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

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?

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.

W.Va. logging company fined $42,000 by OSHA

A West Virginia logging company, Switchback Timber Inc., of Bradley, has been fined $42,000 by the U.S. Occupational Safety and Health Administration for one willful, one repeat, 13 serious and three other-than-serious safety violations.

In a press release, OSHA said that agency officials began an inspection on April 5, after a complaint alleged multiple safety hazards at the worksite, and as part of the agency’s local emphasis program for logging, Switchback Timber did not have all onsite employees trained in first-aid and CPR training, resulting in the willful citation. The company was cited for this same violation in 2013. According to OSHA:

The repeat citation involved a lack of proper protective footwear for employees operating chainsaws. The serious violations included the company’s failure to:

— Provide leg and face protection.

–Ensure workers wore hardhats when outside machine cabs.

— Ensure employees used seatbelts while operating a bulldozer.

— Fully enclose a bulldozer to prevent the operator from struck-by hazards.

–Ensure machines made for only one operator did not have multiple passengers.

–The company was also cited for not having onsite operator’s manual for a bulldozer, and not providing employee training and monthly health and safety meetings.

Prentice Cline, OSHA’s area director in Charleston, said:

CPR and first-aid training were critical in this case because Switchback Timber employees were working in a remote area as far as 10 miles from the nearest medical response area. With workers exposed to severe injuries and struck-by hazards, this training can mean the difference between life and death. This company was well aware of OSHA safety requirements, but failed to comply, which is unacceptable and will not be tolerated.

 

After 40 years, EPA to write spill prevention rule

Coal Water Pollution

There’s some significant news out this week, with the U.S. Environmental Protection Agency agreeing in a settlement with citizen groups to write a major new chemical plant safety rule. Here’s what the Natural Resources Defense Council said in a press release:

The Environmental Protection Agency will put in place new safeguards to help protect communities from dangerous chemical spills at tens of thousands of industrial facilities nationwide, under the terms of a legal settlement approved by a federal district court in New York. The agreement is meant to strengthen protections as called for by Congress more than four decades ago.

You can read the legal settlement here.

Last July, Environmental Justice Health Alliance for Chemical Policy Reform (EJHA), People Concerned About Chemical Safety, and the NRDC sued EPA alleging that the agency had failed to prevent hazardous substance spills from industrial facilities, including above-ground storage tanks. NRDC explained:

The settlement between the groups and EPA, approved by the federal district court for the Southern District of New York, requires EPA to begin a rulemaking process immediately and to finalize spill prevention rules within three and a half years.  The forthcoming protections will cover over 350 hazardous chemicals, and will apply broadly to tens of thousands of industrial facilities across the country.

There are thousands of hazardous substance spills each year from industrial facilities that are not subject to any hazardous substance spill prevention rules, according to United States Coast Guard data from the last ten years.  Chemicals released in industrial spills can contaminate waterways, and exposure to these substances can be dangerous, and in some instances, fatal. 

Pam Nixon, spokeswoman for PCACS, said:

It is unfortunate that it took a lawsuit to get EPA to agree to set spill prevention rules.  Uniform federal safeguards for above-ground storage tanks and secondary containment will better protect not only public drinking water systems, but also the groundwater for households using private wells.

But keep in mind, as explained in a legal filing in the case:

The chemical involved in the Freedom Industries spill is not listed as a hazardous substance under the Clean Water Act … and thus would not be covered under the hazardous-substance regulations plaintiffs seek in this case. But the Freedom industries spill brought to national attention the broader threat posed by the lack of spill-prevention regulations for chemical storage facilities like above-ground storage tanks.

Continue reading…

Gas Line Explosion

This image provided by the West Virginia State Police shows a fireball erupting across Interstate 77 from a gas line explosion in Sissonville, W. Va.,Tuesday Dec. 11, 2012.   (AP Photo/West Virginia State Police)

We haven’t told you much lately about the commission put together by Gov. Earl Ray Tomblin to study the safety and health problems that have come with the boom in natural gas production in West Virginia’s Marcellus Shale region.

Readers may recall that Gov. Tomblin called for a closer examination of the issue as part of his 2015 State of the State speech a year ago:

For generations, West Virginia has been one of our nation’s leading energy producing states. As we continue to explore opportunities to diversify our state’s energy portfolio, we must ensure the safety of hardworking West Virginians at drilling sites, production facilities and pipelines across the state. That’s why I am requesting a study to determine how we can best protect workers at natural gas operations. We must ensure our workers have the proper training and skills to do their jobs in the most effective way possible and return home safely. Workforce safety must be the expectation for businesses operating in West Virginia, not an afterthought.

We reported on the commission’s first meeting back in August, but haven’t checked back in with them since (largely because of the flurry of activity covering the Don Blankenship trial).

Under the governor’s executive order, the commission was to “prepare and issue a final report” by Nov. 16, 2015. We haven’t seen a final report yet. Maybe we’ll hear something tomorrow night from the governor, but at the least, I’m told that the final report should be ready later this week.

