Tag Archives: environmental protection

Yes, West Virginia, there is a Grinch

Freedom IndustriesAs thousands of West Virginia residents get first hand experience in what it’s like to live in a region without potable water, House Speaker John Boehner’s knee jerk reaction is, “We have enough regulations.” [HuffPo]

The extension of his remarks is instructive:

“The issue is this: We have enough regulations on the books. And what the administration ought to be doing is actually doing their jobs,” Boehner said at a press conference. “Why wasn’t this plant inspected since 1991?”

“I am entirely confident that there are ample regulations already on the books to protect the health and safety of the American people,” he added. “Somebody ought to be held accountable here. What we try to do is look at those regulations that we think are cumbersome, are over the top, and that are costing the economy jobs. That’s where our focus continues to be.”  [HuffPo]

There are three questionable assertions included in the Speaker’s remarks.  First, do we have a sufficiently robust regulatory regime in place to help prevent future chemical spills of the type created by Freedom Industries?  Secondly, if the Freedom Industries facility was not inspected was this a function of (a) inadequate implementation of existing regulations; or, (b) because the plant was not deemed to be included in those facilities which should be inspected?  Third, by what standards are regulations considered to be “cumbersome, over the top, job killers?”

Question One

First, do we have a sufficiently robust regulatory regime in place to help prevent future chemical spills of the type created by Freedom Industries?

The Environmental Protection Agency, often a target for conservatives some of whom have advocated for its abolition, publishes a brochure outlining its inspection authority (pdf).  Under the terms of the TSCA (Toxic Substance Control Act) the EPA  may “Enter and inspect any premises at which chemicals are manufactured, processed, stored or held, and enter and inspect any means used to transport chemicals, to inspect records, files, processes or controls to determine compliance with TSCA. 15 U.S.C.A.§2610(a)–(b)

The phrase “manufactured, processed, stored, or held” appears to indicate that the facility in West Virginia operated by Freedom Industries would fall in the category of those which should be regularly inspected by the EPA for compliance.   However, where there are laws there are often loopholes and the West Virginia incident appears to have been such a case:

“I think the loophole, if you will, that this facility fell into is because it was not a hazardous material, it flew under the radar,” said Secretary Randy Huffman, head of the state Department of Environmental Protection. This isn’t the only potential loophole.  The DEP never inspected the facility because the company didn’t produce any chemicals or have any legal emissions.”  [PPG]

What we may have in this instance is a chemical which was perfectly capable of contaminating drinking water, and of creating health and safety hazards, but which did not fall under the provisions of the TSCA?  And, further if we require inspections only if there is manufacturing going on, or if there are emissions which pose an issue of air or water quality standards, then the regulations didn’t extend far enough to require the inspection of a ‘storage’ facility such as the one run by Freedom Industries.  Senator Joe Manchin (D-WVA) offers his proposal:

“… West Virginia Sen. Joe Manchin (D) said he has a plan to make his colleagues pay attention: a renewed push for legislation that would require more disclosure and testing for chemicals. The current federal law, known as the Toxic Substances Control Act, or TSCA, has been in place since 1976 and requires very little public disclosure about the safety of chemicals. As a result, there are tens of thousands of chemicals like the one at the heart of the West Virginia disaster that are in use, even though there is scant data available about their hazards.”  [HuffPo]

The West Virginia Senator’s proposal encompasses two questions.  Are the provisions of the TSCA sufficiently broad to embrace the control of chemicals which while not lethally toxic are known to be hazardous?  And secondly, should more facilities (manufacturing, storage, and transport) be subject to inspection?

If Senator Manchin is referring to S. 1009, then his support could give new impetus to the efforts toward improving public information about, and regulatory inspection of, those plants which handle hazardous chemicals.

Question Two

Secondly, if the Freedom Industries facility was not inspected was this a function of (a) inadequate implementation of existing regulations; or, (b) because the plant was not deemed to be included in those facilities which should be inspected?

If the chemical involved in the West Virginia drinking water contamination did not appear on the current list of toxic substances, then regulation and enforcement would be a haphazard thing.   The plant may not have been inspected since 1991 because existing regulations permitted it to slip into a loophole in which while the chemical was hazardous it was not necessarily lethal or was not included in a listing of dangerous substances.   In short, the “existing regulations” were inadequate.

