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97–583 PDF 2016

S. HRG. 113–747 

EXAMINATION OF THE SAFETY AND SECURITY 

OF DRINKING WATER SUPPLIES FOLLOWING 

THE CENTRAL WEST VIRGINIA DRINKING 

WATER CRISIS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON WATER AND WILDLIFE 

OF THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

FEBRUARY 4, 2014 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys 

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

BARBARA BOXER, California, Chairman 

MAX BAUCUS, Montana 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

TOM UDALL, New Mexico 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

DAVID VITTER, Louisiana 

JAMES M. INHOFE, Oklahoma 

JOHN BARRASSO, Wyoming 

JEFF SESSIONS, Alabama 

MIKE CRAPO, Idaho 

ROGER WICKER, Mississippi 

JOHN BOOZMAN, Arkansas 

DEB FISCHER, Nebraska 

BETTINA POIRIER, Majority Staff Director 

ZAK BAIG, Republican Staff Director 

SUBCOMMITTEE ON WATER AND WILDLIFE

BENJAMIN L. CARDIN, Maryland, Chairman 

THOMAS R. CARPER, Delaware 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER 

BARBARA BOXER, California (ex officio) 

JOHN BOOZMAN, Arkansas 

JAMES M. INHOFE, Oklahoma 

JOHN BARRASSO, Wyoming 

JEFF SESSIONS, Alabama 

DEB FISCHER, Nebraska 

DAVID VITTER, Louisiana (ex officio) 

(III) 

C O N T E N T S 

Page 

FEBRUARY 4, 2014 

OPENING STATEMENTS 

Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland ................ 1 

Vitter, Hon. David, U.S. Senator from the State of Louisiana ............................ 4 

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 6 

Udall, Hon. Thomas, U.S. Senator from New Mexico .......................................... 9 

Rockefeller, Hon. Jay, U.S. Senator from the State of West Virginia ................. 11 

Manchin, Hon. Joe, U.S. Senator from the State of West Virginia ..................... 12 

Rahall, Hon. Nick, U.S. Representative from the State of West Virginia .......... 14 

Capito, Hon. Shelley, U.S. Representative from the State of West Virginia ...... 15 

WITNESSES 

Tennant, Natalie E., Secretary of State, West Virginia ....................................... 17 

Prepared statement .......................................................................................... 19 

Responses to additional questions from Senator Boxer ................................ 25 

Response to an additional question from Senator Vitter .............................. 26 

Responses to additional questions from Senator Cardin ............................... 26 

Huffman, Randy C., Cabinet Secretary, West Virginia Department of Environmental Protection ................................................................................................. 28 

Prepared statement .......................................................................................... 30 

Responses to additional questions from: 

Senator Boxer ................................................................................................... 35 

Senator Cardin ................................................................................................. 36 

Senator Vitter ................................................................................................... 38 

Olson, Erik D., Senior Strategic Director for Health and Food, Natural Resources Defense Council ...................................................................................... 39 

Prepared statement .......................................................................................... 41 

Responses to additional questions from: 

Senator Boxer ................................................................................................... 51 

Senator Cardin ................................................................................................. 53 

Fewell, Brent, Vice President of Environmental Compliance on Behalf of 

United Water ........................................................................................................ 59 

Prepared statement .......................................................................................... 61 

Response to an additional question from Senator Boxer .............................. 69 

Responses to additional questions from Senator Cardin ............................... 69 

McNulty, Michael W., General Manager, Putnam Public Service District, 

West Virginia ........................................................................................................ 74 

Prepared statement .......................................................................................... 76 

Responses to additional questions from: 

Senator Boxer ................................................................................................... 83 

Senator Vitter ................................................................................................... 83 

Faulk, Richard O., Partner, Hollingsworth, LLP .................................................. 86 

Prepared statement .......................................................................................... 88 

Responses to additional questions from Senator Vitter ................................ 96 

Weaver, R. Peter, Vice President, Government Affairs, International Liquid 

Terminals Association .......................................................................................... 99 

Prepared statement .......................................................................................... 101 

Responses to additional questions from: 

Senator Cardin ................................................................................................. 108 

Senator Vitter ................................................................................................... 110 

Page

IV 

ADDITIONAL MATERIAL 

Statements: 

American Water Works Association ................................................................ 123 

West Virginia American Water ....................................................................... 125 

Clean Water Action .......................................................................................... 133 

(1) 

EXAMINATION OF THE SAFETY AND SECURITY OF DRINKING WATER SUPPLIES FOLLOWING THE CENTRAL WEST VIRGINIA 

DRINKING WATER CRISIS 

TUESDAY, FEBRUARY 4, 2014 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

SUBCOMMITTEE ON WATER AND WILDLIFE, 

Washington, DC. 

The subcommittee met, pursuant to notice, at 10 a.m. in room 

406, Dirksen Senate Building, Hon. Benjamin L. Cardin (chairman 

of the subcommittee) presiding. 

Present: Senators Cardin, Carper, Boxer, Udall, Vitter and 

Boozman. 

OPENING STATEMENT OF HON. BENJAMIN CARDIN, 

U.S. SENATOR FROM THE STATE OF MARYLAND 

Senator CARDIN. The Subcommittee on Water and Wildlife will 

convene. 

I want to thank Senator Boxer for her cooperation in allowing us 

to expedite this hearing. Senator Vitter, I want to also thank you 

for the manner in which the leadership of the EPW Committee facilitated a very quick and early hearing on what happened in West 

Virginia. 

Americans have a right to expect that when they turn on their 

tap, the water they get is safe and is safe to drink. It is our responsibility to make sure that expectation is, in fact, carried out, both 

at the Federal, State and local government levels. It is a primary 

responsibility of government to protect the public safety of the people of our community. 

The system did not work on January 9th in West Virginia. The 

system failed. Yes, the reckless conduct of a private company, Freedom Industries, was responsible for the spill and the failure to 

properly report but our system needs to be adequate to protect 

against all contingencies and it was not in this instance. 

I think we need to look at how we can strengthen our laws to 

make sure the public indeed has safe drinking water. 

I want to congratulate and thank Senators Boxer, Manchin and 

Senator Rockefeller in the Senate for quickly introducing legislation that deals with some of the fundamental issues with which we 

have to be concerned. 

The current law requires a risk assessment of chemicals that 

may be in the area that could jeopardize safe drinking water but 

2 

does not require an update of that information, nor does it require 

that there be a plan for using that information to protect the safety 

of the people of our community. Our laws are just not strong 

enough to deal with the current situation. 

Yes, we can take a look at the fact that there has been a risk 

assessment. However, the last risk assessment done in this area in 

West Virginia was done in 2002 and was done because of 9/11. We 

asked all communities to reassess their chemical vulnerabilities. In 

West Virginia, the State proper did a risk assessment in 2002. 

There was a different owner of the company at that time and it 

did not list the risk of the chemical involved in this particular episode, so risk assessments need to be updated in a more timely way. 

How do we use this information? First and foremost, we want to 

mitigate the risk factors to safe drinking water. In West Virginia, 

there would have been ways in which we could have had better retaining walls, better setbacks and a lot of different things could 

have been done if that information was available and if we acted 

on that information. 

We want to be prepared for all contingencies. The public expects 

us to be able to act quickly. 

I will put my full statement in the record because we will be 

holding people to time limits because we have a large panel here 

today. 

[The prepared statement of Senator Cardin follows:] 

STATEMENT OF HON. BENJAMIN L. CARDIN, U.S. SENATOR

FROM THE STATE OF MARYLAND

I want to thank our guest colleagues for coming before the subcommittee today 

to share their experiences and ideas. While I know this crisis in your State has been 

very trying for your constituents, my hope is that we may learn from this experience 

and find policy solutions to ensure that an incident like this never happens again 

in West Virginia or in any other state. 

The Central West Virginia Water Crisis has shined a spotlight on the 

vulnerabilities and threats to the safety and security of our drinking water sources. 

The rapid response to the crisis, especially the speedy relief efforts delivered to the 

affected communities by FEMA and the National Guard are to be commended and 

we thank those who were there during the victims’ times of need. 

The gross negligence of Freedom Industries, the company operating the chemical 

storage and terminal facility on the banks of the Elk River on the North-Eastside 

of Charleston, should give us all pause about the potential threats to our water resources across the country. 

Because the plain facts are: We don’t know the extent of the contamination risks 

to our drinking water sources. Federal law requires the states to conduct risk assessments within the watersheds or boundaries of known drinking water sources. 

Federal law does not, however, require these surveys to be updated or provide any 

guidance on how this information is to be used. What we have is a patchwork of 

State data with varying degrees of reliability. This creates uncertainty of risks for 

water providers. 

One of the most frightening, albeit fortunate, revelations about the West Virginia 

water crisis centers around one very distinct property of the chemical that spilled 

into Elk River infiltrating the West Virginia American Water works facility. 

Methyl-Cycl-Oh-Hex-ane, commonly referred to as MCHM, has a very distinct 

odor that is described as smelling like black licorice. Residents across West Virginia 

America’s service district noticed this unmistakable odor in their tap water on the 

morning of January 9th and immediately began reporting their discoveries to State 

environmental protection officials and the Water Works. 

These calls to the authorities touched off the investigation and discovery of the 

spill at the Freedom Industries tank farm located one and half miles upriver from 

West Virginia American’s intake pipe. Freedom Industries made no effort to report 

the spill, even though environmental investigators at the scene found that the Company had made a rudimentary attempt at containing the spill. 

3 

It was the odor of the MCHM that kept this crisis from being an all out public 

health catastrophe. But many chemicals are odorless, and would pass a literal ‘‘sniff 

test’’ while posing a serious threat to human health if they entered the water supply. 

Another chemical, PPH, is reported to also have spilled from the Freedom Industries facility. While officials believe that West Virginia American’s water treatment 

works may have removed the PPH from the drinking water supply, it went undetected for more than 2 weeks after the spill was reported. The only reason authorities knew to start looking for PPH is because, Freedom Industries admitted, 2 

weeks later, that PPH also spilled. 

EPA has only written Safe Drinking Water Act regulations for 90 contaminants. 

MCHM an PPH are not one of the 90. In fact there is very little known at all about 

the safety of these chemicals. 

While the lack of information of the safety of these chemicals is concerning, what 

troubles me in my capacity as chairman of the Water of Subcommittee is the lack 

of information downstream drinking water provider had of these chemicals’ presence 

being stored on the banks of the Elk River just 1.5 miles upstream. 

The responsibility to provide safe drinking water to thousands of customers is 

enormous. There are standard industry procedures used to treat for common microbial contaminants and turbidity but not most chemicals. Treatment for chemicals, 

on the other hand, can be very complex. With more than 80,000 manufactured 

chemicals in commerce we can’t expect every water provider to test and treat their 

water for every known chemical. 

We can and should expect drinking water providers to test and treat for known 

potential contaminants within their watershed boundaries. But they need to know 

what potential threats are out there to do so effectively. 

Section 1453 of the Safe Drinking Water Act required EPA to publish guidance 

for states to implement source water assessment programs that delineate boundaries of the areas from which systems receive water, and identify the origins of contaminants within those areas to determine systems’ susceptibility to contamination. 

These assessments can be incredibly helpful if they are kept up to date. The law, 

however, has no update requirement. 

If West Virginia American had accurate and up to date information on the chemicals being stored in the watershed it would have been better prepared to detect and 

treat for MCHM and the crisis could have been avoided or at least very least mitigated. 

But the responsibility for preventing a health crisis resulting from an individual’s 

or corporation’s irresponsible actions that foul a source waters should not fall 

squarely on the shoulders on the water service provider at the expense of individual 

ratepayers. The law needs to place greater responsibility on the entities creating the 

risk and emphasize prevention at the potential source of contamination. It is entirely unfair to socialize the expense of recovering for the mistakes of a single entity. 

We’re seeing this playing out right now in West Virginia. West Virginia American 

continues to spend thousands if not millions of dollars to recover from this spill. 

These expenses will ultimately be passed along to their 300,000 customers. Some 

of these customers will likely to have to make personal investments to repair or replace damaged hardware and appliances caused by the spill. Meanwhile, Freedom 

Industries has filed for bankruptcy to protect their financial liability for damages 

from a incident that they are responsible for. 

I want to believe that most companies that produce, store, ship and sell potentially hazardous chemicals are responsible actors. Its situations like this that clearly 

demonstrate that even if most actors are good, one bad actor can put at risk the 

health and safety of hundreds of thousands of people and that there is a very appropriate and essential role for government to play to protect those people from the potential negligence of others. 

The Safe Drinking Water Act does not provide specific risk prevention enforcement measures for the State to implement on identified risks in the watershed assessment. That’s not to say states can’t pass such laws, but it is entirely appropriate, given how waters flow across State lines and in many instances establish 

State borders, for there to be better Federal enforcement mechanisms. 

The West Virginia Senate recently passed legislation, with unanimous bi-partisan 

support, to improve the monitoring and spill prevention requirements of chemical 

facilities in the state. 

I would like to think that there would be bi-partisan support in the U.S. Congress 

to make similar amendments to our Federal laws to better ensure the safety of all 

communities. 

