How Industrial Chemical Regulation Failed West Virginia
On Jan. 9, people in and around Charleston, W.Va., began showing up at hospitals: They had nausea, eye infections and some were vomiting. It was later discovered that around 10,000 gallons of toxic chemicals had leaked into the Elk River, just upstream from a water treatment plant that serves 300,000 people. Citizens were told not to drink or bathe in the water, and while some people are now using water from their taps, many still don't trust it or the information coming from public officials.
Charleston Gazette reporter Ken Ward tells Fresh Air's Dave Davies that the spill included "a chemical called crude MCHM, which was sold by a company called Freedom Industries — sold to coal companies for use in the process of cleaning and washing the impurities out of coal before they ship that coal to market."
For Ward, the episode is far more than the story of an accident and a cleanup: Ward says the spill and the sometimes confusing information authorities have provided about the risks to citizens reflect long-standing regulatory failures in West Virginia and across the nation.
Ward is an award-winning investigative reporter who has been covering West Virginia energy and environmental issues for The Charleston Gazette for years.
On how the chemical leak was discovered
Some people who live in that part of town called in both to the metro 911 — the county emergency operation center — and to the state Department of Environmental Protection complaints of an odor. [They said] they smelled some sort of a strong licorice odor in the air.
The Department of Environmental Protection sent a couple of air quality inspectors out and ... when they first went there they were told by company officials, "No, we're not having any problems. What are you talking about?" [The inspectors] asked to tour the site. [They] went out and they noticed there was a problem at one of the tanks. They described to me a 400-square-foot, 3- to 4-inch-deep pool of this chemical that had leaked out of a hole in the tank, and a 4-foot-wide stream of this stuff that was pouring across the containment area ... and it was kind of disappearing ... into the river. ... Much of the Elk River was frozen over so you couldn't immediately see that it was in the river.
The problem that arises from that is that Freedom Industries [the company that owns the chemical storage tanks] had a permit from the state Department of Environmental Protection — a storm water permit, a permit to govern runoff from its facility. One of the requirements of that permit is that they immediately report any spills. The Department of Environmental Protection says they didn't report this spill to the state. And the fact that they didn't report it immediately delayed some efforts at containing the spill and certainly affected the size of it and made the situation worse than it necessarily had to be.
On the ambiguity around the health risks of the chemical spill
Eastman Chemical, which makes it, puts out what's called a Material Safety Data Sheet. An MSDS is something that's required under the Occupational Safety and Health Act. It's supposed to be kept on site for workers to look at and it's supposed to be filed with emergency responders and local environmental authorities. It's supposed to list the properties of the chemical, its flashpoint and what's the toxicity of it.
And the problem with this particular substance is that if you read the MSDS for it, where it lists toxicological effects: Is it a carcinogen? No data. Does it cause developmental problems? No data. Most of the basic health effects that you'd want to know about, there's no data available listed on the MSDS for this material.
On what citizens are doing in response
My family and I, we're not drinking this water. I know a lot of people that aren't. When you go to the grocery stores here you still see people buying pretty significant quantities of bottled water, filling up their carts. When you go to restaurants you hear people asking, "Are you using bottled water? Are you using tap water?" And restaurants are putting out press releases and they have signs that say, "We're using only bottled water."
On the U.S. Chemical Safety Board's recommendations for stricter oversight of industrial chemicals in West Virginia
The Chemical Safety Board has been to West Virginia quite a few times and they came here in 2008 after an explosion at a Bayer CropScience chemical plant. ... The Chemical Safety Board came in and investigated that and found a lot of problems at the plant and found a dearth of regulation of that sort of a plant. And one of the things the Chemical Safety Board said was that our state ... should work with the Kanawha-Charleston Health Department to create a new chemical accident prevention program through which government inspectors would more frequently go into these plants, would ensure they're being operated safely.
The Chemical Safety Board came back again after a series of accidents at a DuPont chemical plant ... in West Virginia — [a series of] accidents there in January of 2010 ended up with one worker being killed. And the Chemical Safety Board repeated its recommendation after that incident. ...
The state has really done absolutely nothing to implement that recommendation. The Kanawha County officials have encouraged the state to work with them ... and the state has just basically ignored the recommendation.
On misconceptions about federal regulation of dangerous industrial chemicals
The industry officials didn't like the Chemical Safety Board recommendations. They insisted there's enough regulation already and that agencies like the Environmental Protection Agency and the Occupational Safety and Health Administration do enough already.
