America’s Water Infrastructure Act Implications for Emergency Management, 0320 COBJ, Vol. 49, No. 3 Pg. 38
| Author | BY TIMOTHY R. GABLEHOUSE AND ASHLEY L. ZURKAN |
| Position | Vol. 49, 3 [Page 38] |
ENVIRONMENTAL LAW
BY TIMOTHY R. GABLEHOUSE AND ASHLEY L. ZURKAN
America’s Water Infrastructure Act makes significant changes to emergency planning in connection with drinking source water protection. This article analyzes this Act, focusing on how it affects local emergency planning and community water systems.
America’s Water Infrastructure Act (AWIA or the Act) was signed into law on October 23, 2018.1 An omnibus bill with broad bipartisan support, the Act aims to revitalize and repair water infrastructure throughout the United States. Significantly, the Act imposes new requirements on community water systems and state and local agencies to report and coordinate on releases of hazardous chemicals to the water supply. This article explores how the Act evolved and highlights its salient features.
AWIA Overview
The AWIA passed as omnibus legislation with many sponsors and scattered debate. Although it incorporates language from bills that failed in previous sessions, the Act passed through an amendment to a courthouse naming bill, S. 3021.2 House and Senate leadership replaced the text of H.R. 8, the Water Resources Development Act of 2018, and an amendment by the Senate Committee on Environment and Public Works with a negotiated bill that would revise S. 3021.3 The negotiated text included provisions from other bills, namely H.R. 8, S. 2800, and H.R. 3387.4 As a result, the Act’s provisions and priorities are somewhat opaque, but are informed by environmental events and congressional intent.
The Elk River Disaster: A Triggering Event
Early in the morning on January 9, 2014, residents reported an odor to the West Virginia Department of Environmental Protection. Air quality inspectors eventually discovered a tank farm 1.5 miles from the water supply intake of West Virginia American Water where gallons of 4-methylcyclohexanemethanol (MCHM)5 had escaped secondary containment and flowed into the Elk River.6 When authorities were alerted to the accident, they discovered that then available chemical safety data sheets7 provided almost no information for emergency responders. The West Virginia governor declared a state of emergency and a “Do Not Use” order was issued to the public. Over 300,000 people in nine counties boiled their water and drank from bottles, as authorities struggled to follow their emergency management plans.8
The consequences of the accident and impact to the public were magnified by the lack of reliable information, particularly on safe levels of MCHM.9 The material safety data sheet (MSDS) was incomplete, listing toxicity data as “not available” more than two dozen times.[10] In the immediate aftermath of the spill, public health officials operated from this incomplete information and thereby created confusion.11 A report commissioned after the Elk River disaster recommended that Tier II data sheets12 be made available to local emergency planning committees (LEPCs) for more targeted emergency planning.13 Tier II data sheets are forms that U.S. organizations and businesses storing hazardous chemicals above certain quantities are required to complete and submit annually to local fire departments, LEPCs, and state emergency response commissions (SERCs) to help those agencies plan for and respond to chemical emergencies. Analysts noted that chemical manufacturers could have kept MSDSs up-to-date and publicized toxicity information earlier.
