States Should Act to Protect People and Our Environment from Unregulated Chemical Tanks

Johnathan Clark

Jan. 12, 2022

On the morning of January 9, 2014, residents of Charleston, West Virginia, noticed an unusual licorice-like odor in their tap water. Within hours, a federal state of emergency was declared as 300,000 West Virginia residents were advised to avoid contact with their tap water, forcing those affected to rely on bottled water until the water supply was restored over one week later.

Even after service was restored, traces of the chemical remained detectable in Charleston's water supply months after the spill. The economy of the region was brought to an abrupt halt and nearly 400 people sought emergency room care with symptoms of nausea, headaches, and vomiting.

The cause of the contamination was methylcyclohexane methanol (“MHCM”), a chemical used in industrial coal processing. Roughly 11,000 gallons of the substance had leaked from a severely corroded aboveground storage tank located a mile and a half north of the city’s municipal water intake on the banks of the Elk River, poisoning the water supply of nine counties.

In the aftermath of the spill, many West Virginia residents were left wondering how such a disaster could have struck with so little warning. State inspectors who arrived at the facility noted that workers had attempted to block the leak with a fifty-pound bag of absorbent material, but the tank’s owners had not reported the spill to the state Department of Environmental Protection or the municipal water utility until after the inspectors’ arrival.

As detailed in our recent report, Tanks for Nothing: The Decades-long Failure to Protect the Public from Hazardous Chemical Spills, the West Virginia Legislature moved quickly to address demands for increased regulatory oversight of aboveground chemical storage tanks (ASTs). With the memory of the spill still fresh in the minds of legislators and constituents, West Virginia enacted the Aboveground Storage Tank Act in 2014. The program primarily serves two major functions: to enact and enforce standards to reduce the risk of a future spill, and to make information about regulated tanks available to state regulators and the public.

In its original form, the law applied to any vessel storing at least 1,320 gallons of any liquid with at least 90 percent of its capacity aboveground, although recent rollbacks have narrowed its scope. Regulated ASTs were required to meet design, siting, and construction standards to reduce the risk of future structural failures. Tank owners and operators were also required to register ASTs with the state, informing state regulators and the public of the locations and contents of tanks storing hazardous substances within West Virginia communities.

Regrettably, it was not long before state legislators began to forget the costs of unregulated chemical storage and the lessons supposedly learned from the Elk River spill. The first round of rollbacks to the act came barely a year after its enactment, when numerous exemptions were added to remove thousands of ASTs from regulation. Further rollbacks came in 2019, including concessions to the fossil fuel industry removing certain tanks used in oil and gas development from regulation. West Virginia’s law remains susceptible to future rollbacks so long as legislators continue to prioritize industry interests over public safety.

Despite the vulnerability of its program, West Virginia still imposes more standards on ASTs than most states, and comprehensive federal regulations for ASTs storing products other than petroleum are largely nonexistent. The scope and effectiveness of AST regulations in the nine other states with regulatory programs – Delaware, Florida, Kansas, Massachusetts, Minnesota, New Jersey, New York, Pennsylvania, and South Dakota – vary significantly in the absence of standardized guidelines.

For example, New York imposes registration requirements, spill prevention standards, response planning measures, and public information requirements on tanks storing at least 185 gallons of a hazardous substance, while Pennsylvania and Delaware both impose similar regulations on tanks containing at least 250 gallons. In contrast, Massachusetts only regulates tanks with a capacity of at least 10,000 gallons and does not require tank operators to submit spill response plans, resulting in fewer tanks subject to less rigorous public protections.

Despite these variations, regulation still creates an avenue for states to prevent chemical disasters where federal rules are lacking. Choosing not to regulate leaves workers and community members blind to the dangers posed by ASTs and invites yet another disastrous spill or tank explosion.

The Biden administration and EPA have an opportunity to enact comprehensive AST regulations at the federal level and set baseline standards nationwide. Likewise, while a federal rule is pending, state regulators should follow the commonsense examples set by other jurisdictions and enact their own protections.

Virginia, for example, has considered proposals to enact AST regulations in the past without adopting them. The current legislature must finally act on these proposals to protect the state’s communities and natural environment.

Climate change, aging infrastructure, and insufficient regulatory oversight only increase the likelihood that a future AST spill will occur. Comprehensive regulation of aboveground chemical storage is long overdue nationwide, and it is needed now more than ever.

To learn more about this issue, please watch our January 13 webinar and check out our recent report.

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