And I think there seems to be this idea that ... agencies like EPA and OSHA are these jackbooted thugs that are kicking down the gates of manufacturing facilities and stomping out jobs. When in fact, a lot of these facilities will go for years and years without ever seeing an OSHA inspector coming in and checking on the workplace conditions; without ever seeing an EPA inspector who is looking at their environmental conditions. The notion that these places are just terribly overregulated is wildly exaggerated.
On what authority the Obama administration has to regulate industrial chemicals
[The Obama administration certainly has] broad rule-making authority at EPA, and the Environmental Protection Agency can make rules about all sorts of things about this; the Occupational Safety and Health Administration can make rules about these things.
One example is [that] the coal industry here likes to complain about how tough the Obama administration is on them, but a few years ago we had a major spill of toxic coal ash from an impoundment in east Tennessee, and the Obama administration promised after that, "We're going to write new rules to govern toxic coal ash and ensure that it's handled and disposed of safely."
Well, they still haven't done that. OSHA knows that combustible dust is a big problem. They haven't written rules about that.
DAVE DAVIES, HOST:
This is FRESH AIR. I'm Dave Davies in for Terry Gross, who's off this week. On January 9, people in the area around Charleston, West Virginia began showing up in hospitals with nausea, vomiting and eye infections. It was later discovered that toxic chemicals had leaked into the Elk River, just upstream from the main water processing plant. A storage tank owned by Freedom Industries had leaked what is now believed to be 10,000 gallons of a coal-processing chemical into the water supply that serves 300,000 people. They were told not to drink or bathe in the water.
Though some people are now using water from their taps, many still don't trust the water or the information they're hearing from public officials. For our guest, reporter Ken Ward, the episode is far more than the story of an accident and a cleanup. Ward says the spill and the sometimes confusing information authorities have provided about the risks to citizens reflect longstanding regulatory failures in West Virginia and across the nation.
Ward is a native of West Virginia who's been covering energy and environmental issues for the Charleston Gazette for more than 20 years. He's won many awards, including the Investigative Reporters and Editors Medal and an Alicia Patterson Fellowship. He spoke with me yesterday from West Virginia Public Broadcasting in Charleston.
Well, Ken Ward, welcome to FRESH AIR. Let's start with some of the basics about this accident. What was the chemical that was released?
KEN WARD: It was a chemical called Crude MCHM, which was sold by a company called Freedom Industries, sold to coal companies for use in the process of cleaning and washing the impurities out of coal before they ship they coal to market.
DAVIES: And what were its effects when it got into the water supply?
WARD: Well, there was a spill into the Elk River from a storage tank at a tank farm that was a mile and a half up the Elk River from West Virginia American Water Company's regional intake for their water treatment and distribution plant just right here in Charleston, the state capital. And that's a plant that serves about 300,000 people in and around the Charleston area (unintelligible) county area around here.
Initially when we heard about this, everyone was giving us the sorts of statements saying, well, there's no threat to public health, everything's fine, keep going, nothing to see here. But by 5 or 6 o'clock that evening, the governor and West Virginia American Water Company had announced a very broad do-not-use order, telling people in that region to only use their tap water for flushing toilets or putting out fires, not to drink it or bathe in it or cook with it.
DAVIES: And so this was 300,000 people, roughly, including the state capital, right?
DAVIES: Now, the company that owned the tank that leaked was called Freedom Industries. Tell us a little bit about what kind of company they are.
WARD: A couple of people from Charleston that kind of have a long history of doing some business together, at one point they owned a bar together, one of the people who was previously involved in the company was a convicted felon for some tax charges. Another guy who became involved in the company later on also owns a coal company in Pennsylvania that ran into some problems with federal regulators for trying to circumvent the notion of surprise inspections at their mines.
There's been a lot of focus here on whether or not this was a small operation that was run by some people who maybe didn't really know what they were doing or were undercapitalized. The mayor of Charleston, Danny Jones, has referred to them as renegades and outlaws and all of those sorts of things.
DAVIES: There was some dispute about exactly how the leak was discovered. I guess the company said it discovered it. Tell us about that.
WARD: What we know at this point about how it was discovered is that early that morning, on January 9, which was a Thursday, around 8:00, 8:15 in the morning, some people who live in that part of town called in both to the Metro 911, the county emergency operation center, and to the state Department of Environmental Protection, complaints of an odor, that they smelled some sort of a strong licorice odor in the air.
