In January 2014, a leak of MCHM from a tank farm operated by Freedom Industries entered an intake for a public water system on the Elk River in Charleston, West Virginia. The State Legislature, already in town, responded to public outcry and cobbled together a complicated statutory and regulatory structure for aboveground tanks before adjourning in March 2014. WVDEP, unfamiliar with many of the existing rules and codes for aboveground tanks, struggled to meet unrealistic rulemaking deadlines. By the end of 2014, it was apparent to most that the 2014 bill needed to be re-worked even before it was implemented.
The 2015 Legislature has re-worked the bill. The bill could have been much simpler, but a train derailment and release of crude oil outside Charleston during the 2015 legislation session did little to calm public fervor and legislative posturing. Ultimately, though, the bill does reduce the overall burden on the regulated community, constrains WVDEP in some important ways and provides WVDEP with needed flexibility to recognize the efficacy of other regulatory programs.
The 2015 Act creates four categories of activities or facilities—three are specific to tanks and the fourth applies to potential sources of contamination to water supplies—whether from a regulated tank or not. Each of the four activities or tanks is discussed below:
Inventory of Potential Sources of Significant Contamination (W.Va. Code §§ 16-1-2(15) & -9f):
The Act requires the Bureau of Public Health (“BPH”) to inventory all “potential sources of significant contamination” contained within a public water system’s “zone of critical concern” and to identify those not already regulated by WVDEP. This requirement is not limited to “tanks,” but includes facilities or activities that “stores, uses or produces substances … with potential for significant contaminating impact if released into the source water of a public water supply.” W.Va. Code §§ 16-1-2(15) & -9f. The BPH is charged with using tank registration information, information submitted to the State Homeland Security Department under § 312 of the Emergency Planning and Community Right to Know Act and other available information. It is unclear at this point whether BPH will require additional information from the public or rely on these sources of information for its inventory.
TANKS: The 2015 Act creates 3 categories of tanks and imposes different requirements on each category:
1) “Aboveground storage tanks” (“ASTs”);
2) Level 1 Regulated ASTs; and
3) Level 2 Regulated ASTs.
The Level 1 requirements are the most stringent, but apply to a smaller universe of tanks than do the other two categories. The Level 1 and 2 Regulated tanks are frequently referred to in the Act generally as “Regulated Tanks.” Below is a discussion of the three types of tanks and the requirements for each:
Aboveground Storage Tanks (all kinds)
Definition (W.Va. Code 22-30-3(1))
Aboveground Storage Tank (“AST”): A device made to contain more than 1320 gallons constructed primarily of non-earthen material. 90 percent of capacity has to be above ground. The “tank” includes all pipes and dispensing systems “up to the first point of isolation.” The “first point of isolation” is defined as the device nearest the tank where flow may be shut off manually or automatically.
The definition includes portable tanks that remain in one location 365 or more days.
Excluded from the definition and from the Act altogether are:
Shipping containers subject to state or federal laws governing transport of hazardous materials, including railroad freight cars;
Barges or boats subject to federal regulation by Coast Guard/Homeland Security;
Devices containing drinking water, surface or groundwater, demineralized water, non-contact cooling water or water stored for fire/emergency purposes;
Devices containing food or food grade materials regulated under Federal Food Drug & Cosmetic Act;
Except when located in a zone of critical concern, a device located on a farm containing contents used exclusively for farming;
Tanks holding water that is actively being treated or processes (e.g., clarified, chlorine contact chamber, batch reactor, etc.);
Empty tanks in inventory or offered for sale;
Pipeline facilities regulated under Nat’l Gas Pipeline Safety Act or Haz. Liquid Pipeline Safety Act or intrastate line regulated by PSC;
Liquid traps, atmospheric and pressure vessels or associate gathering lines related to O&G production/gathering; and
Requirements for all ASTs:
1. Registration (W.Va. Code § 22-30-4): Owner or operator of all existing ASTs, whether or not they are also regulated as Level 1 or 2 tanks, regardless of location, must register their ASTs with WVDEP by July 1, 2015. Tanks that were registered under the 2014 Act are considered already registered.
2. Corrective Action (W.Va. Code § 22-30-8): WVDEP can order or take corrective action for releases/threatened releases from all ASTs as necessary to protect human health or environment.
3. Required Signage (W.Va. Code § 22-30-11): Requires, on or nearby any AST, the registration number issued by WVDEP and emergency contact numbers for the owner or operator and WVDEP’s Spill Reporting Hotline (1.800.642.3074).
