Board Upholds DEP Chemical Tank Designations

Charleston Gazette Mail
26 April 2016
By Ken Ward Jr., Staff Writer

The state Environmental Quality Board on Tuesday upheld decisions by state regulators about which chemical storage tanks would be covered by new safety standards passed to try to prevent a repeat of the January 2014 Freedom Industries spill that contaminated drinking water for thousands of people in Charleston and surrounding communities.

In a 10-page order, board members said that the state Department of Environmental Protection had legal authority to make the designations. Lawyers for the Independent Oil and Gas Association of West Virginia and three related companies, C.I. McKown and Son Inc.; Pocono Energy Corp.; and Tempest Energy Corp., had appealed the DEP designations and a formula the agency used to make them. At issue in the case were decisions the DEP made about which tanks are within two different zones within certain distances and stream-flow times from sites where public drinking water intakes are located. Under the law, originally passed in 2014 and then rolled back significantly last year, the DEP designations — of “zones of critical concern” or “zones of peripheral concern” near intakes — determine what level of regulation applies to different tanks.

Natural gas lobbyists had tried to have their industry exempted entirely from the chemical tank legislation, but lawmakers declined to adopt that proposal. Among other things, the gas industry appeal argued that the DEP wrongly did not make its zone designations through a separate rulemaking that would have been subject to public review and comment, and that in making tank decisions, agency officials used “arbitrary and capricious” assumptions.

Board members said that the Legislature had required DEP to use the rulemaking process for certain parts of its implementation of the chemical tank law, such as setting fees and spelling out inspection procedures, but did not require that for other matters — such as the formula for determining tank designations.

“The Legislature did not state that a rule was required for making the mathematical model,” the board ruling said. “The board refrains from reading more into the statute than is expressly provided.” Board members also said that the DEP’s model “was essentially an invention required by law” and put together by the agency “with limited funds” in a six-month period, requiring “innovation, assumptions, and acceptance of limitations.” “This is especially understandable given no alternative has ever been presented,” the board said.

The board did rule that DEP had wrongly implemented a 1,320-foot buffer zone for the Ohio River, adopted from the Ohio River Valley Sanitation Commission, rather than using the 1,000-foot buffer mandated by the Legislature.

Board members, ruling after a hearing in January, also ruled that it was right to allow two citizen groups, the West Virginia Citizen Action Group and the West Virginia Rivers Coalition, to intervene in the case. Reach Ken Ward Jr. at, 304-348-1702 or follow @kenwardjr on Twitter.