The West Virginia legislature passed S.B. 373 requiring that all aboveground storage tanks (ASTs) be registered, and if required by code or rule, permitted as well. There has been discussion by several industry associations about holding a special legislative session to modify the deadlines, but as of yet, the governor has not called for a special session. Unless there is modification by the legislature to the new statute, there are four major deadlines for compliance within the new law that must be met before the end of this year: (1) registration of ASTs; (2) submission of Spill Prevention and Response Plans; (3) annual inspection and certification of ASTs; and (4) holders of an NPDES general permit must apply for an NPDES individual permit if the permit holder has an AST within a public water system’s zone of critical concern. The following article contains basic compliance facts and deadlines as well as WVDEP links to additional AST information and the AST registration database.
All Aboveground Storage Tanks Must Be Registered by October 1, 1014
The WVDEP Secretary is required to compile a list of all aboveground storage tanks in the state whether the ASTs are operational or nonoperational. All ASTs must be registered by October 1, 2014. After that date, it is unlawful to own or operate an unregistered AST.
Who has to register and what is a tank? According to the new law, an aboveground storage tank (AST) is “a device made to contain an accumulation of more than 1320 gallons of fluids that are liquids at standard temperature and pressure” that has more than 90% of its capacity aboveground. The AST is constructed of “primarily non-carbon materials, including wood, concrete, steel, plastic or fiberglass reinforced plastic” and includes “all ancillary aboveground pipes and dispensing systems up to the first point of isolation and all ancillary underground pipes and dispensing systems connected to the aboveground containers to the first point of isolation.” All mobile devices that remain in one location continuously for 60 or more days, and which otherwise meet the definition criteria, are also AST.
An AST does not include a process vessel, which is defined as “tanks, containers or other vessels utilized in a facility in the manufacturing process through which there is a steady, variable, recurring or intermittent flow of materials.” Shipping containers and railroad freight cars, as long as these vessels are regulated under the Federal Railroad Safety Act, federal law governing the transportation of hazardous materials, or federal law governing barges or boats under the United States Coast Guard or United States Department of Homeland Security, and swimming pools are excluded.
An owner or an operator may register an AST. Each AST will be assigned a unique number. Accordingly, the owner or the operator may register, but only one entity is required to do so.
WVDEP has set up pages within its website dedicated to the registration and regulatory compliance of ASTs: http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Pages/default.aspx. There are several links that are extremely helpful in the registration process:
- a questionnaire to determine whether or not your tank meets the definition of AST and therefore, must be registered https://apps.dep.wv.gov/ast/astsurvey.cfm;
- a sample registration form; https://apps.dep.wv.gov/ast/SAMPLEReg.pdf;
- a link to the on-line registration database for registering AST, known as the Electronic Submission System, https://apps.dep.wv.gov/eplogin.cfm;
Spill Prevention and Response Plans Must Be Submitted by December 3, 2014
Each AST is required to have a Spill Prevention Response Plan (SPRP), and the owner or operator of the AST must submit the SPRP to the WVDEP by December 3, 2014. Each SPRP is to be developed in consultation with emergency management and the Bureau for Public Health, be site specific and be updated at least every three years.
Pursuant to W. Va. Code § 22-30-9, each SPRP shall:
- Identify and describe the activity that occurs at the site, including a list and inventory of all fluids stored, amounts of fluids stored, and wastes generated that are stored in ASTs and including all MSDS sheets;
- Include a drawing or plan of the AST facility, including the location of all drainage pipes and water outlets;
- Identify all facility-related positions with duties and responsibilities for developing, implementing and maintaining the facility’s plan;
- Include a description of the chain of command as the AST facility and all facility emergency coordinators and emergency response contractors;
- Provide a preventative maintenance program that includes monitoring and inspection procedures, identification of stress points, employee training programs and security systems.
- Provide description of potential sources and areas where spills and leaks may occur by drawings and plot plans;
- Identify specific spill prevention measures for those identified areas;
- Detail the specific response that the AST facility and contract emergency personnel shall take in the event of a release of fluids;
- Provide contact information for the county and municipal emergency management agencies and nearest downstream public water supply intake and designate the person or persons to be notified in the event of a release of fluids.
The WVDEP has developed interim guidance for drafting and submitting SPRPs until legislative rules are filed and approved:
An updated or modified SPRP shall be submitted if an AST is added or removed, or there is a modification or design, construction, operation or maintenance of an AST or any circumstance that increases the potential for fire, explosion or release of fluids, or if there is a substantial modification of emergency equipment of change in response protocols or if the plan fails or other circumstances occur as identified by the WVDEP.
