Update on S.B. 423, “Gutting the Aboveground Storage Tank Act”

The committee substitute for S.B. 423, “Amending the Aboveground Storage Tank Act,” passed out of the Senate Judiciary Committee on Tuesday evening.  On Saturday afternoon it passed the full Senate with only one “no” vote, and it’s now headed to the House.

While we have a number of concerns with the committee substitute, it is a substantial improvement over the introduced version of the bill, due to many hours of negotiations that included the WVEC, the WV Rivers Coalition, the West Virginia Sustainable Business Council, WV-CAG, WV-SORO, the DEP, the Independent Oil and Gas Association, and others.

The number of tanks regulated under the Act will be reduced from about 48,000 to about 12,000.  Of the 12,000, about 5,000 are will be classified as “Level 1,” which is defined as those tanks that a) contain hazardous substances (fyi, MCHM is not considered a hazardous substance); b) have a capacity of 50,000 gallons or more; or 3) are within the “zone of critical concern” for a drinking water intake.  The zone of critical concern is based on a five-hour travel time of water downstream to an intake for a drinking water treatment plant.

Approximately 7,000 additional tanks will be classified as “Level 2,” which is comprised of tanks located within a “zone of peripheral concern” (ZPC).  The ZPC is based on a travel time between five and ten hours to a drinking water intake.

Owners of those tanks already regulated under some other law may apply to opt out of regulation under the ASTA.  Among other things, the application must include information about adherence to tank and secondary containment integrity, inspection, and spill prevention and response. The DEP is to have full discretion w/r/t approval of the application for exemption.

There is no provision that the other regulation must be at least as stringent as that of the ASTA.  And if all the tanks eligible for the “opt out” apply for and are granted exemption, the number of tanks regulated under the ASTA will be reduced to less than 100.

Recent media reports about this bill are here and here; there was also a poignant editorial in Friday’s (2/27) Dominion Post.

We have other concerns with the bill in addition to those identified here, and are hoping for improvements to it as it makes its way through the House.  Please stay tuned!

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  1. Here’s the Dominion Post editorial:
    It’s Not Water Under the Bridge
    Editorial, Morgantown Dominion Post, February 27, 2015
    You better believe history has a way of repeating itself. Take for instance our state leaders, and agencies, long history of allowing industry to have its way with our natural resources.
    Never mind the collateral damage done to our environment, especially our water resources. At least it was that way until March 8, 2014, or so we thought.
    That was the date when the state Legislature unanimously approved Senate Bill 373 in response to a massive chemical spill into the Elk River. That spill contaminated the water supply of 300,000 state residents in a nine-county region resulting in a tap water ban for nearly a week. But soon after that legislation was passed, some warned that protecting our water does not end with passing a bill.
    Industry never sleeps and would keep the pressure on government through its well-financed lobby. As one WVU law professor put it at the time, “While you’re not paying attention, they are.” Guess what? We have not been paying attention.
    This week the Senate Judiciary Committee unanimously advanced legislation to the Senate floor that basically guts SB 373. Though the new legislation — Senate Bill 423 — still requires all above-ground storage tanks to be registered with the state, it drops practically all regulation for about 36,000 of those 48,000 tanks.
    The new bill purportedly targets tanks in zones of critical concern and a newly defined zone of peripheral concern to public water intakes, rather than protecting groundwater in general.
    What that means is, if you rely on a private groundwater well or other such water supply you had better hope there are no above-ground storage tanks nearby. It also drastically reshapes how many industries need to apply for permits, allowing them to opt out of the separate permit process for their storage tanks if they already fall under some other regulatory tool.
    Some have estimated that as a result of this provision, fewer than 100 tanks will be subject to the regular strict inspections.
    The state Department of Environmental Protection (DEP) secretary was quick to point out recently that the bill the governor sought last year — SB 417 — was not as stringent as the one lawmakers ultimately passed. That was the legislation whose opening paragraphs talked about protecting industry, rather than our water resources. It was the one that died a quiet death once the public got a look at it and started to make some noise.
    Something tells us the public needs to start making some more noise again — at SB 423. And if they don’t hear you now, you can always get their attention at the ballot box on November 8, 2016.

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