The Federal role is clear. We need only look at the source of water for the U.S. 

Capitol to underscore this point. Our water in this building comes from high up in 

4 

the Potomac River Watershed from an Army Corps reservoir, named after U.S. Senator Jennings Randolph from West Virginia. That reservoir straddles the West Virginia and Maryland border, yet it provides water to DC and suburban Maryland. 

This is just one example of a clear interest we have in improving Federal statute. 

I look forward to working with colleagues on these issues so that we may prevent 

the next crisis from occurring in each other’s state. 

Senator CARDIN. I want to thank the responders, the people at 

FEMA, the National Guard and many others who did incredible 

work to provide safety and information to the people of West Virginia and minimized the otherwise catastrophic impact of this episode. 

I also want to point out that we need to look at the cost issues. 

The company involved has filed bankruptcy, trying to avoid the full 

financial impact, which means the ratepayers of West Virginia and 

many homeowners are going to be suffering. What do we do about 

that? 

I also want to look at the issue of federalism. I know the Senate 

in West Virginia has acted on legislation. I know it is under consideration in both the House and the Senate in the State, but this is 

an issue of federalism. 

The water we drink here, this tap water that came from the tap 

we hope is safe, comes from the Potomac River Watershed named 

after U.S. Senator Randolph Jennings from West Virginia. It comes 

from West Virginia and Maryland into D.C., so yes, federalism says 

the States need to act but the Federal Government also needs to 

act to make sure we have safe drinking water for all the people of 

our country. 

I am very pleased to have our colleagues here from both the 

House and the Senate. We have many people on the next panel 

who are experts in this area. I hope we can move forward together. 

Like the legislature in West Virginia, I hope that the Congress can 

move forward in a bipartisan. My understanding in the Senate, it 

was a unanimous vote. I hope we can move forward in a bipartisan 

manner to change our laws and oversight to make sure we keep 

our people safe. 

With that, let me turn to Senator Vitter. 

OPENING STATEMENT OF HON. DAVID VITTER, 

U.S. SENATOR FROM THE STATE OF LOUISIANA 

Senator VITTER. Thank you, Chairman Cardin and Chairman 

Boxer for convening this really important subcommittee hearing 

today on the West Virginia chemical spill. 

My thoughts go out to the more than 300,000 individuals directly 

affected by this accident. I hope today’s panel can better help us 

understand the circumstances surrounding this spill to enhance response and prevention in the future. 

I certainly want to commend Senator Manchin, Representatives 

Capito and Rahall, and all those who have worked tirelessly in the 

wake of this unfortunate spill. On the Senate side, Senator 

Manchin, with others, has introduced legislation in response to the 

spill. While I have specific issues with it that we are working 

through, I am completely supportive of the effort and hope to come 

to a positive resolution of those specific issues very soon. 

A crucial part of the legislative process is undertaken at the committee level where traditionally bills are brought to markup for an 

5 

open and transparent discussion. Members from both sides of the 

aisle are allowed to voice their opinions and offer amendments to 

be voted on. 

I want to thank Chairman Boxer for agreeing to a markup later 

this week. I fully support that process, but I also want to encourage 

more of that, more markups where there is significant bipartisan 

work going on. 

Senator Manchin’s bill, along with other important pieces of legislation, like our Chemical Safety and Improvement Act, should be 

brought before this committee in a markup to allow the legislative 

process to play out. In an age where compromise is so rare, it is 

unfortunate that any bill which has significant support throughout 

the Senate would not move expeditiously. Multiple bipartisan bills 

in addition to the Chemical Safety and Improvement Act continue 

to wait for markup and I certainly support action in all of those 

areas. 

In this instance, it is clear that important information was not 

readily available on certain chemicals which got into the Elk River, 

further highlighting the need for reforming our Nation’s outdated 

law that assesses chemical risks, the 38 year old Toxic Substances 

Control Act. 

I am certainly proud to have introduced the first ever bipartisan 

TSCA reform bill with the late Senator Lautenberg. As many of 

you know, that is currently sponsored by 25 Senators from both 

parties spanning the entire political spectrum. 

For the last 6 months, Senator Udall and I, along with other 

members of the Senate, including Senator Manchin, have worked 

tirelessly to improve that already bipartisan agreement and have 

made significant strides in this regard. The bill we have now is not 

the bill we initially introduced because we have carefully listened 

to stakeholders and made significant and measurable improvements. 

A vast majority of States, West Virginia included, have resource 

constraints and need the certainty of a strong Federal program 

that develops risk assessments and regulations based on sound 

science. It is important to quickly explain how CSIA would unequivocally help States and the American people with greater access to information aiding in the understanding and response to 

such an incident as this. 

I guess the bottom line in that regard is that the lack of health 

and safety data on any of the chemical compounds which spilled in 

West Virginia would have been enough under our bill for EPA to 

have classified them as high priority, requiring a full and robust 

safety assessment and determination. 

Our bill would have granted greater authority to EPA to ensure 

assessment and determination be informed by new studies ordered 

by EPA without having to go through the formal rulemaking process or find that the chemical may pose an unreasonable risk. 

The bill would also reduce barriers for the agency that exist now 

and would also allow for greater sharing of confidential information 

between EPA, State and local governments, as well as first responders and health practitioners. 

Finally, I want to welcome all of our witnesses today, in particular the members that I recognized, as we look to what hapVerDate Aug 31 2005 15:38 Jan 05, 2016 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\97583.TXT VERN
6 

pened in their State of West Virginia. I look forward to an important discussion. 

Thank you. 

Senator CARDIN. Senator Boxer. 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. Thank you, Senator Cardin, for your great leadership. Thank you, Senators Vitter and Boozman for agreeing this 

and welcome to all. 

I want to make a statement about TSCA but most of my statement will not be about TSCA. I want to enter into the record an 

article entitled, The Chemical Safety Improvement Act Will Not 

Solve the Problems Illustrated by the West Virginia Chemical Spill. 

Senator CARDIN. Without objection. 

[The referenced information follows:] 

THE CHEMICAL SAFETY IMPROVEMENT ACT WILL NOT SOLVE THE PROBLEMS

ILLUSTRATED BY THE WEST VIRGINIA CHEMICAL SPILL

POSTED JANUARY 15, 2014

Daniel Rosenberg, Senior Attorney, Washington DC 

In the wake of the recent chemical spill into the Elk River and the drinking water 

supply of several hundred thousand West Virginians, a new call has been raised to 

quickly move bi-partisan legislation introduced in May 2013 to reform the Toxic 

Substances Control Act (TSCA). Unfortunately, it would be compounding one environmental disaster with another to move forward with that legislation, the Chemical Safety Improvement Act (S 1009), in its introduced form. While some individual 

provisions of S. 1009 are potential improvements over TSCA, other provisions would 

mute or erase their impact and the bill as a whole would leave the public with even 

less protection. That bill, as is, would leave EPA hamstrung and prevent states from 

taking action. TSCA, first passed in 1976 (and never updated) has largely been a 

failure. Intended to give EPA the authority to regulate the manufacture, use, distribution and disposal of chemicals ‘‘from the cradle to the grave’’ it has yielded virtually no meaningful regulation or protection, particularly from the tens of thousands of chemicals that were in commerce at the time the law was enacted. The 

law ‘‘grandfathered’’ in chemicals like the one that leaked in West Virginia, 4-methyl-cyclohexane-methanol(MCHM), meaning that they remained on the market unregulated even though virtually no information was available on any risks they 

might pose. The law ‘‘grandfathered’’ some 62,000 chemicals, and did not require 

that EPA test them for safety or ensure that they met a standard of safety. 

The law also contained provisions making it difficult for EPA to require testing 

of chemicals, and saddled the agency with a requirement to prove that it had examined and done detailed analysis on virtually any possible means to regulate a chemical before settling on the appropriate set of restrictions. The impact of these provisions was fully revealed in 1991 when a Federal court overturned EPA’s attempt 

to ban most uses of asbestos, which is known to cause disease, including cancer, 

after a 10-year effort. Since that time EPA has not regulated another chemical substance under TSCA. In total, the agency has regulated only six of the original 

62,000 substances under the law. 

Health, science, labor, consumer, justice and environmental organizations from 

across the country have been working toward reform of TSCA for years in an effort 

to ensure the existence of a strong Federal program for assessing the safety and regulating chemicals. Unfortunately, the Chemical Safety Improvement Act (CSIA), as 

introduced, would fail to ensure such a program, and at the same time would prevent State and local governments from taking action to protect their citizens—which 

is what has taken place in the absence of Federal action under TSCA. On balance, 

the CSIA would actually be worse than current law. 

In the wake of the West Virginia spill, the outcry has been to ensure that information is available about risky chemicals and that those risk be limited. But the 

CSIA in its current form would require EPA to go through as much as a decade 

of preliminary steps before it could start regulating additional chemicals. Even after 

analysis began, it would continue to make it hard to get information on existing 

7 

chemicals and to use that information. The bill makes it easy, though, for the agency to decide that a chemical is a ‘‘low priority’’ and to never regulate it. And the 

bill blocks states from taking action on chemicals even if EPA has not acted or will 

never act. 

Here are just a few of the many problems with the introduced version of the 

Chemical Safety Improvement Act: 

The safety standard in the legislation is not protective of public health. It would 

not ensure the protection of vulnerable populations, including those more heavily 

exposed to toxic chemicals and those—like pregnant women, children and the elderly—more vulnerable to the toxic effects of chemicals. And the safety standard could 

still allow consideration of cost as a factor in determining whether a chemical was 

safe and could be regulated by the EPA, the same failure as under the existing law. 

The bill contains no enforceable deadlines for EPA to take action to assess or regulate chemicals, and establishes no minimum number of chemicals for the agency 

to assess each year. With thousands of chemicals never assessed for safety, and with 

industry and congressional opposition to most steps taken by EPA to assess or regulate chemicals to date, a failure to include enforceable deadlines and minimum requirements ensures that nothing would happen under this new ‘‘improved’’ TSCA. 

In addition to the lack of enforceable deadlines, the bill contains pages of provisions that would tie the agency up in red tape, delaying potentially for years any 

effort by EPA to prioritize, test, assess and regulate chemicals. In addition, the bill 

is laced with provisions that would further hamper EPA, and put a thumb on the 

scale in favor of chemical industry-preferred methodologies for assessing chemicals 

over methods endorsed by the National Academy of Sciences. 

The bill would prevent EPA from requiring testing of a chemical unless it has 

been classified as ‘‘high priority’’ which in many cases may be difficult without some 

additional testing—due to the lack of available health for thousands of chemicals 

in commerce—including MCHM. This is one of many provisions designed to ensure 

that ultimately the number of chemicals assessed and actually regulated are very 

low. As far as the lack of available health data for most chemicals in commerce, one 

of the reasons for that is the excessive protection for claims of Confidential Business 

Information (CBI) which have been abused over the years and resulted in protection 

of information that is not actually CBI. The bill would grandfather in all previous 

CBI claims, including the identity of some 16,000 chemicals. 

Another problematic provision would allow EPA to designate a chemical as ‘‘lowpriority’’ meaning ‘‘likely to meet the [unprotective] safety standard’’—even when 

data to make an informed decision is lacking. In addition, once EPA made such a 

low-priority designation, states would be pre-empted from ever taking any action on 

the substance. Hundreds or thousands of substances could easily disappear down 

this memory hole, never to be thought of again unless perhaps they spill into somebody’s drinking water supply. 

As noted above, the bill would also widely preempt states from taking action on 

chemicals, including high-priority chemicals, even when action by EPA may be years 

away, or may never occur at all. The bill would also take away states’ existing authority to enforce Federal provisions of the law within their state. And the bill 

would eliminate existing authority for EPA to take quick action to protect the public 

from dangerous chemicals when such a need arises. 

Finally, the bill contains no provision to ensure that EPA has sufficient funding 

to run the type of program necessary to assess the safety of chemicals and ensure 

that those that remain in commerce are manufactured, processed, distributed, 

stored, used and disposed of with sufficient safety controls in place. 

In short, the problems with TSCA that are illustrated by the chemical spill in 

West Virginia would not be fixed by the Chemical Safety Improvement Act, as introduced, and in some respects they would be made worse. The bill as currently written would provide the public with the illusion of an effective Federal program to regulate chemicals, while tying the EPA in knots and taking away existing State authorities. The chemical spill in West Virginia is an illustration why we need to 

strengthen the Toxic Substances Control Act (and certain other environmental 

laws); it is not a justification for enacting a flawed CSIA. 

Senator BOXER. I wanted to note that TSCA is not designed to 

address inspection of chemical storage tanks. It deals with 

classifying 80,000 chemicals. I look forward to a strong TSCA bill. 

The current bill, this is so important, my scientific experts say 

this particular chemical would be classified as low priority. Under 

the bill we have before us, the Vitter bill, the one we are working 

on, Senator Vitter, we will be giving you our response next week 

8 

to that bill, there would be no ability for the State to act once a 

chemical is classified low priority. 

They would be precluded from acting and there would be no lawsuits allowed for the constituents of Senator Manchin and my colleagues here. Under the TSCA bill, no citizen could ever sue and 

the State would be preempted. We are going to work on a tough 

TSCA bill, one that is worthy of the name. 

