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JANUARY 2015 MCHM: Why the mystery?

A year after a chemical leak caused the West Virginia water crisis, the question remains: Why are tens of thousands of chemicals untested? By Amy Mathews Amos

One year ago this month in

Charleston, West Virginia a hidden problem suddenly became impossible to ignore. On January 9, 2014 roughly 300,000 residents in Kanawha and eight surrounding counties woke up to a mysterious licorice smell emanating from their tap water. The culprit was 4-methylcyclohexanemethanol (MCHM), an otherwise obscure chemical used to wash coal, that had leaked into the Elk River from an old storage tank on the river’s edge. State offi cials issued “do not use

orders” for tap water and huddled with federal agencies over next steps. Within a day, the federal Centers for Disease Control and Prevention (CDC) offered its best guidance on safe levels of MCHM— one part MCHM to 1 million parts water (1 ppm). Offi cials began fl ushing lines and testing water supplies. The National Guard trucked in bottled water for frightened residents. As water lines cleared and

below the CDC limit in coming days, the do not use orders began to lift. But on January 15, six days after the

spill, the West Virginia Bureau of Public Health advised pregnant women to continue drinking bottled water until levels of MCHM in their water were undetectable; that is, far below the 1 ppm standard deemed safe by CDC and health offi cials earlier in the week. It did so on the advice of CDC, which stressed that this new standard was issued only out of “an abundance of caution,” and “reaffi rmed previous advice that it does not anticipate any adverse health effects from levels less than 1 ppm.”

Clear as mud The state legislature, which was forced to delay its opening for a week because of the spill, focused on the proximate problem to calm a panicked public: Namely, how could a hazardous chemical be stored so negligently alongside the capital city’s drinking supply with no one knowing or watching? In its brief two-month session immediately following the spill,


normally recalcitrant legislature passed what’s commonly known as the “Tank

Bill,” a state law requiring storage tanks in the state to be registered and source water protection plans be developed for drinking water supplies. Within

11 days of the spill the

nonprofi t West Virginia Rivers Coalition and consulting fi rm Downstream Strategies issued a report that examined existing laws and regulations designed to protect water supplies, and documented how offi cials had failed to effectively implement regulations already in place. But even broader questions haunt those who lost faith in public health offi cials and regulatory agencies in the weeks after the spill. How could offi cials not know what levels of MCHM are safe? Why were they so confused by an industrial chemical commonly used in an industry-friendly state? And what does that say about other potentially hazardous chemicals used every day next door, down the block or even in our own homes?

concentrations dipped

A regulatory black hole MCHM, like approximately 80,000

other industrial chemicals in America, falls into a regulatory hole. It’s not a drug so it doesn’t require approval from the Food and Drug Administration. It’s not a pesticide so its use isn’t controlled under federal pesticide laws. Instead, it’s covered under the federal Toxic Substances Control Act (TSCA ), a 1976 law that was supposed to regulate the manufacture, distribution,


and disposal of chemicals. At the time Congress passed TSCA, 62,000 chemicals were commonly used in American manufacturing for everything from furniture to toys to cars to electronics and more. Deeming it too cumbersome to analyze the chemicals already in use, Congress grandfathered


existing chemicals into the regulatory framework, meaning they stayed on the market despite little or no safety information available. MCHM is one of them.

According to the CDC’s website,

the 1 ppm safety standard for MCHM recommended in the Elk River spill initially was based on only two laboratory studies conducted on rats.

One of those studies was conducted on Crude MCHM, a composition similar to that released into the Elk River that includes several other chemicals. The other was conducted with Pure MCHM, a formulation chemicals.

without those other In a January 15, 2014 letter to West

Virginia Department of Health and Human Resources Secretary Karen Bowling, CDC director Thomas Frieden assured the secretary that scientists had used safety factors to take into account the differences between animals and people in their calculations and to consider vulnerable populations. But he readily acknowledged that there are few safety studies on this chemical—hence, his suggestion that pregnant women may want to choose an alternative drinking water source until the chemical is undetectable. That’s because for both existing and new chemicals, TSCA places the burden of proof on the Environmental Protection Agency (EPA), which administers the Act, to demonstrate that a chemical poses a hazard to human health or the environment, rather than the manufacturer. Since 1976, EPA has required toxicity testing of only 200 of the 62,000 chemicals grandfathered in under the law.

During that time, thousands more chemicals have entered mainstream use and scientists have learned far more about the potential hazardous effects of chemical exposure including cancer,

reproductive problems, and

developmental effects. TSCA does require manufacturers to notify EPA before introducing a new chemical, but doesn’t require them to test their chemicals for toxicity. Rather, it creates a regulatory Catch–22. EPA can require testing of a chemical and hold up production by the manufacturer only if it has reason to believe that the chemical might pose an “unreasonable risk” to human health or the environment, and will be produced in suffi ciently large quantities to cause problems. And it can only require such testing after completing an expensive, time-consuming rulemaking process— or if the manufacturer agrees to testing.


Timeline of a chemical leak and its aftermath

January 9: MCHM leaks from a Freedom Industries storage tank into the Elk River in Charleston West, W.Va. West Virginia American Water, which operates the city’s water supply, announces a “do not use” order for 9 counties, aff ecting 300,000 people. A crisis begins.

Jan. 15 : W.Va. Department of Environmental Protection calls for an inventory of above ground storage tanks.

Jan. 18: Hundreds of people gather on a frigid winter night at the Capitol in Charleston for a candlelight vigil. In a demonstration of support, other vigils are held throughout the state and across the U.S., including in Jeff erson County, W.Va.

Jan 20: The West Virginia Rivers Coalition and Downstream Strategies, Inc., a Morgantown research fi rm, issue the report, “The Elk River Chemical Spill: Lessons Learned and Needed Reforms.” The report outlines failures at multiple levels of government that contributed to the leak and the response to it, and will become the framework of a new law.

Jan. 21: Gov. Earl Ray Tomblin introduces a bill to regulate certain above ground storage tanks, with many exceptions.

Jan. 29: Senate passes Senator John Unger’s bill, SB373 with little debate, sends the measure to the House of Delegates.

Feb. 10: People from around the state pack a public meeting of the House Judiciary Committee, calling for comprehensive water protections. Many say they have never attended a public meeting before.

March: SB373 is approved unanimously by both chambers of the West Virginia legislature.

April 1: Governor signs SB373 into law. Summer: Industry groups and other special interests press the Governor to call a special legislative session to revisit the bill. Many legislators take up the call, claiming they didn’t have adequate time to study the bill—one that was debated for weeks on end. The Governor refuses.

Oct. 21: DEP fi les interpretive rule to address initial inspection, certifi cation and spill prevention response plan requirements for aboveground storage tanks.

Dec. 22: Final rules published.

Jan 9: Citizen groups schedule commemorative events to observe one- year anniversary.

Jan 12: Legislature convenes with SB373 fi rmly in the crosshairs of industry and agriculture special interests.

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