“Are you saying that the DEP doesn’t understand what environmental justice is?”

The question came from West Virginia Environmental Council President Linda Frame.

It came after the Department of Environmental Protection representative on the Zoom call said the department needed more federal guidance on dealing with environmental justice concerns.

All the participants in last month’s council-hosted online town hall with department members to let them bring concerns to the agency’s attention knew what environmental justice is not.

The historically Black community has long been what NAACP Charleston branch Environmental and Climate Justice Committee chair and former DEP environmental advocate Pam Nixon has called an “environmental sacrifice zone.”

Chemical facilities like those operated by Union Carbide Corp., Bayer CropScience and US Methanol as well as sites like the nearby Dunbar treatment plant and asphalt-producing company West Virginia Paving have exposed the area to adverse impacts.

A plant was built in Institute during World War II for the federal government to produce butadiene and styrene, which are used to produce synthetic rubber. Union Carbide bought the plant in 1947 to produce other chemicals.

By the 1970s, the plant was a “major source of air pollutants” and “major generator of hazardous wastes,” according to a 1984 U.S. Environmental Protection Agency overview of Kanawha Valley environmental pollution.

The agency reported that monitoring wells onsite had detected significant groundwater contamination, exceeding drinking water standards. Union Carbide had told the EPA that it had buried a wide variety of chemical wastes at the site from 1950 to 1970.

In August 1985, an accidental release of aldicarb oxime from the Institute plant sent at least 135 people to the hospital — eight months after a leak of methyl isocyanate from a Union Carbide pesticide plant in Bhopal, India, killed thousands and caused permanent disabilities or premature death for many thousands more.

In August 2008, an explosion at the plant then owned by Bayer CropScience left two dead and eight treated for possible chemical exposure.

And in 2018, the EPA released its latest National Air Toxics Assessment, finding that six of the 90 census tracts with the highest cancer risk from the flammable, colorless gas ethylene oxide were in Kanawha County.

Bayer CropScience explosion 2008

Flames shot 50 to 100 feet into the air at the Bayer Plant in Institute as explosions rocketed the valley in 2008.

It was the first such assessment since the EPA reclassified ethylene oxide as a carcinogen in 2016, causing risk estimates to go up.

The total cancer risk in Kanawha was 366 in 1 million, 10th-highest in the country, and made up largely of the risk from ethylene oxide that composed much of the risk for most tracts across the country.

Located along W.Va. 25 near West Virginia State University, the Institute facility released 9,164 pounds of ethylene oxide from 2015 through 2019, according to EPA data. That was more than most of the 25 high-priority facilities where the agency has estimated emissions significantly contribute to elevated estimated cancer risk.

Union Carbide in 2018 transferred permitting in Institute to Specialty Products US, LLC, a subsidiary of International Flavors & Fragrances, Inc., meaning Specialty Products now operates an ethylene oxide process there that had been run by Union Carbide.

Ethylene oxide has been a raw material at the Institute plant dating back to at least the 1970s, according to the EPA’s 1984 Kanawha Valley environmental pollution overview.

“What specific steps has the DEP taken related to the state focusing on the EJ [environmental justice] implications of having this ethylene oxide issue that is centered partially around a chemical plant in Institute, a majority Black community that is home to a historically Black university?” Frame asked DEP Environmental Advocate Ed Maguire, reading another question from a town hall participant.

Maguire responded by shifting focus to the EPA.

The EPA, Maguire said, had wanted the DEP to provide environmental justice training for all staff, prompting the latter agency to ask the former for a training program.

“They never responded,” Maguire said. “ … It’s almost like they don’t want to interject EPA’s view. They want us to develop it on our own.”

wvsu1 (copy)

The West Virginia State University campus in Institute.

EPA Region 3 Regional Administrator Adam Ortiz deferred comment on staff environmental justice training to state agencies but added that the EPA is willing to provide training.

“We have a lot of folks that are willing to come out and train anybody to help us achieve our environmental goals,” Ortiz said.

