In June 2011, the West Virginia Department of Environmental Protection (WVDEP) proposed revisions to the West Virginia Voluntary Remediation & Redevelopment Rule, 60 CSR 3 (the Rule), for the 2012 legislative session. Following a public hearing and the end of the public comment period on July 12, 2011, the WVDEP filed its agency approved version of the Proposed Rule the end of July 2011. The agency approved version of the Proposed Rule is currently available on the West Virginia Secretary of State’s website at: http://www.sos.wv.gov/administrative-law/modified/Pages/default.aspx. The agency approved Proposed Rule should be of interest to landowners, developers, and those involved in remediation activities in West Virginia because it includes the WVDEP’s Response to Comments and offers insight on the WVDEP’s interpretation of various provisions of the Rule.
In February of this year, the WVDEP solicited input regarding the West Virginia Voluntary Remediation Program (WV VRP) and provided a survey for participants to complete and submit. In March, the West Virginia Chamber of Commerce (Chamber) submitted its response, noting that generally the Rule has served the WV VRP well but suggesting changes to the Rule. In its response, the Chamber noted that while additional changes may be needed, such changes required more discussion and a more thorough vetting than the time allowed for response to the survey. The Proposed Rule that the WVDEP filed in June incorporated many of the changes the Chamber suggested.
In July, the Chamber followed up on its earlier response to the WVDEP’s survey and suggestion that additional changes may be needed and filed written comments on the WVDEP’s June 2011 Proposed Rule. The Chamber suggested changes to the regulatory text of the sections concerning Definitions, Licensed Remediation Specialists, Voluntary Remediation Agreements, Remediation Standards, and Certificates of Completion. The Chamber also urged WVDEP to convene a stakeholder group to consider revisions addressing technical concerns and updates to the Guidance Manual. The Chamber requested an opportunity to comment on the de minimis values “as they are generated” and transparency on the process the WVDEP uses for quality control of those values. No other comments were submitted. The WVDEP’s response to the Chamber’s comments and the agency approved proposed revisions to the Rule are discussed below.
Definition of Risk-based Concentrations: The existing VRP Rule at Section 60-3-2.53 defines the term “risk-based concentrations” as follows:
Concentration levels developed by the secretary for individual chemicals that correspond to a specific incremental cancer risk level of l x 10-6 for residential land use and 1 x 10-5 for industrial land use or a hazard quotient of 1. These concentrations are to be used with the De Minimis Standard.
The Chamber suggested that the definition be revised:
to reflect that any reduction of the hazard quotient to a value less than 1 under this Rule (which would reduce the De Minimis values) will only be considered under situations where site-specific cumulative risks warrant such reduction based on scientific principles consistent with the principles of USEPA risk assessment methodologies (i.e., if multiple constituents exists at elevated concentrations that all target the same organs per the USEPA IRIS database).
The WVDEP declined to make the suggested change. According to the WVDEP, “including this discussion under the suggested section [which defines risk-based concentrations in the context of de minimis standards] would be confusing” because, as the WVDEP explained, “a reduction of target concentrations for individual constituents arising from multiple chemicals acting on the same target organ through related modes of action would be related to the suite of chemicals occurring at a specific site.” Instead, the WVDEP noted that “cumulative site risks are already discussed under CSR§60-3.9.3.g and CSR§60-3.9.4.a and b for uniform and site-specific risk-based standards, respectively.” The WVDEP promised to “consider additional clarification through updates in the guidance document.”
Licensed Remediation Specialists: Section 5 of the VRP Rule concerns Licensed Remediation Specialists (LRSs) and requires the applicant to notify the WVDEP within 72 hours if the LRS-client relationship is severed for any reason. The Chamber suggested that the 72-hour notice requirement at Section 60-3-5.1.b be limited to severance of the relationship only if the LRS believes he is unable to meet his duty to protect the safety, health, and welfare of the public in the performance of his professional duties. The WVDEP declined to revise Section 60-3-5.1.b, stating that the section “is sufficiently clear as written and the suggested changes are not necessary in the context of the section.”
Voluntary Remediation Agreements: Section 6 of the VRP Rule addresses the Voluntary Remediation Agreement (VRA) and requires, among other items, that the VRA provide a listing of the applicable standards to be achieved at the site and where applicable, a description of any engineering or institutional controls and any land-use covenants to be imposed for the property. The Chamber suggested language changes to Section 60-3-6.1.h and .i that would provide that this information should be required only if the applicable standards, engineering and institutional controls, and land-use covenants have been determined at the time the VRA is executed. The WVDEP declined to revise Section 60-3-6.1 for the following reasons:
Section 6.1 pertains to the provisions of the Voluntary Remediation Agreement, cites Appendix 60-3A and Appendix 60-3B as meeting the requirements, and notes that additional modifications may be agreed upon by the applicant and the secretary. Appendix 60-3A is the “No Further Action” agreement, in which the standards and/or controls as required by sections 6.1.h and 6.1.i should be known and therefore stated. Appendix 60-3B is the “standard” agreement used for sites which are often involved in an iterative process as the site progresses through the program in pursuit of a Certificate of Completion. The WVDEP believes that Appendix 60-3B provides the flexibility suggested by the Chamber for modifications subsequent to execution of the initial agreement.
Remediation Standards: Section 9 of the VRP Rule pertains to the risk-based remediation standards used in the program. Section 60-3-9.4 explains how to determine human-health-site-specific risk-based standards. The Chamber proposed adding language to address those sites where the anticipated future land use is as a “recreational area,” which is an undefined term used in the VRP. Specifically, the Chamber proposed adding to the end of Section 60-3-9.4 language allowing “reasonable assumptions with respect to frequency and duration of exposure as well as other relevant factors for exposure [to] be made in accordance with division guidance.” The WVDEP responded it did “not see a need for the added language,” explaining that the Chamber’s addition “is inherent to establishing a site-specific risk-based standard.”
The Chamber also noted that the WVDEP was proposing to change the word “significant” to “substantial” when describing the risk to human health established under the de minimis standard in Section 9.2 but was not proposing a similar change when defining the de minimis risk-based standard for human health in Section 9.1.a.1. The WVDEP agreed that this inconsistency is confusing and revised the VRP Rule to incorporate the word “substantial” in Section 9.1.a.1.
Certificates of Completion: Section 12 of the VRP Rule pertains to the Certificate of Completion (COC) and sets forth the items to be included in the COC. The Chamber proposed adding the following language regarding amending the COC:
12.3.b.6. The certificate of completion may be amended only where new information or changed conditions at a site demonstrate that one or more of the restrictions placed upon the site are no longer necessary to meet the applicable standards. A request to amend a certificate of completion may be considered only where it is submitted by or with the written consent of the owner(s) of the site at the time the request is submitted.
The WVDEP declined to add the suggested language or any language addressing amending the COC and suggested that parties wishing to amend the COC use the “Reopener” provisions of the VRP Rule. The WVDEP stated that:
Inasmuch as no Voluntary Remediation Agreement is in place once the Certificate of Completion is issued, WVDEP has no means to conduct an effective review of “the new information or changed conditions” described in the proposed change. Although not specifically articulated in the existing rule, the means to amend the Certificate of Completion would best be accomplished by following the "Reopener" provisions as outlined in 60-3-16.4.a or 60-3-16.4.b.
Model Documents: The WVDEP agreed with the Chamber that at the end of the list of statutes found in paragraph 19 of Appendix 60-3B, “West Virginia Voluntary Remediation Agreement for Investigation and Remediation Activities,” the language “any applicable regulation promulgated thereunder” is intended to apply to all of the enumerated statutes and not just the last enumerated statute. Accordingly, the WVDEP incorporated the formatting change in paragraph 19 of Appendix 60-3B so that the language “any applicable regulation promulgated thereunder” begins a new line as follows:
(i) Toxic Substances Control Act, 15 U.S.C.A. §§2601, et seq.; and
(j) Any applicable regulation promulgated thereunder.
Guidance Manual and Technical Revisions to the VRP Rule: In its comments, the Chamber recognized that “changes to those provisions pertaining to the approach for sampling surface water and sediment may be needed” but stated that “such changes require more discussion and a more thorough vetting than the time allowed for comments on the proposed Rule.” The Chamber therefore urged the WVDEP to establish a stakeholder group similar to the Technical Standards Subcommittee that drafted the original Guidance Manual for the VRP to consider these and other technical revisions to the VRP Rule, update the current version of the Guidance Manual, and address major technical issues. Technical issues identified by the Chamber in need of updating include: the list of guidance documents and references; the approach provided in Appendix J for sampling surface water and sediment; and guidance regarding investigating soil vapor intrusion and the discharge of groundwater to surface water. The Chamber further commented that if the WVDEP establishes a stakeholder group or approaches the task of updating the Guidance Manual and VRP through other means, the “flexibility of the current Guidance Manual and the West Virginia [VRP] in general to be absolutely necessary to the success of those environmental programs.”
The WVDEP agreed with the Chamber’s comment on convening a stakeholder group and promised to “strive to establish a stakeholder group in the future.” The WVDEP acknowledged the Chamber’s comment on the need for the VRP to retain flexibility.
The Chamber also noted that the Guidance Manual in Section 2.6.6 refers to “USEPA Region III Risk-Based Concentration Tables," which USEPA Region III is no longer using and instead is using Regional Screening Levels (RSLs). The Chamber requested that the WVDEP clarify whether it is using RSLs instead of Risk-Based Concentrations (RBCs) and if so, consider proposing appropriate revisions to the text of the Rule in Sections 2.53, 22.214.171.124, and 9.2.b.2.A. The WVDEP acknowledged that USEPA Region III no longer provides a set of screening values published as Risk-Based Screening (RBC) Tables, but instead is using a series of tables produced by the Oak Ridge National Laboratory under contract with USEPA, and published on a semiannual basis as Regional Screening Levels. The WVDEP promised to include the updated name in the revised guidance document. In its Response to Comments, the WVDEP clarified the targeted cleanup levels under the VRP as follows:
Although the guidance manual citation refers to a specific set of values produced by USEPA Region III for screening purposes, the [VRP R]ule references the concept of cleanup standards calculated to meet specified levels of risk/hazard. Thus, de minimis, uniform, and site-specific standards continue to be based on meeting target excess lifetime cancer risks or hazard quotients and may be characterized as “risk-based concentrations”.
De Minimis Table: The 2012 proposed revisions would 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. In the original briefing document that accompanied the proposed revisions, WVDEP explained that the proposed changes to the De Minimis Table were necessary because the toxicological profiles for many chemicals in the federal IRIS database had been revised. The Chamber questioned the WVDEP’s stated rationale for the proposed revisions to the De Minimis Table. In its Response to Comments, the WVDEP acknowledges that the “proposed changes in the de minimis values are not due solely to updated toxicity criteria available on the IRIS database.” According to the WVDEP, the rationale in the original briefing document was prepared “from a document provided with a previous de minimis revision.” The WVDEP provides a two-page, technical explanation of the bases for the current revisions in its Response to Comments and has also revised the briefing document to reflect a one paragraph summary.
Regarding the process for revising the De Minimis Table, the Chamber urged the WVDEP to provide an opportunity for public comment on proposed revisions to values in the table “as those values are generated.” The Chamber noted that “the process that the WVDEP uses for quality control (QC) of proposed revisions to values in the De Minimis Table should be transparent” and requested that the WVDEP “explain the QC process it follows in revising values in the De Minimis Table.” The WVDEP, in its Response to Comments, “agree[d] that the process…should be transparent” and promised to carefully consider the Chamber’s suggestions for future revisions.
With regard to the 2012 proposed revisions to the de minimis values, the WVDEP intends to publish its spreadsheets on its webpage at: http://www.dep.wv.gov/dlr/oer/voluntarymain/Pages/default.aspx. In particular, WVDEP states it “intends to publish the revised calculation algorithms, as well as all of the input terms including physicochemical, toxicological, and exposure data used in their calculation in a suitable format ….” The WVDEP’s Response to Comments describes the spreadsheet models and input terms used to revise the current de minimis values. For QC, the WVDEP explains that “a limited distribution to internal DEP and external reviewers” conducted a “final review” of the spreadsheets incorporating updated algorithms, toxicity criteria, and physicochemical data, and “spot checks of toxicity and physiochemical data were also performed.”
For the text of the WVDEP approved Proposed VRP Rule, including the Chamber’s comments and the WVDEP’s Response to Comments, filed July 29, 2011, click here. For a summary of WVDEP’s proposed revisions for which no written comments were filed, see article titled “WVDEP Proposes Revisions to Waste Rules” posted on the Jackson Kelly PLLC Energy & Environment Monitoron July 6, 2011.
This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.