WEST VIRGINIA LEGISLATURE 2017 REGULAR SESSION ENROLLED Committee Substitute for 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.] Enr. CS for HB 2811 1 AN ACT to amend and reenact §22-30-3 of the Code of West Virginia, 1931, as amended, relating 2 to the definition of aboveground storage tanks to clarify and amend categories of exempt 3 devices. Be it enacted by the Legislature of West Virginia: 1 2 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. §22-30-3. Definitions. 1 For purposes of this article: 2 (1) “Aboveground storage tank” or “tank” or “AST” means a device made to contain an 3 accumulation of more than one thousand three hundred twenty gallons of fluids that are liquid at 4 standard temperature and pressure, which is constructed primarily of nonearthen materials, 5 including concrete, steel, plastic or fiberglass reinforced plastic, which provide structural support, 6 more than ninety percent of the capacity of which is above the surface of the ground, and includes 7 all ancillary pipes and dispensing systems up to the first point of isolation. The term includes 8 stationary devices which are permanently affixed, and mobile devices which remain in one 9 location on a continuous basis for three hundred sixty-five or more days. A device meeting this 10 definition containing hazardous waste subject to regulation under 40 C. F. R. Parts 264 and 265, 11 exclusive of tanks subject to regulation under 40 C. F. R. § 265.201 is included in this definition 12 but is not a regulated tank. Notwithstanding any other provision of this code to the contrary, the 13 following categories of devices are not subject to the provisions of this article: 14 (A) Shipping containers that are subject to state or federal laws or regulations governing 15 the transportation of hazardous materials, including, but not limited to, railroad freight cars subject 16 to federal regulation under the Federal Railroad Safety Act, 49 U. S. C. §§20101-2015, as 17 amended, including, but not limited to, federal regulations promulgated thereunder at 49 C. F. R. 18 Parts 172, 173 or 174; 1 Enr. CS for HB 2811 19 (B) Barges or boats subject to federal regulation under the United States Coast Guard, 20 United States Department of Homeland Security, including, but not limited to, federal regulations 21 promulgated at 33 C. F. R. 1, et seq. or subject to other federal law governing the transportation 22 of hazardous materials.; 23 (C) Swimming pools; 24 (D) Process vessels; 25 (E) Devices containing drinking water for human or animal consumption, surface water or 26 groundwater, demineralized water, noncontact cooling water or water stored for fire or emergency 27 purposes; 28 (F) Devices containing food or food-grade materials used for human or animal 29 consumption and regulated under the Federal Food, Drug and Cosmetic Act (21 U. S. C. §301- 30 392); 31 32 33 34 (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.); 35 (I) Empty tanks held in inventory or offered for sale; 36 (J) Pipeline facilities, including gathering lines, regulated under the Natural Gas Pipeline 37 Safety Act of 1968 or the Hazardous Liquid Pipeline Safety Act of 1979, or an intrastate pipeline 38 facility regulated by the West Virginia Public Service Commission or otherwise regulated under 39 any state law comparable to the provisions of either the Natural Gas Pipeline Safety Act of 1968 40 or the Hazardous Liquid Pipeline Safety Act of 1979; 41 42 43 44 (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; 2 Enr. CS for HB 2811 45 (M) Devices having a capacity of two hundred ten barrels or less, containing brine water or 46 other fluids produced in connection with hydrocarbon production activities, that are not located in 47 a zone of critical concern; and 48 (N) Devices having a capacity of 10,000 gallons or less, containing sodium chloride or 49 calcium chloride water for roadway snow and ice pretreatment, that are not located in a zone of 50 critical concern: Provided, That all such devices exempted under subdivisions (M) and (N) of this 51 subsection must still meet the registration requirements contained in section four of this article, 52 the notice requirements contained in section ten of this article, and the signage requirements 53 contained in section eleven of this article. 54 (2) “Department” means the West Virginia Department of Environmental Protection. 55 (3) “First point of isolation” means the valve, pump, dispenser or other device or equipment 56 on or nearest to the tank where the flow of fluids into or out of the tank may be shut off manually 57 or where it automatically shuts off in the event of a pipe or tank failure. 58 (4) “Nonoperational storage tank” means an empty aboveground storage tank in which 59 fluids will not be deposited or from which fluids will not be dispensed on or after the effective date 60 of this article. 61 62 (5) “Operator” means any person in control of, or having responsibility for, the daily operation of an aboveground storage tank. 63 (6) “Owner” means a person who holds title to, controls or owns an interest in an 64 aboveground storage tank, including the owner immediately preceding the discontinuation of its 65 use. “Owner” does not mean a person who holds an interest in a tank for financial security unless 66 the holder has taken possession of and operated the tank. 67 (7) “Person”, “persons” or “people” means any individual, trust, firm, owner, operator, 68 corporation or other legal entity, including the United States government, an interstate 69 commission or other body, the state or any agency, board, bureau, office, department or political 70 subdivision of the state, but does not include the Department of Environmental Protection. 3 Enr. CS for HB 2811 71 (8) “Process vessel” means a tank that forms an integral part of a production process 72 through which there is a steady, variable, recurring or intermittent flow of materials during the 73 operation of the process or in which a biological, chemical or physical change in the material 74 occurs. This does not include tanks used for storage of materials prior to their introduction into 75 the production process or for the storage of finished products or by-products of the production 76 process. 77 (9) “Public groundwater supply source” means a primary source of water supply for a 78 public water system which is directly drawn from a well, underground stream, underground 79 reservoir, underground mine or other primary sources of water supplies which are found 80 underneath the surface of the state. 81 (10) “Public surface water supply source” means a primary source of water supply for a 82 public water system which is directly drawn from rivers, streams, lakes, ponds, impoundments or 83 other primary sources of water supplies which are found on the surface of the state. 