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.

Alternative to S 1961 – Why so few tanks?

When I wrote my blog post this weekend proposing an alternative to S 1961, Sen. Manchin’s (D,WV) chemical storage bill, I greatly reduced the number of storage tanks that would be covered by the legislation. As an industrial chemist, I wish that I could tell you that I reduced the number because I know that the vast majority of the storage tanks that Manchin’s bill would have had inspected did not need to be inspected because the chance of their leaking was remote. Unfortunately, I can’t say that; I just don’t know.

If I don’t know that the tanks that will remain uninspected are safe from leaking, how can I remove them from the list of tanks to be inspected? The answer is painfully simple, even if Manchin’s bill became law today, the vast majority of the chemical tanks covered would remain uninspected for decades to come. And a significant percentage of those that passed inspection would leak before they were next scheduled for inspection.

What Could be Covered?

To see how I can say that, let’s take a practical look at the sweeping storage tank inspection requirements in Manchin’s bill. First off, the bill never mentions storage tanks; it discusses covered chemical storage facilities. It describes chemical storage facilities as “a facility at which a chemical is stored” {§1471(1)(A)}. It doesn’t describe what chemical, or how much chemical or in what types of containers it is stored.

The only limiting factor to a covered chemical storage facility would be the determination by a State water treatment regulating authority “that a release of the chemical from the facility poses a risk of harm to a public water system”. Again there is no limitation of the type of risk or the level of risk; just that it would pose a risk of harm and again ‘harm’ is undefined.

The bill intends for the widest possible latitude to be taken in determining which chemical storage facilities are covered. This can be seen in the language for the inspection requirements for those facilities in §1472(b)(2)(B). It provides for inspections to be taken for facilities within the State source water assessment area as defined in 42 USC §300j-13 and less frequently for those facilities outside of the source water assessment area.

Section 300j-13 describes the source water assessment area as those areas “in such State from which one or more public water systems in the State receive supplies of drinking water, using all reasonably available hydrogeologic information on the sources of the supply of drinking water in the State and the water flow, recharge, and discharge”. Areas not in the source water assessment area would then be all other areas of the State. From this we can see that the Manchin bill does not even require that the potential harm from the chemical has to deal with contaminating the source water for a treatment plant.

In essence, every chemical storage facility in the plant could be a covered chemical storage facility depending on the whim of the State regulator. Because there are no limits on the types or quantities of chemicals involved, every facility in the State could be determined to be a covered chemical storage facility because every facility in the world that stores anything, by definition stores chemicals.

What Would be Covered?

Okay, let’s assume that these political authorities are going to be reasonable (what lawyers describe as ‘a fact not in evidence’) and for the sake of argument assume that they are only regulate facilities with storage tanks. After the problems seen in Charleston, WV with a relatively small leak (less than a ¼ of the tank contents over a period of hours) from a tank containing a relatively non-hazardous chemical (not on any government list of hazardous chemicals), I think that we can assume that any politician in his right mind (okay, that may be a contradiction in terms) is going to assume that any chemical in a tank over a minimal size (say 1000 gallons) is going to qualify the facility as one that might harm a water treatment facility.

And I think that if you were to ask Sen. Manchin or almost any resident of the environs affected by the water system issues in the Charleston, WV area that they would almost unanimously agree with that being the intended scope of this bill. So, how big is that scope; how many facilities are we talking about? Sad to say, nobody knows.

Let’s take a look at the initial coverage of the CFATS bill by comparison. That bill defined the hazard as being related to a minimum quantity of no more than 300 chemicals. For the sake of argument, let’s assume that each of the chemical facilities that filed an initial Top Screen for the CFATS program had at least one storage tank on site. There were over 40,000 such facilities in the United States in January of 2008 when the initial Top Screens were filed. That was 40,000 chemical facilities and all of the facilities at US ports were exempted, all military bases were exempted, all water treatment and waste water treatment plants were exempted and only 300 chemicals were considered.

The covered facilities under the Manchin bill would be much more sweeping in its coverage and scope and no facilities are exempt from the requirements of this bill. There has got to be hundreds of thousands of facilities in the United States that have storage tanks on site. Just think of how many gas stations there are. We could easily be looking at more than a million covered chemical storage facilities.

How Many Inspectors is it Going to Take?

Every time that there is a newsworthy accident at a chemical facility, one of the first thing that reporters dig up is the length of time since the offending facility was last inspected by OSHA or the EPA, or DHS. In almost every case the time has been excessive by the reporter’s standards (and, to be fair, excessive in the minds of most of the public). The reason for the inspection gaps is not malfeasance or graft, it is simply that there is an incredibly small number of inspectors to cover a huge number of facilities.

Right now there are zero inspectors available to water treatment regulators in the States to conduct storage tank inspections. So each State is going to have to stand up a new chemical tank inspection force to implement the requirement of Manchin’s bill. Say that there are 50,000 facilities (and that is way on the low side of what I expect there to be) in a state that will require inspections every 4 years (half at three years and half at 5 years). That is 12,500 inspections a year. If each inspector can inspect one facility a day, 5 days a week, 52 weeks a year (an extremely aggressive inspection program) it will take about 46 new inspectors, five new supervisors, a program director and a support staff to meet these new program objectives. There will have to be office space, computers, printers, cell phones and state vehicles to support the program.

And all of this is going to cost a great deal of money. And who is going to pay that money, the tax payers of course. Oops, not likely. Let’s cut that back to a program that the Governor can budget for.

What will the program actually get? Six inspectors and a supervisor; forget the support staff, they can do it themselves. We will give then three cars because they are only going to get out of the office two days a week because they are doing their own report writing and filing; so they can share vehicles. They will do three inspections on each of those two days; it will be quick, but how hard can it be to inspect a bunch of storage tanks? They will be active 48 weeks a year (you can’t forget mandatory training and conferences) so they will actually inspect 1,728 facilities a year and it will be 28 years before they get the first round of inspections done. If management is smart, they’ll inspect the facilities upstream of the water treatment plants first; BIG IF.

You Can’t Inspect Everything

It is a sad fact of regulatory life, you are not going to get a chance to inspect everything; the taxpayers are not going to stand for it. So you have a choice, you can pretend that you are going to inspect everything and most people will consider the program to be a joke. The owners who care will already have been making an effort to things right. The ones that don’t care won’t change until they get a violation notice and even then a number of them will gamble that you won’t be back to verify that they fixed stuff.

Or you can try to define the program so that is limited enough in scope that you can inspect everything that is really important to inspect. If you are talking about protecting drinking water, then you inspect those facilities that have chemicals that the treatment facility cannot remove from the water. And you only inspect those that are close enough to provide an imminent danger in the event of a significant leak.

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.

Bills Introduced – 01-27-14

Yesterday there were 21 bills introduced in the House and Senate. One of those will be of specific interest to readers of this blog:

S 1961 Latest Title: A bill to protect surface water from contamination by chemical storage facilities, and for other purposes. Sponsor: Sen Manchin, Joe, III (D,WV) 

I wrote about this bill over a week ago after the initial press release from Sen. Manchin, but we will still have to wait for the bill to be published to see how it attempts to achieve its objectives. There is frequently a disconnect between what those press releases say and what the bill actually attempts to do.

NOTE: Rumors continue to abound about Rep. McCaul’s (R,TX) CFATS authorization bill, but it has not yet been introduced. I suspect that it is being further refined.