A big chemical spill that contaminated the water supply of some 300,000 West Virginia residents earlier this month has raised plenty of questions about the way the United States regulates industrial compounds.
Some background: There are more than 84,000 chemicals in the United States — and we don't know all that much about many of them. The current U.S. law on chemical safety is 37 years old, riddled with exceptions, and widely seen as ineffective. The federal government has required testing for only 200 chemicals in the past 37 years — and banned just five substances deemed dangerous (the last was asbestos in 1991).
That blind spot became an issue in the West Virginia spill, when thousands of gallons of crude MCHM leaked into the water supply near Charleston. Early on, the Centers for Disease Control and Prevention said that the chemical was safe at very low levels (less than 1 part per million). But, last week, the CDC suggested that pregnant women shouldn't drink the water at all until the chemical was undetectable. In part, that's because there's not a ton of information about MCHM or its health effects.
Meanwhile, the rules surrounding chemical facilities and spills the themselves are often patchy and incomplete. And what rules do exist are often incompletely enforced in states like West Virginia. Below is a broad overview of the issues here:
What exactly happened in West Virginia? On Jan. 9, 2014, a steel storage tank near Charleston, W.Va., containing crude 4-methylcyclohexane methanol (MCHM) began leaking through a one-inch hole. The chemical was soon seeping into the Elk River, just 1.5 miles upstream of a water-treatment center.
Residents in the area quickly noticed a strange licorice-like odor, and some 300,000 people in nine counties were advised not to drink the water (see map). Hundreds of people in the area have sought medical treatment so far, with symptoms ranging from nausea to rashes, although it's still unclear how many of those cases are related to the water contamination.*
As the days went by, things got more confusing. On Jan. 13, West Virginia regulators began lifting the ban on drinking the water (but asked people to flush their pipes first). Yet some uncertainty remained: The CDC initially said that the water would be safe if it had less than 1 part per million of crude MCHM. Then regulators said pregnant women should not drink the water until officials declare it free of any trace of the chemical. Some doctors are still warning that children should avoid the water. More people are still seeking medical treatment. No one knows the full extent of the damage.
As for the facility itself: The leaky storage tank in question was owned by Freedom Industries, which had acquired six decade-old storage tanks on Dec. 31 and, shortly after the Charleston spill, declared bankruptcy. (My colleague Steven Mufson has much more on the company.) The Charleston site did have a brick-and-concrete containment dike as a last resort against spills, but that dike reportedly had structural problems and was slated for repairs. Freedom Industries is also investigating whether freezing water from a leaky municipal pipe may have punctured its storage tank.
(Update: On Tuesday, Freedom Industries told federal investigators that was another previously unidentified chemical in the tank, a product known as "PPH." State water officials say they "likely" would have removed that chemical from the drinking water during treatment, but they're now conducting tests to make sure.)
What is MCHM, and why do we know so little about it? MCHM is a chemical compound used at coal-processing plants to separate fine particles of coal from the surrounding rock in a process called "froth flotation." It is mainly used to process coking coal for metallurgy rather than steam coal for power plants.
Information is murky about its health effects. The U.S. government doesn't require any testing for the chemical: MCHM was one of 62,000 industrial compounds that were grandfathered in with the Toxic Substances Control Act of 1976. (The chemicals were grandfathered, in part because they'd been around for awhile and were assumed to be safe.)
What we do know about MCHM came from independent tests carried out in the late 1990s by Eastman Chemical, the sole U.S. manufacturer of the compound. The company was ramping up production of MCHM and decided to conduct some toxicity tests on rats — even though this wasn't required by law. Wired's Deborah Blum has a nice overview of these studies: For instance, the Eastman researchers fed MCHM to rats and found that the chemical was roughly poisonous at around 200 to 800 parts per million. They concluded that a dose one-fourth as big wouldn't be toxic (although tests showed that even smaller doses weren't entirely benign). From this, the CDC extrapolated and conservatively set a safe level for humans at 1 part per million.**
But that still adds up to fairly limited information. In its reports, Eastman says it had "no data available" for things like repeated dose toxicity, or carcinogenicity, or reproductive toxicity. This helps, in part, explain why many of the health warnings have been confused and uncertain.
Could chemicals be more tightly regulated and tested? That's possible, in theory. Current regulations require little testing for new industrial compounds and none for the 62,000 chemicals that were grandfathered in back in 1976. There are two big reform bills on offer here, one favored by industry and one favored by environmentalists:
1) The Chemical Safety Improvement Act of 2013: This bill was crafted last year by Sen. David Vitter (R-La.) and the late Sen. Frank Lautenberg (D-N.J.), and it has the support of the American Chemistry Council, which represents chemical manufacturers like Dow and Dupont.
