West Virginians were hit this week with more troubling news about their water supply. Freedom Industries revealed that a second chemical had leaked from its storage tank in the January 9th spill, which affected 300,000 people. State regulators ordered Freedom Industries to provide a list of every substance that leaked into the river. More than 80,000 chemicals are used in the U.S. Yet the health risks of most of them are unknown. A discussion of the West Virginia chemical spill and whether water supplies elsewhere in the country need better safeguards.

Guests

  • Dina Cappiello national environmental reporter, The Associated Press.
  • Ken Ward Jr. reporter, The Charleston Gazette.
  • Daniel Horowitz managing director, U.S. Chemical Safety Board.
  • Paul Barrett assistant managing editor and senior writer at Bloomberg Businessweek, and author of "Glock: The Rise of America's Gun." His new book, about the Chevron oil pollution case in Ecuador, will be out later this year.

Transcript

  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The company deemed responsible for a chemical spill in West Virginia said another potentially harmful chemical was involved. The new disclosure comes nearly two weeks after the Jan. 9 incident that made tap water unsafe for 300,000 West Virginians. State regulators ordered the chemical storage company, Freedom Industries, to immediately disclose all relevant data.

  • 10:07:28

    MS. DIANE REHMNow, an update on what's happening in West Virginia and the wider implications, joining me in the studio, Dina Cappiello of the Associated Press and, from an NPR studio in New York, Paul Barrett of Bloomberg Business Week. Do join us with questions and comments, 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or Twitter. I'm glad you could both be with me.

  • 10:08:05

    MS. DINA CAPPIELLOThanks, Diane. Happy to be here.

  • 10:08:07

    MR. PAUL BARRETTSame here.

  • 10:08:08

    REHMGood to have you both. Dina, what do we know about PPh, or polyglycol ethers, brand-new chemical we knew nothing about? What do we know now?

  • 10:08:25

    CAPPIELLONot much, as we have very limited data on the toxicity effects of this chemical. It was just disclosed to state officials 12 days after the initial spill Jan. 9. What we do know about it is this: it was a fraction of the volume that seeped from this tank. About 7,500 gallons spilled into the Elk River. The company is saying this new chemical, PPh, was about 7.5 percent of the tank's volume.

  • 10:08:57

    CAPPIELLOAccording to the CDC, from what they know -- and, again, it's extremely limited, just like the initial chemical -- it's less toxic, although it can still be harmful if swallowed than the crude MCHM that was the bulk of the spill. And they're saying -- the water company is saying that their treatment process could've potentially stripped it out of the water before the water was delivered to people that would be consuming it or showering in it or using it for cooking.

  • 10:09:27

    REHMDina, what I don't understand is the first thing you said. How come we know so little about this chemical that's being used?

  • 10:09:42

    CAPPIELLOWell, the fact is, Diane, we know little about thousands of chemicals that are in commerce today. You know, we have a toxic law that is 30-plus years old. It hasn't been updated. It hasn't been reformed, despite calls for that, by the Obama administration legislation now in Congress. Sixty-two thousand chemicals when that law was passed were grandfathered, were not tested. When companies put a new chemical on the market, it's up to them to submit data to the EPA.

  • 10:10:15

    CAPPIELLOThe EPA has a very...

  • 10:10:17

    REHMIt's a self-regulating process.

  • 10:10:18

    CAPPIELLOBasically, what the EPA has been saying is, our hands are tied. The bar is so high for us to force these companies to test these chemicals and give us data to determine whether they're safe, that we're really hamstrung. In the case of PPh, Diane, let's remember, the company did disclose it, but they're not disclosing the exact formula because they're saying it's proprietary.

  • 10:10:42

    REHMAnd just to let our listeners know, Freedom Industries was invited to come on the program. They declined. We also reached out to West Virginia American Water -- that's the region's water supplier -- and to West Virginia Gov. Earl Ray Tomblin and to the Environmental Protection Agency, the U.S. Chemical Safety Board.

  • 10:11:16

    REHMThe EPA did not respond. Chemical Safety Board said it could not provide anyone to join our program for even five minutes. Now, Paul, to you, why or what explanation has the company given as to why it waited nearly two weeks to notify regulators about this second chemical?

  • 10:11:49

    BARRETTFreedom Industries has given absolutely no explanation. In fact, it's not even clear who or what Freedom Industries is. As baffling as the situation with the regulation of thousands and thousands of potentially harmful chemicals is, in this microcosm involving this particular spill, we're dealing, at least so far, with an utter mystery. What is this company, Freedom Industries?