Asked by Frame whether the DEP had an environmental justice policy to ensure that communities of color aren’t bearing disproportionate levels of pollution, Maguire acknowledged that the agency did not.

The department has an acting environmental justice coordinator that monitors EPA guidance but no new policy or statutory authority to deny permits based on environmental justice concerns, Maguire said.

“We look forward to the opportunity to do that when we’re provided all the resources necessary to be incorporated in it,” Maguire said of having a state environmental justice policy.

Nixon, a former Institute resident who now lives in South Charleston, responded by pointing out that the DEP had published an environmental equity policy drafted at her request in 2003 pledging to ensure that no segment of the population, regardless of racial or economic makeup, bears “a disproportionate share of the risks and consequences of environmental pollution or be denied equal access to environmental benefits.”

“It needs to be updated because it really has no teeth to it,” Nixon said.

For environmental equity

Pam Nixon stands on the deck of her South Charleston home. A longtime advocate of chemical safety and clean air, Nixon wants a Kanawha County-focused cancer risk reassessment that the U.S. Environmental Protection Agency and West Virginia Department of Environmental Protection are working on to result in greater air emissions regulations and not just a new set of numbers. Nixon also wants the DEP to come up with an updated, strengthened environmental equity policy.

DEP acting spokesman Terry Fletcher said the policy is no longer in effect because its terms are already included in agency permitting and enforcement. Fletcher noted the 2003 policy stated it did not affect regulatory requirements and that the DEP has never had the authority to permit or enforce regulations based on a community’s racial or economic makeup.

The EPA defines environmental justice as “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”

The Biden administration has emphasized environmental justice, setting a goal of delivering at least 40% of the overall benefits from federal investments in climate and clean energy to disadvantaged communities.

But Maguire’s comments characterizing the DEP as powerless to statutorily enforce environmental justice and the EPA short on guidance suggest a long road ahead for resolving the latest environmental justice concerns for Institute over ethylene oxide.

Meanwhile, state and federal regulators are playing catchup in educating the public about the health risks from the chemical in their communities.

“[W]e know that the violations are out there on many levels,” Nyoka Baker Chapman of the League of Women Voters of West Virginia Natural Resources Committee told Maguire. “And in order for enforcement with environmental justice for communities on all different kinds of levels, you have to have teeth to be able to get the job done.”

A sampling plan

The 2018 National Air Toxics Assessment based on 2014 data indicating Kanawha County’s high total cancer risk driven by ethylene oxide emissions hasn’t been the final word.

The DEP subsequently asked the EPA for help getting localized data, suspecting the assessment overestimated the cancer risk at the Union Carbide facilities.

In 2019, the DEP got what Fletcher said were the most recent and accurate emissions data from the sites so regulators could perform their own dispersion modeling and get a more precise view of potential risks and minimization strategies.

A May EPA document the Gazette-Mail obtained through a Freedom of Information Act request said state air dispersion modeling showed “the risk for populated areas remain high.”

Records the Gazette-Mail additionally obtained from the state Department of Health and Human Resources and the EPA turned up analysis of cancer data that found an area of elevated ethylene oxide-related cancers downwind of the Union Carbide sites but cautioned the data were inconclusive.

A cloud of uncertainty hangs over the issue partly because environmental regulators chose not to hold public meetings on the subject until now. A March 2020 EPA Office of Inspector General report urged the agency to inform people who live near facilities with significant emissions about their elevated estimated cancer risks.

The report noted agency plans for potential outreach in the first half of 2020. The EPA delayed those efforts as regulators decided to gather and model additional information instead.

EPA officials agreed to provide quarterly updates to Nixon and others on ethylene oxide cancer risk assessment in Kanawha County, but she said that didn’t happen.

A DEP webpage published in August explains the flammable, colorless gas is used to make antifreeze, detergents and plastics and sterilize medical and dental equipment. Long-term exposure has been associated with increases in female breast and white blood cell cancers, including leukemia, Hodgkin’s and non-Hodgkin’s lymphoma. Short-term exposure to high concentrations of ethylene oxide can cause nausea, fatigue, respiratory irritation and vomiting.