Here is where we are. We are going to focus on what happened 

in West Virginia and what we can do now, not some long classification time and preemption of State laws and preemption of lawsuits 

for those injured. We are not dealing with that today. We set that 

aside today and we are going to act on how to fix the problem. 

I so appreciate all the electeds who are here today and those who 

have come today from the State because you have suffered from 

this. The impacts are ongoing. Residents are still concerned whether the water is safe to drink and businesses continue to feel the 

pain of the spill. You will tell me about the real impacts your families have been going through so I will not stress those here. 

We know that the CDC has advised pregnant women to avoid 

drinking tap water until there are no longer detectible levels in the 

system. Some businesses closed forcing employees to go without 

paychecks for days and some restaurants are still buying bottled 

water according to my information. 

Here is the situation. We had a tank filled with a chemical right 

near a drinking water supply. Because the risk assessment in the 

Safe Drinking Water Act was not used, no one knew what to do. 

The Manchin bill, which I am so proud to be a part of along with 

Senator Rockefeller, in the Senate what we say is this. If there is 

any type of storage facility that has a chemical in it which is near 

a drinking water supply, that particular tank, that facility must be 

inspected and we must know everything there is to know about the 

chemical regardless of any other laws which may be in place to 

help us. 

We need to focus on what the real problems are. Remember, 

there are 80,000 chemicals out there. There are just a few in this 

tank and we need to know what they are. The sadness is, as Senator Cardin so rightly pointed out, there haven’t been inspections 

since the early 2000’s and we really missed this. 

I am so sorry about that. I am unhappy about that. I want to 

work with my colleagues to fix it. This legislation, which we and 

our staffs worked hours on, puts in one place the tools necessary 

to protect our drinking water from chemical spills. 

It establishes State programs which parties from both sides support that will provide for regular inspections of these facilities, set 

design standards for the tanks, establish emergency response plans 

and provide information and tools to drinking water utilities to respond to future disasters. 

Senator Cardin, you are right. The current Clean Water Act does 

contain authority to deal with this but it is very loosey goosey. It 

is not clear and too much is left to the individuals. We need to 

make sure that in all of our States, if we have a chemical that 

could leak into a drinking water supply, we know everything about 

that chemical, we know what to do if something happens, we have 

the standards in place to make sure it is safely stored. 

9 

I am very happy you did this. We will have a further hearing 

with the Chemical Safety Board to continue to focus on this. This 

is not a 1-day approach. This is the first day approach. 

I thank you all for being here. 

Senator CARDIN. Senator Udall. 

OPENING STATEMENT OF HON. TOM UDALL, 

U.S. SENATOR FROM NEW MEXICO 

Senator UDALL. Thank you, Senator Cardin. 

Let me welcome everyone from West Virginia here today and in 

particular, my colleagues in the Senate and my former colleagues 

in the House, both of whom I very much enjoyed serving with. I 

am looking forward to hearing from you today. 

Americans expect modern water services to be always available 

and if they are not, there are serious public health consequences. 

The West Virginia spill clearly highlights the huge impacts accidental releases of chemicals can have on our health and well being. 

Our hearts go out to the citizens of West Virginia who have suffered enormous anxiety for weeks now in the face of uncertainties 

about the risks posed by contact with MCHM and the additional 

chemicals impacting the State. 

All of us around the country should be paying close attention to 

this accident because it raises some key questions. How did a 

chemical storage company’s accident manage to pollute drinking 

water for hundreds of thousands of people? 

I understand the State of West Virginia is increasing standards 

for this type of storage. That should be a reminder to all of us that 

reasonable environmental standards are not about burdens on the 

industry, they are protections for people and for taxpayers. 

This company has now declared bankruptcy. According to Business Week, the bankruptcy judge called it one of the most unusual 

cases he has seen and ownership changed hands 9 days before the 

spill. Are we assured this company will assume the liability here 

or will taxpayers, through Superfund, be forced to pick up the tab? 

We must be vigilant to ensure that these cleanup costs are met by 

the company. Corporate shell games should not be able to avoid responsibility. 

Finally, why is the information about the chemicals leaked so 

limited and so secretive? OSHA says MCHM is hazardous. Why 

hasn’t more testing been done about this chemical so that we know 

about its likely health effects from a spill like this? To me, this 

seems to be a key failure of our Nation’s current chemical law, the 

Toxic Substances Control Act. 

Americans should, but cannot under this old law, feel confident 

that the government is reviewing and regulating all chemicals. 

These chemicals are not only in industry but also in products that 

all of us, including children and pregnant women, come into contact with every day. 

Members of this committee are well aware that the late Senator 

Lautenberg and Senator Vitter introduced the Chemical Safety Improvement Act. This is the first bipartisan bill to reform TSCA 

ever. I believe we should capitalize on that key development and 

finalize the bill that can have broad support in the Senate, including our chairman, Chairman Boxer. 

10 

Several Senators have been working earnestly with stakeholders 

have been engaged in serious discussions over the past 8 months 

to strengthen and improve this key bipartisan bill. I would like to 

take a moment to clear the air and say to everyone that regardless 

of where you stand on that bill, there are significant changes happening to it. 

I believe that we are succeeding improvements, although we still 

have a ways to go. In particular, we need to understand in what 

ways TSCA reform could have lessened the impact of events like 

the spill in West Virginia. First and foremost, we need to ensure 

that reform addresses chemicals that lack sufficient information to 

determine their safety. 

Furthermore, we need to ensure that safety and health officials 

have quick and easy access to any existing and available information when such tragedies as this happen. 

These are all solvable and I think the solutions are near to us. 

I am not going to speak for anyone else besides myself but soon I 

hope we can publicly circulate an updated version addressing many 

of these issues so that we can move beyond talking about an outdated bill as introduced. 

We need to remind ourselves that every American comes in contact with chemicals on a daily basis, not just during times of accidents. I am confident that the ongoing discussions on TSCA reform 

are headed in a positive direction and can allow Americans to know 

that consumer products they invite into their homes on a daily 

basis are safe. 

If we can do that and help protect communities at risk from 

spills like this, I think all of our constituents will thank you very 

much. 

Thank you, Senator Cardin. I appreciate you and Chairman 

Boxer doing this. 

Senator CARDIN. Let me thank my colleagues who are here for 

their participation. 

This is the Subcommittee on Water and Wildlife. We are going 

to concentrate on the Safe Drinking Water Act. That is the responsibility of this committee, to make sure that we have safe drinking 

water. 

Obviously it affects how we handle chemicals in America but I 

would hope that we will focus on the adequacy of the Safety Drinking Water Act, particularly legislation that has been suggested by 

our colleagues. 

Also, just as a matter of reference, my staff has a chart that 

shows the aerial view just so we know the Elk River and where the 

West Virginia Intake Facility is located there on the left. Freedom 

Industries, where the spill occurred, is an hour and a half upstream from the intake. You can see how close all this is to the 

areas involved. I thought that would be helpful so we have a visual 

of the two particular areas involved. 

With that, I am going to turn to our colleagues. I want to than 

our two Senate colleagues, Senator Rockefeller and Senator 

Manchin for their extraordinary leadership on this issue, for their 

help to this committee and working with us to get today’s hearing. 

It is nice to have Congressmen Rahall and Capito here with us, 

two of my former colleagues with whom I served in the House of 

11 

Representatives. When I got to the House, I was appointed to the 

Transportation Committee and there was Congressman Rahall to 

help me understand the importance of what we do in the Congress 

as it relates to the infrastructure of this country. 

It is a pleasure to have all four of our colleagues here. Your full 

statements will be made a part of the record. We will start with 

Senator Rockefeller. 

OPENING STATEMENT OF HON. JAY ROCKEFELLER, 

U.S. SENATOR FROM THE STATE OF WEST VIRGINIA 

Senator ROCKEFELLER. Thank you very much, Mr. Chairman and 

Chairman Boxer. 

We have just referred to this as drinking water. Drinking is just 

one very small part of what this toxic water does. It causes people 

who have money enough to have a vacation home somewhere to get 

out of that nine county area and go there so they can take a bath. 

I know several people who commute on a daily basis just to be 

able to do that. Those people do not have those second homes, so 

they are left to deal with the horror of what this is. 

I can tell you, Mr. Chairman, there are a number of people I 

could but will not name to you who have said they are considering 

moving out of West Virginia because they have young children and 

have no confidence in the future, no confidence in our regulatory 

scheme either at the State or Federal level, and they are not taking 

any chances because they don’t know what that water is going to 

be like in the future, and neither do I. 

West Virginians want to know four things. How did this happen? 

Is the water now safe? There are various views on that. What are 

the long term health consequences? Senator Udall mentioned that 

and it is enormously important. If cancer goes into remission, does 

that mean it is gone? No. You wake up every day thinking it might 

come back, not being sure. That is a horrible feeling for bringing 

up a family and settling in. Finally, how do we make sure this 

never happens again? 

Right after this happened, I called the Chemical Safety Board 

and they are investigating this bill. They are very good at it. In addition, the State is addressing this and criminal investigation is 

going on. Senator Udall mentioned the fact that Freedom had 

taken bankruptcy. That certainly was convenient for them, wasn’t 

it? They want to get out of paying any kind of fine. 

Senator Schatz and I have a bill, which will no doubt be beaten 

by corporate interests in this Congress, saying they should be fined 

and pay every single nickel to clean up the mess they made, not 

just in peoples’ lives but literally in situ. It is a good bill. Will it 

pass in this money trumps all world that we live in? I am not sure. 

Despite the government’s insurance that the water is safe, doubt 

does linger. It is in the nature of people. There are too many unanswered questions. State and Federal officials are working very hard 

but deficiencies are replete in our regulatory structure. 

A word here. I happen to be something called a Democrat. I believe in spending money on infrastructure. I think it is important 

that we do that. That is not the mood of this Congress or at least 

enough of the Congress to stop anything from happening. 

12 

Invest in schools, invest in clean water, invest in roads, invest 

in all of those things which are part of safety for either imbibing 

of water or anything else you might do, that costs money. There 

might be some user taxes or a little bit more taxes. No, that will 

never happen. This has never been a part of the 30 years I have 

been in the Senate but it sure is now. 

People say let the industry take care of it. That is an Appalachian myth. I came from that side of Appalachia so sometimes I 

see Appalachian ways that are different than others but the idea 

that somehow God has it in his plan to make sure that industry 

is going to make life safe for you, not true. 

Industry does everything they can and gets away with it almost 

all the time, whether it is the coal industry, not the subject of your 

hearing, or water or whatever. They will cut corners and they will 

get away with it. Regulation is soft in West Virginia. It has always 

been soft, frankly, when you put that together with sequestration 

and government shutdowns and the whole theology of don’t cause 

anybody to do anything in this country which would cause water 

to be cleaner, bridges to be safer and all the rest of that. 

That is the story as I see right now. I am astounded, Senator 

Udall, that Freedom, as you say, timely 9 days before, is getting 

away with this unusual bankruptcy. All they want to do is say we 

don’t want to pay, somebody else has to pay. 

Appalachian culture, a little bit of it, I am sorry to say that. 

Scotch-Irish culture, a little bit, I am sorry to say. Fatalism, the 

world is as it is, we accept the world as it is and the point is, no, 

you don’t accept the world as it is. You accept the world as it 

should be and then you make it conform to that posture. 

I am here angry, upset, shocked, embarrassed that this would 

happen to 300,000 absolutely wonderful people who work in coal 

mines—don’t get me into that subject. They are depending on the 

fruit of the land wherever it may be for survival. They are making 

it but barely. 

I think I will stop there for my own good. 

Senator CARDIN. Thank you, Senator Rockefeller. We always appreciate your passion on these issues. 

Senator Manchin. 

OPENING STATEMENT OF HON. JOE MANCHIN, 

U.S. SENATOR FROM THE STATE OF WEST VIRGINIA 

Senator MANCHIN. Thank you, Chairman Cardin and Ranking 

Member Boozman, for holding the hearing today. I really appreciate your finally bringing national attention to this issue as only 

we here in Congress can do. 

I want to thank Chairman Boxer who has worked tirelessly. She 

jumped right in there with me in the immediate aftermath of this 

spill. She never hesitated, never blinked and her staff went around 

the clock until we had a piece of legislation we thought would not 

only help cure the problem in West Virginia, would have prevented 

the problem in West Virginia, and would definitely prevent this 

from happening anywhere in the country. That is our goal. 

On January 9, less than 4 weeks ago, thousands of gallon crude, 

MCHM, leaked from a storage tank into the Elk River. We all 

13 

know that. It contaminated the drinking water of 300,000 West 

Virginia residents, which is unconscionable. 

In our State, we have always worked hard. We have really 

worked hard to produce the energy and chemicals we use every day 

and take for granted. We are proud of the work we have done for 

this great country. That cannot come at a cost of access to safe and 

clean drinking water or to the safety and confidence of the people 

of West Virginia. 

This spill should never have happened and it is our responsibility 

in Congress, working with the States to do everything we can to 

keep it from happening again, not just in West Virginia but anywhere in America. 

