This morning, the West Virginia Department of Environmental Protection (“DEP”) filed a proposed interpretive rule (the “Interpretive Rule”) with the West Virginia Secretary of State’s office implementing, in part, the recent Aboveground Storage Tank Act (the “AST Act”), which was enacted in response to the January 9, 2014 event that contaminated the water supply of approximately 300,000 West Virginia residents across nine counties. An interpretive rule is defined under the West Virginia Administrative Procedures Act as a rule that “is intended by the agency to provide information or guidance to the public regarding the agency’s interpretation, policy or opinions upon the law enforced or administered by it . . . .” W. Va. Code § 29A-1-2(c). The Interpretive Rule, 47 C.S.R. 62, will be subject to a public comment period of 30 days, closing on October 9, 2014 at 8:30 p.m.
A public hearing will be held on October 9, 2014 at 6:30 p.m. at DEP’s headquarters in Charleston, West Virginia. The Interpretive Rule is available for download
from the Secretary of State’s website.
The Interpretive Rule is intended to establish a risk-based regulatory approach and creates three “levels” of aboveground storage tanks (“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. Importantly, the Interpretive Rule focuses only on the statutory requirements for (a) the submittal of a spill prevention response plan (“SPR Plan”), and (b) the inspection and certification of tanks. The Interpretive Rule does not
address registration, and therefore the requirement to submit a registration for all ASTs as defined in W. Va. Code § 22-30-3(1) by October 1, 2014
The following is a brief summary of the Interpretive Rule, and so we urge you to review the entire document to determine how it impacts your business.
1. No Changes to the Deadlines Established in the AST Act.
Importantly, the key statutory deadlines imposed by the AST Act remain in place and unchanged by the Interpretive Rule, although the Interpretive Rule sets forth methods for complying with these deadlines based on an AST’s assigned risk level:
a. A SPR Plan must be submitted to DEP by December 3, 2014. The Interpretive Rule establishes different options for compliance with this requirement for Level 1 tanks and Levels 2 and 3 tanks, as set forth below.
b. Inspection and certification of each AST must be submitted to DEP by January 1, 2015. The Interpretive Rule establishes different options for compliance with this requirement for Level 1 tanks and Levels 2 and 3 tanks, as set forth below.
2. Tank Regulatory Categories.
a. Level 1 ASTs – A “Level 1 AST” is an “AST that is determined by the Secretary to have the potential for high risk of harm to public health or the environment due to its contents, size or location. A Level 1 AST includes:
1. Any AST located within a ZCC, wellhead protection area
or groundwater intake area under the influence of surface water,
2. Any AST that contains substances defined as a “hazardous substance” under the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601(14) et seq., or
3. Any AST with a capacity of 50,000 gallons or more, regardless of location or contents.
See 47 C.S.R. 62-2.2.a through 2.2.c.
The Interpretive Rule would also give WVDEP discretion to identify other tanks as “Level 1 ASTs” on a case-by-case basis. 47 C.S.R. 62-2.2.d. This category specifically excludes “ASTs containing potable water, filtered surface water, demineralized water, noncontact cooling water or water stored for fire or emergency purposes, food or food-grade materials, or hazardous waste tanks subject to regulation under 40 C.F.R. § 264.” 47 C.S.R. 62-2.2.
The following requirements apply to Level 1 ASTs:
The initial inspection under W. Va. Code § 22-30-6 must be performed by a qualified professional engineer, a qualified person working under the direct supervision of a professional engineer, an individual certified to perform tank inspections by the American Petroleum Institute, or a person certified to perform tank inspections by the Steel Tank Institute. Certification is required by the professional engineer (for those inspections conducted by a professional engineer or a qualified person working under the professional engineer’s direct supervision) or by the API-certified or STI-certified inspector, and must be submitted to DEP on a form prescribed by the Secretary by January 1, 2015. 47 C.S.R. 62-3.1.
A SPR Plan meeting the requirements of Appendix C of the Interpretive Rule and in accordance with the requirements of W. Va. Code § 22-30-9 must be submitted to WVDEP by December 3, 2014.
b. Level 2 ASTs – This category includes those ASTs that have the potential for a lesser risk of harm to public health or the environment than a Level 1 AST, or those ASTs that do not meet the definition of a Level 1 or a Level 3 tank. 47 C.S.R. 62-2.3. The use of the disjunctive “or” in this definition is somewhat confusing, but it seems relatively clear that the agency intended this category to function as a “catch-all” for those tanks that do not fall expressly within Level 1 or Level 3.