An analysis of Cancer Registry data that state epidemiologist Steven Blankenship shared with health officials showed elevated ethylene oxide-related cancers downwind of the Union Carbide facilities, according to internal documents obtained by the Gazette-Mail.

The analysis was based on a review of cancer data from 1993 — the first year of West Virginia Cancer Registry operations — to 2019.

Blankenship presented a map showing a cluster of census tracts east of the area of release with higher rates of ethylene oxide-related cancers. He also compared the percentage of cases by primary site by ZIP code for the areas of concern to the remainder of Kanawha County and found nothing stood out in the target area. But Blankenship said major flaws with that approach could skew the results.

“The point is that any estimate used will be wrong, and there is no way of knowing by how much,” Blankenship wrote. “The reliability of any rates calculated at the census tract level for these data cannot be defended.”

It was impossible to attribute those cancer clusters east of the area of release to ethylene oxide exposure, Blankenship concluded, citing potential exposures from sources known to exist in an area he acknowledged was “well-known as ‘Chemical Valley.’”

Nevertheless, Blankenship observed it was reasonable to expect people onsite could be the most vulnerable.

Blankenship recommended contacting the National Institute for Occupational Safety and Health, which he wrote in a November 2019 email to former state health officer Cathy Slemp “might be willing to investigate cancer incidence among daily onsite workers likely to have relatively high levels of exposure.”

“Occupational study would definitely be a more direct way to look at exposure,” Slemp replied in an email.

State Health and Human Services spokeswoman Jessica Holstein has said the agency is not aware of any such study having been conducted.

Kyle Bandlow, spokesman for Union Carbide parent company Dow Chemical, has declined to comment on whether the company would welcome another workplace study. He said in an emailed statement that safety is Union Carbide’s top priority and that the company follows OSHA and other regulatory guidelines to protect employees and communities.

Using 2017 modeling, the EPA estimated the potential increased cancer risk from breathing ethylene oxide released from another Union Carbide facility along MacCorkle Avenue Southwest in South Charleston to be 807 cases in 1 million, the Institute Union Carbide facility to be 379 in 1 million and a Covestro facility in South Charleston to be 185 cases in 1 million.

In November, the EPA approved a field air sampling plan for the DEP’s Division of Air Quality to assess atmospheric concentrations in fenceline, onsite and offsite locations near facilities with known ethylene oxide air emissions in Institute and South Charleston.

Sampling will be conducted using summa canister samplers. Each sample will be collected over a 24-hour period, with sampling taking place over a roughly three-month span, according to the plan.

Four sets of canister samplers will be placed around each area as well as a background site location.

The Division of Air Quality will review the results to determine ethylene oxide presence and conduct short-term air dispersion modeling, with the EPA providing funding for lab analyses and advisory help.

Union Carbide, Specialty Products and Covestro will provide sampling location access and operational and emissions data for sampling days. Sampling will take place when the most ethylene oxide-emitting processes are in operation at the facilities.

The canisters will be situated at approximate breathing height — 5 to 6 feet from the ground — as much as possible.

Final results and their public release are anticipated in May or June, Maguire said during the Dec. 7 town hall, admitting that citizens “may not be thrilled” with that timetable.

State environmental regulators are planning on holding an in-person open house in late March or early April at which members of the public could raise ethylene oxide concerns with Division of Air Quality and EPA staff one-on-one.

Maguire contended that while DEP public meetings conducted virtually have been useful in facilitating participation from residents across the state and will continue, an in-person event would allow agency officials to better gauge public reaction.

Maguire demurred in response to a participant’s request to provide information to all attendees at the planned spring meeting at the same time rather than in stations designed for small groups.

“There’s a value in having small groups,” Maguire said. “ … A little bit of intimacy is part of the reasons for having it that way. But we’ll see.”

The EPA and DEP fielded questions from Kanawha County residents and public officials with health and regulatory concerns about ethylene oxide emissions in Institute and South Charleston during a Zoom teleconference meeting they hosted in September. The meeting attracted more than 175 attendees and marked the agencies’ first local public meeting on ethylene oxide.