That is why I worked with Chairwoman Boxer to develop the 

Chemical Safety and Drinking Water Protection Act. I thank Senator Rockefeller, my colleague from West Virginia, for being so instrumental in this. I appreciate that. 

Our bill would require State inspections of all above ground 

chemical storage facilities and more frequent inspections of those 

facilities located near drinking water sources. It sets minimum 

Federal standards that chemical facilities must meet including construction and leak detection requirements, failsafe containment 

standards, the development of emergency response plans and financial responsibility requirements which we see all too lax. 

Additionally, companies must inform the State, the Federal EPA 

and local water systems of chemicals they store. That information 

is only so helpful when we don’t have adequate health and safety 

data on these chemicals. That is why I am also a co-sponsor and 

totally committed to the Chemical Safety Improvement Act, which 

I know everyone is working in the best interest they can. I appreciate that. 

Under the Chemical Safety and Improvement Act, states could 

request that the EPA prioritize the testing of specific chemicals 

even if they aren’t detected or determined to be of high concern, including those held near waterways which specifically we should 

know everything near a waterway that is anything other than 

drinking water. 

For chemicals like MCHM, the overwhelming lack of health and 

safety data is one of the criteria for designing and designating a 

chemical as a high priority. 

The bottom line is that no West Virginian or American should 

have to worry about the contamination of their water supply from 

a chemical spill and I will do everything in my power to enact legislation to protect safe drinking water. These two bills will go a 

long way to ensure that every American has access to safe drinking 

water and that, God forbid, if an incident like this occurs again, we 

have the tools to respond as quickly and effectively as possible. 

Today, I am asking all West Virginians, the EPA, the CDC, the 

West Virginia DEP, and all those involved to join me in pledging 

to make sure the water in the Kanawha Valley is the cleanest and 

safest in America. That should be our goal here today. 

I want to also thank the CDC and EPA. As I understand, they 

are in our State today working with all of our State officials and 

basically restoring confidence in the water we have, making sure 

14 

we are all on the same page and that it is safe for human consumption. 

I just pray to God that no one goes through this. If it is wakeup call for all of us, then let it be a wake-up call and let us act. 

Thank you for having me. 

Senator CARDIN. Thank you, Senator Manchin. 

Congressman Rahall. 

OPENING STATEMENT OF HON. NICK RAHALL, 

U.S. REPRESENTATIVE FROM THE STATE OF WEST VIRGINIA 

Mr. RAHALL. Thank you, Chairman Cardin. I appreciate your 

having this hearing and allowing myself and our colleagues to 

speak to you and to full committee Chairman Boxer about the recent events in West Virginia. 

I am going to be very brief because I know you have a panel of 

experts following our panel. I want to thank both Senators Rockefeller and Manchin, along with Chairman Boxer and Chairman 

Cardin for the tremendous work you have done on legislation to 

bring forward to the Congress. 

I want to particularly thank Senator Rockefeller. He mentioned, 

while not from Appalachia, this gentleman has dedicated his entire 

career to the public health and safety of the people of Appalachia. 

Words would never be adequate enough to say thank you to our 

senior Senator for what he has done for the people of West Virginia. I want to publicly express that appreciation today. 

The recent chemical spill in our State has caused not only much 

well founded concern but also deeply felt anxiety. You have already 

heard that today. There is certainly a great deal of mistrust in the 

air as much as suspicion about what is in the water. 

Factual information in the wake of that spill is critical to all of 

us. There are too many unanswered questions for which we all 

need answers. The recent information that has come to light after 

the spill has only exacerbated the tremendous mistrust people already had for government. That certainly has gotten worse since 

this spill. 

I think it is proper that Congress conduct these hearings to understand the facts as well as the limits of congressional action before rushing headlong into something that we won’t regret but is 

going to need much work later on. 

On the day of the spill when State authorities arrived at the 

Freedom Industries site, they encountered a company that was either unaware of the leaking chemical or unwilling to admit they 

had a problem. When told to follow protocol and report the leak, 

the company dragged its feet and when it finally did report it, company officials mischaracterized the seriousness of the situation and 

the threat it posed to our people. 

Certainly Congress can require a better understanding of the 

risks of chemicals, it can help states improve emergency response 

and preparedness but I am not sure that Congress can ever completely legislate away the irresponsibility and the disregard for 

public welfare recently exhibited by Freedom Industries and whatever other shell operations were set up. 

West Virginians do care about the health and safety of our families and neighbors. Our State legislature, as you referenced, Mr. 

15 

Chairman, is working on bills to fix the legal loopholes and regulate chemical storage tanks but legislation alone will not repair the 

damage done to the public’s trust, mistrust of government and the 

public’s trust in the policies that emanate from this city and oversight at all levels where they feel they have been let down. 

To so many in my State, for example, the EPA has become the 

agency of no, an agency that only tells us what cannot be done 

rather than helping us to discern how we can do those things we 

need to do better. We are poorly served as a result. 

My hope is that the Federal Government, rather than acting 

from on high and imposing broad solutions will listen to our concerns as you will hear today from this panel and tailor the response 

accordingly. 

As I conclude, Mr. Chairman, I again thank you for this hearing. 

I ask that this committee work with myself and our committee on 

the House side, the Transportation and Infrastructure Committee 

that will be conducting a hearing in Charleston, West Virginia next 

Monday and together we hope to find a better way to protect or 

people and keep this from happening again. 

Thank you, Mr. Chairman. 

Senator CARDIN. Thank you, Representative Rahall. 

Representative Capito. 

OPENING STATEMENT OF HON. SHELLEY CAPITO, 

U.S. REPRESENTATIVE FROM THE STATE OF WEST VIRGINIA 

Ms. CAPITO. Thank you, Chairman Cardin, Chairman Boxer, 

Senator Vitter and Senator Udall. It is wonderful to be on a panel 

with my colleagues. 

I think it is important for you to know that in West Virginia we 

have always been very proud of our water. It is one of our stars 

in our quiver. This has really rocked us. 

I live in the Kanawha Valley. I represent the Kanawha Valley 

and this affects my home and my family as well. It affects restaurants like Mr. Huey in Hurricane. It affects people who work for 

him who were not able to work during this time and the long term 

health effects of the January 9 spill I think are still under question. 

As Senator Rockefeller said, I think we want people to be held 

accountable for what has happened here. We want to prevent such 

accidents from happening again. At the baseline, we want to know 

that the water we are drinking is safe. 

Many questions about the spill still linger. We are having a hearing on Monday in Charleston to try to help answer some of these 

questions and examine not just State but most importantly, the 

Federal laws and strengthening our laws. 

One of the things that really rocked me is when the CDC came 

in, they had an all clear, you can drink water and then 2 days 

later, the CDC says if you are a pregnant woman, we recommend 

that you probably don’t drink the water. What kind of signal does 

that send to anybody, particularly young families? 

Senator Manchin and I wrote a letter to the CDC asking for their 

testing protocols, how they were making decisions and what involvement might be tightened and made better so if you give assurVerDate Aug 31 2005 15:38 Jan 05, 2016 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6601 S:\_EPW\DOCS\97583.TXT VERN
16 

ances you can drink water that you actually are assured that it is 

safe. 

The other thing is the slow bleed of misinformation. It first 

comes out that you can drink the water, maybe not. Then a week 

later, it might have been more than a week later, it comes out 

there was not just one chemical in the water of MCHM, there was 

another chemical in the water at the same time that was leaked 

into the Kanawha Valley. 

That does nothing for the confidence of anybody living there, any 

family living there that this situation is under control. It is very 

disheartening. 

The company obviously did not accurately report. They did not 

report in timely fashion. We had to wait for somebody to smell 

something close by before they called emergency officials and then 

and only then did the company say something is leaking. Then it 

comes out later that maybe it has been leaking for 10 hours before 

anyone was actually notified as to what was going on. 

It has rocked our confidence. It absolutely unacceptable that freedom did not immediately notify and there was not better information with our first responders. 

As has been said, the State legislature is moving quickly toward 

passing a new law. I congratulate them and I support State level 

efforts but I think we need to continue to examine changes we have 

talked about today at the Federal level. 

I am a mother and a grandmother. I live in the Kanawha Valley. 

I understand the fear and trepidation and anger the people feel because I feel it too. We have to get to the bottom of this where people are trusting that their tap water is safe and it will not happen 

again. 

We have this responsibility. I congratulate the Senate committee 

and look forward to our House hearing next week in Charleston. 

I thank you for your interest in the impact of this bill. 

Thank you. 

Senator CARDIN. Let me thank all four of our colleagues. 

I particularly want to underscore the point that Congressman 

Rahall made about our colleague, Senator Rockefeller. He has been 

a real treasure for us in the U.S. Senate. We know we still have 

him for another year. We are not rushing his term but he has been 

an incredible voice on behalf of the people of our country not just 

West Virginia. I appreciate your comments. 

We are going to move on to our second panel. 

Let me welcome our second panel. We are pleased to have the 

experts from West Virginia today who can help us sort out what 

happened earlier this year. 

We welcome: Hon. Natalie E. Tennant, Secretary of State of West 

Virginia; Hon. Randy C. Huffman, Cabinet Secretary, West Virginia Department of Environmental Protection; Erik D. Olson, Senior Strategic Director for Health and Food, Natural Resources Defense Council; Mr. Brent Fewell, Vice President of Environmental 

Compliance, United Water; Mr. Michael W. McNulty, General Manager, Putnam Public Service District, West Virginia; Mr. Richard 

O. Faulk, Partner, Hollingworth, LLP; and Mr. R. Peter Weaver, 

Vice President of Government Affairs, International Liquid Terminals Association. 

17 

We will start with Hon. Natalie Tennant. 

Senator CARPER. Mr. Chairman. 

Senator CARDIN. Senator Carper. 

Senator CARPER. Could I ask a favor? I am a native West Virginian. I have a lot of family and relatives in West Virginia, some 

of whom have been adversely affected by this tragedy. 

I just want to say I am going to be in and out of the hearing but 

I want to say when I leave, please do not think I am not interested. 

It is especially great to see the Secretary of State who is not an 

old friend but a friend of long standing. I am delighted you could 

be here with us to speak. 

We look forward to hearing from all these witnesses. 

Thank you. 

Senator CARDIN. As I think is obvious to members of the Senate, 

there are many committee hearings going on. Senator Carper has 

responsibility as Chair of one of the most important committees in 

the Senate. We certainly understand that. 

For our witnesses, all of your testimony will be made a part of 

our record. Your written testimony will be made a part of the 

record. You may proceed as you wish. Because we have such a 

large panel, we would ask you try to keep your comments to the 

5-minutes that is allotted. 

With that, we will start with Hon. Natalie Tennant. 

STATEMENT OF NATALIE E. TENNANT, 

SECRETARY OF STATE, WEST VIRGINIA 

Ms. TENNANT. Thank you so much, Chairman Cardin, Ranking 

Member Vitter, Chairman Boxer, Senator Carper, it is good to see 

you again, also, and to all the members of the committee who will 

be reading this report. 

Thank you for holding this hearing. Thank you for inviting me 

to share the challenges that West Virginia families and businesses 

have been facing and continue to face. 

I also want to especially thank you, Madam Chair, and our West 

Virginia Senators who so much was said about Jay Rockefeller and 

Joe Manchin for introducing the Chemical Safety and Drinking 

Water Protection Act of 2014. 

Lack of information has been our greatest challenge in West Virginia. That piece of legislation will go a long way toward providing 

the much needed transparency that we will have in the future. 

I must say now, Senator, at this time, West Virginians need answers now. The water ban has been lifted but too many West Virginians are still wondering if their water is really safe. First, we 

hear it is one chemical. Then we hear it is two chemicals. First, we 

hear it is 7,500 gallons. Then we hear it is 10,000 gallons. One day 

we are told the water is safe. The next day we hear that pregnant 

women should not drink it. 

It does not add up. Either it is safe or it is not safe. Quite frankly, people are fed up, they are angry and they are scared. I have 

families telling me that they are melting snow just to be able to 

give their children baths. As the mother of an 11 year old daughter, living in Kanawha County, I share those same concerns. 

As Secretary of State for them, I demand answers. I ask this 

committee to help me get those answers. I have called on the CenVerDate Aug 31 2005 15:38 Jan 05, 2016 Jkt 000000 PO 00000 Frm 00021 Fmt 6633 Sfmt 6601 S:\_EPW\DOCS\97583.TXT VERN
18 

ters for Disease Control and Prevention to explain to West Virginians how they determined what levels of MCHM are safe. On 

Friday, I launched a petition for West Virginians to join in my call 

for those answers. As of this morning, we had 1,264 people who 

have signed on to that. 

Each of these signatures is a mom, is a dad, is a friend, is a 

neighbor and they deserve to know what is coming out of their faucets isn’t going to hurt their families. 

Just this weekend I met with Dr. Rahul Gupta of the KanawhaCharleston Health Department. Dr. Gupta is proposing a 10-year 

study to monitor the long term health impact to the people who 

have been exposed to MCHM. I am asking this committee to work 

with us to provide those resources we need to begin that study 

right away. 

