Governor’s proposed water bill is a good start, but not nearly good enough

Our Water WV has gotten an advance copy of Gov. Tomblin’s legislative proposal designed to prevent another disaster like the one the Kanawha Valley is living through right now.  Here is a link to that bill, which will probably be introduced in the WV Legislature today.  We will provide an updated link and bill number when the bill is officially introduced.

The bill creates a whole new section of the WV Code covering just above ground storage tanks that contain specific kinds of chemicals:

“Regulated material” means each substance having a health hazard of two, three or four, as set forth on the material safety data sheet (MSDS) applicable to each such substance, or any other substance as determined by the National Fire Protection Association or the secretary.

All other liquids, storage facilities and tanks connected with any kind of oil and gas extraction, including materials used in “stimulation,” or any coal industry activities are specifically excluded from the Governor’s proposed “WV Water Source Protection Act.”

As well as imposing new fees on the chemical storage industry to fund expanded WV DEP administrative and emergency response duties, the proposed bill imposes new reporting requirements on all public water systems in WV.  While this reporting is sorely needed, under-funded municipal water systems and local publicly owned public service districts will see their costs rise as a result.  And, of course, under WV law, all of these new reporting costs for both public and private water companies can be passed on directly to customers.  So water rates will rise for everyone who has city water.

The existing text of the Governor’s proposals shows just how bad the current situation is.  His bill is a bare minimum effort that exposes what isn’t in WV law now.  It is better than any bills currently moving through the Legislature, including Senate Bill 373.

There are three big problems with Gov. Tomblin’s proposed legislation:

1. The Governor’s bill does provide for the creation of two new special revenue funds, financed by fees on the covered chemical storage companies.  One fund would cover the WV DEP’s costs for managing new reporting and enforcement duties.  The other fund would be set aside for emergency and enforcement response to leaks.  Inspection responsibility is left to tank owners who must have certified engineers file annual reports on the condition of tanks.  All of these features are good, because they impose the basic costs for the new requirements directly on the industry that creates the danger.  Given WV DEP’s past failures to enforce fee payments, and the Legislature’s failure to insure fees are set that really cover costs, this fee structure may still result in declining DEP ability to administer and enforce the new law and regulations as years pass.
2. As with all WV legislation, this proposed law authorizes the WV DEP to create new regulations to enforce the law.  The law gives the DEP Secretary the authority to promulgate both emergency and legislative regulations that will actually determine what happens under the new act.  The Secretary can issue emergency rules fairly quickly, and with little oversight from the Legislature.  Legislative rules must be submitted to the relevant committees at the Legislature for final approval before they take effect.  It is safe to say that the entire rules approval process created in this proposed law will take at least a year.  But that isn’t the biggest problem.  The rules process usually gets little public and media attention.  Because the rules determine what will actually happen, chemical industry lobbyists, as well as lobbyists from the coal, water and gas industries, will be working out of public view to shape the rules in their favor.
3. This bill is narrowly focused on large storage tanks and “areas of concern” around public water intakes.  It addresses no other threats to private and public water sources from which West Virginians get their drinking water, from no other industries.  The Governor’s narrow focus on chemical storage tanks and only public water sources is not nearly good enough to protect the water West Virginians drink.

So it appears that Governor Tomblin is not serious about protecting the water that West Virginians drink.  This bill is a start.  But it is also a bill that closes the barn door after the horse is already gone.  A leader’s job is to lead.  That means looking ahead to the future at all possible threats.

Leadership on water protection is ultimately in our hands, not the politicians’.  Once the Governor’s bill is introduced, we need to watch the bill’s progress closely, push for amendments to expand its scope and insure its enforcement, and apply pressure every step of the way on the legislators and committees.  Then - we have to follow closely the regulations proposed by DEP Sec. Randy Huffman that wind their way through lobbyists and industry-pet legislators in the legislative rules process.

Only when we have done our jobs as citizens will we know that the situation has been fixed.