Title 60 W. Va. C.S.R.

Environmental Protection - Secretary's Office Environmental Protection - Secretary's Office

Series 03 Voluntary Remediation and Redevelopment Rule

W. Va. Code R. § 60-3-1 General

1.1. Scope. -- This Legislative rule establishes the eligibility, procedures, standards, and legal documents required for voluntary remediation activities and brownfield revitalization.

1.2. Authority. -- W. Va. Code §§ 22-22-3 and 22-22-4(c).

1.3. Filing Date. -- April 9, 2021

1.4. Effective Date. -- June 1, 2021

W. Va. Code R. § 60-3-2 Definitions

Unless the context clearly requires a different meaning, the definitions contained in W. Va. Code §§ 22-22-2 and 22-22B-2 apply to this rule, in addition to those definitions set forth below:

2.1. “Act” means the Voluntary Remediation and Redevelopment Act, W. Va. Code § 22-22-1, et seq.

2.2. “Anthropogenic background” means concentrations of chemicals that are present in the environment due to human activities unrelated to operation at the site.

2.3. “Applicant” means a person who is applying or has applied to participate in the Voluntary Remediation Program.

2.4. “Brownfields Revolving Fund applicant” means a person who is applying or has applied to participate in the Voluntary Remediation Program for a brownfield property and who is seeking or has obtained site assessment or remediation moneys from the Brownfields Revolving Fund.

2.5. “Carcinogen” means any substance which can cause cancer.

2.6. “Conceptual site model” means a description of possible contaminant sources, migration pathways, exposure routes, and human and/or ecological receptors. The conceptual site model depicts complete exposures, as well as exposures that have been, or are presumed to be, severed using activity and use limitations and/or engineering controls (e.g., land-use covenants, caps, and covers).

2.7. “Contaminant of concern” means a contaminant of potential concern that is present at a site at a concentration that requires implementation of a remedy to achieve the desired remediation standard.

2.8. “Contaminant of potential concern” means a chemical that may be present at a site based on current or historical site use.

2.9. “Cumulative site risk” means the summation of risks to a human receptor or ecological receptor from one or more contaminants released at the site over a period of time.

2.10. “Day” means the 24-hour period between 12:00 A.M. - 12:00 A.M.

2.11. “De minimis risks” means those risks that are so trivial that they would not require remediation under this rule.

2.12. “Ecological receptors of concern” means specific ecological communities, populations, or individual organisms protected by federal, State, or local laws and regulations or those local populations which provide important natural or economic resources, functions, and values.

2.13. “Ecosystem” means an integrated, self-functioning system consisting of interactions among both the biotic community and abiotic environment within a specified location in space and time. Sizes of ecosystems may vary considerably.

2.14. “Endangered or threatened species” means any plant or animal species identified as endangered or threatened pursuant to federal, State, or local laws.

2.15. “Exposure” means contact by an organism with a chemical or physical agent. Exposure is quantified as the amount of the agent available at the exchange boundaries of the organism (e.g., skin, lungs, gut) and available for absorption.

2.16. “Exposure factors” means values used to estimate exposure in risk assessment, such as the number of days per week that a person may expect exposure or the amount of contaminated media that a person might incidentally ingest per day.

2.17. “Exposure pathway” means the physical course a chemical or pollutant takes from its source to the organism exposed.

2.18. “Exposure route” means the way a chemical or physical agent comes in contact with a receptor (e.g., by eating [ingestion], breathing [inhalation], or touching [dermal contact]).

2.19. “Fate and transport” means the behavior and movement of a chemical through an environmental medium.

2.20. “Free product” means regulated substance present as a nonaqueous phase liquid (e.g., liquid not dissolved in water). These substances include liquid petroleum products such as gasoline, kerosene, diesel fuel, or oil, and any hazardous substance either listed in § 101(14) of CERCLA or defined in § 1004 of RCRA. For petroleum hydrocarbons, the term nonaqueous phase liquid includes both liquid phase and residual phase hydrocarbons. Liquid phase product is capable of flowing downward and/or laterally into wells or excavations. Typically, free product exists as a pool or mound floating on the water table or resting on an impermeable soil layer. Residual phase product does not generally flow as a liquid; it occurs as globules within fractures or pores of soil or bedrock.

2.21. “Habitat” means the area or type of environment in which an organism or biological population naturally lives or is found.

2.22. “Hazard index” means the sum of the hazard quotients for multiple substances and/or multiple exposure pathways.

2.23. “Hazard quotient” means the value which quantifies noncarcinogenic risk for one chemical for one receptor population over a specified exposure period. The hazard quotient is equal to the ratio of a chemical-specific intake to the reference dose.

2.24. “Hourly rate” means the gross annual salary plus fringe benefits paid to an employee, plus the indirect cost rate calculated as a percentage of salary (as negotiated and established with the federal government through the U.S. Department of the Interior, National Business Center, in accordance with 2 C.F.R. § 225), divided by 2080.

2.25. “Implementability” means the technical and administrative feasibility of an action, as well as the availability of needed goods and services.

2.26. “Industrial land use” means land used for commercial establishments, manufacturing plants, public utilities, mining, distribution of goods or services, administration of business activities, research and development facilities, warehousing, shipping, transporting, remanufacturing, stockpiling of raw materials, storage, repair and maintenance of commercial machinery or equipment, and waste management.

