MEMO ON ADOPTED HJUD AMEND. House Committee on the Judiciary
Comm. Sub. for Comm. Sub. for SB 373
Prepared by: Robert Williams
(3/03/2014) Phone: 304-325-3215
SPONSORS: Senators Unger, Kessler (Mr. President), Palumbo, Plymale, Laird, Yost, Miller, Prezioso, Fitzsimmons, Wells, Cann, Chafin, Tucker, Stollings, Cookman and Snyder.
TITLE: Relating to water resources protection
DATE INTRODUCED: January 24, 2014.
CODE SECTIONS AFFECTED:
W.V. Code §16-1-2, §16-1-9a (amend and reenact)
§16-1-9c, §16-1-9d and §16-1-9e (new)
§22-26-2, §22-26-3, §22-26-5, §22-26-6, §22-26-7 and §22-26-8 (amend and reenact);
§22-30-1, §22-30-2, §22-30-3, §22-30-4,§22-30-5, §22-30-6, §22-30-7, §22-30-8,
§22-30-9, §22-30-10, §22-30-11, §22-30-12, §22-30-13, §22-30-14, §22-30-15, §22-30-16,
§22-30-18, §22-30-18, §22-30-19, §22-30-20, §22-30-2, §22-30-22, §22-30-23, §22-30-24
and §22-30-25 (new);
§22-31-1, §22-31-2, §22-31-3, §22-31-4,§22-31-5, §22-31-6, §22-31-7, §22-31-8,
§22-31-9, §22-31-10, §22-31-11 and §22-31-12 (new); and
MEMO ON SENATE BILL, AS AMENDED BY THE HOUSE JUDICIARY COMMITTEE:
The Senate Bill proposed to establish a new regulatory system for above-ground storage tanks, which is the type of contamination threat represented by the underregulated Freedom Industries tank farm which contaminated West Virginia American Water Company’s water supply to nine counties.
The House amendments before provide a more comprehensive approach to assessing and responding to all potential threats to our state’s public water supplies. Since water supplies obtained from surface waters are the most vulnerable, Step One of the House approach requires all public water utilities which draw their water from surface waters like rivers and streams to take a comprehensive review of all of the identified substantial threats of potential contamination which could potentially reach the water utility’s supply intake within five hours. Detailed information will be compiled and assessed, with input from several regulatory agencies, and with public participation.
Since some of this information could actually increase the vulnerability of our system’s water supplies if it fell into the wrong hand, this more detailed information will be provided to the utility and others who need it the most, in order the properly plan and respond to any future incidents.
The second prong of the House Plan provides for an inventory and identification of all aboveground storage tanks. The program established will require the DEP to implement appropriate standards for all aboveground storage tanks to prevent future spills, mandate inspection requirements, require sufficient secondary containment to prevent any future spills from reaching the groundwater or surface waters of our state, and to provide for regular and verified inspection of all facilities.
The third prong of the House Plan provides for increased vigilance in an area which the bill identifies as the “Zone of Critical Concern” or the corridor where contaminants and pollutants would potentially reach the plants intake in relatively short order. The bill provides DEP with the tools to require more stringent and explicit standards for potential threats within this zone, require permits where none exist if needed to protect the public water supplies, and provide for an increased schedule of inspection of potential contaminants in this zone.
Finally, the bill creates a study commission, to examine the effectiveness of the measures this legislation has enacted, and review other matters to review and recommend whether additional measures should be undertaken by the Legislature in the future.
The bill also approves the general provisions of the statewide water resources management plan, which is designed to identify the extensive water resources in our state. That project was only recently completed, and will be an ongoing assessment and continuing area of investigation by the Legislature.
Revised provisions of Article 26, Chapter 26 of WV Code (changes reflected in HJUD version are placed in bold:
Adopts the recommendations of the West Virginia Water Resources Management Plan (recently completed by the Water Use Section of the West Virginia DEP), and amends the provisions of the Water Protection Act, WVC §22-26-1 through §22-26-9, to allow for more accurate tracking of water use by large quantity users, which are being redefined as entities which use more than 300,000 gallons of water in a 30 day period. House Amendment does not require any farm use to be reported as a large quantity user. Farmers may opt to report, if they desire.
Revisions to Article 16 (dealing with Bureau for Public Health)
1. Requires the completion or update of Source Water Protection Plans for any public water utility which has a water plant which obtains its primary source of supply from a surface water source, or a groundwater source whose water quantity or water quality is heavily influenced by surface water conditions.
When doing that update, the water utility will be getting more complete information about the extent and nature of upstream threats of contamination to its water supply source. Threats which would reach the plant during 5 hours of high flow conditions are identified.
