussion with the Infrastructure and Jobs Development Council (IJDC) to elevate source water protection projects so that they can receive funding assistance. Jeff McIntyre made the comment that this is also an inequality to the customers of the privately owned water systems because they are not eligible to receive IJDC funding which could lower the cost to those customers. This is another area where the rate payers from a privately owned water system may have to pay more than a publically owned water system. Amy Swann (Chair) Dave Acord (Designee for Mike Albert) Jeffrey McIntyre Rick Roberts Ed Watson Work Group 4 (A review and consideration of the recommendations of the U.S. Chemical Safety and Hazard and Investigation Board after its investigation of the Bayer CropScience incident of 2008) ● Work Group 4 met on November 19, 2015 at the Law School in Morgantown. They are looking over a strawman they sent out with two recommendations in it as follows: o The first being to adopt a chemical release prevention program that the committee had worked up and is available to look at, and the second one; o Was that the chemical safety board said that they thought that most of the recommendations could be adopted without any legislation necessary. 20 Mike McCawley (Chair) Pam Nixon Rebecca Randolph Ed Watson Work Group 5 (Any recommendations or suggestions the study commission may offer to improve the infrastructure of existing public water systems, to provide safe and reliable sources of supplies and to pursue other measures designed to protect the integrity of public water services) ● Dave Acord (Chair) reported that Work Group 5 held its last meeting on November 5, 2015, to continue discussions on MSDSs, Spill Reporting, Mobile Threats, and Income Tax Credits for source water protection. They have drafted language for each of the recommendations and their next meeting is scheduled for November 30, 2015, at 1:30pm at the Public Service Commission offices in Charleston, to finalize recommendations. Copies of all meeting minutes along with recommendations will then be forwarded to Dr. Gupta for consideration by the PWSSSC. David Acord (Chair) Tim Ball Jeffrey McIntyre Rick Roberts Amy Swann Dr. Rahul Gupta (Walt Ivey serving as proxy) Evan Hansen Next Meeting The members discussed that the next meeting will take place on December 4, 2015. Public Comments: No comments or questions from the public. Dr. Gupta made a motion to adjourn all members agreed. 21 Public Water System Supply Study Commission Meeting Minutes December 4, 2015 at 12:30 pm Governor’s Cabinet & Conference Room-Suite #10 Members Present: Rahul Gupta (Chair) David Acord Michael McCawley Terry Polen Melissa Cross on behalf of Jimmy Gianato Jeffrey McIntyre Edward Watson Tim Ball Evan Hansen Amy Swann Pamela Nixon Rebecca McPhail Agency: Bureau for Public Health WV Public Service Commission WVU School of Public Health WV DEP WVDHSSEM WV Business & Industry Council Canaan Valley Institute WV Municipal League WV Rivers Coalition WV Rural Water Association Citizen Representative WV Business & Industry Council Others Present: Jennifer Haymann Terrell Ellis Norm Ferguson Walt Ivey Barbara Taylor Brian Skinner John D. Law Julie Randolph Betty Rivard Conni Gratop Lewis Angie Rosser Autumn Bryson WV American Water WV Land Trust Public DHHR/BPH/Environmental Health DHHR/BPH DHHR/BPH KCHD DHHR/BPH Volunteer Advocate WV Environmental Council WV Rivers Coalition WV Rivers Coalition Call to Order Chair, Dr. Gupta conducted the introductions, gave opening remarks, and then asks everyone to take a moment to review the minutes from the November 18, 2015 meeting. The group had no corrections, Jeff McIntyre made a motion to approve the minutes, David Acord second, all voted in favor by saying aye. 2015 WORK GROUPS Work Group 1 (A Review and assessment of the effectiveness and the quality of information contained in updated Source Water Protection Plans required for certain public water systems by the provisions of sections nine-c, article one, chapter sixteen of this code) Walt Ivey presented the following recommendations for Work Group 1. 22 Recommendation 1:  Require either an annual evaluated and documented exercise of the source water protection plan or a documented annual review and update of the source water protection plan, with Utility reporting this to the Bureau for Public Health. Recommendation 2:  Modify §22-30-14 to clarify what can be released by the Public Water System and to make it permissible to release information that is already in the public domain. Recommendation 3:  Department of Environmental Protection to notify downstream water utilities if there is a change in substance and/or a substantive change within an above ground storage tank as outlined in §22-30-9 (b) 1-6. Such notification is to be made as soon as possible. Evan Hansen made a motion to accept the recommendations, Tim Ball second the motion; all were in favor by saying aye. Dr. Gupta (Chair) (Walt Ivey serving as proxy) Tim Ball Evan Hansen Michael McCawley Jeffrey McIntyre Ed Watson Work Group 2 (A review and assessment of the effectiveness of the legislation enacted during the 2014 Regular Session of the West Virginia Legislature, as it pertains to assisting public water systems in identifying and reacting or responding to the identified potential sources of significant contamination and increasing public awareness and public participation in the emergency planning and response process). Mr. Polen suggested and the members agreed that they would like more time to review and decide by the next meeting, due to the fact that there are currently no recommendations and that the review will help the members decide whether or not this information will be included in the report. Terry Polen (Chair) Tim Ball Dr. Rahul Gupta (Walt Ivey serving as proxy) Evan Hansen Pam Nixon Amy Swann 23 Work Group 3 (The extent of available financing and funding alternatives which are available to existing public water systems to pursue projects which are designed to create alternate sources of supply or increased stability of supply in the event of a spill, release or contamination event which impairs the water system’s primary source of supply). Amy Swann presented the following recommendations for Work Group 3. Recommendation 1: Advance a recommendation that the full Commission recommends a continuing $2 million dollar appropriation to the Department of Health and Human Resources, Bureau for Public Health for continuation of their source water protection efforts and in providing grant monies to systems as they complete their Source Water Protection Plans and begin their statutorily required 3 year updates. Recommendation 2:  Advance a recommendation that the West Virginia Legislature amend West Virginia Code 16-1-9c (f) as follows: o (f) A public water utility is required to file an updated plan, in accordance with the provisions of this section, as follows:  Whenever there is a substantial change in the potential sources of significant contamination within the identified zone of critical concern; and  Pursuant to a schedule contained in a legislative rule proposed by the Secretary and promulgated pursuant to article three, chapter twenty-nineA of the Code. o (g) Any public water utility required to file a complete or updated plan in accordance with the provisions of this section shall review any source water protection plan it may currently have on file with the bureau and update it to ensure it conforms with the requirements of subsection (b) of this section on or before July 1, 2016. o (h) The commissioner's authority in reviewing and monitoring compliance with a source water protection plan may be transferred by the bureau to a nationally accredited local board of public health. o (i) The Secretary is authorized to propose legislative rules for promulgation pursuant to article three, chapter twenty-nine-A of the Code to implement the provisions of this section. Recommendation 3:  Advance a recommendation that the West Virginia Infrastructure and Jobs Development Council amend its preliminary project ranking and/or scoring structure to add a source water protection scoring in the Bureau for Public Health’s section. It is also recommended to be added to the Office of Environmental Health Services District Review for Infrastructure Council Projects. This will assist in placing a particular emphasis on water projects seeking funding for a source water protection project. 