Governor and legislative leaders begin SB 373 roll back

Last Tuesday, Ken Ward described the attack being mounted on the early phases of the implementation of SB 373, the above ground storage tank and source water protection bill passed unanimously by the WV Legislature in its 2014 session.  That attack seems to be coming primarily from Senate President Jeff Kessler and House Speaker Tim Miley.

Ken provided more details of the controversy in his post on Sustained Outrage, his blog at the Charleston Gazette.  He quotes from the joint statement from Mr. Kessler and Mr. Miley:

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.

Mr. Ward then goes on to explain how the call for a special legislative session to delay implementation of SB 373 is being portrayed in WV’s industry-friendly media outlets:

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.

And he concludes:

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 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.

So as Ken says, there really isn’t a big problem here.

In his August 26 Gazette article linked above, Ward indicates that Gov. Tomblin and DEP Secretary Randy Huffman are also waffling on the SB 373 roll back:

After the meetings, Stadelman said that a special session “is one possibility” but that the administration is considering other options to address concerns about the deadline and that “no decision has been made.” Stadelman said the governor is unlikely to call a special session unless legislative leaders agree to the agenda beforehand, and that Tomblin would be supportive only of “very narrow” changes, not major modifications in the new law.

Earlier Tuesday, Huffman said he was personally supportive of a special session that would push back the Jan. 1 deadline for tank owners and operators to have tanks inspected and certified and have reports of those certifications filed with the Department of Environmental Protection.

Huffman noted that his agency has yet to make public a draft of the proposed standards for safety and integrity of chemical storage tanks, making it difficult for tank owners and operators to know what standards their tanks have to meet. Huffman said pushing back the Jan. 1 deadline would give more time for lawmakers to consider other industry concerns about the legislation during the 2015 regular session.

DEP staffers have been working hard to complete a proposed rule, Huffman said, but are also trying to build in additional time for more public review and comment before a final version is written.

“From a regulator’s standpoint, it’s not a practical deadline,” Huffman said of the Jan. 1 certification mandate. “The politics of it aside, it’s a logistical issue.”

- See more at: http://www.wvgazette.com/article/20140826/GZ01/140829430#sthash.Du967jLG.dpuf

After the meetings, Stadelman said that a special session “is one possibility” but that the administration is considering other options to address concerns about the deadline and that “no decision has been made.” Stadelman said the governor is unlikely to call a special session unless legislative leaders agree to the agenda beforehand, and that Tomblin would be supportive only of “very narrow” changes, not major modifications in the new law.

Earlier Tuesday, Huffman said he was personally supportive of a special session that would push back the Jan. 1 deadline for tank owners and operators to have tanks inspected and certified and have reports of those certifications filed with the Department of Environmental Protection.

Huffman noted that his agency has yet to make public a draft of the proposed standards for safety and integrity of chemical storage tanks, making it difficult for tank owners and operators to know what standards their tanks have to meet. Huffman said pushing back the Jan. 1 deadline would give more time for lawmakers to consider other industry concerns about the legislation during the 2015 regular session.

DEP staffers have been working hard to complete a proposed rule, Huffman said, but are also trying to build in additional time for more public review and comment before a final version is written.

“From a regulator’s standpoint, it’s not a practical deadline,” Huffman said of the Jan. 1 certification mandate. “The politics of it aside, it’s a logistical issue.”

Huffman’s willingness to delay implementation to allow industry to make changes to the law in the 2015 Legislative session is a clear indication that Gov. Tomblin and Sec. Huffman are willing to entertain many more changes then just delaying tank registration.  It looks like a clear invitation to lobbyists from the chemical, coal, oil and gas industries to rewrite last year’s law.

Business owners in Charleston are not happy about this new threat to protection of our state’s water.  WV Public Broadcasting reported that leaders of the WV Sustainable Business Council oppose a special session:

Co-founder of the West Virginia Sustainable Business Council Nancy Ward says pushing back the deadline won’t help her business regain the customer trust it lost during the water crisis.

“Weakening the bill or pushing back deadlines [won’t help],” Ward said.

Jeni Burns, Ward’s Sustainable Business Council co-founder, said at Friday’s meeting, Huffman presented his department’s proposal for rules to regulate above ground tanks.

The system includes three levels of classification with regulations for each, but representatives of the DEP didn’t respond to requests for a more detailed explanation.

The group is working to avoid a special session by fixing the unintended consequences of the legislation and addressing the concerns of interested parties through rulemaking.

“If we go into special session, we kind of leave it up in the air for whatever to happen,” Burns said, “but if we can sit down around the table and look at the best interest of everybody they represent and try to come to a solution, I think that’s better in the long run for West Virginians.”

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