And the Department of Environmental Protection sent a couple of air quality inspectors out, and they kind of went around and sniffed themselves, and apparently it had some previous experience with this particular substance, and we learned later with this particular site. So they kind of had an idea where they thought the odor was going to.
So they, these two DEP inspectors went to this - air quality inspectors went to the site, and when they first went there, they were told by company officials, no, we're not having any problems, you know, what are you talking about? They asked to tour the site. The inspectors went out and they noticed that there was a problem at one of the tanks.
They described to me a 400-square-foot, three to four-inch-deep pool of this chemical that had leaked out of a hole in the tank, and a four-foot-wide stream of this stuff that was pouring across the containment area to kind of the right angle where the wall and the floor of this containment dike would meet. And it was kind of disappearing into that joint, which apparently had some cracks and it was disappearing into that joint and going down the riverbank into the river. Interestingly enough, the inspectors didn't initially know that it was going into the river because we had had a very cold stretch that week, and much of the Elk River was frozen over, so you couldn't immediately see that it was in the river.
But - so the problem that arises from that is that the Freedom Industries had a permit from the state Department of Environmental Protection, a stormwater permit, a permit to govern runoff from its facility. And one of the requirements of that permit was that they immediately report any spills. And the Department of Environmental Protection says they didn't report the spill to the state and that the fact that they didn't report it immediately delayed some efforts at containing the spill and certainly affected the size of it and made the situation worse than it necessarily had to be.
DAVIES: So how long did the government advise people not to use this water? When did they get the all-clear? How long did it last?
WARD: Well, the do-not-use advisory went out late on a Thursday afternoon, early Thursday evening, the 9th, and it ran through that weekend. And then starting on Monday evening, the following Monday, four days later, the people here started getting these rounds of all clear. There was an Internet map the water company had on its website showing red areas and blue areas, and the blue area map that you were supposed to start flushing the plumbing in your house.
They told us to run our hot water for 15 minutes and our cold water for five minutes and our outside spigots for five minutes, and then our water would be OK to use. And that process, they kind of ran through that in zones because they said if everybody tried to flush their pipes all at once, the plant would run out of water, and there wouldn't be pressure for firefighting if there was a fire, or there wouldn't be enough pressure for everyone to flush.
And that process ran through, oh gosh, most of that week. It took the better part of a week to kind of get everybody into the blue on the Internet map and get everybody cleared to use their water. The problem was that about the middle of that week, you know, a week into this incident, after a lot of people had been told they could use their water again, all of a sudden the CDC, the Centers for Disease Control, the federal government, and the Department of Health and Human Resources on the state level, both issued this warning saying, oops, by the way, pregnant women shouldn't drink the water at all, even after their do-not-use order is lifted. They should only drink bottled water out of an abundance of caution.
So, you know, we don't know whether for three or four days there were pregnant women that were drinking the tap water after being told it was safe, only to find out later there was this warning that they not drink it.
DAVIES: Did people get sick? I mean, do we know how many people reported for and received medical attention?
WARD: The last numbers I saw, we've been getting these kind of periodically. We've been asking for them every day, and we don't always get them every day, but it was between 450 and 500 people had sought medical attention. The government, when they give us that number, is very insistent on pointing out that none of the people who went to the hospitals were listed in critical condition, as if somehow being critically injured is the test for whether or not something hurt you.
You know, we had a member of the House of Delegates, one of the two legislative bodies in our legislature here, who gave a speech saying, you know, our legislature is in town, so all these lawmakers from all over the state are here staying in hotels. And after the water was cleared as OK at her hotel, she took a shower and had a terrible burning of her eyes and developed a terrible eye infection and was out for several days, hospitalized because of this.
DAVIES: All right, so people had this licorice smell associated with their water. They don't use it for several days. They're given the all-clear. And then there's this advisory that pregnant women shouldn't still be drinking it. And it raises the question of what do we know about the potential health effects of this substance for MCHM.
WARD: Well, Eastman Chemical, which makes it, puts out what's called a material safety data sheet, an MSDS. It's something that's required under the Occupational Safety and Health Act. It's supposed to be kept onsite for workers to look at. It's supposed to be filed with emergency responders and local environmental authorities. It's supposed to, you know, list the properties of the chemical, its flash point, and it's - you know, what's the toxicity of it.