  • 10:12:17

    BARRETTIt is the product of a merger that took place on New Year's Eve 2013 of four smaller companies. Its ownership was initially completely unknown, and through the filing of a bankruptcy proceeding, which happened on the 17th, we were able only through some filings, detective work, to figure out that the company is now owned by the owner of a Pennsylvania mining company whose name is J. Clifford Forrest.

  • 10:12:49

    BARRETTAnd for some reason, Mr. Forrest did not want to disclose either his initial acquisition of Freedom Industries, which took place, as I said, just nine or 10 days before the spill. And since the spill has been disclosed, he's had absolutely nothing to say. So we are dealing with a truly peculiar and deeply troubling situation.

  • 10:13:13

    REHMDina.

  • 10:13:15

    CAPPIELLOWell, listening to Mr. Barrett, I just can't help but think of the BP spill, right? This huge spill in the Gulf of Mexico and BP just responding right away, right, huge response, right, in front of cameras, talking about this, what they're going to do about this. And I agree, I think it's just very unusual in terms of spill response 101, I think, Paul, as you put it in your piece today, that this company, you know, hasn't really responded.

  • 10:13:43

    CAPPIELLOI mean, the day that this spill was discovered when there was reports all over Charleston, W.Va., of this licorice smell in the air -- let's remember that -- this was a spill detected by noses, not by a company calling in and saying, hey, we have a situation here. Our tank is leaking. There's a crack in the containment.

  • 10:14:01

    CAPPIELLOThese are supposed to have containments, right, cement walls around them that are supposed to be able to handle the whole volume of the tank and then some. It was only discovered by reports of an odor. And then state officials went out and saw this stream going from the tank into the river that was thicker than water but less thick than syrup. And at only that point did they say, hey, we have a problem.

  • 10:14:29

    REHMNow, Paul, I understand that Freedom Industries had a deadline of yesterday at 4:00 p.m. to disclose any and all chemicals that had been involved. What do we know about that disclosure? Did they meet their deadline?

  • 10:14:53

    BARRETTWell, all we know is that so far Freedom Industries has revealed the existence of these two chemicals that you've already mentioned in the spill. They have not identified any additional chemicals. And it's probably important to drop a quick footnote here that the people of the Charleston region actually were somewhat lucky in that these chemicals, though they have ominous-sounding names, are in fact not, so far as we know, are not at the most hazardous, most deadly end of the spectrum.

  • 10:15:27

    BARRETTThis could've been a lot worse. And in many ways, this whole episode was more of a warning than it was an immediate health crisis. We, so far, thank goodness, have had no deaths. So far as I know, there's no one even in critical condition in the hospital. But all that said, we still don't really know exactly what happened here.

  • 10:15:50

    BARRETTWe still don't know who's in control of Freedom Industries. And, you know, having seen a number of these kinds of disasters over the years, the reference to the BP spill, I think, was quite helpful, this one is deeply troubling for the reason that we just can't tell who's in charge here.

  • 10:16:09

    REHMAnd with the declared bankruptcy of Freedom Industries, does that mean we're never going to know?

  • 10:16:20

    BARRETTNo, to the contrary. One of the good side effects of the bankruptcy process, which is a process, just as a quick aside, whereby the company, the debtor company, in this case, Freedom Industries, goes to the bankruptcy court and in exchange for putting itself into the hands of the bankruptcy judge is protected, at least temporarily, from its creditors. In this case, Freedom Industries is desperate to get some temporary protection from the plaintiff's lawyers who have filed some two dozen liability suits.

  • 10:16:53

    BARRETTBut one of the good side effects of the bankruptcy process is that it requires the debtor company to disclose information that it otherwise wouldn't disclose. So creditors are going to have an opportunity to demand information and we will actually learn more as a result of the Chapter 11 filing than we would have otherwise. So that's something to keep an eye on, and that's a silver lining of all the legal skirmishing.

  • 10:17:18

    REHMBut, Dina, Paul said something that caught my ear. He said that, thus far, no one has been critically injured. No one has died. How can we know what the long-term effects of these chemicals are? Weren't residents warned not only not to drink, but not even to bathe, not to do anything with this water?

  • 10:17:53

    CAPPIELLOI think that it's going to be very difficult, Diane, because we don't know what they were exposed to. We don't know how many people followed that warning, how many people had access to bottled water, if they went to their grocery store and it was sold out and they were desperate and they had to drink it.

