Dear Senators Capito and Manchin,

     Many of us are among the 300,000 West Virginians whose water was contaminated just over one year ago when a massive spill of the crude MCHM, a chemical used to wash coal, invaded our drinking water supply.  We are parents, business owners, public health advocates, emergency responders, chemical operators, disproportionately impacted community members, and we come together to urge your support of meaningful reform to the antiquated Toxic Substances Control Act (TSCA). 

“LARGEST CHEMICAL CONTAMINATION OF A DRINKING WATER SYSTEM IN U.S. HISTORY"

     On the early morning of January 9, 2014, a citizen complaining of a strong “black licorice” smell alerted officials to a chemical leak at the Freedom Industries site that seeped into West Virginia’s Elk River a mile and a half upstream of the state’s largest water intake.  It wasn’t until hours later that a ban was placed on water use for over 300,000 people across nine West Virginia counties.  Crude MCHM, a chemical used to process coal, had invaded the state’s largest drinking water supply.  Schools shut down.  Hospitals cancelled non-essential surgeries.  Restaurants were forced to close putting many people already struggling out of work.  The local economy nearly ground to a halt.  Our most vulnerable populations were disproportionately impacted including low-income communities, communities of color, pregnant women, children, elderly, and people with disabilities.  Pregnant women were told not to drink the water after they were given an all clear.  Mixed messages caused mass confusion and a breakdown of public trust in our governmental leaders.  According to recent studies, anywhere from 80,000-100,000 people experienced symptoms of exposure.  Insufficient medical monitoring systems were in place to track exposure.  Public health officials did not have adequate information about the chemical available to base their decisions or treat those exposed because toxicity tests did not exist.  By law, under TSCA, these tests were not required.

     While TSCA reform is well overdue, we must make sure that new legislation protects our families and children from toxic chemicals.  Under TSCA, crude MCHM was grandfathered, allowing handling, production, storage, transportation, application, processing and disposal in our communities -- near drinking water sources, homes, hospitals, parks, churches, schools -- without necessary scientific data to indicate how the chemical interacts with the human body or the environment.  In most states, chemicals like crude MCHM are not required by law to be stored in tanks that have adequate secondary containment or sufficient integrity.  It is clear from this chemical disaster -- what has been deemed the largest chemical contamination of a drinking water supply in U.S. history – that hazard classification of chemicals is inconsistent with the risk posed to public and worker health and safety. 

     We believe there is an opportunity for landmark TSCA reform this year that provides greater protection of health and safety while also providing regulated industry with a rational and predictable system.   As co-sponsors of the Udall/Vitter bill, we applaud your efforts to be part of this reformation.  However, it is our belief that this bill as currently drafted significantly undermines protections and would not prevent the fundamental causes underlying the public health issues that occurred during the Elk River chemical leak.  Even today, as remediation of the Freedom Industries site is underway, we still do not have the information needed to accurately assess human or ecological risks associated with crude MCHM because of the gaping holes in TSCA.  As such, we stand in opposition of the current draft. 

     As our representatives, we urge you to make meaningful improvement to these public health protections in the current draft:

1.     Require comprehensive safety data on all chemicals. Take immediate action to protect communities and workers. Such as is in the case of crude MCHM, it is simply not acceptable for data regarding risk to be “not available” on safety data sheets used by workers, emergency responders and public health officials to determine human health risk and appropriate safety precautions.

2.     Right-to-Know – Ensure workers, communities and public health officials have meaningful access to information about the chemicals in their backyards.

3.     Phase out persistent, bioaccumulative or highly toxic chemicals.

4.     Alternatives - Require safer substitutes and solutions.

5.     Act on early warnings.

6.     Guilty until proven innocent - Integrate the precautionary principle.

7.     Burden of proof - Shift the burden of proof costs associated with chemicals away from taxpayers.

     Should the following amendments be incorporated into the current draft, we would likely withdraw our active opposition:

1. PREEMPTION – The preemption of high priority chemicals should only occur when the EPA has either declared the chemical safe or imposed its own restrictions to ensure safety. In the current draft, it occurs when EPA puts a chemical on its schedule to review, a point which could be 7 years away from any health protections.

2. CO-ENFORCEMENT - The ability of states to enforce restrictions identical to federal restrictions should be restored. The bill currently removes this authority.

3. LOW-PRIORITY REVIEW - The decision by EPA to declare a chemical to be low priority is something that should be challengeable in court, just like the other decisions in the bill.

4. CHEMICAL IN PRODUCTS - The bill now requires an extra layer of analysis/burden of proof if EPA wants to restrict an unsafe chemical in consumer products. This requirement should be removed so that EPA can clearly restrict chemicals in products.

5. IMPORTED PRODUCTS - The bill changes existing law to make it harder for EPA to intercept unsafe chemicals in imported products. The bill should restore the authority that exists in current law.

     We also urge you to withhold your support for any legislation that does not learn the hard lessons from the Elk River chemical spill or actively protect workers and our most vulnerable populations from chemical exposure.

     Thank you for your attention to this important issue.  We are happy to act as a resource as you review this legislation.

Sincerely,

 

 

 

Cc:  The Honorable James Inhofe, Chairman, Senate Committee on Environment and Public Works; The Honorable Barbara Boxer, Ranking Member, Senate Committee on Environment and Public Works