DEP plan would weaken clean water protections in aboveground storage tank rule

The West Virginia Department of Environmental Protection made the moves Monday by advancing a proposed rule that would weaken provisions designed to protect drinking water sources against leaks of nearby aboveground storage tanks.

The proposed rule changes are in line with, but in some cases, go beyond a law the Legislature passed in March in Senate Bill 641 — gas and oil industry-backed legislation that loosened regulations for some aboveground storage tanks containing potentially environmentally dangerous brine water produced in connection with hydrocarbon storage or production activities nearest to public water intakes.

The DEP on Monday filed a proposed legislative rule that has drawn objections from clean water advocates by threatening to roll back safeguards aimed at snuffing out safety issues, avoiding contamination, and protecting the rivers and streams from which communities derive drinking water.

“West Virginians deserve strong protections for our drinking water,� the West Virginia Rivers Coalition, a statewide water restoration nonprofit, said in an action alert email it sent to supporters to encourage comments to the DEP supporting a stronger rule Monday, the last day of a 30-day comment period on the proposal.

But the DEP set aside some suggestions made by the Rivers Coalition to strengthen the proposed rule in comments on it had collected and filed Monday with the West Virginia Secretary of State’s Office.

Proposed legislative rules must go through the Legislative Rule-Making Review Committee and, if advanced, must be introduced during the next regular legislative session by a member of the Legislature.

In its response to comments document, the DEP noted a comment from the Gas & Oil Association of West Virginia and the West Virginia Manufacturers Association in which the industry groups said they “appreciate the Department of Environmental Protection’s willingness to revise the rule, asserting that there were “few changes to the technical portions of the rule, pertaining to how tanks and secondary containment are determined to be safe.�

“This is consistent with industry’s position that its members are committed to complying with the technical aspects of the rule but believe there is a need to reform and clarify certain aspects of the procedures that implement those standards,� the groups said.

The state adopted aboveground storage tank regulations in 2014 in response to that January’s Elk River chemical leak that contaminated the drinking water supply of 300,000 people, causing schools and businesses to close and hundreds of people experiencing skin, eye and respiratory tract irritation to seek treatment at local hospital emergency rooms.

Data the Gazette-Mail obtained from the West Virginia Department of Environmental Protection via a Freedom of Information Act request earlier this year indicated routine industry violations of the 2014 Aboveground Storage Tank Act requiring registration and regulation of tanks containing oil, gas and other liquid mixtures that could wreak havoc on public water supplies.

There were more than 2,300 violations resulting from inspections conducted under the Aboveground Storage Tank Act from the start of 2021 through Friday, according to DEP data — an average of over 1.2 violations a day.

The violations stemming from compliance inspections were charged mainly to fossil fuel companies like ÂÒÂ×ÄÚÉä-based oil and gas producer Pillar Energy and Diversified Production LLC, a subsidiary of Alabama-headquartered Diversified Energy Company PLC, long one of the nation’s largest gas and oil well owners.

In 2024, West Virginia had the nation’s highest percentage of public water systems with health-based Safe Drinking Water Act violations — 29.2%, according to a Gazette-Mail analysis of U.S. Environmental Protection Agency data.

West Virginia’s percentage of public water systems with any kind of violations has climbed sharply from 32.1% in 2015 to 79.1% in 2024.

West Virginia had the nation’s sixth-highest percentage of public water systems with acute health-based violations in 2024 — 2.1% (18 systems total) — over seven times more than the percentages in neighboring Maryland and Ohio and more than double that of fellow neighbor Kentucky.

Health-based violations represent the exceedance of maximum contaminant or residual disinfectant levels. Acute health-based violations represent significant short-term health risks that can cause immediate illness.

Rule proposal allows compliance period extension

As mandated by SB 641, the proposed rule would establish a nine-month exemption for aboveground storage tanks that become regulated tanks under the rule due to the creation or amendment of a zone of critical or peripheral concern — areas nearest public water intakes.

The state defines zones of critical concern as consisting of a five-hour water-travel time in streams to an intake, with a width of 1,000 feet horizontally from each bank of the principal stream. Zones of peripheral concern covering public surface water supply sources and groundwater supply sources influenced by public surface water within an additional five-hour water travel time in streams beyond a zone of critical concern, creating a protection zone of 10 hours above the water intake.

But the DEP’s proposed rule goes beyond SB 641 to allow the DEP secretary to extend the nine-month compliance period upon written request by the tank owner or operator with an explanation of the reasons for the extension and the deadline by which compliance must be achieved for the tank(s).

