Open Letter

West Virginia Department of Health and Human Resources

One Davis Square, Suite 100 East
Charleston, psWest Virginia 25301
Phone: (304) 558-0684
Fax: (304) 558-1130

Re: DHHR regulation of radioactive waste in the Marcellus

Dr. Gupta,

First of all, congratulations on being named Commissioner of WV Department of Health and Human Resource’s Bureau for Public Health.  As a Charleston resident I was impressed by your leadership and honesty during the recent water crisis.

As our new State Health Officer you will no doubt face many tough challenges. This open letter is to ask for your participation during tomorrow’s public hearing being held by the WV Department of Environmental Protection, and to apprise you of what may be the most difficult challenge of your career.

Although the matter of industrial dumping directly affects the health of most citizens, it is being challenged at every turn by those who finance the political careers of the lawmakers who oversee your agency’s budget in the Statehouse.

For the purpose of full disclosure, please note that I have long been an active member of the Mountain Party of West Virginia, and currently serve as both the Communication Director as well as Party Representative for Kanawha County (District 8). Although the following issues addressed herein should be considered non-partisan, I am addressing this issue for the same reasons I joined the Mountain Party. You see, I love this state, not only because I was born and raised here. I love it because I have camped, hiked, fished, rafted, and hunted all across West Virginia during vacations with my family through the course of my adult life.

I’ve chosen to share with you the following information and evidence to best demonstrate how the State of West Virginia has been sacrificing the health of her citizens to lower the cost of dumping industrial pollution from the extraction of coal and gas within our borders.

The most recent blatant example that comes to mind is when, several years ago, a number of small communities across southern West Virginia reported an inordinately high rate of health problems which the local citizens naturally associated with the injection of coal prep slurry into underground mines. Thier association was entirely understandable due to the rapid and obvious deterioration in the quality of their underground source of drinking water.

After several years of class action litigation waged by those families against a team of industry lawyers, and after extensive field studies conducted by WVU scientists under the strict guidance of the WV Department of Environmental Protection at the behest of a governor who at the same time was also an energy broker failed make the most obvious connections between coal slurry injection and local polluted groundwater, the WV Department of Health and Human Resources finally weighed in with a report which basically recommended a halt to the practice of coal slurry injection.

As a result of that recommendation, the WV DEP was ordered by legislators to place a moratorium on issuing new permits for dumping it into abandoned mines. It should also be noted that a major part of the problem was because coal industry operators had, upon recommendation of the WV DEP, been allowed to monitor themselves, much in the same way that the operators of the Freedom Industries tank farm were left to monitor their own operations. And again, this is much in the same way that both underground injection well operators and landfill waste managers all across the state are now trusted to monitor the waste they are paid to deposit into their respective dump sites, using contractor labs who also have vested interests in the outcome of their test reports.

Studies completed after the coal injection lawsuits commenced due to the harm industry excesses caused to local communities also revealed that State-contracted researchers were prevented from attaching direct causality between the polluted aquifers of the affected communities and the slurry that had been locally injected. In retrospect, the problem was largely because no thorough baseline studies had been required or performed by any regulating agency prior to the permitting of slurry injection.  

The permitting of the injection of coal prep waste (in the form of slurry) from field operations falls under the regulatory jurisdiction of the State’s Class V Underground Injection Control “UIC” program. As you know, it was established under the Federal Clean Water Act. So it has long been a mystery to me why the waters of our state have been entrusted to our Department of Everything Permitted. Although the injection of hazardous waste is not permitted by state law in any type of UIC well located within the state’s borders, nonetheless, the health of those folks in those communities were found to have been adversely affected by the practice. Sadly, had West Virginia’s medical community been in charge of permitting, or at least taken an active part, or even stepped up, early on during the rulemaking process to warn against the obvious pitfalls to community health back when coal slurry injection was first proposed in the Statehouse, it is likely that far more West Virginians would be alive to this day.

