Another Revision to West Virginia’s Above Ground Storage Tank Act

Years after the West Virginia Above Ground Storage Act was signed into law, the West Virginia legislature is again looking at changing the number of storage tanks that must comply with the law. In reaction to chemicals leaking from an API 650 tank into the local Charleston waterways, the Act imposed a registration and certification requirement on all permanent above ground storage tanks that store more than 1,320 gallons at atmospheric pressure and constructed of noncarbon materials (steel, concrete, fiberglass, etc.). API 650 tanks owners were scrambling to complete the required inspections by the January 1, 2015 deadline.

Many complaints were lodged by business owners about how onerous the Act was in cost and breadth of the law. Thousands of tanks were covered by the Act, making an API 653 tank inspector the most sought after professional in the state of West Virginia. Many claimed it was logistically impossible to have all of the above ground storage tanks covered by the Act inspected by the deadline.

In March of 2015, the West Virginia legislature passed Bill 423 that greatly scaled back the number of above ground storage tanks regulated by the new program. The revisions designated two regulated level of tanks. Level 1 included ASTs within a zone of critical concern, source water protection area, public surface water influenced groundwater supply source area, or a tank designated by the DEP; contains substances defined in CERCLA or other federal environmental laws (excluding petroleum); or is an AST with a capacity of 50,000 or more gallons. Level 2 included ASTs within a zone of peripheral concern that is not within the definition for a level 1 tank. Level 1 tanks had a higher level of scrutiny compared to level 2 tanks.

Despite this easing of the coverage of the act, representatives of the oil and gas industry continued to complain that the rules were still burdensome to the point of imposing a detrimental economic impact to business with above ground tanks that simply stored brine and other waste liquids. Their opinions were heard and had a response with legislation introduced this year.

This bill exempts smaller tanks used by the oil and gas industry. According to the Department of Environmental Protection, this change would result in 29,000 less tanks being covered by the Act. However, if the tanks are located in the “critical zones,” they would still be required to be registered and have regular API 653 inspections. This proposal was met with opposition from environmental groups.

A compromise was reached where all of the tanks within the original definition still have to be registered but tanks outside any of the five-hour “critical zones” would not be subject to other requirements, such as inspections. These critical zones are within five hours upstream of drinking water intakes. The House has passed the revised House Bill 2811, and now it is in the Senate for consideration.

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