Final summary of SB 373
We posted a lot about SB 373 over the past several weeks, as it made its way through various committees and numerous amendments. Here is the most recent version of the bill we can find; this is the version passed by the House last Thursday, but before the Marcum amendment was removed by the Senate. (Note that changes to existing code made by the bill are marked with underlining or strike-throughs.)
The bill contains a lot of provisions that community groups fought hard for, and it is far better than the narrow bill originally proposed by Governor Tomblin after his “stakeholder” meeting with industry lobbyists. And public outcry and advocacy forced the Tomblin administration to take stances that they did not initially support, with Governor Tomblin ultimately praising the legislation for its medical monitoring, water utility early warning monitoring, and annual tank inspection provisions — provisions which appeared nowhere in the Governor’s original bill.
Here is a run down of what is in SB 373:
- A new regulatory regime for aboveground storage tanks that requires (among other things) a leak detection system, a spill prevention response plan, and annual inspections. The DEP may assess fees to cover the cost of implementing and enforcing these regulations.
- An exemption for tanks holding less than 1320 gallons and for tanks that mix or manufacture chemicals, rather than simply storing them.
- An exemption for tanks that “are currently regulated under standards which meet or exceed the protective standards and requirements set forth” in SB 373, which includes certain natural gas facilities, surface impoundments, and other facilities. The DEP has the discretion to exempt additional facilities that are already subject to certain state or federal standards.
- A requirement that any storage tank larger than 1320 gallons and located in the zone of critical concern of a drinking water intake must hold a site-specific individual NPDES Clean Water Act permit, rather than a general permit.
- A requirement that all public water utilities in the state that rely on surface water complete a source water protection plan by July 1, 2016. “Every effort shall be made to inform and engage the public, local governments, local emergency planners, local health departments and affected residents at all levels of the development of the protection plan.” The plan must also include an analysis of the feasibility of a secondary intake, additional water storage, or building interconnections with another utility system. And it must include an analysis of the feasibility of implementing an early warning monitoring system.
- Confidentiality provisions that prevent the public from learning the exact location of potential contaminant sources under the Freedom of Information Act.
- Increased fines for public water systems that violate DHHR’s regulations on water quality
- Establishment of a Public Water Supply Study Commission to report back to the legislature regarding, among other things, a review of the Chemical Safety Board’s recommendations and to provide recommendations on how to “improve the infrastructure of existing public water systems, to provide safe and reliable sources of supplies, and to pursue other measures designed to protect the integrity of public water service.” The Commission will have 12 members, 4 appointed by the Governor (including a water systems engineer, a hydrologist, an environmental toxicologist, and a citizen representative) and 8 representing various agencies (including the DEP, Bureau of Public Health, Division of Homeland Security, the Public Service Commission and others). While this is a far cry from actually implementing the CSB’s recommendations, it is a step in the right direction.
- A requirement that all utilities serving at least 100,000 customers (WV American Water is the only utility that falls into this category) to install the same monitoring system as the Ohio River Valley Water Sanitation Commission, unless WV American Water determines that it is not feasible to implement. The rest of the state’s water utilities are required to provide a monitoring system for the most important potential contaminants in their water supply, unless such a system is not feasible to implement.
- A requirement that the Bureau of Public Health collect information from health providers about patients treated for symptoms and illnesses resulting from the chemical spill. The bill does not provide funding for long-term medical monitoring but does require the Bureau of Public Health to pursue federal funding for such a study.
One thing that didn’t make it into the bill was the citizen suit amendment, which would have given citizens the ability to sue state agencies that were not enforcing provisions of the aboveground storage tank portion of the act. As Ken Ward points out, this is a fairly common occurrence. (Update, 3/12/14: It was just pointed out to me that the bill does still contain citizen suit provisions with regard to any tank regulated by a general or site-specific NPDES Clean Water Act permit. The bill states that “the secondary containment, spill prevention, leak detection and control requirements, inspection requirements, reporting requirements and routine integrity testing requirements” will be required conditions of the tank’s NPDES permit, which means that the Clean Water Act’s existing citizen suit provisions will apply to those tanks).
As we have stated repeatedly here on Our Water, the water crisis was a result of systemic regulatory failure and a culture of under-regulation that has pervaded West Virginia state government for decades. Passing one bill is but a small step towards addressing that fundamental problem. If we are to really change the way regulations are enforced in West Virginia, citizen engagement cannot end with the end of the legislative session.