From the Elk River Spill to Today: West Virginia’s AST Act and EPA’s Hazardous Substance FRP Rule
On January 9, 2014, a chemical release from Freedom Industries contaminated the Elk River near Charleston, West Virginia. The incident disrupted drinking water service for approximately 300,000 people and exposed serious weaknesses in the oversight of aboveground chemical storage tanks.
West Virginia responded by enacting the Aboveground Storage Tank Act, commonly known as the AST Act. The law created a statewide program for registering tanks, evaluating their potential threat to drinking water, establishing inspection requirements, and improving spill prevention and emergency response planning.
A decade later, facilities must also consider a federal planning requirement for certain Clean Water Act hazardous substances. The EPA rule has a complicated legal history and is currently being reconsidered, but it has not disappeared.
The Chemical Spill That Changed West Virginia Tank Regulation
The Freedom Industries facility was located along the Elk River, approximately 1.5 miles upstream from a West Virginia American Water drinking water intake.
According to the U.S. Chemical Safety and Hazard Investigation Board, approximately 10,000 gallons of a chemical mixture containing crude methylcyclohexanemethanol, commonly called MCHM, and propylene glycol phenyl ethers were released from an aboveground storage tank.
The chemical escaped through holes in the tank floor, passed through a deteriorated secondary containment system, and entered the river. The release resulted in a do-not-use water order affecting residents, businesses, hospitals, schools, and government facilities across nine counties.
The subsequent CSB investigation identified several significant failures:
Corrosion had created holes in the tank floor.
The facility lacked records showing that the tank had received formal inspections consistent with recognized industry standards.
The secondary containment dike contained cracks and openings that allowed the chemical to escape.
Available health and toxicological information about the released chemicals was limited.
Public agencies and the water utility were not adequately prepared to communicate the potential risks.
The incident demonstrated that a relatively modest chemical release can cause widespread consequences when storage tanks are located near a public water supply. It also showed that tank integrity, secondary containment, source-water protection, emergency notification, and response planning cannot be treated as separate issues.
West Virginia’s Legislative Response
In response to the spill, the West Virginia Legislature passed Senate Bill 373. The bill included the Aboveground Storage Tank Act in West Virginia Code §22-30 and the Public Water Supply Protection Act in §22-31. The legislation was signed on April 1, 2014, and became effective on June 6, 2014.
The AST Act was later amended, most significantly in 2015 and again in 2026. The West Virginia Department of Environmental Protection administers the program through its Aboveground Storage Tank Program and the implementing requirements in 47 CSR 63.
The program does more than create an inventory of tanks. Its requirements address tank classification, inspection, certification, secondary containment, spill prevention, emergency notification, financial responsibility, corrective action, and closure.
Which Tanks Are Covered by the AST Act?
Under the current statute, an aboveground storage tank generally means a stationary device that:
Has a capacity greater than 1,320 gallons.
Contains liquid at standard temperature and pressure.
Is constructed primarily from non-earthen materials.
Has more than 90 percent of its capacity above the ground.
The definition also includes associated piping and dispensing equipment up to the first point of isolation. Certain mobile containers may be considered ASTs if they remain at the same location continuously for 365 days or longer.
The law contains exclusions for several categories of equipment, including certain process vessels, water storage tanks, wastewater treatment vessels, transportation containers, and electrical equipment. The applicability determination must therefore consider the tank’s capacity, contents, construction, function, location, and regulatory status.
Not every registered tank is subject to the full Level 1 or Level 2 requirements. Some tanks are required only to be registered and labeled, while others are excluded from the program. Owners should document the basis for each classification instead of assuming that all aboveground tanks at a facility are treated identically.
Core WVDEP AST Requirements
Facilities with covered tanks may be subject to several important requirements.
Registration and Certificates to Operate
Covered tanks must be registered with WVDEP before being placed into service. Registration information includes the tank’s location, capacity, age, construction, installation date, contents, owner or operator, and applicable environmental permit numbers.
Level 1 and Level 2 tanks must also maintain a current Certificate to Operate and pay the applicable annual fees.
Tank Identification and Signage
Required signage generally includes the tank registration number, owner or operator emergency contact information, and the WVDEP spill-reporting hotline. The information must be visible and maintained in legible condition.
Secondary Containment
Secondary containment must generally hold the full capacity of the largest single tank within the containment area, plus sufficient freeboard for precipitation.
The containment must be sufficiently impervious to prevent a release from escaping before it can be detected and removed. Earthen containment systems must be capable of retaining the released material for at least 72 hours.
Inspection and Certification
Level 1 and Level 2 tanks require annual certification. The required frequency of inspections by a qualified professional depends on whether the tank is classified as Level 1 or Level 2.
Inspections should address more than the visible exterior of the tank. Depending on the tank’s construction and applicable industry standard, the evaluation may include foundations, shells, roofs, floors, appurtenances, corrosion protection, piping, leak-detection systems, overfill protection, and secondary containment.
Spill Prevention Response Plans
Level 1 and Level 2 tank owners must prepare and submit a Spill Prevention Response Plan, or SPRP. Plans must be reviewed and resubmitted at least once every five years and revised when significant facility or tank changes occur.
A compliant plan typically addresses:
The facility’s operations and tank inventory.
Preventive maintenance and tank-inspection procedures.
Leak detection and monitoring.
Employee training.
Emergency responsibilities and response procedures.
Agency and public water system notification.
Downstream water intakes that could be affected.
Available response equipment and contractors.
Certain facilities may be able to use an approved Groundwater Protection Plan or federal Spill Prevention, Control, and Countermeasure Plan to satisfy portions of the requirement. However, the alternative plan must contain the information required by the AST program and remains subject to WVDEP review.
Release Reporting
Confirmed releases must be reported immediately to the appropriate emergency management organization and to WVDEP. Suspected or threatened releases generally must be reported within 24 hours unless the owner determines within that period that the condition was a false alarm.
The WVDEP release-reporting guidance applies to Level 1 tanks, Level 2 tanks, and tanks subject only to registration and labeling requirements.
Closure
Before permanently closing a regulated AST, the owner or operator must generally submit a written closure plan to WVDEP at least 30 days in advance. The tank, piping, and associated equipment must be emptied and cleaned, and the closure process may require an investigation to determine whether a release occurred.
Level 1 Tanks: The Highest Regulatory Tier
Level 1 tanks are considered to present the greatest potential threat because of their location, contents, or capacity.
A tank may be classified as Level 1 if it meets one or more of the following conditions:
It is located within a Zone of Critical Concern, a source-water protection area, or certain areas associated with a public groundwater supply influenced by surface water.
It contains a CERCLA hazardous substance or another listed chemical at a concentration of at least one percent.
It has a capacity of 50,000 gallons or more, regardless of its contents or location.
The statute contains special provisions and exceptions for certain petroleum and oil and gas production tanks. These exceptions should be evaluated carefully before assigning a classification.
Understanding the Zone of Critical Concern
The Zone of Critical Concern is based on the estimated travel time of a contaminant to a public water intake. It generally includes the area from which a released contaminant could reach the intake within approximately five hours.
The zone extends laterally from the waterway, generally 1,000 feet from each bank of the principal stream and 500 feet from the banks of qualifying tributaries.
Because these boundaries are model-based, they can change when an intake is added, relocated, reclassified, or newly modeled. A 2026 amendment provides a nine-month transition period after written notice for certain existing tanks brought into a newly designated zone on or after July 1, 2026.
Level 1 Inspection Frequency
Level 1 tanks require annual certification.
A qualified inspector must perform the initial inspection and another inspection at least every third year. During the intervening years, the owner or operator may complete the annual certification if the required inspection and record-review conditions are satisfied.
Qualified inspectors may include appropriately licensed professional engineers or individuals holding recognized API, STI, or other WVDEP-approved credentials.
WVDEP must also inspect Level 1 tanks at least once every three years. Recent statutory changes allow the use of remote nondestructive examination technologies for certain periodic physical inspections, potentially reducing the need for confined-space entry while still evaluating tank integrity.
Level 1 Financial Responsibility
Level 1 tank owners must demonstrate financial responsibility based on aggregate storage capacity. The amount is generally calculated at $0.20 per gallon, with a minimum of $5,000.
Acceptable mechanisms may include insurance, a surety bond, letter of credit, guarantee, or an approved demonstration of self-insurance.
Level 2 Tanks: Lower Risk Does Not Mean Low Risk
A Level 2 tank is generally a regulated tank located within the Zone of Peripheral Concern that does not meet the criteria for classification as Level 1.
The Zone of Peripheral Concern represents an additional five hours of estimated contaminant travel beyond the Zone of Critical Concern. Together, the two zones generally represent a total travel time of approximately ten hours to a public water intake.
Level 2 tanks can still affect public water supplies. The classification reflects a longer estimated response window or a lower relative hazard, not the absence of a credible release scenario.
Level 2 Inspection Frequency
Level 2 tanks also require annual certification, but qualified inspections occur less frequently.
A qualified inspector must conduct the initial inspection and another inspection at least every fifth year. The owner or operator may complete the annual certifications during the intervening years if the applicable requirements are met.
WVDEP establishes inspection protocols for Level 2 tanks, but the statute does not impose the same mandatory three-year WVDEP inspection cycle that applies to Level 1 tanks.
Level 2 Financial Responsibility
Financial responsibility for Level 2 tanks is generally calculated at $0.10 per gallon of aggregate storage capacity, with a minimum of $5,000.
What Level 1 and Level 2 Tanks Have in Common
The difference between the two levels is primarily the degree of regulatory attention and the frequency of qualified inspections. Both classifications can trigger substantial compliance responsibilities.
Owners and operators should expect to address:
Registration and annual fees.
A current Certificate to Operate.
Annual tank certification.
Tank integrity and corrosion prevention.
Secondary containment.
Spill prevention and response planning.
Employee training and emergency responsibilities.
Public water system and emergency agency notification.
Release reporting and corrective action.
Recordkeeping.
Financial responsibility.
Proper tank closure.
A facility should not evaluate these items independently. Tank inspection findings should inform maintenance planning, the SPRP, emergency response procedures, and capital improvement decisions.
The Federal FRP Rule: Born From Litigation, Now Under Reconsideration
The EPA’s hazardous-substance Facility Response Plan rule is sometimes described as currently being under litigation. That description requires clarification.
In 2019, environmental organizations sued EPA for failing to issue hazardous-substance response-planning regulations required by Section 311(j)(5) of the Clean Water Act. The case was resolved through a 2020 consent decree that required EPA to complete the rulemaking process.
EPA published the final Clean Water Act hazardous-substance FRP rule on March 28, 2024. It became effective on May 28, 2024, and is codified in 40 CFR Part 118.
Therefore, the requirement resulted from litigation, but the original lawsuit was resolved. The current uncertainty comes from EPA’s administrative reconsideration of the rule and a proposed extension of the compliance deadline.
Which Facilities May Need a Federal Hazardous-Substance FRP?
The rule establishes a three-part applicability evaluation.
A facility must first determine whether:
The maximum onsite quantity of any Clean Water Act hazardous substance equals or exceeds 1,000 times its reportable quantity under 40 CFR 117.3.
The facility is located within one-half mile of navigable water or a conveyance that could transport a release to navigable water.
The facility meets at least one substantial-harm criterion.
The substantial-harm criteria consider whether a discharge could:
Affect a public water system.
Injure fish, wildlife, or sensitive environments.
Injure public receptors.
Repeat a reportable discharge that reached navigable water during the preceding five years.
Facilities meeting the first two screening criteria must complete the substantial-harm evaluation. Even if the facility concludes that none of the substantial-harm criteria apply, it must submit a certification form with supporting calculations and documentation.
EPA may also designate a facility as subject to the rule on a case-by-case basis. Members of the public may petition EPA to evaluate a facility for potential designation.
What Must the Federal FRP Address?
A federal hazardous-substance FRP is more than a general spill-response procedure. It must be based on a facility-specific worst-case discharge analysis and address the resources required to respond.
Required subjects include:
Facility and owner information.
Hazard evaluation.
Worst-case discharge calculations.
Historical releases.
Emergency notification procedures.
Qualified individual responsibilities.
Response personnel and equipment.
Contractor availability.
Detection and response procedures.
Evacuation planning.
Disposal of recovered materials.
Training, exercises, and drills.
Facility self-inspections.
Emergency actions for the first two hours of a response.
Coordination with public water systems and emergency response organizations.
The hazardous-substance FRP requirement is separate from the oil FRP requirements in 40 CFR Part 112 and the Risk Management Program requirements in 40 CFR Part 68. A facility may be subject to more than one of these programs.
What Is the Current Compliance Deadline?
As of July 2026, the binding deadline in 40 CFR Part 118 remains June 1, 2027.
EPA issued an advance notice of proposed rulemaking in February 2026 to reconsider portions of the rule. In March 2026, EPA also proposed extending the compliance deadline from June 1, 2027, to June 1, 2030.
That extension remains proposed. Until EPA publishes a final rule changing the deadline, regulated facilities should continue working toward the June 1, 2027, compliance date.
What Facilities Should Do Now
Facilities should not wait for an inspection, spill, or final decision on EPA’s proposed deadline extension before evaluating their tanks and chemical inventories.
A reasonable evaluation should include:
Confirming that the facility’s AST registration is accurate.
Documenting which tanks are excluded, registration-only, Level 1, or Level 2.
Verifying current source-water protection zone boundaries.
Reviewing tank inspection dates and qualified inspector credentials.
Evaluating secondary containment capacity and condition.
Updating the Spill Prevention Response Plan.
Verifying public water system and emergency notification information.
Comparing chemical inventories against the Clean Water Act hazardous-substance list and reportable quantities.
Determining whether the federal one-half-mile screening criterion is met.
Documenting substantial-harm calculations and assumptions.
Tracking EPA’s reconsideration without assuming that a proposed deadline extension is final.
The lesson from the Freedom Industries spill remains relevant. Tank compliance is not merely an equipment-management exercise. It is a source-water protection, emergency preparedness, and business-continuity issue.
Appalachian EHS can help facilities evaluate AST inventories, review Level 1 and Level 2 classifications, assess spill-prevention programs, and develop a practical compliance action plan for state and federal requirements.