S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

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S. 1961 and H.R. 4024: Legislative Responses

to a Chemical Storage Facility Spill

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August 12, 2014

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R43441

S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

Summary

In January 2014, an estimated 10,000 gallons of 4-methylcyclohexanemethanol (MCHM) and

other chemicals leaked from a bulk aboveground storage tank at a chemical storage facility

located upstream from the intake pipes of the water treatment plant serving Charleston, WV, and

nearby counties. In the wake of the resulting contamination of this large public water supply,

Congress has undertaken oversight and is considering legislative options.

The chemical storage tank at the center of the West Virginia incident appears to not have been

subject to regulation under various federal or state laws aimed at protecting water resources from

chemical releases. 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 legislation might be warranted. In further response to the spill, S.

1961, the Chemical Safety and Preparedness Act, was introduced on January 27, 2014, and H.R.

4024, the Ensuring Access to Clean Water Act of 2014, was introduced on February 10, 2014.

This report describes and analyzes H.R. 4024 and S. 1961, as reported. The bills share a number

of broadly similar provisions—both would direct states or the Environmental Protection Agency

(EPA) to establish programs to prevent and respond to releases from chemical storage facilities

(H.R. 4024) or tanks (S. 1961) located near drinking water sources—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).

The bills would require states with primary enforcement responsibility for public water systems

(S. 1961), or states with primary authority to issue CWA discharge permits (H.R. 4024), to

establish a regulatory program for chemical storage tanks or facilities, and would have EPA

establish programs in other states. Only S. 1961 would require EPA to establish and administer

the program in primacy states that refrain from doing so. H.R. 4024 would require EPA or states

to carry out a “chemical storage facility source water protection program” within one year of

enactment, while S. 1961 would give EPA or states two years to establish a “chemical storage

tank surface water protection program.”

Both bills include similar program requirements: (1) a state inventory of chemical storage

facilities (H.R. 4024) or tanks (S. 1961); (2) regular inspections; and (3) requirements for

facilities or tanks (including construction standards, leak detection, emergency response and

communication plans, employee training, etc.). Both bills would authorize EPA or a state to issue

corrective action orders to enforce the requirements of the legislation, and to recover response

costs from facility or tank owners or operators. The bills would require pre-transfer inspections of

facilities or tanks, and require information about stored chemicals and response plans to be shared

with local water systems. The bills define “chemical” and “storage tank” differently, but would

give states or EPA broad discretion in determining the scope of covered facilities or tanks.

Both bills contemplate creating state programs to provide for oversight and inspection of covered

chemical storage facilities or tanks, but neither would provide financial resources to assist states

in establishing or administering the programs. The pending bills broadly present one approach

among an array of possible approaches that have received some discussion. Some Members of

Congress and stakeholders have suggested that a federal legislative response to the West Virginia

spill is premature, saying that they favor allowing states to take the lead in determining the need

for and details of programs to address chemical storage tanks and facilities within their borders.

Congressional Research Service

S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

Contents

Introduction...................................................................................................................................... 1

S. 1961 ............................................................................................................................................. 3

H.R. 4024: Similarities and Differences .......................................................................................... 6

Conclusion ..................................................................................................................................... 10

Tables

Table A-1. Comparison of S. 1961 and H.R. 4024 ........................................................................ 12

Appendixes

Appendix. Comparison of S. 1961 and H.R. 4024 ........................................................................ 12

Contacts

Author Contact Information........................................................................................................... 19

Congressional Research Service

S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

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.1

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 chemicals2 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.3

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,4 relatively

few federal regulations apply to aboveground storage tanks.5 For example,

1

The January 14, 2014, announcement of the presidential emergency declaration for the spill is available at

http://www.fema.gov/news-release/2014/01/10/president-obama-signs-west-virginia-emergency-declaration.

For information on presidential declarations and federal disaster assistance, see CRS Report RL33053, Federal Stafford

Act Disaster Assistance: Presidential Declarations, Eligible Activities, and Funding, by (name redacted).

For a review of federal response authorities and procedures for chemical spills, see CRS Report R43251, Oil and

Chemical Spills: Federal Emergency Response Framework, by (name redacted) and (name redacted).

