The Charleston Gazette has a long and proud tradition as a crusading newspaper. Our late publisher, W.E. "Ned" Chilton III coined the phrase "sustained outrage" and insisted the Gazette live up to that motto with long-term coverage of important issues facing West Virginia and the nation.
The mission of the "Gazette Watchdog" is simple: To carry on that tradition. We make a commitment to our readers to serve as a public watchdog over government, business, and other powerful entities in West Virginia society, to ensure that the public interest is protected.
U.S. Environmental Protection Agency (EPA) Administrator Pruitt took action today to reconsider the “Accidental Release Prevention Requirements: “Risk Management Programs Under the Clean Air” (“RMP Rule”) and signed an administrative stay to delay the effective date of the rule regarding chemical accident preparedness and prevention, until June 19, 2017.
The 90-day extension will allow time for EPA to consider whether to further extend the effective date of the rule through a rulemaking action while the Agency reconsiders the rule in response to a petition the agency received in February 2017 from the RMP Coalition.
“As an agency, we need to be responsive to concerns raised by stakeholders regarding regulations so facility owners and operators know what is expected of them,” EPA Administrator Scott Pruitt said as he directed the Agency to extend the comment period.
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.
Even after that, and after the Legislature instructed the water study commission — created to provide some long-term oversight over efforts to protect state drinking water supplies — to review the CSB recommendation, nothing much happened on the commission’s end. For its first two annual reports, the commission punted.
When we last left the U.S. Chemical Safety Board, board Chairwoman Vanessa Allen Sutherland was saying that the agency’s investigative staff had review public and scientific criticism of its Freedom Industries report and didn’t see any need for an addendum — let alone a wholesale write of the sort that some experts are advocating — and Sutherland was saying it was likely the board would accept that recommendation.
[Shortly after our story on those comments was published, Sutherland was apparently trying to backpedal, with a board spokeswoman seeking a correction — saying that, of course, nothing was final until the board took a formal vote.]
It turns out, though, that the board may have to spend a little more time reviewing all of the criticisms of its Freedom report after all … On Tuesday, Kanawha Valley resident Philip Price, a former Carbide chemist, filed a formal petition with the CSB seeking correction of its Freedom Industries report.
I’ve posted a copy of Price’s petition here, and this is his request:
A major revision or addendum must be issued for this seriously flawed report. It contains misstatements of fact, unsubstantiated allegations, and critical omissions. It would not pass standard peer review, nor be acceptable for publication in a refereed scientific journal (I review for several international journals). This incident record will have no historical use, if viewed as flawed.
After two and a half years of work, the CSB Report fails to address the most fundamental questions of a chemical spill investigation:
• What chemicals were spilled? • How much of each chemical was spilled? • When did the spill happen? • How did the spill happen? • Who received what relative exposures? (which residents’ neighborhoods, census tracts)
The settlements are far from final, and there are many steps left to go before residents, businesses and workers will see any compensation. Here’s a look at what we know and what we don’t know at this point:
How much money is involved?
The total settlement amount is up to $151 million. It’s “up to” that amount because at some point, if claims filed by residents and businesses don’t use up all the money, some of it will go back to West Virginia American and Eastman.
Of the total amount in the two settlements, $126 million of it will come from the deal with West Virginia American Water, its parent company, and an affiliated service company. The other $25 million comes from Eastman Chemical. It’s not entirely clear at this point how much of the settlement comes from insurance policies, but a new lawsuit filed by West Virginia American against one of its insurers suggests some of the water company’s insurers are paying, but at least one of them had as of Friday been balking at providing coverage for the settlement.
What is the settlement about?
The central lawsuit that prompted the settlement is called Crystal Good v. American Water Works Co, for a local resident who was the lead named plaintiff and for West Virginia American Water’s parent company. It was set for a trial to start on Oct. 25, in which the focus was not so much what caused the Freedom Industries spill, but what caused the spill to be allowed to contaminate the region’s drinking water supply.
While West Virginia American Water and Eastman in their defense wanted to point to Freedom’s criminal negligence, the plaintiffs planned to present a detailed case about the water company and Eastman.
