By David Abram, Intern, Disaster Accountability Project

On January 9th, 2014 chemicals leaked from a Freedom Industries tank into West Virginia’s Elk River.  The Diane Rehm show (January 21, 2014) explored the fallout from the disaster and looks for lessons learned.  Please listen to the full audio here.

The licorice smelling chemicals MCHM (4-Methylcyclohexanemethanol) and PPH (Polyglycol Ethers) leaked from a Freedom Industries tank into the Elk River upstream of the water treatment center for the capital city of Charleston, West Virginia. To date we know relatively little about the effects of either chemical on humans.  What we do know is that there was a breakdown in regulation and oversight of this chemical company and a failure of emergency planning has led to an avoidable regional disaster.  This tragedy is a window to see the larger problems of commercial chemical oversight and emergency management, and a chance to consider new policy solutions.

Emergency Managers Have Incomplete Information, Give Incomplete Advice

  • Emergency managers must be informed of chemicals in their area, proprietary or not.

  • They must have this information before an accident, and not rely on the Chemical Safety Board ex post facto.

So why have emergency managers let there be such confusion?  Freedom Industries has willingly released very little information, claiming their chemical formula was proprietary.  It took almost two weeks for Freedom Industries to disclose the second chemical PPH, and this was after “the public was being told that our regulatory agencies were testing the material in the tank to confirm what was in it,” according to reporter Ken Ward Jr. of the Charleston Gazette.  Even tracking down the ownership was onerous.  The company was created by a shady merger on “New Year’s Eve 2013 of four smaller companies,” which was only disclosed upon their bankruptcy filing says Bloomberg Businessweek senior writer Paul Barrett.

While the lack of transparency from Freedom Industries is troubling, the Elk River spill speaks to the lack of information and oversight of the chemical industry as a whole.  When asked if people should trust the government’s assessment that the water was clean, West Virginia Gov. Earl Ray Tomblin “basically said, well, you know, it’s a personal decision. If you’re uncomfortable drinking this water or cooking with it, then don’t.  Use bottled water,” says Ward Jr.  The president of West Virginia American Water Company drank a token glass of tap water as a show of confidence, but these officials are acting without complete information.  They then backtracked on recommending the water for pregnant women.  “The Centers for Disease Control said yesterday that while everyone here was told anything below one part per million is OK, the CDC said yesterday that, well, you know, that’s not really a bright line, and people don’t really understand that,” reports Ward Jr.

Chemical Databases are Outdated and Incomplete

  • Congress needs to update the Toxic Substances Control Act (1976).

  • EPA must be allowed to revisit grandfathered chemicals.

  • Industry must be better at self-reporting new chemicals until the law is changed.

More disturbing, even the experts are relying on outdated and incomplete information.  Daniel Horowitz of the U.S. Chemical Safety Board admits, “there are certainly many thousands [of chemicals] that are in commercial use where we don’t have complete toxicology.”  Part of the problem is political according to AP national environmental reporter Dina Cappiello, who cites a 30 year old toxics law and a Congress reticent to discuss new legislation called for by the White House.  She says, “Sixty-two thousand chemicals when that law was passed were grandfathered, [and] were not tested.  When companies put a new chemical on the market, it’s up to them to submit data to the EPA.”  While the EPA would like to put in place many new safeguards, Cappiello notes that “there is big push back on the state level and even from some other federal agencies about their enhanced role.”  This is particularly true in states like West Virginia where to be politically viable means to support the coal industry.

Regulatory Agencies Yield to Political Pressure

  • The WV DEP is headed by a cabinet level political appointee.  The influence of the coal industry must be kept in check.

  • The EPA needs to be more proactive, even if it is unwelcome.

More oversight would help.  Cappiello notes that this spill wasn’t caught by industry safeguards or government officials but by ordinary citizens complaining about a licorice smell in their drinking water.  Citizen engagement is important but often falls on deaf ears.  West Virginia Department of Administration General Counsel Robert Paulson reports, “The licorice smell in the water persists even today.”  However, Ward Jr. notes that this is nothing new, as “the folks that work in the big glass towers that are lawyers and lobbyists and consultants and whatnot for the coal industry, those folks tend to dismiss those concerns when they hear them from Boone County or Raleigh County about their water smelling bad or their water being polluted.”

While the EPA may be less welcome, the WV Department of Environmental Protection can play an important oversight role.  Ward Jr. praises the agency for their transparency, but notes they had the responsibility to oversee the Freedom Industries facility and the proper paperwork was never completed by the company.  Although Ward Jr. criticizes the DEP for not inspecting Freedom Industries, he offers two caveats.  Firstly they are underfunded like many government agencies.  Secondly, the head of DEP is appointed by the governor, and therefore connected to the coal industry.  That is why it is important to have outside help like the U.S. Chemical Safety Board (A Presidentially appointed investigatory organization of approximately 40 people).  Horowitz explains that the Board’s mission is to “seek to determine what caused the accident and where were the gaps in regulations and oversight that allowed that to happen.”

Industry Self-Reporting Fails, Emergency Managers Don’t Hold Them Accountable

It is clear that a number of protocols were not followed in this particular case that would have helped emergency managers plan for such a disaster.  Ward Jr. states that Freedom Industries was required “to have a groundwater protection plan which they apparently never filed with DEP, [and] required them to have a spill prevention plan which they never filed with the DEP. And there were plenty of tools for the DEP here to do more about this facility.”  Beyond what was already in place, Ward Jr. questions why the state has not moved forward with the creation of a statewide chemical accident prevention program, which the Chemical Safety Board pushed for following “major accidents at Behr and DuPont.”

Another tool lies in the Community Right-to-Know law granted under the Superfund Reauthorization Act.  Cappiello explains that companies that house hazardous chemicals of certain quantities are required to disclose that information to local emergency planners.  Industry is not always good at following through on said disclosures and emergency planners don’t always follow through, leading to gaps in emergency planning.  With better chemical reporting and initiative from emergency managers the Community Right-to-Know law may prove invaluable. However, as it stands now, Cappiello worries that there isn’t proper “training related to what to do in a spill,” at the local level.

Emergency Managers Bow to Pressure, Culture Change Needed

  • State level enforcement officials are the primary actors, and they need push back against political pressure and step up oversight.

The Elk River spill raises accountability concerns.  Industry is tasked with self-reporting, and the EPA doesn’t have the tools or the cooperation to effectively regulate and police the chemical industry at the state level.  Local managers don’t have the proper training or information to effectively manage chemical disasters.  Finally, Barrett cites a system where there is “a signal from the people with the most power to the career people and people at lower levels to go easy on their jobs — if you use the analogy of a cop — to not be so nosy about what might be going on in the dark corners.”  To see change going forward there needs to be change not only in the regulatory environment and information availability, but in culture.