Natural gas companies and one of their lobby groups are challenging a key West Virginia Department of Environmental Protection action that is aimed at helping determine what chemical storage tanks will be subject to varying levels of scrutiny under a law passed in the wake of the January 2014 Freedom Industries chemical spill that contaminated drinking water supplies for hundreds of thousands of residents in Charleston and surrounding communities.
Industry lawyers want the state Environmental Quality Board to throw out the DEP’s designations of which tanks are located in the “zone of critical concern” or the “zone of peripheral concern” near public drinking water intakes across West Virginia. They argue that the DEP wrongly did not subject its designations to public review and comment and that, in making the tank decisions, agency officials used “arbitrary and capricious” assumptions.
On Thursday, members of the Environmental Quality Board began hearings on an appeal of the DEP designations. Parties filing the case were the Independent Oil and Gas Association of West Virginia and three related companies: C.I. McKown and Son Inc.; Pocono Energy Corp.; and Tempest Energy Corp.
“These are important issues for the tank owners,” industry lawyer Mark Clark told the board. “This is a very technical and important sort of designation that should have been presented for public comment.”
Clark and fellow industry lawyer David Yaussy tried unsuccessfully to convince the board not to allow two citizens groups — the West Virginia Rivers Coalition and the West Virginia Citizen Action Group — to intervene to help defend the DEP’s designations. Yaussy said the designations don’t concern the groups because their members don’t own chemical storage tanks.
Angie Rosser, executive director of the Rivers group, testified that citizens who are concerned about a repeat of the water crisis that followed the Freedom spill have a right to be heard in the matter.
“The zones of critical concern are really the core of the above-ground storage tank act,” Rosser said. “They determine which tanks are regulated and are central to the source-water protection plans.”
DEP lawyer Scott Driver said the agency was not taking a formal position on whether the citizens groups could intervene but said in his opening statement that the new law concerns not just tank owners, but anyone who relies on clean drinking water.
“The Legislature rightly concerned itself with keeping another Freedom from happening,” Driver said. “This isn’t a matter of protecting only the people making money. This is about protecting all of the people of West Virginia. The bottom line is the DEP did what the Legislature told us to do, and that’s it. We are on the side of the angels on this one.”
At issue in the appeal to the board are decisions the DEP made about which tanks are within two different zones within certain distances and stream-flow times from sites where public drinking water intakes are located. Under the law, originally passed in 2014 and then rolled back significantly last year, the DEP designations determine what level of regulation applies to different tanks and play a role in what sort of planning for potential contamination local water systems must perform.
Natural gas lobbyists had tried to have their industry exempted entirely from the chemical tank legislation, but lawmakers declined to adopt that proposal.
During Thursday’s board hearing, Clark pressed the gas industry’s argument that computer modeling used to make DEP designations did not properly consider things that could affect the time it would take contamination from a tank to reach a water supply, such as changes in terrain or the location of dams or impoundments. The stream flows and distances used in the assumptions resulted in some tanks being included in protected zones that really shouldn’t have been, the industry argues.
Michael Strager, a West Virginia University professor who performed the modeling for state regulators, told the board that he used a “conservative” set of assumptions aimed at meeting resource and time constraints but also being protective of water supplies and public health.
“Does it work everywhere? No, I agree,” Strager testified. “I feel it was an appropriate modeling approach to use. It was the best available with the time constraints we were under.”
Industry officials complain that any incorrect tank designations would result in tank owners having to face costly inspection and other requirements under the new law.
But Charles McKown, president of one of the companies that appealed to the board, testified Thursday that he had never put together an estimate of what it would cost his company to comply.