Hundreds of gas and oil tanks at risk of weaker oversight if WV Senate bill passes

SB 592 is designed to benefit the oil and gas industry by reducing inspection costs for tank operators. The bill would enact an exemption from required evaluations and certifications by registered professional engineers or other approved inspectors for gas and oil tanks nearest to public water intakes. The requirements were set in the 2014 Aboveground Storage Tank Act. SB 592’s type of exemption has gained traction before, passing the House of Delegates in 2021 and 2022 before stalling in the Senate.

But SB 592 has renewed concern about potential drinking water contamination from tank leaks of pollutants harmful to human health near public water intakes.

Rollbacks SB 592 would implement have been opposed in past sessions not only by environmentalists but the West Virginia Rural Water Association, West Virginia American Water and the Morgantown Utility Board.

“The latest attempt to further erode the protections afforded by the [Aboveground Storage Tank] Act is a direct threat to safe drinking water,� Morgantown Utility Board spokesman Chris Dale said in an email Tuesday.

Rollbacks on table with SB 592

SB 592 would exempt tanks used for hydrocarbon production, transportation or storage and tanks used for roadway snow and ice pretreatment in “zones of critical concern� from inspection and certification by a third party. Under SB 592, state requirements for these tanks would be narrowed to allow self-inspection, self-certification and reporting to the DEP by their owners or operators at least once per year.

The state defines zones of critical concern — the areas nearest to water intakes — 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.

Tanks in zones of critical concern are inspected once every three years by West Virginia Department of Environmental Protection inspectors, with self-inspection covering the other two out of every three years.

The Aboveground Storage Tank Act has applied to tanks with a capacity up to 210 barrels — 8,820 gallons — of crude oil, brine water or natural gas condensate.

SB 592 would bar the DEP from requiring inspection of secondary containment or tanks more frequently than once per month. The current requirement is that secondary containment inspections be performed once every two weeks.

The state defines secondary containment in part as a safeguard applied to aboveground storage tanks to prevent the discharge into state waters of the entire capacity of the largest single tank.

DEP Deputy Secretary Scott Mandirola noted to the Energy, Industry and Mining Committee that containment structures only have to be designed and built to contain fluid that escapes from a tank for 72 hours.

“(SB 592) could cause particular problems with this groundwater if it’s not contained well,� Mandirola said after observing releases into secondary containment could sit long past the 72-hour requirement under SB 592’s measure to cut back secondary containment inspections to once per month.

What a DEP leader called ‘troubling’

Mandirola told the committee that while many tanks contemplated by SB 592 contain brine water, many others contain oil and constituents of petroleum products that include carcinogens such as benzene and other toxic chemicals. Those include the coal-processing chemical that contaminated the region’s drinking water supply in 2014, 4-methylcychohexanemethanol (MCHM), via a leak from an aboveground storage tank at a Freedom Industries chemical storage and distribution facility in ÂÒÂ×ÄÚÉä.

Mandirola said it was “troubling� for the DEP that there’s no “federal counterpart� to SB 592’s definition of a “leak� in the federal Spill Prevention, Control and Countermeasure rule that state law is based on requiring facilities to develop, maintain, and implement an oil spill prevention plan. Mandirola called the SB 592’s “leak� definition “fabricated.�

SB 592 defines a leak as “any spilling, emitting, discharging, escaping or leaching of fluids from 181 an aboveground storage tank into secondary containment.�

SB 592 would prohibit the DEP from requiring any regulated tanks to be lifted, moved or otherwise physically altered per a visual leak detection program without a confirmed “release.�

Long history of protections ‘gutted’ since 2014 chemical leak

The Legislature has gradually weakened its oversight of oil and gas tanks since 2014. The exemptions started a year after the Elk River spill, when the Legislature, in 2015, scaled back the Aboveground Storage Tank Act to only require inspection of tanks that contain either 50,000 gallons or more of hazardous material or are located within a zone of critical concern.

In 2017, the Legislature carved out an exemption for tanks outside zones of critical concern.

“[T]he Legislature has gutted the [Aboveground Storage Tank] Act,� Dale said.

Mandirola said SB 592 would exempt 703 tanks that remain within zones of critical concern and that the state currently only regulates 11% of tanks in the state.

Over the last three years, 38% of the releases the DEP is aware of were associated with the 703 tanks that would be exempted under SB 592, Mandirola said.

The lead sponsor of SB 592 is Majority Leader Patrick Martin, R-Lewis.

Advocates want full Senate to ‘just say no’

A 2016 state legislative rule established a registration fee of $40 per tank for all tanks in service prior to July 1, 2015, and $20 per tank for tanks placed into service since then, an operating fee of $201 per tank per year for tanks within zones of critical concern and an annual response fee to be reviewed annually.

Opponents of the Aboveground Storage Tank Act rollback say that’s not too high a price for operators to pay to protect drinking water.

“We hope lawmakers remember the devastating consequences of water contamination,� West Virginia Rivers Coalition deputy director Autumn Crowe said after the committee meeting Monday. “Rolling back these protections undermines the progress made since 2014 and takes us dangerously close to where we started.�

Gas and Oil Association of West Virginia representative Philip Reale told committee members SB 592 was an opportunity to extend relief to tank operators without risking environmental harm.

“If we’re talking about being pro-business and competing, I think this is something that would help the little guy compete here in our state,� Reale said.

SB 592’s opponents, though, view it as the latest in a long line of concessions to industry that risk another drinking water crisis.

“This bill further dilutes the drinking water protections enacted after the 2014 water crisis,� West Virginia Citizens Action Group co-director Gary Zuckett said in an email. “ We’re asking the full Senate to ‘just say no’ to loosening current protections for our precious drinking water.