Water trucks traveling into WV – Photo by Marc Goldman
The national press is now focusing (after spending hours and hours on a NJ traffic jam) on a chemical release from an above ground tank into 300,000 people’s drinking water. When 1/6 of a State loses the use of its water supply – that tends to be a big deal (if a similar proportion of Michigan residents lost their water it would be over 1.5 Million!).
One or more tanks owned or used by Freedom Industries that stored a coal washing chemical, leaked a reported 7,500 gallons (or more) into the river which was the source of local residents’ tap water.
Federal law requires facilities that store oil and meet 3 criteria (non-transportation related facility, have more than a certain storage capacity, and could reasonably discharge to navigable waters or adjoining shorelines) must comply with spill prevention, control and countermeasure (SPCC) regulations. The SPCC regulations require the facility owner/operator to prepare and implement an SPCC plan for their facility. This plan must be well thought out and prepared in accordance with good engineering practices.
The Federal Emergency Planning and Community Right to Know Act (EPCRA) helps communities plan for hazardous substance emergencies by requiring facilities holding chemicals to provide local and state governments information on chemicals stored so that the local communities can plan for chemical safety in the event of a fire or spill. Reportedly, Freedom Industries did comply with this law.
There are also OSHA, Transportation and Homeland Security regulations which may conflict regarding hazardous chemical storage. In August, 2013, President Obama issued an Executive Order focused on improving chemical facility safety and improving coordination with owners and operators as well as state and local regulators. The working group is nowhere near complete and I expect the West Virginia experience will play a part in their deliberations.
In Michigan, we have a broader set of rules which require a pollution incident prevention plan (PIPP) for polluting materials which include salt, oil, any chemical from a lengthy list, and any compound or product that contains 1% or more, by weight, of the listed materials. The rules:
- Identify threshold management quantities (TMQs) for both indoor and outdoor use, storage, and other management areas. Exceeding these TMQs will determine if a PIPP has to be prepared, if containment is required, and if other Part 5 rules must be met. The PIPP is to include inspection and maintenance procedures but no minimums are specified.
- Describe conditions and threshold reporting quantities (TRQs) for polluting materials which, if exceeded, or occur, require spills or releases to be reported.
- Provide exemptions from some requirements if certain conditions are met or other regulations apply.
- Within 30 days of completing its PIPP, the facility must send a notice that it is in compliance to the relevant MDEQ district office. It also must notify the Local Emergency Planning Committee (LEPC) and local health department that the plan has been completed and is available upon request.
- Requires each PIPP to be evaluated every three years or after any release that triggers the plan. The plan must be updated when there are changes to personnel, processes, or procedures identified in the plan. The facility must re-notify the MDEQ and local agencies and recertify compliance when the plan is updated.
For above-ground tanks that hold at least 1,100 gallons of flammable or combustible liquids, there are further Michigan requirements (recodified at the end of 2013) for design, installation and site inspections both after installation and every three years.
Despite Michigan’s 20 page list of regulated chemicals – the chemical in this instance, 4-methylcyclohexylmethanol, is not on the list and so a Michigan company would not be obligated to have a PIPP if it stored only that compound. Could it happen here? Of course it could; tank spills happen all the time – there are reportedly 2,000 a year across the US. Is Michigan better positioned to deal with such a release – it appears yes, but there are gaps in the system that the West Virginia spill may lead Michigan legislators and regulators to conduct a further review.