Instead of Protecting Contributions, Shouldn't the Congress Protect Drinking Water? From Charleston, WV to the Great Forests


Over the past month, the Congress has continued to vote to put our drinking water at risk.  You would think that the disaster in Charleston, West Virginia, would have halted attempts to further weaken safeguards that protect our drinking water.  Even as the disaster unfolded, Speaker Boehner stated that it doesn’t mean we need more regulations; Speaker Boehner instead suggested that somehow EPA was at fault.  However, as my colleague, Jon Devine recently wrote, there are not adequate safeguards in place to prevent aboveground storage tanks from leaking and contaminating waterways.     On Friday, Senator Manchin announced that he would introduce a bill to require such protections, along with Senator Boxer and Senator Rockefeller.  But at the same time as Congress considers ways to better protect Americans’ drinking water from one kind of pollution, members are weighing measures that would weaken different pollution safeguards.


Relieving Companies of the Pollution They Have Caused  - Financial Assurance

There are no regulations that are 100% effective.  We can only expect that companies, subject to regulations or not, will do what they can to guard against the risk.  Sometimes accidents do happen.  Sometimes they could have been prevented; other times not.  But who should be responsible for the costs of such accidents?  The public downstream? The drinking water provider whose system was contaminated? The federal taxpayer?

Fiscal conservatives were concerned with the cost of hazardous waste clean up under the Superfund law.  They included a provision in that law, Section 108(b) Superfund gives EPA the authority to require that classes of facilities maintain financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage or disposal of hazardous substances. Companies fitting the profile would be required to show they had financial assurance, usually private insurance or a bond, which would cover foreseeable mishaps if something happened.  I wrote on January 6, 2014, companies in risky industries have had a habit of being undercapitalized and conveniently going bankrupt when a disaster occurs and they are the liable party.  But on January 9, 2014, the House voted to make it next to impossible for EPA to require financial assurance for any type of industry.

That same day, the Freedom Industries spill lead to a disaster declaration, followed closely on January 17, by Freedom Industries’ convenient bankruptcy. This doesn’t show my clairvoyance. This was standard operating procedure.

If the financial assurance requirements were in place, or if West Virginia required similar coverage, the cost of the spill would have been placed on the company and its insurance carrier.  Maybe, if they had insurance, the insurance company may have required steps to lower their exposure, such as providing adequate secondary containment or demanding that the company repair those very old tanks.

Relieving Companies of the Harm They Could Cause in the Future – The Farm Bill

But threats to our sources of drinking water are not limited to “just” toxic chemicals. As the House and Senate try to reconcile their differences on a farm bill, the timber industry has been pushing to gut the Clean Water Act by exempting their polluted storm water from the core pollution control program under that law.  Water sources are very vulnerable to pollution from this kind of runoff.  As EPA noted in a recent public notice:

“Potential effects of forest roads that were not properly constructed or are not properly maintained on water quality can include increased loading of sediment due to erosion and mass wasting, increased suspended solids and turbidity, increased sediment deposition and bed load, alteration of stream morphology and channel simplification, altered streamflow, pollution from other chemicals associated with forest roads, increased turbidity and sedimentation in water treatment and supply systems, siltation of streambed substrates, impairments of spawning and rearing habitat, and degradation of habitat for salmonids, other fish, invertebrates, and other aquatic organisms.”

Clean water is a finite resource and is increasingly important to preserve and protect, for safe and healthy human consumption.  More than 180 million Americans depend on headwaters from both protected and unprotected forests for their drinking water.  Across the West, roads are the leading source of sediment from logging activities as the construction and use of logging roads creates a constant source of sediment discharged to nearby rivers and streams. In the South, states such as North Carolina have standards in place to protect the drinking water quality from improper forest roads.

What’s Needed to Prevent Drinking Water Harms

Thankfully, the Senate has thus far stood in the way of these anti-regulatory attacks on clean water protections from the House. Americans need Senators to continue to hold the line against water pollution.  During final deliberations on the farm bill, the Senate needs to say no to new legal loopholes for the private timber industry. It also should not take up the irresponsible House-passed bill on financial assurance. The Administration, as  Jon Devine also wrote, despite pressure from industry needs to move forward without delay to update the scope of the Clean Water Act.  All parties need to work together  as my colleague Daniel Rosenberg explains, to say yes to a modernized toxic substances bill that truly protects Americans from the unnecessary risk of chemicals in our society.