Sustained Outrage

freedom aerial

 

On Wednesday, the U.S. Chemical Safety Board will report to residents of the Kanawha Valley about what its investigation team found in a more than two-year investigation of the chemical spill at Freedom Industries and the region-wide drinking water crisis that followed.

Yes, it’s been a while since we heard from the CSB about Freedom. And yes, the CSB team had previously said it hoped to have this report to us a long time ago – like somewhere around the first anniversary of the spill. But a lot has happened at the CSB since then, including the guy who was chairman of the board when this all started — Rafael Moure-Eraso — getting fired by President Obama (read more about all of that here, here and here if you need to catch up).

Of course, there have been other investigations of Freedom: A criminal investigation by then-U.S. Attorney Booth Goodwin; a report issued by Attorney General Patrick Morrisey; a report from the West Virginia Rivers Coalition and Downstream Strategies; an after-action review by the Tomblin administration; the still ongoing Public Service Commission investigation; and of course ongoing class-action litigation. That’s just to name a few.

So why should anyone care about the CSB report? And what should concerned citizens be watching for? We should count on the CSB for discussion of the big underlying issues — because that’s really a key part of the board’s role in these kind of incidents. They can connect the dots in ways that other agencies with specific enforcement authorities simply can’t (or don’t).

That’s what the CSB did, for example, when its investigation of two deaths at the Bayer CropScience plant in Institute led to the most complete discussion ever of the dangers of the plant’s MIC chemical inventory — a move that eventually played a role in the dismantling of that stockpile  (see below or click here for an interactive map of the five CSB investigations in West Virginia in the last decade).

We’ve already heard from the CSB at least twice about Freedom, in congressional testimony and then a preliminary public meeting (see here for a transcript of that) that outlined some early specific findings about the cause of the chemical tank leak. But one thing board investigators said they planned to try to answer that I know local residents would like to know is exactly how long that MCHM tank had been leaking. The CSB had said it planned some modeling that might get to the bottom of that, and mapping that would show the exact path taken from the tank into the river by the chemical.

But more importantly, the board made some specific promises about the issues it planned to go into in more detail in its Freedom investigation. Here’s my effort at summarizing those issues:

Chemical tank safety regulations:   During two different congressional hearings (see here and here), the CSB expressed concerns that the Freedom incident exposed a potentially large and dangerous loophole in U.S. Environmental Protection Agency chemical spill regulations. The problem was that EPA rules governed petroleum tanks, but not other chemicals.

Now since then, EPA has settled a citizen group lawsuit by agreeing to write additional regulations on this issue.  But, as explained here, the sorts of chemicals leaked by Freedom aren’t really covered by that settlement. So is there still a loophole and, if so, how big? And will the CSB recommend that EPA do anything about it?

Along with that, while West Virginia lawmakers passed their own above-ground storage tank bill shortly after the chemical spill, they went in just a year later — with a push from leaders of both parties — to greatly reduce the scope of that new law. If the CSB cites passage of this law as some progress, will it also make any recommendations about whether going back and gutting the bill was a good idea? Did board experts examine the state’s new rules and will they provide some guidance about whether they are sufficient?

Emergency response:  There were obviously a lot of problems with the response to the Freedom spill. The Tomblin administration did a remarkably transparent job of talking about some of this in its after-action report.  But there’s much more than could be addressed, and the CSB indicated — at least early on and under different leadership — that it planned to do just that. And the CSB has indicated its great concern about emergency response, adding emergency planning and response to its “most wanted list” of reforms.

For example, the CSB has said that it viewed efforts by federal and state officials to explain the potential health effects of MCHM exposure as “obscure” and “not widely communicated.” So what sort of recommendations will the board make about improving emergency communications in these kinds of incidents? The board has also noted that there was limited toxicological information available about MCHM at the time of the spill, and that the “Safety Data Sheets” that emergency responders relied on were not helpful. Of course, Congress has passed a reform of the Toxic Substances Control Act, but will the board simply drop the issue — or will the CSB provide some more concrete recommendations for how response to these incidents can be improved in the real world? Will the board address, also for example, questions raised in the pending spill litigation about Eastman’s safety disclosures on MCHM? What about the issues regarding West Virginia American Water’s emergency response that have been raised in the PSC investigation?

More broadly, will the CSB offer any guidance to agencies like the U.S. EPA on how to improve the rules under federal right-to-know and emergency response laws so that the response to future such incidents is handled more smoothly?

Disaster prevention:  Perhaps it should go without saying, but this is the most important area for the CSB to address. And it is a mix of issues that are specific to Freedom and the Kanawha Valley and more broad and systematic.

For example, a key issue in the federal litigation over the spill has to do with the properties of MCHM and whether the type of tank Freedom was using was appropriate for that material, and what  MCHM-maker Eastman Chemical did — or didn’t — tell Freedom about those things. The CSB early on indicated an interest in this topic — and in fact it’s been described as part of an effort to apply the board’s broader focus on inherently safer principals to the Freedom incident.

Likewise, the CSB has expressed interest in important questions about the proximity of West Virginia America’s regional drinking water intake to the Freedom chemical storage facility . Which was there first? Was the intake moved from a better location upstream and if so why? The board has said it wants to look carefully as how potentially dangerous chemical facilities end up near homes and other businesses.

Here’s what then-CSB Chairman Rafael Moure-Eraso previously said about this:

For chemical storage tanks like this, the first question that should always be asked is, do they need to be near the water supply for some reason? Unfortunately in the case of Freedom Industries, the answer would have been “no.” The facility was simply a truck terminal, and its position alongside the Elk River just upstream of the water intake had tragic consequences. The facility just did not need to be where it was. And although relocating it would have had some costs, those pale beside the costs that hundreds of thousands of West Virginia residents and businesses are now paying for this disaster. Another form of inherent safety, or safety in design, is using corrosion-resistant materials for tank construction. That is something we will need to explore further, as we determine the failure mode for this particular tank. 

It will be fascinating to see how the board’s final report deals with all of this. And also with the closely related issue of source-water protection, and how well EPA and the states have implemented and enforced those provisions of the Safe Drinking Water Act. Has the board followed up on the state of those issues, and will investigators recommend any steps to improve in that area?

The CSB’s public meeting is scheduled to start at 6 p.m. on Wednesday at the Four Points by Sheraton over on Kanawha Boulevard. The board is having a press conference earlier in the day, and we’ll have a report on that posted online prior to the public meeting, to assist residents in being able to provide public comments to the agency.

Here’s that map that shows what the CSB has done before in West Virginia: