Draft: version 1.1
Ohio River Basin Above-Ground Storage Tank
Regulations
Prepared by Stephen M. Braun
4/30/2015
OHIO RIVER VALLEY WATER SANITATON COMMISSION (ORSANCO)
Agenda Item 12 208th Technical Committee Meeting
June 16-17, 2015
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Table of Contents List of Tables and Figures ......................................................................................................................... iii
Introduction .............................................................................................................................................. 1
Federal or Blanket Regulations ................................................................................................................. 1
Federal SPCC (Spill Prevention, Control, and Countermeasure) Rule ................................................... 2
Federal Facility Response Plan (FRP) .................................................................................................... 2
Federal Resource Conservation and Recovery Act (RCRA) ................................................................... 2
State Fire Code ...................................................................................................................................... 2
Source Water Protection ...................................................................................................................... 3
Mobile Tanks ......................................................................................................................................... 3
State Regulations ...................................................................................................................................... 3
Illinois .................................................................................................................................................... 3
Indiana .................................................................................................................................................. 4
Kentucky ................................................................................................................................................ 4
New York ............................................................................................................................................... 5
Ohio ....................................................................................................................................................... 5
Pennsylvania ......................................................................................................................................... 6
Virginia .................................................................................................................................................. 7
West Virginia ......................................................................................................................................... 7
Conclusion ................................................................................................................................................. 8
Works Cited ................................................................................................................................................. 10
Figure 1. Tank farm from an unknown source and location
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List of Tables and Figures Figure 1. Tank farm from an unknown source and location ................................................................................... ii Figure 2. Ohio River basin states ........................................................................................................................... 1 Figure 3. Tank farm in Ashland, KY ........................................................................................................................ 5 Figure 4. Example of NY's regulated AST coverage ................................................................................................ 5 Figure 5. Cleanup under progress of a diesel fuel spill on the Ohio River .............................................................. 6 Figure 6. Aerial photo of the Ashland oil spill in 1988 on the Monogahela River, a tributary of the Ohio River..... 6 Figure 7. Tanks leaking MCHM into the Elk River in WV, a tributary of the Kanawha River ................................... 7
Table 1. Aboveground storage tank contacts used in report 11
Draft: version 1.1
Introduction The Ohio River Basin encompasses 14 states (Figure 3. Ohio River Basin states) and provides
drinking water to an estimated 5 million people. Eight of those states are members of the ORSANCO Compact. It is the responsibility of the states and ORSANCO to protect the designated uses of the Ohio River. One of those uses includes drinking water. Recent spills and/or leaks from above-ground storage tanks (AST) have raised interest in evaluating the adequacy of current regulations to protect water resources in the basin. This report serves to inventory and summarize existing laws and regulations governing the management of above-ground storage tanks in the ORSANCO Compact District.
Figure 2. Ohio River Basin states
Federal or Blanket Regulations There are several federal and non-federal regulations that all the Compact States have in common that regulate certain ASTs but not all of them.
1) Federal SPCC Rule 2) Federal FRP 3) Federal RCRA 4) State Fire Code 5) Source Water Protection 6) Mobile Tanks
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Federal SPCC (Spill Prevention, Control, and Countermeasure) Rule ”The SPCC rule provides requirements for oil spill prevention, preparedness, and response to prevent oil discharges to navigable waters and adjoining shorelines. The rule requires specific facilities to prepare, amend, and implement SPCC Plans. The SPCC rule is part of the Oil Pollution Prevention regulation, which also includes the Facility Response Plan (FRP) rule” (USEPA). The SPCC rule only applies to facilities with a total aggregate capacity of above-ground oil storage containers greater than 1,320 gallons (equivalent to 5 cubic meters) of oil products only. SPCC also requires secondary containment of 110% of the largest tank. Inspections are dependent on the size of the container and/or total aggregate size. The type of inspection (visual or integrity) and the inspector (certified, PE, etc) is also dependent on the size of the tank. An SPCC plan is also required. This plan is intended to help a facility prevent and control an oil spill. Dependent on the size of the tank or total aggregate size, a facility can self-certify the plan. The SPCC rule only applies to oil products.
Federal Facility Response Plan (FRP) “A Facility Response Plan (FRP) demonstrates a facility's preparedness to respond to a worst case oil discharge. Under the Clean Water Act, as amended by the Oil Pollution Act, certain facilities that store and use oil are required to prepare and submit these plans” (USEPA). “Facilities that could reasonably be expected to cause "substantial harm" to the environment by discharging oil into or on navigable waters are required to prepare and submit Facility Response Plans (FRPs)” (USEPA). A facility may pose "substantial harm" according to the Facility Response Plan (FRP) rule if it has a total oil storage capacity greater than or equal to 42,000 gallons and it transfers oil over water to/from vessels or has a total oil storage capacity greater than or equal to one million gallons (USEPA). Like the SPCC rule, the FRP rule only applies to oil products.
Federal Resource Conservation and Recovery Act (RCRA) The objectives of the Resource Conservation and Recovery Act (RCRA) are to protect human health and the environment from the potential hazards of waste disposal, to conserve energy and natural resources, to reduce the amount of waste generated, and to ensure that wastes are managed in an environmentally sound manner. RCRA regulates the management of solid waste (e.g., garbage), hazardous waste, and underground storage tanks holding petroleum products or certain chemicals (USEPA). RCRA is also a permitting program that manages hazardous waste from cradle to grave. It is interesting to note that the RCRA set up the federal Leaking Underground Storage Tank (LUST) trust fund. This trust was created by Congress to finance UST cleanups for which no viable owner or operator can be found (USEPA). A 0.1 cent tax for every gallon of gas purchased is deposited into the LUST trust fund. Again, RCRA does not cover all ASTs and there is no such federal trust fund for leaking ASTs.
State Fire Code Each state establishes its own fire code based on the National Fire Code (NFC). The NFC, developed by the National Fire Protection Association (NFPA), is responsible for 380 codes and standards designed to minimize the risk and effects of fire by establishing criteria for building, processing, design, service, and installation in the United States. The NFC requires that all ASTs greater
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than 55 gallons containing hazardous materials (as defined by CERCLA), combustible/flammable, radioactive, or pressurized contents be:
1) Permitted or registered through the local fire official 2) Labeled with the class of substance (flammable, caustic, etc) 3) Detection systems (i.e. smoke detectors, leak detectors) be tested annually 4) Have secondary containment
The NFC does not cover nonhazardous tanks and some ASTs are exempt, for example, home heating oil tanks and tanks used for agriculture purposes. The NFC does not require the local fire official to report the information to the state.
Source Water Protection Some of the ORSANCO Compact States and Ohio River drinking water utilities have conducted their own AST inventories within a 25 mile zone of critical concern. AST inventories conducted by water utilities have typically involved employees driving along the Ohio River and making note of any AST observed. Water utility employees would approach AST owners to obtain additional information regarding the storage tanks. This approach has been partially successful; however, critical information such as tank capacity and type of chemicals stored is not always provided. This was particularly evident for ASTs containing proprietary chemicals. The limited geographic scope of these inventories are problematic in that historically spill events which have impacted drinking water supplies have often originated more than 25 miles upstream of the affected water utilities. For example, the 1988 Ashland oil spill in Pittsburgh, PA impacted the operation and treatment at drinking water utilities for hundreds of miles downstream of the spill incident.
Mobile Tanks All of the Compact States defer to the Department of Transportation (DOT), US Coast Guard (USCG), and the Federal Railroad Safety Act (FRSA) for mobile tank requirements and cleanup.
State Regulations AST regulations differ by state and are often regulated by agencies that the water quality community is not familiar with, for example the department of homeland security or state fire marshal. As the waters of the Ohio River Basin are shared by multiple states, it is important to understand the differences among state regulations relevant to managing ASTs to ensure the water resources of the basin are protected. AST regulations for each ORSANCO Compact state are summarized below.
Illinois Illinois regulates ASTs though the Office of the Illinois State Fire Marshal. Illinois has established their own fire code. There are two types of regulated ASTs
1) Bulk Storage Tank – if greater than 110 gallons, a permit is required for the install or relocation of flammable/combustible liquids
2) Dispensing Tanks – A permit is required to install or relocate a tank of any size if it will contain flammable/combustible materials
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Although the local fire department may require additional regulations or registration, the Illinois Fire Code has no specific requirements other than bulk and dispensing tanks holding flammable/combustible materials. A state-wide inventory of AST is not readily available, no on-going inspections are required, and many ASTs containing nonflammable or noncombustible materials, including nonhazardous material tanks are unregulated (Office of IL State Fire Marshal).
Indiana The Indiana Department of Homeland Security (IDHS) oversees permitting, called a Construction Design Release, of flammable/combustible ASTs greater than 660 gallons only. All other ASTs (hazardous and nonhazardous) are unregulated by the state. Indiana uses the Indiana Fire Code; it requires registration of ASTs greater than 55 gallons, if the local fire department requires it. A state-wide inventory of ASTs is not readily available except for flammable/combustible tanks. There are no on-going inspections requirements.
On January 12, 2015, Indiana proposed Senate Bill 312. SB 312 would require owners of ASTs greater than 200 gallons to register with the Indiana Department of Environmental Management (IDEM). Information collected would be location of the tank(s), contact info, contents, and capacity. Public water suppliers would also be required to develop surface water threat minimization and response plans.
Indiana Update – On May 4, 2015, Gov. Mike Pence signed into law SB 312. The bill requires owners of ASTs greater than 660 gallons (originally proposed 200 gal.) in a zone of critical concern (25 miles upstream) to register with IDEM if it contains a hazardous substance as defined by 42 U.S.C. 11021(e) – U.S. Code that list chemicals that are required to have a Material Safety Data Sheet (MSDS). This information will not be available to the public but can be made available for the purpose of creating the required surface water quality threat minimization and response plan (State of Indiana, 2015). MCHM would still be considered nonhazardous and thus exempt. Inspection requirements are not addressed within the bill.
Kentucky The Kentucky Hazardous Materials Section is responsible for AST regulations. They enforce the Kentucky Fire Code which requires owners of ASTs greater than 60 gallons to obtain a permit to build, repair or modify and AST. An inventory is publically available which includes contact information, location, contents, and amount stored. Annual visual inspections are required. Nonhazardous tanks are unregulated (Commonwealth of Kentucky).
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Figure 3. Tank farm in Ashland, KY
New York New York’s AST program is called “Bulk Storage” and is run by the Department of Environmental Conservation. There are two bulk storage programs (New York State):
1) Chemical Bulk Storage – Started in 1989, all hazardous chemicals, as defined by CERCLA, must register every two years if greater than 185 gallons. Inspection frequency and type are dependent on size and contents, ranging from daily visual inspections to every 5 years. Secondary containment of 110% is required. A spill prevention report is required. There are about 1,500 registered chemical bulk storage tanks in the state. There are no requirements for nonhazardous ASTs.
2) Petroleum Bulk Storage – Started in 1983, requires petroleum ASTs greater than 1,100 gallons to register every 5 years. Monthly visual inspections are required, and they must be cleaned and tested every 10 years. Secondary containment of 110% is required. There are about 40,000 registered
petroleum ASTs in the state.
The location and contact (owner) information is available online. No other information is available, i.e. type of chemical, capacity, etc.
Ohio The Ohio Fire Marshal enforces the Ohio Fire Code. The Ohio Fire Code requires a permit to install or repair an AST greater than 60 gallons. Hazardous material ASTs must registered with the local fire department. A state-wide inventory is not readily available, there are no on-going inspections required, and nonhazardous tanks are unregulated.
Figure4. Example of NY's regulated AST coverage
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Figure 5. Cleanup under progress of a diesel fuel spill on the Ohio River
Pennsylvania The Pennsylvania Department of Environmental Protection is responsible for AST regulations. The Storage Tank and Spill Prevention Act of 1989 got its start because of the Ashland oil spill on the Monongahela River. The Act states that AST owners must register annually for tanks greater than 250 gallons containing a regulated substance as defined by CERCLA. Pennsylvania also regulates AST with any substance that contains at least 1% of a regulated substance. This would include MCHM, which contains 1% methanol. Any other nonhazardous tanks are unregulated. Inspections are required at a minimum every 5 years. Secondary containment is also required. A state-wide inventory is available except for facilities greater than 21,000 gallons for homeland security reasons. Location, contact info, type (not specific, only contains class of substance) is available to the public. Spill prevention plans are required for facilities with greater than 21,000 gallons. Pennsylvania also uses the PA Fire Code. The fire code requires tanks greater than 30 gallons register with the local fire department (PA Dept. of Environmental Protection).
Figure 6. Aerial photo of the Ashland oil spill in 1988 on the Monogahela River, a tributary of the Ohio River
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Virginia The Virginia Department of Environmental Quality (DEQ) is responsible for AST regulations. The AST program got its start in 1991 when the spill called the “Valdez East” occurred. Virginia AST regulations vary based on the size of the tank and summarized as follows:
1) Tanks greater than 660 gallons (or 1,320 combined) must be registered (approximately 10,000 tanks are registered in Virginia).
2) Tanks greater than 25,000 gallons must also have an Oil Discharge Contingency Plan (ODCP) and be inspect every 5 years (applies to approximately 670 ASTs in Virginia).
3) Tanks greater than 1,000,000 gallons, in addition, must have a groundwater monitoring plan.
Secondary containment of 110% is required. Much of the information such as location, contact info, quantity, and contents are available to the public. All other AST’s follow the Virginia Fire Code regulations. There are no requirements for nonhazardous liquids. A state-wide inventory of all ASTs is not readily available.
West Virginia West Virginia recently passed Senate Bill 373 on June 6, 2014 as a result of a spill that occurred into the Elk River, a tributary of the Kanawha River that leads into the Ohio River. SB 373 requires all ASTs to be registered if capacity is greater than 1,320 gallons of liquid at standard temperature and pressure. This includes potable water tanks as well. Swimming pools and home oil tanks are exempt. It also requires annual certified inspections with good record keeping. Secondary containment is also required via the Groundwater Protection Rule. A state-wide inventory is available to the public which includes location, contact info, capacity, and contents (unless proprietary). A spill prevention response plan is required every 3 years. This would require the AST owner to notify the downstream public water supplier of any ASTs.
As of January 5, 2015, there are 47,332 registered tanks. 1,106 of those tanks were found to be not fit for service.
West Virginia Update - On March 14, 2015, the Legislature passed Senate Bill 423 to amend the Aboveground Storage Tank and Public Water Supply Protection Acts. This amended Act will become effective June 12, 2015 (WVDEP). Although the precise numbers are not known, it is estimated that 35,000 to 40,000 of the over 48,000 registered ASTs will be relieved of most of the regulatory costs and burdens of SB 373. However, the vast majority of all tanks will continue to be subject to at least some
Figure 7. Tanks leaking MCHM into the Elk River in WV, a tributary of the Kanawha River.
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aspect of the AST Act, including the registration requirements and other general provisions. SB 423 focuses on those tanks (“regulated tanks”) that are physically closer to public water supply intakes, or contain designated hazardous substances (1% or greater, similar to PA), or have a capacity of 50,000 gallons or more (Spillman Thomas & Battle, PLLC, 2015).
The primary focus of the amended AST Act is on two categories of “regulated tanks.” Level 1 regulated tanks are those tanks that have been determined to pose the greatest potential for harm to public drinking water supplies and encompass the following:
1. ASTs located within a zone of critical concern (five hour time-of-travel from source to intake), source water protection area, public surface water influenced groundwater supply source area, or any other AST designated by WVDEP as a Level 1 tank;
2. ASTs that contain a “hazardous substance” under CERCLA, 42 U.S.C. § 9601(14), or identified on the United States Environmental Protection Agency’s “List of Lists” in a concentration of one percent or greater, regardless of the AST’s location, except that ASTs containing petroleum are not Level 1 tanks based solely upon containing constituents on these lists; or
3. ASTs with a capacity of 50,000 gallons or more, regardless of contents or location.
Level 1 tanks will be more highly regulated than Level 2 tanks because they are associated with a higher risk of contamination to public water supplies based on their location. Level 2 regulated tanks are those tanks located within a “zone of peripheral concern” (“ZPC”), which are deemed to pose a lesser potential for harm to any “public surface water supply source and public surface water influenced groundwater supply source” while still meriting some degree of regulation. The ZPC is a yet-to-be-designated area and extends an additional five-hour time of travel upstream from a public water supply intake beyond the perimeter of the ZCC. The ZPC roughly doubles the area in which ASTs are deemed to be “regulated tanks.” The area included in the new ZPC will need to be developed by WVDEP or the West Virginia Department of Health and Human Resources as part of the implementation of the amended Act. Presumably, WVDEP will identify for AST owners those tanks located within a ZPC once that area is calculated and mapped (Spillman Thomas & Battle, PLLC, 2015).
Conclusion In conclusion, many states do not have an established AST division to oversee the management of ASTs. Inventories of ASTs in some states are only maintained at the local fire department level, thus making statewide inventories difficult to compile. Also, while fire departments may conduct visual inspections, some states do not require on-going integrity inspections by certified inspectors of the tank or secondary containment.
1) AST regulations typically vary based on size and category (i.e. type) of storage tank. These categories include: Oil based product tanks
2) Flammable/combustible tanks 3) Hazardous material tanks 4) Nonhazardous tanks
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AST regulations are more evolved for oil based products, requiring permitting, inspections, and spill plans by all the Compact states and federal laws. This information is often made available to interested parties.
Regulations for flammable/combustible ASTs are somewhat less evolved. There are no federal requirements, while requirements for permits or registrations vary by state. Inventories are not readily available for some states and many states do not require inspections of the tank or secondary containment.
Regulations for hazardous materials are even less elaborate than flammable/combustible tanks. There are no federal requirements, not all states require a permit or registration. An inventory is not readily available and many states do not require inspections of the tank or secondary containment.
Nonhazardous tank are unregulated in all states except West Virginia.
Conclusion Update – With passage of SB 423 in West Virginia, now all materials deemed nonhazardous are unregulated in all ORSANCO Compact states’.
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Works Cited Commonwealth of Kentucky. (n.d.). Public Protection Cabinet; Dept. of Housing, Buildings, and Construction. Retrieved May 18, 2015, from State Fire Marshal; Hazardous Materials: http://www.dhbc.ky.gov/sfm/Pages/Hazardousmaterials.aspx
Mariotti, Ally: The Cincinnati Enquirer. (2014, August 9). USA Today. Retrieved May 20, 2015, from Drinking water safe after 5K-gallon spill into Ohio River: http://www.usatoday.com/story/news/nation/2014/08/19/duke-energy-oil-spill/14275195/
New York State. (n.d.). New York Dept. of Environmental Conservation. Retrieved May 18, 2015, from Bulk Storage: http://www.dec.ny.gov/chemical/287.html
NFPA. (n.d.). National Fire Protection Association. Retrieved May 18, 2015, from About NFPA: http://www.nfpa.org/about-nfpa
Office of IL State Fire Marshal. (n.d.). Aboveground Storage Tanks. Retrieved May 18, 2015, from http://www.sfm.illinois.gov/Commercial/Above-Ground-Storage-Tanks
PA Dept. of Environmental Protection. (n.d.). Regulated Tank List. Retrieved May 18, 2015, from http://www.portal.state.pa.us/portal/server.pt/community/registration/20606/regulated_tank_list/1054359
Spillman Thomas & Battle, PLLC. (2015, April 21). W.Va. Senate Bill 423 Amends Aboveground Storage Tank Act. Retrieved May 20, 2015, from Martindale.com: http://www.martindale.com/environmental-law/article_Spilman-Thomas-Battle-PLLC_2202106.htm
State of Indiana. (2015, May 4). Senate Enrolled Act No. 312. Retrieved May 20, 2015, from http://in.proxy.openstates.org/2015/bills/sb0312/versions/sb0312.06.enrs
USEPA. (n.d.). Agriculture. Retrieved May 18, 2015, from Resource Conservation and Recovery Act (RCRA): http://www.epa.gov/agriculture/lrca.html
USEPA. (n.d.). Emergency Management. Retrieved May 18, 2015, from Who Must Prepare and Submit a Facility Response Plan: http://www.epa.gov/oem/content/frps/frpwho.htm
USEPA. (n.d.). Emergency Management: Oil Spills. Retrieved May 18, 2015, from FRP Rule: http://www.epa.gov/oem/content/frps/index.htm
USEPA. (n.d.). Emergency Management; Oil Spills. Retrieved May 13, 2014, from SPCC Rule: http://www.epa.gov/oem/content/spcc/index.htm
USEPA. (n.d.). Enforcement. Retrieved May 18, 2015 , from LUST Trust Fund and Cost Recovery: http://www2.epa.gov/enforcement/lust-trust-fund-and-cost-recovery
WVDEP. (n.d.). Water and Waste Management. Retrieved May 20, 2015, from Aboveground Storage Tanks: http://www.dep.wv.gov/WWE/abovegroundstoragetanks/Pages/default.aspx
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Table 1. Aboveground storage tank contacts used in report
Aboveground Storage Tank Contacts State Contact Title IL Hernando Albarracin UST Program Manager IL Kevin Switzer State Fire Marshal Fire Prevention Manager IN Melissa Farrington IDEM Tech. Env. Spec. IN Tony Bradshaw Senior Code Review Official, IDHS KY Ron Lovitt Waste Management, AST KY Dale Mancuso Senior Fire Code Plan Reviewer NY Russ Brauksieck Section Chief OH Lynn French State Fire Marshal PA Chad Clancy AST Program Manager VA Russ Ellison AST Manager WV Joe Sizemore Assistant Chief Inspector
