DEP Proposed Rule on West Virginia Storage Tank Inspections

Partial relief may be in sight from hiring certified inspectors for every tank inspection required for the impending initial West Virginia aboveground tank inspection requirement.  Signed into law on April 1, 2014, the West Virginia Aboveground Storage Tank Act has been criticized by many tank owners as too expansive in the number of tanks required to have inspections completed and certified by January 1, 2015.

On September 9, the West Virginia Department of Environmental Protection (“DEP”) issued a proposed interpretive rule that eases the inspection requirements by creating three classes of tanks.  The class assigned to a storage tank determines who can fulfill the inspection requirements for the first annual inspection under the new Storage Tank Law.

Tank Classifications

The proposed interpretive rule 47 C.S.R. 62 breaks the aboveground storage tanks (“AST”) subject to the registration and inspection requirements of the Tank Act into three separate classes: Level 1 AST, Level 2 AST, and Level 3 AST.  Tank registration is still required for all aboveground storage tanks subject to the Tank Act (ASTs with capacity of 1,320 gallons or more storing liquid at standard temperature and pressure).  The proposed interpretive rule only alters who may perform the tank inspection and submit that inspection certification to the West Virginia DEP by January 1, 2015.

Level 1 ASTs are defined as having at least one of the following attributes: a capacity of 50,000 gallons or more, located within a protected area or a zone of critical concern, contains a hazardous substance under CERCLA, or is deemed by the Secretary of the DEP as a “potential high risk of harm to public health or environment.”  Under the proposed interpretive rule, the Secretary would be required to provide notice to the tank owner or operator of a Level 1 designation.

Level 2 ASTs are tanks that do not fit the definition of a Level 1 or Level 3 AST or are determined by the DEP Secretary to pose a lesser potential for harm than a Level 1 AST.

Level 3 ASTs are storage tanks that the DEP Secretary has determined to have low risk of harm based on its contents, size, or location or because it is subject to strict regulations by another program (“i.e., ASTs containing potable water, filtered surface water, demineralized water, noncontact cooling water or water stored for fire or emergency purpose, 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”).

Aboveground Storage Tank Inspection Requirements

Who can conduct the initial storage tank inspection depends on which classification level the tank is assigned.  Level 1 ASTs must have an initial inspection completed and certified by one of the following:

  • Professional Engineer Licensed by the West Virginia Board of Registration for Professional Engineers
  • Person Working Under Direct Supervision of WV Licensed Professional Engineer
  • API  Certified Tank Inspector
  • STI Certified Tank Inspector

The initial storage tank inspection and certification for Level 2 and 3 ASTs can be performed by those in the list above, the owner or operator of the AST, or by any person designated by the owner or operator of the AST.

No matter which classification level under this proposed rule, all ASTs subject to the Aboveground Storage Tank Act must have the initial inspection completed and certification submitted to the DEP Secretary by January 1, 2015.  All of the tank inspections must be conducted based on the appropriate industry standard for the tank or facility.  The proposed rule includes Appendices with those standards as well as the minimum requirements for any inspection.

Action Plan

Register your tank now if you have an aboveground storage tank that is subject to the new West Virginia Aboveground Storage Tank Act.  Tank registration is required by October 1, 2014, less than fifteen days away.  Then have the storage tank inspection completed according to the assigned tank AST level designated by the DEP.  Finally, complete the required Spill Prevention Response Plan that is due by December 3, 2014.

Visit the West Virginia website for complete details and registration links.

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