2

CDC determined that a maximum level of 1 part per million (ppm) of MCHM in drinking water would be protective

of public health. The “do not use” ban remained in effect until MCHM levels were non-detectable (less than 0.01 ppm,

or 10 parts per billion (ppb)) at all designated sampling locations throughout the distribution system. However, CDC

also recommended extra precaution by pregnant women, even after the “do not use” ban was lifted.

3

Information on the Chemical Safety Board investigation of the Freedom Industries chemical release is available on

the CSB website, http://www.csb.gov/investigations/.

4

However, federal UST requirements apply to tanks storing petroleum and “regulated substances” (i.e., substances

(continued...)

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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

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.6 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.7

(...continued)

defined as hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA,

Section 101(14), excluding hazardous wastes (42 U.S.C. 9601(1)). Thus MCHM currently is not regulated under the

UST program. Federal requirements for USTs comprise Subtitle I of the Solid Waste Disposal Act, also called the

Resource Conservation and Recovery Act. 42 U.S.C. §§6991-6991m.

5

States have had the predominant role in regulating aboveground storage tanks (ASTs) that contain chemicals, and

various states have developed AST programs that include many comparable provisions to the UST regulatory

programs.

6

Clean Water Act, Section 311(j)(1) [33 U.S.C. 1321(j)(1)] directs the President to promulgate spill prevention,

containment, and removal regulations for discharges of oil and hazardous substances to surface waters. An executive

order delegated this authority to EPA, which issued oil Spill Prevention, Control, and Countermeasure (SPCC)

regulations for non-transportation onshore and offshore facilities in 1973. EPA has not issued analogous regulations

that apply to hazardous substances. In addition, Section 311(j)(5) directs the President to issue regulations requiring

tank vessel and facility owners or operators to prepare and submit detailed response plans for responding to worst-case

discharges of oil or a hazardous substance. Facilities subject to regulations include onshore facilities that, because of

their location, could “cause substantial harm to the environment by discharging into or on the navigable waters,

adjoining shorelines, or the exclusive economic zone.” EPA promulgated Facility Response Plan regulations for nontransportation onshore oil facilities in 1994. EPA has not issued similar regulations for facilities storing hazardous

substances. Although both of these CWA sections direct the President to issue rules that address hazardous substances,

if EPA had issued such regulations, they would apply only to materials defined as hazardous substances, which

currently do not include MCHM. (However, for chemical spills, CERCLA authorizes the federal government to take

actions to respond to a release of a hazardous substance, or a release of a pollutant or contaminant (such as MCHM),

into the environment that may present an imminent and substantial danger to public health or welfare.)

For information on the SPCC regulations for oil, see CRS Report R43306, Spill Prevention, Control, and

Countermeasure (SPCC) Regulations: Background and Legislation in the 113th Congress, by (name redacted).

7

The Emergency Planning and Community Right-to-Know Act (EPCRA) of 1986 requires the owner or operator of a

facility to notify state and local emergency response officials (and local fire departments) of certain hazardous

chemicals present at the facility above specific quantities. EPCRA also requires notification of state and local

emergency response officials in the event of a release of certain designated chemicals from the facility above specific

quantities. See CRS Report RL32683, The Emergency Planning and Community Right-to-Know Act (EPCRA): A

Summary, by (name redacted).

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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

•

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,8 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.9 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., primacy10), or by EPA if either (A) a

8

42 U.S.C. §300f et seq. The SDWA comprises Title XIV of the Public Health Service Act.

SDWA Section 1453 (42 U.S.C. §300j-13), added by the 1996 SDWA amendments (P.L. 104-182), requires states to

conduct an assessment of sources of drinking water for public water systems in the state to identify potential sources of

contamination and to determine the susceptibility of water systems in the delineated area to these contaminants.

Contaminants covered in the state source water assessment programs (SWAPs) include contaminants regulated, or for

which monitoring is required, under the SDWA, as well as contaminants that the state determines present a threat to

public health.

Funding: States were authorized to use a portion of their drinking water state revolving loan fund (DWSRF)

capitalization grant for FY1996 and FY1997 to conduct source water assessments. SDWA §1452(k)(1)(C); 42 U.S.C.

§300j-12(k)(1)(C).

10

All states except Wyoming have been delegated primary enforcement and oversight responsibility (i.e., primacy) for

(continued...)

9

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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

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);11 or

•

defined as a contaminant under SDWA Section 1401(6).12

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.13 Additionally, a focus on “tanks” may make any new requirements more compatible

with existing state aboveground storage tank regulatory programs.

