Policy fíriefing Senate Bill Aims to Prevent Chemical Contamination of Surface Water IHE CHEMICAL spill that ' recently occurred in West Virginia and interrupted water deliveries to approx- imately 300,000 of that state's residents has led to the introduc- tion of federal legislation aimed at pre- venting the recurrence of such events. Although improved protection of sur- face water enjoys broad support, ques- tions have arisen as to who should over- see and fijnd the additional regulatory efforts called for in the bill. On January 9 it was discovered that thousands of gallons of chemicals used in coal processing had leaked from storage facilities at a tank farm located along the Elk River in Charleston, West Virginia. The chemicals entered the waterway ap- proximately 1.5 mi upstream of a pub- lic water supply intake, forcing officials to recommend that residents of a nine- county area in and around Charleston not use their drinking water. Lasting for more than a week, this situation caused considerable concern about health ef- fects and spurred calls for regulatory protections. On January 27 Senator Joe Man- chin (D-West Virginia) introduced the Chemical Safety and Drinking Water Protection Act of 2014 (S. 1961), leg- islation that aims to protect surface wa- ter from contamination from chemical storage facilities. The bill would revise the Safe Drinking Water Act to estab- lish state programs for overseeing and inspecting chemical storage facilities that are deemed to pose a risk to pub- lic water sources. Within one year of en- actment of the legislation, states would have to set requirements for chemical storage facilities covered by the new programs. These requirements would address such topics as "acceptable stan- dards of good design, construction, or maintenance," along with leak detec- tion, spill and overfill control, inventory control, inspections of facility integrity. and life-cycle maintenance, according to the legislation. Additional requirements would per- tain to emergency response and commu- nication plans, employee training and safety plans, and the financial responsi- bility of the owners of chemical storage facilities. States would share with drink- ing water providers the emergency re- sponse plans for chemical storage facili- ties located within the same watershed, along with an inventory of each chemi- cal stored at each facility. Under S. 1961 states also would im- pose minimum inspection requirements for chemical storage facilities covered by the new program. In particular, fa- cilities regarded by states as potential contamination sources under existing drinking water protection plans would have to be inspected every thtee years, while all other facilities would have to be inspected every five years. The legis- lation does not stipulate the entity that would conduct such inspections. What is more, ownership of chemical storage facilities covered by the state ptogtams could not be transferred unless the faci.

1. Policy fíriefing
Senate Bill Aims to Prevent Chemical
Contamination of Surface Water
IHE CHEMICAL spill that
' recently occurred in West
Virginia and interrupted
water deliveries to approx-
imately 300,000 of that
state's residents has led to the introduc-
tion of federal legislation aimed at pre-
venting the recurrence of such events.
Although improved protection of sur-
face water enjoys broad support, ques-
tions have arisen as to who should over-
see and fijnd the additional regulatory
efforts called for in the bill.
On January 9 it was discovered that
thousands of gallons of chemicals used in
coal processing had leaked from storage
facilities at a tank farm located along the
Elk River in Charleston, West Virginia.
The chemicals entered the waterway ap-
proximately 1.5 mi upstream of a pub-
lic water supply intake, forcing officials
to recommend that residents of a nine-
county area in and around Charleston
not use their drinking water. Lasting for
more than a week, this situation caused

2. considerable concern about health ef-
fects and spurred calls for regulatory
protections.
On January 27 Senator Joe Man-
chin (D-West Virginia) introduced the
Chemical Safety and Drinking Water
Protection Act of 2014 (S. 1961), leg-
islation that aims to protect surface wa-
ter from contamination from chemical
storage facilities. The bill would revise
the Safe Drinking Water Act to estab-
lish state programs for overseeing and
inspecting chemical storage facilities
that are deemed to pose a risk to pub-
lic water sources. Within one year of en-
actment of the legislation, states would
have to set requirements for chemical
storage facilities covered by the new
programs. These requirements would
address such topics as "acceptable stan-
dards of good design, construction, or
maintenance," along with leak detec-
tion, spill and overfill control, inventory
control, inspections of facility integrity.
and life-cycle maintenance, according to
the legislation.
Additional requirements would per-
tain to emergency response and commu-
nication plans, employee training and
safety plans, and the financial responsi-
bility of the owners of chemical storage
facilities. States would share with drink-
ing water providers the emergency re-

3. sponse plans for chemical storage facili-
ties located within the same watershed,
along with an inventory of each chemi-
cal stored at each facility.
Under S. 1961 states also would im-
pose minimum inspection requirements
for chemical storage facilities covered
by the new program. In particular, fa-
cilities regarded by states as potential
contamination sources under existing
drinking water protection plans would
have to be inspected every thtee years,
while all other facilities would have to
be inspected every five years. The legis-
lation does not stipulate the entity that
would conduct such inspections. What
is more, ownership of chemical storage
facilities covered by the state ptogtams
could not be transferred unless the facil-
ity in question had been inspected and
the new owner agreed to take appropri-
ate measures to address the results of the
inspection within 30 days of assuming
ownership.
In the event of an emergency, a drink-
ing water provider would be able to take
such legal steps as seeking a restraining
order or a temporary or permanent in-
junction "to address any activity or fa-
cility that may present an imminent
and substantial endangerment to the
health of persons" served by the water
provider, according to S. 1961. Mean-
while, states forced to conduct emergen-

