How Industrial Chemical Regulation Failed West Virginia

Enlarge this image toggle caption Steve Helber/AP Steve Helber/AP

On Jan. 9, people in and around Charleston, W.Va., began showing up at hospitals: They had nausea, eye infections and some were vomiting. It was later discovered that around 10,000 gallons of toxic chemicals had leaked into the Elk River, just upstream from a water treatment plant that serves 300,000 people. Citizens were told not to drink or bathe in the water, and while some people are now using water from their taps, many still don't trust it or the information coming from public officials.

Charleston Gazette reporter Ken Ward tells Fresh Air's Dave Davies that the spill included "a chemical called crude MCHM, which was sold by a company called Freedom Industries — sold to coal companies for use in the process of cleaning and washing the impurities out of coal before they ship that coal to market."

For Ward, the episode is far more than the story of an accident and a cleanup: Ward says the spill and the sometimes confusing information authorities have provided about the risks to citizens reflect long-standing regulatory failures in West Virginia and across the nation.

Ward is an award-winning investigative reporter who has been covering West Virginia energy and environmental issues for The Charleston Gazette for years.

Interview Highlights

On how the chemical leak was discovered

Some people who live in that part of town called in both to the metro 911 — the county emergency operation center — and to the state Department of Environmental Protection complaints of an odor. [They said] they smelled some sort of a strong licorice odor in the air.

The Department of Environmental Protection sent a couple of air quality inspectors out and ... when they first went there they were told by company officials, "No, we're not having any problems. What are you talking about?" [The inspectors] asked to tour the site. [They] went out and they noticed there was a problem at one of the tanks. They described to me a 400-square-foot, 3- to 4-inch-deep pool of this chemical that had leaked out of a hole in the tank, and a 4-foot-wide stream of this stuff that was pouring across the containment area ... and it was kind of disappearing ... into the river. ... Much of the Elk River was frozen over so you couldn't immediately see that it was in the river.

The problem that arises from that is that Freedom Industries [the company that owns the chemical storage tanks] had a permit from the state Department of Environmental Protection — a storm water permit, a permit to govern runoff from its facility. One of the requirements of that permit is that they immediately report any spills. The Department of Environmental Protection says they didn't report this spill to the state. And the fact that they didn't report it immediately delayed some efforts at containing the spill and certainly affected the size of it and made the situation worse than it necessarily had to be.

On the ambiguity around the health risks of the chemical spill

Eastman Chemical, which makes it, puts out what's called a Material Safety Data Sheet. An MSDS is something that's required under the Occupational Safety and Health Act. It's supposed to be kept on site for workers to look at and it's supposed to be filed with emergency responders and local environmental authorities. It's supposed to list the properties of the chemical, its flashpoint and what's the toxicity of it.

And the problem with this particular substance is that if you read the MSDS for it, where it lists toxicological effects: Is it a carcinogen? No data. Does it cause developmental problems? No data. Most of the basic health effects that you'd want to know about, there's no data available listed on the MSDS for this material.

On what citizens are doing in response

My family and I, we're not drinking this water. I know a lot of people that aren't. When you go to the grocery stores here you still see people buying pretty significant quantities of bottled water, filling up their carts. When you go to restaurants you hear people asking, "Are you using bottled water? Are you using tap water?" And restaurants are putting out press releases and they have signs that say, "We're using only bottled water."

On the U.S. Chemical Safety Board's recommendations for stricter oversight of industrial chemicals in West Virginia

The Chemical Safety Board has been to West Virginia quite a few times and they came here in 2008 after an explosion at a Bayer CropScience chemical plant. ... The Chemical Safety Board came in and investigated that and found a lot of problems at the plant and found a dearth of regulation of that sort of a plant. And one of the things the Chemical Safety Board said was that our state ... should work with the Kanawha-Charleston Health Department to create a new chemical accident prevention program through which government inspectors would more frequently go into these plants, would ensure they're being operated safely.

The Chemical Safety Board came back again after a series of accidents at a DuPont chemical plant ... in West Virginia — [a series of] accidents there in January of 2010 ended up with one worker being killed. And the Chemical Safety Board repeated its recommendation after that incident. ...

The state has really done absolutely nothing to implement that recommendation. The Kanawha County officials have encouraged the state to work with them ... and the state has just basically ignored the recommendation.

... A lot of these facilities will go for years and years without ever seeing an OSHA inspector ... without ever seeing an EPA inspector. ... The notion that these places are just terribly overregulated is wildly exaggerated.

On misconceptions about federal regulation of dangerous industrial chemicals

The industry officials didn't like the Chemical Safety Board recommendations. They insisted there's enough regulation already and that agencies like the Environmental Protection Agency and the Occupational Safety and Health Administration do enough already.

And I think there seems to be this idea that ... agencies like EPA and OSHA are these jackbooted thugs that are kicking down the gates of manufacturing facilities and stomping out jobs. When in fact, a lot of these facilities will go for years and years without ever seeing an OSHA inspector coming in and checking on the workplace conditions; without ever seeing an EPA inspector who is looking at their environmental conditions. The notion that these places are just terribly overregulated is wildly exaggerated.

On what authority the Obama administration has to regulate industrial chemicals

[The Obama administration certainly has] broad rule-making authority at EPA, and the Environmental Protection Agency can make rules about all sorts of things about this; the Occupational Safety and Health Administration can make rules about these things.

One example is [that] the coal industry here likes to complain about how tough the Obama administration is on them, but a few years ago we had a major spill of toxic coal ash from an impoundment in east Tennessee, and the Obama administration promised after that, "We're going to write new rules to govern toxic coal ash and ensure that it's handled and disposed of safely."

Well, they still haven't done that. OSHA knows that combustible dust is a big problem. They haven't written rules about that.