Lawmakers asked about another exemption that would cover "an indoor tank located inside a building resting on or elevated above an impermeable floor surface from which a release would be entirely contained in a secondary containment structure or not escape through other means."
"I'm not sure where this exemption came from," Boggs said.
The indoor tank exemption was not included in the governor's bill, but it was part of the list of exemptions proposed privately by the West Virginia Manufacturers Association in an email message to Boggs. Members of the Natural Resources Committee added it in the Senate.
DEP officials noted that another exemption, for pesticide tanks, would cover facilities regulated by the state Department of Agriculture. However, in a May 2009 report, the U.S. Chemical Safety Board noted that those West Virginia rules did not mandate the use of a strict industry standard for tank integrity and inspections.
While the legislation under consideration in the wake of the Freedom Industries' leak would mandate new construction, integrity and maintenance standards for above-ground chemical storage tanks, it would leave it to the DEP to write those standards through a separate rule.
Some lawmakers questioned DEP officials about why the agency didn't take action before the MCHM leak into the Elk River. In response, Boggs noted that the political atmosphere in the Legislature isn't welcoming to new environmental regulations, even if they are meant to prevent a disaster like the chemical leak.
"Absent this type of event, my fear is, if we had brought it over here, we would have been screamed out of the Capitol," Boggs said. She said lawmakers would have complained of DEP "mission creep" or "overreach."
Scott Mandirola, director of the DEP's Division of Water and Waste Management, explained to lawmakers that water-pollution laws leave much of the compliance up to self-reporting by industries that hold discharge permits. When companies don't file the required reports, Mandirola said, that failure is likely to prompt a closer look by the DEP, including a site inspection.
However, records from the DEP indicate that Freedom Industries failed several times to file its required discharge-monitoring reports. Those same records do not include records to indicate if the DEP followed up on those failures with a site inspection.
Boggs said the DEP does support language, added in the House Health Committee, that would require an agency inventory of all above-ground storage tanks, whether they are covered by an exemption from the bill's permit and inspection requirements or not.
"[The] DEP wants all of that information," Boggs said. "We want an inventory of every tank."
Delegate Barbara Fleischauer, D-Monongalia, suggested that perhaps lawmakers should strip the exemptions from the bill. The DEP could conduct its inventory first, Fleischauer said, and lawmakers could allow the agency to write exemptions later, based on what the inventory shows.
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.