Sustained Outrage

More oil train data – but not for the public

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Train Derailment

Survey crews in boats look over tanker cars as workers remove damaged tanker cars along the tracks where several CSX tanker cars carrying crude oil derailed and caught fire along the James River near downtown Lynchburg, Va., Thursday, May 1, 2014.   (AP Photo/Steve Helber)

We talked yesterday about the continuing concerns local residents have over crude-oil train traffic through the Kanawha Valley, and about the latest word from the Federal Railroad Administration on disclosure by railroads to local officials important data about their shipments of this potentially dangerous cargo.

Among other things, we pointed out that the FRA made it clear that railroads like CSX are indeed supposed to continue filing crude-oil shipment disclosures with state emergency response commissions.  But as Curtis Tate at McClatchy reported:

Of the states on the CSX crude oil network that McClatchy sought information from, only Virginia reported receiving an update in the year between June 2014 and June 2015, and that was a week after a CSX oil train derailed and caught fire in February near Mount Carbon, W.Va.

Rob Doolittle, a spokesman for CSX, said the railroad continues to be “in full compliance” with the emergency order. He added that the railroad recently sent new notifications to the affected states, “regardless of whether there was any material change in the number of trains transported.”

When we first checked in with the West Virginia Division of Homeland Security and Emergency Management about this yesterday, spokesman T.D. Lively told us that the State Emergency Response Commission had not received any updated material from CSX since an initial notification back in May 2014.

After hearing that from the state, we contacted CSX, sending an email to Rob Doolittle, the same spokesman quoted in Curtis Tate’s story. Initially, Doolittle told us:

We sent updates earlier this month to all states where CSX operates. I’m double-checking to see if there’s any information about the status of the report to West Virginia that is relevant.

Not too long after that, we heard back from Lively with an update from the state:

The SERC just received a call from CSX saying that we should be receiving additional information from them regarding shipments via mail in the next few days.

And then, after that, we got this note from CSX’s Rob Doolittle:

Following your query we checked with the West Virginia Division of Homeland Security and Emergency Management and confirmed that they had not received the report we mailed earlier this month. We have made arrangements for the report to be delivered tomorrow.

It’s worth noting, though, that regardless of what CSX sends to the state, the public isn’t likely to learn much from it. Lively says state officials are sticking by their position that most of what CSX provides is exempt from disclosure under the state Freedom of Information Act:

This does not change our position on the release of information marked confidential or proprietary by the railroad carrier. The information is made available to appropriate first responders in an unredacted form currently and will continue to be so. As more information becomes available we will release it to first responders.

Oil Train Rules

In this Feb. 17, 2015 file photo, crew members walk near the scene of a train derailment near Mount Carbon, W.Va.   (AP Photo/Chris Tilley, File)

Five months after the huge crude oil train derailment and fire out in Mount Carbon, W.Va., citizens are still concerned about what could have — and what still could — happen as these rail shipments through communities around the country continue. As Matt Murphy reported for the newly consolidated Charleston Gazette-Mail:

Only about 10 residents attended an information session at the Glen Ferris Inn regarding the ongoing remediation efforts surrounding February’s CSX oil train derailment in Mount Carbon.

However, the residents who did attend expressed concern about oil trains continuing to pass through the area in addition to worries over existing oil remnants.

CSX officials made no formal presentation during the meeting. Instead, residents and members of the public were invited to ask questions of railroad representatives at tables set up along the perimeter of the inn’s meeting room.

One Boomer resident, Kay Slayton, said she had concerns over exposure to benzene and other petroleum-related chemicals following the spill, as well as oil remnants in the area.

Slayton’s home is directly across the Kanawha River from the derailment. She and her husband, who were home at the time, witnessed the derailment and subsequent fires occur and evacuated to a nearby elementary school where she works.

“It was a very scary sight,” she said. “I saw something coming down the hill and it was on fire.”

At the same time, the Federal Railroad Administration issued an important notice today, as Curtis Tate reported for McClatchy:

The U.S. Department of Transportation warned railroads that they must continue to notify states of large crude oil shipments after several states reported not getting updated information for as long as a year.

The department imposed the requirement in May 2014 following a series of fiery oil train derailments, and it was designed to help state and local emergency officials assess their risk and training needs.

