Aboveground Storage Tank Act gives gas and oil industry protection from oversight
By Michael M. Barrick
CHARLESTON, W.Va. – On January 9, 2014, at about 10 a.m., fire departments in Kanawha County, the home to West Virginia’s state capital, were dispatched to two locations because reports of a “chemical odor” were being called in by citizens. It was at least four hours before emergency response officials realized they had a major public health and ecological crisis on their hands – the water for 300,000 people served by the Elk River was unsafe for human use.
It wasn’t until about 2 p.m. that Mike Dorsey, the emergency response coordinator for the West Virginia Department of Environmental Protection (WVDEP), determined that the release of the coal-mining cleaning chemical 4-methylcyclohexane methanol (MCHM) at a site owned by Freedom Industries along the Elk River had reached the water intake of the West Virginia American Water Company.
At the time, the West Virginia legislature had just convened, so, it wasn’t long before legislation was passed and then signed by Governor Earl Ray Tomblin. The law was designed to protect the drinking water of the state’s citizens as well as water for other essential uses, including farming, the aquatic life so valuable to the ecology of our watersheds, and the intrinsic value it offers people in the form of hiking, fishing, kayaking and more.
Lawmakers, Tomblin Reverse Course
Elections have consequences, however, and with the Republican-led House and Senate majority elected by Mountain State residents last November championing their “pro-business” agenda, public health and ecological concerns became subordinate to business interests. So, with the single stroke of a pen on March 27, Governor Tomblin acquiesced to the Republican leadership and, with his signature of Senate Bill No. 423, enacted the severely amended Aboveground Storage Tank Act into law.
The bill’s chief sponsor was Senator Mike Hall, a Republican representing District 4. Other sponsors were: Republicans Craig Blair and Charles Trump IV, representing District 15; Republican Mitch Carmichael, the other senator representing District 4; both senators from District 12, Democrats Douglas Facemire and Mike Romano; Democrats Art Kirkendoll and Ron Stollings, representing District 7; Republican Jeff Mullins, representing District 9; Democrats Robert Plymale and Mike Woelfel of District 5; and, Bob Williams, a Democrat representing District 14. Contact information for the senators can be found here.
District 4 borders the Ohio River; District 5 also borders the Ohio River; District 7 includes a large portion of the southwestern coalfield counties; District 9 includes coal-producing Raleigh and Wyoming counties, as well as a small slice of McDowell County; District 12 stretches from Harrison to Clay counties and includes significant gas and oil interests; District 14 includes several northeastern counties, and District 15 is in the eastern panhandle. District maps can be seen here.
While Tomblin is term-limited and cannot seek re-election in 2016, senators have no term limits on their four-year terms. Elections for senators are staggered, with one from each district elected in alternating electing cycles.
The Law’s Stated Intent
At first glance, the law’s stated intent seems to be written for public welfare. In the first paragraph, in which the various amendments and changes are outlined, the language of the bill acknowledges that its original intent is “… all relating to protection of water resources and public health generally …”
The law further states: “The West Virginia Legislature finds the public policy of the State of West Virginia is to protect and conserve the water resources for the state and its citizens. The state’s water resources are vital natural resources that are essential to maintain, preserve and promote human health, quality of life and economic vitality of the state.
“The West Virginia Legislature further finds the public policy of the state is for clean, uncontaminated water to be made available for its citizens who are dependent on clean water as a basic need for survival and who rely on the assurances from public water systems and the government that the water is safe to consume.”
Indeed, the law even acknowledges that there are risks associated with aboveground storage tanks: “The Legislature further finds that large quantities of fluids are stored in aboveground storage tanks within the state and that emergency situations involving these fluids can and will arise that may present a hazard to human health, safety, the water resources, the environment and the economy of the state. The Legislature further recognizes that some of these fluids have been stored in aboveground storage tanks in a manner insufficient to protect human health, safety, water resources, the environment and the economy of the state.”
