The U.S. Chemical Safety and Hazard Investigation Board writes final reports, not epilogues.
It’s the board’s job to investigate industrial chemical incidents and issue safety recommendations based on the root causes it finds.
The lesson the board spelled out in its final report on a 2014 Elk River chemical spill that polluted the drinking water of 300,000 people was clear.
Don’t let another Tank 396 slip by.
The report mentioned Tank 396 more than 100 times across 134 pages because it was the aboveground storage tank from which nearly 11,000 gallons of a mixture of a coal-cleaning solvent and polyglycol ethers escaped through two small holes on the tank floor and rolled into the adjacent Elk River. The mixture flowed downstream to the intake of a West Virginia American Water treatment facility a mile-and-a-half downriver from Tank 396 at the Freedom Industries chemical storage and distribution facility in Charleston.
The board’s investigation found aboveground storage tanks in West Virginia were “inadequately regulated” at the time of the spill Jan. 9, 2014 — the second day of a 60-day state legislative session during which lawmakers came to the same conclusion, subsequently passing the Aboveground Storage Tank Act. That still requires tank operators to submit spill prevention response plans. Certain tanks must be registered and undergo certified inspection.
Freedom Industries never was inspected for compliance with a state rule requiring secondary containment for all the company’s tanks. Before the advent of the Aboveground Storage Tank Act, Freedom was not regulated under a state program that would have resulted in regular inspections or site visits.
The Legislature crafted the law while experiencing firsthand the fallout of Tank 396. The leak prompted West Virginia American Water to issue a do-not-use order for people in parts of nine counties. Hundreds of people experiencing skin, eye and respiratory tract irritation sought treatment at local hospital emergency rooms. Businesses and schools closed.
The Chemical Safety Board emphasized the state Department of Environmental Protection would conduct increased inspections for pollution prevention practices at facilities like Freedom in accordance with the Aboveground Storage Tank Act, concluding the law and a corresponding legislative rule “addressed many of the gaps and deficiencies” the board found during its investigation.
“[The department] is now equipped with the appropriate authority and tools to carry out the requirements of the statute to ensure the prevention of similar incidents in West Virginia,” the board wrote in its final report.
But earlier this month, the state House of Delegates passed a bill that would roll back a key provision of the Aboveground Storage Tank Act, removing from state regulation a category of oil and gas tanks containing 8,820 gallons or fewer.
The bill has triggered opposition from state regulators and water utilities who fear efforts to prevent drinking water contamination would not be as effective without the tank oversight the measure would erase.
Environmental and health regulators worry the bill will reduce source water protection, said DEP spokesman Terry Fletcher. West Virginia American Water, the West Virginia Rural Water Association and the Morgantown Utility Board representatives have spoken out against the bill, saying it would make identifying tanks and protecting source water more difficult.
House Bill 2598 supporters in the oil and gas industry say the bill would avoid adverse environmental effects and instead relieve struggling operators incurring what in some cases are prohibitive costs of complying with the regulation in its current form.
A 2016 state legislative rule established a registration fee of $40 per tank for all tanks in service prior to July 1, 2015, and $20 per tank for tanks placed into service since then, an operating fee of $201 per tank per year for tanks within zones of critical concern and an annual response fee to be reviewed annually.
Opponents of the Aboveground Storage Tank Act rollback say that’s not too high a price for operators to pay to protect drinking water.
“Once they’re in the groundwater, it’s a lot more expensive for companies to remove the contaminants than it is for them to do an annual inspection,” West Virginia Rivers Coalition staff scientist Autumn Crowe said.
Crowe and others spoke during a self-proclaimed “People’s Public Hearing” held virtually last month after two Republican-controlled House committees declined to hold hearings on the tank bill before approving it.
The Chemical Safety Board has conducted seven investigations of incidents that killed 14 people in West Virginia since 2007. Only Texas has been the focus of more board investigations since 2006. Four probes focused on incidents in Kanawha County.
The Kanawha Valley is known as Chemical Valley for good reason.
David Fletcher knows this firsthand as a longtime member of Belle’s volunteer fire department and the town’s mayor since 2018.
“We know just living where we’re living that we take a chance every day of actually having an incident that could come,” Fletcher said.
Fletcher was walking through his house on the western end of town Dec. 8 when he heard the blast and saw the fire. The explosion at Optima Belle LLC’s chemical plant at the Chemours Company site killed a plant worker and injured two others. Optima Belle was performing a process to remove water from chlorinated dry bleach when the blast ripped through an industrial dryer unit.