  • 10:18:09

    CAPPIELLOYou know, we've also encountered a situation in this where the federal government was working on the fly. The CDC said one ppm was safe and then said, wait a minute, pregnant women shouldn't be drinking at one ppm. They should be drinking it as zero. So how many pregnant women were drinking this?

  • 10:18:25

    REHMDina Cappiello of the Associated Press. Paul Barrett, he's with Bloomberg Business Week and author of "Glock: The Rise of America's Gun." Short break here. We'll be right back.

  • 10:20:00

    REHMAnd welcome back. Joining us now from Charleston, W.Va., Ken Ward Jr. He's a reporter with the Charleston Gazette. He's been covering the spill right from the beginning. Ken, tell us, has the tap water in the Charleston area been deemed safe to drink and use yet?

  • 10:20:28

    MR. KEN WARD JR.Well, the -- for everybody except pregnant women, depending on who you believe, the do-not-use order from West Virginia American Water Company has been lifted for everyone. But the Centers for Disease Control said yesterday that while everyone here was told anything below one part per million is OK, the CDC said yesterday that, well, you know, that's not really a bright line, and people don't really understand that.

  • 10:21:02

    MR. KEN WARD JR.And, you know, maybe we should've been more clear about what this means. So I think there's a lot of confusion among the public because public health agencies, the state and the federal level, haven't really been very clear to people about what these numbers they're throwing out mean.

  • 10:21:18

    REHMAnd I gather the West Virginia Gov. Earl Ray Tomblin had a press conference yesterday. You asked him some questions about whether people in the state had lost trust in their government. What did he say?

  • 10:21:38

    WARD JR.Well, you know, I asked him -- I pointed out to him that if you go to grocery stores around the area here, people are filling up their carts with bottled water. If you go to restaurants, people are asking if they're cooking with bottled water. Some of the restaurants have signs out notifying customers, hey, we're using bottled water.

  • 10:21:56

    WARD JR.And I asked the governor that, you know, despite this do-not-use order being lifted, are these indications that people don't believe what they're being told by the water company and the government, and did he think that people had lost trust? And, if so, what was he going to do about it? And he basically said, well, you know, it's a personal decision. If you're uncomfortable drinking this water or cooking with it, then don't. Use bottled water.

  • 10:22:22

    REHMDo you know if the governor himself drinks the tap water there?

  • 10:22:27

    WARD JR.The governor has indicated, the last that I heard, that he is drinking the tap water. The president of West Virginia American Water Company had some reporters in a couple days ago. And there was -- I was not there, but, as it was reported to me, there was a kind of a scene where they had a couple reporters around the conference table.

  • 10:22:47

    WARD JR.And they had some pitchers of water, and he was drinking out of one of the glasses with water from the pitchers. And a TV reporter said, well, how do we know you didn't just fill those up with bottled water? So he kind of then was forced to go into the kitchen at their office and fill a glass from the tap and drink it in front of the cameras.

  • 10:23:04

    REHMHow have West Virginia regulators responded to this late disclosure about PPh?

  • 10:23:15

    JR.Well, you know, they're kind of pounding their fist on the table like this is outrageous that Freedom Industries, the company that owned this tank farm, didn't tell us everything that was in the tank. And, you know, the governor said, this is outrageous. And the State Department of Environmental Protection says, this is outrageous. But, you know, early on, the public was being told that our regulatory agencies were testing the material in the tank to confirm what was in it.

  • 10:23:40

    JR.And they've been unable so far to explain to me why that testing didn't discover this stuff in the first place and why we're just now learning about it from the company. And it's also not clear when the -- if or when the state was going to make public that information about that additional chemical. We learned about it from a source and confirmed that information with the U.S. Chemical Safety Board and then published a story based on that. And then after that, the state provided some of its people to talk to us about it.

  • 10:24:12

    JR.The -- a staffer from the State Department of Environmental Protection, after learning about this additional chemical PPh, gave a briefing to our legislature on the status of the site and didn't mention that piece of information. We were told later he was acting out of an abundance of caution, that he hadn't confirmed the amounts or exactly what issues there might be with this chemical and wanted to get more information before he went public with it.

  • 10:24:40

    REHMMy understanding is that the water supplier has now refused to consider putting in a new water intake system above where the spill occurred. Tell us about that.

  • 10:24:58

    WARD JR.That's correct. The tank farm that Freedom Industries has is about a mile-and-a-half up the Elk River from West Virginia American Water Company's plant here, which is a regional plant, serving 300,000 people in and around the Charleston area and outlying areas. And we've asked -- we had a lot of readers asking, why don't they just, you know, run a pipe up the river and take water out above the site of the spill and that would give people confidence in what's going on?

  • 10:25:29

    WARD JR.And I've asked the governor's office about that, and they haven't responded to that question. And we've asked the water company about it and the water company said, no we're not even talking about that or considering that. There was a report done in 2002 by the State Bureau of Public Health assessing the water that serves the Charleston area. And one of the recommendations in that report was that they needed to consider having a secondary or an alternate source in case something like this happened.

  • 10:25:58

    REHMHmm.

  • 10:26:00

    WARD JR.And as best, we're able to determine there was never any follow-up on that report. No one's been able to say, you know, how much would it cost to do that? How quickly could they do that? You know, the federal government's been not very visible here. And one of the things our readers keep asking is, why doesn't the federal government come in and have their Army Corps of Engineers get on this and do something like that to restore people's confidence that the water is clear? But no one seems interested in doing that.

  • 10:26:29

    REHMAnd what is the mood of the people? Are there lots of folks out there threatening to sue? And, if so, who are they going to sue now that Freedom Industries has declared bankruptcy?

  • 10:26:45

    WARD JR.Well, there are a number -- I've lost track of the exact number. There are more than two dozen lawsuits filed against both Freedom Industries and against West Virginia American Water Company, and also against Eastman Chemical which made this material and sold it to Freedom. You know, so a lot of people are upset about it.

  • 10:27:03

    WARD JR.One of the interesting things is, you know, the -- you hear a lot out of West Virginia about water pollution in coal mining communities. By and large, those places aren't here in Charleston. And a lot of people in Charleston, especially the folks that work in the big glass towers that are lawyers and lobbyists and consultants and whatnot for the coal industry, those folks tend to dismiss those concerns when they hear them from Boone County or Raleigh County about their water smelling bad or their water being polluted.

  • 10:27:35

    WARD JR.But it's -- the political dynamic that I think is most interesting is it's those very folks that live here in Charleston who also make their living off the coal industry. And they're not working in a mine, working in the courtroom. Those very kinds of folks are now very upset about this and all of a sudden have discovered that water is important.

  • 10:27:57

    REHMHere's an email question for you, Ken. "Does your observance of the West Virginia Department of Environmental Protection support the sentiment that that agency tends to give industries like natural gas and chemical more leeway than most other states' Environmental Protection Agencies?"

  • 10:28:25

    WARD JR.Well, I can't really speak to what other states do. I've spent my entire life here. But my hunch is that most states have political soft spots for the industries that provide lots of jobs and tax revenues. I can't imagine that that's not the case in other places.

  • 10:28:44

    WARD JR.As far as the State Department of Environmental Protection, I will say first that DEP, for the most part, in my experience, is one of the more transparent agencies that I've ever dealt with. And they also have a large staff, a very competent, very dedicated people that live here, whose families live here. And by and large, I think people with that agency want to protect our water and protect our environment.

  • 10:29:07

    WARD JR.Of course, you know, the guy who runs that agency is appointed by the governor. And, you know, the governor here, you know, has made it very clear that his main priority is the economy and jobs. When people have mentioned the word coal in connection with this incident, he's gotten very upset and said that it has nothing to do with coal, which is obviously just not true.

  • 10:29:28

    WARD JR.And, you know, the issue with the DEP's regulation of this particular facility, the governor has tried to say, this is an unregulated facility. And that's just not correct. They held a permit from the State Department of Environmental Protection which gave DEP every authority to inspect it, required the company to have a groundwater protection plan which they apparently never filed with DEP, required them to have a spill prevention plan which they never filed with the DEP. And there were plenty of tools for the DEP here to do more about this facility.

  • 10:30:03

    WARD JR.DEP, of course, like most public health environmental agencies, is not funded as well as it should be, does not have as many people as it should have. But you have to wonder why, if you have a facility a mile-and-a-half up river from a regional water intake, why inspection of it would not have been fairly high up on their priority list.

  • 10:30:24

    REHMAll right. I have an email here and -- for you, Ken. I think this is going to be of interest. It's from Robert Paulson, who identifies himself as General Counsel of the West Virginia Department of Administration at the state capitol complex in Charleston. He says, "I'm a Charleston resident. West Virginia American Water claims the water is safe to use at this point, but I have no friends who will use the water for cooking, drinking or bathing.

