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:

 

 

 

 

 

CSB won’t investigate West Virginia chlorine leak

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The answer to yesterday’s question — will the CSB investigate the Axiall Corp. chlorine leak — is a apparently a resounding “no.”

We’ve not gotten a response from the U.S. Chemical Safety Board’s press office yet, but here’s the tweet from one of the board members:

Interestingly, board member Kristen Kulinowski also reported via Twitter that the CSB would be deploying to this incident in Cantonment, Florida:

One person was killed as a major explosion ripped through the Airgas facility next to the Ascend Performance Materials plant on Old Chemstrand Road in Cantonment just after noon Sunday. There were no other injuries or fatalities.

About 12:15 p.m., multiple agencies from across Escambia County responded to the Airgas facility. First responders reported a major explosion with an area of significant structural collapse. The area was described a “mini-war zone”.

The gas that exploded was nitrous oxide, some of which was released into the atmosphere but did not pose any threat to the public. There were no gasses or chemicals released outside the industrial facility. There were no evacuations or shelter in place orders issued for residents living near the plant.

Will the CSB investigate Axiall chlorine leak?

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CVP_4420

 

Current CSB Board Members: , Board Member Kristen Kulinowski Ph.D., Board Member Manuel “Manny” EhrlichChairperson Vanessa Allen Sutherland and Board Member Rick Engler

Not so long ago, the U.S. Chemical Safety Board took a pass on investigating a significant incident — one that injured 11 workers — at the Axiall Corp. chemical plant in northern West Virginia, site of Saturday’s huge chlorine leak. The CSB refused to look into the incident, despite it being just one in a recent string of problems at the facility (see here and here).

So on Saturday, I asked if the CSB was going to deploy to Natrium and look into this chlorine leak. Two days later, the board still hasn’t decided — and really didn’t provide much of an official response to my query.

This morning I tweeted about the CSB’s relative silence on the matter:

That prompted this response from one of the board members:

That certainly seemed odd — for the CSB to wonder if it had jurisdiction — given that it has investigated similar incidents before at Honeywell and DCP Enterprises (see here and here).

When I inquired about that, board member Kulinowski responded on Twitter:

Our discussion continued:

Hopefully, we’ll learn sometime soon what the CSB decides about the Axiall leak.

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As residents of Marshall and Wetzel counties fled or took shelter to protect themselves from a chlorine cloud that spewed into the air Saturday from the Axiall Corp. chemical plant at Natrium, it was impossible not to remember a long-ago and never-implemented recommendation from the U.S. Chemical Safety Board that West Virginia officials do more to try to ensure public safety from such incidents.

It was eight years ago Sunday that the fatal explosion at the Bayer CropScience plant out in Institute prompted the CSB investigation that led to this recommendation to the state Department of Health and Human Resources and the Department of Environmental Protection:

Work with the Director of the Kanawha-Charleston Health Department to ensure the successful planning, fee collection, and implementation of the Hazardous Chemical Release Prevention Program as described in Recommendation 2008-08-WV-R6, above, including the provision of services to all eligible facilities in the State.

That Recommendation 2008-08-WV-6 part refers to this recommendation to the local health department:

Establish a Hazardous Chemical Release Prevention Program to enhance the prevention of accidental releases of highly hazardous chemicals, and optimize responses in the event of their occurrence. In establishing the program, study and evaluate the possible applicability of the experience of similar programs in the country.

Readers may recall that state officials basically ignored this recommendation for a couple of years, until that troublesome chemical spill over on the Elk River that contaminated drinking water supplies for hundreds of thousands of residents. When that happened, we published this story in the Gazette:

Three years ago this month, a team of federal experts urged the state of West Virginia to help the Kanawha Valley create a new program to prevent hazardous chemical accidents.The U.S. Chemical Safety Board recommended the step after its extensive investigation of the August 2008 explosion and fire that killed two workers at the Bayer CropScience plant in Institute. Since then, the proposal has gone nowhere.

When lawmakers, under pressure following the Freedom Industries spill, passed legislation responding to the incident, they tucked this onto the mandate for a new Public Water System Supply Study Commission:

A review and consideration of the recommendations of the U. S. Chemical Safety and Hazard and Investigation Board after its investigation of the Bayer CropScience incident of 2008.

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Nitro Dioxin Map

 

There was an interesting — and potentially important — advertisement in today’s Gazette-Mail from the U.S. Environmental Protection Agency. Here’s what it said:

The United States Environmental Protection Agency (EPA) has released the EE/CA presenting the Preferred Alternative for addressing dioxin contaminated sediment in the Kanawha River between RM 31.1 (Winfield Locks and Dam) and RM 45.5 (confluence of the Coal River).

The Preferred Alternative for the Site is identified in the EE/CA as Alternative 4 – limited armored capping of sediment, monitored natural recovery, and institutional controls.

