S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill
Released: 2014-08-12T00:00:00

Introduction

On January 9, 2014, officials in West Virginia discovered that an estimated 10,000 gallons of the chemical 4-methylcyclohexanemethanol (MCHM), mixed with a small amount of glycol ethers known as PPH, leaked from a 46,000-gallon aboveground storage tank at a chemical storage facility owned by Freedom Industries on a site northeast of Charleston, WV. A substantial amount of the chemical was released into the Elk River, a tributary to the Kanawha River. Moving downriver, an unknown amount of the chemical plume entered intake pipes of a water treatment facility located 1.5 miles from the chemical storage facility, causing the issuance of state and federal emergency declarations and prompting the local water utility to issue a "do not use" order that directed more than 300,000 commercial and residential customers in nine counties of West Virginia not to drink or use tap water for any purpose other than flushing toilets.

Multiple responses followed. Federal, state, and local emergency response, public health, and environmental officials assembled resources to sample and test for the chemical at the treatment plant and in the water distribution system. Officials sought to obtain and evaluate information about toxicity and potential hazards in order to understand the impact of the chemical contamination. Emergency officials delivered and made water supply available to affected citizens. Recommendations of the U.S. Centers for Disease Control and Prevention (CDC) were used to determine a "safe level" of the chemicals and when the ban on the use of tap water could be lifted. It was fully and finally lifted on January 18, 2014. The U.S. Chemical Safety Board began an investigation of the incident to determine what happened and how to prevent a similar incident in the future.

Public and congressional interest in the incident has been significant. Oversight hearings by House and Senate committees began within a month to review the event and to identify policy issues regarding the federal and state roles in regulating chemical facilities and whether legislative remedies may be warranted. Several concerns emerged from these discussions:

Many have called for more robust inspections and controls at bulk chemical storage and manufacturing facilities and efforts to enhance inspection, spill containment, leak detection, and training requirements for personnel who manage activities at such facilities. Although underground storage tanks (USTs) are extensively regulated, relatively few federal regulations apply to aboveground storage tanks. For example, federal requirements for prevention and preparedness for releases from aboveground tanks apply to tanks containing oil, but do not apply to tanks storing hazardous substances or tanks containing non-hazardous substances or chemicals such as those at the Freedom Industries facility. There has been dispute over whether the tanks in question were subject to federal or state regulatory requirements that they be structurally sound and have adequate secondary containment, and whether existing requirements were effectively enforced. Little was known about the toxicity of the chemicals that leaked, which complicated efforts by the water utility, emergency responders, and other officials to assess risks to the affected public. Questions were raised about the adequacy of requirements for chemical testing of MCHM and PPH, as well as thousands of other chemicals used in commerce throughout the country. Facilities that store hazardous chemicals in excess of threshold quantities or experience a release in excess of established quantities are required by federal law to report and notify state and local emergency response personnel. However, there are no requirements that nearby or downstream water suppliers be notified. Rather, it is assumed that state and local emergency responders would notify affected entities and individuals. Many have called for more effective accident prevention, encompassing siting and design of chemical storage tanks, as well as inspections to safeguard against structural failure. Similarly, some now recommend that federal environmental laws should give greater attention to protecting sources of water against pollution and contamination.

Some of these concerns are reflected in two bills that have been introduced in response to the chemical spill: S. 1961 , the Chemical Safety and Preparedness Act, introduced by Senator Manchin on January 27, and H.R. 4024 , the Ensuring Access to Clean Water Act of 2014, introduced by Representative Capito on February 10. This report describes and analyzes S. 1961 , as reported, and H.R. 4024 . The bills have a number of core elements and provisions in common—both would seek to create a new chemical release prevention and response program to address gaps highlighted by the West Virginia spill—but they take different approaches to doing so. S. 1961 would make programmatic changes by amending the Safe Drinking Water Act (SDWA), while H.R. 4024 would amend the Clean Water Act (CWA).

