After a mysterious chemical contaminated the water supply of some 300,000 West Virginians in January, residents were left with more than just a bad taste in their mouths. They had unanswered questions. Why, they asked, was there so little information on the specific chemical that spilled? Why were storage tanks allowed to be so close to such an important drinking water supply? Why was there no emergency response plan in place? And why had it been 23 years since anyone inspected those tanks?
The way America regulates its vast inventory of chemical compounds was immediately called into question. People were shocked to learn that under federal law, more than 60,000 chemicals are allowed to enter American commerce without scientific proof that they are safe. And according to federal government estimates, one out of every three Americans is at risk of a poison gas disaster by living near one of hundreds of chemical facilities that house highly toxic chemicals.
Lawmakers in West Virginia hurried to introduce new rules for chemical storage tank safety, a version of which just passed the state’s House of Representatives. But those who have been trying for broader reform say that bill is not enough. It would take more than one hastily-drafted bill, they said, to fix all of the loopholes and challenges that currently plague chemical safety and storage regulation. It would take more to prevent the next West Virginia.
“I’m looking for action here, not a lot of words,” Sen. Barbara Boxer (D-CA) said during a recent hearing on chemical reform. “And so far, I’ve seen a lot of words.”
Why Do It?
Despite very real concerns of future spills in West Virginia and beyond, advocates for complete chemical safety reform have not seen the legislation they are so desperately looking for. That lack of hard information begs the questions: What would true reform actually look like? How difficult would it be to achieve?
The United States federal government currently regulates more than 84,000 chemical substances. There are approximately 12,440 chemical facilities across the country, surrounded by more than 100 million people. Of those facilities, 473 of them surround populations of 100,000 people or more, putting large populations at risk of catastrophe from a deliberate or accidental chemical release.
And chemical releases happen often. According to the EPA’s Toxic Release Inventory, 1,374 different facilities leaked 287 different chemicals into streams, rivers, lakes, and oceans in 2010 — all for a total of 194 million pounds of chemicals released that year. As a report in Bloomberg Businessweek notes, that’s almost 10,000 tons of chemicals spilled into U.S. waters in one year, and those are just the ones that have been officially reported.
Bloomberg’s takeaway from those numbers is that “we shouldn’t be surprised, shocked, or awed when a spill happens.” But some aren’t willing to take that approach.
“It’s easy for someone to say ‘we shouldn’t be shocked’ when it’s not their family or themselves, when they don’t feel the repercussions,” Maya Nye, president of the West Virginia citizen group People Concerned About Chemical Safety (PCACS), told ThinkProgress. Nye has been advocating for safer chemical storage regulations with PCACS since a 2008 explosion at a Bayer CropScience pesticide facility killed two workers and injured eight, nearly puncturing a neighboring tank of toxic methyl isocyanate near her home.
After the Bayer explosion, the U.S. Chemical Safety Board recommended West Virginia establish a program requiring annual third-party safety audits, the findings of which would be publicly available. The CSB has made that recommendation to West Virginia three times in the last five years, but it has not been implemented.
If West Virginia had implemented that statewide program, CSB chairman Dr. Rafael Moure-Eraso said it might have prevented the January chemical spill that contaminated drinking water for 300,000 West Virginians. Nye is not so sure. The recommended program only applies to chemical facilities that store extremely hazardous substances. Crude MCHM is not considered hazardous under the federal Toxic Substances Control Act, which currently allows 62,000 chemicals — including crude MCHM — to be stored with no requirement that they be tested or shown to be safe.
That crossing between federal and state regulations means it will be difficult, if nearly impossible, for one bill to solve all the problems that advocates say currently plague the chemical storage systems in West Virginia and across the country.
“Individual state laws can’t cover everything,” said Christie Todd Whitman, the former Environmental Protection Agency chief under George W. Bush and current advocate for stricter safety standards on American chemical facilities. “You need to have some federal legislation.”
Round Up The Little Guys
Whitman has a unique history of trying to implement federal chemical safety regulations, beginning with the aftermath of the terrorist attacks of September 11, 2001.
After the attacks, then-EPA administrator Whitman drafted new rules to strengthen the safety of chemical storage facilities — or, as President Obama has called them, “stationary weapons of mass destruction.” If approved, those rules would have allowed the EPA to implement an already-existing provision of the Clean Air Act that required facilities to use safer chemicals and storage processes.
