[Senate Hearing 113-747]
[From the U.S. Government Publishing Office]





                                                        S. Hrg. 113-747

   EXAMINATION OF THE SAFETY AND SECURITY OF DRINKING WATER SUPPLIES 
       FOLLOWING THE CENTRAL WEST VIRGINIA DRINKING WATER CRISIS

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON WATER AND WILDLIFE

                                 of the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                            FEBRUARY 4, 2014

                               __________

  Printed for the use of the Committee on Environment and Public Works

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                               __________

               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                    ONE HUNDRED THIRTEENTH CONGRESS
                             SECOND SESSION

                  BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana                  DAVID VITTER, Louisiana
THOMAS R. CARPER, Delaware           JAMES M. INHOFE, Oklahoma
BENJAMIN L. CARDIN, Maryland         JOHN BARRASSO, Wyoming
BERNARD SANDERS, Vermont             JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island     MIKE CRAPO, Idaho
TOM UDALL, New Mexico                ROGER WICKER, Mississippi
JEFF MERKLEY, Oregon                 JOHN BOOZMAN, Arkansas
KIRSTEN GILLIBRAND, New York         DEB FISCHER, Nebraska
CORY A. BOOKER, New Jersey

                Bettina Poirier, Majority Staff Director
                  Zak Baig, Republican Staff Director
                              ----------                              

                   Subcommittee on Water and Wildlife

                 BENJAMIN L. CARDIN, Maryland, Chairman
THOMAS R. CARPER, Delaware           JOHN BOOZMAN, Arkansas
SHELDON WHITEHOUSE, Rhode Island     JAMES M. INHOFE, Oklahoma
JEFF MERKLEY, Oregon                 JOHN BARRASSO, Wyoming
KIRSTEN GILLIBRAND, New York         JEFF SESSIONS, Alabama
CORY A. BOOKER                       DEB FISCHER, Nebraska
BARBARA BOXER, California (ex        DAVID VITTER, Louisiana (ex 
    officio)                             officio)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                            C O N T E N T S

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                                                                   Page

                            FEBRUARY 4, 2014
                           OPENING STATEMENTS

Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland     1
Vitter, Hon. David, U.S. Senator from the State of Louisiana.....     4
Boxer, Hon. Barbara, U.S. Senator from the State of California...     6
Udall, Hon. Thomas, U.S. Senator from New Mexico.................     9
Rockefeller, Hon. Jay, U.S. Senator from the State of West 
  Virginia.......................................................    11
Manchin, Hon. Joe, U.S. Senator from the State of West Virginia..    12
Rahall, Hon. Nick, U.S. Representative from the State of West 
  Virginia.......................................................    14
Capito, Hon. Shelley, U.S. Representative from the State of West 
  Virginia.......................................................    15

                               WITNESSES

Tennant, Natalie E., Secretary of State, West Virginia...........    17
    Prepared statement...........................................    19
    Responses to additional questions from Senator Boxer.........    25
    Response to an additional question from Senator Vitter.......    26
    Responses to additional questions from Senator Cardin........    26
Huffman, Randy C., Cabinet Secretary, West Virginia Department of 
  Environmental Protection.......................................    28
    Prepared statement...........................................    30
Responses to additional questions from:
    Senator Boxer................................................    35
    Senator Cardin...............................................    36
    Senator Vitter...............................................    38
Olson, Erik D., Senior Strategic Director for Health and Food, 
  Natural Resources Defense Council..............................    39
    Prepared statement...........................................    41
Responses to additional questions from:
    Senator Boxer................................................    51
    Senator Cardin...............................................    53
Fewell, Brent, Vice President of Environmental Compliance on 
  Behalf of United Water.........................................    59
    Prepared statement...........................................    61
    Response to an additional question from Senator Boxer........    69
    Responses to additional questions from Senator Cardin........    69
McNulty, Michael W., General Manager, Putnam Public Service 
  District, West Virginia........................................    74
    Prepared statement...........................................    76
Responses to additional questions from:
    Senator Boxer................................................    83
    Senator Vitter...............................................    83
Faulk, Richard O., Partner, Hollingsworth, LLP...................    86
    Prepared statement...........................................    88
    Responses to additional questions from Senator Vitter........    96
Weaver, R. Peter, Vice President, Government Affairs, 
  International Liquid Terminals Association.....................    99
    Prepared statement...........................................   101
Responses to additional questions from:
    Senator Cardin...............................................   108
    Senator Vitter...............................................   110

                          ADDITIONAL MATERIAL

Statements:
    American Water Works Association.............................   123
    West Virginia American Water.................................   125
    Clean Water Action...........................................   133

 
   EXAMINATION OF THE SAFETY AND SECURITY OF DRINKING WATER SUPPLIES 
       FOLLOWING THE CENTRAL WEST VIRGINIA DRINKING WATER CRISIS

                              ----------                              


                       TUESDAY, FEBRUARY 4, 2014

                               U.S. Senate,
         Committee on Environment and Public Works,
                        Subcommittee on Water and Wildlife,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10 a.m. in 
room 406, Dirksen Senate Building, Hon. Benjamin L. Cardin 
(chairman of the subcommittee) presiding.
    Present: Senators Cardin, Carper, Boxer, Udall, Vitter and 
Boozman.

          OPENING STATEMENT OF HON. BENJAMIN CARDIN, 
            U.S. SENATOR FROM THE STATE OF MARYLAND

    Senator Cardin. The Subcommittee on Water and Wildlife will 
convene.
    I want to thank Senator Boxer for her cooperation in 
allowing us to expedite this hearing. Senator Vitter, I want to 
also thank you for the manner in which the leadership of the 
EPW Committee facilitated a very quick and early hearing on 
what happened in West Virginia.
    Americans have a right to expect that when they turn on 
their tap, the water they get is safe and is safe to drink. It 
is our responsibility to make sure that expectation is, in 
fact, carried out, both at the Federal, State and local 
government levels. It is a primary responsibility of government 
to protect the public safety of the people of our community.
    The system did not work on January 9th in West Virginia. 
The system failed. Yes, the reckless conduct of a private 
company, Freedom Industries, was responsible for the spill and 
the failure to properly report but our system needs to be 
adequate to protect against all contingencies and it was not in 
this instance.
    I think we need to look at how we can strengthen our laws 
to make sure the public indeed has safe drinking water.
    I want to congratulate and thank Senators Boxer, Manchin 
and Senator Rockefeller in the Senate for quickly introducing 
legislation that deals with some of the fundamental issues with 
which we have to be concerned.
    The current law requires a risk assessment of chemicals 
that may be in the area that could jeopardize safe drinking 
water but does not require an update of that information, nor 
does it require that there be a plan for using that information 
to protect the safety of the people of our community. Our laws 
are just not strong enough to deal with the current situation.
    Yes, we can take a look at the fact that there has been a 
risk assessment. However, the last risk assessment done in this 
area in West Virginia was done in 2002 and was done because of 
9/11. We asked all communities to reassess their chemical 
vulnerabilities. In West Virginia, the State proper did a risk 
assessment in 2002.
    There was a different owner of the company at that time and 
it did not list the risk of the chemical involved in this 
particular episode, so risk assessments need to be updated in a 
more timely way.
    How do we use this information? First and foremost, we want 
to mitigate the risk factors to safe drinking water. In West 
Virginia, there would have been ways in which we could have had 
better retaining walls, better setbacks and a lot of different 
things could have been done if that information was available 
and if we acted on that information.
    We want to be prepared for all contingencies. The public 
expects us to be able to act quickly.
    I will put my full statement in the record because we will 
be holding people to time limits because we have a large panel 
here today.
    [The prepared statement of Senator Cardin follows:]

          Statement of Hon. Benjamin L. Cardin, U.S. Senator 
                       from the State of Maryland

    I want to thank our guest colleagues for coming before the 
subcommittee today to share their experiences and ideas. While 
I know this crisis in your State has been very trying for your 
constituents, my hope is that we may learn from this experience 
and find policy solutions to ensure that an incident like this 
never happens again in West Virginia or in any other state.
    The Central West Virginia Water Crisis has shined a 
spotlight on the vulnerabilities and threats to the safety and 
security of our drinking water sources. The rapid response to 
the crisis, especially the speedy relief efforts delivered to 
the affected communities by FEMA and the National Guard are to 
be commended and we thank those who were there during the 
victims' times of need.
    The gross negligence of Freedom Industries, the company 
operating the chemical storage and terminal facility on the 
banks of the Elk River on the North-Eastside of Charleston, 
should give us all pause about the potential threats to our 
water resources across the country.
    Because the plain facts are: We don't know the extent of 
the contamination risks to our drinking water sources. Federal 
law requires the states to conduct risk assessments within the 
watersheds or boundaries of known drinking water sources. 
Federal law does not, however, require these surveys to be 
updated or provide any guidance on how this information is to 
be used. What we have is a patchwork of State data with varying 
degrees of reliability. This creates uncertainty of risks for 
water providers.
    One of the most frightening, albeit fortunate, revelations 
about the West Virginia water crisis centers around one very 
distinct property of the chemical that spilled into Elk River 
infiltrating the West Virginia American Water works facility.
    Methyl-Cycl-Oh-Hex-ane, commonly referred to as MCHM, has a 
very distinct odor that is described as smelling like black 
licorice. Residents across West Virginia America's service 
district noticed this unmistakable odor in their tap water on 
the morning of January 9th and immediately began reporting 
their discoveries to State environmental protection officials 
and the Water Works.
    These calls to the authorities touched off the 
investigation and discovery of the spill at the Freedom 
Industries tank farm located one and half miles upriver from 
West Virginia American's intake pipe. Freedom Industries made 
no effort to report the spill, even though environmental 
investigators at the scene found that the Company had made a 
rudimentary attempt at containing the spill.
    It was the odor of the MCHM that kept this crisis from 
being an all out public health catastrophe. But many chemicals 
are odorless, and would pass a literal ``sniff test'' while 
posing a serious threat to human health if they entered the 
water supply.
    Another chemical, PPH, is reported to also have spilled 
from the Freedom Industries facility. While officials believe 
that West Virginia American's water treatment works may have 
removed the PPH from the drinking water supply, it went 
undetected for more than 2 weeks after the spill was reported. 
The only reason authorities knew to start looking for PPH is 
because, Freedom Industries admitted, 2 weeks later, that PPH 
also spilled.
    EPA has only written Safe Drinking Water Act regulations 
for 90 contaminants. MCHM an PPH are not one of the 90. In fact 
there is very little known at all about the safety of these 
chemicals.
    While the lack of information of the safety of these 
chemicals is concerning, what troubles me in my capacity as 
chairman of the Water of Subcommittee is the lack of 
information downstream drinking water provider had of these 
chemicals' presence being stored on the banks of the Elk River 
just 1.5 miles upstream.
    The responsibility to provide safe drinking water to 
thousands of customers is enormous. There are standard industry 
procedures used to treat for common microbial contaminants and 
turbidity but not most chemicals. Treatment for chemicals, on 
the other hand, can be very complex. With more than 80,000 
manufactured chemicals in commerce we can't expect every water 
provider to test and treat their water for every known 
chemical.
    We can and should expect drinking water providers to test 
and treat for known potential contaminants within their 
watershed boundaries. But they need to know what potential 
threats are out there to do so effectively.
    Section 1453 of the Safe Drinking Water Act required EPA to 
publish guidance for states to implement source water 
assessment programs that delineate boundaries of the areas from 
which systems receive water, and identify the origins of 
contaminants within those areas to determine systems' 
susceptibility to contamination. These assessments can be 
incredibly helpful if they are kept up to date. The law, 
however, has no update requirement.
    If West Virginia American had accurate and up to date 
information on the chemicals being stored in the watershed it 
would have been better prepared to detect and treat for MCHM 
and the crisis could have been avoided or at least very least 
mitigated.
    But the responsibility for preventing a health crisis 
resulting from an individual's or corporation's irresponsible 
actions that foul a source waters should not fall squarely on 
the shoulders on the water service provider at the expense of 
individual ratepayers. The law needs to place greater 
responsibility on the entities creating the risk and emphasize 
prevention at the potential source of contamination. It is 
entirely unfair to socialize the expense of recovering for the 
mistakes of a single entity.
    We're seeing this playing out right now in West Virginia. 
West Virginia American continues to spend thousands if not 
millions of dollars to recover from this spill. These expenses 
will ultimately be passed along to their 300,000 customers. 
Some of these customers will likely to have to make personal 
investments to repair or replace damaged hardware and 
appliances caused by the spill. Meanwhile, Freedom Industries 
has filed for bankruptcy to protect their financial liability 
for damages from a incident that they are responsible for.
    I want to believe that most companies that produce, store, 
ship and sell potentially hazardous chemicals are responsible 
actors. Its situations like this that clearly demonstrate that 
even if most actors are good, one bad actor can put at risk the 
health and safety of hundreds of thousands of people and that 
there is a very appropriate and essential role for government 
to play to protect those people from the potential negligence 
of others.
    The Safe Drinking Water Act does not provide specific risk 
prevention enforcement measures for the State to implement on 
identified risks in the watershed assessment. That's not to say 
states can't pass such laws, but it is entirely appropriate, 
given how waters flow across State lines and in many instances 
establish State borders, for there to be better Federal 
enforcement mechanisms.
    The West Virginia Senate recently passed legislation, with 
unanimous bi-partisan support, to improve the monitoring and 
spill prevention requirements of chemical facilities in the 
state.
    I would like to think that there would be bi-partisan 
support in the U.S. Congress to make similar amendments to our 
Federal laws to better ensure the safety of all communities.
    The Federal role is clear. We need only look at the source 
of water for the U.S. Capitol to underscore this point. Our 
water in this building comes from high up in the Potomac River 
Watershed from an Army Corps reservoir, named after U.S. 
Senator Jennings Randolph from West Virginia. That reservoir 
straddles the West Virginia and Maryland border, yet it 
provides water to DC and suburban Maryland. This is just one 
example of a clear interest we have in improving Federal 
statute.
    I look forward to working with colleagues on these issues 
so that we may prevent the next crisis from occurring in each 
other's state.

