Sustained Outrage

Did Freedom Industries have to report the spill?


Gazette photo by Chip Ellis

As hundreds of thousands of West Virginians across a nine-county region wait for word on when they can resume using the water at their homes, folks have a flurry of other questions — not only about how to rid their homes of this “Crude MCHM” stuff, but also about what could have happened at Freedom Industries to cause this spill, and whether the company acted quickly enough in trying to deal with it.

One thing that’s come up is whether state or federal laws require Freedom Industries to report the spill to state or local authorities. The Daily Mail, for example, had a story today that told us:

The company responsible for a chemical leak that continues to force 300,000 West Virginians from using their tap water broke the law.

Which law, exactly, is still under investigation.

But state officials don’t believe Freedom Industries was required to follow a state law requiring industrial facilities to report an emergency within 15 minutes.

“I think the loophole, if you will, that this facility fell into is because it was not a hazardous material, it flew under the radar,” said Secretary Randy Huffman, head of the state Department of Environmental Protection.

The story focused on the reporting requirements written into West Virginia law at the behest of then-Gov. Joe Manchin following the Sago Mine Disaster and the Aracoma Mine fire.

That’s all well and good. But there really shouldn’t be much question of whether Freedom Industries was required to report this spill to the state DEP. Just look at the stormwater permit the agency issued for the facility. It’s really pretty clear. Look on page 43 under “immediate reporting”:

a) The permittee shall report any noncompliance which may endanger health or the environment immediately after becoming aware of the circumstances by using the Agency’s designated spill alert telephone number. A written submission shall be provided within five (5) days of the time the permittee becomes aware of the circumstances. The written submission shall contain a description of the noncompliance and its cause; the period of noncompliance, including exact dates and times, and if the noncompliance has not been corrected, the anticipated time it is expected to continue; and steps taken or planned to reduce, eliminate, and prevent recurrence of the noncompliance.

(b) The following shall also be reported immediately:

(1) Any unanticipated bypass which exceeds any effluent limitation in the permit;

(2) Any upset which exceeds any effluent limitation in the permit; and

(3) Violation of a maximum daily discharge limitation for any of the pollutants listed by the Director in the permit to be reported immediately. This list shall include any toxic pollutant or hazardous substance, or any pollutant specifically identified as the method to control a toxic pollutant or hazardous substance.

 c) The Director may waive the written report on a case-by-case basis if the oral report has been received in accordance with the above.

d) Compliance with the requirements of IV.2 of this section, shall not relieve a person of compliance with Title 47, Series 11, Section 2.