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Chairman Mao and the Charleston, WV Chemical Spill

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The catastrophic chemical spill that put 300,000 people in West Virginia out of public water for ten days inevitably raises questions about the safety and security of water systems nationwide. On Thursday, January 9, 2014 some 5,000 gallons of an industrial chemical called 4-methylcyclohexane methanol, spilled from a storage tank, into the Elk River about one mile upstream of the water treatment plant serving the Charleston, West Virginia area. The water treatment plant had to be shut down and remained out of service for days, depriving the whole area of its public water supply.

Here, in the Northern Virginia area served by Fairfax Water, where I am one of the members of the governing authority, we are in the highly enviably position of having an extraordinarily robust system. We draw water from three different locations, two on the Potomac River and one on the Occoquan River, processed through three separate, dispersed treatment plants, two state of the art plants we own, and one run by the Army Corps of Engineers. We have, in addition, a considerable capacity to shunt water from one part of the system to the others. That, however, stems in part from our fortunate geography and is a rare exception rather than the rule.

We in the water treatment business sometimes refer to ourselves as the “silent service,” because water is the single most essential substance to sustain life, and yet few people give it much thought until it’s unavailable. If you like, you can try an experiment and see if you can get by for even half a day without water, let alone for ten. Beyond the biological necessity to drink water and use it for sanitation, there is the ever present danger of uncontrollable fire, once adequate public water is no longer available.

The Washington Post Editorial Board wrote an appropriately indignant editorial on January 15 attributing the Charleston disaster to out dated laws and regulations. West Virginia Senators Joe Manchin and Jay Rockefeller have responded by introducing in the Senate their Chemical Safety and Drinking Water Protection Act of 2014. But, if we don’t understand and learn from past legislative and regulatory efforts, we are unlikely to be significantly safer.

You can pass all the laws and adopt all the regulations you wish, but if they are not observed and enforced intelligently and in good faith, it will not make much difference. That’s where Chairman Mao enters the picture.

The late Chinese leader, who died in 1976, did not cause the Charleston spill, but his approach to regulation is very much reflected in the outcome. One day, we are told, Chairman Mao decided that there were too many flies in China. So he decreed that every Chinese citizen would be responsible for catching and turning into the authorities a certain number of flies each day. His thinking, no doubt, was that this would, over time, reduce China’s fly population and

enlist and unite the whole country in this effort.

What happened in reality was that not all Chinese were equally enthusiastic about the plan; some lacked the inclination for this great fly hunt, others felt they could not spare the time from other more essential activities. Curiously enough for this state controlled, command economy, the consequence was that free enterprise broke out and there developed a thriving private market in flies.

Some Chinese took to capturing a number of flies beyond their individual needs and selling them in the marketplace to those who couldn’t or wouldn’t meet their personal quotas. In addition, with a value for flies now established, some that had been turned into the authorities began to find their way back out onto the market to be resubmitted. That’s pretty much the approach some water utilities took ten years ago to compliance with the mandate placed upon them by Congress under the Federal Public Health Security and Bioterrorism Preparedness and Response Act of 2002; they punted.

Under that law, water utilities, starting with the largest, were required to prepare Vulnerability Assessment Plans and Emergency Response Plans to be adopted by their governing boards. While the immediate impetus for passage of this law was the September 11, 2001 attacks, its stated purpose is not limited to terrorism, but to public health emergencies generally, of which loss of the public water supply is certainly one. Moreover, there is nothing in that law that requires a terrorist to have his own truck or provide his own poison; it applies equally to potential threats that may exist, pre positioned within the watershed. Indeed, it would make little difference to the people without water around Charleston whether the chemical threatening their water system came from a tank that had rusted through or one that had a hole blasted in it, the results would be exactly the same.

The law required that water utilities conduct a vulnerability assessment and certify and submit a copy of that assessment to the Environmental Protection Agency (“EPA”). They were also to prepare or revise an emergency response plan based on the results of the vulnerability assessment and certify to the EPA that an emergency response plan had been completed or updated. Thus, it became incumbent upon water utilities to undertake an assessment of potential threats, dangers to which their systems were potentially vulnerable and devise plans for dealing with those contingencies, should they arise.

As happened to Chairman Mao and his fly program, however, Congress’ mandate was not received with uniform enthusiasm throughout the water treatment industry. Conducting an actual “boots on the ground” assessment of what specific vulnerabilities a utility faced within its operating area was a very expensive and resource consumptive exercise. In addition, some

utility managers were dubious of the idea overall, some believing that if such an effort were undertaken literally, the result would be to create roadmaps for potential terrorists, making their systems less, not more secure, even though the work products were to be treated as secret.

So what some, too many, utilities did was to turn to their ever obliging engineering consultants to provide them with what amounted to off-the-shelf, fill- in-the-blanks, “cookie cutter” plans intended to meet EPA’s requirements without actually considering any particular vulnerabilities within those systems or how to deal with a contingency resulting from that specific vulnerability. What was no doubt intended by Congress to strengthen national security by identifying and being prepared to deal with weaknesses in our water treatment systems became simply an exercise in getting your ticket punched. We saw much the same thing happen with respect to the 2010 Gulf Oil Spill where oil company response manuals were found to contain sections on how to deal with polar bears, just as they would if they were operating in Alaska.

At first, the EPA seems to have accepted these assessments and reports rather uncritically, but then a few eyebrows began to get raised. A brief, abortive investigation was launched by its Inspector General’s Office and some utilities received inquiries about their practices, but nothing seems to have come of it. If you would like to see the basis for the Inspector General’s concerns, you can review the documents, EPA Needs a Better Strategy to Measure Changes in the Security of the Nation’s Water Infrastructure, Report No. 2003-M-00016, dated September 11, 2003, at, and the Evaluation Report, EPA Needs to Assess the Quality of Vulnerability Assessments Related to the Security of the Nation’s Water Supply, Report No. 2003-M-00013, dated September 24, 2003 at

I cannot say whether the chemical storage facility that leaked into the Elk River, which was certainly there at the time, was or was not identified in the vulnerability assessment the Charleston water utility submitted to the EPA, or whether the obvious contingency of a spill was considered in its required emergency response plan. Only a mile away from the treatment plant, overlooking it would be like ignoring an elephant sitting in your living room. But because plan documents are considered secret and exempt from disclosure even under the Freedom of Information Act, we most likely will never know. What I can say, however, is that before we rush headlong into seeking new laws, it would be well worth pausing to reflect on whether what Charleston really represents is a case of “the chickens coming home to roost” with respect to the way existing laws are being complied with.


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