As part of that plan, the following benefits should occur:
a. Requires better coordination and sharing of information between Homeland Security, DEP and Bureau for Public Health.
b. Requires more involvement of other interested entities and the public in the source water protection evaluation and response.
c. Requires the utility to consider available alternative to protect the integrity of its water supply during periods of potential contamination, and evaluation of the operating characteristics of the utility to evaluate:
1. The utility’s ability to close its water intake in response to threats, without creating ancillary public health concerns;
2. The utility’s ability to establish a secondary intake or secondary source of supply;
3. The utility’s ability to create additional interconnections and flexibility in obtaining its water supply;
Other revisions adopted by the HJUD Committee also require:
1. Bureau of Public Health to undertake a long term monitoring program associated with the 1/9/2014 spill event;
2. Requires all public water systems to consider installing an early warning monitoring system.
Revisions to Article 30, Chapter 22 (New Aboveground Storage Tank regulations)
1. Creates a new regulatory program, to be administered by the DEP, to regulate aboveground storage tanks (ASTs) ( WVC §22-30-1 through WVC §22-30-26.)
This new proposed regulatory program for aboveground storage tanks is designed to address the threat which “under-regulated” aboveground storage tanks present to surface water supplies used for public drinking water. It requires additional minimum regulation for certain classes of new and existing aboveground storage tanks.
The provisions of this new AST program are basically as follows:
1. Inventory of facilities
The Director of the DEP is directed to compile an inventory of all ASTs in existence on the effective date of the act, whether operational or not.
2. Registration of facilities
Owners and operators of such tanks are required to register their ASTs with the DEP and provide information about the tank, including location, date of installation, size, type and volume of fluid, and proximity to any public water supply intake.
3. New minimum regulatory standards to be developed under the article:
The Secretary of the DEP is to develop regulatory standards for new and existing ASTs for the following areas:
a) Design and construction standards,
b) Secondary containment standards;
c) Leak detection standards;
d) Establishment of a corrective action plan to respond to any release; and
e) Recordkeeping requirements.
4. Inspection requirements:
a) ASTs are to be inspected and certified annually by a registered engineer or other qualified inspector under the supervision of a registered engineer, or API certified inspector, or other qualified inspector under an industry-recognized certification, approved by the DEP. These inspections are to certify that the aboveground storage tanks, associated equipment, leak detection systems and secondary containment structures meet minimum standards.
b) The DEP is required to inspect all ASTs located within the Zone of Critical Protection of upstream of a public water intake at least once a year.
c) The DEP Secretary may require owners or operators of above ground storage tanks to furnish information, conduct reasonable monitoring or testing, or allow access to records, and gives the secretary the authority to inspect any AST facility.
5. Source water protection requirements:
All public water systems are required to submit a source water protection plan for approval by the DEP and DHHR on or before July 1, 2015. The source water protection plan is to include an alternative water intake in the event of a contamination, response to contamination of a water source, and notification to the public of a contamination event. The stated purpose of the plan is to protect a system’s water supply source from contamination by a release of fluid from an aboveground storage tank.
6. Public access to information:
a) DEP is to provide public access to all documents and information submitted to the DEP under this new article, subject to FOIA exemptions.
b) The owner or operator of an AST is to provide notice to public water systems located within the Zone of Critical Protection of the AST, the local municipality and the local county. That notice is to include an inventory of the type and quantity of fluids in the ASTs; an MSDS sheet for each of the associated fluids; and the approved spill prevention response plan developed by the owner or operator for the AST.
7. Registration of tanks
All stationary tanks with a capacity of 1320 gallons or higher will be required to submit a registration form. DEP will develop the form within 30 days, and owners and operators will be required to submit completed forms to the DEP within 60 days. Mobile tanks and trucks and railcars will not have to register, unless they remain on a location for 60 days or more. Barges, boats and river conveyances also will not be required to register, since they are excluded from the definition of above ground storage tanks. Process vessels were also defined and excluded from the definition of aboveground storage tanks.
8. Permitting of Aboveground storage tanks.
The following categories are not required to obtain a permit as an AST
a) ASTs containing only water
g) septic tanks
h) a pipeline facility
g) equipment or machinery containing substances for operating equipment
j) mobile tanks which do not remain on a site for more than 60 consecutive days
n) a surface impoundment, pit, pond or lagoon
p) tanks used in conjunction with oil and natural as exploration and production, processing, gathering, treatment or storage or transmission; and oil filled tanks
9. Penalties for violations
This new article includes civil penalties for noncompliance with a secretary’s order, not more than $25,000 per day, failure to register not more than $10,000 per tank, submitting false information not more than $10,000 per tank, and failure to comply with promulgated standards not more than $10,000 per day. Available sanctions under the article include a misdemeanor crime punishable by six months in a regional jail and a $25,000 fine, for a “knowing and intentional” violation of this article. A second “knowing and intentional offense is a felony, punishable by incarceration of 1 to 3 years and fines of up to $50,000.
