Another year, another effort by West Virginia lawmakers to weaken environmental regulations.
Lawmakers are pushing one bill through the Legislature that would allow more pollutants, including cancer-causing chemicals, in West Virginia rivers and streams.
Another bill speeding through the Capitol would further weaken landmark chemical tank safety rules — passed after the 2014 spill at Freedom Industries near Charleston that contaminated drinking water for 300,000 people — by excluding the natural gas industry from the regulation.
West Virginia lawmakers have said they want to focus this year on bringing people to the state — and a plan to eliminate the income tax depends on growing the population.
But as they focus on relaxing restrictions on industries, there’s been no action on bills to lessen the negative impacts of the natural gas industry on West Virginia residents’ quality of life, including legislation that would make natural gas operators place their wells, and the associated traffic and construction noise, farther from homes.
Chipping away at storage tank regulation
House Bill 2598, sponsored by Del. John Kelly, R-Wood, would finally give the oil and gas industries what they’ve wanted for years — a sweeping exemption from the Above Ground Storage Tank Act. That measure became law in 2014 in response to the Freedom Industries chemical spill.
Among other provisions, the act requires professional inspections of the tanks every three years and updated spill response plans every five years. During those inspections, professional engineers and certified inspectors, who are registered with the Department of Environmental Protection, assess whether the tank is likely to spill.
While West Virginia lawmakers have already exempted many oil and gas industry tanks from the law, this year’s bill exempts an additional 887 tanks, according to the West Virginia DEP. Those tanks are in areas deemed most dangerous because they are closest to intakes and therefore most likely to contaminate the drinking water supply.
In an emailed statement, Kelly said the bill would make the law more fair to oil and gas companies. And bill proponents have tried to assuage concerns, saying the tanks in question are small and contain brine.
But the tanks sometimes hold thousands of gallons. The Freedom Industries spill that contaminated the water was about 11,000 gallons, according to the U.S. Chemical Safety and Hazard Investigation Board.
And while brine can also be harmful to human health, DEP Deputy Secretary Scott Mandirola told lawmakers that only 12% of the tanks contain just brine.
During the House Health Committee meeting Thursday, Mandirola also told lawmakers the DEP doesn’t support the bill in its current form, and that some of the chemicals in the tanks that would become exempt from regulation are known carcinogens.
If the bill passes, inspectors from the DEP’s Office of Oil and Gas would become responsible for inspecting the tanks in question. That would mean the tanks would likely only be inspected once every 20 years, according to Mandirola.
This also adds more inspection responsibilities to an office that has been drastically underfunded for decades. In 1993, the Interstate Oil and Gas Compact Commission reported in its West Virginia State Review that the Office of Oil and Gas lacked inspectors, likely due to less funding from drilling permits, and a follow-up report in 2003 noted that lawmakers still hadn’t taken action.
Last year, officials said they expected to have to cut the office’s staff by 35%. Last month, lawmakers and environmental groups expressed concern about the number of inspectors in the office.
“[The Office of Oil and Gas is] in a financial free fall,” said Angie Rosser, executive director of the West Virginia Rivers Coalition. “They’ve been operating a deficit for several years, so they’re laying off staff. They only have 11 inspectors for the whole state and 75,000 wells and 30,000 tanks.”
That office is funded through one-time fees on new drilling permits. Del. Evan Hansen, D-Monongalia, and Sen. William Ihlenfeld, D-Ohio, have introduced a bill to address the problem by creating an annual fee for well owners (not including well owners who only use the gas to heat their homes), but lawmakers haven’t placed the bill on their agendas.
Legislators in the House Health and Human Resources Committee passed the bill on party lines and sent it to the floor for a vote. If the measure passes the House, the bill would also have to pass the state Senate before it would become law.
House Speaker Roger Hanshaw, R-Clay, noted last week that he has sponsored some version of this same bill for years, and said it “would keep marginal wells profitable, rather than plugged or abandoned, in which case they become a liability of the state,” according to an email from a spokeswoman.
But Karan Ireland, senior campaign representative for Central Appalachia for the Sierra Club, noted that the same bill failed last year, after it was introduced on Jan. 9, the anniversary of the Freedom Industries spill.
Ireland surmised that because the Capitol is closed to the public due to COVID-19, lawmakers may feel more free to pass the bill without scrutiny.
“They don’t have to look people in the eye when they’re passing it,” she said.
