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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Specialist in Resources and Environmental Policy
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Specialist in Environmental Policy
August 12, 2014
Congressional Research Service
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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.
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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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