Publication / Inside EPA
February 4, 2014
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Senate Plans Quick Action On Spill Bill But House Plans Are Uncertain

The Senate environment committee is poised this week to approve legislation creating a new EPA drinking water program to fill gaps highlighted by the recent chemical spill in West Virginia, but House action is uncertain as lawmakers have not yet offered a companion bill and Speaker John Boehner (R-OH) opposes new rules to address the issue.

Sen. Joe Manchin (D-LA), one of the sponsors of S. 1961, told Inside EPA Feb. 4 that he plans to meet with Boehner in the coming days to convince him of the need for the legislation. Manchin said he is hoping that when Boehner and other House Republicans find out that above ground storage tanks like those that leaked in his home state are not regulated in the same way as below-ground tanks are, it will convince them of the need for the legislation.

“I just think an awful lot of people in Congress just assume these things are being checked on. But I guess they just weren’t a high enough level of toxicity to be checked on and everyone took it for granted,” Machin told Inside EPA. “I think just the facts might help,” he said.

He added that he hopes a strong Senate vote for the bill will also put pressure on House lawmakers. “If we can get broad support here [in the Senate] it might help there too,” he said.

Manchin is seeking passage of S. 1961, a bill he is co-sponsoring with Senate environment committee Chairman Barbara Boxer (D-CA) and Sens. Jay Rockefeller (D-WV) and Richard Durbin (D-IL).

The legislation is intended to respond to the release of 7,500 gallons of coal-cleaning chemical 4-methylcyclohexane methanol (MCHM) and another substance, a mixture of glycol ethers known as PPH, from an above-ground tank run by Freedom Industries into West Virginia’s Elk River, upstream from Charleston’s water utility. The spill — from a facility that had not been inspected since 1991 — contaminated the city’s potable water supply for days, leaving business and residences reliant on bottled water.

To address this, the bill would create a new Safe Drinking Water Act (SDWA) program allowing states to regulate chemical facilities, identify facilities that already present a risk to drinking water and set minimum EPA standards for the state programs governing construction, emergency leak detection and emergency response.

A fact sheet on the legislation says that facilities identified in drinking water protection plans should be inspected every three years and others every five years. In addition, the bill would allow states to recoup costs incurred from responding to any emergency.

But Boehner has said he does not believe new authorities are needed to address the issue. “We have enough regulations on the books. And what the administration ought to be doing is actually doing their jobs,” he said Jan. 14.

Given the unlikelihood of House action, some environmentalists have called on EPA to address the issue using existing authorities, such as under the Clean Water Act (CWA), where EPA has authority to establish a spill prevention program for hazardous substances similar to the agency’s program for oil spills.

Sen. Ben Cardin (D-MD), the chairman of the Senate environment committee’s water and wildlife subcommittee, reiterated that point during a Feb. 4 hearing on the bill but Boxer said that while EPA does have CWA authority to deal with this, “it’s very loosey goosey.”

Strong Support

During the hearing, the bill drew strong support from Democrats — and a willingness from most Republicans to consider the legislation. “It deals with fundamental problems we have with inspection and safety, it deals with prevention and adequate knowledge and it allows for contingency plans to be available,” Cardin told Inside EPA. “It provides the right balance to make sure there are minimal federal standards on dealing with the risk to a water system and having plans available to keep people safe but also respects local governments to do what they think is necessary to protect people from harm.”

Rep. John Boozman (R-AR), the subcommittee’s ranking Republican, did not endorse the bill, though he said there could be a need for new legislative authorities. “We’ve got some protections in place but there are certainly some protections we need in the future,” he said.

But Boozman did call for policymakers to ensure that any new information on chemical storage facilities is kept confidential to prevent it from being targeted in a terrorist attack. “How we would go about keeping information confidential and making it part of the solution. [There is] no answer to that,” he said.

Even Rep. Shelley Moore Capito (R-WV), who is running to replace Rockefeller, told the hearing that she is willing to continue to examine federal measures. “I support state level efforts but I think we need to continue to examine changes that we talked about on the federal level– we’ve got to get to the bottom of this,” she said.

And Sen. David Vitter (R-LA), the committee’s ranking Republican, said he was grateful to Boxer for allowing a markup on the proposed legislation, though he also called for her to allow markups of other bipartisan legislation, such as his pending bill reforming the Toxic Substances Control Act

He said his bill, S. 1009, would address some concerns highlighted by the West Virginia spill, but Boxerrejected his claim, saying the chemical at issue would be classified under Vitter’s bill as a “low priority” substance and would not likely be quickly assessed or regulated.

Not all those who spoke at the hearing supported the bill. Richard Faulk, a partner at Hollingsworth, LLP, where he litigates complex environmental issues, expressed concerns echoed by industry that federal legislation is not needed.

In his statement he told the committee that he does not believe there is a need for immediate federal legislation and that state and local authorities should have “sufficient information” to examine the situation and determine any new measures necessary to prevent future incidents.

Citing legislation that West Virginia’s state senate recently passed to address the spill, he said, “A ‘top down’ system of solutions mandated hastily by federal authorities may displace a protective system of state and local laws, regulations or voluntary industry practices in some jurisdictions.”

“If state authorities prove themselves adequate to this task, federal intervention may be unnecessary,” he said.

But Boxer vocally disagreed with Faulk’s concerns and further backed the proposed legislation. “Without getting into an argument about federalism, though I do agree with you that states have to have flexibility to move on this, I want to see first of all, if I can help [states] solve the problem,” she said.

Manchin told Inside EPA that the biggest concerns he’s heard from industry regard a fear of government “overreach” but that he believes that is not the case and that the senators’ intentions are to “get bipartisan support and finding that balance but also making sure safety is the first and foremost concern.” — Miranda Green