Three months after Belle and seven years after the Freedom Industries spill, the proposed gutting of the Aboveground Storage Tank Act is the latest in a series of moves over the past 15 years demonstrating lessons from the Chemical Safety Board have gone unheeded.
In 2011, the chemical board recommended the Kanawha-Charleston Health Department establish a hazardous chemical release prevention program to better avoid accidental releases of highly hazardous chemicals and improve responses to such releases. The recommendation was not followed.
That guidance followed the board’s investigation of a pressure vessel explosion that killed two workers at the Bayer CropScience facility in Institute in 2008.
The board advised in part that the health department ensure chemical facilities implement written safety plans with descriptions of hazard controls. The board also recommended right-of-entry to facilities and access to information to conduct audits of safety systems and investigations of chemical releases while establishing a system of fees assessed on facilities to cover oversight.
In 2014, a state public water service supply study commission established by the Aboveground Storage Tank Act was convened to review topics including the board’s recommendations from the Bayer CropScience investigation. In December 2015, the commission noted in a report to the state Joint Committee on Government and Finance that a work group tasked with reviewing board recommendations was to meet in January 2016 to resume consideration of the recommendations.
“There has been little update since then,” board spokeswoman Hillary Cohen said.
In 2019, the board appealed to Gov. Jim Justice, requesting his attention to the recommendation to the Kanawha-Charleston Health Department and two others to the state departments of Health and Human Resources and Environmental Protection to assist the Kanawha-Charleston Health Department in planning, fee collection and implementation of a hazardous chemical release prevention program.
“While some state and local governments with similarly high concentrations of these facilities had developed programs to audit and inspect them on a regular basis, neither the state of West Virginia nor any local government agency had developed such a program,” Chemical Safety Board member Kristen M. Kulinowski wrote to Justice in a January 2019 letter.
The board never heard from Justice, Cohen said.
Justice’s office could not be reached for comment.
Kanawha-Charleston Health Department Chief of Staff John Law said the department told the chemical board it did not plan to implement the board’s recommendation because it was out of the local health purview and there was little interest from the state or county in supplying the seed money needed to initially implement the program.
Kanawha County Commissioner Kent Carper said he doubts the state Legislature would be interested in expanding the authority of a local health department given its recent focus on checking local health department powers.
Justice earlier this month signed a bill requiring any rule set by county health boards to be approved by the county commission and any other appointing authority after a public comment period.
Carper also said the board’s recommendation would unnecessarily duplicate oversight responsibilities already shared by other agencies.
“The health department doesn’t have the employees or knowledge on how to regulate chemical plants,” Carper said. “Is that something that really is needed? You’ve got all these federal regulatory agencies. You’ve got the state agencies. You’ve got the DEP, OSHA [the Occupational Safety and Health Administration]. You would think between all of that alphabet soup, they could regulate the chemical plants.”
State emergency management spokeswoman Lora Lipscomb said the board recommendation might duplicate responsibilities outlined in OSHA’s program for managing highly hazardous chemicals and a U.S. Environmental Protection Agency rule requiring facilities that use extremely hazardous substances to develop a risk management plan.
But the board found that OSHA and EPA resources were too limited for those agencies to thoroughly audit facilities.
The board’s recommendation intended for Kanawha County to duplicate the model of a program implemented in Contra Costa County, California, which in 1999 empowered the county health services department to oversee refining and chemical facilities there, financed through facility fees. The move resulted in a drastic reduction in major chemical accidents and releases over the next decade.
The board noted that facilities under the program were inspected for process safety compliance every three years by a team of trained engineers employed by the county, in contrast to the relative infrequency of comprehensive OSHA and EPA safety inspections of high-hazard chemical facilities. Those reviews often only result from a serious accident or complaint.
When the dust doesn’t settle
The board has deemed most public and private responses to its recommendations acceptable, but other key reforms it has urged have fallen by the wayside.
After investigating a metal dust explosion that killed three workers at an A.L. Solutions titanium plant in New Cumberland in December 2010, the board determined company personnel were not familiar with recommended guidance from the National Fire Protection Association for preventing metal dust fires. Dust management and fire prevention practices did not align with industry standards.
The 2010 incident followed a 2006 explosion that killed a supervisor cleaning the inside of a mill tank where residual metal ignited. The OSHA levied fines on Jamegy, Inc., which operated the New Cumberland facility before A.L. Solutions but did not mention industry standards to address a failure to control metal dust hazards, according to the Chemical Safety Board.
The agency concluded the incident demonstrated the need for the OSHA to provide companies with specific and enforceable requirements for the prevention of combustible dust explosions.