4. Public Availability of Information (W.Va. Code § 22-30-14): Makes most information submitted to WVDEP publicly available.
5. Inspections, Monitoring & Testing (W.Va. Code § 22-30-15): Requires owners/operators of ASTs to cooperate with WVDEP in the development of rules, studies and corrective actions.
Level 1 Regulated ASTs (W.Va. Code 22-30-3(13))
Includes all of the following ASTs:
(a) ASTs located within a “zone of critical concern” (“ZCC”) for the source of either a public surface water supply or a public surface water-influenced groundwater supply source; and
(b) ASTs that contain:
“Hazardous substances” as defined in CERCLA at 42 U.S.C. § 9601(14);
Substances included on EPA’s “List of Lists set out in 40 C.F.R. §§ 355, 372, 302 & 68) in a concentration of 1 percent or greater—regardless of location (meaning these ASTs do not need to be a ZCC); and
(c) ASTs with a capacity of 50,000 gallons or more—regardless of location (meaning these ASTs do not need to be in a ZCC) or substance.
Requirements for Level 1 Regulated ASTs:
1. Registration (W.Va. Code § 22-30-4): Owner or operator of all existing ASTs, regardless of location, must register their ASTs with WVDEP by July 1, 2015. Tanks that were registered under the 2014 Act are considered already registered.
2. Subject to Regulatory AST Program (W.Va. Code § 22-30-5)
(a) WVDEP is required to develop rules for new and existing regulated ASTs. Level 1 ASTs are to be regulated “to a higher standard of tank and secondary containment … than Level 2 ASTs,” but the Act provides no further comments or guidance on this issue.
(b) WVDEP’s rules must include:
criteria for design, construction and maintenance of ASTs
criteria for secondary containment
criteria for leak detection – shall include visual inspections, inventory control systems together with tank testing or a comparable system or method to identify leaks from ASTs
requirements for recordkeeping; development of maintenance and corrosion plans and closure of ASTs
provisions for a certificate to operate
(c) WVDEP MAY amend permits or groundwater protection plans (“GPPs”) of entities that are regulated under other individual site-specific permits in lieu of using a certificate issued under this Act as the primary permitting vehicle. Those other permits, though, must require “appropriate containment and diversionary structures or equipment to prevent discharged or released materials from reaching waters of State,” provided the permit conditions, “in the opinion of WVDEP are sufficient ……. to protect the waters..”
Permits that may be amended include surface mining permits; permits issued by Office of Oil and Gas under articles 6 or 6a; individual NPDES permits; and Solid Waste Act permits.
NOTE: This section ALLOWS, BUT does NOT require, WVDEP to use existing permits or GPPs as the primary basis for regulating tanks.
3. Evaluation and Certification (W.Va. Code 22-30-6)
(a) “Regulated” ASTs and secondary containment to be evaluated by a qualified person (RPE or qualified subordinate; API/STI certificate holder; others as approved by WVDEP)
(b) Owner/operator to submit certification of evaluation
(c) Initial certifications due 180 days after WVDEP issues rules establishing standards under Section 5. Subsequent certifications due on schedule developed by WVDEP, but not more than once/year.
4. Financial Responsibility (W.Va. Code 22-30-7)
WVDEP to issue rules for requiring evidence of financial responsibility for regulated ASTs. May include insurance; bonds etc.
5. SpillPrevention and Response Plan (W.Va. Code 22-30-9)
(a) Within 180 days of effective date of Act, all owners/operators of “regulated ASTs” to submit a “spill prevention and response plan” for “all regulated ASTs at a facility.” Contents of plan to include:
Reference to location of MSDS sheets required by OSHA;
Inventory of types and amounts of fluids stored in regulated ASTs;
Identification of facility-related job positions with dates for overseeing the facility’s plan and list all facility emergency coordinators;
Description of preventive maintenance program; and
Description of response procedures to be taken in event of a release.
(b) Submission of an addendum in event of certain modifications to ASTs and secondary containment;
(c) WVDEP to approve/reject plans and require necessary modifications;
(d) In lieu of a plan developed under this section, owner/operator of regulated AST may certify to WVDEP that it is subject either to a groundwater protection plan approved by WVDEP OR to an SPCC plan that complies with requirements of 40 C.F.R 112.