  • 10:31:09

    REHM"There is no trust in the water company at this point, and we do not believe for a second that the water is safe to use or will be in the near future. The licorice smell in the water persists even today." Now, this next sentence I don't stand behind, but you may, Ken Ward, be able to confirm it. He says, "One Freedom Industries executive is a convicted felon, twice for tax evasion and once for cocaine. This is a fly-by-night company. We are utterly at our wits end here." Ken, can you confirm that?

  • 10:32:03

    WARD JR.Well, I could say a couple things about that. I will say first that I have not been the person on our staff that has done the firsthand reporting of -- about the individuals behind this company. My colleague David Gutman has been reporting very extensively on that. One of the individuals that was at one point involved in the company indeed had a number of run-ins with the federal criminal authorities.

  • 10:32:29

    WARD JR.But I would say this about the more important thing in that email is this notion that this was a fly-by-night company. Mayor Danny Jones of Charleston has been very eloquent speaking about how this changes our city and hurts our reputation and creates fear among the people who live here.

  • 10:32:49

    WARD JR.But he's also taken -- he's also gone down this road of trying to write this incident off as simply the act of some rogue fly-by-night company that doesn't represent the broader business community here. And the thing that's important to remember is that this isn't the first sort of industrial disaster we've had in regional West Virginia.

  • 10:33:10

    REHMNo, of course not.

  • 10:33:11

    WARD JR.You know, Massy Energy, which was responsible for the Upper Big Branch disaster that killed 29 coal miners, they were a major coal producer, well capitalized. And the Chemical Safety Board has been in here to investigate major accidents at Bayer Crop Science and at DuPont that killed workers. And in the case of Bayer and at DuPont, threatened the public safety of the people who lived here. And, you know, Bayer and DuPont certainly are held up as model corporate citizens. So, you know...

  • 10:33:44

    REHMAll right. Ken Ward of the Charleston Gazette, and you're listening to "The Diane Rehm Show." Paul Barrett, let me ask you about that last sentence.

  • 10:34:00

    BARRETTYes. I have actually done some research on that. And the individual who that state official, Paulson, was referring to is a man named Carl Kennedy. And he actually was the man who started Freedom Industries. He's identified in West Virginia corporate filings as the original incorporator of the company in 1992. Kennedy, according to court documents, had been convicted of distributing cocaine in Charleston amid a citywide scandal in the late 1980s that actually brought down the Charleston mayor at the time, a guy named Roark who was also swept up in that cocaine scandal.

  • 10:34:51

    BARRETTSo that was in 1987. Five years later, this character Carl Kennedy starts this chemical company. He's an accountant, by the way, not a chemically-oriented person. And then some years later he is convicted again. This time -- it happened in 2004, 2005 timeframe -- of basically ripping off his own company and evading federal taxes. And what he was convicted of and pled guilty to was taking withholdings from the payroll and, rather than passing them along to the IRS, putting them in his pocket.

  • 10:35:37

    BARRETTSo he was caught doing this. IRS agents literally knocking at his office door and he pled guilty to that. And this time he actually went to prison. At that point he was separated from the company and the company sued him and there was a lot of litigation back and forth. But I think this pattern is something that should be very alarming to people in the area because it raises this question: What the heck was this guy doing starting and, for a time anyway, owning and overseeing a company dealing in dangerous chemicals?

  • 10:36:13

    BARRETTIt's one thing if a guy owns restaurants and bars, which, by the way, Kennedy also did. You know, there's only so much damage you're going to do by owning a bar downtown. But is this really the kind of character you want, owning the tank farm sitting along the river a mile-and-a-half upstream from your entire water supply? I think the answer is obviously no. And, you know, this just adds another whole dimension to the strange story of Freedom Industries.

  • 10:36:41

    REHMKen Ward, I want to give you a word. I've just been informed that Daniel Horowitz, managing director of the Chemical Safety Board, wants to call in. Would you like to stay on the line with us, or do you have to leave us?

  • 10:37:04

    WARD JR.I can stay with you for a little while. Thank you.

  • 10:37:06

    REHMAll right. That'll be just great. We'll take a short break here. And when we come back, you'll hear from the director of the Chemical Safety Board.

