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West Virginia chemical company facing tough questions after spill

Lisa Hechesky / Reuters

Residents line up for water at a water filling station at West Virginia State University, in Institute, West Virginia, Jan. 10, 2014. President Barack Obama issued an emergency declaration for the state of West Virginia on Friday, ordering federal aid in the aftermath of a chemical spill that has left up to 300,000 people without tap water, closed schools and businesses.

Weary West Virginians are feeling some relief after officials on Monday began to lift a tap-water ban — with cautious optimism that all 300,000 affected residents will have safe drinking and bath water sooner than later.

But as the logistics are sorted out, tough questions to understand how the water became poisoned — and whether the chemical company responsible for the leak, Freedom Industries, broke the law on how long it took to report its chemical spill in the Elk River — must be adequately answered, lawmakers and activists told NBC News.

Residents first reported a licorice-type odor in their water at 8:15 a.m. ET Thursday, state officials said. But Freedom didn’t report the spill until 12:05 p.m. — nearly an hour after the state Department of Environmental Protection had already traced it to one of their leaking tanks.

That chemical – known as 4-methylcyclohexane methanol, or MCHM — forced an immediate ban on tap water usage across nine counties, shutting businesses, schools and leaving desperate locals to rely on bottled water.

"We want to know why (the response from Freedom) took so long. The inaction is an indictment to the idea that companies can self-report and self-regulate,” said State Delegate Stephen Skinner, a Democratic member of the House Judiciary Committee. “I absolutely see some legislation coming out of all this."

The heart of the investigation will likely focus on potential loopholes in current laws: Freedom, because the chemicals it stores aren't considered especially "hazardous," may not have had to follow a state law requiring industrial facilities to report an emergency within 15 minutes.

And the DEP never inspected the facility because it was essentially considered a storage shed, and didn't actually produce chemicals, officials said.

"It flew under the radar," said Randy Huffman, cabinet secretary of the state DEP.

Lisa Hechesky / Reuters

The Freedom Industries chemical plant is shown after a leak at the facility sent chemicals into the Elk River near Charleston, West Virginia Jan. 10, 2014.

Freedom’s storage terminal near the Elk River holds millions of pounds of chemicals — including some used in coal processing — just a mile and a half upstream from pipes that take in water for a public drinking supply. The distance left little opportunity for chemicals to dilute in the event of a spill.

State Senate President Jeff Kessler said he’s called for committee leaders to begin examining state laws and decide whether the loopholes must be closed or if there should be monitoring of storage sites that house chemicals.

“We need to make sure there are regulatory safeguards in place so that this doesn’t happen again,” he told NBC News.

Experts say the chemicals found on the Freedom site are common to many industrial operations and not considered extremely hazardous, though they are harmful if swallowed and can cause skin and eye irritation. They can be used to prevent dust buildups or treat drinking water, or they can be used in personal cosmetics.

“The chemicals on this list would not be chemicals where a red flag would go up and people would be extra cautious to ensure this is housed safely,” said Rolf Halden, director of the Center For Environmental Security at Arizona State University.

The chemicals at the property included up to 1 million pounds of MCHM, which is used to separate bits of rocks and clay from mined coal. Somehow, the leaking tank suffered a 1-inch hole in its bottom, allowing the chemical to pool on the ground and go through a dike, contaminating the river.

“There are questions the public still needs to know: How long was the chemical leaking? And what will be the repercussions against the company for not reporting sooner?” asked Vivian Stockman, spokeswoman for the Ohio Valley Environmental Coalition.

Freedom officials couldn’t be reached for comment Monday, and only made a statement and gave a short news conference Friday providing conflicting details from government officials about what happened.

Federal authorities, including the U.S. Chemical Safety Board, have opened an investigation into the spill.

Booth Goodwin, the U.S. attorney for the Southern District of West Virginia, said Monday his office will determine whether federal laws were broken.

“Companies whose facilities could affect the public water supply should be on notice: If you break federal environmental laws, you will be prosecuted,” Goodwin said in a statement.

Al Behrman / AP Photo

A barge moves up the Ohio River, Tuesday, Jan. 22, 2013, in Cincinnati.

A potential class-action lawsuit is also brewing against both Freedom and West Virginia American Water, which operates the local water treatment plant and has been helping to test  water quality since the spill.

Attorney Anthony Majestro, who filed one of the expedited mass litigation requests, said plaintiffs would be any customer of West Virginia American Water affected by the spill.

Meanwhile, plaintiffs also filed an emergency restraining order in Kanawha County court on Monday to ensure Freedom doesn’t destroy evidence — namely, the tank where the spill originated from — or at least properly documents the equipment so it can be included in any lawsuits.

The bulk of affected West Virginia residents are still waiting for the go-ahead to begin using their water.

It could still be “days” before all customers in the system are given the clear based on test results, said Jeff McIntyre, president of West Virginia American Water.

The company is launching an online map at www.westvirginiaamwater.com and has a hotline to allow customers to find out if they are in a zone where the “do-not-use” ban has been lifted. West Virginia American Water is also auto-dialing customers who are in the safe “blue” zones.

McIntyre said the licorice-type smell could still persist after flushing out home and building pipes — but residents shouldn’t keep running their water. He added there’s no need to boil the tap water.

And the Ohio River Valley Water Sanitation Commission said Monday it was monitoring the movement of the Elk River spill, which has flowed into the Ohio River. Cincinnati moved to shut off its water intake from the Ohio as a precaution while the chemical-tainted water moved through.

The Associated Press contributed to this report.