Attempts at Legislation, Regulation Follow Water Threats

By Molly Moore

Almost as soon as West Virginia American Water Company ordered 300,000 residents to avoid contact with their tap water, the question arose: why was crude MCHM, a chemical now known to be highly toxic, so poorly understood and regulated?

The lack of a clear answer brought national attention to the fact that few of the tens of thousands of chemicals used in commerce today are regulated. Of the more than 60,000 chemicals that were grandfathered in when the Toxic Substances Control Act was passed in 1976, only 200 have been tested for safety.

Even before a Freedom Industries chemical tank leaked into the Elk River, efforts to upgrade the 35-year-old chemical safety law were underway. But while industry and environmental groups both claim to agree on the need for reform, opinions are split on the best way to move forward.

In the Senate, the most viable piece of legislation is the Chemical Safety Improvement Act, which was introduced last spring by the late Sen. Frank Lautenberg (D-N.J.) and Sen. David Vitter (R-La). The bill represented a compromise for Lautenberg, who for several years had championed more stringent chemical regulations. Also in February, Rep. John Shimkus (R-Ill.) introduced a related bill — the Chemicals in Commerce Act — in the House. Both bills are supported by the American Chemistry Council, but the reception from public health and environmental organizations has ranged from lukewarm to hostile.

The bills would divide chemicals into high- and low-priority groups, with high-priority substances undergoing further review. If a chemical were deemed low-priority, however, states would lose the ability to regulate it, and it would be extremely difficult for the U.S. Environmental Protection Agency to assess or restrict the chemical later. Many of the concerns surrounding this system involve how the EPA would decide whether a chemical is high or low priority, and whether the agency could require a chemical manufacturer to provide enough information about a substance to make a sound decision.

In direct response to the West Virginia spill, Sen. Joe Manchin (D-W.Va.) introduced a bill about the storage of hazardous chemicals. Among other provisions, Manchin’s Chemical Safety and Drinking Water Protection Act would set minimum requirements for state inspections of above-ground chemical storage facilities and state-approved emergency response plans, and require that information about chemical storage be shared with drinking water systems in the same watershed.

Just as the chemical safety concerns raised by the West Virginia spill highlighted an enduring threat, Duke Energy’s February coal ash spill into the Dan River in North Carolina highlighted the persistent problems associated with coal ash storage. Following a 2008 dam rupture at a coal ash pond in Harriman, Tenn., which released one billion gallons of the toxic substance into nearby rivers, coal ash became a high-profile environmental issue. In early 2009, the EPA announced a plan to address coal ash and, among other measures, “order cleanup and repairs where needed, and develop new regulations for future safety.”

Five years later, however, there are still no federal regulations governing coal ash storage or the cleanup of contaminated sites, though the agency faces a court-ordered deadline to issue a rule by mid-December. The EPA is considering two proposals — one system would label coal ash as nonhazardous while the other would declare it hazardous and require stricter regulations. A bill that passed the House last summer and is pending in the Senate would negate any EPA regulations and leave oversight up to the states.

The Duke Energy coal ash spill also came just a few months before the EPA faces another court-ordered deadline, this one to address water pollution from coal-fired power plants. By May 22, the agency must update its 30 year-old effluent guideline rule under the Clean Water Act, which could impose the first federal limits on the levels of toxic metals in the wastewater that power plants discharge.

For updates on coal ash regulation, visit Appalachian Voices’ Red, White and Water campaign at appvoices.org/rww, or track chemical safety legislation on the Green Chemistry Law Report at blog.verdantlaw.com