Responding to the Freedom Industries chemical spill
The House Energy & Commerce Committee is currently considering the “Chemicals in Commerce Act.” The Chemicals in Commerce Act (CICA) is supposed to be an attempt to reform the Toxic Substances Control Act which, as we have already noted, has proven ineffective at regulating toxic chemicals. According to the Safer Chemicals, Healthy Families coalition,
Among its many problems, the Chemicals in Commerce Act would:
- Annul laws in Maine, Washington, California, Minnesota and several other states that provide most of the information on toxic chemicals in consumer products.
- Continue the legal standard and other hurdles in current TSCA that prevented EPA from taking action on asbestos.
- Make it nearly impossible for EPA to require health information for new chemicals before they end up on the market and in the products we bring into our homes. (This is one of the few areas where EPA currently has some authority.)
- Significantly roll back EPA’s authority to restrict the use of existing toxic chemicals in products.
- Contradict the recommendations of the National Academy of Science and the American Academy of Pediatrics for how chemical safety should be reviewed.
- Require EPA to weigh the economic benefits of a chemical- like whether it leaves streaks on your windows- against whether it causes birth defects, cancer, autism, or infertility.
This factsheet provides more details.
The bill is currently before the House Energy & Commerce Committee, of which WV Representative David McKinley is a member. Representative McKinley can be contacted through his website. See the “Take Action” page for a sample letter and/or add your name to this petition.
On Friday, the Morgantown Utility Board (owned and operated by the City of Morgantown) announced a new initiative to go above and beyond the requirements of SB 373. MUB is partnering with Downstream Strategies on an expanded sourcewater protection program. MUB’s general manager stated, “What occurred in Charleston made us take a harder look at both our readiness and response capabilities. We … want a program that goes further than the measures required by newly enacted legislation.”
MUB’s new sourcewater planning initiative will include “not only identifying threats to raw water sources but doing other things such as mapping those threats, creating a threat matrix that considers toxicity and proximity, developing an extensive watershed monitoring program, cultivating relationships, determining realistic approaches to real-time water quality monitoring, improving communications, and making the plan a true living document.” MUB is also evaluating the feasibility of building in more redundancy to its system by increasing its raw water storage capacity.
Based on WV American Water’s response to the water crisis to date, I cannot see them voluntarily offering to exceed any regulatory standard.
Yet, that is exactly what needs to happen.
Just the first four days of the chemical spill cost local businesses $61 million. The longer-term impact – in terms of residents and businesses leaving, and fewer people coming to Charleston for conferences and tourism – is unknown. And this longer-term impact will depend on the narrative that is created around the water crisis: will Charleston continue to be known as the city that poisoned its water supply, or will it become known for its response to this crisis? Can Charleston become known for having some of the cleanest water in the country, by creating a state-of-the-art water system with real sourcewater protection?
As I mentioned in my previous post, the U.S. is facing a serious problem of under-funded infrastructure. The recent water crisis – which involved 300,000 people on a water system that lacks redundancy and has limited ability to deal with a contamination event – is just one manifestation of this problem.
Much of our water and sewer infrastructure was built many decades ago and has not been replaced. While we are paying more in maintenance on these increasingly aged systems, we are not making sufficient capital investments needed to replace them. This has been a problem for well over two decades. The result is a growing gap between the amount of revenues that water utilities receive through current rates and the expenditures needed to keep up with maintenance and re-capitalizing the infrastructure.
The American Society of Civil Engineers estimates that we need to invest at least $13 billion more per year in drinking water infrastructure in the US. A 2000 report noted that this level of investment, if funded through water rates alone, would lead to doubling or tripling of water rates – or more, in rural areas.
Yet, despite this growing problem, federal funding for water infrastructure has been declining. A 2000 report noted that federal investment in water and wastewater infrastructure declined more than 70% from 1980 to 1994:
Federal funding has declined further since 1994; federal drinking water and wastewater infrastructure investment amounted to only $1.38 billion per year from 2008-2012.
