S. 1961 and H.R. 4024: Legislative Responses
to a Chemical Storage Facility Spill
Claudia Copeland
Specialist in Resources and Environmental Policy
Mary Tiemann
Specialist in Environmental Policy
March 26, 2014
Congressional Research Service
7-5700
www.crs.gov
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 the chemical 4-methylcyclohexanemethanol
(MCHM), mixed with a small amount of glycol ethers, leaked from a 46,000-gallon aboveground
storage tank at a chemical storage facility owned by Freedom Industries located 1.5 miles
upstream from the intake pipes of a water treatment facility serving the area of Charleston, WV.
A significant amount of the chemical entered the river and reached the public water system,
prompting state and federal emergency declarations and causing the local water utility to issue a
“do not use” order to more than 300,000 commercial and residential customers and others in nine
counties of West Virginia.
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 these two bills. The bills have a number of core elements and
provisions in common—both would direct states to establish a chemical storage facility leak
prevention and response program for facilities 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 the Environmental Protection Agency or states with primary enforcement
responsibility for public water systems (S. 1961) or primary authority to issue CWA discharge
permits (H.R. 4024) to carry out a “chemical storage facility source water protection program”
within one year of enactment. Both bills include identical minimum state program requirements:
(1) an inventory of chemical facilities; (2) regular facility inspections; and (3) requirements for
covered facilities (including construction standards, leak detection, emergency response and
communication plans, employee training, and tank inspections, among other requirements). Both
bills would authorize EPA or a state to issue corrective action orders to enforce the requirements
of the legislation. Among other shared provisions, the bills would require pre-transfer inspections
of facilities, and would require a state or EPA to provide public water systems with information
about facility emergency response plans and chemicals stored at a facility. S. 1961 subjects
administration and enforcement of the bill’s provisions to various existing SDWA authorities.
Only H.R. 4024 defines the terms “chemical” and “aboveground storage tank”; however, both
bills would give the states or EPA broad discretion in determining the scope of covered facilities.
Both bills contemplate creating state programs to provide for oversight and inspection of covered
chemical storage facilities, and they do not explicitly direct the federal government to act in the
event a state with primary water program enforcement authority does not establish a program.
Nor do the bills provide financial resources to assist states. The pending legislation generally
presents one approach among an array of possible approaches that have received some discussion.
Some Members of Congress and other 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 facilities
within their borders.
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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 .......................................................................................... 5
Conclusion ....................................................................................................................................... 8
Tables
Table A-1. Comparison of S. 1961 and H.R. 4024 ........................................................................ 10
Appendixes
Appendix. Comparison of S. 1961 and H.R. 4024 ........................................................................ 10
Contacts
Author Contact Information........................................................................................................... 14
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. For example, federal
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 Francis X. McCarthy.
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 David M. Bearden and Jonathan L. Ramseur.
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
defined as hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA,
(continued...)
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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill
requirements for prevention and preparedness for releases from aboveground
tanks apply to tanks containing oil, but do not apply to hazardous substances or
tanks containing non-hazardous substances or chemicals such as those at the
Freedom Industries facility.5 There is 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.6
• 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.
(...continued)
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 underground storage tanks comprise Subtitle I of the Solid Waste Disposal Act,
also called the Resource Conservation and Recovery Act. 42 U.S.C. §§6991-6991m.
5 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 non-
transportation 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 Jonathan L. Ramseur.
6 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 David M. Bearden.
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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill
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 these
two bills. The bills have a number of core elements and provisions in common—both would
create a new chemical 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
S. 1961 would add to the SDWA a new part G, requiring the Environmental Protection Agency
(EPA) or states with primary enforcement authority for public water systems to carry out state
programs to protect surface water from contamination by chemical storage facilities.7 Selected
provisions are outlined below.
• Chemical storage facilities covered under S. 1961 would include any facility
where a chemical is stored and that EPA or a state determines a release of the
chemical would pose “a risk of harm to a public water system.”
