U.S. EPA Region 3 and WV Chamber Discuss Waste Issues in Face-to-Face Meeting

On July 21, 2010, members of the West Virginia Chamber of Commerce (Chamber) traveled to Philadelphia to meet with U.S. EPA Region 3 and discuss various environmental issues, including water, waste, and air issues. The hazardous and solid waste issues discussed included: (1) the status of a possible Memorandum of Understanding (MOU) between U.S. EPA and West Virginia concerning the state Voluntary Remediation Program insofar as it pertains to the Resource Conservation and Recovery Act (RCRA) Corrective Action Program; (2) the safety aspect of U.S. EPA’s proposal for regulation of coal combustion residuals from electric utilities; (3) the status of U.S. EPA’s reconsideration of the definition of solid waste under RCRA; (4) West Virginia’s administration of the RCRA Corrective Action Program; and (5) U.S. EPA’s procedures for debriefing applicants whose brownfields grant application are denied.

 

    RCRA MOU: In response to the Chamber’s question concerning the status of a possible MOU between U.S. EPA and West Virginia concerning the state Voluntary Remediation Program insofar as it pertains to RCRA, Abraham Ferdas, Director of U.S. EPA Region 3 Land and Chemicals Division, stated that U.S. EPA had sent its comments to Ken Ellison, Director of the Division of Land Restoration West Virginia Department of Environmental Protection (WVDEP) and that the WVDEP has not yet responded. Director Ferdas stated that 99 percent of the West Virginia Voluntary Remediation Program was acceptable for purposes of the RCRA Corrective Action Program but identified “minor corrections” concerning groundwater off site as being needed. For U.S. EPA’s written comments comparing the West Virginia Voluntary Remediation Program and the federal RCRA Corrective Action Program, click here. 

 

    U.S. EPA’s Proposal for Regulation of Coal Combustion Residuals from Electric Utilities: The Chamber inquired concerning the safety aspect of U.S. EPA’s proposal that was published June 21, 2010, (75 Fed. Reg. 35,128). In particular, the Chamber asked whether US. EPA contemplates that its federal program will take into consideration well-developed state dam safety programs such as West Virginia’s long-standing and active dam safety program. Director Ferdas responded that U.S. EPA will be proposing dam safety requirements similar to the requirements under the Mine Safety and Health Administration Program for mine by-product impoundments and acknowledged that in some areas West Virginia’s dam safety requirements are more stringent than the federal Mine Safety and Health Administration Program requirements. He noted that the comment period on U.S. EPA’s June 21, 2010 proposed rule closes September 20, 2010 and that it “may be awhile” before U.S. EPA promulgates a final rule. 

 

    U.S. EPA Definition of Solid Waste: The Chamber inquired concerning U.S. EPA’s plans for the rulemaking on the definition of solid waste that the agency is reconsidering. Director Ferdas stated that the regulations dealing with the definition of on-site waste would not change but that the regulations dealing with the definition of off-site waste and transportation of waste may change, explaining that the issue with off-site waste and waste transportations is the loss of control by the generator. In addition, Director Ferdas stated that U.S. EPA planned to include an expanded analysis of environmental justice issues in the rulemaking on the definition of solid waste. Director Ferdas stated that U.S. EPA may issue a proposal by June 2011.

 

    RCRA Corrective Action in West Virginia:    The Chamber asked if U.S. EPA was focusing on any specific issues with respect to the West Virginia Department of Environmental Protection’s administration of the RCRA Corrective Action Program. Director Ferdas responded that although West Virginia was authorized to administer the RCRA Corrective Action Program more than forty years ago, U.S. EPA and its remedial project managers are still doing “100 percent” or at least “most of the work”. He acknowledged that West Virginia needs more permit writing capability and that West Virginia is not in a position to take on the RCRA corrective action work. He stated that there are less than forty sites in the RCRA Corrective Action Program in West Virginia and that U.S. EPA’s goal is to achieve 95% completion at those sites by 2020.

 

    U.S. EPA Debriefing Process for Applicants for Brownfields Grants: The Chamber asked about U.S. EPA’s process for notifying applicants for brownfields assessment, cleanup, and revolving loan fund grant that their applications have been denied and the reasons for their denial. U.S. EPA Region 3’s representative explained that a debriefing is provided only upon request. U.S. EPA will send an e-mail to the applicant whose application has been denied with information as to who to contact to request a debriefing. If the debriefing is not satisfactory from the applicant’s perspective, the applicant may pursue the matter utilizing U.S. EPA’s grant dispute procedures that are set forth in 40 CFR Part 30 for institutions of higher education, hospitals, and other non-profit organizations and 40 CFR Part 31 for state and local governments. 

 

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