For example, the plaintiffs planned to present evidence that West Virginia American was treating and storing drinking water at far below its capacity in the cold days prior to the spill, leaving it with little in the way of backup water that would have allowed it to briefly close the Elk River intake until the worst of the spill had passed. Plaintiffs alleged that the water company, by allowing the drinking water to be contaminated, had breached its contract with its customers across the region. The plaintiffs alleged that Eastman didn’t warn Freedom Industries that the Crude MCHM Eastman sold could corrode Freedom’s chemical tanks, and that Eastman officials knew the Freedom site was in terrible disrepair, but did nothing about it.
The trial itself, though, was only going to be about fault — whether the water company and Eastman were liable for the drinking water contamination. Had the plaintiffs gone to trial and won on that issue, any awarding of monetary damages could have taken much longer, through a separate legal proceeding.
Who is covered by the settlement?
The case that was set for trial covered a broad class that included three categories of people: Everyone who lived at the time of the spill in a dwelling supplied with tap water by the West Virginia American Kanawha Valley Treatment Plant, everyone who at that time owned a business supplied with water by that plant, and everyone who worked at a business supplied with water from the plant, but who lived in a dwelling that got its tap water from some other source.
The water company settlement’s term sheet, though, states that a final agreement — still to be prepared by the lawyers for both sides — “will identify a proposed settlement class” that would have to be approved by the court.
What if I didn’t sign up for any lawsuits?
Generally speaking, class actions don’t work that way. Anyone who fits into the class definition that is eventually approved by the court as the “proposed settlement class” would automatically be part of the case. The intent of the settlement is to resolve all litigation over the water crisis with Eastman and West Virginia American. This includes not just the “Good” case that was set for trial, but a variety of other cases that were pending in state and federal courts.
At least one case has already been identified as not being part of the settlement, one brought on behalf of the West Virginia Hospitality Association. People who fall within the definition of the class will also have an opportunity later to “opt-out” of the settlement. But the term sheets also indicate that, if enough people do that, the defendants can decide to pull out of the deal. For example, if more than 1,100 claimants opt-out of the Eastman settlement, Eastman can terminate its obligation to pay. West Virginia American can back out of the deal if either 900 individuals or 250 businesses opt-out of the settlement.
Over the weekend, we had another story in the Gazette-Mail outlining some of the findings of the U.S. Chemical Safety Board’s report on the Freedom Industries chemical spill and the ensuing regional drinking water crisis.
That story made a brief mention of some comments from Andrew Whelton, the Purdue University engineer who led the Tomblin administratin’s WVTAP team, investigating the impacts of the spill:
Purdue University water system engineer Andrew Whelton led the WVTAP program for the Tomblin administration and was surprised at both the way the CSB selectively cited his work, and at the fact that the board’s report did not cite any of the numerous peer-reviewed publications about the spill that have been written by academic experts over the past two years. Many of those scientific papers warned of spill-related problems and dangers that government officials had insisted did not exist, and other papers clearly outlined gaps in how the nation’s drinking water system is protected from such incidents.
“Not citing work conducted by the multitude of universities that participated in the response and recovery seems deliberate,” Whelton said last week, after a preliminary review of the board report.
“I would be interested in the reasons why work conducted by academic institutions did not rise to the level of citation in such an investigation,” Whelton added. “Several organizations conducted testing to better understand the chemical properties and exposures. Others examined wastewater treatment plant processes and the fate of chemicals in the environment and wastewater systems.”
Since then, though, Andy Whelton has submitted a much more thorough examination of the CSB’s report, along with a demand that the agency “immediately retract your report and remove it from circulation until it is corrected.” Now, putting aside the problems with a government agency removing a public document — even a flawed one — from circulation — it’s well worth looking at some of the major points Andy Whelton makes here:
— CSB has claimed the 4-MCHM level entering the water treatment plant at 5pm on January 9 was 13.7 ppm. CSB provides absolutely no source for this information and this level was never made public by the State of West Virginia or WVAW. In fact, when I was part of WVTAP the state of West Virginia told us the data they jointly collected with WVAW was all that was available for 4-MCHM levels.
— At no point did CSB acknowledge that the CDC screening level did not consider inhalation exposure. This is highly disturbing and perpetuates a falsehood lacking scientific basis.
— How is the discovery by WVTAP that 4-MCHM was still present in resident homes one month after the spill not a major event on the timeline? This should be added.
