The West Virginia House of Delegates overwhelmingly approved a bill Wednesday that eases regulation of oil and gas storage tanks near drinking water intakes. The vote set aside opposition from the state Department of Environmental Protection and concerns that the measure could weaken drinking water safety.
Delegates voted 74-26 to send House Bill 2598 to the Senate after more than an hour of debate, during which time delegates frequently recalled the 2014 Elk River chemical spill that prompted the law that the proposed bill would roll back.
House Bill 2598 exempts the category of tanks closest to water intakes holding up to nearly 9,000 gallons of oil or gas from regulation under the Aboveground Storage Tank Act. The Legislature passed the act in 2014, months after the Freedom Industries leak that contaminated the drinking water supply for 300,000 people in a nine-county area around Charleston in January 2014.
HB 2598 would weaken a key provision of the law, removing tanks containing 210 barrels (8,820 gallons) or less of “brine water or other fluids produced in connection with hydrocarbon production activities” in zones of critical concern. The law 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 susceptibility to potential contaminants.
The law requires registration and certified inspection of such tanks, as well as the submission of spill-prevention response plans. 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.
Zones of critical concern are common across West Virginia, according to a map provided by the Department of Health and Human Resources, particularly on the state’s western edge along the Ohio River. Zones of critical concern surround Huntington, Parkersburg, Wheeling and Weirton.
“We’re not asking for anything that we feel is dangerous,” Delegate John R. Kelly, R-Wood, and the bill’s lead sponsor, said on the House floor Wednesday. “I demand clean water. I demand clean air. I demand regulations. But I demand fair regulations.”
Delegate Bill Anderson, also R-Wood, chairman of the House Energy and Manufacturing Committee, said the bill was necessary to give relief to tank operators that he and industry representatives have said are struggling to maintain profits due in part to costs of upgrading tanks to comply with updates to the zones of critical concern. Anderson said not passing the bill would result in more unplugged oil and gas wells that will become the state’s responsibility.
Democrats, especially those representing Kanawha County, spoke out against the bill, evoking the memory of the Freedom Industries spill.
Delegate Kayla Young, D-Kanawha, recalled that the spill happened a week after her son was born, triggering a ban on them drinking or bathing in their water.
“One day, I’m going to have to explain to him why he had bottled-water baths for the first year of his life,” Young said. “His bottles were made with bottled water for a year, until it finally wore me down and it was expensive. And one day, I’m going to have to explain that to him, and explain to him why I was part of a government that could let [that] happen to other people’s children.”
The 2014 spill happened when a chemical mixture escaped an aboveground storage tank through two small holes on the tank floor caused by corrosion. The chemicals traveled down a descending bank into the adjacent Elk River, according to the U.S. Chemical Safety Board’s 2017 final report on the 2014 spill. The tank’s secondary containment, designed to control leaks, had cracks and holes from disrepair that allowed the mixture to escape.
The board’s report noted that the tank would have been subject to stringent requirements under the Aboveground Storage Tank Act, given its location within a zone of critical concern. The report touted the importance of water utilities updating source-water protection plans at least every three years or when there is a substantial change in potential sources of significant contamination within a zone of critical concern.
In an emailed statement Wednesday, West Virginia American Water External Affairs Manager Megan Hannah said the company, whose water treatment facility intake the chemical mixture flowed downstream into, is “firmly opposed to overly broad aboveground storage tank exemptions” within zones of critical concern, and that the proposed exemptions would make identifying tanks and protecting source water more challenging.
The Legislature has carved out an exemption for these same tanks before, doing so in 2017. However, that was only for tanks outside of zones of critical concern.
The exemptions started in 2015, when the Legislature scaled back the Aboveground Storage Tank Act to require inspection of tanks that contain only 50,000 gallons or more, contain hazardous material or are located within a zone of critical concern.
DEP Deputy Secretary Scott Mandirola said the department does not support the bill while answering questions about the department’s oversight of oil and gas tanks under the Aboveground Storage Tank Act during a Health and Human Resources Committee meeting last week.
Mandirola told the committee the department’s financially strapped Office of Oil and Gas conducts about 6,000 inspections a year and would take over inspections of those tanks. But Mandirola noted that the office focuses on wells, not tanks, and there is no designated frequency to the office’s inspections.
Based on his department’s data, Mandirola estimated that 4% of well sites will get inspected annually. He said, if that percentage were applied to the 887 tanks HB 2598 would deregulate, about 38 tanks would be inspected once a year, a scenario in which all 887 wells would be inspected about once every 23 years.
“I know the proponents of the bill argue, well, since these tanks have been regulated under the Aboveground Storage Tank Act, we haven’t had any water contamination event caused by one of these events, but that shows the program is working,” West Virginia Rivers Coalition Executive Director Angie Rosser said after the House vote. “I think we’re going to end up regretting this.”
Delegate Mike Pushkin, D-Kanawha, recalled that businesses shuttered and residents left after the 2014 spill. He argued that HB 2598 could have a similar effect.
“The biggest mass exodus from this area happened because of the Freedom Industries spill, and we’re going to go back and take the last bite of the apple and deregulate the tanks next to the public water intakes,” Pushkin said. “We’re talking about people’s drinking water.”