[Senate Report 113-238]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 524
113th Congress                                                   Report
                                 SENATE
 2d Session                                                     113-238

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

 
       CHEMICAL SAFETY AND DRINKING WATER PROTECTION ACT OF 2014

                                _______
                                

                 July 31, 2014.--Ordered to be printed

                                _______
                                

    Mrs. Boxer, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 1961]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works to which was 
referred a bill (S. 1961) to protect surface water from 
contamination by chemical storage facilities, and for other 
purposes, having considered the same, reports favorably thereon 
with an amendment in the nature of a substitute and recommends 
that the bill, as amended, do pass.

                    General Statement and Background

    On January 9, 2014, a spill from an above-ground storage 
tank at the Freedom Industries chemical storage facility 
adjacent to the Elk River near Charleston, West Virginia, 
contaminated drinking water with a mixture of the chemical 4-
methylcyclohexane methanol (MCHM) and another chemical called 
``PPH, Stripped.'' The mixture is used in the processing of 
coal. The spill left more than 300,000 residents without tap 
water for days. The public water system provides drinking water 
to the City of Charleston and communities in 9 surrounding 
counties.
    On January 27, 2014, Senator Joe Manchin introduced S. 
1961, the ``Chemical Safety and Drinking Water Protection Act 
of 2014,'' along with Senator Jay Rockefeller and Senator 
Barbara Boxer. S.1961 would establish State programs under the 
Safe Drinking Water Act (SDWA) that will oversee and inspect 
chemical storage tanks that present a risk to surface drinking 
water sources for public water systems.
    S. 1961 would amend the SDWA to provide States further 
authority and oversight of chemical storage tanks that may pose 
a risk to surface waters supplying public drinking water. The 
Chemical Safety and Drinking Water Protection Act would add a 
new Part G to the SDWA that would require State programs to 
protect surface water from contamination by chemical storage 
tanks.
    S. 1961 would require the establishment of State chemical 
storage tank surface water protection programs with minimum 
requirements for regular inspections of above-ground chemical 
storage tanks, design, construction and maintenance standards, 
leak detection, spill and overfill prevention and containment, 
inventory control, emergency response and communication plans, 
employee training, financial responsibility, and integrity 
inspections. When establishing their own programs, States would 
be afforded flexibility in deciding which chemical storage 
tanks posed a risk of harm to public water systems. States as 
well as EPA are directed to limit duplicative regulation of 
chemical storage tanks subjected to other laws that 
substantially meet the requirements of this Act. The bill would 
require owners and operators of covered chemical storage tanks 
to provide EPA or the State with existing information on the 
potential toxicity of the stored chemicals along with 
safeguards or other precautions that can be taken to detect, 
mitigate or limit adverse effects of a spill. S. 1961 would 
allow EPA or the State to recoup response costs incurred from 
responding to spills from covered storage tanks.

                       Purpose of the Legislation

    To establish State programs for the oversight and 
inspection of above-ground storage tanks that pose a risk to 
surface waters that supply drinking water.

                      Section-by-Section Analysis


Section 1. Short title

    Section 1 provides that the Act may be cited as the 
``Chemical Safety and Drinking Water Protection Act.''

Section 2. Protection of surface water from contamination by chemical 
        storage tanks

    (a) In General--
    Subsection (a) amends the SDWA by adding a new Part G, as 
follows:

Section 1471. Definitions

    Section 1471 defines the terms ``chemical,'' ``covered 
chemical storage tank,'' and ``program'' for purposes of the 
Act. A ``chemical'' is defined as a chemical substance that is 
identified as a hazardous substance under section 101(14) of 
the Comprehensive Environmental Response, Compensation, and 
Liability Act (42 U.S.C. 9601(14)), subject to emergency 
planning or reporting requirements of the Emergency Planning 
and Community Right-To-Know Act (42 U.S.C. 11001 et seq.), or 
defined as a contaminant under section 1401(6) of the SDWA (42 
U.S.C. 300f(6)).
    A ``covered chemical storage tank'' is defined to make 
clear the chemical storage tanks that would be subject to the 
program. This section makes clear that tanks that are being 
regulated under section 311(j)(1)(C) of the Federal Water 
Pollution Control Act (33 U.S.C. 1321(j)(1)(C)), known as the 
Spill Prevention Control and Countermeasure (SPCC) regulations, 
are excluded. This section also provides criteria for 
additional exclusions that EPA or a State may adopt based on 
applicable Federal or State laws that substantially meet the 
requirements and purposes of this Act, or for tanks that EPA or 
the State determines would not pose a risk of harm to a public 
water system.

