Recently, an overflow of water from a trench at the Freedom Industries tank site in Kanawha County reached the Elk River. West Virginia’s Department of Environmental Protection issued two notices of violation to Freedom for the incident. But while that tank site is being monitored regularly, the DEP is also beginning to focus attention on a whole bunch of other aboveground storage tanks too, that aren't receiving as much attention. Ben Adducchio has more.
The DEP’s new storage tank registration program is now gathering information and data from facilities across the state that meets specific guidelines. These types of facilities are expected to be in the thousands. Due to this, the DEP took an unorthodox step, asking for comments from businesses, and other interested parties, before they had even proposed regulations. Kelley Gillenwater is the DEP’s spokeswoman.
"This is a brand new program; we’ve never regulated above ground storage tanks. It involves a lot of new information and data that we’ve never dealt with before, and because we wanted to be as transparent as possible, we started seeking public comment on the rules before we even drafted the rules," she said.
Under new legislation, the DEP has an extensive task…to first figure out what tanks are out there that hold at least 13 hundred and 20 gallons of fluid, then to determine what’s inside of them, and finally, to determine if they would need annual inspection. The DEP’s required to monitor tanks that are 90 percent or more above ground, and in one place for more than 60 days. Gillenwater says many are already willing to play ball, and have registered.
"We’ve only been registering tanks for a couple of days, but so far there are more than 60 tanks registered. We’re expecting thousands, but keep in mind there’s a lot of data that needs to be inputted," she said.
"A lot of people, a lot of tank owners may not have access to our electronic submission system yet, so they are getting user ids and passwords. We’ve had more than 100 login requests."
There is some industrial pushback, however. According to comments submitted to the DEP, many are concerned about meeting the October 1st registration deadline with the DEP. Gillenwater says there could be consequences if tanks aren’t in compliance.
"If a tank is out of compliance, the agency will look at the mitigating factors and talk to the tank owner and try to figure out what’s going on. There is the potential for enforcement action. That could include penalty assessments, that could include a cease and desist order, it could include the tank being locked out so that it just can’t be used until it’s back in compliance with state law," she said.
The Water and Waste Management Division of the DEP is leading the effort. Once the registration period is over, the DEP will determine what tanks will need additional permits. Those operators will need to pay additional fees to the DEP to fund the program. Evan Hansen is the president of Downstream Strategies, an environmental consulting firm.
"What we’re seeing in the comment letters is not unexpected, that different industries are making their case for why their above ground storage tanks should be excluded. I think the bill was written in a short amount of time, and it certainly conceivable that there may be some adjustments; however, the bill is the law. I have no doubt that various interest groups will be trying to change the law during the next session," he said.
One issue of concern to Hansen and many others, including industry businesses, is that eventually these tanks will have to be inspected time and time again. The West Virginia DEP has struggled in the past with enforcement of inspections at many of the state’s oil and gas wells; one of the main reasons was simply because it didn’t have enough inspectors to do the work. Hansen says fees will hopefully solve those issues. He also points out that some of the pushback might be coming from the perception that there’s too much bureaucracy.
"Many industries that have above ground storage tanks are already operating under a number of environmental laws. Some feel that those laws are sufficient. I don’t think anybody wants to create more red tape that’s not going to do any good. That’s not good for anybody," said Hansen.
"The challenge is the legislature spoke clearly of the minimum requirements they need to see in the new tank permits. If the case can be made that there is an existing regulation that’s at least as stringent as Senate Bill 373, then the DEP will allow that to be used instead of a new permit. You’ve got to prove it."
Kelley Gillenwater with the DEP says the first draft of regulations is expected to be completed within the next month. There will be an additional public comment period and the rules will go through the legislative process next year.