As one father wrote to me last week, ‘‘We are accountable to our 

children’s health and future.’‘ I agree. We owe it to our children to 

start this study today. 

As Secretary of State, my office is on the front lines with businesses every day in West Virginia, businesses like Bridge Road Bistro, which is famous in Charleston for its Sunday breakfast buffet. 

Bridge Road’s manager, Sandy Call, told my office that they lost 

$40,000 during the do not use ban. They are continuing to spend 

an extra $500 a day to bring in bottled water because customers 

don’t trust what is coming out of the tap. 

This mistrust is costing our restaurants money and time and 

they should be spending that time and money growing their business and hiring new employees and new workers. It is also jeopardizing our tourism industry. We cannot attract new businesses to 

create jobs in West Virginia if people don’t believe that our water 

is safe. 

Our economy cannot fully recover until we regain the public confidence in our water supply. Quite simply, we need answers that 

we can trust. 

On behalf of all West Virginians, I thank you for holding this 

hearing and again ask your help in getting this information and resources that we need to restore the public confidence in our water 

and to protect against long term health risks. 

Thank you again, Mr. Chairman, for allowing me to be here and 

to speak for West Virginia. 

[The prepared statement of Ms. Tennant follows:] 

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Senator CARDIN. Thank you very much for your leadership on 

this issue. 

Secretary Huffman. 

STATEMENT OF RANDY C. HUFFMAN, CABINET SECRETARY, 

WEST VIRGINIA DEPARTMENT OF ENVIRONMENTAL PROTECTION 

Mr. HUFFMAN. Thank you, Chairman Cardin and Chairman 

Boxer. 

The State of West Virginia and its Department of Environmental 

Protection appreciate and welcome the opportunity to address this 

committee. 

I am hopeful that by sharing West Virginia’s experience from the 

perspective of an environmental regulator and not as a public 

health official, I can provide insight to you and other States as we 

week to provide a more comprehensive regulation of the pollutants 

stored in above ground storage tanks so as to better protect human 

health and the environment and minimize the risks associated with 

this industrial activity. 

On January 9, 2014, DEP received a complaint concerning an 

odor around a tank farm owned by Freedom Industries. At 12:05 

p.m., a Freedom Industries employee reported the spill to DEP’s 

Emergency Response Spill Hotline and stated that the facility had 

discovered a hole in one of the tanks containing 4- 

Methylcyclohexane Methanol, MCHM. 

DEP officials shut down the site and instructed Freedom to immediately take all necessary measures to contain, recover and remediate the material that had escaped from the above ground storage tank and the secondary containment structure. 

This incident highlights an issue that exists not only in just West 

Virginia but all over the country. While all states have substantially similar regulations for underground storage tanks based on 

regulations promulgated by the EPA, the same is not true for their 

surface situated counterparts. 

EPA does not have regulations pertaining to all above ground 

storage tanks. The states that do regulate them do so in a myriad 

of different ways. One similarity is most states that have above 

ground storage tank regulations have them as a result of an event 

similar to what has just happened in West Virginia. 

Also, most states focus primarily on tanks containing petroleum 

products or hazardous waste or materials regulated by CERCLA. 

This leaves virtually unregulated an entire universe of pollutants 

stored in above ground tanks. With hindsight, it is easy to see a 

potential threat existed on the Elk River and that clarity sharpens 

our focus looking forward. 

According to the EPA TSCA Chemical Inventory, there are approximately 84,000 known industrial chemicals being used in this 

country today. About 20,000 of those have been added to the list 

in the last 30 years with little change in the list of regulated 

chemicals. 

While most of these materials are not currently classified as hazardous, the truth is, we simply do not know enough about them. 

The material that leaked into the Elk River on January 9 is one 

of those chemicals. 

29 

The West Virginia legislature is considering legislation that 

would help to fill the void that currently exists in the regulation 

of above ground storage tanks. The bill being discussed in the legislature today requires some things that are very important from 

DEP’s perspective. 

One of the most important is to have a registered professional 

engineer or other qualified individual inspect and test the tanks 

and secondary containment annually and certify their integrity. 

On the Federal side, we also support the Manchin-Boxer proposed legislation to tighten the standards in the Safe Drinking 

Water Act. By requiring EPA to establish minimum acceptable 

standards by which the states will be held accountable, we can significantly reduce the risk of similar problems in the future. 

West Virginia’s proposed above ground storage tank program has 

been modeled after the very successful underground storage tank 

program DEP has operated for more than two decades. The UST 

program was developed in the late 1980’s because environmental 

regulators recognized that over 2 million UST systems, estimated 

to be located at over 700,000 facilities nationwide, existed with little or no oversight and that over 75 percent of the existing systems 

were made of unprotected steel, a type of tank system proven to 

be the most likely to leak and thus, create the greatest potential 

for health and environmental damage. The success of this program 

nationally is indisputable. 

The above ground storage tank universe is not nearly as well 

known. Many of these facilities are regulated by registering under 

a general NPDES stormwater permit, because the only environmental impact these tanks were thought to have was stormwater 

runoff. Above ground storage tanks can also be found at facilities 

covered by individual permits but that permit does not require integrity testing or leak detection monitoring either. 

The registration requirement in the current legislation is the key 

to our getting a handle on the universal structures that are currently under regulated. We are optimistic that the legislation currently pending in West Virginia will greatly reduce the risk that 

we will suffer a repeat of this type of incident and that we can 

serve as an example to other states to be more proactive in their 

regulation of these structures so they do not find themselves in the 

situation with which we are currently dealing. 

Thank you for the opportunity to be here and speak to you about 

the water crisis in West Virginia. This crisis reminds us of how 

basic and fundamental clean water is to a stable society and how 

vulnerable our water supplies are, not only in West Virginia, but 

across the Country. 

Thank you. 

[The prepared statement of Mr. Huffman follows:] 

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Senator CARDIN. Thank you, Secretary Huffman, for that very 

thorough presentation. 

Mr. Olson. 

STATEMENT OF ERIK D. OLSON, SENIOR STRATEGIC DIRECTOR FOR HEALTH AND FOOD, NATURAL RESOURCES DEFENSE COUNCIL 

Mr. OLSON. Thank you, Chairman Cardin, Chairman Boxer and 

Ranking Member Vitter, for the opportunity to testify today. 

As we have heard, shock waves went throughout Charleston as 

a result of this order to not only not drink the water but not even 

bathe in it. Toxicity data that existed for these two chemicals, 

MCHM, and we learned 12 days later, a second chemical, PPH, 

was sparse. Officials trying to find a safe level really had very little 

information to deal with. 

CDC announced a 1 ppm supposedly safe level but, as we have 

heard, within a couple of days, basically retracted that, at least 

with respect to pregnant women saying, ‘‘CDC recommends, out of 

an abundance of caution, that pregnant women drink bottled water 

until there are no longer detectable levels.’‘ 

This is yet another fundamental reason that residents across 

Charleston were wondering whether it really was safe for kids, for 

pregnant moms, for anyone in their family. As my colleague, Dr. 

Sass has highlighted and I discuss in my written testimony, the 

supposedly safe level really was not protective of vulnerable populations. 

Last weekend, I had the opportunity to visit with a lot of folks 

in Charleston and appreciated the courtesy of West Virginia American Water Company who gave me a tour of their drinking water 

facility. I will say the residents with whom I spoke remain deeply 

dismayed about the safety of their water and very skeptical about 

reassurances that the water is safe. 

I heard about parents and pregnant moms who really wonder 

about the long term effects of bathing or drinking this water. 

Across the city, stores still advertise bottled water and some restaurant signs still proclaim they cook with bottled water. 

I met a couple who own a small Indian restaurant and a store 

within sight of the dome of the capital. They told me they had 

shuttered their restaurant for 5 days and that they had to toss a 

huge amount of food. They had to borrow money to meet their payroll, had to ask people to hold checks and spent a lot of money on 

professional cleaning and replacement food. 

Their store also lost quite a bit of money because people stopped 

cooking and as a result perishable commodities had to be tossed. 

I heard people drove as far away as Kentucky to get bottled 

water during the crisis and families stayed with friends or relatives 

and drove as far as 60 miles just to shower. Parents really are 

angry especially that some of the recent tests, some came in as recently as Friday, showed the chemicals in schools were higher than 

expected. 

I want to say that this is not an isolated situation. The water intake at Charleston simply cannot be shut off. They cannot just shut 

off the water when a spill occurs. This is true not only in Charleston, but I am learning in many water utilities across the country 

40 

where they do not have the capacity to simply shut off when there 

is a spill because they need to continue pumping water. 

Charleston’s treatment technology also, as I learned, was unable 

to deal with a spill of this magnitude. It was simply overwhelmed 

and could not deal with it. As my testimony highlights, there were 

likely hundreds of other water utilities across the country, large 

and small, using surface water that simply cannot deal with a spill 

like this. 

We all remember back in 1988 a huge spill of oil into the 

Monongahela that contaminated the drinking water of a million 

people in three states. At least some communities are doing something about it. 

Cincinnati, Ohio installed state-of-the-art treatment, basically 

granular activated carbon in deep beds like that in your fish tank 

that removes virtually all these organic contaminants. The cost is 

just $20 per household per year. This is the direction which things 

need to go. I understand Northern Kentucky Utility has just made 

that same switch. You have to do this if you have this situation. 

We absolutely need to fix the Safe Drinking Water Act. We heard 

the source water assessments were done, yet nothing was done 

about them after they flagged major risks. In this particular situation, just for Charleston, 53 potentially significant contamination 

sources were identified in the early 2000’s, 26 so close that they 

were in the zone of critical concern, yet it appears nothing was 

done about that or specific recommendations to take action. 

I wanted to briefly address the Manchin-Boxer bill referenced 

earlier. We feel that is an important step forward. I mention in my 

testimony a few tweaks that we would recommend including one 

item which might be to move the inspections to annually similar 

to what the West Virginia Senate just passed. 

Although this hearing is about drinking water, I want to briefly 

mention the Toxic Substances Control Act and the need to reform 

it. We certainly agree that TSCA is broken and needs to be fixed. 

However, we need real reform of that law. I would as that some 

of the attachments to my testimony be entered into the record. 

The bill that is pending, the USIA, although it is bipartisan, 

would not fix this problem. As I highlight in my testimony, it is unlikely that this particular chemical would have been flagged as a 

high priority. It is quite likely that State action would have been 

preempted if this had actually been enacted. 

Although we do support reform of TSCA, we believe that reform 

needs to be strong, needs to fix the problem and we stand ready 

to work with the members of this committee, with Senator Boxer, 

Senator Vitter, Senator Udall and others to reform the law in a 

meaningful and real way. 

In conclusion, we strongly support moving forward with legislation for real source water protection and drinking water, we support the Manchin-Boxer-Rockefeller bill with the tweaks I mentioned and ultimately, we think we need comprehensive solutions 

to source water protection across the country. 

Thank you. 

[The prepared statement of Mr. Olson follows:] 

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Senator CARDIN. Thank you, Mr. Olson. We appreciate it very 

much. 

Mr. Fewell. 

STATEMENT OF BRENT FEWELL 

ON BEHALF OF UNITED WATER 

Mr. FEWELL. Thank you, Chairman Cardin, Chairman Boxer and 

Senator Vitter, for holding this important meeting this morning. I 

appreciate the opportunity to testify this morning. 

I am currently employed with the law firm of Troutman Sanders 

but until last week, I served for the last 4 years as a senior executive for United Water with the responsibility for overseeing the 

provision of safe, clean drinking water for over 5 million people. 

Although I am testifying today on behalf of United Water, I also 

offer supporting statements and recommendations by the National 

Association of Water Companies which are appended to my written 

testimony. 

As a former EPA water regulator and a chief compliance officer 

of a major water company, I can assure you, Mr. Chairman, this 

is an issue United Water takes very seriously, as do other public 

water suppliers. While new regulations may not stop accidents like 

this from happening, I do believe there are a few targeted, commonsense things we can do to ensure the continued protection of 

our drinking water sources. 

Overall, we as a Nation need a more integrated, sustainable approach to managing water and watersheds, a concept my good 

friend Ben Grumbles, President of the U.S. Water Alliance, often 

refers to as a one water management approach. 

First, this is about keeping harmful chemicals out of our Nation’s 

drinking water. There are tens of thousands of chemicals, as we 

have heard this morning, currently in commerce, each of which has 

the potential to impact a drinking water source for someone, some 

community, somewhere at some time. 

The best thing we can do, and where I believe the greatest focus 

needs to be placed, is keeping these harmful chemicals out of our 

drinking water sources. Truly, in this case, an ounce of prevention 

would have been worth a pound of cure. 

It is abundantly clear that we would not be here today had the 

storage facility in this particular incidence provided adequate storage and secondary containment. In light of this catastrophic release, there have been many calls for robust inspections and controls at bulk chemical storage facilities, particularly those located 

close to waters that serve as drinking water sources. United Water 

joins with those calling for additional measures for additional support. 

Second, prompt notification of a spill that threatens a water supply is absolutely critical. Surface water systems are often at the 

mercy of those located upstream from the water intake structures. 

