Months After West Virginia Spill, A Weakened Chemical Safety Bill Emerges

A behind-the-scenes deal won the measure bipartisan backing, but advocates fear the cost of compromise.

West Virginia American Water customers line up for water at the Gestamp Plant after waiting hours for a water truck, only to have it empited in about 20 minutes on January 10, 2014 in South Charleston, West Virginia. West Virginia American Water determined Thursday MCHM chemical had 'overwhelmed' the plant's capacity to keep it out of the water from a spill at Freedom Industries in Charleston. An unknown amount of the hazardous chemical contaminated the public water system for potentially 300,000 people in West Virginia.
National Journal
Jason Plautz
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Jason Plautz
April 4, 2014, 1 a.m.

When a chem­ic­al spill that left 300,000 West Vir­gin­ia res­id­ents without clean tap wa­ter, law­makers lined up to prom­ise le­gis­la­tion that would crack down on chem­ic­al stor­age and safe­guard the na­tion’s wa­ter sup­plies.

Thus far, the rhet­or­ic has far out­paced the real­ity.

In the wake of the spill, West Vir­gin­ia Sen­at­ors Joe Manchin and Jay Rock­e­feller, along with Cali­for­nia’s Bar­bara Box­er, in­tro­duced le­gis­la­tion that the two Demo­crats said in­cluded the reg­u­lat­ory teeth needed to pro­tect wa­ter sup­plies. But after talk mov­ing quickly to the floor, that meas­ure dis­ap­peared in­to the back­room of the Sen­ate’s En­vir­on­ment and Pub­lic Works com­mit­tee, where law­makers spent three months in be­hind-the-scenes ne­go­ti­ations over the le­gis­la­tions fine points to ap­pease Re­pub­lic­ans.

Thursday, the com­mit­tee con­vened to pass a new ver­sion of the meas­ure — one that en­joys bi­par­tis­an sup­port but rep­res­ents a less strin­gent, more nar­row set of chem­ic­al safety safe­guards.

As in­tro­duced, the bill would have cre­ated new safety stand­ards for all above-ground chem­ic­al stor­age fa­cil­it­ies — such as the one that leaked 10,000 gal­lons of a coal scrub­bing chem­ic­al near Char­le­ston, W.Va. The new ver­sion of the le­gis­la­tion, however, defines what chem­ic­als would be in­cluded, leav­ing the po­ten­tial for a sub­set of chem­ic­als to be ex­empt from the bill’s re­quire­ments.

And un­der the new ver­sion, some types of stor­age tanks would win ex­emp­tions from in­spec­tions, a re­treat from the broad stand­ards of the Manchin-Rock­e­feller meas­ure that would have re­quired in­spec­tions every three years for tanks near wa­ter sources.

States are also giv­en the power to opt out of the pro­gram, in which case U.S. EPA would step in — an ar­range­ment that mir­rors ex­ist­ing opt-out powers un­der cur­rent clean wa­ter laws.

Oth­er key as­pect of the bill, however, re­main in­tact: it re­quires states to es­tab­lish safety stand­ards for above-ground stor­age tanks that are cur­rently largely un­reg­u­lated. Chem­ic­al fa­cil­it­ies would also be re­quired to no­ti­fy reg­u­lat­ors of the iden­tity and po­ten­tial tox­icity of the chem­ic­als stored on site, while al­low­ing states to col­lect the costs for a spill cleanup from own­ers and op­er­at­ors.

The meas­ure is an at­tempt to ad­dress the gaps in reg­u­lat­ory gaps that were ex­posed after the Janu­ary spill. The chem­ic­al came from a leak­ing tank owned by Free­dom In­dus­tries that had not been in­spec­ted by the state De­part­ment of En­vir­on­ment­al Pro­tec­tion and al­most noth­ing was known about the leak­ing sub­stance.

The spill was enough to gal­van­ize both parties in­to ac­tion on chem­ic­al safety, but the con­sensus faltered after an ini­tial draft was in­tro­duced.

Louisi­ana’s Dav­id Vit­ter, the top Re­pub­lic­an on the Sen­ate’s en­vir­on­ment pan­el, slowed the bill in early Feb­ru­ary by say­ing he had con­cerns that needed to be ad­dressed. In­dustry groups had said that some of the re­quire­ments were simply du­plic­at­ing safety meas­ures already on the books and that bet­ter en­force­ment would ef­fect­ively render the le­gis­la­tion moot.

And so it was back to the draw­ing board for a bill that, in the af­ter­math of a crisis, ap­peared to have a rare ex­press tick­et in the Sen­ate.

But des­pite the changes, Manchin said he re­mained ex­cited about the meas­ure and — after it passed the pan­el Thursday — said he would go to lead­er­ship to see what vehicle could be used to pass the bill through the full Sen­ate. Manchin said the bill was mov­ing quickly “by today’s stand­ards,” and he em­phas­ized that the spill could have happened any­where, which ought to give col­leagues on both sides in­cent­ive to clamp down.

But even with the pan­el back­ing the meas­ure on a bi­par­tis­an basis, the le­gis­la­tion enters a hazy fu­ture as it moves to the Sen­ate floor.

Ad­voc­ates fear that, in the ef­fort to pass it, it will be fur­ther weakened. The fi­nal shape of the law is still in jeop­ardy. Vit­ter said at the markup that he still had some linger­ing con­cerns that he hoped to ad­dress be­fore a full Sen­ate vote, but did not de­tail what those were.

“I’m really look­ing to what hap­pens on the floor,” said Erik Olson, a seni­or at­tor­ney at the Nat­ur­al Re­sources De­fense Coun­cil. “Clearly any fur­ther weak­en­ing of any con­sequence would cut in­to the bone be­cause there isn’t much left from what’s cut here.”

“It’s ob­vi­ously a step for­ward from where we are now, which is that there’s a class of chem­ic­al tanks that could pol­lute our wa­ter sup­ply,” he said. “It’s long over­due and it’s help­ful to move for­ward.”

The le­gis­la­tion’s biggest hurdle, however, comes from across Cap­it­ol Hill. House Speak­er John Boehner, even im­me­di­ately after the spill, threw cold wa­ter on the pos­sib­il­ity of new reg­u­la­tions, say­ing he’d rather fo­cus on im­prov­ing en­force­ment of cur­rent rules.

West Vir­gin­ia Re­pub­lic­an Shel­ley Moore Capito in­tro­duced a sim­il­ar bill a month after the spill, but it has at­trac­ted no co­spon­sors and may not have much of a fu­ture in a House dom­in­ated by Re­pub­lic­ans loathe to ap­prove new reg­u­la­tions.

Ul­ti­mately, Green­peace le­gis­lat­ive dir­ect­or Rick Hind said law­makers’ en­ergy may be best spent simply tight­en­ing ex­ist­ing laws and re­quir­ing the En­vir­on­ment­al Pro­tec­tion Agency to use the Clean Wa­ter Act more broadly to spur reg­u­la­tions.

“I still think there’s some con­spicu­ously miss­ing activ­ity from these sen­at­ors in pre­vail­ing on EPA to act with the au­thor­ity it has now while this bill moves through Con­gress. Or not,” he said.

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