West Virginia and Clean Water

Jon Devine, Senior Attorney, Washington, D.C.

The chemical spill in West Virginia last week tells us a lot about how we protect – or how we don’t protect – rivers, lakes, and other surface waters from pollution.  Although West Virginia American Water is in the process of lifting the “do not use” warning for drinking water supplied to nine West Virginia counties affected by the release of 4-methylcyclohexane methanol (MCHM) from Freedom Industries’ facility in Charleston into the Elk River, people there are still dealing with its toxic aftermath.  In particular, the utility notes, the Centers for Disease Control and Prevention stated: “due to limited availability of data, and out of an abundance of caution, you may wish to consider an alternative drinking water source for pregnant women until the chemical is at non-detectable levels in the water distribution system.”  As West Virginians start to put their lives back in order, we should pause to reflect on some important lessons we already have learned.

My colleague Daniel Rosenberg recently explained how this disaster is linked to flaws in the laws that should – but don’t – keep our families safe from toxic chemicals.  And my colleague Erik Olson has shone a light on the fact that drinking water supplies are vulnerable to contamination by accidental or intentional pollution events, and that we need stronger protections against such harm, including clear authority for water utilities to take action to stop or prevent major upstream polluters from putting drinking water sources at risk of contamination.  This post describes some of the loopholes in our pollution safety net for surface waters and how to better protect the waterways we use, not only to provide drinking water, but also for swimming, boating, and fishing. Although closing these loopholes is simple common sense – especially after the spill last week -- the lobbying efforts of polluters may well stymie needed action. 

This disaster should teach us all what West Virginians now know all too well – our surface waters are fragile, critically important for our families’ daily lives, and not adequately protected from pollution.  As Angie Rosser of West Virginia Rivers Coalition recently wrote: “Now is the time to take a critical look at how to better protect our water sources.  We can do this only by acknowledging that the Elk River spill is not a story about an isolated leak.”  Indeed, the Freedom Industries spill illustrates the need to have safeguards against a major pollution event on a river used as a source of supply for a large population – safeguards that should be supported by everyone that wants to protect themselves and their families from hazardous contamination. 

Protect All of Our Waterways

First, and perhaps most importantly, we should make sure that surface waters, wherever they might be found, are entitled to the core pollution protections of the Clean Water Act.  Unfortunately, over the past decade-plus, muddled court decisions and policy choices by the prior administration have left numerous streams, wetlands, and other waters in legal limbo, so it’s unclear if dozens of pollution control programs under the law apply.  That’s why we’re so pleased that EPA and the Army Corps of Engineers have launched an initiative to enhance protections for small streams and wetlands across the country. 

Although the particular river contaminated last week is surely a water body covered by the law, the spill in West Virginia shows conclusively how closely linked our nation’s water drinking water supplies and surface water resources are.  Just think -- a single contamination event on a river and hundreds of thousands of people are urged to steer clear of their drinking water for days!  So it’s critical that our national safeguards that prevent water pollution protect all kinds of waterways that affect our drinking water – which, it turns out, are all kinds of surface waters.  In fact, the streams that would be better protected because of the EPA/Corps planned action help supply the water systems that provide drinking water to over 117 million Americans.  Those agencies are expected to announce a proposed set of safeguards very soon, giving the public a chance to weigh in and encourage the administration to protect all of our critical waters.  They should propose and finalize this initiative without delay.

 Develop Spill Prevention Requirements for Chemicals Comparable to those for Oil

The federal clean water requirements governing facilities that produce, use, or store toxic chemicals near waterways are too lax.  Under the Clean Water Act, “as soon as practicable after October 18, 1972,” the federal government was supposed to develop safety measures that, among other things, “establish[] procedures, methods, and equipment and other requirements for equipment to prevent discharges of oil and hazardous substances . . . and to contain such discharges,” but EPA only has spill prevention, control, and countermeasure rules for facilities with oil products, not those storing hazardous substances.  In fact, it appears from Freedom Industries’ profile in EPA’s permit database that it has developed spill prevention plans associated with its storage of oil products. 

The oil requirements prescribe a variety of measures that facilities must employ; for instance, a covered operation generally must have secondary containment – a safeguard in case the equipment that ordinarily holds the oil fails – and it “must be constructed so that any discharge from a primary containment system, such as a tank or pipe, will not escape the containment system before cleanup occurs.”  The oil spill prevention program also requires larger facilities’ spill plans to be certified by a licensed professional engineer, to help ensure that the prevention measures in place are adequately designed to protect nearby waterways.  Obviously, these are sensible safeguards with respect to facilities that have large quantities of material that can harm water bodies if spilled.