24 Dr. Gupta asks for a motion to approve Recommendations 1 and 3; the members were all in favor by saying aye. Recommendation 2 was discussed during the afternoon working session. Amy Swann (Chair) Rick Hitt (Mike Albert) Jeffrey McIntyre Rick Roberts Ed Watson Work Group 4 (A review and consideration of the recommendations of the U.S. Chemical Safety and Hazard and Investigation Board after its investigation of the Bayer CropScience incident of 2008) Mike McCawley (Chair) reported the following recommendation for Work Group 4: Recommendation 1:  Further evaluation is needed. Dr. Gupta asks for a motion to accept the recommendation to further review the U.S. Chemical Safety and Hazard Investigation Board after its investigation of the Bayer CropScience incident of 2008. All members were in favor by saying aye. Mike McCawley (Chair) Pam Nixon Rebecca Randolph Ed Watson Work Group 5 (Any recommendations or suggestions the study commission may offer to improve the infrastructure of existing public water systems, to provide safe and reliable sources of supplies and to pursue other measures designed to protect the integrity of public water services) Dave Acord (Chair) reported the following recommendations for Work Group 5: Recommendation 1:  The Legislature should clarify that the utility doesn’t have an implied duty to complete gaps in information on Material Safety Data Sheets (MSDSs) that are provided/ submitted. Senate Bill 373 (2014) previously required MSDS information to be submitted with the Spill Prevention Response Plan, but changes made in Senate Bill 423 (2015) removed this requirement. It is our recommendation that the legislation be amended to require the MSDS information be provided with the Spill Prevention and Response Plans. If there is missing information, the entity submitting the MSDS should have the burden of providing additional information. The Department of Environmental Protection 25 (DEP) is encouraged to work with a national toxicology group to assist with this issue and to enforce the law. Furthermore, an active a current and live web link shall be provided should be established by DEP to so MSDS that information is available at a central repository available to public utilities. West Virginia Code § 22-30-10 (a) should be amended to require notification to any downstream public water systems. Recommendation 2:  The group recommends that all spills must immediately, upon discovery, be relayed to any potentially impacted Public Water Systems (PWS) and to the Bureau for Public Health (BPH). We further recommend that such notification be made via an automated system which is interfaced with existing spill notification systems (spill reporting hotlines), with emergency response systems (county 911 systems) and with existing geographic information system (GIS) and databases (such as those operated by the Division of Homeland Security and Emergency Management, county 911 systems and the WV DEP). By efficiently utilizing existing GIS data, the spill location will may be cross referenced with a data base of PWS information and the water systems which may potentially be impacted can be quickly determined and automatically notified. The automated reporting system should, at a minimum, provide information on the precise location of the spill, the date and time of occurrence, the material(s) released and the stream(s) potentially impacted. Systems to meet this requirement do not currently exist and could be quite expensive to develop and implement. Automated notifications during an emergency event could potentially not be received and could lead to further delays in response. In addition many reports received related to spills are incomplete and in many cases inaccurate based on initial reporting. Additional training/scripts for those taking the calls may be beneficial to obtain consistent information for each event. The group makes the recommendation that all spills must be reported with reference to standardized GPS coordinate systems. We further, recommend that the system used be based upon the widely used and well-understood Latitude/Longitude system with location data obtained from a GPS receiver. Furthermore, correction notices will be issued, as necessary, and confirmation of the response and confirmation of the resolution shall be distributed. Recommendation 3:  The Work Group discussed mobile threats which were not specifically addressed in SB373 (2014) or Senate Bill 423 (2015). Mobile threats pose as great or greater threat to public water systems as fixed facilities. Due to the dynamic nature of chemicals moved in transportation, this presents a difficult challenge to having complete SWPPs. Local emergency Planning Committees (LEPCs) and local emergency responders are an invaluable resource to public water systems and should be consulted in the development of SWPPs. LEPCs have information such as commodity flow studies, hazard analysis, transportation routes and other key information that is vital to public water system plan development. The Department of Homeland Security and Emergency Management (DHSEM) shall 26 provide information, that they are not statutorily prohibited from providing to the public, to addressing all these efforts. Recommendation 4:   The Legislature considers legislation for income tax credits for landowners for source water protection. Similar programs have succeeded in many states, including Maryland (Md. Code § 10-723) and Virginia (Va. Code Ann. § 58.1-510-513). Recommendations 1 and 2 will need further discussion at the afternoon working session. Dr. Gupta asks for a motion to accept the Recommendations for 3 with the amended language and the adoption for Recommendation 4. All members were in favor by saying aye. Dave Acord (Chair) Tim Ball Jeffrey McIntyre Rick Roberts Amy Swann Dr. Rahul Gupta (Walt Ivey serving as proxy) Evan Hansen Discussion A final report has to be submitted to the joint committee by December 15, 2015 and to meet that deadline the work groups have to submit their recommendations to BPH prior to that date. Next Meeting Dr. Gupta suggested that the group meet soon so that the draft report can be voted on. After a brief discussion Friday, December 11, 2015 at 1:00 pm at the Public Service Commission was decided on. Members have the choice of attending in person or by conference call and the conference phone number that has been provided for every meeting will be the one used for those who will need to participate by phone. This should be a brief meeting due to the fact that the deadline for the report is due to by December 15th to the Legislature. Public Comments: Norman Ferguson stated that he is a member of the public and continues to follow the Public Water System Supply Study Commission meetings to keep updated on the progress of the public water system so that in the future there will be no further drinking water issues. Dr. Gupta thanked him for his comments. Dr. Gupta, due to another meeting, delegated the Chair position to Commission Member Amy Swann. Ms. Swann continued the discussion among Commission members in regard to the recommendations. 