"Above Ground Storage Tank Act"

By: Roger G. Hanshaw
Environmental & Regulatory Alert
April 25, 2014

On April 1, 2014, Governor Earl Ray Tomblin signed into law Senate Bill 373, the "Above Ground Storage Tank Act" adopted by the West Virginia Legislature in the 2014 regular session. [available here] The Above Ground Storage Tank Act (the "Act") contains provisions that will impact business in many sectors of our economy. As the West Virginia Department of Environmental Protection ("DEP") prepares to begin implementing the Act, all West Virginia businesses with above ground storage tanks should consider what action, if any, will be required of them.

The Act's key provisions include registration and annual inspection requirements for all above ground storage tanks with a capacity of 1,320 gallons or greater, development of spill prevention and response plans, and implementation of fees to fund the administrative costs of managing these programs at the West Virginia DEP. The Act excludes process vessels and mobile tanks that are located at a particular site for less than sixty days. The Act directs DEP to develop a registration form by May 2014, which must be completed for all above ground tanks covered by the Act and submitted to DEP with the applicable registration fee. The Act authorizes DEP to specify the registration procedure and the registration fee, but prohibits the use of any above ground storage tank after October 1, 2014, if the tank has not been properly registered and the required fee paid.

The second key provision is the requirement that tanks subject to the Act be inspected annually by a qualified professional. The Act provides that inspections may be performed by (1) a qualified registered professional engineer; (2) a person working under the professional engineer's direction; (3) an individual certified to perform tank inspections by the American Petroleum Institute; or (4) a person certified to inspect tanks under another program approved by DEP. All tanks subject to the Act are to be inspected by January 1, 2015.

The Act gives DEP significant rulemaking authority and provides that major elements of the above ground storage tank regulatory program will be developed by DEP through the rulemaking process. In an unusual step, West Virginia DEP has invited comments on the rule that will be developed to implement the Act prior to the rule's initial development. Just last week, on April 18, 2014, DEP Secretary Randy Huffman issued an open invitation [available here] to stakeholders to provide comments on what the rule should contain and issues that DEP should consider when drafting the rule. Those comments are due by May 15, 2014, and may be submitted in writing or via email to the following recipient:

Scott G. Mandirola, Director
DEP Division of Water and Waste Management
6091 57th Street, Southeast
Charleston, West Virginia 25304

The draft rule is anticipated to be available by mid-July 2014. DEP plans to file the rule as an emergency rule by no later than December 2014 in order to meet the deadlines established by the Act.