Here’s what the ad looks like:

EPA Dioxin Ad Aug 25 2016

 

If you want more information, be careful, because the link listed in the ad will try to download a more than 300 MB .pdf file from EPA’s website. You might find it a bit easier to read the nearly 1,500-page report from this version that I uploaded to Document Cloud.

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freedom aerial

Commercial Photography Services of West Virginia

U.S. District Judge John T. Copenhaver Jr. just issued an interesting ruling in the pending class-action case against West Virginia American Water Co. and Eastman Chemical over the water crisis that followed the January 2014 Elk River chemical spill.

In short, Judge Copenhaver wants both sides to submit additional legal briefs to address the role of Eastman Chemical — which sold MCHM to Freedom Industries — in the water crisis case. Plaintiffs in the case argue that Eastman violated the federal Toxic Substances Control Act, by not properly testing the chemical or warning buyers or the public about potential health impacts, or about possible safety concerns related to the type of storage tanks Freedom used.

Specifically, the judge says:

… The parties should address the facts supporting a conclusion that plaintiffs have suffered an injury, fairly traceable to Eastman’s alleged violation of the Act, which will be redressed by a favorable decision of this court.

Briefing should also consider whether Eastman’s alleged noncompliance with the Act constitutes a “real and immediate” threat of injury supporting injunctive relief.

The additional legal brief from the plaintiffs is due Aug. 2, with any Eastman response due by Aug. 9. You can read the judge’s order here.

 

 

PSC continues to narrow chemical spill inquiry

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Coal Water Pollution

West Virginia American Water Company’s request to further delay the state Public Service Commission’s chemical spill investigation wasn’t the only new filing in the last few days in that commission case. Also just made public is a new PSC order, which indicates clearly again the commission’s intent on keeping this inquiry as narrow as possible.

The new order, posted here, rejects another effort by the group Advocates for a Safe Water System to reopen discovery — the process of legal investigation in the case — prior to the currently schedule PSC hearings in mid-November.

Among other things, the Advocates hoped to reopen discovery so they could pursue more answers to questions raised by recent disclosures in the federal court case over the water crisis — including some remarkable documents that we’ve covered in the Gazette-Mail about the water company’s decision not to close its Elk River drinking water intake in the hours after the spill.

The PSC, though, wasn’t having any of it:

The fact that the parties to this general investigation and the parties to the federal cases examined some of the same subject matter but chose to develop the evidence differently, is largely reflective of the different roles of the two tribunals and the different legal standards governing the respective proceedings. Thus, while ASWS may utilize pertinent information from any source (including the federal cases) for any proper purpose during the evidentiary hearing in this proceeding, the fact that information developed outside this investigation may not be identical to what the parties developed here simply does not justify a wholesale re-opening of discovery, on the grounds that it is “new information” or otherwise.

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water intake

There’s a new filing out this morning in the state Public Service Commission’s general investigation of the January 2014 Freedom Industries chemical spill and the water crisis that followed.

In the new filing, posted here, lawyers for West Virginia American Water Co. are asking the PSC to again delay the commission’s formal hearing into the water company’s handling of the crisis.

Basically, water company lawyers are pointing out that the current PSC hearing dates — Nov. 15-17, 2016 — create a pretty serious conflict with the scheduled start of trial in the “Good case” — the water crisis class-action suit pending in federal court. U.S. District Judge John T. Copenhaver has that trial set to begin on Oct. 25.

The water company lawyers explain:

The Company believes that holding the GI evidentiary hearing during the Good trial will be virtually impossible for the Company and its witnesses to manage, and at the very least will impair and prejudice the Company’s ability to participate attentively and fully in both proceedings. The timing overlap is complete, and extends not only to the November 15-17 evidentiary hearing, which should occur during the fourth week of the Good trial, but to the October 28 pre-trial conference in the GI, at which pre-hearing motions presumably will be argued. The overlap also extends to the deadline for rebuttal testimony on September 1, which will compete for many of the same witness and lawyer resources already committed to preparing for the federal trial.

They outline scheduling concerns for both West Virginia American witnesses — including company President Jeff McIntyre — and attorneys, and conclude:

These actual scheduling conflicts will adversely affect the Company’s participation in both cases to its detriment and prejudice, and they constitute good cause to move the remainder of the GI procedural schedule into 201 7. The Commission should acknowledge the demanding federal court processes facing the Company and make reasonable accommodations to minimize the impact of scheduling constraints. There is no deadline for the Commission’s decision in the GI, and none of the other parties is likely to be prejudiced by an extension of the procedural schedule into 2017.

