Friday, January 31, 2014

S 1961 Introduced – Chemical Storage

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.

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