Today, despite the rhetoric about a fictitious “war on coal”, oil and gas wastes from exploration and production are exempt from the regulatory scrutiny to which coal waste is subjected only because State regulators simply choose not to enforce existing State laws legislated specifically to protect the quality of the State’s water and air from the pollution created by the gas industry in the same way that they have been forced, through the courts, over coal.

Unlike Class II Underground Injection Control well operators, coal slurry operators (Class V) are required to provide a comprehensive list of all the chemicals used in the coal preparation process so that the chemicals in the slurry may easily be monitored in the source waters of local public service districts (and rural well owners). That requirement affords a layer of protection in the event of a spill or other accidental release of a colorless, odorless, and tastless chemical. It was because of that required list of coal prep chemicals that the communities of Rawl, Seth, Merrimac, Sprigg, Lick Creek and Prenter Hollow were able to adequately connect the fouling of their water table to the slurry being injected into local abandoned mines. In contrast, since the passage of WV’s Halliburton Dirty Secrets Amendment, Class II injection well operations are not required to afford communities that level of security against frack waste, which is widely recognized to be to be far more pernicious than coal prep chemicals.

In April 0f 2013, WV legislature passed Senate Bill 243, known as the Halliburton "Dirty-Secrets" Amendment purportedly to protect “trade secrets” chemicals companies use in the many stages of hydrofracking. Oddly enough, that bill was reportedly introduced to the Senate by Randy Huffman, agency head of the WV DEP.  Odder still was the sustained silence of the WV Department of Health and Human Services. Apparently neither agency cared to publicly contemplate the debilitating effects its passage would have on the citizens’ right to accurately monitor their own water sources for the exotic and experimental chemicals long associated with that industry.

When oil and gas industry lobbyists successfully promoted Huffman’s proposal, together they defeated one of the major protections that the Underground Injection Control program afforded the public against spills and other accidental releases. In my view, it de-legitimatized WV’s right to primacy over the UIC program.

Back in February 20ll, WV American Water submitted its New River

Water Treatment Plant SOURCEWATER PROTECTION PLAN. Staff working for the plant, located on Bachman Road in Fayette County along the New River noted an alarming detail that threatened the source water enough to include a warning of it in the report (found at this link).

On Page 7, within Table 4, under the significant heading PGSs or “POTENTIAL CONTAMINANT SOURCEs” plus Critical Areas Prioritized as Highest Priority and Reason for Local Concern, the report notes the following:

“Underground mines in some locations are being used to dispose of mine waste and fracturing water from oil and gas operations. The water system staff has expressed concerns about what  types  of things  may be injected into  abandoned underground  mines and how that  will potentially impact the surface water in the future.”

In Table 5 under the heading Source Water Management Strategies (page 9), the suggested strategy to counter possible problems is to contact WV DEP and WV DHHR. So after only recently running across that community SWAP strategy while trying to figure out why the DEP was holding a hearing to reissue permits to an operation that is demonstrably polluting the local waters of the State, I endeavored to follow the SWAP suggestion by attempting to find out why the Class II UIC wells at Lochgelly weren’t listed as being a potential threat on the 2011 report.

The first DEP response to my repeated attempts was to advise me to seek the answer through yet another Freedom of Information Act request. No kidding, I was instructed to file another FOIA simply to find out the distance both in stream miles and in direct miles from the water intakes at the New River Water Treatment Plant to the Danny Webb Construction UIC site in Lochgelly.

Even more incredible was the answer I received when I asked the same question via email to the Bureau of Public Health’s Director of the Source Water Assessment and Protection program. The following misinformation arrived in my email inbox in the form of a table, provided to me via William J Toomey, or someone using the email account

Site Name

“As the Crow flies” distance (Approximate in miles)

Distance upstream of Intake (Approximate in miles)

API# 47-019-00460


~ 29 Stream Miles*

API #47-019-00508

Tributary enters the New River below intake ~ 2 miles*

*Based on the locations provided.

