Freedom from regulation: Lax government oversight and possible private-sector negligence contribute to West Virginia water woes

January 15, 2014

By Matthew E. Milliken
Jan. 15, 2014

Slowly, residents of West Virginia are having their potable water restored.

As previously noted, about 300,000 people in nine West Virginia counties were ordered not to use their water for anything but flushing toilets (and fighting fires) on Thursday evening.

There have been no documented deaths after about 7,500 gallons of methylcyclohexene methanol or 4-methylcyclohexanemethanol, a chemical used to clean coal, contaminated the public water supply. And by Tuesday, more than 35,000 customers had been given the go-ahead to start flushing the poison from their pipes by running the faucets.

The flushing process apparently involves running taps for 20 minutes and replacing water filters. West Virginia American Water announced that its customers would be credited for 1,000 gallons, which it estimated would be enough to cleanse the pipes of a typical family home. (The average residential customer uses 3,000 gallons a month, the company said.)

Still, the bulk of the affected customers will have to continue to rely on bottled water for most uses (again, toilet flushing and firefighting excepted). And it seems that many schools and businesses in the contaminated area will remain closed Wednesday. A number of these have been shuttered since Friday.

I wrote this last week:

[A]ll too often, a deep dig into these incidents reveals safety inspection and permitting processes that are lax or underfunded. Frequently, there’s a pattern of penalties that either are not enforced or are too minuscule to dissuade dangerous conditions.

This wasn’t really a prediction, simply an observation based on an oft-repeated sequence. True to form, this very familiar blueprint seems to apply to the West Virginia spill.

Here’s how Trip Gabriel and Coral Davenport began a report in The New York Times on Monday:

The accidents kept coming, and so did the calls for a plan to improve West Virginia’s chemical safety regulations.

Last week’s massive chemical spill into West Virginia’s Elk River was the region’s third major chemical accident in five years. It came after two investigations by the federal Chemical Safety Board in the Kanawha Valley, also known dryly as Chemical Valley. And it came on the heels of repeated recommendations from federal regulators and a local environmental advocacy group that the state adopt rules embraced in other communities to safeguard chemicals.

All of those recommendations died a quiet death with barely any consideration by state and local lawmakers, federal regulators and local environmental groups said.

“We are so desperate for jobs in West Virginia, we don’t want to do anything that pushes industry out,” said Maya Nye, president of People Concerned About Chemical Safety, a citizens group that formed after a 2008 explosion and fire that killed two workers at the Bayer CropScience plant in Institute, W.Va.

The U.S. Chemical Safety Board, an independent federal agency, is investigating the Freedom Industries spill that resulted in the restrictions on using tap water. But if history is any guide, we could have a new president before we have the final results from the board’s investigation.

In March of last year, the Center for Public Integrity’s Jim Morris and Chris Hamby found that the board had 13 incomplete investigations. One was more than five years old. Two involved deadly explosions at oil facilities, both from April 2010 — one at a Washington state facility, which killed seven, and the infamous Deepwater Horizon disaster, which killed 11 workers and fouled the Gulf of Mexico. Morris and Hamby wrote:

Chairman Rafael Moure-Eraso and managing director Daniel Horowitz say the board, which has a $10.55 million annual budget, is stretched thin and must decide which of the 200 or so “high-consequence” accidents that take place in the United States each year merit its attention.

“We’ve made innumerable proposals over the years … pointing out the significant discrepancy between the number of serious accidents and the ones that we can handle from a practical standpoint,” Horowitz said in an interview with the Center. “We’ve asked for a Houston office. We’ve asked for additional investigators for many years.”

Congress, he said, has been unwilling to come up with more money.

Congress isn’t the only organization that’s ignored the Chemical Safety Board. Remember those investigations in West Virginia that the Times mentioned? In a 2010 report on the deadly Bayer accident, the board recommended new safety plans be adopted by the state legislature. The board renewed those recommendations after a toxic gas release killed a worker at a DuPont plant in Belle, W.Va. But the legislature, which has been under continuous Democratic control for years, never acted.

That’s unfortunate. It turns out that the facility that contaminated the Elk River hadn’t been inspected in more than 20 years; it appears to have been exempt from inspection because chemicals were only stored on site, not produced there.

Even so, the facility’s owner, Freedom Industries, apparently knew of a problem. Danny Jones, the mayor of Charleston, W.Va., gave a frankly jaw-dropping interview to NPR’s Melissa Block on Tuesday:

What puzzled me about this was the three tanks were right along the river, and there was a wall around them, and … there were holes in the wall — the wall had been breached. And the company had just been sold, and as a condition of the company being sold, there was a million dollars put away to repair the wall.

And if that’s true, and I believe it to be, they knew. I believe what we had here was a small group of renegades that were operating, and I’m not even sure that they cared about what happened to the public.

Jones said that he’d asked Gary Southern, the president of Freedom Industries, how chemicals had escaped his facility and contaminated the river. Southern answered that he didn’t know, Jones said. But according to the mayor, Southern then conceded that he’d been aware of a deficiency in the retaining wall.

The Chemical Safety Board isn’t the only organization looking into the spill. The federal attorney for the state of West Virginia has started a probe, and Jones expressed confidence that any criminal acts by Freedom or its operators or employees would be brought to account by the prosecutor.

Let’s hope that’s the case. But even if someone is sent to prison, will it be enough to deter future accidents?

The free market has brought many boons to American society, but it is not perfect. The accident in West Virginia appears to have occurred in circumstances ideally suited to fostering disasters: A lax regulatory environment, a business controlled by possibly negligent or even reckless management, and a marketplace that doesn’t incentivize customers to respond to — or even provide for customers to be aware of — the potential to poison a major source of drinking water.

There clearly can be a point at which, as conservatives frequently claim, government regulation is too oppressive and intrusive. But given the recent news out of West Virginia, I’m hard pressed to believe that environmental regulation is quite the bogeyman many on the right say.

One Response to “Freedom from regulation: Lax government oversight and possible private-sector negligence contribute to West Virginia water woes”

  1. robakers Says:

    As a resident who is directly affected by the water issue that you have documented, I feel compelled to offer some comments for you and your readership.

    I think to describe this even as a crisis, is over stating the issue. There is no crisis here, it is an inconvenience at worst. Everyone has plenty of drinking water, no one is in danger of dying of thirst. The sewer systems are operating normally and every one has fire protection. This is not a crisis.

    Secondly, the chemical you correctly identified is not on the EPA’s list of toxic materials. It has no hazardous identification number, I think it is a over statement to describe it as a poison. Do I want to drink it, NO! But to be clear, it is not toxic. Had it been lethal, I have no doubt that the water company would have shut off the water at the source, immediately.

    I know several of the key people who are directing the State’s response to this event. I know from experience that they are honest individuals who are actually attempting to do the right thing. Is it possible that they are not acting in the best interest of the people? Of course, But from the comments of my close friends behind the scenes, they are doing the right thing.

    I do expect that the company responsible for the release to be prosecuted to the fullest extent of the law. I also believe that the company in question was not investigated more thoroughly because they did not handle a substance that was considered hazardous.

    Finally, this state is based on the coal industry. In the past six years, the Federal Government has done more to muddy the water and tie the hands of the industry than the state legislature could ever do. The coal industry is essential to keeping the lights on in our nation. To date, it cannot be replaced by any other form of energy and it does bring good jobs to the state.

    I think you did a fairly good job of describing the event. I thank you for telling the world about the great state of West Virginia.

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