Comments on DEP draft rules due Friday

Earlier this month, DEP released an additional section of its draft aboveground storage tank rule. It looks like DEP is repeating one of the mistakes of its strip mining regulatory program.

The new section of the draft provides rules for how much money companies with aboveground storage tanks have to post as a bond to show that they have the money available to clean up a potential spill from their tank. The draft states,

13.1.c. Owners or operators shall demonstrate financial responsibility in an
amount calculated as follows:
13.1.c.1. For Level 1 ASTs, an amount equal to twenty cents per gallon
(20¢/gal.) of the aggregate storage capacity for the tank or tank facility, at a minimum of five
thousand dollars ($5,000).
13.1.c.2. For Level 2 ASTs, an amount equal to ten cents per gallon
(10¢/gal.) of the aggregate storage capacity for the tank or tank facility, at a minimum of five
thousand dollars ($5,000).

Recall that Level 1 ASTs are those, like the Freedom tanks, located in a sensitive area (such as the zone of critical concern of a drinking water intake); containing hazardous chemicals; and/or larger than 50,000 gallons. If this rule had been in place before the Freedom spill, the bond for the 48,000 gallon tank of MCHM/PPH would have been $9,600.

The Gazette noted back in June that the firm contracted by Freedom to do the clean up was asking for $315,000. The full cost to remediate the site is still unknown.

It’s clear that the DEP is once again allowing industry to get away with bonds that far underestimate the actual cost to remediate a spill, especially in situations where a hazardous chemical is involved. It seems bizarre that DEP would base the bond amount solely on the volume of chemical stored and not also on its toxicity. Remediating a toxic chemical spill is clearly going to be more expensive than dealing with a non-toxic chemical spill.

The DEP has faced a similar problem in its attempts to remediate strip mines. As stated in a 2012 Gazette article, DEP’s Special Reclamation Fund “has been short of money because coal operators had not posted reclamation bonds sufficient to cover the true cost of mine cleanups at sites that are abandoned. A state tax on coal production was never set high enough to make up the difference.”

Comments on the draft aboveground storage tank rule are due Friday to or by mail them to:
West Virginia Department of Environmental Protection – Public Information Office
AST Emergency Rule Comments
601 57th Street SE
Charleston, WV 25304

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