Sustained Outrage

The chemical spill: Where things stand

Coal Water Pollution

It’s been two years since since a leaky tank at Freedom Industries spilled MCHM and other chemicals into the Kanawha Valley’s drinking water supply. Here’s a roundup of where things stand on various aspects of the Jan. 9, 2014, chemical spill story:

Criminal probe — Former U.S. Attorney Booth Goodwin secured plea agreements with six former Freedom Industries officials and with Freedom’s corporate entity for criminal violations of the federal Clean Water Act. One of those deals, though, allows former Freedom President Gary Southern to get back $7.3 million and a Bentley luxury car that were seized when he was charged for his role in the spill.

Public Service Commission investigation — A PSC investigation of West Virginia American Water Co.’s response to the Freedom spill has been stalled for more than a year. Commissioners, though, have recently hinted that they might drop the investigation. A hearing is scheduled for Jan. 22 on the matter. West Virginia American has been working to at least narrow the scope of the PSC probe, while also pushing for a large rate increase and facing a campaign by the group Advocates for a Safe Water System for a public takeover of the operation.

New state legislation — During the 2015 session, state lawmakers significantly rolled back the chemical tank safety provisions of SB 373, the law that unanimously passed in the months after the Freedom spill. The industry-based SB 423 exempted thousands of tanks from new Department of Environmental Protection Safety standards. In its second annual report, a water safety study commission recommended clarification of what information about chemical tanks could be released and urged continued funding of a Bureau for Public Health effort to help public utilities write source-water protection plans.

U.S. Chemical Safety Board investigation — The public is still waiting for the results of the CSB’s investigation. The report is expected sometime this spring.

Scientific studies — A review by the National Toxicology Program reported last year that scientists there believe they have found evidence of potential long-term health effects only at exposures greater than the government’s 1-part-per-million MCHM health advisory, but also conceded that the agency’s work didn’t consider inhalation of the chemicals or fully account for impacts during the “flushing” of home plumbing systems. A study co-authored by West Virginia Testing Assessment Project researcher Andrew Whelton, now at Purdue University, concluded that government officials, public health agencies and drinking water utilities need to develop better procedures for “flushing” contaminants out of home systems after chemical spills. A later report from the National Toxicology Program raised more questions about the spill’s potential health effects, finding some evidence that leaked chemicals could affect neurological function or be related to genetic mutations. Another study, a peer-reviewed paper by researchers at Northeastern University in Boston, found that Crude MCHM — the main chemical from the spill — could be more toxic than previously known, citing evidence of cancer-causing effects, DNA damage potential, and reproductive toxicity. Another study, co-authored by West Virginia Public Health Commissioner Rahul Gupta, found that the spill had “major economic impact with substantial numbers of individuals reporting incident-related illnesses and psychological distress.”

Another study, also co-authored by Gupta, reported that many residents affected by the spill felt that more government regulation to protect against such incidents was needed. Finally, another study, conducted for MCHM-maker Eastman Chemical, concluded that exposure to less than the 1-ppm level in household water “poses no apparent toxicological risk.”

— Freedom Industries bankruptcy — In October, now-retired U.S. Bankruptcy Judge Ronald Pearson gave final approval to Freedom Industries’ bankruptcy plan. The plan uses remaining assets and insurance money to cleanup the site of the spill and make payments to Freedom’s creditors and to victims of the chemical spill who filed claims in the bankruptcy case.

— Site cleanup — A settlement with the state Department of Environmental Protection, Freedom, and various former Freedom officials and owners provided an additional $2.5 million to improve the cleanup of Freedom’s former Etowah Terminal along the Elk River. Contractors have begun removing additional MCHM-contaminated soil from the site, a process that DEP expects to be completed by early March. Plans for the site after that remain unclear.

— Civil lawsuits — With the Freedom bankruptcy case resolved, dozens of lawsuits over the spill — cases that had been stalled by a bankruptcy stay — have been remanded to state courts. Many claims directly against Freedom were resolved as part of the bankruptcy case, including civil claims against Southern and former Freedom official Dennis Farrell. A class-action case against Eastman Chemical and West Virginia American is currently scheduled for trial starting in mid-July.