Like other regulatory programs, this section allows appeals of a decision by the secretary to be appealed to the EQB (Environmental Quality Board).
MEMO ON HOUSE HEALTH COMMITTEE STRIKE AND INSERT AMENDMENT:
The additional statutory amendments included in HHR Committee proposed strike and insert amendment include the following Code provisions: WV Code §16-1-2, §16-1-9 and §16-1-9a (amend and reenact); WV Code §16-1-9c (new); WV Code §22-31-1, §22-31-2, §22-31-3, §22-31-4, §22-31-5, §22-31-6, §22-31-7, §22-31-8, §22-31-9, §22-31-10 and §22-31-11 (new).
The House Committee on Health and Human Resources recommended extensive amendments to the article. Instead of having all of the responsibilities placed on the Division of Environmental Protection in this Senate Bill, the Health and Human Resources Committee places the much responsibility on the Bureau of Public Health, which has the primary responsibility to protect the integrity of public drinking waters in our state.
Pursuant to its responsibility, the Bureau of Public Health is the state governmental entity which has coordinated and overseen the development of Surface Water Protection Plans and Groundwater Protection Plans to encourage all public water systems to assess, manage and respond to all substantial threats of potential contamination to their public water supplies.
The HHR amendment specifically requires each public water utility which obtains its primary supply of water from the rivers, streams and lakes of our state to update or complete an assessment of all potential risks to its public water supplies, and work with the regulatory agencies, the public, emergency responders and other interested groups and industries which depend on safe and reliable sources of water to complete a comprehensive source water protection plan for each of its public water intakes. It requires the same action for any groundwater supply source which is influenced by the quantity and quality of surface waters in the immediate vicinity of its groundwater source. The provisions and characteristics of an acceptable plan are set forth in the proposed new article §16-1-9c. All such plans are to be completed or updated on or before July 1, 2016, and updated every three years thereafter.
Consistent with this responsibility, the HHR amendments include the following new definitions: “Public surface water supply source”, “public surface water influenced groundwater supply source”, “public water utility” and “zone of critical concern”. The zone of critical concern was defined in the HHR amendment as a corridor 1000 feet from each bank of a primary stream, and 500 feet from each bank of any tributaries feeding that primary stream, for a length of 25 miles upstream and 1/4 miles downstream from a public water intake of a public surface water supply. Once the Surface Water Assessment is performed, in accordance with the provisions of the Safe Drinking Water Act, the bill would allow the Bureau of Public Health to either extend or reduce the length of the impacted zone, based on the findings of that report.
The development plans are required to include at a minimum, an analysis of the public water systems’s ability to install a secondary or backup intake or secure a source replacement in the event the public water system is required to ceasue using its primary source of supply for an extended period of time, due to contamination. It is required to list and assess the risks posed by the identified potential significant contaminant sources contained within the zone of critical concern. The updated plan was also to include an analysis of the public water systems’ available storage capacity, and how its storage capacity could be utilized to minimize the threat of contamination to its system. The submitted plan is also to include a management plan that identifies specific activities that will be pursued by the system to protect its source water supply from contamination, including coordination with government agencies and periodic surveys of the system; and a communications plan that documents the manner in which the public shall be notified of information related to any contamination of the source water supply.
The HHR amendment also requires each public or private public water utility to be equiped with a sufficient secondary intake sources of water, or at least three to five days of sufficient raw water storage.
The bill adds enforcement power to the Department of Health. In increased criminal penalties, eliminated a nominal misdemeanor fine which existed under current law, makes it civil penalty of $1,000 to $5,000 to violate rules of Department of Health. Willful violations are subject to a penalty of $10,000 per day, up from $5,000. Second willful violations are
The Senate Bill would also grant the Bureau of Public Health Commissioner or his or her authorized representative to seek injunctive relief in the circuit court of the county in which a public water system is located, in response to threatened or continuing violations.
The bill moved the Senate Bill’s DEP enforcement of source water protection plan in §22-30-24 to Public Health in §16-1-9c, and grants Sole authority to approve, modify or deny public water utilities source protection plans to BPH. The bill requires BPH to consult with local health departments before approving the plan, and conduct at least one public hearing on the proposed plan.