Here's how it works: Under current law, the Environmental Protection Agency can only call for testing of a chemical if evidence surfaces that the substance is dangerous. Under the Vitter-Lautenberg bill, the EPA would review all actively used chemicals and label them as either “high” or “low” priority based on their potential risk to human health and the environment. The agency would then subject high-priority chemicals to further review. The EPA would also have greater flexibility to request data from companies and take action on chemicals deemed unsafe, from labeling requirements to outright bans.
That said, it's unclear if this bill would have made much difference in West Virginia. The EPA would likely have considered MCHM a "low-priority" chemical and exempted it from further review, said Rep. Henry A. Waxman (Calif.). Indeed, some environmental groups have called the Vitter-Lautenberg bill too weak, saying it could pre-empt stricter state laws and marks a compromise from earlier health-testing proposals.
2) The Safe Chemicals Act: This is the stricter bill favored by many environmental and consumer-protection groups and was sponsored by Lautenberg and Kirsten Gillibrand (D-N.Y.). It would require manufacturers to prove that chemicals are safe before they can be sold. That could include MCHM and other chemicals grandfathered in under the 1976 law.
This is clearly a much stricter testing regime—and it doesn't prioritize some chemicals over others. For industry groups, it's far too strict: The American Chemistry Council has argued that this bill could set an "unachievable" safety standard. It says the Vitter-Lautenberg bill sets a better balance between safety and permitting innovation.
How often do chemical leaks like this happen? In West Virginia, it's hardly unknown. The Elk River spill is the third big chemical accident in the last five years.
We can also look more broadly: The AP recently examined spills from the coal industry as a whole: "For decades, chemicals and waste from the coal industry have tainted hundreds of waterways and groundwater supplies, spoiling private wells, shutting down fishing and rendering streams virtually lifeless, according to an Associated Press analysis of federal environmental data."
Some of this waste is a side effect of stricter air-pollution rules that have induced coal plants to scrub and capture various pollutants. A recent EPA analysis found 132 cases where coal plant waste contaminated rivers, streams and lakes, and 123 where it spilled into underground water sources. That includes chemicals to remove air pollutants such as sulfur dioxide and "fly ash" that is now captured rather than released into the air.
Many of these discharges are perfectly legal: To date, the EPA has put few limits on chemicals released by power plants (although last year the agency proposed the first major limits on a few compounds since 1982). What's more, some coal-mining practices, such as mountaintop-removal, create their own water pollution. In the past few years, the EPA has imposed tighter oversight on permits for this type of mining.
Are there regulations around the chemical leaks themselves? It depends on the state. In West Virginia, for instance, chemicals that are stored underground are subject to environmental regulations and inspections. But tanks stored above ground, such as the one owned by Freedom Industries, aren't regulated as strictly. The last inspection at the Charleston site was back in 2001. And MCHM wasn't deemed dangerous enough for additional regulations — so, given limited manpower, the site was deemed a lower priority and the problems with the containment dike were never discovered.
Ever since the spill, politicians have been pushing to change that. West Virginia Gov. Earl Ray Tomblin has proposed a bill to require yearly inspections of above-ground chemical tanks in West Virginia. The bill would also require water systems to draft plans to prepare for spills.
In the Senate, Joe Manchin (D-W.Va.) is pushing a bill that would ask the federal government to set standards for state-run regulatory efforts. Under this bill, states would have to inspect chemical facilities that could threaten water supplies every three years. The bill would also make the locations and contents of chemical storage sites public.
Of course, new rules are only as stringent as the enforcement. And there's reason to be skeptical of how well regulators will follow through: One 2009 investigation by The New York Times found that companies in West Virginia that violate state clean water laws rarely get fined. Also, back in 2011, the U.S. Chemical Safety Board outlined a plan for West Virginia companies to submit to regular audits of their chemical safety plans. This came in the wake of a 2008 fire and explosion at a Bayer chemical plant. As Mike Elk details here, that plan was largely ignored.
* Update: Added more current numbers on those seeking medical attention.
** Fixed the wording here.
Bonus question: Who should I be following on this story?
-- Ken Ward Jr. of the Charleston Gazette has been doing indispensable reporting on the spill. Follow him.
-- My colleague Joel Achenbach has also been doing some excellent on-the-ground reporting from West Virginia.
-- Deborah Blum is terrific on all chemical science questions.