As lawmakers are prioritizing relaxing requirements on these storage tanks, legislation to address the problems caused by the oil and gas industry continues to stall. Many West Virginians live with constant light, air and noise pollution and truck traffic from nearby drilling sites.
In 2012 and 2013, Michael McCawley, an environmental scientist and associate professor at West Virginia University, studied the impact of horizontal drilling on nearby communities, including noise and air pollution and health effects, and submitted those studies to the DEP. The DEP made recommendations to address those concerns the following year. Del. Terri Sypolt, R-Preston, has attempted but failed for several years, including so far this year, to pass a bill to address them. Her bill would require companies to monitor their air and noise pollution and implement the maximum available 30 control technology available to limit that pollution, as well as set up their operations farther away from homes.
Similar legislation is regularly introduced and sent to the House Energy and Manufacturing Committee, but never placed on an agenda by Republican leadership. Del. Bill Anderson, R-Wood and the chairman of the energy committee, told ProPublica in 2019 there was no “appetite” for the bills and that “people in the community need to understand the needs of the industry, if we’re going to have the benefits in terms of jobs.”
Allowing more cancer-causing chemicals in the water
Another measure moving through the Legislature would update pollution standards to allow industries to release higher amounts of some types of chemicals.
The federal Environmental Protection Agency recommended in 2015 that states update water quality standards for 94 pollutants that have human health effects, including ones that could cause cancer and organ damage. Those standards regulate how much of that pollution companies are allowed to release into rivers and streams.
Six years later, West Virginia lawmakers have whittled down that rule and are considering updating just 24 standards, instead.
Even though many of the proponents of the bill represent companies and industries, they have said they support the bill due to scientific reasoning and have focused less on economic impact.
Del. Geoff Foster, R-Putnam and the bill sponsor, said lawmakers are in favor of the rule change based on a review of EPA studies.
Jason Bostic, vice president of the West Virginia Coal Association, was on a workgroup that worked on the rule.
“[The group] looked at the science,” he said. “It looked at the individual parameters and it came up with recommendations that they felt best reflected the conditions here.”
The West Virginia Manufacturers Association, which Foster said is the leading proponent of the bill, as well as other bill supporters, including the West Virginia Chamber of Commerce, Chemours Company, and the American Chemistry Council did not respond to requests for comment.
The EPA encourages states to consider state-specific science, and use information like a resident’s average fish consumption, water consumption, and body weight to determine to what degree a chemical will build up in the human body.
In fact, that’s why the Manufacturers Association said they asked lawmakers to hold off on implementing the standards several years ago: to review state-specific factors, including that West Virginia residents are heavier, drink less water and eat less fish than many other Americans.
But this year’s bill includes no state-specific science at all. And while lawmakers are following the EPA’s recommendations, based on national data, to lower the permitted level for roughly half of the 24 pollutants and increase the level for the rest, they’re ignoring the agency’s recommendations for 70 other chemicals.
Rosser, of the West Virginia Rivers Coalition, is concerned because some of the chemicals that would remain unregulated are already being discharged into West Virginia waters. She also noted that nothing is stopping West Virginia from implementing only those standards that are protective.
Rosser wants to see lawmakers work on reducing risk when it comes to clean water, so more West Virginians can feel comfortable making decisions that should be healthy ones.
“We should be setting policy that restores our ability to not be limited in the amount of fish we eat and restores our ability to live more healthful lifestyles such as fishing out of our rivers or drinking more water or swimming in our rivers,” she said.
Republicans in the House Judiciary Committee rejected efforts by Del. Chad Lovejoy, D-Cabell and the minority chair of the committee, to amend the bill so only water quality standards that lower chemical concentrations allowed in the water would be updated — not those that increased limits.
The bill still has to pass the full House of Delegates and the state Senate before it would become law.
McCawley, said it’s an “uncomfortable fact” that even scientists can’t make foolproof predictions about whether weakening a particular environmental regulation will or won’t result in catastrophe. He also noted that it’s important to consider economic impact, but lawmakers must be upfront about what that impact is for West Virginians to decide whether it’s worth relaxing regulation.
As lawmakers prepared to once again postpone strengthening dozens of water quality standards, McCawley compared it to the current public health crisis, noting that policy-makers have also “kicked the can down the road” on pandemic prevention for years.
“We have said for years that a pandemic was coming and everybody said, well, the chances of pandemic are pretty small. But if it ever comes, it’s gonna be terrible,” he said. “Guess what?”