  • 10:39:59

    REHMAnd welcome back. Earlier I told you that we had invited a representative from the Chemical Safety Board to join us. We were told no one could for even five minutes. Now Daniel Horowitz, managing director of the Chemical Safety Board has said he would like to join us. The CSB is an independent federal agency. It's charged with investigating industrial chemical accidents. Headquartered here in Washington, the agency's board members are appointed by the president and confirmed by the Senate. Hello, Daniel Horowitz, thanks for joining us.

  • 10:40:57

    DR. DANIEL HOROWITZHi, Diane. Nice to be back on the show, again.

  • 10:40:59

    REHMWell, I'm just wondering why we were told yesterday no one could be with us for even five minutes.

  • 10:41:07

    HOROWITZI think people were just preoccupied with the investigation, but we are happy to be here.

  • 10:41:15

    REHMSo tell us what you want to tell us.

  • 10:41:19

    HOROWITZWell, I think this week's revelations are of concern, about other chemicals that were released into the water supply. And we are going to look into this issue, among others. We were as surprised as anyone to hear about a second group of chemicals, PPh, that were apparently in the tank and were not disclosed either to the drinking water officials or other agencies when this happened. And we're going to look into it along with the many other safety issues that I think this case raises.

  • 10:41:50

    REHMDo I understand correctly that there may be as many as 100,000 chemicals that we know absolutely nothing about that are part of whatever we are ingesting?

  • 10:42:11

    HOROWITZWell, there are certainly many thousands that are in commercial use where we don't have complete toxicology. And that is a concern no matter what the number is. So a lot more work has to be done to define both the short and long-term hazards of these substances. And when we talked last week, we talked about the material safety data sheet for the main chemical that was released in West Virginia and how many of the fields were blank. And I think the public is right to be very concerned about that issue.

  • 10:42:42

    REHMKen Ward, I wonder, before this particular spill, had you ever heard of these chemicals, PPh and the one disclosed earlier?

  • 10:42:56

    WARD JR.I had not. In fact, when this leak initially happened, I was occupied on another assignment. And when I got back to our newsroom, a colleague of mine came running over to my desk with the name of this chemical written down wanting to know what it was. My late father was a high school chemistry teacher. And so I have on my desk his copy of the "Condensed Chemical Dictionary." It's one of my prized possessions.

  • 10:43:28

    WARD JR.And so people seem, for some reason, to think that I can find information about these things. And I tried very quickly to find out something about this and was unable to. And, in fact, with the initial MSDS sheet that I was given by the state DEP officials who were responding turned out to be an outdated one that was about a decade old.

  • 10:43:49

    REHMAnd what about you, Paul Barrett?

  • 10:43:54

    BARRETTNo. But that doesn't really tell you very much because I certainly do not hold myself out as an expert on the chemical industry. I think what this illustrates is that even people like Ken and like me who try to pay attention to corporate conduct, either in our region or nationally, you know, we're not in a position to know that names and potential…

  • 10:44:17

    REHMSure.

  • 10:44:18

    BARRETT…toxicity levels of thousands and thousands of chemicals, which is why we need the experts to know that and why we need people on the beat.

  • 10:44:25

    REHMAnd why we need the Chemical Safety Board, Daniel Horowitz. And what I want to know is, did you know about these chemicals before the spill in West Virginia?

  • 10:44:42

    HOROWITZWe knew nothing about these chemicals, Diane. We've never encountered them before in any sort of investigation we've done. And that isn't so surprising in itself, but what is a real worry to us is how little hazard information and long-term toxicological study had been done before they were placed so close to the water supply.

  • 10:45:03

    REHMDaniel, I don't understand how you, on the Chemical Safety Board, can really be representing the federal government on these issues if you know nothing about the chemicals until there's a disaster. How can that be? What is happening with the EPA? What is happening with an organization called the Chemical Safety Board? What are you doing?

  • 10:45:48

    HOROWITZWell, Diane, let me clarify what the CSB is and what it isn't. The CSB is a 40-person investigative organization that goes in after disasters. We're non-regulatory. And we seek to determine what caused the accident and where were the gaps in regulations and oversight that allowed that to happen.

  • 10:46:06

    REHMAnd what have you found so far?

  • 10:46:09

    HOROWITZWell, what we've found is that there is a tank there or more than one tank that are very old, that are designed to a very old standard, without double walls, without leak detection, without proper containment, and one of them at least has a hole in the bottom that was never found or discovered while it was forming.

  • 10:46:31

    REHMYes.

