S. 1961 — Reported in Senate

II Calendar No. 524 113th CONGRESS 2d Session S. 1961 [Report No. 113–238] IN THE SENATE OF THE UNITED STATES January 27, 2014Mr. Manchin (for himself, Mrs. Boxer, Mr. Rockefeller, Mr. Durbin, Mr. Udall of New Mexico, and Mr. Wyden) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works July 31, 2014Reported by Mrs. Boxer, with an amendmentStrike out all after the enacting clause and insert the part printed in italic A BILL To protect surface water from contamination by chemical storage facilities, and for other purposes. 1. Short title This Act may be cited as the Chemical Safety and Drinking Water Protection Act of 2014. 2. Protection of surface water from contamination by chemical storage facilities (a) In general The Safe Drinking Water Act (42 U.S.C. 300f et seq.) is amended by adding at the end the following: G Protection of surface water from contamination by chemical storage facilities 1471. Definitions In this part: (1) Covered chemical storage facility (A) In general The term covered chemical storage facility means a facility at which a chemical is stored and the Administrator or State, as applicable, determines that a release of the chemical from the facility poses a risk of harm to a public water system. (B) Exclusions The term covered chemical storage facility does not include a facility that is subject to a procedure, method, or other requirement for equipment to address hazardous substances pursuant to section 311(j)(1)(C) of the Federal Water Pollution Control Act (33 U.S.C. 1321(j)(1)(C)). (C) Considerations In determining risk of harm posed by a chemical storage facility under subparagraph (A), the Administrator or State, as applicable, may consider the requirements of applicable Federal or State laws (including regulations). (2) State program The term State program means a chemical storage facility source water protection program established under section 1472. 1472. Establishment of State programs (a) In general Not later than 1 year after the date of enactment of this part, the Administrator or each State exercising primary enforcement responsibility for public water systems, as applicable, shall carry out, directly or through delegation, a chemical storage facility source water protection program to provide for the protection of public water systems from a release of a chemical from a covered chemical storage facility. (b) Program requirements (1) In general A State program under subsection (a) shall provide for oversight and inspection of each covered chemical storage facility in accordance with the requirements described in paragraph (2) to prevent the release of chemicals into the water supply in watersheds with public water systems that rely on surface water, including a covered chemical storage facility located in a source water area identified under section 1453. (2) Minimum requirements At a minimum, a State program shall include— (A) requirements for covered chemical storage facilities, including— (i) acceptable standards of good design, construction, or maintenance; (ii) leak detection; (iii) spill and overfill control; (iv) inventory control; (v) an emergency response and communication plan; (vi) an employee training and safety plan; (vii) an inspection of the integrity of each covered chemical storage facility; (viii) lifecycle maintenance, including corrosion protection; (ix) notice to the Administrator, the appropriate State agency, and applicable public water systems of— (I) the potential toxicity of the stored chemicals to humans and the environment; and (II) safeguards or other precautions that can be taken to detect, mitigate, or otherwise limit the adverse effects of a release of the stored chemicals; and (x) financial responsibility requirements, including proof of insurance, bond, or other similar instrument; (B) inspections of covered chemical storage facilities, which shall occur— (i) for a covered chemical storage facility identified in a source water assessment area under section 1453, not less frequently than once every 3 years; and (ii) for any other covered chemical storage facility, not less frequently than once every 5 years; and (C) a comprehensive inventory of the covered chemical storage facilities in each State. (c) National primary drinking water regulations For purposes of primary enforcement responsibility, a State program and any requirements under this part shall be— (1) considered to be a part of the national primary drinking water regulations established under section 1412; and (2) implemented and enforced in accordance with the procedures under sections 1413 and 1414 and part E. (d) Administration A State program shall be carried out— (1) if the State exercises primary enforcement responsibility for public water systems in that State under this Act, by the State; and (2) if the State does not exercise primary enforcement responsibility for public water systems in that State under this Act, by the Administrator. (e) Guidance The Administrator may issue guidance or provide other technical assistance to State programs in carrying out activities under this part. 1473. Corrective action orders The Administrator under section 1472(d)(2) or the State under section 1472(d)(1), as applicable, may issue an order to the owner or operator of a covered chemical storage facility to carry out this part. 1474. Cost recovery If costs have been incurred by the Administrator or the State, as applicable, for undertaking a response action under this part relating to the release of a chemical, the owner or operator of the covered chemical storage facility shall be liable to the Administrator or the State for those costs. 