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The West Virginia water crisis: Was it anyone’s fault?

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Editor's Note: This story has been corrected from the printed version, which included an error.

It’s clear the Jan. 9 leak from a Freedom Industries storage tank into the Elk River surprised the state’s public officials.The fiasco was quickly given the title of the “water crisis” and had many, including the governor, legislators and health officers, up in arms about how to better protect the state’s water supply going forward.

What remains unclear, months later, is why the relay of much-needed information to ensure the well being of the general public seemed unorganized.

For months after the spill of crude MCHM, a chemical used in cleaning coal, the public continued to be on high alert about what it heard from those who were deemed trusted health officials.

It wasn’t until May 5, almost four months after the spill, that Gov. Earl Ray Tomblin called on the public for its input on the way the government handled the water crisis.

The questionnaire his office distributed via Twitter and a news release consisted of about 10 questions asking the respondent to include his or her name, phone number and mailing address. The form is available for anyone to fill out online until May 26.

Tomblin said he called on Adjutant General James Hoyer of the West Virginia National Guard and Jimmy Gianato, director of the West Virginia Division of Homeland Security and Emergency Management for help in conducting the survey.

Senate Majority Leader John Unger, D-Berkeley, said the state government reaction is exactly how West Virginia will be judged on the crisis.

“I think the information was not communicated as well as it should’ve been,” Unger said. “That’s been the challenge all along — that’s one area we definitely needed help with.”

Unger said the state continues to lack answers for the long-term health impacts of the little-known-about chemical.

The leak of crude MCHM resulted in the contamination of the water supply of 300,000 people. MCHM, as well as PPH, was discovered in the water. Little is known about the chemicals, but residents were alerted of it being in the water, largely on their own, because of its distinct licorice odor.

Is it Safe?

As late as mid-April, representatives in U.S. Congress were still asking the Centers for Disease Control and Prevention (CDC) for a “safe” level of inhalation and skin exposure to crude MCHM.

“There were some disappointments, but also there were some victories,” Unger said.

Referencing the bill he sponsored, Senate Bill 373, Unger said he believes the legislation will protect all aspects of West Virginia’s waterways from future disasters.

“We’re still in the stage of being judged on what we’ve done,” Unger said. “The public needs to continue to be engaged in that process.”

Delegate Meshea Poore, D-Kanawha, said moving forward the public needs to continue to be involved in the implementation process of SB 373.

“The Senate bill was a framework (for the House) to start from,” Poore said. “(SB 373) is one of the best pieces of legislation we could have come up with from this matter.”

She said by following the bill from the beginning to end, she has confidence it is off to a strong start, but she believes the public needs to continue to stay involved throughout the rules process.

She also believes a large part of the failure of the water crisis can be attributed to communication.

“If everybody had been on the same page as information was coming to them, I think this community would have been a little more comfortable,” Poore said. “The way that people learned about the chemical spill wasn’t the same for everyone — some people learned from their friends telling them or on the radio. We didn’t have a system that distributed information to all of us.”

She said information, as late as April, often conflicted. A petition filed in February in the state Supreme Court targets two state agencies and their perceived failure to take action that may have prevented the chemical spill.

The petition, according to the Associated Press, was filed on behalf of Covenant House and the West Virginia Coalition Against Domestic Violence and two individuals, lists the Department of Health and Human Services (DHHR) and the West Virginia Department of Environmental Protection (DEP) as defendants.

The petitioners accuse the state agencies of a “collective dereliction” of their duties. The petition also accused the state offices of not following the proper laws set in place to protect the state’s drinking water supply.

State Agencies Stepping In

Senate Bill 373 is supposed to hold the WV DEP accountable for regulating and inspecting above-ground storage tanks.

Secretary Randy Huffman, of the WV DEP, said the bill will help his agency better assess the risks to the state’s water supply. He said his agency would have carried out those practices if it were written into law before.

“We learned there are a lot of vulnerabilities to our water supply,” Huffman said in an interview on “The State Journal’s Decision Makers,” a weekend statewide public affairs show. “At a higher level, we’ve got very clean water in this state.”