Section 1472. Establishment of programs

    (a) In General
    Subsection (a) provides 2 years for States that are 
exercising primary enforcement responsibility for public water 
systems under the SDWA to establish a chemical storage tank 
surface water protection program. This subsection also allows 
the Governor to delegate the program to any State agency the 
Governor determines appropriate, including agencies other than 
the agency currently responsible for implementation of other 
aspects of the SDWA.
    (b) Program Requirements
    Paragraph (1) requires that a State program provide for 
oversight and inspection of covered chemical storage tanks, 
including tanks located in source water areas identified under 
section 1453 of the SDWA (42 U.S.C. 300j-13).
    Paragraph (2) provides the minimum requirements for a State 
chemical storage tank surface water protection program, 
including provisions for leak detection, spill and overfill 
prevention and containment, emergency response and 
communication plans, employee training, existing information on 
the potential toxicity of the stored chemicals to public health 
and the environment, and financial responsibility. This 
subsection requires inspections of covered chemical storage 
tanks. For covered tanks identified in source water 
assessments, inspections are required every 3 years. For any 
other covered chemical storage tanks, inspections are required 
every 5 years. For covered chemical storage tanks identified as 
high hazard tanks under Paragraph (3), annual inspections by a 
certified inspector on behalf of the owner or operator are 
required. Paragraph (2) also requires a comprehensive inventory 
of covered chemical storage tanks.
    Paragraph (3) requires the EPA or State, as applicable, 
within 2 years, to develop a list of high hazard covered 
chemical storage tanks from which a chemical release pose the 
greatest risk of harm to public water systems and public 
health.
    (c) Incorporation of Existing Standards
    Subsection (c) provides that, in establishing the mandatory 
program requirements, EPA or the State may, by reference, 
include appropriate requirements of existing federal or State 
laws and regulations and consensus standards, which is intended 
to avoid duplication with existing requirements.
    (d) National Primary Drinking Water Regulations
    Subsection (d) provides that a State program and its 
requirements, for purposes of primary enforcement 
responsibility, are part of the national primary drinking water 
regulations and requires that they be implemented and enforced 
in accordance with the applicable procedures of the SDWA.
    (e) Administration
    Subsection (e) provides that a State program will be 
carried out by each State exercising primary enforcement 
responsibility for public water systems in that State or by EPA 
if the State does not exercise primary enforcement 
responsibility for public water systems in that State or if the 
State opts out under Subsection (f).
    (f) Notification
    Subsection (f) allows States to opt out of implementing the 
program by notifying EPA within 2 years.
    (g) Severability
    Subsection (g) makes clear that a State's decision to carry 
out the program or to opt out does not impact the State's 
primacy over other programs under the SDWA.
    (h) Guidance
    Subsection (h) requires EPA to issue guidance, subject to 
public notice and comment, and provide technical assistance to 
States carrying out programs and activities under the Act.

Section 1473. Corrective action orders

    Section 1473 authorizes EPA and the States to issue 
administrative orders to the owner or operator of covered 
chemical storage tanks to carry out this Act.

Section 1474. Response cost recovery

    Section 1474 provides that if EPA or the State incurs costs 
in undertaking a response action relating to a release of a 
chemical from a covered storage tank, the owner or operator of 
the tank is liable to EPA or the State for those response 
action costs.

Section 1475. Transfer of covered chemical storage tanks

    (a) In General
    Subsection (a) requires a pre-transfer integrity inspection 
prior to the transfer of a covered chemical storage tank and 
requires that any appropriate measures to address the results 
of the inspection be taken within 1 year, except when EPA or 
the State has granted an extension under subsection (e).
    (b) Qualifying Inspections
    Subsection (b) provides that an integrity inspection within 
1 year of the transfer can satisfy the pre-transfer inspection 
requirement.
    (c) Third-party Inspection
    Subsection (c) allows for third-party inspections by 
qualified engineers.
    (d) Calculation of Time Period
    Subsection (d) provides that the deadline for the next 
required inspection for a transferred tank is calculated from 
the date of the pre-transfer inspection.
    (e) Extension
    Subsection (e) allows EPA or the State to extend the 
deadline for the completion of appropriate measures identified 
in the pre-transfer inspection.

Section 1476. Information sharing

    (a) Information for Public Water Systems
    Subsection (a) provides that EPA or the State will make 
available to public water systems, on request, information 
maintained by EPA or the State relating to emergency response 
plans for covered chemical storage tanks located within the 
watershed, an inventory of each chemical in the covered 
chemical storage tanks, existing information on the potential 
toxicity of the stored chemicals to public health and the 
environment that EPA or the State determines is relevant to 
evaluate the risk of harm to the public water system, and 
safeguards or other precautions that can be taken to detect, 
mitigate, or otherwise limit the adverse effects of a release 
of the stored chemicals.
    (b) Emergency Response Plans
    Subsection (b) requires EPA or the State to provide the 
emergency response plans submitted under the program to EPA and 
the Department of Homeland Security (DHS). Subsection (b) also 
requires, to the maximum extent practicable, that the emergency 
response plans submitted under the program be integrated with 
applicable area contingency plans under section 311(j)(4) of 
the Clean Water Act (33 U.S.C. 1321(j)(4)).
    (c) Information
    Subsection (c) establishes requirements for maintaining 
confidential information by a State or EPA.

(b) Emergency powers

    Section (b) amends section 1431 of the SDWA by 
redesignating subsection (b) as subsection (c), and by 
inserting a new subsection (b) as follows:
    Paragraph (1) authorizes, but does not require, a public 
water system to bring a civil action for appropriate equitable 
relief, including a restraining order or permanent or temporary 
injunction, to address any activity or facility that may 
present an imminent and substantial endangerment to the health 
of persons who are supplied by that public water system and to 
petition EPA to issue an order or commence a civil action. 
Paragraph (1) provides a discretionary mechanism under federal 
law for public water systems to seek relief to address 
potential threats to its water supply but does not establish 
new requirements for public water systems in responding to such 
potential health threats. Paragraph (1) does not, under any 
circumstances, obligate or confer any responsibility upon a 
water utility to commence a civil action.
    Paragraph (2) generally requires EPA to respond to the 
petition filed under paragraph (1) within 30 days. If the 
public water system submits a petition under paragraph (1) in 
response to an emergency, EPA must respond within 72 hours.

(c) Conforming amendment

    Section (c) makes conforming amendments to the SDWA.

                          Legislative History

    Senator Manchin along with Senators Rockefeller and Boxer 
introduced S. 1961, the ``Chemical Safety and Drinking Water 
Protection Act of 2014,'' on January 27, 2014. The bill was 
read twice and referred to the Senate Committee on Environment 
and Public Works. The Committee met on April 3, 2014, and 
ordered S. 1961 favorably reported with an amendment in the 
nature of a substitute by voice vote.