1475. Transfer of covered chemical storage facilities Notwithstanding the inspection schedule under section 1472(b)(2)(B), no person shall transfer a covered chemical storage facility unless— (1) prior to the closing or completion of the transfer, the transferor submits to the transferee the results of a pretransfer inspection of the integrity of the covered chemical storage facility, which shall be conducted pursuant to any requirements set by the Administrator under section 1472(d)(2) or the State under section 1472(d)(1), as applicable; and (2) the transferor or the transferee agrees to take appropriate measures to address the results of the pretransfer inspection prior to the date that is 30 days after the date on which the covered chemical storage facility closes or is transferred. 1476. Information sharing (a) Information for public water systems The Administrator or State, as applicable, shall provide public water systems with information relating to— (1) emergency response plans for covered chemical storage facilities located within the same watershed as the public water system; and (2) an inventory of each chemical held at the covered chemical storage facilities described in paragraph (1). (b) Emergency response plans A copy of each emergency response plan submitted under section 1472(b)(2)(A) shall be provided to— (1) the Administrator (if the State exercises primary responsibility for public water systems in that State); and (2) the Secretary of Homeland Security. (c) Information (1) In general The Administrator or a State, as applicable, may keep confidential information the Administrator or the State determines to be sensitive and present a security risk to a covered chemical storage facility. (2) Exceptions Paragraph (1) shall not— (A) apply to public health information; or (B) prevent the sharing of information with the Administrator, the Secretary of Homeland Security, a public water system, or a public agency involved in emergency response. . (b) Emergency powers Section 1431 of the Safe Drinking Water Act (42 U.S.C. 300i) is amended— (1) by redesignating subsection (b) as subsection (c); and (2) by inserting after subsection (a) the following: (b) Petitions (1) In general In any case in which the Administrator is authorized to act under subsection (a), the owner or operator of a public water system may— (A) commence a civil action for appropriate equitable relief, including a restraining order or permanent or temporary injunction, to address any activity or facility that may present an imminent and substantial endangerment to the health of persons who are supplied by that public water system; or (B) petition the Administrator to issue an order or commence a civil action under subsection (a). (2) Response (A) In general Subject to subparagraph (B), not later than 30 days after the date on which the Administrator receives a petition under paragraph (1), the Administrator shall respond to the petition and initiate such action as the Administrator determines to be appropriate. (B) Special rule for emergencies If the owner or operator of a public water system submits the petition under paragraph (1) in response to an emergency, the Administrator shall respond not later than 72 hours after receipt of the petition. . (c) Conforming amendment Section 1414 of the Safe Drinking Water Act (42 U.S.C. 300g–3) is amended— (1) in subsections (a), (b), (e), (f), and (g)— (A) by inserting after public water system each place it appears or a covered chemical storage facility; and (B) by inserting after public water systems each place it appears or a covered chemical storage facility; and (2) in subsection (i)— (A) by redesignating paragraphs (1) through (3) as subparagraphs (A) through (C), respectively, and indenting appropriately; (B) by striking the heading designation and all that follows through means— and inserting the following: (i) Definitions In this section: (1) Applicable requirement The term applicable requirement means— ; (C) in paragraph (1)(A) (as so redesignated)— (i) by inserting a comma after 1417; and (ii) by striking or 1445 and inserting 1445, or part G; and (D) by adding at the end the following: (2) Covered chemical storage facility The term covered chemical storage facility has the meaning given the term in section 1471. . 