Upward of 7,500 gallons of crude 4-methylcyclohexanementhanol leaked from a Freedom Industries storage facility into the Elk River on Jan. 9, tainting the drinking water of more than 300,000 West Virginia and southern Ohio residents. Freedom Industries is a chemical distributor with the coal industry, and the chemical initially announced to be leaked was used to wash coal ash from coal prior to burning for metallurgical purposes.
The incident ultimately was the result of a “loophole” or oversight in West Virginia’s environmental protection laws. While safety regulations required that the actual facility should be inspected (it was last inspected in 1991), there was no expectation of inspection for the chemicals the facility held — as Freedom Industries has no role in the actual fabrication of the chemical. Due to this, no one actually knew what was released into the Kanawha River system during the leak, and no one is sure how dangerous it is.
What has proven to be more shocking to many is the fact that Freedom Industries knew there was a second chemical to have leaked from the storage facility and only chose to disclose the information after the West Virginia Department of Environmental Protection ordered the disclosure on Jan. 22 — 13 days after the spill.
Freedom Industries’ excuse for the failure to admit to the existence of the second chemical — PPH, aa mixture of polyglycol ethers — is simple; Freedom Industries considers its PPH formulation proprietary and did not want to disclose trade secrets.
While it can be argued that Freedom Industries was negligent, it can be equally argued that regulatory confusion was also to blame.
“[It] seems to me that storm water management is an area where regulation is somewhat confused and environmental problems loom,” said David Mandelbaum, an adjunct professor at Temple University’s James E. Beard School of Law, to MintPress. “We have federal requirements for managing storm water quality under the NPDES (National Pollutant Discharge Elimination System) program. Nevertheless, some states regulate quality for all discharges because they do not have the same jurisdictional threshold for regulated waters.
“Given that we expect the incidence of significant rain events to be increasing in North America and given an existing infrastructure of basically piping storm water into a stream, our development and our climate make many areas significantly more prone to floods. Industrial areas, refineries, power plants, sewage treatment plants, and ports are all conventionally located on waterways. Some large cities are embarked on very creative storm water management efforts; not so much in smaller communities higher in the watershed.”
“Corporate shenanigans and safety shortcomings”
This confusion has led to a situation where glaring oversights in responsibility have led to disaster. MCHM and PPH are but two of the tens of thousands of chemicals that are publicly unknown, under the 1976 Toxic Substances Control Act, which “allowed this chemical to be in widespread use for decades without even the most basic information … made available to EPA, West Virginia, much less the public,” said Richard Denison, a senior scientist at the Environmental Defense Fund, to Politico.
While this recent bout of corporate shenanigans and safety shortcomings seem to be a rare random occurrence, it’s anything but. Freedom Industries’ Elk River spill was the third major chemical accident in the Kanawha Valley in the last five years. In 2008, a Bayer CropScience facility in Institute, W.V. exploded, killing two. In 2010, toxic gases leaked from a DuPont facility in Belle.
A rudimentary search of reported chemical spills, as conducted by Bloomberg Businessweek, shows CBS News finding more than 6,500 domestic incidents of industrial spills, leaks, fires and other accidents in 2010 alone, averaging about 18 per day. Among a data sampling of 76 American publicly traded companies that self-report industrial accidents, Bloomberg tracked 3,885 total spills in 2013, with ten companies self-reporting over 100 spills each. In 2011, Bloomberg, upon analysis of the U.S. Environmental Protection Agency’s Toxic Release Inventory, found that 1,374 separate facilities leaked 287 chemicals at a combined rate of 194 million pounds discharged into the land, air and water.
Taken altogether and considering what has not been reported, this represents a grave failing of oversight. This phenomenon represents a curious aspect of the American political system, in which — either by accident or design — corporate or private interests tend to influence how and when environmental and safety regulations are enforced.
“The Halliburton Loophole”
Take, for example, the Halliburton Loophole. In 2005, then-Vice President Dick Cheney — who once served as the chairman and CEO of Halliburton Industries — a major hydraulic fracturing (fracking) company — chaired George W. Bush’s Energy Policy Task Force. In that position, he recommended that fracking operations be exempted from federal oversight under the Safe Drinking Water Act of 1974.
