New Regulatory Regime in West Virginia for ASTs – Here’s What You Need To Know

How does Senate Bill 373 Translate for Owners/Operators of ASTs?

A recent spill prompted the West Virginia (WV) Legislature to pass Senate Bill 373, which will affect how industrial liquids are regulated in the state. On March 8, 2014, WV created new regulatory programs for certain ASTs and public water utilities. The change comes primarily in response to a January 2014 spill of 4-Methylcyclohexane Methanol (MCHM) from an AST into the Elk River in Charleston, WV.

Senate Bill 373 creates two new statutes, the Aboveground Storage Tank Water Resources Protection Act (W.Va. Code Chapter 22, Article 30) and the Public Water Supply Protection Act (W.Va. Code Chapter 22, Article 31). The “AST Act” and the “Water Supply Act” will be implemented in rules or policy created by the West Virginia Department of Environmental Protection (WVDEP). Several industrial sectors, such as oil and gas producers, energy suppliers, and chemical and petroleum manufacturers, may be affected. Senate Bill 373 has stringent and detailed requirements, and filing deadlines, which EHS Support can assist you with.

In addition, the bill amends and expands other W.Va. Codes. However, this particular alert will focus on the provisions of the AST Act and Water Supply Act, highlights of which are summarized below.

What Does Senate Bill 373 Require?

AST Act

Owners or operators of ASTs must comply with the following requirements:

  • Registration: For ASTs made to contain more than 1, 320 gallons of fluids that are liquids at standard temperature and pressure and have more than 90 percent capacity above surface, inventory and register those tanks with the WVDEP by September 30, 2014 (certain exclusions apply; it will be unlawful for unregistered ASTs to be operated or used after October 1, 2014).
  • Permitting and Other Requirements: In addition to registrations, apply for a separate permit to construct, maintain, or use an AST after the effective date (limited waiver of requirements).
  • Annual Inspection: Conduct annual inspections conducted (reports must be submitted by registered Professional Engineer or otherwise qualified persons on or before January 1, 2015 and each year thereafter).
  • Financial Responsibility: Provide evidence of adequate financial resources to undertake corrective action.
  • Corrective Action: Close and remediate tank sites in accordance with standards to be developed by the WVDEP.
  • Spill Prevention Response Plan: Prepare and submit detailed, tank-specific Spill Prevention Response Plans within 180 days of the effective date and file updated plans every three years thereafter.
  • Notice to Local Governments and Public Water Systems: Provide notice as required by the secretary public notice to any public water system where the facility is located within the system’s identified groundwater supply’s source water protection area or within the system’s surface water supply’s zone of critical protection, to the local municipality, if any, and to the county in which the facility is located.
  • Required Signage: Display AST signage if any, required by the Occupational Safety and Health Administration; the tank registration number; and the emergency contact number for the owner or operator of the tank and the emergency contact number for the WVDEP Spill Reporting Hotline.
  • Fees: Pay annual registration fees and annual fee to “Protect Our Water Fund” (amounts to be determined).

 

Water Supply Act

The Water Supply Act directs WVDEP to compile an inventory of potential sources of significant contamination (PSSC) located within zones of critical concern for public water systems whose source of supply is obtained from a surface water supply source or a surface water influenced groundwater supply source.

Owners or operators of ASTs must:

  • Identify Critical Zone of Concern: If identified by WVDEP within a zone of critical concern, upon notice from WVDEP, register location with WVDEP, provide detailed information about the potential contaminants (regardless of how they are stored), and be prepared for possible increased regulatory requirements (including permitting and fees) by WVDEP and/or the Bureau for Public Health.
  • NPDES Permitting: On and after September 1, 2014, if ASTs larger than 1,320 gallons are governed by a general water discharge (NPDES) permit and in a potential contaminant source in a zone of critical concern, obtain a more detailed and site-specific individual NPDES permit.

 

What is the Status of the Regulations?

The WVDEP must draft rules for Senate Bill 373 and is seeking public input on what should be included in the rules related to how aboveground storage tanks are regulated. In order to meet that deadline, the DEP will file its proposed regulations as an emergency rule this fall. Normally, public comment is taken after rules have been drafted; however, the agency is requesting input from industry groups, experts, any member of the public with an idea about what needs to be addressed in the rules to be considered as they draft the regulations

Ideas can be submitted to the agency via email or through the mail by May 15, 2014 (include contact information for follow up). The email address is WVDEPTankRules@wv.gov.

Letters can be mailed to:

West Virginia Department of Environmental Protection Tank Rules 601 57th Street, SW Charleston, WV 25304

Once the first draft of the regulations is ready, which is expected to occur in mid-July, additional comments from stakeholders will be considered in revising the regulations before they are filed with the Secretary of State’s office. At that time, the rules will be put out for public notice, which includes a process by which the public can submit written comments or speak out at a public hearing.

How Can EHS Support Assist You?

WVDEP has indicated that when the rules are finalized, they will have 30 days thereafter to issue the forms. The agency will update their website with the registration information and will require companies to complete the registration online (they will not accept paper copies). It is expected that the agency will provide additional detail about the implementation of SB 373 and will include amount of the fees, permitting procedures, applicable standards, and requirements for installation, inspection, monitoring and permitting exemptions.

EHS Support has experience with other local, state, and federal spill prevention and storage tank requirements throughout the United States, including the Ohio, Pennsylvania, New York, Kentucky, and West Virginia. Several of our employees, some of which are local West Virginians, keep us alerted to recent agency developments and can easily coordinate site visits. We are working closely with companies to determine facility requirements, including Senate Bill 373 and upcoming regulations, and are ready to prepare registrations, plans, and assist facilities with achieving compliance with storage tank requirements.

For more information, please contact our Technical Experts: Amy Bauer or Brock Tucker. Additionally, you can refer to Senate Bill 373 to obtain the final version and details.

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