WV Aboveground Storage Tank Act – Interpretative Rule Regarding Initial Inspection, Certification and Spill Prevention Response Plan Requirements

By William E Chambers

The West Virginia Department of Environmental Protection (WVDEP) filed an interpretive rule with the WV Secretary of State’s office providing direction for the initial inspection and certification requirements set forth under the Aboveground Storage Tank Act. The legislation regulating aboveground storage tanks (ASTs) was passed due to the leak at the Freedom Industries chemical storage facility during January 2014 that impacted the public drinking water supply for Charleston and surrounding areas. The Aboveground Storage Tank Act requires a deadline of January 1, 2015 for the initial inspection of ASTs. The interpretive rule does not alter the date for the initial inspection, but assists the regulated community and the WVDEP get through the implementation of the Aboveground Storage Tank Act by directing the initial inspections to emphasize the sites with the greatest risk of harm to the public or the environment.

The rule classifies ASTs into three levels:

Level 1 AST – AST that is determined by the Secretary to have a high risk of harm to the public. These are ASTs located within a zone of critical concern (areas where a spill could likely impact a public drinking water intake), wellhead protection area or groundwater intake area under the influence of surface water; or

An AST containing substances defined in section 101(14) of the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) as a hazardous substance; or

An AST with a capacity of 50,000 gallons regardless of location or contents; or

Any AST that the Secretary determines exhibits a potential for high risk of harm to the public or the environment. The Secretary may consider factors including, without limitation, tanks that contain substances that are on the federal EPA’s Consolidate List of Chemicals Subject to EPCRA, CERCLA, § 112(r) of the Clean Air Act, regardless of the AST’s location.

The Secretary shall provide notice to the AST owner or operator of the Level 1 designation.

Level 2 AST – AST that is determined by the Secretary to have the potential for lesser risk of harm to public health or the environment than a Level 1 designation due to its contents, size or location, or or an AST that does not qualify as either a Level 1 AST or a Level 3 AST.

Level 3 AST - AST that is determined by the Secretary to have the potential for low risk of harm to public health or the environment due to its contents, size or location or because the AST is subject to strict regulations, including regular inspections, under another program (i.e., ASTs containing potable water, filtered surface water, demineralized water, noncontact cooling water or water stored for fire or emergency purposes, food or food-grade materials, or hazardous waste tanks subject to regulation under W.Va. Code § 22-18-1, et seq., [enhanced version available to lexis.com subscribers], and 40 C.F.R. § 264), [enhanced version available to lexis.com subscribers].

Initial Inspections and Certifications.

Level 1 ASTs – initial inspection of each tank shall be performed by a qualified professional engineer; or a qualified person working under the direct supervision of a professional engineer; or by an individual certified to perform tank inspections by the American Petroleum Institute (API); or by a person certified to perform tank inspections by the Steel Tank Institute (STI).

Level 2 ASTs and Level 3 ASTs – initial inspection of each tank shall be performed by any person qualified to perform a Level 1 AST inspection; by the owner or operator of the AST; or by any person designated by the owner or operator of the AST.

Appendix B of the interpretive rule is a checklist for the initial inspection of the AST. Certifications for all ASTs regulated under the Above Ground Storage Tank Act shall be on a form prescribed by the Secretary and submitted to the Secretary on or before January 1, 2015.

Initial Submission of Spill Prevention Response Plans (SPRP).

The owner or operator of a Level 1 AST shall submit a site specific SPRP that, at a minimum conforms to the requirements of Appendix C of the interpretive rule and in accordance with W. Va. Code § 22-30-9, [enhanced version available to lexis.com subscribers], by December 3, 2014. The deadline in the interpretive rule conforms to the deadline specified in the Aboveground Storage Tank Act.

The owner or operator of a Level 2 AST shall submit a site specific SPRP that, at a minimum conforms to the requirements of Appendix C of the interpretive rule and in accordance with W. Va. Code § 22-30-9 by December 3, 2014. Alternatively, if the owner or operator has been issued a permit by the Secretary under Articles 3,4, 6, 6A, 11, 15 or 18 of Chapter 22 of the West Virginia Code and has submitted a Groundwater Protection Plan (GPP), the owner or operator may submit to the Secretary a certification that such plan is current and list the applicable permit numbers that corresponds with such plan; however, the Secretary may request additional information, if necessary, in order to ensure such plans conform with statutory requirements.

If the owner or operator of a Level 2 AST is required to maintain on-site SPCC plans or Spill Prevention Plans, the owner or operator may submit the applicable plan to the secretary in lieu of the SPRP by December 3, 2014; however, the Secretary may request additional information, if necessary, in order to ensure such plans conform with statutory requirements.

The owner or operator of a Level 3 AST, other than hazardous waste tanks, that maintains an Emergency Response Plan as required by the federal EPA , the owner’s or operator’s submission of that plan to the federal EPA may be in lieu of submission of a SPRP to the Secretary by December 3, 2014. Alternatively, the owner or operator of a Level 3 AST may submit a site specific SPRP that, at a minimum, conforms to the requirements of Appendix C of the interpretive rule and in accordance with W. Va. Code § 22-30-9 by December 3, 2014.

A copy of the rule is available on the WVDEP’s Aboveground Storage Tank page at this link: http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Documents/2014-09-09InterpretiveRulereInspectionsSPRPs.pdf

It is anticipated that the WVDEP will file an Emergency Rule regarding the completed set of regulations for the Aboveground Storage Tank Act as a separate action to this Interpretive Rule.

About William Chambers

Bill Chambers is a Senior Environmental Consultant with Steptoe & Johnson. He is a Licensed Remediation Specialist (L.R.S.) registered with the West Virginia Department of Environmental Protection for managing projects under the Voluntary Remediation/Brownfields programs and Uniform Environmental Covenants Act program. Mr. Chambers has performed Phase I and Phase II environmental site assessments throughout the United States.He is a former Assistant Chief with the West Virginia Department of Natural Resources (1981-1986), overseeing coal mine permitting.

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