(a) The standards identified in subsections (b) and (c) of this section are applicable when both of the following criteria are met:
  (1) the vessel meets the definition of an aboveground storage vessel as defined in §338.2 of this title (relating to Definitions); and
  (2) the aboveground storage vessel satisfies the applicability criteria of the listed standard.
(b) Aboveground Storage Vessels in service before or on September 1, 2027. For an existing aboveground storage vessel, as defined in §338.2 of this title that is in service before or on September 1, 2027, all of the following performance standards for safety shall apply:
  (1) 40 Code of Federal Regulations (CFR) Part 68, Chemical Accident Prevention Provisions are incorporated by reference as stated in the paragraphs below:
    (A) 40 CFR §68.3, Definitions, is incorporated by reference as amended through December 19, 2019 (84 FR 69913);
    (B) 40 CFR §68.10, Applicability, is incorporated by reference as amended through December 19, 2019 (84 FR 69913). The compliance dates specified in this chapter apply instead of the dates listed in 40 CFR §68.10;
    (C) 40 CFR §68.12, General Requirements, is incorporated by reference as amended through December 19, 2019 (84 FR 69913);
    (D) 40 CFR §68.15, Management, is incorporated by reference as amended through June 20, 1996 (61 FR 31718);
    (E) 40 CFR §68.48, Safety Information, is incorporated by reference as amended through June 20, 1996 (61 FR 31718);
    (F) 40 CFR §68.50, Hazard Review, is incorporated by reference as amended through December 19, 2019 (84 FR 69914);
    (G) 40 CFR §68.56, Maintenance, is incorporated by reference as amended through January 31, 1994 (59 FR 4493);
    (H) 40 CFR §68.65, Process Safety Information, is incorporated by reference as amended through December 19, 2019 (84 FR 69914);
    (I) 40 CFR §68.67, Process Hazard Analysis, is incorporated by reference as amended through December 19, 2019 (84 FR 69914);
    (J) 40 CFR §68.73, Mechanical Integrity, is incorporated by reference as amended through January 31, 1994 (59 FR 4493);
    (K) 40 CFR §68.75, Management of Change, is incorporated by reference as amended through January 31, 1994 (59 FR 4493);
    (L) 40 CFR §68.77, Pre-Startup Review, is incorporated by reference as amended through January 31, 1994 (59 FR 4493);
    (M) All sections of 40 CFR Part 68, Subpart E, Emergency Response, (40 CFR §§68.90, 68.93, 68.95, 68.96) are incorporated by reference as amended through December 19, 2019 (84 FR 69915);
    (N) All sections of 40 CFR Part 68, Subpart G, Risk Management Plan, (40 CFR §§68.150, 68.151. 68.152, 68.155, 68.160, 68165, 68.168, 68.170, 68.175, 68.180, 68.185, 68.190, 68.195) are incorporated by reference as amended through April 9, 2004 (69 FR 18832); and
    (O) All sections of 40 CFR Part 68, Subpart H, Other Requirements, 40 CFR (§§68.200, 68.210, 68.215, 68.220) are incorporated by reference as amended through December 19, 2019 (84 FR 69916).
  (2) 40 CFR Part 112, Oil Pollution Prevention standards are incorporated by reference as stated in the paragraphs below:
    (A) 40 CFR §112.1, General Applicability, is incorporated by reference as amended through April 18, 2011 (76 FR 21550);
    (B) 40 CFR §112.2, Definitions, is incorporated by reference as amended through April 21, 2020 (85 FR 223399);
    (C) 40 CFR §112.3, Requirement to Prepare and Implement a Spill Prevention, Control, and Countermeasure Plan, is incorporated by reference as amended through November 22, 2011 (76 FR 72124);
    (D) 40 CFR §112.6, Qualified Facilities Plan Requirements, is incorporated by reference as amended through November 13, 2009 (74 FR 58810);
    (E) 40 CFR §112.7, General Requirements for Spill Prevention, Control, and Countermeasure Plans, is incorporated by reference as amended through November 13, 2009 (74 FR 58810);
    (F) 40 CFR §112.8, Spill Prevention, Control, and Countermeasure Plan requirements for onshore facilities (excluding production facilities) is incorporated by reference as amended through December 5, 2008 (73 FR 74304);
    (G) 40 CFR §112.12, Spill Prevention, Control, and Countermeasure Plan Requirements, is incorporated by reference as amended through December 5, 2008 (73 FR 74305);
    (H) 40 CFR §112.20, Facility Response Plans, is incorporated by reference as amended through July 17, 2002, (67 FR 47151); and
    (I) 40 CFR §112.21, Facility Response Training and Drills/Exercises, is incorporated by reference as amended through June 30, 2000, (65 FR 40798). Note the term "Regional Administrator" should be replaced with "executive director".