    Senator Cardin. I want to thank the responders, the people 
at FEMA, the National Guard and many others who did incredible 
work to provide safety and information to the people of West 
Virginia and minimized the otherwise catastrophic impact of 
this episode.
    I also want to point out that we need to look at the cost 
issues. The company involved has filed bankruptcy, trying to 
avoid the full financial impact, which means the ratepayers of 
West Virginia and many homeowners are going to be suffering. 
What do we do about that?
    I also want to look at the issue of federalism. I know the 
Senate in West Virginia has acted on legislation. I know it is 
under consideration in both the House and the Senate in the 
State, but this is an issue of federalism.
    The water we drink here, this tap water that came from the 
tap we hope is safe, comes from the Potomac River Watershed 
named after U.S. Senator Randolph Jennings from West Virginia. 
It comes from West Virginia and Maryland into D.C., so yes, 
federalism says the States need to act but the Federal 
Government also needs to act to make sure we have safe drinking 
water for all the people of our country.
    I am very pleased to have our colleagues here from both the 
House and the Senate. We have many people on the next panel who 
are experts in this area. I hope we can move forward together. 
Like the legislature in West Virginia, I hope that the Congress 
can move forward in a bipartisan. My understanding in the 
Senate, it was a unanimous vote. I hope we can move forward in 
a bipartisan manner to change our laws and oversight to make 
sure we keep our people safe.
    With that, let me turn to Senator Vitter.

            OPENING STATEMENT OF HON. DAVID VITTER, 
            U.S. SENATOR FROM THE STATE OF LOUISIANA

    Senator Vitter. Thank you, Chairman Cardin and Chairman 
Boxer for convening this really important subcommittee hearing 
today on the West Virginia chemical spill.
    My thoughts go out to the more than 300,000 individuals 
directly affected by this accident. I hope today's panel can 
better help us understand the circumstances surrounding this 
spill to enhance response and prevention in the future.
    I certainly want to commend Senator Manchin, 
Representatives Capito and Rahall, and all those who have 
worked tirelessly in the wake of this unfortunate spill. On the 
Senate side, Senator Manchin, with others, has introduced 
legislation in response to the spill. While I have specific 
issues with it that we are working through, I am completely 
supportive of the effort and hope to come to a positive 
resolution of those specific issues very soon.
    A crucial part of the legislative process is undertaken at 
the committee level where traditionally bills are brought to 
markup for an open and transparent discussion. Members from 
both sides of the aisle are allowed to voice their opinions and 
offer amendments to be voted on.
    I want to thank Chairman Boxer for agreeing to a markup 
later this week. I fully support that process, but I also want 
to encourage more of that, more markups where there is 
significant bipartisan work going on.
    Senator Manchin's bill, along with other important pieces 
of legislation, like our Chemical Safety and Improvement Act, 
should be brought before this committee in a markup to allow 
the legislative process to play out. In an age where compromise 
is so rare, it is unfortunate that any bill which has 
significant support throughout the Senate would not move 
expeditiously. Multiple bipartisan bills in addition to the 
Chemical Safety and Improvement Act continue to wait for markup 
and I certainly support action in all of those areas.
    In this instance, it is clear that important information 
was not readily available on certain chemicals which got into 
the Elk River, further highlighting the need for reforming our 
Nation's outdated law that assesses chemical risks, the 38 year 
old Toxic Substances Control Act.
    I am certainly proud to have introduced the first ever 
bipartisan TSCA reform bill with the late Senator Lautenberg. 
As many of you know, that is currently sponsored by 25 Senators 
from both parties spanning the entire political spectrum.
    For the last 6 months, Senator Udall and I, along with 
other members of the Senate, including Senator Manchin, have 
worked tirelessly to improve that already bipartisan agreement 
and have made significant strides in this regard. The bill we 
have now is not the bill we initially introduced because we 
have carefully listened to stakeholders and made significant 
and measurable improvements.
    A vast majority of States, West Virginia included, have 
resource constraints and need the certainty of a strong Federal 
program that develops risk assessments and regulations based on 
sound science. It is important to quickly explain how CSIA 
would unequivocally help States and the American people with 
greater access to information aiding in the understanding and 
response to such an incident as this.
    I guess the bottom line in that regard is that the lack of 
health and safety data on any of the chemical compounds which 
spilled in West Virginia would have been enough under our bill 
for EPA to have classified them as high priority, requiring a 
full and robust safety assessment and determination.
    Our bill would have granted greater authority to EPA to 
ensure assessment and determination be informed by new studies 
ordered by EPA without having to go through the formal 
rulemaking process or find that the chemical may pose an 
unreasonable risk.
    The bill would also reduce barriers for the agency that 
exist now and would also allow for greater sharing of 
confidential information between EPA, State and local 
governments, as well as first responders and health 
practitioners.
    Finally, I want to welcome all of our witnesses today, in 
particular the members that I recognized, as we look to what 
happened in their State of West Virginia. I look forward to an 
important discussion.
    Thank you.
    Senator Cardin. Senator Boxer.

           OPENING STATEMENT OF HON. BARBARA BOXER, 
           U.S. SENATOR FROM THE STATE OF CALIFORNIA

    Senator Boxer. Thank you, Senator Cardin, for your great 
leadership. Thank you, Senators Vitter and Boozman for agreeing 
this and welcome to all.
    I want to make a statement about TSCA but most of my 
statement will not be about TSCA. I want to enter into the 
record an article entitled, The Chemical Safety Improvement Act 
Will Not Solve the Problems Illustrated by the West Virginia 
Chemical Spill.
    Senator Cardin. Without objection.
    [The referenced information follows:]
    The Chemical Safety Improvement Act will not solve the problems 
            illustrated by the West Virginia chemical spill
                        posted january 15, 2014
Daniel Rosenberg, Senior Attorney, Washington DC

    In the wake of the recent chemical spill into the Elk River and the 
drinking water supply of several hundred thousand West Virginians, a 
new call has been raised to quickly move bi-partisan legislation 
introduced in May 2013 to reform the Toxic Substances Control Act 
(TSCA). Unfortunately, it would be compounding one environmental 
disaster with another to move forward with that legislation, the 
Chemical Safety Improvement Act (S 1009), in its introduced form. While 
some individual provisions of S. 1009 are potential improvements over 
TSCA, other provisions would mute or erase their impact and the bill as 
a whole would leave the public with even less protection. That bill, as 
is, would leave EPA hamstrung and prevent states from taking action. 
TSCA, first passed in 1976 (and never updated) has largely been a 
failure. Intended to give EPA the authority to regulate the 
manufacture, use, distribution and disposal of chemicals ``from the 
cradle to the grave'' it has yielded virtually no meaningful regulation 
or protection, particularly from the tens of thousands of chemicals 
that were in commerce at the time the law was enacted. The law 
``grandfathered'' in chemicals like the one that leaked in West 
Virginia, 4-methyl-cyclohexane-methanol(MCHM), meaning that they 
remained on the market unregulated even though virtually no information 
was available on any risks they might pose. The law ``grandfathered'' 
some 62,000 chemicals, and did not require that EPA test them for 
safety or ensure that they met a standard of safety.
    The law also contained provisions making it difficult for EPA to 
require testing of chemicals, and saddled the agency with a requirement 
to prove that it had examined and done detailed analysis on virtually 
any possible means to regulate a chemical before settling on the 
appropriate set of restrictions. The impact of these provisions was 
fully revealed in 1991 when a Federal court overturned EPA's attempt to 
ban most uses of asbestos, which is known to cause disease, including 
cancer, after a 10-year effort. Since that time EPA has not regulated 
another chemical substance under TSCA. In total, the agency has 
regulated only six of the original 62,000 substances under the law.
    Health, science, labor, consumer, justice and environmental 
organizations from across the country have been working toward reform 
of TSCA for years in an effort to ensure the existence of a strong 
Federal program for assessing the safety and regulating chemicals. 
Unfortunately, the Chemical Safety Improvement Act (CSIA), as 
introduced, would fail to ensure such a program, and at the same time 
would prevent State and local governments from taking action to protect 
their citizens--which is what has taken place in the absence of Federal 
action under TSCA. On balance, the CSIA would actually be worse than 
current law.
    In the wake of the West Virginia spill, the outcry has been to 
ensure that information is available about risky chemicals and that 
those risk be limited. But the CSIA in its current form would require 
EPA to go through as much as a decade of preliminary steps before it 
could start regulating additional chemicals. Even after analysis began, 
it would continue to make it hard to get information on existing 
chemicals and to use that information. The bill makes it easy, though, 
for the agency to decide that a chemical is a ``low priority'' and to 
never regulate it. And the bill blocks states from taking action on 
chemicals even if EPA has not acted or will never act.
    Here are just a few of the many problems with the introduced 
version of the Chemical Safety Improvement Act:

    The safety standard in the legislation is not protective of public 
health. It would not ensure the protection of vulnerable populations, 
including those more heavily exposed to toxic chemicals and those--like 
pregnant women, children and the elderly--more vulnerable to the toxic 
effects of chemicals. And the safety standard could still allow 
consideration of cost as a factor in determining whether a chemical was 
safe and could be regulated by the EPA, the same failure as under the 
existing law.
    The bill contains no enforceable deadlines for EPA to take action 
to assess or regulate chemicals, and establishes no minimum number of 
chemicals for the agency to assess each year. With thousands of 
chemicals never assessed for safety, and with industry and 
congressional opposition to most steps taken by EPA to assess or 
regulate chemicals to date, a failure to include enforceable deadlines 
and minimum requirements ensures that nothing would happen under this 
new ``improved'' TSCA.
    In addition to the lack of enforceable deadlines, the bill contains 
pages of provisions that would tie the agency up in red tape, delaying 
potentially for years any effort by EPA to prioritize, test, assess and 
regulate chemicals. In addition, the bill is laced with provisions that 
would further hamper EPA, and put a thumb on the scale in favor of 
chemical industry-preferred methodologies for assessing chemicals over 
methods endorsed by the National Academy of Sciences.
    The bill would prevent EPA from requiring testing of a chemical 
unless it has been classified as ``high priority'' which in many cases 
may be difficult without some additional testing--due to the lack of 
available health for thousands of chemicals in commerce--including 
MCHM. This is one of many provisions designed to ensure that ultimately 
the number of chemicals assessed and actually regulated are very low. 
As far as the lack of available health data for most chemicals in 
commerce, one of the reasons for that is the excessive protection for 
claims of Confidential Business Information (CBI) which have been 
abused over the years and resulted in protection of information that is 
not actually CBI. The bill would grandfather in all previous CBI 
claims, including the identity of some 16,000 chemicals.
    Another problematic provision would allow EPA to designate a 
chemical as ``low-priority'' meaning ``likely to meet the 
[unprotective] safety standard''--even when data to make an informed 
decision is lacking. In addition, once EPA made such a low-priority 
designation, states would be pre-empted from ever taking any action on 
the substance. Hundreds or thousands of substances could easily 
disappear down this memory hole, never to be thought of again unless 
perhaps they spill into somebody's drinking water supply.
    As noted above, the bill would also widely preempt states from 
taking action on chemicals, including high-priority chemicals, even 
when action by EPA may be years away, or may never occur at all. The 
bill would also take away states' existing authority to enforce Federal 
provisions of the law within their state. And the bill would eliminate 
existing authority for EPA to take quick action to protect the public 
from dangerous chemicals when such a need arises.
    Finally, the bill contains no provision to ensure that EPA has 
sufficient funding to run the type of program necessary to assess the 
safety of chemicals and ensure that those that remain in commerce are 
manufactured, processed, distributed, stored, used and disposed of with 
sufficient safety controls in place.
    In short, the problems with TSCA that are illustrated by the 
chemical spill in West Virginia would not be fixed by the Chemical 
Safety Improvement Act, as introduced, and in some respects they would 
be made worse. The bill as currently written would provide the public 
with the illusion of an effective Federal program to regulate 
chemicals, while tying the EPA in knots and taking away existing State 
authorities. The chemical spill in West Virginia is an illustration why 
we need to strengthen the Toxic Substances Control Act (and certain 
other environmental laws); it is not a justification for enacting a 
flawed CSIA.
    Senator Boxer. I wanted to note that TSCA is not designed 
to address inspection of chemical storage tanks. It deals with 
classifying 80,000 chemicals. I look forward to a strong TSCA 
bill.
    The current bill, this is so important, my scientific 
experts say this particular chemical would be classified as low 
priority. Under the bill we have before us, the Vitter bill, 
the one we are working on, Senator Vitter, we will be giving 
you our response next week to that bill, there would be no 
ability for the State to act once a chemical is classified low 
priority.
    They would be precluded from acting and there would be no 
lawsuits allowed for the constituents of Senator Manchin and my 
colleagues here. Under the TSCA bill, no citizen could ever sue 
and the State would be preempted. We are going to work on a 
tough TSCA bill, one that is worthy of the name.
    Here is where we are. We are going to focus on what 
happened in West Virginia and what we can do now, not some long 
classification time and preemption of State laws and preemption 
of lawsuits for those injured. We are not dealing with that 
today. We set that aside today and we are going to act on how 
to fix the problem.
    I so appreciate all the electeds who are here today and 
those who have come today from the State because you have 
suffered from this. The impacts are ongoing. Residents are 
still concerned whether the water is safe to drink and 
businesses continue to feel the pain of the spill. You will 
tell me about the real impacts your families have been going 
through so I will not stress those here.
    We know that the CDC has advised pregnant women to avoid 
drinking tap water until there are no longer detectible levels 
in the system. Some businesses closed forcing employees to go 
without paychecks for days and some restaurants are still 
buying bottled water according to my information.
    Here is the situation. We had a tank filled with a chemical 
right near a drinking water supply. Because the risk assessment 
in the Safe Drinking Water Act was not used, no one knew what 
to do. The Manchin bill, which I am so proud to be a part of 
along with Senator Rockefeller, in the Senate what we say is 
this. If there is any type of storage facility that has a 
chemical in it which is near a drinking water supply, that 
particular tank, that facility must be inspected and we must 
know everything there is to know about the chemical regardless 
of any other laws which may be in place to help us.
    We need to focus on what the real problems are. Remember, 
there are 80,000 chemicals out there. There are just a few in 
this tank and we need to know what they are. The sadness is, as 
Senator Cardin so rightly pointed out, there haven't been 
inspections since the early 2000's and we really missed this.
    I am so sorry about that. I am unhappy about that. I want 
to work with my colleagues to fix it. This legislation, which 
we and our staffs worked hours on, puts in one place the tools 
necessary to protect our drinking water from chemical spills.
    It establishes State programs which parties from both sides 
support that will provide for regular inspections of these 
facilities, set design standards for the tanks, establish 
emergency response plans and provide information and tools to 
drinking water utilities to respond to future disasters.
    Senator Cardin, you are right. The current Clean Water Act 
does contain authority to deal with this but it is very loosey 
goosey. It is not clear and too much is left to the 
individuals. We need to make sure that in all of our States, if 
we have a chemical that could leak into a drinking water 
supply, we know everything about that chemical, we know what to 
do if something happens, we have the standards in place to make 
sure it is safely stored.
    I am very happy you did this. We will have a further 
hearing with the Chemical Safety Board to continue to focus on 
this. This is not a 1-day approach. This is the first day 
approach.
    I thank you all for being here.
    Senator Cardin. Senator Udall.

