The committee was discussing its third different version of the bill and was on its third day of discussion. Prior versions have already been submitted by the governor, passed two Senate committees, passed the full Senate and passed the House Health Committee.
The Judiciary Committee began its meeting nearly two hours late on Sunday after members of both parties held private caucuses.
Barring a suspension of legislative rules, time is running short on the bill. It must pass the House Finance Committee, be read for three days, be approved by the House and then re-approved by the Senate, perhaps with a conference committee as well, by midnight on Saturday.
Last week, a group of 27 delegates wrote to Gov. Earl Ray Tomblin requesting a special session to work on the bill, but that idea was discouraged by House and Senate leadership.
The bill requires the state Department of Environmental Protection to compile an inventory of every above-ground storage tank – like the tank that leaked at Freedom Industries' tank farm -- in the state.
An amendment that would have allowed citizens to sue companies or the DEP to enforce the provisions of the bill was defeated, 15-10, with mostly Republicans voting against it.
Citing terrorism concerns, delegates overwhelmingly amended a section of the bill that excludes the location and contents of chemical tanks from Freedom of Information Act requests.
There are already several exemptions in state FOIA law that govern homeland security issues.
Federal law requires the state to make chemical inventories public, through FOIA. It was unclear if the amendment would conflict with federal law, as text of the amendment was only made available to delegates.
If the bill becomes law, above ground storage tanks within a "zone of critical concern" would have to be inspected annually by the DEP.
The zone of critical concern is different for every water system, depending on the speed of the waterway. It comprises an area within 1,000 feet of a river and within a five-hour flow upstream of any water intake point.
All other tanks would be inspected by an industry-hired engineer. An amendment that would have required the DEP to audit a small portion of those private inspections, for quality control, was rejected.
Another amendment would have required that tanks be emptied and their interior be inspected within five years, and then once every 10 years after that.
A representative from the DuPont chemical plant in Belle discouraged the committee from the requirement, saying it could open inspectors up to harm.
Delegate John Pino, D-Fayette, spoke against the amendment saying we should defer to industry for how to best regulate.
"We think we can micromanage things and tell others how to do their jobs," Pino said. "No one has more experience than the industry when it comes to handling these tanks."
The definition of above ground storage tank in the bill is very specific. It includes tanks that hold more than 1,320 gallons and are more than 90 percent above ground. If the tank is mobile, it is only included if it stays in the same spot for more than 60 days. The bill excludes from inspection "process vessels," defined as "vessels utilized in a facility in the manufacturing process through which there is a steady, variable, recurring or intermittent flow of materials."
Evan Hansen, a Morgantown environmental consultant who was consulted on the bill, called the 1,320-gallon threshold a "major problem."
Hansen said that the drafters of the bill misunderstood an Environmental Protection Agency regulation called the Spill Prevention, Control and Countermeasure Rule,
"This is taken from SPCC regulations, but in SPCC, 1,320 is the aggregate volume for a site and not the volume for a single tank," Hansen wrote in an email to environmental groups. "This 1,320 gallon volume is misapplied in the new definition and should be changed to an aggregate volume."
Previous versions of the bill had a long list of industry suggested exemptions from inspection. This version removes the list of exemptions. If tank owners think their tanks are already regulated by another agency, they can submit the information to the DEP, who can then choose to issue exemptions.
Under the bill, every water utility must complete a source water protection plan, outlining how it would respond to a crisis. Utilities would have to provide detail on how much water storage capability they have and they would have to study the feasibility of adding a second water intake or additional water storage.
Many have criticized West Virginia American Water for not shutting off its water intake when it learned of the spill, but the company has stood by the decision, saying that without a second intake, it would have been much worse to shut down the intake.
Several Kanawha County delegates proposed an amendment that would force West Virginia American to add a second intake, which could cost up to $100 million. They proposed funding it through gas severance tax revenue, so that the price would not be passed on to ratepayers.
The amendment was defeated as delegates objected to using tax money to fund West Virginia American – a profitable private corporation.
Reach David Gutman at email@example.com or 304-348-5119.