Professionalism/Freedom Industries and the Elk River

On January 9, 2014, residents of Charleston, West Virginia alerted the West Virginia Department of Environmental Protection of a licorice smell in the air. The source of the odor was found to be a leaking 35,000 gallon storage tank containing a chemical used in processing coal slurry. By the time the leak was detected, approximately 10,000 gallons of the chemical had run onto the ground surrounding the tank, and some had entered the Elk River. Water intake facilities downstream from the spill were shut down, cutting off water to 300,000 residents in the area. More than 100 people were hospitalized with symptoms of exposure to the chemical.

Background

Freedom Industries

Key Figures

Freedom Industries was founded by Carl Kennedy II and Gary Southern in 1986 (according to the company website, though filings with the WV secretary of state indicate the business was formed in 1992 ), and includes the storage facility on the Elk River and a chemical mixing facility in Nitro, WV . Kennedy served as president of Freedom Industries until 2005 when he was indicted for funneling federal tax withholdings (summing over $1 million) to his own accounts. Kennedy served 22 months in prison, being released early from a 40 month sentence for aiding in a drug investigation. Kennedy was replaced in 2006 as president by an old friend named Dennis Farrell, with whom Kennedy had partnered in a number of other ventures, including opening a sports bar in downtown Charleston in 2002 . By his own account, Farrell nearly ran the company out of existence during his time as president . In 2013, Southern took over as president of Freedom Industries, and Farrell became a "top executive" . On Dec. 31, 2013, 10 days before the chemical spill, Freedom Industries was acquired by Cliff Forrest, a Pennsylvania coal magnate, and merged with Delaware company "Crete Technolgies" .

Etowah Terminal Facility

The Elk River spill originated at the Etowah Terminal Facility, a chemical storage location owned by Freedom Industries. The storage facility stands approximately 1.5 miles up stream from the river's confluence with the Kanawha River and the American Water company water treatment plant . It was purchased from Pennzoil in 1992, and its gasoline storage tanks converted to hold chemicals used in processing coal slurry from mining operations. On site were 14 storage tanks capable of storing 4 million gallons of chemicals. Three tanks contained the chemical 4-methycyclohexanemethanol (MCHM).

Response to the Incident

Freedom Industries

Freedom Industries president claims in interviews that his company became aware of the spill at 10:30 AM. However, when investigators arrived that day at 11:15, Farrell (who claimed to be the president), indicated that he was not aware of any problem. At 12:05, after investigators had discovered the spill, Freedom Industries reported the incident to the WV Department of Environmental Protection (DEP) . Following the spill, Freedom has made few comments to the press. However, the night after the chemical spill, acting president Gary Southern addressed reporters on site. Southern is criticized for giving misleading information and vague responses to questions, including the extent of the spill and a timeline for its cleanup. Southern has been ridiculed for drinking from a bottle of water during the interviews in which reporters questioned him about the loss of drinking water for over 300,000 WV residents. Eight days after the chemical spill, Freedom Industries filed for chapter 11 bankruptcy, freezing liability suits against Freedom while a bankruptcy judge sorts through creditor claims. Freedom Industries's bankruptcy attorneys have proposed the theory that the cause of the spill may have been a frozen water main, forcing a "sharp object" through the bottom of the tank, shifting further blame to the West Virginia American Water Company .

West Virginia American Water

The water treatment plant down stream of the Etowah River Terminal was notified of the spill by the DEP around noon and had already begun filtering water. At 4 PM, the facility became aware that the filters had become saturated and were no longer effective . At 5:45 the facility sent out a notice to customers to stop using the water .

West Virginia Department of Environmental Protection

In response to questioning regarding regulatory practices of the Etowah River Terminal, WVDEP cabinet secretary Randy Huffman released a statement reiterating that, according to state and federal chemical classifications, MCHM was not considered "hazardous". According to Huffman, Freedom Industries did not require a special permit to store the chemicals .

Causes of the Incident

Facility Inspections and Condition of Storage Tanks

According to Larry Zuspan, who is in charge of emergency planning for Charleston, West Virginia does not require regular inspections of chemical storage locations. The last confirmed inspections of the Etowah Terminal Facility occurred in 2010 and 2012, but state officials say the integrity of the MCHM storage tanks would not have been thoroughly assessed.