Expert Says that Despite Law’s Stated Intent, Oversight is Severely Weakened
Angie Rosser, the executive director of the West Virginia Rivers Coalition, spent much of the legislative session working to preserve the original bill’s language, intent and purpose. While some protections remain in place, Rosser points out that there are several provisions in the amended law that severely weaken its intent and enforcement.
Specifically, she points to the reduction in the number of storage tanks that require an inspection; the lack of oversight of wells, watersheds, and groundwater; allowing companies to keep secret as “proprietary” the composition of hazardous materials and waste; allowing the West Virginia Division of Homeland Security and Emergency Management to declare certain chemicals, policies and procedures free from public scrutiny; concerns about interagency cooperation; and, a provision which allows the Secretary of the WVDEP to grant exemptions to the law’s reporting requirements.
Zones of Concern
The number of aboveground storage tanks requiring inspection was reduced to an estimated 50,000 to 12,000 according to testimony by WVDEP officials during hearings for the bill. This reduction is concerning, said Rosser. “By defining the zones of critical concern and peripheral concern as it has, the legislature has reduced the number of tanks needing monitored, it has jeopardized ground water supplies, and has increased the risk to communities not within those zones.”
According to the law, “‘Zone of critical concern’ for a public surface water supply source and for a public surface water influenced groundwater supply source is a corridor along streams within a watershed that warrants detailed scrutiny due to its proximity to the surface water intake and the intake’s susceptibility to potential contaminants within that corridor. The zone of critical concern is determined using a mathematical model that accounts for stream flows, gradient and area 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. The width of the zone of critical concern is one thousand feet measured horizontally from each bank of the principal stream and five hundred feet measured horizontally from each bank of the tributaries draining into the principal stream.”
A “zone of peripheral concern” is defined as, “The length of the zone of peripheral concern is based on an additional five-hour time-of-travel of water in the streams beyond the perimeter of the zone of critical concern, which creates a protection zone of ten hours above the water intake. The width of the zone of peripheral concern is one thousand feet measured horizontally from each bank of the principal stream and five hundred feet measured horizontally from each bank of the tributaries draining into the principal stream.”
An aboveground storage tank with a zone of critical concern is deemed a “level 1 regulated tank;” one in a peripheral zone is a “level 2 regulated tank.” All tanks “… with a capacity of 50,000 gallons or more, regardless of its content or location,” is a level 1 regulated tank. The tanks are also regulated if they contain substances defined in section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) as a “hazardous substance” … or is on EPA’s “Consolidated List of Chemicals Subject to the Emergency Planning and Community Right to Know Act (EPCRA), CERCLA, and … the Clean Air Act (CAA).”
As Rosser noted, “The problem with this is, in addition dramatically reducing the number of storage tanks within the oil and gas industry that require monitoring, it completely ignores private wells and those facilities that are beyond these ‘zones of concerns.’ This clearly shows the political muscle of coal, oil and gas to work together, in particular gas and oil.”
Public Access Restricted
Public access to information is also restricted, noted Rosser. The law states, “Trade secrets, proprietary business information and information designated by the Division of Homeland Security and Emergency Management as restricted from public release shall be secured and safeguarded by the department. Such information or data shall not be disclosed to the public or to any firm, individual or agency other than officials or authorized employees or representatives of a state or federal agency implementing the provisions of this article or any other applicable law related to releases of fluid from aboveground storage tanks that impact the state’s water resources. Any person who makes any unauthorized disclosure of such confidential information or data is guilty of a misdemeanor and, upon conviction thereof, may be fined not more than $1,000 or confined in a regional jail facility for not more than twenty days, or both.”
Said Rosser, “This is crazy. After Elk River, when nobody knew what they were ingesting, to allow companies to keep the content of hazardous materials as ‘proprietary’ is an insult to the people of West Virginia. The provision allowing the Department of Homeland Security to limit disclosure is ridiculous. What are the odds of a terrorist getting access to these materials as opposed to them being released by a company out of negligence? This just allows corporations to hide behind national security.”
