COMMITTEE SUBSTITUTE
FOR
H. B. 2746
(By Delegates Beane, Douglas, Staton and Johnson)
(Originating in the Committee on Banking and Insurance)
[February 18, 1999]
A BILL to amend and reenact sections three, five, six, twelve and
sixteen, article seventeen, chapter twenty-two of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, all relating to incorporating federal updates to
the underground storage tank act and providing subrogation
authority to the director of the division of environmental
protection; and proposal of rules.
Be it enacted by the Legislature of West Virginia:
That sections three, five, six, twelve and sixteen, article
seventeen, chapter twenty-two of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended and
reenacted, all to read as follows:
ARTICLE 17. UNDERGROUND STORAGE TANK ACT.
§22-17-3. Definitions.
(a) "Change in status" means causing an underground storage
tank to be no longer in use or a change in the reported uses, contents or ownership of an underground storage tank.
(b) "Director" means the director of the West Virginia
division of environmental protection or such other person to whom
the director has delegated authority or duties pursuant to
sections six or eight, article one of this chapter.
(c) "Nonoperational storage tank" means an underground
storage tank in which regulated substances will not be deposited
or from which regulated substances will not be dispensed after
the eighth day of November, one thousand nine hundred eighty- four.
(d) "Operator" means any person in control of, or having
responsibility for, the daily operation of an underground storage
tank.
(e) "Owner" means:
(1) In the case of an underground storage tank in use on the
eighth day of November, one thousand nine hundred eighty-four,
or brought into use after that date, a person who owns an
underground storage tank used for the storage, use or dispensing
of a regulated substance.
(2) In the case of an underground storage tank in use before
the eighth day of November, one thousand nine hundred eighty- four, but no longer in use on that date, a person who owned such
a tank immediately before the discontinuation of its use.
(f) "Person" means any individual, trust, firm, joint stock
company, corporation (including government corporations),
partnership, association, state, municipality, commission, political subdivision of a state, interstate body, consortium,
joint venture, commercial entity and the United States
government.
(g) "Petroleum" means petroleum, including crude oil or any
fraction thereof which is liquid at a temperature of sixty
degrees Fahrenheit and a pressure of fourteen and seven-tenths
pounds per square inch absolute.
(h) "Regulated substance" means:
(1) Any substance defined in section 101 (14) of the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, but not including any substance regulated as a
hazardous waste under Subtitle C of the federal Resource
Conservation and Recovery Act of 1976, as amended; or
(2) Petroleum.
(i) "Release" means any spilling, leaking, emitting,
discharging, escaping, leaching or disposing from an underground
storage tank into groundwater, surface water or subsurface soils.
(j) "Subtitle I" means Subtitle I of the federal Resource
Conservation and Recovery Act of 1976, as amended.
(k) "Underground storage tank" means one tank or a
combination of tanks, and the underground pipes connected
thereto, which is used to contain an accumulation of regulated
substances and the volume of which, including the volume of the
underground pipes connected thereto, is ten percent or more
beneath the surface of the ground, but does not include:
(1) Farm or residential tanks with a capacity of eleven hundred gallons or less and 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
1968 1979, or an
intrastate pipeline facility regulated under state laws
comparable to the provisions of either of those acts;
(5) Surface impoundments, pits, ponds or lagoons;
(6) Storm water or wastewater collection systems;
(7) Flow-through process tanks;
(8) Liquid traps or associated gathering lines directly
related to oil or gas production and gathering operations; or
(9) Storage tanks situated in an underground area such as a
basement, cellar, mineworking, drift, shaft or tunnel, if the
storage tank is situated upon or above the surface of the floor.
The term "underground storage tank" does not include any
pipes connected to any tank which is described in subparagraphs
(1) through (9).
§22-17-5. Powers and duties of director; integration with other
acts.
(a) In addition to all other powers and duties prescribed in
this article or otherwise by law, and unless otherwise
specifically set forth in this article, the director shall perform any and all acts necessary to carry out the purposes and
requirements of Subtitle I.
(b) The director shall cooperate with and may receive and
expend money from the federal government or other source.
(c) The director may accept applications for and issue
policies of insurance to owners or operators of petroleum
underground storage tanks that are subscribers to the underground
storage tank insurance fund and may accept, review, pay and
settle claims pursuant to those policies of insurance under such
terms as the director may establish by rules proposed for
legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code.
(c) (d) The director may enter into any agreements,
including reimbursement
or subrogation agreements, for services
rendered contracts and cooperative arrangements under such terms
and conditions as he or she deems appropriate, with other state
agencies, educational institutions or other organizations and
individuals as necessary to implement the provisions of this
article.