(...continued)

the public water system supervision (PWSS) program pursuant to SDWA §1413 (42 U.S.C. §300g-2). EPA would be

required to implement a chemical facility program in Wyoming, in most Indian lands, in the District of Columbia

(defined as a state in SDWA), and in states that choose not to implement a CSTSWP program.

11

The Emergency Planning and Community Right-to-Know Act (EPCRA) of 1986 establishes various planning and

reporting requirements applicable to facilities at which certain hazardous chemicals or extremely hazardous substances

are present above specific threshold quantities. For purposes of EPCRA, “hazardous chemicals” are the body of

chemicals that meet the regulatory criteria promulgated by the Occupational Safety and Health Administration in

29 C.F.R. Section 1910.1200(c), and extremely hazardous substances are a separate body of specific chemicals

designated in regulation promulgated by EPA in 40 C.F.R. Part 355, Appendix A and Appendix B. EPA is responsible

for designating threshold quantities under EPCRA for both hazardous chemicals and extremely hazardous substances.

See CRS Report RL32683, The Emergency Planning and Community Right-to-Know Act (EPCRA): A Summary, by

(name redacted).

12

SDWA Section 1401(6) defines the term “contaminant” to mean “any physical, chemical, biological, or radiological

substance or matter in water.”

13

Also, various proposed requirements, such as those regarding design and construction standards, may be more clearly

defined and, thus, more easily addressed, by owners and operators when applied to tanks (for which industry standards

(continued...)

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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

The bill excludes from the definition a tank or container that is subject to regulations under Clean

Water Act Section 311(j)(1).14 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.15

•

Inspections of tanks:

•

•

high hazard tanks—annually by a certified inspector for the owner or

operator;16

•

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),17 any monitoring or recordkeeping

requirements EPA may establish by regulation,18 judicial review,19 citizens’ civil actions,20 EPA

general regulatory authority, 21 and other provisions. Relatedly, a tank program and associated

(...continued)

exist), rather than facilities.

14

See supra note 5.

15

Various proposed program requirements broadly parallel many of the requirements for underground storage tanks

(USTs) under Subtitle I of the Solid Waste Disposal Act, also called the Resource Conservation and Recovery Act, 42

U.S.C. §§6991-6991m. However, the framework in Subtitle I differs fundamentally from the proposed bills, in that the

UST provisions in current law establish a federal regulatory program with authority for states to administer their own

UST program in lieu of the federal program—with EPA approval and grant assistance. In contrast, under the pending

bills, states generally would be the primary regulators and would determine the scope and details of their programs.

16

The bill does not define or provide criteria to determine what would be considered a “high hazard covered chemical

storage tank,” but it would require the state or EPA to develop a list of such tanks within two years of enactment.

17

SDWA Section 1414 (42 U.S.C. §300g-3). Relatedly, Section 2(c) of S. 1961 would amend SDWA enforcement

provisions (Section 1414(i)) to make the new Part G an “applicable requirement” under the SDWA, and would make

other conforming amendments.

18

SDWA Section 1445 (42 U.S.C. §300j-4).

19

SDWA Section 1448 (42 U.S.C. §300j-7).

20

SDWA Section 1449 (42 U.S.C. §300j-8).

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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

requirements would be considered a part of the national primary drinking water regulations for

purposes of state primary enforcement responsibility.22 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.23

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

(...continued)

21

SDWA Section 1450(a) [42 U.S.C. §300j-9(a)] authorizes the EPA Administrator “to prescribe such regulations as

are necessary or appropriate to carry out his functions under this title.” The SDWA is Title XIV of the Public Health

Service Act.

22

State primary enforcement responsibility provisions are contained in SDWA Section 1413 (42 U.S.C. §300g-2).

23

Section 2(b) would amend SDWA emergency powers, Section 1431 (42 U.S.C. §300i), to provide this authority.

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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

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 regulations24 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.)

24

However, both the SDWA and CWA authorize EPA to prescribe regulations as are necessary to carry out functions

under the act. 42 U.S.C. §300j-9(a)(1) (SDWA) and 33 U.S.C. §1361(a) (CWA). Neither bill would preclude EPA from

issuing rules to implement the legislation. S. 1961 would require implementation in accordance with the SDWA.

