Freedom Industries slapped with violations after moving chemical
CHARLESTON, W.Va. -- Freedom Industries claims a building at a site it owns in Nitro will act as an emergency barrier should any of the chemicals it recently moved there spill.
But there's a problem with that claim: The state Department of Environmental Protection says there are holes at floor level in the building's walls, and the chemical involved in the spill isn't stored in the building anyway.
This detail is included in an inspection report that accompanied five notices of violation the DEP made public Wednesday.
DEP inspectors visited the location, known as Poca Blending LLC, Monday after Freedom moved the remaining crude MCHM there from the site of the Elk River spill.
"Secondary containment within the facility was deteriorated or non-existent," the report states. "The plan indicates that the building itself acts as secondary containment, but holes exist at floor level in the building's walls," the report states.
Tom Aluise, DEP spokesman, said the 21 "baker" tanks and tanker trucks storing the chemical are "outside." There's a trench surrounding the facility as well, but it doesn't work as a secondary barrier either, Aluise said.
Friday evening the DEP ordered Freedom to remove the rest of the crude MCHM from the Elk location where at least 7,500 gallons leaked from a hole in a storage tank.
Officials believe the chemical started leaking about 8:15 a.m. Jan. 9. An unknown amount seeped through an old concrete block wall meant to stop such leaks and into the Elk.
The company had $1 million set aside to help fix its emergency containment system, but the company didn't make the fixes in time, one DEP official said company president Gary Southern told him.
The initial complaint to the DEP was filed at 8:16 a.m. Jan. 9, according to a report released Wednesday. The report includes an email between DEP employees.
"Hey there! Just received a call from a gentleman that said there is something in the air at the 77-79 split each morning when he comes into work," the email states.
"He said it is coating his wife's throat. Told him I would give you his contact information. Thanks!!"
By 4 p.m. Jan. 9, West Virginia American Water Co. officials say the chemical had overwhelmed filters at their treatment plant about 1.5 miles downriver from the spill. Later that evening the company issued a do-not-use advisory for its 1,700-mile pipeline network, affecting roughly 300,000 people.
As of Sunday evening, all of the MCHM was moved from the Elk site to the Poca Blending location, DEP Secretary Randy Huffman said. However, there are still eight tanks holding other chemicals at that site, Aluise said in an email.
He said those other chemicals are being stored in the building with holes in the walls.
"Those chemicals will be removed from those tanks per our order once remediation work is done on site. There are hundreds of thousands of gallons still on site but no MCHM," Aluise said.
Like the Elk location, Poca Blending only has a storm water permit, Aluise said.
Facilities like Freedom's on the Elk River and the Poca site don't require additional DEP permits because they only store chemicals, as opposed to producing them or creating emissions.
There was no record of any site inspections kept at the facility. Poca Blending officially merged with Freedom Industries and Etowah River Terminal LLC -- the spot on the Elk River where the chemical leaked -- on Dec. 31.
The state hadn't inspected either site since 1991.
Federal Occupational Safety and Health Administration inspectors began to examine the Elk River site in 2009, but didn't conduct an inspection because it was the wrong type of business for that particular inspection, OSHA spokeswoman Leni Forston said.
OSHA inspectors did the same thing at the Poca Blending location in 2012. Inspectors arrived in April of 2012 and attempted an inspection under an national emphasis program focused on process safety management, Forston said.
Again, they stopped because it was the wrong type of business.
OSHA did announce late Monday it is inspecting the Poca Blending site, "following a media report of potential chemical storage hazards." Inspection at the Elk site is ongoing, Forston said.
Both are the first OSHA inspections of either facility, she confirmed.
The state Division of Labor has never conducted any inspections, safety consultations, or made any reports in general pertaining to the Elk or Poca Blending locations, according to answers provided in response to a request made by the Daily Mail under the Freedom of Information Act.
It also has never done anything at Crete Technologies LLC -- another company listed in the merger with Freedom, Etowah River Terminal and Poca Blending -- or at a business using any other name at the Elk site, according to the response to the FOIA.
State OSHA has no jurisdiction over private companies, acting Commissioner John Junkins said in a phone interview Wednesday.
State OSHA also can't conduct any safety consultations unless the company asks for one. Even if it did have such authority, there are only six inspectors and they are always busy, Junkins said.
Aluise said the DEP had the authority to inspect the Poca Blending site because it was the spot Freedom was moving the rest of the chemical.
The DEP inspected the new location starting at 10:30 a.m. Monday. Several serious concerns were discovered during the four-hour inspection.
The big problem is the fact there's no secondary containment barrier, Huffman said. In theory, such a barrier would prevent a chemical from leaving a site if it leaked out of the original container.
A trench surrounds the building with the holes in the walls, according to the DEP report.
"Closed gates prevent (a) trench from discharging unless personnel open them, but since there is no method for separating stormwater from spillage prior to entering the trench, it does not function as secondary containment," the report states.
"A variety of chemicals ... were stored in the facility without secondary containment and could reach the trench in the event of a spill."
The issue was one of 10 categories the DEP considered "unsatisfactory." Others include operation and maintenance, "spills/reporting" records, and employee training.
The DEP issued five violations:
» Above ground storage tanks were not provided with appropriate secondary containment.
» Failing to store drums containing materials that have the potential to contaminate groundwater so that spills and leaks are contained.
» Failing to provide adequate discharge monitoring reports
» Failing to follow any pollution prevention or groundwater protection plan.
» Failing to "post a permanent marker at each permitted outfall."
The company has 20 days to respond with proposed fixes. Aluise initially said the DEP would issue a site remediation plan for the Poca Blending location sometime Wednesday.
Late that evening he said the report would not be ready Wednesday. However, he said the DEP "through enforcement actions, will require corrective actions to be taken at the facility."
Huffman told the Daily Mail Tuesday the DEP could compel Freedom to move all of the chemical to a different location. Violations will likely carry civil penalties, which typically come in the form of fines. Criminal penalties require a larger burden of proof, Huffman said.
The state also released a document that shows a local resident complained in 2010 about the telltale licorice odor of the crude MCHM coming from the Elk site.
The document says someone from the DEP smelled the odor at the site when he arrived, and eventually asked the company -- known in the document as Etowah River Terminals -- to fill out a "permit determination form."
The DEP gave the paperwork to the company in May 2010. The report states someone from the company came in to review the forms, but it's unclear what was done with them or if anything came as a result of the complaint.
Aluise did not respond to a request to comment on the permit determination form.
No one from Freedom has made a public statement since Southern held a brief and highly criticized press conference Friday.
Susan Lavenski, an executive with Charleston public relations firm Charles Ryan, briefly worked for the company. She said Sunday morning she'd decided to end the relationship, and did not provide a reason.
A woman with a Florida area code returned a call from the Daily Mail Wednesday afternoon. She said she is a public relations specialist representing Freedom, and that Freedom would not be making a public statement at this time.
She said her name is Madelyn Dillabough, and asked the Daily Mail not to use her name if it used her comment about Freedom's decision not to comment.