There was no shortage of confusion when news broke in West Virginia on Jan. 9 about a chemical spill that contaminated water for 300,000 people around the state’s capital. Freedom Industries, the company that owned the tank that ruptured, spilling chemicals into the Elk River, didn’t know how the leak occurred or when it happened. It wasn’t clear who discovered the leak—Freedom Industries employees or Environmental Protection Agency inspectors—and it wasn’t clear how much of the chemical had spilled into the river, with initial estimates of 5,000 gallons eventually rising to 7,500 gallons. It wasn’t clear how long West Virginians would be without water after Governor Earl Ray Tomblin ordered a ban on drinking, bathing or cooking with tap water in the capital of Charleston and nine surrounding counties.
But most of all, it wasn’t clear how dangerous the chemical, 4-methylcyclohexane methanol (MCHM), was to human health—mostly because no one knew anything about its health effects, including the company that was storing it, government regulators and even academics who study chemical safety. MCHM is one of 64,000 chemicals that were grandfathered in when the Toxic Substances Control Act (TSCA)—the federal law regulating chemical safety—was passed in 1976. According to Richard Denison, a senior scientist at the Environmental Defense Fund (EDF), there are no human health studies available for MCHM, just a couple of Material Data Safety Sheets (MSDS) from the chemical’s producer, one of which references a study done on the toxic effects of the chemical on rats. But even that study isn’t publicly available—it’s considered proprietary by the Eastman Chemical Company, the maker of MCHM. Otherwise, this is what is publicly known about the human health effects of the chemical:
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Without human health data, regulators had to make a very rough estimate on what might be considered a “safe” level of MCHM in water, eventually coming up with 1 part per million. Using the one study in rats as a jumping off point—the research found that 50% of rats would die when fed at least 825 milligrams of MCHM per kilogram of body weight, equivalent to 825 ppm—officials began making estimates, as Denison explained in a blog post on Jan. 13:
1. Because humans may be much more sensitive to the effects of a chemical exposure than rats, a 10-fold “interspecies extrapolation” uncertainty factor was applied. That dropped the value to 82.5 ppm.
2. Because humans differ in their sensitivity to a chemical exposure (e.g., infants or the elderly or people with an illness may suffer effects at a dose that would not affect healthy adults), another 10-fold “intraspecies extrapolation” uncertainty factor was applied. That dropped the value to 8.25 ppm.
3. Finally, acknowledging that the study in question looked only at lethality, whereas this chemical might well have other health effects short of outright killing you, a third uncertainty factor was applied. Magically, this factor was set at 8.25-fold, in order to produce the nice round number of 1 ppm as the “safe” level.
As Denison makes clear, this is essentially educated guesswork that is hopefully conservative enough to prevent any health risks. And that may well be the case—as of Jan. 13 169 people had been treated for exposure to the tainted water, with 14 people admitted to the hospital, none with serious illnesses, and no fish kills in the Elk River have yet been reported. But there’s no guarantee that there may not be long term or chronic health effects from exposure to MCHM, simply because regulators lack sufficient data. They are operating in the dark.
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And that is a direct result of America’s lackluster chemical safety system, which can be traced back to serious problems with TSCA. I wrote a cover story for TIME in 2010 about the failures of industrial chemical regulation, where I noted that industrial chemicals are essentially deemed safe until the EPA can prove they are dangerous:
The result is a catch-22 for regulators and an information vacuum for consumers. Chemical companies don’t have to develop toxicity data or submit it to the EPA for an existing product unless the agency finds that it will pose an unreasonable risk to human health or the environment — which is difficult to do if the agency doesn’t have much data in the first place. The EPA can issue rules requiring testing, but that can take years and cost hundreds of thousands of dollars — which helps explain why the agency has required testing for only about 200 of the 83,000 chemicals in the TSCA inventory and has issued restrictions on just five.
Among the grandfathered chemicals that were never successfully restricted by the EPA under TSCA is asbestos, despite the fact that it’s a known carcinogen. (EPA issued a rule under TSCA in 1989 that would have banned most uses of asbestos, but it was overturned two years later by a federal court of appeals.) Even when new chemicals are introduced, the EPA has only a 90-day window to review it and tell the manufacturer how it will be regulated. 90 days isn’t much time, especially with hundreds of new chemicals being introduced each year. If the EPA doesn’t act in time, companies are free to use the chemical. In the U.S., industrial chemicals are innocent until proven guilty—and few cases go to trial.
Even the chemical industry agrees that TSCA needs to be reformed in some way, and the West Virginia spill may give that effort a boost. Last year the late Sen. Frank Lautenberg (D-NJ) and Sen. David Vitter (R-LA) introduced the Chemical
Security Safety Improvement Act, which would give the EPA more power to require testing on dangerous chemicals. The bill has been trapped in gridlock, but the spill will likely prompt new hearings on regulatory gaps in chemical safety, as Democratic Reps. Henry Waxman of California and Paul Tonko of New York urged in a letter on Jan. 13:
It is critically important that we understand how the law allowed a potentially harmful chemical to remain virtually untested for nearly forty years… Even if scientists and regulators now turn their attention to the risks posed by MCHM, we should not have to wait for a major contamination event to learn the most basic information about a toxic chemical in commerce.
TSCA isn’t the only thing that will need to be reformed in the wake of the West Virginia spill. It’s worrying that there was little oversight over a facility holding large amounts of a potentially toxic chemical right next to a major river, something that could be a national problem, since the EPA doesn’t regulate most above ground chemical storage. The good news is that the water ban is slowly being lifted around the Charleston area, although the licorice-like smell of the chemical is still noticeable on the river. In the immediate aftermath of the spill, West Virginia American Water President Jeff McIntyre told reporters that the chemical was “not particularly lethal.” West Virginians can only hope that he is right.