January 01, 2015

West Virginia’s Chemical Spill and Tank Bill

Gale Lea Rubrecht

In January 2014, chemicals leaked from aboveground storage tanks (ASTs) into the river in Charleston, West Virginia, one mile upstream of a public water supply intake, contaminating the drinking water of approximately 300,000 residents. Less than sixty days later, the legislature drafted and passed the Aboveground Storage Tank Act (the Act), Senate Bill 373. The Act includes a new registration, permit, and regulatory program for ASTs and directs the West Virginia Department of Environmental Protection (WVDEP) to develop emergency and legislative rules to implement the new program for consideration during the 2015 legislative session.

The Act applies to all new and existing ASTs located in the state that are large enough to hold at least 1,320 gallons of fluid, are in one place for more than 60 days, are 90 percent or more above ground, and are not “process vessels” as defined by the Act. Sewage treatment tanks are an example of exempt “process vessels.” Other exclusions are limited to swimming pools and federally regulated shipping containers, railroad freight cars, barges, and boats.

WVDEP must compile an inventory of all existing ASTs. Although the legislature gave WVDEP until July 6, 2014, to launch the inventory and registration process, WVDEP opened registration early. Registration information is being collected online and must include tank ownership, location, installation date, construction type, capacity, age, contents, and identity of and distance to the nearest public water supply intake. If the tank is already regulated, the tank owner must provide any identifying number issued for the tank and the regulatory standards that the tank is required to meet. Owners of existing ASTs must register their tanks and pay a registration fee by October 1, 2014. New ASTs must register and request permission to place the tank into service pending a permit application. WVDEP will send an invoice to tank owners after they register their ASTs and WVDEP develops a fee structure.

Additionally, WVDEP must develop a permit program for ASTs incorporating nationally recognized standards. Minimum requirements for the permit program are (1) verified permit applications; (2) performance standards; (3) leak detection systems or comparable systems designed to identify releases; (4) records of leak detection, inventory control, or tank testing systems, and corrosion prevention; (5) early release detection and release reporting; (6) corrective action plans; (7) closure and remediation; (8) certification of installation, removal, retrofit, corrosion, and other testing and inspection of ASTs, leak detection systems, and secondary containment by a qualified registered professional engineer or other individual specified in the Act; (9) life-cycle management, including mitigation and corrosion prevention plans, unless the AST complies with a WVDEP-approved nationally recognized standard; (10) permit application and registration fees; (11) permit issuance only after WVDEP approves the application and supporting documents; (12) commencement of any AST maintenance work within six months of permit issuance and completion within one year of commencement unless WVDEP grants a written extension; (13) procedures for administrative resolution of violations, assessment of administrative civil penalties, and appeals; (14) procedures for identifying ASTs located within a “zone of critical concern” or “source water protection area” for a public water system’s surface water or groundwater intake and determining if additional permits and requirements should be imposed on that AST facility; and (15) recordkeeping.

A “zone of critical concern” for a public surface water supply source is “based on a five-hour time-of-travel of water in the streams to the water intake, plus an additional one-fourth mile below the water intake.” The zone extends “[1,000] feet . . . from each bank of the principal stream and [500] feet . . . from each bank of the tributaries draining into the principal stream.” The “source water protection area” for a public groundwater supply source is the area within an aquifer that supplies water to a well within a five-year time-of-travel.

While all ASTs are subject to the inventory and registration process, tanks that “do not represent a substantial threat of contamination or are already regulated under standards that meet or exceed the protective standards and requirements of the [Act]” are excluded from the permit program. The statutory exclusions are (1) ASTs containing drinking water, filtered surface water, demineralized water, noncontact cooling water or water stored for fire or emergency purposes; (2) certain natural gas or propane tanks; (3) septic tanks and home aeration systems; (4) certain pipeline facilities; (5) equipment or machinery containing substances for operational purposes, such as integral hydraulic lift tanks, lubricating oil reserves for pumps and motors, electrical equipment, and heating and cooling equipment; (6) mobile tanks or trucks located on site for less than sixty consecutive calendar days; (7) liquid traps or associated gathering lines related to oil or gas production and gathering operations; (8) surface impoundments, pits, ponds, or lagoons; and (9) ASTs regulated under the federal spill prevention, control, and countermeasure (SPCC) program.

WVDEP may waive permitting for additional categories of ASTs if the tank is regulated under an existing state or federal regulatory permit or enforceable standard that includes requirements for secondary containment with an impermeable base sufficient to contain the contents of the tank or the largest tank in the group of tanks, spill prevention, leak detection and control, inspections, integrity testing, emergency response, and notification.

Rather than requiring a separate AST permit, WVDEP may allow the requirements of the Act to be incorporated and enforced through the state-only portion of the National Pollutant Discharge Elimination System (NPDES), an oil and gas permit, or a horizontal well permit. If the AST is regulated pursuant to a NPDES permit, the requirements for secondary containment, spill prevention, leak detection and control, inspection, reporting, and routine testing must be set forth as enforceable permit conditions and requirements.