                                Hearings

    The Committee on Environment and Public Works, Subcommittee 
on Water and Wildlife, held a hearing on February 4, 2014, 
entitled ``Examination of the Safety and Security of Drinking 
Water Supplies Following the Central West Virginia Drinking 
Water Crisis.''

                             Rollcall Votes

    On April 3, 2014, the Committee on Environment and Public 
Works met and considered a substitute amendment to S. 1961, 
offered by Senator Boxer. S. 1961, as amended, was reported 
favorably by a voice vote with Senators Inhofe and Fischer 
recorded as ``no''. There were no roll call votes taken in 
Committee on this bill.

                      Regulatory Impact Statement

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the committee notes that the 
Congressional Budget Office has found, ``S. 1961 would impose 
intergovernmental and private-sector mandates, as defined in 
the Unfunded Mandates Reform Act (UMRA), on owners and 
operators of some chemical storage tanks.'' The committee finds 
that S. 1961 will not cause any adverse impact on the personal 
privacy of individuals.

                          Mandates Assessment

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the Committee notes that the Congressional 
Budget Office has found, ``S. 1961 would impose 
intergovernmental and private-sector mandates, as defined in 
the Unfunded Mandates Reform Act (UMRA), on owners and 
operators of some chemical storage tanks . . . CBO estimates 
that the cost of mandates for public entities would fall below 
the annual threshold established in UMRA for intergovernmental 
mandates ($76 million in 2014, adjusted annually for inflation) 
. . . CBO estimates that the aggregate cost of the private-
sector mandates would probably exceed the annual threshold 
established in UMRA ($152 million in 2014, adjusted annually 
for inflation).''
                                                      June 5, 2014.
Hon. Barbara Boxer,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
    Dear Madam Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1961, the Chemical 
Safety and Drinking Water Protection Act of 2014.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 1961--Chemical Safety and Drinking Water Protection Act of 2014

    Summary: S. 1961 would amend the Safe Drinking Water Act 
(SDWA) to require either the Environmental Protection Agency 
(EPA) or those states with primary enforcement authority for 
public water systems to carry out a program to protect surface 
water from contamination by chemical storage tanks.\1\ Under 
this legislation, however, states would have the option to not 
establish the proposed program; if states opt out of running 
the program, then authority to implement it would revert to 
EPA.
---------------------------------------------------------------------------
    \1\Under the SDWA, tribal governments and territories are treated 
as states.
---------------------------------------------------------------------------
    Based on information from EPA, various state agencies, and 
experts in the storage tank industry, CBO estimates that 
implementing this legislation would cost $114 million over the 
2015-2109 period, subject to the availability of appropriated 
funds. That estimate assumes that all but about 10 state, 
tribal, or territorial governments would probably implement 
their own programs to oversee chemical storage tanks. EPA would 
implement the program with federal funds for state, tribal, or 
territorial governments that opt not to do so. Enacting S. 1961 
would not affect direct spending or revenues; therefore, pay-
as-you-go procedures do not apply.
    S. 1961 would impose intergovernmental and private-sector 
mandates, as defined in the Unfunded Mandates Reform Act 
(UMRA), on owners and operators of some chemical storage tanks. 
Those owners and operators would have to meet requirements 
established by EPA and states, including standards for 
construction, spill prevention, and emergency response. Owners 
and operators also would have to comply with requirements for 
periodic inspections. The cost of the mandates would ultimately 
depend on the minimum requirements developed by EPA and states, 
but they would affect a large number of entities. Only a small 
number of the chemical storage tanks owned by public entities 
would be affected by the program's requirements; therefore, CBO 
estimates that the cost of mandates for public entities would 
fall below the annual threshold established in UMRA for 
intergovernmental mandates ($76 million in 2014, adjusted 
annually for inflation). However, a large number of private 
entities would be affected by the program. Given the potential 
costs of compliance for those entities, CBO estimates that the 
aggregate cost of the private-sector mandates would probably 
exceed the annual threshold established in UMRA ($152 million 
in 2014, adjusted annually for inflation).
    Estimated cost to the Federal Government: The estimated 
budgetary effect of this legislation is shown in the following 
table. The costs of this legislation fall within budget 
function 300 (natural resources and environment).

----------------------------------------------------------------------------------------------------------------
                                                                 By fiscal year, in millions of dollars--
                                                         -------------------------------------------------------
                                                            2015     2016     2017     2018     2019   2015-2019
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION
 
