WVDEP Proposes Revisions to the De Minimis Table to the Voluntary Remediation & Redevelopment Rule as an Emergency Rule

     On June 2, 2008, the West Virginia Department of Environmental Protection (WVDEP) filed with the West Virginia Secretary of State a proposed emergency rule proposing revisions to the De Minimis Table, Table 60-3B, to the West Virginia Voluntary Remediation & Redevelopment (WV VR&R) Rule, 60 CSR 3. In some cases, a specific proposed value would increase, and in other cases, a proposed value would decrease, i.e., become more stringent or protective.  Additionally, four chemicals would be added to the Table and nine would be deleted.  The proposed revisions were shared with the WV VR&R Technical Subcommittee, which includes representatives of the WVDEP, West Virginia Chamber of Commerce, and National Institute for Chemical Studies, and a licensed remediation specialist, and the subcommittee members concurred with the revisions.

     The West Virginia Voluntary Remediation & Redevelopment Rule establishes cleanup standards based on human health risks in light of the current or future uses of a site.  The De Minimis Table sets forth concentration levels for each of the listed contaminants.  The Table is used extensively in a voluntary remediation to determine if environmental contamination at a site exceeds levels that are protective of human health.  If the environmental contamination at a site exceeds the levels in the Table for the contaminants found on the site, then remediation is necessary.  Based on additional scientific information that has been acquired regarding the toxicity of the chemicals listed in the Table, not all of the values in the Table are current.  Values used to estimate the toxicity for a number of these chemicals have changed, and the protected values for those chemicals have changed, too.  

     The Secretary of State now has 42 days to approve or reject the proposed emergency rule.  In approving or rejecting an emergency rule, the Secretary of State decides if an emergency exists.   Here, the Secretary of State is likely to find that an emergency exists and approve the proposed emergency rule.  Some of the chemicals being revised are known carcinogens and failure to implement the revised Table would result in remediation in properties to levels of protectiveness insufficient to meet the levels mandated elsewhere in the rule to protect human health.  For those chemicals where an increase in value is proposed, however, the existing De Minimis standards may be more restrictive than necessary, and thus require expenditure of resources for unnecessary or excessive remediation.  If the Secretary of State approves the emergency rule, it will take effect July 14, 2008, and be effective for a maximum of 15 months. 

     Meanwhile, the WVDEP must file the emergency rule as a proposed rule and either complete a hearing or comment period or file for a hearing or comment period by July 3, 2008.  In addition, the WVDEP approved legislative rule must be filed with the Legislative Rule-Making Review Committee within 90 days or by September 2, 2008.  If the WVDEP misses either of these deadlines, the emergency rule expires and cannot be re-filed. 

     This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.