Thursday, February 13, 2014

HR 4024 Introduced – Chemical Storage

As I noted earlier this week Rep Capito (R,WV) introduced HR 4024, the Ensuring Access to Clean Water Act of 2014. This bill is similar in intent to S 1961, but it is based upon a different statute {the Federal Water Pollution Control Act (FWPCA) 33 USC §1251 et seq  instead of the Safe Water Drinking Act (SWDA) 42 USC §300f et seq} and corrects some of the problems that I identified in the earlier bill.


The newly added section 701 (to the FWPCA) provides some of the definitions that were lacking in S 1961. It specifically defines ‘above ground storage tanks’ {§701(1)} and excludes tanks “of 1,100 gallons or less capacity, unless that tank is greater than 500 gallons capacity and is located within 500 feet of a navigable water that is designated for use as a domestic water supply under section 303” {§701(1)(B)(i)}.

I have not been able to find the referenced §303 in 33 USC as the FWPCA has been amended so many times that there is not an easy way to cross reference the FWPCA sections with the 33 USC sections. This is another case where Congress could make its legislation easier to understand if they referenced the USC instead of the underlying Acts.

The term ‘chemical’ is given the widest possible definition; “any substance or mixture of substances”, but since the bill limits chemicals to those found in storage tanks, that is probably a reasonable definition though it still includes water tanks.

Finally, the key definition is for the term ‘covered chemical storage facility’ which is very similar to that found in S 1961 and is based upon a government determination that a chemical release from the facility “poses a risk of harm to a navigable water that is designated for use as a domestic water supply under section 303” {§701(3)(A)}.

Unfortunately, there nowhere in this definition is the term ‘above ground storage tank’ used, so this still has the possibility of being applied to any facility (including a residence) where any sort or quantity of hazardous chemical is stored as long as that chemical could potentially get into the navigable waterway. This could easily be corrected by adding ‘from an above ground storage tank at’ between the words ‘from’ and ‘the’ on line 22 of page 3 of the bill.

Drinking Water Protection Program

Other than the fact that the this bill includes references to the FWPCA instead of some of the references to the SWDA found in S 1961 most of the remaining provisions of this bill are nearly identical to those found in the Senate bill.

Like S 1961 this bill would still require the inspection of all above ground storage tanks in a State, either at a 3 year interval (for facilities in a source water assessment area per 42 USC §300j-13) or at a 5 year interval for all others. States are going to have to clearly delineate the source water assessment areas so that all chemical storage facility owners know which inspection regime applies to them.

The inspection program, if conducted by State agencies (or the EPA), is going to take a huge inspection force. This would greatly increase the cost of the State drinking water programs. It may increase them enough that States might consider letting their programs lapse and revert to EPA control of the program. One way to reduce this manpower cost significantly would be to require facilities to submit inspection reports from certified Professional Engineers. That way each facility would directly bear the cost of their inspections.

Still Missing

There are still some key drinking water protection provisions that are missing from this bill. First there is no requirement for drinking water treatment facilities to make a determination whether or not their treatment protocols will remove the identified chemicals from the drinking water stream. This is the key action that would allow the facility to determine whether or not to shut off its intake in the event of an upstream spill. While a temporary shutdown while the contaminated river water passes the facility is much less disruptive than the prolonged shutdown seen in Charleston, WV after the Freedom spill it is still a disruption in the delivery of drinking water. Such disruptions should be avoided if safe to do so.

That ‘if safe to do so’ proviso is also a key part of the other thing that is missing from this legislation. There is nothing in this bill that would require anyone to establish safe drinking water limits for chemicals that might get into the drinking water. There are no provisions for establishing in advance how to set safe drinking water standards for chemicals with only limited toxicology data. And there are no provisions for mandating what the minimum toxicology test standards should be. Setting these standards in advance would help to avoid the public discord we are still seeing today in Charleston weeks after the drinking water was declared ‘safe’.

Finally, there is no requirement for doing epidemiological studies following the contamination of a drinking water supply by ‘safe levels’ of industrial chemicals from a spill like the Freedom spill. Given that any reasonable toxicology testing would be of limited translation to large age and sex diverse populations, these accidental exposures need to be utilized to expand our knowledge of potential effects on actual populations.

Moving Forward

The field hearing held in Charleston, WV earlier this week is a good indication of the political sensitivity to this issue. I expect that we will see hearings on both bills before the summer recess, but it is unlikely that either bill will get to the floor of either the House or Senate before the elections; there is potentially too high a cost involved for industry not to object to both bills.

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