To Whitman’s frustration, however, the Bush White House declined to endorse a draft bill, and Congress did not act. She has been calling for a renewed effort ever since.
But believe it or not, the rules that Whitman wants do exist. They manifest themselves, however, as “standards” set by industry trade association the American Chemistry Council (ACC). ACC’s members are held to strong universal safety standards, and they include a lot of the things that chemical safety regulation advocates want: publicly accessible safety information, a commitment to using inherently safer chemicals, and hardening the structural integrity of chemical facilities.
Some of the biggest chemical companies are ACC members: BASF Corp., Dow Chemical, DuPont, ExxonMobil. And even though the standards are not technically enforceable, they are working, Whitman says.
“The big companies are pretty responsible because they don’t want anything to happen,” Whitman said, noting the potentially huge liabilities that larger companies face. “But it’s the smaller ones, the outliers — there’s so many of those that are not members [of ACC] and they have very volatile chemicals.”
It’s true, America’s most notable chemical disasters in the year have not been dominated by Big Chem. The company responsible for West Virginia’s notorious spill was Freedom Industries, a company whose tiny, decrepit headquarters is tucked at the end of a bumpy dirt road in Charleston, West Virginia. Williams Olefins is not the smallest company in the world, but it’s not well-known — except for that June 2013 toxic chemical explosion that killed two workers and injured 114 others. And have you ever heard of West Fertilizer Company? Neither did most people in the United States, until a chemical explosion at one of its Texas facilities in April 2013 killed 15 people and injured 160.
None of those companies are members of the ACC. They do not pay ACC’s dues, and are therefore not subjected to ACC’s safety standards. “That’s why you need federal legislation,” Whitman said.
A Bigger Toxic Chemical Encyclopedia
But universal safety standards are not the only thing the federal government needs to tackle to prevent chemical spills, and ACC agrees. The group, along with advocates for stronger chemical safety regulations, want updates to the Toxic Substances Control Act (TSCA) — the same law that allowed crude MCHM to be stored in West Virginia with no requirement that it be shown to be safe.
The TSCA is America’s primary law on chemical use, but it has not been updated in the 38 years that it has been in existence. Out of the 80,000 chemicals in use in the country today, the 62,000 chemicals that were already in use when the law was passed were “grandfathered” — meaning there was no requirement to determine whether or not they are actually safe for humans.
“In the United States, chemicals are innocent until proven guilty,” Dr. Sanjay Gupta, CNN Chief Medical Correspondent, has written. “And, the only way they are proven guilty is by health effects turning up in people who have been exposed, often years later. In some ways, that makes us all guinea pigs.”
Gupta’s comments likely ring true to those exposed to the chemical spill in West Virginia, who still don’t know what that exposure will mean for them in the short- or long-term.
There remains debate on how best to solve the problem of the TSCA, though it is almost universally considered a problem. A bipartisan bill introduced by the late Sen. Frank Lautenberg (D-NJ) and Sen. David Vitter (R-LA) in 2013 would update the law by allowing EPA to identify some, but not all, priority chemicals for additional safety information.
The Washington Post’s editorial board applauded the bill, saying its authors “were right to balance a legitimate interest in maintaining an innovative and profitable chemicals industry against public health demands.” But environmentalists scowled, saying it “still leaves too many gaps in protecting the public.” Alternatively, many have suggested reform modeled after the European Union’s 2006 chemical law, called REACH, which authorizes EU officials to study and collect data on more than 100,000 chemicals over several decades. But the EU’s method uses animal testing, making it a controversial option.
Either way, something has to be done soon with TSCA, according to League of Conservation Voters President Gene Karpinski.
“Republicans and Democrats in Washington should redouble their efforts to finally reform the [TSCA] in a way that truly protects public health,” he said. “We can’t afford to wait until the next crisis for Congress to act.”
Heightened Community Preparation
Universal standards and updates to TSCA would likely require Congressional action. The EPA could act on its own, but as Whitman notes, it would undoubtedly be challenged in the courts — meaning it may take the span of litigation before rules are actually implemented.
“People think EPA just can’t get enough of regulations; for the most part they would rather have Congress do it,” Whitman said. “Unfortunately with this Congress, it’s difficult to get things done.”