             OPENING STATEMENT OF HON. TOM UDALL, 
                  U.S. SENATOR FROM NEW MEXICO

    Senator Udall. Thank you, Senator Cardin.
    Let me welcome everyone from West Virginia here today and 
in particular, my colleagues in the Senate and my former 
colleagues in the House, both of whom I very much enjoyed 
serving with. I am looking forward to hearing from you today.
    Americans expect modern water services to be always 
available and if they are not, there are serious public health 
consequences. The West Virginia spill clearly highlights the 
huge impacts accidental releases of chemicals can have on our 
health and well being.
    Our hearts go out to the citizens of West Virginia who have 
suffered enormous anxiety for weeks now in the face of 
uncertainties about the risks posed by contact with MCHM and 
the additional chemicals impacting the State.
    All of us around the country should be paying close 
attention to this accident because it raises some key 
questions. How did a chemical storage company's accident manage 
to pollute drinking water for hundreds of thousands of people?
    I understand the State of West Virginia is increasing 
standards for this type of storage. That should be a reminder 
to all of us that reasonable environmental standards are not 
about burdens on the industry, they are protections for people 
and for taxpayers.
    This company has now declared bankruptcy. According to 
Business Week, the bankruptcy judge called it one of the most 
unusual cases he has seen and ownership changed hands 9 days 
before the spill. Are we assured this company will assume the 
liability here or will taxpayers, through Superfund, be forced 
to pick up the tab? We must be vigilant to ensure that these 
cleanup costs are met by the company. Corporate shell games 
should not be able to avoid responsibility.
    Finally, why is the information about the chemicals leaked 
so limited and so secretive? OSHA says MCHM is hazardous. Why 
hasn't more testing been done about this chemical so that we 
know about its likely health effects from a spill like this? To 
me, this seems to be a key failure of our Nation's current 
chemical law, the Toxic Substances Control Act.
    Americans should, but cannot under this old law, feel 
confident that the government is reviewing and regulating all 
chemicals. These chemicals are not only in industry but also in 
products that all of us, including children and pregnant women, 
come into contact with every day.
    Members of this committee are well aware that the late 
Senator Lautenberg and Senator Vitter introduced the Chemical 
Safety Improvement Act. This is the first bipartisan bill to 
reform TSCA ever. I believe we should capitalize on that key 
development and finalize the bill that can have broad support 
in the Senate, including our chairman, Chairman Boxer.
    Several Senators have been working earnestly with 
stakeholders have been engaged in serious discussions over the 
past 8 months to strengthen and improve this key bipartisan 
bill. I would like to take a moment to clear the air and say to 
everyone that regardless of where you stand on that bill, there 
are significant changes happening to it.
    I believe that we are succeeding improvements, although we 
still have a ways to go. In particular, we need to understand 
in what ways TSCA reform could have lessened the impact of 
events like the spill in West Virginia. First and foremost, we 
need to ensure that reform addresses chemicals that lack 
sufficient information to determine their safety.
    Furthermore, we need to ensure that safety and health 
officials have quick and easy access to any existing and 
available information when such tragedies as this happen.
    These are all solvable and I think the solutions are near 
to us. I am not going to speak for anyone else besides myself 
but soon I hope we can publicly circulate an updated version 
addressing many of these issues so that we can move beyond 
talking about an outdated bill as introduced.
    We need to remind ourselves that every American comes in 
contact with chemicals on a daily basis, not just during times 
of accidents. I am confident that the ongoing discussions on 
TSCA reform are headed in a positive direction and can allow 
Americans to know that consumer products they invite into their 
homes on a daily basis are safe.
    If we can do that and help protect communities at risk from 
spills like this, I think all of our constituents will thank 
you very much.
    Thank you, Senator Cardin. I appreciate you and Chairman 
Boxer doing this.
    Senator Cardin. Let me thank my colleagues who are here for 
their participation.
    This is the Subcommittee on Water and Wildlife. We are 
going to concentrate on the Safe Drinking Water Act. That is 
the responsibility of this committee, to make sure that we have 
safe drinking water.
    Obviously it affects how we handle chemicals in America but 
I would hope that we will focus on the adequacy of the Safety 
Drinking Water Act, particularly legislation that has been 
suggested by our colleagues.
    Also, just as a matter of reference, my staff has a chart 
that shows the aerial view just so we know the Elk River and 
where the West Virginia Intake Facility is located there on the 
left. Freedom Industries, where the spill occurred, is an hour 
and a half upstream from the intake. You can see how close all 
this is to the areas involved. I thought that would be helpful 
so we have a visual of the two particular areas involved.
    With that, I am going to turn to our colleagues. I want to 
than our two Senate colleagues, Senator Rockefeller and Senator 
Manchin for their extraordinary leadership on this issue, for 
their help to this committee and working with us to get today's 
hearing.
    It is nice to have Congressmen Rahall and Capito here with 
us, two of my former colleagues with whom I served in the House 
of Representatives. When I got to the House, I was appointed to 
the Transportation Committee and there was Congressman Rahall 
to help me understand the importance of what we do in the 
Congress as it relates to the infrastructure of this country.
    It is a pleasure to have all four of our colleagues here. 
Your full statements will be made a part of the record. We will 
start with Senator Rockefeller.

          OPENING STATEMENT OF HON. JAY ROCKEFELLER, 
          U.S. SENATOR FROM THE STATE OF WEST VIRGINIA

    Senator Rockefeller. Thank you very much, Mr. Chairman and 
Chairman Boxer.
    We have just referred to this as drinking water. Drinking 
is just one very small part of what this toxic water does. It 
causes people who have money enough to have a vacation home 
somewhere to get out of that nine county area and go there so 
they can take a bath.
    I know several people who commute on a daily basis just to 
be able to do that. Those people do not have those second 
homes, so they are left to deal with the horror of what this 
is.
    I can tell you, Mr. Chairman, there are a number of people 
I could but will not name to you who have said they are 
considering moving out of West Virginia because they have young 
children and have no confidence in the future, no confidence in 
our regulatory scheme either at the State or Federal level, and 
they are not taking any chances because they don't know what 
that water is going to be like in the future, and neither do I.
    West Virginians want to know four things. How did this 
happen? Is the water now safe? There are various views on that. 
What are the long term health consequences? Senator Udall 
mentioned that and it is enormously important. If cancer goes 
into remission, does that mean it is gone? No. You wake up 
every day thinking it might come back, not being sure. That is 
a horrible feeling for bringing up a family and settling in. 
Finally, how do we make sure this never happens again?
    Right after this happened, I called the Chemical Safety 
Board and they are investigating this bill. They are very good 
at it. In addition, the State is addressing this and criminal 
investigation is going on. Senator Udall mentioned the fact 
that Freedom had taken bankruptcy. That certainly was 
convenient for them, wasn't it? They want to get out of paying 
any kind of fine.
    Senator Schatz and I have a bill, which will no doubt be 
beaten by corporate interests in this Congress, saying they 
should be fined and pay every single nickel to clean up the 
mess they made, not just in peoples' lives but literally in 
situ. It is a good bill. Will it pass in this money trumps all 
world that we live in? I am not sure.
    Despite the government's insurance that the water is safe, 
doubt does linger. It is in the nature of people. There are too 
many unanswered questions. State and Federal officials are 
working very hard but deficiencies are replete in our 
regulatory structure.
    A word here. I happen to be something called a Democrat. I 
believe in spending money on infrastructure. I think it is 
important that we do that. That is not the mood of this 
Congress or at least enough of the Congress to stop anything 
from happening.
    Invest in schools, invest in clean water, invest in roads, 
invest in all of those things which are part of safety for 
either imbibing of water or anything else you might do, that 
costs money. There might be some user taxes or a little bit 
more taxes. No, that will never happen. This has never been a 
part of the 30 years I have been in the Senate but it sure is 
now.
    People say let the industry take care of it. That is an 
Appalachian myth. I came from that side of Appalachia so 
sometimes I see Appalachian ways that are different than others 
but the idea that somehow God has it in his plan to make sure 
that industry is going to make life safe for you, not true.
    Industry does everything they can and gets away with it 
almost all the time, whether it is the coal industry, not the 
subject of your hearing, or water or whatever. They will cut 
corners and they will get away with it. Regulation is soft in 
West Virginia. It has always been soft, frankly, when you put 
that together with sequestration and government shutdowns and 
the whole theology of don't cause anybody to do anything in 
this country which would cause water to be cleaner, bridges to 
be safer and all the rest of that.
    That is the story as I see right now. I am astounded, 
Senator Udall, that Freedom, as you say, timely 9 days before, 
is getting away with this unusual bankruptcy. All they want to 
do is say we don't want to pay, somebody else has to pay.
    Appalachian culture, a little bit of it, I am sorry to say 
that. Scotch-Irish culture, a little bit, I am sorry to say. 
Fatalism, the world is as it is, we accept the world as it is 
and the point is, no, you don't accept the world as it is. You 
accept the world as it should be and then you make it conform 
to that posture.
    I am here angry, upset, shocked, embarrassed that this 
would happen to 300,000 absolutely wonderful people who work in 
coal mines--don't get me into that subject. They are depending 
on the fruit of the land wherever it may be for survival. They 
are making it but barely.
    I think I will stop there for my own good.
    Senator Cardin. Thank you, Senator Rockefeller. We always 
appreciate your passion on these issues.
    Senator Manchin.

