Late yesterday afternoon, the West Virginia Department of Environmental Protection (“DEP”) published on its website what it characterizes as a “rough draft” of its forthcoming emergency[1] rule (the “Draft Rule”), which is 79 pages in length. This Draft Rule comes nine days after the agency’s release of an Interpretive Rule implementing, in part, the new Aboveground Storage Tank Act (the “AST Act”), a summary of which is available here. DEP has invited comments on the Draft Rule by October 24, 2014, and has announced that a working meeting of interested stakeholders will be held on October 1, 2014. Although the AST Act itself is comprehensive in its scope—imposing new requirements for registration, permitting, inspection and certification, notice, spill response planning and signage, among other things—many of the key details of the new regulatory program for aboveground storage tanks (“ASTs”) were left to the rulemaking process. This initial draft provides new insight into DEP’s plans and expectations with regard to the program and includes a number of surprises.
 
The Interpretive Rule will continue to control the requirements for the December 3, 2014 spill prevention response plan deadline and January 1, 2015 inspection and certification deadline. DEP has indicated that the Draft Rule will be finalized and filed with the Secretary of State’s Office in December 2014 or January 2015 to regulate ASTs after the initial inspection and certification deadline. DEP will simultaneously file the same rule as a legislative rule to be considered by the West Virginia Legislature during its 2015 Regular Session.
 
The scope of the Draft Rule is extensive, and many of its provisions are highly technical in nature. With regard to registration, the Draft Rule building upon the AST registration program established in Section 4 of the AST Act, and would impose additional requirements for the amendment and annual renewal of registrations. The Draft Rule also contemplates the filing of separate notifications in the event of AST closure, change in service or change in ownership. In addition to the registration requirements, the Draft Rule provides for the issuance by DEP of certificates to operate for each AST and would establish siting restrictions for new ASTs.
 
With regard to AST operation and maintenance, the Draft Rule establishes detailed requirements relating to life-cycle preventive maintenance planning, routine maintenance inspections, annual inspections, internal inspections, damaged tanks, spill prevention response planning, labeling and signage, and security. The Draft Rule also would impose substantive standards and requirements for (1) AST design, construction and installation, including ancillary equipment and piping; (2) corrosion and deterioration prevention, which specifically address cathodic protection systems, and exterior and interior coatings; and (3) release prevention, leak detection and secondary containment. The Draft Rules requirements relating to release detection and corrective action are particularly extensive, spanning a total of 20 pages (almost a quarter of the entire rule!).
 
There are certain notable omissions, however. First, the Draft Rule does not establish any of the fees contemplated by the AST Act (i.e., the initial or annual registration fee, AST Administrative Fund fee or Protect Our Water Fund fee), although it does reference a separate, as-yet-unpublished Aboveground Storage Tank Fee Assessment Rule that presumably will be forthcoming. Second, the Draft Rule does not address financial responsibility requirements—this section is merely “reserved.” Finally, and perhaps more importantly, nowhere does the Draft Rule appear to incorporate the “permitting waiver” concept established in Section 25 of the AST Act, W. Va. Code § 22-30-25, which was expected to provide a measure of relief for certain categories of tanks.
 
With regard to the Interpretive Rule, the Draft Rule retains the three levels of AST categorization based on their relative potential risk to public health or the environment, with Level 1 ASTs deemed to have the highest potential for harm. Notably, however, the definition of Level 1 AST has been expanded from the Interpretive Rule to include ASTs containing any substance present on the United States Environmental Protection Agency’s “List of Lists.” The Draft Rule also references the Interpretive Rule when discussing compliance with the initial deadlines for (1) spill prevention response planning (December 3, 2014), and (2) inspection and certification (January 1, 2015).
 
The Draft Rule raises a host of new questions regarding its interpretation and application in the context of the AST Act and Interpretive Rule, and an analysis of these issues is ongoing. Furthermore, as noted above, the Draft Rule is still incomplete, with additional provisions (e.g., financial responsibility) or a separate rule (e.g., covering fees) still to come. Of course, DEP has characterized this Draft Rule as a rough draft, and we suspect that no one will disagree with that characterization. Please look for more detailed analysis and summary of the Draft Rule in the coming days.

Or contact one of our experienced Environmental Attorneys:

Mark D. Clark 
304.340.3876
mclark@spilmanlaw.com