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Scaled-down storage tank rollback passes WV House

By Ken Ward Jr.

The Charleston Gazette-Mail

CHARLESTON, W.Va. — A scaled-down version of the chemical tank safety law rollback sought by West Virginia’s natural gas industry easily passed the House on Friday.

Delegates voted 94-5 in favor of the rewritten version of House Bill 2811, which exempts an estimated 2,300 tanks used to store brine and other gas industry waste liquids from the Aboveground Storage Tank Act that was passed after the January 2014 Freedom Industries spill that contaminated drinking water for hundreds of thousands of residents in Charleston and surrounding communities.

The bill’s lead sponsor, Delegate Roger Hanshaw, R-Clay, noted, in explaining the bill on the floor, that the exemption does not reduce any of the safety standards or inspection requirements for chemical storage tanks located in the “zone of critical concern” within five hours upstream of drinking water intakes.

“Nothing inside a zone of critical concern is touched by this bill,” said Hanshaw, an attorney with the firm Bowles Rice who sometimes represents the natural gas industry.

The estimated 2,300 tanks that are exempted under the bill are located inside the “zone of peripheral concern,” which is an area between five and 10 hours upstream of a drinking water intake.

Tanks that are exempted have a capacity of 210 barrels, which is 8,850 gallons, and contain “brine water or other fluids produced in connection with hydrocarbon production activities.” The bill also contains a new exemption for tanks with a capacity of 10,000 gallons or less that are used for roadway treatment salts, as long as those tanks are not located within a zone of critical concern.

Originally, oil and gas lobbyists sought a much broader bill that would have exempted 29,000 of the 42,000 tanks in the state Department of Environmental Protection’s inventory — a registry created by the 2014 law — from either having to submit a registration form or comply with new inspection and other tank safety requirements.

Various industries succeeded in 2015, a year after the Freedom spill, in greatly rolling back the aboveground storage tank legislation that had passed unanimously after a detailed review by two committees in the Senate and two in the House. But oil and gas companies continued to seek a wholesale exemption, saying the law was “crippling” them economically with unnecessary regulatory burdens for tanks that posed no threat to water supplies.

Delegate Barbara Fleischauer, D-Monongalia, said lawmakers learned during House Judiciary Committee hearings on the bill that almost all of the tanks for which an exemption was sought weren’t really subject to safety standards anyway. Their owners only had to register with the DEP and pay a $20-per-tank fee. And, Fleischauer said, lawmakers learned that the tank contents — saltwater, crude oil and other liquids that come back up from wells during gas production — aren’t really that safe.

“Brine, even though it sounds very innocent, contains some bad stuff,” Fleischauer said.

Through their discussions, committee leaders came up with a substitute bill that would continue registration for all of the natural gas industry’s tanks, and continue regulations and inspections of tanks in the zone of critical concern. The only change would be that the 2,300 tanks in the zone of peripheral concern would have to register with the DEP, but not be covered by other parts of the law.

Fleischauer praised Judiciary Chairman John Shott, R-Mercer and a bill co-sponsor, and Hanshaw, the committee’s vice chairman, for listening to the legislation’s opponents and being willing to compromise.

“I still have serious concerns,” Fleischauer said. “This bill is not perfect, but in the spirit of compromise, I’m voting yes.”

Two delegates sought to be excused from voting on the bill because of potential conflicts of interest.

Delegate Moore Capito, R-Kanawha, is employed by Energy Corporation of America and Delegate Jason Harshbarger, R-Ritchie, is employed by Dominion Transmission Inc., according to financial disclosures filed with the state Ethics Commission.

Citing House Rule 49, Speaker Tim Armstead, R-Kanawha, said any effect of the legislation on Capito and Harshbarger was only as “a member of a class” of five or more “similarly situated persons” and directed them to vote on the bill.

The five delegates who voted against the bill were all from Kanawha County. They were Democrats Byrd, Pushkin and Robinson and Republicans Capito and White.

The bill now moves to the state Senate.

Reach Ken Ward Jr. at [email protected], 304-348-1702 or follow @Kenwardjr on Twitter.

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