Lax regulation, little enforcement preceded West Virginia chemical spill

The Freedom Industries facility hadn't been inspected in decades, but may not be in violation of environmental law

A storage tank at a Freedom Industries storage facility in Charleston, W.Va., with the chemical designation MCHM, for 4-methylcyclohexane-methanol, the chemical that leaked into the Elk River.
Steve Helber/AP

When West Virginia Department of Environmental Protection inspectors visited Freedom Industries, where a chemical spill into a river caused 300,000 people to lose access to clean water last week, they found a 400-square-foot pool of the chemical 4-methylcyclohexane-methanol, or MCHM, sitting outside one of Freedom Industries’ tanks.

Freedom Industries hadn’t told the DEP about the spill — regulators were there because of nearby residents’ complaints about a funny smell coming from the company’s storage facilities.

To contain the spill, Freedom Industries appeared to be using a cinder block and a 50-pound bag of absorptive industrial powder, according to the Charleston Gazette.

"This was a Band-Aid approach," state DEP air quality inspector Mike Kolb told the paper. "It was apparent that this was not an event that had just happened."

It’s not clear how long the chemical had been leaking into the river before it was discovered by the DEP, but it’s also not clear — at least from a legal standpoint — that anything went wrong. The patchwork of lax state and federal regulations governing chemical storage facilities like those owned by Freedom Industries allowed the company to go uninspected for decades. And loopholes in environmental laws may mean that the disposal of potentially harmful chemicals into the Elk River — whether intentional or not — was perfectly legal.

West Virginia has a long legacy of regulations that go unenforced by state agencies.

In 2011, after coal giant Massey Energy (which was bought out by another coal company later that year) pumped toxic coal slurry into the ground, residents in the surrounding area had to sue Massey to get damages for their contaminated water. West Virginia’s DEP wouldn’t pursue fines against Massey because regulators didn’t believe there was any connection between coal slurry and water pollution, despite numerous independent studies stating otherwise.

Before that, a New York Times investigation found that the state DEP allowed companies that violated environmental laws to skirt punishment and fines as long as they promised to work on their issues. The investigation also found a revolving door of DEP officials leaving for jobs in the industry they regulate.

West Virginia ignored federal recommendations in 2010 to implement stricter environmental protections, following a string of deadly industrial disasters in the same part of the state as last week’s spill.

The U.S. Environmental Protection Agency last month said it was investigating several cases in West Virginia in which residents believed the state DEP did not properly enforce its own regulations.

And the DEP admitted to the Charleston Gazette this week that regulators didn’t have a plan in place in case of a leak at Freedom Industries, despite its proximity to an intake point for a water company that serves hundreds of thousands in the state.

Freedom Industries, which was formed just two weeks ago by the merger of three coal-services companies, appears to have operated not only without oversight from state agencies but out of the purview of the federal government as well.

Congress passed a law regulating chemicals in 1976, but “grandfathered in” more than 60,000 chemicals, meaning there was no requirement that anyone prove those chemicals were safe to use. The chemical that leaked at the Elk River facility — MCHM — is one of those chemicals.

And gaps in regulatory authority mean no federal or state agency inspected the Freedom Industries facility since 1991.

It’s not clear if the company violated any regulations by spilling — accidentally or otherwise — chemicals into the river. Because the site only stored chemicals, and didn’t produce them, it wasn’t required to have a permit to discharge them into the air or water, according to The Associated Press.

The lack of regulations that may have contributed to last week’s discharge has spurred many to call for changes to laws surrounding chemical storage and increased enforcement.

But running parallel to West Virginia and the United States’ histories of laissez-faire environmental regulations are histories of politics convoluted by the influence of the coal and chemical industries.

In 2012, the chemical sector donated nearly $50 million to state and federal politicians. The coal industry donated nearly $14 million.

Much of that money is focused on West Virginia. So far, in the 2013–14 election cycle, coal mining companies have donated hundreds of thousands to politicians in the state. The only person to consistently receive more coal-industry money than West Virginia’s Republican Rep. Shelley Moore Capito ($165,275 so far) is House Speaker John Boehner ($217,808 so far).

On Tuesday, Boehner addressed concerns surrounding the Freedom Industries spill, saying, “I am entirely confident that there are ample regulations already on the books to protect the health and safety of the American people.”

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