And the problem with this particular substance, if you read the MSDS for it, where it lists, you know, toxological effects, you know, is it a carcinogen? No data. Does it cause developmental problems? No data. Most of the basic health effects that you would want to know about, there's no data available, is what's listed on the MSDS for this material.
DAVIES: There was a standard, one part per million is considered safe. Did somebody make that up?
WARD: Well, that was - I don't know that the one part per million number was really a standard. And I think that the Centers for Disease Control, if it were speaking very carefully, would want to say, well, that's not really a standard because, you know, there's not a water quality standard under the Clean Water Act for this material. There's not a maximum contaminant level under the Safe Drinking Water Act for this material.
There aren't any regulatory standards. There's not a limit for how much of this can be put into the water. The one part per million number was something that was devised kind of on the fly by the Centers for Disease Control, the Agency for Toxic Substances and Disease Registry, the CDC and the ATSDR, you know, the kind of alphabet-soup agencies that deal with these sorts of things.
And the first that we heard of this one part per million number was the Friday, the day after the incident, in a very late afternoon press conference with the governor. General James Hoyer, the head of our National Guard, mentioned this one part per million number kind of in passing. And the context was they were being asked, well, you know, what's being done about this, and they were talking about how long they thought it would take for the water company to flush out the plant and flush out all its distribution lines and get things clear so people could flush out their homes.
And he said, well, you know, we're not going to start that process until the level reaches less than one part per million because the CDC has told us that was safe. So I started asking, where did that number come from, because it's not on the MSDS sheet, it's not on any government list. Where did this come from?
And we had just a heck of a time getting anybody to really explain it to us. At one point I was basically told, well, you know, we're not really going to explain that. It's too complicated, and you might not really understand it. You know, even if you did understand it, your readers might not understand it. And so we don't want to confuse people by trying to actually explain it to them.
DAVIES: We're speaking with Ken Ward. He's a reporter for The Charleston West Virginia Gazette. And we'll continue our conversation in a moment. This is FRESH AIR.
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DAVIES: This is FRESH AIR, and if you're joining us, our guest is Ken Ward. He's a veteran reporter for The Charleston West Virginia Gazette and has been covering the chemical leak into the water supply of Charleston and the surrounding area earlier this month.
So we have a situation where government officials are confronted with, you know, this - 7,500 gallons of this chemical is leaked by a company that doesn't report it. It's discovered. They don't really have hard information about the effects of the chemical. And there is this, you know, don't-use order that's in effect for several days. It's now been lifted. What are folks doing? Are you drinking this water? Are you washing with this water? What are citizens doing in response to the situation now?
WARD: Well, we don't really have hard data on that to say, you know, in some sweeping manner. You know, you asked about me. My family and I are not drinking this water. I know a lot of people that aren't. When you go to the grocery stores here, you still see people buying pretty significant quantities of bottled water, filling up their carts.
When you go to restaurants, you heard people asking, you know, are you using bottled water or are you using tap water, and restaurants are putting out press releases and they have signs outside saying, you know, we're using only bottled water.
And, you know, there was an interesting thing that happened on Monday this week. We'd been getting shipments of water through FEMA that have been handed out by the state and local authorities to people, because, of course, you know, everybody can't afford to go buy bottled water all the time to bathe their kids in.
Well, the last of that water was handed out on Monday at our county courthouse here in Kanawha County in Charleston, and there's a little bit of convoluted information. We don't know exactly what's going, that FEMA isn't sending any more, and we don't know if FEMA cut us off or if the state didn't ask for more, exactly what's going on.
But very late that day, the governor's office put out a press release and announced that Governor Earl Ray Tomblin of West Virginia had written to FEMA asking for some changes in the emergency declaration that the president had issued to allow a broader reimbursement to state and local agencies for money spent on relief for people during this water crisis here.
And there was a very interesting - the letter to FEMA is one of these things where everybody read the press release, and I'm not sure that everybody read the letter that the governor sent to FEMA, but there's a truly - what I think is a remarkable couple of sentences in it I wanted to read.
The governor told FEMA: Despite the best efforts of the company and government, many people no longer view their tap water as safe and are continuing to demand bottled water to meet their potable water needs. It is impossible to predict when this will change, if ever.
So that's not some flip, off-the-cuff remark that the governor made in a press conference to a reporter. You know, somebody wrote that down and told FEMA that.