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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

•

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.”25 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

25

CWA Section 502(7); 33 U.S.C. §1362(7). The same definition of navigable waters applies to all of the programs

and regulatory requirements of the CWA, meaning that it is central to determining the regulatory scope of the law. Two

Supreme Court rulings have narrowed the law’s geographic reach, creating considerable uncertainty about waters that

are regulated or not. On March 25, 2014, EPA and the Army Corps of Engineers proposed a regulation in response. For

background, see CRS Report RL33263, The Wetlands Coverage of the Clean Water Act (CWA): Rapanos and Beyond,

by (name redacted) and (name redacted), and CRS Report R43455,EPA and the Army Corps’ Proposed Rule to Define

“Waters of the United States,” by (name redacted).

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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

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,26 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,27 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.28 S. 1961 would make the bill’s requirements subject to

existing SDWA enforcement provisions, including Section 1414(b), which

26

For example, the Toxic Substances Control Act (TSCA) defines “chemical substance” as “any organic or inorganic

substance of a particular molecular identity, including—(i) any combination of such substances occurring in whole or

in part as a result of a chemical reaction or occurring in nature and (ii) any element or uncombined radical.” The TSCA

definition provides several exclusions, including any mixture and pesticides as defined in the Federal Insecticide,

Fungicide, and Rodenticide Act. 15 U.S.C. §2602(2).

27

See supra note 10.

28

Pursuant to the Debt Collection Improvement Act of 1996, EPA periodically adjusts the maximum civil monetary

penalties that can be imposed under the CWA, SDWA, and other statutes that it administers to account for inflation.

Currently, the maximum inflation-adjusted civil penalty under CWA Section 309(d) or SDWA Section 1414(b) is

$37,500 per day for each violation. 40 C.F.R. Part 19.

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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

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.29 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

29

For example, the Clean Air Act, Section 502(b)(3), includes explicit authority for EPA or states to collect fees to

support reasonable costs of administering the Title V program (all states administer this permitting program). As

another example, under Subtitle I of the Solid Waste Disposal Act, states receive grants to support administration of the

Underground Storage Tank leak prevention program and the Leaking Underground Storage Tank (LUST) response

program. Congress established the LUST Trust Fund (based on a 0.1 cent/gallon motor fuels tax) initially to fund only

the response program, and amended the program in 2005 to authorize use of trust fund resources (rather than general

Treasury revenues alone) for inspections and other leak prevention activities. As a state example, the newly enacted

West Virginia aboveground storage tank law authorizes fees on tank owners to fund inspections and a registry. See

infra note 31.

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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

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.30 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.31

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.

30

Letter from Dick Pederson, president, Environmental Council of the States, Ryan Benefield, president, Association

of State and Territorial Solid Waste Management Officials, and John Calkins, president, Association of Safe Drinking

Water Administrators, et al. to Honorable Barbara Boxer, Honorable David Vitter, Honorable Joe Manchin, Honorable

Jay Rockefeller, March 5, 2014.

31

For example, in response to the Elk River chemical spill, the West Virginia governor signed a bill (S.B. 373) on

April 1, 2014, to establish new aboveground storage tank requirements, including regular inspections and stricter

permitting, and to improve coordination between state and local officials and water utilities. Fees on tank owners would

fund inspections and a registry. Similarly, the Georgia legislature passed a bill (H.B. 549) in March to establish

emergency response procedures in case of a hazardous chemical spill into a water supply.

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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

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

Table A-1. Comparison of S. 1961 and H.R. 4024

Provision

S. 1961, as reported

H.R. 4024

Title

Chemical Safety and Drinking Water

Protection Act of 2014

Ensuring Access to Clean Water Act of 2014

Statute to be

amended

Safe Drinking Water Act (SDWA)

42 U.S.C. §300f et seq.

Federal Water Pollution Control Act

(hereinafter referred to as the Clean Water

Act (CWA); 33 U.S.C. §1251 et seq.

Section 2 adds SDWA Part G (§§1471-1476)—

Protection of Surface Water from

Contamination by Chemical Storage Tanks.

Section 2 adds CWA Title VII—Protection of

Navigable Water from Contamination by

Chemical Storage Facilities.

Definition:

Chemical

Section 1471(1). Defines “chemical” to mean a

chemical substance that is (A) identified as a

hazardous substance under Section 101(14) of

the Comprehensive Environmental Response,

Compensation, and Liability Act (CERCLA, or

Superfund); (B) subject to emergency planning

or reporting requirements of the Emergency

Planning and Community Right-To-Know Act

(EPCRA);a or (C) defined as a contaminant

under SDWA Section 1401(6).

