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Regulation, Oversight Gaps May Have Left Site of West Virginia Spill Vulnerable

Jan 14, 2014

The ongoing water ban in West Virginia is being blamed on regulation gaps and bureaucratic negligence, media outlets are reporting. A chemical spill into the Elk River has left some 300,000 people without water since January 9th.

It seems that numerous regulations that had never been completed, and some hand-offs by bureaucrats, are what may have enabled the massive chemical leak to occur when no one was looking, according to The Wall Street Journal.

About 7,500 gallons of the chemical, 4-methylcyclohexane methanol (MCHM), leaked into the river from a 48,000-gallon tank and led to the nine-county water ban, The Consumerist reported. According to The Wall Street Journal, both the tank and the storage facility, which are owned by Freedom Industries, received virtually no monitoring at the state and local levels. A state regulator told The Wall Street Journal that environmental inspectors have not visited the site since 1991.

The lack of oversight—which spans more than two decades—could have left an expanding storage tank hole ignored. Meanwhile, MCHM is largely unregulated, adding to the problem, notes The Consumerist.

While Freedom Industries did include MCHM on a list of chemicals it provided to the West Virginia Department of Homeland Security and Emergency Management, a requirement under the law, the list, according to The Consumerist was not sent “anywhere useful.” Spokespeople for both West Virginia American Water and a local emergency management group, both told The Wall Street Journal that they had no knowledge that such a list existed.

The water company spokesperson also said that its facilities maintains a source water protection plan, but that the most recent plan was completed over 10 years ago, in 2002 and that the tank that is the culprit in this case, was identified as presenting a potential threat, back in 2002, according to The Wall Street Journal.

Following completion of the 2002 plan, site and tank ownership changed. Also, writes The Wall Street Journal, the site didn’t see a great deal of regulation, as it was being used for storage and not active processing or manufacturing. What’s more, the Environmental Protection Agency (EPA) does not heavily regulate above-ground chemical storage facilities.

Under state law, Freedom Industries was required to provide containment areas to contain spills, allow for easy leak detection, and prepare and implement a groundwater protection plan. Freedom Industries had not yet provided the EPA with such a plan, according to The Wall Street Journal. The county-level emergency-response-planning group chairman said, “I don’t want to overregulate private industry, but this does show that there are some chemicals that fall under the radar.”

Meanwhile, in related news, three years ago concerning chemical spill regulation, federal experts urged the state to assist Kanawha Valley in creating a revised program to prevent hazardous chemical accidents, according to The Charleston Gazette-News. The recommendation made by the U,S. Chemical Safety Board (CSB) followed a large investigation into an August 2008 explosion and fire that killed two employees, and injured others, at the Bayer CropScience plant. Nothing was done with the proposal and the state Department of Health and Human Resources has not intervened with the legal authority needed by the health department there to initiate the program; county officials have not funded the plan and rarely discuss that the recommendation was ever made. "We'd had their recommendation on the books for several years now," said Dr. Rahul Gupta, director of the local health department, The Charleston Gazette-News reported.

The CSB's proposal for a new "Hazardous Chemical Release Prevention Program," was the focus of the Bayer explosion report; the recommendation was repeated in September 2011, according to The Charleston Gazette-News. In June 2011, then-DHHR Secretary Michael Lewis told the CSB that his agency and the state Department of Environmental Protection (DEP) opted against pursuing CSB’s recommendation. "We came to a consensus that we did not, at this time, have the expertise in-house to draft the appropriate legislation that would be needed to develop the type of program suggested in your report," wrote Lewis.

U.S. Occupational Safety and Health Administration (OSHA) never inspected the Freedom Industries location, and the state DEP has not been there since 1991, when it was under different ownership and in place for a different purpose, according to The Charleston Gazette-News.

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