The Energy Policy Act of 2005 not only prevents fracking operations from being restricted or penalized for non-compliance with the Safe Drinking Water Act, it also modifies the Clean Water Act to allow exempted runoff water discharges from oil and gas sites. This, in effect, makes water regulation in regards to oil and gas drilling a state prerogative, in which the state may or may not have a high incentive to get involved.
The oil and gas industries have exemptions from the Water Pollution Control Act, the Clean Air Act, the National Environmental Policy Act and the Resource Conservation and Recovery Act. The EPA’s Toxic Release Inventory has no mandated reporting from the oil and gas industries. Effectively, the federal government has relatively little say in regards to regulatory compliance toward the fracking industry.
This is problematic in the sense that different states use different research and different calculations to argue their points of view. For example, the University of Texas – Arlington published a research paper last July finding that due to a lowering of the water table and industrial accidents, such as faulty gas well casings, there is a correlative link between fracking and water quality in aquifers along fracking sites. This research is supported by independent findings from Cornell and Duke Universities.
However, a November study from the University of Cincinnati on Carroll County, Ohio, residential wells found no correlation or detectable impact on water quality. Without a single accepted standard for testing and standards enforcement, the possibility of confusion arise. A congressional investigation has found that from 2005 to 2009, more than 32 million gallons of diesel fuel have been injected into the ground as a fracking chemical in 19 states. This is illegal and in clear violation of the Energy Policy Act.
Despite this, the fracking industry has provided documentation to bolster its claims that the fracking process is safe. This is, in part, due to the fact that some drilling companies have yet to disclose the component list of their fracking fluid.
Selective regulating
These loopholes and exemptions are not unique to the oil and gas industries. For example, last year, the Food and Drug Administration instituted new rules that required farmers and food producers to modify their practices in an attempt to prevent foodborne disease outbreaks. However, an amendment proposed by Sen. Jon Tester — which was meant to exempt farms that sell less than $25,000 in food annually or less than $500,000 within its own state — would, in effect, render the rules non-enforceable for more than 80 percent of all farms and food producers. The Centers for Disease Control and Prevention estimates that one in every six Americans will contract a food-borne illness, leading to 128,000 hospitalizations and 3,000 deaths.
The amendment was inspired by the sticker price of the increased inspections, which could reach $1.4 billion over the next five years. In light of sequestration, the number of FDA inspectors have decreased and it is generally felt that there are not enough staff to effectively launch such an additional inspection burden.
The 2013 West Chemical and Fertilizer plant explosion, which killed at least 15 people, avoided inspection under a “streamlined prevention program” with the Occupational Safety and Health Administration and operated under the Environmental Protection Agency. The plant, due to the exemption, was not inspected since 1985. This exemption was due to the fact that the facility sold more than half of its fertilizers to farmers.
Finally, the Huffington Post ran a report last August pointing out that Florida Gov. Rick Scott — under a radically-trimmed state Department of Environmental Protection, which saw the layoff of 58 employees — collected 70 percent less in fines from environmental violators in 2012 and opened half as many environmental investigation than in the previous year. In a state that is suffering from a budget deficit, this decline in activity — coupled with more than 300 environmental rules that were repealed under Scott — indicates a conspiracy in which politics have taken the upper hand to safety.
Ultimately, all of this represents a choice. Be it protecting the jobs the coal industry creates in West Virginia, overlooking nuclear regulations toward growing the share of clean energy in the U.S. or giving shale oil drillers a free pass to lower the nation’s dependency on foreign gas, these choices represent a trade-off; per every concession that is made to industry, a potential disaster is primed. The need to balance the community’s financial health and its personal health is a fine balancing act that is difficult to master.
But in the end, the truest tragedy lies in the fact that — in considering the thousands of industrial accidents that happen per year in which the public knows little about — most could be prevented with due diligence.