Last week there were two pieces of legislation that kept my voicemail and inbox full.
They were SB11 (the public employees work stoppage bill) and the HB2598 (the above-ground storage tank bill). In this update I will address only these two bills.
The public employees’ work stoppage bill seeks to hold taxpayer-funded employees accountable for their actions should they decide to simply walk away from their duties and responsibilities for personal gain, an action that is already illegal as per state code.
There was a parallel bill in the house which would have mandated that striking employees could continue being paid their wages, but that monetary loss to the taxpayers would be deducted out of the budgets of the striking employee’s public agency the following fiscal year. The goal was to incentivize agency heads to do everything possible to deter the illegal work stoppage. SB11 seeks to simply not pay illegally striking public sector employees and set the conditions for their potential termination. The goal of this bill is to stave off public service issues that potentially happen during a public sector work stoppage like public transportation leaving people stranded, schoolchildren falling behind in their academics, or catastrophic failures of public water treatment plants, for example.
What the bill’s critics say, followed by the facts:
“This is a retaliatory attack upon our schoolteachers!” First, while past schoolteacher actions perhaps may have provided the catalyst and justification for such a bill, it does not seek to specifically target “schoolteachers.” It seeks to deter all public sector, taxpayer-funded employees from intentionally harming our public services upon which society depends. I would imagine that if we legislators decided to throw our hands up and walk away from our duties and responsibilities we were elected to do we would quickly be held accountable for our actions and rightly so.
“This is unconstitutional!” This is another attempt to mislead the public by the opponents of this initiative. Public employees still have the right to peacefully assemble and make their grievances heard. This right is guaranteed by our Constitution. However, they do not have the right to do it during their normal duty hours which, according to state law, is illegal.
“This is not fair!” The fact is this is among the fairest bills I have seen to date. It is fair to the good public employees who work hard every day and do not want to be pressured by union bosses into doing something they do not want to do. It is fair to the taxpayers who butter the bread of the public employees. These taxpayers would likely be fired on the spot if they refuse to go to work. It is also fair for the general public which daily depends upon the public services to be rendered efficiently and without delay.
A bill such as this encourages me to give thanks for our military members currently serving around the world, sleeping out in the elements, getting shot at, not having union representation and knowing they would be prosecuted for being A.W.O.L. from their assigned duties and responsibilities to the taxpayers. I support this initiative.
The above-ground storage tank bill is certainly receiving much attention, as it should. After all, access to clean water is important. This bill seeks to remove some business hindering language in the West Virginia Aboveground Storage Tank Act of 2014 thereby reinstating an element of fairness back into the process of regulating the oil and gas industry.
Many believe that the law as originally passed in 2014 was an emotionally charged knee-jerk reaction to the Freedom Industries Storage Tank Leak into the Elk River right around the time of the 2014 legislative session. It greatly expanded regulations and forced unfunded mandates not only upon large businesses such as the culprit responsible for the leak but on every other entity that owned aboveground storage tanks, both large and small. It resulted in deterring some small business startups and has created a situation whereby state DEP inspectors cannot keep up with the inspection schedule.
Therefore, tank owners must now pay for this unfunded mandate twice monthly in addition to their ongoing annual state permit fees — that partially fund DEP inspection fees. This is not fair! The original bill mandates that tanks categorized within the “zone of critical concern” (tanks that are within 1,000’ of a river), must be inspected every two weeks. To be clear, under the current law if you are one of the “little people” who own only one tank in this zone, you must pay for an inspection of your tank twice monthly in addition to paying the DEP an annual permit fee to do the same! This new bill would require tanks in this zone to be regulated in the same manner as any other tanks and, while they would still require inspections, it would not be every two weeks.
What the bill’s critics say, followed by the facts:
“This bill will poison our water!” These are typical fear-mongering statements designed to kill the bill. What the opponents do not consider is the fact that taxes collected from business entities within the oil and gas industry help fund the Department of Environmental Protection. They help fund public waste-water treatment and water treatment plants. They help fund a plethora of other environmental initiatives including education, research, and technology. The current bill is creating a significant burden on business owners whose tax revenue we depend upon to care for our environment, including our water. Why would we ever continue to relentlessly use poorly written statutes to attack, cripple, and run them out of business?
“The tanks in question are old, leaking, ticking time-bombs!” On Thursday, March 4, I listened to testimony by an upper-level DEP inspector on the matter. To be fair, he opposes the bill. However, while speaking under oath he did admit to several facts. Out of 75,000 wells that may be associated with tanks, only 887 of those aboveground storage tanks are “in the zone of critical concern.” Of these 887 tanks, inspectors found approximately 700 types of “NOVs” — infractions as per their very rigid inspection standards — during inspections in 2020. Of all those NOVs issued, only 24 were issued for tanks found to have what would qualify as a “leak” in the initial containment structure. There was no mention of any leaks found in the required secondary containment (or liquid catch) structure that surrounds all tanks. He admitted that of the 24 “leaky tanks” zero were deemed to pose an imminent threat to any water source. In other words, only 3% of all tanks inspected showed evidence of “a leak” but none of the 24 were a critical threat by DEP inspectors despite the cited NOVs! So, what is DEPs motivation for issuing so many NOVs for tanks not deemed to be problematic? The answer could be money.
At this point, it should be noted that if the same inspectors were to use their own agency inspection standards to look underneath most vehicles on the road today, they would find the same evidence of “a leak”, which could merely be fluid residue around an oil pan plug or a fluid droplet that forms but does not drop during the inspection. Moreover, many of these tanks hold brine water, some of which may be subsequently purchased by the Department of Highways to pretreat our roads to keep us safe during the winter months. Was anyone aware of this? Give this fact some thought as you pour salt onto your dinner tonight.
It should also be noted that the DEP receives a healthy portion of its funding from citations. Deduce what you may from this disclosure. My take on that is that for every NOV/infraction they issue that results in a fine the more revenue stream into the Department of Environmental Protection, hence the oftentimes overbearing and rigid inspection standards. This state agency will even fine other state agencies!
When it comes to protecting the environment there seem to be two differing approaches. The first is a knee-jerk approach that strives to heap a plethora of unfair and unfunded mandates seemingly designed to crush the very businesses society depends upon the most under the guise of “saving the planet from imminent destruction in less than a decade.” The other methodical approach is to find rational and fair balances between holding individual business owners accountable for their actions while giving them the freedom to operate safely under the same regulatory guidelines as others in their industry. After all, these businesses fund many of our state agencies that keep our state safe, clean, and free and the last thing we should be doing is to continue punishing an entire industry due to the negligence of a single business or two.
Contrary to popular belief, both democrats and republicans enjoy a nice refreshing glass of water. After hearing all the evidence within the committee on health on which I serve, as well as my own personal experiences with DEP as a former certified Class 1 Water Treatment Plant Operator and a manager of natural resources, I certainly would not have supported this initiative if I believed it to be unsafe in any way or posed an imminent threat to our water resources.
If anything, bringing an element of fairness into the Aboveground Storage Tank Act will provide tank owners the ability to re-invest into the safety and employment potential of their businesses instead of spending this money every two weeks on unnecessary inspections. Especially when most are already personally motivated to care for their tanks in order to protect their product and livelihood. To this end, I am considering proposing an amendment to double the fines upon tank owners for any catastrophic event associated with negligence.
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