Responding to the Freedom Industries chemical spill
The former head of the Putnam County Public Service District, Fred Stottlemeyer, has released a document explaining how West Virginia American Water could construct a reservoir that would allow the utility to shut off its intake for 16-28 days in the event of another chemical spill.
The Putnam Public Service District has a similar, 560 million gallon reservoir in place, which stores a three to six month supply of water for the system.
Mr. Stottlemeyer’s proposal would involve building an 800 million gallon reservoir (65 acres) in Coonskin Park. He estimates that this would cost $25 to $35 million. Because the Public Service Commission would presumably allow West Virginia American Water to recover this cost from its water customers, this would result in a monthly increase to water bills of approximately $1.35.
Note that this contrasts sharply with the $125-$188 million price tag for a 5-day water supply reservoir (see p. 283 here) that WV American Water presented to the legislature this past year.
One aspect of the new above ground storage tank law, also known as Senate Bill 373 in the 2014 Legislative session, is having a big impact on our state, even before the WV DEP creates rules for implementing the law. The law requires that all owners of above ground storage tanks above a certain size register those tanks with the DEP. The registration period started June 10 and will end on October 1, when all of these tanks must be registered.
The Associated Press reports that 2200 tanks have already been registered. Here in Calhoun County, where I live, oil and gas operators have been removing tanks that hadn’t been in use for years at or near old oil and gas wells so that they wouldn’t have to register tanks that were no longer in operation. These removals, and the proper steam cleaning of salvaged tanks, have been a real business opportunity for at least one oil and gas service business in Calhoun.
So the new regulation has already eliminated threats to our state’s water, removed eyesores from our landscape, created new business, and generated salvage material for reuse and salvage. SB 373 was passed in response to the chemical spill in the Kanawha Valley, but its positive impact is being felt statewide.
SB 373 requires the Bureau of Public Health to develop rules for water utility sourcewater protection planning. Unlike the DEP, the Bureau of Public Health has not chosen to publicize its role in implementing SB 373. The Bureau of Public Health published their draft rule on July 1st, with public comment due July 31st (comments can be submitted to firstname.lastname@example.org and email@example.com). There will not be a public hearing for these rules.
Many of the details about what utilities need to include in their sourcewater protection plan were described in detail by SB 373, including:
(1) A contingency plan that documents each public water utility’s planned response to contamination of its public surface water supply source …
(2) An examination and analysis of the public water system’s ability to isolate or divert contaminated waters from its surface water intake or groundwater supply, and the amount of raw water storage capacity for the public water system’s plant
(3) An examination and analysis of the public water system’s existing ability to switch to an alternative water source or intake in the event of contamination of its primary water source
(4) An analysis and examination of the public water system’s existing ability to close its water intake in the event the system is advised that its primary water source has become contaminated due to a spill or release into a stream, and the duration of time it can keep that water intake closed without creating a public
health emergency …
(6) An analysis and examination of the public water system’s existing available storage capacity on its system, how its available storage capacity compares to the public water system’s normal daily usage and whether the public water system’s existing available storage capacity can be effectively utilized to minimize the threat of contamination to its system
(7)The calculated level of unaccounted for water experienced by the public water system for each surface water intake …
(8) A list of the potential sources of significant contamination contained within the zone of critical concern as provided by the Department of Environmental Protection, the Bureau for Public Health and the Division of Homeland Security and Emergency Management …
(9) If the public water utility’s water supply plant is served by a single-source intake to a surface water source of supply or a surface water influenced source of supply, the submitted plan shall also include an examination and analysis of the technical and economic feasibility of each of the following options to provide continued safe and reliable public water service in the event its primary source of supply is detrimentally affected by contamination, release, spill event or other reason:
(A)Constructing or establishing a secondary or backup intake…
(B)Constructing additional raw water storage capacity and/or treated water storage capacity, to provide at least two days of system storage,…
(C) Creating or constructing interconnections between the public water system with other plants on the public water utility system or another public water system…
(D) Any other alternative …
(E) If one or more alternatives set forth in paragraphs (A) through (D) of this subdivision is determined to be technologically or economically feasible, the public water utility shall submit an analysis of the comparative costs, risks and benefits of implementing each of the described alternatives
(10) A management plan that identifies specific activities that will be pursued by the public water utility, in cooperation and in concert with the Bureau for Public Health, local health departments, local emergency responders, local emergency planning committee, and other state, county or local agencies and organizations to protect its source water supply from contamination …
(11) A communications plan that documents the manner in which the public water utility, working in concert with state and local emergency response agencies, shall notify the local health agencies and the public of the initial spill or contamination event and provide updated information related to any contamination or impairment of the source water supply or the system’s drinking water supply,…
(12) A complete and comprehensive list of the potential sources of significant contamination contained within the zone of critical concern …
(13) An examination of the technical and economic feasibility of implementing an early warning monitoring system
In the Bureau of Public Health’s draft rule, two of the most important details of implementation were left vague. Regarding the role of public input in creating sourcewater protection plans, the draft rule merely states that, “[e]fforts shall be made by the water utility to inform and engage the public, local governments, local emergency planners, local health departments and affected residents at all levels of the development of the protection plan.” There is also nothing in the draft rules that indicate what criteria the Bureau of Public Health will use in reviewing the plans to determine whether the utility has provided a sufficient and accurate analysis.
