Even before the June 6, 2014 effective date of the Aboveground Storage Tank Act (the “AST Act” or “Act”), W. Va. Code §§ 22-30-1 et seq., representatives of the industries most impacted by the expansive and detailed AST Act had been working to educate the public, regulators and legislators about the more burdensome and overreaching provisions of the Act. Senate Bill 373 (“SB 373”) was originally designed to identify and regulate several hundred aboveground storage tanks (“ASTs”) that contained fluids that posed a significant risk to public water supply intakes. However, through the sausage factory otherwise known as the legislative process, SB 373 morphed into legislation that regulated over 48,000 tanks throughout West Virginia, whether or not the tanks were remotely close to public water supply intakes. Following nearly a year of intense effort by industry representatives to educate legislators on the unintended consequences of SB 373, coupled with the unanticipated November 2014 election results that led to new legislative leadership in both the West Virginia House of Delegates and Senate, the West Virginia Legislature passed Senate Bill 423 (“SB 423”) on March 14, the last day of the 2015 regular session. On March 27, 2015, Governor Tomblin signed the bill into law which will become effective on June 12, 2015.
 
SB 423 amended the Aboveground Storage Tank Act to mitigate some, but not all, of the unintended consequences to AST owners created by the AST Act. Although the precise numbers are not known, it is estimated that 35,000 to 40,000 of the over 48,000 registered ASTs will be relieved of most of the regulatory costs and burdens of SB 373. However, the vast majority of all tanks will continue to be subject to at least some aspect of the AST Act, including the registration requirements and other general provisions.
 
SB 423 significantly improves the AST Act by focusing on those tanks that are physically closer to public water supply intakes, or contain designated hazardous substances, or have a capacity of 50,000 gallons or more. The amendments provide flexibility to the West Virginia Department of Environmental Protection (“WVDEP”) to develop rules that are more risk-based, considering tank location, contents and size. The changes also allow WVDEP to review and modify existing permits and plans to incorporate requirements relating to ASTs, thereby avoiding duplicative and overlapping regulatory programs. More importantly, roughly 75 percent of the currently regulated ASTs will be relieved of unduly burdensome rules and expenses without any sacrifice to the safety or quality of public water supplies.
 
What is an Aboveground Storage Tank?
 
ASTs are defined to include devices that

• have a capacity greater than 1,320 gallons of fluids that are liquid at standard temperature and pressure
• and more than 90 percent of the capacity of which is above the surface of the ground.

The definition includes all ancillary pipes and dispensing systems up to the first point of isolation.
 
However, certain categories of containers have been carved out of the AST definition, including but not limited to the following:

• certain regulated shipping containers and barges;
• mobile tanks;
• process vessels;
• devices containing drinking water for human or animal consumption, surface water or groundwater, or food or food-grade materials for human or animal consumption;
• devices located on a farm used exclusively for farm purposes (unless located within a zone of critical concern [“ZCC”]);
• swimming pools; and
• empty tanks held in inventory or offered for sale.

Accordingly, the categories of devices expressly exempted from the definition of “aboveground storage tank” are not subject to the AST Act in any respect. Further, mobile tanks are not ASTs and do not need to be registered, unless and until they remain in one location on a continuous basis for 365 days (compared to only 60 days under SB 373).
 
What are Regulated Aboveground Storage Tanks?
 
The primary focus of the amended AST Act is on two categories of “regulated tanks.” Level 1 regulated tanks are those tanks that have been determined to pose the greatest potential for harm to public drinking water supplies and encompass the following:

1. ASTs located within a zone of critical concern, source water protection area, public surface water influenced groundwater supply source area, or any other AST designated by WVDEP as a Level 1 tank;
2. ASTs that contain a “hazardous substance” under CERCLA, 42 U.S.C. § 9601(14), or identified on the United States Environmental Protection Agency’s “List of Lists” in a concentration of one percent or greater, regardless of the AST’s location, except that ASTs containing petroleum are not Level 1 tanks based solely upon containing constituents on these lists; or
3. ASTs with a capacity of 50,000 gallons or more, regardless of contents or location.

Level 1 tanks will be more highly regulated than Level 2 tanks because they are associated with a higher risk of contamination to public water supplies based on their location. 
 
Level 2 regulated tanks are those tanks located within a “zone of peripheral concern” (“ZPC”), which are deemed to pose a lesser potential for harm to any “public surface water supply source and public surface water influenced groundwater supply source” while still meriting some degree of regulation. The ZPC is a yet-to-be-designated area and extends an additional five-hour time of travel upstream from a public water supply intake beyond the perimeter of the ZCC. The ZPC roughly doubles the area in which ASTs are deemed to be “regulated tanks.” The area included in the new ZPC will need to be developed by WVDEP or the West Virginia Department of Health and Human Resources as part of the implementation of the amended Act. Presumably, WVDEP will identify for AST owners those tanks located within a ZPC once that area is calculated and mapped.
 
