In West Virginia, Who Pays for Poisoning a River?

If the EPA had complied with the 1985 Superfund mandate, the chemical spill in West Virginia may never have occurred and Freedom Industries would be guaranteed to have the resources to clean up the mess

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In 1980, when Love Canal and Times Beach still dominated headlines, Congress passed Superfund, a bipartisan bill requiring polluters to pay for the cleanup of their toxic messes. Over the last 30 years, Superfund has been responsible for the investigation and cleanup of thousands of toxic sites.

Yet EPA’s 30-year failure to comply with one important provision of Superfund imperils our health and pocketbooks. Superfund contained a mandate that the nation’s most dangerous industries maintain financial assurance (insurance or bonding) to guarantee that polluters would have adequate funds to clean up their spills. The mandate would also provide industries with a financial incentive for safe management of dangerous chemicals. The Act required EPA to begin establishing such requirements no later than 1985.

Yet the EPA has published no rules. And to make matters worse, last week the Republican-led House passed H.R. 2279—a bill that prevents EPA from issuing these critical financial assurance regulations—despite the fact that companies have already defaulted on billions of dollars of cleanup costs at the most dangerous hazardous waste sites in the country.

This week the issue is again in the headlines. Three hundred thousand in Charleston, WV are without drinking water due to a chemical spill of a coal-cleaning compound from Freedom Industries, a chemical company located just upriver from the area’s largest water treatment plant. In the days following the spill, nearly 800 calls were made to the state’s poison control center, 169 persons were treated at emergency rooms, and 10 people were hospitalized. Life in Charleston ground to a halt as schools and businesses were forced to close while residents were warned to use tap water for nothing but flushing their toilets.

While the precise cause of the spill and the cost of cleanup are not yet known, it is abundantly clear that if the EPA had complied with the 1985 Superfund mandate, the spill may never have occurred and Freedom Industries would be guaranteed to have the resources to clean up the mess. This is not the first time West Virginia residents were put in harm’s way in the state’s “chemical valley.” An explosion at a chemical plant owned by Bayer CropScience killed two employees in 2008. The Bayer plant manufactured the same chemical released in a 1985 explosion that killed 10,000 in Bhopal, India.

Today Charleston residents literally thirst for justice. The EPA must promulgate a rule as soon as possible to ensure chemical companies can pay for their mistakes and to render these toxic spills and explosions far less likely to occur in the first place.

Specializing in hazardous waste law, Lisa is an expert on coal ash, a toxic byproduct of burning coal that burdens communities around the nation.

Established in 2008, Earthjustice’s Northeast Office, located in New York City, is at the forefront of issues at the intersection of energy, environmental health, and social justice.