DAVIES: Before this leak, were you even aware that there was this tank farm upriver that had all these chemicals that could affect the water supply?
WARD: Well, I will tell you, when you drive into Charleston on Interstate 79 or 77 coming south into the city, you pass what we call the interstate split, where those two interstates divide. And you see these big white tanks sitting over on the other side of the Elk River, right as you drive into town.
And the next thing you see is a big brown building that has letters on it that say West Virginia American Water Company. So I think that it - Kent Carper(ph), a county commissioner here, said, you know, this was a hazard that was - it was hidden in plain sight, and I think all of us, including me and the rest of the media here, probably haven't done a very good job of looking into what was there.
DAVIES: Two days after this leak occurred, you wrote about a plan for tougher oversight for chemical use in storage, which was recommended by federal experts and by the U.S. Chemical Safety Board. Now, this was long before this incident. When was that plan offered, and what prompted it?
WARD: Three years ago this month, the U.S. Chemical Safety Board first made that recommendation. The Chemical Safety Board has been to West Virginia quite a few times, and they came here in 2008 after an explosion at a Bayer CropScience chemical plant in Institute, West Virginia, which is 15 miles or so to the west and located right next to a historically black college.
And there was - there had been a series of terrible chemical accidents at that facility, and this one in 2008 was an explosion that killed two workers. It came very close to damaging a tank that contained methyl isocyanate, MIC, which is the chemical that was involved in 1984 in a terrible disaster at a Union Carbide plant in Bhopal, India.
The Chemical Safety Board came in and investigated that and found a lot of problems at the plant and found a dearth of regulation of that sort of a plant, and one of the things the Chemical Safety Board said was that our state, the Department of Health and Human Resources, which is run by the governor, should work with Kanawha, Charleston Health Department to create a new chemical accident prevention program through which government inspectors would more frequently go into these plants, would ensure that they were being operated safely. And the Chemical Safety Board came back again after a series of accidents at a DuPont chemical plant in Bell, West Virginia, which is to the east of Charleston, kind of the other end of the Kanawha Valley, a series of accidents there in January of 2010, ended up with one worker being killed.
And the Chemical Safety Board repeated its recommendation after that incident.
DAVIES: So what's been the reaction? Has anything happened?
WARD: The state has really done absolutely nothing to implement that recommendation. Kanawha County officials have encouraged the state to work with them. The trouble is that the state is the entity which has the authority under West Virginia law to be able to do this. So the state would have to work with the county to do this, and the state has just basically ignored the recommendation.
In the last several weeks, since this chemical spill, whenever I've asked anybody from the state were you going to go back and look at that Chemical Safety Board recommendation, they frankly, they look at me like I'm from Mars.
WARD: They're either unaware of this recommendation, or they think the notion that they would create a new program to prevent this sort of thing is just ludicrous.
DAVIES: So what were the recommendations that, you know, the officials found troubling? Was it hiring more inspectors? Was it demanding more of industry?
WARD: Well, the industry officials didn't like the Chemical Safety Board recommendations. They insisted there's enough regulation already and that agencies like the Environmental Protection Agency and the Occupational Safety and Health Administration do enough already. And I think there seems to be this idea that industry pushes, and that some lawmakers push, that somehow these agencies like EPA and OSHA are these jackbooted thugs that are kicking down the gates of manufacturing facilities and stomping out jobs, when in fact a lot of these facilities will go for years and years without ever seeing an OSHA inspector coming in and checking on the workplace conditions, without ever seeing an EPA inspector who's looking at their environmental conditions.
You know, the notion that these places are just terribly over-regulated is widely exaggerated.
DAVIES: Ken Ward covers energy and environmental issues for the Charleston Gazette. He'll be back in the second half of the show. I'm Dave Davies, and this is FRESH AIR.
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DAVIES: This is FRESH AIR. I'm Dave Davies in for Terry Gross, who's off this week. We're speaking with Ken Ward of The Charleston Gazette about the contamination of the Charleston water supply earlier this month, after an estimated 10,000 gallons of a coal processing chemical leaked into the Elk River. Though authorities now say the water is safe for drinking for all but pregnant women, many of the 300,000 citizens affected by the crisis are still drinking only bottled water.