  (3) The following sections from American Petroleum Institute (API) Standard 653: Tank Inspection, Repairs, Alteration, and Reconstruction, Fifth Edition, November 2014 (Addendum 1, April 2018 and Addendum 2, May 2020) are incorporated by reference, as stated in the paragraphs below for aboveground storage vessels as defined in §338.2 of this title (relating to Definitions):
    (A) Section 4.3: Tank Shell Evaluation and any applicable Annex found in API 653;
    (B) Section 4.4: Tank Bottom Evaluation and any applicable Annex found in API 653;
    (C) Section 4.5: Tank Foundation Evaluation and any applicable Annex found in API 653;
    (D) Section 6.2: Inspection Frequency Considerations and any applicable Annex found in API 653;
    (E) Section 6.3: Inspections from the Outside of the Tank and any applicable Annex found in API 653;
    (F) Section 6.4: Internal Inspection and any applicable Annex found in API 653;
    (G) Section 8: Design Considerations for Reconstructed Tanks and any applicable Annex found in API 653; and
    (H) Section 9: Tank Repair and Alteration and any applicable Annex found in API 653.
  (4) The following Sections from API Standard 2350: Overfill Prevention for Storage Tanks in Petroleum Facilities, Fifth Edition, September 2020 (Errata 1, April 2021), are incorporated by reference, as stated in the paragraphs below for aboveground storage vessels as defined in §338.2 of this title (relating to Definitions) with an internal design pressure not more than 0.5 psig:
    (A) Section 4: Overfill Prevention System (OPS) and any applicable Annex found in API 2350, and
    (B) Section 5: Overfill Prevention Systems and any applicable Annex found in API 2350.
  (5) National Fire Protection Association (NFPA) 30, Chapter 22 (Edition: 2021) Section 22.8: Fire Protection for Aboveground Storage Tanks and any applicable Annex are incorporated by reference, or API Recommended Practice 2001, 10th Edition, July 2019, Sections 5, 6, 7, 8, 9, 10, 11 and any applicable Annex are subject to the protocol of the applicable standard.
  (6) For all aboveground storage vessels that have not installed a fire suppression system under paragraph (5) of this subsection, API Recommended Practice 2001, 10th Edition, July 2019, Sections 5, 6, 7, 8, 9, 10, 11 and any applicable Annex are incorporated by reference and shall apply.
(c) Aboveground storage vessels placed into service after September 1, 2027. For a new aboveground storage vessel placed into service after September 1, 2027, all of the following performance standards for safety shall apply:
  (1) All of the standards listed in subsection (b) of this section,
  (2) API 650: Welded Tanks for Oil Storage, Thirteen Edition, March 2020 (Errata 1, January 2021), and any applicable Annex are incorporated by reference, and
  (3) NFPA 30, Chapter 22 (Edition: 2021) Section 22.4: Location of Aboveground Storage Tanks and any applicable Annex are incorporated by reference, except for reconstruction standards at an original storage vessel location.
(d) The owner or operator shall make any modifications or retrofits necessary for compliance with the standards in subsection (b) of this section during the next out-of-service maintenance periods, unless the owner or operator obtains written approval from the executive director that the necessary modifications or retrofits are not technically feasible.

Source Note: The provisions of this §338.5 adopted to be effective August 24, 2023, 48 TexReg 4487