House passes SB 373

Update: Ken Ward has great in-depth discussion of the amendments and some of last night’s floor debate over on Coal Tattoo. For those of you who don’t understand the title of Ken’s post, it refers to the old saying in the WV legislature, “fat possums run at night.”
Late last night, the House of Delegates passed SB 373 after several hours of debate. There were many amendments made on the floor, and many that were defeated. Here is an update on some of the issues that we have been following here at Our Water WV:

  • Citizen Enforcement: Mike Manypenny and Meshea Poore’s amendment to allow citizens the right to sue to enforce the law was defeated by a voice vote. The text of the amendment is here. The vote followed a debate between Delegate Manypenny and Delegate Shott (R-Mercer), who argued that the amendment was so expansive that it would allow anyone, anywhere in the world to sue under the law. (Shott’s argument is contrary to all precedent in environmental law, where it is an established principle that only injured parties have standing to sue).
  • The strange exemption introduced by the Judiciary Committee remains. The bill exempts all tanks smaller than 1320 gallons and all tanks used for manufacturing chemicals, as opposed to storing them. Evan Hansen, president of Downstream Strategies, explained in the Gazette that the 1320 gallon exemption came from a misinterpretation of the federal “Spill Prevention, Control and Countermeasure Rule.” State lawmakers were apparently trying to model their bill on that rule, which exempts tank facilities that have a total aggregate volume (of all tanks at the site) less than 1320 – not individual tanks less than that size.
  • We mentioned on Tuesday that the Finance Committee had stripped out a provision that would have required potential contaminant sources in the zone of critical concern of a drinking water intake to obtain site-specific Clean Water Act NPDES permits. This provision was partially re-instated by Delegate Manchin. Now aboveground storage tanks that meet the criteria discussed above must obtain site-specific NPDES permits.
  • An amendment requiring the Bureau of Public Health to implement medical monitoring was passed, although (again) without a specific source of funding to implement.
  • An amendment was passed requiring WV American Water to evaluate an early warning monitoring system for its water intake.
  • Most disturbingly, an amendment sponsored by Delegate Marcum (D-Mingo) passed that eliminates more of the funding for enforcing the bill. The bill passed by Finance already exempts coal mines permitted under the Surface Mining Reclamation and Control Act from paying fees under the bill; Marcum’s amendment additionally exempts some oil and gas industry facilities. We will post more on this amendment as we get more details.

The bill now moves to the Senate. If the Senate decides not to adopt the House version of the bill, a conference committee will be appointed to iron out the differences. That committee must conclude its work by midnight on Saturday, the last day of the session.

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