Four Concerns About Storage Tank Legislative Rollback

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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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

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.