Sustained Outrage


U.S. Chemical Safety Board members (left to right) Manny Ehrlich and Kristen Kulinowski, board Chairwoman Vanessa Allen Sutherland, general counsel Kara Wenze, and board member Rick Engler, huddle during a break at last nights public meeting on Freedom Industries. Photo by Ken Ward Jr.

It’s just fascinating that one of the first things into my email inbox this morning was a press release from Sen. Barbara Boxer, the retiring California Democrat who is ranking minority member of the Senate Committee on Environment and Public Works:

Senator Barbara Boxer …  is calling on the Environmental Protection Agency (EPA) to strengthen its proposed rule to reduce the risks and enhance security at the nation’s hazardous chemical facilities.

In 2013, President Obama issued an Executive Order directing federal agencies to modernize agency policies, regulations, and standards to improve chemical facility safety.  The order followed a series of chemical disasters, including the massive chemical explosion in West, Texas, which resulted in fatalities, hundreds of injuries, and damage to homes, businesses, and the adjacent rail line.  Senator Boxer is urging EPA to strengthen its proposed rule to ensure that communities nationwide are protected from catastrophic chemical disasters.

The text of Sen. Boxer’s letter contains this especially interesting language:

EPA should do more to prevent disasters, including requiring the implementation of Inherently Safer Technology (IST).  EPA and the Occupational Safety and Health Administration recognized in a 2015 voluntary Chemical Safety Alert that “The first choice for managing chemical hazards and risks is the use of Inherently Safer Technology (IST).”  The U.S. Chemical Safety and Hazard Investigation Board (CSB), former EPA Administrator Christine Todd Whitman, and a diverse coalition of over 100 national and local environmental justice, labor, security, and environmental groups have also called for implementation of IST where feasible.

Wait — Inherently safer technology? The U.S. Chemical Safety Board? Require not just an analysis of inherently safer design, but also implementation? Have EPA write a rule doing that?

Just last night, those of us here in the Kanawha Valley watched those ideas kind of evaporate, at least as far as their being considered in the context of what happened in January 2014 at the Freedom Industries facility on the Elk River, just upstream from our drinking water supply — and in the context of any sort of national rule to compel other chemical tank owners and water companies to make sure the same thing doesn’t happen in their community.

If you read through the CSB’s 125-page report on the Freedom spill and the regional water crisis that follows, the phrase “inherently safer technology” doesn’t appear … not once.

It’s true that the board report includes a list of “lessons learned” that the CSB hopes an industry association will pass on to its members, and that one water company will implement at all of its operations. But the lack of a recommendation that the U.S. EPA actually require any sort of reforms as part of a national regulation was so conspicuously absent from the CSB report that even West Virginia American Water Company was wondering what was going on.

Figure 10


Once upon a time, the CSB was promising to examine how the inherently safer approach could be applied to situations like the one on the Elk River, so that lessons learned here could actually help other Americans avoid similar disasters.  Then-CSB Chairman Rafael Moure-Eraso described it in a congressional hearing just two months after the spill:

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. 

As we reported, the CSB did indeed explore some of the issues about tank safety and focused in its Freedom report on the importance of proper inspections that would flag dangerous conditions that were developing in tanks like the one that leaked into the Elk River. The CSB’s lessons learned explained:

Above ground storage tank owners should establish regular inspection and monitoring and coordinate with nearby water utilities and emergency response organizations to ensure that they provide adequate information about their stored chemicals for effective planning in the event of a leak. 

But the broader issues about inherently safer design (things the board has tackled here before, like whether a huge stockpile of deadly methyl isocyanate should be kept near a population center) didn’t really get much attention, if any, in the Freedom report. It’s true that some of these questions, including those that veer into issues of land-use planning and zoning — are on the board’s agenda. But they’ve been relegated to some sort of internal review that sounds like it’s being narrowed in exactly the way that the chemical industry lobby was hoping it would be.

During the EPA public comment period on its proposed changes to chemical safety rules, the CSB did submit some pretty strong comments (and this was after the firing of Moure-Eraso and the confirmation of new chairwoman Vanessa Allen Sutherland). They said, among other things:

The CSB has repeatedly stated in its investigation reports that effectively implementing inherently safer technology provides an opportunity for preventing major chemical incidents … the CSB encourages the EPA to adopt more robust requirements regarding the use of inherently safer systems analysis and the hierarchy of controls.

And while the CSB report on Freedom rightfully praised many of the steps that West Virginia officials have taken since the spill, the board undermines its own credibility when it doesn’t understand the stalled status of any move toward creating a new local chemical accident prevention program — let alone when it repeats the claims of some local health officials that people who got sick after the spill had the flu.

Chairwoman Sutherland was obviously concerned enough with the reaction the board’s report got from local citizens that, while still insisting on pressing forward with acceptance of the draft report, she came up with the — apparently unprecedented — idea to do some sort of supplement to the report later. We’ll see how all that goes.

Board members asked some important questions of their staff’s work, and followed-up with questions raised by residents during last night’s public meeting. But remember that board members have seen drafts of this report before, and they had plenty of time to come up with amendments or changes, or to insist that important issues be explored more fully. And they certainly could have proposed amendments last night and brought those amendments to a vote.

And as far as this new push from Sen. Boxer about inherently safer technology, it’s hard not to remember that when the newest CSB member had a confirmation hearing, Sen. Boxer couldn’t be bothered to ask any questions about that topic, or about other serious chemical safety issues and challenges facing the board and our communities.