Ken Ward has covered energy and environmental issues in West Virginia for more than 20 years, and he says the episode reflects long-standing regulatory failures in the state and around the country. When we left off, Ward said state officials had failed to implement tougher regulations for handling chemicals at industrial sites recommended by the Chemical Safety Board after a series of accidents.
Well, let's look at Freedom Industries, the plant that operated this tank facility that was responsible for this leak; had they seen an inspector in a while?
WARD: The Occupational Safety and Health Administration had at one point a few years ago planned an inspection of Freedom Industries. It was a particular sort of inspection that was aimed at looking to see if they had the sorts of accidents or safety conditions that would cause workers to end up losing a limb. But when they showed up at the facility, they figured out that this facility wasn't in the correct industrial sector, so they never went inside and never inspected it. So OSHA had never inspected this facility. It's unclear yet whether EPA ever inspected it. It's unclear, by the way, because EPA generally just won't answer any questions about what's going on here. Initially we were told that the State Department of Environmental Protection had not inspected the facility since 1991. It turns out that they actually have been there more frequently than that and they've done a number of odor inspections, looking at air quality issues, but these air quality inspectors, they're coming in to see if something smells, they're not necessarily going and looking to see if the tanks are leaking.
DAVIES: I know that you've written quite a bit about the regulatory environment in West Virginia and nationally. You know, clearly you had a circumstance here where you had a company that maintained a lot of chemicals that could do harm if they leaked - and they did. What were they required to do under existing state regulations? Were there regular inspection reports? Did they have to, you know, submit any kind of particular monitoring?
WARD: Under their storm water permit, under the Clean Water Act, it's the permit governing storm runoff from the facility, they were supposed to submit a groundwater protection plan that would detail their - it's exactly what it sounds like - it would detail how they plan to ensure that their operation didn't pollute the groundwater. They were required to submit to the state a storm water pollution prevention plan showing what they would do to prevent storm water polluting the river. And so far the state has not produced copies of those reports. We know that they had a permit, but when I asked state officials for copies of those pollution prevention plans, they just kind of shrug and say, you know, we're looking, we haven't found them yet. So it's not clear that the company ever followed those requirements and it's not clear that the state ever made them.
DAVIES: Now, since the accident there have been some proposals in the legislature, the governor has offered a plan to prevent a recurrence of this. Give us a sense of what they're proposing and whether they would be effective.
WARD: The governor has proposed a bill that he has touted and his staff have touted as very narrowly tailored to creating new regulatory program for above ground chemical storage tanks. Now, the thing is that the environmental community here is saying, you know, what we really need isn't - they don't mind that bill, they don't think that that bill is a bad thing, but they think that we're not going to really see any kind of change until the tone and the tenor and the rhetoric around environmental regulation in West Virginia changes. You know, West Virginia political leaders are very big on pounding on the table and talking about the Obama administration's war on coal, and how burdensome government regulation is. Now we need to get government off our backs. And you know, the thing about that is, is it permeates down into these agencies - like the DEP. You know, Senator Manchin, who used to be our governor, said a few years ago after the Upper Big Branch coal mine disaster, which killed 29 workers, when information started coming out that that mine was just a mess, Senator Manchin said, well, if that mine was such a mess, why didn't MSHA, the federal Mine Safety and Health Administration, shut it down?
And really, the problem with that line of thinking is that if prior to that April 5, 2010 explosion a regulatory agency had shut down a coal mine, my guess is that Senator Manchin would have been pounding his fist on the table complaining that the Obama administration was costing our state jobs. So this hyper-rhetoric against public health and safety regulations really plays an important part in this. And what the environmental community here says is, is until we change that way of thinking, and till politicians stop talking as if they are putting jobs ahead of public safety, then we're not really going to protect the public.
DAVIES: Let's talk a little bit about the federal responsibility. You know, I read that there is something like 84,000 chemicals in the United States. What's the state of federal regulation about what kind of information is required about their properties and potential risks?
WARD: Well, those things are governed. The safety of chemicals is governed by a law called the Toxic Substances Control Act - TSCA. And it's an old law. Pretty much everyone from the chemical industry to the most strident environmentalist to government regulators agree it's an outdated piece of legislation. When it was passed, it grandfathered in thousand of existing chemicals. And the result of the law really, when you get right down to it, is that a very small minority of the thousands of chemicals that are used in commerce every day and stored at places like Freedom Industries, are really tested adequately to see what their toxicity is and how they should be regulated, or whether they should be allowed to be used at all. And like so many things, that - efforts to kind of reform that law don't really seem to be going anywhere.