Advance warning and timely notification are critical in any kind of 

emergency response. Receiving timely notification about a spill can 

make a bad situation less bad and help to mitigate the most significant risk to the public. 

Without prompt notification, the water provider may have no 

way to detect and respond to the presence of a contaminant until 

60 

it is too late and already in the distribution system. For these systems, having 2 hours, 1 hour or even a half hour, for that matter, 

can make a big difference preparing for a slug of chemicals that 

may be headed toward its water intake structure. 

Simply closing a water intake structure, as we have heard, and 

waiting until a threat has passed by is not always possible and 

such decisions must be balanced with other needs and threats to 

the community, including fire suppression. These can be difficult 

decisions to make, often made with imperfect data and in the midst 

of an emergency situation. 

Third and my final point, water systems need better and more 

specific data to identify and prepare for these types of risks. Public 

water systems currently use a number of tools to identify and prepare for risks, but most of these tools assess broad, general categories of risks. Rarely, if ever, are public water providers provided 

specific data about chemicals upstream that if released could affect 

that water system. This is a commonsense change I think needs to 

be made. 

The Federal Emergency Planning and Community Right to Know 

Act requires facilities to store hazardous substances in excess of 

threshold planning quantities to provide data annually to local 

emergency responders but there is no requirement that such data 

be provided to nearby water systems. 

Similarly, the EPCRA, the Clean Water Act and CERCLA require any facility that experiences a release in excess of reportable 

quantities to immediately notify the National Response Center and 

local emergency responders. Yet again, there is no requirement 

that a nearby water provider be provided similar notice. 

Last, I offer a cautionary note. Our water systems welcome the 

additional support. It will do no good to simply dump reams of 

paper and data on these systems and expect the problem to go 

away. Rigorous assessment of these risks for multiple upstream 

sources can be a complex process, requiring significant resources 

and expertise which many systems simply do not possess. 

The most effective solution will necessarily involve greater public 

education, collaboration, communication with EPA and states and 

all stakeholders within a watershed about the importance of source 

water protection, an important concept I mentioned earlier and a 

one water approach. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Fewell follows:] 

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Senator CARDIN. Thank you very much. 

Mr. McNulty. 

STATEMENT OF MICHAEL W. MCNULTY, GENERAL MANAGER, 

PUTNAM PUBLIC SERVICE DISTRICT, WEST VIRGINIA 

Mr. MCNULTY. Thank you, Mr. Chairman and members of the 

subcommittee. 

Putnam Public Service District is a drinking water supplier near 

Charleston, West Virginia. I live I Charleston and my family and 

300,000 residents of greater Charleston have been dealing with 

contamination of our drinking water for past 26 days. 

I am here to talk about source water protection and preventing 

drinking water contamination from the perspective of Putnam PSD 

and on behalf of the West Virginia Rural Water Association and 

the 30,000 member systems of the National Rural Water Association. 

I want to thank Senators Rockefeller and Manchin, Congressmen 

Rahall, Capito and Governor Earl Ray Tomblin for their assistance 

during this crisis. 

For the sake of time, I will summarize the six essential policy 

principles included in my written testimony needed to promote effective protection plans. 

The best plan is one that is developed by local officials who know 

their particular vulnerabilities and is implemented with constant 

vigilance. Consider my water supply. We can treat up to 4 million 

gallons of water each day gathered from streams that are vulnerable to contamination similar to the recent Elk River spill. 

We have completed an extensive contamination prevention plan, 

an emergency contingency plan and a contamination detection plan 

to protect our population. However, for a plan to work, it cannot 

just set on the shelf. The local officials who implement it must believe in it and let it influence their daily conduct and attitude. 

Our delineated watershed map with potential sources of contamination is displayed here. Our notable points of concern include 

truck stops and interState, railroad and commercial enterprises 

like gas stations. It is not feasible to remove all the threats to our 

watershed, so we have implemented a number of policies to quickly 

detect and minimize the effect of a potential spill and establish 

emergency contingencies, including interconnections with neighboring water supplies. 

One of the most important elements of our plan is constant monitoring of our presource water to detect contaminants, including any 

similar to those that were in Charleston’s water. If we do find contamination, we can keep a large reservoir sequestered with approximately 4 months of treatable water. 

None of the presource water tests are federally mandated. I point 

this out to illustrate how difficult it is to have a Federal regulatory 

solution to this issue. All 51,651 U.S. drinking water supplies have 

unique challenges. This is why rural water associations have been 

advocating for local communities to adopt protection measures for 

decades. They directly assist communities like mine with technical 

resources to implement a protection plan. 

Over 1,000 communities have completed the rural water process 

and are actively protecting their source water. Consider how many 

75 

contamination events may have been prevented in these communities. 

I will close with this suggestion for a Federal response in the 

aftermath of the Charleston crisis that allows for immediate protection and does not require any grand spending program or expansion of unfunded mandates on local governments. 

A few years ago, Congress provided a small package of funding 

to the State agencies that protect groundwater to design and publish online a public disclosure data base of all chemicals used in hydraulic fracturing. This experiment proved to be widely successful. 

For a small Federal investment, this system could also publicly disclose all watersheds and potential threats within, a list of communities that have adopted protection plans and copies of each protection plan. Such an enterprise would empower the people who benefit from a clean and safe environment to take responsibility for securing it. 

While every State and locality believes that it is doing the best 

job possible, this system would allow the public to make sure their 

claims are accurate. 

Thank you, Mr. Chairman. On behalf of the small and rural communities, we are grateful for your attention and assistance. 

[The prepared statement of Mr. McNulty follows:] 

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Senator CARDIN. Thank you for your testimony. 

Mr. Faulk. 

STATEMENT OF RICHARD O. FAULK, HOLLINGSWORTH, LLP 

Mr. FAULK. Thank you, Mr. Chairman. 

I am a lawyer practicing here in Washington, DC. I want to 

make it very clear that I am not representing a client or any organization here today. I am not being compensated for anything I am 

saying here today. I have simply responded to the committee’s invitation as a concerned citizen. 

I want to rise to speak to the Chairman’s concern of federalism 

and to sound a note of caution amongst the interests and the intensity of the work being done here in this committee and indeed, I 

suspect throughout the entire Nation, within the Nation’s chemical 

industry as they intensely look at the concerns this situation has 

raised. 

There are a great many factors in addition to regulations that influence what America’s chemical industry does. There are a great 

many factors other than laws that do so. There are human factors, 

investigations that they have undertaken. There are trade association issues that have been raised I am sure regarding this situation. 

There are other matters that this committee may or may not 

have been briefed on here, certainly I do not necessarily know the 

extent of, that should influence some caution before rushing into 

Federal legislation. 

With the focus that is being placed under the magnifying glass 

of this committee’s inquiries, as well as other activities surely going 

on in the country, should we really rush immediately into Federal 

legislation? 

I think we should be cautious. Complex accidents generate a fog 

of some kind, simply burdened by the sheer weight of information 

mixed with all the shock and alarm and confusion. Sometimes that 

can obscure clear deliberations. 

In dealing with incidents like this, it is important, as this committee is doing today, to give the State and local authorities a full 

opportunity to fully investigate, to deliberate and to decide what 

their future actions should be. Sometimes when that fog clears, 

Federal intervention may be unnecessary. 

For example, we all know from the discussions today, the West 

Virginia legislature is actively considering bills and laws to deal 

with the situation. Once those are passed, our Nation states our 

laboratories of democracy may decide to develop solutions for their 

own unique operations which may be very different from West Virginia’s. Those solutions may be complemented by voluntary programs developed by industry. 

A top down management situation of Federal solutions may actually displace some protective systems of State and local laws, regulations and voluntary industry practices that already exist. For 

those reasons, I think we should be cautious. 

Stated another way, the presence of a Federal regulatory gap 

does not necessarily mean that a hazard exists uniformly across 

the Nation. Some of those hazards may be dealt with by other restraints. A one size fits all Federal approach may sometimes even 

87 

reduce safety by preempting broader, more effective or carefully 

tailored solutions that are already working. 

Again, it calls for cautious consideration and deliberation. I know 

this committee is doing it. I simply rise to suggest that they continue to do so and keep these factors in mind. 

Spill prevention is a recurring concern regarding chemicals and 

all sorts of substances that are stored. West Virginia and other 

states, as well as the EPA, have issued guidance documents on this 

subject. They provide commonsense information and advice that 

could have prevented the tragedy in West Virginia. 

For example, if we simply look at West Virginia’s guidance documents regarding above ground storage tanks, they suggest and 

refer to existing regulatory standards which, if obeyed regarding 

groundwater protection, would have prevented the spills into the 

surface water here through effective secondary containment according to their specifications. 

Like many tragedies, this failure cannot necessarily be blamed 

on the absence of the law. It can be blamed, however, on human 

error. We need to be cautious as we walk into this situation and 

we work through these issues. Not every problem requires Federal 

legislation, but every problem, especially serious ones, deserves the 

careful consideration, the empowered intervention, the educated assistance of responsible and politically accountable community members, the closest people to the problem. 

I applaud the communities’ efforts, I applaud the efforts of West 

Virginia in cooperating with the committee, and I applaud this 

committee’s work as it delves into these difficult problems and simply suggest restraint and caution as we move forward. 

[The prepared statement of Mr. Faulk follows:] 

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Senator CARDIN. Mr. Faulk, we thank you very much for your 

testimony. 

Mr. Weaver. 

STATEMENT OF R. PETER WEAVER, VICE PRESIDENT, GOVERNMENT AFFAIRS, INTERNATIONAL LIQUID TERMINALS 

ASSOCIATION 

Mr. WEAVER. Thank you, Chairman Cardin, Chairwoman Boxer, 

Senator Vitter and the entire committee. 

Good morning. My name is Peter Weaver. I am Vice President 

of Government Affairs at the International Liquid Terminals Association. I have been with ILTA since 2006 representing the interests of the owners and operators of bulk liquid storage terminals. 

Our 80 corporate members, with approximately 800 domestic terminal facilities, operate in all 50 States, handling all manner of liquid commodities from chemicals and petroleum products to biofuels 

and vegetable oils. Freedom Industries is not an ILTA member. 

Before joining ILTA, I held positions in product development and 

marketing for one of our Nation’s largest chemical manufacturers. 

I have also served as an officer in the Merchant Marine. I began 

my career with the Engineering Department of an ILTA founding 

member company back home along the Mississippi River. 

I should note that my wife and I now have a sailboat on the 

Chesapeake Bay next to our dog’s favorite swimming beach and 

thus, assurance that no one is harming our Nation’s waterways is 

a very personal priority for me, my family and our closest friends. 

The liquid terminal industry is committed to the safe and environmentally sound operation of our facilities and I consider it a privilege to participate today. 

Like the vast majority of bulk storage tank operators, ILTA 

members are regulated by a comprehensive and rigorously enforced 

series of laws and regulations. At the Federal level, rules for environmental protection are promulgated in response to numerous 

laws, including the Clean Water Act, OPA 1990, the Clean Air Act, 

CERCLA, RCRA, the Safe Drinking Water Act, TSCA, SARA, and 

EPCRA. 

All ILTA members are subject to regulations requiring tank inspections and secondary containment to prevent spills from migrating should a tank fail. Some State laws carry additional requirements. Terminals also follow industry standards and best practices 

for maintaining the integrity of their equipment and operations. 

From among the many Federal regulations that apply to above 

ground storage tanks, I will reference two. First, EPA’s spill prevention control and countermeasure rule, SPCC, applies to every 

facility possessing at least 1,300 gallons of oil in aggregate or 

chemicals exhibiting similar properties. 

It incorporates robust standards for tanks and pipeline integrity 

testing such as the API 653 standard for large, field directed tanks. 

SPCC also strictly regulates secondary containment and requires 

financial responsibility and plants must be certified by a professional engineer. 

Second, EPA regulations stemming from the Emergency Planning and Community Right to Know Act , EPCRA, or SARA, Title 

3, requires facilities to inform their local emergency planning comVerDate Aug 31 2005 15:38 Jan 05, 2016 Jkt 000000 PO 00000 Frm 00103 Fmt 6633 Sfmt 6601 S:\_EPW\DOCS\97583.TXT VERN
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mittee, the State Emergency Response Committee and local the fire 

local fire department of all hazardous materials in their possession. 

I should add, the newly revised 2012 OSHA Hazardous Communications Standard requires documentation and communication of 

all hazardous properties of all chemicals. 

In West Virginia, State regulations require secondary containment for above ground chemical and petroleum storage tanks that 

can protect groundwater for at least 72 hours. 

We understand that State and Federal agencies and the Chemical Safety Board are all investigating the Freedom Industries accident. Given the impact, there is no question that these will be extensive investigations and we expect that resulting incident reports 

will cite factors contributing to the release, applicable regulatory 

programs and possible violations of those regulations. ILTA is very 

interested in these findings, in particular, how the chemical escaped containment. 

Even with an expansive regulatory net, anomalous circumstances 

exist where an incident such as this could occur. ILTA contends 

that a proper oversight response would begin with understanding 

those circumstances. ILTA also contends that a Federal legislative 

response at this moment would be premature. 

