Friday, January 31, 2014

An Alternative to S 1961

Yesterday I wrote a blog post describing the provisions of the recently introduced S 1961, the Chemical Safety and Drinking Water Protection Act of 2014. As I made clear in that post, this bill is a typical knee jerk reaction from a politician to a public calamity. It is a response to a real problem, but it is inadequately thought through and a sure route to unintended consequences.

Of course, it is easy to criticize something, but it is not very helpful. I am going to try this year to be more pro-active in my responses to legislation that I object to and try to offer an alternative way to deal with the same problem. This post is an attempt to do that with S 1961.

The Problem

The incident in Charleston, WV clearly points out a potential problem for every water facility that uses surface waters for its facility intake. There have probably been thousands of similar chemical spills upstream of those facilities over the decades. The difference here was two-fold; first the water facility was not aware that its normal treatment system could not remove the offending chemical from the water; and two there was no existing standard by which to judge an ‘acceptable level of contamination’ for that chemical in a drinking water system. Any proper response to this incident needs to take those two circumstances into account.

Water treatment facilities, particularly those that use surface water, have a need to know what bulk chemicals are stored upstream of their intakes. They need to know which of those chemicals their intake treatment systems can remove from the water and which cannot be removed. For chemicals that cannot be removed from the intake water, the facilities have to have procedures and processes in place to stop those chemicals from entering the system.

Organizations that store bulk chemicals have a duty to ensure that those chemicals are properly and safely contained. Acknowledging that spills are going to happen, a realistic regulatory schema will require a more complete and effective response the more hazardous the chemical is or the larger the amount of the chemical that is stored on site. For a chemical that has no known toxicity and is stored in drums there is no need to burden a drinking water regulatory body with oversight responsibility for that chemical storage facility that can have no effect on the operation of drinking water treatment facilities.

Identify the Problem Tanks

A more effective regulatory scheme would have started with modifications to the current requirements in §300j-13 for source water assessments. It would have added a new sub-paragraph to §300j-13 requiring the identification of all bulk storage chemical tanks over a given size that could in a catastrophic accident result in the contents of the storage tank reaching the source water of the treatment plant within 24 hours of that accident.

Any facility holding such a tank would be covered by the requirements of a drinking water source protection act to report the contents of such tanks to the local water treatment facility. The drinking water treatment facility would determine which of those chemicals have been demonstrated to be removed by their existing water intake treatment system. Each facility would be informed of which of its holding of bulk chemicals is not capable of being removed from the intake water by the drinking water treatment facility. These would be designated as ‘chemicals that require drinking water protection’.

Have a Certified Professional Evaluate the Tank Design

The requirements of the proposed §1472 would be a good starting point for all bulk storage tank holding chemicals with such designation. Such tanks would be defined as ‘covered bulk storage tanks’. Paragraph (b)(2)(A) would be modified to combine the first three sub-paragraphs under a new paragraph (A) with which would read:

“(A) A requirement for a Professional Engineer to certify the design of each covered tank to include:
“(i) materials of construction;
“(ii) leak detection;
“(iii) overfill controls; and
“(iv) overflow controls on all outflows from the tank;

All of the remaining items in the current paragraph (A) would be combined in a subsequent paragraph (B). The current paragraph (B) and (C) would be renumbered and the words ‘covered bulk storage tank’ would be substituted for each instance of ‘covered chemical storage facility’. This would ensure that the chemicals that could have an adverse impact on a given water treatment facility would be required to meet minimum standards for spill prevention and response.

Establish Minimum Toxicity Testing Standards

The Administrator of the EPA, in conjunction with the Director of the CDC, would be required to develop minimum standards for toxicity testing of chemicals that require drinking water protection. In addition the Director of the CDC would be required to conduct a rulemaking that would establish an acceptable methodology for determining the maximum safe concentration of a chemical in drinking water from data produced in the minimum toxicity testing standards.

Each manufacturer of a chemical determined to be a chemical that requires drinking water protection would be responsible for testing the toxicity of that chemical using the established minimum testing standards. EPA would establish a grant program to help small chemical manufacturers fund such studies. The complete results of such studies would be forwarded to the EPA for peer review and subsequent determination of the maximum safe drinking water concentration for that chemical. The EPA would periodically publish any newly determined toxicity data and maximum safe drinking water concentrations, along with an accepted test method for detecting such chemicals at 10% of the maximum safe concentration in the Federal Register.

Conduct Incident Follow-up Health Monitoring

Finally, the CDC would be required to conduct long-term health studies of any population that was exposed to a chemical that requires drinking water protection due to accidental or deliberate release of such a chemical that subsequently contaminated a public water treatment facility’s output at concentrations between the chemical detection limit and the maximum safe drinking water concentration.

Addressing the Root Causes

This type of program would address the legitimate need to protect public treatment works from contamination by chemicals that they cannot remove from the water. It would also provide clear standards for determining the safe level of exposure to such chemicals in the event of an accident where such prevention standards did not work. And it would provide long-term verification that the protections being put into place actually protected the public.

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