S 1961 Reported in Senate – Drinking Water Protection Bill -

On the last effective day of the Senate session before the summer recess, the Senate Environment and Public Works Committee finally published their report on S 1961, the Chemical Safety and Drinking Water Protection Act of 2014. There is nothing really new in the report that I did not report in my earlier post on the results of the markup hearing.

When the Senate returns to Washington in September, it is now remotely possible that the bill could be brought to the floor for consideration. In the lead up to the mid-term elections and with spending bills (or most likely a continuing resolution) still to be considered it is unlikely that this bill will be brought to the floor. Even though the bill had some bipartisan support in Committee (only two Republicans voting no with no demand for a recorded vote) I don’t think that there was enough support to overcome the bipartisan bickering that only increases the closer we get to election day.

Rep. Capito’s (R,WV) similar bill in the House, HR 4024, has yet to be considered in committee, so I think we can safely assume that there is no plan to consider that bill or the Senate alternative during this session. This legislation appears to be effectively dead for this session, unless of course there is another water treatment facility similarly affected by an industrial chemical spill.

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.

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.

Definitions

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.

Bills Introduced – 02-10-14

Yesterday there were 17 bills introduced in the House and Senate; three of them were of possible specific interest to readers of this blog:

HR 4022 Latest Title: To provide for a strategic plan to reform and improve the security clearance and background investigation processes of the Federal Government, and for other purposes. Sponsor: Rep Lynch, Stephen F. (D,MA)

HR 4024 Latest Title: To protect navigable waters from contamination by chemical storage facilities, and for other purposes. Sponsor: Rep Capito, Shelley Moore (R,WV)

S 2007 Latest Title: A bill to amend the Federal Food, Drug, and Cosmetic Act to provide for regulating clinical and health software, and for other purposes. Sponsor: Sen Fischer, Deb (R,NE)

HR 4022 may, or may not, have any effect on security clearances for the private sector. If it does I’ll be looking at it in more detail once it is posted.

HR 4024 has a different title than S 1961 so it is probably a different response to the Freedom spill. In any case, I’ll certainly watch it here.

S 2007 may address cybersecurity issues related to medical software. We will have to wait until it is printed to be sure.