In a press release, Transportation Secretary Anthony Foxx said:

Transparency is a critical piece of the federal government’s comprehensive approach to safety.  DOT is committed to making certain that states and local officials have the information they need to prepare for and respond to incidents involving hazardous materials, including crude oil.  The Emergency Order that requires these notifications still stands, and we expect railroads to fully comply.

Curtis Tate explained:

In spite of increased public concern about the derailments, railroads have opposed the public release of the oil train information by numerous states, and two companies sued Maryland last July to prevent the state from releasing the oil train data to McClatchy.

The rail industry fought to have the requirement dropped, and it appeared that they got their wish three months ago in the department’s new oil train rule.

But facing backlash from lawmakers, firefighters and some states, the department announced it would continue to enforce the notification requirement indefinitely and take new steps make it permanent.

There have been six major oil train derailments in North America this year, the most recent last week near Culbertson, Mont. While that derailment only resulted in a spill, others in Ontario, West Virginia, Illinois and North Dakota involved fires, explosions and evacuations.

Some readers may recall that West Virginia officials — after initially appearing to be willing to rethink their initial secrecy on this issue — refused a Freedom of Information Act request for data they were given about CSX’s crude oil shipments in West Virginia.

 

Will the Chemical Safety Board survive?

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Kulinowski

Obama administration Chemical Safety Board nominee Kristen M. Kulinowski testifies during a Senate confirmation hearing last week.

It’s growing increasingly difficult to see a light at the end of the tunnel that the U.S. Chemical Safety Board finds itself in these days. Here’s one of the latest takes on things, from the San Francisco Chronicle:

The tiny federal agency that has urged big reforms in how California regulates oil refineries is in disarray.

To some, the strife at the U.S. Chemical Safety Board — the 40-person authority charged with investigating industrial accidents and recommending ways to improve safety — bears strong resemblance to the headlines from developing nations:

Its leader, seen by critics as an autocrat, is forced out before his term is up. His successor takes charge in what detractors call a backroom maneuver and moves quickly to consolidate power, ordering loyalists of the ousted regime removed from their posts with the help of armed guards.

“What is going on at the Chemical Safety Board is a little slice of the eastern Ukraine here in Washington, D.C.,” said Jeff Ruch, executive director of the Public Employees for Environmental Responsibility, a group that advocates for government workers.

Meanwhile, he said, the board’s mission of pushing regulatory reform is languishing. “The industrial infrastructure is getting older, and we’re not doing anything about it.”

Engler_RichardLRNow, when I interviewed the CSB’s acting chairman, Rick Engler, a few weeks ago, he had some solid things to say. But in some ways, the jury is probably still out. For example:

—  Chairman Engler said that he disagrees with efforts by chemical industry lobbyists to narrow the scope of the board’s investigatory authority, but he also emphasized his belief that the board itself needs to narrow its priorities.  “We are a very small agency and we can be most effective by focusing on a small number of issues,” Engler told me.

— While he says that we are currently at a critical time of the Obama administration when it comes to any potential chemical safety reforms, Chairman Engler also does what so many people in the labor community appear willing to do: Let the heads of agencies like the Occupational Safety and Health Administration off the hook for not more aggressively using their rule-making authority these last nine years.  Engler noted his own view is “there isn’t any point” in criticizing OSHA chief David Michaels for his agency’s failure to move beyond the talking stage on the CSB’s “Most Wanted” safety reform: A new federal standard on deadly combustible dust. “The bottleneck is above his level and it’s unfortunate that we have a system that puts so many hurdles in front of urgently needed standards,”  Engler said.

The most impressive thing I heard from Chairman Engler, though, came when I asked him if he agreed with the conclusions of now-ousted Board Chairman Rafael Moure-Eraso in a New York Times op-ed piece that the United States is facing “an industrial chemical safety crisis.” Chairman Engler said:

I think there is a continuing crisis and under my watch I don’t want to wake up in the morning and hear about the next disaster where we have multiple facilities. I really genuinely believe that enough is enough.

