‘Unintended consequences’: Why West Virginia’s landmark chemical tank safety legislation matters

August 28, 2014 by Ken Ward Jr.

freedom aerial

Commercial Photography Services of West Virginia

The pressure continues to build on Gov. Earl Ray Tomblin to call a special session so West Virginia can walk back the landmark chemical tank safety and public drinking water law that miraculously made its way through the Legislature in the wake of January’s Freedom Industries spill and the Kanawha Valley water crisis that followed.

Yesterday, Senate President Jeff Kessler and House Speaker Tim Miley issued a joint statement urging Gov. Tomblin to call that special session so they can roll back the deadline for chemical tank owners to determine if their tanks are safe and report that information to the state Department of Environmental Protection.  Here’s what they had to say in that joint release:

miley_timothykessler_jeffreyWe urge Governor Tomblin to call a brief special session during the upcoming September interim meetings to modify the date of implementation for the inspection and certification of the Above Ground Storage Tank Act (SB373). Doing so during the interim meetings will not incur any additional cost to the taxpayers.

While we are extremely proud of the comprehensive regulatory legislation produced earlier this year to protect drinking water for our state citizens, it has become apparent that the Jan. 1, 2015 deadline for these inspections is unattainable. Extending that deadline will allow the state Department of Environmental Protection to put in place, with public input, agency rules to fairly and effectively govern the inspection and certification process.

Any continued delay in taking action on this matter only causes uncertainty within affected industries and the families that rely on them for employment.

Meanwhile, the DEP will move forward with creating an inventory and conducting a risk assessment of above ground storage tanks statewide.

The usual suspects among our state’s media outlets are right on top of this. Hoppy Kercheval is all over this, and the MetroNews coverage sticks pretty close to his talking points:

As of now, as many as 40,000 tanks in West Virginia must be registered with the state by Oct. 1 and certified inspections of those tanks have to be completed by Jan. 1.  The state Department of Environmental Protection has not yet finalized the inspection protocols and, DEP officials have said, it could be December before those guidelines are available.

After appearing at times to actually care about drinking water protections, the Daily Mail editorial page is back to its old self, and repeating the same misinformation West Virginians are getting from MetroNews:

But the biggest issue is the uncertainty facing storage tank operators as the Department of Environmental Protection, the agency charged with enforcing the law, has yet to define the inspection parameters for storage tanks. Once it does, operators of the estimated 40,000 storage tanks affected by the law are unlikely to have time to complete their inspections by the Jan. 1 deadline.

It’s simply false to say that DEP has not yet issued “inspection protocols” or defined “the inspection parameters.” Officials at DEP, working very hard under tough deadlines and constant pressure from industry, published guidance for tank owners spelling out what should be examined in these inspections. It’s right here on the agency’s website. There’s a checklist for what the inspections should include and there are forms (see here and here) to use in certifying to DEP that you’ve done these inspections and your tanks are safe.

And DEP was very, very clear about how this is going to work for the initial inspections due Jan. 1 and for future annual inspections:

For the certification due on or before January 1, 2015, compliance with a nationally recognized tank standard such API or STI following the attached checklist shall be deemed compliance with the requirements. Subsequent Annual Certifications will be required to comply fully with legislative rules promulgated by the Secretary.


And if you read SB 373, it suggests that this sort of path is what was intended. In creating the new above-ground storage tank regulatory program, lawmakers said this about chemical tank safety standards and other parts of that program:

The secretary shall promulgate for review and consideration 4 by the West Virginia Legislature legislative rules during the 2015 Regular Session of the West Virginia Legislature, on all matters related to this article.

Despite that language, lawmakers also said, concerning annual tank inspections and certifications by experts hired by tank owners:

The certification form shall be submitted to the secretary  on or before January 1, 2015, and each year thereafter.

So, while it’s true that DEP hasn’t yet written the rules that will eventually govern chemical tank safety standards, agency officials have issued “protocols” and “parameters” that the industry can follow in making its initial inspections and certifications. What would happen if tank owners and their industry lobby groups spent more time trying to actually comply with that guidance, and less time working the governor’s office and legislative leaders trying to weaken the law?

Keep in mind that this  statement from President Kessler and Speaker Miley was issued after the legislative interim meetings earlier this week up in north-central West Virginia, where the events for lawmakers included a steak house gathering whose sponsors included Mountain V Oil and Gas Inc., whose president is a Bridgeport resident named S. Michael Shaver. Some readers may recall that when Speaker Miley wrote to Gov. Tomblin the one person he copied on that letter was Mr. Shaver.  The public record reflects that Mr. Shaver wrote to DEP to complain about the provisions of SB 373, and the record also shows that Mr. Shaver contributed $1,000 to Speaker Miley’s campaign fund.

I asked Speaker Miley about Mr. Shaver’s sponsorship of that legislative interim gathering, and this is the statement I got back from his spokeswoman:

The sponsors of the legislative reception were secured by and through the Harrison County Chamber of Commerce, i.e. Kathy Wagner. I had nothing to do with securing sponsors for any part of the interim process. With that said, it is my understanding and belief that Mountain V Oil and Gas is owned, in whole or in part, by Mike Shaver, who is a Harrison County resident and business owner. Mike Shaver wrote a letter to me in May 2014 expressing concerns about SB 373. In response to his letter, I wrote a letter to Governor Tomblin in July 2014 and copied Mr. Shaver on my letter.

 To make anything more of it would be simply manufacturing a story where there is none.