Estimated Authorization Level...........................       30       30       20       20       20       120
Estimated Outlays.......................................       20       29       24       21       20       114
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: CBO assumes that S. 1961 will be enacted 
by the start of 2015 and that the amounts estimated to be 
necessary will be appropriated for each fiscal year beginning 
that year. Estimated outlays are based on historical spending 
patterns for similar EPA programs.
    This legislation would require that the proposed new state 
programs to protect drinking water from contamination by 
chemical storage tanks meet minimum requirements including: 
conducting regular inspections of covered chemical storage 
tanks; establishing emergency response and communication plans; 
and, maintaining an inventory of tanks. S. 1961 broadly defines 
covered chemical storage tanks as onshore, fixed, above-ground 
storage containers from which a release of a chemical could 
pose a risk of harm to a public water system. Based on 
information from state regulators of storage tanks, EPA, and 
chemical industry experts, CBO estimates that this definition 
of chemical storage tanks would probably extend to tens of 
thousands of storage tanks across the country.
    CBO estimates that EPA would incur significant costs to 
operate this program if states opt out of running the program 
themselves. Whether or not a state elects to run their own 
program depends on a couple of factors:
     First, about 20 states already have similar 
inspection programs of tanks and water systems in place and 
thus, running the proposed program would enable certain states 
to continue their own administration of water protection and 
oversight of water systems by expanding current inspection 
programs. States generally prefer to seek delegation of the 
federal environmental laws, rather than have EPA administer 
such programs in the state. For example, all states except 
Wyoming, the District of Columbia, and most tribal governments 
have primary enforcement authority for the federal government's 
Public Water System Supervision Program. In addition, almost 
all states have been delegated permitting and other authorities 
under the federal Clean Water Act, and all states administer 
the federal Clean Air Act Permitting Program.
     Second, the states would also have to consider the 
cost to run their own enforcement program for chemical storage 
tanks because S. 1961 would not authorize federal grants to 
states for this purpose. States could recoup the cost of 
operating the new program by imposing fees on owners and 
operators of covered chemical tanks, but some states may 
require changes to state laws to authorize such fees.
    Based on information from some states currently running 
similar enforcement programs, CBO expects that most states (and 
some tribal governments and territories) would probably 
establish their own programs under the bill. However, CBO 
expects that about 10 states would not establish their own 
programs and would let EPA run programs in those states 
instead.
    We estimate that it would cost EPA about $3 million 
initially per state to run a program protecting surface water 
from contamination by chemical storage tanks. After regulations 
have been developed and initial training for inspectors 
completed, CBO expects that annual costs would decrease to 
about $2 million per state.
    Overall, we estimate that implementing this legislation 
would cost $114 million over the 2015-2019 period for EPA to 
operate the program for about 10 states, subject to 
appropriation of the necessary amounts. Such costs could be 
higher or lower depending on how many states opt out of 
operating their own programs, and those decisions could change 
after the proposed program starts.
    Intergovernmental and private-sector impact: S. 1961 would 
impose intergovernmental and private-sector mandates, as 
defined in UMRA, on owners and operators of some chemical 
storage tanks. The bill would require owners and operators of 
covered chemical storage tanks to meet minimum requirements to 
be established under a program for protecting public water 
systems from chemical releases. The program's requirements 
would include standards for tank construction, leak detection, 
spill prevention, lifecycle maintenance, and proof of financial 
responsibility. The program also would require owners and 
operators to develop emergency response plans and comply with 
requirements for periodic inspections. The bill would direct 
EPA and states with primary enforcement authority for public 
water systems to consider excluding from the program tanks that 
are already regulated by state or federal standards and tanks 
that do not pose a risk to public water systems. However, CBO 
expects that at least tens of thousands of tanks would be 
covered by the program, most owned or operated by private 
entities. Based on information from states, CBO estimates that 
a small proportion of those tanks are owned or operated by 
public entities such as local governments, public universities, 
or hospitals.
    The cost of the mandates would ultimately depend on the 
minimum requirements developed by EPA and states administering 
the program. Existing requirements in federal or state law as 
well as voluntary consensus standards could be incorporated 
into the program. Consequently, a number of tanks might already 
comply with some requirements that program would establish. 
Based on information from states, CBO estimates that only a 
small number of the chemical storage tanks owned by public 
entities would need to take additional action to comply with 
the program's requirements. Consequently, CBO estimates that 
the aggregate cost for those entities to comply with the 
intergovernmental mandates would fall below the annual 
threshold established in UMRA ($76 million in 2014, adjusted 
annually for inflation).
    Based on information from industry sources, CBO estimates 
that the cost for private entities to comply with the mandates 
could amount to tens of thousands of dollars per tank, 
depending on the requirements set by EPA and states. Given the 
large number of private entities that would be affected by the 
program and the potential costs of compliance, the cost of the 
private-sector mandates would probably be substantial. 
Consequently, CBO estimates that the aggregate cost of the 
private-sector mandates would probably exceed the annual 
threshold established in UMRA ($152 million in 2014, adjusted 
annually for inflation).
    Estimate prepared by: Federal costs: Susanne S. Mehlman; 
Impact on state, local, and tribal governments: Melissa Merrell 
and Michael Hirsch; Impact on the private sector: Amy Petz.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: Existing law proposed to be 
omitted is enclosed in [black brackets], new matter is printed 
in italic, existing law in which no change is proposed is shown 
in roman:

           *       *       *       *       *       *       *


SAFE DRINKING WATER ACT-(TITLE XIV OF PUBLIC HEALTH SERVICE ACT)

