The 2014 regular session of the West Virginia Legislature began on Wednesday, Jan. 8. Less than 24 hours later, an estimated 10,000 gallons of the chemical MCHM leaked from an aging industrial tank into the Elk River, fouling the water supply for 300,000 West Virginians.

Gov. Tomblin and lawmakers immediately went to work, drafting legislation aimed at preventing a similar disaster by, among other things, regulating above ground storage tanks, like the ones that leaked at Freedom Industries.

The Senate rushed through a bill early in the session. The House put off serious work on the bill until late in the session. To their credit, however, when delegates took up SB 373, they really worked it.

Last Sunday, the House Judiciary Committee spent nearly 10 hours on the bill, and didn’t finish until after 1 a.m. Monday.  Wednesday night, the full House debated the bill and a variety of amendments for four hours before passing it unanimously.

Now, state senators are studying the bill’s changes. The two bodies will have to come to an agreement on the language before the end of the regular session at midnight Saturday.

It’s hard to know the full impact of the legislation without going through the lengthy bill line by line and interpreting all the provisions.  However House leaders, as well as DEP Secretary Randy Huffman, believe the bill, as revised in the House, goes a long way toward preventing another Freedom Industries fiasco.

Key provisions include:

–A requirement that above ground storage tanks be permitted, regulated and inspected annually.  Tanks near water plant intakes and source water would have to be inspected by the DEP. Tank inspections outside critical areas could be done by private engineers.

–A stipulation that public water utilities that use surface water identify potential sources of contamination. Those same utilities would have to develop a source water protection program and emergency plans in case of a spill.

There are, of course, still some sticking points.

For example, an amendment approved by the House Wednesday night appears to exclude storage tank owners who already have a National Pollutant Discharge Elimination System (NPDES) permit from paying the fee required in the legislation. Huffman says that could exempt as many as half of all the tanks from the fee, even though they will be permitted and inspected.

Also, the House bill includes a requirement that West Virginia American Water Company install a warning system in Charleston to detect contaminants in the source water, like the company already has in Huntington. However, WVAWC contends the amendment requires a real-time monitoring system for just about anything that can be in the water, which the company says “no water system anywhere in the country could comply with today.”

It’s too early to know whether lawmakers have gotten it right. Comprehensive and complicated legislation can only be tinkered with so much before it is put into practice to see whether it works as intended.

However, lawmakers clearly have heard the voices of outraged West Virginians who expect their drinking water should not be contaminated by some fly-by-night operation, and they are trying to ensure it does not happen again.

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  • Mark

    Too little, too late. A weak bill.

  • Mason County School

    there's a Chemical Plant directly across from an elementary school in Mason County! trusting the company to be safe? wonder if they are inspected for safety? and accidents happen!

  • All of our lives...

    I have lived along the Kanawha River -- couldn't eat the fish -- when I was 10 yrs old. I now live along the Ohio River -- had to take a medical lab test for the C8 that was in our water system! So we are to believe NEW regulations will stop the chemical companies from using our rivers as a sewer dump? Sorry, Hop, I believe the people will continue to drink the "kool-aid" with the tap water and TRUST the EPA? IF fracking for gas contaminates the state's water -- who will be listening?

  • Mason County Contrarian

    Mr. Kercheval, I hope that the Legislature truly listened and theirs is not a case of "selective hearing". Only if, or when, a similar crisis occurs will the public truly know.

  • Shadow

    Hoppy, the impression that I get on this Bill is that it was crafted by lawyers without any technical support from the tank manufacturers, servicers, or users. It would be nice to know who was questioned on the requirements for the Bill and their qualifications. Without broad involvement, it is "feel good" legislation.

  • Reminder

    I drive by these tanks a couple of times a week and I see no dismanting taking place. A reminder as Mar. 15th. is closing in.
    This was a headline on Jan. 25th.

    "Gov. Tomblin orders Freedom Industries to dismantle, remove, properly dispose of above ground storage tanks by March 15, 2014."
    Posted: Jan 25, 2014 3:31 PM EST Updated: Feb 08, 2014 3:31 PM EST

  • Walsingham

    This was a Freedom Industries fiasco, exacerbated by an even greater West Virginia American Water Company fiasco. WVAWC continues to play the victim, but could have made another set of decisions that could have saved the state and 300,000 people a great deal of money and trouble. But profits, rather than people, drove their reaction. Now, WVAWC is against any substantive change that would avoid a similar fiasco in the future. And... they want to raise their prices anyway!

    • Wowbagger

      The public via West Virginia's Public Service Commission has some culpability too!

      ie: We don't want no stinking rate increase to fund a second intake.