Because EPA does not have a similar program for facilities handling hazardous chemicals, even 41 years after the Clean Water Act became law, the agency should update the spill prevention requirements right away.  Doing so might take some political spine, given that some members of Congress have pushed EPA to roll back even the oil spill rules for some facilities, but the West Virginia disaster surely ought to make EPA prioritize this for action.  (Note: even if EPA were to do this promptly, EPA would also need to identify MCHM as a “hazardous substance” under the law for it and myriad other chemicals to be included in a spill prevention regime.)

There are also reports that Senator Manchin (D-WV) and perhaps other Senators are planning to introduce legislation that would require chemical facility inspections, safety oversight, and additional protections for drinking water supplies to ensure that they are protected from large contamination incidents like this one.  This would be important and would certainly help. But EPA should not wait for legislation to act to the extent they can using current authorities.

Make Facilities with a Likely Release Accountable

A facility like the one Freedom Industries operates is not clearly required to have a pollution control permit with requirements to take precautions regarding accidental releases.  The Clean Water Act contains a permitting program that enables water pollution control officials to spell out the requirements applicable to any facility that discharges any pollutant into a waterway protected by the law, and makes those requirements public and enforceable by citizens.  A problem, however, can arise with respect to facilities that don’t anticipate having a covered discharge or those that don’t acknowledge the likelihood of one – those facilities may not seek permits and therefore may not be required to have pollution control technologies or management practices in place to avoid a release.  This is particularly problematic after a court struck down EPA’s rules for an industry that generates huge amounts of waste and for which EPA required any facility designed or operated in a way that it would discharge in the future to get a permit, including facilities that hadn’t yet discharged. 

As a result, for facilities without processes that result in regular discharges, control and public oversight of the operation is likely to be only partially successful, depending on what other pollution controls, if any, happen to apply.  For instance, in the case of Freedom Industries, the facility has a nebulously-worded Clean Water Act “general permit” for its discharge of storm water runoff from the property. The section on preventing stormwater contamination from accidental releases has some pretty vague spill prevention requirements that lack the kind of clear, objective standards that are needed.  For instance, it says (emphasis mine): “Where appropriate, specifying material handling procedures and storage requirements in the plan should be considered.” Similarly, state-level standards can help fill in where federal ones are lacking, but those are catch-as-catch-can; for instance, Freedom Industries is subject to a West Virginia groundwater protection law that requires, among other things, that bulk storage facilities have secondary containment sufficient to hold a release for at least three days.  But if we’ve learned anything in the last half-century of environmental law, it’s that there needs to be a baseline of national protections for our shared resources.

Fixing this loophole to ensure that facilities that are designed or operated in a way that they will likely discharge are subject to a permitting review to minimize the risks of release would probably need help from Congress.  But that seems unlikely in the current political climate, in which attacks on our environmental safeguards, including clean water protections, are all too common in the Republican-led House of Representatives.

Provide Adequate Resources to Inspect Facilities and Prosecute Lawbreakers

Finally, a law that’s not enforced is simply a request.  So, when we hear that Freedom Industries was rarely visited by environmental officials, we shouldn’t be all that surprised that it had a catastrophic release.  

Unfortunately, state pollution control officials may face pressure not to vigorously enforce environmental laws with respect to in-state industry.  West Virginia is no exception – in fact, a number of groups in the region cited the state Department of Environmental Protection’s enforcement record as one of the reasons they asked EPA to withdraw West Virginia’s authority to implement the Clean Water Act.  As John McFerrin of the West Virginia Highlands Conservancy, one of the petitioning groups, argued, companies violating the law might even seek out “enforcement” by the state because such an action could discourage federal sanctions (and, I would add, could preempt citizen suits): “[n]egotiating and settling with West Virginia is a tool to protect the companies from EPA which, unlike West Virginia DEP, might pursue serious enforcement action.” 

At the same time, EPA is planning to ramp down its inspection and enforcement efforts.  In a recently-issued draft strategic plan, EPA indicated that it intends to place a greater reliance on so-called “Next Generation Compliance strategies,” by which it means more partnership with industry, along with enhanced public information, to encourage compliance.  I suspect this has more to do with trying to save money to meet budget-cutting demands than with any evidence that it will get better results.  Just look what this this approach will do for water quality.  EPA predicts far fewer pounds of pollution will be controlled – over the next five years, the agency expects enforcement actions under the alternative strategy to “reduce, treat, or eliminate” roughly 220 million pounds of water pollutants per year, while acknowledging that the annual average pollutant control for fiscal years 2005-2008 was 320 million pounds. That’s not the progress we need for our next generation.  Rather than retreat on enforcement, Congress should fund, and EPA should invest in, enforcement approaches that have proven to curb pollution.

 

Photo Credit: West Virginia and Clean Water/shutterstock