• By one year after enactment, EPA, or a state with primary responsibility for
public water systems,8 would be required to carry out (directly or through
delegation) a chemical storage facility source water protection program
(CSFSWP).
• S. 1961 would require a state program to provide for oversight and inspection of
each covered facility to prevent the release of chemicals into the water supply in
watersheds with public water systems that rely on surface water, including
covered facilities located in source water areas identified in state source water
assessments conducted under SDWA Section 1453.9
• State programs must contain the following minimum requirements:
• Covered facility requirements including design, construction, and
maintenance standards; leak detection; spill and overfill control; inventory
7 42 U.S.C. §300f et seq. The SDWA comprises Title XIV of the Public Health Services Act. Thus the term “title” in S.
1961 refers to the SDWA as a whole.
8 All states except Wyoming have been delegated primary enforcement and oversight responsibility (i.e., primacy) for
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 and also in most Indian lands and the District of
Columbia (defined as a state in SDWA).
9 SDWA Section 1453 (42 U.S.C. §300j-13), added by the 1996 SDWA amendments (P.L. 104-182), required 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.
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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill
control; an emergency response and communication plan; a training and
safety plan; facility integrity inspections; corrosion protection; notice to EPA,
state agency, and relevant water systems of the potential toxicity of stored
chemicals, and safeguards to detect or mitigate effects of a release; and
financial responsibility requirements.10
• Inspections of facilities (at least once every three years for facilities
identified in a source water assessment area, and every five years for other
facilities).
• Comprehensive inventory of covered facilities in the state.
• Public water system owners or operators would be authorized 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.
S. 1961 applies numerous SDWA provisions to the bill’s requirements (new SDWA part G). For
purposes of primary enforcement responsibility, the bill deems a state program and any
requirements in the bill to be part of the national primary drinking water regulations under SDWA
Section 1412. Further, S. 1961 (Section 1472(c)) would require the new provisions to be
implemented and enforced in accordance with SDWA Section 1413 (state primary enforcement
responsibility), Section 1414 (EPA enforcement and other requirements), and part E (including,
for example, EPA regulatory authorities and citizen suit provisions).11
The bill would require a state program created under proposed SDWA Section 1472 to be
administered by states with primary enforcement responsibility (primacy) for public water system
supervision (PWSS), and by EPA in non-primacy states.12 All states but Wyoming have PWSS
primacy; thus EPA would be required to implement a chemical facility program in Wyoming and
in most Indian lands and the District of Columbia (defined as a state in SDWA).
S. 1961 does not authorize funding to support state administration of the CSFSWP program, and
does not explicitly authorize EPA to administer a program in a primacy state, even if a program
did not exist or failed to meet the bill’s requirements.
Among other provisions, the Senate bill would authorize EPA or a state to issue corrective action
orders (§1473) and make facility owners or operators liable for costs incurred by EPA or a state
for response actions (§1474). The bill would prohibit the transfer of a facility unless an inspection
is conducted and any necessary measures are taken to address the inspection results (§1475). A
state or EPA would be required to provide to public water systems information on facility
emergency response plans and chemical inventories for covered facilities within the same
10 These state program requirements largely parallel many of the requirements for underground storage tanks under
Subtitle I of the Solid Waste Disposal Act, also called the Resource Conservation and Recovery Act. 42 U.S.C.
§§6991-6991m. Subtitle I includes additional regulatory provisions, such as a prohibition on the delivery of product to
ineligible tanks (e.g., tanks not in compliance with state or federal UST regulations). 42 U.S.C. §6991k.
11 SDWA Part E includes, among other provisions, Section 1450(a) [42 U.S.C. §300j-9(a)] which authorizes the EPA
Administrator “to prescribe such regulations as are necessary or appropriate to carry out his functions under this title.”
Section 1449, Citizen’s Civil Action, also occurs in Part E.
12 Proposed new SDWA Section 1472(d).
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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill
watershed as the water system, and primacy states would be required to submit emergency
response plans to EPA and the Department of Homeland Security (§1476).
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:
• Like S. 1961, it requires 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.
