Coal Tattoo

Senate steps up on W.Va. water bill

Coal Water Pollution

As the clock ticks toward tomorrow’s midnight deadline for this year’s regular session of the West Virginia Legislature, members of the state Senate took an interesting — and possibly terribly important — step this evening on SB 373, the bill written to respond to January’s Elk River chemical spill.

Faced with a variety of House-passed amendments that strengthened the bill, the Senate appears to have opted not to re-argue things like whether that long list of industry-backed exemptions the House removed should be packed back in in the final hours of the session. Those exemptions, of course, had been inserted in the Senate, after also being part of the legislation proposed by Gov. Earl Ray Tomblin.

Instead, what the Senate did this evening was to remove an amendment put in on the House floor at the urging of Delegate Justin Marcum, D-Mingo.  We’ve discussed this amendment before, noting that Delegate Marcum didn’t seem able to really explain its impact — something that didn’t stop House members from approving it.

The problem for the Senate, according to Majority Leader John Unger, D-Berkeley, was that it appeared the amendment had the potential to derail the whole program for the state Department of Environmental Protection to begin more closely regulating above-ground chemical storage tanks like the one that leaked at Freedom Industries.

Now, Delegate Marcum portrayed his bill as an effort to simply help a few water pollution permit-holders who already pay a permit fee to DEP, by exempting them from being double-charged.

The first problem with Delegate Marcum’s amendment is that these permit holders wouldn’t have been double-charged for the same DEP permitting activity. They would have been charged two different fees for two different programs.

The other problem is the way the amendment described who would be exempt from the storage tank fee program. The amendment the House passed applied this exemption to:

… Facilities covered by an individual National Pollutant Discharge Elimination System (NPDES) permit, a permit issued under Article 6 or 6A of this chapter or a Spill Prevention Control and Countermeasure plan …

A lot of people have described this as an exemption for oil and gas operations, because that’s who is covered by W.Va. Code 22-6 and 22-6A.

But that part about “facilities covered by an individual National Pollutant Discharge Elimination System permit” could have allowed this fee exemption to apply to all manner of industrial operations, from coal mines to chemical plants. Or at least that was the concern expressed by the Senate.

Senators approved an amendment removing Delegate Marcum’s amendment, and then unanimously passed the bill … it now goes back to the House, with a request from the Senate that it be approved in that form. It’s not all quite over just yet … but here’s what Sen. Unger said about the House’s improvements to the bill, and about this evening’s development:

I think Senate Bill 373 is an example of how the system is supposed to work.