We have seen this policy play out in West Virginia, with small rural water systems unable to keep up with the rising cost of maintaining old infrastructure, let alone replacing it. The result has been greater consolidation of water systems, greater risk to consumers, and poorer service.
One issue that has largely been absent from the discussion of the Elk River spill thus far is infrastructure funding – or, more accurately, the lack of federal infrastructure funding.
We know that WV American Water was able to develop its large, centralized system by buying out smaller, locally owned water systems that could not afford to maintain their systems. And, this past week, the PSC has shown its continued support for this policy, even though WV American Water itself now has huge deferred maintenance problems. As I mentioned in a previous post, WV American Water’s Kanawha Valley system has a leakage rate of 37% — more than double what it was a decade ago.
Under-investment in infrastructure is a problem that is not confined to water systems. The PSC found, in response to the 2012 derecho, that our electric utilities had been under-investing in maintenance of their lines and right-of-ways. And anyone who has driven around on southern West Virginia’s roads knows that there are some serious deferred maintenance problems there too.
Nor is this issue unique to West Virginia. For many years I have seen reports about the ever-growing debt that we owe to future generations in under-funded infrastructure. A recent report from the American Society of Civil Engineers gave the U.S. a “D” for drinking water infrastructure investment. Many drinking water systems were built more than half a century ago, and we are simply patching old and increasingly fragile infrastructure, putting off the growing need for replacing pipes.
Sen. Manchin’s approach to dealing with the Elk River spill on the federal level has mainly been to propose a federal aboveground tank regulation bill. He could do a lot more for WV by diverting federal money into rebuilding our drinking water infrastructure.
Yesterday, the WV PSC ordered WV American Water to continue with the “public/private” line extensions that the company had committed to and then tried to back out of.
In light of the company’s decision to knowingly release contaminated water into its customers homes, its promulgation of bad “flushing” advice and questionable billing practices in the past four months, is the expansion of WV American Water really such a good idea?
The PSC’s order indicates that the PSC is committed to business as usual when it comes to building safe public water systems in WV. Shouldn’t the PSC be studying a wide variety of solutions for WV water systems, including strengthening public ownership of WV’s water, instead of putting more and more public resources in the hands of holding companies based far away from our state?
If taxpayer money (that’s the “public” in “public/private”) is going to be spent to expand water systems, why does the PSC support giving our money to a privately owned company such as WV American Water? Why can’t the PSC support spending public money on publicly owned water systems that deliver a public resource?
On Tuesday, Gov. Tomblin signed Senate Bill 373 into law. This is not huge news, because the bill could become law without his signature, but now it’s official.
In his story, the Charleston Gazette’s Eric Eyre pointed to the real issue before us now:
Lawmakers left many significant decisions — such as the details of tank safety standards — for the state Department of Environmental Protection to hash out by writing rules. Those rules are required to be written for legislative review during the 2015 regular session.
DEP Secretary Randy Huffman said last week that he plans to set up a process that would allow for more public involvement in those rule than as typical for most agency rules.
Normally, DEP writes a proposed rule and accepts public comments on those rules before submitting a final version to the Legislature for its review.
“We want to do more than that,” Huffman said.
Huffman said he wants to hold meetings with various industry and citizen groups interested in the rule to get their input. He said he had not yet decided if those meetings would be open to the general public or the media.
This was the major problem with SB 373. Legislators left most of the details of implementation in the hands of the WV DEP, an agency kept chronically underfunded by the coal industry dominated Legislature and whose lack of regulatory oversight contributed to the probability of a spill like the one at Freedom Industries.
Citizens were heavily engaged in the Legislative process. Sen. Unger, the bill’s original sponsor, acknowledged this fact:
Sen. John Unger, D-Berkeley, said the bill “got progressively better” as it moved through the Legislature.
“Truly, it became the people’s bill,” he said.
The question remains – Will the rules to be developed by the DEP over the next year be the people’s rules, or will lobbyists and their friend DEP Secretary Huffman make it the industry’s rules?