  • 10:46:32

    HOROWITZSo that's a huge problem. But your basic question is, where are the regulators on this? Because they are multi-billion dollar agencies with thousands of people. And that's a question that we all need to get to the bottom of.

  • 10:46:45

    REHMPaul Barrett, is there any question in your mind that the EPA itself has somehow been inhibited from moving forward on its own work?

  • 10:47:01

    BARRETTI don't think there's any debate. Over the last half-dozen to dozen years, there's been a lot of pushback by industry and by political conservatives against the EPA. Looking at the coal industry and the regulation of the coal industry is just one example. You can't run for office, at least statewide office in West Virginia, without being an anti-EPA polemicist. You know, the current governor, the two Democratic senators who represent West Virginia, all have pounded the podium over how the EPA has gone overboard in regulating coal and in trying to push back federal regulation.

  • 10:47:54

    BARRETTThat's just a trope that's common not just in West Virginia but across the country in many places. The Tea Party movement has, as one of its central planks, the notion that federal agencies are over-reaching and denying states their sovereignty and so forth. So this is a major theme in our politics at the moment, and one that I think will remain. And I think you're seeing some of the side effects of that general mindset right now in the Charleston area in West Virginia.

  • 10:48:31

    REHMDina?

  • 10:48:31

    CAPPIELLOI think that Paul makes a couple good points. We have lawmakers on the federal level, West Virginia lawmakers, folks in Appalachia, chemical, oil, gas company pushing back against the EPA. Well, let's talk about what the EPA has done and hasn't done. OK? We had a coal ash spill more than five years ago in Tennessee that covered 300 acres with coal ash from a waste pot at a power plant. EPA pledged to regulate coal ash. It still hasn't. Many power plants that release toxic chemicals routinely are vastly unregulated.

  • 10:49:04

    CAPPIELLOJust last year, the EPA proposed limits for toxic metals that are released into waterways. These power plants, 399 cases of drinking water degradation from what these power plants are putting in. These power plants, most are located about drinking water wells. A third are located near public water intakes. These are actually chemicals we know about, we know that are associated with coal. And the grand irony here, Diane, is this is a waste stream that was created by another pollution control, which was cleaning up the air pollution from power plants.

  • 10:49:41

    CAPPIELLOAnd so when EPA steps into these debates, like, for instance, on coal mining, they've been more proactive than they have been in the past, in terms of reviewing mining permits. There is big push back on the state level and even from some other federal agencies about their enhanced role. And so we did a huge story at AP that this is just the latest and most high-profile example of coal's impacts on water and drinking water.

  • 10:50:06

    REHMAnd the tip of the iceberg. And back to you, Daniel Horowitz. You said your organization has 40 employees. What are those 40 employees doing?

  • 10:50:25

    HOROWITZWell, right now several of them are in West Virginia continuing to investigate this case. They're literally spread over 14 or 15 investigations across the country. We're always horribly strapped for resources. Our budget has actually been cut, been reduced in recent years. We've been trying to get it back up to a better level, but there are hundreds of accidents around the country every year, and, unfortunately, we can only do a handful of the most serious ones. We're certainly not resourced to go to every one of them.

  • 10:50:59

    REHMAnd are all of your employees scientists?

  • 10:51:05

    HOROWITZMany of them are. We have engineers, scientists, regulatory attorneys, human factor specialists. They run the gamut, and they come together as a team. And they do the best possible root-cause reports they can on these sorts of disasters.

  • 10:51:19

    REHMAnd, Ken Ward, turning back to you, what new and useful information do you see coming from an organization of federal agency, of federal regulating agency like the Chemical Safety Board bringing to you?

  • 10:51:46

    WARD JR.Well, I would say, first, Dina mentioned the EPA. And it's very popular among political leaders in West Virginia to bash the EPA. And people seem to have this mindset that they're a bunch of jack-booted thugs bashing down factory doors and throwing people out of work. And as Dina points out, you know, there's very serious issues that EPA just hasn't done anything about. And I will say that EPA has been nowhere to be seen here in West Virginia on this.

  • 10:52:13

    WARD JR.The Chemical Safety Board has been to West Virginia many times before the Chemical Safety Board had part of its -- West Virginia is one of its birth places. The reason Congress started looking closer at chemical safety, in part, was the Bo Paul disaster in India in 1984, but it was also a leak from a Union carbide plant in 1985 here in West Virginia.

