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Statement before the WV House Committee on Health and Human Resources

Regarding State Senate Bill 373

Good afternoon Mr. Perdue and members of the Committee. My name is Tom Curtis and I serve as Deputy Executive Director for the American Water Works Association. Established in 1881, the AWWA is the largest nonprofit, scientific and educational association dedicated to managing and treating water, the world’s most important resource. With approximately 50,000 members, we provide solutions to improve public health, protect the environment, strengthen the economy and enhance our quality of life. AWWA’s utility members are proud to provide safe and affordable water to about 80 percent of the American population

It is important to clearly distinguish AWWA from West Virginia American Water and its corporate parent, American Water. As I said, AWWA is a nonprofit association, while West Virginia American Water is an investor owned utility. The two are separate organizations with no relationship beyond the fact that West Virginia American Water is one of approximately 4000 utility members of AWWA.

While I work in Washington, D.C., I am a West Virginia native, having grown up in Morgantown and earned my undergraduate and graduate degrees there. As a much younger man, I worked here in Charleston for two governors of West Virginia. It’s a pleasure to be back in the Kanawha Valley, although I wish I were here to celebrate a happy occasion and not in response to the events of early January.

I would like to say first that West Virginia is on the minds and in the hearts of AWWA members and the entire water community. We know that the people and businesses in this region have suffered enormously as the result of the chemical spill on the Elk River.

I am honored to be invited to provide some broad insights into how such accidents might be prevented in the future and how to mitigate the impact of such events. These insights are based on the experiences and expertise of our members. I do want to be clear at the outset that I hold no special or inside knowledge about the specific events of early January. My remarks are limited to the state of public policy that protects our precious source waters and some observations on possible improvements.

As you have so painfully learned, any human accident or natural disaster that interrupts municipal water service poses an immediate and direct threat to the community. Such events can threaten public health, public safety, our quality of life, and the local economy. In that regard it’s important to remember that water service is about much more than simply human consumption; fire protection is also a key function for water utilities, meaning that water must be kept in the distribution system under pressure at all times. These are among the important reasons that the protection of drinking water sources and systems is a paramount and ongoing concern for AWWA’s members.

Attached to this statement is a broad set of legislative principles that AWWA is offering to the United States Congress in Washington. Many of those recommendations require federal action. Some of them can be undertaken by individual states. I’d like to offer brief perspective on these recommendations. They are easy to describe at a high level but will require significant commitment and effort to fully develop and implement. No one will be served by a response that is too broad and wastes time and money for the government and the regulated community. And no one will be protected by requirements that don’t go far enough and overlook critical gaps in the current regulatory system.

First, on a broad basis, we believe that all tanks which pose a risk to sources of surface and groundwater used for drinking water supply should be identified and subject to appropriate and cost effective regulation. Many such tanks are already subject to existing programs, and others may not contain chemicals that would pose a threat to drinking water systems. We do not need to bring such “benign” tanks under new regulatory authority if they don’t pose a risk or if they are already subject to requirements similar to those outlined in our recommendations. But in this issue as in medicine, an ounce of prevention is worth a pound of cure. In fact, preventing spills into drinking water sources is the single most important thing you can do. There is a subset of tanks which does pose a risk to drinking water systems and which is not effectively regulated. At a minimum, that subset of tanks should be identified and made subject to requirements for leak detection, spill containment, spill reporting, and financial responsibility. It appears to me that the regulatory program to be developed under section 22-30-6(b); the bill’s financial responsibility requirements; and its corrective action provisions are appropriate steps towards carrying out the spirit of this recommendation.

It is, of course, critical that the tanks mentioned above and proximate water utilities “know” about each other. Water systems that might be quickly put at risk by a spill must be notified about tanks of concern in their watersheds or their groundwater recharge zones. And the owners or operators of such tanks must know which water utilities would be significantly affected in the event of a spill. This information sharing must include the types and quantities of chemicals in the tanks of interest and must be kept current. Needless to say, water systems and tank owners / operators must both have current and accurate emergency contact information for each other.

Another hugely important recommendation, after spill prevention, is that proximate water utilities whose supplies are threatened by a chemical spill must be notified immediately. This is critical. We recommend that at a minimum, every utility whose sources of water will be impacted by a contaminant plume within 24 hours of a spill must receive notice within one hourafter a spill occurs. Immediate notice gives the affected water utility at least a head start in understanding the situation and preparing defensive measures to protect the community it serves, while delay can mean that contaminants are already in the public water supply when they are discovered. I would note that the spirit of this recommendation seems to be captured by section 22-30-23(b) of Senate Bill 373, provided there is a way to ensure the provision is strictly honored. I want to applaud you for including this provision and urge that it both remain in the bill and that it be strictly enforced.

Another important aspect of notifying affected water utilities concerns the importance of immediately providing information about the size of the spill and the nature of the chemical or chemicals involved. Water systems need immediate answers to questions such as:

  1. What was spilled?
  2. How much was spilled?
  3. How fast is it traveling?
  4. How does this chemical behave in water?
  5. What are the known or anticipated risks to human health and the environment associated with this chemical? And
  6. What conventional or unconventional watertreatment measures will remove this chemical or render it harmless?

The last point raises at least two other points on which we believe we need federal action. First, the United States simply must find a way to accelerate the characterization of chemicals, which would allow water utilities to better understand how to respond to individual contamination events. It has been reported that a significant majority of chemicals produced, stored, or used in the United States has not been sufficiently characterized to allow utilities to make critical, well-informed decisions in emergency situations. That simply isn’t acceptable.

