WEST virginia legislature
2017 regular session
House Bill 2811
By Delegates Hanshaw, Hartman, Kelly, Boggs, Miley, Shott, Nelson, Anderson, Westfall and Hamrick
[Passed March 25, 2017; in effect ninety days from passage.]
AN ACT to amend and reenact §22-30-3 of the Code of West Virginia, 1931, as amended, relating to the definition of aboveground storage tanks to clarify and amend categories of exempt devices.
Be it enacted by the Legislature of West Virginia:
That §22-30-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 30. THE ABOVEGROUND STORAGE TANK ACT.
For purposes of this article:
(1) "Aboveground storage tank" or "tank" or "AST" means a device made to contain an accumulation of more than one thousand three hundred twenty gallons of fluids that are liquid at standard temperature and pressure, which is constructed primarily of nonearthen materials, including concrete, steel, plastic or fiberglass reinforced plastic, which provide structural support, more than ninety percent of the capacity of which is above the surface of the ground, and includes all ancillary pipes and dispensing systems up to the first point of isolation. The term includes stationary devices which are permanently affixed, and mobile devices which remain in one location on a continuous basis for three hundred sixty-five or more days. A device meeting this definition containing hazardous waste subject to regulation under 40 C. F. R. Parts 264 and 265, exclusive of tanks subject to regulation under 40 C. F. R. § 265.201 is included in this definition but is not a regulated tank. Notwithstanding any other provision of this code to the contrary, the following categories of devices are not subject to the provisions of this article:
(A) Shipping containers that are subject to state or federal laws or regulations governing the transportation of hazardous materials, including, but not limited to, railroad freight cars subject to federal regulation under the Federal Railroad Safety Act, 49 U. S. C. §§20101-2015, as amended, including, but not limited to, federal regulations promulgated thereunder at 49 C. F. R. Parts 172, 173 or 174;
(B) Barges or boats subject to federal regulation under the United States Coast Guard, United States Department of Homeland Security, including, but not limited to, federal regulations promulgated at 33 C. F. R. 1, et seq. or subject to other federal law governing the transportation of hazardous materials.;
(C) Swimming pools;
(D) Process vessels;
(E) Devices containing drinking water for human or animal consumption, surface water or groundwater, demineralized water, noncontact cooling water or water stored for fire or emergency purposes;
(F) Devices containing food or food-grade materials used for human or animal consumption and regulated under the Federal Food, Drug and Cosmetic Act (21 U. S. C. §301-392);
(G) Except when located in a zone of critical concern, a device located on a farm, the contents of which are used exclusively for farm purposes and not for commercial distribution.
(H) Devices holding wastewater that is being actively treated or processed (e.g., clarifier, chlorine contact chamber, batch reactor, etc.);
(I) Empty tanks held in inventory or offered for sale;
(J) Pipeline facilities, 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;
(K) Liquid traps, atmospheric and pressure vessels, or associated gathering lines related to oil or gas production and gathering operations;
(L) Electrical equipment such as transformers, circuit breakers and voltage regulator transformers;
(M) Devices having a capacity of two hundred ten barrels or less, containing brine water or other fluids produced in connection with hydrocarbon production activities, that are not located in a zone of critical concern; and
(N) Devices having a capacity of 10,000 gallons or less, containing sodium chloride or calcium chloride water for roadway snow and ice pretreatment, that are not located in a zone of critical concern: Provided, That all such devices exempted under subdivisions (M) and (N) of this subsection must still meet the registration requirements contained in section four of this article, the notice requirements contained in section ten of this article, and the signage requirements contained in section eleven of this article.
(2) "Department" means the West Virginia Department of Environmental Protection.
(3) "First point of isolation" means the valve, pump, dispenser or other device or equipment on or nearest to the tank where the flow of fluids into or out of the tank may be shut off manually or where it automatically shuts off in the event of a pipe or tank failure.
(4) "Nonoperational storage tank" means an empty aboveground storage tank in which fluids will not be deposited or from which fluids will not be dispensed on or after the effective date of this article.
(5) "Operator" means any person in control of, or having responsibility for, the daily operation of an aboveground storage tank.
(6) "Owner" means a person who holds title to, controls or owns an interest in an aboveground storage tank, including the owner immediately preceding the discontinuation of its use. "Owner" does not mean a person who holds an interest in a tank for financial security unless the holder has taken possession of and operated the tank.
(7) "Person", "persons" or "people" means any individual, trust, firm, owner, operator, corporation or other legal entity, including the United States government, an interstate commission or other body, the state or any agency, board, bureau, office, department or political subdivision of the state, but does not include the Department of Environmental Protection.
(8) "Process vessel" means a tank that forms an integral part of a production process through which there is a steady, variable, recurring or intermittent flow of materials during the operation of the process or in which a biological, chemical or physical change in the material occurs. This does not include tanks used for storage of materials prior to their introduction into the production process or for the storage of finished products or by-products of the production process.
(9) "Public groundwater supply source" means a primary source of water supply for a public water system which is directly drawn from a well, underground stream, underground reservoir, underground mine or other primary sources of water supplies which are found underneath the surface of the state.