  • Jason412

    I'm not sure a company who was essentially ran by the same people, despite the change of ownership in January, for 22 years is appropriately called a "fly by night" operation. The tanks were known to be in need of repairs before the change of ownership.

    • The bookman

      Fly by night

      Function: adjective
      Date: 1914
      1 : given to making a quick profit usually by shady or irresponsible acts 2 : transitory, passing

      I think the definition under 1. applies perfectly in regard to Freedom. The 2nd definition may be your angle.

      Either way, the jury is still out on whether this bill will come out of the session as it is now proposed, and even then it will be several years before all the bugs get worked out in this undertaking. I think that was Huffman's reasoning in not amending the bill to death with specifics. Pass a broad based bill that has zero exclusions and allow the regulatory agencies to place specificity through the rules process. Bogging down the law makes it difficult to make changes where necessary. Just like education!

      • Hop'sHip

        Bookie: Speaking of flying by night, do you ever sleep? I've been wondering what type of business you operate that makes you available to respond to Hoppy's commentary 24/7. I originally thought you had a bookmaking operation (if that is right, how many points are you giving the Mountaineers tomorrow?), but now I'm thinking meth lab.

        • The bookman

          Just sleep in on Sundays, as it is a day of rest, to 530 am. Children broke my ability to sleep, so it is what it is!

          • Hop'sHip

            We lazy worthless liberal takers will sleep for you. It is the least we can do for one of the few conservatives who hasn't gone completely wacko. Well enough morning stereotyping. I have to go gather my food stamps and head off to Vegas.

        • Wirerowe

          Hops quoting the Bible, " leave my people alone. " repeat after me " constructive constructive". I would think that the spot would be double figures. But probably less since we are at home.

          • Hop'sHip

            Bully? Grandstander? How would you describe the Junior Senator from Texas?....Constructively, of course.

          • Wirerowe

            Now. Don't you feel better. Senator Boxer is a bully, unethical ,wrong and a grandstander. I would say that about her if she worked for Exxon and Don Blankenship at the same time. I still think that Professor Krugman has the look of a crazy man but I guess you would say passionate. Your memory is like a steel trap.

          • Hop'sHip

            constructive constructive. Thanks Wire. I feel better already. Maybe I should employ some DP therapy and add some punctuation. constructive constructive!!!!!!!!!! Now i'm feeling waaay better!!!!!!!! I found your critique on Senator Boxer yesterday interesting. Does she have crazy eyes too?

      • Jason412


        Thanks, I had always thought of it as #2, and it's always nice to learn something by 6am. Using that definition it seems WV has a longer history of fly-by-night operations than I ever imagined.

        I like the bill as it is now, without all the exceptions and putting that responsibility on the individual agencies, although I'd like to to hear some estimates of how much the permitting and inspection of each tank annually will cost. Especially if it passes as is, with as many as half the tanks being exempt from the fee, I would imagine just the inspection process alone would be very costly.

        I haven't heard any estimates of the number of above ground tanks in the state, but I'm sure it's a substantial figure.

        • The bookman

          Jason and Wire,

          I believe the exclusions are only related to the fee. Only tanks within the critical concern zone would require a DEP inspection. Outside that zone, all costs of inspection would be the responsibility of the owner of the tank. It seems a reasonable solution to the fee/ inspection cost gap would be to collect a fee for any above ground tank located inside the critical zone regardless of previous npdes status.

          Two benefits immediately come to mind. First the cost to the state for inspection would be placed on those tanks being inspected by DEP. Secondly, industry would hesitate to place tanks inside the zone in an effort to avoid the added cost, reducing the risk of contamination.

          • Wirerowe

            As always you are a couple of layers deeper in than the rest of us. The clarification on the inspections inside and outside of the critical zone is much appreciated.

        • Wirerowe

          The number of tanks actually covered will depend on the exclusions but I have heard thousands not hundreds, I would hope the waiver of the fees for those that already had an Npdes is taken out. These are incremental costs and prior permits are irrelevant. I also think that the cost benefit for medical monitoring precludes public funding . This might be in civil suits but if the only source of funding is through rate payers of WV American water then I am opposed to that. Though I have been critical of Delegates Lane and Poore for grandstanding they both acquitted themselves well on Hoppy yesterday. They came across as knowledgable, reasonable and realistic. Looking from the outside it seems to me that the legislature worked very hard, put a lot of thought into this bill and came up with a good bill that may have to be tweaked based on new information or unintended consequences.

          • Jason412


            I agree with your entire post, but especially the part about the fees. I was thinking the number of tanks will be in the thousands as well, and half being exempt sounds like a lot of missed money. I'm also curious how many man hours it takes to inspect that many tanks.

          • The bookman

            I agree wire on Poore and Lane. Both did a great job of improving my impression of them as they seemed more concerned with the success of the process than self promotion.