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Kessler says tank rule fix circumvents Legislature

CHARLESTON, W.Va. — West Virginia Senate President Jeff Kessler, D-Marshall, said Tuesday an interpretive rule on the Water Resources Protection Act “steps on the power of the Legislature” by not allowing the rule to be properly corrected and vetted.

Some legislators had called for Gov. Earl Ray Tomblin to convene a special session this week to look at the above-ground storage tanks rules in Senate Bill 373, the Water Resource Protection Act. Officials with the West Virginia Department of Environmental Protection have said the law could apply to as many as 80,000 storage tanks in the state, requiring the identification and inspection even of tanks which contain only water or brine.

Tomblin declined to call a special session, and instead WVDEP officials announced Monday they would issue an interpretive rule to give tank owners guidance on how the tanks should be inspected. That document was released Tuesday.

“They can call a dog a cat. They can issue an interpretive rule that a dog is a cat, and for the purposes of enforcement, a dog is now a cat,” Kessler said. “This is the least preferred method of dealing with an issue.”

Kessler also said Tomblin’s refusal to call the special session effectively bypasses the Legislature.

“I guard the powers of the Legislature very jealously and I don’t like them being given away,” Kessler said. “I think they have stepped on the power of the Legislature and given it to the bureaucracy.”

Kessler said he strongly disagreed with Tomblin’s decision to not call a special session to deal with the issue.

“I wouldn’t say I’m upset, probably more disappointed,” he said. “The special session was just to change one digit in the bill,” delaying the tank inspection requirement from Jan. 1, 2015 to Jan 1, 2016.

“I would have preferred to have seen this go through the proper legislative process to be fully discussed and vetted,” Kessler said.

Tomblin instead “has chosen what I believe is probably the least attractive method of dealing with the issue,” Kessler said. “It usurps legislative power.”

Tomblin Tuesday issued a press release praising the DEP for its work on the above-ground storage tank requirements.

“This process has truly been a team effort, and I appreciate the continued hard work of DEP Secretary Randy Huffman and his staff, as well as his commitment to meeting with so many people to discuss the implementation and impact of Senate Bill 373,” Tomblin said in the release. “This solution balances regulations and compliance requirements with the long-term goal of protecting our water sources.”

Chris Stadelman, spokesman for the governor’s office, said the interpretive rule serves its purpose and the Legislature will still have a chance to review the law.

“This interpretive rule gives above-ground storage tank owners important guidance they need to comply with Senate Bill 373 without delaying the implementation of the law,” Stadelman said Tuesday. “Governor Tomblin believes Senate Bill 373 should be implemented in a way that protects our water sources while balancing the time and cost required to comply with new regulations. Ultimately the West Virginia Legislature, during its 2015 session, will have the final say on rules proposed by the West Virginia Department of Environmental Protection.”

The guidance broke down tanks into three categories, requiring the most strenuous inspections for tanks near community water sources or which contained highly toxic substances.

“I’m supportive of his propositions within the rule. The categories are certainly appropriate,” Kessler said. “I’m not as comfortable with the procedure.”

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