6. Notice to Local Governments and Water Providers (W.Va. Code § 22-30-10)
(a) Owners/operators of regulated ASTs must, as required by WVDEP, notify applicable public water systems and state/county/municipal emergency responders of the type and quantity of fluids stored in regulated ASTs.
(b) In lieu of the information in “a,” the owner/operator may provide the inventory forms and documents required by Sections 311 and 312 of EPCRA, subject to trade secrets and site security information protections allowed under section 14.
7. Required Signage (W.Va. Code § 22-30-11)
All regulated ASTs must display the tank registration number provided by WVDEP, emergency contact numbers for owner/operator and WVDEP Spill Hotline.
8. AST Administrative Fund (W.Va. Code § 22-30-12)
In addition to the initial registration fees set out in Section 4, above, WVDEP to collect an “annual operating fee for each regulated AST” to be set out in legislative rules “in an amount sufficient to defray the costs of administering this article.” There is no cap. Unexpended funds to be rolled over to the AST Administrative Fund and not transferred to General Revenue.
9. Protect Our Water Fund (W.Va. Code § 22-30-13)
(a) Owner/Operator of regulated ASTs to pay annual fee to establish fund for adequate responses to releases from regulated ASTs. Amount of fee to be established by rule.
(b) Fee to be based on number, contents and location of regulated ASTs. Funds to be varied annually to ensure a cap of $1 million after 3 years and an annual floor thereafter of $1 million (measured at start of calendar year). Unexpended $ to remain in Fund. [Note: As passed, the cap and flow are both set at $1 million; earlier versions had a cap of $3 million.]
10. Public Access to Information (W.Va. Code § 22-30-14)
(a) Public shall have access to all information submitted to WVDEP under this article subject to limitations in FOIA (trade secrets and CBI) or information designated by Homeland Security as restricted from release.
(b) List of PSSC contained within the ZCC or ZPC may only be disclosed consistent with same restrictions in “a.” Exact location of contaminants in ZCC or ZPC is not subject to disclosure under FOIA, but characteristics and approximate quantities of PSSC within the two zones shall be made known to designees of “the public water utility” In event of a release to waters that could affect a “public water supply,” information about the release shall be promptly made available [by whom is not identified] to any emergency responders responding to the release.
11. Inspection, Monitoring and Testing (W.Va. Code § 22-30-15)
Requires WVDEP to inspect Level 1 tanks at least every three (3) years. WVDEP is to develop an inspection protocol for Level 2 tanks.
Level 2 Regulated ASTs:
An AST that is located within a “zone of peripheral concern” (“ZPC”) and that is not also a Level 1 tank. Overall, the obligations on Level 2 tanks should be less than those on Level 1 regulated tanks.
The ZPC is a longer corridor than is the ZCC used to define Level 1 tanks. The ZPC is a corridor extending upstream of a public water system intake defined by a formula devised for calculating the distance water will travel in 10 hours.
Level 2 tanks are subject to all of the requirements imposed on Level 1 tanks, except that:
(1) WVDEP is directed in § 22-30-5 (AST regulatory program) to regulate Level 1 tanks to a higher standard of tank and secondary containment integrity (due to their closer proximity to public water intakes); and
(2) while WVDEP is required to inspect all Level 1 tanks at least once every three (3) years, it is authorized to develop its own schedule for inspecting Level 2 tanks (22-30-15).
This article was authored by Robert G. McLusky, Jackson Kelly PLLC.
 The “zone of critical concern” is a corridor along a stream or river. The length of the corridor is determined by the distance water can travel in the stream from the source of contamination to the public water intake in 5 hours. The width is 1,000 ft. measured horizontally from each bank of the principal stream and 500 ft. from the banks of tributaries.
 This was an important change to the 2014 Act, because it limits WVDEP’s ability to extend requirements for leak detection and secondary containment to all of the piping connected to the tanks. In rules issued under the 2014 Act, WVDEP sought to extend the definition to include virtually all of the piping systems association with tanks, a fact which would have required large terminals to find ways to install secondary containment for the entire facility or for extensive pipe networks.
 The ZCC is a corridor of defined width extending upstream from an intake for a distance calculated based on a five-hour time of travel in the stream. W.Va. Code §22-30-3(20).
 Subsection (a) requires that WVDEP adopt rules only for “regulated tanks”, but subsection (b), which specifies the required subjects of the rules is not limited to “regulated” tanks. This is probably a drafting error.
 Public water “utility” is an undefined term and this is the only place it appears— the term used elsewhere is “public water system.”