The bill would allow the BPH to grant more local control over the inspection of sites, and the responsibility of reviewing and approving a to any local Health Department which has received national accreditation.
Based upon its review of the submitted plans, the bill would allow the Health Department to require a current permittee of a NPDES nationwide permit to be required to receive a individual permit when public water supply could be at risk. It would also grant the Health Department with concurrent authority to inspect potential significant contaminant sources within a zone of critical concern.
The Bureau’s Wellhead and Source Water Protection Grant Program is continued by the HHR amendments. In awarding any grants under this program, the commissioner is to prioritize those grants according to the size of the system served, and the number of potential contaminants sources denoted within its zone of critical concern.
The HHR amendment does not suggest significant changes to the bill’s originally proposed provisions relating to the above-ground storage tank program, with the exception that it did move the approval and review of the Surface Water Protection Plans under the Bureau of Public Health, instead of the DEP.
The HHR Amendment creates a new article, requiring the institution of more stringent measures and protections for all sources of significant potential contaminants identified within the zone of critical concern. It would allow the Bureau of Public Health to require entities holding a general NPDES permit for stormwater runoff to obtain an individual NPDES permit. It also requires more stringent inspection requirements for all potential sources of contamination within the zone of critical concern, and requires DEP to inspect the facilities at least annually. The Bureau of Public Health is granted complementary authority to enter and inspect the same facilities within the zone of critical concern, to protect the integrity of public drinking water supplies.
MEMO ON JUDICIARY COMMITTEE STRIKE AND INSERT AMENDMENT:
The House Judiciary Committee proposed Strike and Insert Amendment starts which the HHR amendment, and makes several substantial changes.
The Staff Recommended amendment keeps the same basic structure as the HHR amendment, , but amends the bill in the following ways:
1) It requires more extensive information and analysis to be performed and submitted as a part of the Surface Water Protection Plan (SWPP);
2) It removes the suggested mandate that a second intake and/or three to five days of storage be constructed on all public utility systems;
3) It requires updated SWPPs be performed by all public utilities which obtain their primary water supplies from surface water sources or groundwater influenced surface water sources (this effectively would require approximately 125- 140 public water utilities to upgrade or complete their surface water protection programs;
4) It requires extensive information regarding the operation of the plant to be filed as a part of the SWPP, to analyze the following:
A) The public water system’s level of unaccounted for water losses;
B) The water plant’s available raw water and treated water storage capacity, in comparison to its average, minimum and maximum daily plant production;
C) Analysis of the public water utility to shut down its intake in response to a threat of contamination, without creating a public health emergency;
D) Analysis of the technical and economic feasibilty of pursuing one or more options for a public water system with a single intake, including:
i) Constructing a second water intake;
ii) Constructing additional storage to provide the equivalent of 2 to 3 days of the maximum day plant production in storage capacity on its system;
iii) Constructing an interconnection between the public water system and another plant owned by that public water system or another public water system; and
iv) Any other alternative which would allow for continued and reliable water service during a period the public water supply was unavailable or unreliable due to contamination or other reason.
v) If one or more alternative appeared to technically and economically feasible, the public water system was to do a cost/benefit analysis of pursuing the option; and,
5) It requires more governmental entities and public involvement in the development and implementation of the plan.
The proposed amendment would increase the amount of time for the Bureau of Public Health to complete a review of the submitted SWPP, to allow for additional participation and input from the public and other interested entities, and to allow the BPH to better manage its limited resources. (Increased from 90 days to 180 days)
The proposed amendment requires the formal establishment of dedicated accounts, so the BPH can receive additional funding and resources to pay for the update and completion of the SWPPs.
Instead of mandating that all utilities have either a secondary intake or 3 to 5 days of storage capacity, the Staff Suggested amendment instead requires more extensive study and analysis be performed for each individual private water system as part of an updated or completed Surface Water Protection Plan in Code §16-1-9c.
The Bureau of Public Health’s authority to seek enforcement by injunction was moved to the end of §16-1-9a.
Additional definition for “potential source of significant contamination” was added to the bill. The definition of “zone of critical concern” was reworked to reflect a length defined by how it theoretically takes for water to travel 5 hours before reaching the public water intake. The HHR amendment and the original bill had initially set the length of the protective zone at 25 miles upstream of the intake, and would have allowed the Bureau of Public Health to either shrink or expand the zone, based upon the mathematical calculations previously performed in the previously completed Source Water Assessment Reports (SWARs).