Regulatory Program
 
The references to a permit program in the Act have been deleted and replaced with a Certificate to Operate requirement consistent with the approach proposed by WVDEP in its rules governing ASTs, 47 C.S.R. 63. That proposed rule was not formally submitted to the West Virginia Legislature so those rules will not become effective. It is likely that a new legislative rule based on the amended Act will be drafted by WVDEP for public review and comment. WVDEP may publish an emergency rule that could become effective during the summer of 2015, well in advance of the approval of a legislative rule by the West Virginia Legislature during its 2016 regular session.
 
With regard to the substantive standards to govern “regulated tanks,” WVDEP is directed to develop a regulatory program, by use of emergency or legislative rulemaking, for new and existing regulated ASTs and secondary containment that sets out “tiered requirements” for Level 1 and Level 2 tanks and takes into consideration the size, location and contents of the tanks. For entities that are already subject to provisions of Chapter 22 of the West Virginia Code that necessitate individual, site-specific permits or plans requiring appropriate containment measures to prevent releases from reaching waters of the State—including permits issued:
i.  pursuant to the Surface Coal Mining and Reclamation Act,
ii.  by the Office of Oil and Gas under W. Va. Code §§ 22-6 or 22-6A or spill pollution and control measures plans required under 35 C.S.R. 1,
iii. pursuant to the National Pollution Discharge Elimination System,
iv. pursuant to the Solid Waste Management Act, and
v.  pursuant to the Groundwater Protection Act 
—those permits or plans may be amended at the request of the permittee to include conditions pertaining to ASTs that WVDEP deems sufficient to protect waters of the State, in combination with those practices and protections already in place. Any AST owner or operator whose permit/plan has been amended by WVDEP to address ASTs and secondary containment shall be deemed compliant with the requirements of the AST Act, so long as the registration requirements have been met. 
 
Evaluation and Certification of Regulated ASTs
 
The amended Act requires regulated ASTs and the associated secondary containment structure to be evaluated by a qualified registered professional engineer licensed in West Virginia, or by an American Petroleum Institute or Steel Tank Institute certified inspector, or by a person holding certification under another program approved by WVDEP. A certification that each regulated tank and its associated secondary containment structure have been evaluated by a qualified person must be submitted to WVDEP within 180 days of the effective date of the rules establishing standards and not more frequently than once per calendar year thereafter. However, the certification of the AST and associated secondary containment may be signed by a person designated by the owner or operator, in addition to any person qualified to perform the evaluation as described above. Thus, the amended Act requires evaluation and certification of ASTs only after standards have been established by rulemaking.
 
Spill Prevention and Response Plans
 
Owners or operators of regulated ASTs are still required to submit detailed spill prevention and response (“SPR”) plans to WVDEP, but the amended Act authorizes regulated AST owners or operators to certify (instead of sending WVDEP a copy) that they are subject to an alternative plan (including a federal spill prevention control and countermeasures [“SPCC”] plan under 40 C.F.R. Part 112, or a groundwater protection plan) in lieu of preparing and submitting an SPR plan. The amended Act requires updates to the SPR plans no less frequently than every five years, instead of three years as previously required.
 
AST Fees
 
Prior to promulgating emergency or legislative rules for the assessment and collection of fees, WVDEP is authorized to collect registration fees of $40.00 per AST placed in service prior to July 1, 2015 and $20.00 per AST placed into service on or after July 1, 2015. WVDEP will likely send invoices to AST owners reasonably promptly following the June 12, 2015 effective date of these amendments.
 
The fees associated with maintaining the Aboveground Storage Tank Administrative Fund and Protect Our Water Fund will be assessed only against regulated ASTs. The Protect Our Water Fund will be maintained at no more than $1 million. The fees associated with those funds will be the subject of rulemaking in the coming months, including emergency rules if WVDEP so elects. 
 
Miscellaneous Provisions
 
Other noteworthy changes in the amended Act include the following:

• The public access to information provisions protect trade secrets, proprietary business information and information designated by the Division of Homeland Security and Emergency Management from release to the public and provides for penalties for any person who makes any unauthorized disclosure of such confidential information.
• Instead of annual inspections by WVDEP of ASTs located in a ZCC, Level 1 regulated tanks must be inspected once every three years, and an inspection protocol will be developed by WVDEP for Level 2 tanks.
• The financial responsibility requirements are expressly limited to regulated ASTs and the secretary is authorized to determine which existing bonds and guarantees satisfy the requirements of the AST Act.

 
Certainly the amended AST Act represents a more measured and balanced approach to AST regulation that will still adequately protect the public water supplies in West Virginia. The provisions briefly summarized in this article, as well as numerous other changes to the AST Act, are worthy of detailed study. 
 
If you have questions regarding the AST Act, as amended, please contact Mark Clark, Katherine Crockett or David Yaussy with our Environmental Practice Group.