House Bill 2811, amending the Aboveground Storage Tank ("AST") Act, previously passed the West Virginia House and Senate and then was signed by Governor Justice on April 4, 2017. Thus, the amendments to the AST Act included in HB 2811 will become law on June 23, 2017.
As a result of this amendment to the AST Act, devices having a capacity of 210 barrels or less, containing brine water or other fluids produced in connection with hydrocarbon production activities, along with devices having a capacity of 10,000 gallons or less, containing sodium chloride water for roadway snow and ice pretreatment, are no longer ASTs for purposes of the AST Act - meaning that they are exempt from the AST Act with certain limited requirements.
Notwithstanding the exemption, the designated devices must still meet (1) the registration imposed in § 4 of the AST Act; (2) the signage requirements imposed in § 11 of the AST Act, both of which are currently applicable to all ASTs designated by West Virginia Department of Environmental Protection as Register & Label ("R&L") only; and (3) the notice requirements contained in § 10 of the AST Act which expressly provides the "owner or operator of a regulated aboveground storage tank shall provide notice directly to the public water system and to state, county and municipal emergency response organizations of the type and quantity of fluid stored in the regulated aboveground storage tanks at the facility and the location of the safety data sheets (SDS) associated with the fluids in storage." (Section 10 also authorizes the use of Tier II inventory forms and applicable documents in lieu of the information described above). It is reasonable to expect that only those newly exempt devices that are located in a zone of peripheral concern ("ZPC") would be subject to the notice requirements of § 10.
The bottom line is that the only oil and gas industry tanks that continue to be subject to the full requirements of the AST Act and AST Rule are (i) ASTs of any capacity located in ZCCs and thus Level 1 regulated tanks, (ii) ASTs containing certain designated chemicals or ASTs greater than 50,000 gallons in capacity and thus Level 1 regulated tanks, and (iii) ASTs greater than 210 barrels in capacity located in ZPCs and thus Level 2 regulated tanks. These categories are estimated to include fewer than 2,000 tanks.