Table A-1 in the Appendix to this report provides a comparison of the two bills.

S. 1961

On July 31, 2014, the Senate Committee on Environment and Public Works reported S. 1961 ( S.Rept. 113-238 ), with an amendment in the nature of a substitute. While basic program elements remain similar to the bill as introduced, the reported bill includes new terms, definitions, and various added details and clarifications. The following discussion reviews the Senate bill, as amended.

S. 1961 would amend the SDWA, adding a new "Part G" to require states or the Environmental Protection Agency (EPA) to carry out a chemical storage tank surface water protection (CSTSWP) program to protect public water systems from releases of chemicals from storage tanks. The bill would give states or EPA two years to establish a CSTSWP program that provides for oversight and inspection of chemical storage tanks, including tanks located in source water areas identified through the SDWA source water assessment program. Although S. 1961 would establish the tank program under the SDWA, a state would determine which state agency would implement the program.

The chemical storage tank program would be administered by states that have primary enforcement responsibility for public water systems (i.e., primacy ), or by EPA if either (A) a state does not have primacy or (B) a state has primacy but expressly refrains from administering and implementing a program. Primacy states choosing not to establish a program would be required to notify EPA of their decision no later than two years after enactment.

S. 1961 would require EPA to issue guidance and provide other technical assistance to assist states in implementing the bill's requirements. However, the bill would not authorize funding to support state administration of the CSTSWP program.

The bill delineates minimum elements for chemical storage tank programs, including requirements for tanks and tank owners and operators (such as construction and leak detection, inspections, and emergency response plans that provide for immediate notification to public water systems of chemical releases) and requirements for states (including tank inspections and a comprehensive tank inventory).

S. 1961 , as introduced, did not include a definition for the term "chemical." The reported bill defines "chemical" to mean a chemical substance that is

identified as a hazardous substance under Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly referred to as Superfund); subject to emergency planning or reporting requirements of the Emergency Planning and Community Right-To-Know Act (EPCRA); or defined as a contaminant under SDWA Section 1401(6).

The introduced bill focused on chemical storage facilities; however, as reported, S. 1961 changes the focus from "facilities" to "tanks." Under the amended bill, "covered chemical storage tanks" would include onshore, fixed, aboveground bulk chemical storage containers (and related piping and appurtenances) or a combination of containers from which a chemical release would pose a risk of harm to a public water system. This change in scope from facilities to tanks, specifically, may add clarity and certainty as to what exactly would be subject to regulation under the legislation. Additionally, a focus on "tanks" may make any new requirements more compatible with existing state aboveground storage tank regulatory programs.

The bill excludes from the definition a tank or container that is subject to regulations under Clean Water Act Section 311(j)(1). In addition, S. 1961 gives states or EPA broad authority to adopt additional exclusions based on substantially similar federal or state laws or based on a determination that the tank "would not pose a risk of harm to a public water system."

Under the bill, CSTSWP programs must provide for oversight and inspection of tanks and contain the following minimum requirements:

Covered chemical storage tank requirements including design, construction, and maintenance standards; leak detection; spill and overfill control; inventory control for promptly determining the quantity of chemicals released in the event of a spill; an emergency response and communication plan (including procedures for immediately notifying relevant water systems, and state and local emergency response officials, as required by EPCRA); training and safety plan; tank integrity inspections; corrosion protection; and financial responsibility requirements. Inspections of tanks: high hazard tanks—annually by a certified inspector for the owner or operator; tanks identified in a source water assessment area—at least once every three years for facilities; and other tanks—every five years. Comprehensive inventory of covered facilities in the state.

Proposed Section 1472(d) would require CSTSWP programs to be implemented and enforced in accordance with SDWA broadly, thus making the bill's requirements subject to federal enforcement authorities (including civil penalties), any monitoring or recordkeeping requirements EPA may establish by regulation, judicial review, citizens' civil actions, EPA general regulatory authority, and other provisions. Relatedly, a tank program and associated requirements would be considered a part of the national primary drinking water regulations for purposes of state primary enforcement responsibility. The substitute amendment to S. 1961 added Section 1472(g) to clarify that state actions regarding the administration of a CSTSWP program would not affect state primacy for other SDWA programs.

