Legislative leaders are questioning how the state Department of Environmental Protection is moving forward with the implementation of registration and inspection requirements within the Aboveground Storage Tank Act.
“They’ve decided to go with an interpretive rule which I’m a bit troubled by only because it usurps the power of the Legislature and it lets administrative agencies or bureaucrats actually say, ‘This is what the Legislature meant in passing their law and this is how we’re going to enforce it,’” said Senate President Jeff Kessler (D-Marshall, 2)
On Tuesday, the DEP issued a proposed interpretive rule that creates three different classifications for aboveground storage tanks with varying initial inspection requirements at each level based on a “risk assessment approach.”
All tanks still must be registered by Oct. 1. Level I, Level II and Level III classifications will be assigned after registration. What’s different is basically who is required to inspect those tanks before Jan. 1 based on the threats their contents pose to public health. Certified inspections will be required of Level I tanks with the DEP having leeway to determine potential dangers.
Angie Rosser, executive director of the West Virginia Rivers Coalition, said the interpretive rule was a “compromise.”
“I think Freedom Industries just woke us all up to the connections between environmental protection and our public health, our economic security, our quality of life and it’s almost, in my view, been a reassessment of our values,” Rosser said.
On Wednesday’s MetroNews “Talkline,” Kessler said he thinks lawmakers should have taken up the different classifications and inspection guidelines — what he called “a bridge” to the permanent regulations — in a Special Session. Without that kind of statutory action, he said the DEP should have filed an emergency rule.
If there is a legal challenge, “This interpretive rule will not hold water as any type of legal authority to resist that challenge as an emergency rule would have,” said House Speaker Tim Miley (D-Harrison, 48) who also questioned the DEP’s methods.
