‘Under the radar’

Freedom Industries — which was actually a conglomerate of smaller companies owned and operated by at least one convicted felon — had managed to escape the oversight of not only West Virginia’s DEP, but also the US Environmental Protection Agency (EPA) and the US Occupational Safety and Health Administration (OSHA). The reason? Various juries are still out. But consensus has grown around the idea that Freedom Industries’ chemicals were not considered “a hazardous material,” a DEP cabinet secretary told the Associated Press, so “it flew under the radar.”

The main problem was that Freedom avoided having to prove that it had designed a backup plan if its chemicals breached the porous retaining wall surrounding its toxic containment units and seeped into the ground. Or, worse, seeped into the river. Lack of worry about chemicals flowing into the river, in retrospect, seems absurd. Freedom Industries' containment facilities sit maybe 50 feet from the Elk River's shoreline, up a steep hillside covered with mud and leafless trees and bushes. “The idea that there would not be concern about those chemicals seeping into the river is a big problem,” Paul Ziemkiewicz, director of the West Virginia Water Research Institute, told The Verge. "If you would've had proper secondary containment on the site, this wouldn't have excited anyone's interest at all."

Freedom Industries’ chemicals were not considered “a hazardous material”

Freedom Industries was also able to avoid submitting detailed instructions about how to deal with its chemical if spilled. Industrial companies that use solvents, for example, are required to provide OSHA with Material Safety Data Sheets that thoroughly explain procedures for how to work safely with a chemical, and how to avoid injury in the event of an emergency. Freedom wasn't required to provide OSHA with detailed data sheets. Again, the jury is still out regarding why. But one theory is that there would have been little reason to think Freedom would've needed to. Who’s going to drink a coal-processing chemical?

Ziemkiewicz said Freedom’s chemical, MCHM, is classified by the EPA as a “foaming agent.” It's water soluble, and it’s a surfactant — meaning that it reduces surface tension between a liquid and a solid. In coal processing, MCHM is used to break usable material from impurities such as dirt so that the coal can burn hotter and cleaner. There would’ve been no indication prior to last week’s events to suggest that MCHM would ever be ingested — accidentally or otherwise — by human beings in large quantities.

But all that didn’t excuse Freedom for its negligence.

In public hearings that have occurred since the leak became news last week, DEP inspectors have described their early interactions with Freedom as surprising, to say the least. The Elk River water situation only came to their attention after residents reported the liquorice odor last Thursday morning. They visited Freedom’s site around 11AM that day and asked the manager on duty if he knew of any problems on site. According to the Charleston Gazette, he told the inspectors, “There weren't any problems." Then things got weird:

The DEP officials asked [one of Freedom’s on-site managers] to show them around the facility. When they went outside, an employee asked to speak to [another Freedom manager]. After that conversation ... DEP officials [were told] there was a problem, and led them to tank 396. There, the DEP officials said, they found a 400-square-foot pool of chemical that had leaked from the tank into a block containment area. Pressure from the material leaking out of the tank created what DEP officials called an "up-swelling," or an artesian well, like a fountain of chemical coming up from the pool. They saw a 4-foot-wide stream of chemicals heading for the containment area's wall, and disappearing into the joint between the dike's wall and floor. Initially, no one saw the chemical pouring into the Elk River.

So it’s no wonder that regulators had to scramble when they realized thousands of gallons of an “under the radar” chemical had flowed into the region’s main water source.