A week after Freedom Industries leaked approximately 7,500 gallons of 4-methylcyclohexane methanol (MCHM) from a storage facility along the Elk River near Charleston, West Virginia, questions have emerged over whether state and federal regulations were adequate enough to prevent the spill. Reports[i] indicate that the facility has not been subject to a federal inspection in over 20 years and West Virginia law requires inspections for chemical production facilities only, not for storage facilities. According to the Centers for Disease Control and Prevention, MCHM can irritate the skin and eyes and cause breathing problems. However, under the state inspection program, it is not believed to pose a significant enough threat to human health to warrant environmental permitting. Freedom Industries was not under state oversight as the state does not have regulatory authority to inspect the storage tanks, according to Michael Dorsey, chief of the State Department of Environmental Protection’s Homeland Security and Emergency Response Office.[ii] Unfortunately under circumstances such as those in West Virginia, incidents like this release are likely occurring more often than we care to think.
After the explosion at a fertilizer plant in West Texas last April, for example, the
Government Accountability Office released a report documenting a widespread lack of workplace inspections by state Occupational Safety and Health Administration programs, which last inspected the Texas fertilizer plant in 1985.[iii] A 2009 investigation by The New York Times found that there has been a steady increase in violations to the Clean Water Act, which was passed by Congress in 1972 to reduce harmful discharges of toxins into the environment and to give regulators the power to fine or jail offenders. The report found that in the last five years alone, “chemical factories, manufacturing plants and other workplaces have violated water pollution laws more than half a million times. The violations range from failing to report emissions to dumping toxins at concentrations regulators say might contribute to cancer, birth defects and other illnesses.” If state and federal regulators are not providing oversight or inspection of hazardous material facilities such as Freedom Industries, even when located so close to a state’s largest water treatment plant, who will? Perhaps the answer rests with local health departments.
With the spill cutting off water to over 300,000 people in the state capital and nine surrounding counties, this incident is first a local problem. Environmental incidents such as this inevitably affect the local population, harm natural resources, and degrade commerce – leaving local communities to deal with the long term impacts. Restaurants, day-care centers, schools, hotels, and businesses are often closed during emergencies such as this. Public confidence is eroded. Given the impact to local communities, local health departments can consider implementing hazardous material control programs of their own to augment state and federal programs.
Some local health departments, such as the Town of Acton in Massachusetts, have enacted local bylaws to mitigate the public and environmental health threat posed by the manufacturing, use, storage, and distribution of chemicals within their jurisdictions. The Town of Acton’s hazardous material regulation was enacted in response to the contamination of two municipal drinking water wells by W.R. Grace in 1978 and provides the authority to the public health department to permit and inspect commercial entities manufacturing, using, and storing chemicals in quantities 25 gallons/pounds or greater. Chemical facility permit fees are collected annually and provide a dedicated revenue stream to operate the regulatory program. Public health officials routinely inspect permitted chemical facilities within the community and coordinate monitoring and response with other government officials, such as the local fire department and the state’s Department of Environmental Protection.
“A local hazardous materials regulation gives our local health department the authority to permit, inspect, and intervene at hazardous materials facilities and protect the health of the community,” said Doug Halley, Health Department Director at the Town of Acton in Massachusetts. “Permitting hazardous facilities locally can also generate dedicated revenues to operate the program in a sustainable manner, giving us the resources to protect our community from chemical hazards even when state agencies are cutting back. Ultimately, our local regulation gives us the authority and resources needed to be partners with other local, state, and Federal agencies in ensuring secure and safe chemical facilities and building a more resilient community.”
Local health departments can work with community conservation, planning/zoning, and fire safety officials and stakeholders to develop local ordinances and regulatory programs to mitigate threats posed to public and environmental health by hazardous material facilities. Local health departments should consider the following steps when implementing local regulatory programs:
- Start by investigating if the authority is granted under state law for local communities to enact regulations that are more restrictive than state regulations. Authorities at the local level may vary, while some states grant broad authority to local jurisdictions, others may prohibit locals from engaging in this type of regulatory action.
- Consider the regulatory thresholds, the types of hazardous material facilities subject to the program, and setbacks to water resources that will be imposed.
- Coordinate with local planning and zoning officials and citizens, as local hazardous material programs can impact how a community will develop or how certain areas may be used in the future.
- Consider establishing regulations that include collection of permitting fees and use dedicated revolving fund accounts[iv] to help create a financially sustainable program.
Not all communities will possess the commercial density, resources, or political and constituent support necessary to enact financially sustainable local hazardous material programs and should consider non-regulatory awareness, education, and toxic use reduction programs at first. For those that do however, it can be a vital step towards ensuring that local communities are empowered to protect themselves from the risks hazardous materials pose to public and environmental health.