sb373 hjud am working draft 3wpd

8/12/2019 SB373 HJUD AM Working Draft 3wpd

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SB373 HJUD Staff Recommended (Working Draft 2+)

Delegate ______________ moves to amend the bill on page three,

immediately following the enacting clause, by striking out

everything after the enacting clause and inserting in lieu thereof

the following:

1 That 16-1-2, and 16-1-9a of the Code of West Virginia,

2 1931, as amended, be amended and reenacted; that said code be

3 amended by adding thereto new sections 16-1-9c and 16-1-9d; that

4 22-26-2, 22-26-3, 22-26-5, 22-26-6, 22-26-7 and 22-26-8 of

5 said code be amended and reenacted; and that said code be amended

6 by adding thereto a new article, designated 22-30-1, 22-30-2,

7 22-30-3, 22-30-4, 22-30-5, 22-30-6, 22-30-7, 22-30-8,

8 22-30-9, 22-30-10, 22-30-11, 22-30-12, 22-30-13, 22-30-14,

9 22-30-15, 22-30-16, 22-30-17, 22-30-18, 22-30-19, 22-30-20,

10 22-30-21, 22-30-22, 22-30-23, 22-30-24 and 22-30-25; and that

11 said code be amended and reenacted by adding thereto a new article,

12 designated 22-31-1, 22-31-2, 22-31-3, 22-31-4, 22-31-5,

13 22-31-6, 22-31-7, 22-31-8, 22-31-9, 22-31-10 and 22-31-11,

14 all to read as follows:

15 CHAPTER 16. PUBLIC HEALTH.

16ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.

17 16-1-2. Definitions.

18 Unless the context in which used clearly requires a different

19 meaning, As used in this article:

20 (a) (1) "Basic public health services" means those services

21 that are necessary to protect the health of the public. The three


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1 areas of basic public health services are communicable and

2 reportable disease prevention and control, community health

3 promotion and environmental health protection;

4 (b) (2) "Bureau" means the Bureau for Public Health in the

5 department; of health and human resources;

6 (c) (3) "Combined local board of health" means is one form of

7 organization for a local board of health and means a board of

8 health serving any two or more counties or any county or counties

9 and one or more municipalities within or partially within the

10 county or counties;

11 (d) (4) "Commissioner" means the commissioner of the bureau,

12 for public health, who is the state health officer;

13 (5) Community Water System means a public water system that

14 pipes water for human consumption to at least 15 service

15 connections used by year round residents, such as municipalities,

16 subdivisions and mobile home parks.

17 (e) (6) "County board of health" means is one form of

18 organization for a local board of health and means a local board of

19 health serving a single county;

20 (f) (7) "Department" means the West Virginia Department of

21 Health and Human Resources;

22 (g) (8) "Director" or "director of health" means the state

23 health officer. Administratively within the department, the bureau

24 for public health through its commissioner carries out the public

25 health functions of the department, unless otherwise assigned by

26 the secretary;

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1 (h) (9) "Essential public health services" means the core

2 public health activities necessary to promote health and prevent

3 disease, injury and disability for the citizens of the state. The

4 services include:

5 (1) (A) Monitoring health status to identify community health

6 problems;

7 (2) (B) Diagnosing and investigating health problems and

8 health hazards in the community;

9 (3) (C) Informing, educating and empowering people about

10 health issues;

11 (4) (D) Mobilizing community partnerships to identify and

12 solve health problems;

13 (5) (E) Developing policies and plans that support individual

14 and community health efforts;

15 (6) (F) Enforcing laws and rules that protect health and

16 ensure safety;

17 (7) (G) Uniting people with needed personal health services

18 and assuring the provision of health care when it is otherwise not

19 available;

20 (8) (H) Promoting a competent public health and personal

21 health care workforce;

22 (9) (I) Evaluating the effectiveness, accessibility and

23 quality of personal and population-based health services; and24 (10) (J) Researching for new insights and innovative solutions

25 to health problems;

26 (i) (10) "Licensing boards" means those boards charged with

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1 regulating an occupation, business or profession and on which the

2 commissioner serves as a member;

3 (j) (11) "Local board of health," "local board" or "board"

4 means a board of health serving one or more counties or one or more

5 municipalities or a combination thereof;

6 (k) (12) "Local health department" means the staff of the

7 local board of health;

8 (l) (13) "Local health officer" means the individual physician

9 with a current West Virginia license to practice medicine who

10 supervises and directs the activities, of the local health

11 department services, staff and facilities of the local health

12 department and is appointed by the local board of health with

13 approval by the commissioner;

14 (m) (14) "Municipal board of health" is means one form of

15 organization for a local board of health and means a board of

16 health serving a single municipality;

17 (15) Non-community water system means a public water system

18 that pipes water for human consumption to at least 15 service

19 connections used by individuals other than year round residents for

20 at least 60 days a year, such as schools, factories, industrial

21 parks, office buildings, highway rest stops, restaurants, motels

22 golf courses and parks.

23 (n) (16) "Performance-based standards" means generally24 accepted, objective standards such as rules or guidelines against

25 which public health performance can be measured;

26 (17) Potential source of significant contamination means a

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1 facility or activity that store, uses or produces substances or

2 compounds with potential for significant contaminating impact if

3 released into the source water of a public water supply.

4 (o) (18) "Program plan" or "plan of operation" means the

5 annual plan for each local board of health that must be submitted

6 to the commissioner for approval;

7 (19) Public groundwater supply source means a primary source

8 of water supply for a public water system which is directly drawn

9 from a well, underground stream, underground reservoir, underground

10 mine or other primary source of water supplies which is found

11 underneath the surface of the state.

12 (20) Public surface water supply source means a primary

13 source of water supply for a public water system which is directly

14 drawn from rivers, streams, lakes, ponds, impoundments or other

15 primary sources of water supplies which are found on the surface of

16 the state.

17 (21) Public surface water influenced groundwater supply

18 source means a source of water supply for a public water system

19 which is directly drawn from an underground well, underground river

20 or stream, underground reservoir or underground mine, and the

21 quantity and quality of the water in that underground supply source

22 is heavily influenced, directly or indirectly, by the quantity and

23 quality of surface water in the immediate area.24 (s) (22) Public water system means;

25 (A) Any water supply or system which regularly supplies or

26 offers to supply water for human consumption through pipes or other

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1 constructed conveyances, if serving at least an average of

2 twenty-five individuals per day for at least sixty days per year,

3 or which has at least fifteen service connections, and shall

4 include:

5 (1) (i) Any collection, treatment, storage and distribution

6 facilities under the control of the owner or operator of the system

7 and used primarily in connection with the system; and

8 (2) (ii) Any collection or pretreatment storage facilities not

9 under such control which are used primarily in connection with the

10 system.

11 (B) A public water system does not include a system which

12 meets all of the following conditions:

13 (1) (i) Which Consists only of distribution and storage

14 facilities (and does not have any collection and treatment

15 facilities);

16 (2) (ii) Which Obtains all of its water from, but is not owned

17 or operated by, a public water system which otherwise meets the

18 definition;

19 (3) (iii) Which Does not sell water to any person; and

20 (4) (iv) Which Is not a carrier conveying passengers in

21 interstate commerce.

22 (23) Public water utility means a public water system which

23 is regulated by the West Virginia Public Service Commission24 pursuant to the provisions of chapter twenty-four of this code.

25 (q)(24) "Secretary" means the secretary of the state

26 department; of health and human resources;

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1 (r)(25) "Service area" means the territorial jurisdiction of

2 a local board of health;

3 (s)(26) "State Advisory Council on Public Health" is means the

4 advisory body charged by this article with providing advice to the

5 commissioner with respect to the provision of adequate public

6 health services for all areas in the state;

7 (t)(27) "State Board of Health" means and refers to, the

8 secretary, notwithstanding any other provision of this code to the

9 contrary, whenever and wherever in this code there is a reference

10 to the state board of health.