These BPH omissions would, of course, be less troubling if we had received any indication over the past six months that WV American Water is actually interested in engaging productively with the public and/or changing any of its practices or emergency planning protocols in response to the water crisis. Instead, it looks like the Bureau of Public Health is setting itself up to enable WV American Water to submit a plan that complies with the letter of SB 373 but arrives at the conclusion that it is not economically feasible to make any meaningful changes.
For more than six months, we have heard regulators, politicians and the media claiming that the contamination of WV American Water Company’s water started on Jan. 9, 2014 when large amounts of Freedom Industries’ MCHM/PPH were first noticed leaking into the Elk River. This past week, US Chemical Safety Board investigator Johnnie Banks reviewed the current status of the CSB’s investigation into the spill and revealed that at least one of the Freedom Industries tanks had been leaking the chemicals before Jan. 9.
Mr. Banks used a Power Point presentation (the slides on the Freedom spill begin on slide 39) at the public meeting last Wednesday in Charleston. Here is the relevant slide, pointing to leaks in two tanks that had been leaking before January 9:
•Tank 397, another tank also containing the MCHM and PPH mixture, had a hole penetrating the bottom of the tank similar to the holes identified in Tank 396, the tank involved in the release.
•Due to extensive corrosion the CSB suspects that the leaks existed prior to January 9th
Here is the way Ken Ward described the issue in his story in the Charleston Gazette:
Citing “extensive corrosion,” federal investigators said an MCHM chemical storage tank at the Freedom Industries site along the Elk River likely was leaking prior to the Jan. 9 spill that contaminated the drinking water for 300,000 people across the region.
U.S. Chemical Safety Board investigators said Wednesday they aren’t sure how long Tank 396 could have been leaking, or if material from it was contained in soil, or if additional chemicals from the tank made their way into the river prior to the day state inspectors discovered a spill while investigating a citizen complaint of a licorice-like odor in the area.
Johnnie Banks, the team leader on the CSB investigation of the Freedom spill, said agency officials are collecting soil samples and performing additional analysis that might help answer those questions.
The day after Mr. Banks made his presentation in Charleston, the Gazette ran a story by Lydia Nuzum that reported impacts of a possible spill on January 6, three days before the blowout on the banks of the Elk River.
Karan Ireland first noticed a strange smell in her upstairs shower on Jan. 6, but didn’t associate it with licorice, or, at that time, with crude 4-methylcyclohexane methanol, the chemical that came into the public eye three days later, when a chemical leak at Freedom Industries contaminated the Elk River and the drinking water of 300,000 West Virginians.
Ireland, an Edgewood resident, said she became sick soon after taking a shower Jan. 6, and experienced a deep cough, chills and nausea — symptoms local, state and federal health officials would later associate with exposure to Crude MCHM.
“I went to bed thinking I’d come down with the flu,” she said. “I was still in bed the morning of Jan. 9, and on Facebook, I started seeing people saying ‘what is that smell in Edgewood?’ As the day went on, we learned about the chemical leak. I know correlation doesn’t equal causation, but I’ve had a dozen friends leave the state since the incident, and I can’t say it’s because of the water; I can only speculate.”