            OPENING STATEMENT OF HON. JOE MANCHIN, 
          U.S. SENATOR FROM THE STATE OF WEST VIRGINIA

    Senator Manchin. Thank you, Chairman Cardin and Ranking 
Member Boozman, for holding the hearing today. I really 
appreciate your finally bringing national attention to this 
issue as only we here in Congress can do.
    I want to thank Chairman Boxer who has worked tirelessly. 
She jumped right in there with me in the immediate aftermath of 
this spill. She never hesitated, never blinked and her staff 
went around the clock until we had a piece of legislation we 
thought would not only help cure the problem in West Virginia, 
would have prevented the problem in West Virginia, and would 
definitely prevent this from happening anywhere in the country. 
That is our goal.
    On January 9, less than 4 weeks ago, thousands of gallon 
crude, MCHM, leaked from a storage tank into the Elk River. We 
all know that. It contaminated the drinking water of 300,000 
West Virginia residents, which is unconscionable.
    In our State, we have always worked hard. We have really 
worked hard to produce the energy and chemicals we use every 
day and take for granted. We are proud of the work we have done 
for this great country. That cannot come at a cost of access to 
safe and clean drinking water or to the safety and confidence 
of the people of West Virginia.
    This spill should never have happened and it is our 
responsibility in Congress, working with the States to do 
everything we can to keep it from happening again, not just in 
West Virginia but anywhere in America.
    That is why I worked with Chairwoman Boxer to develop the 
Chemical Safety and Drinking Water Protection Act. I thank 
Senator Rockefeller, my colleague from West Virginia, for being 
so instrumental in this. I appreciate that.
    Our bill would require State inspections of all above 
ground chemical storage facilities and more frequent 
inspections of those facilities located near drinking water 
sources. It sets minimum Federal standards that chemical 
facilities must meet including construction and leak detection 
requirements, failsafe containment standards, the development 
of emergency response plans and financial responsibility 
requirements which we see all too lax.
    Additionally, companies must inform the State, the Federal 
EPA and local water systems of chemicals they store. That 
information is only so helpful when we don't have adequate 
health and safety data on these chemicals. That is why I am 
also a co-sponsor and totally committed to the Chemical Safety 
Improvement Act, which I know everyone is working in the best 
interest they can. I appreciate that.
    Under the Chemical Safety and Improvement Act, states could 
request that the EPA prioritize the testing of specific 
chemicals even if they aren't detected or determined to be of 
high concern, including those held near waterways which 
specifically we should know everything near a waterway that is 
anything other than drinking water.
    For chemicals like MCHM, the overwhelming lack of health 
and safety data is one of the criteria for designing and 
designating a chemical as a high priority.
    The bottom line is that no West Virginian or American 
should have to worry about the contamination of their water 
supply from a chemical spill and I will do everything in my 
power to enact legislation to protect safe drinking water. 
These two bills will go a long way to ensure that every 
American has access to safe drinking water and that, God 
forbid, if an incident like this occurs again, we have the 
tools to respond as quickly and effectively as possible.
    Today, I am asking all West Virginians, the EPA, the CDC, 
the West Virginia DEP, and all those involved to join me in 
pledging to make sure the water in the Kanawha Valley is the 
cleanest and safest in America. That should be our goal here 
today.
    I want to also thank the CDC and EPA. As I understand, they 
are in our State today working with all of our State officials 
and basically restoring confidence in the water we have, making 
sure we are all on the same page and that it is safe for human 
consumption.
    I just pray to God that no one goes through this. If it is 
wake-up call for all of us, then let it be a wake-up call and 
let us act.
    Thank you for having me.
    Senator Cardin. Thank you, Senator Manchin.
    Congressman Rahall.

            OPENING STATEMENT OF HON. NICK RAHALL, 
      U.S. REPRESENTATIVE FROM THE STATE OF WEST VIRGINIA

    Mr. Rahall. Thank you, Chairman Cardin. I appreciate your 
having this hearing and allowing myself and our colleagues to 
speak to you and to full committee Chairman Boxer about the 
recent events in West Virginia.
    I am going to be very brief because I know you have a panel 
of experts following our panel. I want to thank both Senators 
Rockefeller and Manchin, along with Chairman Boxer and Chairman 
Cardin for the tremendous work you have done on legislation to 
bring forward to the Congress.
    I want to particularly thank Senator Rockefeller. He 
mentioned, while not from Appalachia, this gentleman has 
dedicated his entire career to the public health and safety of 
the people of Appalachia. Words would never be adequate enough 
to say thank you to our senior Senator for what he has done for 
the people of West Virginia. I want to publicly express that 
appreciation today.
    The recent chemical spill in our State has caused not only 
much well founded concern but also deeply felt anxiety. You 
have already heard that today. There is certainly a great deal 
of mistrust in the air as much as suspicion about what is in 
the water.
    Factual information in the wake of that spill is critical 
to all of us. There are too many unanswered questions for which 
we all need answers. The recent information that has come to 
light after the spill has only exacerbated the tremendous 
mistrust people already had for government. That certainly has 
gotten worse since this spill.
    I think it is proper that Congress conduct these hearings 
to understand the facts as well as the limits of congressional 
action before rushing headlong into something that we won't 
regret but is going to need much work later on.
    On the day of the spill when State authorities arrived at 
the Freedom Industries site, they encountered a company that 
was either unaware of the leaking chemical or unwilling to 
admit they had a problem. When told to follow protocol and 
report the leak, the company dragged its feet and when it 
finally did report it, company officials mischaracterized the 
seriousness of the situation and the threat it posed to our 
people.
    Certainly Congress can require a better understanding of 
the risks of chemicals, it can help states improve emergency 
response and preparedness but I am not sure that Congress can 
ever completely legislate away the irresponsibility and the 
disregard for public welfare recently exhibited by Freedom 
Industries and whatever other shell operations were set up.
    West Virginians do care about the health and safety of our 
families and neighbors. Our State legislature, as you 
referenced, Mr. Chairman, is working on bills to fix the legal 
loopholes and regulate chemical storage tanks but legislation 
alone will not repair the damage done to the public's trust, 
mistrust of government and the public's trust in the policies 
that emanate from this city and oversight at all levels where 
they feel they have been let down.
    To so many in my State, for example, the EPA has become the 
agency of no, an agency that only tells us what cannot be done 
rather than helping us to discern how we can do those things we 
need to do better. We are poorly served as a result.
    My hope is that the Federal Government, rather than acting 
from on high and imposing broad solutions will listen to our 
concerns as you will hear today from this panel and tailor the 
response accordingly.
    As I conclude, Mr. Chairman, I again thank you for this 
hearing. I ask that this committee work with myself and our 
committee on the House side, the Transportation and 
Infrastructure Committee that will be conducting a hearing in 
Charleston, West Virginia next Monday and together we hope to 
find a better way to protect or people and keep this from 
happening again.
    Thank you, Mr. Chairman.
    Senator Cardin. Thank you, Representative Rahall.
    Representative Capito.

           OPENING STATEMENT OF HON. SHELLEY CAPITO, 
      U.S. REPRESENTATIVE FROM THE STATE OF WEST VIRGINIA

    Ms. Capito. Thank you, Chairman Cardin, Chairman Boxer, 
Senator Vitter and Senator Udall. It is wonderful to be on a 
panel with my colleagues.
    I think it is important for you to know that in West 
Virginia we have always been very proud of our water. It is one 
of our stars in our quiver. This has really rocked us.
    I live in the Kanawha Valley. I represent the Kanawha 
Valley and this affects my home and my family as well. It 
affects restaurants like Mr. Huey in Hurricane. It affects 
people who work for him who were not able to work during this 
time and the long term health effects of the January 9 spill I 
think are still under question.
    As Senator Rockefeller said, I think we want people to be 
held accountable for what has happened here. We want to prevent 
such accidents from happening again. At the baseline, we want 
to know that the water we are drinking is safe.
    Many questions about the spill still linger. We are having 
a hearing on Monday in Charleston to try to help answer some of 
these questions and examine not just State but most 
importantly, the Federal laws and strengthening our laws.
    One of the things that really rocked me is when the CDC 
came in, they had an all clear, you can drink water and then 2 
days later, the CDC says if you are a pregnant woman, we 
recommend that you probably don't drink the water. What kind of 
signal does that send to anybody, particularly young families?
    Senator Manchin and I wrote a letter to the CDC asking for 
their testing protocols, how they were making decisions and 
what involvement might be tightened and made better so if you 
give assurances you can drink water that you actually are 
assured that it is safe.
    The other thing is the slow bleed of misinformation. It 
first comes out that you can drink the water, maybe not. Then a 
week later, it might have been more than a week later, it comes 
out there was not just one chemical in the water of MCHM, there 
was another chemical in the water at the same time that was 
leaked into the Kanawha Valley.
    That does nothing for the confidence of anybody living 
there, any family living there that this situation is under 
control. It is very disheartening.
    The company obviously did not accurately report. They did 
not report in timely fashion. We had to wait for somebody to 
smell something close by before they called emergency officials 
and then and only then did the company say something is 
leaking. Then it comes out later that maybe it has been leaking 
for 10 hours before anyone was actually notified as to what was 
going on.
    It has rocked our confidence. It absolutely unacceptable 
that freedom did not immediately notify and there was not 
better information with our first responders.
    As has been said, the State legislature is moving quickly 
toward passing a new law. I congratulate them and I support 
State level efforts but I think we need to continue to examine 
changes we have talked about today at the Federal level.
    I am a mother and a grandmother. I live in the Kanawha 
Valley. I understand the fear and trepidation and anger the 
people feel because I feel it too. We have to get to the bottom 
of this where people are trusting that their tap water is safe 
and it will not happen again.
    We have this responsibility. I congratulate the Senate 
committee and look forward to our House hearing next week in 
Charleston.
    I thank you for your interest in the impact of this bill.
    Thank you.
    Senator Cardin. Let me thank all four of our colleagues.
    I particularly want to underscore the point that 
Congressman Rahall made about our colleague, Senator 
Rockefeller. He has been a real treasure for us in the U.S. 
Senate. We know we still have him for another year. We are not 
rushing his term but he has been an incredible voice on behalf 
of the people of our country not just West Virginia. I 
appreciate your comments.
    We are going to move on to our second panel.
    Let me welcome our second panel. We are pleased to have the 
experts from West Virginia today who can help us sort out what 
happened earlier this year.
    We welcome: Hon. Natalie E. Tennant, Secretary of State of 
West Virginia; Hon. Randy C. Huffman, Cabinet Secretary, West 
Virginia Department of Environmental Protection; Erik D. Olson, 
Senior Strategic Director for Health and Food, Natural 
Resources Defense Council; Mr. Brent Fewell, Vice President of 
Environmental Compliance, United Water; Mr. Michael W. McNulty, 
General Manager, Putnam Public Service District, West Virginia; 
Mr. Richard O. Faulk, Partner, Hollingworth, LLP; and Mr. R. 
Peter Weaver, Vice President of Government Affairs, 
International Liquid Terminals Association.
    We will start with Hon. Natalie Tennant.
    Senator Carper. Mr. Chairman.
    Senator Cardin. Senator Carper.
    Senator Carper. Could I ask a favor? I am a native West 
Virginian. I have a lot of family and relatives in West 
Virginia, some of whom have been adversely affected by this 
tragedy.
    I just want to say I am going to be in and out of the 
hearing but I want to say when I leave, please do not think I 
am not interested. It is especially great to see the Secretary 
of State who is not an old friend but a friend of long 
standing. I am delighted you could be here with us to speak.
    We look forward to hearing from all these witnesses.
    Thank you.
    Senator Cardin. As I think is obvious to members of the 
Senate, there are many committee hearings going on. Senator 
Carper has responsibility as Chair of one of the most important 
committees in the Senate. We certainly understand that.
    For our witnesses, all of your testimony will be made a 
part of our record. Your written testimony will be made a part 
of the record. You may proceed as you wish. Because we have 
such a large panel, we would ask you try to keep your comments 
to the 5-minutes that is allotted.
    With that, we will start with Hon. Natalie Tennant.

               STATEMENT OF NATALIE E. TENNANT, 
               SECRETARY OF STATE, WEST VIRGINIA

    Ms. Tennant. Thank you so much, Chairman Cardin, Ranking 
Member Vitter, Chairman Boxer, Senator Carper, it is good to 
see you again, also, and to all the members of the committee 
who will be reading this report.
    Thank you for holding this hearing. Thank you for inviting 
me to share the challenges that West Virginia families and 
businesses have been facing and continue to face.
    I also want to especially thank you, Madam Chair, and our 
West Virginia Senators who so much was said about Jay 
Rockefeller and Joe Manchin for introducing the Chemical Safety 
and Drinking Water Protection Act of 2014.
    Lack of information has been our greatest challenge in West 
Virginia. That piece of legislation will go a long way toward 
providing the much needed transparency that we will have in the 
future.
    I must say now, Senator, at this time, West Virginians need 
answers now. The water ban has been lifted but too many West 
Virginians are still wondering if their water is really safe. 
First, we hear it is one chemical. Then we hear it is two 
chemicals. First, we hear it is 7,500 gallons. Then we hear it 
is 10,000 gallons. One day we are told the water is safe. The 
next day we hear that pregnant women should not drink it.
    It does not add up. Either it is safe or it is not safe. 
Quite frankly, people are fed up, they are angry and they are 
scared. I have families telling me that they are melting snow 
just to be able to give their children baths. As the mother of 
an 11 year old daughter, living in Kanawha County, I share 
those same concerns.
    As Secretary of State for them, I demand answers. I ask 
this committee to help me get those answers. I have called on 
the Centers for Disease Control and Prevention to explain to 
West Virginians how they determined what levels of MCHM are 
safe. On Friday, I launched a petition for West Virginians to 
join in my call for those answers. As of this morning, we had 
1,264 people who have signed on to that.
    Each of these signatures is a mom, is a dad, is a friend, 
is a neighbor and they deserve to know what is coming out of 
their faucets isn't going to hurt their families.
    Just this weekend I met with Dr. Rahul Gupta of the 
Kanawha-Charleston Health Department. Dr. Gupta is proposing a 
10-year study to monitor the long term health impact to the 
people who have been exposed to MCHM. I am asking this 
committee to work with us to provide those resources we need to 
begin that study right away.
    As one father wrote to me last week, ``We are accountable 
to our children's health and future.'` I agree. We owe it to 
our children to start this study today.
    As Secretary of State, my office is on the front lines with 
businesses every day in West Virginia, businesses like Bridge 
Road Bistro, which is famous in Charleston for its Sunday 
breakfast buffet. Bridge Road's manager, Sandy Call, told my 
office that they lost $40,000 during the do not use ban. They 
are continuing to spend an extra $500 a day to bring in bottled 
water because customers don't trust what is coming out of the 
tap.
    This mistrust is costing our restaurants money and time and 
they should be spending that time and money growing their 
business and hiring new employees and new workers. It is also 
jeopardizing our tourism industry. We cannot attract new 
businesses to create jobs in West Virginia if people don't 
believe that our water is safe.
    Our economy cannot fully recover until we regain the public 
confidence in our water supply. Quite simply, we need answers 
that we can trust.
    On behalf of all West Virginians, I thank you for holding 
this hearing and again ask your help in getting this 
information and resources that we need to restore the public 
confidence in our water and to protect against long term health 
risks.
    Thank you again, Mr. Chairman, for allowing me to be here 
and to speak for West Virginia.
    [The prepared statement of Ms. Tennant follows:]
   
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    Senator Cardin. Thank you very much for your leadership on 
this issue.
    Secretary Huffman.

