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WV lawmakers back off larger rollback of chemical tank law

KENNY KEMP | Gazette-Mail
House Judiciary Vice Chairman Roger Hanshaw, R-Clay, is the lead sponsor of the bill to exempt some natural gas industry tanks from West Virginia’s Aboveground Storage Tank Act. Hanshaw also is a lawyer for the oil and gas industry, and a chemist.
KENNY KEMP | Gazette-Mail
Angie Rosser, executive director of the West Virginia Rivers Coalition, speaks in the House chamber during a public hearing on a bill to rollback the state’s chemical tank safety law.

West Virginia House Judiciary Committee members on Monday backed away from giving the natural gas industry a broad exemption from a 3-year-old chemical tank safety law.

That law was passed after the Elk River spill that contaminated the drinking water for hundreds of thousands of residents in the Kanawha Valley and surrounding communities.

As rewritten by the committee, the bill still would exempt about 2,300 oil and gas industry tanks from its regulatory requirements, officials said.

Originally, the industry-backed bill would have removed a mandate that 26,700 other tanks associated with the oil and gas industry — those small enough or far enough from drinking water intakes to not be covered by new safety standards and inspections — to even file a short registration form with the state Department of Environmental Protection and pay a $20 registration fee.

The committee approved on a voice vote a revised bill that, if passed by the Legislature and signed by Gov. Jim Justice, would maintain the registration requirement for all 42,000 tanks covered by the state’s Aboveground Storage Tank Act.

“It’s some relief that the committee came to its senses about the tank registry,” said Angie Rosser, executive director of the West Virginia Rivers Coalition. “Maintaining this information is the first building block toward safeguarding our water supplies. Without it, we’d be back in the dark, like we were three years ago, about what looms upstream.”

The bill now goes to the House floor.

The revised version of HB 2811 emerged in the form of what lawmakers like to call a “Committee Substitute,” the exact language of which was not yet available to the public at press time.

The rewrite was announced during the Judiciary panel’s afternoon session, following about 90 minutes of discussion during a morning meeting and an hour-long public hearing, in which citizen groups and environmental organizations said the original bill was far too much of a retreat from the law passed after the Freedom Industries spill in January 2014.

“This is a giveaway to the industry at the expense of human health,” John Street, the lead lobbyist for the West Virginia Environmental Council, said during the public hearing.

Oil and gas company officials who appeared at the hearing complained that the inclusion of their industry in the aboveground storage tank legislation was unfair from the beginning. They said their tanks are small and are typically located far from drinking water resources, and they tried to minimize hazards presented by the material in their tanks. And they said that the law is having negative economic consequences for many in their industry, citing layoffs and difficulty making payroll, let alone a profit.

“This is serious business for us,” Jon Hildreth, a Roane County gas operator, told lawmakers. “Please fix this.”

Bob Matthey Jr., a gas operator in Ritchie County, called the tank law “the most devastating thing that’s hit me.”

Other testimony, though, revealed that the vast majority of oil and gas industry tanks are subject only to the DEP’s registration requirement, not to tougher safety standards or inspection requirements. And several scientists and other speakers told lawmakers that “brine” can contain a variety of dangerous materials and can, in some cases, be radioactive.

“Brine — it sounds like something you make pickles with,” said Gary Zuckett, director of the West Virginia-Citizen Action Group, “but I would suggest this is not something you want in your drinking water.”

Ruth Porter, manager of the DEP’s tank safety program, told lawmakers that her office is aware of 11 spills from aboveground storage tanks since August 2016. All 11 made it beyond the company’s containment dikes, Porter said. Eight of those 11 spills occurred at oil and gas operations, she said.

Chris Veazey, environmental manager at Enervest Operating, called the existing law an “overreaching, one-size-fits-all regulation.” But the state’s law actually spells out several types of chemical storage tanks that are covered in different ways.

A broader collection of containers is defined as “above-ground storage tanks,” if they meet certain criteria, including having a capacity of more than 1,320 gallons. All of those tank owners are required to file a registration form with the DEP and pay a registration fee of $40, for tanks filed before July 1, 2015, and $20 for tanks filed after that date. Operators of those tanks also must place signs or markers that list their registration number and an emergency contact number.

The law outlines two other categories of tanks. “Regulated Level 1 Tanks” are located within a zone of critical concern that contain certain particularly hazardous materials or have a capacity of 50,000 gallons or more. “Regulated Level 2 Tanks” are located within an area called the “zone of peripheral concern,” which is 10 hours upstream from any drinking water intake.

Both categories of “regulated” tanks are subject to DEP safety standards and requirements for certain types of inspections, with Level 1 tanks being subject to more scrutiny than Level 2 tanks because of their closer proximity to drinking water intakes.

Under the original bill, a new exemption would apply to tanks with a capacity of 210 barrels, or about 8,820 gallons, that contain “brine or water or other fluids produced in connection with hydrocarbon production activities,” if those tanks are not located in a “zone of critical concern,” an area that is estimated to be about five hours upstream from a drinking water intake.

Larger natural gas industry tanks and those located within zones of critical concern near drinking water intakes still would be covered by the law, under the original bill and the one that passed out of Judiciary.

The original bill would have exempted from all regulatory requirements 2,300 oil and gas industry tanks currently considered “Level 2” tanks because of their location in zones of peripheral concern, as well as lifting the registration requirements for 26,700 other tanks not located near drinking water intakes. In all, the DEP said the original bill would exempt 29,000 of the 42,000 tanks in its inventory from the law.

The Judiciary Committee substitute version replaced the registration requirements for aboveground storage tanks that aren’t near drinking water intakes, leaving the bill to exempt from regulatory requirements, but not registration, the 2,300 oil and gas industry tanks currently considered “Level 2” tanks because of their location in zones of peripheral concerns, officials said.

Last week, the House Energy Committee approved the original legislation with a unanimous voice vote.

The bill’s lead sponsor is House Judiciary Vice Chairman Roger Hanshaw, R-Clay, who is a chemist and a lawyer whose clients sometimes include the West Virginia Independent Oil and Gas Association and the West Virginia Oil and Natural Gas Association. Officials from both of those groups spoke in favor of the bill during Monday’s public hearing.

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.

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