The Staff Suggested strike and insert amendments also proposed several amendments to the new aboveground storage tank program to be overseen by the DEP, as proposed by Article 30 of Chapter 22.
Most significantly, the suggested amendment redefines aboveground storage tank, and eliminates the exceptions altogether.
As redefined, storage tanks less than 1310 gallons of capacity would be excluded from the definition. That corresponds to the size of tanks which contain oil and petroleum products are regulated. Therefore, the smaller tanks used for home propane units, heating oil and farm use would not be subject to registration or additional regulation under the proposed strike and insert amendment. Mobile tanks are also not defined as storage tanks for the purposes of this article, unless they remain in the same location for 60 days or more.
The proposed amendment also defines “process vessels” which are vessels or containers used to manufacture, mix or make chemicals, and excluded them from the definition of storage tanks. Storage tanks storing the raw materials or the finished product would be included within the definition of aboveground storage tanks, for purposes of this new article.
The definition of “secondary containment” was also revised to make it clear that in order to qualify as “secondary containment, the constraining structure would have to have an impermeable base, and be of sufficient capacity to contain the entire contents of the single tank or the largest tank if the structure is being used to contain several tanks, even with additional rain entering the containment structure. It would also have to keep any leaking fluids from entering the groundwater, or breeching the containment and flowing into surface waters.
In order to facilitate the DEP’s inventory of all aboveground storage tanks, all defined above-ground storage tanks would be required to submit a registration form to identify the tanks’ characteristics and contents as of July 1, 2014. If the owner of the tank believe that the tank was subject to regulation under existing state or federal standards or regulations, the form would have them identify the category or regulation and the referenced identify of any issued permit or license.
The bill would waive the need to permit certain categories of aboveground storage tanks, if they were already subject to state or federal regulation, and the standards under its existing regulation were as protective or more stringent than the protective standards established in this article or by DEP rule.
Additional minimum requirements and standards were required by the draft amendment, but the bulk of the standards would be established by the DEP by emergency and legislative rule. This would allow the DEP to establish industry appropriate standards for the respective categories of aboveground storage tank, after referring to the existing standards and guideline for each type of tank.
The only existing waivers provided by statute in the proposed strike and insert are very limited to the following:
2) natural gas or propane tanks regulated under NFPA 58-30 or NFPA 58-30B;
3) septic tanks (which are permitted and regulated by the Bureau of Public Health);
4) pipeline facilities and hazardous materials pipeline regulated by the Natural Gas Pipeline Safety Act of 1979 or the Hazardous Liquid Pipeline Safety Act of 1979, or other intrastate pipeline facilities regulated by the WV Public Service Commission or any other agency pursuant to those acts;
5) equipment or machinery containing substances for operational purposes;
6) mobile tank, truck or rail car which is located on a site for less than 60 consecutive days;
7) liquid traps or gathering lines associated with oil and gas production; and
8) surface impoundments, pits, ponds or lagoons.
Any additional waivers for other categories of aboveground storage tanks may only be granted by the DEP by legislative rule, after verification that the existing permits, regulations and standards are at least as comprehensive and protective as the aboveground storage tank standards required by this new article or by rule.
The amendments also require that permits for individual aboveground storage tanks may not be required if the storage tank is on the site covered by a general NPDES permit or an individual NPDES permit. However, it requires that the containment and protection standards required by the article or by rule be required as an express condition of the issued permit.
The provisions of proposed new §22-31-9 would require that any NPDES permit issued within a zone of critical concern for a public water system’s intake be an individual NPDES permit instead of a general permit. The provisions of new §22-30- Both of these actions will basically trigger the ability to seek citizen suit enforcement under the Federal Safe Drinking Water Act for any violation of these standards, once they are specifically made a condition of the permit. Public notice and hearing is required before an application for an individual NPDES permit can be granted.
Criminal penalties for violations under both new articles were also increased to be consistent with existing penalties which may be assessed for willful violations under the WV Water Pollution Control Act.
The Judiciary Committee added other provisions which provided for the installation and study of early warning systems, and provided for medical monitoring, which were removed in the Finance Committee.
TITLE: Needs modification to reflect recommended amendments.
GOVERNMENT AGENCIES AFFECTED: Cities, Counties, DEP, DHHR, Bureau of Public Health, Division of Homeland Security and Emergency Management.
EFFECTIVE DATE: 90 days
OTHER COMMITTEE REFERENCE AND/OR ACTION: Referred to three major committees of the House, in consideration of issues presented. The Committee on Health and Human Resources, Judiciary Committee and Finance Committee all recommended passage of the bill, with significant amendment.