Report says Virginia has thousands of unregulated aboveground chemical storage tanks

Manufacturers describe push for legislation ‘a solution in search of a problem’

By: - December 13, 2021 12:02 am

A storage tank in Richmond, Va. (Sarah Vogelsong / Virginia Mercury)

A new report says Virginia has an estimated 2,700 to 5,400 aboveground chemical storage tanks that are neither tracked nor closely regulated by the state. 

“For about 30 years, Virginia has had comprehensive standards top to bottom for aboveground oil tanks, but essentially nothing for aboveground chemical storage tanks,” University of Richmond law professor and report adviser Noah Sachs told the State Water Commission Dec. 1. 

“We have no inventory,” he said. “There’s no legal obligation to alert anyone if you build the tank or operate a tank containing hazardous chemicals.” 

Inventorying those facilities is one of the recommendations of the Center for Progressive Reform’s “Tanks for Nothing” report released Wednesday, which urges Virginia to “enact a comprehensive program that tracks tanks, prevents spills and makes information available to emergency planners and the public.” 

The document follows a 2019 investigation by the nonprofit that found that almost 1,100 industrial facilities in Virginia’s James River watershed that use state or federally regulated chemicals are exposed to potential flood and sea level rise risks

“Virginia is quite possibly the most vulnerable jurisdiction on the eastern seaboard when it comes to climate impacts,” David Flores, a co-author on both reports, told the Mercury. 

While the federal Environmental Protection Agency regulates aboveground storage tanks containing oil, it does not have a specific program to regulate such tanks when they contain hazardous substances. A lawsuit brought by environmental groups in 2019 resulted in a settlement that will require the agency to issue regulations by 2022 governing “worst case discharges” of hazardous chemicals — a step that Flores said is “nothing to sneeze at” but won’t impose what he described as necessary spill prevention requirements.  

In the absence of such regulation, 10 states have developed their own oversight programs.  

Virginia lawmakers have shown sporadic concern for the issue since a highly publicized 2014 incident in Charleston, W.V. during which 10,000 gallons of a chemical used in coal processing leaked from a storage tank into the Elk River. The contamination affected the water supply of 300,000 residents, triggered a federal state of emergency, sickened more than 300 people and eventually spurred changes to West Virginia law.

A later investigation by the U.S. Chemical Safety and Hazard Investigation Board found that, among other issues, “because no uniform federal program regulates all ASTs, owners must navigate a web of miscellaneous statutes and regulations that directly or indirectly govern tanks, and states are left to fill those gaps with regulations.” In West Virginia, the board concluded that such tanks “were inadequately regulated.” 

In the wake of the Elk River spill, the Virginia General Assembly ordered a study of the commonwealth’s existing laws and regulations governing chemical storage. 

The report, done jointly by the Virginia Department of Environmental Quality, Department of Emergency Management and Department of Health, identified a number of potential gaps in chemical storage standards and drinking water protections related to chemical storage. 

Among its findings were that while certain chemicals are subject to reporting and notification requirements under federal law, “there are no corresponding regulatory programs that govern the storage of these chemicals”; a “patchwork of federal and state statutes and regulations” has resulted in a host of regulatory approaches “that may or may not address the risks associated with chemical storage”; and “there is a general lack of siting requirements for chemical storage tanks in near proximity to source water areas” identified by the state. 

Since then, little has changed, said Flores. Legislation to regulate aboveground chemical storage tanks was introduced in the state Senate and House in 2020 but failed to get traction amid opposition from manufacturers. Del. Alfonso Lopez, D-Arlington, is planning to put forward another bill on the issue in the upcoming session.

Brett Vassey, president and CEO of the Virginia Manufacturers Association, said that aboveground storage tanks are already effectively regulated by the Department of Environmental Quality and that proposals for further regulation are “a solution in search of a problem.” 

“This AST regulation scheme will result in hundreds of millions of dollars in new overlapping compliance and infrastructure costs without first identifying the targets and existing opportunities for government agencies to harmonize information already provided by industry,” he wrote in an email. 

Flores, however, said that reports by his group as well as the 2016 report by state agencies to the General Assembly “speaks loudly enough that the time to act is now.” 

The “Tanks for Nothing” report, for instance, analyzed pollution reports by the Virginia Department of Environmental Quality and found that between 2000 and 2020, the state had at least 1,484 instances of spills, releases, improper storage, and illegal dumping involving aboveground storage tanks. These incidents occurred across the state, impacting every locality except Charles City and King and Queen county, with an average of 11 incidents per jurisdiction. 

Pollution incidents involving aboveground storage tanks between Jan. 1, 2000 and Dec. 31, 2020. (Darya Minovi / Center for Progressive Reform)

Those numbers almost certainly underestimate the problem, the report’s authors conclude, writing that “even when incidents involving storage tanks are reported, information about the incident and its impacts may be scarce because state and federal regulations do not require operators to conduct spill investigations and reporting of the findings from those investigations.”  

“In my view, the time for studying the issue is over and it’s really time to get to some legislative requirements,” Sachs, the law professor who acted as an adviser on the report, told the State Water Commission. 

Commission members, however, voiced caution. Sen. Scott Surovell, D-Fairfax, who carried one of the failed 2020 bills, said the issue “presents an excellent opportunity for further discussion for next year to try to put together something that we could get a consensus on passing for perhaps the 2023 session.” Commission Chair David Bulova, D-Fairfax, similarly said it would “benefit from a followup to get into the weeds a little bit more during the next year.” 

Lopez nevertheless said he thought his bill could be viable in the upcoming session. Discussions involving “several significant changes” to the proposal he put forward in 2020 are underway, he added. 

“We have a lot more research now and a lot more information this year,” he said. “We believe that by going through and negotiating these changes with all the parties, we might be able to get to yes.”

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Sarah Vogelsong
Sarah Vogelsong

Sarah is the Mercury's environment and energy reporter, covering everything from utility regulation to sea level rise. Originally from McLean, she has spent over a decade in journalism and academic publishing and previously worked as a staff reporter for Chesapeake Bay Journal, the Progress-Index and the Caroline Progress. She is the recipient of a first place award for explanatory reporting from the Society of Environmental Journalists and has twice been honored by the Virginia Press Association as "Best in Show" for online writing. She was chosen for the 2020 cohort of the Columbia Energy Journalism Initiative and is a graduate of the College of William and Mary. Contact her at [email protected]

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