The Kanawha-Charleston Health Department will be conducting a phone survey on the economic and socio-psychological impact of the spill. Volunteers are needed to help with this survey this weekend, starting at 9am on April 5th and 6th. If you are able to volunteer, please call 304-348-6494 by 2pm tomorrow, Friday April 4th.
Just how low is the odor threshold of MCHM in water? We’ve known for awhile that the licorice smell persists below 1 ppm (parts per million), but two studies released recently provide additional insight. A research group at Virginia Tech studied pure 4-MCHM and found its odor threshold to be 7 ppb (parts per billion). And the WV TAP project has previously found the odor threshold of crude MCHM to be 0.15 ppb.
These findings suggest that MCHM can still be detected at concentrations hundreds to thousands of times lower than the 1 ppm standard developed by the CDC and promoted by WV American Water. Does this matter? The leader of the Virginia Tech research group explains:
“The toxicity aside, annoying odors have a psychological burden,” Dietrich said. “Let’s hope this chemical doesn’t have any toxicity and the CDC is right. But if people are living with it for two or three months, it imparts a fear and a reminder, and it’s a psychological burden. If you can smell it, it’s still around.”
And the federal Safe Drinking Water Act also recognizes that drinking water shouldn’t smell. The “National Secondary Drinking Water Regulations” established under the Safe Drinking Water Act set standards that “are not Federally enforceable but are intended as guidelines for the States.” These secondary standards “represent reasonable goals for drinking water quality.” The maximum contaminant level for odor-bearing compounds is three times their odor threshold. Under these guidelines, the maximum level of MCHM in drinking water should probably be around 20 parts per billion – or less.
The Public Service Commission requires water utilities to provide “pure, wholesome, and potable” water, and many WV American Water customers would agree that their water didn’t, and perhaps still doesn’t, meet that standard. But there are no guidelines or regulations specifically for MCHM. Is water “pure, wholesome and potable” with an MCHM concentration of 1 ppm – or something much less?
West Virginia American Water closed their Elk River intake on Thursday to allow an unknown foamy plume to pass. Ken Ward has the story:
The water company’s intake was shut down from 9 a.m. until 10:45 a.m., company spokeswoman Laura Jordan said. The DEP notified her company of the situation at about 8:40 a.m., she said. …
Jeff McIntyre, president of West Virginia American, previously has said that if the company had shut down its intake on Jan. 9, some customers would have been without water within 15 minutes and major portions of Charleston would have been without water within two hours.
McIntyre said the company was pumping 43 million gallons per day on Jan. 9, near its maximum production rate, but was still losing ground in keeping its tanks filled because the cold weather had caused burst pipes throughout the system.
So, according to Mr. McIntyre, the cold winter weather was responsible for WV American Water’s inability to shut its intake for more than 15 minutes on January 9. What Mr. McIntyre didn’t mention is the fact that, even without this year’s polar vortex, WV American Water’s distribution system always leaks like a sieve. West Virginia American Water reports its “unaccounted for water” (otherwise known as “leaks”) to the Public Service Commission. The “unaccounted for water” rate for the Kanawha Valley system has more than doubled in the past ten years – from 18% in 2003 to 37% in 2013.
While it’s good to know that WV American Water’s system was in better shape yesterday than it was on January 9th, nothing has changed about the long-term under-investment in WV American Water’s infrastructure. Obviously it’s harder for the utility to maintain service when the intake is shut off if it’s losing a third of its water into the ground. As stated by the Utility Workers Union of American in recent Congressional testimony about the Elk River spill:
[I]t seems obvious that a water utility system that leaks up to 38% of its treated water – more than double the state PSC’s recommended acceptable rate – is operating at a significant disadvantage in its ability to store water for use in the event of a sudden interruption in its water supply. We believe this is a question that also should be examined by regulators and policy-makers considering the best ways to avoid similar water emergencies in the future
Any future investment to cover WV American Water’s deferred maintenance will be recovered in water rates paid by its customers. Of course, for the past two and a half months, its customers have already footing the bill for the company’s lack of emergency preparedness and underinvestment in infrastructure.
