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.

10 Comments

  1. I appreciate your fast response to the governor’s bill, I have not had the opportunity to even read it yet but what you have stated as challenges to our citizens in the way of making the bill do more and the obvious problems with our regulatory agency is spot on and typical of what bills routinely come through the process. Bills are designed to protect certain monetary interests, campaign contributors, and punish those who don’t have the deep pockets necessary to compete in this unsavory dance. As a registered lobbyist working for the solar industry and Mountain View Solar in Berkeley Springs I find myself being drawn back in to clean water issues almost like a magnet for without clean water we don’t have much thirst left over for solar initiatives. Berkeley Springs is famous for our “healing waters” and I lug up to 15 gallons from the spring every monday morning now since this episode has unfolded, I will continue in this pursuit until further notice.

  2. Danny Chiotos says:

    I don’t have too much to say here, I’m just posting to THANK YOU and this website for the breakdown of this bill. Demystifying the legal language of bills and posting it in language that’s actually readable is such a needed thing. So, I’ll do my best to share this information, but thank you for posting this!

  3. Kay Smith says:

    I just talked to “someone” from WV American Water. I ask about test results in my area showing that our holding tank and fire hydrants had been flushed. Her reply was that they were NOT required to show us any results. She wouldn’t even tell me if it has indeed been done in my area. Basically, since she said that the “Ban” had been lifted and that we should feel safe drinking and using our water. They also will not supply a tank to put my chemical water in when I do decided to flush. Do they not understand “long term” complications in our and and children’s health?

  4. PJ Doyle says:

    Great work demystifying the political mumbo jumbo for the masses!!

    I think this is the biggest problem with getting the average citizen involved in the political fights. You have explained and interpreted it into a language we can all understand.

    Please share your knowledge, expertise, and calls to action with the “Friends of Water” community on Facebook as you follow the politics on this issue.

    We, the citizens really need a good translator. I think you are it.

    Thank you!

    • Bill Howley says:

      PJ, we are all working on Our Water and the blog as volunteers. If you want our posts shared on Friends of Water, please do it yourself. We hope to have automatic sharing set up on the site soon, but until then, please help us spread the word any way you can. Our main mission is to educate people so they can act. Sharing our posts is a small way you can act to help us in our mission.

  5. […] discussed previously (here and here), both Senator Unger and the Governor have proposed legislation targeted to regulation of […]

  6. […] Governor’s bill, which I discussed earlier here, was introduced on Wednesday.  It is House Bill 4258.  The bill as also introduced in the Senate […]

  7. […] have already posted on the limitations of these regulations, which focus narrowly on aboveground storage tanks (with many exemptions); don’t provide […]

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