• Minimum requirements for a state program are the same as those in S. 1961,
except that the Senate bill would require inspection of covered facilities, while
the House bill calls for inspection of aboveground storage tanks at covered
facilities.
• EPA would be authorized to provide technical assistance to a state carrying out
the program (but EPA is not authorized to provide guidance, as in S. 1961).
Neither bill directs EPA to issue regulations13 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. Neither bill
explicitly authorizes EPA to carry out such a program if a state with primary
enforcement authority fails to do so.
• 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.
• As with 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 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.
• The bills include identical provisions regarding transfer of ownership of a
covered chemical storage facility.
13 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 precludes EPA from
issuing rules to implement the legislation.
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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill
• The bills also include identical provisions requiring a covered chemical storage
facility to prepare an emergency response plan and then to require EPA or a state
to provide copies of the plan to neighboring water system operators, EPA (if the
plan was submitted to a state), and the Secretary of Homeland Security.
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.
• Both bills allow a state to adopt or enforce standards regarding chemical storage
facilities 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 has no similar provision,
but specifies that the bill’s requirements are to be implemented in accordance
with SDWA Section 1414 (and certain other provisions). Section 1414(e)
provides that nothing in the SDWA diminishes the authority of a state or political
subdivision to adopt or enforce any law or regulation respecting drinking water
regulations or public water systems.
Despite many similarities between the bills—there are more similarities than differences—H.R.
4024 does contain several differences from the Senate bill.
• 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.”14 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.
14 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 Robert Meltz and Claudia Copeland.
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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill
• 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. As described above, S.
1961 would apply to states that have primary enforcement authority to implement
the SDWA under that bill; EPA would be authorized to implement programs in
Wyoming, the District of Columbia, and most Indian lands. 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
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.
• Third, while the bills contain similar definitions of the terms “covered chemical
storage facility” and “state program,” H.R. 4024 alone defines “aboveground
storage tank” and “chemical.” The former term is defined 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 does not exclude any facilities based on storage
capacity or distance from surface water; such determinations would be left to
each state or EPA. (The Senate bill would exclude facilities subject to spill
prevention, containment, and removal measures under CWA Section 311(j)(1),
which would exclude facilities storing oil.)
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,15 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.
• Fourth, H.R. 4024 directs EPA to survey and report on state programs and
regulations developed to implement the requirements of the legislation.
• Fifth, 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.16
15 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).
16 Pursuant to the Debt Collection Improvement Act of 1996, EPA periodically adjusts the maximum civil monetary
penalties that can be imposed under the CWA and other statutes that it administers to account for inflation. Currently,
the maximum inflation-adjusted civil penalty under CWA Section 309(d) is $37,500 per day for each violation. 40
(continued...)
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Conclusion
The spill from chemical storage tanks in West Virginia has generated considerable debate over the
current state of regulation of such facilities, both at the federal and state level. As Congress
considers possible legislation in response, multiple approaches may emerge. As noted above, the
proposed facility requirements for state chemical facility programs broadly parallel federal
requirements for underground storage tanks (USTs) in Subtitle I of the Solid Waste Disposal Act
(SWDA).17 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; moreover, the UST requirements under Subtitle I apply only to petroleum
and hazardous substances, and do not address tanks storing MCHM or other chemicals not
classified as hazardous. 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.
Both of the bills discussed in this report contemplate creating state programs to provide for
oversight and inspection of covered chemical storage facilities, and they do not explicitly give the
federal government authority to carry out a program in the event a state does not establish a
program (other than in states that do not have primary SDWA or CWA enforcement authority).
Further, neither bill provides 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, are likely to be a challenge for resource-limited states
without supplemental funding or shifting funds from other activities.
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 is expected to be large, the bills give states considerable flexibility to determine
which of those might be “covered facilities” under a state program.
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.18 Further,
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.19
(...continued)
C.F.R. part 19.
17 Underground Storage Tank provisions are located in Subtitle I of the Solid Waste Disposal Act, also known as the
Resource Conservation and Recovery Act (42 U.S.C. §§6991-6991m).
18 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.
