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Most propane tanks in W.Va. unregulated

By Ken Ward Jr.
Charleston Gazette (West Virginia)
Copyright 2007 Charleston Newspapers

W. Va. — Propane tanks like the one that caused Tuesday’s deadly explosion in Raleigh County - and like those that heat thousands of West Virginia homes - are mostly unregulated, according to government officials and public records.

When installed at most homes, propane tanks and associated equipment are exempt from West Virginia’s fire code, according to a recent Supreme Court ruling.

Propane equipment used at businesses and at larger apartment complexes must comply with fire codes.

But an understaffed fire marshal’s office is rarely able to enforce those requirements, critics and government officials agreed Wednesday.

“There is no regulation. It is nil,” said David Romano, a Clarksburg lawyer who has tried to reform the system.

Still, the propane industry is looking for legal protections with a bill - introduced the same day as the Ghent explosion - to outlaw certain types of lawsuits against propane dealers and installers.

On Wednesday, state investigators were still in the early stages of their probe of the blast that killed four people at the Flat Top Little General Store.

They were joined by a team from the federal Chemical Safety Board, which is considering whether it should examine the broader implications of Tuesday’s explosion.

“We want to look and see what lessons could be learned here to prevent similar accidents from happening involving propane,” said Sandy Gilmour, a press spokesman for the board.

Nine years ago, the board investigated an April 1998 propane explosion at an Iowa turkey farm that that killed two volunteer firefighters and injured seven other emergency responders.

In that accident, two teenagers riding ATVs plowed into unprotected piping associated with an 18,000-gallon propane tank farm. Propane began leaking, caught fire and exploded.

After its investigation, the chemical board found that neither the farm nor its propane vendor had submitted plans for the tanks for review by the Iowa state fire marshal, as required by a uniform fire code adopted by the state. Even if the plans had been submitted, the board found, the fire marshal did not have a good program for properly reviewing such documents to be sure they complied with safety rules.

In West Virginia, state lawmakers have also adopted that uniform propane safety rule, called Code 58, from the National Fire Protection Association.

But the two 500-gallon tanks involved in the Ghent explosion were far less than the 2,000-gallon standard that would require a plan to be filed with and reviewed by West Virginia’s Fire Marshal’s office.

Ted Lemoff, an engineer with the National Fire Protection Association, said a 500-gallon tank is a normal size that a convenience store might use for heat, cooking, and perhaps to fill smaller containers for customers. The tank would be large enough to fill about 100 standard gas grill cylinders, Lemoff said.

Lemoff said that tens of thousands of similar tanks are installed around the country, and that they face various levels of scrutiny, depending on the local government.

In West Virginia, Fire Marshal Sterling Lewis said that his office — with just 12 inspectors and an annual budget of about $3.3 million — simply can’t get the job done.

During a news conference Wednesday, Lewis said propane tanks are supposed to be inspected when they are installed. But he said “thousands go in” all over the state every year without a state inspection.

“Should they be inspected on a more regular basis? Absolutely,” Lewis said. “Is there manpower to inspect them on a regular basis? Absolutely not.”

Generally, a marketer installs the tank and comes back periodically to refill it, industry officials said. The responsibility for initial and ongoing safety exams falls to the supplier.

That’s exactly what the propane industry doesn’t like.

Steven Emerson, a propane industry lawyer in Kansas City, said that people injured by propane explosions have tried to argue in court that companies who install tanks have a legal obligation to come back periodically and inspect them.

Companies don’t believe that’s fair, and argue against it, Emerson said.

Also, in states around the country, propane trade associations are pushing legislation that would require work on propane equipment to be done by certified personnel. Model legislation would also exempt propane companies from liability if they install equipment and someone without certification comes around later and works on it.

“History shows us that a lot of accidents have happened when unqualified people were working on these systems,” Emerson said.

Such legislation passed in Kentucky in 2005, and a bill was introduced Tuesday in West Virginia at the request of the West Virginia Propane Gas Dealers Association. Sponsors of the bill (HB2733) include Delegates Danny Wells, D-Kanawha, Scott Varner, D-Marshall, and Steve Kominar, D-Mingo.

The bill would protect propane companies from liability if injuries or damages occur when equipment is altered, modified or repaired “without the knowledge and consent of the liquefied petroleum gas seller, supplier, handler or transporter.”

“People should not be doing this,” said former Delegate Rudy Seacrist, a lobbyist for the propane group. “This is a dangerous product. We found that out yesterday.”

Seacrist said that he was not aware of any lawsuits of the kind the bill aims to address ever having been filed in West Virginia.

But one major propane case with statewide implications continues to make its way through Monongalia County Circuit Court.

In that case, Samuel and Brenda Swiger sued Amerigas after a propane explosion on their property. While putting in a landscape border, Samuel Swiger struck a propane line, which had been installed by Amerigas and buried less than six inches from the surface.

The suit became a class action that examined an alleged widespread practice by Amerigas to not bury propane lines outside homes at a safe depth.

Under the national fire code, propane lines are generally supposed to be buried 18 inches deep.

Amerigas undertook a voluntary program to inspect and rebury any lines that were not deep enough. The company reburied more than 4,000 lines, according to lawyer David Romano, who represented the Swigers and other residents with similar problems.

In the meantime, though, Amerigas appealed, arguing that a state rule written by the Fire Marshal exempted one and two-family homes from the 18-inch burial requirement.

Monongalia Circuit Judge Robert B. Stone had concluded that the rule did apply.

In March 2005, the Supreme Court overturned Stone in a unanimous ruling written by then-Chief Justice Joseph Albright.

The effect? State fire codes concerning propane installations do not apply to the thousands of one- and two-family homes across West Virginia that have such equipment.

In his opinion, Albright noted that Stone had upheld the rule’s applicability because he was concerned that the results of doing otherwise “would be dire, at best.”

Albright noted there are other laws, such as the state building code that has been adopted by three counties and 49 cities in West Virginia.

Michael Romano, another lawyer for the Swigers, said such codes don’t help West Virginians who live in counties or towns that have not adopted them.

“Propane is very loosely regulated,” Romano said Wednesday afternoon. “People are really at risk.”