Maybe there isn’t a story there. But there is most certainly a story in the way political leaders (and some in the media) are now rushing to do what industry is demanding regarding the chemical tank safety law.  One MetroNews story actually tried to depict citizen groups as having gotten in the way by speaking their mind, and prompting Gov. Tomblin to hold off on calling a special session until DEP and the governor’s staff gave the issue more thought and actually heard from all sides.

Obviously, this isn’t the way various industries are used to having things work in West Virginia. Recent laws governing oil and gas drilling and coal mine safety — hailed by political leaders and comprehensive and landmark — were written mostly by the very industries that they were supposed to be regulating.  Gov. Tomblin started off that way with his legislative response to the Freedom spill and the water crisis, calling a “stakeholders” meeting that included only one side. The governor and his staff seem to be trying to remedy that mistake as they figure out how to respond to calls now to weaken the chemical tank bill.

Today’s Gazette editorial makes this point about lawmakers who are pushing for the industry to get its way here:

Apparently Miley does not remember that in January, the day after the Legislature convened for this year’s regular session, a chemical spill on the Elk River contaminated West Virginia American Water’s sole intake for the region. For days, 300,000 people were without drinking, cooking and bathing water. Businesses and schools were closed. Some people were made ill. For weeks, residents smelled the chemical lingering in their pipes and appliances. Now, many months later, after pushing and demanding precautions be taken at the water treatment plant and for the future, people are finally regaining confidence in their water supply.

But there’s another related piece of news out today that shouldn’t be forgotten, and needs to be seen as part of the context of whether key deadlines in the chemical tank bill will be delayed. It’s this:

DuPont Co. has agreed to pay nearly $1.3 million in fines to the U.S. Environmental Protection Agency to resolve violations the EPA cited after a string of 2010 chemical leaks, including one that killed a worker at the company’s plant in Belle, EPA officials announced Wednesday.

The proposed deal, filed in U.S. District Court in Charleston, settles EPA allegations that DuPont violated provisions of federal air pollution, chemical management, and public right-to-know laws and requires the Wilmington, Delaware-based chemical giant to implement a variety of environmental and workplace safety reforms.

Among other things, EPA officials alleged that DuPont officials allowed one leak to go on for five days without taking action, ignored internal safety recommendations that could have prevented a second incident, and did not timely replace a worn-out hose used to transfer toxic phosgene gas in a fatal January 2010 incident.

“Failing to follow laws meant to prevent accidents can have fatal consequences — as was tragically the case here,” said Sam Hirsch, acting assistant attorney general for the U.S. Justice Department’s Environmental and Natural Resources Division.

My Gazette story on this goes on to explain:

In a final report issued in September 2011, the U.S. Chemical Safety Board found that the leaks at DuPont were preventable incidents caused by deficiencies in plant safety management systems related to maintenance and inspections, alarm recognition and management, accident investigations, emergency response and communications, and hazard recognition, the EPA noted in a new lawsuit that’s being resolved by the deal announced Wednesday.

Among other things, the board’s report noted the CSB’s previous recommendation that West Virginia officials work with Kanawha County to develop a local chemical-accident-prevention program. As part of legislation responding to this year’s chemical leak at Freedom Industries, lawmakers mandated that a new state Public Water System Supply Commission examine the CSB’s recommendation. Gov. Earl Ray Tomblin has yet to appoint members of that commission.

Maya Nye, spokeswoman for People Concerned About Chemical Safety, said her group is working on a “roadmap” that state and local leaders could use to implement the board recommendation.

“The DuPont tragedy illustrates the need to implement a Chemical Release Prevention Plan that was recommended by the Chemical Safety Board,” Nye said Wednesday. “As the Public Water System Supply Study Commission reviews the recommendations, they will have a sound roadmap to help them parse out the details.”

Think chemical tank safety in industries like oil and gas drilling doesn’t have anything to do with workers getting killed?  Then you’ve forgotten about incidents like the deaths of two workers at an Antero Resources natural gas operation last year in Doddrige County. As things like this fade from memory, as the water crisis disappears from many people’s minds, things can more easily go back to business as usual in West Virginia — unless elected officials show that they’ve learned something from such events.

3 Responses to “‘Unintended consequences’: Why West Virginia’s landmark chemical tank safety legislation matters”

  1. Phil Price says:

    Great story; absolutely correct about the “flim-flam” coming from the regulatees – that they are confused by a lack of specifics.
    Tanks for oil & gas drilling could potentially be some of the most troublesome for nearby neighbors. Without a clear definition and database of # tanks, contents, locations, etc. – the most likely notifications will be actual leaks. If AFTER the database is constructed, oil & gas (etc.) want exemptions – we will have a MUCH clearer picture of what’s being exempted.

  2. Ti Miller says:

    The problem is they have figured out they will lose too much money if regulations and rules are implemented and enforced for the gas and oil wells. There are so many at this time that are leaking and their “wastewater” impoundments that are right on creeks, streams, and rivers. If people thought coal mines were dangerous for the environment they need to take a good look at the gas and oil industry to see how bad, if not worse, procedures that these companies are performing and are polluting our water with no afterthought to the citizens that live in the area.

  3. marilyn k hunt says:

    The technology exists for fast and accurate testing of all drinking water in the state. The current testing is inadequate. The cost in health problems should also be easy to track..are there cancers, kidney failure, miscarriages and birth defects in an area..the health department should have the statistics, the Texas cancer stats are online…Texas has major contamination problems. Get involved…your stand on public health may save your life.

Leave a Reply