Question Three

Third, by what standards are regulations considered to be “cumbersome, over the top, job killers?”

The phrasing isn’t a specific objection to S. 1009, but a shorthand expression for Republican opposition to any restrictions of corporate operations.  The phrase has been applied to statutes requiring compliance with corporate accounting standards, compelling inspections of food manufacturing and processing, and laws demanding that banks treat their customers fairly and honestly.   In short, Republicans have been advocates of de-regulation across the board.

Thus, any proposal from any quarter which might impinge — even ever so slightly — on corporate management is declared “cumbersome,” or “burdensome,” or a “job killer.”  No particular form or quantity of substantiation is required to support the assertion.

A Fourth Question

Is the enactment of S. 1009 an improvement on the situation?  Ironically, one of the panelists called to testify before the Senate Committee on the Environment and Public Works concerning this bill last July 31, 2013* was the chief of the West Virginia emergency response division of their Department of Environmental Protections.

H. Michael Dorsey’s testimony (pdf) made two major points which deserve more consideration.  His first comments highlighted the fact that the TSCA was outdated and in great need of upgrading and updating.  He also commented that there were states which had inserted language into their environmental protection laws directing that the state law may be no more stringent than the federal statutes.  However,  Mr. Dorsey’s testimony also caught the other side of this issue, as noted by Daniel Rosenberg’s testimony on behalf of the NDRC. (pdf)

Rosenberg put a spotlight on one of the crucial weaknesses of S. 1009, the usurpation of state efforts to protect citizens from toxic and hazardous chemicals, the usurpation of the capacity of the states to control environmental hazards:

“The CSIA imposes limits on the ability of States to protect their citizens limits that are in critical ways worse than current law. S. 1009 blocks states from taking new action on a chemical as soon as the Environmental Protection Agency (EPA) has listed the substance as a “high priority” and scheduled an assessment. This is especially damaging because years could elapse between the time EPA schedules an assessment and the time it conducts the assessment and decides whether to regulate.”

“Numerous chemicals deemed “high priority” by EPA could be languishing on the schedule, which as noted above, would be unenforceable. The waiver provision of the bill is too narrow and onerous to mitigate the fundamental flaws in the preemption section of the bill. The bill also would preempt existing state laws on high priority chemicals, once EPA has adopted a
restriction on the substance, even if the State provision may be broader in scope and more protective of the public but not directly in conflict with the federal provision.”

Dorsey’s testimony referred to states which lack laboratory, staff and other necessities required to property test, analyze, and evaluate potentially hazardous chemicals, indicating that it would be preferable to have the Feds do it.   Rosenberg’s testimony highlights what happens when the task is transferred to the federal level leaving states in limbo as the tests and reports are completed, and contends that the result may very well be that the federal activities could result in standards less stringent than those of the states.  In other words, the bill might propel environment standards in reverse.

What Do We Want?

The obvious answer is that we want safe drinking water, and breathable air.  We’d prefer not to have contaminants in our coffee cups, washing machines, dish washers, and sinks.   This requires some differentiation, and we enter into the sticky realm of cost-benefit analysis: Are we getting the results we desire in one category at a price we are willing to pay in another?

Even within this framework there are further differentiations to make.  For example, we know that lead and mercury are toxic substances, potentially lethal, always harmful.  Are we willing to absorb the production costs of paint which does not contain lead? And, who’s “we?”  Should the manufacturers of a product absorb the costs of keeping their merchandise free of contaminants in order to keep their prices “competitive?” Or, should the consumers be required to select products free of contaminants in which the costs are passed along to them?

The essential problem with the cost-benefit format is that no matter how artfully presented in mathematical terms, both “cost” and “benefit” are subjective words.   “Cost” is informed by marketplace selections, projected revenues, and estimated expenses.  What is, or is not, acceptable is related to corporate policies which may have little to do with environmental benefits — stock prices, bond yields, compensation for management and workers.  We can objectively identify if a corporation is profitable; we cannot unilaterally announce that a corporation is profitable enough; that’s a subjective judgment.

