Legislature’s ‘tank bill’ stirring more than chemicals - WBOY.com: Clarksburg, Morgantown: News, Sports, Weather

Legislature’s ‘tank bill’ stirring more than chemicals

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A bill drafted by the West Virginia Legislature during its 2014 regular legislative session has been discussed in a variety of ways — most recently, about its “unintended” consequences.

Lawmakers rushed to pass the bill after the Jan. 9 Freedom Industries leak of crude MCHM, with the public encouraging their actions. With an election year on the minds of many legislators, the public remained confident in the fact that their elected officials were taking the necessary actions and protecting the waterways in the Mountain State.

But months after the bill was signed into law and a few months before tank inspections will be mandated by that new law, House Speaker Tim Miley, D-Harrison, expressed his concern that the regulations would be too burdensome for small oil and gas drillers.

Corky Demarco, president of the West Virginia Oil and Natural Gas Association (WVONGA), said the majority of the industry’s 50,000-60,000 aboveground storage tanks are holding brine water or small amounts of distillate.

“To pass something because of what happened at Freedom, we went above and beyond maybe what was needed for the public’s protection,” Demarco said. “The Legislature did what they thought they should do to protect the public (and) the industry now has to react to a potential set of rules that could be damaging to what we’re trying to build in the state of West Virginia.”

Demarco said the oil and gas industry already had protocols in place when it comes to inspecting tanks on an annual basis.

“We think we do a pretty good job of it in reporting and we could share the stuff we inspect on an annual basis with DEP (The West Virginia Department of Environmental Protection), that’s not a problem,” he said.

Demarco acknowledged the fact that the Legislature had only a 60-day session to construct what became known as the tank bill, and said it was destined to be difficult for lawmakers to have everything figured out while also passing other bills in that limited time span.

“It has unintended consequences, when you have this perceived disaster that we had,” Demarco said. “Instead of being proactive, we’re reactive.”

What does it mean?

As it stands, Senate Bill 373 was signed by Gov. Earl Ray Tomblin April 1 and became effective, on June 6.

After being introduced and discussed by the West Virginia Senate, then triple-referenced to three different House committees for review, the 86-page bill was changed by both chambers until the last minutes of the regular session March 8.

The bill includes a long-term medical study to be conducted by the Bureau for Public Health, a Water Resources Protection Act and civil and criminal penalties for those not in compliance with the law. Those businesses that fail to register could be submitted to a hefty fine of $25,000 per day for the tanks that go unregistered.

The law also states, “any owner/operator of a site designated as a potential source of significant contamination within a zone of critical concern above a public water intake who knowingly fails to register or obtain a permit for an aboveground storage tank or submits false information pursuant to this article is liable for civil penalty not to exceed $10,000 for each aboveground storage tank that is not registered or permitted or for which false information is submitted.”

The bill also included a provision, mostly targeted to West Virginia American Water, that all public water utilities providing water to more than 100,000 customers (WVAM provides service to 300,000 through its Charleston treatment plant alone) must implement a regular monitoring system “as specified to the same technical capabilities for detection as utilized by the Ohio River Valley Water Sanitation Commission.”

Letter introduces controversy

Miley sent Tomblin a letter July 9 explaining the concerns the oil and gas industry raised.

The letter, according to House of Delegates Communications Director Stacey Ruckle, identified at least three “legitimate concerns about the DEP’s proposed implementation of the bill.”

Ruckle said the letter first addressed concerns about the sheer number of tanks which small producers would have to register with the DEP, as well as small producers’ concerns about the time and costs of compiling and providing detailed information sought by DEP due to the law and, finally, the cost of inspections and certification requirements of the tanks.

“At the time the letter was issued, the DEP had only recently issued its proposed registration forms,” Ruckle explained in an email. “The rules which the DEP is required to develop under the bill are still being drafted, with input from industry and other interested parties. It is anticipated that the proposed rules will be submitted in a few months for the Legislature’s review and consideration.”

While Miley’s letter said some concerns could be addressed in rule making, there were concerns about unintended burdens placed on small producers of traditional wells during a period when “they are struggling to keep their heads above water.”

Miley also addressed the economic harm that could result after initial certifications are to be submitted Jan. 1, 2015, saying issues might not be able to be readily addressed during the initial comment and review process.

No special session

Chris Stadelman, spokesperson for Tomblin, said the bill underwent significant changes in the Legislature, but Tomblin understands concerns.

“The governor understands the ongoing concerns expressed by some of those who are affected and believes the goals of the legislation can be accomplished without undue burden on West Virginia’s businesses,” Stadelman said. “An executive order should not be used to circumvent the will of the Legislature, but the Department of Environmental Protection continues to evaluate administrative options that ensure water protection while making the compliance process feasible.”

Kelley Gillenwater, spokeswoman for DEP, said the company will continue to follow the law and requirements mandated by the bill.

“Agency officials are regularly communicating with industry representatives and officials in the governor’s office about concerns raised about those requirements and are working to address those concerns to the best of their ability,” Gillenwater said.

She said one of those issues was the requirement on the registration process to supply the name and contact information of the landowner if it differed from the tank owner. She said that is not a requirement spelled out in the bill and that field is optional for oil and gas tank owners — as is another data field asking for the latitudinal and longitudinal coordinates of the center of the facility.

She said anything else the DEP would have on the registration forms would be required by law, and necessary for them to ask.

Demarco said he had some concerns as well.

He said while DEP is working through the implementation process, the strictest interpretation of the law could require an engineer to inspect tanks and there are simply not enough people or enough time for those inspections.