West Virginia’s Waste Rules: 2009 Revisions Proposed by WVDOT and WVDEP

The West Virginia Department of Transportation (WVDOT) and West Virginia Department of Environmental Protection (WVDEP) are proposing revisions to three waste-related rules for the 2010 West Virginia Legislative Session. The three rules and proposed revisions are as follows:

Ø                  The WVDOT – Division of Highways is proposing revisions to 157 C.S.R. 7, “Transportation of Hazardous Wastes upon the Roads and Highways”. As its name indicates, Series 7 regulates the transportation of hazardous wastes by vehicle upon the roads and highways of West Virginia. The regulations apply if the transport requires a manifest under Section 6 of the West Virginia Hazardous Waste Management Rule, 33 C.S.R. 20. The current rule incorporates by reference federal and state statutes and regulations in effect as of July 1, 2007 and July 1, 2008, respectively. The proposed revisions merely change the dates to July 1, 2008, to incorporate changes to the federal regulations at 40 C.F.R. and 49 C.F.R. and to July 1, 2009 to incorporate changes made last year to the West Virginia Hazardous Waste Management Rule, 33 C.S.R. 20. The changes are necessary to maintain full federal funding of West Virginia’s hazardous waste program. The proposed rule was filed in the Office of the West Virginia Secretary of State June 26, 2009, and the comment period ends August 1, 2009.

Ø                  The WVDEP – Division of Water and Waste Management is proposing revisions to 33 C.S.R. 1, “Solid Waste Management Rule” (SWMR). The proposed revisions are in Section 4 concerning landfill performance standards and include removing the requirements in 33 C.S.R. § 33-1-4.12.b.3 that free day tonnage count toward monthly/daily totals. The revised language reads: “Free day tonnage must be included in each monthly report, but shall not count against the facility’s monthly or daily tonnage limit.” The proposed rule would also clarify the definition of pick-up truck. Section 4.14.a.2 of the current rule defines a “pick-up truckload” in terms of cargo weight rating and reads as follows: “‘One (1) pick-up truckload, or its equivalent’ means a vehicle manufacturers specified or recommended cargo weight rating. The cargo weight rating does not include the weight of the vehicle, fuel and passengers. For example, a one-half ton pick-up truck may have a cargo weight rating of 1100 lbs. and one ton pick-up truck may have a cargo weight rating of 2000 lbs”. The proposed rule would define a “pick-up truckload” in terms of weight and reads: “‘One (1) pick-up truckload, or its equivalent’ means no more than five hundred (500) pounds”. In addition, technical revisions and corrections are made throughout the proposed rule. The SWMR was last promulgated in 2006. The proposed SWMR was filed in the Office of the West Virginia Secretary of State June 12, 2009, and the comment period ended July 14, 2009.

Ø                  The WVDEP – Division of Waste Management is proposing revisions to 33 C.S.R. 20, “Hazardous Waste Management System” (HWMR). The proposed rule would adopt and incorporate by reference the federal regulations set forth in 40 C.F.R. Parts 260 and 279 that are in effect as of June 1, 2009, with the exception of two federal amendments that U.S. EPA is currently reconsidering. The two exceptions are: (1) the “Revisions to the Definition of Solid Waste” that was published in the Federal Register on October 30, 2008 (73 Fed. Reg. 64668); and (2) the “Expansion of RCRA Comparable Fuel Exclusion” that was published in the Federal Register on December 19, 2008 (73 Fed. Reg. 77954). In addition to updating the date of the federal rules incorporated by reference, the proposed rule would adopt two new federal rules: the Academic Laboratory Waste Rule published on December 1, 2008 (73 Fed. Reg. 72912) and Amendment to Hazardous Waste Code F019 published on June 4, 2008 (73 Fed. Reg. 31756). The Academic Laboratory Waste Rule allows alternative requirements for hazardous waste determination and accumulation of unwanted materials at laboratories owned by colleges and universities and other affiliated entities. The Amendment to Hazardous Waste Code F019 expands the exclusion for F019 waste code, sludges generated from the chemical conversion coating of aluminum using a zinc phosphating process. The F019 waste code exclusion applies only to the automobile or light truck manufacturing industry. The HWMR was last promulgated in 2009. The proposed HWMR was filed in the Office of the West Virginia Secretary of State June 10, 2009, and the comment period ended July 21, 2009. For additional information on the waste rules being proposed by the WVDOT and WVDEP for adoption by the 2010 West Virginia Legislature, contact Gale Lea Rubrecht at 304-340-1200 or galelea@jacksonkelly.com. 

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