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Editorial: Spill legislation should fill all regulatory gaps

Feb. 15, 2014 @ 11:50 PM

As West Virginia lawmakers consider legislation aimed at preventing another chemical spill or leak into a public water supply, it’s becoming clearer that a deliberative approach will yield better results.
That was evident last week as two House of Delegates committees examined the legislation passed relatively quickly by the state Senate in the wake of the Jan. 9 leak into the Elk River. That leak contaminated the water supply for about 300,000 people in a nine-county area of central West Virginia served by West Virginia American Water. Those customers were ordered not to use their water for several days.
The focus of the Senate bill, passed unanimously by the Senate on Jan. 28, was to plug what was revealed as a gaping hole in the regulation and inspection of above-ground storage tanks, like the one on Freedom Industries’ property involved in the spill.
The legislation was crafted by Senate leaders and incorporated aspects of a similar bill proposed by Gov. Earl Ray Tomblin.
The main thrust is requiring owners or operators of aboveground storage tanks to register those tanks with the state and submit to yearly inspections. The state Department of Environmental Protection also would inspect tanks within 25 miles of a water intake. Another part of the bill would require water providers to develop contingency plans for preventing contamination, notify the public if contamination occurs and identify alternative water sources.
After the Senate action, some Senate members expressed concern when House Speaker Tim Miley assigned the legislation for review by three House committees. Such a “triple reference” is usually regarded as a method of blocking passage of legislation, but Miley insisted that he only wanted to ensure it received thorough study. That appears to be the right call, so far.
Two of the three committees reviewed the legislation last week and either improved it or raised important questions worthy of further amendments.
The House Health and Human Resources Committee inserted a requirement that the DEP inventory all potential contaminants — not just those in above-ground storage tanks — located within 25 miles upstream and a quarter-mile downstream from a public water intake. It also toughened penalties and included provisions requiring better communication among companies, state agencies, water providers and for alerting the public to emergencies.
On Thursday, members of the House Judiciary Committee raised pertinent questions about why 20-plus categories of chemical storage tanks were exempted from complying with the bill’s main safety provisions. In many cases the exemptions were similar to those proposed by lawyers and lobbyists following what has been described as an industry-only meeting with the governor’s office.
With so many exemptions, some members said they wondered what was left to regulate.
DEP officials acknowledged that other state or federal programs that might regulate the exempted facilities don’t necessarily require as thorough inspections as those mandated in the bill. On its face, that appears to be a glaring inadequacy and a prime example of why it’s best for lawmakers to scrutinize the legislation thoroughly.
The whole issue is highly complex, and understanding the nuances won’t be easy. But with last month’s spill still fresh in our minds, now is the best time to enact stringent enough regulations to significantly reduce the odds of a similar occurrence in the future. Rushing through a bill with regulatory holes in it would be short-sighted and a disservice to the public.

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