When Conservatism Fails, West Virginians Get Poisoned

Today, about 35,000 of the 300,000 West Virginians left without water for five days, after a chemical leak contaminated the Elk River, can shower again. For the remaining folks in the nine counties affected by the chemical leak and the resulting ban on using tap water, the crisis will go on for a few more days yet. But that doesn’t mean anyone in West Virginia, or many other places around the country, are out the danger.

The story of the West Virginia chemical spill that poisoned a river and left 300,000 without water offers another example failure of conservatism's "deregulation culture," and a lesson in how government oversight can prevent disasters and protect citizens.

A View To A Spill

The official story began last Thursday, at 8:15 a.m., when West Virginia’s Department of Environmental Protection (DEP) started getting complaints from local residents about a strong “licorice” smell coming from the Elk River. Just over two hours later, at 10:30 a.m., two employees of Freedom Industries — a company that distributes chemicals used in coal mining — noticed material leaking from one of the company’s storage tanks, and allegedly began cleanup by hauling away the damaged tank and its remaining contents, and vacuuming the chemicals that had leaked into the ground.

At least, that’s what Freedom Industries president Gary Southern (more on him later) said happened. Department of Environmental Protection inspectors say otherwise. DEP inspectors discovered the leak at 11:10 a.m., when they arrived on the scene after receiving calls from local residents. Inspectors said they found the chemical leaking from a concrete containment dike, and no cleanup or containment measures underway.

A four-foot wide chemical stream flowed across the floor of the containment dike, and through a hole where the where the dike’s wall joined with the floor. DEP inspectors discovered a pool of clear liquid measuring approximately 400 square feet outside of the damaged white stainless steel tank. Freedom Industries employees had set up a cinder block and a 50-pound bag of absorbent powder. One DEP inspector described it as a “Band-Aid approach,” and said it was apparent that the leak was “not an event that had just happened.”

DEP officials would later estimate that between 5,000 and 7,500 gallons of the chemical had leaked through a one-inch hole in a chemical storage tank holding 30,000 gallons. That’s enough to fill about ten hot tubs that can hold about eight people each. After overrunning the containment dike, the chemical spill migrated over the land and through the soil into the Elk River.

Meanwhile, the West Virginia American Water Co. learned of the leak around noon — not from Freedom Industries, but from DEP inspectors. The Freedom Industries storage facility is just a mile upriver from the WVAW plant. WVAW initially assumed that they could filter the chemical out of the water. By 4 p.m., their carbon filtration system was overwhelmed, and the chemical began flowing through the carbon filter, and WVAW decided to report the problem. At 5:09 p.m., WVAW concluded that its tap water was unsafe, and instructed its customers to stop using its tap water at 5:45 p.m.

A total of nine hours and 30 minutes passed between the time the DEP started getting calls about the smell coming off the Elk River, and when residents were told their tap water was unsafe.

What We Do Know

The chemical that leaked into the Elk River is 4-methylcyclohexane methanol. It’s a foaming agent, used to wash impurities from coal after mining. It turned the Elk River slightly purple, and gave off a strong “licorice” smell — but there’s nothing sweet about it, based on what little we know.

What do we know about 4-methylcyclohexane methane? It’s not toxic enough to be considered a hazardous material for transportation purposes. People can be exposed to it by inhalation, ingestion, or skin contact. Symptoms of contact include:

Nausea

Vomiting

Dizziness

Headaches

Diarrhea

Red or irritated skin

Itching

Rashes

By Sunday, more than 1,000 West Virginians in the affected area had called the state’s poison control center, and reported experiencing these symptoms in varying degrees of severity. At least 169 showed up at hospitals, and were treated and released.

It’s not considered deadly to humans, but little is known about potential smaller health effects or safety implications for humans.