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Study links gas drilling and asthma

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Natural Gas, fracking

A new study out today links natural gas drilling with increased risk of asthma. Here’s the press release from the Journal of the American Medical Association’s Internal Medicine journal:

Residential unconventional natural gas development activity, a process that involves fracking and creates a source of energy used both domestically and internationally, was associated with increased risk of asthma exacerbations in a study of patients with asthma in Pennsylvania.

Asthma is a common chronic disease with nearly 26 million people in the United States with asthma. Outdoor air pollution is recognized as a cause of asthma exacerbations. Unconventional natural gas development (UNGD) has been associated with air quality and community social impacts, such as air pollution from truck traffic and sleep disruption.

Pennsylvania has moved rapidly with UNGD and more than 6,200 wells were drilled between the mid-2000s and 2012.

The release explains:

Brian S. Schwartz, M.D., M.S., of the Johns Hopkins Bloomberg School of Public Health, Baltimore, and coauthors looked at associations between UNGD and asthma exacerbations.

The authors compared patients with asthma with and without exacerbations from 2005 and 2012 who were treated at Pennsylvania’s Geisinger Clinic. The study included 35,508 patients identified in electronic health records.

The authors estimated activity metrics for the four phases of UNGD (pad preparation, drilling, stimulation and production) using the distance from patients’ homes to the wells, well characteristics and the duration of phases.

Between 2005 and 2013, 6,253 unconventional natural gas wells were spudded (the start of drilling) on 2,710 pads; 4,728 wells were stimulated and 3,706 were in production.

The authors identified 20,749 mild (new oral corticosteroid medication order), 1,870 moderate (emergency department visit) and 4,782 severe (hospitalization) asthma exacerbations and matched those to control index dates for comparison.

Patients with asthma in areas with the highest residential UNGD activity had higher risk of the three types of exacerbations compared with those patients in the lowest group of residential activity, according to the study results.

Here’s a link to the study and here’s a story about it that was posted earlier by State Impact.

 

 

 

EPA assurances on Dimock, Pa., water questioned

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Gas Drilling Dimock

Protesters stand in front of the Academy of Natural Sciences in Philadelphia before an appearance by Environmental Protection Agency then-(EPA) Administrator Lisa Jackson Friday Jan. 13, 2012.  Residents of the small northeastern Pennsylvania town of Dimock,  at the center of the political fight over natural gas drilling, joined environmental activists from elsewhere to rally Friday outside a conference on urban environmental issues.   (AP Photo/Jacqueline Larma)

With all of the aggressive public relations from all sides — and the flurry of conflicting statements in political campaigns — it is certainly becoming more and more difficult for the public to understand the ongoing discussion of natural gas drilling’s environmental and economic impacts.

Recall, for example, how the industry sought (and EPA really aided and abetted) to paint a federal report as proof that drilling is “safe,” when actually the report found nothing of the kind.

Thankfully, there are some great journalists out there who continue to work on these stories and cutting through the conflicting claims. For several years, the best among them has been Abrahm Lustgarten of ProPublica, whose work on the issue is archived here.

Today, we have another important story from Abrahm, “Federal Report Appears to Undercut EPA Assurances on Water Safety in Pennsylvania,” which digs again into the issue of drilling’s impacts on the drinking water in Dimock, Pa.:

Since 2009 the people of Dimock, Pennsylvania, have insisted that, as natural gas companies drilled into their hillsides, shaking and fracturing their ground, their water had become undrinkable. It turned a milky brown, with percolating bubbles of explosive methane gas. People said it made them sick.

Their stories — told first through an investigation into the safety of gas drilling by ProPublica — turned Dimock into an epicenter of what would evolve into a national debate about natural gas energy and the dangers of the process of “fracking,” or shattering layers of bedrock in order to release trapped natural gas.

But the last word about the quality of Dimock’s water came from assurances in a 2012 statement from the U.S. Environmental Protection Agency — the federal department charged with safeguarding the Americans’ drinking water. The agency declared that the water coming out of Dimock’s taps did not require emergency action, such as a federal cleanup. The agency’s stance was widely interpreted to mean the water was safe.

Now another federal agency charged with protecting public health has analyzed the same set of water samples, and determined that is not the case.

The finding, released May 24 from the Agency for Toxic Substances and Disease Registry, a part of the Centers for Disease Control and Prevention, warns that a list of contaminants the EPA had previously identified were indeed dangerous for people to consume. The report found that the wells of 27 Dimock homes contain, to varying degrees, high levels of lead, cadmium, arsenic, and copper sufficient to pose ahealth risk. It also warned of a mysterious compound called 4-chlorophenyl phenyl ether, a substance for which the agency could not even evaluate the risk, and noted that in earlier water samples non-natural pollutants including acetone, toluene and chloroform were detected . Those contaminants are known to be dangerous, but they registered at such low concentrations that their health effects could not easily be evaluated. The water in 17 homes also contained enough flammable gas so as to risk an explosion.

Read the whole thing here.