           *       *       *       *       *       *       *



Part A--Definitions

           *       *       *       *       *       *       *



               enforcement of drinking water regulations

  Sec. 1414. (a)(1)(A) Whenever the Administrator finds during 
a period during which a State has primary enforcement 
responsibility for public water systems or a covered chemical 
storage tank (within the meaning of section 1413(a)) that any 
public water system--or a covered chemical storage tank
          (i) for which a variance under section 1415 or an 
        exemption under section 1416 is not in effect, does not 
        comply with any applicable requirement, or
          (ii) for which a variance under section 1415 or an 
        exemption under section 1416 is in effect, does not 
        comply with any schedule or other requirement imposed 
        pursuant thereto,
he shall so notify the State and such public water system or a 
covered chemical storage tank and provide such advice and 
technical assistance to such State and public water system or a 
covered chemical storage tank as may be appropriate to bring 
the system into compliance with the requirement by the earliest 
feasible time.
  (B) If, beyond the thirtieth day after the Administrator's 
notification under subparagraph (A), the State has not 
commenced appropriate enforcement action, the Administrator 
shall issue an order under subsection (g) requiring the public 
water system or a covered chemical storage tank to comply with 
such applicable requirement or the Administrator shall commence 
a civil action under subsection (b).
          (2) Enforcement in nonprimacy states.--
                  (A) In general.-- If, on the basis of 
                information available to the Administrator, the 
                Administrator finds, with respect to a period 
                in which a State does not have primary 
                enforcement responsibility for public water 
                systems or a covered chemical storage tank, 
                that a public water system or a covered 
                chemical storage tank in the State--
                          (i) for which a variance under 
                        section 1415 or an exemption under 
                        section 1416 is not in effect, does not 
                        comply with any applicable requirement; 
                        or
                          (ii) for which a variance under 
                        section 1415 or an exemption under 
                        section 1416 is in effect, does not 
                        comply with any schedule or other 
                        requirement imposed pursuant to the 
                        variance or exemption;
                the Administrator shall issue an order under 
                subsection (g) requiring the public water 
                system or a covered chemical storage tank to 
                comply with the requirement, or commence a 
                civil action under subsection (b).
                  (B) Notice.-- If the Administrator takes any 
                action pursuant to this paragraph, the 
                Administrator shall notify an appropriate local 
                elected official, if any, with jurisdiction 
                over the public water system or a covered 
                chemical storage tank of the action prior to 
                the time that the action is taken.
  (b) The Administrator may bring a civil action in the 
appropriate United States district court to require compliance 
with any applicable requirement, with an order issued under 
subsection (g), or with any schedule or other requirement 
imposed pursuant to a variance or exemption granted under 
section 1415 or 1416 if--
          (1) authorized under paragraph (1) or (2) of 
        subsection (a), or
          (2) if requested by (A) the chief executive officer 
        of the State in which is located the public water 
        system or a covered chemical storage tank which is not 
        in compliance with such regulation or requirement, or 
        (B) the agency of such State which has jurisdiction 
        over compliance by public water systems or a covered 
        chemical storage tank in the State with national 
        primary drinking water regulations or State drinking 
        water regulations.
The court may enter, in an action brought under this 
subsection, such judgment as protection of public health may 
require, taking into consideration the time necessary to comply 
and the availability of alternative water supplies; and, if the 
court determines that there has been a violation of the 
regulation or schedule or other requirement with respect to 
which the action was brought, the court may, taking into 
account the seriousness of the violation, the population at 
risk, and other appropriate factors, impose on the violator a 
civil penalty of not to exceed $25,000 for each day in which 
such violation occurs.

           *       *       *       *       *       *       *

  (e) Nothing in this title shall diminish any authority of a 
State or political subdivision to adopt or enforce any law or 
regulation respecting drinking water regulations or public 
water systems or a covered chemical storage tank, but no such 
law or regulation shall relieve any person of any requirement 
otherwise applicable under this title.
  (f) If the Administrator makes a finding of noncompliance 
(described in subparagraph (A) or (B) of subsection (a)(1)) 
with respect to a public water system or a covered chemical 
storage tank in a State which has primary enforcement 
responsibility, the Administrator may, for the purpose of 
assisting that State in carrying out such responsibility and 
upon the petition of such State or public water system or a 
covered chemical storage tank or persons served by such system, 
hold, after appropriate notice, public hearings for the purpose 
of gathering information from technical or other experts, 
Federal, State, or other public officials, representatives of 
such public water system or a covered chemical storage tank, 
persons served by such system, and other interested persons 
on--
          (1) the ways in which such system can within the 
        earliest feasible time be brought into compliance with 
        the regulation or requirement with respect to which 
        such finding was made, and
          (2) the means for the maximum feasible protection of 
        the public health during any period in which such 
        system is not in compliance with a national primary 
        drinking water regulation or requirement applicable to 
        a variance or exemption.
On the basis of such hearings the Administrator shall issue 
recommendations which shall be sent to such State and public 
water system or a covered chemical storage tank and shall be 
made available to the public and communications media.
  (g)(1) In any case in which the Administrator is authorized 
to bring a civil action under this section or under section 
1445 with respect to any applicable requirement, the 
Administrator also may issue an order to require compliance 
with such applicable requirement.
  (2) An order issued under this subsection shall not take 
effect, in the case of a State having primary enforcement 
responsibility for public water systems or a covered chemical 
storage tank in that State, until after the Administrator has 
provided the State with an opportunity to confer with the 
Administrator regarding the order. A copy of any order issued 
under this subsection shall be sent to the appropriate State 
agency of the State involved if the State has primary 
enforcement responsibility for public water systems or a 
covered chemical storage tank in that State. Any order issued 
under this subsection shall state with reasonable specificity 
the nature of the violation. In any case in which an order 
under this subsection is issued to a corporation, a copy of 
such order shall be issued to appropriate corporate officers.
  (3)(A) Any person who violates, or fails or refuses to comply 
with, an order under this subsection shall be liable to the 
United States for a civil penalty of not more than $25,000 per 
day of violation.
  (B) In a case in which a civil penalty sought by the 
Administrator under this paragraph does not exceed $5,000, the 
penalty shall be assessed by the Administrator after notice and 
opportunity for a public hearing (unless the person against 
whom the penalty is assessed requests a hearing on the record 
in accordance with section 554 of title 5, United States Code). 
In a case in which a civil penalty sought by the Administrator 
under this paragraph exceeds $5,000, but does not exceed 
$25,000, the penalty shall be assessed by the Administrator 
after notice and opportunity for a hearing on the record in 
accordance with section 554 of title 5, United States Code.
  (C) Whenever any civil penalty sought by the Administrator 
under this subsection for a violation of an applicable 
requirement exceeds $25,000, the penalty shall be assessed by a 
civil action brought by the Administrator in the appropriate 
United States district court (as determined under the 
provisions of title 28 of the United States Code).
  (D) If any person fails to pay an assessment of a civil 
penalty after it has become a final and unappealable order, or 
after the appropriate court of appeals has entered final 
judgment in favor of the Administrator, the Attorney General 
shall recover the amount for which such person is liable in any 
appropriate district court of the United States. In any such 
action, the validity and appropriateness of the final order 
imposing the civil penalty shall not be subject to review.

