Freedom Industries Fallout: Tightening Water Regulations For Aboveground Storage Tanks

By Yves Pollart, P.E., BCEE

Five months after leaked chemicals contaminated the public water supply, West Virginia passed legislation to prevent future tank failures — and perhaps serve as a model for others.

As the cold snap intensified this winter in West Virginia, chemicals began silently leaking through a small, one-inch hole in a steel aboveground storage tank (AST) near Charleston, WV, in early January. From its source, the fluid streamed into the Elk River, part of the water source for the city’s public water supply. More than 300,000 residents were affected by the incident, losing access to potable water for almost a month.

Following that situation, the West Virginia state leadership finalized a bill in April designed to tighten regulations on aboveground storage tanks and protect public water supplies from possible contamination. The law went into effect in early June, with guidelines exploring the process details released by the West Virginia Department of Environmental Protection (WVDEP) in early July.

What Happened?

Within the crude fluid that leaked was 4-methylcyclohexane methanol, known as MCHM. The chemical is used to separate, then clean coal products in a process known as froth flotation. Freedom Industries, owner of the storage tank, was acting as a middleman by storing chemicals and then selling them to coal companies for use in their processes.

Estimates of the number of gallons released range from 4,000 to 10,000. The aboveground storage tank was about 1.5 miles north of the Charleston water treatment plant, which provides water to parts of nine counties in the southwestern region of West Virginia. Showering, drinking, and cooking with tap water was banned for a few weeks while the treatment plant worked to provide purified water.

Where The Incident Led

Within a few days, a West Virginia senator introduced Senate Bill 373, outlining steps such as registration, signage, reporting, and inspection for aboveground storage tanks. The bill also contains a section detailing protection of public and private water supplies through expanded reporting of possible contaminants.

Both the Senate and the House of Representatives, after adding more than 100 amendments, eventually passed the bill by early March. West Virginia Gov. Earl Tomblin signed it into law April 1, and the statute took effect June 6, 2014.

Large Quantity Users

The first part of the bill amends the Water Resources Protection and Management Act, originally passed in 2004 and amended in 2008. The act details gathering information on the volume and intended use of surface water and groundwater resources throughout West Virginia. Previous amendments added requirements for water utilities to develop a water resources management plan. This act now maintains that large quantity users will report monthly water withdrawals for the previous calendar year. The legislature redefined a large quantity user as any entity withdrawing more than 350,000 gallons of water in any 30-day period from the state’s water supply (previously it was more than 75,000 gallons in a calendar month). Currently, there is only one large quantity utility user in the state of West Virginia.

Although this amendment provides further detail, it is likely that large public, industry, or energy users of state waters already provided such reporting under other regulatory standards.

Aboveground Storage Tank Act

The Aboveground Storage Tank Act (ASTA) makes up the bulk of the new regulation. The legislators define such a tank as holding more than 1,320 gallons of fluid with at least 90 percent of the storage above ground level. Tanks can be made of a variety of materials, and the ruling applies to both stationary and some mobile tanks — those remaining in one location for more than 60 days. Associated piping (above ground or below it) will also be regulated under this rule; WVDEP can amend existing site permits to include these new tank regulations. The legislation does provide an exemption for “process vessels,” which notably includes sewage treatment tanks.

ASTA requires owners and operators to register any existing tanks by Oct. 1, 2014, whether they are operational or not. The registration will include ownership, installation date, volume, capacity, type of fluid stored within, identification, and location of the nearest groundwater public water supply or surface water intake (which will be provided by WVDEP). If the tank is already regulated by another program in West Virginia, this information should be noted as well. Those registering ASTs must place signs on them detailing emergency contact numbers and identifying registration information. Owners and operators are also responsible for providing financial documentation to the WVDEP showing their ability to cover the cost of any possible environmental liability. Further details of the ASTA include requirements for a spill prevention response plan, a leak detection system, corrective action plans, annual inspections by qualified personnel, and notice to public water systems.

A permitting program will also be installed by the WVDEP for existing and newly built ASTs, to be finalized in 2015. The permit will include details such as design, construction, maintenance, leak detection, corrosion detection, and secondary containment. Also part of the permit requirements will be an inventory control system, regular tank testing, immediate reporting of any leaks, and remediation plans following closure. All tanks will require inspection and certification by a licensed professional engineer by Jan. 1, 2015. The WVDEP is able to assess fees to provide for the administration of these regulations, and failure to comply could result in civil and criminal penalties, and/or up to $25,000 per day in fines.

S.B. 373 does include the caveat that aboveground storage tanks already falling under other permits, such as general permits for oil and gas operations, will likely be waived from the new permitting. However, this waiver will not apply to registration, signage, and notification of nearby public water sources. The WVDEP may also include other permit waivers as they develop the specific guidelines.

Public Water Supply Protection Act

Although some aboveground storage tanks might not require additional permitting, if they are located in a newly defined zone of critical concern as part of the Public Water Supply Protection Act (PWSPA), no such waivers will apply.

The last part of S.B. 373 outlines these zones as one-quarter mile downstream from any public water intakes, as well as any sites upstream of an intake at a distance defined by the time it takes water to travel five hours (plus 1,000 feet measured horizontally from the stream bank and 500 feet from any tributary streams). The WVDEP is responsible for defining the zones.

Any potential source of significant contamination — not just fluids, but any type of compound with the possibility of contaminating the public water supply — falls under this new act. All of these possible contaminants must be registered by Oct. 1, 2014, whether it is a facility or activity storing, using, or producing such fluids or compounds. Regardless of how the potential contaminate is stored, it will require an individual National Pollutant Discharge Elimination System (NPDES) permit. For those possible contaminant sources that are already permitted under another program, the WVDEP may decide to waive the new, additional permit. Presence of such possible contaminants must be communicated to local governments (municipality and county) and companies providing public water within the same zone of critical concern, with details such as the operator or owner’s pollution avoidance and spill response plans.

What To Do Now

For any companies with aboveground storage tanks or possible contaminants, the first step is to find out from the WVDEP if your facilities are located within a zone of critical concern. If so, be sure to register the substance with the WVDEP by the early fall.

Also make a point to register any aboveground storage tanks with the WVDEP by October — registration opened on June 10 — as well as add the appropriate signage. If you haven’t already, consider researching (through a consultant, if necessary) the development of spill prevention and protection plans, leak notification systems, and inventory control programs.

The WVDEP will likely release drafted guidelines detailing standard practice, inspection requirements and permitting outlines in the summer of 2014 for review and comment. Companies should watch the developments closely and stay abreast of potential impacts.

As vice president, Yves Pollart is responsible for overseeing RETTEW's water treatment and safety consulting services. He has nearly 35 years of industrial and municipal wastewater treatment experience including water and oil separation, filtration, chemical and physical treatment, and sludge dewatering.