Ireland’s experience is consistent with new preliminary reports from the Chemical Safety Board that indicate the leak at a tank at the Freedom Industries facility was likely caused by “widespread corrosion,” and may have been entering the Elk River before initial reports Jan. 9. Ireland was one of several members of the community who attended a board meeting of the Kanawha-Charleston Health Department on Thursday to discuss ongoing efforts to identify the impact of the leak on the nine counties directly affected by it.
Diagrams of tanks 395, 396 and 397, the three tanks Freedom Industries used to store MCHM-PPH showed multiple corrosion points, according to Nasandra Wright, director of environmental health services for the KCHD. There was a particularly large hole in the floor of T-395, Wright said, and more investigation will be necessary to determine the exact causes and possible duration of the leak.
“The problem now becomes ‘when did the leak start?’ ” Dr. Rahul Gupta, chief health officer for the KCHD, said.
So far, all of the investigations of the Freedom spill have assumed a start date of Jan. 9. There is no public report of WV public health or DEP investigations attempting to determine the extent or impacts of leaks of MCHM/PPH from the Freedom site before Jan. 9.
Of course, the biggest failure in this situation was WV American Water’s lack of a source water protection plan and the company’s failure to protect its customers by monitoring the chemicals in the water it was taking in from the Elk River. How much MCHM/PPH (or any other dangerous chemicals) were entering WV American Water’s treatment plant before Jan. 9? No one knows, because WV American Water wasn’t doing its job.
The fact is that no one who had responsibility for protecting West Virginia’s safe drinking water was doing his or her job before January 9. Look at slide 52 from the CSB Power Point:
•The CSB found no record of inspections performed on the tanks prior to the January 9, 2014 release.
•There was a lack of engineering inspections, and uncertain inspection frequency or rigor of inspections.
•Holes on the roofs likely provided a source for corrosion inducing water into the tanks.
The WV DEP was called to the Freedom site a number of times before Jan. 9 following complaints by neighbors about the smells coming from the tanks. DEP inspectors apparently never required Freedom employees to produce inspection reports on the tanks. The DEP did no tank inspections itself at Freedom. DEP inspectors apparently accepted Freedom employees’ claims that the smells were coming from trucks loading or unloading chemicals from the tanks. We know now that the tanks were leaking continuously from their roofs long before Jan. 9. Not only did those roof leaks probably cause the corrosion of the tank bottoms, but the roof leaks also allowed constant chemical releases into the air. The Freedom tanks had no internal caps on their contents to limit these kinds of vapor leaks. This is a monumental regulatory failure by the WV DEP.
Mr. Banks added, “We are also trying to pin down the installation dates for the tanks to review their manufacturing and service history. Whatever the governing regulations, and whatever the precise failure mechanism, companies have a responsibility to operate in a safe manner. Not inspecting corrodible steel aboveground storage tanks proved to be an accident waiting to happen.”
The contamination of WV American Water’s system was not a question of “if” it was a question only of “when”. WV DEP was not doing its job and the water company was not monitoring the safety of the water it was selling to the public. What could possibly go wrong?
Today a proposed settlement was reached for the class action lawsuit against Freedom Industries in the US District Court in WV. This is a different class action lawsuit than the one I wrote about a few weeks ago, which named some of Freedom’s officers and other companies as defendants, but not Freedom directly.
Today’s Gazette article explains:
The deal would set aside for spill victims all of a $2.9 million insurance settlement that Freedom Industries reached with AIG Specialty, the now-bankrupt chemical firm’s insurance carrier. That money would be placed into a trust, pending approval by the bankruptcy court of Freedom’s yet-to-be disclosed liquidation plan.
Under the proposal, Freedom’s remaining assets would first be spent to pay the administrative costs of its bankruptcy proceeding, clean up the company’s Elk River site, pay a claim filed against Freedom by the Internal Revenue Service, and pay up to $2.9 million to non-spill Freedom creditors, such as vendors still owned money for materials or services provided prior to the bankruptcy.
