I Love the Smell of Licorice in the Morning: Public Water Systems Protection after Freedom Industries

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By: Stephen F. Soltis,[1] Staff Member

John Denver once asked for the country roads to take him home to West Virginia. However, after January 9, 2014, Mr. Denver may be less enthralled to return to the Mountain State. The morning of January 9, 10,000 gallons of 4-methylcyclohexane methanol (MCHM), a licorice smelling chemical that is used to process coal, leaked from a storage tank at Freedom Industries near Charleston, West Virginia.[2] Freedom Industries was located directly on the Elk River and was approximately one mile upstream from the West Virginia American Water Company’s (WVAM) municipal water intakes.[3] The MCHM entered the intakes and contaminated the tap water of 300,000 West Virginia residents.[4]

Within hours of the spill, multiple businesses filed lawsuits against Freedom Industries and WVAM.[5] However, these legal measures are largely remedial, and can only compensate for the economic harm already incurred. Congressional and state lawmakers should examine the cause of the leak, determine whether the subsequent contamination of the Kanawha Valley’s drinking water was the result of regulatory gaps, and whether these gaps should be closed.

MCHM did not fit within the existing federal statutory framework designed to protect the environment. The Clean Water Act primarily regulates intended discharges into the “waters of the United States.”[6] However, the Freedom Industries incident was an accident.[7] The Safe Drinking Water Act (SDWA) utilizes health-based standards to control the amount of pollutants in drinking water,[8] but the SDWA does not define MCHM.[9]

There are two proposals pending that, if adopted, may prevent another Freedom Industries incident. The first proposal involves amending the Toxic Substances Control Act (TSCA) by creating stricter oversight of permitted industrial chemicals, including MCHM.[10] However, amending TSCA would likely have far reaching consequences on the industry, and political pressure would likely defeat strict regulations.

The second proposed action is the Chemical Safety and Drinking Water Protection Act of 2014 introduced by Senators Manchin, Boxer, and Rockefeller.[11] This pending legislation would amend the SDWA and require states or the Administrator to create “a chemical storage facility source water protection program.”[12] This program protects “public water systems” from releases of chemicals from facilities covered within the Act.[13] The Act establishes minimum requirements for the program, including “leak detection”, “spill and overfill control”, and “an emergency response and communication plan.”[14]

An ongoing concern with MCHM is that a safe level of exposure has yet to be defined.[15] The Material Safety Data Sheet for MCHM lacks key information regarding MCHM’s dose toxicity and germ cell mutagenicity.[16] The proposed drinking water safety bill directly addresses this concern by requiring notice “to the Administrator” or “the appropriate State agency” of “the potential toxicity of stored chemicals to humans and the environment.”[17]

The proposed legislation is a proactive approach that safeguards public water supplies. The bill requires identification of facilities that could potentially release chemicals into public waters, and establishes a regulatory regime to safeguard against these facilities contaminating the public water system.[18] By requiring increased control over chemical facilities near public water sources, the Act is a first step in safeguarding the water that runs alongside those country roads, and restoring West Virginians’ peace of mind.
[1] J.D. Candidate, May 2015, University of Kentucky College of Law. The author would like to thank Professor Michael Healy for his guidance in navigating this emerging topic.
[2] 2014 West Virginia Chemical Spill, CDC.gov, http://emergency.cdc.gov/chemical/MCHM/westvirginia2014/index.asp (last visited Feb. 11, 2014).
[3] Id.
[4] Id.
[5] Kate White, Lawyers seek to consolidate water lawsuits, W.V. Gazette, (Jan. 12, 2014), http://www.wvgazette.com/News/201401120046?page=2.
[6] See Clean Water Act, 33 U.S.C. § 1251 (1976).
[7] Brad Plumer, Five big questions about the massive chemical spill in West Virginia, Wash. Post, (Jan. 21, 2014), http://www.washingtonpost.com/blogs/wonkblog/wp/2014/01/21/five-big-questions-about-the-massive-chemical-spill-in-west-virginia/.
[8] See Safe Drinking Water Act, 42 U.S.C. § 300(f).
[9] Id.
[10] Joel Achenbach, W.Va. chemical spill poses a new test for lawmakers, Wash. Post, (Jan. 19, 2014), http://www.washingtonpost.com/national/health-science/west-virginia-chemical-spill-in-elk-river-poses-a-new-chemistry-test-for-lawmakers.
[11] Chemical Safety and Drinking Water Act, S. 1961, 113th Cong. (2014).
[12] Id. at § 1472(a).
[13] Id.
[14] Id. at § 1472(b).
[15] Ken Ward Jr., Questions remain about MCHM screening level, W.V. Gazette, (Feb. 8, 2014), http://www.wvgazette.com/News/201402080047.
[16] Achenbach, supra note 10.
[17] Chemical Safety and Drinking Water Act, S. 1961, 113th Cong. § 1472 (2014).
[18] See Id.