In the latest development relating to West Virginia’s new aboveground storage tank (“AST”) legislation, yesterday afternoon the West Virginia Department of Environmental Protection (“WVDEP”) filed with the West Virginia Secretary of State its finalized Interpretive Rule outlining mechanisms for compliance with the imminent deadlines under the Aboveground Storage Tank Act (the “AST Act”), W. Va. Code §§ 22-30-1 et seq., for (1) spill prevention response planning and (2) initial inspection and certification.  See 47 C.S.R. 62.  The effective date of the Interpretive Rule is November 20, 2014.
 
The agency did make a number of changes to the final Interpretive Rule in response to public comments that are worth noting. 
 

• The scope of the “Level 3” category was expanded to include (1) unfiltered surface water and ground water (excluding flowback water from oil and gas wells), (2) empty mobile tanks, and (3) tanks subject to 40 C.F.R. Part 265, exclusive of tanks subject to regulation under 40 C.F.R. § 265.201.  See 47 C.S.R. 62-2.4.  Corresponding revisions were made to the definition of “Level 1 AST” to expressly exclude such tanks from Level 1 classification, regardless of whether they may be located in a zone of critical concern (“ZCC”).  47 C.S.R. 62-2.2.
• The definition of “Level 1 AST” was modified to delete the reference to the “wellhead protection area” and “groundwater intake area under the influence of surface water,” and instead insert the terms “source water protection area” and “surface water influenced groundwater supply source,” both of which are defined terms under the AST Act.  47 C.S.R. 62-2.2; see also W. Va. Code §§ 22-30-3(10) and (15). 
• With respect to Spill Prevention Response (“SPR”) Plans, the final Interpretive Rule includes Well Site Safety Plans among the alternative documents that may be submitted or certified to by the owner or operator of a Level 2 or Level 3 ASTs in lieu of the initial SPR Plan otherwise required to be submitted under W. Va. Code § 22-30-9.  47 C.S.R. 62-4.2 and -4.4 (authorizing submittal of a Well Site Safety Plan or a certification that such plan is current).
• The alternative options for compliance with the initial SPR Plan deadline for Level 3 ASTs were expanded to be consistent with the options available to owners and operators of Level 2 ASTs (i.e., to authorize the submittal of copies/certifications of Groundwater Protection Plan or Well Site Safety Plan, if applicable).  See 47 C.S.R. 62-4.4.

Otherwise, the final Interpretive Rule is very similar to the proposed version of the rule that was filed on September 9, 2014 for initial public review and comment.  The rule’s basic structure and approach are unchanged:  the final rule retains the proposed three-tiered approach to categorization of ASTs based on their potential harm to health and the environment, and establishes options for compliance with certain requirements of the AST Act based on these levels.  Level 1 ASTs are those ASTs determined by WVDEP to have the highest risk of harm to public health or the environment due to their size, location, or contents, and therefore these ASTs are subject to the more rigorous requirements of the AST Act for (1) the submittal of SPR Plans by December 3, 2014 in accordance with W. Va. Code § 22-30-9 and (2) the inspection and certification of the tanks by January 1, 2015 in accordance with W. Va. Code § 22-30-6.  Because Level 2 ASTs and Level 3 ASTs have been determined to have a reduced potential to harm public health or the environment, the Interpretive Rule establishes alternative options for compliance with these requirements for owners of these Level 2 and Level 3 tanks.

Although the final Interpretive Rule incorporates these additional measures of relief to help facilitate compliance with initial inspection and certification deadlines and SPR Plan requirements, a number of questions and comments submitted during the comment period were either rejected or deferred for future consideration.  This has left a number of outstanding questions regarding the interpretation and application of the Interpretive Rule, particularly with regard to the substance of inspections to be performed.  Indeed, no modifications or clarifications were made to the substantive standards for tank inspections—which are applicable to all three classes of ASTs—as generally outlined in Appendices A and B of the Interpretive Rule. 

Finally, it is important to note that the Interpretive Rule was crafted by WVDEP with a very limited purpose—to assist AST owners and operators with attaining compliance with the extremely accelerated compliance deadlines imposed in the AST Act for SPR Plans and initial tank inspections and certifications.  Indeed, by its terms, the Interpretive Rule will continue in effect only through June 1, 2015, unless sooner terminated, continued or re-established as a legislative rule.  47 C.S.R. 62-1.5.  Additional, more comprehensive rules regulating ASTs will be imposed upon the finalization of the draft emergency rule that is currently out for informal public comment (a summary of which is available here).

A copy of the final Interpretive Rule is available for download here.  If you have questions regarding the AST Act or the final Interpretive Rule, please contact Katherine Crockett (304-340-3832), David Yaussy (304-340-3829), Mark Clark (304-340-3876) or any of the Spilman team.