§701(3). Defines “chemical” to mean any

substance or mixture of substances.

Definition:

Storage tank

§1471(2). Defines “covered chemical storage

tank” to mean an onshore, fixed, aboveground bulk chemical storage container

(including any associated piping and

appurtenances), or a combination of such

storage containers, from which a release of

the chemical from the tank and/or containers

could pose a risk of harm to a public water

system.

New §701(1). Defines “aboveground storage

tank” to mean any container or set of

containers designed to contain fluids located at

a covered chemical storage facility, constructed

of materials including concrete, steel, plastic or

fiberglass reinforced plastic and located on or

above the ground surface.

Excludes

Excludes

tanks or containers subject to Spill

Prevention, Control and Containment

(SPCC) requirements to prevent and

contain discharges of hazardous

substances under CWA Section

311(j)(1)(C) [SPCC rules for hazardous

substances have been issued for oil but

not for hazardous substancesb].

•

[similar SPCC exclusion for chemical

storage facilities (see definition below)];

•

tanks of 1,100 gallons or less capacity

except tanks greater than 500 gallons

capacity within 500 feet of a navigable

water designated for use as a domestic

water supply;

EPA or the state also may adopt exclusions

•

tanks subject to oversight and inspection

under a federal or state law or regulation

determined by EPA or state to be at least

as stringent as requirements in Section

702 (below);

•

[for covered chemical storage facilities,

EPA or state may consider requirements

of applicable federal or state laws and

regulations in determining risk of harm].

•

based on federal or state laws and

regulations that substantially meet the

requirements of this act; or

•

for tanks that EPA or the state

determines would not pose a risk of harm

to a public water system

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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

Provision

S. 1961, as reported

H.R. 4024

Definition:

covered

chemical storage

facility

As reported, the Senate bill addresses

chemical storage tanks, rather than chemical

storage facilities, as introduced.

§701(3). A facility at which a chemical is stored

and EPA or the state determines that a release

poses a risk of harm to a navigable water

designated for use as a domestic water supply

under CWA Section 303.

Similar language in definition of “covered

chemical storage tank” above.

Same exclusion under definition of “covered

chemical storage tank.”

Excludes facilities subject to Spill Prevention,

Control and Containment (SPCC)

requirements to prevent and contain discharges

of hazardous substances under CWA Section

311(j)(1)(C) [SPCC rules for hazardous

substances have been issued for oil but not for

hazardous substancesb].

Broadly comparable exclusion under definition

for covered tanks.

Consideration: in determining risk of harm,

EPA or state may consider requirements of

applicable federal or state laws and regulations.

Definition: state

program

§1471(2). “State program” means a chemical

storage tank source water protection

(CSTSWP) program established under Section

1472.

§701(4). “State program” means a chemical

storage facility source water protection

(CSFSWP) program established under Section

702.

Establishment of

state programs

§1472(a). No later than 2 years after

enactment, EPA, or each state exercising

primary enforcement for public water systems,

shall carry out, directly or through delegation,

a CSTSWP program for protection of public

water systems from a release of a chemical

from a covered chemical storage tank.

§702(a). No later than one year after

enactment, EPA, or each state exercising

primary enforcement responsibility for issuing

CWA discharge permits, shall carry out directly

or through delegation, a CSFSWP program for

the protection of navigable water designated

for use as a domestic water source under

CWA Section 303 from a release from a

covered chemical storage facility.

Program

requirements

§1472(b)(1). A state program must provide for

oversight and inspection of each covered

storage tank in accordance with specified

requirements to prevent release of chemical

into surface water supplies of public water

systems, including a covered tank located in a

source water area identified under SDWA

Section 1453.

§702(b)(1). A state program must provide for

oversight and inspection of each covered

storage facility in accordance with specified

requirements to prevent the release of

chemicals into a navigable water designated for

use as a domestic water source under CWA

Section 303.

Required

program

elements

§1472(b)(2). Minimum program requirements

must include

§702(b)(2). Minimum program requirements

(1) Requirements for “covered chemical

storage tanks” including appropriate standards

for design, construction, and maintenance, 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

potentially impacted water systems, and other

entities required by EPCRA;b training and safety

plan; tank integrity inspections consistent with

appropriate standards; corrosion protection;

and financial responsibility requirements.

