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House Finance Committee approves weaker chemical tank bill

CHARLESTON, W.Va. -- Members of a fifth legislative committee Monday night approved legislation intended to protect West Virginia's drinking water, but not before approving amendments that weakened the latest version of the bill.

The House Finance Committee eliminated a provision to require a long-term state study of the potential health impacts of the Jan. 9 chemical spill that contaminated the Elk River water system that serves 300,000 residents across nine counties.

Committee members also stripped the bill (SB373) of language mandating new "early warning" spill sensors for West Virginia American Water's Elk River plant. They also removed a requirement for tougher permitting of water pollution sources located near drinking water supplies.

The bill now moves to the House floor, where it could be up for amendments as early as Wednesday. House members have substantially rewritten the measure since the Senate passed its version Jan. 28.

Lawmakers now face a deadline of midnight Saturday -- the end of their regular, 60-day session -- to reach agreement on final language to send to Gov. Earl Ray Tomblin.

During an appearance on the statewide radio show "Talkline," Monday morning, House Judiciary Chairman Tim Manchin, D-Marion, said he saw no problems getting the legislation finalized.

"I will be shocked if it isn't," Manchin said.

Manchin, though, had also predicted the Finance Committee, the third House committee to review the measure, would make few changes from the version that emerged from his committee early Monday morning.

"I think we've found the sweet spot," Manchin said. "This bill has a lot in it."

Finance Committee members, though, narrowly voted to remove a medical monitoring requirement that had been added in the Judiciary panel's meeting.

The Judiciary language mandated the state Bureau for Public Health perform a long-term medical monitoring study related to the spill. Details of the study were left up to the bureau to decide, first through emergency rules and then through legislative rules that lawmakers will get to review.

So far, the bureau and the federal Centers for Disease Control have planned only a review of hospital charts for those who sought medical treatment after the spill, and a small door-to-door survey of area residents about the spill's impacts on their families.

While unclear in scope and cost, a study of the type proposed by House Judiciary would simply follow some number of the population exposed to the spill chemical to try to determine how they might have been impacted. Some lawmakers said such medical monitoring could be obtained through litigation, but the outcome of such suits are far from certain and could be years down the road.

Lawmakers removed the requirement after Public Health Commissioner Letitia Tierney, while supporting such a study, said she didn't know yet exactly what would be studied, how long it could take, or what it might cost.

Tierney said funding would likely be available from a variety of federal sources, and said it was too soon in the process to detail the exact contours of such a study. Tierney added, though, that the time is now to carefully move ahead with such work.

"We have one chance to get this right," Tierney said. "We want to do this with great thought and great care."

But Delegate Marty Gearheart, R-Mercer, warned that the medical monitoring language could open the state budget "up to an almost unlimited liability."

Finance Committee members also went along with an amendment from Delegate Kevin Craig, D-Cabell, to remove a requirement that any pollution sources inside "zones of critical concern" near drinking water intakes "individual permits" that undergo more thorough reviews by the state Department of Environmental Protection.

And, the committee took two actions regarding language for more aggressive "early warning" monitoring to detect spills that could impact drinking water.

First, the panel rejected an amendment that expanded a requirement for such monitoring from only the West Virginia American plant on the Elk River to all utilities statewide. Then, committee members removed the language requiring the additional monitoring by West Virginia American at its Elk River plant.

Finance Committee members were working off yet another draft of the legislation, first proposed by Tomblin 11 days after the spill at Freedom Industries, following an industry-only meeting organized by the governor's staff.

Finance staffers gave lawmakers their latest version at the start of a Monday meeting, hours after a previous new version of the bill had emerged that morning from the Judiciary Committee. Judiciary Committee members had rewritten parts of the bill in a marathon session that began Sunday afternoon and ended after 1:30 a.m. Monday, as an ice storm was moving into the Kanawha Valley.

The bill had already been through reviews by both the Natural Resources and Judiciary committees in the Senate.

The bill establishes a variety of new requirements for DHHR and for the state Department of Environmental Protection, forcing agencies to begin using information that was -- in most cases -- already available to them to plan better protections for drinking water supplies.

DEP would have to inventory chemical storage tanks around the state, and write new safety standards and begin new periodic inspections. Water utilities would have to complete new plans spelling out how they would protect drinking water supplies, and conduct studies of potential alternate supplies or backup water supply storage.

The Judiciary Committee voted down an amendment to require West Virginia American Water to add a back-up intake at its regional facility along the Elk River, where the Jan. 9 Freedom Industries spill of Crude MCHM occurred.

Judiciary members also expanded the bill's provisions to allow some information about potential threats to public water systems to be kept confidential by companies and government officials.

Current federal law requires the state law to make public chemical inventory lists that companies file every year with the State Emergency Response Commission. But, that federal law and its companion state rules, allow companies to keep confidential the exact location of chemical storage. The new bill expands that, allowing companies to seek -- and agencies to approve -- withholding from the public "any of the submitted information" if "good cause is found ... for reasons of security or other legitimate public interest concern."

Pat McGinley, who teaches environmental law and public records law at the West Virginia University College of Law, said the current bill "is far too broad" in allowing information about potential threats to water supplies to be kept confidential. McGinley noted that the state's Freedom of Information Act already contains provisions allowing certain information to be kept confidential for homeland security purposes.

"This is yet another effort to water down the broad public right of access to government regulation originally granted by the FOIA," McGinley said. "People who live downstream from chemical storage tanks should be entitled to know what chemicals are located near their water supply."

Before beginning their amendments, Finance committee members picked away at the potential costs of the bill, noting among other things that estimates of those costs for both DEP and DHHR have not been updated since "fiscal notes" were issued in conjunction with a Senate version of the legislation.

DEP Secretary Randy Huffman said his agency had initially put its costs at about $1 million, and that the money would come from a fee to be collected from the owners and operators of chemical tanks regulated by the bill. Under the current legislation, details of the fee are left to DEP to put together during rulemaking.

"There will be additional staff required," Huffman said. "We will be processing permits and conducting inspections we aren't doing now."

Regarding the Judiciary Committee's language for additional monitoring at the West Virginia American Water plant, Delegate Nancy Guthrie, D-Kanawha, recalled that lawmakers heard testimony that equipment alone for that might cost only $150,000 -- an amount she said "wasn't draconian."

But Laura Jordan, a spokeswoman for West Virginia American Water, told committee members the language in the bill is "simply impractical and unfeasible for any water system to do, because of the costs."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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