Chairman Mao and the Charleston, WV Chemical Spill

enlist and unite the whole country in this effort.

What happened in reality was that not all Chinese were equally enthusiastic about the plan; some lacked the inclination for this great fly hunt, others felt they could not spare the time from other more essential activities. Curiously enough for this state controlled, command economy, the consequence was that free enterprise broke out and there developed a thriving private market in flies.

Some Chinese took to capturing a number of flies beyond their individual needs and selling them in the marketplace to those who couldn’t or wouldn’t meet their personal quotas. In addition, with a value for flies now established, some that had been turned into the authorities began to find their way back out onto the market to be resubmitted. That’s pretty much the approach some water utilities took ten years ago to compliance with the mandate placed upon them by Congress under the Federal Public Health Security and Bioterrorism Preparedness and Response Act of 2002; they punted.

Under that law, water utilities, starting with the largest, were required to prepare Vulnerability Assessment Plans and Emergency Response Plans to be adopted by their governing boards. While the immediate impetus for passage of this law was the September 11, 2001 attacks, its stated purpose is not limited to terrorism, but to public health emergencies generally, of which loss of the public water supply is certainly one. Moreover, there is nothing in that law that requires a terrorist to have his own truck or provide his own poison; it applies equally to potential threats that may exist, pre positioned within the watershed. Indeed, it would make little difference to the people without water around Charleston whether the chemical threatening their water system came from a tank that had rusted through or one that had a hole blasted in it, the results would be exactly the same.

The law required that water utilities conduct a vulnerability assessment and certify and submit a copy of that assessment to the Environmental Protection Agency (“EPA”). They were also to prepare or revise an emergency response plan based on the results of the vulnerability assessment and certify to the EPA that an emergency response plan had been completed or updated. Thus, it became incumbent upon water utilities to undertake an assessment of potential threats, dangers to which their systems were potentially vulnerable and devise plans for dealing with those contingencies, should they arise.

As happened to Chairman Mao and his fly program, however, Congress’ mandate was not received with uniform enthusiasm throughout the water treatment industry. Conducting an actual “boots on the ground” assessment of what specific vulnerabilities a utility faced within its operating area was a very expensive and resource consumptive exercise. In addition, some

utility managers were dubious of the idea overall, some believing that if such an effort were undertaken literally, the result would be to create roadmaps for potential terrorists, making their systems less, not more secure, even though the work products were to be treated as secret.

So what some, too many, utilities did was to turn to their ever obliging engineering consultants to provide them with what amounted to off-the-shelf, fill- in-the-blanks, “cookie cutter” plans intended to meet EPA’s requirements without actually considering any particular vulnerabilities within those systems or how to deal with a contingency resulting from that specific vulnerability. What was no doubt intended by Congress to strengthen national security by identifying and being prepared to deal with weaknesses in our water treatment systems became simply an exercise in getting your ticket punched. We saw much the same thing happen with respect to the 2010 Gulf Oil Spill where oil company response manuals were found to contain sections on how to deal with polar bears, just as they would if they were operating in Alaska.

At first, the EPA seems to have accepted these assessments and reports rather uncritically, but then a few eyebrows began to get raised. A brief, abortive investigation was launched by its Inspector General’s Office and some utilities received inquiries about their practices, but nothing seems to have come of it. If you would like to see the basis for the Inspector General’s concerns, you can review the documents, EPA Needs a Better Strategy to Measure Changes in the Security of the Nation’s Water Infrastructure, Report No. 2003-M-00016, dated September 11, 2003, at http://www.epa.gov/oig/reports/2003/HomelandSecurityReport2003M00016.pdf, and the Evaluation Report, EPA Needs to Assess the Quality of Vulnerability Assessments Related to the Security of the Nation’s Water Supply, Report No. 2003-M-00013, dated September 24, 2003 at http://www.epa.gov/oig/reports/2003/Report2003M000013.pdf.

I cannot say whether the chemical storage facility that leaked into the Elk River, which was certainly there at the time, was or was not identified in the vulnerability assessment the Charleston water utility submitted to the EPA, or whether the obvious contingency of a spill was considered in its required emergency response plan. Only a mile away from the treatment plant, overlooking it would be like ignoring an elephant sitting in your living room. But because plan documents are considered secret and exempt from disclosure even under the Freedom of Information Act, we most likely will never know. What I can say, however, is that before we rush headlong into seeking new laws, it would be well worth pausing to reflect on whether what Charleston really represents is a case of “the chickens coming home to roost” with respect to the way existing laws are being complied with.

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