(1) Generally similar requirements for “covered

chemical storage facilities” excluding text in

italics.

Congressional Research Service

[The Senate bill identifies more options for

demonstrating financial responsibility.]

13

S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

Provision

High hazard

tanks

S. 1961, as reported

H.R. 4024

Requirements for tanks also must include

notice to EPA and appropriate state agency of

(a) existing information on the potential toxicity

of stored chemicals that EPA or the state

determines is relevant to evaluate the risk of harm

to water systems, and (b) safeguards to detect

or mitigate effects of a release.

Similar provision, expect notice must also be

given to applicable public water systems on

navigable water designated for use as a

domestic water supply. [Under S. 1961, states

or EPA must make information available to

public water systems, on request. See entry

below on “Information sharing.”]

(2) Inspections of covered chemical storage

tanks required as follows:

(2) Inspections of aboveground storage tanks at

covered facilities required as follows:

•

high hazard tanks, annually by a certified

inspector for the owner or operator;

•

no similar provision;

•

•

covered tanks in SDWA source water

assessment areas, at least every three

years by EPA or the state;

covered facilities identified in SDWA

source water assessment areas, at least

every three years;

•

•

other covered storage tanks, at least

every five years.

other covered chemical storage facilities,

at least every five years.

(3) A comprehensive inventory of covered

facilities in the state.

(3) Same provision.

§1472(b)(3). By two years after enactment,

EPA or the state, as applicable, must develop a

list of covered tanks that, in the event of a

release, would pose the greatest risk of harm

to public water systems and risk to public

health.

No similar provision.

[As noted above, owners or operators must

have these tanks inspected annually.]

Existing

standards

§1472(c). In setting mandatory program

requirements, EPA or a state may, by

reference, include (1) appropriate

requirements under state or federal law and

regulations, and (2) consensus standards.

No similar provision.

Enforcement,

implementation,

and penalties

§1472(d). For purposes of primary

enforcement responsibility, a program and any

requirements under Part G [added by this bill]

shall be

No similar provision.

(1) considered part of the national primary

drinking water regulations established under

SDWA Section1412; and

(2) implemented and enforced in accordance

with SDWA. [This includes, for example,

Section 1413 (state primary enforcement and

program administration requirements), Section

1414 (EPA enforcement in primacy and

nonprimacy states), Section 1449 (citizen civil

suits), and Section 1450 (EPA regulatory

authority).]

Congressional Research Service

The Clean Water Also includes general

regulatory authority for EPA.

14

S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

Provision

S. 1961, as reported

H.R. 4024

Civil penalties

In addition to Section 1472(d) requirements,

Section 2(c) contains conforming amendments

to SDWA Section 1414 (EPA enforcement),

including Section 1414(b).

§707. Any person owning or operating a

covered facility who violates any applicable

requirements or refuses to comply with an

order issued by EPA or the state under this

title may, in an action brought in the

appropriate U.S. district court, be subject to a

civil penalty not to exceed $15,000 for each

day the violation occurs.

[Existing SDWA Section 1414(b) authorizes

EPA to bring a civil action in the appropriate

U.S. district court to require compliance with

any applicable SDWA requirement or an

order. Civil penalties may not exceed $25,000

for each day the violation occurs.

(See also civil penalty provisions in SDWA

Sections 1414(g) and 1445(g).)]

Administration

§1472(e). A state program shall be carried out

by

•

states that have primary

enforcement responsibility for

public water systems (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

CSTSWP program.

§702(c). A state program shall be carried out by

states that have primary enforcement

responsibility for issuing CWA discharge

permits, or otherwise, by EPA.

Notification

to EPA

§1472(f). A state must notify EPA not later

than two years after enactment, if the state

has SDWA primacy but refrains from

establishing a CSTSWP program.

No similar provision.

Effect on

primacy for

other

programs

§1472(g). The bill clarifies that a state’s

decision not to implement a CSTSWP

program shall not affect primacy for other

SDWA programs.

No similar provision.

EPA guidance

and technical

assistance

§1472(h). EPA is required to issue guidance

and provide other technical assistance to

states.

§702(e). Upon the request of a state, EPA may

provide technical assistance.

Corrective

action orders

§1473. EPA or the primacy state, as applicable,

may issue an order to an owner or operator

of a covered tank to carry out the

requirements of this title.

