Elk River Spill Aftermath: Do We Need New Regulations and From Whom?

Summary:  The Freedom Industries chemical spill in Charleston, West Virginia exposed holes in state and federal regulations for chemical storage tanks. A new Senate bill – S. 1961 – seeks to close existing loopholes and provide additional federal oversight where current state laws do not apply. The bill may prevent something like the Elk River spill from happening again in states that fail to take an initiative to implement preventative measures on their own.

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By Ashley Welsch

On January 9, 2014, a chemical tank at Freedom Industries in Charleston, West Virginia, leaked into the Elk River. The spill left 300,000 people over nine counties without drinking, cooking, or bathing water for ten days. The West Virginia National Guard and the Federal Emergency Management Agency (FEMA) had to provide aid to the affected residents, which included tankers full of potable water.

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Almost immediately, politicians and community groups cried for new regulations to prevent something like the Elk River spill from happening again. At first glance, though, existing laws would seem applicable to the spill at Freedom Industries. Speaker John Boehner (R-OH) echoed this sentiment stating, “I am entirely confident that there are ample regulations already on the books to protect the health and safety of the American people.” Boehner is right in thinking that the Emergency Planning and Community Right to Know Act (EPCRA) and Clean Water Act (CWA) should have addressed the spill. But in reality, Boehner received donations from the Vice President of Freedom Industries in 2013. And Freedom Industries’ chemical tanks were operating within loopholes large enough to fit, well, tanker trucks of drinking water.

First, the area was practically a ticking time bomb. There are two other, larger chemical facilities along another river in the area, which is known by locals as “Chemical Valley.” In 2002, the Department of Health and Human Resources labeled Chemical Valley as having a “high” susceptibility to contamination. Federal regulators and local advocacy groups had urged West Virginia to pass new chemical safety regulations in 2010, but nothing happened.

It turns out that West Virginia is not very hospitable to regulations, and especially not to environmental regulations. West Virginia Department of Environmental Protection (WVDEP) regulations are not enforceable until approved by the State Legislature, which opens the door to prevalent industry lobbyists. Additionally, a New York Times investigation found that the WVDEP’s enforcement practices were questionable and their treatment of polluters was lax. There is also little public access to WVDEP records. There is no online database for West Virginians to access facilities’ EPCRA filings. Citizens must use a Freedom of Information Act request to access the records on paper.

Even if EPCRA records were accessible, EPCRA was not effective here. The Administrator of the local Emergency Planning Committee didn’t know the tank was there until after the spill, and Freedom Industries took almost four hours to report the spill. Freedom Industries wasn’t legally required to report the spill within 15 minutes—the EPCRA standard—because neither EPA nor the Department of Transportation had classified the chemical as “dangerous.” About a year ago, Freedom Industries gave the West Virginia Division of Homeland Security and Emergency Management an inventory of chemicals it had with “immediate hazards,” and the chemical that spilled was on that list. The inventory list was filed pursuant to EPCRA, but Freedom Industries never filed their emergency management plan. The water treatment plant operator and the local emergency group did not even know the inventory list existed.

Neither the public nor officials were familiar with what exactly leaked into Elk River. The main chemical that spilled, 4-Methylcyclohexanemethanol (MCHM), is a coal processing agent. The Occupational Safety and Health Administration has labeled MCHM as “hazardous,” and its consumption can cause nausea, dizziness, headaches, rashes, and burning eyes. Twelve days after the spill, Freedom Industries revealed that a second chemical, PPH, was in the tank. PPH, or polyglycol ethers, is a thinner for MCHM. MCHM hasn’t been tested for toxicity effects in over 40 years, and the Center for Disease Control and Prevention does not have any hazard information about it. Finally, the water treatment plant downstream of the spill did not know of any specific treatment to remove the MCHM from the water supply.

Even if public officials and citizens had known about the tank and what was inside, the tank was not subject to any environmental regulations. West Virginia, unlike other states, doesn’t require inspections of aboveground chemical storage facilities. However, West Virginia law does require aboveground storage facilities to provide containment areas for spills, allow leaks to be easily detected, and have a groundwater protection plan. But, Freedom Industries never submitted any protection plan to the WVDEP. The EPA generally does not regulate aboveground storage tanks either, though facilities with permits to discharge chemicals into water are required to have spill prevention plans for those chemicals. Freedom Industries had one—and only one—permit to discharge storm runoff into the Elk River, but it did not allow the company to discharge the chemicals themselves. Their permit was granted through the less rigorous general permitting system even though the facility is located right on the river. Vermont Law School Professor Pat Parenteau commented, “It’s no surprise that there was weak follow-up and enforcement on a general permit.”

Despite the gaps in regulation, industry lobbyists and some West Virginia politicians do not want increased federal oversight of chemical storage facilities. Industry lobbyists support the idea that states should enforce their own regulations, but new regulations are not needed. Sen. Joe Manchin (D-WV) is also critical of more federal regulation, even if the federal government has a minimal role. Sen. Manchin said, “We’re taking away so much of the liberties and freedoms, so we’ve got to set certain guidelines that are attainable and let states [handle implementation].” Ironically, the U.S. House of Representatives passed a bill to undermine federal authority under the Toxic Substances Control Act on the same day as the Elk River spill.

Given West Virginia’s poor record of enforcement and overall lack of knowledge and transparency, a federal solution is most appropriate. A new Senate bill (S. 1961) was drafted in the aftermath of the Elk River spill. This bill would require EPA inspections at aboveground storage facilities. These facilities would be subject to regular inspections every three years if they are near a drinking water source, or every five years otherwise. Facilities would also have to notify regulators of the identity and potential toxicity of its chemicals. Approved State programs would have to meet minimum requirements, including design standards, leak detection, spill control, inventory control, staff training, and an emergency response plan.

S. 1961 strikes a suitable balance between State and Federal authorities. Cooperative federalism has been effective for environmental regulation in the past. However, the bill’s future is uncertain because some legislators are wary of the increase in federal oversight. Arguably, this bill respects the States’ authority to handle their environmental problems, as long public health is also protected. S. 1961 resolves the issue of states, like West Virginia, that fail to take the initiative to handle the problem on its own. When 300,000 American citizens go without drinking water for ten days, our current system is clearly flawed. Passing Senate bill 1961 would correct our current system, make things right for several communities (including Chemical Valley), and protect against future catastrophic chemical spills.

Ashley is a JD/Master of Environmental Law and Policy ’15 candidate at Vermont Law School. She is a Staff Editor with the Vermont Journal of Environmental Law, Chair of the Campus Greening Committee, Environmental Legal Research Assistant to the Environmental Law Librarian, and Public Relations Officer for Women’s Law Group. Ashley graduated summa cum laude from the University at Buffalo in 2012 with a double major in Social Sciences Interdisciplinary and Political Science. She also served as the Climate Neutrality Coordinator for the UB Undergraduate Student Association. Ashley has interned with the Clean Air Coalition of Western New York and Amdursky, Pelky, Fennel & Wallen, P.C. in Oswego, NY. Over the summer of 2014, Ashley will intern with the New York State Office of the Attorney General’s Environmental Protection Bureau in Buffalo. After graduation, she would like to practice environmental law with a focus on compliance and enforcement.