27 Following extensive discussions, Commission members, edited, voted on, and accepted recommendations that are reflected in the final report. Ms. Swann entertained a motion to adjourn, all members were in favor by saying aye. 28 Appendix B System ID System Name County Planning and Development Regions (1-11) DEP Watershed Group (1-5) Type System 11 1 SW 2,186 11 1 SW 5,702 1 1 SW SW 22,694 3,119 Population WV3300508 HAMMOND PSD BROOKE FOLLANSBEE WV3300512 HOOVERSON HEIGHTS WEIRTON AREA WATER WV3300516 BOARD WV3301504 CHESTER BROOKE HANCOCK 11 11 WV3301811 WV3302603 WV3303516 WV3304307 WV3304405 JACKSON MARSHALL OHIO RITCHIE ROANE 5 10 10 5 5 1 1 1 1 1 SW SW SW SW SW 5,078 1,052 22,222 4,278 5,002 5 1 SW 1,267 5 10 5 7 7 6 1 1 1 2 2 2 SW SW SW SW SW SW 1,892 593 7,695 2,153 3,281 1,895 6 2 SW 18,310 6 6 7 6 6 6 2 2 2 2 2 2 SW SW SW SW GU SW 1,788 4,903 11,436 29,170 834 3,171 6 2 SW 56,209 6 2 SW 3,102 6 2 SW 4,043 6 2 SW 707 6 7 7 2 2 2 GU GU SW 1,488 188 2,475 WV3304802 WV3304803 WV3305205 WV3305402 WV3300101 WV3300104 WV3300901 WV3301705 WV3301714 WV3301721 WV3302104 WV3302502 WV3302503 WV3302515 WV3303111 WV3303908 WV3303912 WV3303914 WV3303917 WV3304204 WV3304202 RIPLEY CITY OF CAMERON WATER WHEELING WATER HUGHES RIVER WATER SPENCER WATER DEPT MIDDLEBOURNE WATER WORKS SISTERSVILLE MUNICIPAL WATER PINE GROVE WATER CLAYWOOD PARK PSD BELINGTON TOWN OF PHILIPPI CITY OF WEST UNION TOWN OF CLARKSBURG WATER BOARD LUMBERPORT TOWN OF SHINNSTON CITY OF WVAW - WESTON FAIRMONT CITY OF FAIRVIEW TOWN OF MONONGAH TOWN OF MORGANTOWN UTILITY BOARD KINGWOOD WATER BOARD PRESTON COUNTY PSD 1 ROWLESBURG WATER WORKS TERRA ALTA WATER WORKS HARMAN TOWN OF BEVERLY TOWN OF BROOKE TYLER TYLER WETZEL WOOD BARBOUR BARBOUR DODDRIDGE HARRISON HARRISON HARRISON LEWIS MARION MARION MARION MONONGALIA PRESTON PRESTON PRESTON PRESTON RANDOLPH RANDOLPH 29 System ID System Name WV3304203 ELKINS CITY OF MILL CREEK WATER WV3304209 DEPT WV3304605 TAYLOR COUNTY PSD WV3304701 DAVIS WATER WORKS WV3304704 HAMRICK PSD WV3304707 PARSONS CITY OF WV3304709 THOMAS CITY OF TIMBERLINE FOUR SEASON RESORT WV3304711 MANAGEMENT BUCKHANNON WATER WV3304902 BOARD BERKELEY CO P S W DWV3300202 BUNKER HILL WV3300212 MARTINSBURG CITY OF WV3300218 WV3301204 WV3301205 WV3301405 BERKELEY COUNTY PSWD-POTOMAC RIVER PETERSBURG TOWN OF MOUNTAIN TOP PSD ROMNEY WATER DEPT County RANDOLPH RANDOLPH TAYLOR TUCKER TUCKER TUCKER TUCKER Planning and Development Regions (1-11) DEP Watershed Group (1-5) Type System 7 2 SW 8,270 7 6 7 7 7 7 2 2 2 2 2 2 SW SW SW SW SW SW 976 1,322 878 1,643 1,512 672 7 2 GU 591 7 2 SW 8,697 9 9 3 3 GU GU 26,547 15,650 9 8 8 8 3 3 3 3 SW SW SW SW 22,396 2,841 2,088 1,948 8 3 GU 1,172 8 3 SW 2,689 8 3 SW 150 9 3 GU 99 9 3 SW 14,488 9 3 SW 1,801 9 9 8 3 3 3 SW GU SW 4,000 2,370 5,202 8 8 3 3 SW SW 775 5,468 9 3 SW 3,629 9 3 SW 552 Population TUCKER UPSHUR BERKELEY BERKELEY BERKELEY GRANT GRANT HAMPSHIRE CENTRAL HAMPSHIRE WV3301412 PSD GREEN SPRING MOOREFIELD WV3301601 MUNICIPAL WATER HARDY COUNTY PSD WV3301613 BAKER Deerfield Village WV3301979 Subdivision CHARLES TOWN WV3301905 UTILITIES CORPORATION OF WV3301912 HARPERS FERRY HAMPSHIRE CORPORATION OF WV3301933 SHEPHERDSTOWN WV9919068 BURR INDUSTRIAL PARK WV3302915 KEYSER CITY OF PIEDMONT MUNICIPAL WV3302921 WTR WKS WV3302928 FRANKFORT PSD BERKELEY SPRINGS CITY WV3303301 OF PAW PAW WATER WV3303308 WORKS JEFFERSON HARDY HARDY JEFFERSON JEFFERSON JEFFERSON JEFFERSON MINERAL MINERAL MINERAL MORGAN MORGAN 30 System ID System Name FRANKLIN WV3303602 MUNICIPALITY OF PENDLETON CO PSDWV3303611 UPPER TRACT WV3303613 WV3300315 WV3300402 WV3300404 WV3300406 WV3300408 WV3300701 WV3300801 WV3300806 WV3301004 WV3301024 WV3301029 WV3301037 WV3301046 WV3301104 WV3301307 WV3301315 WV3302009 WV3302016 WV3302031 WV3302205 WV3302801 WV3302804 WV3302813 WV3302835 County PENDLETON PENDLETON PENDLETON CO PSD(BRANDYWINE) BOONE RALEIGH P S D FLATWOODS CANOE RUN PSD SUGAR CREEK PSD WVAW- GASSAWAY BURNSVILLE PUBLIC UTILITY GRANTSVILLE MUNICIPAL CLAY WATER DEPT PENDLETON CLAY-ROANE PSD (PROCIOUS DISTRICT) ARMSTRONG PSD MOUNT HOPE WATER WVAWC MONTGOMERY DISTRICT KANAWHA FALLS PSD WVAWC NEW RIVER REGIONAL WTR TRTMT PLT GLENVILLE UTILITY LEWISBURG ALDERSON WATER CEDAR GROVE COMMUNITY OF WVAWC-KANAWHA VALLEY DIST ST ALBANS WATER LINCOLN PSD ATHENS TOWN OF BLUEWELL PSD GREEN VALLEY GLENWOOD PSD BULLTAIL WVAWC BLUEFIELD DISTRICT CLAY BOONE BRAXTON BRAXTON BRAXTON BRAXTON CALHOUN CLAY FAYETTE FAYETTE Planning and Development Regions (1-11) DEP Watershed Group (1-5) Type System 8 3 SW 1,732 8 3 GU 448 8 3 3 4 SW SW 804 1,317 7 7 7 4 4 4 SW SW SW 4,143 1,191 2,127 7 4 SW 789 5 3 4 4 SW SW 841 1,341 3 4 4 4 4 4 SW SW SW 2,162 2,318 1,955 4 4 4 4 SW SW 4,724 2,379 4 7 4 4 4 4 4 4 SW SW SW SW 25,760 2,395 10,050 2,680 3 4 SW 1,090 3 3 2 1 1 4 4 4 4 4 SW SW SW SW SW 198,521 13,265 4,981 4,802 6,135 1 4 SW 1,869 1 4 SW 12,174 Population FAYETTE FAYETTE FAYETTE GILMER GREENBRIER GREENBRIER KANAWHA KANAWHA KANAWHA LINCOLN MERCER MERCER MERCER MERCER 31 System ID WV3302849 WV3302852 WV3303206 WV3303401 WV3303402 WV3303403 WV3303404 WV3303405 WV3303802 WV3303803 WV3303808 WV3303812 WV3304005 WV3304011 WV3304104 WV3304407 WV3304507 WV3304513 WV3305103 WV3305104 WV3300608 WV3300609 WV3302203 WV3302331 WV3302336 WV3302347 System Name GREEN VALLEY GLENWOOD PSD GLENWOOD POCAHONTAS WATER SYSTEM RED SULPHUR PSD RICHWOOD WATER DEPT CRAIGSVILLE PSD NETTIE LEIVASY PSD SUMMERSVILLE MUNICIPAL WATER WILDERNESS PSD CASS SCENIC RAILROAD MARLINTON TOWN OF CHEAT MOUNTAIN WATER SYSTEM POCAHONTAS COUNTY PSD HURRICANE CITY OF PUTNAM P S D BECKLEY WATER COMPANY WALTON PSD BIG BEND PSD WVAWC BLUESTONE PLANT COWEN PSD WVAW - WEBSTER SPRINGS WVAWC HUNTINGTON DIST MILTON WATER WEST HAMLIN CITY OF LOGAN WATER BOARD CITY OF MAN WATER WORKS BUFFALO CREEK PSD County Planning and Development Regions (1-11) DEP Watershed Group (1-5) Type System 1 4 SW 5,775 1 1 4 4 SW SW 1,933 5,352 4 4 4 4 4 4 SW SW SW 2,940 4,723 3,151 4 4 4 4 4 4 4 4 SW SW SW SW 5,746 4,475 1,023 1,400 4 4 SW 1,867 4 3 3 4 4 4 GU SW SW 557 8,266 21,719 1 5 1 4 4 4 SW SW SW 49,058 1,925 1,039 1 4 4 4 SW SW 26,499 2,518 4 4 SW 1,692 2 2 2 5 5 5 SW SW SW 86,827 4,883 2,964 2 2 2 5 5 5 SW SW SW 4,505 1,008 2,829 2 5 SW 3,960 2 1 5 5 SW GU 15,715 1,632 Population MERCER MERCER MONROE NICHOLAS NICHOLAS NICHOLAS NICHOLAS NICHOLAS POCAHONTAS POCAHONTAS POCAHONTAS POCAHONTAS PUTNAM PUTNAM RALEIGH ROANE SUMMERS SUMMERS WEBSTER WEBSTER CABELL CABELL LINCOLN LOGAN LOGAN LOGAN LOGAN CO PSDWV3302357 GREENVILLE SYSTEM LOGAN LOGAN COUNTY PSD WV3302364 NORTHERN REGIONAL WV3302434 MCDOWELL COUNTY LOGAN MCDOWELL 32 System ID System Name County Planning and Development Regions (1-11) DEP Watershed Group (1-5) Type System 1 5 GU 863 2 2 5 5 SW SW 1,145 1,424 2 5 SW 2,237 2 5 SW 4,213 2 5 SW 4,654 2 5 SW 2,287 2 5 SW 5,684 2 5 SW 9,254 1 1 5 5 SW SW 4,410 2,945 Population PSD BARTLEY MCDOWELL COUNTY WV3302435 PSD BERWIND GILBERT WATER WV3303002 WORKS WV3303003 KERMIT WATER WORKS MATEWAN WATER WV3303005 WORKS WILLIAMSON UTILITY WV3303009 BOARD MCDOWELL MINGO COUNTY PSD WV3303029 NAUGATUCK FORT GAY WATER WV3305004 WORKS WAYNE WATER TOWN WV3305007 OF KENOVA MUNICIPAL WV3305009 WATER OCEANA COMMUNITY WV3305516 OF WV3305517 PINEVILLE MUNICIPAL MINGO MINGO MINGO MINGO MINGO WAYNE WAYNE WAYNE WYOMING WYOMING 33 Appendix C Public Water System Supply Study Commission Work Group Membership Work Group 1 (A review and assessment of the effectiveness and quality of information contained in updated Source Water Protection Plans required for certain public water systems by the provisions of sections nine-c, article one, chapter sixteen of this code) Chair Rahul Gupta, MD, MPH, FACP Commissioner and State Health Officer Bureau for Public Health Michael McCawley, PhD Assistant Professor WVU School of Public Health Walt Ivey (serving as proxy for Dr. Gupta) Office of Environmental Health Services Bureau for Public Health Jeffrey McIntyre, President West Virginia American Water Company Tim Ball Morgantown Utility Board Ed Watson Canaan Valley Institute Evan Hansen West Virginia Rivers Coalition Work Group 2 (A review and assessment of the effectiveness of the legislation enacted during the 2014 Regular Session of the West Virginia Legislature, as it pertains to assisting public water systems in identifying and reacting or responding to the identified potential sources of significant contamination and increasing public awareness and public participation in the emergency planning and response process) Chair Dr. Terry Polen WV Department of Environmental Protection Evan Hansen West Virginia Rivers Coalition Rahul Gupta, MD, MPH, FACP Commissioner and State Health Officer Bureau for Public Health Pam Nixon Citizen Member Walt Ivey (serving as proxy for Dr. Gupta) Office of Environmental Health Services Bureau for Public Health Amy Swann, Executive Director WV Rural Water Association Tim Ball Morgantown Utility Board 34 Work Group 3 (The extent of