West Virginia chemical spill in Elk River poses a new test for lawmakers

The Washington PostJanuary 19, 2014 

WASHINGTON -- There are more than 80,000 chemicals in the United States catalogued by government regulators, and the health risks of most of them are unknown.

This became glaringly obvious when, on Jan. 9, a clear, licorice-smelling chemical leaked from an old storage tank into the Elk River in West Virginia, contaminating the drinking water for a big chunk of the state, including the capital, Charleston.

What made the spill alarming was not only the reports of rashes, stomach aches and other ailments, but also the paucity of solid information about the potential toxicity of Crude MCHM, which is primarily composed of a chemical named 4-methylcyclohexane methanol.

The 15-page Material Safety Data Sheet for the chemical, which is manufactured by the Tennessee-based Eastman Chemical Co., uses the phrase "No data available" 152 times.

For example:

Repeated dose toxicity: "No data available."

Carcinogenicity: "No data available."

Reproductive toxicity: "No data available."

Specific target organ toxicity, repeated exposure: "No data available."

So sketchy is the public health system's understanding of the chemical's toxicity that officials wound up backtracking on whether it was safe for everyone to start drinking the water again after the do-not-use order was lifted last week.

At first, the Centers for Disease Control said that the water would be safe if it had less than 1 part per million of Crude MCHM. But then on Wednesday, the state Department of Health and Human Resources, after consulting with the CDC, said pregnant women shouldn't drink the water until officials declare it free of any trace of the chemical.

"There are extraordinary gaps in knowledge," said Daniel Horowitz, head of the U.S. Chemical Safety Board, an independent agency that investigates industrial accidents. Of the West Virginia case, he said, "There are so many chemicals around, and in most cases the toxicology is not complete."

Chemicals in the United States are generally treated as innocent until proven guilty. A company does not have to prove that a chemical poses no health hazard in order to introduce it into the commercial market.

Maranda Demuth, a spokeswoman for Eastman Chemical, said the company "goes to great lengths to ensure our commercial products and facilities meet or exceed regulatory standards."

She said that, although U.S. law did not require Eastman to test Crude MCHM, the company voluntarily conducted 18 toxicity tests on the product and its major component. She played down the significance of the "No data available" entries, noting that nine of 152 such entries refer to water, which is harmless. She said the company abides by the European Union's strict requirements for toxicity disclosure, and that, had the company followed the U.S. standard, it wouldn't have included the "no data" entries at all.

It has been 38 years since Congress passed a major piece of legislation regulating toxic chemicals. No one on any side of the debate over chemicals disputes that the Toxic Substances Control Act (TSCA -- usually referred to as "Tosca") is outdated and needs an upgrade.

Two senators, the late Frank Lautenberg, D-N.J., and David Vitter, R-La., introduced an industry-friendly bill last year called the Chemical Safety Improvement Act. Lautenberg died just days later. The bill is mired in a Senate committee; on the other end of the Capitol, a House subcommittee has held hearings on chemical safety and is crafting a bill similar to the Senate's.

The Senate bill is opposed by Safer Chemicals, Healthy Families, a coalition of environmental, labor and public health organizations. What happened in West Virginia is a scandal, said coalition director Andy Igrejas, and "the second scandal is that the reform that's on the table now would do almost nothing to change that situation."

The new act would separate chemicals into two categories, high and low priority, and the Environmental Protection Agency would be allowed to conduct tests on only the high-priority chemicals. States would have to follow the federal lead -- a one-size-fits-all approach that the industry favors.

But the chemicals are categorized according to the hazards they pose if used properly, for their intended industrial purpose. As Demuth, the spokeswoman for Eastman Chemical, noted, "Eastman tested the mixture Crude MCHM for its intended use as an industrial chemical in a controlled industrial environment using a variety of toxicity tests."

Crude MCHM would probably be considered a low-priority chemical by the EPA, said Henry Waxman, D-Calif., ranking member on the House Energy and Commerce Committee. The EPA would then be prohibited from subjecting the chemical to further tests, he said.

"That is a recipe for new regulatory and knowledge gaps that could prove just as harmful as the ones we're facing in West Virginia," Waxman said.

But Charlotte Baker, spokeswoman for the House Energy and Commerce Committee, said the two-tiered approach is sensible: "Of the thousands of chemicals out there, we need to focus on the ones that present the most risk."

Anne Kolton, vice president of communications for the American Chemistry Council, the industry's lobbying arm, said chemical manufacturers favor the reform bill in the Senate.

"It would make more information available to the public. And it would enhance coordination between federal and state regulators," she said.

Angela Logomasini, senior fellow at the Competitive Enterprise Institute, a free-market think tank, said, "I don't think that more regulations are going to make us safer. The key is controlling exposure, because that's where the real risk is."

Several Democrats in the Senate, including Joe Manchin of West Virginia, announced Friday that they're producing a bill to improve inspections of chemical storage sites and require the industry to develop emergency response plans.

Most chemical regulations are enforced at the state level, and different states have varying levels of enforcement. West Virginia is viewed by activists as a state with lax enforcement, but it's not the only state with chemical safety concerns.

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Noah Sachs, professor of law and director of the Center for Environmental Studies at the University of Richmond, said Virginia does a poor job monitoring potentially hazardous chemicals, and lawmakers haven't paid sufficient attention to the problem.

"We've got a whole suite of toxic chemical problems," Sachs said. A new report prepared by Sachs says that, in a single year, 2011, companies released 39.23 million pounds of toxic chemicals into the air, water and land of Virginia -- legally in most cases.

"We are exposed to a constant barrage of chemicals, both from air pollution and water pollution. We should be worried that Virginia has fish consumption advisories for all the major rivers. We should be worried that people in Fairfax and Arlington in Northern Virginia are breathing air that doesn't meet federal air quality standards," Sachs said.

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Chemical safety is not a West Virginia problem, it's a national problem, said Devra Davis, a founding member of the U.S. Chemical Safety Board and now president of an organization called Environmental Health Trust.

"It would be farcical were it not so grave. This is a huge threat," she said. "In a sense, we all live downstream now."

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