More Regulation Is Not the Answer to West Virginia Chemical Spill

The recent chemical spill in West Virginia has green groups clamoring for more regulation, including expansion of Environmental Protection Agency power under the Toxic Substances Control Act. Early on, however, Democratic Senator Barbara Boxer of California rightly told the press, “We can fix this now” using existing laws rather than passing new ones.

Boxer’s strong opposition to the current TSCA reform bill (S. 1009) may explain her position. Republican Senator David Vitter of Louisiana and Democratic Senator Frank Lautenberg of New Jersey introduced this legislation just weeks before Sen. Lautenberg passed away this past spring. It appears that Boxer does not want this compromise bill—pushed by both EDF and industry—to gain any momentum from the chemical spill. Whatever her motivations, Boxer is right that there’s no need for a massive expansion of chemical regulations or TSCA to address this accident and related local emergency planning failures. She is, however, cosponsoring the Chemical Safety and Drinking Water Protection Act of 2014 (S. 1961) along with West Virginia’s Democratic Senators Joe Manchin and Jay Rockefeller, which would mandate more tank inspections. On Tuesday, the Senate Environment and Public Works Committee held a hearing on the topic.

In a nutshell, here’s what happened in West Virginia: On January 9, the local government discovered that one of Freedom Industries chemical tanks at the Charleston, West Virginia-based Etowah River Terminal was leaking a chemical mixture called Crude MCHM (composed mostly of a chemical called 4-Methylcyclohexanemethanol) that was blended with a small portion of a chemical called PPH. The tank had released an estimated 10,000 gallons of the chemical, which entered a nearby waterway that leads down to the intake point for the city’s local water supply facility, located 1.5 miles down the river. After traveling down the river, the chemical reached the intake port for the community’s water supply facility and then was piped out to residences before water officials knew what happened. As soon as they learned about the spill, local officials quickly issued water advisories and provided bottled water to the community. Thanks to their swift action, there were no serious illnesses among a population of 300,000 people, but a number people suffered short-term health effects such as skin and eye irritations.

Apparently, not only did the company tanks fail, so did their containment systems, and there was no spill plan in place. News reports also indicate that the tanks had not been inspected in decades. Local officials and Freedom Industries may have avoided this accident had they implemented emergency planning measures that included site inspections.

However, regulation is not a magic wand that will fix such problems, which resulted from human error and failed implementation of regulations and programs already on the books. Overlapping and often confusing federal, state, and local emergency planning laws apply in this case including: the Federal Emergency Planning and Community Right to Know Act (EPCRA), the Clean Air Act’s Section 112(r) risk management planning provisions; the Clean Water Act, Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980; and the Oil Pollution Act of 1990 as well as state and local laws and regulations. In addition, the Department of Homeland Security sets emergency planning standards for chemical facilities that could be high risk for terrorist attacks, and the Chemical Safety Board (a federal independent agency) is charged with investigating chemical accidents and providing guidance and advice to communities and businesses on how to prevent future accidents.

In this case, Freedom Industries did at least disclose the existence of this chemical to U.S. Environmental Protection Agency in compliance with Toxics Release Inventory (TRI) mandates. TRI is part of the EPCRA, under which states and local governments organize emergency plans to prepare for accidental releases. State and local emergency planners should have used this information in their emergency preparedness plans, but they apparently failed. This particular chemical is also subject to the federal Occupational Safety and Health Act. OSHA is designed to govern the handling of the chemical to protect workers by limiting exposure and ensuring safe handling.

In testimony to Congress, Attorney Richard O. Faulk, representing himself, and R. Peter Weaver, representing the International Liquid Terminals Association, both detailed these and other laws and government programs that could have prevented the spill, if only parties obeyed them.

“Like many tragedies, the failure cannot necessarily be blamed on the absence of a law, but rather on human error,” explained Faulk. He points out state and local regulation may offer the best solution. “The West Virginia Senate has already passed legislation addressing the issues raised by the spill,” he explained. “Given the intense interest in West Virginia, it is likely that this law, when passed, will broadly address the circumstances that led to this tragedy. Other states may then review the law, consider it and adapt it to their own concerns and needs.”

“Even with an expansive net of regulatory requirements, anomalous circumstances exist in which an incident such as this can occur,” Weaver explained. Before applying yet another layer of regulation, he wisely recommends an investigation into the compliance with existing laws. “If Freedom Industries disregarded existing regulations, company operating procedures, and/or industry standards, the most effective response would be stronger enforcement rather than the promulgation of new legislation and subsequent regulation.” He suggestions that if Congress does pass legislation, it would do better to make reforms that streamline and simplify regulations to make them more effective, rather than add new layers. What a good idea!

This is the first in a series of blog posts on this topic, so watch for more!