All ASTs Must Have Passed Annual Inspection and Certification by January 1, 2015
Every owner or operator of an AST shall have an annual inspection performed by a qualified, registered professional engineer or someone working under supervision of one; by an individual certified by the American Petroleum Institute to perform inspections; or by an individual certified under another program approved by the secretary. The inspection form shall certify that each AST that each tank, associated equipment, leak detection system, and secondary containment system meets the minimum standards established in the law or by the WVDEP in legislative rule. As of right now, the WVDEP has not filed legislative rules, but interim guidance is available on its website: http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Pages/TankCertificationRequirements.aspx.
There are eight general categories covered in the interim guidance: (1) determination that the AST continues to meet design standards; (2) AST construction and installation; (3) general maintenance and testing of AST system; (4) corrosion protection and maintenance; (5) release detection method and procedures; (6) release prevention methods and procedures; (7) secondary containment structures; and (8) record keeping for leak detection, corrosion protection, and general operation and maintenance.
The WVDEP website provides additional information and the WVDEP created an interim inspection checklist: http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Documents/InterimInspectionChecklistforOwnerOperatorAnnualASTInspection.pdf
Certification forms are also available:
NPDES General Permit Holders that Have ASTs within a Zone of Critical Concern Must Have Applied for an NPDES Individual Permit by September 1, 2014
If an entity with an NPDES general permit also has an AST located within a public water system’s zone of critical concern, then the permitted entity must have applied for an NPDES individual permit under the West Virginia Water Pollution Control Act by September 1, 2014.
There are two key definitions in determining whether or not this requirement applies to the holder of an NPDES general permit. First, a public water system is “[a]ny water supply or system which regularly supplies or offers to supply water for human consumption through pipes or other constructed conveyances, if serving at least an average of twenty-five individuals per day for at least sixty days per year, or which has at least fifteen service connections and . . . include[s] any collection, treatment, storage and distribution facilities under the control of the owner or operator of the system and used primarily in connection with the system; and [a]ny collection or pretreatment facilities not under such control which are used primarily in connection with the system.” W.Va. Code § 22-31-3(2). However, if a system meets these four criteria, then it is not a public water system: (1) the system consists “only of distribution and storage facilities and does not have any collection and treatment facilities; (2) the system obtains all of its water from, but is not owned or operated by a public water system; (3) the system does not sell its water to any person; and (4) the system is not a carrier conveying passengers in interstate commerce. Id.
Second, a zone of critical concern is “a corridor along streams within a watershed that warrants more detailed scrutiny due to its proximity to the surface water intake. . . and is determined using a mathematical model that accounts for stream flows, gradient and area topography.” The length of a zone of critical concern is “based on a five-hour time of travel of water in the streams to the water intake, plus an additional ¼ mile below the water intake.” The width of the zone is “1,000 feet measured horizontally from each bank of the principal stream and 500 feet measured horizontally from each bank of the tributaries draining into the principle stream. W.Va. Code § 22-31-3(7).
Once a tank is registered and the latitude and longitude of the of the AST is provided in the registration as required, the WVDEP will include the identity of and distance to the nearest groundwater or surface water public intake from the AST in the correspondence to the registrant that provides the AST number assigned to the AST registered. This information should be sufficient to determine whether or not an AST is within a public water system’s zone of critical concern.
Publicly Available Information to Assist in AST Registration and Regulatory Compliance:
The WVDEP has a webpage dedicated to the registration of ASTs. http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Pages/default.aspx
This webpage includes a great deal of information and has been updated fairly regularly. In addition to the links identified in the article above, the WVDEP website has pages dedicated to:
- Frequently asked questions, http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Pages/FAQ.aspx;
- Definitions, http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Pages/Definitions.aspx;
- A copy of the entire legislation, http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Documents/FINALSB373-The%20TankBill.pdf;
- Public comment received by the WVDEP during the rulemaking process, http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Pages/ASTPublicInput.aspx;
- Links to industry standards and industry organizations, http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Pages/Industry-Standards-and-Organizations.aspx; and
- WVDEP contacts for the registration and regulatory compliance of ASTs, http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Pages/ASTContacts.aspx
This article was authored by Kelley M. Goes, Jackson Kelly PLLC. For more information on the author, see here.