State environmental regulators will allow pretty much anyone to inspect the majority of aboveground storage tanks covered by a law created after the massive chemical leak and water contamination earlier this year, according to a new rule released today.
DEP Secretary Randy Huffman, House Judiciary Committee attorney Robert Williams and Delegate Barbara Fleischuaer, D-Monongalia, talk about Senate Bill 373 during a marathon committee meeting earlier this year.
They must abide by “industry standards” and a checklist provided by the state, but there is no auditing or impartial process in place that actually ensures that’s happening.
The state Department of Environmental Protection announced Monday it would create an “interpretive rule” that would ease the inspection burden that oil, natural gas and other industries complained lawmakers created by issuing Senate Bill 373.
The rule creates a three-tiered system for tanks. Tanks that fall in “Level 1″ must be inspected by a registered professional engineer. Here’s the definition for “Level 1″ tanks, where “AST” means “aboveground storage tank”:
Level 1 AST” means an AST that is determined by the Secretary to have the potential for high risk of harm to public health or the environment due to its contents, size or location, except for ASTs containing potable water, filtered surface water, demineralized water, noncontact cooling water or water stored for fire or emergency purposes, food or food-grade materials, or hazardous waste tanks subject to regulation under (state law).”
Any tanks that’s located in a “zone of critical concern” (as defined in the bill), that contains “hazardous” materials, a tank that can hold 50,000 gallons or more and any other tank the head of DEP deems relevant also fall under the “Level 1″ category.
(Just to emphasize the last part of the “Level 1″ definition, it doesn’t include tanks that hold hazardous waste. They’re considered “Level 3″ tanks, the lowest level in this system, because they are already subject to a different set of regulatory requirements.)
The rule provides drastically different inspection requirements for tanks in the second two levels. The law outlines who can conduct an inspection, but also says it can be done by “a person holding certification under another program approved by the secretary.”
According to the interpretive rule, that really does mean anyone for the initial inspection of tanks in levels 2 and 3. The rule states professional engineers can inspect the tanks, but inspections can also be done by “the owner or operator of the AST; or by any person designated by the owner or operator of the AST.”
If the owner or his designee does the inspection, then only the owner of the tanks needs to certify the inspection, according to the rule.
The rule does state all inspections for all tanks “shall be conducted in accordance with the industry standard appropriate to the tank or tank facility” and should conform to a checklist included in the rule. The checklist includes eight items, with several subsections that could be included in the inspection.
However, the rule doesn’t include anyway for the DEP to verify the inspection actually happened. That includes inspections conducted by the registered professional engineers as well, but these inspectors are subject to well-defined training standards that a tank owner or his friend conducting the inspection may not meet.
All inspections still need to be completed–and proof of inspections submitted to the state–by Jan. 1, 2015.
The rule also allows people who own tanks that fall in levels 2 and 3 to submit information they are already supposed to have pertaining to groundwater and site protection, instead of the Spill Prevention Resource Plan outlined in the new law. “Level 1″ tank owners still need to submit the plan. All spill prevention paperwork is still due Dec. 3.
Definitions for each tank level, more information about inspections and the prevention plans is available in the rule.
In a statement this morning, Gov. Earl Ray Tomblin commended the rule:
The proposed rule released today provides guidance to owners and operators of aboveground storage tanks for complying with two key parts of Senate Bill 373: inspection and certification of tanks, and spill prevention response plans. It protects the health and safety of all West Virginians, and our environment, from the risks of leaks of hazardous materials from above ground storage tanks.
All affected aboveground storage tanks still must be registered by October 1, 2014. This rule establishes a risk assessment approach to inspecting aboveground storage tanks in West Virginia and requires all aboveground tanks located within zones of critical concern, wellhead protection areas or groundwater intake areas to be professionally inspected and certified by the January 1, 2015, deadline.
Interpretive rules don’t need legislative approval, unlike emergency or traditional administrative rules. They essentially show how an agency will interpret the law.
The rule will be out for public comment for 30 days and a public hearing will be held on Oct. 9 at 6:30 p.m. at the DEP’s headquarters in Kanawha City, according to a DEP news release.
This is a developing story. Check back in throughout the day as more information becomes available.