What can these people possibly be thinking? WV’s failed state regulators continue their clownish attempts to sweep the Freedom Industries/WV American Water crisis under the rug.
In the last week, we have been witness to the WV DEP-directed dumping of contaminated water in the Waste Management landfill in Putnam County. Fortunately, Judge Zakaib blocked the DEP and Diversified Services from dumping any more of this waste at the landfill with an injunction in Kanawha Circuit Court. Although the Putnam County Commission also wants the DEP to rescind its special dumping permit at the landfill, Sec. Randy Huffman has not taken any action so far.
Diversified Services, the company that Freedom Industries hired, under DEP direction, to “clean up” the Freedom tank farm, was mixing the contaminated water with sawdust before sending it to the landfill. Why mix it with sawdust? Does sawdust have some mystical decontamination property for rendering crude MCHM harmless? Of course not. But sawdust does absorb the water so instead of tanker trucks that would obviously be carrying an unusual substance into a landfill, Diversified Services could hide their dumping in regular dump trucks that appeared to be hauling solid waste.
The WV DEP had to quietly modify Waste Management’s solid waste permits to allow for the dumping, so it is clear that DEP was aware of the subterfuge. But this is all part of DEP’s mission to make the Freedom contamination disappear from public view. Soon, Freedom’s tank farm will be plowed under at DEP direction. But now the public will be watching where those tanks and contaminated soil end up.
We have also been treated to the marvelous dance performed by the CDC, Gov. Tomblin and WV American Water around the issue of whether WV American’s water is safe to drink. No one can actually use the word “safe.” The closest we have gotten so far is the totally useless “screening level” of 1 ppm of only one chemical in the multi-chemical Freedom cocktail.
Government officials must do this delicate dance because Congress failed decades ago when they exempted thousands of chemicals from hazardous designation and deprived regulators of the money they needed to test the toxicity and long term health impacts of these chemicals.
As the plaintiffs in the Putnam County suit put it:
The city and county said the local health officer for the Putnam County and Charleston-Kanawha health departments has advised them that preliminary data “may demonstrate self-reported symptoms associated with inhaling” the chemicals. The governments state they first learned about the chemical when residents began complaining about a licorice smell near the landfill.
“The said health officer also advises that the long term human impact from inhalation of these chemicals is unknown at this time,” the suit states. It goes on to express concern about leachate coming from the material already in the landfill, adding that DEP could not have found the landfill to have the means to “store or dispose of this contaminated waste for which no human toxicity tests have been performed to adequately ascertain the toxicity to human health.” [emphasis added]
We also have a report on comments from the Lincoln County PSD’s general manager that illustrate that there is at least one water system in the Kanawha Valley that values the health of its customers. Contrast these statements with the blather coming out of Charleston:
Lincoln Public Service District serves a community 60 times smaller than that of WVAW. Regardless, operators say they’d handle the leak differently.“No. I would not have let it out of the plant,” said John Rife, the general manager. “I respect my customers more than that.”The treatment plant, based in Alum Creek, changes its two filters every 10 years, according to Rife. But he claims workers change the granular carbon inside the filters every year or so.Jordan [WVAW PR person] implied Wednesday the granular carbon is changed along with the filters every four years.Lincoln PSD draws water from the Coal River, where coal operations line the banks several miles away. Rife said he remembers an ammonia spill several years ago that prompted him to shut down the plant for 10 hours.“If it’s bad enough, we shut it down until it goes by,” Rife said.McIntyre [WVAW president] has defended keeping the plant open after the chemical leak; shutting down the facility would mean shutting off water for sanitation and emergency purposes.Rife acknowledge the policy’s logic, but said he still would have preferred the alternative to pumping tainted water.“It’d be the same if you had a main line break and you had no water,” Rife said.