Furthermore, the law states, “The exact location of the contaminants within the zone of critical concern or zone of peripheral concern is not subject to public disclosure in response to a Freedom of Information Act request.” The law does require that emergency responders and the public be “promptly notified” in the event of a spill. It does not require, however, that the public be informed of the nature of the threat. Emergency response officials would be told as the event unfolds, though certainly not with sufficient time to garner situational awareness for developing an incident action plan.
Interagency Cooperation a Concern
Rosser also expressed concerns about the interagency cooperation called for in the law. The statute reads, “In implementation of this article, the secretary shall coordinate with the Department of Health and Human Resources, the West Virginia Public Service Commission, the Division of Homeland Security and Emergency Management and local health departments to ensure the successful planning and implementation of this act, including consideration of the role of those agencies in providing services to owners and operators of regulated aboveground storage tanks and public water systems.” It continues, “The Division of Homeland Security and Emergency Management shall also coordinate with state and local emergency response agencies to facilitate a coordinated emergency response and incident command and communication between the owner or operator of the regulated aboveground storage tank, the state and local emergency response agencies, and the affected public water systems.”
Rosser shared, “This means agencies – especially local ones such as public health departments and offices of emergency management, which are often operating with only part-time staff – will be charged with enforcement duties when they often lack the manpower and expertise to exercise their present duties. This isn’t a criticism of local folks; it’s an acknowledgment that they state does not collaborate well with or properly finance local emergency response agencies.”
Industry Provided Loophole
Oversight and enforcement of the law rests with the WVDEP Secretary. His or her office is responsible for conducting an inventory of the tanks which meet the law’s definitions, reviewing emergency plans, issuing permits, inspecting the tanks, establishing guidelines for tank safety, determine non-compliance, and issuing and collecting fines.
However, Rosser pointed out that the law provides a loophole that gives the WVDEP Secretary too much discretion to ignore important aspects of the law. The provision states, “For those entities that are otherwise regulated under those provisions of this chapter that necessitate individual, site-specific permits or plans that require appropriate containment and diversionary structures or equipment to prevent discharged or released materials from reaching the waters of the state, the secretary may amend those permits or plans associated with those permits or both at the request of the permittee to include conditions pertaining to the management and control of the regulated tanks, so long as those conditions in the opinion of the secretary are sufficient in combination with practices and protections already in place to protect the water of the state.” It adds, “Any entity whose permit or plan modification or amendment relating to tank integrity and secondary containment design operation and maintenance is approved by the secretary and so maintained shall be deemed to be compliant with the article and entitles the entity to a certificate to operate…”
Rosser observed, “This essentially means that companies have to register, but not comply. All inspections and standards would not refer back to the act, but would be determined by what is in the modified plan.” She added, “The DEP will get 12,000 modification requests. Why even have the law?”
Business as Usual
Rosser raises a valid question. Why, indeed, did lawmakers take the time to declare its concern for the public health and safety of its citizens and the importance of protecting water – our very source of life – then write provisions that undermine their lofty words?
Because, as usual, West Virginia is open for business. Once again, short-term profit trumps the dignity of West Virginia’s people and her resources. For the Mountain State, it is business as usual.
© Appalachian Preservation Project, LLC, 2015. The Appalachian Chronicle is a publication of the Appalachian Preservation Project. The Appalachian Preservation Project is a social enterprise committed to preserving and protecting Appalachia. If you wish to support our work, please consider becoming a member.
Also, the “Preserving Sacred Appalachia” Earth Day conference is going to be this Monday and Tuesday, April 20-21 in Charleston, W.Va. This is a wonderful opportunity to be part of a community of like-minded preservationists to address the topics covered extensively on this site. Registration is open through Saturday. Learn about it and register for it here.
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