“Benefits” may be informed by such concepts as standards for emissions or contaminants,  measurements along a scale from dangerous to safe.  Do we accrue benefits when the emissions are reduced to zero?  Or, is 50 ppb sufficient to insure safety?  How do we measure those benefits?  Do we measure only the emission or contaminants and evaluate them based on scientific  standards?  Or, do we create measurements predicated on human health reports? Fewer reports of asthma? Lead poisoning?  We are willing to put up with 10 ppb of arsenic in our water supplies, assuming some occurs naturally, but are we ready to agree to having any dangerous forms of mercury in our food sources?  Again, the benefit side of the equation is fraught with differentiations requiring human judgment.

There is a Grinch

In view of the problems associated with the manufacturing, storage, transport, and use of chemicals in our economy, and in light of the insistence of the cost-benefit format for evaluating our efforts to mitigate contamination,  we’ve created our own Grinch.  He’s not out to hold Whoville hostage, he is Whoville — he wants the cheapest price, the lowest cost, and the most competitive products, but he also wants to be as safe as possible.   He wants local control, but national standards; national standards but not ones which reduce local control.   S. 1009 is therefore not the answer.  What’s probably necessary is a better informed, less contentious, national conversation about what we want to experience in our physical and economic environments and how we should go about getting it.

{*More testimony can be located here, in PDF form}

Additional References and Resources: CRS Summary S. 1009, Congressional Research Service;  Hart Hodges, “Falling Prices: Cost of Compliance,” EPI (pdf); Brookings Institution, “Are Pollution Controls Worth Their Cost?” July 19, 2013.  EPA, Chemical Data Reporting; US Senate, Committee on Environment and Public Works, hearing on addressing toxic chemical risks, July 31, 2013.  EWG, Opposition to Senate Chemicals Bill, July 12, 2013.  Andrew Cochran, “A Chemical Bill Everyone Should Oppose,” Legal Examiner, June 6, 2013.

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Filed under ecology, Economy, EPA, Politics, pollution

Almost Hell, West Virginia, and Amodei Helped?

water pollutionMeanwhile back in West Virginia.

The D.C. media continued to demonstrate its disconnection from issues concerning Americans in the portion of the country located outside Interstate Highway 495 when its Sunday morning chatterati confabs assiduously avoided any discussion of the chemical spill into the Elk River in West Virginia.  There was plenty of information worthy of a few moments, but none deemed worthy of broadcast time which might otherwise be devoted to interminable speculation on the political ramifications of speculated political implications of endless political assumptions.  Meanwhile back in West Virginia.

There’s a lesson here about government regulations.  Those “burdensome” government regulation which are “stifling employment,” and “hurting the economy,” to hear the Republicans tell it.

“The spill of 4-Methylcyclohexane Methanol, or Crude MCHM, a chemical used in the coal industry, occurred on Thursday on the Elk River in Charleston, West Virginia’s capital and largest city, upriver from the plant run by West Virginia American Water.”  [YahooNews] (January 10, 2014)

The good news is that the stuff  isn’t highly lethal.  The bad news is that the preliminary reports don’t tell us exactly how much of the the stuff  was accidentally spilled into the river, the current estimate is 5,000 gallons.  Those 5,000 gallons flowed into the water supply in nine West Virginia counties.  Charleston, WV’s 51,000 residents are still struggling.

Additionally, the incident gives us a glimpse of why environment regulations aren’t the “burdensome,” “hurtful,” “job killing” spikes in our national economic life.

(1) At some point the newspapers will report the cost of this spill.  The cost of closed schools, closed restaurants, closed businesses, business revenue lost, earnings and wages lost.  Events postponed, events cancelled.

“Downtown Charleston is dead,” Mayor Danny Jones said in an interview. “It’s not just my city, it’s nine counties. When you don’t have water you can drink or bathe in, you’re pretty much frozen solid.”

(Charleston Mayor) “Jones said hotels, restaurants and affiliated businesses were closed in the city of 51,000 people, which swells to about 125,000 on an average workday. A convention of mayors and city council members from around the state, scheduled to begin Sunday, has been canceled, he said.”  [WaPo]

Common sense dictates that the economic costs of this chemical spill is going to be well beyond, far beyond, the cost of enforcing environmental regulations.