  • 10:52:40

    WARD JR.And when the Chemical Safety Board has come in there, they've done something different than what other agencies do. OSHA is going to inspect the Freedom Industry site, but they're just checking off a list of standards to see if there were violations. And then if they find violations of very narrow specific standards, they'll issue some citations and some meager fines.

  • 10:52:57

    REHMHmm.

  • 10:53:00

    WARD JR.What the Chemical Safety Board has done, they will come in a look more broadly not at just the company's behavior but also at other agencies, at state and federal regulatory agencies, and whether or not there are loopholes in the law or failures to enforce.

  • 10:53:18

    REHMBut what powers does that group have if it finds such violations?

  • 10:53:26

    WARD JR.Its power is in information. And it allows, for example, members of the public to find out, well, what exactly did cause this? And it provides information to reporters, like me, so we can write stories saying, here's exactly what caused this, and go to local emergency people and ask them why they didn't plan for it.

  • 10:53:46

    WARD JR.For example, twice in West Virginia, after major accidents at Behr and DuPont, the Chemical Safety Board has recommended that the State of West Virginia, the Department of Health and Human Resources, work with the Kanawha Charleston Health Department to create a statewide chemical accident prevention program that would try to stop these things from happening, rather than just coming in afterward.

  • 10:54:06

    REHMAll right.

  • 10:54:08

    WARD JR.And the state has never acted on that.

  • 10:54:10

    REHMAll right. And you're listening to "The Diane Rehm Show." I'm so sorry I have not as yet been able to open the phones, but now I'm going to Safety Harbor, Fla. Hello there, Robin. Thanks for waiting.

  • 10:54:28

    ROBINYes. Hi, Diane. Thanks for taking my call.

  • 10:54:31

    REHMSure.

  • 10:54:31

    ROBINYou know, I'm really confused, especially in listening to the most recent guest, as to why no one has discussed the federal law under the Super Fund Reauthorization Act. It is a community right-to-know law. And it requires facilities to develop emergency plans and for localities to be aware of them so that these kinds of spills can be managed.

  • 10:54:56

    REHMDina Cappiello, do you want to comment?

  • 10:54:58

    CAPPIELLOThat's a really good point. This is what's called a Tier 2 List, and they're supposed to list chemicals that they are storing in large quantities on site that are hazardous. I'm aware that they disclose MCHM. I did see that on their Tier 2 Report to local emergency officials. I did not see PPh. Ken may know why.

  • 10:55:18

    CAPPIELLOI suspect it might have not been in sufficient quantities to trigger Tier 2 reporting, or it might not have been hazardous enough to be on that list. But as we saw in the West Texas explosion with ammonium nitrate, these reports -- yes, they're required by the Emergency Planning and Community Right to Know Act, which is what you were talking about.

  • 10:55:37

    CAPPIELLOBut a lot of times on these reports, they go to these local emergency planners, and there is no training related to what to do in a spill. They may not know what these chemicals are. I mean, the Tier 2 I saw, it was still an acronym. It wasn't even spelled out that it was methylcyclohexanemethanol. And so I think that it's great for them to be able to report this, but I think the West Texas explosion, and this case as well, highlight reforms needed in that law to actually plan better when you actually get this information.

  • 10:56:08

    REHMPaul Barrett, last word.

  • 10:56:11

    BARRETTWell, the last word I think should be the question, what do we expect from our enforcement officials at the state level, the people who are primarily responsible -- not the Feds, but at the state level on a day-to-day, week-to-week basis for overseeing facilities like this one? What do we expect from them when all of the elected officials in the state, from the governor on down, as Ken Ward pointed out, spend so much time bashing regulation?

  • 10:56:39

    BARRETTThat is a signal from the people with the most power to the career people and people at lower levels to go easy on their jobs -- if you use the analogy of a cop -- to not be so nosy about what might be going on in the dark corners. And until you change that larger environment and stop sending signals to the enforcement people that they really shouldn't be enforcing anything, you're not going to see serious change.

  • 10:57:03

    REHMPaul Barrett of Bloomberg Business Week, Ken Ward, reporter at the Charleston Gazette, Dina Cappiello of the Associated Press, and, Daniel Horowitz of the Chemical Safety Board, thank you all.

  • 10:57:22

    CAPPIELLOThanks, Diane.

  • 10:57:24

    HOROWITZThanks, Diane.

  • 10:57:25

    REHMAnd thanks for listening. I'm Diane Rehm.

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