19 For example, in response to the Elk River chemical spill, the West Virginia legislature approved a bill (S.B. 373) in
March to establish new aboveground storage tank requirements, including regular inspections and stricter permitting,
(continued...)
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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.
(...continued)
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
H.R. 4024
Title
Chemical Safety and Drinking Water
Ensuring Access to Clean Water Act of 2014
Protection Act of 2014
Statute to be
Safe Drinking Water Act (SDWA)
Federal Water Pollution Control Act
amended
42 U.S.C. §300f et. seq.
(hereinafter referred to as the Clean Water
Act (CWA); 33 U.S.C. §1251 et. seq.
Section 2 adds SDWA Part G (Sections 1471-
1476)—Protection of Surface Water from
Section 2 adds CWA Title VII—Protection of
Contamination by Chemical Storage Facilities
Navigable Water from Contamination by
Chemical Storage Facilities
Definition:
No similar provision.
New Section 701(1). Defines “aboveground
Aboveground
storage tank” to mean any container or set of
storage tank
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
•
tanks of 1,100 gal ons or less capacity
except tanks greater than 500 gal ons
capacity within 500 feet of a navigable
water designated for use as a domestic
water supply
•
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)
Definition:
No similar provision.
Section 701(3). Defines “chemical” to mean any
Chemical
substance or mixture of substances.
Definition:
New Section 1471(1). A facility at which a
Section 701(3). A facility at which a chemical is
Covered
chemical is stored and EPA or a state
stored and EPA or state determines that a
chemical storage determines a release of the chemical would
release poses a risk of harm to a navigable
facility
pose “a risk of harm to a public water
water designated for use as a domestic water
system.”
supply under CWA Section 303.
Excludes facilities subject to Spill Prevention,
Same provision.
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 substancesa]
Consideration: in determining risk of harm,
Same provision.
EPA or state may consider requirements of
applicable federal or state laws and regulations.
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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill
Provision
S. 1961
H.R. 4024
Definition: State
Section 1471(2). “State program” means a
Section 701(4). “State program” means a
program
chemical storage facility source water
CSFSWP program established under Section
protection (CSFSWP) program established
702.
under Section 1472.
Establishment of
Section 1472(a). No later than 1 year after
Section 702(a). No later than 1 year after
state programs
enactment, EPA, or each state exercising
enactment, EPA, or each state exercising
primary enforcement for public water systems, primary enforcement responsibility for issuing
shall carry out, directly or through delegation,
CWA discharge permits, shall carry out directly
a CSFSWP program for protection of public
or through delegation, a CSFSWP program for
water systems from a release of a chemical
the protection of navigable water designated
from a covered chemical storage facility.
for use as a domestic water source under
CWA Section 303 from a release from a
covered chemical storage facility.
Program
Section 1472(b)(1). A state program must
Section 702(b)(1). A state program must
requirements
provide for oversight and inspection of each
provide for oversight and inspection of each
storage facility in accordance with specified
covered storage facility in accordance with
requirements to prevent release of chemical
specified requirements to prevent the release
into the water supply in watersheds with
of chemicals into a navigable water designated
public water systems that rely on surface
for use as a domestic water source under
water, including a covered facility located in a
CWA Section 303.
source water areas identified under SDWA
Section 1453.
Required
Section 1472(b)(2). Minimum program
Section 702(b)(2). Same provisions, except
program
requirements include (1) requirements for
state programs must require inspections of
elements
covered storage facilities including design,
aboveground storage tanks at covered facilities.
construction, and maintenance standards, leak
detection, spill and overfil control, inventory
control; emergency response and
communication plan; training and safety plan;
facility integrity inspections; corrosion
protection; notice to EPA, state agency, and
applicable public water systems of potential
toxicity of stored chemicals, and safeguards to
detect or mitigate effects of a release; and
financial responsibility requirements; (2)
requirements for inspections of covered
facilities (at least every 3 years for facilities
identified in SDWA source water assessment
areas, and every 5 years for other facilities);
and (3) a comprehensive inventory of covered
facilities in the state.
