In January 2014, a tank farm in Charleston, West Virginia leaked chemicals into the Elk River just upstream of the intake used by the primary domestic water supplier for the region. Just weeks later, local activists used the event as a springboard to seek a writ of mandamus from the West Virginia Supreme Court against both the West Virginia Department of Environmental Protection (“WVDEP”) and the West Virginia Department of Health and Human Resources (“WVDHHR”).
In a Petition for a Writ of Mandamus, activists claimed that WVDEP had breached obligations under State water laws to require the submission of an adequate facility plan and to inspect facilities before issuing stormwater permits for facilities like the one that leaked. Likewise, petitioners claimed the WVDHHR had failed to require adequate source water protection and emergency response plans from the local water utility under the federally-approved state safe drinking water program.
Among the relief the activists requested was an order requiring one or both of the targeted agencies to adopt a program like that recommended in 2011 by the U.S. Chemical Safety Board (“CSB”) as a result of a 2008 chemical unit explosion in the Kanawha Valley of West Virginia. That report cited a county “industrial safety ordinance” adopted in Contra Costa County, California which gave county health officials the right to inspect and regulate chemical plants in addition to the process safety requirements imposed on them under OSHA and Section 112(r) of the Clean Air Act. As noted in a January 20, 2011 press release by the CSB:
Citing a highly successful county program to ensure refinery and chemical plant safety in Contra Costa County, California, the CSB report recommends the West Virginia Department of Health and Human Resources establish a “Hazardous Chemical Release Prevention Program” that would have the authority to inspect and regulate such plants, and make public its ongoing findings.
The Petition, though, provides little linkage from the claimed statutory obligations imposed on the agencies to the relief requested. For example, it provides no statutory bases for either agency being required to adopt the program recommended by the CSB.
In their responses to the Petition, the two agencies took slightly different positions (the pleadings may be accessed at http://www.courtswv.gov/supreme-court/clerk/cases-of-interest.html). WVDEP argued that the petition is moot as a result of the so-called “tank bill” (Senate Bill 373) passed by the West Virginia Legislature in response to the same leak. A summary of that bill appears in our article of March 14, 2014. WVDHHR’s brief was a little more substantive. It supplemented a “mootness” argument with arguments either that it had already discharged all of its statutory obligations or that it had no obligation to do the things petitioners demanded. We will continue to follow this Petition.
This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author, see here.