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West Virginia Aboveground Storage Tank Act – Emergency Rule

On September 18, 2014 the WV DEP released a rough draft of the WV Aboveground Storage Tank Act – Emergency Rule. This is different than the temporary interpretive rule filed on September 9, 2014. The agency wants the publics input into the development of the rule. On October 1, 2014 the agency will hold a stakeholder meeting. Members of industry groups, environmental groups and other members of the public who asked to be identified as stakeholders in the rulemaking process will be invited to this meeting. This meeting is not open to the public. Public comments will be accepted until October 24, 2014.

A copy of the draft rule is available here

This draft built upon the Interpretive Rule that provided information on initial inspections and spill prevention and response plans. This rule maintained the three tank levels introduced in the interpretive rule.

The emergency rule contains 13 Sections. The following is a brief overview of each section. This is not a comprehensive review.

Section 1 – General

Section 1 defines the tank levels and exemptions. The tank level information is expanded from the interpretive rule.

Section 2 – Definitions

Section 2 provides definitions for many terms in the emergency rule. A few terms reference the original Senate Bill 373 for the definition.   

Section 3 – Registration

Section 3 provides the requirements for tank registration. The rule requires every owner of an aboveground storage tank or AST system, regardless of AST Level, to register each AST that is located in the State, regardless of its operational state. Registration of existing tanks is due on October 1, 2014. After October 1, 2014, any new tank must be registered before the tank can be placed into service. Notifications will be required within 30 days for installations or upgrades, closure, change in service or status, or transfer of ownership. Registration fees are discussed but not defined in the Registration section.

Section 4 – AST Certificates to Operate

Section 4 provides the requirements for AST Certificate to Operate and Siting Requirements for New ASTs. The registration form will serve as the basis for the AST Certificate to Operate. The agency request supplement information as needed in order to issue the certificate. The annual tank registration fee will be required each to have the certificate renewed. Section 4 provides specific siting requirements.

Section 5 – Operation and Maintenance

Section 5 has requirements for operation and maintenance for Level 1 and 2 tanks. The section includes requirements for routine maintenance inspections, required annual inspections, internal inspections, damaged tanks, spill prevention and response plans, labeling/signage requirements, and security requirements.

Section 6 – Reporting and Recordkeeping

Section 6 provides reporting and recordkeeping requirements for AST systems. This includes what releases or suspected releases must be reported to the agency.

Section 7 – Corrective Action

Section 7 provides a very detailed (19 pages out of 79 total pages) on how owners or operators must respond to any release or threatened release from an AST. The agency has the right to assume control of any release or threatened release situation. In such cases all liability will remain with the owner and operator.

Section 8 – AST Design, Construction and Installation

Section 8 provides information on new ASTs and general upgrade requirements for existing AST systems. Section 8 also includes requirements for piping associated with the AST.

Section 9 – Corrosion and Deterioration Prevention

Section 9 provides information on corrosion and deterioration prevention. Examples of acceptable corrosion and deterioration prevention includes cathodic protection systems, external and internal coatings, and or internal tank liners. No timing for retrofitting existing ASTs is provided in emergency rule.

Section 10 – Release Prevention, Leak Detection and Secondary Containment

Requirements for overfill prevention, leak detection and secondary containment are provided in Section 10. If overfill prevention is not already in service on an AST it needs to be installed by December 31, 2015 for a Level 1 AST and June 30, 2016 for a Level 2 AST. Both Level 1 and 2 AST have 3 months from the effective date of the rule to meet secondary containment standards if there are deficiencies. Visual inspections alone will not meet the leak detection requirements for a Level 1 tank. Visual inspections alone are permitted for Level 2 tanks if the entire AST system is visible, this includes the bottom of the tank, piping, flanges, and valves. If the current leak detection system has deficiencies, it needs to be upgraded by December 31, 2015 for a Level 1 AST and June 30, 2016 for a Level 2 AST.

Section 11 – Nonoperational, Change in Service and Closures of AST Systems

Section 11 provides the requirements for nonoperational, change in service and closures. Once an AST becomes nonoperational a registration form needs to be submitted to the agency. After two years as a nonoperational AST, the owner or operator must permanently close the AST system. Within thirty days of change in tank status a revised registration form must be submitted to the agency. The agency must be notified within thirty days before any changes in service. Changes in service include nature of contents, relocation, permanent closure, or change in status. In order to permanently close an AST, the owner or operator must submit a closure plan at least thirty days before planned closure unless the closure is response to a corrective action. A closure report with sampling data must be submitted within thirty days of completion of the closure. If contamination (soil, sediment, surface water or groundwater) is discovered, the owner or operator shall proceed with corrective action as directed by the agency.

Section 12 – Delivery Prohibition

Section 12 has requirements for product delivers/transporters. Transporters are prohibited from making deliveries to ASTs that have not completed the registration requirements, paid annual registration fee assessments or complied with financial responsibilities of the rule. The agency can also deem an AST ineligible to receive deliveries due to compliance related violations such as leak detection, corrosion protection, secondary containment, financial responsibility, spill prevention and overfill prevention. An AST is registered as nonoperational is prohibited from receiving any deliveries.

Section 13 – Financial Responsibility Requirements for ASTs

Section 13 on financial responsibility has yet to be defined in the draft emergency rule.

© Steptoe & Johnson PLLC. All Rights Reserved.National Law Review, Volume IV, Number 297

About this Author

Joyce Gentry, Senior Environmental Consultant, Step-toe Johnson Law Firm
Senior Environmental Consultant

Joyce McCune Gentry, P.E., MS, has more than twenty years of experience in the environmental arena.  Joyce is a Registered Professional Engineer in West Virginia.   She works with industrial and commercial clients, providing technical consulting services, including water and air permitting, pollution prevention planning, the development and implementation of waste management programs, as well as advice on client-specific environmental issues.  

(304) 556-8215