The West Virginia Department of Environmental Protection (DEP) has announced the public hearing schedule for its proposed 2011 legislative rules. The proposed rules include revisions to the West Virginia Hazardous Waste Management System Rule, 33 CSR 20, and revisions to two rules impacting remediation activities -- Regulations Governing Groundwater Standards, 47 CSR 12; and Monitoring Well Design Standards, 47 CSR 60. The public hearing for these rules will take place on Thursday, July 15, 2010, beginning at 6:00 p.m. at DEP’s Headquarters located at 601 57th Street S.E. in Charleston, West Virginia. Comments are due by the close of the public hearing on July 15, 2010. The proposed revisions are discussed below.
Ø Hazardous Waste Management System Rule, 33 CSR 20: The proposed revisions to the state Hazardous Waste Management System Rule would adopt the federal regulations set forth in 40 CFR Parts 260 through 279 that are in effect as of June 1, 2010, with the exception of two federal amendments. One exception is the federal amendment titled “Revisions to the Definition of Solid Waste” Rule. 73 Fed. Reg. 64,668 (Oct. 30, 2008) that is currently being reconsidered by U.S. EPA. See Energy & Environment Monitor articles titled “Obama Administration EPA Reversing Bush Administration Relaxation of RCRA Rules by Considering Sierra Club Petition to Reconsider,” posted June 8, 2009, and “Sierra Club Takes U.S. EPA to Court on Its Revisions to the Definition of Solid Waste,” posted March 18, 2009. The other exception is the federal amendment titled “Expansion of RCRA Comparable Fuel Exclusion” that was adopted at the end of the Bush Administration (73 Fed. Reg. 77,954, December 19, 2008) and that was withdrawn by the Obama EPA effective June 15, 2010. 75 Fed. Reg. 33,712 (June 15, 2010). The federal amendment would have classified as non-hazardous waste fuels produced from hazardous secondary materials which, when burned in industrial boilers under specified conditions, generate emissions that are comparable to emissions from burning fuel oil in those boilers. See Energy & Environment Monitor article titled “New Emission-Comparable Fuel Exemption from Classification as Hazardous Waste,” posted January 23, 2009. Because U.S. EPA was reconsidering both the “Revisions to the Definition of Solid Waste” and “Expansion to [sic] RCRA Comparable Fuel Exclusion” last year, the current state Hazardous Waste Management System Rule expressly excludes both federal rules from incorporation by reference. Now that U.S. EPA has withdrawn the “Expansion of RCRA Comparable Fuel Exclusion,” the proposed revisions would strike the reference to “Expansion to [sic] RCRA Comparable Fuel Exclusion” from the exclusion provision of the final rule at §33-20-1.10.
In addition, DEP’s proposed revisions would also adopt two new federal rules: (1) “Revisions to the Requirements for Transboundary Shipments of Hazardous Waste Between OECD [Organization for Economic Cooperation and Development] Member Countries” that was published January 8, 2010 (75 Fed Reg. 1236); and (2) “Hazardous Waste Technical Corrections and Clarifications Rule” that was published March 18, 2010 (75 Fed. Reg. 12,989). However, on June 4, 2010, U.S. EPA published a partial withdrawal of its March 18, 2010 “Hazardous Waste Technical Corrections and Clarifications Rule” (75 Fed. Reg. 31,716). The technical corrections and clarifications that were not withdrawn took effect June 16, 2010.
In the June 4, 2010 partial withdrawal, U.S. EPA withdrew six of the original amendments from the March 18, 2010 direct final rule that DEP is proposing to adopt. U.S. EPA received adverse comment on four specific amendments and therefore withdrew them effective June 4, 2010. The four specific amendments are: (1) 40 CFR §262.34(a) related to the applicability of the 90-day hazardous waste accumulation time only to large quantity generators who are defined as including generators who generate “greater than 1 kg of acute hazardous waste…in a calendar month.”; (2) 40 CFR §262.34(a)(2) related to a new requirement that the accumulation start date be clearly marked and visible for inspection on each tank; (3) 40 CFR §262.34(a)(5) related to the closure requirements for tanks, containers, drip pads and containment buildings; (4) 40 CFR §266.20(b) concerning a new requirement that recyclers submit a one-time certification and a one-time notification for the initial shipment (as opposed to each shipment) of certain recyclable materials (i.e., hazardous waste-derived products) used in a manner constituting disposal. As a result of withdrawing 40 CFR § 262.34(a)(5), U.S. EPA also withdrew a related amendment at 40 CFR § 262.34(a)(1)(iv)(B), which previously applied only to containment buildings, because the Agency had deleted the latter part of this particular regulatory citation in the March 18, 2010 direct final rule in an effort to clarify the closure requirements for tanks, containers, drip pads and containment buildings. Additionally, there was a typographical error related to the entry for U.S. EPA hazardous waste K107 in the Table at 40 CFR §261.32(a).
Ø Regulations Governing Groundwater Standards Rule, 47 CSR 12: West Virginia’s Regulations Governing Groundwater Standards Rule establishes minimum standards of purity and quality for groundwater located within the State. The proposed revision would remove the numeric standard for radon of 300 picocurie per liter (pCi/L) that was proposed by DEP last year and adopted by the West Virginia Legislature during the 2010 legislative session. The radon standard that was adopted, however, had only been proposed and not finalized by U.S. EPA. This year’s proposed revision reflects U.S. EPA’s 2009 Edition of the Drinking Water Standards and Health Advisories.
Ø Monitoring Well Design Standards Rule, 47 CSR 60: West Virginia’s Monitoring Well Design Standards Rule was first promulgated during the 1996 legislative session and revised during the 2010 legislative session. The proposed revisions to 47 CSR 60 would correct requirements for documentation submittals to DEP. The current rule requires reporting of all borehole abandonment, which DEP acknowledges in its briefing document is “unenforceable and unnecessary”. The proposed revisions would change §47-60-19.5 to require abandonment documentation only for “high risk” boreholes and permanent monitoring wells. The minutes of the June 3, 2010 meeting of DEP’s Environmental Protection Advisory Council indicate that this “was the original intention of the 2010 amendments recommended by the Monitoring Well Advisory Council.” “High risk” boreholes are defined in §47-60-19.2.a of the current rule as “those boreholes on sites containing or formerly containing solid or hazardous waste, hazardous materials or their by-products, or that may be affected by solid or hazardous waste, hazardous materials or their by-products in the future; or at sites of known or suspected contamination unless otherwise determined to be innocuous; or in situations where water quality in one water bearing zone may be detrimental to another water bearing zone.”
The marked-up version of the 2010 rules, including DEP’s notice of public hearing and briefing document, and minutes of the June 3, 2010 Environmental Protection Advisory Council meeting, are available on the Secretary of State’s web site up until the close of the comment period by clicking here. Once the comment period has closed the marked-up version of the rules will no longer be available on the Secretary of State’s web site. After the close of the comment period, the marked-up version of the rules may be obtained from DEP or the Secretary of State through a Freedom of Information Act Request.
This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.