Once final investigation reports are released, specific reasons for 

these tank and secondary containment failures will be better understood and then measures to prevent recurrence in another community can be determined and implemented through refinement 

and simplification of existing regulations. 

If Freedom Industries disregarded applicable regulations, industry standards or its own operating procedures, then the most effective response would be through more consistent enforcement rather 

than administrative burden and frankly, the confusion of another 

layer of legislation and regulation. 

With regard to the Safe Drinking Water Act, measures have been 

proposed to require good design and construction standards, leak 

detection, spill protection, inventory control, emergency response, 

training, integrity inspections and financial responsibility. 

Within the terminal industry, and in my experience, regulations 

requiring strict adherence to all of these provisions are already well 

established and would seem directly applicable to Freedom Industries. 

Thank you for the opportunity to provide this testimony. I am 

certainly happy to respond to questions. 

[The prepared statement of Mr. Weaver follows:] 

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Senator CARDIN. Let me thank all seven of our panelists. I 

thought it was very helpful to us, the information you supplied. 

To Messrs. Olson and Fewell, I could not agree with you more 

about the need for infrastructure. The State revolving fund is inadequate to deal with the challenges of modern water treatment. We 

need to get adequate funding. This committee has worked very 

hard to try to increase the funding under the revolving funds and 

to reauthorize with more updated needs of the different states in 

our country. 

We need to find creative ways because in today’s difficult environment, it is tough to get the type of resources necessary. That 

is part of prevention, part of having the capacity to deal with the 

day’s challenges. 

There is a common theme I hear from you all. Mr. Fewell, you 

said you need better and more specific data which is absolutely accurate. You have to have accurate information to be able to respond. That is certainly not available today in too many of the watersheds. 

It is interesting that the TSCA law is aimed at the proper classification of the 80,000 plus chemicals we have in America. That 

number grows every day. The Safe Drinking Water Act is aimed at 

making sure we have delivery of safe drinking water in our communities through a variety of methods. 

Mr. Faulk, I want to agree with you on federalism. I think federalism does say we believe in the states, we believe the government closest to the people is the most responsive, but we also need 

to recognize that safe drinking water is an inner State problem. 

Maryland could do everything that is reasonable, the District 

could do everything that is reasonable, but if the water is coming 

from West Virginia and West Virginia doesn’t do what is reasonable, the people I represent in Maryland are at risk. The people in 

the Nation’s capital who depend upon us at the national level are 

at risk. 

I think there is the proper balance on federalism but I couldn’t 

agree with you more and that is why we are always reluctant to 

preempt local government. I know that issue is being debated in 

TSCA today. We are always reluctant because things change quickly. Chemicals change quickly. The government closest to the people 

needs to be able to respond. That is why we are very reluctant to 

ever take away that authority from the states. 

On the other hand, we do need to have national guidelines. As 

you said, guidelines on getting better and more specific information 

is an area where the Federal Government needs to fill in the 

blanks better than we have today. 

I want to get to Ms. Tennant for one moment because you raised 

the point about the damages people are sustaining. Our first objective is to make sure we minimize the risk particularly here where 

you had storage facilities so close to the Elk River. There should 

have been a red flag. Obviously the information was not known and 

the response was very difficult because first of all, just think if this 

chemical didn’t have a unique smell what would have happened. 

Because of the fact it had a unique smell, the public was able to 

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eral days before the source would have been determined and more 

people would have been put at risk. 

A lot of people were damaged, their health was damaged, their 

shops were damaged, their homes were damaged and the company 

is in bankruptcy. 

I hope during your work you do in West Virginia you will come 

forward with suggestions to us as to how we can minimize the cost 

to the taxpayers, the rate payers, the individuals and find ways to 

hold those who are responsible accountable for the damage they 

have caused. Do you have any thoughts on that? 

Ms. TENNANT. Yes, Senator. There have been efforts made already. As I discussed how devastating this is, our confidence has 

been shattered. When I receive letters from a father whose wife is 

pregnant, this is supposed to be a joyful time and now has turned 

into a fearful time for them. Certainly anyone who has children understands what they are going through in this situation. 

As I talk about being on the front lines, it was those businesses 

that we are trying to help, 96 percent of our economy in West Virginia is from small businesses. I made reference to a specific business. Think about what is behind those businesses. It is people. It 

is those employees. 

I was on those water lines as folks were waiting to receive water, 

to get their water jugs filled. That is where I met so many of these 

people who are minimum wage employees who were off the job to 

whom missing a shift means perhaps missing a payment on your 

car or missing utilities. 

I have worked hand in hand through the Secretary of State’s office with the West Virginia legislature to have a piece of legislation 

called the Small Business Emergency Relief Fund where the Governor, along with several of his agencies would have the ability to 

promulgate emergency rules that would aid those businesses, those 

employees and those workers who lost their wages. 

Senator CARDIN. Thank you very much. 

Senator Vitter? 

Senator VITTER. Thank you, Mr. Chairman. 

Secretary Tennant, I also wanted to go to you. In your opening 

statement, you raised a number of frustrations in the aftermath of 

the spill about lack of clear guidance and information, ‘‘lack of consistent, trustworthy information.’‘ 

On January 24, a group of 24 West Virginia scientists sent a letter to EPA and CDC raising similar concerns, saying, among other 

things, ‘‘If the government had been more forthcoming about what 

is not known about the leaked chemicals, citizens and local officials 

would have been able to make better choices about the actions 

needed to protect their families and communities.’‘ 

Do you share those concerns and if so, what would you like EPA 

and CDC to do now, immediately, as soon as possible to try to rectify that uncertainty and lack of trust? 

Ms. TENNANT. Certainly, Senator, I share those concerns. That is 

why I have taken action on many different levels. I have taken action in directly writing to the CDC and saying tell us what you 

know so West Virginians will know how you are doing your tests, 

at what level you think is safe for the water, and how did you get 

to that level? Be open and forthright with the citizens. 

114 

As I said, I have sent a letter and now have petitions with West 

Virginians. We are working from within the Secretary of State’s office hand in hand as we register many of these businesses and 

added oversight for the Secretary of State to have indicated whether a particular company holds and stores chemicals and how we 

might be able to indicate that in our data base. 

We have a very transparent agency within the Secretary of 

State’s office and I pride myself in the efficiency and transparency. 

We would continue that if we had the requirement through our 

State code. 

Senator VITTER. Thank you. 

Mr. Huffman, thanks for your comments about our TSCA reform 

that Senator Manchin is so involved in. Also pass along my thanks 

to your colleague, Michael Dorsey, who in July voiced similar 

strong support and comments. 

I want to highlight some important things in that work. I assume 

you agree, if you want to comment, that EPA should not have to 

affirmatively find unreasonable risk as they do now under current 

law in order to move forward. Would that be important, in your 

mind? 

Mr. HUFFMAN. Yes, Senator. One of thing that created more confusion in a time of uncertainty in those first 24 to 48 hours was 

simply the lack of information about this particular chemical. It 

was very frustrating to try to explain to a concerned public who 

has just been informed they cannot use their water what you do 

not know. 

They want to know what we do know and that was very little 

about this particular chemical and it somewhat degraded from 

there. Having that information about this chemical or any chemical 

that is within a zone or range of impacting a public water supply 

is information we absolutely must have. 

Senator VITTER. Also, it seems to me, it should be a big priority, 

it is with me and our efforts, first of all, that the State have a clear 

role in dealing with EPA and telling them what they think, what 

you think should be of high priority; second, that lack of safety and 

health information, as in this case, the criteria for prioritizing; and 

third, that we use a risk-based system so that, for instance, a factor like proximity to drinking water supply can be a clear factor in 

prioritization. 

Those would seem to me to be lessons from this incident. Would 

you agree with that or do you want to expand on that? 

Mr. HUFFMAN. Absolutely, Senator, you have said it all. That is 

absolutely true. 

Senator VITTER. Thank you all very much. 

Senator CARDIN. Senator Boxer. 

Senator BOXER. I agree. I think as we look at the TSCA bill, we 

should say if these chemicals are stored by drinking water supplies, 

Senator Vitter, I would support your point. If a chemical is stored 

by a drinking water supply and could get into the water, I think 

we should prioritize it. That is absolutely critical. As the law is currently proposed, that is not the case. 

Mr. Olson, I wanted to say I am going to read from your testimony if you don’t mind and say how much I agree with this. 

115 

‘‘The problems with TSCA that are illustrated by the chemical 

spill in West Virginia would not be fixed by the current Chemical 

Safety Improvement Act as introduced and in some respects, would 

be made worse. The bill as currently written would provide the 

public with the illusion of an effective Federal program to regulate 

chemicals while tying EPA in knots and taking away existing State 

authorities. The chemical spill in West Virginia is an illustration 

of why we need to strengthen the TSCA bill. It is not a justification 

for enacting a flawed bill.’‘ 

I wanted to say that in my view, this says it all to me. The last 

thing I want to do is give people the illusion of protection. That is 

why I think as we go forward with TSCA, Senator Vitter, Senator 

Cardin, Senator Udall and others, this particular spill should give 

us a lot more urgency to get that right and not pass a bill that is 

a phone deal. I feel very strongly about it. 

I was very taken, Ms. Tennant, with what you said about your 

ability, I want to make sure I got this right, through your good offices because you deal with small businesses and the business community. Do you license them or what do you do? Do you create a 

data base of all the businesses? 

Ms. TENNANT. We register businesses, corporations and limited 

liability companies. Yearly they file an annual report to keep up to 

date. 

Senator BOXER. I thought I heard you say you would look at trying to find out which of these companies store chemicals, is that 

what I heard you say? 

Ms. TENNANT. It is under the jurisdiction of the DEP to monitor 

and have oversight over those companies, but in an attempt for 

added transparency, for added information. 

Senator BOXER. Information is what I am getting at. 

Ms. TENNANT. Yes, to have that because as I said, we have a 

wonderful data base and the more information you put into it, the 

better it is for the public to be able to see. That is one step I am 

looking into as a result of this crisis. 

Senator BOXER. We have 80,000 chemicals out there. We know 

very little about these chemicals. When we know we have certain 

of these chemicals along a drinking water path, this is a red flag. 

Mr. Weaver, despite your point about regulations, the truth of 

the matter is there is no regulation except for the above ground oil 

storage. We have not moved forward with regulation. I think Senator Cardin pointed out there is a law but there is no regulation. 

That is why Senator Manchin’s bill I think is so critical. 

Mr. Faulk, I love lawyers. I am married to one, my father was 

one, my son is one. You are eloquent and your philosophy is interesting but it doesn’t get to the point of where we are which is we 

have people suffering at this time. 

It seems to me, without getting into an argument about federalism although I do agree with you, states should have absolute 

flexibility to move on this, I would rather see, first of all, if we can 

help you solve the problem which I think since you have the responsibility under current law, states have the responsibility to declare whether water is safe, it sounds like you need some help in 

monitoring and measuring. 

116 

I want to get to that in a minute but also, we want to make sure 

in the future with these 80,000 chemicals out there. Mr. Weaver, 

do you have any idea how many chemicals might be stored all over 

this great nation near water supplies? 

Mr. WEAVER. I can speak to our member facilities which I do 

know about. Honestly, we look at the concern as being the product 

leaving the property. As far as the terminal industry is concerned, 

the harm is done if the product gets offsite. If the product reaches 

private property or otherwise, we consider that to be a concern for 

us. 

Senator BOXER. I am asking if you know—then I will ask Mr. 

Olson if he knows—do you have any clue as to how many above 

ground storage tanks—let us put it in simple terms—have chemicals in them? We know some of them have salad oil. We are talking 

about chemicals. How many are located along water supplies? 

Mr. WEAVER. I don’t know the number. 

Senator BOXER. Do you have a guess, Erik? 

Mr. OLSON. As we said in our testimony, it is basically impossible to know that right now. We have reviewed literally scores of 

these source water assessments and virtually every one has some 

storage tanks near the surface water which is often done because 

it is convenient. 

Senator BOXER. OK. I will close with this point. We have a massive problem and do not know how massive it is. We know because 

of the people of West Virginia—my heart is out to them and we are 

going to do everything we can to help you get the information you 

need—so after this please let us know how I can help. 

I know Senators Manchin and Rockefeller are doing a great job. 

If you need more help in ascertaining the safety of that water supply, I want to help you. 

We need to have an assessment. I think the quickest way is the 

Manchin bill because it says that every State has to look at it because it is such a huge problem. Mr. Weaver, who is in this business, has no clue. Mr. Olson, who is an advocate for the folks, 

doesn’t really have a clue of how many of these Freedom Industries 

operations are out there waiting to cause havoc. 

As was pointed out I think by our Chairman, if there had not 

been a smell to this, we still might not know. 

The Manchin bill, which I hope we will mark up soon, would basically say every State, you make an assessment. We will help you. 

Let’s have a plan for inspection that is carried out by the State for 

emergency plans, for standards for these tanks. Mr. Weaver was eloquent about how seriously that is taken in his industry. 

You have a rogue operator which is an absolute coward. Running 

away and leaving the people is an outrage, an absolute outrage. 