STATEMENT OF RANDY C. HUFFMAN, CABINET SECRETARY, WEST VIRGINIA 
             DEPARTMENT OF ENVIRONMENTAL PROTECTION

    Mr. Huffman. Thank you, Chairman Cardin and Chairman Boxer.
    The State of West Virginia and its Department of 
Environmental Protection appreciate and welcome the opportunity 
to address this committee.
    I am hopeful that by sharing West Virginia's experience 
from the perspective of an environmental regulator and not as a 
public health official, I can provide insight to you and other 
States as we week to provide a more comprehensive regulation of 
the pollutants stored in above ground storage tanks so as to 
better protect human health and the environment and minimize 
the risks associated with this industrial activity.
    On January 9, 2014, DEP received a complaint concerning an 
odor around a tank farm owned by Freedom Industries. At 12:05 
p.m., a Freedom Industries employee reported the spill to DEP's 
Emergency Response Spill Hotline and stated that the facility 
had discovered a hole in one of the tanks containing 4-
Methylcyclohexane Methanol, MCHM.
    DEP officials shut down the site and instructed Freedom to 
immediately take all necessary measures to contain, recover and 
remediate the material that had escaped from the above ground 
storage tank and the secondary containment structure.
    This incident highlights an issue that exists not only in 
just West Virginia but all over the country. While all states 
have substantially similar regulations for underground storage 
tanks based on regulations promulgated by the EPA, the same is 
not true for their surface situated counterparts.
    EPA does not have regulations pertaining to all above 
ground storage tanks. The states that do regulate them do so in 
a myriad of different ways. One similarity is most states that 
have above ground storage tank regulations have them as a 
result of an event similar to what has just happened in West 
Virginia.
    Also, most states focus primarily on tanks containing 
petroleum products or hazardous waste or materials regulated by 
CERCLA. This leaves virtually unregulated an entire universe of 
pollutants stored in above ground tanks. With hindsight, it is 
easy to see a potential threat existed on the Elk River and 
that clarity sharpens our focus looking forward.
    According to the EPA TSCA Chemical Inventory, there are 
approximately 84,000 known industrial chemicals being used in 
this country today. About 20,000 of those have been added to 
the list in the last 30 years with little change in the list of 
regulated chemicals.
    While most of these materials are not currently classified 
as hazardous, the truth is, we simply do not know enough about 
them. The material that leaked into the Elk River on January 9 
is one of those chemicals.
    The West Virginia legislature is considering legislation 
that would help to fill the void that currently exists in the 
regulation of above ground storage tanks. The bill being 
discussed in the legislature today requires some things that 
are very important from DEP's perspective.
    One of the most important is to have a registered 
professional engineer or other qualified individual inspect and 
test the tanks and secondary containment annually and certify 
their integrity.
    On the Federal side, we also support the Manchin-Boxer 
proposed legislation to tighten the standards in the Safe 
Drinking Water Act. By requiring EPA to establish minimum 
acceptable standards by which the states will be held 
accountable, we can significantly reduce the risk of similar 
problems in the future.
    West Virginia's proposed above ground storage tank program 
has been modeled after the very successful underground storage 
tank program DEP has operated for more than two decades. The 
UST program was developed in the late 1980's because 
environmental regulators recognized that over 2 million UST 
systems, estimated to be located at over 700,000 facilities 
nationwide, existed with little or no oversight and that over 
75 percent of the existing systems were made of unprotected 
steel, a type of tank system proven to be the most likely to 
leak and thus, create the greatest potential for health and 
environmental damage. The success of this program nationally is 
indisputable.
    The above ground storage tank universe is not nearly as 
well known. Many of these facilities are regulated by 
registering under a general NPDES stormwater permit, because 
the only environmental impact these tanks were thought to have 
was stormwater runoff. Above ground storage tanks can also be 
found at facilities covered by individual permits but that 
permit does not require integrity testing or leak detection 
monitoring either.
    The registration requirement in the current legislation is 
the key to our getting a handle on the universal structures 
that are currently under regulated. We are optimistic that the 
legislation currently pending in West Virginia will greatly 
reduce the risk that we will suffer a repeat of this type of 
incident and that we can serve as an example to other states to 
be more proactive in their regulation of these structures so 
they do not find themselves in the situation with which we are 
currently dealing.
    Thank you for the opportunity to be here and speak to you 
about the water crisis in West Virginia. This crisis reminds us 
of how basic and fundamental clean water is to a stable society 
and how vulnerable our water supplies are, not only in West 
Virginia, but across the Country.
    Thank you.
    [The prepared statement of Mr. Huffman follows:]
    
    
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    Senator Cardin. Thank you, Secretary Huffman, for that very 
thorough presentation.
    Mr. Olson.

   STATEMENT OF ERIK D. OLSON, SENIOR STRATEGIC DIRECTOR FOR 
       HEALTH AND FOOD, NATURAL RESOURCES DEFENSE COUNCIL

    Mr. Olson. Thank you, Chairman Cardin, Chairman Boxer and 
Ranking Member Vitter, for the opportunity to testify today.
    As we have heard, shock waves went throughout Charleston as 
a result of this order to not only not drink the water but not 
even bathe in it. Toxicity data that existed for these two 
chemicals, MCHM, and we learned 12 days later, a second 
chemical, PPH, was sparse. Officials trying to find a safe 
level really had very little information to deal with.
    CDC announced a 1 ppm supposedly safe level but, as we have 
heard, within a couple of days, basically retracted that, at 
least with respect to pregnant women saying, ``CDC recommends, 
out of an abundance of caution, that pregnant women drink 
bottled water until there are no longer detectable levels.'`
    This is yet another fundamental reason that residents 
across Charleston were wondering whether it really was safe for 
kids, for pregnant moms, for anyone in their family. As my 
colleague, Dr. Sass has highlighted and I discuss in my written 
testimony, the supposedly safe level really was not protective 
of vulnerable populations.
    Last weekend, I had the opportunity to visit with a lot of 
folks in Charleston and appreciated the courtesy of West 
Virginia American Water Company who gave me a tour of their 
drinking water facility. I will say the residents with whom I 
spoke remain deeply dismayed about the safety of their water 
and very skeptical about reassurances that the water is safe.
    I heard about parents and pregnant moms who really wonder 
about the long term effects of bathing or drinking this water. 
Across the city, stores still advertise bottled water and some 
restaurant signs still proclaim they cook with bottled water.
    I met a couple who own a small Indian restaurant and a 
store within sight of the dome of the capital. They told me 
they had shuttered their restaurant for 5 days and that they 
had to toss a huge amount of food. They had to borrow money to 
meet their payroll, had to ask people to hold checks and spent 
a lot of money on professional cleaning and replacement food.
    Their store also lost quite a bit of money because people 
stopped cooking and as a result perishable commodities had to 
be tossed.
    I heard people drove as far away as Kentucky to get bottled 
water during the crisis and families stayed with friends or 
relatives and drove as far as 60 miles just to shower. Parents 
really are angry especially that some of the recent tests, some 
came in as recently as Friday, showed the chemicals in schools 
were higher than expected.
    I want to say that this is not an isolated situation. The 
water intake at Charleston simply cannot be shut off. They 
cannot just shut off the water when a spill occurs. This is 
true not only in Charleston, but I am learning in many water 
utilities across the country where they do not have the 
capacity to simply shut off when there is a spill because they 
need to continue pumping water.
    Charleston's treatment technology also, as I learned, was 
unable to deal with a spill of this magnitude. It was simply 
overwhelmed and could not deal with it. As my testimony 
highlights, there were likely hundreds of other water utilities 
across the country, large and small, using surface water that 
simply cannot deal with a spill like this.
    We all remember back in 1988 a huge spill of oil into the 
Monongahela that contaminated the drinking water of a million 
people in three states. At least some communities are doing 
something about it.
    Cincinnati, Ohio installed state-of-the-art treatment, 
basically granular activated carbon in deep beds like that in 
your fish tank that removes virtually all these organic 
contaminants. The cost is just $20 per household per year. This 
is the direction which things need to go. I understand Northern 
Kentucky Utility has just made that same switch. You have to do 
this if you have this situation.
    We absolutely need to fix the Safe Drinking Water Act. We 
heard the source water assessments were done, yet nothing was 
done about them after they flagged major risks. In this 
particular situation, just for Charleston, 53 potentially 
significant contamination sources were identified in the early 
2000's, 26 so close that they were in the zone of critical 
concern, yet it appears nothing was done about that or specific 
recommendations to take action.
    I wanted to briefly address the Manchin-Boxer bill 
referenced earlier. We feel that is an important step forward. 
I mention in my testimony a few tweaks that we would recommend 
including one item which might be to move the inspections to 
annually similar to what the West Virginia Senate just passed.
    Although this hearing is about drinking water, I want to 
briefly mention the Toxic Substances Control Act and the need 
to reform it. We certainly agree that TSCA is broken and needs 
to be fixed. However, we need real reform of that law. I would 
as that some of the attachments to my testimony be entered into 
the record.
    The bill that is pending, the USIA, although it is 
bipartisan, would not fix this problem. As I highlight in my 
testimony, it is unlikely that this particular chemical would 
have been flagged as a high priority. It is quite likely that 
State action would have been preempted if this had actually 
been enacted.
    Although we do support reform of TSCA, we believe that 
reform needs to be strong, needs to fix the problem and we 
stand ready to work with the members of this committee, with 
Senator Boxer, Senator Vitter, Senator Udall and others to 
reform the law in a meaningful and real way.
    In conclusion, we strongly support moving forward with 
legislation for real source water protection and drinking 
water, we support the Manchin-Boxer-Rockefeller bill with the 
tweaks I mentioned and ultimately, we think we need 
comprehensive solutions to source water protection across the 
country.
    Thank you.
    [The prepared statement of Mr. Olson follows:]
    
    
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    Senator Cardin. Thank you, Mr. Olson. We appreciate it very 
much.
    Mr. Fewell.