Fifteen years later, there still isn’t a combustible dust standard. Rulemaking to develop a standard began but stalled during the Obama administration. The Trump administration removed that rulemaking from the federal regulatory agenda in 2017, citing “resource constraints and other priorities.”
OSHA spokeswoman Lenore Uddyback-Fortson pointed to agency efforts to address the need for additional information and training on combustible dust hazards, including both a poster listing products and materials that could spark a combustible dust explosion and a safety and health information bulletin from 2005.
Uddyback-Fortson also noted OSHA’s 2008 revision of its national emphasis program for combustible dust launched the previous year. That strengthened enforcement and citations of existing standards. The program provides guidance to OSHA inspectors on how to inspect and issue citations for workplace conditions involving combustible dust hazards.
The West Virginia Area Office of OSHA did not conduct a combustible dust inspection under the national emphasis program at A.L. Solutions before the 2010 incident despite the company’s history of metal dust, according to the board’s final report. Unless prompted by a complaint or referral, combustible dust inspections were based on a randomized selection of facilities regardless of previous incidents.
The method of site selection is the same today, though area offices may make additions and deletions to a randomized list as they deem appropriate based on their familiarity with local industries.
The Chemical Safety Board also has found incidents resulting in fatalities followed similarly catastrophic incidents at the same facility.
In one instance, it took just weeks for the pattern to emerge.
Two workers were killed and a third was severely injured at the Midland Resource Recovery facility in Barbour County on May 24, 2017, when the top tank of an odorizer used to make gas detectable by smell exploded.
Board investigators visited the facility less than a month later to conduct interviews. They had developed a hypothesis that the company’s equipment deodorizing process had created the possibility that each chemically treated odorizer was “essentially a bomb.”
Concerns investigators raised about plans to drain the remaining odorizers were brushed aside. An unnamed former DuPont employee and gubernatorially appointed state Fire Commission officer managing a contracting firm the company hired to perform investigation and mitigation work said, “If our science is right, this will be fine.”
Investigators took cover behind a shipping container situated behind a building more than 150 feet away. An odorizer exploded less than five minutes after the draining operation started, killing a field supervisor.
Two previous explosions involving metal dust ignition happened at the New Cumberland facility before the deadly 2010 blast there, according to the board. The board noted in its final report on the 2010 incident that the New Cumberland Volunteer Fire Department responded to at least seven fires at A.L. Solutions from 1993 until that incident.
Investigators found other fires had occurred that did not result in a fire department response and A.L. Solutions maintained a “housekeeping approach” to minimize dust accumulations instead of adopting more robust engineering controls.
The 2008 Bayer CropScience explosion involved critically improper control system interlock changes that led to a catastrophic residue treater failure 15 years after a recommendation to improve administrative controls involving process interlocks. That followed an explosion in a reactor loop that killed one and injured two at the facility, which was then owned and operated by Rhone-Poulenc.
Risk assessment reckonings
The fate of the House bill that would gut the Aboveground Storage Tank Act is uncertain.
The legislation was reported to the Senate Judiciary Committee on March 12 and has yet to make it on a committee meeting agenda. The committee’s chairman and vice chairman, Sen. Charles S. Trump IV, R-Morgan, and Sen. Ryan W. Weld, R-Brooke, could not be reached for comment.
The Legislature carved out an exemption for these in 2017 but for only those outside of zones of critical concern.
The exemptions started a year after the Elk River spill, when the Legislature in 2015 scaled back the Aboveground Storage Tank Act to only require inspection of tanks that contain either 50,000 gallons or more of hazardous material or are located within a zone of critical concern.
Clean water and chemical safety advocates across West Virginia find themselves in a familiar situation: hoping the Legislature doesn’t cross too many of their red lines while a Chemical Safety Board investigation of a state incident is pending.
Charleston native Morgan King, a Capital High School senior during the Elk River chemical spill, said during the “People’s Public Hearing” on House Bill 2598 earlier this month she was shocked by the spill. She said she saw the subsequent passage of the Aboveground Storage Tank Act as reason to feel secure that a similar crisis wouldn’t happen again, inspiring her to pursue studies in civil and environmental engineering and public policy.
“I’ve learned, though, since that the threat of water inequities in our state is far more complex and unfortunately political than my naïve 17-year-old self believed,” King said. “The actual loss [from] this policy if another spill occurs is the risk of the health of thousands upon thousands of lives and costs to our local businesses if they have to shut down again, such as in 2014.”
“Politicians can take an ounce of prevention by maintaining the law as it is,” Joseph Golden of Beckley said during the hearing, “or later pay a ton of cure.”