Tuesday, February 4, 2014

Alternative to S 1961 – Why so few tanks?

When I wrote my blog post this weekend proposing an alternative to S 1961, Sen. Manchin’s (D,WV) chemical storage bill, I greatly reduced the number of storage tanks that would be covered by the legislation. As an industrial chemist, I wish that I could tell you that I reduced the number because I know that the vast majority of the storage tanks that Manchin’s bill would have had inspected did not need to be inspected because the chance of their leaking was remote. Unfortunately, I can’t say that; I just don’t know.

If I don’t know that the tanks that will remain uninspected are safe from leaking, how can I remove them from the list of tanks to be inspected? The answer is painfully simple, even if Manchin’s bill became law today, the vast majority of the chemical tanks covered would remain uninspected for decades to come. And a significant percentage of those that passed inspection would leak before they were next scheduled for inspection.

What Could be Covered?

To see how I can say that, let’s take a practical look at the sweeping storage tank inspection requirements in Manchin’s bill. First off, the bill never mentions storage tanks; it discusses covered chemical storage facilities. It describes chemical storage facilities as “a facility at which a chemical is stored” {§1471(1)(A)}. It doesn’t describe what chemical, or how much chemical or in what types of containers it is stored.

The only limiting factor to a covered chemical storage facility would be the determination by a State water treatment regulating authority “that a release of the chemical from the facility poses a risk of harm to a public water system”. Again there is no limitation of the type of risk or the level of risk; just that it would pose a risk of harm and again ‘harm’ is undefined.

The bill intends for the widest possible latitude to be taken in determining which chemical storage facilities are covered. This can be seen in the language for the inspection requirements for those facilities in §1472(b)(2)(B). It provides for inspections to be taken for facilities within the State source water assessment area as defined in 42 USC §300j-13 and less frequently for those facilities outside of the source water assessment area.

Section 300j-13 describes the source water assessment area as those areas “in such State from which one or more public water systems in the State receive supplies of drinking water, using all reasonably available hydrogeologic information on the sources of the supply of drinking water in the State and the water flow, recharge, and discharge”. Areas not in the source water assessment area would then be all other areas of the State. From this we can see that the Manchin bill does not even require that the potential harm from the chemical has to deal with contaminating the source water for a treatment plant.

In essence, every chemical storage facility in the plant could be a covered chemical storage facility depending on the whim of the State regulator. Because there are no limits on the types or quantities of chemicals involved, every facility in the State could be determined to be a covered chemical storage facility because every facility in the world that stores anything, by definition stores chemicals.

What Would be Covered?

Okay, let’s assume that these political authorities are going to be reasonable (what lawyers describe as ‘a fact not in evidence’) and for the sake of argument assume that they are only regulate facilities with storage tanks. After the problems seen in Charleston, WV with a relatively small leak (less than a ¼ of the tank contents over a period of hours) from a tank containing a relatively non-hazardous chemical (not on any government list of hazardous chemicals), I think that we can assume that any politician in his right mind (okay, that may be a contradiction in terms) is going to assume that any chemical in a tank over a minimal size (say 1000 gallons) is going to qualify the facility as one that might harm a water treatment facility.

And I think that if you were to ask Sen. Manchin or almost any resident of the environs affected by the water system issues in the Charleston, WV area that they would almost unanimously agree with that being the intended scope of this bill. So, how big is that scope; how many facilities are we talking about? Sad to say, nobody knows.

Let’s take a look at the initial coverage of the CFATS bill by comparison. That bill defined the hazard as being related to a minimum quantity of no more than 300 chemicals. For the sake of argument, let’s assume that each of the chemical facilities that filed an initial Top Screen for the CFATS program had at least one storage tank on site. There were over 40,000 such facilities in the United States in January of 2008 when the initial Top Screens were filed. That was 40,000 chemical facilities and all of the facilities at US ports were exempted, all military bases were exempted, all water treatment and waste water treatment plants were exempted and only 300 chemicals were considered.

The covered facilities under the Manchin bill would be much more sweeping in its coverage and scope and no facilities are exempt from the requirements of this bill. There has got to be hundreds of thousands of facilities in the United States that have storage tanks on site. Just think of how many gas stations there are. We could easily be looking at more than a million covered chemical storage facilities.

How Many Inspectors is it Going to Take?

Every time that there is a newsworthy accident at a chemical facility, one of the first thing that reporters dig up is the length of time since the offending facility was last inspected by OSHA or the EPA, or DHS. In almost every case the time has been excessive by the reporter’s standards (and, to be fair, excessive in the minds of most of the public). The reason for the inspection gaps is not malfeasance or graft, it is simply that there is an incredibly small number of inspectors to cover a huge number of facilities.

Right now there are zero inspectors available to water treatment regulators in the States to conduct storage tank inspections. So each State is going to have to stand up a new chemical tank inspection force to implement the requirement of Manchin’s bill. Say that there are 50,000 facilities (and that is way on the low side of what I expect there to be) in a state that will require inspections every 4 years (half at three years and half at 5 years). That is 12,500 inspections a year. If each inspector can inspect one facility a day, 5 days a week, 52 weeks a year (an extremely aggressive inspection program) it will take about 46 new inspectors, five new supervisors, a program director and a support staff to meet these new program objectives. There will have to be office space, computers, printers, cell phones and state vehicles to support the program.

And all of this is going to cost a great deal of money. And who is going to pay that money, the tax payers of course. Oops, not likely. Let’s cut that back to a program that the Governor can budget for.

What will the program actually get? Six inspectors and a supervisor; forget the support staff, they can do it themselves. We will give then three cars because they are only going to get out of the office two days a week because they are doing their own report writing and filing; so they can share vehicles. They will do three inspections on each of those two days; it will be quick, but how hard can it be to inspect a bunch of storage tanks? They will be active 48 weeks a year (you can’t forget mandatory training and conferences) so they will actually inspect 1,728 facilities a year and it will be 28 years before they get the first round of inspections done. If management is smart, they’ll inspect the facilities upstream of the water treatment plants first; BIG IF.

You Can’t Inspect Everything

It is a sad fact of regulatory life, you are not going to get a chance to inspect everything; the taxpayers are not going to stand for it. So you have a choice, you can pretend that you are going to inspect everything and most people will consider the program to be a joke. The owners who care will already have been making an effort to things right. The ones that don’t care won’t change until they get a violation notice and even then a number of them will gamble that you won’t be back to verify that they fixed stuff.

Or you can try to define the program so that is limited enough in scope that you can inspect everything that is really important to inspect. If you are talking about protecting drinking water, then you inspect those facilities that have chemicals that the treatment facility cannot remove from the water. And you only inspect those that are close enough to provide an imminent danger in the event of a significant leak.

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