The bill to significantly scale back West Virginia’s year-old law regulating aboveground chemical storage tanks like the one that caused the January 2014 water crisis easily passed the House of Delegates on Friday.
Delegates approved the bill (SB423) on a vote of 78-21, after rejecting what Republican and Democratic leaders had described as an agreed-to amendment worked out during behind-the-scenes negotiations over several days earlier this week. The bill must return to the Senate for final approval because of minor changes made in the House.
The bill exempts from new safety and inspection requirements more than 36,000 chemical tanks that would have been covered by the law unanimously approved last year to try to avoid a repeat of the Freedom Industries chemical leak that contaminated the drinking water for 300,000 people in the Kanawha Valley and surrounding communities. An opt-out provision allowing tank owners to comply with existing state permits instead of the new tank standards is expected to drop that number to perhaps as few as 90 tanks covered by the safety law.
“We can all drink raw milk now, but a lot of us just want clean water,” said Kanawha County Democratic Delegate Mike Pushkin, a Charleston cab driver and musician who ran for office in response to the Crude MCHM leak and the ensuing water crisis.
Five Republicans — all from Kanawha County — joined 16 of the House’s 36 Democrats in voting against the bill.
Kanawha County Republican Patrick Lane noted that he typically sides with industry lobbyists on environmental matters, but implored fellow GOP delegates to help him defeat a bill he said goes to far in rolling back last year’s law.
“This time, me, I need your help,” Lane said. “I’ve been with you, because I think we line up on a lot of issues. I’ve been with you 95 times out of 100. This is the time, this amendment, this language, is when I need industry to be with me . . . I’m voting with my kids.”
House Judiciary Chairman John Shott, R-Mercer, defended the bill as a reasonable response to what industry lobbyists and their supporters have insisted were “unintended consequences” of last year’s law.
“What we’re really trying to do here is not retrench or retreat, but refocus,” Shott said. “This bill . . . focuses on those tanks that do pose some level of threat.”
Various industry lobby groups, including trade associations from the coal, chemicals and oil and gas industry, have been pushing to roll back SB373 almost since the day it passed after extensive discussion and debate last year in two committees in the Senate and three in the House. The bill has the support of the state Department of Environmental Protection and, because of expanded secrecy provisions for data about chemical tank contents and locations, the Division of Homeland Security. It more closely aligns with the initial legislation proposed by Gov. Earl Ray Tomblin after the Freedom leak.
“It was responsible on our part to adopt a far-reaching approach to trying to prevent that from ever happening again,” Shott said. “It was responsible to err on the side of caution, to try to cover every possible scenario, but it was also responsible, after the emotions had cooled and we got back to close to normal here, to analyze whether we did too little or too much.”
Lane, though, noted that lawmakers worked late into the night on many days to craft last year’s bill, and that supporters of making it even stronger had dropped numerous proposed amendments in an effort to ensure it was passed.
“Maybe we did go too far,” Lane said, “but this bill does a lot more than just deal with unanticipated problems and unanticipated harms. It goes pretty far.”
Among other things, the bill eases oversight of chemical storage tanks by cutting back on mandated state inspections, allowing lesser safety standards for some tanks, and blocking public access to some information about hazardous materials stored near drinking-water intakes.
This version of the bill, written after closed-door negotiations in the Senate, carves a huge number of tanks out of the law by creating and defining a new term, “regulated aboveground storage tank.” The term limits the law’s coverage to larger tanks, tanks with more dangerous contents, and tanks located within a “zone of critical concern,” which runs upstream from drinking-water intakes for the distance water can flow in five hours, and those tanks defined by a new term, the “zone of peripheral concern,” which goes about 10 hours upstream from water intakes.
While definitive numbers aren’t yet available, DEP officials have told lawmakers that about 5,000 tanks are located within the zone of critical concern and another 5,000 to 7,000 tanks within the zone of peripheral concern. That’s out of the roughly 48,000 tanks contained in a DEP inventory that was put together only after it was required by last year’s law.
Democratic leaders made no public efforts to amend the bill to reinstate the broader coverage that was eliminated by the Senate version of the bill. Instead, they focused more discreet efforts to strengthen the legislation.
One proposal would have increased mandated DEP inspections. Current law requires annual DEP inspections, and the Senate version reduces that to every five years. Democrats sought to increase that inspection frequency to every three years. Another effort would have tried to narrow the Senate’s secrecy language, by requiring tank owners to provide local public water systems with information about tanks upstream from their intakes. A third proposal aimed to tighten the “opt-out” provisions, by making companies that want to substitute existing DEP permits for new tank operating certificates show their tanks meet safety standards similar to those outlined in the new tank law.
After efforts to make such changes were narrowly defeated Monday night in House Judiciary, Shott and Lane managed to win voice-vote approval during Friday’s floor session for an amendment that required some information be provided to water utilities and increased the DEP’s mandated inspection frequency for the most dangerous tanks to every three years.
Shott then joined with the Judiciary Committee’s ranking Democrat, Delegate Tim Manchin of Marion County, on what was described as an agree-to, negotiated amendment to require tanks that seek to “opt-out” under their existing permits comply with standards that “are consistent with” the standards in the tank rules. That amendment, though, was defeated on a 67-32 vote, with lawmakers opposing it saying it went against their intent to ensure tanks covered by some existing regulatory program don’t have to meet a second set of safety standards.
“We don’t need a bunch of regulations,” said Delegate Scott Cadle, R-Mason. “We’ve got to have businesses here folks.”
Voting against the bill on the final roll call were Delegates Byrd, D-Kanawha; Caputo, D-Marion; Eldridge, D-Lincoln; Fleischauer, D-Monongalia; Fluharty, D-Ohio; Guthrie, D-Kanawha; Hicks, D-Wayne; Hornbuckle, D-Cabell; Lane, R-Kanawha; Longstreth, D-Marion; Lynch, D-Webster; Manchin, D-Marion; McCuskey, R-Kanawha; Moore, D-McDowell; Perdue, D-Wayne; Pushkin, D-Kanawha; Rowe, D-Kanawha; Skinner, D-Jefferson; Stansbury, R-Kanawha; White, B., R-Kanawha; and Armstead, R-Kanawha.
-by Ken Ward Jr.