Among other provisions, the Senate bill would authorize EPA or a state to issue corrective action orders (proposed Section 1473), and would make facility owners or operators liable for costs incurred by EPA or a state for response actions taken under the new Part G (proposed Section 1474). Proposed Section 1745 would prohibit the transfer of a facility unless an inspection is conducted and any necessary measures are taken to address the inspection results.

Under proposed Section 1476, a state or EPA would be required to provide to public water systems, on request, information maintained on emergency response plans and chemical inventories for chemical storage tanks within the same watershed as the water system. EPA or the state would also be required to provide to public water systems, on request, existing information on the potential toxicity of stored chemicals that EPA or the state deems relevant to evaluate the risk of harm to water systems, and safeguards that can be taken to detect or limit the impacts of a release of stored chemicals. Primacy states would be required to submit a copy of emergency response plans to EPA and the Department of Homeland Security (DHS). In states where EPA administered the program, EPA would be required to submit a copy of emergency response plans to the state and DHS.

S. 1961 would authorize, but not require, public water system owners or operators to commence—or to petition EPA to commence—a civil action for equitable relief to address any activity or facility that may present an imminent and substantial endangerment to the health of persons supplied by the water system.

H.R. 4024: Similarities and Differences

The House measure, H.R. 4024 , which would establish a new Title VII in the CWA, is similar to the Senate bill in many respects. For example:

Broadly similar to S. 1961 , H.R. 4024 would require EPA or states to carry out a chemical storage facility source water protection program. The purpose of the program in the House bill is to protect navigable waters that states have designated for use as domestic water sources. ( S. 1961 would require states or EPA to administer a chemical storage tank surface water protection program aimed at protecting public water systems.) Minimum requirements for state programs are very similar to those in S. 1961 , although the Senate bill would require inspection of covered chemical storage tanks, while the House bill calls for inspection of aboveground storage tanks at covered facilities. S. 1961 would require annual inspections for "high hazard" storage tanks (the term is not defined); the House bill has no similar provision. EPA would be authorized to provide technical assistance to a state carrying out the program (but EPA is not required to issue guidance and provide technical assistance, as in S. 1961 ). Neither bill directs EPA to issue regulations or requires states to submit their programs to EPA for review and approval. Neither bill explicitly provides a formal sanction or consequence if a state fails to carry out a chemical storage facility source water protection program. As with S. 1961 , under H.R. 4024 , EPA or a state would be authorized to issue a "corrective action order" to require the owner or operator of a covered chemical facility to carry out requirements of the title. Likewise, the owner or operator of a public water system may commence a civil action in court to address "any activity or facility" that may present an imminent and substantial endangerment to the health of persons supplied by the water system. Or the public water system may petition EPA or the state to commence a civil action or issue an order. Procedures for EPA to respond to such a petition are specified. Paralleling S. 1961 , under H.R. 4024 the owner or operator of a covered chemical storage facility shall be liable to EPA or a state for costs of a response action under the proposed new CWA Title VII. However, neither bill explicitly authorizes a response action relating to the release of a chemical; thus it is unclear to what the cost recovery provision refers. (EPA's ability to initiate a response action would be dependent upon the availability of appropriations.) The bills include comparable provisions regarding transfer of ownership of a covered chemical storage facility or tanks. ( S. 1961 would allow one year, rather than 30 days, to address the results of a pre-transfer inspection, and specifies criteria for qualifying inspections.) The bills also include similar provisions requiring a covered chemical storage facility/tank owner or operator to prepare an emergency response and communication plan, but only S. 1961 explicitly requires procedures for giving immediate notice of a release to relevant water systems. Both bills would require EPA or a state to provide a copy of the plan to neighboring water system operators, EPA (if the plan was submitted to a state), and the Secretary of Homeland Security. (Under S. 1961 , if EPA administered the program, EPA would be required to provide the emergency response plans to the state.) Provisions are included to protect sensitive or security-related information in the plan. While both bills provide that an inventory of each chemical held at a covered chemical storage facility be shared with public water systems, neither bill requires that the inventory be updated to reflect changes in the facility's operation, or types or amounts of chemicals stored there. ( S. 1961 specifies that EPA or a state would be required only to provide response plans, chemical inventories, and other information to a public water system on request.) Both bills allow a state to adopt standards regarding chemical storage facilities or tanks that are more stringent than minimum requirements in the legislation. H.R. 4024 explicitly allows a state to adopt or enforce standards regarding chemical storage facilities that are more stringent than minimum requirements in the legislation. This provision would conform the bill to CWA Section 510, which allows states to adopt or enforce water pollution abatement requirements more stringent than those specified in the CWA. S. 1961 specifies that the bill's requirements are to be implemented in accordance with the SDWA, and makes conforming amendments to SDWA Section 1414(e), which provides that nothing in the SDWA diminishes the authority of a state to adopt or enforce any law or regulation respecting drinking water regulations or public water systems.

