As I noted
Tuesday Sen. Manchin (D,WV) introduced S 1961, the Chemical Safety and
Drinking Water Protection Act of 2014, in response to the recent Freedom
spill in Charleston, WV. This bill would amend various provisions of the Safe
Water Drinking Act (SWDA, 42
USC §300f et seq) to help prevent the re-occurrence of such an incident.
Among other things it would add a Part G—Protection of Surface Water from
Contamination by Chemical Storage Facilities to that Act.
State Programs
Most of the requirements of this bill would provide States
with new authority and responsibility in their enforcement of the Safe Water
Drinking Act. These provisions are extensions of current enforcement authority.
The States could decline to exercise this authority and then the enforcement
authority would revert back to the Administrator of the EPA. This is how the
Congress gets around the ‘unfunded State mandates’ dilemma; the States don’t
really have to do anything, they can just let the Federal government step in
and do it for them.
Covered Chemical Storage
Facility
The key to this new legislation is the addition of a new
term to the SWDA; covered chemical storage facility. The new §1471 would define
this term as “a facility at which a chemical is stored and the Administrator or
State, as applicable, determines that a release of the chemical from the
facility poses a risk of harm to a public water system” {§1471(1)(A)}.
This is a very broad term that allows the Administrator of
the EPA and State regulators a great deal of leeway in writing the applicable
regulations that would implement this legislation. There is nothing in this
language that would limit the scope of such regulations to bulk storage tanks
such as those that were involved in the Freedom spill.
In fact, there is nothing here that would stop the
regulators from including every privately owned facility, including individual
homes, from coverage because everyone stores chemicals. Realistically, there
would be no way to enforce such sweeping regulations and no agency is going to
try to write regulations that are that sweeping in scope, but it would be
allowed under this definition. The only restriction here is that a regulatory
determination of potential harm to a drinking water system would have to be
made.
Required Chemical
Facility Actions
Section 1472 would require the establishment of State
programs to protect drinking water from contamination by covered chemical storage
facilities. States and the EPA would have one year from enactment to establish
these programs. Those programs would be required to establish standards for
{§1472(b)(2)(A)}:
• Good design, construction, or
maintenance;
• Leak detection;
• Spill and overfill control;
• Inventory control;
• An emergency response and
communication plan;
• An employee training and safety
plan;
• An inspection of the integrity of
each covered chemical storage facility; and
• Lifecycle maintenance, including
corrosion protection;
While it would be hard to argue against any of those
requirements, especially in light of the recent Freedom spill, the devil is
always in the details. It would be helpful to the chemical industry if the EPA
were to issue appropriate guidelines and regulations for the States to enforce.
That way there would be a single, national standard for multi-state
organizations to deal with.
The programs would also have to provide that covered
chemical storage facilities would have to provide information to the EPA, state
SWDA authorities, and the local water treating facility about:
• The potential toxicity of the
stored chemicals to humans and the environment; and
• Safeguards or other precautions
that can be taken to detect, mitigate, or otherwise limit the adverse effects
of a release of the stored chemicals.
The lack of a definition for ‘potential toxicity’ is of more
than a little concern. While the Crude MCHM was relatively non-toxic, it did
have at least some measure of recognized toxicity. Would chemicals that did not
have any known toxicity testing have to be reported? Would chemicals with
extremely high dose rate toxicity have to be reported? There really should be a
standard that combined known toxicity levels and maximum possible spill amount
from a facility. High dose-rates for toxicity and small spill volumes add up to
be a non-issue.
Finally the State programs would be required to spell out
specific financial responsibility requirements (including proof of insurance,
bond, or other similar instrument) for covered chemical storage facilities.
This is very important because later in the bill (§ 1474) is the requirement that if costs are
incurred by the EPA or State for response actions because of a release of a
chemical from a covered chemical storage facility, the facility would be liable
to the Administrator or the State for those costs.
State Program Actions
The programs established under §1472 would also include specific state actions
in support of the program. Listed second {§1472(b)(2)(C)}, but certainly a
primary responsibility would be the requirement to maintain a comprehensive
inventory of the covered chemical storage facilities in the State.
This would have to include a precise physical location for
the facilities because the second requirement, a State inspection program for
those facilities, would have a frequency based upon the location of the
facility with respect to water treatment facility source water assessment areas
defined under 42
USC §300j-13. Facilities located within such source water assessment areas
would have to be inspected every three years. All others would be inspected
every five years.
This is going to require a fairly large staff of inspectors
to be able to maintain reasonable inspection quality while covering the number
of facilities involved. There is no mention of the golden phrase ‘inherently
governmental function’ with respect to these inspections (though it could
certainly be argued to be such), so it is possible that the States could
contract out for this or even require facilities to pay for such inspections by
licensed inspectors.
Information Sharing
Section 1476 would be added to the SWDA to cover the
necessary information sharing aspects of the State plans under this
legislation. It requires that whomever administers the Sate plans (EPA or
State) is responsible for sharing with public water systems information about
emergency response plans for all chemical storage facilities within the same
watershed as the public water system {§1476(a)(1)}
and an inventory of “each chemical held at the covered chemical storage
facilities” {§1476(a)(2)}.
Interestingly, there is no requirement in the State plan section for facilities
to provide that inventory to either the EPA or State.
Copies of the emergency response plans would also have to be
submitted to DHS and the EPA. Presumably the EPA copies would be sent to the
EPA drinking water folks. To whom such plans would be sent at the sprawling DHS
is not specified, but I suppose it would be FEMA.
To assuage concerns about the release of the above
information presenting a security issue, the plan administrators at the federal
or State level would be allowed to restrict the release of sensitive security
information. The bill does not include mention of which sensitive security
information program that would fall under. That could be very important because
each of the existing programs have significantly different sharing rules and
restrictions.
The provision does make clear, however, that there are
limits on that information sharing restriction authority. It does not apply to
public health information (not defined) {§1476(c)(2)(A)}
nor can it be used to prevent sharing with “the Administrator, the Secretary of
Homeland Security, a public water system, or a public agency involved in
emergency response” {§1476(c)(2)(A)}.
Emergency Powers
Section 2 of the bill goes on to expand the current
emergency powers of the EPA Administrator to take action under power of the
SWDA (42
U.S.C. 300i). After first adding the words “or a covered chemical storage
facility” after every mention of “public water system” in the appropriate
paragraphs of 42
U.S.C. 300g–3, section 2(b) adds a new paragraph to §300i that would allow owner-operators of public
water systems to either petition the EPA Administrator to take emergency
actions or for the owner-operator to bring civil actions against “any activity
or facility that may present an imminent and substantial endangerment to the
health of persons who are supplied by that public water system” {§300i(b)(1)(A)}.
Citizen Suits
Adding covered chemical storage facilities to coverage under
the SDWA makes them susceptible to citizen law suits for actions or failure to
take actions under provisions of the new §1472. The citizen law suit provisions
are covered under 42
USC 300j-8.
Moving Forward
The definitions of this bill are just too vague and the
requirements potentially so far reaching that there will not be a single
business organization that will be able to support the bill. This will almost
certainly mean that the bill will never make it to the floor of the Senate and
probably will never even be considered by the Senate Committee on the
Environment and Public Works.