Once those other non-spill creditors are paid $2.9 million, then any additional assets would be split 50-50 between spill victims and the non-spill creditors until the non-spill creditors are paid the full amount that Freedom owes them. After that, spill victims would receive the entire amount of any money that’s left, the proposal says.
In short, the settlement will provide $2.9 million in Freedom’s insurance money to people affected by the spill – and maybe more money, if anything is left over after Freedom pays to clean up the site and pays off some of its creditors. Since cutting 300,000 checks would make this money disappear pretty fast (less than $10 per person), the settlement proposes that instead the money be used for the general benefit of the impacted residents – which means that the money could be used for medical monitoring or in-home water testing, both of which have been unfunded to date. The funds will be allocated by an oversight board, subject to court approval.
If you suffered costs as a result of Freedom Industries’ contamination of WV American Water’s system, you can file a claim in the company’s current bankruptcy case. It is not likely that you will recover all your damages, but you will receive something if your claim is verified.
You need to start by filing a claim with the bankruptcy court. The deadline for filing your claim is August 1, 2014, in a little than two weeks. Here is a link to the court’s Web site to start the process.
Last week, Charleston Gazette reporter Ken Ward noted that very few people have filed claims in the case. If you have been damaged, if you had to buy water or you have medical bills or you had to replace plumbing or other items, file your claim now.
We have previously posted about the Department of Environmental Protection’s proposal to reclassify the Kanawha River to “Category A,” which would make it eligible to be used for drinking water (see here and here).
The change would allow a secondary intake to be built along the Kanawha River. In order for the Kanawha River to actually meet Category A standards, water pollution control permits for chemical plants and other dischargers will likely need to be strengthened.
More than thirty people turned out to the DEP’s hearing about this proposal a couple weeks ago, and only the WV Manufacturer’s Association spoke in opposition to the change. Next Monday, July 21st, is the deadline for written public comments. Comments should be mailed to firstname.lastname@example.org and can be as simple as:
I support the proposed removal of the Category A use exemption for the Kanawha River. This change would put us on a path toward ensuring a cleaner Kanawha River and a more secure drinking water supply.
On Wednesday, West Virginia American Water filed their testimony in the Public Service Commission’s investigation of the utility’s response to the Freedom spill. The Commission had specifically ordered WV American Water to respond to 5 questions:
1. A chronological description of the pertinent actions taken by WVAWC personnel beginning when any employee of WVAWC, its parent company, or service company became aware of the spill, through March 31, 2014.
2. A chronological listing of the measurements of MCHM taken by WVAWC and the locations where those measurements were obtained, through March 31, 2014. WVAWC shall provide updated measurements once it has completed replacement of its filters.
3. A narrative describing the process and factors used to decide whether to close the intake structure. The testimony should include which, if any, outside agencies were consulted or otherwise had a role in making the decision, the factors contemplated in making the decision, and who ultimately made the decision regarding the continued intake of raw water from the Elk River.
4. A detailed description of the involvement of all agencies or entities external to WVAWC that were consulted or otherwise involved in developing or implementing protocols used by WVAWC from the first indications of the spill through March 31, 2014.
5. A description of alternatives for water treatment or alternative or supplemental sources of treated or finished water that were considered by WVAWC after it became aware of the MCHM spill.
If you don’t feel like reading all 110 pages of testimony, here is the basic summary of their answers:
1. The company initially learned about the spill from the DEP, who told them that 1,000-2,500 gallons of the chemical had spilled. The company initially assumed that they could remove the chemical by adding powdered activated carbon to the water, but shortly after 4pm they found MCHM in their finished water. The water company’s testimony is rather vague on the question of whether the workers at the water treatment plant had any method other than smell and taste to figure out whether MCHM was in their treated water (“At about 4:00 p.m., the water quality staff first detected indications that some amount of MCHM had passed through the treatment processes; they reported to me that they observed the characteristic odor of MCHM in the filtered water.”) The testimony also describes in detail the process of sampling and testing the distribution system and lifting the “do not use” order.
2. The company conducted testing throughout their distribution system until February 25th, at which point the entire system had MCHM concentrations below 2 ppb (the non-detect threshold). The results of these tests were provided to the PSC.
