Farmers Exempt from New Tank Law, But is Water Still Protected?

It’s well-known what happened in the Kanawha Valley on January 9, 2014. A massive chemical leak into the Elk River left tap water unusable for 300,000 West Virginians for as many as ten days. The 2014 legislative session had just begun, and in response, lawmakers passed a bill that would require all aboveground storage tanks in the state be registered and regulated under the West Virginia Department of Environmental Protection.

Over the next year, tank owners began to grow frustrated with the regulations, and in the 2015 legislative session, lawmakers reevaluated the bill. Senate Bill 423 was approved on the final day of the session and made some considerable changes that take effect Friday.

Doug Stolipher and his son, Mark are cattle farmers in Jefferson County. Mark was one of many farmers who were frustrated with the original tank bill. He says it heavily regulated farmers who were already under regulations with the Department of Agriculture. He owns a 9,000 gallon diesel fuel tank on his farm.

Credit Liz McCormick / West Virginia Public Broadcasting

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West Virginia Public Broadcasting

“I generally order 2,000 gallons at a time, and we burn about 7,000 gallons of diesel fuel a year,” Mark explained, “and by buying it in the larger quantities, I get a better price on it and everything. So I like my larger tank, but with the regulations, I would’ve had, I couldn’t, you know, 1,320 gallons is as large as it could be before you fell into the regulations, and you can’t manifold’em together, so each tank, I’d had to have a couple, two to three tanks, and each tank would’ve had its own pump in it, cause you can’t hook’em together. Cause once you hook’em together, combined capacity, over went the gallon threshold for regulations.”

Mark says it would’ve been cheaper for him to purchase those smaller tanks rather than pay the regulation fee to the DEP and have his 9,000 gallon tank inspected routinely. But at the same time, he says he still would’ve lost a lot of money because he wouldn’t be buying that fuel in bulk anymore.

Senator John Unger, a Democrat from Berkeley County, oversaw the writing of the 2014 bill as the Chair of the Legislative Oversight Commission on Water Resources. This commission was created in response to the chemical spill.

“It started out they were exempt,” Unger noted, “and then that exemption was taken out through the legislative process. That was the whole push for this new legislation in order to address that and exempt farming.”

Unger says Senate Bill 423, the bill approved in 2015, amended and reworked the first bill so farmers using tanks for agricultural purposes would be exempt again. But he says other rules were placed in the new bill as well.

Rule for the 2014 tank legislation:

• Held 1,320 gallons or more of liquid.
• 90% or more above ground.
• 60 days at a fixed location.

It was estimated to affect as many as 80,000 tanks used in a variety of industries and for a multitude of purposes. Under this law, all tanks were registered and all tanks were regulated.
Now, that rule has changed.

Scott Mandirola, the deputy cabinet secretary and director of the Division of Water and Waste Management with the DEP, says under the new law, there are two levels owners of tanks need to worry about. Everything else only needs to be registered on the DEP’s website.

Rule for the 2015 tank legislation:

• Level one – Zone of Critical Concern
• 5 hours upstream from a public drinking water intake.
• Holds 50,000 gallons or more of liquid.
• Contains a hazardous substance.

• Level two – Zone of Peripheral Concern
• 10 hours upstream from a public drinking water intake.

Senator Unger says he’s concerned the new legislation won’t protect everyone.
“Now we have legislation that protects major metropolitan areas, but the vast majority of West Virginia, they don’t live in major metropolitan areas, they live in small rural communities, and the question is are they protected? All we’re doing is protecting the municipalities, the cities, and the towns. These smaller communities, that’s still on well water, they’re not being protected at all, and their water supplies is not being protected,” Unger said.

Mark, the cattle farmer, says he’s happy the new bill exempts agriculture from the regulations, but he says he wishes things had been thought out better down in Charleston.

“I think the state needs to regulate the really hazardous materials, whatever they’re calling the class one and everything need to be regulated,” Mark explained, “The fuel side of things, I don’t feel the need, you know, they’re not as hazardous as some of these other chemicals, so I’m hoping, you know, I hope we get a little bit of both, you know. Things get eased up, they’re willing to work with us instead of just throw something out and get us all into compliance with everything, and make everything safer.”

Senate Bill 423 goes into effect Friday, June 12, and all tanks must be registered with the DEP by July 1.