WVDEP Files Proposed Legislative Rule Implementing AST Act 

March, 2017 - Mark D. Clark, David L. Yaussy

In the latest development relating to West Virginia’s new aboveground storage tank (“AST”) legislation, on December 22, 2014, the West Virginia Department of Environmental Protection (“WVDEP”) filed with the West Virginia Secretary of State its proposed legislative rule implementing the Aboveground Storage Tank Act (the “AST Act”), 47 C.S.R. 63. The 89-page Proposed Rule is open to public comment through January 21, 2015, when a public hearing will be held beginning at 6 p.m. at WVDEP’s headquarters at 601 57th Street, Charleston, West Virginia. Following the public comment period, WVDEP can modify the Proposed Rule, but must submit it to the West Virginia Legislature for further consideration and adoption. The 2015 regular session of the West Virginia Legislature will begin on January 14, 2015.
The Proposed Rule is modeled on the “rough draft” emergency rule as modified in early October 2014. WVDEP made a number of changes to the draft emergency rule in response to informal comments from the public.
Perhaps the most substantive new language in the Proposed Rule relates to the definition of “Level 1 AST,” which has been expanded to include any tank containing substances that are “on EPA’s ‘Consolidated List of Chemicals Subject to Emergency Planning and Community Right to Know Act (EPCRA), CERCLA, and § 112(r) of the Clean Air Act (CAA)’ (known as ‘the List of Lists’) as provided by 40 C.F.R. §§ 355, 372, 302, and 68) in a concentration of one percent (1%) or greater, regardless of the AST’s location, except petroleum is not a Level 1 solely based upon having constituents on the CERCLA lists” (emphasis added). The EPA List of Lists spans 112 pages, most of which identify chemicals and chemical compounds. The procedure for determining the 1% threshold is not addressed in the Proposed Rule.
The following is a sampling of the changes in the Proposed Rule compared to the rough draft emergency rule:
  1. Level 3 ASTs continue to be exempt from the rule, except for some registration requirements, and this category now includes “potable water, filtered or unfiltered surface water, or groundwater (excluding flowback water from oil and gas wells, and coalbed methane wells), demineralized water, noncontact cooling water or water stored for fire or emergency purposes.” 
  2. New definitions include “combustible liquid,” “empty,” “flammable liquid,” “interstice,” “petroleum” and “unusual operating conditions.”
  3. “Temporarily out of service” is clarified to start 60 days after not receiving or dispensing fluid.
  4. The 72-hour inspection requirement for Level 1 ASTs was changed to 7 days.
  5. Internal inspection requirements are significantly eased to 20- and 30-year periods, depending on the existence of a Release Prevention Barrier.
  6. Signage no longer requires the identity of the substance stored, but security requirements must be identified in a Spill Prevention Response Plan.
  7. A substantial number of changes were made to the Corrective Action section 7.
Notably, reporting of releases from AST systems into secondary containment is still required under the Proposed Rule and no changes were made to the section containing Financial Responsibility Requirements for ASTs, except for the title.
A copy of the Proposed Rule is available for download here.


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