The West Virginia Department of Environmental Protection (WVDEP) is proposing revisions to three waste rules for the 2012 legislative session. The three waste rules are: (1) West Virginia Solid Waste Management Rule, 33 CSR 1; (2) West Virginia Hazardous Waste Management Rule, 33 CSR 20; and (3) West Virginia Voluntary Remediation & Redevelopment Rule, 60 CSR 3. The WVDEP filed the proposed rules with the West Virginia Secretary of State’s Office in June 2011, opening the public comment period on the proposed revisions to the rules. The WVDEP will conduct a public hearing on the proposed rules at 6:00 p.m. on Tuesday, July 12, 2011, in the Coopers Rock Training Room of the WVDEP’s Headquarters located at 601 57th Street, Southeast, in Charleston, West Virginia. The public comment period will end at the conclusion of the hearing. The proposed revisions to each rule are discussed below.
Solid Waste Management Rule: The proposed revisions to the West Virginia Solid Waste Management Rule, 33 CSR 1, would add a definition of “covered electronic devices” to the list of defined terms. The proposed definition would track the statutory definition found in W. Va. Code §22-15A-2 (2009 Repl. Vol.), which is part of the A. James Manchin Rehabilitation Environmental Action Plan, commonly known as REAP, and reads as follows:
“Covered Electronic Device” means a television, computer or video display device with a screen that is greater than four inches measured diagonally. “Covered electronic device” does not include a video display device that is part of a motor vehicle or that is contained within a household appliance or commercial, industrial or medical equipment.
In addition to the above-quoted definition, the proposed revisions would add covered electronic devices as unacceptable waste banned from disposal in the State’s landfills. The WVDEP is proposing these revisions in response to the passage of Senate Bill 398 on March 13, 2010, which amended and reenacted W. Va. Code §22-15A-22 to ban certain electronic devices from landfill disposal.
The proposed rule would also make what the WVDEP refers to in its “Fiscal Note for Proposed Rules” as “technical revisions and corrections” throughout the proposed rule. These “technical revisions and corrections” include proposed revisions to the provisions related to the cleaning of the leachate collection system. The proposed revisions would remove language that the system be “cleaned and maintained as necessary” and would replace it with a requirement that the system be “cleaned with water jet cleanout device or equivalent immediately after construction.”
The proposed revisions would also add a requirement to the list of general requirements that the operator “prevent and eliminate conditions not otherwise prohibited by this rule that are harmful to the environment or public health or that create safety hazards, odors, dust, noise, unsightliness, and other public nuisances.” Compliance with this “nuisance” language, if finalized, may be problematic for operators because of the vagueness of many of the words such as “create…odors, dust, noise, unsightliness”.
Finally, the proposed revisions would eliminate existing language allowing the WVDEP Secretary to approve the substitution of three feet of compacted soil, with a minimum permeability of 1 x 10-6 cm/sec for the required two feet of compacted clay, with a minimum permeability of 1 x 10-7 cm/sec “if equivalency of groundwater protection can be proven.” For the text of the proposed Solid Waste Management Rule that was filed June 13, 2011, click here.
Hazardous Waste Management Rule: The proposed revisions to the West Virginia Hazardous Waste Management Rule, 33, CSR20, would adopt and incorporate by reference changes to the federal counterpart regulations at 40 CFR Parts 124 and 260 through 279 in effect on June 1, 2011.
The proposed revisions would also allow for the issuance of a RCRA standardized permit rather than an individual permit to RCRA treatment, storage, and disposal facilities (TSDFs) for containers, tanks, and containment buildings. To be eligible for a standardized permit, a RCRA TSDF must generate hazardous waste and then store or non-thermally treat the hazardous waste on site in containers, tanks, or containment buildings. The standardized permit would also be available to TSDFs that receive hazardous waste generated off-site by a generator under the same ownership as the receiving facility, and then store or non-thermally treat the hazardous waste in containers, tanks, or containment buildings. The standardized permit will streamline the RCRA permitting process for eligible TSDFs.
In addition to the standardized permit, the proposed revisions would also grant authority to the Public Service Commission to regulate the transportation of hazardous waste by roads and highways as well as railroads and would clarify that the Division of Highways also regulates the use of state highways for the transportation of hazardous waste. The proposed revision would amend the West Virginia Hazardous Waste Management Rule to reflect that the authority the WVDEP previously transferred to the Division of Highways to regulate hazardous waste on the highways has been transferred by statute to the Public Service Commission when the Weights & Measures Section was transferred from the DOH to the PSC. For the text of the proposed Hazardous Waste Management Rule that was filed June 9, 2011, click here.
Voluntary Remediation and Redevelopment Rule: The proposed revisions update the toxicological profiles used in developing the De Minimis risk-based cleanup standards table that is used to determine whether or not environmental contamination at a site exceeds levels that would be protective of human health. Because the toxicological profiles for many chemicals in the federal IRIS database have been revised, the proposed changes to the De Minimis table are necessary.
The proposed revisions also incorporate what the WVDEP refers to in the briefing document that accompanied the proposed rule filed with the West Virginia Secretary of State’s Office as “minor changes”. These “minor changes” include many of the changes suggested by the West Virginia Chamber of Commerce in response to a survey initiated by the WVDEP in February 2011. For example, the proposed revisions would incorporate into the rule the WVDEP’s policy granting an enforcement shield from the time an application is filed provided the applicant continues to negotiate a reasonable agreement in good faith. The proposed revisions would also specify certain topics of discussion during the pre-application conference for brownfield applicants. Additionally, the proposed revisions would require that all program documents, including applications, work plans, and Final Reports, be submitted in both hardcopy and electronic versions, that e-mail addresses be provided on submissions, and that all documents be submitted to both the WVDEP Division of Land Restoration at the WVDEP’s Headquarters in Charleston, West Virginia, and the WVDEP Project Manager.
The proposed revisions would also make changes to the approved program documents. For example, the agreement would require attachment of a map depicting the site boundaries and a statement of the number of acres. Under the proposed rule, the agreement would require that the applicant submit the final report prepared by the licensed remediation specialist along with a request for a Certificate of Completion and that the 60-day clock for action by the WVDEP on the final report commence upon receipt by the agency of the request for a Certificate of Completion. The Certificate of Completion form would be modified to list all of the modifications to the agreement and the date of each modification. For the text of the proposed Voluntary Remediation and Redevelopment Rule that was filed June 10, 2011, click here.
This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.