What We Don’t Know — And Why

Why do we know so little about the chemical that seeped into the Elk River? The Toxic Substances Control Act of 1976 empowers the Environmental Protection Agency to regulate and restrict the use of chemical substances. The EPA has 90 days to review new chemicals and tell companies how they will be regulated. But the EPA typically cannot properly assess new chemicals in a 90-day time frame. After 90 days, companies are free to use their new chemicals.

Methylcyclohexane methanol was already in use when the Toxic Substances Control Act was passed. As a result, it was “grandfathered in,” along with 60,000 other un-reviewed chemicals, any of which could leak at any time. Which means we could have a spill of a toxic chemical, with little or no information available about that chemical and how it will affect people.

Richard Denison, a senior scientist with the Environmental Defense Fund, puts it bluntly: “What we have now is a situation where because our system, our policies, and regulations don’t require this information be developed, we’re left scrambling when something like this happens.”

And there was a whole lot of scrambling going on in West Virginia. Freedom Industries and local officials knew that dangerous chemicals were stored near the Elk River, but there was no apparent plan in place to deal with a chemical leak.

The presence of the chemicals was disclosed in paperwork filed last February, under the Emergency Planning and Community Right to Know Act, a 1986 law passed to ensure that the public and first responders are adequately informed in the event of an accident, and that there are plans in place to deal with such events — including protocols for alerts and evacuations. State and county emergency planners and responders got copies. Yet the same agencies seemed surprised by the leak, and rushed to meet local residents’ needs in the aftermath.

Freedom Industries, Free From Regulations

One of the DEP inspectors noted that the chemical leak was not a recent occurrence. That is, it was “not an event that just happened.” That may be true for at least a couple of reasons. According to some reports, local residents began reporting a noxious odor from the Elk River in December. Maybe it took a while for it to get bad enough for the DEP to get flooded with calls.

So, why did it take so long for someone to notice a chemical leak that may have started a month ago? Well, probably because nobody bothered to look. Thanks to lax regulations, the Freedom Industries storage site where the leak started hasn’t been inspected since 1991. OSHA “does not have a history” with the site, meaning that federal workplace safety officials have never inspected the Freedom Industries site. Ever.

The Department of Environmental Protection hadn’t inspected the site in at least 20 years. State law gives the DEP jurisdiction to inspect chemical manufacturing sites, but not chemical storage sites. Since Freedom Industries was storing chemicals on the site, and not manufacturing them, DEP had no jurisdiction to inspect the site.

If inspectors had shown up, they’d have noticed that Freedom Industries’ storage tanks were well past their prime. Inspectors who showed on Thursday, as news of the leak slowly spread couldn’t help but notice. “It’s an old system,” said Mike Dorsey, chief of DEP’s Homeland Security and Emergency Response group, noting that the company had planned to upgrade it.

C.W. Sigman, emergency manager for Kanawha County, was more blunt. Sigman said the tank appeared to be “antique.” “When I see a riveted tank I know it's an old tank," he said. Sigman apparently knows his stuff. According to Kanawha County Commission president Kent Carper, the leaking tank is part of a former Pennzoil refinery dating back to the 1930s or 1940s.

Freedom Industries probably knew that their 70- to 80-year-old tanks need to be repaired or replaced. Had it been subject to regular inspections, the company would probably have been required to pay for repairs or new tanks. But Freedom Industries was virtually free from regulation, and didn’t have to repair or replace anything.

Freedom Industries’ Friends in High Places

If Freedom Industries didn’t exist, it would have to be invented as example of the worst consequences of conservatism’s “deregulation culture.” The company was founded in 1992 by Gary Southern and Carl Kennedy II. The two men could have come straight from central casting’s stock of right-wing corporate villains.

In 2006, Kennedy filed for bankruptcy after he was charged with tax evasion and failure to pay employee tax withholdings to the government. Kennedy pleaded guilty to both charges. It wasn’t Kennedy’s first time on the wrong side of the law. In 1987, Kennedy pleaded guilty to selling 10 to 12 ounces of cocaine, as part of a scandal that ultimately toppled Charleston’s then-mayor, Mike Roark.