Congress held hearings on the spill. The chief concern during the Elk River hearings was the lack of public confidence in the emergency response and information disseminated. Senators reflected that the “Do Not Use” order was premature but could not get a confident answer from the utility that the water was safe, even weeks after the incident.14 One witness testified that “[r]arely, if ever, are public water systems provided or privy to specific data about the chemicals upstream that, if released, could affect the water system.”15
Senator Boxer noted in a hearing that the lack of data for many chemicals stemmed from the inappropriate invocation of the confidential business information exemption for trade secrets by facilities.16 The Act’s amendments to section 312 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), requiring expanded disclosure to LEPCs and the public, are likely intended to address this problem, as opposed to more comprehensive intervention by the U.S. Environmental Protection Agency (EPA) as contemplated, for example, by Senator Manchin in proposed S. 1961, discussed below. Indeed, the majority of the Senate Committee on Environment and Public Works observed that while existing mechanisms of the Clean Water Act and the Safe Drinking Water Act (SDWA) appropriately manage confidential business information, there is a need for increased public disclosure of chemical data.[17]
Congress repeatedly heard from witnesses that management of information received from facilities under statutory reporting requirements imposed burdens on LEPCs and SERCs that should be limited due to their resource capacity.18 For example, experts noted that volunteers and local officials who staff LEPCs, such as freighters, have collateral duties.19 Thus, the legislative priority should be to improve coordination among facilities and emergency managers and provide funding rather than to expand testing or management practices.[20]
Rather than increasing federal regulation, legislators appeared concerned with providing local governments with the resources needed to fulfll their existing responsibilities. Witnesses at a Senate hearing testified that no major overhaul of toxics regulation was necessary, with one observing that “existing West Virginia Law expressly provided a requirement which, if honored, would have prevented the incident.”21 Where local agencies lack the funding to carry out these duties on their own, they should be empowered “with information, training, responsibility, and tools to address the needs of their citizens.”22
Congressional Debate
In response to the Elk River accident, Congress debated more onerous measures than those that made it into the AWIA, including EPA reviews of all chemicals in commerce.23 A competing bill, S. 1961, clarified that the EPA and the states should not duplicate regulations; it directed the EPA and states with primary enforcement authority for public water systems to consider excluding from the regulatory program tanks that are already regulated by state and federal standards and tanks that do not pose a risk to public water systems.24 In the end, Congress created a more modest solution in the AWIA, focusing on funding the existing responsibilities of states and the EPA. But the rejected bills provide useful context for understanding the Act overall.
Senator Manchin of West Virginia introduced S. 1961, the Chemical Safety and Preparedness Act, contemporaneous with Representative Capito’s H.R. 4024, the Ensuring Access to Clean Water Act of 2014.25 Both contained provisions to enhance information-sharing at the local level, but neither passed out of the 114th Congress. S. 1961 would have set federal standards for state programs encompassing all stored chemicals.26 In this plan, facilities would notify utilities directly of any chemicals stored on site. H.R. 4024 established oversight and inspection standards for all upstream chemical facilities.27
In hearings on the Elk River disaster, some witnesses blamed the proximity of chemicals to drinking water, while others blamed human error.28 S. 1961 responded by requiring the EPA to study all chemicals in commerce, aiming to end the ad hoc study approach that led Elk River to wait over a year for information.29 S. 1961 also required either the EPA or the governing state to make available to public water systems inventory on each chemical held, along with toxicity information.30 This scope is wider than the modest amendments that ended up in the AWIA; it would have broadened the definition of storage tanks and potentially increased compliance burdens drastically.31
Water Source Protection
AWIA § 2018, titled Source Water, was ultimately drawn, with encouragement from Representative Tonko, from the Drinking Water System Improvement Act of 2017, H.R. 3387.32 H.R. 3387 was reported from the House Energy and Commerce Committee in November 2017 with one unrelated amendment and only voice votes, leaving it unclear which members of the committee ultimately supported the language. It was clear, however, that there were no significant objections as the AWIA eventually incorporated this bill. Section 2018 of the AWIA addresses source water protection by amending EPCRA.33
EPCRA
EPCRA was passed in response to a deadly toxic gas leak in Bhopal, India in 1984.34 Considered the world’s deadliest chemical release, the Bhopal disaster killed about 25,000 people, while another 500,000 have lingering health problems.35 EPCRA’s purpose was to develop emergency plans and empower local communities with information about hazardous chemicals in their areas to improve community preparedness.36
By creating a network of officials and mandating comprehensive emergency planning, EPCRA decentralizes the process and empowers local communities to tailor plans to their needs. Pursuant to EPCRA, governors appoint a SERC to establish procedures for public communication and requests.37 SERCs supervise emergency planning districts in their implementation and emergency planning duties, which may be managed by existing state agencies.38 SERCs also appoint LEPCs from local representatives, media, and safety experts to...
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