Despite many broad similarities between the bills, H.R. 4024 does contain numerous differences from the Senate bill. Selected differences are highlighted below.

First, as noted above, the purpose of the program in H.R. 4024 is to protect navigable waters that states have designated for use as domestic water sources. The use of the phrase "navigable waters" in the bill derives from the basic jurisdictional reach of the CWA, which is "navigable waters"—defined in the act to mean "the waters of the United States, including the territorial seas." H.R. 4024 applies to a release from a chemical storage facility that poses a risk to "a navigable water that is designated for use as a domestic water supply." Under the CWA, states adopt water quality standards, which include designated use or uses for water bodies in the states (such as public water supply, recreation, or industrial water supply) and criteria to support the designated uses by setting acceptable upper limits on pollutants in the waterbody. The bill is thus concerned with protecting waters designated by states for use as public water supply—typically the highest and most protective use that a state adopts—but not other waters that also could affect public health and welfare. For example, many state standards designate waters for fish consumption, or water contact recreation (swimming and fish), uses that can result in public exposure to and consumption of water that could be affected by a chemical facility release just as easily as a water designated for domestic water supply. Second, while both bills call for the new program to be carried out by EPA or by a state that exercises primary enforcement responsibility for the underlying act, that means different things under the SDWA and CWA. H.R. 4024 would require that the new chemical storage facility program be carried out by states that have been delegated primary authority to issue CWA discharge permits. Forty-six states are authorized by EPA to implement CWA responsibilities that include adopting water quality standards, issuing discharge permits, conducting water quality monitoring, and enforcing the law. In the remaining states (Idaho, Massachusetts, New Hampshire, and New Mexico), plus the District of Columbia and most U.S. Territories, EPA retains core CWA responsibilities such as issuing permits, and it would be required to carry out the program detailed in H.R. 4024 . As discussed above, S. 1961 would apply to states that have primary enforcement authority for public water systems under the SDWA: EPA would implement programs in Wyoming, the District of Columbia, and most Indian lands. Third, only S. 1961 would direct EPA to implement a program in a primacy state that refrains from establishing one. H.R. 4024 includes no similar requirement or explicit authority. Fourth, the bills use different terms and definitions for "storage tank." H.R. 4024 defines "aboveground storage tank" to mean a container at a covered chemical storage facility located on or above ground with fluid capacity in excess of 1,100 gallons, or a tank that is greater than 500 gallons capacity and is located within 500 feet of a navigable water that is designated for domestic water supply. S. 1961 includes a definition for "covered chemical storage tank," but does not exclude any tanks based on storage capacity or distance from surface water; such determinations would be left to each state or EPA. Both bills would exclude tanks ( S. 1961 ) or facilities ( H.R. 4024 ) subject to spill prevention, containment, and removal measures under CWA Section 311(j)(1), which would exclude tanks or facilities storing oil. Both bills also would authorize states or EPA to establish other exclusions. Fifth, the bills define "chemical" differently. The House bill defines "chemical" to mean "any substance or mixture of substances." The proposed definition differs from and is broader than definitions in other laws, and interpreting it could raise questions such as whether it is intended to include a substance such as oil, which is subject to separate provisions in CWA Section 311. S. 1961 includes a three-part definition of "chemical," focusing on regulated hazardous chemicals and substances, but also encompassing the SDWA definition of "contaminant." Sixth, H.R. 4024 directs EPA to survey and report on state programs and regulations developed to implement the requirements of the legislation. Seventh, the House bill provides for civil penalties, not to exceed $15,000 per day, for violation by an owner or operator of a covered chemical storage facility of a requirement or an order issued by EPA or a state pursuant to the legislation. The stated penalty amount is less than the general civil penalty provision in Section 309(d) of the CWA, which specifies not to exceed $25,000 per day for each violation of the act. S. 1961 would make the bill's requirements subject to existing SDWA enforcement provisions, including Section 1414(b), which authorizes EPA to bring a civil action in the appropriate U.S. district court to require compliance with any applicable SDWA requirement or with an administrative compliance order. These SDWA civil penalties may not exceed $25,000 for each day the violation occurs. Eighth, the requirements of S. 1961 would be implemented and enforced in accordance with the underlying statute (SDWA). The House bill contains no similar provision.