There's been kind of a renewal that this chemical spill here in West Virginia of that, but it remains to be seen if anybody is going to really, really move on that. Where the rubber hits the road, you can bring a bunch of people together to debate TSCA and, you know, you and I won't understand what the heck they're talking about, probably. But where the rubber hits the road is that people in West Virginia - everyone from me to my neighbors to the emergency response people to our - the director of our Bureau of Public Health - didn't know how bad this stuff might be or might not be. And the reason they didn't know that is because TSCA doesn't work very well.
DAVIES: That's the Toxic Substances Control Act.
DAVIES: What about apart from action by Congress? What authority does the Obama administration have to deal with issues like this and have they used it?
WARD: Well, they certainly have broad rule-making authority that EPA and the Environmental Protection Agency can make rules about all sorts of things about this. The Occupational Safety and Health Administration can make rules about these things. You know, one example, you know, the coal industry here likes to complain about how tough the Obama administration is on them. But a few years ago we had a major spill of toxic coal ash from an impoundment in East Tennessee. And the Obama administration promised after that we're going to write new rules to govern toxic coal ash and ensure that it's handled and disposed of safely. Well, they still haven't done that. The Occupational Safety and Health Administration knows that combustible dust is a big problem; they haven't unwritten rules about that. We know that coal miners continue to die in an alarming rate from black lung disease. But the Mine Safety and Health Administration has yet to finalize its promised rule to do something about that.
One of the political problems there is that Democrats in Congress don't really want to put the hammer on the Democratic administration's appointees at these agencies and labor unions don't want to do that either. So, you know, inaction by Obama administration agencies, you get a few people in the press that write about it and you get the Chemical Safety Board that points it out, but it mostly kind of goes under the radar.
DAVIES: We're speaking with Ken Ward. He's a reporter for "The Charleston West Virginia Gazette." And we'll continue our conversation after a short break. This is FRESH AIR.
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DAVIES: This is FRESH AIR, and if you're just joining us, we're speaking with Ken Ward. He is a veteran reporter for "The Charleston West Virginia Gazette." He's covered the coal industry and environmental issues for many years. He's done reporting recently on the chemical spill that contaminated the water supply for Charleston, West Virginia and nine other counties.
You know, when Governor Tomblin, the governor of West Virginia, was talking to the media about this spill, he made a point early in the crisis that this was not a coal company incident. Why was that such an important point to him?
WARD: Well, Governor Tomblin made that point several times. In several press briefings people asked questions that had the word coal in them, and he reacted very stridently, I thought, and was very insistent that this wasn't a coal company. There wasn't a mine anywhere near here. When, you know, I mean the fact is this particular chemical was one that was being brought to that location so that it could be sold to coal companies. The connection with coal was very clear. You know, I think that so many political leaders here are so tied to the coal industry. Not, you know, I don't mean tied in terms of political contributions and those sorts of things. I mean kind of culturally tied. Governor Tomblin is from Logan County, which is a big coalmining community, he grew up around coal mines. Probably most of the people he knows back home, you know, were somehow in the coal business. And I think it's very difficult for West Virginians to kind of break that connection.
And, you know, one of the things that always strikes me is when I first started working at The Gazette, when you would talk to coal miners, they would almost to a man say they were doing what they were doing so that their kids could go to college and go do something else. But now kind of the mantra from the coal industry and its public relations machine is that coal is our way of life and it's the only thing we know and it's the only thing we ever will know. Senator Manchin was quoted in The New York Times talking about how we're not afraid to do the heavy lifting in West Virginia. And I think that those kind of remarks leave a lot of West Virginians wondering if dealing with these kinds of spills, is that what he means? We have to suffer these sorts of things in order to have jobs?
You know, one of the remarkable things that's happening here that I think isn't being noticed very clearly, certainly by the outside media, is that what people in Charleston - my neighbors and I dealt with for a few days - is what people in coal field communities here deal with every day - not knowing if their water is clean, dealing with black water running out of their faucet, or their well going dry, or what have you. Those are things that people in Boone County and Raleigh County and Mingo County, McDowell County, they live with all of the time. That's not to say everybody there lives with them, but lots of places there, in those communities, people live with those problems. Well, this chemical spill has visited those problems upon a different group of people. Charleston is the state capital, we have a lot of big law firms, we have a lot of lobbying firms, we have a lot of PR firms, and a lot of white-collar people who make their livings off of doing work for the coal industry - be it PR, be it lawyering, be it lobbying, saw what those folks in the coal fields have to deal with. And if you follow some of these, if you look at these folks on social media or you run into them at the grocery store, they're all very concerned now because it's not somebody else's kids, it's their kids. And you know, it's possible that this will be an eye-opening thing for a lot of people, that they'll come to understand that all of this talk about balance between the environment and jobs, that the scales are pretty tilted in one direction sometimes. And you know, that might be something that could change the politics here.
