Committee questions storage tank bill exemptions
CHARLESTON, W.Va. - The aboveground storage tank bill crafted in response to last month's Freedom Industries chemical spill contains such a long list of exemptions, lawmakers wondered Thursday what it left to regulate.
The House Judiciary Committee began reviewing the bill Thursday.
The measure, passed two weeks ago by the state Senate, exempts a slew of aboveground tanks from its regulations, including: those holding just water; tanks on farms; tanks with 1,100 gallons or less of motor fuel; tanks with 1,100 gallons or less of heating oil; some propane tanks; some tanks storing wastewater; some septic tanks; tanks inside a building not sitting on an impermeable floor; ponds; tanks used to store fluids that are gases at standard temperatures or pressure; and several more.
Lawmakers and a committee attorney were puzzled by the laundry list of exemptions.
"After you go through all the exceptions, it's really unclear what's left to be regulated by the aboveground storage tanks (section)," said Robert Smith, an attorney for the Judiciary Committee.
Officials discovered thousands of gallons of chemicals leaking from a Freedom Industries storage tank and into the Elk River Jan. 9. The spill overwhelmed the nearby West Virginia American Water Co. treatment facility, leaving nearly 100,000 customers without safe water.
Gov. Earl Ray Tomblin and state Senate leadership crafted separate legislation in the wake of the spill. The Senate combined the bills and amended it before passing it to the House of Delegates.
The House Health and Human Resources Committee made significant changes - both inside and outside the open committee process - before sending it to the Judiciary Committee.
Committee Chairman Tim Manchin, D-Marion, said he wanted to focus Thursday's discussion on aboveground storage tanks covered by other regulation, so as not to repeat anything in the bill.
"I think we know more than we did before we started," Manchin said. "There are still some unanswered questions out there."
Kristen Boggs, general counsel for the state Department of Environmental Protection, had a tough time answering questions as to whether exempt tanks were covered by other laws or why specific exemptions were in the bill.
Going through each exemption, Boggs said she knew there were several types of tanks or facilities not regulated by the DEP. In some cases, she didn't think they were regulated by other state agencies either.
The conversation quickly spiraled away from exemptions, heading instead to what types of regulations the DEP had over the Freedom site. Boggs and other DEP officials acknowledged the site had a general stormwater permit, but they argued it wasn't enough to allow the DEP to make the specific inspections necessary under the bill.
Several outside groups, including Downstream Strategies, argue the DEP had more than enough authority to more effectively regulate Freedom through the permit it had. The group's president, Evan Hansen, recently questioned whether the issue was more about focus on enforcement than requiring more regulations that could be enforced.
Drifting further still from the exemptions, Boggs questioned whether the Legislature would have even considered this bill before the recent leak.
"Absent this type of event happening, my fear is if we'd have brought it over here, we'd have been screamed out of the Capitol - 'mission creep, DEP power grab, trying to overregulate,' " Boggs said.
"I mean, we're sort of in a Catch-22 position. Because when we try to be proactive, we're being anti-business, and when we're reactive, we're not doing enough."
Delegate Stephen Skinner, D-Jefferson, didn't think the Freedom leak was the result of a "perfect storm" of missing regulation, as Boggs and others have argued.
However, he did think she had a point about perceptions of regulation in West Virginia.
"Why would that have happen?" he said after the meeting. "Why is the culture of West Virginia such that we can't get something really smart done except after we poison people?"
Skinner said he's not sure that's exactly accomplished in the bill.
Echoing Smith's assessment, Skinner said it's clear there are some unnecessary exemptions in the bill.
At one point, he asked for anyone in the room to address why there is an exemption for any aboveground storage tank smaller than 1,100 gallons but larger than 500 gallons, not covered by other portions of the bill but situated within 500 feet of a water source.
In addition to the DEP, Chris Hamilton of the state coal association, Corky DeMarco of the state oil and natural gas association, Rebecca Randolph of the state manufacturers association and other industry lobbyists were in the room.
No one could say why the exemption was included.
"In this particular part of the bill, I'm very concerned that we picked up some things after it left the governor's office and somewhere, I think in the Senate, there were some things added that don't make sense," Skinner said.
Boggs prefaced her appearance by saying the DEP didn't write the exemptions. It was never made clear who wrote each particular exemption or why every exemption was in the bill.
"I think that the exemptions are a pretty good example of how complex the issue is, and how important it was to slow down and analyze the stuff as detailed as possible to make sure those people actually voting on the law understand precisely what's happening," said Delegate J.B. McCuskey, R-Kanawha.
While McCuskey questioned Boggs' idea that the Legislature might have ignored such a bill before the spill, he said it's clear now more regulation of aboveground storage tanks is needed.
Skinner and Manchin said they think it's important to consider whether the bill should stop with just aboveground tanks. Skinner called it a "conceptual" problem, saying he thinks that focus is too narrow.
Going forward, Manchin said he wants to look at how the bill can address other contamination risks. The House health committee has already added a section requiring the DEP to inventory all contaminants near water treatment facilities.
The judiciary committee didn't take up the bill for amendments or voting Thursday. Skinner said he's confident the committee will amend the bill, not only to remove exemptions but to change many other areas.
The committee must finish work on bills introduced by House members by next Friday. Although the Senate created the chemical leak bill, Manchin said the deadline might delay the committee's action on the bill.
In any event, he hoped to take up the bill for final consideration by the end of next week.
The bill still needs to go to the House Finance Committee before advancing for a vote in the full House.