Accompanying that table was the following note, apparently from Mr. Toomey:

Hi Tom – attached in the above chart is the information that you requested. Please contact Scott Rodeheaver at  304 – 356-4270 or  his email is attached if you have additional questions on this. I will be out of the office for  the next several weeks

Please note that the *locations provided” referenced by Mr. Toomey had been copied directly from the latitude and longitude listed by the DEP on the permits issued for the two wells:  API #47-019-00508 & API #47-019-00508.

I found Toomey’s misinformation so unsettling because it conflicted with a report in the local Fayette County newspaper by Sarah Plummer (titled) Duke professor: Water samples show fracking contamination in Wolf Creek. So I called the staff at WV American Water’s Fayette plant, who subsequently confirmed the information in Sarah Plummer’s story.

Again, I am involved in  this permit process mainly because I have found through the years great peace and happiness in the beauty and recreation that is unique to the New River area. So it was particularly outrageous to learn of the research by USGS scientists Lynn Crosby and William H. Orem who took samples from Wolf Creek and the New River downstream from the UIC wells in Lochgelly, and upstream from the local water supply intakes. Their studies recently revealed from samples of frack waste that many of the exotic chemicals being used are known endocrine disruptors which manifest themselves as extremely toxic in what the industry and the DEP have consistently downplayed as “brine.”

Local citizens and tourists alike depend on that water for drinking, cooking, laundry, bathing, sport and recreation, yet they have no idea what to test for in their source waters. So I believe your valued input at the public hearing can help make a real difference in stopping those permits.

The State of New York recently banned high pressure horizontal hydrofracking specifically because of the threats the waste streams from high pressure horizontal hydrofracking posed to the health of that state’s citizens. In fact the primary reason NY lawmakers decided to ban it altogether was because so many leading health care professionals found the quantity of waste required by the practice to be unmanageable and pernicious.

West Virginia’s current regulations are woefully insufficient to protect the public from the same threats New Yorkers faced largely because our State’s regulating agencies are not protecting either the public’s health or its environment. A large part of that problem is because the regulations that we do have in place are not being properly enforced.Unfortunately, when it comes to regulating oil and gas industry pollution the WV DEP now simply uses the EPA as a scapegoat, especially when it comes to the regulation of Technologically Enhanced Naturally Occurring MaterialTENORM”.

Inside our State borders, although the regulation of oil and gas industry TENORM falls within the regulatory control of the WV Bureau of Public Health, the State TENORM Rule appears to have been inexplicably redacted on the DHHR’s website since 2007. Despite assertions to the contrary by Micheal Dorsey, DEP’s chief of Homeland Security division, the full weight of WV 64CSR16 requires the Bureau of Public Health to assume the responsibility as the regulating agency, and not the DEP’s Division of Homeland Security. To relegate the oversight of TENORM to a cop is as dysfunctional as expecting the DEP’s Oil and Gas division to protect our state waters. The complete version of WEST VIRGINIA LEGISLATIVE RULE 64CSR23–16 may be downloaded from the Secretary of State’s website at this link.

 Dr.Gupta, the upshot of all this is that if even one-tenth of the over 4,000 UIC wells that are being regulated by the WV DEP are managed as poorly as those in Lochgelly on Wolf Creek, then perhaps you should consider adding your name to the petition sent by the Natural Resources Defense Counsel last summer demanding that the EPA rescind West Virginia’s right to primacy over the State’s UIC program.

That’s why I am respectfully requesting that you attend and participate in the public hearing slated at Oak Hill High School from 6 to 8 p.m. at Oak Hill High School, located at 350 West Oyler Ave. on Thursday, February 19. I intend to provide persuasive evidence that those wells have been leaking for quite some time, and further demonstrate both how, and why, the DEP has been covering that fact up.



Tom Rhule

Charleston, WV

(304) 989-1629

ps: My FOIA request and the entire response may be downloaded from: