Responding to the Freedom Industries chemical spill
Now that the legislature has passed SB 373, it’s up to the DEP to make the rules to implement the bill. These rules must then be approved by the legislature in next year’s session. The agency rule-making process typically goes on outside of the public eye, and it is where industry will have another chance to shape the rules in their favor — pushing for more exemptions, lower fees, and weaker oversight.
The legislature left many of the details of the regulatory program for aboveground storage tanks up to the DEP to establish via a rule-making process. The bill states that this regulatory program must include “performance standards for design, construction, installation, maintenance, corrosion detection and maintenance, release detection and prevention and secondary containment”; “requirements for maintaining a leak detection system”; “requirements for early detection of releases and immediate reporting of releases”; “requirements for developing a corrective action plan to expeditiously respond to any releases”; etc – but what those standards and requirements specifically should be is up to the DEP. The rules must lay out the permit application process and provide a procedure for dealing with permit violations, including how penalties are assessed (the bill sets maximum penalty amounts, but not minimums). The DEP’s rules will also set the fees assessed on aboveground storage tanks to cover the cost of enforcing the bill.
The bill gives the DEP authority to propose additional categories of tanks to exempt from the regulation, as long as the DEP determines that such tanks are already regulated by another equally stringent state or federal program. This might be a chance for the long list of exclusions originally proposed by Governor Tomblin to sneak back in through the rules process. As Evan Hansen of Downstream Strategies told the Charleston Gazette a couple days ago,
The DEP is going to be looking at the exclusions that were taken out of the act and I believe they are going to be open to adding exclusions back in if it can be justified through the rulemaking process that those sites are already subject to regulations that are at least as stringent … I’m sure that some of the industries that want to be excluded will be making their cases.
Whether or not the DEP writes strong rules – and then enforces them – will determine whether SB 373 lives up to its promise. The Freedom spill revealed failures to properly enforce the Clean Water Act, the Safe Drinking Water Act, and the Emergency Preparedness and Community Right to Know Act. Adding a new regulation to the mix will help – but only to the extent that it is actually implemented and enforced.