Governor Proposes West Virginia Source Water Protection Act

On Monday, January 20, Governor Tomblin (D-WV) filed legislation in response to last week’s chemical spill, which contaminated drinking water in Boone, Cabell, Clay, Jackson, Kanawha, Lincoln, Logan, Putnam, and Roane counties. This proactive legislation, if enrolled, will become the West Virginia Source Water Protection Act (SWPA or Act). This legislation is designed to regulate the industrial storage of regulated material in aboveground storage tanks located within zones of critical concern in the vicinity of public water systems. Further, the legislation will require public water systems to evaluate potential risks to the water supply and to develop certain contingency and emergency response plans to prepare for potential releases of regulated material from industrial aboveground storage tanks that jeopardize a public water system, human health, or the environment. The legislation also authorizes both civil and criminal penalties for persons who violate the SWPA.

The legislative intent of the SWPA is to:

(1) Implement reasonable regulations governing the storage of specified volumes of regulated material in industrial aboveground storage tanks within zones of critical concern in
the vicinity of public water systems;
(2) Assure that industrial aboveground storage tanks are constructed and maintained in a manner consistent with acceptable industry safety standards;
(3) Assure that public water systems properly plan for contingencies and prepare appropriate emergency response plans to implement in the event that a leak from an industrial above ground
storage tank jeopardizes one or more public water systems; and
(4) Protect human health and the environment from dangers posed by the storage of specified volumes of regulated material in industrial above ground storage tanks located within zones of
critical concern in the vicinity of public water systems.

Targeted Applicability to Tanks

This regulation targets industrial aboveground storage tanks. An industrial aboveground storage tank is an aboveground storage tank located within a zone of critical concern that contains a volume of regulated material in excess of the applicable threshold to be established by the secretary. This regulation does not apply to aboveground storage tanks that are outside the zone of critical concern, nor does it apply to:
(1) Farm or residential tanks with a capacity of 1,100 gallons or less that are used for storing motor fuel for noncommercial purposes;
(2) Tanks used for storing heating oil for consumptive use on the premises where stored;
(3) Septic tanks;
(4) A pipeline facility, including gathering lines, regulated under the Natural Gas Pipeline Safety Act of 1968 or the Hazardous Liquid Pipeline Safety Act of 1979, or an intrastate pipeline
facility regulated by the West Virginia public service commission or otherwise regulated under any state law comparable to the provisions of either the Natural Gas Pipeline Safety Act of 1968 or the Hazardous Liquid Pipeline Safety Act of 1979;
(5) Liquid traps or associated gathering lines related to oil or gas production and gathering operations;
(6) Surface impoundments, pits, ponds or lagoons;
(7) Stormwater or wastewater collection systems;
(8) Flow-through process tanks;
(9) Tanks used for the storage of products that are regulated pursuant to the federalFood, Drug, and Cosmetic Act;
(10) Oil filled tanks regulated under section 1321 of the federal Water Pollution Control Act (section 311 of the federal Clean Water Act) and the regulations promulgated thereunder, 40 C.F.R. ‘ 112, et seq.;
(11) Farm tanks with a capacity of 1,100 gallons or less used solely to store or contain substances that are used to facilitate the production of crops, livestock, and livestock products on such farm;
(12) Tanks that are used to store propane gas;
(13) Tanks that are mobile in nature or that do not remain in one location for more than thirty consecutive calendar days;
(14) Storage tank systems storing hazardous wastes regulated under Subtitle C of the federal Solid Waste Disposal Act, 42 U.S.C. ‘ 6921, et seq., or substances regulated under the West Virginia Hazardous Waste Management Act, W. Va. Code ‘ 22-18-1, et seq.;
(15) Tanks otherwise regulated under those provisions of this W. Va. Code Chapter 22 that necessitate individual site-specific permits that require appropriate containment and diversionary structures or equipment to prevent discharged materials from reaching the waters of the state, including:
(A) Tanks regulated under the Surface Coal Mining and Reclamation Act, article three chapter 22;
(B) Tanks that are used to store brines, crude oil, or any other liquid or similar substances or materials that are directly related to the exploration, development, stimulation, completion, or production of crude oil or natural gas regulated under article six or article six-a of chapter 22;
(C) Tanks that are located at establishments that have individual permits issued under the National Pollutant Discharge Elimination System, article eleven of chapter 22; and
(D) Tanks regulated under the Solid Waste Management Act, article fifteen of chapter
22, including, but not limited to, piping, tanks, collection, and treatment systems used for leachate, methane gas, and methane gas condensate management.
(16) Any other tank excluded by legislative rule promulgated by the secretary.