The second point on which we need federal action concerns guidance for utilities on what to do with contaminated water once an accident has occurred. Even with meaningful notification requirements in place, the risk of a water contamination event will always remain. To minimize impacts when such an event occurs, it is essential that EPA develop guidelines that can provide an immediate answer to the question, “What should the utility do with the contaminated water?” Existing EPA guidance essentially says to store the water or get a National Pollutant Discharge Elimination System (NPDES) permit to flush the system. In practice, storing all the water in a utility distribution system means the utility must entirely cease operations -- and NPDES permits generally take weeks, months, or even longer to obtain. Neither of those is a workable solution in the midst of an emergency. We need guidance on options that can be implemented within 24 hours under emergency conditions.

To add an extra layer of protection for the public, water utilities need clear authority to seek immediate injunctive relief or equitable remedy in the face of an emergency, and to fully recover their response costs if an accident does happen. Water utilities have an obligation to protect the communities they serve against disease, fire, and economic misfortune. The law needs to give them the tools they need to meet that obligation. Having said that, it is also important to clearly understand that these recommendations do not confer regulatory authority on the water system; that authority is appropriately vested in state and federal government agencies. Nor should the information sharing recommended here create an obligation for a public water system to act or not act in specific ways. The responsibility for the safety of the subject tanks needs to remain with the tank owners and operators.

I’d like to say also that all of the agencies of government at every level involved in the reforms I have described need to be adequately funded. We need guardians of the public health and welfare. Those agencies of government that stand guard to protect sources of drinking water and public health need to be adequately staffed and fully funded. The budget savings realized by skimping on those programs are small compared to the potential public health and economic consequences of inadequate, underfunded programs.

Finally, it would be helpful if water systems had a source of low-cost funding to reduce customers’ bills in water systems that undertake capital investments to better protect and serve their communities. I would note that the Senate version of a bill currently in a U.S. House-Senate conference committee includes such a source of funds. It is called the Water Infrastructure Finance and Innovation Act, or WIFIA. AWWA strongly supports WIFIA as a way to encourage capital investment by water systems – both public and investor owned – at low cost to their customer base. West Virginia Congressman Rahall is a key member of that conference committee.

In conclusion, thank you for the privilege of speaking with you today about ways to better protect our precious sources of drinking water. I will be happy to offer all possible assistance as you move forward in the legislative process, and I am happy now to answer any questions you may have.

Legislative Principles

Protecting Public Water Supplies from Chemical Spills

Forward

The recent chemical spill in West Virginia highlights the critical importance of protecting the nation’s supplies of drinking water. AWWA believes critical gaps must be closed in the system of laws and regulations that, taken together, should protect our water supplies. AWWA’s recommendation is for a narrowly targeted set of requirements on chemical tanks that pose a risk to public water supplies in reasonable proximity downstream or within an aquifer recharge zone. It is of paramount importance to prevent spills into drinking water sources, and to require the immediate notification of nearby drinking water utilities if a spill does occur. Any existing requirements of state or federal law that accomplish the objectives outlined below could be deemed to satisfy these recommendations.

Principles

  1. EPA and/or states should identify above-ground tanks which, in the event of a leak or spill, pose a reasonably foreseeable risk of contaminating surface water or ground water used for drinking water, and which contain substances that pose a reasonably foreseeable risk to public health or to public water systems. Hereafter these are called “covered tanks.” Covered tanks must be:
  1. Subject to appropriate standards for design, construction, operation, and financial responsibility.
  2. Equipped with leak detection and overflow/spill containment systems.
  3. Covered by up-to-date spill response and emergency communications plans.
  4. Periodically inspected in accordance with a protocol developed by EPA or the state.
  1. EPA and/or states should identify all Public Water Suppliers (PWS) within some prescribed distance of covered tanks (hereafter called “downstream PWS”). For surface water we suggest at least the distance a contaminant plume would travel in twenty-four (24) hours under typical flow conditions. For ground water we suggest an equivalent proximity to water supply wells. EPA and/or states should be able to prescribe a different downstream distance based on circumstances or professional judgment.
  1. Owners and operators of covered tanks should provide current information to the state and downstream PWS regarding the chemicals on site, including all available information to characterize those chemicals (such as, at a minimum, the chemical’s behavior in water, technologies for removing it from water, and its known or anticipated effects on human health at various concentrations). Such information could be provided directly or through access to a searchable data base. Reasonable protections could be offered for Confidential Business Information, consistent with these principles. Receipt of information by a PWS should not confer any regulatory authority upon the PWS, nor create a responsibility for the PWS to act or not act upon such information.
  1. Owners / operators of covered tanks should immediately notify the state and downstream PWS in the event of a spill or accidental release into surface water. Any incident which must be reported to the National Response Center or its state counterpart should also immediately be reported to downstream PWS.
  1. EPA should develop guidance on the management and disposition of contaminated water in a Public Water System and in customer plumbing. Such guidance must be capable of being reasonably implemented within 24 hours under emergency conditions.
  1. In the event of an imminent or actual spill or accidental release involving a covered tank, PWS must be given clear authority to go into court for injunctive or equitable relief as well as for cost recovery.
  1. Compliance with any existing state or federal program that satisfies the requirements above could be deemed to constitute compliance with these requirements.
  1. Appropriate enforcement authorities should be developed to ensure compliance with these principles.
  1. Funds should be authorized for states and EPA to carry out this program.