Articles, Newsletters and Advisories
As we begin the New Year, many of us in the environmental sector automatically look at our new calendars and realize that this is the beginning of a new season of annual regulatory requirements. These requirements range from annual emissions statements and waste reporting to various certification and registration renewals. For those that have containers at one or more sites, you may be (or should be) asking yourself whether any of those containers must be registered pursuant to Pennsylvania’s Storage Tank and Spill Prevention Act, 35 P.S. § 6021, et seq.
What is the Tank Act?
The Tank Act was enacted on July 6, 1989, to: (i) protect surface waters and soil from releases of regulated substances from storage tanks; (ii) provide a statutory mechanism for the cleanup of such releases; and (iii) provide a statutory mechanism to fund the cleanups of releases from underground storage tanks. The regulations promulgated pursuant to the Tank Act can be found in 25 Pa. Code Chapter 245. These regulations cover both aboveground storage tanks (ASTs) and underground storage tanks (USTs).
How the Tank Act applies
Like many environmental statutes, applicability of the Tank Act is dependent on definitions, most notably the definitions of an AST and a UST. Without directly quoting 25 Pa. Code Chapter 245.1 for the definition of an AST, which is too long for this article, there are five main requirements to meet the definition of an AST. The tank must: (i) be aboveground; (ii) be stationary; (iii) have a capacity greater than 250 gallons; (iv) contain a regulated substance; and (v) the tank does not meet any of the 19 exemptions from the definition of an AST.
Similarly, the four main requirements in the definition of a UST are: (i) the tank must be below ground; (ii) the tank must have a capacity greater than 110 gallons; (iii) the tank must contain a regulated substance; and (iv) the tank must not meet any of the 19 exemptions from the definition of a UST.
Confusion has surfaced regarding several potential issues with these definitions, such as whether an AST is considered to be stationary or if a tank located within a vault below ground is considered a UST. But in general, if a tank appears as though it may meet either of these definitions, it may be subject to the Tank Act and applicability should be closely evaluated.
Exemptions for oil and gas operations
Typically, there are four exemptions that are applied to oil and gas operations. These exemptions include:
- Pipeline facilities, including gathering lines, regulated under the Natural Gas Pipeline Safety Act of 1968, 49 U.S.C.A. App. § 1671 et seq. (NGPSA.)
- A nonstationary tank liquid trap or associated gathering lines directly related to oil and gas production or gathering operations.
- A flow-through process tank, including, but not limited to, a pressure vessel and oil and water separators.
- Tanks used to store brines, crude oil, drilling/frac fluids and similar substances or materials and are directly related to the exploration, development or production of crude oil or natural gas regulated under the Oil and Gas Act, 58 P. S. § 601 et seq.
All four of these exemptions can be found under the definition of an AST, whereas only the first three of these exemptions can be found under the UST definition.
It can be troublesome to determine whether any of these exemptions apply at a given facility. For example, the determination of whether or not all equipment at a pipeline facility regulated under the NGPSA is covered by the first exemption listed above often is a fact-specific determination based on the nature of the equipment and how it is connected to the transmission lines. Further, although oil/water separators are exempted from the definitions of an AST and UST, tanks connected to oil/water separators that are used to store the oil are not exempted.
In addition, questions have surfaced regarding the phrases, “directly related to oil and gas production or gathering operations,” in the second exemption and “directly related to the exploration, development or production of crude oil or natural gas,” in the fourth exemption.
The Department of Environmental Protection has provided some guidance on the applicability of the Tank Act to oil and gas operations. Based on presentations and discussions with the Storage Tank Advisory Committee, DEP has maintained a rule of thumb that tanks located on a well pad are not subject to the Tank Act. However, DEP has indicated that ASTs or USTs located at an ancillary facility, such as a site used only for storage of frac fluid or a compressor station, may be subject to the Tank Act. With that being said, it is still possible for tanks at ancillary facilities to meet one or more of the remaining exemptions from the definitions of an AST and UST.
For tanks that are regulated by the Tank Act, there are a host of requirements that must be met depending on the capacity, contents and use of the tank. Some of these requirements, such as registrations and inspections, are recurring requirements that should be reviewed and scheduled on your 2017 calendars.
Currently, DEP is considering widespread changes to the storage tank regulations including, but not limited to, what modifications may be performed on tanks based on specific tank handler certifications, the permitting process and permit-by-rule requirements, and leak detection and prevention requirements. DEP is working with the Storage Tank Advisory Committee, and the revisions are anticipated to be proposed in the Pennsylvania Bulletin in 2017.
For additional information about developments described in this article, contact Timothy S. Bytner at 412-394-6504 or tbytner@ babstcalland.com or Jean M. Mosites at 412-394-6468 or firstname.lastname@example.org.