Huffman said West Virginians learned they take that clean water for granted.

“Clean water is the single biggest economic development tool (in the state),” Huffman said.

He said the DEP will be able to concentrate about 15 people on the inspection of storage tanks, including those in “zones of critical concern.” Huffman said tanks in the zones of critical concern will be inspected on an annual basis. He said there are thousands of storage tanks in the zone, with tens of thousands in the rest of the state.

Public Trust in Officials

The DHHR and DEP were singled out in several public forums as having been lax in performing the necessary duties of their offices. The public health officer and secretary of DHHR were two individuals targeted during the crisis.

Letitia Tierney was appointed to the position of commissioner of the West Virginia Bureau for Public Health in November 2013. The chemical leak occurred 60 days later.

Unger said it was lack of leadership that discredited Tierney and others during the crisis, as well as disagreements among various officials.

Both Tierney and the DHHR denied repeated requests for interviews for this story, and DHHR emailed a short statement about Tierney’s qualifications.

Tierney didn’t hide the fact that she was new to the position when the leak happened, but that’s not what concerned residents and lawmakers when she expressed her opinion about the water and its safety.

Tierney attended George Washington University where she received her law degree. She says she started practicing law in 1992.

Tierney was a practicing lawyer for 21 years, she said Feb. 2 on “The State Journal’s Decision Makers.” She also did an internship for Sen. Jay Rockefeller, D-W.Va. Tierney then attended medical school at the West Virginia University School of Medicine where she graduated in 2006. Tierney received her permanent medical license in 2008, according to the West Virginia Board of Medicine.

Tierney explained on “The State Journal’s Decision Makers” she graduated from her residency training in June 2010 and started working as commissioner in November 2013. She said she was practicing medicine between June 2010 and Nov. 1, 2013. During that time, she also served on the CAMC ethics committee and CAMC Board on Quality, according to the West Virginia Bureau for Public Health. The board, according to CAMC, is the Quality Board and is affiliated with the hospital’s Board of Trustees.

Tierney’s primary specialty is in Internal Medicine/Pediatrics. The WVU School of Medicine says a specialty of that type requires four years of residency training.

Neither Tierney nor the DHHR would confirm if Tierney fulfilled that requirement, only stating that she served on the ethics committee and the CAMC Board on Quality from 2009-2013.

According to the WVU School of Medicine, a practicing physician must complete a residency in order to legally practice in the state. However, according to the West Virginia Medical Practice Act and Rules, requirements for the minimum qualifications for a physician licensure are:

  • Proof of graduation from a medical school approved by the LCME or the Board,
  • Successful passage of an accepted exam such as NBME, FLEX or USMLE and
  • Satisfactory completion of at least one year of ACGME approved postgraduate training.

A spokesperson for Tierney said she served as chief resident at CAMC and was chair of the Hospitalist Peer Review Committee before becoming the state health officer. According to Tierney’s office, she is “well qualified for the role serving as West Virginia’s Commissioner for Public Health and State Health Office as set forth in code.”

These are the only comments and clarification of Tierney’s qualifications DHHR would provide for this story.

CAMC explains that a hospitalist is a physician whose practice is “entirely focused on the care of hospitalized patients (and) are board-certified in internal medicine or in family practice.”

According to West Virginia State Code (Chapter 16-1-5), the position of commissioner requires four years of experience in health services administration or a related field:

“The commissioner of the bureau for public health is the state health officer and shall be appointed by the secretary. The commissioner shall be a physician licensed under the laws of this state to practice medicine or a person holding a doctorate degree in public health administration. The commissioner shall not have less than four years’ experience in health services administration or a related filed. The commissioner serves at the will and pleasure of the secretary and shall not be actively engaged or employed in any other business, vocation or employment, serving full time in the duties of the office as prescribed by this article.”

Other State Practices

Through research, The State Journal found some states don’t require a medical officer or secretary spend a specified amount of time in a medical administration position before serving as the state’s health administrator.

In Ohio, there is no state health commissioner. However, the Ohio Department of Health director reports to the governor. Several people report to the director, including the chief operating officer, chief administrative officer, deputy director of public health support and general counsel.