available financing and funding alternatives which are available to existing public water systems to pursue projects which are designed to create alternate sources of supply or increased stability of supply in the event of a spill, release or contamination event which impairs the water system’s primary source of supply) Chair Amy Swann Executive Director WV Rural Water Association David L. Acord, II (Designee for Mike Albert) Public Utilities Director Water & Wastewater Division WV Public Service Commission Rick Roberts E. L .Robinson Engineering Company Ed Watson Canaan Valley Institute Jeffrey McIntyre President West Virginia American Water Company Work Group 4 (A review and consideration of the recommendations of the U.S. Chemical Safety and Hazard and Investigation Board after its investigation of the Bayer Crop Science incident of 2008) Chair Michael McCawley, PhD Assistant Professor WVU School of Public Health Rebecca McPhail, President West Virginia Manufacturers Association Pam Nixon Citizen Member Ed Watson Canaan Valley Institute Dr. Terry Polen (designee) WV Department of Environmental Protection 35 Work Group 5 (Any recommendations or suggestions the study commission may offer to improve the infrastructure of existing public water systems, to provide safe and reliable sources of supplies and to pursue other measures designed to protect the integrity of public water services) Chair David L. Acord, II Public Utilities Director Water & Wastewater Division Public Service Commission of WV Amy Swann Executive Director WV Rural Water Association Tim Ball Morgantown Utility Board Rahul Gupta, MD, MPH, FACP Commissioner and State Health Officer Bureau for Public Health Jeffrey McIntyre President West Virginia American Water Company Walt Ivey (serving as proxy for Dr. Gupta) Office of Environmental Health Services Bureau for Public Health Rick Roberts E. L .Robinson Engineering Company Evan Hansen West Virginia Rivers Coalition 36 Appendix D PWSSSC Work Group 1 Recommended revisions to §22-30-14 December 4, 2015 §22-30-14. Public access to information. (a) The public shall have access to all documents and information submitted to the department pursuant to this article, subject to the limitations contained in the state Freedom of Information Act, article one, chapter twenty-nine-b of this code, or any information designated by the Division of Homeland Security and Emergency Management as restricted from public release pursuant to subsection (c) of this section. Trade secrets, proprietary business information and information designated by the Division of Homeland Security and Emergency Management as restricted from public release pursuant to subsection (c) of this section shall be secured and safeguarded by the department. Such information or data shall not be disclosed to the public or to any firm, individual or agency other than officials or authorized employees or representatives of a state, or federal, or local agency implementing the provisions of this article or any other applicable law related to releases of fluid from aboveground storage tanks that impact the state’s water resources or related to source water protection planning. Any person who violates the provisions of this section makes any unauthorized disclosure of such confidential information or data is guilty of a misdemeanor and, upon conviction thereof, may be fined not more than $1,000 or confined in a regional jail facility for not more than twenty days, or both. (b) A list of the potential sources of significant contamination contained within the zone of critical concern or zone of peripheral concern as provided by the Bureau for Public Health, working in conjunction with the department and the Division of Homeland Security and Emergency Management may only be disclosed to the extent consistent with the protection of trade secrets, confidential business information and information designated by the Division of Homeland Security and Emergency Management as described above. The exact location of the contaminants, size, and substances stored in aboveground storage tanks within the zone of critical concern or zone of peripheral concern is not subject to public disclosure in response to a Freedom of Information Act request under article one, chapter twenty-nine-b of this code. However, the exact 37 location, size, and substances stored in aboveground storage tanks location, characteristics and approximate quantities of potential sources of significant contamination within the zone of critical concern or zone of peripheral concern shall be made known to one or more designees of the public water utility, and shall be maintained in a confidential manner by the public water utility. In the event of a release to waters of the state that could affect a public water supply, information about the release shall be promptly made available to any emergency responders responding to the site of a spill or release and the general public shall be promptly notified in the event of a chemical spill, release or related emergency by the Director of Homeland Security and Emergency Management. (c) The Director of Homeland Security and Emergency Management may promulgate emergency rules and shall propose legislative rules, pursuant to article three, chapter twenty-nine-a of this code to effectuate the provisions of this section. However, these rules cannot restrict public access to information that is already subject to public disclosure under any other state or federal statute, including but not limited to the federal Clean Water Act, Surface Mining Control and Reclamation Act, Resource Conservation and Recovery Act, and their state counterparts. 38 Appendix E Report from Work Group 2 Work Group 2 of the Public Water System Supply Study Commission was tasked with answering this question. To that end, the committee used the following to break the overall question into pieces to attempt to attain consensus regarding the question asked: A review and assessment of the effectiveness of the legislation enacted during the 2014 Regular Session of the West Virginia Legislature, as it pertains to assisting public water systems in identifying and reacting or responding to the identified potential sources of significant contamination and increasing public awareness and public participation in the emergency planning and response process. Members: Dr. Terry Polen (Chair) Tim Ball Walt Ivey (proxy for Dr. Rahul Gupta) Evan Hansen Pam Nixon Amy Swann a) We are asked to review and assess the 2014 legislation (SB373). However, because the legislature passed significant modifications to the 2014 legislation during the 2015 Regular Session (SB423), and because of proposals already submitted for consideration by the 2016 Legislature, should we broaden our scope to include consideration of SB423 and the 2016 proposals? b) In what way(s) can we/should we indicate to the legislature the effectiveness (or lack thereof) of the current/future processes I. Are there quantitative methods that can be brought to bear? II. How do we even define ‘effectiveness’? c) Does the 2014/2015 legislation help the public water supply systems to ID/react/respond to issues? [if not, why not, and how can we propose to fix it?] d) Does the 2014/2015 legislation help the public awareness and participation? [if not, why not, and how can we propose to fix it?] The management guru Peter Drucker once noted that effectiveness and efficiency are divergent terms by his phrase: “Efficiency is doing things right; effectiveness is doing the right things.” (Drucker, Peter F., The Effective Executive. London: Heinemann Studies in Management, 1967). In light of Drucker’s guidance, the committee considered both the “effectiveness” and “efficiency,” ‘are we doing things right?’ and ‘are we doing the right things?’ in an attempt to answer the question. 