The condition of the storage tanks containing MCHM at the Freedom Industries facility before the spill is not entirely clear. West Virginia requires tanks like this to have containment areas for detection and containment of leaks. Freedom Industries had apparently not filed a state required plan for protecting groundwater from leaks, although it did possess a stormwater runoff permit. According to a Chemical Safety Board spokesman, the containment wall surrounding the storage tank was cracked and degraded. In its bankruptcy filing, Freedom Industries alleges that a water main, owned by American Water and running beneath the leaking storage tank, caused the ground to heave as it froze, forcing an object through the base of the tank .

Dissemination of Stored Chemical Characteristics

Freedom Industries submitted information about chemicals being stored by Freedom Industries at the Etowah Terminal Facility to the West Virginia Department of Homeland Security and Emergency Management. This report included MCHM as a chemical representing "immediate (acute) hazards." The American Water Company was apparently not aware of this filing, and did not have an up-to-date emergency plan incorporating the Etowah Terminal Facility. A spokesperson for American Water asserted that the company had received incomplete information about the nature of the chemical, and that a communication from Freedom Industries on the morning of the spill led American Water to make an incorrect determination that their processing facility could remove MCHM from the water supply.

Even if American Water had known about the contents of the storage tanks, that information may have been of little use. The chemical safety information provided by Eastman Chemical, the manufacturer of the MCHM stored at the Freedom Industries site, is largely incomplete. Pages of a 2011 safety data sheet contain the phrase "No data available" to describe significant sections of toxicological and ecological information.

Uncertainty about the properties of MCHM, as well as local and state emergency planning groups' lack of knowledge about the chemicals stored at the Freedom Industries site, contributed to delayed reaction to the leak.

Toxic Substances Control Act of 1976

There are so many chemicals out there that are not properly characterized. It’s only after they dump it in our water and it smells like licorice that we know about it. If it didn't smell like licorice, we wouldn't even know.

– Kevin Thompson, counsel for plaintiffs against Freedom Industries

The Toxic Substances Control Act of 1976 is the primary way by which the Environmental Protection Agency enforces safety measures upon companies which introduce and use new chemicals.

Required Testing of New Chemicals

The TSCA has created hundreds of pages of safety data since 1976 which has helped keep harmful chemicals in properly regulated environments and out of our air and water. The EPA's New Chemicals Program under the TSCA has created dozens of recommended testing outlines in documents readily available to the public and industry online . These new testing procedures have also helped to increase the data available to the public especially in the form of the Occupational Safety and Health Administration's Material Safety Data Sheets which can be easily accessed by the general populace through a number of online databases.

Existing Chemicals as of 1976

When the TSCA was passed in 1976, the problem was encountered as to what would be done about the chemicals that were currently in use. The legislation was written so that all new chemicals that were introduced into the market had strict testing requirements which provided most of the safety data we have today. Additionally, chemicals which were currently on the market were divided into two groups, those which were an "unreasonable risk of injury to health or the environment" and those that were not . Those that were considered an "unreasonable risk" were required to go through the same testing that any new chemical would be forced to go through while those that were not were simply allowed to continue to be used in industry without any additional testing. This in essence grandfathered in a whole slew of chemicals that could be used for nearly any purpose so long as certain blanket restrictions were kept to. So when the TSCA was passed, 62,000 chemicals slipped through the cracks without any meaningful testing. This category of chemicals was later found to include asbestos and chlorofluorocarbons which each have also been shown to cause a rather "unreasonable risk of injury to health or the environment" in more recent years.

EPA Initiatives

In part because of the MCHM spill in West Virginia and in part become of some of the holes in the TSCA that led to some of the health risks posed by asbestos and chlorofluorocarbons, the EPA has created a "multi-pronged strategy to ensure the safety of chemicals." This strategy includes identifying new chemical risks, trying to make industries move towards safer chemicals, and increasing public access to chemical data . However, it appears as though the EPA is being far too reliant on the help of industry in their strategy, and it is simply not plausible to expect that a company like Freedom Industries would be looking to aid the EPA whether by moving towards using safer chemicals or by helping to provide the EPA with better safety data. The EPA's last prong of attempting to identify other potentially dangerous chemicals seems unrealistic as well given the EPA's track record with asbestos, chlorofluorocarbons and now MCHM. This casts doubt on the level of professionalism at the EPA or whether anything can truly be done by the EPA without legislative action or statewide initiatives.