4. cy response activities as a result of the re-
lease of chemicals from a storage facility
would have the right to recover from the
facility owner any costs associated with
the response.
The Chemical Safety and Drinking
Water Protection Act of 2014 was re-
ferred to the Senate Committee on En-
vironment and Public Works, which
is chaired by Senatot Batbara Boxer
(D-California), a cosponsor of the bill.
On February 4 that committee's Wa-
ter and Wildlife Subcommittee held a
hearing to investigate the chemical spill
in West Virginia. Discussing the acci-
dent in Charleston, Senator Ben Car-
din (D-Maryland), the subcommittee
chair, noted that the existing regulatory
framework for ensuring public health
"did not work on January ninth." Rath-
er, the "system failed," he said.
This assessment was seconded by
Erik Olson, the senior strategic direc-
tor for health and food at the Natural
Resources Defense Council, of New
York City. Testifying before the sub-
committee, Olson voiced his support
for S. 1961, although he contended
that inspections of chemical storage
facilities should be conducted annual-
ly rather than, as called for in the bill,
every thtee or five years. He also called
upon Congress to provide increased

5. funding for treatment facilities as part
of the Drinking Water State Revolv-
ing Fund, noting that such funding
would help communities install treat-
ment systems better able to protect
people from contaminants in sutface
water.
In the event of a chemical spill to sur-
face waters, drinking water providers
would benefit from having advance in-
formation about the types of chemicals
present in their watersheds, said Brent
Fewell, a partner in the Washington,
D.C., office of Troutman Sanders LLP.
Testifying on behalf of United Water,
of Harrington Park, New Jersey, Fewell
expressed support for the legislation's
provisions calling for states to share with
drinking water providers information
about chemicals stored in their water-
sheds. However, Fewell voiced concern
that water utilities serving large areas
might be inundated with more infor-
mation than they could handle. "It will
do no good to simply dump reams of
paper and data on these systems and ex-
pect the problem to go away," he said.
[ 1 4 ] C i v i l E n g i n e e r i n g M A R C H 2 0 1 4
Instead, priority should be given to pro-
viding utilities with information about
the chemical storage facilities that are

6. closest to their drinking water sources,
Fewell noted.
Some witnesses advised the senators
to exercise legislative restraint rather
than hurriedly pass a bill in the wake
of the Charleston spill. For example,
Richard Faulk, a partner in the Wash-
ington, D . C , law firm of Hollings-
worth LLP, argued that local and state
officials in West Virginia should be al-
lowed to investigate the causes of the
recent accident and develop responses
that address the circumstances there.
"A one-size-fits-all federal approach
may sometimes even reduce safety by
preempting broader or more effective-
ly tailored solutions that are already
working," Faulk said.
Boxet rebuffed such a hands-off ap-
proach, maintaining that the threat of
chemical spills nationwide necessitated
a federal response. "We've got a mas-
sive problem," she said, noting that no
firm figures exist regarding the num-
ber of aboveground storage tanks that
are located near drinking water supplies.
"We need an assessment" of the extent
to which such storage facilities pose a
threat to water supplies, Boxer said, ar-
guing that S. 1961 would provide the
best way to achieve this goal.
The question of who is to pay for

7. the regulatory activities called for in
S. 1961 was raised in a February 3 letter
to the Water and Wildlife Subcommit-
tee sent by the American Water Works
Association, of Denver, and the Associa-
tion of Metropolitan Water Agencies, of
Washington, D.C. Much like the fed-
eral government, "most state govern-
ments are operating under very tight or
declining budgets," the groups stated in
their letter. "Therefore, any new chem-
ical facility-monitoring pro-
gram enacted tinder {the Safe
Drinking Water Act] must
include a sufficient authori-
zation to offset at least some
of the implementation costs.
Otherwise, these new activi-
ties will come at the expense
of other ongoing water qual-
ity oversight activities or bad-
ly needed infrastructure investments."
As introduced, S. 1961 includes no pro-
visions authorizing additional fianding
to cover the activities it would require
of states.
Others question whether the Safe
Drinking Water Act is the appropri-
ate legislative vehicle for a new program
intended to regulate chemical storage
facilities. For example, Jim Taft, the
executive director of the Association
of State Drinking Water Administra-
tors, which has its headquarters in Ar-

8. lington, Virginia, supports the overall
goals of S. 1961 but notes, "We are con-
cerned about state drinking water pro-
grams being the implementer" of such
a program. State drinking water pro-
gtams oversee approximate-
ly 150,000 public water sys-
tems, Taft says, but have no
experience collecting chemi-
cal inventories and inspect-
ing chemical storage facili-
ties. WAY LANDERS
Jay Landers is a contributing
editor to Civil Engineering.
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