39 Early in the committee review of SB373, it was determined that it would be of little value to limit the consideration to that within the assigned questions, therefore SB423 was amended into the topic. Consideration of each of the above topics included background analysis, including that delineated below: The Aboveground Storage Tank (AST) Acts (SB373 and SB423) have made considerable changes to the regulatory landscape of the state and certain organizations. The following is a consideration of those impacts that was used within the consideration of the committee. On January 9, 2014, the DEP investigated citizen reports of a licorice smell. The investigation revealed that more than 10,000 gallons of crude methylcyclohexane methanol (MCHM) had spilled into the Elk River from the Freedom Industries tank site. Eventually, the Governor declared a state of emergency for nine (9) counties affected by the spill: Kanawha Putnam Boone Jackson Lincoln Roane Clay Logan Cabell A ‘Do Not Use’ ban was issued for approximately 93,000 West Virginia American Water customers affecting approximately 300,000 people. Schools and restaurants within the impacted area were ordered closed. The aftermath of the spill resulted in SB373, which was passed unanimously. The bill took effect on June 6, 2014. The DEP developed a website, created guidance, and began tank registration under the auspices of this bill with the Electronic Submittal System. Registration began on June 10, 2014, and by September 1, 2014, all NPDES individual permit holders and NPDES general permit holders within the zone of critical concern (ZCC) (22-30-4) were required to have applied. All tanks were to be registered by October 1, 2014 and the Spill Prevention Response Plans required by SB373 had to be submitted by December 3, 2014. The inspections of said tanks with their incumbent certification were required to be completed by a qualified person by January 1, 2015 (2230-6). 40 In 2015, the Legislature passed SB423 which substantially modified the 2014 AST Act. The legislation was signed by the Governor on March 27, 2015. This bill substantially modified the regulatory scheme. For example, while aboveground storage tanks were still defined as 1,320 gallons or greater, certain tanks were excluded from the regulation including: water tanks, mobile tanks (365 vs. 60 days), shipping containers, boats, pools, process vessels, food, empty tanks in inventory, pipelines, and transformers. The term ‘first point of isolation’ was defined, as well as the term ‘process vessel’. Tank levels were created/established. Level One tanks are those located within a Zone of Critical Concern (ZCC), contain a listed hazardous substance, or have a capacity of 50,000 gallons or more, regardless of location or contents. Level Two tanks are those located within a Zone of Peripheral Concern (ZPC) that are not Level One tanks. Other definitional changes included a release into the water of the state or out of secondary containment and the creation of a ZPC (10-hour-time-of-travel of water to an intake, an additional 5-hour-time-of-travel beyond the ZCC). There is now a tiered approach to the regulatory structure of tanks within the state, along with various annual operation fees. Also, requirements pertaining to the management and control of tanks may be incorporated into individual or site specific permits or plans issued or approved under other regulatory programs administered by DEP. Examples include individual NPDES permits or Groundwater Protection Plan (GPP). Each regulated tank must be inspected according to a frequency of inspections established by legislative rule. Additionally, Spill Prevention Response Plans (SPRP) that are now updated every 5 years instead of every 3 years as previously required by SB373. Also in lieu of developing a SPRP, a tank owner may certify that it is subject to a Groundwater Protection Plan (GPP) or Spill Prevention Response Plan (SPCC). The SPCC program is regulated under federal law. Section 22-30-10 requires certain notice to local governments and water companies under SB373 by the owner or operator of a regulated AST. This entity must supply the type and quantity of material stored to the water company. This has limitations that need to be examined in relation to not only trade secrets, but also to restricted information under the purview of Homeland Security. Public access to information is an issue that needs robust consideration in that release of certain information may be subject to fines of $5,000. To this end, this workgroup concurs with the recommendations of workgroup one contained in Appendix A of this document. The list of potential sources of significant contamination is being compiled and maintained by the WV Bureau of Public Health in conjunction with the WV Department of Environmental Protection, and the WV Division of Homeland Security, and is being provided to water utilities for review and refinement, and for inclusion in Source Water Protection Plans. 41 As of March 2015, 51,201 tanks had been registered with the majority being Crude Oil tanks (13,121), and Brine, Oil and Gas tanks (10,381). Kanawha County registered the greatest number of tanks with 8,660, with Lewis and Wyoming Counties trailing in the count substantially (4,151 and 3,187 respectively). Tank size varied considerably with the largest tank in the state being a Natural Gas Condensates tank registered at greater than 9.2 million gallons. The next four tanks were greater than 6 million gallons each and consisted of two in Wayne County (Number 2 Fuel Oil) and two in Brooke County (Natural Gas Condensates). Interestingly enough, the oldest tanks that were still in service are more than 100 years old. 5 tanks were built in the 1800’s with the oldest being built in 1888. All 5 of these tanks are crude oil tanks and are 4200 gallons in size. Only 388 of the tanks are greater than 75 years old with the majority (36481) being less than 30 years old As for tanks that reside within the Zone of Critical Concern, 509 are in Marshall County, 272 are in Hancock County, 251 and 249 reside in Brooke and Logan County respectively. Most of the tanks are less than 10,000 gallons (40,796), 5652 are between 10,000 and 50,000 gallons, and 2262 tanks are greater than 50,000 gallons. As of this report, there are 126 public water utilities within the State of West Virginia that are, or may be, impacted by this legislation. For example, the code of state rule, 64-3 added additional water source components that became effective on April 15, 2015. o The are 126 public water systems that are required to update their SWPP o 126 public water systems have started updating their SWPP, o As of December 1, 2015, 2 have completed their SWPP and submitted it to BPH for approval o As of December 15, 2015, no SWPP’s have received final approval. o DHHR/BPH, through Regional Planning and Development Councils, has provided funding for 115 public water systems to assist with updating their SWPP. The total amount provided is approximately $2.2 million. o DHHR/BPH has provided 126 public water systems its suggested list of Potential Sources of Significant Contamination, as required by the law. o The number and type of raw water contamination events since SB373 and SB423 were enacted. Numerous spill events (some major/some minor) have occurred within West Virginia during this time period as reported by the DEP spill reports and then forwarded to the water utilities. At this time BPH does not have a process to track these incidents. Since DHSEM is the recipient of the initial spill report, tracking of spills of all nature would best be accomplished by that organization. 