The Rivers Coalition “strongly object[ed]� to that proposed change, holding that “[t]here is no allowance for such discretion to be afforded� to the DEP.

But the DEP responded in its response to comments by saying that the “nature of legislative rule making involves supplemental details that expand on the letter of the statute from which the legislative rule receives the authority to exist.�

The DEP noted that the rule would go to the Legislative Rule-Making Review Committee for review, and then if it advances, before the entire Legislature for approval, meaning the DEP simply was seeking legislative authority through the planned rule change.

In another change, the proposed rule would allow the DEP secretary to waive a requirement that single-walled piping, dispenser and ancillary equipment up to the first point of isolation require secondary containment, changing a definition of double-walled aboveground storage tanks serving as secondary containment from those in which substance transfer and interstitial space are “continuously� monitored to those that are merely “appropriately� monitored.

The Rivers Coalition contended that changes proposed in this rule section conflict with another section that requires owners and operators to ensure that all regulated aboveground storage tanks have a secondary containment system that collects and contains an unintentional release from an aboveground storage tank and its ancillary equipment up to the first point of isolation.

The DEP secretary has no discretion in the subsection of code to be changed by the planned rule to waive the targeted secondary containment requirement, the Rivers Coalition argued.

“Secondary containment needs to be required for all areas up to the first point of isolation in the event of a failure outside of the double walled tank but prior to the first point of isolation,� the Rivers Coalition stated.

The DEP responded by saying that the intent of its proposed change was to account for some smaller runs of pipe associated with double walled aboveground storage tanks possibly not requiring additional secondary containment.

In another proposed change, the DEP would allow its secretary to approve an alternative inspection schedule submitted by the permittee.

The Rivers Coalition called for that allowance to be removed from the code section, saying the DEP secretary has no discretion to approve an alternative plan. The group pointed to another code passage that requires owners or operators to ensure that regulated aboveground storage tanks are monitored for leak detection at least once monthly, using any method capable of detecting a release from any tank part.

The DEP asserted that its leak detection requirements in the code passage requiring the monthly leak detection monitoring are “unaffected� by its proposal and that the insertion of its proposed provision to allow an alternative inspection schedule “would not undermine� the code section in which it mandates that regulated tanks are monitored for leak detection at least once monthly.

The DEP-proposed rule would reduce the time frame for a release or leak investigation and confirmation to occur for "level 2" aboveground storage tanks from 14 to seven days. It also would reduce the time frame for a level 2 tank to be evaluated by a professional engineer or American Petroleum Institute- or Steel Tank Institute-certified inspector to certify the tank as fit or not fit for service after damage has occurred from 30 to 10 days.

Level 1 tanks have had more stringent inspection and evaluation requirements for secondary containment, damaged tanks and suspected and threatened release investigation reporting to the DEP than level 2 tanks within a zone of peripheral concern.

The Legislative Rule-Making Review Committee is slated to meet Aug. 12-13 during the Legislature’s next interim legislative session. No agenda had been posted for the committee meetings as of Wednesday afternoon.

Not mom-and-pops

SB 641 proponents, including the bill’s lead sponsor, Senate Energy, Industry and Mining Committee Chair Chris Rose, R-Monongalia, have claimed the bill chiefly would benefit small gas tank operators — what Rose called “your mom-and-pops.�

But a March 2025 Gazette-Mail review found that a proposal similar to SB 641 proposed then would roll back regulations for tanks in zones of critical concern that were operated by some of the region’s largest industrial companies and averaged over one release per month.

The tanks in such zones had a combined capacity of more than 2.75 million gallons of brine, oil, gas, crude oil and other hydrocarbon mixtures. They had 41 releases of crude oil, petroleum, wastewater and other substances from January 2022 through January 2025, per DEP data obtained via a FOIA request.

Of the 41 releases from tanks to be exempted under last year’s failed Senate Bill 592, 10 were from subsidiaries of Diversified Energy Company, the nation’s largest gas and oil well owner, with two more from Columbia Gas Transmission Corp., a subsidiary of TC Energy, a Canada-based energy gas pipeline giant.

Of 550 oil and gas tanks that would have been exempted under SB 592, 63 were owned by a Diversified subsidiary, per DEP data — more than any other company. Nearly all the tanks were owned by regional oil and gas companies rather than individuals or estates.