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January 27, 2014

Chemical Safety and Drinking Water Protection Act Introduced in the Senate

Bergeson & Campbell, P.C.

In direct response to the tragic and in many respects avoidable events that occurred in West Virginia earlier this month, on January 27, 2014, Senators Joe Manchin (D-WV), Barbara Boxer (D-CA), Chair of the Environment and Public Works Committee, and Jay Rockefeller (D-WV) introduced the Chemical Safety and Drinking Water Protection Act of 2014. The bill would amend the Safe Drinking Water Act (SDWA) by adding Part G — Protection of Surface Water from Contamination by Chemical Storage Facilities. The bill is intended to strengthen states’ ability to prevent chemical spills such as the January 9, 2014, spill into the Elk River that contaminated the water supply in West Virginia. A fact sheet regarding the bill is available online.

The bill’s key principles include:

  1. Requiring regular state inspections of above-ground chemical storage facilities;
  2. Requiring industry to meet standards for good design, construction, and maintenance of above-ground chemical storage facilities; supply information on storage facility inventory and stored chemicals; develop state-approved emergency response plans; and develop employee training and safety plans;
  3. Allowing states to recoup costs incurred from responding to emergencies; and
  4. Ensuring drinking water systems have the tools and information to respond to emergencies.

The bill would define “covered chemical storage facility” as a facility at which a chemical is stored and the U.S. Environmental Protection Agency (EPA) or state determines that the release of the chemical poses a risk of harm to a public water system. Under the bill, state programs would be required to include certain minimum requirements for covered chemical storage facilities, including acceptable standards of good design, construction, or maintenance; leak detection; spill and overflow control; inventory control; an emergency response and communication plan; an employee training and safety plan; an inspection of the integrity of each covered chemical storage facility; and lifecycle maintenance, including corrosion protection. Covered chemical storage facilities would be required to provide notice to EPA, the appropriate state agency, and applicable public water systems, of the potential toxicity of the stored chemicals; safeguards or other precautions that can be taken to detect, mitigate, or otherwise limit the adverse effects of a release of the stored chemicals; and financial responsibility requirements, including proof of insurance, bond, or other similar instrument.

The bill would require inspections of covered chemical storage facilities at least every three years for a covered chemical storage facility identified in a source water assessment area under SDWA Section 1453. Any other covered chemical storage facility would be inspected at least every five years. State programs would be required to create a comprehensive inventory of the covered chemical storage facilities.

The bill would give EPA or a state the authority to order the owner or operator of a covered chemical storage facility to carry out the requirements of the bill. The owner or operator of a covered facility would be liable for costs incurred by EPA or a state for undertaking a response action under the bill relating to the release of a chemical. The bill would prohibit owners or operators of covered facilities from transferring the facility unless, prior to closing or completion of the transfer, the owner or operator provides the results of a pretransfer inspection of the integrity of the covered chemical storage facility. The transferor or the transferee must agree to take appropriate measures to address the results of the pretransfer inspection within 30 days of the facility closing or being transferred.

Under the bill, EPA or the state “shall” provide public water systems with information relating to emergency response plans for covered facilities located within the same watershed as the public water system, and an inventory of each chemical held at the covered facility. Emergency response plans must be submitted to EPA and the Secretary of Homeland Security. The bill states that EPA or a state, as applicable, “may keep confidential information the Administrator or the State determines to be sensitive and present a security risk to a covered chemical storage facility.” Exceptions are provided, however, for public health information and for sharing of information with EPA, the Secretary of Homeland Security, a public water system, or a public agency involved in emergency response.

Under the bill, in any case in which EPA is authorized to act, the owner or operator of a public water system may bring a civil action for appropriate equitable relief, including a restraining order or permanent or temporary injunction, to address any activity or facility that may present an imminent and substantial endangerment to the health of persons who are supplied by that public water system or petition EPA to issue an order or bring a civil action. EPA must respond to such a petition within 30 days of receipt or within 72 hours in response to an emergency.