(10) "Public surface water supply source" means a primary source of water supply for a public water system which is directly drawn from rivers, streams, lakes, ponds, impoundments or other primary sources of water supplies which are found on the surface of the state.
(11) "Public surface water influenced groundwater supply source" means a source of water supply for a public water system which is directly drawn from an underground well, underground river or stream, underground reservoir or underground mine, and the quantity and quality of the water in that underground supply source is heavily influenced, directly or indirectly, by the quantity and quality of surface water in the immediate area.
(12) "Public water system" means:
(A) Any water supply or system which regularly supplies or offers to supply water for human consumption through pipes or other constructed conveyances, if serving at least an average of twenty-five individuals per day for at least sixty days per year, or which has at least fifteen service connections, and shall include:
(i) Any collection, treatment, storage and distribution facilities under the control of the owner or operator of the system and used primarily in connection with the system; and
(ii) Any collection or pretreatment storage facilities not under such control which are used primarily in connection with the system.
(B) A public water system does not include a bathhouse located on coal company property solely for the use of its employees or a system which meets all of the following conditions:
(i) Consists only of distribution and storage facilities (and does not have any collection and treatment facilities);
(ii) Obtains all of its water from, but is not owned or operated by, a public water system which otherwise meets the definition;
(iii) Does not sell water to any person; and
(iv) Is not a carrier conveying passengers in interstate commerce.
(13) "Regulated level 1 aboveground storage tank" or "level 1 regulated tank" means:
(A) An AST located within a zone of critical concern, source water protection area, public surface water influenced groundwater supply source area, or any AST system designated by the secretary as a level 1 regulated tank; or
(B) An AST that contains substances defined in section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) as a "hazardous substance" (42 U. S. C. § 9601(14)); or is on EPA's "Consolidated List of Chemicals Subject to the Emergency Planning and Community Right to Know Act (EPCRA), CERCLA, and §112(r) of the Clean Air Act (CAA)" (known as "the List of Lists") as provided by 40 C. F. R. §§ 355, 372, 302, and 68) in a concentration of one percent or greater, regardless of the AST's location, except ASTs containing petroleum are not "level 1 regulated tanks" based solely upon containing constituents recorded on the CERCLA lists; or,
(C) An AST with a capacity of 50,000 gallons or more, regardless of its contents or location.
(14) "Regulated level 2 aboveground storage tank" or "level 2 regulated tank" means an AST that is located within a zone of peripheral concern that is not a level 1 regulated tank.
(15) "Regulated aboveground storage tank" or "regulated tank" means an AST that meets the definition of a level 1 or level 2 regulated tank.
(16) "Release" means any spilling, leaking, emitting, discharging, escaping, or leaching of fluids from an aboveground storage tank into the waters of the state or escaping from secondary containment.
(17) "Secondary containment" means a safeguard applied to one or more aboveground storage tanks that prevents the discharge into the waters of the state of the entire capacity of the largest single tank and sufficient freeboard to contain precipitation. In order to qualify as secondary containment, the barrier and containment field must be sufficiently impervious to contain fluids in the event of a release, and may include double-walled tanks, dikes, containment curbs, pits or drainage trench enclosures that safely confine the release from a tank in a facility catchment basin or holding pond. Earthen dikes and similar containment structures must be designed and constructed to contain, for a minimum of seventy-two hours, fluid that escapes from a tank.
(18) "Secretary" means the Secretary of the Department of Environmental Protection, or his or her designee.
(19) "Source water protection area" for a public groundwater supply source is the area within an aquifer that supplies water to a public water supply well within a five-year time-of-travel, and is determined by the mathematical calculation of the locations from which a drop of water placed at the edge of the protection area would theoretically take five years to reach the well.
(20) "Zone of critical concern" for a public surface water supply source and for a public surface water influenced groundwater supply source is a corridor along streams within a watershed that warrants detailed scrutiny due to its proximity to the surface water intake and the intake's susceptibility to potential contaminants within that corridor. The zone of critical concern is determined using a mathematical model that accounts for stream flows, gradient and area topography. The length of the zone of critical concern is based on a five-hour time-of-travel of water in the streams to the intake. The width of the zone of critical concern is one thousand feet measured horizontally from each bank of the principal stream and five hundred feet measured horizontally from each bank of the tributaries draining into the principal stream.
(21) "Zone of peripheral concern" for a public surface water supply source and for a public surface water influenced groundwater supply source is a corridor along streams within a watershed that warrants scrutiny due to its proximity to the surface water intake and the intake's susceptibility to potential contaminants within that corridor. The zone of peripheral concern is determined using a mathematical model that accounts for stream flows, gradient and area topography. The length of the zone of peripheral concern is based on an additional five-hour time-of-travel of water in the streams beyond the perimeter of the zone of critical concern, which creates a protection zone of ten hours above the water intake. The width of the zone of peripheral concern is one thousand feet measured horizontally from each bank of the principal stream and five hundred feet measured horizontally from each bank of the tributaries draining into the principal stream.