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By Henry R. "Speaker" Pollard, V, Partner, Williams Mullen
The Virginia State Water Control Board (“Board”) recently published long-awaited changes to the state’s petroleum aboveground storage tank (“AST”) regulations. This is a final regulatory action, and the changes become effective November 1, 2015. These amendments cover a fair amount of ground, but generally clarify and simplify the regulations in important ways.
The clarifying changes address: (i) the calculation of aggregate storage; (ii) the exclusion of ASTs that are integral parts of machinery or equipment, including providing specific examples; (iii) due dates of registration filings; (iv) references to the statewide building code for certain closure performance standards; (v) the maintenance of inspection records; (vi) specific, conditional and self-executing variances to avoid the administrative burden of some of the more common exemption petitions; (vii) the purposes of an Oil Discharge Contingency Plan (“ODCP”); (viii) the deadline for notification of amendments to the Facility Response Plan if it is also part of the ODCP; and (ix) helpful compliance resources to assist with selection, upgrading or inspection of an AST.
The amendments also simplify and reduce duplication within the pollution prevention standards. That section of the regulations has been completely reorganized. It now begins by describing the pollution prevention requirements for ASTs at facilities having aggregate capacities exceeding 25,000 gallons. These requirements include changes applicable to inventory control, secondary containment, safe fill and shutdown procedures, pressure testing of piping, inspections, and training. This is followed by restructured standards for facilities with a storage capacity of 1 million gallons or more. These standards include formal inspections, formal re-inspections, safe fill and shutdown procedures, and cathodic protection for piping.
A few other changes are of interest. The AST registration fee has been eliminated. (The fees due in connection with filing an ODCP remain, however.) In addition, the amendments incorporate more recent industry standards for better alignment with current technologies and practices. Finally, pursuant to state legislation enacted in 2011, the amendments establish new, specific performance standards (e.g., for strength testing and release prevention barriers) for AST facilities in the City of Fairfax having aggregate AST oil storage capacity of at least 1 million gallons. (The sole such facility is the one owned by Motiva that had a large release of petroleum in 1990.)
It’s always worth remembering that the term “oil” in the regulations is defined very broadly to include petroleum variants of all kinds, including sludge, oil refuse and oil mixed with other wastes, and all other liquid hydrocarbons. The breadth of this definition can be a trap for the unwary, but it is hoped that these amendments will make it easier for AST owners and operators to comply with Virginia’s AST regulations.
31 Va. Reg. Regs. 2540 (August 24, 2015), [subscribers can access an enhanced version of this regulation: lexis.com | Lexis Advance], codified at 9 VAC 25-91, [subscribers can access an enhanced version of this statute: lexis.com | Lexis Advance].
About Williams Mullen
With approximately 225 attorneys practicing in over 30 practice areas, Williams Mullen provides comprehensive legal services to regional, national and international clients. Their clients include multinational Fortune 500 companies, private family-owned businesses, nonprofit organizations and government entities. From offices in North Carolina, Virginia, Washington D.C. and London, Williams Mullen attorneys bring skills and experience to solving the legal needs of their diverse client base.
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