1. Short title This Act may be cited as the Chemical Safety and Drinking Water Protection Act of 2014. 2. Protection of surface water from contamination by chemical storage tanks (a) In general The Safe Drinking Water Act (42 U.S.C. 300f et seq.) is amended by adding at the end the following: G Protection of surface water from contamination by chemical storage tanks 1471. Definitions In this part: (1) Chemical The term chemical means a chemical substance that is— (A) identified as a hazardous substance, as defined in section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601(14)); (B) subject to emergency planning or reporting requirements of the Emergency Planning and Community Right-To-Know Act (42 U.S.C. 11001 et seq.); or (C) defined as a contaminant under section 1401(6) of the Safe Drinking Water Act (42 U.S.C. 300f(6)). (2) Covered chemical storage tank (A) In general The term covered chemical storage tank means an onshore, fixed, above-ground bulk chemical storage container (including any associated piping and appurtenances), or a combination of such storage containers, from which a release of the chemical from the tank or storage containers or combination of storage containers and tanks could pose a risk of harm to a public water system. (B) Exclusions (i) In general The term covered chemical storage tank does not include a tank or container that is subject to a procedure, method, or other requirement pursuant to regulations promulgated under section 311(j)(1)(C) of the Federal Water Pollution Control Act (33 U.S.C. 1321(j)(1)(C)). (ii) Additional exclusions The Administrator or State, as applicable, shall consider and may adopt appropriate exclusions— (I) based on applicable Federal or State laws (including regulations) that substantially meet the requirements and purposes of this Act; or (II) for covered chemical storage tanks that the Administrator or State, as applicable, determines would not pose a risk of harm to a public water system. (3) Program The term program means a chemical storage tank surface water protection program established under section 1472. 1472. Establishment of programs (a) In general Not later than 2 years after the date of enactment of this part, the Administrator or each State exercising primary enforcement responsibility for public water systems, as applicable, shall establish, directly or through delegation to any State agency the Governor of the State determines is appropriate, a chemical storage tank surface water protection program to provide for the protection of public water systems from a release of a chemical from a covered chemical storage tank. (b) Program requirements (1) In general A program under subsection (a) shall provide for oversight and inspection of each covered chemical storage tank in accordance with the requirements described in paragraph (2) to prevent the release of chemicals into surface water supplies of public water systems, including a covered chemical storage tank located in a source water area identified under section 1453. (2) Minimum requirements At a minimum, the program shall include— (A) requirements for covered chemical storage tanks, including— (i) appropriate standards of good design, construction, or maintenance; (ii) leak detection; (iii) spill and overfill prevention and containment; (iv) inventory control for the purpose of promptly determining the quantity of chemicals released in the event of a spill; (v) an emergency response and communication plan, including procedures for immediately notifying, after discovery of a chemical release, public water systems that may be adversely impacted by the chemical release, and other entities required by the Emergency Planning and Community Right-To-Know Act of 1986 (42 U.S.C. 11001 et seq.); (vi) an employee training and safety plan; (vii) an inspection of the integrity of covered chemical storage tanks, consistent with appropriate standards; (viii) lifecycle maintenance, including corrosion protection; (ix) notice to the Administrator and the appropriate State agency of— (I) the existing information on the potential toxicity of the stored chemicals to public health and the environment that the Administrator or State, as applicable, determines is relevant to evaluate the risk of harm to public water systems; and (II) safeguards or other precautions that can be taken to detect, mitigate, or otherwise limit the adverse effects of a release of the stored chemicals; and (x) financial responsibility requirements, including proof of insurance, bond, self-insurance, guarantee, or other similar financial assurance instrument; (B) inspections of covered chemical storage tanks, which shall occur— (i) for a covered chemical storage tank listed under paragraph (3), annually by a certified inspector on behalf of the owner or operator of such tank; (ii) for a covered chemical storage tank identified in a source water assessment area under section 1453, not less frequently than once every 3 years by the Administrator or State, as