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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 here

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 remains unchanged.[2] 


Click here for a brief summary of the Interpretive Rule. We urge you to review the entire document to determine how it impacts your business.


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