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The latest on the government’s MCHM studies

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Coal Water Pollution

Here’s the latest new information from the federal government’s National Toxicology Program on its ongoing investigation of the Elk River chemical spill:

The National Toxicology Program (NTP) evaluated the potential maternal and prenatal toxicity of MCHM, the primary chemical spilled into the West Virginia Elk River. This update is a follow-­‐up to the December 2014 NTP Update,2 which reported the results of a preliminary study used to design this more comprehensive main study. The main study evaluated the effects of MCHM on maternal health and embryo and fetal development in rats following oral administration of MCHM at doses of 50, 100, 200, and 400 mg/kg/day. NTP found that MCHM decreased fetal weight and induced malformations in fetuses in the highest dose group of 400 mg/kg/day. A small decrease in fetal weight was observed in the 200 mg/kg/day dose group, which is similar to the small decrease in fetal weight observed in the 150 mg/kg/day dose group of the preliminary study.

There’s more:

At these dose levels, exposure to MCHM had no effect on maternal or fetal survival, and minimal effects were observed in maternal clinical pathology. The magnitude of these responses was small and not considered to adversely impact the health of the pregnant rat or the fetuses. Fetal weight was decreased significantly by 15 percent at 400 mg/kg/day, and a small decrease in fetal weight was observed in the 200 mg/kg/day dose group, which is consistent with the decrease in the 150 mg/kg/day dose group of the preliminary study. There were also increases in specific malformations in the 400 mg/kg/day group. The malformations included extra ribs in the lumbar and cervical region of the fetus and decreased fusion of cartilage to the sternum. Although not considered a malformation, increases in unossified (non-­‐mineralized bone) or incomplete ossification (partially mineralized bone) of the sternebrae (bones of the sternum) and vertebrae were observed in fetuses in the 400 mg/kg/day dose group. These effects on ossification are consistent with the decreased fetal weight, indicating delayed fetal growth.

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About that new EPA ” Clean Water Rule” …

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Gina McCarthy

U.S. Environmental Protection Agency Administrator Gina McCarthy, left, takes questions from the audience after delivering a speech at Harvard Law School in Cambridge, Mass., Tuesday, July 30, 2013. (AP Photo/Steven Senne)

Yesterday, I posted a brief item about the release by the U.S. Environmental Protection Agency of its new “Clean Water Rule” in which I noted that my inbox was filling up with responses about the EPA action.

The responses were pretty predictable, really. Just about every environmental group you could possibly name jumped out there to cheer lead about it. See, for example, this statement from a coalition of citizen groups:

Today the Obama administration closed loopholes that left the drinking water sources for more than 1 in 3 Americans at risk of pollution and destruction with the release of its long-awaited Clean Water Rule. A number of environmental, wildlife, and sportsmen groups praised the rule, which ensures Clean Water Act protections for streams and wetlands across the country, but warned that there are multiple efforts underway in Congress to weaken, undermine, or stop the rule completely.

On the other side of things, all of the industry groups I heard from were complaining strongly about the EPA rule. Here’s the National Mining Association:

We remain deeply concerned that the promised clarity from this rule comes at the steep price of more federal interference with state, local and private land use decisions. The U.S. federal permitting process is among the slowest, most costly and inefficient systems in the world. This rule faces a high hurdle in convincing us that the permitting process will improve now that only the most tenuous connections form the basis for imposing federal requirements on top of existing state protections.

West Virginia political leaders were also pretty predictable. Most said something along the lines of what Sen. Joe Manchin put in his prepared statement:

It is completely unreasonable that our country’s ditches, puddles and other un-navigable waters be subjected to the same regulations as our greatest lakes and rivers, and implementing this rule will certainly have a significant impact on West Virginia’s economy, hindering businesses, manufacturing and energy production.

Pretty much, most of the media coverage I read (see here, here and here for example), confined their story to the narrative that EPA and its friends on the environmental community love the rule, while business and industry — and their friends on Congress — hate it.

But then I came across this statement, issued by the Water Keeper Alliance and the Center for Biological Diversity:

The “Clean Water Rule” issued today by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers reduces the agencies’ jurisdiction over waters that have been covered under the Clean Water Act since the 1970s. The final rule fails to protect streams and rivers that have historically been protected under the Clean Water Act, exempting industrial-scale livestock facilities, and allowing streams and rivers to be impounded or filled with toxic coal ash and other waste.