— CSB has deliberately mislead the public with the following statement and this is shocking: “The yearlong study, completed in June 2016, evaluated the toxicity of MCHM and concluded that exposure at or below the MCHM Screening level of 1 ppm is not considered not likely to be associated with any adverse health effects.” While the CSB cites the National Toxicology Program final update posted online, CSB fails to point out that the NTP studies did not evaluate inhalation exposures. There is NO data for the long-term health impacts caused by inhalation exposures. National Toxicology Program admitted publicly their data do not apply to inhalation exposures. The omission of this information by CSB is disturbing and must be addressed in the revised CSB report.
— CSB does not indicate they reviewed drinking water customer complaint records from WVAW, yet makes the claim that “WVAW did not receive any complaints of licorice-smelling water from customers prior to becoming aware of the release…”
— CSB shall more clearly define what liquids were spilled, what they fully consisted of, what chemicals entered the water supply, were distributed to residents, and what research was conducted to identify and evaluate the fate and toxicity of these chemicals. CSB’s inconsistent approach in their report implies they do not understand what chemicals were spilled, where they went, what residents were exposed to, and what different agencies did based on requests from other agencies, among other deficiencies.
— Why wasn’t any of the plumbing system flushing guidance discussed? How is this not a critical aspect of the chemical exposures residents experienced? There was no scientific justification provided for this deliberate omission. In light of the disclosure by CSB that the highest MCHM level experienced was over 4 ppm, this makes the inhalation exposure a lot more significant.
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.
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.
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.
1 — How did the stuff get out of the tank — While the CSB had discussed several times before (see here and here) its theory for what happened, this draft report offers more details and makes a more compelling argument that the leak from Tank 396 was caused by what’s called “pitting corrosion” that created two holes (approximately 0.75 and 0.4 inches in diameter). The draft report explains:
Corrosion is an electrochemical reaction between a metal alloy and its environment, and can lead to degradation of structures. It can attack materials uniformly, degrading metals at an even rate across the surface, known as general corrosion. However, pitting corrosion is confined to a point or small area that takes the form of cavities, some of which can perforate through the thickness of the metal. Pitting corrosion can be difficult to detect because it is highly localized and the rate at which the depth of the pit increases is often greater than the width.
In this instance:
CSB retained a tank expert to conduct a corrosion rate analysis based on the observed pitting and the data available during the incident investigation. Although it was recognized that the corrosion rates were variable and unknown, the best reasonable assumption at the time of the study was that the corrosion rate was constant over the life of tank 396 at 12.3 mils per year (mpy, or thousandths of an inch per year, a common designation for corrosion rate) with the corrosion rate bounded between 10 and 15 mpy.
2 — How long did the spill last — While the CSB team says it’s impossible to know the exact mechanism for the leak from the tank or how long the leak was going on, their draft report does offer and estimate — 24 hours — in this section, which describes one of the ways that those two small holes in the tank might have ended up leaking:
A frost heaving effect, caused by extremely low temperatures, may have contributed to the sudden release of MCHM from the bottom of tank 396. The severe cold weather in early January 2014, referred to as a “polar vortex,” brought bitterly cold temperatures to the Midwest, South and much of the eastern and northeastern United States. The Charleston area set a new minimum temperature record of -3°F just 2 days before leak discovery.
Frost heaving occurs when the freezing of water-saturated soil causes the deformation and upward thrust of the ground surface. When water freezes, it expands. This expansion is often referred to as frost jacking or frost heaving. Freezing weather prevalent at that time of year caused the frost heaving of the soil underneath the tank, which possibly led to the flexure or movement of the tank bottom in the vicinity of the holes. The movement provided enough bending on the bottom plates to possibly dislodge the PVA material or other debris blocking flow through the bottom holes.
Once the material became dislodged, the pressure from the filled MCHM tank may have enabled the sudden gushing flow of liquid from the tank bottom, which continued at a maximum flow rate of about 11.5 gallons per minute (GPM). Approximately 10,000 gallons of MCHM had leaked from tank 396 prior to leak discovery. Based on a CSB commissioned calculation of the flow rate, a sudden tank leak would have resulted in a flow loss of 1 inch per 17 minutes. At this rate, the tank contents would have leaked through the tank holes and into the ground for approximately 24 hours (1 day) before the leak was detected.
CSB concluded that tank 396 failed due to corrosion, which ultimately resulted from poor tank maintenance and inspections not in accordance with acceptable industry standards and best practices. Despite the freezing weather condition, which may have played a role in initiating the tank leak, the lack of rigorous tank inspections by ERT and Freedom directly contributed to the MCHM leak.
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).
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).
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.
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.
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: