The W.Va. Legislature passed a comprehensive bill (SB 373) in the last hours of the 2014 regular session in an attempt to address the causes of a recent chemical spill in West Virginia that contaminated the water supply of 300,000 people. The bill will put into place new regulatory requirements on aboveground storage tanks and, hopefully, will prevent similar incidents from occurring again. The bill had a tumultuous journey from its initial introduction, going through five committees, undergoing debate of more than 100 amendments and working of several drafts before reaching its final configuration.
Although the official language of the bill has not been formally finalized (as it takes a few days to prepare the enrolled bill for the Governor’s signature), the bill and last-day amendments can be pieced together for a final analysis of what SB373 ultimately entails.
The bill creates a broad and expansive regulatory program that covers many industries beyond the oil and natural gas industry. What follows is a summary of the provisions most likely having a direct impact on oil and natural gas operations:
1. The bill consists of three distinct parts. The first amends the Water Resources Protection and Management Act (W. Va. Code 22-26-1, et seq.) to update the reporting of water usage throughout the state. This part will have little, if any, impact on oil and natural gas operations because those operations using large amounts of water are already required to use water management plans by the Horizontal Well Act and therefore is not discussed further. The other two parts however may have an impact upon oil and gas operations. The second consists of a new regulatory program for aboveground storage tanks, The Aboveground Storage Tank Act (“ASTA”), similar to the existing program for underground storage tanks. The third and final creates The Public Water Supply Protection Act (“PWSPA”) and expands upon the Bureau of Public Health’s source water assessment protection program (W. Va. Code 16-1-1, et seq.).
2. The ASTA requires registration of every AST, whether operational or nonoperational, within the state. Implementation of the registration will begin soon after the effective date of the legislation which is June 6, 2014 and all ASTs must be registered by October 1, 2014. Additionally, WVDEP will likely begin the rulemaking process promptly because any rules, if to be reviewed by the Legislature during the 2015 regular session as required by the Act, will need to be initially filed sometime in June or July. The rules will provide additional detail on the implementation of SB373 and will include the amount of the fees, permitting procedures, applicable standards, requirements for installation, inspection and monitoring and permit exemptions.
3. Whether an AST is subject to registration under the Act is dependent upon the definition of AST. Beyond the basic definition that the tank’s capacity be 90% aboveground and constructed to contain fluids that are liquid at standard temperature and pressure, the definition excludes: tanks that are 1320 gallons or smaller; process vessels; temporary or mobile tanks that are on location for less than 60 days; railroad freight cars, barges and boats; and swimming pools. Note that the definition for ASTs attempts to incorporate EPA’s Spill Prevention, Control and Countermeasure (“SPCC”) regulation’s applicability threshold of greater than 1320 aggregate gallons of oil. In the ASTA, the definition states that ASTs are defined as containing more than 1320 gallons of fluid per tank, not in the aggregate and not just limited to oil. Smaller aboveground storage tanks are thus excluded from regulation under the ASTA.
4. In addition to registration under the ASTA, a permit may be required. Although an oil and gas operation may need to register the AST it may not have to obtain a permit because the following are exempted from the ASTA’s permit requirements: pipeline facilities; liquid traps or associated gathering lines; surface impoundments, pits, ponds or lagoons; and ASTs required to have spill prevention control and countermeasure plans pursuant to EPA’s SPCC regulation (40 CFR 112). Furthermore, WVDEP is granted explicit authority to designate additional categories of ASTs as exempt from the permitting requirement, if the ASTs are sufficiently regulated under another program; or WVDEP can incorporate the ASTA’s requirements into existing NPDES permits and well work permits to alleviate the need for a separate permit. The permit exemption most likely to be of benefit to oil and gas producers is the EPA SPCC regulation exemption as many of the new, larger horizontal well sites with several tanks are more likely to be required to have a spill prevention control and countermeasure plan. Otherwise, practically speaking, the new AST standards set forth in the ASTA will likely be incorporated by WVDEP into existing programs, including the Office of Oil and Gas’s well work permits, because those programs generally have few, if any, specific AST requirements.
5. If required to obtain a permit under the ASTA, additional regulatory requirements apply including: performance standards developed by WVDEP or nationally-recognized tank standards; annual inspections by certified personnel; annual inspections by WVDEP of ASTs in zones of critical concern; monitoring, testing and leak detection; records and reporting requirements; corrective action plans; spill prevention response plans; notice to public water systems, including those that use groundwater; signage; and fees.
6. The PWSPA, along with amendments to the Bureau of Public Health’s source water assessment protection program, applies to ALL potential sources of significant contamination (“PSSC”), regardless of how they are stored, located in a zone of critical concern above a public water system’s surface water intake or groundwater intake where the groundwater is influenced by surface water. The PWSPA is limited geographically by the zone of critical concern, which is defined as ¼ mile downstream from an intake and upstream of the intake a distance calculated by the time it takes water in the principal stream to travel five hours plus 1000’ measured horizontally from each bank of the principal stream and 500’ from each bank of tributaries to the principal stream. However, it extends beyond ASTs by requiring registration of all PSSC which are defined as facilities or activities that store, use or produce compounds with potential for significant contaminating impact if released into the source water of a public water supply. Note that PSSC is not limited to fluids, but any compound with the potential to significantly contaminate a source water.
7. The PWSPA also has a two-step process. First, all PSSC must be registered. Therefore, if an oil and gas operation in a zone of critical concern currently stores, uses or produces a compound that could significantly contaminate a public water supply if released into the source water, then that compound must be registered. Second, if WVDEP determines that additional regulation is in the public interest in protecting source waters and the PSSC is not currently permitted or subject to regulation under another WVDEP program, then WVDEP has the discretion to require a permit. Given that most, if not all, oil and gas operations are subject to regulation, those operations will likely find it rare to be subjected to the PWSPA’s permitting requirement. However, there are few specifics regarding the permitting program, which WVDEP will need to fill in the gaps via rulemaking, and since this is a new program, only time will tell on how the WVDEP fully implements the PWSPA.
8. Of significant importance is the requirement within the PWSPA to obtain an individual permit in lieu of a general permit if the permittee has an AST, as defined by the ASTA, on a site located within a zone of critical concern. Two general permits associated with oil and gas operations may be affected by this requirement: the general permit for stormwater associated with oil and gas construction activities and the general permit for hydrostatic testing of pipelines.
9. Additional provisions in both acts provide for administrative, civil or criminal penalties for violations of the acts and for an appeal process to the Environmental Quality Board if a person is aggrieved or adversely affected by an order of the WVDEP under the acts.
There are many more specifics to the bill, and it will not be until WVDEP goes through the rulemaking process that will we have a clear picture of how everything will be implemented and potentially incorporated into existing regulatory programs. LGCR and its government relations affiliate, LGCR Government Solutions, will monitor the rulemaking process and provide additional updates as they are available. Please contact Joseph Jenkins, LGCR’s environmental regulatory attorney, if you have any questions.