84 (11) “Public surface water influenced groundwater supply source” means a source of water 85 supply for a public water system which is directly drawn from an underground well, underground 86 river or stream, underground reservoir or underground mine, and the quantity and quality of the 87 water in that underground supply source is heavily influenced, directly or indirectly, by the quantity 88 and quality of surface water in the immediate area. 89 (12) “Public water system” means: 90 (A) Any water supply or system which regularly supplies or offers to supply water for 91 human consumption through pipes or other constructed conveyances, if serving at least an 92 average of twenty-five individuals per day for at least sixty days per year, or which has at least 93 fifteen service connections, and shall include: 94 95 (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 4 Enr. CS for HB 2811 96 97 98 99 100 101 102 103 (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; 104 (iii) Does not sell water to any person; and 105 (iv) Is not a carrier conveying passengers in interstate commerce. 106 (13) “Regulated level 1 aboveground storage tank” or “level 1 regulated tank” means: 107 (A) An AST located within a zone of critical concern, source water protection area, public 108 surface water influenced groundwater supply source area, or any AST system designated by the 109 secretary as a level 1 regulated tank; or 110 (B) An AST that contains substances defined in section 101(14) of the Comprehensive 111 Environmental Response, Compensation and Liability Act (CERCLA) as a “hazardous substance” 112 (42 U. S. C. § 9601(14)); or is on EPA’s “Consolidated List of Chemicals Subject to the Emergency 113 Planning and Community Right to Know Act (EPCRA), CERCLA, and §112(r) of the Clean Air Act 114 (CAA)” (known as “the List of Lists”) as provided by 40 C. F. R. §§ 355, 372, 302, and 68) in a 115 concentration of one percent or greater, regardless of the AST’s location, except ASTs containing 116 petroleum are not “level 1 regulated tanks” based solely upon containing constituents recorded 117 on the CERCLA lists; or, 118 119 120 121 (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. 5 Enr. CS for HB 2811 122 123 (15) “Regulated aboveground storage tank” or “regulated tank” means an AST that meets the definition of a level 1 or level 2 regulated tank. 124 (16) “Release” means any spilling, leaking, emitting, discharging, escaping, or leaching of 125 fluids from an aboveground storage tank into the waters of the state or escaping from secondary 126 containment. 127 (17) “Secondary containment” means a safeguard applied to one or more aboveground 128 storage tanks that prevents the discharge into the waters of the state of the entire capacity of the 129 largest single tank and sufficient freeboard to contain precipitation. In order to qualify as 130 secondary containment, the barrier and containment field must be sufficiently impervious to 131 contain fluids in the event of a release, and may include double-walled tanks, dikes, containment 132 curbs, pits or drainage trench enclosures that safely confine the release from a tank in a facility 133 catchment basin or holding pond. Earthen dikes and similar containment structures must be 134 designed and constructed to contain, for a minimum of seventy-two hours, fluid that escapes from 135 a tank. 136 137 (18) “Secretary” means the Secretary of the Department of Environmental Protection, or his or her designee. 138 (19) “Source water protection area” for a public groundwater supply source is the area 139 within an aquifer that supplies water to a public water supply well within a five-year time-of-travel, 140 and is determined by the mathematical calculation of the locations from which a drop of water 141 placed at the edge of the protection area would theoretically take five years to reach the well. 142 (20) “Zone of critical concern” for a public surface water supply source and for a public 143 surface water influenced groundwater supply source is a corridor along streams within a 144 watershed that warrants detailed scrutiny due to its proximity to the surface water intake and the 145 intake’s susceptibility to potential contaminants within that corridor. The zone of critical concern 146 is determined using a mathematical model that accounts for stream flows, gradient and area 147 topography. The length of the zone of critical concern is based on a five-hour time-of-travel of 6 Enr. CS for HB 2811 148 water in the streams to the intake. The width of the zone of critical concern is one thousand feet 149 measured horizontally from each bank of the principal stream and five hundred feet measured 150 horizontally from each bank of the tributaries draining into the principal stream. 151 (21) “Zone of peripheral concern” for a public surface water supply source and for a public 152 surface water influenced groundwater supply source is a corridor along streams within a 153 watershed that warrants scrutiny due to its proximity to the surface water intake and the intake’s 154 susceptibility to potential contaminants within that corridor. The zone of peripheral concern is 155 determined using a mathematical model that accounts for stream flows, gradient and area 156 topography. The length of the zone of peripheral concern is based on an additional five-hour time- 157 of-travel of water in the streams beyond the perimeter of the zone of critical concern, which 158 creates a protection zone of ten hours above the water intake. The width of the zone of peripheral 159 concern is one thousand feet measured horizontally from each bank of the principal stream and 160 five hundred feet measured horizontally from each bank of the tributaries draining into the 161 principal stream. 7 Enr. CS for HB 2811 The Joint Committee on Enrolled Bills hereby certifies that the foregoing bill is correctly enrolled. ............................................................... Chairman, House Committee ............................................................... Chairman, Senate Committee Originating in the House. In effect ninety days from passage. ............................................................... Clerk of the House of Delegates ............................................................... Clerk of the Senate ............................................................... Speaker of the House of Delegates ............................................................... President of the Senate __________ The within ................................................... this the........................................... day of ..........................................................................................................., 2017. ............................................................. Governor 9