Effects on Human Health

National Toxicology Program's Findings

In July of 2014, the National Toxicology Program (NTP) was nominated by both the Agency for Toxic Substances and Disease Registry (ATSDR) and the Center for Disease Control and Prevention (CDC) to conduct studies of the chemicals spilled into the Elk River. This nomination comes 6 months after the incident occured in January to provide additional research that will assist the West Virginia Bureau of Public Health in responding to public health concerns. Before the NTP’s study, there were limited data on the effects of human exposure to the chemicals. 4-methylcyclohexanemethanol (MCHM) was the primary spilled agent but dipropylene glycol phenyl ether (DiPPH) and propylene glycol phenyl ether (PPH) were also present but in lower amounts. Initial efforts included evaluation of potential toxicity based on similar chemicals that were extensively studied. During this preliminary analysis, the NTP had limited concerns on significant or long lasting health effects. This is in line with the CDC and ATSDR’s finding: if the water contained less than 1 part per million (ppm) for MCHM and 1.2 ppm for PPH then there was little likelihood to be associated with any “adverse health effects.”

The NTP’s plan to conduct studies on the chemicals and their potential health effects involved a variety of experimental approaches. The studies were completed after a year long research program. The plan includes testing with rodents and other lower animal species, as well as computer modeling. The NTP focused on the effects of MCHM on fetal and early life development in rats as well as the effects on growth and development of other wildlife (fish and worms). Additionally, the NTP studied the effect of spilled chemicals on cells and cellular components to identify processes that were sensitive to the effects.

The NTP identified a potential health effect of exposure to MCHM. When studying pregnant rats that were exposed to MCHM infused drinking water, the NTP found lower weights in rat fetuses. Based on this finding, the West Virginia Department of Health and Human Resources immediately performed a study on birth weights of children whose mothers were categorized as at risk to the exposure of MCHM. Their studies on the development in fish and worms show that there weren’t any effect from MCHM. Finally, the NTP conducted experiments on potential DNA mutation and genetic damage when testing on bacteria. Chemicals that mutate DNA are classified with a tendency to have links with cancer. Although there was DNA mutation in bacteria, the NTP asserted that their finding does not necessarily equate to DNA mutation in humans.

In conclusion the NTP’s studies support the adequacy of the drinking water screening levels that were recommended by the CDC at the time of the spill. Within their tests, the chemicals that did produce effects were at dosage levels that were considerably higher than the CDC’s recommended drinking water screening levels. Most importantly, the NTP provided knowledge of the effects of MCHM, DiPPH, and PPH on human health. Information that we did not have before.

Impacts

Public Impact

The 4-methylcyclohexane methanol chemical leak from Freedom Industries into the Elk River was one of the most significant chemical spills in U.S. history and left thousands without water for days. The coal mining history and years of coal draining make Elk River the only non-contaminated water source in the region.

Charleston residents’ lives were disrupted due to the spill and were forced to use water provided by the local governments and the National guard. Commercial companies were also forced to shut down due to water dependency for manufacturing and cooling . The Charleston residents are skeptical of information provided by the CDC and the local government. Based on a few animal studies, CDC claimed that 1 PPM (parts per million) of MCHM in drinking water would not cause any adverse effects but recommended pregnant women to consider alternative water sources until MCHM is undetectable . CDC reached an unwarranted conclusion without further investigation was a red flag to the residents and resulted in the distrust of the public. Even after the residents were asked to resume normal water use when the concentration of MCHM in the river had dropped four days after the incident, there have been reports of strange smells and sediments in the water supply. CDC did conduct a pure MCHM oral study after the recovery and determined that the “no observed effect level was 100 mg/kg/day”.