(2) Why do we have all these “burdensome” regulations when such accidents are rare events?   That’s the point, the entire exercise is undertaken to insure that accidents are rare events.  Yes, these events are rare, but when accidents do happen they are exceedingly expensive and harmful.  Witness some recent examples:

In December 2008, the retaining wall on a coal ash pond failed, sending 1.7 million cubic yards of toxic coal ash slurry into the Emory River, and an adjacent residential area in Tennessee. (Later estimates were raised to 5 million cubic yards)  The April 20, 2011 BP Deepwater Oil Spill poured more oil into the water than any other accident in U.S. history, and 11 workers lost their lives. The final effects of the destruction of the Fukushima Nuclear Power (March 2011) plant are still being tallied.

In August 2012 the Tennessee Valley Authority, owner of the Kingston facility, was judged liable for the damage caused by its coal ash spill.  It had already spent $43 million to buy contaminated properties.  The TVA’s litigation moved into new territory as plaintiffs were allowed to bring their individual cases to court.  [Reuters/HuffPo]

The Deepwater Horizon incident cost BP $25 billion, not counting fines levied by the government as of July 2013.  The corporation owes another $4.5 billion in fines. BP has set aside approximately $42 billion in estimated final costs.  [PBS]

A insurance trade group associated with the West, Texas fertilizer plant that exploded in April 2013, estimated the cost of the 90 foot wide crater and adjacent damage at approximately $100 million. [AP/HuffPo]

Meanwhile back in West Virginia.

(3) An ounce of prevention is worth a pound of cure.   There doesn’t seem to have been enough attention paid to preventing the contamination of the Elk River.

“Asked late last week how much planning county officials had done for a possible leak from Freedom Industries into the region’s water supply, Kanawha County Commission President Kent Carper was blunt.

“Not enough,” Carper said. But Carper also pointed the finger at the water company, saying West Virginia American certainly knew Freedom Industries was there and should have prepared for an accident like this one.” [WVGM]

If Kanawha County wasn’t as prepared as it should have been, how about federal inspections and enforcement?

OSHA began an inspection in November, 2009, resulting from industrial accident and injury reports, but found that the firm was misclassified for the inspection program implemented and the inspection never took place.  [WVGM]

What of state Department of Environmental Protection?   Because Freedom Industries was categorized as a storage (as opposed to a manufacturing facility) and because it created no emissions — it wasn’t on their radar.  [WVGM]

At some point the U.S. Attorney will complete his investigation of the contaminant spill, and West Virginia American and its subsidiary Freedom Industries will discover what TEPCO, the TVA, BP and others have already known — it’s less expensive to create the safest possible industrial operations plan than it is to pay for the damages later.

It’s easy to be glib about industrial accidents, and contaminating chemical spills, and generalize about how statistically “safe” our energy and chemical sectors are.  It’s easy to generalize about “burdensome” regulations, but much more difficult to explain away destroyed homes, lost revenue, undrinkable water, and economic damage when specific incidents highlight how important those regulations actually are.

The question we should be asking is NOT how to reduce regulations related to the use, storage, and safety of our chemical and energy operations, but how we can strengthen those regulations to prevent as many such accidents as possible.   However, that’s precisely what the House did.

“As West Virginians were learning Thursday of a devastating chemical spill in the Elk River that has rendered water undrinkable for 300,000 people, the US House of Representatives was busy gutting federal hazardous-waste cleanup law.

The House passed the Reducing Excessive Deadline Obligations Act that would ultimately eliminate requirements for the Environmental Protection Agency to review and update hazardous-waste disposal regulations in a timely manner, and make it more difficult for the government to compel companies that deal with toxic substances to carry proper insurance for cleanups, pushing the cost on to taxpayers.”  [RT] (emphasis added)

The Reducing Excessive Deadline Obligations Act passed 225-188, on January 9, 2014.  [roll call 10]  Representative Mark Amodei (R-NV2) voted in favor of the bill, Representatives Dina Titus (D-NV1) and Steven Horsford (D-NV4) voted against it. Representative Joe Heck (R-NV3) is recorded as not voting.   Representative Amodei may wish to explain, why, when his fellow Americans in West Virginia were struggling to find potable water, he voted to prevent the government from requiring that corporations carry enough insurance to cover the cost of their accidents.  And, why tax paying citizens in Nevada should be forced to pick up part of that tab?

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Heller’s Dystopia

Heller 2Nevada Republican Senator Dean Heller is one of the GOP members of the U.S. Senate to sign on to the Tea Party Manifesto — as posted on August 2nd, he’s co-sponsoring the Paul/Coburn bill to gut the rules and decisions  associated with the Commerce Clause.  [TP] However, labor law isn’t the only thing that would be repealed in Heller-Land.