‘Subjectivity is not helpful’

During the town hall, Maguire recalled a November meeting with water regulators in states comprising EPA Region 3 (West Virginia, Delaware, District of Columbia, Maryland, Pennsylvania and Virginia) at which an EPA official said that the feds didn’t want to “give anyone a script about how to address environmental justice” and were looking to the states to develop an environmental justice approach.

“Well, it’s going to be different in Texas than it is in Minnesota and it is in West Virginia,” Maguire said. “ … [A] lot of this stuff becomes subjective. If you’re in the regulatory business, subjectivity is not helpful.”

The EPA has demonstrated it “hasn’t quite figured it out yet” regarding its environmental justice approach, Maguire said.

Ortiz acknowledged that environmental justice “covers a lot of ground” but said the Biden administration is performing data-based assessments of human health impacts, demographic information and environmental stressors to determine communities’ environmental distress levels.

Ortiz recalled speaking with DEP Secretary Harold Ward and state Department of Health and Human Resources Secretary Bill Crouch about immediate environmental justice issues and having a closer partnership toward identifying the most impacted communities.

Those environmental justice issues included ethylene oxide impacts in Institute and South Charleston. Ortiz said, emphasizing adequate drinking water testing, lead line replacements and data collaboration.

“Sometimes it’s not an enforcement action, but rather it’s technical assistance or education or funding to help make a change of some kind,” Ortiz said.

Ortiz said that the EPA plans to make public a list of environmentally distressed communities and an analysis of the issues they face this spring after confirming that agency data matches up with what state regulators have observed locally.

Ortiz touted the importance of federal, state and local officials to address findings in EJSCREEN, the EPA’s environmental justice screening and mapping tool that can identify demographic and environmental conditions within a certain distance of an industrial facility.

Maguire sees great potential for West Virginia to benefit from the Biden administration’s focus on environmental justice.

Given West Virginia’s chronically high poverty levels, the White House’s goal of delivering 40% of the overall benefits of relevant federal investments to disadvantaged communities would especially benefit the state, Maguire said.

“That’s how we sell this to our Legislature and anybody else when they have a problem endorsing this concept,” Maguire said.

Not living in a silo

Frame said after the town hall that it’s time for the DEP to review and update its nearly 20-year-old environmental equity policy with input from citizens and leaders from impacted communities.

Of particular concern, Frame said, is the water and air quality surrounding the Kanawha Valley’s chemical plants located near communities of color and low-income neighborhoods.

“We need legislation in West Virginia, we need the introduction of House bills that are going to be supporting climate justice policies and laws that they can enforce,” Chapman said.

But the first week and a half of the 2022 state legislative session has resulted in the advancement of bills favorable to energy industries, not measures focused on environmental justice.

State lawmaker committees have pushed forward bills that would lift restrictions on nuclear power development, allow restricting state banking contracts with financial institutions that divest from fossil fuel companies and create a mining mutual insurance company with $50 million of state funds that critics say amounts to a coal industry bailout destined to lose taxpayer dollars amid the energy transition away from coal.

Those seeking environmental justice in Union Carbide’s shadow are looking for justice through the courts as well.

Two federal class-action lawsuits filed by Kanawha County residents against Union Carbide in 2019 touted the EPA’s air toxics assessment finding elevated cancer risks from ethylene oxide, alleging the company’s ethylene oxide emissions exposed residents in Institute and South Charleston to hazardous levels of the chemical for decades.

The still-unresolved lawsuits contend the pollution prompted residents to turn to medical monitoring to mitigate increased cancer risk.

The plaintiffs in those cases have sought any medical surveillance programs Union Carbide has considered or implemented for employees exposed to ethylene oxide at Union Carbide’s West Virginia operations since 1970, including whether such programs were used for any risk assessments or epidemiological investigations. They have also sought all enforcement actions taken by and communications with state or federal regulators regarding ethylene oxide at the Institute and South Charleston sites.