applicable; and (iii) for any other covered chemical storage tank, not less frequently than once every 5 years; and (C) a comprehensive inventory of the covered chemical storage tanks in each State. (3) High hazard covered chemical storage tanks Not later than 2 years after the date of enactment of this part, the Administrator or the State, as applicable, shall develop a list of covered chemical storage tanks from which a release of a chemical from the tanks poses the greatest risk of harm to public water systems in the State and the greatest risk to public health. (c) Incorporation of existing standards In establishing mandatory program requirements under subsection (b), the Administrator or a State, as applicable, may, by reference, include appropriate— (1) requirements under State or Federal law, including regulations, as in effect on the date on which the program requirements are established; and (2) consensus standards. (d) National primary drinking water regulations For purposes of primary enforcement responsibility, a program and any requirements under this part shall be— (1) considered to be a part of the national primary drinking water regulations established under section 1412; and (2) implemented and enforced in accordance with this Act. (e) Administration A program shall be carried out— (1) if the State exercises primary enforcement responsibility for public water systems in that State under this Act, by the State; or (2) by the Administrator if the State— (A) does not exercise primary enforcement responsibility for public water systems in that State under this Act; or (B) (i) exercises primary enforcement responsibility for public water systems in that State; and (ii) expressly refrains from administering and implementing a program under this part. (f) Notification Not later than 2 years after the date of enactment of this part, the State shall notify the Administrator if the State— (1) exercises primary enforcement responsibility for public water systems in that State under this Act; and (2) refrains from establishing a program under this part. (g) Severability If a State does not implement a program under this part, it shall not otherwise affect the primary enforcement responsibility of the State under this Act. (h) Guidance The Administrator shall issue guidance, subject to public notice and opportunity for comment, and provide other technical assistance to States carrying out programs and activities under this part. 1473. Corrective action orders The Administrator under section 1472(e)(2) or the State under section 1472(e)(1), as applicable, may issue an order to the owner or operator of a covered chemical storage tank to carry out this part. 1474. Response cost recovery If costs have been incurred by the Administrator or the State, as applicable, for undertaking a response action under this part relating to the release of a chemical, the owner or operator of the covered chemical storage tank shall be liable to the Administrator or the State for those response action costs. 1475. Transfer of covered chemical storage tanks (a) In general Notwithstanding the inspection schedule under section 1472(b)(2)(B), no person shall transfer a covered chemical storage tank unless— (1) prior to the closing or completion of the transfer, the transferor submits to the transferee the results of a pretransfer inspection of the integrity of the covered chemical storage tank, which shall be conducted pursuant to any requirements set by the Administrator under section 1472(e)(2) or the State under section 1472(e)(1), as applicable; and (2) except as provided in subsection (e), the transferor or the transferee agrees to take appropriate measures to address the results of the pretransfer inspection prior to the date that is 1 year after the date on which the covered chemical storage tank closes or transfer is complete. (b) Qualifying inspections An inspection carried out not earlier than 1 year before the date on which a covered chemical storage tank is transferred shall satisfy the pretransfer inspection requirement described in subsection (a). (c) Third-party inspections An inspection made by a qualified engineer on behalf of the owner or operator of the tank shall satisfy the pretransfer inspection requirement described in subsection (a). (d) Calculation of time period For a covered chemical storage tank subject to a pretransfer inspection under subsection (a)(1), the deadline for the next required inspection under section 1427(b)(2)(B) shall be calculated from the date of the pretransfer inspection. (e) Extension The Administrator or State, as applicable, may extend the time period described in subsection (a)(2) for a reasonable time if the transferor or transferee establishes, to the satisfaction of the Administrator or State, that the design and construction of the appropriate measures taken under subsection (a)(2) cannot reasonably be completed during the time period. 