42 o Any situation where a water system was required to shut down their intake with brief summaries of the nature of the situation and whether planning instituted since the legislation has been valuable. No systems were required to shut down their intakes. Situations when water systems shut down their intake as a precautionary measure include: Ohio River systems for harmful algal blooms; Potomac River systems due to latex spill; Kanawha River systems due to Bakken crude oil spill; and Greenbrier River systems due to a spill originating from a tractor trailer diesel fuel spill. American Petroleum Institute (API) and Steel Tank Institute (STI) inspection requirements where incorporated into the 2015 legislation SB423. These national standards should help to ameliorate or even eliminate an issue prior to it becoming a problem. A conclusion regarding the actual effectiveness and efficiency of these requirements is not feasible with the data available, but the committee is confident that this is a large step in the right direction. The review and assessment was broken into components as noted previously. Therefore, the following is offered in response to the separated questions, with conclusions below: ❖ We are asked to review and assess the 2014 AST legislation. With significant modifications passed in 2015 and proposals already submitted for the 2016 legislative session, should we broaden our scope to include AST law which currently applies to tank owners, as well as proposed law which will likely apply to tanks in 2016. ❖ As previously noted, it was the general consensus of the group that consideration should be expanded to include the current law, SB423(2015 legislation). It was noted that “It would seemingly be a waste of time and energy to focus on legislation no longer in effect.” ❖ Due to the shifting considerations, the 2016 proposed changes were considered, but an understanding that that legislature may significantly change or ignore any proposal, limited emphasis were placed on these proposals. ❖ The consensus is that we should look at the existing and proposed legislation (Statutes and Legislative Rules). To that end: 1) SB373: http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Documents/FINALS B373-The%20TankBill.pdf 2) SB423: http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Documents/SB423.p df 43 b) In what way(s) can we/should we indicate to the legislature the effectiveness (or lack thereof) of the current/future processes a. Are there quantitative methods that can be brought to bear? ❖ Even though it still may be too early to accurately assess the impacts of the rules, the above referenced quantitative measures appear to be valuable. It is with these measures that future commissions will be able to accurately assess the effectiveness and efficiency of the work completed by all entities. b. How do we even define ‘effectiveness’? ❖ It is believed that water systems throughout the state are moving forward expeditiously to create programs with the required elements and that they are using the public input obtained from a variety of venues to assist in this process. ❖ As noted elsewhere, the confidentiality restrictions need to be investigated. Some with the workgroup feel that information that is held by the state could be used by the utilities to assist in their planning process. To that end, the workgroup again wishes to concur with the recommendations of workgroup one as contained in Appendix A. ❖ Water systems commit to a reasonable number of strategies in their Management Plans, and BPH institutes a system to monitor progress toward implementing these strategies. ❖ There also remains concern that the lack of funding will prevent the implementation of many of the needed improvements and that the overall effectiveness and efficiency is simply stated in: ‘does the legislation protect the water supply’. It may be too early to make this determination, but positive legislation protecting the water supply remains critically important (as noted additionally below). c) Does the 2014/2015 legislation help the public water supply systems to ID/react/respond to issues? [if not, why not, and how can we propose to fix it?] ❖ The changes made by SB423 regarding restricted information have been impacting the development of SWPPs. It has created difficulty in obtaining the needed answers. Specific examples would be of great benefit to those involved, and clarity of information and sensitivity and confidentiality will greatly assist this process. Because state and federal law may be in conflict in this instance, a workable solution is needed. To this end, the workgroup concurs with the recommendations of workgroup 3 contained in Appendix B. 44 ❖ The proposed AST legislative rule, 64CSR3, nullifies requirements of notification to downstream water utilities of confirmed releases and of the entity’s Spill Prevention and Response Plans (or other spill prevention requirements) to downstream water utilities. Situationally appropriate access to protect the water supply would be prudent. ❖ There has been consternation and concern that the original PWSSSC report was not afforded the proper hearing. It is strongly recommended that the current and past reports be used to craft future legislation. One member noted: “SB423 (from 2015) compounded the above by reducing both the number of regulated PSCS operators and the requirements on them, yet that bill left requirements on the public water suppliers unchanged. So, utilities are still expected to meet the original standards, but now with less resources and cooperation. That legislation was apparently enacted without input from the PWSSSC, or reliance upon its previous recommendations.” d) Does the 2014/2015 legislation help public awareness and participation? [if not, why not, and how can we propose to fix it?] It is believed that public awareness and participation would benefit significantly if the recommendations of the PWSSSC were received and deliberated by the Legislature in public hearings. However, it should be noted that many water utilities have limited funds within their budgets for public education and communication. To build on the earlier points regarding information exchange and confidentiality, it is believed that a process whereby certain within the utilities be tasked with holding the information confidential, while still allowing certain critical individuals the access that they need. This includes notifications by both the operators and the agencies to the utilities. While it seems that the legislation is working toward its’ intended consequences, it is too early to conclude that the effectiveness and efficiency of the legislative actions are sufficient to attain the goals and vision of the state and the stakeholders. ❖ For example: processes in place look to be of assistance to the 134 groundwater systems within the state. The DHHR is currently considering if they fall under protection plan requirements. This decision, and the implementation thereof, has the potential to impact the considerations and proposals of the subcommittee. With roughly 12,011 individual points of emission, the groundwater impact has the potential to be positively synergistic regarding the public water supply systems. The difficulty in creating a specific list of all potential contaminants leads the subcommittee to consider the larger protection mechanisms to be critical. Additionally, the training and spill workshops that are being held throughout the state offer great hope in not only helping entities to comply, but to keep the waters of the state safe for all potential uses. 45 Again, while the dynamic process of legislative creation fashions a moving target, especially as it relates to the effectiveness and efficiency determination, the current state of rules and policy offer continued belief that issues such as the Freedom Industry spill will never again cause the impact and distress that permeated the Kanawha Valley. This assumes that a positive path forward is continued. Respectfully submitted: Public Water System Supply Study Commission 46 Appendix F PWSSSC Work Group 3 Recommended revisions to §16-1-9c Amend W.Va. Code 16-1-9c to include a new subsection designated as subsection (i) to read as follows: The Secretary is authorized to propose legislative rules for promulgation pursuant to article three, chapter twenty-nine-A of the Code to implement the provisions of this section that may include a schedule for the submission of Source Water Protection Plans by public water utilities pursuant to subsection (f) that staggers the schedule for the submission of Source Water Protection Plans, except that for the purpose of staggering the dates of submission of updated Source Water Protection Plans, the Secretary may designate a schedule of submission greater than three years from the initial submission required by a legislative rule promulgated pursuant to this subsection. 