West Virginia Spill Reveals Lax Regulation

Caroline McDonald


March 1, 2014


The chemical spill that polluted a West Virginia river and left hundreds of thousands of residents without water for days could have been prevented. But the state, known to be protective of the coal industry, has been leery of regulatory guidance.

The incident began on Jan. 9, when authorities discovered that 7,500 gallons of chemicals—mostly 4-methylcyclohexane methanol (MCHM) and PPH (polyglycol ethers), both used to clean coal—had leaked from an aging storage tank owned by Freedom Industries into the nearby Elk River.

Questions arose concerning the tank’s close proximity to a water treatment plant and, after the West Virginia American Water Company reported that its water supply had become contaminated, Gov. Earl Ray Tomblin issued a State of Emergency for Boone, Cabell, Clay, Jackson, Kanawha, Lincoln, Logan, Putnam and Roane counties. “West Virginians in the affected service areas are urged NOT to use tap water for drinking, cooking, washing or bathing,” Tomblin said in a statement. Up to 300,000 residents were affected and hundreds were sickened.

The incident prompted Sen. Jay Rockefeller (D-W.Va.) to introduce legislation requiring companies responsible for leaks to pay to clean up chemical spills and other pollution. The measure would also provide more funding for states and agencies tasked with cleanup.

“The United States is facing an industrial chemical safety crisis,” warned Rafael Moure-Eraso, chairman of the United States Chemical Safety Board, in a Jan. 28 New York Times op-ed.
Moure-Eraso wrote, “It is clear to me, as chairman of the independent federal agency charged with investigating industrial chemical accidents, that urgent steps are required to significantly improve the safety of the nation’s chemical industry.”

About 13,000 facilities nationwide store or process chemicals in amounts hazardous enough to endanger the public, according to the Environmental Protection Agency. This estimate, however, understates the scope of the problem. “The West Virginia facility implicated in the recent spill...would not fall under criteria used by the agency to come up with its estimate,” said Moure-Eraso.

Days after the spill, while many West Virginia residents were still without water, some politicians were sounding the alarm against regulation. On Jan. 15, the New York Times reported that Senator and former Governor Joe Manchin III (D-W.Va.) spoke at an event sponsored by the American Coalition for Clean Coal Electricity. “You feel like everyone’s turned against you,” he said, promising his audience that he would fight back against proposed new EPA regulations.

West Virginia officials have a history of resisting the EPA in an effort to support business interests in the state, particularly those of the mining industry. In 2010, then-Gov. Manchin sued the EPA over its tougher water pollution rules for coal mines that stripped mountain tops and deposited debris into valley watersheds. In this year’s State of the State address, Gov. Tomblin promised to “never back down from the EPA,” the Times said. (Ironically, the Elk River spill occurred the next day.)

The state also compromises the effectiveness of its Department of Environmental Protection, as regulations the department writes are not enforceable until approved by the legislature. In fact, a measure calling for disclosure of chemicals used for hydraulic fracturing (fracking) was revised at the request of oil-services giant Halliburton, the Times reported.

For all the state’s efforts to protect the mining industry, coal mining today employs only 4% of West Virginia’s labor force. Nevertheless, “A lot of our elected officials think it’s political suicide to take a stand against coal or in favor of the EPA,” said Angie Rosser, executive director of conservation group the West Virginia Rivers Coalition.

Concern over the Elk River spill may have inspired a turnaround in thinking, however. Sen. Manchin and Gov. Tomlin have called for tighter regulations for chemical storage facilities. On Jan. 20, the governor announced proposed legislation that would assure that all above-ground storage tanks are built and maintained consistent with safety standards. The law would also require public water systems to have written plans in place to prepare for emergencies and protect the health and safety of West Virginians and the environment.

Additionally, he said, the legislation would empower the Department of Environmental Protection to implement an above-ground storage tank regulation program requiring all operators to self-report the location of ground storage tanks and details about the construction and maintenance of each.

Gov. Tomblin also ordered Freedom Industries to dismantle, remove and properly dispose of all of its 17 above-ground storage tanks that were located in the terminal area where the spill occurred.