           *       *       *       *       *       *       *

  [(i) Definition of Applicable Requirement.-- In this section, 
the term ``applicable requirement'' means--]
  (i) Definitions.--In this section:
          (1) Applicable requirement.--The term `applicable 
        requirement' means--
          [(1)] (A) a requirement of section 1412, 1414, 1415, 
        1416, 1417,\5\ 1433, 1441, [or 1445] 1445, or part G
---------------------------------------------------------------------------
    \5\Lack of comma so in law. Section 403 of the Public Health 
Security and Bioterrorism Preparedness and Response Act of 2002 (P.L. 
107-188; 116 Stat.594) amended section 1414(i)(1) by inserting ``1433'' 
after ``1417''. The amendment should probably have inserted ``1433,'' 
after ``1417,''.
---------------------------------------------------------------------------
          [(2)] (B) a regulation promulgated pursuant to a 
        section referred to in paragraph (1);
          [(3)] (C) a schedule or requirement imposed pursuant 
        to a section referred to in paragraph (1); and
          [(4)] (D) a requirement of, or permit issued under, 
        an applicable State program for which the Administrator 
        has made a determination that the requirements of 
        section 1413 have been satisfied, or an applicable 
        State program approved pursuant to this part.
          (2) Covered chemical storage tank.--The term `covered 
        chemical storage tank' has the meaning given the term 
        in section 1471.

           *       *       *       *       *       *       *


                        Part D--Emergency Powers


                            emergency powers

  Sec. 1431. (a) Notwithstanding any other provision of this 
title, the Administrator, upon receipt of information that a 
contaminant which is present in or is likely to enter a public 
water system or an underground source of drinking water, or 
that there is a threatened or potential terrorist attack (or 
other intentional act designed to disrupt the provision of safe 
drinking water or to impact adversely the safety of drinking 
water supplied to communities and individuals), which may 
present an imminent and substantial endangerment to the health 
of persons, and that appropriate State and local authorities 
have not acted to protect the health of such persons, may take 
such actions as he may deem necessary in order to protect the 
health of such persons. To the extent he determines it to be 
practicable in light of such imminent endangerment, he shall 
consult with the State and local authorities in order to 
confirm the correctness of the information on which action 
proposed to be taken under this subsection is based and to 
ascertain the action which such authorities are or will be 
taking. The action which the Administrator may take may include 
(but shall not be limited to) (1) issuing such orders as may be 
necessary to protect the health of persons who are or may be 
users of such system (including travelers), including orders 
requiring the provision of alternative water supplies by 
persons who caused or contributed to the endangerment, and (2) 
commencing a civil action for appropriate relief, including a 
restraining order or permanent or temporary injunction.
  (b) Petitions.--
          (1) In general.--In any case in which the 
        Administrator is authorized to act under subsection 
        (a), the owner or operator of a public water system 
        may, but is not required--
                  (A) to commence a civil action for 
                appropriate equitable relief, including a 
                restraining order or permanent or temporary 
                injunction, to address any activity or facility 
                that may present an imminent and substantial 
                endangerment to the health of persons who are 
                supplied by that public water system; or
                  (B) to petition the Administrator to issue an 
                order or commence a civil action under 
                subsection (a).
          (2) Response.--
                  (A) In general.--Subject to subparagraph (B), 
                not later than 30 days after the date on which 
                the Administrator receives a petition under 
                paragraph (1), the Administrator shall respond 
                to the petition and initiate such action as the 
                Administrator determines to be appropriate.
                  (B) Special rule for emergencies.--If the 
                owner or operator of a public water system 
                submits the petition under paragraph (1) in 
                response to an emergency, the Administrator 
                shall respond not later than 72 hours after 
                receipt of the petition.
  [(b)] (c) Any person who violates or fails or refuses to 
comply with any order issued by the Administrator under 
subsection (a)(1) may, in an action brought in the appropriate 
United States district court to enforce such order, be subject 
to a civil penalty of not to exceed $15,000 for each day in 
which such violation occurs or failure to comply continues.



           *       *       *       *       *       *       *
  PART G--PROTECTION OF SURFACE WATER FROM CONTAMINATION BY CHEMICAL 
                             STORAGE TANKS

SEC. 1471. DEFINITIONS.

