Update on SB 423, Amending the Aboveground Storage Tank Act

Report by Karan Ireland for the WV Citizens Action Group, Charleston, WV, March 7, 2015

The committee substitute for S.B. 423, “Amending the Aboveground Storage Tank Act” is before the House Judiciary Committee today. Environmental and citizen groups do not support this bill because, event though it is better than the introduced version, it is still a weakening of last year’s SB 373.

The ideal scenario would be for SB 373 to have a chance to work. Barring that, here are improvements that must be made in order for us to be okay with it:

Necessary Improvements to SB 423 Aboveground Storage Tank Act

1. Incorporate DEP’s risk-based rule. SB 423 does not incorporate DEP’s rule and would cause another year to go by without AST regulations in place – other than the initial registration, initial spill plans, and initial inspections. DEP’s Proposed AST Rule (47CSR63) was developed with extensive public input from industry and citizens to implement the Act. The rule divides tanks into three levels and requires more stringent protections for tanks that present the highest risks.

1. Tanks that pose a risk to water supplies must be included. SB 423 exempts approximately 36,000 tanks from regulation under the Act. Roughly one-third of the deregulated tanks are located within 1,000 feet of a river or stream. These tanks should continue to be regulated under the Act as they are most likely to contaminate water if they should fail.

1. Include stringent and explicit standards and accountability for tank and secondary containment integrity. The Freedom Industries disaster could have been avoided by regular tank inspections and a well-maintained secondary containment system.

SB 423 rolls back inspection requirements. Self-inspections should occur at least annually by qualified personnel. Tanks close to water intakes need to be inspected by DEP annually.

SB 423 rolls back Spill Prevention and Response Plan requirements. SPRPs need to be submitted to DEP and updated every 3 years, and must include info on stored chemicals.

SB 423 rolls back permit requirements. Individual permits for tanks closest to drinking water intakes should be required.

SB 423 creates an alternative means of compliance for nearly all tanks through modifications of existing permits or plans. SB 423 gives the DEP Secretary full discretion as to what standards are sufficient to protect waters of the state. It needs to explicitly require that modifications to permits or plans be as stringent as the standards in the Act so as not to create a loophole in regulation of ASTs. Public notice of these modifications should be required.

1. Require necessary information for source water protection planning. SB 423 creates new restrictions on disclosure of information that could prevent water utilities from being aware of threats to the water system. Information about the location and contents of tanks, including data on stored chemicals, must be shared with water utilities.

Here is a link to Ken Ward’s article that followed last Friday’s public hearing on SB 423.

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For more water updates, visit West Virginia Environmental Council

Delegate Mike Manypenny

Delegate Mike Manypenny (D – Taylor) is preparing to champion for surface owners rights and environmental/public health  protections in the upcoming January session of the WV Legislature.  Mannix Porterfield reported for the Herald tribune that Manypenny has developed 23 bills because he thinks the recently inked Marcellus bill didn’t do enough to safeguard the environment and protect rights of the landowners.

Manypenny  was one of five Delegates who voted against the Governor’s version of the Marcellus bill.  The draft bill created by the Select Committee of Senators and Delegates was intended to introduce law protective of surface owners and public health.  However, after being worked over by Governor Earl Ray Tomblin and stripped of many of its protective provisions, it was transformed into, if not industry-friendly, very industry -acceptable bill before it was introduced to the Legislature.

COMMENT: It was telling of the level to which industry asserts its influence over our elected representatives that the eviscerated version of the bill breezed through the Senate and House with only few amendments restored before it became law.

To anyone who was not informed about the actual content of the bill,  who was not aware of the outrage and betrayal felt by the Select Committee members who worked so hard on the draft bill, and who was not aware of the criticisms heaped upon the bill members of  WVSOROS and the WV Sierra Club, the passage of a Marcellus bill probably sounded like a good thing.  My local newspaper contained all the celebratory quotes by the Governor complete with verbage such as “This landmark piece of legislation provides clear rules to the natural gas industry, protects our communities, surface owners and waterways while sending a clear message: West Virginia wants jobs and we will protect our rights and our environment.”  Some folks beg to differ, Guvnuh.

Click here for full story.

The West Virginia Legislature website has not been fully updated to reflect the amendments to hydraulic fracturing bills over the last 24 hours.  However, it is reported by sources who work at the Capital that the bills have been dramatically abbreviated.  This translates into less protective law.

In review, two versions of bills were introduced to the Legislature, one originating from the Joint Interim Judiciary Subcommittee A, the other from the West Virginia Department of Environmental Protection.  There is an informal agreement between the House and the Senate that the House will process the bills and send whatever is approved to the Senate. The WVDEP bill was 140 pages at the outset of its somewhat chaotic journey through the House under the label HB3042.  On Wednesday the House Judiciary Committee combined HB3042 with HB2878, the Judiciary SubA bill.  But today sources say that that the 210-page combo-bill was aggressively pared down into a 33-page bill and has been referred to the House Finance Committee with the recommendation that hearing of the bill be waived.

There may be more information about what was cut from the bills in the weekly Legislative Update written by West Virginia Environmental Council lobbyist Don Garvin.  Don’s posts appears on the WVEC website at the end of each week.

Meanwhile, in the Senate, SB424, the twin to the introduced version of HB3042, has been reduced to a 66-page document.  It passed out of the Energy, Industry and Mining Committee and is now in Judiciary.

March 2nd is the crossover date.  This is the date by which a bill must be finished in one chamber and crossover to the other.  Stay tuned!