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
kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on
Twitter.