• Aboveground Storage Tank Act Update: Statutory Amendment Introduced
  • March 27, 2015 | Authors: Mark D. Clark; M. Katherine Crockett; David L. Yaussy
  • Law Firm: Spilman Thomas & Battle, PLLC - Charleston Office
  • On February 3, 2015, House Bill 2574 (“HB 2574”) was introduced in the West Virginia Legislature. HB 2574 proposes to remedy the unintended consequences to businesses created by the passage of the Aboveground Storage Tank Act (the “AST Act”) during the 2014 regular session of the Legislature immediately following the contamination of the Elk River from Freedom Industries, Inc.’s tank farm near the intake of West Virginia American Water Company’s Charleston, West Virginia facility.

    The primary modification of the AST Act in HB 2574 is the definition of “aboveground storage tank” (“AST”). The proposed definition focuses on those tanks that involve a higher risk of contaminating the intake of a public water utility based on location and quantity. Thus, instead of imposing a new regulatory program on more than 48,000 tanks, the amended definition would include a more manageable and relevant number of fewer than 10,000 tanks.

    The definition of AST in HB 2574 includes tanks located in the zone of critical concern (“ZCC”) with a capacity of 10,000 gallons or greater of fluid, and includes all ancillary pipes and dispensing systems up to the first point of isolation. A ZCC is defined as an area upstream of a public water utility intake within a 5-hour time of travel of water in the streams to the intake. “First point of isolation” is clarified to mean “the valve, pump, dispenser or other device or equipment on or nearest to the tank where the flow of fluids into or out of the tank can be shut off.”

    The proposed AST definition includes mobile devices that do not move for 365 or more days. Thus, mobile devices that are moved from one location to another within 365 days would not be regulated as ASTs under the Act. The AST Act as amended by HB 2574 would not govern devices that do not pose significant risk to public water utility primary intakes and those devices that are already subject to adequate regulatory programs, or a combination of both, as identified in the definition.

    Other proposed modifications to the AST Act include the following:
    • ASTs would be registered, but would not be subject to a permit program.
    • AST owners still must comply with standards. To reduce the potential for duplicative and/or inconsistent requirements, however, to the extent that industry standards or government regulatory programs already exist that apply to the construction, operation or maintenance of certain tanks, tank owners may continue to comply with those standards. For all tanks not already subject to an existing standard or program, the West Virginia Department of Environmental Protection (“DEP”) would be required to develop standards. Whatever standard or program applies, owners would have to certify each tank’s compliance with that standard or program.
    • Spill prevention and response plans are still required, but AST owners can rely upon similar plans that have already been developed for other regulatory programs.
    • Releases would be reported in the same fashion as under other state programs (i.e., when a spill reaches waters of the state). When a release occurs, the extent of corrective action that could be required by DEP is essentially the same as under the current statute.
    DEP’s authority to investigate, inspect, and enforce is essentially unchanged from the existing Act.

    HB 2574 contains many other changes to the existing AST Act and can be reviewed here - http://www.legis.state.wv.us/bill&under;status/bills&under;text.cfm?billdoc=hb2574%20intr.htm&yr=2015&sesstype=RS&i=2574. It is anticipated that a similar bill will be introduced in the West Virginia Senate within a few days.