Until then, what we do have are the minutes of the commission’s last meeting on Nov. 12, which include a summary of the panel’s recommendations to the governor. The recommendations focus first on issues related to emergency response when incidents occur at oil and gas operations. For example, the commission recommended:

— The governor’s office should develop legislation to require that drilling and pipeline construction activities are subject to the state’s 15-minute notification law (W.Va. Code 15-5B-3a(b)(1)). Provisions may apply to fires, explosions, and similar emergency events (confirmed emergencies) at drilling and pipeline construction sites (with greater than 3-inch lines). Provisions also should consider situations when gaps in communications present a challenge to meet the notification time limit.

Under the direction of the governor’s office, the state should establish a database to track incidents and accidents at an associated with natural gas and hazardous liquid drilling and pipeline sites statewide. The state will monitor the database to look for trends that might require additional efforts to mitigate future issues. The W.Va. Division of Homeland Security & Emergency Management (WVDHSEM) also should map out, review, and affirm “natural gas and hazardous liquid incident” notification/communications protocols within state government.

The West Virginia Fire Marshal will conduct an evaluation to assess the need (current and future) for fire/emergency responder training and equipment. Presently, county fire/emergency responders benefit from several sources, including voluntary support from oil and natural gas companies. Consideration of any new fee related to “fire service” for emergency responders should be done prodently on a case-by-case basis at the local level.

Continue reading…

Senate confirms new CSB chair, member

Important news from last week about the U.S. Chemical Safety Board. It’s there in the list of Senate confirmations:

Chemical Safety and Hazard Investigation Board

Kristen Marie Kulinowski, of New York, to be a Member of the Chemical Safety and Hazard Investigation Board for a term of five years.

sutherlandVanessa Lorraine Allen Sutherland, of Virginia (right), to be Chairperson of the Chemical Safety and Hazard Investigation Board for a term of five years.

Board member Rick Engler (who has been acting as chair of the panel) issued this statement:

I congratulate Vanessa Sutherland on her Senate confirmation as the new Chairperson of the U.S. Chemical Safety Board (CSB) and Dr. Kristen Kulinowski on her Senate confirmation as CSB Board Member.   I look forward to working closely with them on the important work of the CSB to help prevent chemical incidents.  Both bring broad expertise and experience to their new positions.  Both were confirmed on August 6.

Let’s hope that somehow, someway, this action will get the board back on track to serve its vital function for workers and communities.

Plant Explosion

Fireman battle a fire at AL Solutions after an explosion rocked the plant Thursday, Dec. 9, 2010 in New Cumberland, W.Va. Three workers were killed. (AP Photo/The Review, Michael D. McElwain)

The new leadership over at the U.S. Chemical Safety Board does a lot of patting itself on the back about what it says is “a new emphasis on public transparency and engagement.” And those who continue to criticize the management of the board under now-ousted Chairman Rafael Moure-Eraso love to point to how they believe Moure-Eraso was too secretive about some things the board was doing.

And in fact, the new leadership’s plan to have regular, open-to-the-public business meetings provides an opportunity for lots of transparency, with public updates on investigations, and open discussion among board members and various other stakeholders about important worker and community safety issues.

But if the public isn’t able to see the important materials that board members are basing their discussions and votes on, that’s not really transparency.

The most notable example from yesterday’s board meeting was, as reported in our Charleston Gazette-Mail story,  was the refusal to make public the 42-page report detailing the urgent recommendations from CSB investigators for DuPont’s La Porte, Texas, plant.

There was another example, though, buried in some of the documents about the board meeting — and it’s an important one for West Virginia. The CSB’s list of “notation votes” (that is, votes not discussed or taken in public meetings) includes one that indicates the board considering changing the status of the AL Solutions response to its recommendations following an investigation of the December 2010 fire and explosion that killed three workers at the company’s plant in New Cumberland, Hancock County.

Continue reading…

Will the Chemical Safety Board survive?

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.

Continue reading…

Judge presses for deal on chemical spill records

Coal Water Pollution

The former site of Freedom Industries, shown in an Associated Press file photo take just after the January 2014 chemical spill. The tanks have since been removed.

We learned last week of some potential bombshell disclosures in the documents filed in the chemical spill case that’s being pursued against West Virginia American Water Co. and Eastman Chemical:

Eastman Chemical Co. did not properly caution Freedom Industries about the potential for the chemical Crude MCHM to corrode Freedom’s storage tanks prior to Freedom’s January 2014 leak that contaminated the Kanawha Valley region’s drinking water supply, lawyers for area residents allege in new court filings this week.

Lawyers for residents also alleged in their court filings that then-Freedom Industries official Dennis Farrell tried unsuccessfully on the morning of the leak to convince a West Virginia American Water Co. official to turn off the intake pumps on its Elk River treatment plant, located just 1.5 miles downstream from the site of the Freedom facility.

But we also know that key documents that could tell us more about all of this — and about the story of a long-forgotten intake West Virginia American originally had above the Freedom industrial site — remain under seal, pending a final ruling on their status by U.S. District Judge John T. Copenhaver.

On Friday, Judge Copenhaver pressed the parties in the litigation to come up with a deal about those records. In a two-page order, the judge said:

That counsel for all parties and any public document custodians be, and hereby are, directed to meet and confer on or before July 15, 2015, toward the end of reaching an agreement that would result in spreading on the public record the documents presently lodged with the court under seal as presented for filing on May 18, 2015, and May 28, 2015, and July 6, 2015.

Continue reading…