The preamble to the rule states: “The scope of jurisdiction in this rule is narrower than that under the existing regulation. Fewer waters will be defined as ‘waters of the United States’ under the rule than under the existing regulations, in part because the rule puts important qualifiers on some existing categories such as tributaries.”

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MVP MapWest Virginians who are following pipeline proposal issues might be interested in the latest news out of Kentucky, from WFPL:

The Kentucky Court of Appeals on Friday upheld a lower court’s decision that a natural gas liquids pipeline would not have the right of eminent domain in the commonwealth. The unanimous decision means that only utilities regulated by the Public Service Commission can invoke eminent domain in Kentucky.

Back in March, some residents who are concerned about the Mountain Valley Pipeline filed lawsuits in state court to stop developers of that project from surveying their property without permission. Those cases have been kicked into federal court, and the pipeline developer has also sued residents.

And now, lawyers for the residents are requesting that U.S. District Judge Irene Berger ask the state Supreme Court to provide its guidance on a key legal issue in the case:

Whether, under West Virginia Code § 54-1-1 et seq., a proposed natural gas pipeline is “for public use,” as that term is used in W. Va. Code § 54-1-2(a)(3), when consumers of natural gas in West Virginia will not be served with gas from that pipeline, under reasonable and proper regulations, along the entire line traversed, and for reasonable fixed rates.

Gina McCarthy

In this Nov. 19, 2014 file photo, EPA Administrator Gina McCarthy speaks in Washington. The Obama administration issued new rules Wednesday to protect the nation’s drinking water and clarify which smaller streams, tributaries and wetlands are covered by anti-pollution and development provisions of the Clean Water Act. McCarthy said the rule will only affect waters that have a “direct and significant” connection to larger bodies of water downstream that are already protected. (AP Photo/Manuel Balce Ceneta, File)

My inbox is quickly filling up today with statements from the environmental organizations, all eager to get quoted saying something nice about the latest action by the Obama administration’s U.S. Environmental Protection Agency. Here’s what EPA said this morning in a press release:

In an historic step for the protection of clean water, the U.S. Environmental Protection Agency and the U.S. Army finalized the Clean Water Rule today to clearly protect from pollution and degredation the streams and wetlands that form the foundation of the nation’s water resources.

The rule ensures that waters protected under the Clean Water Act are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and industry. The rule is grounded in law and the latest science, and is shaped by public input. The rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions.

The actual language of the final rule is here, and the new definition of “waters of the United States” is here.  There’s a Congressional Research Service report about the issue available here (thanks to the Federation of American Scientists), and a setup story from The New York Times has more background.

Latest DuPont citation mirrors Belle violation

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dupont627

Gazette photo by Chris Dorst

The inspection results from the U.S. Occupational Safety and Health Administration are in regarding the terrible poison gas leak that killed four workers at DuPont Co.’s plant in LaPorte, Texas, last November.  Here’s the bottom line from the OSHA press release:

Four workers killed by a lethal gas in November 2014 would be alive today had their employer, DuPont, taken steps to protect them, a U.S. Department of Labor investigation found.

The department’s Occupational Safety and Health Administration today cited DuPont for 11 safety violations and identified scores of safety upgrades the company must undertake to prevent future accidents at its Lannate/API manufacturing building in La Porte. The company employs 313 workers who manufacture crop protection materials and chemicals there.

“Four people lost their lives and their families lost loved ones because DuPont did not have proper safety procedures in place,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “Had the company assessed the dangers involved, or trained their employees on what to do if the ventilation system stopped working, they might have had a chance.”

OSHA continued:

The fatal incident occurred as one worker was overwhelmed when methyl mercaptan gas was unexpectedly released when she opened a drain on a methyl mercaptan vent line. Two co-workers who came to her aid were also overcome. None of the three wore protective respirators. A fourth co-worker — the brother of one of the fallen men — attempted a rescue, but was unsuccessful. All four people died in the building.

Methyl mercaptan is a colorless gas with a strong odor. It is used in pesticides, jet fuels and plastics. At dangerous levels of exposure, the gas depresses the central nervous system and affects the respiratory center, producing death by respiratory paralysis.

Among the citations issued by federal inspectors was one for a “repeat violation” for allegedly “not training employees on using the building’s ventilation system and other safety procedures, such as how to respond if the fans stopped working.” OSHA noted, without further explanation:

In July 2010, DuPont was cited for a similar violation.

