Tomblin introduces bill to regulate aboveground storage tanks
CHARLESTON, W.Va. - Gov. Earl Tomblin is confident law changes he's proposing will give the state greater oversight of facilities like the one responsible for the recent chemical leak that left 300,000 people without safe tap water.
The legislation, called the "West Virginia Source Water Protection Act," also outlines safety procedures for water companies and others in the event of a similar leak in the future.
"Make no mistake: The discharge of chemicals or other contaminants is unacceptable," Tomblin said. "And neither I, nor anyone standing here with me today, will tolerate it in West Virginia."
Sen. Joe Manchin, D-W.Va., state Senate President Jeff Kessler, D-Marshall, and House of Delegates Speaker Tim Miley, D-Harrison, joined Tomblin Monday as he unveiled the proposal.
Questions arose about state and federal regulations after the Jan. 9 spill at Freedom Industries, located along the Elk River just north of Charleston.
Officials believe as much as 7,500 gallons of crude MCHM leaked from a storage tank at the facility. An unknown amount then seeped through an old concrete wall and into the river, eventually contaminating water at the West Virginia American Water Co. treatment facility about a mile downstream.
The Freedom Industries site had only a storm water permit from the state Department of Environmental Protection. Facilities that store chemicals are not as regulated as those that produce them or create emissions, DEP Secretary Randy Huffman said after the press conference.
Tomblin's 39-page proposal focuses on a variety of regulatory issues brought to light following the Freedom leak.
It creates an aboveground storage tank regulatory program, which would be funded by annual fees collected from storage tank facilities and public water systems.
The storage facilities would also pay into a separate "Leaking Industrial Aboveground Storage Tank Response Fund."
The amount of the fees would be set by a legislative rule to be written later by the DEP secretary, according to the bill.
The fees would be collected as part of a new storage tank registration process.
Storage tank owners would have to self-report locations of their facilities to the DEP, as well as provide information about how tanks were built and are being maintained.
Owners must also hire a registered professional engineer to inspect and test their facilities and submit a report of the test to the DEP each year.
The DEP doesn't have the trained personnel to do such examinations right now, Huffman said.
"If we had walked around the Freedom tank, we wouldn't have known that the next day it was going to leak just by looking at the tank. There's only so much you can do by just physically walking around," Huffman said.
"(Registered engineers) testing those facilities is the way that you can get the most certainty in determining the integrity of those tanks."
The governor's bill does not specifically mandate the DEP go back and inspect every existing storage tank, Huffman said.
Both Tomblin and Huffman said they had confidence in the self-reporting mechanism outlined in the plan.
"The self-reporting actually does work because falsifying this will have criminal penalties associated with it," Huffman said.
The bill also outlines procedures storage facilities and water companies need in order to prepare for and respond to a spill.
A company must - in some way - show it has the means to cover the costs of a spill before it can register with the DEP, according to the bill.
That proof could be anything from a surety bond to demonstrating the company has enough assets to "undertake reasonable corrective action" if there is a spill.
The company must also submit a "spill prevention response plan" for each of its storage tanks.
The proposal requires the plans be updated every three years. A site must create a new plan at once if there are significant changes made to the facility, the current plan fails or a variety of other circumstances occur.
The spill prevention response plans must include a description of the facility and what goes on there; the material safety data sheets for any materials stored there; emergency plans, like secondary containment barriers, in place at the site; and countermeasures that can be taken if there is a spill.
The information will be provided to the DEP and local emergency response officials and public water systems located within 25 miles of the chemical storage sites.
The general public will also have access to information about the facilities and what they store, Tomblin said.
Facilities like Freedom's site on the Elk River already had to file chemical inventories, known as Tier II reports, with the state. While these reports offer little information about a storage site - if it's near a water treatment plant, for example - they do provide information about the chemicals stored there.
Because the crude MCHM stored at the Freedom Industries site did not meet a strict definition of "extremely hazardous" as applicable to these reports, the Freedom report fell into a larger pool with roughly 9,500 other facilities.
That includes many oil and gas rigs along with at least 500 gas stations, a state spokesman recently told the Daily Mail.
A local emergency response official recently told Charleston Gazette such reports can fall by the wayside when creating plans for responding to an emergency.
Tomblin said the bill does not duplicate any current state or federal regulations.
"What it will do is allow the DEP to work with our public health officials and the DHHR to make sure that our zones of critical concern near our precious waterways remain safe," Tomblin said.
A "zone of critical concern" falls under the part of the bill that requires more work from public water systems.
In addition to paying an annual fee and the spill prevention response plan, systems considered to fall in these zones will also have to submit a "source water protection plan" to the DEP.
That plan must include how the water system will respond if its water supply is contaminated, information on alternative water sources, what the system will do to protect its water source, and a communication plan for how the company will notify the public in the event water is contaminated.
The bill outlines several other specific requirements for both public water systems and storage facilities regarding providing information about responding to an emergency and preparing for such an event.
It also includes potential civil and criminal penalties for violations of the bill.
Many of the specifics definitions, fee amounts and other details are left up to the DEP secretary to create in legislative rules.
Manchin applauded the state's effort to create legislative changes in response to the spill. Sen. Jay Rockefeller, D-W.Va., issued a statement lauding the efforts of state leaders as well.
Manchin and Rockefeller have co-sponsored a federal bill, the Chemical Safety and Drinking Water Protection Act, that also addresses regulations of facilities and increasing emergency preparedness.
Leaders in the Legislature pledged to work with the governor on passing the measure.
Saying the state must never let something like this happen again, Kessler pointed to a bill already introduced in the state Senate that is similar in focus to the governor's measure.
"Regulation, we hear from time to time, folks don't want regulation," Kessler said. "Government keep their hands off; government stay away.
"I'm here to tell you that no person, no industry, no company will be able to go without knowing that there is somebody looking over their shoulder," he said.
Miley echoed those statements.
He said some believe there's a negative stigma associated with the idea of regulation.
"Often times when someone mentions regulating something that's in the business world, everyone wants to fear monger and say that it's going to cost jobs," Miley said.
"But I'd rather save lives than be worried about saving a few jobs," he said. "Saving lives always has to come first, saving jobs second."
Miley also applauded what he considered a measured and methodical response by Tomblin in creating the legislation, and pledged to cooperate with House Minority Leader Tim Armstead, R-Kanawha, on passing the bill.
Tomblin said he expects the bill to be introduced in both the House and Senate Tuesday.