The ODH monitors situations based on what county and local health commissioners tell them. Questions and concerns are directed to the appropriate departments, a spokeswoman said.

In Pennsylvania, the position of secretary of health is appointed and he or she needs either experience in public health administration services or a medical/osteopathic degree. The number of years for the health secretary, where West Virginia requires not less than four, is not stated in Pennsylvania code. However, the secretary is assisted by a physician licensed by the Commonwealth.

In Kentucky, no years of experience are given as a requirement for the position of the health commissioner. Under Kentucky law, the commissioner for public health “should be a duly licensed physician who, by experience and training in administration and management, is qualified to perform duties of office.”

DHHR Cabinet Secretary Karen Bowling, from Beckley, was appointed to the position in May 2013.

She spent time at Raleigh General Hospital and also served as dean of health sciences at Mountain State University — a school that has permanently closed. The school lost its accreditation after a lawsuit was filed against it, asserting MSU “took on $10.2 million in debt to refinance its $7 million purchase loan to fund improvements to Martinsburg Mall and for the opening of an integrated learning center.” The suit maintains the learning center never completely opened.

Lawmakers during the 2014 legislative session showed their disapproval for Bowling’s appointment during the Senate’s adoption of executive nominations March 8.

At that time, Sen. Roman Prezioso, D-Marion, pulled one candidate from the list of about 30 appointees (which traditionally get voted on together in one group) to ask the Senate to vote on her appointment individually. He voted against appointing Bowling as secretary of the Department of Health and Human Resources. Prezioso said, at the time, his reasoning was because of his concerns about an audit released last year revealing the department was run inefficiently. He also said he’d rather a national job search have been conducted for the position.

Before voting against Prezioso’s motion, Sen. Evan Jenkins, R-Cabell, spoke in favor of Bowling. He said in his experience she is “professional” and “capable” of doing the job.

Root of Mistrust, Miscommunication

Tierney said on multiple occasions she was only acting on what others were telling her about the water situation. She said she was drinking the water weeks after it was contaminated, claiming she was trying to give the public “confidence.”

Tomblin said at multiple news conferences in the weeks following the crisis the people of West Virginia would have to decide for themselves if they wanted to use the water.

Only weeks after the spill, Tierney said the water was safe, and on the Feb. 2 edition of “The State Journal’s Decision Makers,” she said she was drinking the water.

The CDC had not used the word “safe,” but rather described the water as “appropriate for use.”

But her counterparts in the public health field publicly stated they were not — nor were their families — drinking the water. Dr. Rahul Gupta, health officer and executive director of the Kanawha-Charleston and Putnam County health departments, said at the time he didn’t know the long-term health effects of the chemical and was advising his family not to drink the water.

During a Joint Legislative Oversight Committee meeting on State Water Resources, Gupta and Tierney did not see eye-to-eye on their stances of whether the water was in fact “safe.” Tierney used the word safe to describe the water, while Gupta said he didn’t have enough information to do so.

Unger said recently he thinks the largest failure of the water crisis can be chalked up to miscommunication.

Holding Government Accountable

Tierney also contested on “The State Journal’s Decision Makers” she was not a toxicologist, but those “experts” were available to advise her. During the segment, host Bray Cary (who also is CEO of West Virginia Media, The State Journal’s parent company) was adamant Tierney reveal to the people of West Virginia who her “experts” were.

“You are making recommendations to the governor,” Cary said. “Representing people of this state, making life and death decisions and you won’t tell us who you are talking to?”

Tierney said she could not reveal her sources because she had not notified them to ask if they would be alright with her releasing their names.

“I will ask,” she said.

Unger said it raised a red flag for him when Tierney would not provide a list of her “experts” before the water resources committee he’s chairman of, after she also was previously asked on television.

“If you’re receiving expert information and saying that to people, why not indicate where that information is coming from?” Unger added. “Cite your sources.”

So, Feb. 14, nine days after Unger requested a list of names, Tierney submitted it to the Joint Legislative Oversight Commission on State Water Resources. Her last public appearance to discuss the water crisis was at the water resources committee meeting Feb. 12.

