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WV Sen. Unger criticizes governor's storage tank proposal

A bill proposed by Gov. Earl Ray Tomblin to regulate aboveground storage tanks focuses too much on protecting industry and not enough on preventing water pollution.

That's the sentiment from state Senate Majority Leader John Unger, D-Berkeley, who heads the Legislative Oversight Commission on State Water Resources.

Unger introduced his own bill last week that would regulate all aboveground storage tanks, not just those used in industry or located in what the governor's proposal calls "zones of critical concern."

Unger said the two pieces of legislation are "fundamentally different."

"When you look at the bills, Senate Bill 373, it's purpose is to protect all water resources throughout the state by registering and inspecting all aboveground storage facilities that aren't already being registered and inspected now," Unger said.

"If you have a storage facility now with any fluids at all, except for water, it must be registered and inspected. The governor's is very different. It actually will narrow in certain areas."

Jason Pizatella, Tomblin's deputy chief of staff, agreed the governor's bill is narrower in focus, but denied it caters to business.

He said the governor's bill instead adds to the existing regulatory framework and allows the DEP to focus specifically on "under-regulated" facilities close to water sources, like the Freedom Industries site along the Elk River.

Pizatella said the governor's bill would be introduced in both the House and Senate Wednesday. He expects the Senate to "run" the bill, a reference to the fact that one chamber typically focuses first on a governor's bill.

The governor is ready to work with both the House and Senate on the bill, Pizatella said.

"What I think will happen is that the concepts will be merged together," he said, referencing the governor's and Unger's bills.

"Now what vehicle that takes place in remains to be seen," Pizatella said.

Unger said he takes issue with the fact that the governor's proposed legislation would allow the administration to determine what is a "zone of critical concern."

The governor's bill relies on the state's Source Water Assessment and Protection Program to outline zones of critical concern.

The program, run by the state Bureau of Public Health, examines water sources and potential contaminants in those sources.

"The (zone of critical concern) is a corridor along streams within the (watershed delineation area) that warrants a more detailed inventory and management due to its proximity to the surface intake and to the susceptibility to potential contaminants," said an assessment prepared for the Charleston area in 2002.

The West Virginia American Water Co. treatment facility that was recently overwhelmed by the chemical leak was at a "high" susceptibility for contamination, according to that report.

The report says there are 51 facilities that could potentially contaminate the water going to the treatment plant within the zone of critical concern. The zone is about 6,000 acres within the overall 1,500-mile watershed area, according to the report.

Reached late Tuesday, Unger wasn't immediately familiar with the ins and outs of the program. However, he pointed out the zones leave out plenty of areas that the Senate's bill would protect.

"Here's the public debate where people need to weigh in - should we protect everyone's water no matter where they live in West Virginia and who they are, or should we cherry pick which ones to protect and not protect others?" Unger said earlier in the day.

The DEP had the ability to inspect the site of the spill, because it had issued Freedom a stormwater permit. The department has also recently produced reports to show it inspected the site.  

DEP Secretary Randy Huffman said Monday the type of inspection is important.

The governor's bill calls for more scrutiny of these tanks that are within the critical zones, Pizatella said. That includes annual inspections by professional registered engineers - hired by the storage facility - and provided to the DEP, Pizatella said.

The remaining tanks would still be regulated through the existing stormwater permitting process.

The governor's bill doesn't force the DEP to conduct any inspections in conjunction with those existing permits.

The governor's bill also doesn't consider groundwater contamination, Unger said. A farmer visited Unger's office Tuesday, which was Agriculture Day at the Capitol, and told him about some groundwater pollution he experienced on his farm.

"He says his neighbor, who lives 3/4 miles away, his diesel tank was leaking and it got in his groundwater and he could taste it and smell it," Unger said.

"I said what did you do. He said I couldn't do anything. With groundwater, you just have to keep flushing it out and hope you get the material out.

"How do you flush out groundwater if someone is on a well somewhere? If something didn't have odor or you couldn't taste it, how could you know what's going on?

"Our bill puts in those protections that, yes, we will know because every tank must be registered, say what they have in it and be inspected," Unger said. "We will know what's in the area what's near your house in regards to any type of chemical facility that could potentially leak into your groundwater."

Although Unger has been critical and the Senate plans to proceed with its own bill, House Speaker Tim Miley, D-Harrison, said he'd like to see a compromise because both clean water and industry jobs are valuable to the state.

"The key is finding where you need to be to have responsible legislation and regulation without necessarily stifling industry growth and development," Miley said.

"And that's always a fine line to walk, and it's always a difficult line to identify, but that's what our jobs are and our goal is: to find that place where, if it accomplishes what the community wants to see us do - protect them - while making sure that we're not stifling industry and prosperity."

But, Miley pointed out, the health and welfare of the state's residents should be the top priority.

"We always, across the board, we always have to be first concerned about public safety and health," he said.

"There are no lives worth any job. So we need to make sure that whatever approach we take is designed to first and foremost protect lives and general health and safety of the citizens, and then worry about what jobs it creates, or costs, later."

Writer Dave Boucher contributed to this report.


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