On January 9, 2014 a leak was reported at Freedom Industries’ storage tanks on the banks of the Elk River just upstream of a water treatment plant that services tap water for about 300,000 residents in and around Charleston, West Virginia. The resulting release of at least 10,000 gallons of toxic chemicals used to clean coal contaminated the community’s water supply, making it unfit for use. More than a month later, it remains unclear if this water is truly safe to drink and what the health consequences of exposure to these chemicals may be.

But this is far from the only disastrous toxic chemical leak that has occurred since the beginning of this year. In addition to two well-publicized leaks of coal slurry into West Virginia rivers this month and the massive Duke Energy coal slurry spill into the Dan River in North Carolina, there have been more than a half dozen releases of hazardous materials in February 2014 alone. In less than three weeks there have been leaks of hazardous materials in California, Connecticut, North Dakota, Pennsylvania and Texas, some of which resulted in explosions and fires and injuries requiring hospitalization.

Lawsuits have been filed against Freedom Industries, and a US Chemical Safety Board (CSB) investigation of the incident is underway. West Virginia legislators have introduced a bill (SB 373) to strengthen oversight and safety of above-ground chemical storage tanks – a measure that has, so far, received the support of more than 100 West Virginia business owners. At the federal level, the “Chemical Safety and Drinking Water Protection Act of 2014,” has been introduced in the US Senate (S. 1961) by Senators Joe Manchin III (D-WV)Jay Rockefeller (D-WV), and Barbara Boxer (D-CA) who also chairs the Senate Environment and Public Works Committee. It would address emergency response as well as storage-tank integrity.

The Manchin-Boxer-Rockefeller bill would require regular state inspections (at least once every three years) of above-ground chemical storage facilities, require industry to develop state-approved emergency response plans, allow states to recoup costs incurred for responding to emergencies involving such tanks and ensure that local drinking water system authorities have the information and tools needed to respond to these emergencies – including information about the “potential toxicity of the stored chemicals to humans and the environment.”

The bigger picture

The measures these bills propose are worthwhile but would do little to address the source of these problems. Paul Anastas, Director of Yale University’s Center for Green Chemistry and Engineering and former US Environmental Protection Agency (EPA) assistant administrator and science advisor, aptly summarized this issue when I interviewed him in 2008, saying: “We currently deal with chemical security through guns, guards and gates rather than by redesigning materials. Protective measures against hazards can and will fail. And when they fail, risk goes to the maximum.”

When considering the Chemical Safety and Drinking Water Protection Act of 2014 in the context of the past six weeks’ catastrophic hazardous materials incidents, it seems important to ask why such legislation does not include any requirements for preventive measures – measures that would address these problems further upstream than the storage tank wall – through inherently safer technology, including the use of safer chemicals. When I asked Anastas about this during a Yale University broadcast talk on February 19th  he said:

 “We’ve had between 40 and 50 years of environmental policies that tried to control exposure, set standards about, quite frankly, how bad you can be; how much you can pollute and still not be breaking the law. That’s an important step, to set a floor of how egregious you can be but it’s half a strategy. The other strategy has to be about a race to the top. That’s what green chemistry has been showing over the past 20 years, that…you can have exceptional performance and still make sure that it’s inherently safer and inherently less polluting. There a lack of awareness of what’s possible but those possibilities for inherently safer technologies need to be built into our policies and need to be built into our laws.”

Speaking at a field hearing in Charleston, WV on February 10th, CSB Chairman Rafael Moure-Eraso said, “the most effective accident prevention measures typically involve what is called inherent safety.” He went on to say, “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 just did not need to be where it was. And although relocating it would have had some costs, those pale beside the costs that thousands of West Virginia residents and businesses are now paying for this disaster.”

Another salient fact in this disaster is how little is known about the toxicity of MCHM, the chemical released into the Elk River – and the fact that the US chemical regulatory system allows a chemical like this to be used at high volume and stored where it could potentially contaminate drinking water without anything approaching full knowledge of its health effects. The Material Safety Data Sheet for MCHM shows very incomplete data about the chemical’s toxicity and that information pertains to the pure form of the chemical rather than the mixture that contaminated Charleston’s water supply. The upshot was potentially harmful exposure – including to pregnant women, infants and children –  and mixed and confusing messages from the Centers for Disease Control and Prevention and other public health authorities. And beyond the problems with available toxicity information about this particular chemical, there is the larger question: Given that toxic chemical leaks occur so frequently, shouldn’t more emphasis be placed on using fewer toxic chemicals?

Programs like those established by Massachusetts Toxics Use Reduction Act, which require businesses to report their use of hazardous chemicals and explore safer alternatives, don’t guarantee any accident prevention, but they do “increase the likelihood of detecting a problem before it happens,” explains University of Massachusetts Toxics Use Reduction Institute (TURI) Senior Associate Director and Policy Program Manager Rachel Massey. Massey and TURI Deputy Director Liz Harriman note that the EPA’s Toxics Release Inventory – the program that requires industry to report on certain chemical manufacture, use and emissions – has failed to keep pace with the number of toxic chemicals in use. EPA currently requires TRI reporting on fewer than 700 chemicals, while most of the 80,000 chemicals registered for commerce in the US have not – like MCHM – been fully tested, if they are tested at all.

In addition to omitting any requirements for safer chemical technology, the US Senate bill also does not include any direction to the EPA to exercise its existing authority under the Clean Water Act to require safety measures that “establish procedures, methods, and equipment…to prevent discharges of oil and hazardous substances…and to contain such discharges,” as Natural Resources Defense Council (NRDC) senior attorney Jon Devine wrote last month, and Greenpeace USA legislative director Rick Hind and University of Maryland law professor and Center for Progressive Reform president Rena Steinzor pointed out to me last week. As Devine explained, the EPA has implemented these requirements only for oil products, and some 42 years after passage of the Clean Water Act, it has not updated these requirements to extend to other hazardous substances. “These technologies exist and are effective,” said Steinzor.

Also lacking in the Manchin-Boxer-Rockefeller bill is any authorization for funds to implement what the legislation would require, Steinzor noted. The bill, she explained, asks the EPA or the states to increase inspection of above-ground chemical storage tanks and develop emergency response plans for these facilities without allocating any money for these programs. This comes at a time when states are strapped for funds and EPA’s current budget and strategic plan calls for significant reductions in enforcement and inspections. “They are making a very un-ambitious effort,” said Steinzor of the legislation.

So why not get ambitious? More inspections, better tank construction, overflow containment and emergency response, yes – but why not go beyond and also call for safer chemistry? It makes for safer workplaces and safer communities while reducing liability costs. And the business of designing safe new materials and better understanding of chemicals currently in use would also create jobs.

 

Elizabeth Grossman is the author of Chasing Molecules: Poisonous Products, Human Health, and the Promise of Green ChemistryHigh Tech Trash: Digital Devices, Hidden Toxics, and Human Health, and other books. Her work has appeared in a variety of publications including Scientific AmericanYale e360, Environmental Health Perspectives, Ensia, The Washington Post, Salon and The Nation.