Union Carbide has fought those requests, calling them “overbroad, unduly burdensome, and not proportional to the needs of the case” in a court filing last month.

“Safety and integrity are at the core of Union Carbide’s operations and we remain dedicated to reducing ethylene oxide emissions to a level that meets or out-performs EPA regulations and our own aggressive company sustainability goals,” Union Carbide said in an emailed statement. “We take, and have always taken, emissions seriously and believe it is important that measurement and modeling techniques are subject to ongoing development and improvement over time.”

There have been no Clean Air Act violations identified at Union Carbide’s Institute or South Charleston plants since at least April 2019, according to EPA data.

But the facilities have emitted more than 868,000 pounds of ethylene oxide since 1987.

Environmental justice concerns

Chemical facilities in Institute have raised lingering environmental justice concerns that state and federal environmental regulators have struggled to assuage.  

Kathy Ferguson, an Institute area resident, said at the EPA and DEP joint public meeting in September on ethylene oxide in Kanawha County that uncertainty over cancer risks from the chemical made it feel like she and neighbors are being treated like guinea pigs.

“I feel like we’re talking about ethylene oxide sort of in a silo,” Ferguson said, alluding to the 1985 leak from Union Carbide’s Institute plant and other chemical incidents in the Kanawha Valley. “It’s the chemical de jour … [T]o look at ethylene oxide and say, ‘Well, there’s this amount of cancer risk,’ add that to the other exposures. Add that to the other chemicals that are in the air.”

Looking for a new normal

Opponents of a proposal to build a 1,275-megawatt natural gas-fired power plant in Monongalia County that the Division of Air Quality earlier this month approved an air quality permit for cited environmental justice concerns with the project.

Longview Power’s Mountain State Clean Energy LLC was looking to build the facility north of the Longview coal-fired plant in Maidsville.

Mon Valley Clean Air Coalition coordinator and Morgantown resident Duane Nichols argued in written comments to state environmental regulators and at an October public hearing on the permit that it would be environmentally unjust for the plant to be located near West Virginia University medical facilities, University High School, health centers and other public sites of importance.

Nichols said greenhouse gas emissions from the planned plant would add to long-term exposure for area students, patients in medical treatment and older residents in care facilities, exacerbating an environmental justice issue he contends already exists with Longview Power’s 700-megawatt coal-fired plant and FirstEnergy’s 1,107-megawatt coal-fired Fort Martin Power Station nearby.

Those two plants emitted a combined 11,720,168 tons of carbon dioxide in 2019, resulting in health impacts that included 82 deaths and 4,173 lost work days, according to a Clean Air Task Force analysis of state data derived from a federal screening model.

The permit allows annual carbon dioxide equivalent emissions of 2,227,260 tons per year for each emission point for a Mitsubishi Hibachi Power Series M501JAC combustion turbine and 2,563,571 tons per year for a General Electric 7HA.03 combustion turbine.

“We believe that this proposed project with the numerous issues that offend the public interest should be set aside for a detailed environmental justice analysis,” Nichols and other project opponents wrote in public comments filed with the DEP on the permit application.

The Division of Air Quality responded in a written comment by applying the EPA’s environmental justice screening tool to Mountain State Clean Energy’s proposed facility location.

The area’s low-income population was greater than 72% of the rest of the state, while its population with less than a high school education ranked in the 75th percentile and its population over age 64 in the 62nd percentile.

Despite the relatively high rankings, the Division of Air Quality wrote that the results didn’t warrant further review.

“For now, there will not be a ‘new normal’ for Monongalia County and the surrounding region,” Nichols said in an email.

Those who lament Institute’s history of disproportionate environmental burdens also hope to turn the page toward a new normal. In the meantime, the people behind the percentiles in Institute and South Charleston residents wait on the DEP and EPA for more information — and regulatory relief.

“It is beyond time to provide community-based public education from state leadership to inform residents of the health hazards they are exposed to and for the DEP to act immediately to reduce those hazards,” Frame said.