3. The issuance of the “do not use” order was a joint decision of the water company and the Bureau of Public Health. The company’s decision not to shut off the intake was related to the large volume of water they were pumping through their system due to high water consumption and line breaks associated with the cold weather. On average, the plant produces 28 million gallons per day, but on January 9th it was producing 50% more – 43 million gallons per day. The company stands by its decision not to shut off the intake because doing so would have left residents without water for fire suppression and sanitation for at least 45 days, due to the extreme complexity of the system.
4. The company describes the development of the new protocols that it created after the spill: protocols for flushing, testing for MCHM, the lifting of the “do not use” order, distribution of bulk and bottled water, implementation of bill credits, and the filter change. They note that, “[e]ach of these protocols was substantially new for the Company and developed in connection with the spill response, although many of them drew on the existing expertise of the Company and AWWSC [American Water Works Service Company] personnel”
5. The company did not have any alternative sources of water to draw upon on January 9th.
Additionally, the company defends its lack of monitoring for potential contaminants by noting that:
There are more than 85,000 chemicals in the Toxic Substances Control Act (“TSCA”) inventory maintained by the USEPA; there are about 67,000 additional chemicals that are not on the TSCA list. It is not realistic that we could screen for each one of those on a daily basis, or at any regular frequency, and to my knowledge no water system anywhere in the country does so
Of course no water utility monitors for 152,000 chemicals. To my knowledge, no one has suggested that WV American Water should do this – rather, it has been suggested that they should know what chemicals are actually manufactured and stored upstream of their intake and have some way to detect those chemicals.
WV American Water’s testimony emphasizes the total lack of emergency preparedness on the part of the company. They weren’t monitoring for potential contaminants of their intake. They didn’t even know what those potential contaminants were. They “did not have any workable options to consider on an emergency basis for temporary or permanent alternative sources of raw water.” They had to develop new protocols for how to flush their distribution system and how to distribute bulk water. In short, the company was totally unprepared.
Many class action lawsuits have been filed against various parties implicated in the water crisis. Typically, when multiple class action lawsuits are filed in the same court, a judge will order the lawyers to work together to come up with a consolidated case, rather than trying multiple cases that are very similar.
This week, the law firms that have filed class action lawsuits in federal court filed their consolidated complaint. This complaint names the following people/companies as defendants: West Virginia American Water, American Water Works, American Water Works Service Company, Eastman Chemical (the manufacturer of MCHM), Gary Southern, Dennis Farrell (a Freedom executive), Central West Virginia Regional Airport Authority, Triad Engineering, and Cast & Baker Corporation. The latter three defendants are implicated because of Yeager Airport’s runway extension construction job that resulted in significantly more stormwater runoff flowing onto the Freedom Industries site, which allegedly made the site less stable and contributed to the failure of the tank.
In addition to requesting monetary damages, the complaint also seeks the following relief from the court:
A class action lawsuit is typically a multi-year process though, so don’t expect any of this relief in the immediate future.
Today the West Virginia Testing Assessment Project(WV TAP) released its final report.
WV TAP designed and conducted four scientific studies: (1) an in-depth analysis to
determine the odor threshold for crude MCHM; (2) an assessment of the breakdown products
that may have been created as a result of the oxidation of crude MCHM by chlorine and
potassium permanganate; (3) establishment of an independent panel of experts to evaluate the
screening level for MCHM; and (4) an initial assessment of the concentration and variability of MCHM at taps in homes and the perceptions of the owners of the homes that were sampled.
With regard to these questions, the TAP project found:
The expert panel estimated that the OTC [odor threshold concentration] for crude MCHM is likely less than 0.15 ppb. The ability of the expert human nose to detect this compound is far greater than any analytical method available today.
The final report recommended that the state government create a testing program for MCHM in homes to ensure that homes are below this 120 ppb threshold. Their recommended program would involve testing 30 homes in each of the 24 flushing zones established by the water company. They note that this would be effective for “demonstrating that either the concentrations are well below the levels of concern or that there are persistent concentrations that need to be further addressed.”
At the press conference releasing WV TAP’s final report, Governor Tomblin announced that the state has no immediate plans to fund any further in-home testing.