                   STATEMENT OF BRENT FEWELL 
                   ON BEHALF OF UNITED WATER

    Mr. Fewell. Thank you, Chairman Cardin, Chairman Boxer and 
Senator Vitter, for holding this important meeting this 
morning. I appreciate the opportunity to testify this morning.
    I am currently employed with the law firm of Troutman 
Sanders but until last week, I served for the last 4 years as a 
senior executive for United Water with the responsibility for 
overseeing the provision of safe, clean drinking water for over 
5 million people.
    Although I am testifying today on behalf of United Water, I 
also offer supporting statements and recommendations by the 
National Association of Water Companies which are appended to 
my written testimony.
    As a former EPA water regulator and a chief compliance 
officer of a major water company, I can assure you, Mr. 
Chairman, this is an issue United Water takes very seriously, 
as do other public water suppliers. While new regulations may 
not stop accidents like this from happening, I do believe there 
are a few targeted, commonsense things we can do to ensure the 
continued protection of our drinking water sources.
    Overall, we as a Nation need a more integrated, sustainable 
approach to managing water and watersheds, a concept my good 
friend Ben Grumbles, President of the U.S. Water Alliance, 
often refers to as a one water management approach.
    First, this is about keeping harmful chemicals out of our 
Nation's drinking water. There are tens of thousands of 
chemicals, as we have heard this morning, currently in 
commerce, each of which has the potential to impact a drinking 
water source for someone, some community, somewhere at some 
time.
    The best thing we can do, and where I believe the greatest 
focus needs to be placed, is keeping these harmful chemicals 
out of our drinking water sources. Truly, in this case, an 
ounce of prevention would have been worth a pound of cure.
    It is abundantly clear that we would not be here today had 
the storage facility in this particular incidence provided 
adequate storage and secondary containment. In light of this 
catastrophic release, there have been many calls for robust 
inspections and controls at bulk chemical storage facilities, 
particularly those located close to waters that serve as 
drinking water sources. United Water joins with those calling 
for additional measures for additional support.
    Second, prompt notification of a spill that threatens a 
water supply is absolutely critical. Surface water systems are 
often at the mercy of those located upstream from the water 
intake structures. Advance warning and timely notification are 
critical in any kind of emergency response. Receiving timely 
notification about a spill can make a bad situation less bad 
and help to mitigate the most significant risk to the public.
    Without prompt notification, the water provider may have no 
way to detect and respond to the presence of a contaminant 
until it is too late and already in the distribution system. 
For these systems, having 2 hours, 1 hour or even a half hour, 
for that matter, can make a big difference preparing for a slug 
of chemicals that may be headed toward its water intake 
structure.
    Simply closing a water intake structure, as we have heard, 
and waiting until a threat has passed by is not always possible 
and such decisions must be balanced with other needs and 
threats to the community, including fire suppression. These can 
be difficult decisions to make, often made with imperfect data 
and in the midst of an emergency situation.
    Third and my final point, water systems need better and 
more specific data to identify and prepare for these types of 
risks. Public water systems currently use a number of tools to 
identify and prepare for risks, but most of these tools assess 
broad, general categories of risks. Rarely, if ever, are public 
water providers provided specific data about chemicals upstream 
that if released could affect that water system. This is a 
commonsense change I think needs to be made.
    The Federal Emergency Planning and Community Right to Know 
Act requires facilities to store hazardous substances in excess 
of threshold planning quantities to provide data annually to 
local emergency responders but there is no requirement that 
such data be provided to nearby water systems.
    Similarly, the EPCRA, the Clean Water Act and CERCLA 
require any facility that experiences a release in excess of 
reportable quantities to immediately notify the National 
Response Center and local emergency responders. Yet again, 
there is no requirement that a nearby water provider be 
provided similar notice.
    Last, I offer a cautionary note. Our water systems welcome 
the additional support. It will do no good to simply dump reams 
of paper and data on these systems and expect the problem to go 
away. Rigorous assessment of these risks for multiple upstream 
sources can be a complex process, requiring significant 
resources and expertise which many systems simply do not 
possess.
    The most effective solution will necessarily involve 
greater public education, collaboration, communication with EPA 
and states and all stakeholders within a watershed about the 
importance of source water protection, an important concept I 
mentioned earlier and a one water approach.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Fewell follows:]
   
   
   
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    Senator Cardin. Thank you very much.
    Mr. McNulty.

STATEMENT OF MICHAEL W. MCNULTY, GENERAL MANAGER, PUTNAM PUBLIC 
                SERVICE DISTRICT, WEST VIRGINIA

    Mr. McNulty. Thank you, Mr. Chairman and members of the 
subcommittee.
    Putnam Public Service District is a drinking water supplier 
near Charleston, West Virginia. I live I Charleston and my 
family and 300,000 residents of greater Charleston have been 
dealing with contamination of our drinking water for past 26 
days.
    I am here to talk about source water protection and 
preventing drinking water contamination from the perspective of 
Putnam PSD and on behalf of the West Virginia Rural Water 
Association and the 30,000 member systems of the National Rural 
Water Association.
    I want to thank Senators Rockefeller and Manchin, 
Congressmen Rahall, Capito and Governor Earl Ray Tomblin for 
their assistance during this crisis.
    For the sake of time, I will summarize the six essential 
policy principles included in my written testimony needed to 
promote effective protection plans.
    The best plan is one that is developed by local officials 
who know their particular vulnerabilities and is implemented 
with constant vigilance. Consider my water supply. We can treat 
up to 4 million gallons of water each day gathered from streams 
that are vulnerable to contamination similar to the recent Elk 
River spill.
    We have completed an extensive contamination prevention 
plan, an emergency contingency plan and a contamination 
detection plan to protect our population. However, for a plan 
to work, it cannot just set on the shelf. The local officials 
who implement it must believe in it and let it influence their 
daily conduct and attitude.
    Our delineated watershed map with potential sources of 
contamination is displayed here. Our notable points of concern 
include truck stops and interState, railroad and commercial 
enterprises like gas stations. It is not feasible to remove all 
the threats to our watershed, so we have implemented a number 
of policies to quickly detect and minimize the effect of a 
potential spill and establish emergency contingencies, 
including interconnections with neighboring water supplies.
    One of the most important elements of our plan is constant 
monitoring of our presource water to detect contaminants, 
including any similar to those that were in Charleston's water. 
If we do find contamination, we can keep a large reservoir 
sequestered with approximately 4 months of treatable water.
    None of the presource water tests are federally mandated. I 
point this out to illustrate how difficult it is to have a 
Federal regulatory solution to this issue. All 51,651 U.S. 
drinking water supplies have unique challenges. This is why 
rural water associations have been advocating for local 
communities to adopt protection measures for decades. They 
directly assist communities like mine with technical resources 
to implement a protection plan.
    Over 1,000 communities have completed the rural water 
process and are actively protecting their source water. 
Consider how many contamination events may have been prevented 
in these communities.
    I will close with this suggestion for a Federal response in 
the aftermath of the Charleston crisis that allows for 
immediate protection and does not require any grand spending 
program or expansion of unfunded mandates on local governments.
    A few years ago, Congress provided a small package of 
funding to the State agencies that protect groundwater to 
design and publish online a public disclosure data base of all 
chemicals used in hydraulic fracturing. This experiment proved 
to be widely successful. For a small Federal investment, this 
system could also publicly disclose all watersheds and 
potential threats within, a list of communities that have 
adopted protection plans and copies of each protection plan. 
Such an enterprise would empower the people who benefit from a 
clean and safe environment to take responsibility for securing 
it.
    While every State and locality believes that it is doing 
the best job possible, this system would allow the public to 
make sure their claims are accurate.
    Thank you, Mr. Chairman. On behalf of the small and rural 
communities, we are grateful for your attention and assistance.
    [The prepared statement of Mr. McNulty follows:]
    
    
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    Senator Cardin. Thank you for your testimony.
    Mr. Faulk.

       STATEMENT OF RICHARD O. FAULK, HOLLINGSWORTH, LLP

    Mr. Faulk. Thank you, Mr. Chairman.
    I am a lawyer practicing here in Washington, DC. I want to 
make it very clear that I am not representing a client or any 
organization here today. I am not being compensated for 
anything I am saying here today. I have simply responded to the 
committee's invitation as a concerned citizen.
    I want to rise to speak to the Chairman's concern of 
federalism and to sound a note of caution amongst the interests 
and the intensity of the work being done here in this committee 
and indeed, I suspect throughout the entire Nation, within the 
Nation's chemical industry as they intensely look at the 
concerns this situation has raised.
    There are a great many factors in addition to regulations 
that influence what America's chemical industry does. There are 
a great many factors other than laws that do so. There are 
human factors, investigations that they have undertaken. There 
are trade association issues that have been raised I am sure 
regarding this situation.
    There are other matters that this committee may or may not 
have been briefed on here, certainly I do not necessarily know 
the extent of, that should influence some caution before 
rushing into Federal legislation.
    With the focus that is being placed under the magnifying 
glass of this committee's inquiries, as well as other 
activities surely going on in the country, should we really 
rush immediately into Federal legislation?
    I think we should be cautious. Complex accidents generate a 
fog of some kind, simply burdened by the sheer weight of 
information mixed with all the shock and alarm and confusion. 
Sometimes that can obscure clear deliberations.
    In dealing with incidents like this, it is important, as 
this committee is doing today, to give the State and local 
authorities a full opportunity to fully investigate, to 
deliberate and to decide what their future actions should be. 
Sometimes when that fog clears, Federal intervention may be 
unnecessary.
    For example, we all know from the discussions today, the 
West Virginia legislature is actively considering bills and 
laws to deal with the situation. Once those are passed, our 
Nation states our laboratories of democracy may decide to 
develop solutions for their own unique operations which may be 
very different from West Virginia's. Those solutions may be 
complemented by voluntary programs developed by industry.
    A top down management situation of Federal solutions may 
actually displace some protective systems of State and local 
laws, regulations and voluntary industry practices that already 
exist. For those reasons, I think we should be cautious.
    Stated another way, the presence of a Federal regulatory 
gap does not necessarily mean that a hazard exists uniformly 
across the Nation. Some of those hazards may be dealt with by 
other restraints. A one size fits all Federal approach may 
sometimes even reduce safety by preempting broader, more 
effective or carefully tailored solutions that are already 
working.
    Again, it calls for cautious consideration and 
deliberation. I know this committee is doing it. I simply rise 
to suggest that they continue to do so and keep these factors 
in mind.
    Spill prevention is a recurring concern regarding chemicals 
and all sorts of substances that are stored. West Virginia and 
other states, as well as the EPA, have issued guidance 
documents on this subject. They provide commonsense information 
and advice that could have prevented the tragedy in West 
Virginia.
    For example, if we simply look at West Virginia's guidance 
documents regarding above ground storage tanks, they suggest 
and refer to existing regulatory standards which, if obeyed 
regarding groundwater protection, would have prevented the 
spills into the surface water here through effective secondary 
containment according to their specifications.
    Like many tragedies, this failure cannot necessarily be 
blamed on the absence of the law. It can be blamed, however, on 
human error. We need to be cautious as we walk into this 
situation and we work through these issues. Not every problem 
requires Federal legislation, but every problem, especially 
serious ones, deserves the careful consideration, the empowered 
intervention, the educated assistance of responsible and 
politically accountable community members, the closest people 
to the problem.
    I applaud the communities' efforts, I applaud the efforts 
of West Virginia in cooperating with the committee, and I 
applaud this committee's work as it delves into these difficult 
problems and simply suggest restraint and caution as we move 
forward.
    [The prepared statement of Mr. Faulk follows:]
    
    
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    Senator Cardin. Mr. Faulk, we thank you very much for your 
testimony.
    Mr. Weaver.

   STATEMENT OF R. PETER WEAVER, VICE PRESIDENT, GOVERNMENT 
      AFFAIRS, INTERNATIONAL LIQUID TERMINALS ASSOCIATION

    Mr. Weaver. Thank you, Chairman Cardin, Chairwoman Boxer, 
Senator Vitter and the entire committee.
    Good morning. My name is Peter Weaver. I am Vice President 
of Government Affairs at the International Liquid Terminals 
Association. I have been with ILTA since 2006 representing the 
interests of the owners and operators of bulk liquid storage 
terminals.
    Our 80 corporate members, with approximately 800 domestic 
terminal facilities, operate in all 50 States, handling all 
manner of liquid commodities from chemicals and petroleum 
products to biofuels and vegetable oils. Freedom Industries is 
not an ILTA member.
    Before joining ILTA, I held positions in product 
development and marketing for one of our Nation's largest 
chemical manufacturers. I have also served as an officer in the 
Merchant Marine. I began my career with the Engineering 
Department of an ILTA founding member company back home along 
the Mississippi River.
    I should note that my wife and I now have a sailboat on the 
Chesapeake Bay next to our dog's favorite swimming beach and 
thus, assurance that no one is harming our Nation's waterways 
is a very personal priority for me, my family and our closest 
friends. The liquid terminal industry is committed to the safe 
and environmentally sound operation of our facilities and I 
consider it a privilege to participate today.
    Like the vast majority of bulk storage tank operators, ILTA 
members are regulated by a comprehensive and rigorously 
enforced series of laws and regulations. At the Federal level, 
rules for environmental protection are promulgated in response 
to numerous laws, including the Clean Water Act, OPA 1990, the 
Clean Air Act, CERCLA, RCRA, the Safe Drinking Water Act, TSCA, 
SARA, and EPCRA.
    All ILTA members are subject to regulations requiring tank 
inspections and secondary containment to prevent spills from 
migrating should a tank fail. Some State laws carry additional 
requirements. Terminals also follow industry standards and best 
practices for maintaining the integrity of their equipment and 
operations.
    From among the many Federal regulations that apply to above 
ground storage tanks, I will reference two. First, EPA's spill 
prevention control and countermeasure rule, SPCC, applies to 
every facility possessing at least 1,300 gallons of oil in 
aggregate or chemicals exhibiting similar properties.
    It incorporates robust standards for tanks and pipeline 
integrity testing such as the API 653 standard for large, field 
directed tanks. SPCC also strictly regulates secondary 
containment and requires financial responsibility and plants 
must be certified by a professional engineer.
    Second, EPA regulations stemming from the Emergency 
Planning and Community Right to Know Act , EPCRA, or SARA, 
Title 3, requires facilities to inform their local emergency 
planning committee, the State Emergency Response Committee and 
local the fire local fire department of all hazardous materials 
in their possession. I should add, the newly revised 2012 OSHA 
Hazardous Communications Standard requires documentation and 
communication of all hazardous properties of all chemicals.
    In West Virginia, State regulations require secondary 
containment for above ground chemical and petroleum storage 
tanks that can protect groundwater for at least 72 hours.
    We understand that State and Federal agencies and the 
Chemical Safety Board are all investigating the Freedom 
Industries accident. Given the impact, there is no question 
that these will be extensive investigations and we expect that 
resulting incident reports will cite factors contributing to 
the release, applicable regulatory programs and possible 
violations of those regulations. ILTA is very interested in 
these findings, in particular, how the chemical escaped 
containment.
    Even with an expansive regulatory net, anomalous 
circumstances exist where an incident such as this could occur. 
ILTA contends that a proper oversight response would begin with 
understanding those circumstances. ILTA also contends that a 
Federal legislative response at this moment would be premature.
    Once final investigation reports are released, specific 
reasons for these tank and secondary containment failures will 
be better understood and then measures to prevent recurrence in 
another community can be determined and implemented through 
refinement and simplification of existing regulations.
    If Freedom Industries disregarded applicable regulations, 
industry standards or its own operating procedures, then the 
most effective response would be through more consistent 
enforcement rather than administrative burden and frankly, the 
confusion of another layer of legislation and regulation.
    With regard to the Safe Drinking Water Act, measures have 
been proposed to require good design and construction 
standards, leak detection, spill protection, inventory control, 
emergency response, training, integrity inspections and 
financial responsibility.
    Within the terminal industry, and in my experience, 
regulations requiring strict adherence to all of these 
provisions are already well established and would seem directly 
applicable to Freedom Industries.
    Thank you for the opportunity to provide this testimony. I 
am certainly happy to respond to questions.
    [The prepared statement of Mr. Weaver follows:]
    