Administration
Section 1472(d). A state program shal be
Section 702(c). A state program shal be carried
carried out by states that have primary
out by states that have primary enforcement
enforcement responsibility for public water
responsibility for issuing CWA discharge
systems, or otherwise, by EPA.
permits, or otherwise, by EPA.
Right to adopt
Existing authority in Section 1414(e) provides
Section 702(d). Nothing in this title shal
more stringent
that nothing in this title (i.e., SDWA) shall
preclude or deny the right of any state, political
requirements
diminish the authority of a state or political
subdivision, or interstate agency to adopt or
subdivision to adopt or enforce any law or
enforce standards for oversight and inspection
regulation respecting drinking water
of covered facilities that are more stringent
regulations or public water systems.
than the minimum requirements in this section.
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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill
Provision
S. 1961
H.R. 4024
Technical
Section 1472(e). EPA is authorized to issue
Section 702(e). Upon the request of a state,
assistance
guidance or provide other technical assistance
EPA may provide technical assistance.
to state programs.
[EPA has similar authority under SDWA part
E, General Provisions, referenced in Section
1472(c).]
Best practices
No similar provision.
Section 702(f). EPA, within 18 months of
survey and
enactment, shall prepare a report that surveys
report
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
Section 1473. EPA or the primacy state, as
Section 703(a) includes the same provision.
powers:
applicable, shall issue an order to an owner or
Corrective
operator of a covered facility to carry out the
action orders
requirements of this title.
Emergency
Section 2(b) amends SDWA Section 1431,
powers:
emergency powers.
Petitions
Owners or operators of public water systems
Section 703(b) includes the same provisions.
are authorized to
(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.
State primacy;
Section 1472(c). For purposes of primary
Section 707. Any person owning or operating a
enforcement,
enforcement responsibility, a state program
covered facility who violates any applicable
penalties, and
and any requirements under this bill (new
requirements or refuses to comply with an
general
SDWA Part G) shall be
order issued by EPA or the state under this
authorities
(1) considered part of the national primary
title may, in an action brought in the
drinking water regulations established under
appropriate U.S. District Court, be subject to a
SDWA Section1412; and
civil penalty not to exceed $15,000 for each
(2) implemented and enforced in accordance
day the violation occurs.
with Section 1413 (state enforcement),
Section 1414 (EPA enforcement) and part E
(general provisions, e.g., EPA rulemaking
authority, technical assistance, and citizen suits
provisions).
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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill
Provision
S. 1961
H.R. 4024
EPA
Section 2(c)(1) amends SDWA Section 1414,
No similar provision.
enforcement:
Enforcement of Drinking Water Regulations,
conforming
to add after “public water system” and after
amendments
“public water systems” each place they appear
in specified subsections “or a covered
chemical storage facility.”
Section 2(c)(2) amends under Section 1414(i)
to include part G in the definition of
“applicable requirement” and to add the term
“covered chemical storage facility.”
Cost recovery
Section 1474. An owner or operator of a
Section 704 includes the same provision.
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.
Facility transfers
Section 1475. Transfer of a covered facility is
Section 705 includes the same provisions.
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.
(2) One of the parties must agree to take
measures to address the results of the
inspection within 30 days after the facility is
closed or transferred.
Information
Section 1476. EPA or the state, as applicable,
Section 706 includes the same provisions.
sharing
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 facilities (required under Section
702(b)(2)(A)), and (2) an inventory of each
chemical held at the facility.
If the state exercises primary enforcement
responsibility, the response plans must be
provided to EPA and the Department of
Homeland Security (DHS).
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.
Source: Prepared by the Congressional Research Service.
a. 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
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S. 1961 and H.R. 4024: Legislative Responses to a Chemical Storage Facility Spill
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 non-
transportation 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.
Author Contact Information
Claudia Copeland
Mary Tiemann
Specialist in Resources and Environmental Policy
Specialist in Environmental Policy
ccopeland@crs.loc.gov, 7-7227
mtiemann@crs.loc.gov, 7-5937
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