DEP issues new guidance on SB 373 implementation

Bill posted last week on legislative efforts to undermine SB 373. Several legislators, mainly those representing natural gas interests, called for a special session of the legislature to roll back the implementation date of SB 373, arguing that the January 1, 2015 deadline for tank owners to complete inspections of their above ground tanks was too strict. Of course, there is a very real possibility that a special session would also lead to other changes to weaken SB 373.

This week, DEP issued an “interpretive rule” which looks like it will eliminate the “need” for a special session. An “interpretive rule” is a rule that provides information regarding the agency’s interpretation of the rule. In this case, DEP has decided to divide above ground storage tanks into three categories: “Level 1″ tanks, which include all tanks in the zone of critical concern of a water system, are those that pose the greatest risk to the public; “Level 2″ tanks pose less risk; and “Level 3″ which pose the least risk, due to their size, location and/or contents. The rule states that the initial inspection of Level 2 and Level 3 tanks (the inspection that has to be conducted before January 1st) can be conducted by the tank owner or operator. Level 1 tanks still must be inspected by a qualified professional engineer or person certified to perform tank inspections. Inspections in future years are not covered by the interpretive rule.

Tanks regulated under SB 373 are also required to produce a Spill Prevention Response Plan. Under the DEP’s guidance, Level 2 and 3 tanks will be able to use an existing Groundwater Protection Plan to meet this requirement. (The coal industry had previously argued in its comments to the DEP that it should be exempted from SB 373 entirely because coal operations are required to have Groundwater Protection Plans).

It looks like the governor and the DEP were able to head off the push for a special session to introduce new exemptions into SB 373. But the regular legislative session starting in January 2015 will give industry another opportunity to push for changes. As stated by WV Rivers Coalition’s director Angie Rosser in the Gazette, “The interpretive rule is a practical step… Self-inspections for most tanks this first round is not ideal, but it’s better than delaying inspections altogether. Moving forward with the permanent rule, we need to make sure adequate accountability measures are in place for inspections and spill plans.”

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