By limiting regulation to the zone of critical concern, the bill targets only those industrial aboveground storage tanks that pose a potential threat to the public water supply. The “zone of critical concern” includes those areas identified as a zone of critical concern in a Source Water Assessment Report by the department of health and human resources in conjunction with the State of West Virginia Source Water Assessment and Protection Program, as such areas may be

revised and as additional areas, if any, may be added from time to time by the secretary of
WVDEP.

Public Water Supplies Protected Through Interagency Cooperation

The bill will require public water systems (defined by Chap. 16, art. 1) to submit a source water protection plan to the WVDEP which shall be jointly approved by WVDEP and DHHR designed to protect its system from contamination of its source water supply caused by the release of regulated material from an industrial aboveground storage tank. The public water system will be required to provide WVDEP with an updated source water protection plan every three years.

Lead Agency

The bill authorizes the Secretary of WVDEP to implement the Source Water Protection Act and promulgate rules necessary for the administration of the Act. In its administration of the Act, WVDEP is required to cooperate with DHHR, the Public Service Commission, , and local health departments. WVDEP will regulate both the public water systems and industrial aboveground storage tanks through the administration and enforcement of the SWPA.

Corrective Action

This SWPA gives WVDEP the authority to have the right of entry to industrial aboveground storage tank facilities to inspect and order, or take, necessary corrective action. WVDEP may seek injunctive relief, civil, and/or criminal penalties against violators of the Act. Violators of an order may be liable for civil penalties up to $25,000 per day for each day of non- compliance. Knowing and intentional violations of the SWPA may result in criminal penalties resulting in misdemeanor conviction with penalties of up to 6 months in the penitentiary and
$25,000 fines.

Authority to Act when there is Imminent and Substantial Endangerment

If there is evidence that an industrial aboveground storage tank may present an imminent and substantial endangerment to human health or the environment, WVDEP is authorized to bring suit on behalf of the state against any owner or operator of an industrial aboveground storage tank who has contributed or who is contributing to such imminent and substantial endangerment to public health or the environment to order such a person to take such action as may be necessary to abate the situation and protect public health and the environment from contamination of a source water supply of a public water system caused by a release of a regulated material from an industrial aboveground storage tank.

Industrial Aboveground Storage Tank Regulation

The SWPA regulates source water through the imposition of several new requirements for industrial aboveground storage tanks: including the requirement to have berms, leak detection, annual inspection and certification by a registered professional engineer, spill

prevention response plan, demonstration of financial responsibility, and yearly registration with
WVDEP.

Cost Recovery
The SWPA also authorizes the WVDEP to implement corrective action and seek cost recovery. The SWPA will be paid for through the collection of annual fees by the owners of the industrial aboveground storage tanks and the public water systems. The SWPA authorizes two separate funds designed to support the costs of administering the Act and to support corrective action namely, an Industrial Aboveground Storage Tank Administrative Fund and a Leaking Industrial Aboveground Storage Tank Response Fund.

Notice

The SWPA requires the owner/operator of the industrial aboveground storage tank to provide notice to WVDEP, local governments, downstream public water systems, and other industrial users of all materials stored at the covered facility along with the material safety data sheets for each material identifying the potential health hazards. The industrial aboveground storage tank facility is subject to certain signage requirements.

By:
G. Kurt Dettinger
David M. Flannery
Laura M. Goldfarb

David Flannery has focused his practice in the areas of environmental and energy law. Ranked as one of the leading lawyers in America in these areas, Flannery is a member of the American College of Environmental Lawyers and a Commissioner to the Ohio River Valley Water Sanitation Commission (ORSANCO).
 
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