Have you lost track of the conversation about keeping West Virginia’s drinking water safe? We can’t blame you. To help, here’s our primer on the state’s new water protections.
Written by Shay Maunz
But I thought we took care of this already…
Well yeah, we did. The 2014 legislative session opened on January 8; the next day Freedom Industries leaked several thousand gallons of crude 4-methylcyclohexanemethanol into the Elk River, leaving 300,000 people in the Kanawha Valley without potable water for days. Lawmakers spent the next two months working on legislation meant to make West Virginia’s drinking water safer, with constituents hanging on every word.
What they came up with, Senate Bill 373, made a lot of changes. It required that most public water systems create or update plans to protect source water. It required that all aboveground storage tanks be registered with the state—it’s estimated there are 50,000 tanks in West Virginia, and the Legislature decided regulators should know more about them than they knew about the tanks at Freedom Industries. And it required that those tanks be inspected regularly. In the end, everyone congratulated themselves on a job well done.
Yeah, so why are we still talking about this?
Some people didn’t like the law the way it was. Specifically, a lot of people who own aboveground storage tanks thought they shouldn’t be regulated—that there are tanks that are too far from rivers to leak into the public’s drinking water, and tanks with contents so innocuous that they couldn’t cause problems even if the chemicals leaked out. Some tank owners also said the new disaster plans were going to be too costly to develop and the timeline for implementing a lot of these provisions was unrealistic. By the time the 2015 legislative session rolled around, it was pretty obvious that lawmakers would take a second look at West Virginia’s drinking water protections.
OK , OK , what did they come up with this time around?
You know how we said before that nearly all 50,000 aboveground storage tanks in West Virginia had to be registered and inspected?
Well, that’s not the case anymore. This time around lawmakers came up with a two-tiered system for regulating storage tanks. The strictest rules only apply to tanks that contain hazardous substances, can store more than 50,000 gallons, or sit within a zone of critical concern—meaning that they sit along a river and within five hours’ travel time to a drinking water intake. That’s around 5,000 tanks across the state. The second tier would cover another 7,000 tanks within a 10-hour range of a drinking water intake. In case you didn’t already do that math, that’s around 12,000 tanks that are regulated under the new bill, compared with 50,000 in the old bill.
Just as importantly, the owners of those 12,000 tanks can request exemptions so they can just be regulated by permits and plans they already have in place to satisfy other regulations instead. Not all tanks are eligible, but many are. Even Freedom Industries could have applied for such a waiver.
There were other changes, too: In the 2014 bill, tanks within that zone of critical concern—remember that’s five hours from an intake—had to undergo inspections by the state Department of Environmental Protection (DEP) every year. In the new bill it’s every three years. The old bill required “self inspections” every year for all tanks. In the new bill lawmakers changed the language to say “evaluations.” And the old bill required tank owners to create plans to prevent spills and deal with them if spills occur. The new bill says that if you have an existing plan that covers some of the same stuff, that’s good enough—and unlike before, you don’t have to send it to the DEP for approval, you just have to tell the state your plan exists.
So are we better off, or worse off, or what?
That depends on who you ask, and what you’re comparing. Evan Hansen, an environmental consultant with the Morgantown firm Downstream Strategies, sees no victories in the 2015 water bill. But there were a lot of wins for water protections in the legislation that passed in 2014, and we didn’t lose all of those. “We still have stronger protections on the books even after what happened this session,” Hansen says. “However, I think that they’re less protective than they were.”
On other side of the coin there’s Charlie Burd, the executive director of the Independent Oil and Gas Association of West Virginia, who sees the 2015 legislation as a necessary corrective to some rash governing last year. He thinks lawmakers were so shocked by the chemical spill in the Kanawha Valley that they made the resulting legislation too stringent. “Instead of becoming an indictment on how to better inspect and regulate tanks, it became an indictment on every owner of every tank in the state,” he says. “This new piece of legislation better addresses the economic conditions of people who own tanks. It addresses regulating tanks, but doesn’t regulate them to the point where you’re putting people out of business for not being able to comply.”