11 (28) Zone of critical concern for a public surface water

12 supply is a corridor along streams within a watershed that warrant

13 more detailed scrutiny due to its proximity to the surface water

14 intake and the intakes susceptibility to potential contaminants

15 within that corridor. The zone of critical concern is determined

16 using a mathematical model that accounts for stream flows, gradient

17 and area topography. The length of the zone of critical concern is

18 based on a five-hour time of travel of water in the streams to the

19 water intake, plus an additional 1/4 mile below the water intake.

20 The width of the zone of critical concern is 1,000 feet measured

21 horizontally from each bank of the principal stream and 500 feet

22 measured horizontally from each bank of the tributaries draining

23 into the principal stream.24 16-1-9a. Regulation of public water systems.

25 (a) A public water system is any water supply or system that

26 regularly supplies or offers to supply water for human consumption

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1 systems shall conform in order to prevent adverse effects on the

2 health of individuals;

3 and, if the secretary considers appropriate,

4 (2) Treatment techniques that reduce the contaminant or

5 contaminants to a level which will not adversely affect the health

6 of the consumer; The rule shall contain

7 (3) Provisions to protect and prevent contamination of

8 wellheads and well fields used by public water supplies so that

9 contaminants do not reach a level that would adversely affect the

10 health of the consumer;

11 (2) The secretary shall further prescribe by legislative rule

12 (4) Minimum requirements for:

13 (A) Sampling and testing;

14 (B) System operation;

15 (C) Public notification by a public water system on being

16 granted a variance or exemption or upon failure to comply with

17 specific requirements of this section and regulations promulgated

18 under this section;

19 (D) Record keeping;

20 (E) Laboratory certification; and

21 (F) as well as Procedures and conditions for granting

22 variances and exemptions to public water systems from state public

23 water systems regulations.24 (3) In addition, The secretary commissioner shall establish by

25 legislative rule, in accordance with article three, chapter

26 twenty-nine-a of this code,

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1 (5) Requirements covering the production and distribution of

2 bottled drinking water; and may by legislative rule, in accordance

3 with article three, chapter twenty-nine-a of this code, establish

4 (6) Requirements governing the taste, odor, appearance and

5 other consumer acceptability parameters of drinking water; and

6 (7) Any other requirement the commissioner finds necessary to

7 effectuate the provisions of this article.

8 (c) Authorized representatives of the bureau The commissioner

9 or his or her authorized representatives or designees have right of

10 entry to may enter any part of a public water system, whether or

11 not the system is in violation of a legal requirement, for the

12 purpose of inspecting, sampling or testing and shall be furnished

13 records or information reasonably required for a complete

14 inspection.

15 (d) The right of entry includes the right for a bureau

16 representative or a designee of a bureau representative to The

17 commissioner, his or her authorized representative or designee may

18 conduct an evaluation necessary to assure the public water system

19 meets federal safe drinking water requirements. The public water

20 system shall provide a written response to the bureau commissioner

21 within forty-five ten days of receipt of the evaluation by the

22 public water system, addressing corrective actions to be taken as

23 a result of the evaluation.24 (d) (e) (1) Any individual partnership, association,

25 syndicate, company, firm, trust, corporation, government

26 corporation, institution, department, division, bureau, agency,

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1 federal agency or any entity recognized by law who violates any

2 provision of this section, or any of the rules or orders issued

3 pursuant to this section, is guilty of a misdemeanor and, upon

4 conviction thereof, shall be fined not less than $50 is liable for

5 a civil penalty not less than $1,000 nor more than $500 $5,000. and

6 Each days violation shall constitute a separate offense. The

7 commissioner or his or her authorized representative may also seek

8 injunctive relief in the circuit court of the county in which all

9 or part of the public water system is situated for threatened or

10 continuing violations.

11 (2) For a willful violation of a provision of this section, or

12 of any of the rules or orders issued under this section, for which

13 a penalty is not otherwise provided under subdivision (3) of this

14 subsection, an individual partnership, association, syndicate,

15 company, firm, trust, corporation, government corporation,

16 institution, department, division, bureau, agency, federal agency

17 or entity, recognized by law, upon a finding of a willful violation

18 by the circuit court of the county in which the violation occurs,

19 shall be subject to a civil penalty of not more than $5,000 $10,000

20 and each days violation shall be grounds for a separate penalty.

21 (3) The commissioner or his or her authorized representative

22 shall have authority to assess administrative penalties and

23 initiate any proceedings necessary for the enforcement of drinking24 water rules. The administrative penalty for a violation of any

25 drinking water rule is a minimum of $1,000 per day per violation

26 and a maximum of $2,500 per day per violation for systems serving

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1 more than ten thousand persons, a minimum of $250 per day per

2 violation and a maximum of $500 per day per violation for systems

3 serving over three thousand three hundred persons up to and

4 including ten thousand persons, a minimum of $100 per day per

5 violation and a maximum of $200 per day per violation for systems

6 serving three thousand three hundred or fewer persons and each

7 days violation shall be grounds for a separate penalty.

8 (3) Civil penalties are payable to the commissioner. All

9 moneys collected under this section shall be deposited into a

10 restricted account known as the Safe Drinking Water penalty Fund.

11 previously created in the office of the state Treasurer. All money

12 deposited into the fund shall be used by the commissioner to

13 provide technical assistance to public water systems.

14 (f) The commissioner, or his or her authorized representative,

15 may also seek injunctive relief in the circuit court of the county

16 in which all or part of the public water system is located for

17 threatened or continuing violations.

18 16-1-9c. Required update or completion of source water protection

19plans.

20 (a) On or before July 1, 2016, each existing public water

21 utility which draws and treats water from a surface water supply

22 source or a surface water influenced groundwater supply source

23 shall submit to the commissioner an updated or completed sourcewater protection plan for each of its public water systemutility24

25 intakes, to protect its public water supplies from contamination.

26 Every effort shall be made to inform and engage the public, local

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1 governments, local emergency planners, local health departments and

2 affected residents at all levels of the development of the

3 protection plan.

4 (b) The completed or updated plan, at a minimum, shall include

5 the following:

6 (1) A contingency plan that documents each public water

systemsutility7 s planned response to contamination of its public

8 surface water supply source or its public surface water influenced

9 groundwater supply source;

(2) An examination and analysis of the public water10 systems

11 ability to isolate or divert contaminated waters from its surface

12 water intake or groundwater supply, and the amount of raw water

13 storage capacity for the public water systems plant;

14 (3) An examination and analysis of the public water systems

15 existing ability to switch to an alternative water source or intake

16 in the event of contamination of its primary water source;

17 (4) An analysis and examination of the public water systems

18 existing ability to close its water intake in the event the system

19 is advised that its primary water source has become contaminated

20 due to a spill or release into a stream, and the duration of time

21 it can keep that water intake closed without creating a public

22 health emergency;

23 (5) The following operational information for each plant24 receiving water supplies from a surface water source;

25 (A) The average number of hours the plant operates each day,

26 and the maximum and minimum number of hours of operation in one day

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1 at that plant during the past year; and

2 (B) The average quantities of water treated and produced by

3 the plant per day, and the maximum and minimum quantities of water

4 treated and produced at that plant in one day during the past year;

5 (6) An analysis and examination of the public water systems

6 existing available storage capacity on its system, how its

7 available storage capacity compares to the public water systems

8 normal daily usage, and whether the public water systems existing

9 available storage capacity can be effectively utilized to minimize

10 the threat of contamination to its system;

11 (7) The calculated level of unaccounted for water experienced

12 by the public water system for each surface water intake,

13 determined by comparing the measured quantities of water which are

14 actually received and used by customers served by that water plant

15 to the total quantities of water treated at the water plant over

16 the past year. If the calculated ratio of those two figures is less

17 than 85%, the public water system is to describe all of the

18 measures it is actively taking to reduce the level of water loss

19 experienced on its system;

(8) For a If the public water utilitys water supply plant is20

served bywith a single-source intakesystem to a surface water21

source of supply or a surface water influenced source of supply22 ,

23 the submitted plan shall also include an examination and analysis24 of the technical and economic feasibility of each of the following

25 options to provide continued safe and reliable public water service

26 in the event its primary source of supply is detrimentally affected

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1 by contamination, release, spill event or other reason;

2 (A)Constructing or establishing a secondary or backup intake

3 which would draw water supplies from a substantially different

4 location or water source;

5 (B) Constructing additional raw water storage capacity and/or

6 treated water storage capacity, to provide at least two days of

7 system storage, based on the plants maximum level of production

8 experienced within the past year;

9 (D) Creating or constructing interconnections between the

public water systemutility or with other plants on its public10

water utility11 system or another public water system, to allow the

public water systemutility12 to receive its water from a different

13 source of supply during a period its primary water supply becomes

14 unavailable or unreliable due to contamination, release, spill

15 event or other circumstance;

16 (E) Any other alternative which is available to the public

water system utility17 to secure safe and reliable alternative

18 supplies during a period its primary source of supply is

19 unavailable or negatively impacted for an extended period; and

20 (F) If one or more alternatives set forth in subdivisions (A)

21 through (E) is determined to be technologically and/or economically

feasible, the public water systemutility22 shall submit an analysis

23 of the comparative costs, risks and benefits of implementing each24 of the described alternatives;

25 (9) A management plan that identifies specific activities that

will be pursued by the public water systemutility26 , in cooperation

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1 and in concert with the bureau for public health, local health

2 departments, local emergency responders, local emergency planning

3 committee, and other state, county or local agencies and

4 organizations to protect its source water supply from

5 contamination, including notification to and coordination with

6 state and local government agencies whenever the use of its water

7 supply is inadvisable or impaired, and to conduct periodic surveys

8 of the system;

9 (10) A communications plan that documents the manner in which

the public water systemutility10 , working in concert with state and

11 local emergency response agencies, shall notify the local health

12 agencies and the public of the initial spill or contamination event

13 and provide updated information related to any contamination or

14 impairment of the source water supply or the systems drinking

15 water supply, with an initial notification to the public to occur

16 in any event no later than thirty minutes after the public water

17 system becomes aware of the spill, release or potential

18 contamination of the public water system; and

19 (11) A complete and comprehensive list of the potential

20 significant contaminant sources contained within the zone of

21 critical concern, based upon information which is directly provided

22 or can otherwise be requested and obtained from the Department of

23 Environmental Protection, the Bureau for Public Health, the Office24 of Homeland Security and Emergency Response, and other resources.

(c) Any public water system utilitys public water system25

26 with a primary surface water source of supply or a surface water

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1 influenced groundwater source of supply that comes into existence

2 on or after the effective date of this article shall submit prior

3 to the commencement of its operations a source water protection

4 plan satisfying the requirements of subsection (b) of this section.

5 (d) The commissioner shall review a plan submitted pursuant to

6 this section and provide a copy to the Secretary of the Department

7 of Environmental Protection. Thereafter, within one hundred and

8 eighty days of receiving a plan for approval, the commissioner may

approve, reject the plan and or9 require modifications as may be

10 necessary and reasonable to satisfy the purposes of this article.

11 The commissioner shall consult with the local public health officer

12 and conduct at least one public hearing when reviewing the plan.

13 Failure by a public water system to comply with a plan approved

14 pursuant to this section is a violation of this article.

(e) The commissioner may request a public water systemutility15

16 to conduct one or more studies to determine the actual risk and

17 consequences related to any potential significant contaminant

18 sources identified by the plan, or as otherwise made known to the

19 commissioner.

(f) Any public water system utility20 required to file a

21 complete or updated plan in accordance with the provisions of this

22 section shall submit an updated source water protection plan at

least every three years or when there is a substantial23 change in24 the potential significant contaminant sources within the identified

25 zone of critical concern.

(g) Any public water system utility26 required to file a

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1 complete or updated plan in accordance with the provisions of this

2 section shall review any source water protection plan it may

3 currently have on file with the bureau and update it to ensure it

conforms with the requirements of subsection (b) of this section on4

or before July 1, 2016.5

6 (h) The commissioners authority in reviewing and monitoring

7 compliance with a source water protection plan may be transferred

8 by the bureau to a nationally accredited local board of public

9 health.

10 16-1-9d. Wellhead and Source Water Protection Grant Program.

11 (a) The commissioner shall continue the Wellhead and Source

12 Water Protection Grant Program.

13 (b) The fund heretofore created to provide funds for the

14 Wellhead and Source Water Protection Grant Program is continued in

15 the state treasury and shall be known as the Wellhead and Source

16 Water Protection Grant Fund. The fund shall be administered by

17 the commissioner and shall consist of all moneys made available for

18 the program from any source, including but not limited to all

19 fees, civil penalties and assessed costs, all gifts, grants,

20 bequests or transfers from any source, any moneys that may be

21 appropriated and designated for the program by the Legislature, and

22 all interest or other return earned from investment of the fund.

23 Expenditures from the fund shall be for the purposes set forth in24 this article and are not authorized from collections but are to be

25 made only in accordance with appropriation by the Legislature and

26 in accordance with the provisions of article three, chapter twelve

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1 of this code and upon the fulfillment of the provisions set forth

2 in article two, chapter eleven-b of this code: Provided, That for

3 the fiscal years ending June 30, 2014 and 2015, expenditures are

4 authorized from collections rather than pursuant to an explicit

5 appropriation by the Legislature. Any balance, including accrued

6 interest and other returns, remaining in the fund at the end of

7 each fiscal year shall not revert to the general revenue fund but

8 shall remain in the fund and be expended as provided by this

9 section.

10 (c) In prospectively awarding any grants under the Wellhead

11 and Source Water Protection Grant Program, the commissioner shall

12 prioritize those public water systems where there is the highest

13 probability of contamination of the water source based on the

14 source water assessment report or the source water protection plans

15 which were previously performed. Priority shall also be extended

16 to publicly owned public water systems over privately owned public

17 water systems.

18 (d) The commissioner, or his or her designee, shall apply for

19 and diligently pursue all available federal funds to help offset

20 the cost of completing source water protection plans by the

21 deadlines established in section nine-c of this article.

22 (e) The commissioner may receive any gift, federal grant,

23 other grant, donation or bequest and to receive income and other24 funds or appropriations, to contribute to the Wellhead and Source

25 Water Protection Plan Grant Program.

26 CHAPTER 22. ENVIRONMENTAL RESOURCES.

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1ARTICLE 26. WATER RESOURCES PROTECTION AND MANAGEMENT ACT.


3 For purposes of this article: the following words have the

4 meanings assigned unless the context indicates otherwise

5 (a) (1) Baseline average means the average amount of water

6 withdrawn by a large quantity user over a representative historical

7 time period as defined by the secretary.

8 (b) (2) Beneficial use means uses that include, but are not

9 limited to, public or private water supplies, agriculture, tourism,

10 commercial, industrial, coal, oil and gas and other mineral

11 extraction, preservation of fish and wildlife habitat, maintenance

12 of waste assimilation, recreation, navigation and preservation of

13 cultural values.

14 (c) (3) Commercial well means a well that serves small

15 businesses and facilities in which water is the prime ingredient of

16 the service rendered, including water wells drilled to support

17 horizontal well operations.

18 (d) (4) Community water system means a public water system

19 that pipes water for human consumption to at least fifteen service

20 connections used by year-round residents or one that regularly

21 serves at least twenty-five residents.

22 (e) (5) Consumptive withdrawal means any withdrawal of water

23 which returns less water to the water body than is withdrawn.24 (6) Department means the West Virginia Department of

25 Environmental Protection.

26 (f) (7) Farm use means irrigation of any land used for

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1 general farming, forage, aquaculture, pasture, orchards, nurseries,

2 the provision of water supply for farm animals, poultry farming or

3 any other activity conducted in the course of a farming operation.

4 (g) (8) Industrial well means a well used exclusively for

5 nonpotable purposes, including in industrial processing, fire

6 protection, washing, packing or manufacturing of a product

7 excluding food and beverages, or other nonpotable uses.

8 (h) (9) Interbasin transfer means the permanent removal of

9 water from the watershed from which it is withdrawn.

10 (I) (10) Large-quantity user means any person who withdraws

11 over seven three hundred fifty thousand gallons of water in a any

12 calendar month thirty-day period from the states waters and any

13 person who bottles water for resale regardless of quantity

14 withdrawn. Large-quantity user excludes farm use, including

15 watering livestock or poultry on a farm, though farms may

16 voluntarily report water withdrawals to assist with the accuracy of

17 the survey.

18 (j) (11) Maximum potential means the maximum designed

19 capacity of a facility to withdraw water under its physical and

20 operational design.

21 (k) (12) Noncommunity nontransient water system means a

22 public water system that serves at least twenty-five of the same

23 persons over six months per year.

24 (l) (13) Nonconsumptive withdrawal means any withdrawal of

25 water which is not a consumptive withdrawal as defined in this

26 section.

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1 (m) (14) Person, persons or people means an individual,

2 public and private business or industry, public or private water

3 service and governmental entity.

4 (n) (15) Secretary means the Secretary of the Department of

5 Environmental Protection or his or her designee.

6 (o) (16) Transient water system means a public water system

7 that serves at least twenty-five transient people at least sixty

8 days a year.

9 (p) (17) Test well means a well that is used to obtain

10 information on groundwater quantity, quality, aquifer

11 characteristics and availability of production water supply for

12 manufacturing, commercial and industrial facilities.

13 (q) (18) Water resources, water or waters means any and

14 all water on or beneath the surface of the ground, whether

15 percolating, standing, diffused or flowing, wholly or partially

16 within this state, or bordering this state and within its

17 jurisdiction and includes, without limiting the generality of the

18 foregoing, natural or artificial lakes, rivers, streams, creeks,

19 branches, brooks, ponds, impounding reservoirs, springs, wells,

20 watercourses and wetlands: Provided,That farm ponds, industrial

21 settling basins and ponds and waste treatment facilities are

22 excluded from the waters of the state.

23 (r) (19) Watershed means a hydrologic unit utilized by the

24 United States Department of Interiors geological survey, adopted

25 in 1974, as a framework for detailed water and related

26 land-resources planning.

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1 (s) (20) Withdrawal means the removal or capture of water

2 from water resources of the state regardless of whether it is

3 consumptive or nonconsumptive: Provided,That water encountered

4 during coal, oil, gas, water well drilling and initial testing of

5 water wells, or other mineral extraction and diverted, but not used

6 for any purpose and not a factor in low-flow conditions for any

7 surface water or groundwater, is not deemed a withdrawal.

8 22-26-3. Waters claimed by state; water resources protection

9 survey; registration requirements; agency cooperation;

10 information gathering.

11 (a) The waters of the State of West Virginia are hereby

12 claimed as valuable public natural resources held by the state for

13 the use and benefit of its citizens. The state shall manage the

14 quantity of and protect its waters effectively for present and

15 future use and enjoyment and for the protection of the environment.

16 Therefore, it is necessary for the state to determine the nature

17 and extent of its water resources, the quantity of water being

18 withdrawn or otherwise used and the nature of the withdrawals or

19 other uses: Provided,That no provisions of this article may be

20 construed to amend or limit any other rights and remedies created

21 by statute or common law in existence on the date of the enactment

22 of this article.

23 (b) The secretary shall conduct an ongoing water resources

24 survey of consumptive and nonconsumptive surface water and

25 groundwater withdrawals by large quantity users in this state. The

26 secretary shall determine the form and format of the information

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1 submitted, including the use of electronic submissions. The

2 secretary shall establish and maintain a statewide registration

3 program to monitor large quantity users of water resources. of this

4 state beginning in 2006.

5 (c) Large-quantity users, except those who purchase water from

6 a public or private water utility or other service that is

7 reporting its total withdrawal, shall register with the department

8 of Environmental Protection and provide all requested survey

9 information regarding withdrawals of the water resources. Multiple

10 withdrawals from state water resources that are made or controlled

11 by a single person and used at one facility or location shall be

12 considered a single withdrawal of water. Water withdrawals for

13 self-supplied farm use and private households will be estimated.

14 Water utilities regulated by the Public Service Commission pursuant

15 to article two, chapter twenty-four of this code are exempted from

16 providing information on interbasin transfers to the extent those

17 transfers are necessary to provide water utility services within

18 the state.

19 (d) Except as provided in subsection (f) of this section,

20 large-quantity users who withdraw water from a West Virginia water

21 resource shall comply with the survey and registration requirements

22 of this article. Registration shall be maintained annually by

23 every large-quantity user by certifying, on forms and in a manner

24 prescribed by the secretary. that the amount withdrawn in the

25 previous calendar year varies by no more than ten percent from the

26 users baseline average or by certifying the change in usage.

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1 (e) The secretary shall maintain a listing of all large-

2 quantity users and each users baseline average water withdrawal.

3 (f) The secretary shall make a good faith effort to obtain

4 survey and registration information from persons who are

5 withdrawing water from in-state water resources, but who are

6 located outside the state borders.

7 (g) All state agencies and local governmental entities that

8 have a regulatory, research, planning or other function relating to

9 water resources, including, but not limited to, the State

10 Geological and Economic Survey, the Division of Natural Resources,

11 the Public Service Commission, the Bureau for Public Health, the

12 Commissioner of the Department of Agriculture, the Division of

13 Homeland Security and Emergency Management, Marshall University,

14 West Virginia University and regional, county and municipal

15 planning authorities may enter into interagency agreements with the

16 secretary and shall cooperate by: (i) Providing information

17 relating to the water resources of the state; (ii) providing any

18 necessary assistance to the secretary in effectuating the purposes

19 of this article; and (iii) assisting in the development of a state

20 water resources management plan. The secretary shall determine the

21 form and format of the information submitted by these agencies.

22 (h) Persons required to participate in the survey and

23 registration shall provide any reasonably available information on

24 stream flow conditions that impact withdrawal rates.

25 (i) Persons required to participate in the survey and

26 registration shall provide the most accurate information available

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1 on water withdrawal during seasonal conditions and future potential

2 maximum withdrawals or other information that the secretary

3 determines is necessary for the completion of the survey or

4 registration: Provided, That a coal-fired electric generating

5 facility shall also report the nominal design capacity of the

6 facility, which is the quantity of water withdrawn by the

7 facilitys intake pumps necessary to operate the facility during a

8 calendar day.

9 (j) The secretary shall, to the extent reliable water

10 withdrawal data is reasonably available from sources other than

11 persons required to provide data and participate in the survey and

12 registration, utilize that data to fulfill the requirements of this

13 section. If the data is not reasonably available to the secretary,

14 persons required to participate in the survey and registration are

15 required to provide the data. Altering locations of intakes and

16 discharge points that result in an impact to the withdrawal of the

17 water resources by an amount of ten percent or more from the

18 consecutive baseline average shall also be reported.

19 (k) The secretary shall report annually to the Joint

20 Legislative Oversight Commission on State Water Resources on the

21 survey results. The secretary shall also make a progress report

22 every three years annually on the development implementation of the

23 State Water Resources Management Plan and any significant changes

24 that may have occurred since the survey report State Water

25 Resources Management Plan was submitted in two thousand six 2013.

26 (l) In addition to any requirements for completion of the

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1 survey established by the secretary, the survey must accurately

2 reflect both actual and maximum potential water withdrawal. Actual

3 withdrawal shall be established through metering, measuring or

4 alternative accepted scientific methods to obtain a reasonable

5 estimate or indirect calculation of actual use.

6 (m) The secretary shall make recommendations to the joint

7 Legislative Oversight Commission on Water Resources created in

8 section five of this article relating to the implementation of a

9 water quantity management strategy for the state or regions of the

10 state where the quantity of water resources are found to be

11 currently stressed or likely to be stressed due to emerging

12 beneficial or other uses, ecological conditions or other factors

13 requiring the development of a strategy for management of these

14 water resources.

15 (n) The secretary may propose rules pursuant to article three,

16 chapter twenty-nine-a of this code as necessary to implement the

17 survey registration or plan requirements of this article.

18 (o) The secretary is authorized to enter into cooperative

19 agreements with local, state and federal agencies and private

20 policy or research groups to obtain federal matching funds, conduct

21 research and analyze survey and registration data and other

22 agreements as may be necessary to carry out his or her duties under

23 this article.

24 (p) The department, the Division of Natural Resources, the

25 Division of Highways and the Conservation Agency (cooperating state

26 agencies) shall continue providing matching funds for the United

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1 States Geological Surveys (USGS) stream-gauging network to the

2 maximum extent practicable. Should a cooperating state agency

3 become unable to maintain its contribution level, it should notify

4 the USGS and the commission of its inability to continue funding

5 for the subsequent federal fiscal year by July 1, in order to allow

6 for the possible identification of alternative funding resources.

7 22-26-5. Joint Legislative Oversight Commission on State Water

8 Resources.

9 (a) The President of the Senate and the Speaker of the House

10 of Delegates shall each designate five members of their respective

11 houses, at least one of whom shall be a member of the minority

12 party, to serve on a joint legislative oversight commission charged

13 with immediate and ongoing oversight of the water resources survey,

14 registration and development of a state water resources management

15 plan. This commission shall be known as the Joint Legislative

16 Oversight Commission on State Water Resources and shall regularly

17 investigate and monitor all matters relating to the water

18 resources, including the survey and plan.

19 (b) The expenses of the commission, including the cost of

20 conducting the survey and monitoring any subsequent strategy and

21 those incurred in the employment of legal, technical,

22 investigative, clerical, stenographic, advisory and other

23 personnel, are to be approved by the Joint Committee on Government

24 and Finance and paid from legislative appropriations.

25 22-26-6. Mandatory survey and registration compliance.

26 (a) The water resources survey and subsequent registry will

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1 provide critical information for protection of the states water

2 resources and, thus, mandatory compliance with the survey and

3 registry is necessary.

4 (b) All large-quantity users who withdraw water from a West

5 Virginia water resource shall complete the survey and register such

6 use with the department of Environmental Protection. Any person

7 who fails to complete the survey or register, provides false or

8 misleading information on the survey or registration, or fails to

9 provide other information as required by this article may be

10 subject to a civil administrative penalty not to exceed $5,000 to

11 be collected by the secretary consistent with the secretarys

12 authority pursuant to this chapter. Every thirty days after the

13 initial imposition of the civil administrative penalty, another

14 penalty may be assessed if the information is not provided. The

15 secretary shall provide written notice of failure to comply with

16 this section thirty days prior to assessing the first

17 administrative penalty.

18 22-26-7. Secretary authorized to log wells; collect data.

19 (a) In order to obtain important information about the states

20 surface and groundwater, the secretary is authorized to collect

21 scientific data on surface and groundwater and to enter into

22 agreements with local and state agencies, the federal government

23 and private entities to obtain this information.

24 (1) (b) Any person who installs a community water system,

25 noncommunity nontransient water system, transient water system,

26 commercial well, industrial or test well shall notify the secretary

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1 of his or her intent to drill a water well no less than ten days

2 prior to commencement of drilling. The ten-day notice is the

3 responsibility of the owner, but may be given by the drilling

4 contractor.

5 (2) (c) The secretary has the authority to gather data,

6 including driller and geologist logs, run electric and other

7 remote-sensing logs and devices and perform physical

8 characteristics tests on nonresidential and multifamily water

9 wells.

10 (3) (d) The drilling contractor shall submit to the secretary

11 a copy of the well completion forms submitted to the Division of

12 Health Bureau for Public Health for a community water system,

13 noncommunity nontransient water system, transient water system,

14 commercial well, industrial or test well. The drilling contractor

15 shall also provide the well GPS location and depth to groundwater

16 on the well report submitted to the secretary.

17 (4) (e) Any person who fails to notify the secretary prior to

18 drilling a well or impedes collection of information by the

19 secretary under this section is in violation of the Water Resources

20 Protection and Management Act and is subject to the civil

21 administrative penalty authorized by section six of this article.

22 (5) (f) Any well contracted for construction by the secretary

23 for groundwater or geological testing must be constructed at a

24 minimum to well design standards as promulgated by the Division of

25 Health Bureau for Public Health. Any wells contracted for

26 construction by the secretary for groundwater or geological testing

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1 that would at a later date be converted to a public use water well

2 must be constructed to comport to state public water design

3 standards.

4 22-26-8. State Water Resources Management Plan; powers and duty

5 of secretary.

6 (a) The secretary of the Department of Environmental

7 Protection shall oversee the development of a State Water Resources

8 Management Plan to be completed no later than November 30, 2013.

9 The plan shall be reviewed and revised as needed after its initial

10 adoption. The plan shall be developed with the cooperation and

11 involvement of local and state agencies with regulatory, research

12 or other functions relating to water resources including, but not

13 limited to, those agencies and institutions of higher education set

14 forth in section three of this article and a representative of

15 large quantity users. The State Water Resources Management Plan

16 shall be developed utilizing the information obtained pursuant to

17 said section and any other relevant information available to the

18 secretary.

19 (b) The secretary shall develop definitions for use in the

20 State Water Resources Management Plan for terms that are defined

21 differently by various state and federal governmental entities as

22 well as other terms necessary for implementation of this article.

23 (c) The secretary shall continue to develop and obtain the

24 following:

25 (1) An inventory of the surface water resources of each region

26 of this state, including an identification of the boundaries of

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1 significant watersheds and an estimate of the safe yield of such

2 sources for consumptive and nonconsumptive uses during periods of

3 normal conditions and drought.

4 (2) A listing of each consumptive or nonconsumptive withdrawal

5 by a large-quantity user, including the amount of water used,

6 location of the water resources, the nature of the use, location of

7 each intake and discharge point by longitude and latitude where

8 available and, if the use involves more than one watershed or

9 basin, the watersheds or basins involved and the amount

10 transferred.

11 (3) A plan for the development of the infrastructure necessary

12 to identify the groundwater resources of each region of this state,

13 including an identification of aquifers and groundwater basins and

14 an assessment of their safe yield, prime recharge areas, recharge

15 capacity, consumptive limits and relationship to stream base flows.

16 (4) After consulting with the appropriate state and federal

17 agencies, assess and project the existing and future nonconsumptive

18 use needs of the water resources required to serve areas with

19 important or unique natural, scenic, environmental or recreational

20 values of national, regional, local or statewide significance,

21 including national and state parks; designated wild, scenic and

22 recreational rivers; national and state wildlife refuges; and the

23 habitats of federal and state endangered or threatened species.

24 (5) Assessment and projection of existing and future

25 consumptive use demands.

26 (6) Identification of potential problems with water

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1 water or preserve or increase groundwater recharge and a

2 recommended process for providing appropriate positive recognition

3 of such those projects or practices in actions, programs, policies,

4 projects or management activities.

5 (12) An assessment of both structural and nonstructural

6 alternatives to address identified water availability problems,

7 adverse impacts on water uses or conflicts between water users,

8 including potential actions to develop additional or alternative

9 supplies, conservation measures and management techniques.

10 (13) A review and evaluation of statutes, rules, policies and

11 institutional arrangements for the development, conservation,

12 distribution and emergency management of water resources.

13 (14) A review and evaluation of water resources management

14 alternatives and recommended programs, policies, institutional

15 arrangements, projects and other provisions to meet the water

16 resources needs of each region and of this state.

17 (15) Proposed methods of implementing various recommended

18 actions, programs, policies, projects or management activities.

19 (d) The State Water Resources Management Plan shall consider:

20 (1) The interconnections and relationships between groundwater

21 and surface water as components of a single hydrologic resource.

22 (2) Regional or watershed water resources needs, objectives

23 and priorities.

24 (3) Federal, state and interstate water resource policies,

25 plans, objectives and priorities, including those identified in

26 statutes, rules, regulations, compacts, interstate agreements or

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1 comprehensive plans adopted by federal and state agencies and

2 compact basin commissions.

3 (4) The needs and priorities reflected in comprehensive plans

4 and zoning ordinances adopted by a county or municipal government.

5 (5) The water quantity and quality necessary to support

6 reasonable and beneficial uses.

7 (6) A balancing and encouragement of multiple uses of water

8 resources, recognizing that all water resources of this state are

9 capable of serving multiple uses and human needs, including

10 multiple uses of water resources for reasonable and beneficial

11 uses.

12 (7) The distinctions between short-term and long-term

13 conditions, impacts, needs and solutions to ensure appropriate and

14 cost-effective responses to water resources issues.

15 (8) Application of the principle of equal and uniform

16 treatment of all water users that are similarly situated without

17 regard to established political boundaries.

18 (e) In November of each year, Each November, the secretary

19 shall report to the Joint Legislative Oversight Commission on State

20 Water Resources on the implementation of the State Water Resources

21 Management Plan. The report on the water resources plan shall

22 include benchmarks for achieving the plans goals and time frames

23 for meeting them.

24 (f) Upon adoption of the state Water Resources Management Plan

25 by the Legislature, the report requirements of this article shall

26 be superceded by the plan and subsequent reports shall be on the

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1 survey results and the water resources plan. If the plan is not

2 adopted a detailed report discussing the provisions of this section

3 as well as progress reports on the development of the plan shall be

4 submitted every three years. The State Water Resources Management

5 Plan is adopted. Persons identified as large-quantity users prior

6 to the effective date of this subsection shall report actual

7 monthly water withdrawals, or monthly water withdrawals by a method

8 approved by the secretary, for the previous calendar year by March

9 31 of each succeeding year. Persons identified as large-quantity

10 users on or after the effective date of this subsection shall

11 submit their initial annual report no later than March 31, 2016,

12 and subsequent annual reports by March 31 of each year thereafter.

13ARTICLE 30. THE ABOVEGROUND STORAGE TANK ACT.

14 22-30-1. Short title.

15 This article may be known and cited as the Aboveground Storage

16 Tank Act.

17 22-30-2. Legislative findings.

18 (a) The West Virginia Legislature finds the public policy of

19 the State of West Virginia is to protect and conserve the water

20 resources for the state and its citizens. The states water

21 resources are vital natural resources that are essential to

22 maintain, preserve and promote human health, quality of life and

23 economic vitality of the state.

24 (b) The West Virginia Legislature further finds the public

25 policy of the state is for clean, uncontaminated water to be made

26 available for its citizens who are dependent on clean water as a

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1 basic need for survival, and who rely on the assurances from public

2 water systems and the government that the water is safe to consume.

3 (c) The West Virginia Legislature further finds it in the

4 public policy of the state that clean, uncontaminated water be

5 available to its businesses and industries that rely on water for

6 their economic survival, and the well-being of their employees.

7 These include hospitals and the medical industry, schools and

8 educational institutions, the food and hospitality industries, the

9 tourism industry, manufacturing, coal, natural gas and other

10 industries. Businesses and industries searching for places to

11 locate or relocate consider the quality of life for their employees

12 as well as the quality of the raw materials such as clean water.

13 (d) The Legislature further finds that large quantities of

14 fluids are stored in aboveground storage tanks within the state and

15 that emergency situations involving these fluids can and will arise

16 that may present a hazard to human health, safety, the water

17 resources, the environment and the economy of the state. The

18 Legislature further recognizes that some of these fluids have been

19 stored in aboveground storage tanks in a regulated manner

20 insufficient to protect human health, safety, water resources, the

21 environment and the economy of the state.


23 For purposes of this article:

24 (1) "Aboveground storage tank or tank" means a device made

25 to contain an accumulation of more than 1320 gallons of fluids that

26 are liquids at standard temperature and pressure, which is

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1 constructed primarily of non-carbon materials, including wood,

2 concrete, steel, plastic or fiberglass reinforced plastic, which

3 provide structural support, more than 90% capacity of which is

4 above the surface of the ground, but does not include any process

5 vessel. The term includes stationary devices which are permanently

6 affixed, and mobile devices which remain in one location on a

7 continuous basis for 60 or more days, and includes all ancillary

8 aboveground pipes and dispensing systems up to the first point of

9 isolation and all ancillary underground pipes and dispensing

systems connected to the aboveground containersto the first point10

of isolation.11

12 (2)Department means the West Virginia Department of

13 Environmental Protection.

(3) "Nonoperational storage tank" means an empty14 aboveground

15 storage tank in which fluids will not be deposited or from which

16 fluids will not be dispensed on or after the effective date of this

17 article.

18 (4) Operator means any person in control of, or having

19 responsibility for, the daily operation of an aboveground storage

20 tank.

21 (5) Owner means a person who holds title to, controls or

22 owns an interest in an aboveground storage tank, including owners

23 of tanks immediately preceding the discontinuation of a tanks use.

24 Owner does not mean a person who holds an interest in a tank for

25 financial security, unless the holder has taken possession of and

26 operated the tank.

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1 (6) Person, persons or people means any individual,

2 trust, firm, owner, operator, corporation or other legal entity,

3 including the United States government, an interstate commission or

4 other body, the state or any agency, board, bureau, office,

5 department or political subdivision of the state, but does not

6 include the Department of Environmental Protection.

7 (7) Process vessel means tanks, containers or other vessels

8 utilized in a facility in the manufacturing process through which

9 there is a steady, variable, recurring or intermittent flow of

10 materials. This does not include tanks used for storage of

11 materials prior to their introduction into the production process

12 or for the storage of finished products or by-products of the

13 production process.

14 (8) Public groundwater supply source means a primary source

15 of water supply for a public water system which is directly drawn

16 from a well, underground stream, underground reservoir, underground

17 mine or other primary source of water supplies which is found

18 underneath the surface of the state.

19 (9) Public surface water supply source means a primary

20 source of water supply for a public water system which is directly

21 drawn from rivers, streams, lakes, ponds, impoundments or other

22 primary sources of water supplies which are found on the surface of

23 the state.

24 (10) Public surface water influenced groundwater supply

25 source means a source of water supply from a public water system

26 which is directly drawn from an underground well, underground river

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1 commerce.

(122 ) "Release" means any spilling, leaking, emitting,

3 discharging, escaping, leaching or disposing of fluids from an

4 aboveground storage tank into groundwater, surface water or

5 subsurface soils. The term shall also include spilling, leaking,

6 emitting, discharging, escaping, leaching or disposing of fluids

7 from an aboveground storage tank into a containment structure or

8 facility that poses an immediate threat of contamination of the

soils, subsurface soils, surface water or groundwater: Provided,9

That the overfill or spillage of up to 20 gallons of fluid during10

the loading or unloading of liquids shall not be required to be11

reported if the overflow or spillage is wholly contained within a12

containment structure or facility, it is promptly cleaned up, and13

no portion of the overfill or spillage escapes onto the ground or14

into adjacent surface water.15

(1316 ) Secondary containment means a safeguard applied to one

17 or more tanks that prevents the discharge into the waters of the

18 state of the entire capacity of the largest single tank and

19 sufficient freeboard to contain precipitation. In order to qualify

20 as secondary containment, the barrier and containment field must be

21 sufficiently impervious to contain fluids in the event of a

22 release, and may include double-walled tanks, dikes, containment

23 curbs, pits or a drainage trench enclosures that safely confine the

24 release from a tank in a facility catchment basin or holding pond.

(1425 ) Secretary means the Secretary of the Department of

26 Environmental Protection, or his or her designee.

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1 program. The fee may be set by emergency and legislative rules

2 proposed for promulgation in accordance with the provisions of

3 article three, chapter twenty-nine-a of this code.

(g) On and after October 1, 20144 , it shall be unlawful for any

5 owner or operator to operate or use an aboveground storage tank

6 subject to this article which has not been properly registered or

7 for which any applicable registration fee has not been paid.

(h) On and after October 1, 20148 , it shall be unlawful for any

9 person to approve a delivery order, or to deliver or deposit any

10 fluid subject to this article into an aboveground storage tank

11 unless the owner or operator provides proof of valid registration

12 of the tank into which the fluid is to be delivered or deposited.

13 22-30 - 5 . Aboveground Storage Tank Regulatory Program; promulgation

14 of appropriate aboveground tank standards; permitting

15 procedures and waiver requirements; rulemaking

16 requirements.

(a) Without authorization from the secretary, it is unlawful17

for any person to construct, maintain or use any aboveground18

storage tank for the storage of any fluid other than water, which19

has no additives, without first obtaining a permit from the20

secretary.21

(a) The secretary shall promulgate for review and22

consideration by the West Virginia Legislature as legislative rules23

during the 2015 Regular Session of the West Virginia Legislature,24

regarding the following standards and matters pertaining to this25

article.26

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1 and remediation to prevent future releases of fluids or materials

2 to the states water resources;

3 (8) Requirements for certification of installation, removal,

4 retrofit, corrosion and other testing and inspection of aboveground

5 storage tanks, leak detection systems and secondary containment by

6 a qualified registered professional engineer or a qualified person

7 working under the direct supervision of a registered professional

8 engineer, regulated and licensed by the State Board of Registration

9 for Professional Engineers, or by an individual certified to

10 perform tank inspections by the American Petoleum Institute, or by

11 a person holding certification under another program approved by

12 the secretary;

13 (9) The assessment of permit application and registration fees

14 as determined by the secretary;

15 (10) Permit issuance only after the application and any other

16 supporting documents have been submitted, reviewed and approved by

17 the secretary, and that permits may be issued with certain

18 conditions or contingencies;

19 (11) A requirement that any aboveground storage tank

20 maintenance work shall commence within six months from the date the

21 permit was issued and must be completed within one year of

22 commencement. If the work has not started or is not completed

23 during the stated time periods, the permit shall expires and a new

24 permit shall be required unless a written extension is granted by

25 the secretary. An extension may be granted only if the applicant

26 can demonstrate that the delay was not deliberate and that the

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1 delay will not present harm to human health, safety, water

2 resources or the environment;

3 (12) A procedure for the administrative resolution of

4 violations including the assessment of administrative civil

5 penalties;

6 (13) A procedure for any person adversely affected by a

7 decision or order of the secretary relating to the aboveground

8 storage tank program to appeal to the Environmental Quality Board,

9 pursuant to the provisions of article one, chapter twenty-two-b of

10 this code;

(14) In coordination and cooperation with the Bureau for11

Public Health and the Office of Homeland Security and Emergency12

Response, create a process and procedure for identifying any13

aboveground storage tanks which are located within a defined zone14

of critical concern for a public water systems surface water15

intake or within a defined source water protection area for a16

public water systems groundwater intake, and determining whether17

additional permit requirements and inspections should be imposed on18

that tank or facility by requiring the issuance of any new permit19

pursuant to this article, or by amending any existing permit which20

may pertain to that tank or facility, under this chapter, or by any21

other article of this chapter;22

.23

24 22-30-6. Annual inspection and certification.

25 (a) Every owner or operator of an aboveground storage tank

26 regulated herein shall have an annual inspection of each tank

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1 performed by a qualified registered professional engineer or a

2 qualified person working under the direct supervision of a

3 registered professional engineer, regulated and licensed by the

4 State Board of Registration for Professional Engineers, or by an

5 individual certified to perform tank inspections by the American

6 Petoleum Institute, or by a person holding certification under

7 another program approved by the secretary. Every owner or operator

8 shall submit, on a form prescribed by the secretary, a

9 certification from the engineer that each tank, associated

10 equipment, leak detection systems and secondary containment

11 structures meet the minimum standards established by this article

12 or by the secretary by rule.

13 (b) The certification form shall be submitted to the secretary

14 on or before January 1, 2015, and each year thereafter.

15 22-30-7. Financial responsibility.

16 The secretary shall promulgate rules requiring owners and

17 operators to provide evidence of adequate financial resources to

18 undertake reasonable corrective action for releases of fluid from

19 aboveground storage tanks. The means of demonstrating adequate

20 financial responsibility may include, but not be limited to,

21 providing evidence of current insurance, guarantee, surety bond,

22 letter of credit, proof of assets, trust fund or qualification as

23 a self insurer.

24 22-30-8. Corrective action.

25 (a) Prior to the effective date of the emergency and

26 legislative rules promulgated pursuant to the authority granted

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1 under this article, the secretary is authorized to:

2 (1) Require the owner or operator to develop a preliminary

3 corrective action plans taking into consideration the types of

4 fluids and types of tanks on the premises;

5 (2) Require the owner or operator of an aboveground storage

6 tank to undertake prompt corrective action to protect human health,

7 safety, water resources or the environment from contamination

8 caused by a release; or

9 (3) Undertake immediate corrective action with respect to any

10 release or threatened release of fluid from an aboveground storage

11 tank when, in the judgment of the secretary, the action is

12 necessary to protect human health, safety, water resources or the

13 environment from contamination caused by a release.

14 (b) The corrective action undertaken or required by this

15 section shall be what may be necessary to protect human health,

16 water resources and the environment from contamination caused by a

17 release, including the ordered cessation or closure of a source of

18 contamination and the ordered remediation of a contaminated site.

19 The secretary shall use funds in the Protect Our Water Fund

20 established pursuant to this article for payment of costs incurred

21 for corrective action taken by the secretary in accordance with

22 this article. In undertaking corrective actions under this section

23 and in issuing orders requiring owners or operators to undertake

24 the actions, the secretary shall give priority to releases or

25 threatened releases of fluid from aboveground storage tanks that

26 pose the greatest threat to human health, water resources or the

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1 comply with an order of the secretary under this article or of the

2 Environmental Quality Board under article one, chapter twenty-two-b

3 of this code to comply with appropriate corrective action measures

4 ordered by the secretary or the Environmental Quality Board.

5 (d) The secretary may draw upon the Protect Our Water Fund in

6 order to take action under subdivision (1) or (2), subsection (c)

7 of this section if the secretary has made diligent good-faith

8 efforts to determine the identity of the owner or operator

9 responsible for the release or threatened release and:

10 (1) The secretary is unable to determine the identity of the

11 owner or operator in a manner consistent with the need to take

12 timely corrective action; or

13 (2) The owner or operator determined by the secretary to be

14 responsible for the release or threatened release has been informed

15 in writing of the secretarys determination and has been requested

16 by the secretary to take appropriate corrective action but is

17 unable or unwilling to take proper action in a timely manner.

18 (e) The written notice to the owner or operator must inform

19 the owner or operator that if it is subsequently found liable for

20 releases pursuant to this section, the owner or operator will be

21 required to reimburse the Protect Our Water Fund for the costs of

22 the investigation, information gathering, and corrective action

23 taken by the secretary.

24 (f) If the secretary determines that immediate response to an

25 imminent threat to human health, safety, water resources or the

26 environment is necessary to avoid substantial injury or damage

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1 thereto, corrective action may be taken pursuant to this section

2 without the prior written notice required by subdivision (2),

3 subsection (d) of this section. In that case, the secretary must

4 give subsequent written notice to the owner or operator within

5 fifteen days after the action is taken describing the circumstances

6 that required the action to be taken and setting forth the matters

7 identified in subsection (e) of this section.

8 22-30-9. Spill prevention response plan.

9 (a) Within 180 days of the effective date of this article,

10 each owner or operator of an aboveground storage tank shall submit

11 a spill prevention response plan for each aboveground storage tank.

12 Owners and operators of aboveground storage tanks shall file

13 updated plans required to be submitted by this section no less

14 frequently than every three years. Each plan shall be

15 site-specific, consistent with the requirements of this article,

16 and developed in consultation with Bureau for Public Health, county

17 and municipal emergency management agencies. The spill prevention

18 response plan shall at a minimum:

19 (1) Identify and describe the activity that occurs at the site

20 and identify applicable hazard and process information, including

21 a specific listing and inventory of all types of fluids stored,

22 amount of fluids stored, and wastes generated that are stored in

23 aboveground storage tanks at the facility. The plan shall include

24 the material safety data sheets (MSDS) for all fluids in use or

25 stored in aboveground storage tanks at the facility. The material

26 safety data sheets must include the health hazard number identified

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1 by the National Fire Protection Association. The plan shall also

2 include drawings of the aboveground storage tank facility,

3 including the locations of all drainage pipes and water outlets;

4 (2) Identify all facility-related individuals and their duties

5 and responsibilities for developing, implementing and maintaining

6 the facilitys plan. The plan shall describe in detail the chain

7 of command at the aboveground storage tank facility and list all

8 facility emergency coordinators and emergency response contractors;

9 (3) Provide a preventive maintenance program that includes

10 monitoring and inspection procedures, including identification of

11 stress points, employee training programs and security systems.

12 The plan shall include a description of potential sources and areas

13 where spills and leaks may occur by drawings and plot plans and

14 shall identify specific spill prevention measures for those

15 identified areas;

16 (4) Detail the specific response that the aboveground storage

17 tank facility and contract emergency personnel shall take upon the

18 occurrence of any release of fluids from an aboveground storage

19 tank at the facility;

20 (5) Provide contact information obtained by the owner or

21 operator of the aboveground storage tanks from the county and

22 municipal emergency management agencies and the nearest downstream

23 public water supply intake, and designate the person or persons to

24 be notified in the event of a release from an aboveground storage

25 tank; and

26 (6) Provide the secretary with all other requested

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1 information.

2 (b) Each owner of an aboveground storage tank with an approved

3 spill prevention response plan shall submit to the secretary a

4 revised plan or addendum to the plan in accordance with the

5 requirements of this article if any of the following occur:

6 (1) There is a substantial modification in design,

7 construction, operation or maintenance of any aboveground storage

8 tank or associated equipment, or there are other circumstances that

9 increase the potential for fires, explosions or releases of fluids;

10 (2) There is a substantial modification in emergency equipment

11 at the facility;

12 (3) There are substantial changes in emergency response

13 protocols at the aboveground storage tank facility;

14 (4) The plan fails in an emergency;

15 (5) The removal or the addition of any aboveground storage

16 tank; or

17 (6) Other circumstances occur about which the secretary

18 requests an update.

19 (c) The secretary shall approve the spill prevention response

20 plan or reject the plan and require modifications as may be

21 necessary and reasonable to assure the protection of the source

22 water of a public water system from a release of fluids from an

23 aboveground storage tank. If rejected, the owner of the

24 aboveground storage tank shall submit a revised plan to the

25 secretary for approval within thirty days of receipt of

26 notification of the secretarys decision. Failure to comply with

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1 a plan approved by the secretary pursuant to this section is a

2 violation of this article.

3 (d) Nothing contained in this section relieves the owner or

4 operator of an aboveground storage tank from his or her obligation

5 to report any release immediately to the departments emergency

6 notification telephone number.

7 22-30-10. Notice to local governments, water companies and other

8 industrial users.

9 The owner or operator of an aboveground storage tank facility

10 shall annually provide public notice to any public water systems

11 whose identified groundwater supplys Source Water Protection Area

12 or whose surface water supplys Zone of Critical Protection, the

13 local municipality, if any, and the county in which the facility is

14 located. The notice shall provide a detailed inventory of the type

15 and quantity of fluid stored in aboveground storage tanks at the

16 facility and the material safety data sheets (MSDS) associated with

17 the fluid in storage. The owner or operator shall also annually

18 provide a copy of the spill prevention response plan and any

19 updates thereto, which have been approved by the secretary pursuant

20 to this act, to the applicable public water systems and county and

21 municipal emergency management agencies.

22 22-30-11. Required signage.

23 Every aboveground storage tank shall have prominently posted

24 signage disclosing the contents of the tank and the hazards, if

25 any, associated with the fluid stored therein. The signage shall

26 also state the duty to duty to report spills and the sanctions for

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1 failure to do so. If the aboveground storage tank is empty, the

2 signage shall so state. For the purposes of this section, the

3 requirements for prominently posted signage shall be specified in

4 the rules proposed for promulgation by the secretary pursuant to

5 this article and article three, chapter twenty-nine-a of this code.

6 22-30-12. Aboveground Storage Tank Administrative Fund.

7 (a) The secretary shall collect annual registration fees from

8 owners or operators of each aboveground storage tank in an amount

9 sufficient to cover the regulatory oversight and services to be

10 provided by designated agencies, including necessary technical and

11 administrative personnel, as set forth by rule. All registration

12 and permit fees and the net proceeds of all fines, penalties and

13 forfeitures collected under this article, including accrued

14 interest, shall be paid into a special revenue account, hereby

15 created within the State Treasury, designated the Aboveground

16 Storage Tank Administrative Fund, and shall be used solely to

17 defray the cost of administering this act.

18 (b) At the end of each fiscal year, any unexpended balance,

19 including accrued interest, on deposit in the Aboveground Storage

20 Tank Administrative Fund shall not be transferred to the General

21 Revenue fund, but shall remain in the Aboveground Storage Tank

22 Administrative Fund.

23 22-30-13. Protect Our Water Fund.

24 (a) Each owner or operator of an aboveground storage tank

25 located in this state shall pay an annual fee to establish a fund

26 to assure adequate response to leaking aboveground storage tanks.

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1 The amount of fees assessed pursuant to this section shall be set

2 forth by rule. The fees must be sufficient to cover the regulatory

3 oversight and services to be provided by designated agencies,

4 including necessary technical and administrative personnel. The

5 proceeds of the assessment shall be paid into a special revenue

6 account, hereby created within the State Treasury, designated the

7 Protect Our Water Fund, and shall be used solely to respond to

8 leaking aboveground storage tanks.

9 (b) Each owner or operator of an aboveground storage tank

10 subject to a fee assessment under subsection (a) of this section

11 shall pay a fee based on the number of aboveground storage tanks he

12 or she owns or operates, as applicable. The secretary shall vary

13 the fees annually to a level necessary to produce a sufficient fund

14 at the beginning of each calendar year.

15 (c) At the end of each fiscal year, any unexpended balance,

16 including accrued interest, on deposit in the Protect Our Water

17 Fund shall not be transferred to the General Revenue fund, but

18 shall remain in the Protect Our Water Fund.

19 (d) The secretary may enter into agreements and contracts and

20 to expend the moneys in the fund for the following purposes:

21 (1) Responding to aboveground storage tank releases when,

22 based on readily available information, the secretary determines

23 that immediate action is necessary to prevent or mitigate

24 significant risk of harm to human health, safety, water resources

sb373 hjud am working draft 3wpd

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