Posts Tagged ‘West Virginia’
Premises Liability - Thursday, February 6, 2014 12:01 - 0 Comments
A great deal has been written in the past few weeks about the chemical spill that left 300,000 people in West Virginia unable to drink their water. This spill has revived calls for more stringent regulation of thousands of chemical storage sites in the U.S., especially those near water supplies. The Freedom Industries Inc. complex in Charleston, W. Va., the facility that leaked the chemical, was subject to a patchwork of federal and state regulations. This allowed hazardous materials to be stored less than two miles upstream from a treatment facility for drinking water. I was shocked to learn that the tanks at this site hadn’t been inspected since 1991.
Residents in nine West Virginia counties were ordered not to drink, cook or bathe with municipal water after about 7,500 gallons of a chemical used in coal processing leaked on Jan. 9 from a tank near the Elk River, upstream of a treatment plant for the West Virginia division of American Water Works Co. The ban was lifted on Jan. 14 in zones starting with Charleston, the state capital, after testing found levels of the chemical 4-methylcyclohexane methanol (MCHM) falling below one part per million. It was believed this chemical was the only one involved at that time.
But in a shocking development, the company admitted on Jan. 21 that there was actually another chemical – PPH – involved in the spill. That contaminant is a proprietary slow-evaporating hydrophobic glycol either manufactured by Dow Chemical. It’s used as an MCHM “extender” agent. The water supplies had not been tested for PPH, only for MCHM.
There are potentially tens of thousands of storage tanks in communities around the U.S. filled with chlorine, natural gas and other materials. States are primarily responsible for their safety, according to Sheldon Krimsky, an environmental policy professor at Tufts University in Medford, Mass. Dr. Krimsky made the interesting observation:
Federal laws should require more rigorous testing of hazardous chemicals to ensure they don’t pose health risks. They are riding blind by saying, “OK, if we can get it down to one part per million that should be safe enough.” But they don’t really know.
The regulatory gaps that the West Virginia incident has exposed in the nation’s toxic chemical control laws must be dealt with. Congress must act immediately to correct a situation that has needed attention for years. Most folks would be shocked to learn that existing law has allowed the chemical, known as MCHM, which was involved in the West Virginia spill to go untested for almost 40 years. Members of Congress should not have to wait for a major contamination event to learn the most basic information about a toxic chemical in commerce.
Better coordination, which has been virtually non-existent in this area of concern, is needed between the federal government and the states. Federal authorities, including the U.S. Chemical Safety Board and the Justice Department, have opened probes into the spill. Booth Goodwin, the U.S. attorney for the Southern District of West Virginia, said in a statement:
If our investigation reveals that federal criminal laws were violated, we will move rapidly to hold the wrongdoers accountable. Our drinking water is not something you can take chances with, and this mess can never be allowed to happen again.
While federal laws like the Safe Water Drinking Act require utilities to assess potential upstream pollution threats, it gives them little authority to force fixes to minimize the risk, according to Erik Olson, a lawyer who specializes in water and health issues at the Natural Resources Defense Council. Olson said the split in regulatory responsibilities can leave loopholes that accidents like the spill in West Virginia expose and that “there is virtually no accountability here.”
Andy Igrejas, director of Safer Chemicals, Healthy Families, a Washington coalition of health and safety groups pushing for tighter rules, says that more information is needed about the risks of chemicals on the market and regulators need more authority to take action, such as ordering storage tanks be placed away from water sources He made this observation:
This kind of disaster really does show you what all these things really mean. We don’t know enough, and we don’t know it quickly enough, about a chemical that could cause the drinking water for 300,000 people to be taken offline.
West Virginia doesn’t require inspection of storage tanks with chemicals such as the ones that leaked. That is indefensible and it must be corrected. There should have been two lessons learned by government officials, both federal and state, from the West Virginia spill. The first lesson is that government must be more vigilant about ensuring the structural integrity of tanks holding hazardous chemicals near bodies of water. The second is that more resources must be focused on detection and monitoring. Dr. James Salzman, a professor of law and environmental policy at Duke University, pointed out that the spill exposes a weakness in the nation’s system for guarding against contaminated water. While it’s impossible to pre-treat for every harmful chemical, Dr. Salzman says there must be more emphasis on detecting unexpected contaminants. He added:
When you get a large spill of chemicals that aren’t supposed to be there, that is a soft underbelly. It’s a real challenge. In a world where public budgets are tight, you’ve got to make choices.
Freedom Industries, based in Charleston, has now filed for bankruptcy protection. The company, formed in 1986, supplies chemicals to the steel, cement and coal-mining industries, including agents that deep freeze, treat water or control dust, according to its website. Interestingly, Freedom Industries completed a four-way merger nine days before the leak was discovered. It combined with Etowah River Terminal LLC and Poca Blending LLC, state records show. Freedom also merged with Delaware-based Crete Technologies LLC. West Virginia Gov. Earl Ray Tomblin has ordered that all of the tanks be removed from the site by Freedom.
In the aftermath of this chemical spill, it will be most interesting to see what is done both in Congress and in other states. On January 28th the West Virginia Senate passed a bill that would impose stronger regulations on above-ground storage tanks. We haven’t had a chance to read the bill, but trust it’s a good one. Clearly, a coordinated effort between the federal government and the states is needed and hopefully that will happen. In the meanwhile, lots of folks were adversely affected by the spill and many were damaged in some manner. A number of lawsuits have been filed, with more expected, as additional information about this debacle is uncovered. Those in elected office, who have the power and authority to deal with problems such as this, must come to recognize that effective regulation can prevent disasters like the one in West Virginia.
Source: Claims Journal
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