The following requirements apply to Level 2 ASTs:
In addition to the list of authorized inspectors set forth above with regard to Level 1 ASTs, the Interpretive Rule authorizes the owner or operator of the AST, or “any person designated by the owner or operator of the AST” to perform inspections of Level 2 ASTs. The owner, operator, or its designee may certify their inspection as well. 47 C.S.R. 62-3.2.
With regard to SPR Plans, as an alternative to the requirements of W. Va. Code § 22-30-9 and Appendix C of the Interpretive Rule, the Interpretive Rule establishes certain circumstances under which owners or operators of Level 2 ASTs may submit or certify to, as appropriate, existing SPCC plans, groundwater protection plans, or other spill prevention plans. The Secretary may request additional information, if necessary, to ensure that any such plans conform with W. Va. Code § 22-30-9. 47 C.S.R. 62-4.2 and -4.3.
c. Level 3 Tanks – This category encompasses those tanks determined by the Secretary to have a low risk of harm to public health or the environment—either because of their contents, size or location, or because they are already subject to strict regulations under another program—and expressly includes “ASTs containing potable water, filtered surface water, demineralized water, noncontact cooling water or water stored for fire or emergency purposes, food or food-grade materials, or hazardous waste tanks subject to regulation under W. Va. Code §§ 22-18-1 et seq. and 40 C.F.R. § 264.” 47 C.S.R. 62-2.4.
The following requirements apply to Level 3 ASTs:
Like Level 2 ASTs, in addition to the list of authorized inspectors set forth above with regard to Level 1 ASTs, the Interpretive Rule authorizes the owner or operator of the AST, or “any person designate by the owner or operator of the AST” to perform inspections of Level 3 ASTs. The owner, operator, or its designee may certify their inspection as well. 47 C.S.R. 62-3.2.
For those Level 3 ASTs other than hazardous waste tanks subject to W. Va. Code §§ 22-18-1 et seq. and 40 C.F.R. Part 264, if the owner or operator maintains an Emergency Response Plan pursuant to the Public Health Security and Bioterrorism Preparedness and Response Act, 42. U.S.C. § 300i-2, the submittal of that plan to the federal United States Environmental Protection Agency may be in lieu of a submission of a SPR Plan to DEP by December 3, 2014. Otherwise, a SPR Plan meeting the requirements of Appendix C and in accordance with the requirements of W. Va. Code § 22-30-9 must be filed with DEP by December 3, 2014. 47 C.S.R. 62-4.4.
Please note that the Interpretive Rule is intended to provide “guidance and clarification” for purposes of compliance with the initial inspection and certification deadlines and SPR Plan requirements. Indeed, by its terms, the Interpretive Rule would remain in effect only through June 1, 2015, unless sooner terminated, continued or re-established as a legislative rule.
Although only four pages long, the Interpretive Rule raises a host of new questions regarding its interpretation and application in the context of the AST Act, and an analysis of these issues is ongoing. Furthermore, the Interpretive Rule represents only a portion of the rules necessary to implement the AST Act. A more comprehensive emergency rule is still forthcoming, as required by the AST Act, followed by a legislative rule which will be considered by the West Virginia Legislature during its 2015 Regular Session. Questions also exist regarding the interplay between the Interpretive Rule and the as-yet-unfiled emergency and legislative rules, and the answers to those questions will not be known for months.
If you have questions regarding the AST Act or the Interpretive Rule as filed, please contact Mark Clark (304-340-3876), Katherine Crockett (304-340-3832) or any of the Spilman team.
The earliest possible effective date for the Interpretive Rule is November 8, 2014, as, by statute, it cannot become effective until the expiration of 30 days following the notice of its adoption after the conclusion of the comment period. W. Va. Code § 29A-3-8.
As of October 1, 2014, “it shall be unlawful for any owner or operator to operate or use an aboveground storage tank subject to this article which has not been properly registered . . . .” W. Va. Code § 22-30-4(g).
This term is not found in the AST Act or in Senate Bill 373, and is defined in the Interpretive Rule as “the surface and subsurface area surrounding a well, wellfield or spring that supplies a public water supply through which contaminants are likely to pass and eventually reach the water well(s).” 47 C.S.R. 62-2.5. Introducing this new concept into the Interpretive Rule creates the potential for confusion, and it is not clear that the regulated community will be able to readily identify these areas.