Publication / Inside EPA
March 6, 2014
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Facing State, GOP Concerns, Boxer Postpones Markup For Spill Legislation

Senate environment committee Chair Barbara Boxer (D-CA) has agreed to a GOP request to postpone a planned markup on legislation creating a new EPA program governing chemical releases from above-ground storage tanks, a delay that senators hope will allow them time to resolve concerns from states and others as they respond to the recent West Virginia chemical spill.

“I sincerely appreciate Senator Boxer agreeing with me yesterday to postpone a markup on this bill that had been tentatively discussed for next week so we can take the time to work together and make this a bipartisan effort we can hopefully move forward together and find successful compromise,” Sen. David Vitter (R-LA), the committee’s ranking member, told a March 6 hearing.

He said that delaying the markup until April would allow the committee to address “some serious substantive concerns” he has with the current language. While not specifying those concerns, Vitter said he is committed to trying to work through the issues.

Boxer responded that Democrats are working with Vitter on the bill, but intend to have a bill with or without his support. “We would love a bipartisan bill,” she said. “We’re not there yet, but we’re working on it”

The bill, S. 1961, sponsored by Boxer and Sens. Joe Manchin (D-WV), Jay Rockefeller (D-WV) and Dick Durbin (D-IL), proposes to give EPA new authority under the Safe Drinking Water Act (SDWA) to create a program for states to regulate above-ground chemical storage facilities.

The senators crafted the bill after the recent Charleston, WV spill that released chemicals from an above ground tank that had not been inspected in decades, contaminating the town’s water supply when it entered the Elk River upstream from the local drinking water utility’s intake.

The bill would require the agency to create “a chemical storage facility source water protection program to provide for the protection of public water systems from a release of chemicals from a covered chemical storage facility.” Under the bill, the agency would set programmatic requirements for delegated states, which would be required to conduct oversight and routine inspections of above-ground chemical storage facilities.

But the Senate measure has drawn opposition from state drinking water regulators, who say they do not have the resources or expertise to take on such a requirement. In a Feb. 7 blog post, the Association of State Drinking Water Administrators (ASDWA) says that it supports the overarching goals of the Senate bill — “better protection of sources of drinking water and closing of any regulatory loopholes in that regard — but does not believe the program envisioned in S. 1961 should be housed in the Safe Drinking Water Act nor carried out by state drinking water program personnel.”

A state source adds that there is a “point of unanimity that state drinking water programs do not have the capacity or the expertise to do the inspections” required under the bills. While those programs are adept at source water protection activities, the source says, a state’s waste or clean water office would be more comfortable with facility inspections.

ASDWA was said to be working with the Association of Clean Water Administrators, the Environmental Council of the States, the Association of State and Territorial Solid Waste Management Officials, and the Association of State and Territorial Health Officials to draft a letter relaying feedback and concerns to the sponsors of the Senate bill.

GOP Concerns

In addition to concerns from states, some GOP lawmakers and industry officials had also raised concerns that creating a new regulatory program could create unintended consequences. During a Feb. 4 hearing, Sen. John Boozman (R-AR) called for lawmakers to ensure that any new program adequately protected confidential business information.

At the same hearing, one industry lawyer questioned whether there is a need for immediate federal legislation because state and local authorities should have “sufficient information” to examine the situation and determine any new measures necessary to prevent future incidents. But Boozman said there could be a need for new legislative authorities though he did not explicitly endorse the bill.

Opposition from state drinking water officials to the Senate bill may be one reason why House lawmakers took a different approach when they crafted a measure to address the issue. Shortly after S. 1961 was introduced, Rep. Shelley Moore Capito (R-WV) introduced H.R. 4024, which seeks to create a similar program as the Senate bill under the Clean Water Act (CWA).

Some environmentalists have suggested that EPA could use its existing CWA authority to create a chemical spill response program that is similar to its oil spill response program, and avoid federal legislation altogether. But Boxer has said the agency’s current CWA authority is “loosey goosey.”

A water utility source says the Senate bill would govern facilities that pose a risk of harm to a public water system, whereas the House bill regulates facilities that pose a risk to “a navigable water that is designated for use as a domestic water supply.” Many believe that forcing drinking water officials to regulate storage tanks is at odds with their current mission. “The state drinking water regulators are not saying regulation is not appropriate, just that they are not the appropriate agency,” says the source.

However, the source says that “it may be a good argument from supporters of the [Senate] bill to say it is now time to expand their mission.” Additionally, the source expresses surprise that governors and state legislatures have not opposed the proposed Senate bill, adding that many state regulators are concerned federal legislation addressing chemical storage tanks would usurp their oversight, which many believe provides a more effective, less costly way to protect drinking water supplies. Similarly, if local citizens believe the new federal program is not in their best interest they won’t be able to modify it.

“A new federal program tacitly implies that states are not responsible enough to protect their own citizen’s drinking water supplies,” the source says.

West Virginia Bill

Meanwhile in West Virginia, state lawmakers are scrambling to create a state-level storage tank program before the legislative session ends March 7.

The proposed bill, SB 373, would amend the state’s Water Resources Protection and Management Act by requiring the adoption of a State Water Resources Management plan for public water systems as well as mandate frequent progress reports, and the development of a regulatory program that would provide guidelines to new and existing above ground storage tanks.

Environmentalists in the state are waiting on the outcome of the state bill before they will consider the impact of proposed federal legislation.

Before the state Senate dropped March 3 a key measure in the bill that would have mandated facilities to get specified rather than general permits if they were close to a drinking water intake, environmentalists saw the state legislation as a potential model for other states to prevent chemical leaks and create their own regulatory program.

However, an environmental source working in West Virginia said that funding that would be provided to the state through the Senate bill and SDWA would be a potential big help. — Miranda Green( & Dave Reynolds (