The House Energy and Manufacturing Committee voted at its Tuesday meeting to advance a bill to the full House of Delegates that would relax state oversight of certain above ground oil and gas waste tanks closest to surface water intake points, siding with oil and gas industry representatives who found the oversight unnecessary and cumbersome over those who fear the bill would pose a risk to drinking water throughout West Virginia.
Approved via voice vote, House Bill 2598 would remove tanks containing 210 barrels or less of “brine water or other fluids produced in connection with hydrocarbon production activities” in zones of critical concern from regulation under the Aboveground Storage Tank Act, which requires registration and certified inspection of such tanks as well as submittal of spill prevention response plans and defines zones of critical concern as corridors along streams within a watershed that need close scrutiny because of a nearby surface water intake point and its susceptibility to potential contaminants.
“The ones that it would benefit would be the smaller, marginal wells with traditional vertical drilling,” explained House committee counsel Robert Akers.
The Legislature has carved out an exemption for these same tanks before, doing so in 2017 but for only those outside of zones of critical concern at that time.
The exemptions started in 2015, when the Legislature scaled back the Aboveground Storage Tank Act to only require inspection of tanks that contain 50,000 gallons or more, contain hazardous material or are located within a zone of critical concern.
The Legislature passed the Aboveground Storage Tank Act in 2014 following the Elk River chemical spill that contaminated the drinking water supply for hundreds of thousands of people in a nine-county area around Charleston earlier that year.
The length of zones of critical concern is based on a five-hour water travel time in streams to the water intake, plus an additional quarter mile below the intake. A zone’s width is 1,000 feet from each bank of the principal stream and 500 feet from each tributary bank draining into the principal stream.
Delegate Ed Evans, D-McDowell, Energy and Manufacturing Committee minority chairman, worried that the committee didn’t have visual knowledge of the state’s zones of critical concern and said that the zones took up “a tremendous amount of space,” especially in the Northern Panhandle and along the Ohio River after Akers handed a map of the zones, which the state Department of Health and Human Resources is responsible for mapping.
Akers said that a recent department implementation of new zones of critical concern around surface water-influenced groundwater wells caused the Department of Environmental Protection to begin enforcing the Aboveground Storage Tank Act for many of the tanks that would be exempted by House Bill 2598, resulting in small oil and gas producers having to pay to upgrade brine tanks used for wells that he reported were “barely profitable” and facing upgraded compliance costs.
Oil and gas industry lawyer Philip Reale argued that House Bill 2598 wouldn’t have a negative environmental impact, citing other state and federal regulations and saying that operator employee inspections should be trusted to continue should the bill pass.
“They’ve got an investment,” Reale said.
But Delegates Evan Hansen, D-Monongalia, and Kayla Young, D-Kanawha, spoke out against the bill, saying it would unnecessarily undermine a key protection from water pollution.
“I don’t think we should be doing anything to potentially make our drinking water less safe,” Young said. “I think those of us here in Kanawha County will never forget what happened in 2014.”
Hansen asked for and got the testimony of three witnesses who testified about issues related to the bill, including Dorothy Vesper, a West Virginia University geology professor who told the committee under questioning from Hansen that pollutants in oil and gas tanks may include crude oil and brines that contain barium and radioactive radium, and Ruth Porter of the Department of Environmental Protection, who testified about the department’s tank oversight.
“We have seen cases where the tanks overflow,” Porter said. “Does that happen all the time? No, but we have seen tanks where they fill up and overflow. These are tanks on the hillside, so people are not necessarily out there every day.”
“This is a bill about keeping drinking water clean and safe for human consumption,” Hansen said. “What I heard in the testimony is there’s a real difference in regulations under the Aboveground Storage Tank Act and the regulations that would be reverted back to should this bill pass.”
The West Virginia Rivers Coalition and West Virginia Environmental Council have opposed rolling back the Aboveground Storage Tank Act, and Rivers Coalition Executive Director Angie Rosser condemned the committee’s approval of House Bill 2598 Tuesday.
Rosser expressed frustration with what she said was no response from committee Chairman Bill Anderson, R-Wood, to her request for a virtually held public hearing on the bill.
The lead sponsor for House Bill 2598 is Delegate John R. Kelly, R-Wood, and the bill has drawn 10 other sponsors, all Republicans, including Anderson.