1476. Information sharing (a) Information for public water systems Subject to subsection (c), the Administrator or State, as applicable, shall make available to public water systems, on request, information maintained by the Administrator or State, as applicable, in accordance with section 1472(b)(2) relating to— (1) emergency response plans for covered chemical storage tanks located within the same watershed as the public water system; (2) an inventory of each chemical held at the covered chemical storage tanks described in paragraph (1); (3) existing information on the potential toxicity of the stored chemicals to public health and the environment that the Administrator or State, as applicable, determines is relevant to evaluate the risk of harm to public water systems; and (4) safeguards or other precautions that can be taken to detect, mitigate, or otherwise limit the adverse effects of a release of the stored chemicals. (b) Emergency response plans (1) In general A State or the Administrator, as applicable, shall submit a copy of each emergency response plan submitted under section 1472(b)(2)(A) to— (A) the Administrator (or the State if the Administrator is carrying out the program); and (B) the Secretary of Homeland Security. (2) Consistency To the maximum extent practicable, emergency response plans submitted under section 1472(b)(2)(A) shall be integrated with applicable area contingency plans under section 311(j)(4) of the Federal Water Pollution Control Act (33 U.S.C. 1321(j)(4)). (c) Information (1) In general The Administrator or a State, as applicable, shall keep confidential information reported to, obtained by, or otherwise submitted to the Administrator or the State that the Administrator or State determines to be national security sensitive or present a security risk to a covered chemical storage tank. (2) Exceptions Paragraph (1) shall not— (A) apply to public health information; (B) apply to information required to be disclosed under the Emergency Planning and Community Right-To-Know Act of 1986 (42 U.S.C. 11001 et seq.) or any other requirement under any law (including regulations); or (C) prevent the sharing of information with the Administrator, the Secretary of Homeland Security, a public water system, or a public agency involved in emergency response. (3) Effect Nothing in this subsection affects— (A) except as provided under paragraph (2), any disclosure requirement or exceptions to disclosure under any State law (including regulations); or (B) any disclosure requirement or exceptions to disclosure under Federal law, including section 552 of title 5, United States Code (commonly known as the Freedom of Information Act). . (b) Emergency powers Section 1431 of the Safe Drinking Water Act (42 U.S.C. 300i) is amended— (1) by redesignating subsection (b) as subsection (c); and (2) by inserting after subsection (a) the following: (b) Petitions (1) In general In any case in which the Administrator is authorized to act under subsection (a), the owner or operator of a public water system may, but is not required— (A) to commence a civil action for appropriate equitable relief, including a restraining order or permanent or temporary injunction, to address any activity or facility that may present an imminent and substantial endangerment to the health of persons who are supplied by that public water system; or (B) to petition the Administrator to issue an order or commence a civil action under subsection (a). (2) Response (A) In general Subject to subparagraph (B), not later than 30 days after the date on which the Administrator receives a petition under paragraph (1), the Administrator shall respond to the petition and initiate such action as the Administrator determines to be appropriate. (B) Special rule for emergencies If the owner or operator of a public water system submits the petition under paragraph (1) in response to an emergency, the Administrator shall respond not later than 72 hours after receipt of the petition. . (c) Conforming amendment Section 1414 of the Safe Drinking Water Act (42 U.S.C. 300g–3) is amended— (1) in subsections (a), (b), (e), (f), and (g)— (A) by inserting after public water system each place it appears or a covered chemical storage tank; and (B) by inserting after public water systems each place it appears or a covered chemical storage tank; and (2) in subsection (i)— (A) by redesignating paragraphs (1) through (4) as subparagraphs (A) through (D), respectively, and indenting appropriately; (B) by striking the heading designation and all that follows through means— and inserting the following: (i) Definitions In this section: (1) Applicable requirement The term applicable requirement means— ; (C) in paragraph (1)(A) (as so redesignated)— (i) by inserting a comma after 1417; and (ii) by striking or 1445 and inserting 1445, or part G; and (D) by adding at the end the following: (2) Covered chemical storage tank The term covered chemical storage tank has the meaning given the term in section 1471. . July 31, 2014Reported with an amendment