(e) The director may take such actions as are necessary and
appropriate to carry out and enforce any agreements, contracts or
cooperative arrangements entered into as provided in subsection
(d) of this section, including the institution and prosecution of
suits in any state or federal court or administrative tribunal,
whether in the director's name or in the name of an insured or a
subrogor.
§22-17-6. Promulgation of rules and standards by director.
(a) The director has overall responsibility for the
promulgation of rules under this article. In promulgating and
revising such rules the director shall comply with the provisions
of chapter twenty-nine-a of this code. Such rules shall be no
more stringent than the rules and regulations promulgated by the
United States environmental protection agency pursuant to
Subtitle I.
(b) The director shall promulgate rules applicable to owners
or operators of underground storage tanks or other affected
persons, as appropriate, as follows:
(1) A requirement for a yearly registration fee for
underground storage tanks;
(2) A requirement that an owner or operator register with
the director each underground storage tank after the effective
date of the rules and that an owner or operator report annually
on changes in status of any underground storage tank;
(3) Such release detection, prevention and correction rules
applicable to underground storage tanks as may be necessary to
protect human health and the environment;
(4) Requirements for maintaining a leak detection system,
inventory control systems together with tank testing, or a
comparable system or method designed to identify releases from
underground storage tanks in a manner consistent with the
protection of human health and the environment;
(5) Requirements for maintaining records of any monitoring or leak detection system or inventory control system or tank
testing system;
(6) Rules for procedures and amount of fees to be assessed
for the underground storage tank administrative fund, the leaking
underground storage tank response fund and the underground
storage tank insurance fund established pursuant to this article,
which shall include a capitalization fee to be assessed against
all owners or operators of underground tanks to be used for
initial establishment of the underground storage tank insurance
fund;
(7) Procedures for making expenditures from the underground
storage tank administrative fund, the leaking underground storage
tank response fund and the underground storage tank insurance
fund;
(8) Acceptable methods by which an owner or operator may
demonstrate financial responsibility;
(9) Requirements for reporting of releases and corrective
action taken in response to a release;
(10) Requirements for taking corrective action in response
to a release from an underground storage tank;
(11) Requirements for the closure of tanks to prevent future
releases of regulated substances to the environment;
(12) Requirements for certification of installation,
removal, retrofit, testing and inspection of underground storage
tanks and leak detection systems by a registered professional
engineer or other qualified person;
(13) Requirements for public participation in the
enforcement of the state underground storage tank program;
(14) Procedures establishing when and how the director
determines if information obtained by any agency under this
article is confidential;
(15) Standards of performance for new underground storage
tanks;
or
(16) Procedures for the review, acceptance, settlement and
payment of claims under policies issued by the director pursuant
to subsection (c) of section five of this article; or
(16) (17) Any other rules or standards necessary and
appropriate for the effective implementation and administration
of this article.
§22-17-12. Confidentiality.
(a) Any records, reports or information obtained from any
persons under this article shall be available to the public,
except that upon a showing satisfactory to the director by any
person that records, reports or information, or a particular part
thereof, to which the director or any officer, employee, or
representative thereof has access under this section, if made
public, would divulge information entitled to protection under
section 1905 of title 18 of the United States Code, such
information or particular portion thereof is confidential in
accordance with the purposes of this section, except that such
record, report, document or information may be disclosed to other
officers, employees, or authorized representatives
of the United States environmental protection agency or of this state
if such
officers, employees or authorized representatives are
implementing the provisions of this article.
(b) Any person who knowingly and willfully divulges or
discloses any information entitled to protection under this
section is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than five thousand dollars, or imprisoned
in the county jail for not more than one year, or both fined and
imprisoned.
(c) In submitting data under this article, a person required
to provide such data may designate the data which he or she
believes is entitled to protection under this section and submit
such designated data separately from other data submitted under
this article. A designation under this subsection shall be made
in writing and in such manner as the director may prescribe.
§22-17-16. Civil penalties.
(a) Any violator who fails to comply with an order of the
director issued under subsection (a), section fifteen of this
article within the time specified in the order is liable for a
civil penalty of not more than twenty-five thousand dollars for
each day of continued noncompliance.
(b) Any owner who knowingly:
(1) Fails to register; or
knowingly (2) submits false information pursuant to this article
is liable for a civil penalty not to exceed ten thousand dollars
for each tank which is not registered or for which false
information is submitted.
(c) Any owner or operator of an underground storage tank who
fails to comply with any requirement or standard promulgated by
the director under section six of this article is subject to a
civil penalty not to exceed ten thousand dollars for each tank
for each day of violation.