    
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    Senator Cardin. Let me thank all seven of our panelists. I 
thought it was very helpful to us, the information you 
supplied.
    To Messrs. Olson and Fewell, I could not agree with you 
more about the need for infrastructure. The State revolving 
fund is inadequate to deal with the challenges of modern water 
treatment. We need to get adequate funding. This committee has 
worked very hard to try to increase the funding under the 
revolving funds and to reauthorize with more updated needs of 
the different states in our country.
    We need to find creative ways because in today's difficult 
environment, it is tough to get the type of resources 
necessary. That is part of prevention, part of having the 
capacity to deal with the day's challenges.
    There is a common theme I hear from you all. Mr. Fewell, 
you said you need better and more specific data which is 
absolutely accurate. You have to have accurate information to 
be able to respond. That is certainly not available today in 
too many of the watersheds.
    It is interesting that the TSCA law is aimed at the proper 
classification of the 80,000 plus chemicals we have in America. 
That number grows every day. The Safe Drinking Water Act is 
aimed at making sure we have delivery of safe drinking water in 
our communities through a variety of methods.
    Mr. Faulk, I want to agree with you on federalism. I think 
federalism does say we believe in the states, we believe the 
government closest to the people is the most responsive, but we 
also need to recognize that safe drinking water is an inner 
State problem.
    Maryland could do everything that is reasonable, the 
District could do everything that is reasonable, but if the 
water is coming from West Virginia and West Virginia doesn't do 
what is reasonable, the people I represent in Maryland are at 
risk. The people in the Nation's capital who depend upon us at 
the national level are at risk.
    I think there is the proper balance on federalism but I 
couldn't agree with you more and that is why we are always 
reluctant to preempt local government. I know that issue is 
being debated in TSCA today. We are always reluctant because 
things change quickly. Chemicals change quickly. The government 
closest to the people needs to be able to respond. That is why 
we are very reluctant to ever take away that authority from the 
states.
    On the other hand, we do need to have national guidelines. 
As you said, guidelines on getting better and more specific 
information is an area where the Federal Government needs to 
fill in the blanks better than we have today.
    I want to get to Ms. Tennant for one moment because you 
raised the point about the damages people are sustaining. Our 
first objective is to make sure we minimize the risk 
particularly here where you had storage facilities so close to 
the Elk River. There should have been a red flag. Obviously the 
information was not known and the response was very difficult 
because first of all, just think if this chemical didn't have a 
unique smell what would have happened.
    Because of the fact it had a unique smell, the public was 
able to determine something was wrong. If it did not have that 
unique smell and had the same types of damage, it would have 
been several days before the source would have been determined 
and more people would have been put at risk.
    A lot of people were damaged, their health was damaged, 
their shops were damaged, their homes were damaged and the 
company is in bankruptcy.
    I hope during your work you do in West Virginia you will 
come forward with suggestions to us as to how we can minimize 
the cost to the taxpayers, the rate payers, the individuals and 
find ways to hold those who are responsible accountable for the 
damage they have caused. Do you have any thoughts on that?
    Ms. Tennant. Yes, Senator. There have been efforts made 
already. As I discussed how devastating this is, our confidence 
has been shattered. When I receive letters from a father whose 
wife is pregnant, this is supposed to be a joyful time and now 
has turned into a fearful time for them. Certainly anyone who 
has children understands what they are going through in this 
situation.
    As I talk about being on the front lines, it was those 
businesses that we are trying to help, 96 percent of our 
economy in West Virginia is from small businesses. I made 
reference to a specific business. Think about what is behind 
those businesses. It is people. It is those employees.
    I was on those water lines as folks were waiting to receive 
water, to get their water jugs filled. That is where I met so 
many of these people who are minimum wage employees who were 
off the job to whom missing a shift means perhaps missing a 
payment on your car or missing utilities.
    I have worked hand in hand through the Secretary of State's 
office with the West Virginia legislature to have a piece of 
legislation called the Small Business Emergency Relief Fund 
where the Governor, along with several of his agencies would 
have the ability to promulgate emergency rules that would aid 
those businesses, those employees and those workers who lost 
their wages.
    Senator Cardin. Thank you very much.
    Senator Vitter?
    Senator Vitter. Thank you, Mr. Chairman.
    Secretary Tennant, I also wanted to go to you. In your 
opening statement, you raised a number of frustrations in the 
aftermath of the spill about lack of clear guidance and 
information, ``lack of consistent, trustworthy information.'`
    On January 24, a group of 24 West Virginia scientists sent 
a letter to EPA and CDC raising similar concerns, saying, among 
other things, ``If the government had been more forthcoming 
about what is not known about the leaked chemicals, citizens 
and local officials would have been able to make better choices 
about the actions needed to protect their families and 
communities.'`
    Do you share those concerns and if so, what would you like 
EPA and CDC to do now, immediately, as soon as possible to try 
to rectify that uncertainty and lack of trust?
    Ms. Tennant. Certainly, Senator, I share those concerns. 
That is why I have taken action on many different levels. I 
have taken action in directly writing to the CDC and saying 
tell us what you know so West Virginians will know how you are 
doing your tests, at what level you think is safe for the 
water, and how did you get to that level? Be open and 
forthright with the citizens.
    As I said, I have sent a letter and now have petitions with 
West Virginians. We are working from within the Secretary of 
State's office hand in hand as we register many of these 
businesses and added oversight for the Secretary of State to 
have indicated whether a particular company holds and stores 
chemicals and how we might be able to indicate that in our data 
base.
    We have a very transparent agency within the Secretary of 
State's office and I pride myself in the efficiency and 
transparency. We would continue that if we had the requirement 
through our State code.
    Senator Vitter. Thank you.
    Mr. Huffman, thanks for your comments about our TSCA reform 
that Senator Manchin is so involved in. Also pass along my 
thanks to your colleague, Michael Dorsey, who in July voiced 
similar strong support and comments.
    I want to highlight some important things in that work. I 
assume you agree, if you want to comment, that EPA should not 
have to affirmatively find unreasonable risk as they do now 
under current law in order to move forward. Would that be 
important, in your mind?
    Mr. Huffman. Yes, Senator. One of thing that created more 
confusion in a time of uncertainty in those first 24 to 48 
hours was simply the lack of information about this particular 
chemical. It was very frustrating to try to explain to a 
concerned public who has just been informed they cannot use 
their water what you do not know.
    They want to know what we do know and that was very little 
about this particular chemical and it somewhat degraded from 
there. Having that information about this chemical or any 
chemical that is within a zone or range of impacting a public 
water supply is information we absolutely must have.
    Senator Vitter. Also, it seems to me, it should be a big 
priority, it is with me and our efforts, first of all, that the 
State have a clear role in dealing with EPA and telling them 
what they think, what you think should be of high priority; 
second, that lack of safety and health information, as in this 
case, the criteria for prioritizing; and third, that we use a 
risk-based system so that, for instance, a factor like 
proximity to drinking water supply can be a clear factor in 
prioritization.
    Those would seem to me to be lessons from this incident. 
Would you agree with that or do you want to expand on that?
    Mr. Huffman. Absolutely, Senator, you have said it all. 
That is absolutely true.
    Senator Vitter. Thank you all very much.
    Senator Cardin. Senator Boxer.
    Senator Boxer. I agree. I think as we look at the TSCA 
bill, we should say if these chemicals are stored by drinking 
water supplies, Senator Vitter, I would support your point. If 
a chemical is stored by a drinking water supply and could get 
into the water, I think we should prioritize it. That is 
absolutely critical. As the law is currently proposed, that is 
not the case.
    Mr. Olson, I wanted to say I am going to read from your 
testimony if you don't mind and say how much I agree with this.
    ``The problems with TSCA that are illustrated by the 
chemical spill in West Virginia would not be fixed by the 
current Chemical Safety Improvement Act as introduced and in 
some respects, would be made worse. The bill as currently 
written would provide the public with the illusion of an 
effective Federal program to regulate chemicals while tying EPA 
in knots and taking away existing State authorities. The 
chemical spill in West Virginia is an illustration of why we 
need to strengthen the TSCA bill. It is not a justification for 
enacting a flawed bill.'`
    I wanted to say that in my view, this says it all to me. 
The last thing I want to do is give people the illusion of 
protection. That is why I think as we go forward with TSCA, 
Senator Vitter, Senator Cardin, Senator Udall and others, this 
particular spill should give us a lot more urgency to get that 
right and not pass a bill that is a phone deal. I feel very 
strongly about it.
    I was very taken, Ms. Tennant, with what you said about 
your ability, I want to make sure I got this right, through 
your good offices because you deal with small businesses and 
the business community. Do you license them or what do you do? 
Do you create a data base of all the businesses?
    Ms. Tennant. We register businesses, corporations and 
limited liability companies. Yearly they file an annual report 
to keep up to date.
    Senator Boxer. I thought I heard you say you would look at 
trying to find out which of these companies store chemicals, is 
that what I heard you say?
    Ms. Tennant. It is under the jurisdiction of the DEP to 
monitor and have oversight over those companies, but in an 
attempt for added transparency, for added information.
    Senator Boxer. Information is what I am getting at.
    Ms. Tennant. Yes, to have that because as I said, we have a 
wonderful data base and the more information you put into it, 
the better it is for the public to be able to see. That is one 
step I am looking into as a result of this crisis.
    Senator Boxer. We have 80,000 chemicals out there. We know 
very little about these chemicals. When we know we have certain 
of these chemicals along a drinking water path, this is a red 
flag.
    Mr. Weaver, despite your point about regulations, the truth 
of the matter is there is no regulation except for the above 
ground oil storage. We have not moved forward with regulation. 
I think Senator Cardin pointed out there is a law but there is 
no regulation. That is why Senator Manchin's bill I think is so 
critical.
    Mr. Faulk, I love lawyers. I am married to one, my father 
was one, my son is one. You are eloquent and your philosophy is 
interesting but it doesn't get to the point of where we are 
which is we have people suffering at this time.
    It seems to me, without getting into an argument about 
federalism although I do agree with you, states should have 
absolute flexibility to move on this, I would rather see, first 
of all, if we can help you solve the problem which I think 
since you have the responsibility under current law, states 
have the responsibility to declare whether water is safe, it 
sounds like you need some help in monitoring and measuring.
    I want to get to that in a minute but also, we want to make 
sure in the future with these 80,000 chemicals out there. Mr. 
Weaver, do you have any idea how many chemicals might be stored 
all over this great nation near water supplies?
    Mr. Weaver. I can speak to our member facilities which I do 
know about. Honestly, we look at the concern as being the 
product leaving the property. As far as the terminal industry 
is concerned, the harm is done if the product gets offsite. If 
the product reaches private property or otherwise, we consider 
that to be a concern for us.
    Senator Boxer. I am asking if you know--then I will ask Mr. 
Olson if he knows--do you have any clue as to how many above 
ground storage tanks--let us put it in simple terms--have 
chemicals in them? We know some of them have salad oil. We are 
talking about chemicals. How many are located along water 
supplies?
    Mr. Weaver. I don't know the number.
    Senator Boxer. Do you have a guess, Erik?
    Mr. Olson. As we said in our testimony, it is basically 
impossible to know that right now. We have reviewed literally 
scores of these source water assessments and virtually every 
one has some storage tanks near the surface water which is 
often done because it is convenient.
    Senator Boxer. OK. I will close with this point. We have a 
massive problem and do not know how massive it is. We know 
because of the people of West Virginia--my heart is out to them 
and we are going to do everything we can to help you get the 
information you need--so after this please let us know how I 
can help.
    I know Senators Manchin and Rockefeller are doing a great 
job. If you need more help in ascertaining the safety of that 
water supply, I want to help you.
    We need to have an assessment. I think the quickest way is 
the Manchin bill because it says that every State has to look 
at it because it is such a huge problem. Mr. Weaver, who is in 
this business, has no clue. Mr. Olson, who is an advocate for 
the folks, doesn't really have a clue of how many of these 
Freedom Industries operations are out there waiting to cause 
havoc.
    As was pointed out I think by our Chairman, if there had 
not been a smell to this, we still might not know.
    The Manchin bill, which I hope we will mark up soon, would 
basically say every State, you make an assessment. We will help 
you. Let's have a plan for inspection that is carried out by 
the State for emergency plans, for standards for these tanks. 
Mr. Weaver was eloquent about how seriously that is taken in 
his industry.
    You have a rogue operator which is an absolute coward. 
Running away and leaving the people is an outrage, an absolute 
outrage. People are frustrated and upset. They always turn to 
the government, oh, why didn't you do more. How about having 
some corporate responsibility and making sure that you as a 
good corporate citizen ensure the safety of the people and not 
hold a press conference and say, I have to go now--I saw that 
one--I have to go now; I can't really talk to you and then file 
for bankruptcy.
    It is a violation of basic human decency what they did. We 