  In this part:
          (1) Chemical.--The term `chemical' means a chemical 
        substance that is--
                  (A) identified as a hazardous substance, as 
                defined in section 101(14) of the Comprehensive 
                Environmental Response, Compensation, and 
                Liability Act (42 U.S.C. 9601(14));
                  (B) subject to emergency planning or 
                reporting requirements of the Emergency 
                Planning and Community Right-To-Know Act (42 
                U.S.C. 11001 et seq.); or
                  (C) defined as a contaminant under section 
                1401(6) of the Safe Drinking Water Act (42 
                U.S.C. 300f(6)).
          (2) Covered chemical storage tank.--
                  (A) In general.--The term `covered chemical 
                storage tank' means an onshore, fixed, above-
                ground bulk chemical storage container 
                (including any associated piping and 
                appurtenances), or a combination of such 
                storage containers, from which a release of the 
                chemical from the tank or storage containers or 
                combination of storage containers and tanks 
                could pose a risk of harm to a public water 
                system.
                  (B) Exclusions.--
                          (i) In general.--The term `covered 
                        chemical storage tank' does not include 
                        a tank or container that is subject to 
                        a procedure, method, or other 
                        requirement pursuant to regulations 
                        promulgated under section 311(j)(1)(C) 
                        of the Federal Water Pollution Control 
                        Act (33 U.S.C. 1321(j)(1)(C)).
                          (ii) Additional exclusions.--The 
                        Administrator or State, as applicable, 
                        shall consider and may adopt 
                        appropriate exclusions--
                                  (I) based on applicable 
                                Federal or State laws 
                                (including regulations) that 
                                substantially meet the 
                                requirements and purposes of 
                                this Act; or
                                  (II) for covered chemical 
                                storage tanks that the 
                                Administrator or State, as 
                                applicable, determines would 
                                not pose a risk of harm to a 
                                public water system.
          (3) Program.--The term `program' means a chemical 
        storage tank surface water protection program 
        established under section 1472.

SEC. 1472. ESTABLISHMENT OF PROGRAMS.

  (a) In General.--Not later than 2 years after the date of 
enactment of this part, the Administrator or each State 
exercising primary enforcement responsibility for public water 
systems, as applicable, shall establish, directly or through 
delegation to any State agency the Governor of the State 
determines is appropriate, a chemical storage tank surface 
water protection program to provide for the protection of 
public water systems from a release of a chemical from a 
covered chemical storage tank.
  (b) Program Requirements.--
          (1) In general.--A program under subsection (a) shall 
        provide for oversight and inspection of each covered 
        chemical storage tank in accordance with the 
        requirements described in paragraph (2) to prevent the 
        release of chemicals into surface water supplies of 
        public water systems, including a covered chemical 
        storage tank located in a source water area identified 
        under section 1453.
          (2) Minimum requirements.--At a minimum, the program 
        shall include--
                  (A) requirements for covered chemical storage 
                tanks, including--
                          (i) appropriate standards of good 
                        design, construction, or maintenance;
                          (ii) leak detection;
                          (iii) spill and overfill prevention 
                        and containment;
                          (iv) inventory control for the 
                        purpose of promptly determining the 
                        quantity of chemicals released in the 
                        event of a spill;
                          (v) an emergency response and 
                        communication plan, including 
                        procedures for immediately notifying, 
                        after discovery of a chemical release, 
                        public water systems that may be 
                        adversely impacted by the chemical 
                        release, and other entities required by 
                        the Emergency Planning and Community 
                        Right-To-Know Act of 1986 (42 U.S.C. 
                        11001 et seq.);
                          (vi) an employee training and safety 
                        plan;
                          (vii) an inspection of the integrity 
                        of covered chemical storage tanks, 
                        consistent with appropriate standards;
                          (viii) lifecycle maintenance, 
                        including corrosion protection;
                          (ix) notice to the Administrator and 
                        the appropriate State agency of--
                                  (I) the existing information 
                                on the potential toxicity of 
                                the stored chemicals to public 
                                health and the environment that 
                                the Administrator or State, as 
                                applicable, determines is 
                                relevant to evaluate the risk 
                                of harm to public water 
                                systems; and
                                  (II) safeguards or other 
                                precautions that can be taken 
                                to detect, mitigate, or 
                                otherwise limit the adverse 
                                effects of a release of the 
                                stored chemicals; and
                          (x) financial responsibility 
                        requirements, including proof of 
                        insurance, bond, self-insurance, 
                        guarantee, or other similar financial 
                        assurance instrument;
                  (B) inspections of covered chemical storage 
                tanks, which shall occur--
                          (i) for a covered chemical storage 
                        tank listed under paragraph (3), 
                        annually by a certified inspector on 
                        behalf of the owner or operator of such 
                        tank;
                          (ii) for a covered chemical storage 
                        tank identified in a source water 
                        assessment area under section 1453, not 
                        less frequently than once every 3 years 
                        by the Administrator or State, as 
                        applicable; and
                          (iii) for any other covered chemical 
                        storage tank, not less frequently than 
                        once every 5 years; and
                  (C) a comprehensive inventory of the covered 
                chemical storage tanks in each State.
          (3) High hazard covered chemical storage tanks.--Not 
        later than 2 years after the date of enactment of this 
        part, the Administrator or the State, as applicable, 
        shall develop a list of covered chemical storage tanks 
        from which a release of a chemical from the tanks poses 
        the greatest risk of harm to public water systems in 
        the State and the greatest risk to public health.
  (c) Incorporation of Existing Standards.--In establishing 
mandatory program requirements under subsection (b), the 
Administrator or a State, as applicable, may, by reference, 
include appropriate--
          (1) requirements under State or Federal law, 
        including regulations, as in effect on the date on 
        which the program requirements are established; and
          (2) consensus standards.
  (d) National Primary Drinking Water Regulations.--For 
purposes of primary enforcement responsibility, a program and 
any requirements under this part shall be--
          (1) considered to be a part of the national primary 
        drinking water regulations established under section 
        1412; and
          (2) implemented and enforced in accordance with this 
        Act.
  (e) Administration.--A program shall be carried out--
          (1) if the State exercises primary enforcement 
        responsibility for public water systems in that State 
        under this Act, by the State; or
          (2) by the Administrator if the State--
                  (A) does not exercise primary enforcement 
                responsibility for public water systems in that 
                State under this Act; or
                  (B)(i) exercises primary enforcement 
                responsibility for public water systems in that 
                State; and
                  (ii) expressly refrains from administering 
                and implementing a program under this part.
  (f) Notification.--Not later than 2 years after the date of 
enactment of this part, the State shall notify the 
Administrator if the State--
          (1) exercises primary enforcement responsibility for 
        public water systems in that State under this Act; and
          (2) refrains from establishing a program under this 
        part.
  (g) Severability.--If a State does not implement a program 
under this part, it shall not otherwise affect the primary 
enforcement responsibility of the State under this Act.
  (h) Guidance.--The Administrator shall issue guidance, 
subject to public notice and opportunity for comment, and 
provide other technical assistance to States carrying out 
programs and activities under this part.

