West Virginia Storage Tank Rules Make Some Fear Citizen Lawsuits

By Jonathan Matisse | June 16, 2014

Industry groups are jittery that if state regulators require the wrong type of permit, companies could be subject to citizen lawsuits under a new environmental law that regulates storage tanks.

State regulators disagree, and are convinced the new aboveground tank law won’t let citizens sue to enforce it.

Many groups thought the issue was settled when state lawmakers omitted a citizen-lawsuit option while crafting the law, which responds to a January spill that spurred a days-long ban on tap water for 300,000 West Virginians.

The tank law calls for new inspections, registrations, inventories and other regulations on aboveground tanks, with the most stringent rules applying to tanks near water supplies. It doesn’t say anything about opportunities for citizens to sue over enforcement issues.

Using one existing permit type could save regulators time and effort. But industry groups think it also would unintentionally allow citizen lawsuits and federal Environmental Protection Agency oversight, since that permit falls under the Clean Water Act.

“Creating a ‘federal right of action,’ either by EPA or third party lawsuit, is directly counter to the intent of the new (aboveground storage tank) statute,” the West Virginia Coal Association wrote to state environmental regulators last month.

The state Chamber of Commerce and American Electric Power made similar warnings.

The state Department of Environmental Protection said it shouldn’t matter, since new tank requirements are in state law, not federal.

Environmentalists hope the technicality offers them another shot to make citizen lawsuits possible.

“We just have no confidence that DEP would do an adequate job overseeing the chemical industry on these aboveground storage tank rules,” said Dianne Bady, Ohio Valley Environmental Coalition project coordinator.

Other lawsuits under the Clean Water Act have fared well for state environmental groups this year.

They clinched a landmark win this month against mountaintop removal mining. A judge ruled two Alpha Natural Resources mountaintop removal mines dumped waste into streams and killed off aquatic life.

Alpha lost another April ruling that its Raleigh County coal slurry impoundment violated the state’s water quality standard for selenium. A week later, a judge made a similar selenium ruling against a CONSOL Energy mine in Mingo County.

Though the tank law is already etched into code, environmental regulators still have to craft plenty of rules that dictate permitting, exemptions, inspections and more. Portions of the law become effective by different deadlines.

The state’s first draft of tank rules could be available as early as this summer, said DEP spokeswoman Kelley Gillenwater.

Ultimately, lawmakers need to approve rules in the two-month legislative session starting in January.

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