Owners/operators of an AST subject to the Act must provide evidence of adequate financial resources to undertake corrective action and have an annual inspection of each tank by a qualified registered professional engineer or other qualified individual and submit to WVDEP a certification from the engineer that each tank, associated equipment, leak detection system, and secondary containment structure meets the minimum standards established by the Act and implementing regulations. The first certification form is due January 1, 2015. WVDEP must inspect AST facilities located within zones of critical concern of a public water system annually.

Every AST must display the signage, if any, required by the Occupational Safety and Health Administration; the tank registration number; the emergency contact number for the owner/operator; and the number for WVDEP’s Spill Reporting Hotline. The signage requirements are to be specified in the rules to be promulgated by WVDEP.

In consultation with the Bureau of Public Health and emergency response agencies, AST owners/operators must develop site-specific spill prevention response plans (SPRPs) and submit them to WVDEP. Minimum plan requirements include providing (1) a description of site activities and applicable hazard and process information, inventory of all types and amounts of fluids stored in ASTs, material safety data sheets (MSDS) for all fluids stored in ASTs, and drawings of the AST facility, including the location of all drainage pipes and water outlets; (2) a list of all facility-related positions having responsibilities for the facility’s plan, including chain of command, emergency coordinators, and emergency response contractors; (3) a preventive maintenance program that includes monitoring and inspection procedures, identification of stress points, employee training programs, security systems, “description of potential . . . areas where spills and leaks may occur by drawings and plot plans and…specific spill prevention measures for those . . . areas”; (4) a response to be taken upon the occurrence of any release; (5) contact information obtained from the county and municipal emergency response agencies and the nearest downstream public water supply intake for the designated person(s) to be notified in the event of a release; and (6) all other information requested by WVDEP.

Initial plans were due December 3, 2014, and updated plans every three years thereafter. WVDEP must either approve or reject the plan and require modifications. If WVDEP rejects the plan and requires modifications, the owner must submit a revised plan within thirty days.

Revised SPRPs must be submitted to WVDEP if (1) the owner/operator removes or adds any ASTs or substantially modifies any AST, associated equipment, emergency equipment, or emergency response protocols; (2) there is an increased risk of fire, explosion, or release; (3) the plan fails in an emergency; or (4) WVDEP requests an update about “other circumstances.”

AST owners/operators must provide annual notice to the local municipality and county in which the facility is located and to those public water systems where the AST facility is located within the zone of critical concern or source water protection area for the public water system’s surface water or groundwater supply. The notice must include the type and quantity of fluid stored and their MSDSs. Additionally, the owners/operators must provide to the applicable public water systems and county and municipal emergency management agencies WVDEP-approved SPRP and any approved updates to the plan.

Upon WVDEP’s request, any owner/operator must furnish information relating to its ASTs, conduct monitoring or testing, permit WVDEP to inspect and copy records, and grant access for corrective action. WVDEP may enter an AST facility at any time, inspect and sample any fluid contained in an AST, conduct monitoring or testing of the ASTs, contents, or surrounding soils, surface water, or groundwater, and take corrective action.

The public will have access to all information submitted to WVDEP except trade secrets. A list of the “potential sources of significant contamination” within a zone of critical concern may be disclosed; however, the “exact location of the contaminants” may not be disclosed. The “location, characteristics, and approximate quantities of potential sources of significant contamination” within a zone of critical concern will be disclosed to the public water utility but maintained “in a confidential manner.” If there is a release, then information pertaining to the release will be disseminated to any emergency responders responding to the release and the general public will be notified.

WVDEP may issue orders or commence a civil action for appropriate relief, including a temporary or permanent injunction, stay any order pending review, enter into consent agreements, and seek civil and criminal penalties. Any person adversely affected by a WVDEP order Act may appeal. Duplicative enforcement is prohibited unless the subsequent proceeding involves the violation of a permit or permitting requirement of another state environmental law.

If evidence exists that an AST may present an imminent and substantial danger to public health, water resources, or the environment, WVDEP may seek an abatement order. WVDEP must give immediate notice to the appropriate state and local government agencies and any affected public water system and require notice of any danger to be posted at the AST facility.

The Act establishes two funds, the AST Administrative Fund and the Protect Our Water Fund. The AST Administrative Fund is to be used “to defray the cost of administering [the Act]” and will be funded with annual registration fees, permit fees, and the net proceeds of all fines, penalties, and forfeitures collected by WVDEP. The Protect Our Water Fund is to be used solely to respond to leaking ASTs and will be funded with annual fees paid by AST owners/operators.

WVDEP’s next steps will focus on drafting regulations to implement the Act. Departing from its typical practice, WVDEP requested public comment before beginning the drafting process. Following preliminary comments, WVDEP adopted an interpretive rule (47 CSR 62), clarifying tank inspections/certifications and submission of SPRPs, and issued a “Rough Draft of AST Emergency Rule.” The WVDEP held a public meeting and took comment on the rough draft of the emergency rule. The emergency rule is expected to take effect in December, while a parallel proposed rule is considered in the 2015 legislative session.

Gale Lea Rubrecht

Ms. Rubrecht is of counsel with Jackson Kelly PLLC in Charleston, West Virginia, and a member of the editorial board of Natural Resources & Environment.