Congress, however, does not always have to be involved, particularly in making communities more prepared for a disaster. Experts cite New Jersey’s Toxic Catastrophe Prevention Act as an example. The law contains extremely detailed language on what chemical companies are required to do in order to prepare and was prompted by one of world’s worst chemical accidents — which no one saw coming.
On a December night in 1984, a Union Carbide plant in Bhopal, India leaked deadly methyl isocyanate gas into the atmosphere. The release killed between 2,000 and 8,000 people in just the first few days. In the wake of that event, it was discovered that Union Carbide had actually prepared a comprehensive hazard analysis of the plant. That analysis acknowledged the risk of a terrible urban tragedy if a leak occurred.
Problem is, the company didn’t tell anyone about the risk, according to Fred Millar, a hazardous materials policy consultant in Washington, D.C. Millar said that after the 1984 disaster, the U.S. discovered that Union Carbide had a sister plant with the same deadly chemical, located in — where else? — Charleston, West Virginia.
“Everybody out there is just being systematically kept in the dark about the chemicals that surround them,” Millar said, “and basically that’s what prompted New Jersey to do its Toxic Catastrophe Prevention Act.”
Among other things in the New Jersey state law, owners of chemical facilities are required to develop extremely detailed emergency response plans, including procedures for informing the public about accidental releases. Companies are also required to document the proper first-aid and emergency medical treatment necessary to treat human exposure to their chemicals, and those treatments are required to be coordinated with the community emergency responders. Companies are also required to designate a so-called “emergency coordinator” who is responsible for updating the public on any release — anywhere from what mitigation measures the company is taking to how changing weather conditions are effecting the release.
“West Virginia should be thinking about that kind of thing,” Millar said.
Share The Wealth
Another strong chemical safety law already in place in the U.S. is a local law in Contra Costa County, California. That law, too, requires companies to submit safety plans. Under the chemical safety program, the government employs people who regularly oversee those plans.
The key difference there, though, is that those companies help pay for the program through government fees.
“The success of a safety program is dependent upon the cooperation of industrial chemical and oil refining facilities within Contra Costa County,” the law states. “Preventing accidental releases of regulated substances is the shared responsibility of industry, government and the public.”
Part of that shared responsibility means making sure companies actually feel responsible when they do cause damage to the community, according to Millar. If companies aren’t afraid of being held completely liable for their actions, he says, why would they even make the costly effort to prevent a spill in the first place?
“[Companies] don’t have to worry about a government where they can just buy out everybody,” Millar said. “What they do have to worry about is liability concerns.”
He continued, “If you try to advise governments to set up a really good state law on chemical safety, make sure there’s some very powerful language about liability, and mandatory insurance. That’s the best advice I can give.”
Why Hasn’t Anything Happened Yet?
Chemical accidents are not new. Neither are calls for regulatory reform. The fact is, those calls have been pushed aside for the last decade, thanks in no small part to rigorous lobbying efforts from the chemical industry.
“Chemical companies don’t want more layers of accountability,” Maya Nye wrote in a recent op-ed in the Charleston Gazette. “That’s clear by the amount of money spent on chemical industry lobbying every year.”
From 2005 through part of 2012, the chemical industry gave $39 million to candidates for federal office and spent $333 million on lobbying at the federal level, according to a Common Cause report, and the numbers are increasing every year. That money almost always goes to Republicans, as OpenSecrets notes.
“The chemical companies are in a near constant state of conflict with environmentalists and consumer advocates — a key constituency of Democrats — and thus the industry has calculated that it is better to support the GOP,” an OpenSecrets summary of the chemical industry says. “Over the past two decades, Republicans have received nearly three-quarters of the $72 million contributed by the industry.”
While not all chemical lobbying efforts focus on chemical storage safety (much of ACC’s efforts surround the disclosure of harmful chemicals in products), the industry has sunk its teeth deep into American politics, and not just at the federal level. The Center For Public Integrity recently detailed just how deep, a herculean effort to dig into the fine prints of legislation state-by-state. In 2010, for example, the $100 million advocacy group helped defeat, amend or postpone the passage of more than 300 bills dealing with chemicals and plastics in 44 states.
It’s not that the ACC doesn’t support some sort of reform, CPI’s report notes — it’s just that the reform must be done on its own terms.
“It’s an onslaught,” Connecticut legislator Diana Urban, a Democrat, told CPI. “You go into a committee and they’re out here grabbing legislators one after another … It’s very hard for me to fight that.”