S 1961 Marked-up in Senate

On Thursday the Senate Environment and Public Works Committee held a business meeting where, among other activities, they marked up S 1961, the Chemical Safety and Drinking Water Protection Act of 2014. There is no information available on the EPW web site (not unusual; this is a very uninformative web site) about the actions taken during the markup.

Fortunately a press release from Sen. Boxer (D,CA) does inform us that the Committee approved S 1961 and a separate press release from Sen. Manchin (D,WV) does inform us that changes were made to his bill including an amendment in the form of a substitute that he offered. We won’t have any details on other amendments that may have been adopted until the Committee Report is published some indeterminate time in the future. The Manchin amended language does provides some substantial changes to the bill.

Definitions

Section 1471 adds two new terms to the list of definition, removes one and modifies another.

The new definition is a very expansive definition of the important term ‘chemical’. It adopts any of the three following existing definitions:

• A hazardous substance under 42 USC 9601(14);

• Subject to EPCRA 42 USC Chapter 116, or

• A contaminant under SDWA 42 USC 300f(6)

The section deletes the term ‘covered chemical storage facility’ and substitutes ‘covered chemical storage tank. The key phrase in the definition is “from which a release of the chemical from the tank or [bulk] storage containers or combination of storage containers and tanks could pose a risk of harm to a public water system” {§1471(2)(A)}. The undefined ‘bulk storage containers’ used in the definition would probably include totebins. The definition does exclude containers subject to 33 USC 1321(j)(1)(C), the National oil spill response plan.

The modified definition is actually a change in the term from ‘State program’ to ‘program’. The change is necessary because the revised language will later allow States to opt out of supervision of this program without jeopardizing their control of drinking water programs.

Chemical Storage Tank Surface Water Protection Program

Section 1472 requires the establishment of the program, now within a more reasonably obtainable 2 years instead of 1. The program may be established at the State level, but since §1472(e)(2) specifically allows states to opt out of administering this program without jeopardizing their general control over drinking water programs, I suspect that many states will take this option. The inspection requirements and other program administration costs will probably be prohibitively high and no Federal funds are made available in this bill to off-set those costs, so there is a disincentive for States to accept responsibility for running this program.

The specific program requirements under §1472(b)(2)(A) have been modified in some important ways. The new language:

• Changes ‘spill and overfill control’ to ‘spill and overflow prevention and containment’;

• Changes ‘inventory control’ to ‘inventory control for the purpose of promptly determining the quantity of chemicals released in the event of a spill’;

• Changes ‘emergency response and communication plan’ to ‘an emergency response and communication plan, including procedures for immediately notifying, after discovery of a chemical release, public water systems that may be adversely impacted by the chemical release’.

A new paragraph (c) was added to this section requiring the program development to incorporate existing State and Federal requirements and consensus standards. This allows any existing programs that have an impact in this area to continue without effect.

Another important change was made to the tank inspection requirements of the program {§1472(b)(2)(B)}. There is now a requirement to designate ‘high hazard covered chemical storage tanks. These are defined as tanks which pose “greatest risk of harm to public water systems in the State and the greatest risk to public health” {§1472(b)(3)}. These tanks will be inspected once a year.

Transfer of Covered Storage Tanks

The provisions of tanks §1475 were expanded slightly with discussions of:

• ‘Qualifying inspections’ §1475(b);

• ‘Third-party inspections §1475(c);

• ‘Calculation of time period’ §1475(d); and

• ‘Extensions’ §1475(e)

These are mainly explanatory discussions not really new requirements.

Information Sharing

There are some important changes made in the information sharing provisions of §1476. First and foremost, the language eliminates the need for the Administrator or State agency to push information to the water treatment facilities. It now requires them to make the discussed information available ‘on request’ {§1476(a)}. This now ensures that some facilities will not get the information and makes it their fault, not a fault of the program.

Two new classes of information are now identified for the sharing requirement:

• Information pertaining to “existing information on the potential toxicity of the stored chemicals” that is determined to be “relevant to evaluate the risk of harm to public water systems” {§1476(a)(3)}; and

• Information on precautions that “can be taken to detect, mitigate, or otherwise limit the adverse effects of a release of the stored chemicals” {§1476(a)(4)}

There is also a change to the emergency response plans that are required for covered chemical storage tanks. Section 1476(b)(2) now requires the emergency response plans to be integrated ‘to the maximum extent practicable’ emergency response plans into the National Oil Spill Response Plan under 33 USC 1321(j)(4).

Commentary

Most of the changes made to the program are positive changes that make significant improvements to the bill.

The change to allow States to opt out of participation was necessary to avoid imposing a new ‘unfunded mandate’. It will, however, ensure that there will have to be a Federal program as number of States will opt out of participation either due to funding issues or a general unwillingness to get more involved in business regulation (Texas comes quickly to mind). This makes the change to a two year implementation even more important because it will take EPA at least that long (and likely 2 to 3 time that long) to establish the necessary Federal regulations for States that decline to establish their own program.

The big shortcoming to this program remains the lack of any requirement for significant action on the part of water treatment plants to:

• Determine which chemicals may not be removed by their treatment system;

• Establish a plan for preventing those chemicals from entering their treatment system; and

• Establish a contingency plan for when those chemicals do enter their treatment system.

Facilities do not need to worry near as much about chemicals that will be removed by their current processes. It is the chemicals that cannot be removed that pose the biggest threat to drinking water.

This program continues to leave unaddressed the necessity for establishing exposure limits in drinking water for chemicals that cannot be removed by treatment plants or even for identifying how such exposure limits will be established. The problem that continues to haunt the drinking water consumers in West Virginia is their lack of faith in the safety of their drinking water when they can clearly self-determine by smell that the MCHM is still present when the water utility claims that it is ‘undetectable’.

Finally, this program still leaves unanswered what type of testing must be performed to establish useable toxicity information for water treatment facilities. The addition of the new ‘high hazard’ designation could give administrators a tool to compel additional testing of chemicals when current information is inadequate, but that should be clearly spelled out in this legislation.

Moving Forward

Sen. Boxer is notoriously slow to move bills out of Committee to the Senate floor. I will be pleasantly surprised to see this make it to the Senate floor before the summer recess. The closer to the recess this bill is considered; the harder it will be for it to actually overcome the inevitable conservative opposition to government regulation. At this point I would say that the bill might be able to pass in the Senate.

Consideration in the House is almost impossible before the election. There is a different House bill (HR 4024) that has yet to be considered in Committee. That has some chance of getting to the House floor before S 1961 gets through the Senate. If that happens there is a good chance that a conference Committee on one of the two bills could resolve the differences during the lame duck session. Otherwise, this bill will have to be re-introduced in the 114^th Congress next year.