Responding to the Freedom Industries chemical spill
Industry comments to the Department of Environmental Protection regarding their S.B. 373 rules are available on the DEP’s website. Thanks to the DEP’s unprecedented transparent rule-making process, we can actually see what industry is saying, an advantage we didn’t have when Governor Tomblin convened his industry “stakeholder” meeting to help him draft the original SB 373.
Although the House Judiciary Committee eliminated most of Governor Tomblin’s original exemptions, they created a provision for these exemptions to sneak back in via the rule-making process by giving DEP the power to exempt additional categories of tanks from the permitting process if they are covered by existing regulations that are at least as stringent as SB 373. As we predicted, industry is now rushing to have their laundry list of exemptions reinstated via the DEP’s regulatory process.
Once again, the natural gas industry is arguing that tanks used in oil and natural gas operations should be exempt; the coal industry argues that tanks regulated under the Surface Mining Control and Reclamation Act should be exempt; the Oil Marketers and Grocers Association (OMEGA) argues that heating oil tanks should be exempt; and electric utility FirstEnergy argues that electrical equipment (specifically transformers containing dielectric mineral oil) should be exempt.
In testifying to the House Judiciary Committee about the original long list of exemptions in the bill, DEP officials opposed these sorts of exemptions. They noted that existing regulations for tanks in the coal and natural gas industry don’t require testing the structural integrity of chemical storage tanks, as required by SB 373. It will be interesting to see whether DEP’s draft rules, due to be released in a couple months, remain consistent with this position.
The industry comments do provide an important reminder that laws and regulations are only useful if they are enforced. Several industry comments relied heavily on existing regulations under the Groundwater Protection Act as grounds for exemption from SB 373. The Coal Association argues, “Given the existing regulatory program [Groundwater Protection Act], dedicated inspector force, and the already mandated inspections, we believe that ASTs in the coal industry should be exempt from the permitting and other requirements of the new Act,” and goes on to state that “[h]istorically, the monitoring and inspection of ASTs at mining operations has been addressed through implementation of groundwater protection plans (GPPs) which are required by West Virginia’s GPA (Groundwater Protection Act).” Consol, a coal and natural gas company, goes even further and recommends that all “ASTs covered by GPPs be exempted from additional permitting requirements.”
Of course, Freedom Industries was supposed to be regulated under the Groundwater Protection Act. They were required to have a Groundwater Protection Plan in place. But, they apparently never bothered to write one, and DEP never bothered to ask for one.