Who Are the Experts?

Tierney’s list of experts included members of the Centers for Disease Control and Prevention, West Virginia American Water, the Environmental Protection Agency, the Federal Emergency Management Agency (FEMA) as well as at least one West Virginia doctor.

Elizabeth Scharman, director of the West Virginia Poison Center was on that list.

Scharman said she had confidence in all of the officials, including those from the bureau for public health, who were in charge during the emergency. Scharman said her role in the water crisis was to field questions on signs and symptoms of the public through a toll-free telephone number which was given out immediately following the “do not use” order.

“It’s what we do everyday,” she said. “We’ve dealt with chemical spills in the past; we’re trained and set up to provide this.”

Scharman said she has been in her position for almost 22 years, and while this crisis was the largest she’s dealt with, she said that’s what the poison control center is meant to provide.

Operating with eight full-time nurses, a director and two part-time employees, the center is open 24 hours a day and gives emergency treatment and advice to people, including situations when they have taken the wrong medication, swallowing cleaning supplies or gotten snake bites.

Sharman said on a typical day the center received about 100 phone calls, but during the chemical spill they received about 2,400 calls in a few days.

She said the water crisis was different from other emergencies in that experts, from the first day, knew the product that was in the water; although little information about the chemical was immediately available.

“That’s often not the case when there is a leak,” she said. “It (usually) takes a while before people know what leaked.”

She said reactions to that crisis were across a spectrum, as to be expected, but the challenge was meeting the needs of a diverse group.

“From the poison center’s perspective, I think there were a lot of people who were not clinical toxicologists giving medical information,” Scharman said.

Scharman said the public health community rarely uses the term “safe,” because there are always risks.

“I think that caused a lot of unnecessary angst that didn’t need to happen,” she said. “It would be ideal for public health on a larger scale to rethink the terminology.”

She said the poison control center was working with the DHHR and Tomblin’s office to provide health information, which was overshadowed by misconstrued information.

“It was frustrating to hear chemists giving medical information,” she added.

Studies Underway

Cary also asked Tierney about a health study, which she said should be completed by the first of next year.

The Bureau for Public Health officials conducted a Community Assessment for Public Health Emergency Response, or CASPER, study from April 8-10, about three months after the spill occurred. The study sent health officials door-to-door collecting information from those affected by the Jan. 9 chemical leak.

Tierney said, then, the results of the study would help state and local officials respond to future disasters, including how to properly communicate with the public. The results of the study and its participants were to be kept confidential under state law, officials said.

Gupta and the Kanawha-Charleston Health Department also conducted a survey, asking people how they felt during the water crisis, what they did during the crisis and how public officials responded to their concerns.

At the same time, the KCHD joined the City of Charleston in a lawsuit against those involved in the chemical leak, of which they said would include West Virginia American Water and Freedom Industries.

Unger said he would have liked to see government officials communicating with the public for up-to-the-minute information.

“That wasn’t provided,” he said. “Part of the problem was they weren’t making decisions, basing it off of incomplete information.

“I do feel that some of the officials projected more confidence than what the reality was.”

Although public health and government officials were under pressure, Unger said some should have stepped up to ensure that those responsible would be held accountable.

“I don’t think the response was immediate,” he said. “I don’t think anyone understood the magnitude of this.”

Unger also pointed out a news conference the CDC was invited to, where officials flew in to Charleston just long enough to stand behind a podium and not say if the water was safe.

Unger said the event may have done a disservice, if anything, to instilling confidence back into the public.

Unger said while people continue to be wary of the water, West Virginia should learn from the disaster to be sure history does not repeat itself.

“There are a lot of unanswered questions,” Unger said April 22. “It’s close to five months and West Virginia American Water is just now changing filters; does that mean everyone needs to re-flush their system? What does that mean?”

He said lawmakers and local officials pegged as leaders in the crisis may not have stepped up to the best of their abilities.

“We could’ve done better,” he said.

Alanna Autler, WOWK-TV, contributed to this story.