On June 30, 2017, Kathy Beckett, Chair of the West Virginia Chamber of Commerce Environmental Committee filed a letter with the West Virginia Department of Environmental Protection (“WVDEP”) invoking the 2016 legislation, S.B. 619.  That legislation invited all executive agencies with rule-making authority to review and evaluate all state rules, guidelines, policies and recommendations to determine whether they are more stringent than their respective federal counterparts.  The agencies are required to submit a report to the Joint Committee on Government and Finance and the Legislative Rule-Making Review Committee on or before November 1, 2017 that will include comments received.  

WVDEP has not yet initiated a formal public review process pursuant to S.B. 619. A more formal comment opportunity will be available after WVDEP announces its regulatory review and reform.  It was suggested that WVDEP would be identifying a few rules they wished to reform, as opposed to opening all rules for notice and comment.

A summary of the June 30 letter action items identified for WVDEP to execute are as follows:

• NPDES: Provide for NPDES permit review to assess permit conditions that are more stringent than the federal citing as an example the facts and decision in OVEC v. Fola Coal, 845 F.3d 133 (4^th Cir. 2017).
• Intake Credit: Promulgate an intake credit provision for water quality-based effluent limits, consistent with similar language approved by EPA for other states.
• Future Uses: Assess the WV Water Pollution Control Act provisions and implementation relative to protection of future uses to determine if such language is more stringent than the federal law and guidance.
• Review of 401 Certifications for NGA Pipelines. Modify 47 CSR 5A concerning review of state CWA 401 certifications to incorporate federal law concerning federal judicial review of Natural Gas Act regulated activities.
• Stormwater Benchmarks. Modify WVDEP use of stormwater permit benchmarks to improve efficacy for managing stormwater impacts on in-stream aquatic life.
• Arsenic. Modify the WV water quality standard for arsenic to reflect the federal recommendation by removing the water contact recreation criteria.
• Mercury. Modify the mercury water quality standard to adopt EPA’s aquatic life mercury criterion of 0.91 ug/l and adopt EPA’s implementation guidance for the human health criterion of 0.5 mg/kg.
• Chloride. Modify the chloride water quality standard by removing it from the WV Water Quality Standards, consistent with EPA recommended criteria.
• Opacity: Modify the 10% opacity limit consistent with EPA source-specific standards.
• Air Monitor Performance: Modify the WV air program to be consistent with the EPA program elements that establish monitor performance criteria and reporting.
• Update Air Rules:
  • Modify 45 CSR 7 to eliminate mineral acid provisions to update it consistent with EPA hazardous and toxic air pollutant regulation.
  • Modify 45 CSR 13 to update permitting thresholds.
  • Modify 45 CSR 25 to eliminate redundancy and inefficiencies relative to the federal counterpart regulations.
  • Modify 45 CSR 27 to eliminate redundancy relative to EPA’s hazardous air pollutant emissions standards.
• Voluntary Remediation. Assess and modify the statute and regulatory program to facilitate economic development.