47 Appendix G WEST VIRGINIA CHEMICAL RELEASE PREVENTION PROGRAM Contents PROGRAM OUTLINE: 1. PROGRAM STRUCTURE 2. DEFINITIONS OF COVERED CHEMICAL FACILITIES AND CHARACTERISTICS Covered chemical facilities Facility characteristics NOTES: 3. PROGRAM PROCESSES PROGRAM 1 CRITERIA PROGRAM 2 CRITERIA PROGRAM 3 CRITERIA PROGRAM OUTSTANDING QUESTIONS 4. PROGRAM ORGANIZATION / 5. ROLES AND RESPONSIBILITIES INTERAGENCY WORKING TEAM ADVISORY TEAM 6. PROJECT TIMELINE PHASE 1 – COMPLETE PHASE 2 – PROGRAM DEVELOPMENT PHASE 3 – IMPLEMENTATION PHASE 4 – STATEWIDE EXPANSION 7. FEE SYSTEM 8. APPLICABLE LOCAL, STATE AND NATIONAL LAWS 9. LEGISLATIVE CHANGES NEEDED TO CARRY OUT THE PROGRAM 1. PROGRAM STRUCTURE ● Develop Guidance Documents for facilities ● Risk Management Plan and Safety Plan Review developed by facilities ● Conduct Facility Audit/Inspections ○ Unannounced inspections of the regulated businesses are required at least once every three years to ensure that the facilities have the required programs in place and are implementing the programs. ○ Embeds employee participation. ● Perform incident investigation and root cause analysis 48 ● Issue public reports on audits and plan reviews ● Hold public meetings and perform public outreach ● Public Participation ○ A 45-day public comment period and public meetings for the completed Safety Plans and preliminary CRPP audit findings. ○ All written comments will be taken into consideration. Changers will be made, when appropriate, in either the Risk Management or Safety Plans or in the audit findings. ○ CRPP will respond to all written comments in writing. ○ Comprehensive website: ■ Guidance documents ■ Interactive mapping of facilities and audit summaries ■ Meeting notices ■ Regulatory framework ■ Comprehensive incident database ■ Plans ■ FAQs ○ CRPP will hold public meetings: ■ after a Major Chemical Accident or a Release ■ where there is a public concern ■ on each Safety Plan and Audit of Industrial Safety Ordinance facilities ○ Scheduled document review available at CRPP office. ○ Plans and Audit findings available at specified libraries. ○ Annual report summaries: ■ Audits conducted ■ Public participation ■ Major incidents (if any) ■ Status of investigations ■ ISS implemented ■ Penalties/enforced ■ Fees ○ Citizen will hold representative seat on Chemical Release Prevention Commission ○ Public comment will inform risk scoring 49 2. DEFINITIONS OF COVERED CHEMICAL FACILITIES AND CHARACTERISTICS Covered chemical facilities ● RMP & PSM facilities ● MCHM-like facilities - chemicals that pose hazard or risk but may not be classified as such* (i.e. Tier II reporting facilities) ● Mobilie sources including but not limited to truck, rail, barges, pipelines* ● Cracking facilities* ● Oil and gas separating facilities* *further analysis is needed to understand the scope of integrating these facilities into the program and to clarify quantities and thresholds Facility characteristics ● Volatile substances ● Utilize RCRA(c) guidance o Ignitability o Corrosivity o Reactivity o Toxicity ● Facilities and/or other chemical threats close to vulnerable populations (e.g. schools, nursing homes, hospitals, communities) ● Hazards are to be identified in a comprehensive way -- quantities, proximity to vulnerabilities and toxicity and route of entry are to be considered NOTES: ● Where toxicity is “unknown”, risk should be assumed unless otherwise identified ● We need a full account of the true contents of “what’s in the tank”...such as with MCHM that actually turned out to have many different chemicals blended together 3. PROGRAM PROCESSES PROGRAM 1 CRITERIA * INDICATES PART OF RMP OR PSM 1. Processes that contain a regulated material above the State or Federal threshold, but under a worst-case release scenario as defined, would not result in impacting the public and has had no accidents with specific offsite consequences occur within the past five years. 2. Facilities with operations that are subject to the Chemical Release Prevention Program because of a Program 1 process are required to develop, implement, and maintain the following: 50 a. b. c. d. Hazard Assessment* Worst-Case Scenario* Five-year accident history* Emergency Response Program* PROGRAM 2 CRITERIA 1. Processes not eligible for Program 1 or subject to Program 3 are placed in Program 2. 2. Facilities with operations that are subject to the Chemical Release Prevention Program because of a Program 2 process are required to develop, implement, and maintain the following: a. Hazard Assessment, including the following: i. Worst-Case Scenario(s) ii. Alternative Release Scenarios (more likely to occur) iii. Five-Year Accident History b. Prevention Programs, including the following: i. Safety Information* ii. Hazard Review* iii. Operating Procedures* iv. Training* v. Maintenance* vi. Incident Investigations* vii. Compliance Audits viii. Management System (that oversees the prevention elements)* c. Emergency Response Program* PROGRAM 3 CRITERIA 1. The whole facility is covered, not just process(es) that have a regulated substance over a threshold quantity. 2. Processes not eligible for Program 1 and either subject to OSHA's Process Safety Management standard under Federal or West Virginia OSHA programs or described by one of the ten specified North American Industrial Classifications Standards (NAICS) codes (primarily related to petroleum refining or chemical manufacturing). 3. Processes at a facility that handle a listed chemical above a specified quantity are subject to the Chemical Release Prevention Program. Facilities with operations that are subject to the CRPP because of a Program 3 process are required to develop, implement and maintain the following: a. Submittal of a Safety Plan (public document) 51 b. Submittal of Risk Management Plan including Off-Site Consequences Analysis (public document)* c. Hazard Assessment, including the following: i. Worst-Case Scenario(s)* ii. Alternative Release Scenarios (more likely to occur)* iii. Five-Year Accident History* a. Emergency Response Program* 4. Prevention Programs, including the following: a. Process Safety Information b. Process Hazard Analysis* c. Operating Procedures* d. Training* e. Mechanical Integrity* f. Incident Investigations* g. Management of Change* h. Pre-startup Safety Reviews* i. Compliance Audits* j. Employee Participation* k. Contractors* l. Hot Work Permits* m. Management System (that oversees the prevention elements)* n. Human Factors Program o. Management of Organizational Changes p. Inherently Safer Design Analysis i. MOC when major change occurs ii. Part of incident investigation iii. All process units at least every 5 years iv. Feasibility determination v. Layer of Protection Analysis q. Root Cause Analysis Investigations r. Safety Culture Assessments s. Safeguard Protection Analysis t. Process Safety Performance Indicators u. External events analysis PROGRAM OUTSTANDING QUESTIONS ● Community Vulnerability Analysis needs added into this section – see public input action tracking for guidance. ● Other outstanding questions will be addressed in Phase 2. 52 4. PROGRAM ORGANIZATION / 5. ROLES AND RESPONSIBILITIES A Chemical Release Prevention Commission shall be established with the purpose of the Commission is to develop overall policy recommendations for and serve in an advisory role to the Chemical Release Prevention Program. The Commission shall consist of an Interagency Working Team and an Advisory Team, whose make up shall comprise of the following: INTERAGENCY WORKING TEAM 1. State Department of Environmental Protection 2. Kanawha-Charleston Health Department 3. State Bureau for Public Health 4. County Emergency Management 5. State Department of Homeland Security & Emergency Management 6. State Department of Labor / Occupational Safety & Health Administration ADVISORY TEAM 1. Engineer 2. Toxicologist 3. Epidemiologist 4. Academic 5. Medical Doctor 6. Citizen 7. Ombudsperson* *An Ombudsperson shall be appointed 1) To serve as a single point of contact for the public regarding the CRPP; 2) To investigate concerns and complaints about the CRPP, facilitate their resolution, and assist people in gathering information about programs, procedures, or issues; and 3) To provide technical assistance to the public. The Kanawha-Charleston Health Department (KCHD) shall administer the Chemical Release Prevention Program which will consist of a technical/engineering team of facility auditors and inspectors and an administrative staff. Additionally, it will be the role of KCHD to ensure public participation as outlined in the program structure and secure funding for the program. Regulated facilities and the public including small businesses and individual citizens shall be considered essential stakeholders of the program. Facilities shall be tasked to provide right-of-entry to auditors/investigators and submit safety plans as outlined, and the public will provide input on hazard scoring and general policy recommendations. 