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)

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.