Note what the Coburn/Paul/Heller proposal states: “Prohibits the use of the Commerce Clause, except for “the regulation of the buying and selling of goods or services, or the transporting for those purposes, across boundaries with foreign nations, across State lines, or with Indian tribes…”  [Coburn]

The exceptions are the Rule.  Except for buying, selling, and transporting goods or services… the Commerce Clause would not be applied as it is today.  This isn’t a conservative reading of the U.S. Constitution, it’s a radically reactionary one.

The Clause, as contemporarily interpreted covers a wide range of commercial topics:

“From anti-trust policy to union organizing, from consumer rights, to civil rights and environmental protection, progressives have enacted legislation that conforms corporate commerce to the agenda and values of society rather than accepting the conservative claim that society must conform itself to the agenda and values of corporate commerce. Our robust Commerce Clause reflects the genius of the Framers, who considered well-regulated national commerce on fair terms to be a crucial constitutional value and a social and economic imperative.”  [PFAW]  (emphasis added)

Thus by narrowing the spectrum of topics which may be considered as coming under the Commerce Clause, the reactionaries would void anti-trust laws (what multinational corporation wouldn’t love that?) Roll back consumer protection laws (what Big Bank wouldn’t love to see the repeal of Sarbanes-Oxley and the Dodd Frank Act?) Ditch the interpretations of the Commerce Clause as they apply to Civil Rights (what loving son of the Old South wouldn’t like that?) and, pull the rug out from under environmental protection laws (Hey, the North Pole is already a lake — why not just increase environmental pollution until we can water ski on it?)

This essentially pro-corporate assault on the Commerce Clause isn’t something which popped out of the Head of Zeus recently, the Roberts’ Court skewed its decision upholding the Affordable Care Act by chipping away at the use of the Commerce clause in its decision.

We’d not be the first people to notice this:

“But the health care law was, ultimately, a pretext. This was a test case for the long-standing—but previously fringe—campaign to rewrite Congress’ regulatory powers under the Commerce Clause.” [Slate]

Here’s the crucial part of the Roberts’ decision:

“Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.” [Slate]

There’s that phrase again, so beloved by the radical right: “a government of limited and enumerated powers.”    If the Congress cannot enact statutes predicated on the Commerce Clause beyond regulating buying, selling, and transporting goods and services, then it cannot enact civil rights statutes, labor statutes, environmental law, consumer protections, and anti-trust legislation.

Shall we return to the days when a motel in this country could refuse rooms to people of color?  A restaurant?  A movie theater? Under the very narrow Tea Party interpretation of the Commerce Clause may a local realtor refuse to show homes to members of ethnic minority groups? Can a bank “red line” minority ethnic communities?  Can the local grocery refuse to hire members of the LBGT community?  Senator Heller and his cohorts would have it so.

Under the guise of legislating only that which is related directly to the buying, selling, and transporting of goods and services, may we countenance discrimination against women in the workplace?  Is it acceptable for a corporation to pay women less than men for doing the same job?  Would  it acceptable to hire a less qualified man for a position also drawing interest from very well qualified women?

The point is that while selling, buying, and transporting might be regulated — manufacturing would not be thus restricted.  Nor, would the processes by which items are manufactured.  So, if your neighborhood, or city, begins to smell like Pittsburgh in the 1920’s, or people are being killed  by polluted air such as happened in Donora, PA in 1948 — so be it?

Let’s not delude ourselves into thinking that this is all some sort of esoteric Constitutional argument over interpretative minutiae.  There is a well coordinated, more than adequately financed, movement in this country to turn back the progress made by 75 years of federal legislation and litigation to improve the lives of the citizens of this country — in terms of their health, their working lives, their basic rights, and their protection from monopolies and Big Trusts.

It’s 2020 — and the GOP is pleased that its efforts in the legislatures, the Congress, and the Supreme Court have put children back in factories, have put women in their place, have quieted those noisy minority groups,  have put the smog back in the fog, and put the Bankers back in their rightful positions of ultimate power.   Welcome to Heller-Land.  Dystopia personified.

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Filed under consumers, Heller, Nevada politics, Politics, Women's Issues, Womens' Rights