DAVIES: We're speaking with Ken Ward. He is a reporter for "The Charleston West Virginia Gazette" and has covered the recent chemicals spill that contaminated the water supply of Charleston and nine counties there.
You did a piece that looked carefully at fatalities in coal mines and to what extent safety violations were found to be associated with those deaths and what kinds of fines were paid by the coal operators. This was quite a project. You had to build your own database. What did you find?
WARD: We did a project after the Sago mine disaster in 2006, when everybody's attention was kind of on mining disasters again, big explosions that killed lots of people. And having tried very hard to keep up with mining deaths over the years, I knew that disasters weren't where the majority of the deaths were, that most miners died, you know, alone. There weren't, you know, satellite TV trucks waiting to see if they got out of the mine alive. It was just, you know, their wife, you know, getting a call in the middle of the night. And so we read - I read the reports for every mining death for a 10 year period and found that nine out of 10 times those deaths were caused by violations by the company - that those deaths were preventable if only the companies that those folks worked for had followed the law.
DAVIES: And you looked at what kind of fines people paid for the violations.
WARD: It was very small fines. I don't recall the exact number off the top of my head, but it was, you know, it was a couple thousand dollars was the average fine that was paid. You know, and for major coal company those kinds of fines just aren't much of a deterrent.
DAVIES: Well, you know, when I looked at it, it seemed that there would be fines of several hundred dollars. But then if the company appealed, the regulators would settle rather than going to court. I think you said it was a median figure of $250 per death.
WARD: Well, what tends to happen in these cases is, you know, not just with citations for deaths but almost - you know, this came out after the Upper Big Branch disaster. Mining companies routinely appeal the vast majority of the citations that are issued to them and that ties these citations up in litigation. You know, those are some of the people I'm talking about here when I talk about the people who live here in Charleston who are blissfully unaware of the water pollution that people in the coal fields live with.
One of the things those people do is they make their living, you know, defending coal companies against safety violations. So it's often easier for a company to fight that violation than to just fix the problem.
DAVIES: You know, you're known as a really dogged investigative reporter and you've won a lot of awards for the reporting you've done on the coal industry and other things in West Virginia. And I have to believe you've had opportunities to move to bigger papers and bigger markets. But you've stayed. Why?
WARD: I think that one of the things that I always kind of say to people who offer me those sorts of opportunities is I say well, you know, what are you going to have me do? Can I come there and write whatever I want, whatever I think is important? Can I focus on this or focus on that? And, you know, it always seems like to me at these big papers there's this awesome bureaucracy and there's too much politics.
And, you know, I work at this pretty small operation where I can actually go sit down and talk with a couple of my editors about a story that I think is important. And they listen to me and they let me do the things that I think are important. But the other thing is I think that a sense of place is something that's often lost on journalists.
You see all these people parachuting in and out of places to do quick-get stories and I have to think that most of those people have their minds made up about what, you know, what the place is like before they get there because they can't possibly have been there long enough to really understand it. And I, you know, will admit that sometimes we in Charleston do a little bit of parachuting like that into other places like West Virginia that we're not from and that we don't really understand.
But, you know, I really can't imagine that there are many places in the United States that need good journalism more than West Virginia does. And it's my home. And, you know, if you talk to West Virginians, I think certainly one thing that I'm guessing that Governor Tomblin and I do have in common is that West Virginia is our home and we both love it and don't want to have to leave. And I think that that's why.
DAVIES: Ken Ward, thanks so much for speaking with us.
WARD: Thank you.
DAVIES: Ken Ward is an award-winning investigative reporter for the Charleston Gazette. He's covered energy and environmental issues in West Virginia for more than 20 years. Coming up, Ken Tucker talks about the new music trend known as bro country and reviews two new albums. This is FRESH AIR. Transcript provided by NPR, Copyright NPR.