Today, Kennedy is doing just fine. As recently as 2005, he owned 5 percent of Freedom Industries — a company now worth more than $13 billion.

Freedom Industries president Gary Southern will long be remembered for playing the role of arrogant corporate CEO to perfection during his 10-minute press conference on Thursday. Southern opened his press conference by complaining, "Look guys, it’s been an extremely long day. I’m having a lot of trouble talking at the moment. I’d appreciate it if we could wrap this thing up.”

Before Southern could go on, local reporter Kallie Cart reminded him, “It’s been a long day for a lot of people who don’t have water.” Then, almost as if on cue, Southern pauses to take a swig of bottled water.

Thanks to his company, 300,000 West Virginians were without tap water, and had to rely on the Federal Emergency Management Agency and the National Guard to deliver bottled water. But Southern worked up quite a thirst while dodging questions. (Southern tried to cut the press conference short, but Cart cornered him for a few more questions.)

How do these guys get away with it? It helps to have friends in high places.

In 2008, Freedom Industries was chosen by Georgia-Pacific Chemicals to distribute its Talon brand mining reagents for West Virginia, Virginia, Pennsylvania, Ohio, Maryland, Minnesota, Kentucky and Michigan. Georgia-Pacific Chemicals is a subsidiary of Georgia Pacific, which was acquired by Charles and David Koch in 2005. The Koch brothers made the bulk of their fortunes from chemicals and fossil fuels, and have use their wealth to support efforts to block new safety rules for chemical facilities.

It doesn’t hurt to have a politician or two in your pocket. House Speaker John Boehner received a total of $5,000 in donations from Freedom Industries in July 2013. So, it’s not surprise that Boehner has said that no new regulations are needed after the West Virginia chemical spill. Campaign contributions are cheaper than fines for violating regulations.

A Steady Drip of Deregulation

For the last 30 year or so, America has either been governed by conservatives, or conservatives have kept enough of a firm grip on government to push their agendas through. From the passage of the passage of the Toxic Substances Control Act during the Ford administration to the present, a steady drip of deregulation has worn away investment in and oversight of our infrastructure, leading to incidents like the one in Virginia.

Conservatives believe companies like Freedom Industries can be trusted to regulate themselves. Their efforts to “shrink” government have reduced the government’s ability to keep people safe. The operating budget for the Food and Drug Administration, dropped from $$48 million in 2003 to $25 million the following year. Cutbacks in staff and budgets reduced the number of inspections conducted by the Food and Drug Administration to about 3,400 in a year — compared to 35,000 in the 1970s. Contaminated foods and frequent recalls became the calling card of "e. coli conservatives."

Likewise, conservatives would like to get rid of the Environmental Protection Agency. Failing that, Republicans have made it harder for the agency to fulfill its mandate by hacking away at its budget and staff. The EPA is one of the biggest losers in the $1 trillion omnibus spending plan for 2014 announced in Congress on Monday. The deal restores some of the funding cut by the sequester, but not all of it. Republicans are boasting that with this deal they’ve cut the EPA’s funding by 20 percent since 2010.

The problem is that cuts to the EPA budget trickle down to the states. Most of its programs are pass-through programs to the states. Already financially strapped, state officials end up with millions less to enforce the nation’s air- and water-quality laws. Little by little, a steady drip of deregulation erodes the capacity of government agencies to protect citizens from companies more concerned with profit than public health and safety.

West Virginia’s chemical spill is a reminder of what happens when conservatism fails, and government agencies are less capable of protecting citizens and preventing disasters.

This time we were lucky. No one died. But there are tens of thousands of chemicals out there that we know little about, many stored in old, un-inspected facilities such as the one in West Virginia. The longer conservatives starve government agencies and block safety regulations, the more likely it is this will happen again, perhaps next time with deadly results.