By Kathryn L. Oehlschlager and Christopher D. Jensen
Like many industrial accidents before it—think Three Mile Island or the Exxon Valdez, it appears the West Virginia chemical spill that interrupted drinking water supplies to 300,000 Charleston area residents in January 2014 prompted a swift and potentially far reaching legislative and regulatory response. State and federal legislators scrambled to respond to the public perception that a lack of regulatory oversight contributed to the release of approximately 10,000 gallons of MCHM, or 4-methylcyclohexane methanol, from an above ground storage tank controlled by Freedom Industries into the Elk River, WV.
West Virginia Senators and Senator Barbara Boxer of California have proposed federal legislation that would amend the Safe Drinking Water Act to require all states to regulate “chemical storage facilities.” The bill is the Chemical Safety and Drinking Water Protection Act of 2014 (S. 1961), and it came on the heels of a similar bill introduced in the West Virginia state legislature.
The proposed law would direct states to develop regulations setting minimum construction standards and inspection requirements for any facility that stores chemicals on-site. In addition, facility operators would be required to: comply with requirements for leak detection and inventory and spill/overfill control; prepare emergency response and communications plans; notify the U.S. EPA, state officials, and public water system operators of the presence of chemicals at their facilities; comply with minimum inspection and life cycle maintenance requirements; and develop employee safety and training plans.
The proposed legislation also includes a provision that would allow states to recover costs incurred in responding to chemical spills from regulated facilities.
Proposed Legislation Leaves Questions Unanswered
While this legislation provides the broad outlines of potential state regulatory programs covering chemical storage facilities, it leaves many questions about the scope of those programs unanswered. The legislation covers any facility storing chemicals where a release of the chemical from the facility “poses a risk of harm to a public water system.” Details of which facilities will be covered by the regulation—based on, for example, the volume of chemicals stored—would be left to state or EPA rulemaking, as would the chemicals of concern that would be subject to regulation. This leaves open the door to a great deal of inconsistency among the states, and a corresponding headache for facility managers and environmental compliance officers.
Significantly, however, the proposed legislation exempts facilities that are currently regulated under Section 311(j)(1)(C) of the Federal Water Pollution Control Act from new regulations. This exemption appears to apply to petroleum storage tanks that are currently subject to Spill Prevention Control and Countermeasure (SPCC) regulations.
Recent Coal Facility Releases Raise New Concerns
If enacted, the Chemical Safety and Drinking Water Protection Act has the potential to impact a broad range of industrial facilities where non-hydrocarbon chemical storage tanks are located. The focus of the legislation may also expand in response to two recent coal product spills in North Carolina and West Virginia.
On February 2, a rupture in a storm water pipe resulted in the release of 50,000 to 82,000 tons of coal ash slurry from a storage lagoon in to the Dan River at a Duke Energy facility in Eden, NC. In the West Virginia incident, on February 11, approximately 108,000 gallons of coal slurry were released from Patriot Coal Corporation’s Kanawha Eagle Prep Plant near the town of Winifrede.
Senators Boxer and Manchin have expressed concern about these releases, but have not indicated whether they intend to amend their proposed legislation to specifically address coal slurry storage ponds. It is also unclear whether such amendments would be necessary, given the legislation’s broad definition of “chemical storage facility,” which could be interpreted to include facilities with coal ash slurry lagoons.
The bill was referred to the Water and Wildlife Subcommittee of the Senate Environment and Public Works Committee, which took testimony on the West Virginia accident on February 4. The Environment and Public Works Committee held another hearing on March 6, and has not yet scheduled a vote on the legislation.
Oehlschlager is a partner with Barg Coffin Lewis & Trapp, LLP in San Francisco, CA. Her practice focuses on environmental litigation and compliance counseling under both federal and state environmental statutes as well as land use, commercial, and other litigation matters.
Jensen, an associate with Barg Coffin Lewis & Trapp, LLP, focuses on environmental litigation, counseling clients regarding compliance with state and federal environmental laws and regulations, and advising clients in connection with mergers, acquisitions, and real estate transactions.