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Virginia must guard against Freedom Industries-type spill

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{ Editor’s Note } This post by Noah Sachs, professor at the University of Richmond School of Law and co-author of the January 2014 report, “A Strategy to Protect Virginians from Toxic Chemicals,” originally appeared as an op-ed in the Richmond Times-Dispatch. (Links inserted by Appalachian Voices.)

A year ago, residents of Charleston, W.Va., learned that their entire drinking water supply had become contaminated by MCHM, a toxic chemical used to wash coal. Ten thousand gallons of MCHM had spilled from a corroding storage tank by the Elk River, located a mile upstream of the city’s drinking water intake pipes. As a result of the chemical spill, 300,000 citizens lost their water for more than a week, and hundreds sought emergency care.

That accident alone should have been a wake-up call for Virginians about the need to protect our water supply from chemical spills. But a year later, it seems, we’re acting as if this is all just water under the bridge.

Virginia essentially has no laws on the books to regulate land-based storage of toxic chemicals near rivers. West Virginia enacted comprehensive drinking water protection legislation last April after the spill, and it’s time for Virginia to do the same.

The risks in Virginia are real. In a report I released just after the Charleston spill, I documented dozens of businesses that each store over a million pounds of toxic chemicals right near our major rivers, including the James, Shenandoah and Potomac. There are hundreds of smaller sites, too. The James River Association, in its recent “River at Risk” report, concluded that there are more than 1,100 chemical storage sites in the James River watershed.

Given the lack of regulation, public water suppliers in Virginia are at the mercy of industrial plants upstream to voluntarily monitor their own chemical storage tanks, many of which were built decades ago. But sometimes, as in Charleston, leaks and spills go undetected, and once a chemical contaminates a river, there’s little that drinking water suppliers can do to eliminate the threat. They can’t filter out major contamination, and they have to shut the system down.

Storage of chemicals near rivers isn’t the only problem. The Charleston spill turned out to be just one of three major accidents in 2014 that threatened our region’s water supply.

Last February, 39,000 tons of coal ash from a Duke Energy power plant in North Carolina spilled into the Dan River, putting the drinking water supply for Danville at risk. Then, in April, a train carrying crude oil derailed in downtown Lynchburg. Three of the oil cars on the 105-car train fell into the James River, and one exploded, setting the James on fire.

Luckily, neither of these incidents disrupted drinking water supplies downstream, but if dozens of oil cars on that train had fallen into the river, it likely would have caused the largest oil spill in Virginia history and would have affected drinking water downstream to Henrico and Richmond.

Neither the Clean Water Act nor the Safe Drinking Water Act currently regulates how toxic substances are stored on land, near our waterways. While there are federal penalties on the books for chemical spills, there are essentially no federal standards aimed at prevention.

That means that for now, the General Assembly, the Department of Environmental Quality, the Department of Health and the Department of Emergency Management must take the lead to protect the public. A bill recently introduced by Sen. John Watkins to establish an advisory committee on water protection and toxic chemicals is a strong start to the process.

Given the events of 2014, it’s clear that drinking water protection in Virginia should be based on three principles:

First, protecting drinking water means we have to protect watersheds. Businesses that store large volumes of toxic chemicals near rivers are creating a risk to the public, and their facilities should be subject to some public oversight.
Second, we need minimum standards for construction, inspection and maintenance of chemical storage tanks. Set-back and secondary containment requirements should be imposed for tanks near source waters.

Third, tank owners should prepare public communication and spill-response plans, in concert with state regulators. Prompt public notification, less than an hour after leak detection, is essential.

In many ways, West Virginia is leading the nation on addressing chemical risks to water supplies. Its new legislation, passed unanimously, requires an annual inspection and inventory of every storage tank in the state, and the state has just issued draft rules on monitoring, secondary containment and leak detection. Each tank owner will be required to implement a spill response plan.

Virginia now needs its own program to address the threat of chemical contamination. It should begin with upgraded standards for chemical storage tanks, which is the area where the state has the most authority.

The accidents in 2014 are a stark reminder of the vulnerability of our drinking water, and we can’t fix the problem by imposing new requirements on water systems alone. We have to look upstream to the real source of the problem. Industries that store toxic chemicals near our waterways are putting Virginians at risk.

Protecting the Central and Southern Appalachian Mountain Region


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