Kanawha Valley residents may remember that similar violation. It was issued to DuPont’s Belle plant following a series of incidents in January 2010 that left one worker dead.

In the Belle incident, the OSHA citation in question stated:

Small Lots Manufacturing (SLM) Unit, Phosgene Shed: Employees working in the SLM Unit were not trained to recognize that leaving liquid phosgene in a non-vented flexible transfer hose for an extended period of time could result in the rupture of the flexible hose due to the thermal expansion of the liquid phosgene as determined on January 25, 2010.

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New study warns of MCHM toxicity

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Coal Water Pollution

There’s a new study out this week that residents of the Kanawha Valley and surrounding region will want to know about.  It was published online Monday in the peer-reviewed journal Environmental Science and Technology and is called Toxicity Assessment of 4-Methyl-1-cyclohexanemethanol and Its Metabolites in Response to a Recent Chemical Spill in West Virginia, USA.

Here’s the abstract:

The large-scale chemical spill on January 9, 2014 from coal processing and cleaning storage tanks of Freedom Industries in Charleston affected the drinking water supply to 300,000 people in Charleston, West Virginia metropolitan, while the short-term and long-term health impacts remain largely unknown and need to be assessed and monitored. There is a lack of publically available toxicological information for the main contaminant 4-methyl-1-cyclohexanemethanol (4-MCHM). Particularly, little is known about 4-MCHM metabolites and their toxicity. This study reports timely and original results of the mechanistic toxicity assessment of 4-MCHM and its metabolites via a newly developed quantitative toxicogenomics approach, employing proteomics analysis in yeast cells and transcriptional analysis in human cells. These results suggested that, although 4-MCHM is considered only moderately toxic based on the previous limited acute toxicity evaluation, 4-MCHM metabolites were likely more toxic than 4-MCHM in both yeast and human cells, with different toxicity profiles and potential mechanisms. In the yeast library, 4-MCHM mainly induced chemical stress related to transmembrane transport and transporter activity, while 4-MCHM metabolites of S9 mainly induced oxidative stress related to antioxidant activity and oxidoreductase activity. With human A549 cells, 4-MCHM mainly induced DNA damage-related biomarkers, which indicates that 4-MCHM is related to genotoxicity due to its DNA damage effect on human cells and therefore warrants further chronic carcinogenesis evaluation.

And here’s the conclusion:

… This study revealed different toxicity and potential mechanisms of 4-MCHM and its metabolites by S9 in yeast and human cells (A549). These results suggested that, although 4-MCHM is considered only moderately toxic based on previous limited acute toxicity evaluation, its metabolites may be more toxic than 4-MCHM and are more relevant to human exposure. Our study at the molecular level revealed some subcytotoxic molecular mechanisms such as DNA damage potential, which indicates that 4-MCHM is related to carcinogenesis and reproductive toxicity due to its DNA damage effect on human cells. Our results suggested that long-term medical monitoring should be considered for the population. It may also provide insights into potential long-term aquatic toxicity issues. The toxicogenomics-based molecular toxicity screening assay employed in this study provides timely information regarding the underlying mechanisms of toxic action of 4-MCHM and its metabolites, especially related to low-dose and chronic exposures, which makes it a useful tool for public health protection and health monitoring needs.

Mark Welch at Freedom April 2015

Freedom Industries Chief Restructuring Officer Mark Welch is shown during an early April tour of the site. Photo by Ken Ward Jr.

Earlier this week, the state Department of Environmental Protection blasted Freedom Industries, harshly criticizing the company’s current leadership — Chief Restructuring Officer Mark Welch and attorney Mark Freedlander — for their handling of the Freedom bankruptcy and company proposals for cleaning up the site of the January 2014 Elk River chemical spill.

This morning, Welch responded with this new court filing:

Welch has some strong words back at the DEP regarding the agency’s comments about Freedom’s efforts to come up with a viable cleanup plan under the agency’s Voluntary Remediation Program:

Saying “NO” to proposals made by a VRP participant under the VRP is easy. It allows for plausible deniability and blame if the clean-up project were not to be successfully completed by the VRP participant.

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