People are frustrated and upset. They always turn to the government, oh, why didn’t you do more. How about having some corporate responsibility and making sure that you as a good corporate 

citizen ensure the safety of the people and not hold a press conference and say, I have to go now—I saw that one—I have to go 

now; I can’t really talk to you and then file for bankruptcy. 

It is a violation of basic human decency what they did. We have 

to protect the people. That is our job now. I am so grateful to 

Chairman Cardin, Senators Boozman and Vitter for cooperating 

117 

with us and we are going to move forward and push this legislation 

which, Mr. Faulk, will give the responsibility to the states to make 

sure they have the resources and we have their backs as they move 

to protect the people from the most basic right, to be able to take 

a glass of water and not worry that your kid is going to get cancer. 

Let’s put it that way. 

I want to say to the people of West Virginia through Mr. 

Huffman, Mr. McNulty, and their great Secretary of State, how 

much I want to do to stand by you in this crisis. 

I thank you, Mr. Chairman. 

Senator CARDIN. Thank you, Senator Boxer. 

Senator Boozman, earlier I mentioned your help in accommodating the fast turnaround time for this hearing. I thank you very 

much for that. As acknowledged, you had a conflict earlier but it 

is nice to have you sitting next to me at the committee. Let me acknowledge and give an opportunity to Senator Boozman. 

Senator BOOZMAN. Thank you very much, Mr. Chairman. 

I do appreciate you holding this hearing about such an important 

topic. I apologize for being late. The prayer breakfast is going on 

this week and we have people literally from all over the world. I 

actually had some heads of State I had to visit with, so again, 

thank you very much for putting up with me. 

I would like to follow along the same lines as Senator Boxer in 

the sense that Mr. McNulty, you mentioned the importance of public disclosure of all potential sources of contamination to allow the 

public and government regulate them, which I agree. I am very 

much in favor of doing that. 

Do you or any of the other witnesses have any thoughts about 

how we can balance that, the value of public disclosure with the 

need to protect the sites in a post-9/11 world? In other words, we 

do not want to create a situation where we somehow publicize the 

sites that are perhaps potential targets for terrorists or whoever 

would cause us harm. 

Mr. MCNULTY. I certainly understand there needs to be a balance with the post-9/11 era that we live in now. I think in reality, 

this information is out there now. You can comb the Web and find 

information on most every drinking water utility in the United 

States and find information about where there treatment plants 

are located and so forth. 

How we would go about keeping information confidential but yet 

engaging the public and making them a part of the solution in protecting their source water, I really don’t have the full answer to 

that. 

Senator BOOZMAN. Does anyone else want to comment? 

Mr. FEWELL. Senator Boozman, I have some thoughts. Some 

states have online systems for the management of hazardous substances for which companies under EPCRA are required to file. 

That information is maintained in confidential data bases at the 

State and local levels. 

It seems to me perhaps that information could also be made 

available to water companies in proximity to those facilities in the 

same type of confidential data base that exists for EPCRA. 

Senator BOOZMAN. You explained in your testimony, while more 

data is necessary for response and preparation, it is important to 

118 

use the information effectively rather than just dumping massive 

amounts of data on small water systems. Can you explain what you 

envision in that regard, especially with improved notification to our 

small water system operators? 

Mr. FEWELL. One of my concerns is obviously some of these watersheds are very large. We are talking hundreds, perhaps thousands of square miles with many industrialized facilities. Where 

there is a requirement that these public water systems be provided 

emergency response and information related to hundreds of facilities, that is a lot of information for any public water system whether large or small to digest, understand and figure out of to respond. 

I think what we heard here this morning about prioritizing, 

those facilities in close proximity to water intake structures or 

drinking water supplies are the ones that it is absolutely critical 

for that information to be in the hands of water provides downstream. 

Senator BOOZMAN. Yes, sir? 

Mr. OLSON. I agree with that. I would say, in fact, as highlighted 

a bit earlier today, a lot of these assessments have already been 

done, so a lot of the facilities have already been flagged. The water 

utilities have some information available. The key is to get the 

more detailed information to them. 

I think that the bill recently introduced by Senators Manchin, 

Boxer and Rockefeller would take a major step in that direction to 

force somebody to deal with that situation at the State level. I 

think that would be a significant step forward to actually get action 

taken to deal with these immediate threats. 

Senator BOOZMAN. I do appreciate your leadership, Mr. Chairman, and enjoy working with you on these issues. This is really an 

important topic which we hopefully can deal with. 

Senator CARDIN. Thank you. I appreciate the cooperation we 

have in this committee. We try to do everything we can in a nonpartisan manner because it involves the public health of the people 

of this Nation. 

I want to give each of you an opportunity to respond to the following. You have heard during the course of this hearing information that would have been very helpful, you heard of the failure to 

exercise reasonable caution by the private property owner and the 

manner in which it dealt with its above ground storage. 

EPA currently publishes only 90 contaminants as far as regulations on how to deal with that. Chemicals are one aspect of contaminants. There can be other sources than chemicals but 90 is a 

small number compared to the total risk factors that could enter 

our water system. As was pointed out, if you ask for too much information, none of the information is going to be terribly useful. 

We have before us a specific bill, the bill authored by Senators 

Manchin, Rockefeller and Boxer. I would like to get your specific 

views as to whether that bill represents the right priority as you 

see it for Federal action or whether there are other areas you 

would like to see us look at? We will start first with Mr. Huffman. 

Mr. HUFFMAN. As with most successful environmental laws, rules 

and policies in this country, establishing minimum Federal standards which the states must meet is vitally important. We do not 

want too much disparity across the country in how anything is regVerDate Aug 31 2005 15:38 Jan 05, 2016 Jkt 000000 PO 00000 Frm 00122 Fmt 6633 Sfmt 6601 S:\_EPW\DOCS\97583.TXT VERN
119 

ulated or we simply see various industries moving around the 

country to find the areas that may be least regulated. 

The Manchin-Boxer bill does that, of course, but the other thing 

it does is the prevention piece of it. We talked a lot about TSCA 

and understanding the chemical, emergency response, planning 

and all of that. The key to this is prevention. That is what this bill 

does. 

It does other things, of course, but looking at it as an environmental regulator in the State of West Virginia, we have to keep 

this stuff in the tanks. If it leaves the tanks, we have to keep it 

in the secondary containment. That can be done. We can absolutely 

do that. 

The other thing is we have to stop looking at chemicals in the 

form of whether it is oil-based or a hazardous classification. We 

have learned that anything that has the potential to negatively impact a public water supply, however innocuous it may seem on the 

surface, we need to be able to regulate that. 

In the State of West Virginia, we have 3,500 tanks regulated or 

not the way the Freedom tanks are regulated; 1,000 of those are 

within the zone of critical concern over water intake. The only way 

to get that kind of certainty that we can keep this material in the 

tanks and in the secondary containment is to have annual or some 

other frequency of testing, inspection and certification. If we can do 

that, we can minimize the risk of this happening anywhere in the 

country. 

Senator CARDIN. Let me go to Mr. Weaver and try to get the different stakeholders. 

Mr. WEAVER. With regard to the proposed bill, as I have observed, all of the proposed measures are currently addressed to 

various degrees with existing regulations as they consistently apply 

to the vast majority of storage tank operators. 

With regard to this particular incident, it very well may be that 

exemptions or otherwise could have enabled them to escape that 

collections of regulations. It is also possible that there may have 

been violations of those regulations. 

Once we know the results from the investigation reports, I think 

we will have a much better basis upon which to begin acting. Specific reasons will be understood for the containment failures and for 

how the product got offsite. 

At that point, that is when measures to prevent recurrence in 

another community can most effectively be identified, addressed 

and implemented I believe for greatest effectiveness through the 

refinement and simplification of existing regulations, many of 

which are a web to navigate. Ultimately our objective is to keep the 

product contained as opposed to adding layers of administrative effort. 

Senator CARDIN. It’s my understanding we do have authority on 

petroleum-based above the ground storage but for some of the other 

contaminants and chemicals, we do not at the current time. 

Mr. WEAVER. There are some exemptions for many chemicals. 

Some chemicals are included and others are not. Certainly within 

the ILTA membership, the facility gets brought into the regulation 

at a very low threshold, the petroleum products. Within my sphere, 

there are very few facilities actually that do hold these chemicals 

120 

that are fully exempt because petroleum products or electrical 

transformers are fairly pervasive. That could be a way to utilize 

those existing regulations. 

Senator CARDIN. In West Virginia, it was not a petroleum-based 

product that caused the problem; it was a cleaning product? 

Mr. WEAVER. Right. 

Senator CARDIN. Mr. Olson? 

Mr. OLSON. Yes, the problem is that although petroleum-based 

products are regulated under the Clean Water Act, Section 311, unfortunately EPA apparently has not issued standards for hazardous 

materials for spill prevention, control and counter measures. That 

is a big, gapping loophole as I mentioned in my testimony. 

The Manchin bill definitely would move things forward at least 

for those tanks near drinking water supplies. 

The other point worth mentioning is the one you mentioned 

which is the State revolving fund. We really need an investment 

in our infrastructure. This is another reason to highlight that this 

treatment plant simply did not have the resources or the technology to deal with this type of spill. There are a lot of others 

across the country that do not. 

Senator CARDIN. Mr. Faulk? 

Mr. FAULK. One of the things I haven’t heard about the Act that 

I think is important, at least in this hearing we haven’t talked 

about it, is the Community Right to Know Act passed by this Congress in response to the Bhopal incident many, many years ago. 

That involves notification and procedures by which persons in the 

community can become aware and know how to respond to particular situations by virtue of notification. 

Although I will hasten to say I am not a thorough expert on that 

Act, I will say it would be worth comparing those systems so that 

there is not a significant amount of duplication of effort and burden 

imposed on the communities if this bill is, in fact, passed. 

Senator CARDIN. Thank you for that point. 

Ms. Tennant? 

Ms. TENNANT. I would echo that. I that is important for not just 

the citizens of West Virginia but across the country that these 

guidelines be made public, whether it is what the chemical is, the 

emergency plan put in place for these storage tanks and companies 

that hold these storage tanks to be made on a transparent data 

base easily accessible to the public. 

I would also mention particularly for West Virginia as we tackle 

this crisis, how do we make sure it does not happen again for us. 

I want to emphasize once again the proposal to have the 10-year 

study, the long term study for the health care and health of the 

people of West Virginia, that we might be able to put in place that 

we need to start today, so that confidence starts today and we have 

an understanding of what might happen over this 10 year period. 

Senator CARDIN. Thank you for that. 

Mr. McNulty? 

Mr. MCNULTY. I concur with Mr. Huffman’s comments. I think 

Senator Manchin has crafted a good commonsense approach to help 

solve these problems. 

Senator CARDIN. Mr. Fewell? 

121 

Mr. FEWELL. I want to reinforce a couple of things that have 

been said related to EPCRA. Whenever there is a spill in excess of 

reportable quantity established, there are three touch points: an 

immediate call to the National Response Center; the local emergency planning commission, the first responders and the State 

Emergency Response Commission. 

I think it would be reasonable to expect one more call to a local 

water facility downstream. I think one of the benefits with making 

bulk chemical storage facilities understand the risks may also be 

having them understand where the closest water intake structure 

is. If they are aware of that and there is a requirement that local 

water providers downstream be notified, I think that will go a long 

way. 

Senator CARDIN. Thank you. 

Senator Boozman. 

Senator BOOZMAN. Thank you, Mr. Chairman. 

I really do not have anything else. I was going to followup the 

way that you did. I was really curious about existing regulations 

and the loopholes but I think you all covered that well. We have 

some protections in place but we have some problems we need to 

address in the future. 

Hopefully we can work together and work with you all. This stuff 

does need to come from the ground up. We all worry about unfunded liabilities put on people who simply do not have any resources now. As you mentioned, Mr. Olson, most of our municipalities, most of these treatment plants are struggling with the funding 

the have now. 

Again, as I said, hopefully we can work together and come up 

with a good solution. 

Thank you, Mr. Chairman. 

Senator CARDIN. Once again, I want to thank all seven of our 

witnesses. As Senator Boxer pointed out, we really do want to work 

with you and figure out how we can be helpful. Our first priority 

is to do what we can to prevent these types of episodes from happening again in our country. 

I think we can learn from what happened in West Virginia and 

take steps at the private sector level as well as the governmental 

level. We also want to make sure that we have knowledge so we 

know what information is out there. 

Last, when a company fails to perform, they should be held accountable. We are very concerned about the business aspect of this 

company and the steps it has taken to avoid its responsibilities as 

Senator Boxer and many of you here pointed out. 

I hope we can work together to minimize these risks. There are 

always risks, we know that. We need to minimize the risks and 

clearly do it in a way that is cost effective and really works. We 

don’t want to do things that are going to cause additional burdens 

without benefits. 

I am glad to see that working together is being done by the West 

Virginia legislature. I expect the same type of response here in 

Congress and that we can be a constructive partner to the efforts 

of the people of West Virginia. 

Again, thank you all very much for your testimony. 

With that, the hearing stands adjourned. 

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[Whereupon, at 12 p.m., the subcommittee was adjourned.] 

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