have to protect the people. That is our job now. I am so 
grateful to Chairman Cardin, Senators Boozman and Vitter for 
cooperating with us and we are going to move forward and push 
this legislation which, Mr. Faulk, will give the responsibility 
to the states to make sure they have the resources and we have 
their backs as they move to protect the people from the most 
basic right, to be able to take a glass of water and not worry 
that your kid is going to get cancer. Let's put it that way.
    I want to say to the people of West Virginia through Mr. 
Huffman, Mr. McNulty, and their great Secretary of State, how 
much I want to do to stand by you in this crisis.
    I thank you, Mr. Chairman.
    Senator Cardin. Thank you, Senator Boxer.
    Senator Boozman, earlier I mentioned your help in 
accommodating the fast turnaround time for this hearing. I 
thank you very much for that. As acknowledged, you had a 
conflict earlier but it is nice to have you sitting next to me 
at the committee. Let me acknowledge and give an opportunity to 
Senator Boozman.
    Senator Boozman. Thank you very much, Mr. Chairman.
    I do appreciate you holding this hearing about such an 
important topic. I apologize for being late. The prayer 
breakfast is going on this week and we have people literally 
from all over the world. I actually had some heads of State I 
had to visit with, so again, thank you very much for putting up 
with me.
    I would like to follow along the same lines as Senator 
Boxer in the sense that Mr. McNulty, you mentioned the 
importance of public disclosure of all potential sources of 
contamination to allow the public and government regulate them, 
which I agree. I am very much in favor of doing that.
    Do you or any of the other witnesses have any thoughts 
about how we can balance that, the value of public disclosure 
with the need to protect the sites in a post-9/11 world? In 
other words, we do not want to create a situation where we 
somehow publicize the sites that are perhaps potential targets 
for terrorists or whoever would cause us harm.
    Mr. McNulty. I certainly understand there needs to be a 
balance with the post-9/11 era that we live in now. I think in 
reality, this information is out there now. You can comb the 
Web and find information on most every drinking water utility 
in the United States and find information about where there 
treatment plants are located and so forth.
    How we would go about keeping information confidential but 
yet engaging the public and making them a part of the solution 
in protecting their source water, I really don't have the full 
answer to that.
    Senator Boozman. Does anyone else want to comment?
    Mr. Fewell. Senator Boozman, I have some thoughts. Some 
states have online systems for the management of hazardous 
substances for which companies under EPCRA are required to 
file. That information is maintained in confidential data bases 
at the State and local levels.
    It seems to me perhaps that information could also be made 
available to water companies in proximity to those facilities 
in the same type of confidential data base that exists for 
EPCRA.
    Senator Boozman. You explained in your testimony, while 
more data is necessary for response and preparation, it is 
important to use the information effectively rather than just 
dumping massive amounts of data on small water systems. Can you 
explain what you envision in that regard, especially with 
improved notification to our small water system operators?
    Mr. Fewell. One of my concerns is obviously some of these 
watersheds are very large. We are talking hundreds, perhaps 
thousands of square miles with many industrialized facilities. 
Where there is a requirement that these public water systems be 
provided emergency response and information related to hundreds 
of facilities, that is a lot of information for any public 
water system whether large or small to digest, understand and 
figure out of to respond.
    I think what we heard here this morning about prioritizing, 
those facilities in close proximity to water intake structures 
or drinking water supplies are the ones that it is absolutely 
critical for that information to be in the hands of water 
provides downstream.
    Senator Boozman. Yes, sir?
    Mr. Olson. I agree with that. I would say, in fact, as 
highlighted a bit earlier today, a lot of these assessments 
have already been done, so a lot of the facilities have already 
been flagged. The water utilities have some information 
available. The key is to get the more detailed information to 
them.
    I think that the bill recently introduced by Senators 
Manchin, Boxer and Rockefeller would take a major step in that 
direction to force somebody to deal with that situation at the 
State level. I think that would be a significant step forward 
to actually get action taken to deal with these immediate 
threats.
    Senator Boozman. I do appreciate your leadership, Mr. 
Chairman, and enjoy working with you on these issues. This is 
really an important topic which we hopefully can deal with.
    Senator Cardin. Thank you. I appreciate the cooperation we 
have in this committee. We try to do everything we can in a 
non-partisan manner because it involves the public health of 
the people of this Nation.
    I want to give each of you an opportunity to respond to the 
following. You have heard during the course of this hearing 
information that would have been very helpful, you heard of the 
failure to exercise reasonable caution by the private property 
owner and the manner in which it dealt with its above ground 
storage.
    EPA currently publishes only 90 contaminants as far as 
regulations on how to deal with that. Chemicals are one aspect 
of contaminants. There can be other sources than chemicals but 
90 is a small number compared to the total risk factors that 
could enter our water system. As was pointed out, if you ask 
for too much information, none of the information is going to 
be terribly useful.
    We have before us a specific bill, the bill authored by 
Senators Manchin, Rockefeller and Boxer. I would like to get 
your specific views as to whether that bill represents the 
right priority as you see it for Federal action or whether 
there are other areas you would like to see us look at? We will 
start first with Mr. Huffman.
    Mr. Huffman. As with most successful environmental laws, 
rules and policies in this country, establishing minimum 
Federal standards which the states must meet is vitally 
important. We do not want too much disparity across the country 
in how anything is regulated or we simply see various 
industries moving around the country to find the areas that may 
be least regulated.
    The Manchin-Boxer bill does that, of course, but the other 
thing it does is the prevention piece of it. We talked a lot 
about TSCA and understanding the chemical, emergency response, 
planning and all of that. The key to this is prevention. That 
is what this bill does.
    It does other things, of course, but looking at it as an 
environmental regulator in the State of West Virginia, we have 
to keep this stuff in the tanks. If it leaves the tanks, we 
have to keep it in the secondary containment. That can be done. 
We can absolutely do that.
    The other thing is we have to stop looking at chemicals in 
the form of whether it is oil-based or a hazardous 
classification. We have learned that anything that has the 
potential to negatively impact a public water supply, however 
innocuous it may seem on the surface, we need to be able to 
regulate that.
    In the State of West Virginia, we have 3,500 tanks 
regulated or not the way the Freedom tanks are regulated; 1,000 
of those are within the zone of critical concern over water 
intake. The only way to get that kind of certainty that we can 
keep this material in the tanks and in the secondary 
containment is to have annual or some other frequency of 
testing, inspection and certification. If we can do that, we 
can minimize the risk of this happening anywhere in the 
country.
    Senator Cardin. Let me go to Mr. Weaver and try to get the 
different stakeholders.
    Mr. Weaver. With regard to the proposed bill, as I have 
observed, all of the proposed measures are currently addressed 
to various degrees with existing regulations as they 
consistently apply to the vast majority of storage tank 
operators.
    With regard to this particular incident, it very well may 
be that exemptions or otherwise could have enabled them to 
escape that collections of regulations. It is also possible 
that there may have been violations of those regulations.
    Once we know the results from the investigation reports, I 
think we will have a much better basis upon which to begin 
acting. Specific reasons will be understood for the containment 
failures and for how the product got offsite.
    At that point, that is when measures to prevent recurrence 
in another community can most effectively be identified, 
addressed and implemented I believe for greatest effectiveness 
through the refinement and simplification of existing 
regulations, many of which are a web to navigate. Ultimately 
our objective is to keep the product contained as opposed to 
adding layers of administrative effort.
    Senator Cardin. It's my understanding we do have authority 
on petroleum-based above the ground storage but for some of the 
other contaminants and chemicals, we do not at the current 
time.
    Mr. Weaver. There are some exemptions for many chemicals. 
Some chemicals are included and others are not. Certainly 
within the ILTA membership, the facility gets brought into the 
regulation at a very low threshold, the petroleum products. 
Within my sphere, there are very few facilities actually that 
do hold these chemicals that are fully exempt because petroleum 
products or electrical transformers are fairly pervasive. That 
could be a way to utilize those existing regulations.
    Senator Cardin. In West Virginia, it was not a petroleum-
based product that caused the problem; it was a cleaning 
product?
    Mr. Weaver. Right.
    Senator Cardin. Mr. Olson?
    Mr. Olson. Yes, the problem is that although petroleum-
based products are regulated under the Clean Water Act, Section 
311, unfortunately EPA apparently has not issued standards for 
hazardous materials for spill prevention, control and counter 
measures. That is a big, gapping loophole as I mentioned in my 
testimony.
    The Manchin bill definitely would move things forward at 
least for those tanks near drinking water supplies.
    The other point worth mentioning is the one you mentioned 
which is the State revolving fund. We really need an investment 
in our infrastructure. This is another reason to highlight that 
this treatment plant simply did not have the resources or the 
technology to deal with this type of spill. There are a lot of 
others across the country that do not.
    Senator Cardin. Mr. Faulk?
    Mr. Faulk. One of the things I haven't heard about the Act 
that I think is important, at least in this hearing we haven't 
talked about it, is the Community Right to Know Act passed by 
this Congress in response to the Bhopal incident many, many 
years ago. That involves notification and procedures by which 
persons in the community can become aware and know how to 
respond to particular situations by virtue of notification.
    Although I will hasten to say I am not a thorough expert on 
that Act, I will say it would be worth comparing those systems 
so that there is not a significant amount of duplication of 
effort and burden imposed on the communities if this bill is, 
in fact, passed.
    Senator Cardin. Thank you for that point.
    Ms. Tennant?
    Ms. Tennant. I would echo that. I that is important for not 
just the citizens of West Virginia but across the country that 
these guidelines be made public, whether it is what the 
chemical is, the emergency plan put in place for these storage 
tanks and companies that hold these storage tanks to be made on 
a transparent data base easily accessible to the public.
    I would also mention particularly for West Virginia as we 
tackle this crisis, how do we make sure it does not happen 
again for us. I want to emphasize once again the proposal to 
have the 10-year study, the long term study for the health care 
and health of the people of West Virginia, that we might be 
able to put in place that we need to start today, so that 
confidence starts today and we have an understanding of what 
might happen over this 10 year period.
    Senator Cardin. Thank you for that.
    Mr. McNulty?
    Mr. McNulty. I concur with Mr. Huffman's comments. I think 
Senator Manchin has crafted a good commonsense approach to help 
solve these problems.
    Senator Cardin. Mr. Fewell?
    Mr. Fewell. I want to reinforce a couple of things that 
have been said related to EPCRA. Whenever there is a spill in 
excess of reportable quantity established, there are three 
touch points: an immediate call to the National Response 
Center; the local emergency planning commission, the first 
responders and the State Emergency Response Commission.
    I think it would be reasonable to expect one more call to a 
local water facility downstream. I think one of the benefits 
with making bulk chemical storage facilities understand the 
risks may also be having them understand where the closest 
water intake structure is. If they are aware of that and there 
is a requirement that local water providers downstream be 
notified, I think that will go a long way.
    Senator Cardin. Thank you.
    Senator Boozman.
    Senator Boozman. Thank you, Mr. Chairman.
    I really do not have anything else. I was going to followup 
the way that you did. I was really curious about existing 
regulations and the loopholes but I think you all covered that 
well. We have some protections in place but we have some 
problems we need to address in the future.
    Hopefully we can work together and work with you all. This 
stuff does need to come from the ground up. We all worry about 
unfunded liabilities put on people who simply do not have any 
resources now. As you mentioned, Mr. Olson, most of our 
municipalities, most of these treatment plants are struggling 
with the funding the have now.
    Again, as I said, hopefully we can work together and come 
up with a good solution.
    Thank you, Mr. Chairman.
    Senator Cardin. Once again, I want to thank all seven of 
our witnesses. As Senator Boxer pointed out, we really do want 
to work with you and figure out how we can be helpful. Our 
first priority is to do what we can to prevent these types of 
episodes from happening again in our country.
    I think we can learn from what happened in West Virginia 
and take steps at the private sector level as well as the 
governmental level. We also want to make sure that we have 
knowledge so we know what information is out there.
    Last, when a company fails to perform, they should be held 
accountable. We are very concerned about the business aspect of 
this company and the steps it has taken to avoid its 
responsibilities as Senator Boxer and many of you here pointed 
out.
    I hope we can work together to minimize these risks. There 
are always risks, we know that. We need to minimize the risks 
and clearly do it in a way that is cost effective and really 
works. We don't want to do things that are going to cause 
additional burdens without benefits.
    I am glad to see that working together is being done by the 
West Virginia legislature. I expect the same type of response 
here in Congress and that we can be a constructive partner to 
the efforts of the people of West Virginia.
    Again, thank you all very much for your testimony.
    With that, the hearing stands adjourned.
    [Whereupon, at 12 p.m., the subcommittee was adjourned.]
 
 
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