SEC. 1473. CORRECTIVE ACTION ORDERS.

  The Administrator under section 1472(e)(2) or the State under 
section 1472(e)(1), as applicable, may issue an order to the 
owner or operator of a covered chemical storage tank to carry 
out this part.

SEC. 1474. RESPONSE COST RECOVERY.

  If costs have been incurred by the Administrator or the 
State, as applicable, for undertaking a response action under 
this part relating to the release of a chemical, the owner or 
operator of the covered chemical storage tank shall be liable 
to the Administrator or the State for those response action 
costs.

SEC. 1475. TRANSFER OF COVERED CHEMICAL STORAGE TANKS.

  (a) In General.--Notwithstanding the inspection schedule 
under section 1472(b)(2)(B), no person shall transfer a covered 
chemical storage tank unless--
          (1) prior to the closing or completion of the 
        transfer, the transferor submits to the transferee the 
        results of a pretransfer inspection of the integrity of 
        the covered chemical storage tank, which shall be 
        conducted pursuant to any requirements set by the 
        Administrator under section 1472(e)(2) or the State 
        under section 1472(e)(1), as applicable; and
          (2) except as provided in subsection (e), the 
        transferor or the transferee agrees to take appropriate 
        measures to address the results of the pretransfer 
        inspection prior to the date that is 1 year after the 
        date on which the covered chemical storage tank closes 
        or transfer is complete.
  (b) Qualifying Inspections.--An inspection carried out not 
earlier than 1 year before the date on which a covered chemical 
storage tank is transferred shall satisfy the pretransfer 
inspection requirement described in subsection (a).
  (c) Third-party Inspections.--An inspection made by a 
qualified engineer on behalf of the owner or operator of the 
tank shall satisfy the pretransfer inspection requirement 
described in subsection (a).
  (d) Calculation of Time Period.--For a covered chemical 
storage tank subject to a pretransfer inspection under 
subsection (a)(1), the deadline for the next required 
inspection under section 1427(b)(2)(B) shall be calculated from 
the date of the pretransfer inspection.
  (e) Extension.--The Administrator or State, as applicable, 
may extend the time period described in subsection (a)(2) for a 
reasonable time if the transferor or transferee establishes, to 
the satisfaction of the Administrator or State, that the design 
and construction of the appropriate measures taken under 
subsection (a)(2) cannot reasonably be completed during the 
time period.

SEC. 1476. INFORMATION SHARING.

  (a) Information for Public Water Systems.--Subject to 
subsection (c), the Administrator or State, as applicable, 
shall make available to public water systems, on request, 
information maintained by the Administrator or State, as 
applicable, in accordance with section 1472(b)(2) relating to--
          (1) emergency response plans for covered chemical 
        storage tanks located within the same watershed as the 
        public water system;
          (2) an inventory of each chemical held at the covered 
        chemical storage tanks described in paragraph (1);
          (3) existing information on the potential toxicity of 
        the stored chemicals to public health and the 
        environment that the Administrator or State, as 
        applicable, determines is relevant to evaluate the risk 
        of harm to public water systems; and
          (4) safeguards or other precautions that can be taken 
        to detect, mitigate, or otherwise limit the adverse 
        effects of a release of the stored chemicals.
  (b) Emergency Response Plans.--
          (1) In general.--A State or the Administrator, as 
        applicable, shall submit a copy of each emergency 
        response plan submitted under section 1472(b)(2)(A) 
        to--
                  (A) the Administrator (or the State if the 
                Administrator is carrying out the program); and
                  (B) the Secretary of Homeland Security.
          (2) Consistency.--To the maximum extent practicable, 
        emergency response plans submitted under section 
        1472(b)(2)(A) shall be integrated with applicable area 
        contingency plans under section 311(j)(4) of the 
        Federal Water Pollution Control Act (33 U.S.C. 
        1321(j)(4)).
  (c) Information.--
          (1) In general.--The Administrator or a State, as 
        applicable, shall keep confidential information 
        reported to, obtained by, or otherwise submitted to the 
        Administrator or the State that the Administrator or 
        State determines to be national security sensitive or 
        present a security risk to a covered chemical storage 
        tank.
          (2) Exceptions.--Paragraph (1) shall not--
                  (A) apply to public health information;
                  (B) apply to information required to be 
                disclosed under the Emergency Planning and 
                Community Right-To-Know Act of 1986 (42 U.S.C. 
                11001 et seq.) or any other requirement under 
                any law (including regulations); or
                  (C) prevent the sharing of information with 
                the Administrator, the Secretary of Homeland 
                Security, a public water system, or a public 
                agency involved in emergency response.
          (3) Effect.--Nothing in this subsection affects--
                  (A) except as provided under paragraph (2), 
                any disclosure requirement or exceptions to 
                disclosure under any State law (including 
                regulations); or
                  (B) any disclosure requirement or exceptions 
                to disclosure under Federal law, including 
                section 552 of title 5, United States Code 
                (commonly known as the `Freedom of Information 
                Act').

                                  
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