53 6. PROJECT TIMELINE PHASE 1 – COMPLETE PHASE 2 – PROGRAM DEVELOPMENT Timeline: July 1, 2015 – June 30, 2016 ● Obtain necessary legal authorizations** ● Technical synthesis o Further develop program processes o Further develop funding strategy and fee structure ● Policy analysis ● Program guidance ● Pollution prevention cost modeling Resources needed: ● Industry expertise ● Policy analyst ● Funding to continue team coordination and convening ● Chemical Safety Board review of roadmap **Guidance from U.S. Chemical Safety Board regarding program authority: “The West Virginia Code Chapter 16, Public Health, charges the state public health agency with providing “Essential public health services [§16-1-1]” i.e., activities necessary to promote health and prevent disease, injury and disability for the citizens of the state.” The code authorizes the commissioner of the bureau for public health “To make inspections, conduct hearings, and to enforce the legislative rules concerning occupational and industrial health hazards [§16-1-6 (n)].” The Secretary of the state department of health and human resources may also propose Fees for services provided by the Bureau for Public Health [§16-1-4 (b)(8)].” If the West Virginia Department of Health and Human Services were to implement a program similar to the California safety ordinance, it would likely improve stakeholder participation and awareness, and improve emergency planning and accident prevention.”12 1 54 PHASE 3 – IMPLEMENTATION Timeline: Begin July 2016. PHASE 4 – STATEWIDE EXPANSION To be determined. 2 [Emphasis added] Pesticide Chemical Runaway Reaction Pressure Vessel Explosion. (2011, January). U.S. Chemical Safety and Hazard Investigation Board. Retrieved May 14, 2015, from http://www.csb.gov/assets/1/19/Bayer_Report_Final.pdf. 55 7. FEE SYSTEM ● Self-sustained following upstart ● Performance-based o Incentive for companies with good practice o “Discount” for risk minimization ● Risk-based o Based on risk-matrix o Reassessment as events occur o Stakeholders decide/inform risk Figure 1. 56 8. APPLICABLE LOCAL, STATE AND NATIONAL LAWS3 FEDERAL ● EPA Risk Management Program 1996 ● OSHA Process Safety Management 1992 STATE: ● Aboveground Storage Tank Act §22-31-12. Public Water System Supply Study Commission: (4) A review and consideration of the recommendations of the U. S. Chemical Safety and Hazard and Investigation Board after its investigation of the Bayer CropScience incident of 2008; LOCAL: ? 9. LEGISLATIVE CHANGES NEEDED TO CARRY OUT THE PROGRAM ● Create rule granting authority to establish WV Chemical Release Prevention Program o Ensure right-of-entry ● Other(s) identified in Phase 2 3 needs further analysis 57 ROADMAP PROCESS GOALS: 1. Enhance the prevention of incidental chemical releases and optimize responses in the event of their occurrence 2. Mitigate factors that have the potential to degrade human health and the environment 3. Develop a Chemical Release Prevention Program in Kanawha Valley that can be modeled statewide TIMELINE ● MEETING 1: October 24, 2014 – Project Overview ● MEETING 2: November 14, 2014 - New Jersey Toxic Catastrophic Prevention Act ● MEETING 3: January 23 & 24, 2015 – Contra Costa Co. Industrial Safety Ordinance ● MEETING 4: February 20, 2015 – Covered Facilities/Characteristics for WV ● MEETING 5: March 20, 2015 - European Water Framework Directive ● MEETING 6: April 24, 2015 - Working meeting ● MEETING 7: May 15, 2015 - Public hearing ● MEETING 8: June 26, 2015 - Final Recommendations CONVENERS People Concerned About Chemical Safety are non-profit community organization based in Kanawha Valley dedicated to developing solutions that prevent chemical disasters and protect our West Virginia communities. PLANNING TEAM Task: Identify national best practices and garner public input among stakeholder groups in the development of a roadmap outlining what a Chemical Release Prevention Program should look like for the Kanawha Valley Members and Participants ● Dr. Michelle Foster – CEO, Kanawha Institute for Social Research and Action, former Union Carbide Chemical Engineer ● Walt Ivey** - Director Environmental Health Services, WV Department of Health & Human Resources/Bureau for Public Health ● Dr. Bill Kroesser - Program Coordinator for Chemical Process Operations, Applied Process Technology Faculty, Bridge Valley Technical College 58 ● Dr. Mike McCawley* - Interim Chair, WVU Department of Occupational & Environmental Health Sciences, former Public Health Service Officer with the Centers for Disease Control and Prevention (CDC) at the National Institute for Occupational Safety and Health (NIOSH), ● Pam Nixon, MEnvSc* – Citizen and Environmental Advocate, Citizen Representative, member Kanawha Putnam Emergency Planning Committee ● Dr. Terry Polen*– Ombudsman, WV Department of Environmental Protection ● C.W. Sigman** - Deputy Director/Fire Coordinator, Kanawha County Homeland Security and Emergency Management, represented Kanawha Putnam Emergency Planning Committee for Larry Zuspan, Administrator ● Josh Sword – Secretary/Treasurer, AFL-CIO, West Virginia ● Eric Tissenbaum** - Independent Living Advocacy/ Skills Training Specialist, Appalachian Center for Independent Living Inc. / Kanawha Putnam Emergency Planning Committee Training Chair ● Tony Turner** – Director Indoor Air Quality, WV Department of Health & Human Resources/Bureau for Public Health ● Nasandra Wright, MPH, R.E.H.S, RS** - Environmental Health Director, Kanawha-Charleston Health Department Invitations for participation were extended to: ● Jim Covington, Plant Manager, BayerCropScience, Institute Facility (declined participation) ● Tyler London, Plant Manager, Dow Chemical, South Charleston Facility (no response) ● Mark Nunley, MS, Senior Process Engineer for MATRIC, Director of National Institute for Chemical Studies (declined participation) ● Jim O'Connor, Plant Manager, DuPont, Belle Facility (declined participation) ● Timothy Byrd, Plant Manager, DuPont, Belle Facility (declined participation) ● Angela Wilson -- Industrial Hygienist, Occupational Safety and Health Administration Consultation (provide consultation assistance) ● Larry Zuspan, Administrator, Kanawha Putnam Emergency Planning Committee (deferred representation to CW Sigman) ● member Public Water Service Supply Study Commission ● **member multi-disciplinary Rapid Response Team during Elk River chemical leak ACTIVITIES ● Chemical Release Prevention Program (CRPP) Roadmap planning meetings o Monthly since October 2014 ● Collect and utilize public input on CRPP planning process o Online, mail, surveys, working groups, public input each meeting, synthesis ● Educate public, private and governmental sectors on best practices in chemical safety and security and release prevention 59 ● Monthly meeting – model program presentations o Chemical Safety Board recommendation overview o NJ Toxic Catastrophic Prevention Act (Komosinsky) o European Water Framework Directive (McCawley) ● Jan. 2015 - Summit on Chemical Safety in West Virginia o Vulnerable populations ▪ Children/Pregnant women (Paulson) ▪ Minority and income disparities (Roberts & Shafiei) o Contra Costa County Industrial Safety Ordinance ▪ Program overview (Sawyer) ▪ Community perspective (Clark) ▪ Worker/community engagement (Bravo) o Update on Freedom Industries testing (Whelton) ● Develop draft Roadmap for public input o May 15th meeting ● Provide final draft for implementation o June 19th meeting 60