Section 703(a) includes the same provision,

except refers to an owner or operator of a

facility, rather than a tank.

Cost recovery

§1474. An owner or operator of a covered

chemical storage facility shall be liable for

response costs if EPA or the primacy state

incurs costs for undertaking a response action

relating to the release of a chemical.

Section 704 includes a similar provision.

Congressional Research Service

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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

Provision

Facility transfers

S. 1961, as reported

§1475(a). Transfer of a covered tank is

prohibited unless, prior to closing or

completing the transfer,

(1) The transferor must submit to the

transferee the results of pre-transfer

inspection. The inspection must meet

requirements set by EPA or a state with

primary enforcement responsibility.

H.R. 4024

Section 705 includes similar provisions, except

that

(1) this provision addresses the transfer of a

“facility” rather than a “tank”; and

(2) measures to address the results of the

inspection must be taken within 30 days after

the facility is closed or transferred.

(2) One of the parties must agree to take

measures to address the results of the

inspection within 1 year after the tank is

closed or transferred.

§1475(b). Qualifying inspections must be

carried out within 1 year before the tank is

transferred and must satisfy pre-transfer

inspection requirement.

No similar provisions.

§1475(c). An inspection by a qualified engineer

satisfies the requirement.

§1475(d). The deadline for the next inspection

of such tanks would be calculated from the

date of the pre-transfer inspection.

§1475(e). EPA or a state may extend the time

period of the design and construction of the

required appropriate measures cannot be

completed during the allowed time period.

Information

sharing: public

water systems

§1476(a). EPA or the state, as applicable, must

provide public water systems, on request,

information maintained by EPA or the state (in

accordance with Section 1472(b)(2)) relating

to

Section 706(a) includes some similar provisions.

EPA or the state, as applicable, must provide

operators of water systems on navigable water

designated for use as a domestic water source

with information relating to

(1) emergency response plans for covered

tanks located in the same watershed as the

water system;

(1) emergency response plans for covered

facilities in the same watershed (as required

under Section 702(b)(2)(A)); and

(2) an inventory of each chemical held at the

covered chemical storage tanks;

(2) an inventory of each chemical held at the

facility.

(3) 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

(3) - (4) No similar provisions. However, under

Section 702(b), facilities must provide similar

information to water public water system

operators.

(4) safeguards that can be taken to detect,

mitigate, or otherwise limit impacts of a

release of stored chemicals.

Emergency

response plans

§1476(b). If the state exercises primary

enforcement responsibility, the response plans

must be provided to EPA and the Department

of Homeland Security (DHS).

§706(b). Same provision.

If EPA administers the program, EPA must

provide a copy to the state and DHS.

No similar provision.

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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

Provision

S. 1961, as reported

Consistency

§1476(b)(2). Emergency response plans should,

to the extent possible, be integrated with

applicable area contingency plans (ACPs)

under Clean Water Act Section 311(j)(4); 33

U.S.C.1321(j)(4).

H.R. 4024

No similar provision.

[This CWA provision, implemented through

the National Oil and Hazardous Substances

Pollution Contingency Plan (NCP), requires

Area Committees to prepare ACPs to support

Regional Response Teams in preparing for

responses to discharges of oil or hazardous

substances to U.S. waters.d]

Information

sharing:

confidentiality

§1476(c). Requires EPA or the state, as

applicable, to keep confidential information

that EPA or the state deems to be sensitive or

to present a security risk to a facility.

However, confidentiality shall not apply to (1)

public health information, or (2) information

required to be disclosed under EPCRA or

other requirement under any law (including

regulations), or prevent information sharing

with EPA, DHS, a public water system, or

public agency involved in emergency response.

§706(c). EPA or the state, as applicable, may

keep confidential information that EPA or the

state deems to be sensitive or to present a

security risk to a facility. However,

confidentiality shall not apply to public health

information or prevent information sharing

with EPA, DHS, a public water system, or

public agency involved in emergency response.

Best practices

survey and

report

No similar provision.

§702(f). EPA, within 18 months of enactment,

shall prepare a report that surveys state

oversight and inspection programs provided for

herein and implementing regulations in each

state. EPA must provide the report to

committees of jurisdiction and states, and post

the report on the EPA website.

Emergency

powers:

petitions

§2(b). Owners or operators of public water

systems are authorized to

Section 703(b) includes the same provisions.

