2015 WV Legislative Session Briefing. SOOGA Spring Meeting Marietta, Ohio April 23, 2015

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1 2015 WV Legislative Session Briefing SOOGA Spring Meeting Marietta, Ohio April 23, 2015

2 IOGAWV s Lobbying Team Charlie Burd Executive Director, IOGAWV Marc Harman Principal: Hartman, Hartman, and Mullens Phil Reale Principal: Law Office of Philp A. Reale, PLLC Jim Fealy Law Office of Philp A. Reale, PLLC David Yaussy Spilman, Thomas, & Battle, PLLC Mark Clark Spilman, Thomas, & Battle, PLLC George Patterson Bowles Rice, LLP

3 2015 LEGISLATIVE SESSION DYNAMICS FIRST SHIFT FROM DEMOCRATIC TO REPUBLICAN RULE IN OVER 8 DECADES. 34 Senators: 18 Republicans, 16 Democrats (Shift of 7) 100 Delegates 64 Republicans, 34 Democrats (Shift of 18) 1,876 bills introduced: Senate 585 introduced 135 passed House 1,607 introduced 127 passed 2, The 12.0% passage is slightly above average.

4 IOGAWV s TOP 2015 LEGISLATIVE PRIORITY Reform of the Aboveground Ground Storage Tank Act Achieved with the passage of Senate Bill 423

5 Senate Bill 423: a NON-COMPREHENSIVE Summary ASTs are still defined as those tanks with a capacity greater than 1,320 gallons of fluids and includes all ancillary pipes and dispensing systems up to the first point of isolation. Virtually ALL tanks are still subject to the registration requirements imposed by the Act. The registration you should have completed on or before October 1, 2014 will meet the existing requirement. If you HAVE NOT registered your tanks you need to ASAP!!

6 Senate Bill 423: Continued Certain categories of containers have, by definition, been removed as AST s, they include: Shipping containers and barges Process vessels Tanks containing drinking water for human or animal consumption Surface water or groundwater, Food or food-grade materials for human or animal consumption Tanks located on a farm used exclusively for farm purposes Swimming pools Empty tanks held in inventory or offered for sale

7 Senate Bill 423: Continued What else is not subject to the (amended) AST Act: Pipeline facilities, including gathering lines, regulated under the Natural Gas Pipeline Safety Act of 1968 or the Hazardous Liquid Pipeline Safety Act of 1979; An intra-state pipeline facility regulated by the West Virginia Public Service Commission or otherwise regulated under any state law comparable to the provisions of either the Natural Gas Pipeline Safety Act of 1968 or the Hazardous Liquid Pipeline Safety Act of 1979; Mobile tanks are not aboveground storage tanks nor are they subject to any of the requirements of the amended Act unless they remain in one location on a continuous basis for 365 days (compared to only 60 days in the 2014 Act). Thus, tanks that are relocated at least every 365 days are not ASTs and not required to be registered. Whether mobile tanks that have been registered can be removed from the registration records will need to be addressed with WVDEP in the months ahead.

8 Senate Bill 423: Continued The primary focus of SB-423 is on two categories of regulated tanks. Level 1 regulated tanks are those determined to pose the greatest potential for harm to public drinking water supplies, and encompass: An ASTs located within a zone of critical concern ( ZCC ), source water protection area, public surface water influenced groundwater supply source area, or any other AST designated by WVDEP as a Level 1 tank; 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, EXCEPTION: ASTs containing petroleum are not Level 1 tanks based solely upon containing constituents on these lists ASTs with a capacity of 50,000 gallons or more, regardless of contents or location. Oil and gas tanks containing oil or brine water will not be Level 1 tanks, unless they are located within a ZCC, or have a capacity of 50,000 gallons or more, or are designated as Level 1 by WVDEP.

9 Senate Bill 423: Continued The primary focus of SB-423 is on two categories of regulated tanks. Level 2 regulated tanks are those located within a zone of peripheral concern, ( ZPC ) which are deemed to pose a lesser potential for harm to public drinking water supplies while still meriting some degree of regulation. The ZPC is a new concept and simply extends an additional 5-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. Presumably, WVDEP will identify for AST owners those tanks that are located within a ZPC once that area is calculated and mapped.

10 Senate Bill 423: Continued The WVDEP is directed to develop a regulatory program by use of rulemaking for new and existing regulated ASTs and secondary containment that sets out tiered requirements for Level 1 and Level 2 tanks and takes into consideration the size, location and contents of the tanks. If you are currently operating under an individual, site-specific permit or plan, such as: Chapter 22- Vertical wells Chapter 22-6 Horizontal wells A plan under 35CRS 1 SPCC Those permits or plans can be modified at your request to include conditions pertaining to ASTs that WVDEP deems sufficient to protect waters of the State, in combination with those practices and protections already in place. Any AST owner or operator whose permit/plan has been amended by WVDEP to address ASTs and secondary containment shall be deemed compliant with the requirements of the AST Act, so long as the registration requirements have been met.

11 Senate Bill 423: Continued Regulated ASTs and the associated secondary containment structure must be evaluated by a qualified registered professional engineer licensed in West Virginia, or by an American Petroleum Institute or Steel Tank Institute certified inspector, or by a person holding certification under another program approved by the WVDEP. The certification of the AST and associated secondary containment may be signed by a person designated by the owner or operator, in addition to any person qualified to perform the evaluation as described above. The amended Act requires evaluation and certification of ASTs only after standards have been established by rulemaking. Owners or operators of regulated ASTs are still required to submit detailed spill prevention and response ( SPRP ) plan to WVDEP. The amended Act authorizes regulated AST owners or operators to certify that they are subject to an alternative plan in lieu of preparing and submitting an SPR plan. The amended Act requires updates to the SPR plans no less frequently than every 5 years, instead of 3 years as required in the 2014 Act.

12 Senate Bill 423: Continued FEES: WVDEP is authorized to collect registration fees of $40.00 per AST placed in service prior to July 1, 2015 and $20.00 per AST placed into service on or after July 1, It is anticipated that WVDEP will send invoices to AST owners rather promptly following the June 12, 2015 effective date of these amendments. The fees associated with maintaining the Aboveground Storage Tank Administrative Fund and Protect Our Water Fund will be assessed only upon regulated ASTs. The Protect Our Water Fund will be capped at no more than $1 million. The fees associated with those funds will be the subject of rulemaking in the coming months, including emergency rules if WVDEP so elects. This fee is separate and distinct from the annual registration fee. FRIENDLY ADVICE: If you operate tanks in West Virginia--Register them, pay your fees, and comply with the statute. Fees will be less costly than the fines for operating an unregistered tanks.

13 Other Important Legislation SB-280 Well work permit transfers Authorizes the transfer of well work permits if transferee meets requirements to hold a wellwork permit, if the transfer application is filed on WVDEP approved forms, provides for a $250 review fee, has a noticing provision W/I 90-days of transfer. SB-390 Expedited cost recovery of N/G utility infrastructure projects Authorizes the WV Public Service Commission to approve expedited cost recovery of natural gas utility infrastructure projects deemed just and reasonable and in the public interest. SB-13 Open & Obvious doctrine for premises liability No duty of care to protect others against dangers that are open, obvious, reasonably apparent or as well known to the person injured as they are to the owner or occupant, and shall not be held liable for civil damages for any injuries sustained as a result of such dangers. Real property possessor's liability for trespassing Owner owes no duty of care to a trespasser except in those circumstances where a common-law right-of-action existed as of the effective date of this section, including the duty to refrain from willfully or wantonly causing the trespasser injury.

14 Other Important Legislation SB-18 Wage Payment & Collection Act (21-5-3) All companies must settle wages paid to employees at least twice every month and with no more than nineteen days between settlements. SB-12 Wage Payment & Collection Act (21-5-4) The bill clarifies that all wages due a terminated employee must be paid in the next regular pay period, payment can be made if requested by the employee, that bonuses be paid in accordance with contract provisions or when normally paid and liquidated damages are limited to 2 time the unpaid amount.