Gov. Earl Ray Tomblin has signed a bill that would scale back the Above Ground Storage Tank Act and lessen the number of tanks under state scrutiny.
The 2014 law was approved after a chemical leak tainted the drinking water supply for 300,000 people in the Kanawha Valley.
Under the 2014 tank act, the West Virginia Department of Environmental Protection was required to register and inspect all above ground storage tanks in the state, with some minor exemptions. In all, the DEP found more than 50,000 would be under their purview.
Lawmakers this year looked to reduce the burden on both the DEP and some industries, including agriculture and oil and gas.
The new law (SB 423) focuses oversight to tanks containing certain hazardous materials, those containing 50,000 gallons or more of any substance, and tanks located in zones of critical concern, or within so many miles of a public drinking water intake.
“The bill that was passed last year was really to protect the drinking water of the people of West Virginia. The bill continued to grow and really got a little bit unmanageable,” Tomblin said of the bill on The Legislature Today in early March.
The new law will leave just 5,000 above ground storage tanks under DEP purview.
Many environmentalists spoke out against the bill saying it puts the state’s drinking water at risk.
House lawmakers have approved a push to scale back a law safeguarding against chemical spills from aboveground tanks.
A January 2014 chemical spill that contaminated drinking water for 300,000 residents for days spurred the law. The House passed the bill 78-21 Friday to deregulate about 36,000 aboveground storage tanks.
Currently, about 48,000 tanks are registered under a law that passed during last year’s legislative session after a coal cleaning chemical leaked into the Elk River in Charleston. But some lawmakers and industry groups have said last year’s law went too far.
About 12,000 tanks within a certain distance of water supplies, or containing hazardous materials, would remain regulated under this new bill.
Inspections would be every three years, instead of annually under current law.
Gov. Earl Ray Tomblin has spoken in favor of scaling back the regulations.
Environmental groups have opposed reducing protections.
The bill now goes back to the senate to consider house amendments.
On this West Virginia Morning, We bring you the latest developments from the House as well as an update on the rollback of regulations for above-ground storage tanks that were a result of the chemical spill last year.
A bill to roll back regulations of storage tanks is making its way through the legislature. This week the House Judiciary Committee passed a version of Senate Bill 423 by a narrow vote of 13 to 12 without making any significant changes to the proposed legislation.
In the wake of last year’s Freedom Industries spill that contaminated drinking water for 300,000 people in and around the state’s capital city, the Above Ground Storage Tank Act was passed into law. A year later, a set of bills emerged in the House and Senate that aimed to reduce the number of regulated tanks regulated in that act from about 48,000 to about 100, according to policy analysts.
The Department of Environmental Protection reports that they played no part in initiating this new legislative action. Legislators say the 2014 act went too far by requiring duplicitous regulations for industry. Their answer to industrial push-back is now an amended version of Senate Bill 423 which also reduces the scope and stringency of last year’s act.
Credit Downstream Strategies
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Graphic Detailing the Elk River zone of critical concern, from downstream strategies new report.
1. Regulations don’t matter if there’s weak enforcement.
Paul Ziemkiewicz is the director of the West Virginia Water Research Institute. He remembers presenting information to the Legislature after last year’s chemical spill.
“My point was that we had rules on the books,” Ziekiewicz recalled. “One was federal legislation 40 CFR 112 which is the Oil Spill Control and Countermeasures Act. That requires that all tanks that are 1,320 gallons have secondary containment, regular inspections. It’s a nation-wide rule.”
Ziemkiewicz also points out additional state rules enacted in the mid-1990s that require almost the same measures as the federal rule. He said the MCHM spill in January of 2014 was really the result of inadequate enforcement.
What came to light during the course of the Freedom Industries investigation was that regardless of the rules on the books, the Freedom tanks, perched on the Elk River a mile and a half upstream from a major public water intake did not have a groundwater protection plan as required by state law.
There was a compliance report filed in 2009 by the DEP’s Department of Air Quality that mapped and detailed the site and contents therein. But agency officials say it wasn’t the responsibility of the DEP to inspect storage tanks or secondary containment measures.
That lack of oversight is something last year’s act set out to address.
Credit Bill Hughes
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2. Protecting groundwater isn’t the objective.
Julie Archer from West Virginia Surface Owners Rights Organization says last year’s bill extended extra protections to not only public water systems, but to groundwater in general.
“It has the potential to improve the inspection and the maintenance of tanks that could affect rural landowners who rely on private water wells for drinking and other uses,” Archer said.
But improving groundwater protection was never the objective, according to lawmakers. Legislators and Secretary Randy Huffman at the DEP indicate that SB 423 is more closely aligned with the original version of legislation Governor Tomblin introduced in 2014—legislation designed to protect public water systems specifically.
Credit Jessica Lilly / West Virginia Public Broadcasting
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West Virginia Public Broadcasting
Flooding in Wyoming County
3. Five-Hour Zones of Critical Concern. During Fall or Spring?
Huffman says this year’s proposed legislation does allow for adequate regulatory controls for tanks deemed a high risk to public drinking water supplies. SB 423 tries to focus DEP regulatory efforts on tanks in zones where, if there were a spill, contamination could reach public water intake within five hours.
“The zone of critical concern is determined using mathematical model that accounts for stream flows, gradient and topography. The length of the zone of critical concern is based on a five-hour time-of-travel of water in the streams to the intake.”
While lawmakers have been told that about 12,000 tanks currently would fall into these “zones of critical concern,” the five-hour flow detail befuddles the director of the WV Water Research Institute, Paul Ziemkiewicz.
“If a stream is moving at say four miles an hour, then that zone is 20 miles long. On the other hand if it’s moving at one mile an hour, it’s five miles long. So that means you have a different zone of critical concern during winter, with spring run-off, than late summer. If you use the maximum value, there aren’t many places in the state that would not be in a zone of critical concern.”
4. Are we creating loopholes?
Executive director of the WV Rivers Coalition, Angie Rosser, is worried about the bill’s potential to create loopholes for industry. Tank owners of the 12,000 tanks in zones of critical concern, she says, can opt-out of the regulation by naming other regulatory programs that exist.
“We are looking to make sure that if that alternative compliance is pursued that it is at least as stringent as what is in the [Above Ground Storage Act].”
Rosser hopes that when the bill is heard in the House chamber this week, amendments will be adopted that specify more clearly the extent of and frequency of tank inspection as well as language to guarantee public water utilities are fully informed of water contamination threats.
On this West Virginia Morning, we bring you the latest on the delegates’ approval of the scaling back of the prevailing wage, and the above-ground storage tank regulations.