(1) commence a civil action for equitable relief,

including restraining orders or permanent or

temporary injunctions, to address any activities

or facilities that may present an imminent and

substantial endangerment to the health of

persons served by the water system; or

(2) petition EPA or the state to issue an order

or commence a civil action.

Within 30 days of receiving a petition, EPA

must respond and initiate such action as the

Administrator deems appropriate.

If the petition is in response to an emergency,

EPA must respond within 72 hours.

[Amends SDWA Section 1431.]

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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

Provision

S. 1961, as reported

H.R. 4024

Right to adopt

more stringent

requirements

§2(c). Existing authority in SDWA Section

1414(e) provides that nothing in this title (i.e.,

SDWA) shall diminish the authority of a state

or political subdivision to adopt or enforce any

law or regulation respecting drinking water

regulations or public water systems.

§702(d). Nothing in this title shall preclude or

deny the right of any state, political subdivision,

or interstate agency to adopt or enforce

standards for oversight and inspection of

covered facilities that are more stringent than

the minimum requirements in this section.

Section 2(c)(1) amends Section 1414(e)

specifically to add laws and regulations

governing chemical storage tanks.

EPA

enforcement:

conforming

amendments

Section 2(c)(1) amends SDWA Section

1414(a), (b), (e), (f) and (g), Enforcement of

Drinking Water Regulations, to add after

“public water system” and after “public water

systems” each place they appear in specified

subsections “or a covered chemical storage

tank.”

No similar provision.

Section 2(c)(2) amends Section 1414(i) to

include Part G in the definition of “applicable

requirement” and to add the term “covered

chemical storage tank.”

Source: Prepared by the Congressional Research Service.

a.

The Emergency Planning and Community Right-to-Know Act (EPCRA) of 1986 establishes various planning

and reporting requirements applicable to facilities at which certain hazardous chemicals or extremely

hazardous substances are present above specific threshold quantities. For purposes of EPCRA, “hazardous

chemicals” are the body of chemicals that meet the regulatory criteria promulgated by the Occupational

Safety and Health Administration in 29 C.F.R. Section 1910.1200(c), and extremely hazardous substances

are a separate body of specific chemicals designated in regulation promulgated by EPA in 40 C.F.R. Part 355,

Appendix A and Appendix B. EPA is responsible for designating threshold quantities under EPCRA for both

hazardous chemicals and extremely hazardous substances.

b.

Clean Water Act, Section 311(j)(1) [33 U.S.C. 1321(j)(1)], directs the President to promulgate spill

prevention, containment, and removal regulations for discharges of oil and hazardous substances to surface

waters. An executive order delegated this authority to EPA, which issued oil Spill Prevention, Control, and

Countermeasure (SPCC) regulations in 1973. EPA has not issued analogous regulations that apply to

hazardous substances. In addition, Section 311(j)(5) directs the President to issue regulations requiring tank

vessel and facility owners or operators to prepare and submit detailed response plans for responding to

worst-case discharges of oil or a hazardous substance. Facilities subject to regulations include onshore

facilities that, because of their location, could “cause substantial harm to the environment by discharging

into or on the navigable waters, adjoining shorelines, or the exclusive economic zone.” Another executive

order delegated this authority to EPA, which promulgated Facility Response Plan regulations for nontransportation onshore oil facilities in 1994. EPA has not issued similar regulations for facilities storing

hazardous substances. Although both of these CWA sections direct the President to issue rules that

address hazardous substances, if EPA had issued such regulations, they would apply only to materials defined

as hazardous substances, which currently do not include MCHM.

c.

The Emergency Planning and Community Right-to-Know Act (EPCRA) of 1986 requires the owner or

operator of a facility to notify state and local emergency response officials (and local fire departments) of

certain hazardous chemicals present at the facility above specific quantities. EPCRA also requires notification

of state and local emergency response officials in the event of a release from the facility of certain

designated chemicals above specific quantities.

d.

For further discussion, see CRS Report R43251, Oil and Chemical Spills: Federal Emergency Response

Framework, by (name redacted) and (name redacted).

Congressional Research Service

18

S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill

Author Contact Information

(name redacted)

Specialist in Resources and Environmental Policy

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

(name redacted)

Specialist in Environmental Policy

[redacted]@crs.loc.gov, 7-....

19

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