Within a month of the spill, over 60 business owners protested against the lack of regulations and signed a petition to impose enhanced regulations and enforcement . Efforts to improve regulations had been made for years but it was not until the Elk River spill that problem was stressed. In the early 2000, Mr. Frank Lautenberg began working on a bill that requires the EPA to begin regulating exceptionally dangerous chemicals and to start to test a hundred more chemicals for toxicity annually, in addition to allowing the state to enact stronger regulations . Despite the effort, the bill was blocked by state lawmakers with large chemical industries, and Mr. Lautenberg passed away in 2013.

The Elk River chemical spill brought attention again to the problem. Senator Joe Manchin III of West Virginia, joined by Senator David Vitter of Louisiana and Senator Tom Udall of New Mexico and assisted by the American Chemistry Council, made the bill more industry friendly . The adjusted bill required the EPA to review over 64,000 unregulated chemicals, at a pace of 10 chemicals a year. It will also take away states’ ability to enact tougher regulations. On June 22, 2016, the Frank R. Lautenberg Chemical Safety Act was signed into law .

Despite the effort, some remain skeptical of the efforts. Senator Chris Walter said that with “just 10 chemicals a year, given how many chemicals are out there, seems like a drop in the bucket”. Michael Walls, a vice president of the American Council, responded that “today there’s no requirement. So the number of chemicals ultimately reviewed by the EPA will be increased”.

Environmental Impact

MCHM was found to be biodegradable in conditions similar to the Elk River and the sediment was found to absorb the chemical from the water. Over 10 months after the chemical leak, the sediment had absorbed the chemical, indicating sediment may be a long-term source for MCHM. The sediment retained significant amounts of the chemical despite MCHM being biodegradable. The air quality of the nine affected counties decreased. The spill plume resulting from the spill extended at least 390 miles, extending past state lines into Louisville, Kentucky. The odor released as a result of the spill indicates the presence of the chemical in the air or nearby water sources, with licorice smells indicating MCHM and sweeter, fruitier odors indicating the presence of a MCHM component in the air or water.

Previous literature on MCHM investigated a similar compound, methylcyclohexanol. Through these studies, MCHM was determined to not be deadly to animals in high concentrations, which was then used by the CDC to determine MCHM was not deadly to humans at 1 PPM. The impacts of MCHM on fish are largely unknown. The study, however, resulted in the death of 50 percent of the animal test subjects, raising questions on the accuracy of 1 PPM safety level. The impacts of MCHM on humans, wildlife, and the environment have not been well documented, and previous literature has not been sufficient to determine any long-term effects.

Economic Impact

A study has determined the economic impacts of the spill long-term are negligible, but there were short-term impacts due to closing of local businesses. The Charleston economy was greatly impacted by the loss of potable tap water. Restaurants in particular suffered, as they were forced to close due to legal requirements to provide tap water to customers. Researchers estimated the spill cost the state $61 million due to closing local businesses and affected 75,000 workers. This affected lower-wage workers more than higher-wage workers, which comprises 41% of the area’s workforce. These economic impacts do not factor in the costs required for cleanup.

Residents of the nine affected counties were forced to purchase bottled water for consumption, cooking, and bathing. Prices for water bottles were increased as the demand grew, increasing financial burden. The State Attorney General Patrick Morrisey encouraged citizens to report price increases on water bottles to the office's consumer protection division and claimed these increases are “just plain wrong”.

Conclusion

These people who were running Freedom Industries weren’t the sort you’d put in charge of something like chemical storage that could affect the whole community. Who are these guys, anyway?

– Danny Jones, mayor of Charleston

The questionably professional leadership of Freedom Industries together with lax inspection requirements likely contributed to the degradation of chemical storage tanks at the Etowah Terminal Facility. Minimal safety data and miscommunication about the nature of the spilled chemical led to a delay in shutting down water intakes, possibly contributing to the hospitalization of over 100 people. Regulatory gaps appear to have caused the MCHM stored by Freedom Industries to be left out of emergency management procedures for American Water, state, and local emergency planning departments. More frequent inspections and stricter requirements for classification of industrial chemicals may have mitigated the effects of the Elk River spill, or avoided it entirely. However, it would be inappropriate to place the blame for this leak on regulatory gaps alone. Perhaps if executives at Freedom Industries had more recognition of their responsibility to the residents of Charleston, they would have proactively shared information about their operations and ensured that reasonable containment and cleanup plans were in place.