Conclusion

The spill from chemical storage tanks in West Virginia has generated considerable debate over the current state of regulation of such facilities, at both the federal and state level. As Congress considers possible legislative responses, multiple approaches may emerge.

Both of the bills discussed in this report contemplate creating state-led programs to provide for oversight and inspection of covered chemical storage facilities or tanks. Neither bill would require EPA to issue regulations or limit state authority to set stricter requirements. A key difference is that S. 1961 would require the federal government to carry out a program in the event that a state with primary enforcement authority does not establish a program. Additionally, only S. 1961 would require chemical storage tank programs to be administered and enforced in accordance with the underlying statute (SDWA).

Neither bill would provide additional funds to states to support development or administration of the program called for in the legislation. Requirements, such as conducting periodic inspections of chemical storage facilities, may be a challenge for resource-limited states without supplemental funding or shifting of funds from other activities to support program needs. Options for funding state-administered programs in the past have included authorizing appropriations for state grants, and providing explicit authority to support program costs through fees. Likewise, S. 1961 does not consider the resources that EPA might need if a large number of primacy states refrain from implementing the program contemplated in the legislation.

It is unclear how many facilities might be covered under either bill, as there is no existing inventory—a gap that both bills propose to close by requiring each state to develop its own inventory (a national inventory is not called for in either bill). Although the number of chemical storage facilities and tanks is expected to be large, the bills give states and EPA considerable flexibility to determine which of those might be "covered" facilities or tanks or might be excluded from inclusion in the new program. Whether a state or EPA might choose to exclude some facilities or tanks—for example, those that are large, based on a determination that they already meet appropriate standards, or those that are small, based on a determination that they pose relatively little risk of harm to public water supplies—is unknown for now.

At congressional hearings and in other fora, some—including some state regulatory agencies—have expressed the view that federal legislative response to the Elk River chemical spill would be premature until more complete information about the incident is available and an assessment has been done of gaps in environmental laws and regulations and how best to address them—whether through amendment of laws and/or programs or enhancement of existing authorities. Further, regardless of the role of states in the pending bills, some stakeholders prefer allowing states to take the lead in determining the need for and details of programs to address chemical storage facilities within their borders.

The Administration's views on the need for legislation to address spills from chemical storage facilities generally or on the specific bills discussed here are unknown for now.

Appendix. Comparison of S. 1961 and H.R. 4024