2.27. “Leaching potential” means the potential for soluble constituents to be dissolved and filter through the soil by a percolating fluid.

2.28. “Lowest Observed Adverse Effect Level or LOAEL” means the lowest concentration or dose evaluated in a test that causes statistically significant adverse effects in experimental trials.

2.29. “Natural background” means ambient concentrations of chemicals that are present in the environment and have not been influenced by humans (e.g., iron, manganese).

2.30. “New information” means any information the Department obtains directly or indirectly from any person after the Secretary issues a Certificate of Completion, but does not include information the Department received in the application for participation in the Voluntary Remediation Program, including any site assessment during the execution of the Voluntary Remediation Agreement or any work plan developed under such an agreement, or other information available to the Department under the Voluntary Remediation Program prior to the execution of the Certificate of Completion. The Secretary may consider information that does not qualify as new information along with new information, if necessary, to determine whether any of the conditions for reopening set out in section 16 of this rule have occurred.

2.31. “No further action” means a site is eligible to receive a Certificate of Completion on the basis of site assessment sampling or sampling data developed under a Voluntary Remediation Agreement which demonstrates that the site meets all applicable standards.

2.32. “No Observed Adverse Effect Level or NOAEL” means the highest concentration or dose evaluated in a test that does not cause statistically significant adverse effects in experimental trials.

2.33. “Primary employee” means a voluntary remediation project manager, engineer, or scientist employed by the Secretary in negotiating, facilitating, overseeing, or confirming a voluntary remediation project. The term does not include secretaries, paralegals, clerks, technicians, or others who serve to support the activities of the primary employee.

2.34. “Probabilistic risk assessment” means a risk assessment performed using a mathematical technique that produces a distribution of values for a calculated term by solving for that term in successive iterations. Each successive iteration requires the selection of a single input value from defined distribution(s) for each of the terms used to derive the calculated term.

2.35. “Readily apparent harm” means visual evidence of stressed biota attributable to the release at the site, including, but not limited to, fish kills or abiotic conditions, or the visible presence of oil, tar, or other non-aqueous phase contaminant in soil over an area equal to or greater than two acres, or over an area equal to or greater than 1,000 square feet in sediment.

2.36. “Reasonably anticipated future use” means potential future land and water uses which have a credible chance of occurrence.

2.37. “Reasonable potential” means a scenario with a credible chance of occurrence without considering extreme or highly unlikely circumstances.

2.38. “Receptors (human)” means humans potentially exposed to contaminants released from the site.

2.39. “Reopener” means one or more of the grounds for setting aside some or all of a Certificate of Completion and reopening a Voluntary Remediation Agreement that is specified in section 16 of this rule.

2.40. “Residential land use” means any real property or portion thereof which is used for housing human beings. This term includes property used for schools, day care centers, nursing homes, or other residential-style facilities or recreational areas.

2.41. “Risk-based concentrations” means concentration levels developed by the Secretary for individual chemicals that correspond to a specific incremental cancer risk level of 1x10-6 for residential land use and 1x10-5 for industrial land use or a hazard quotient of 1. These concentrations are to be used as De Minimis Standards.

2.42. “Saturation concentration” means the maximum possible quantity of a substance that can dissolve in a standard volume of a specific solvent (e.g., water) under standard conditions of temperature and pressure.

2.43. “Site assessment” means characterization of a site through an evaluation of its physical and environmental characteristics (e.g., subsurface geology, soil properties and structures, hydrology, and surface characteristics) to determine if a release has occurred; the levels of the chemical(s) of concern in environmental media; and the likely physical distribution of the chemical(s) of concern. The site assessment involves the collection of data as needed on groundwater and surface water quality, land and resource use, and potential receptors, which information is used to support remedial action decisions.

2.44. “Systemic toxicant” means a harmful substance or agent that may enter the body and injure an organ or organ system and have an effect other than causing cancer. Most chemicals that produce systemic toxicity do not cause a similar degree of toxicity in all organs, but usually demonstrate major toxicity to one or two organs.

2.45. “Total dissolved solids” means all material that passes through the standard glass fiber filter as provided in the current edition of Standard Methods for the Examination of Water and Wastewater.

2.46. “Trade secrets” means any information protected from disclosure pursuant to the West Virginia Freedom of Information Act, W. Va. Code § 29B-1-4(a)(1).

2.47. “Voluntary Remediation Program” means the program for the voluntary assessment and remediation of sites under the Act.

2.48. “Weight-of-evidence approach” means the process by which measurement endpoints are related to an assessment endpoint to evaluate whether a significant risk of harm is posed to the environment. The approach is planned and initiated at the problem formulation stage and results are integrated at the risk characterization stage.

W. Va. Code R. § 60-3-3 Eligibility

3.1. Eligibility Criteria for Voluntary Remediation Program. – Any site is eligible to participate in the Voluntary Remediation Program, except the following:

3.1.a. Any site that is subject to a unilateral order issued by the U.S. Environmental Protection Agency (EPA) pursuant to §§ 104 through 106 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9604 - 9606;

3.1.b. Any site that has been listed or is proposed to be listed on the National Priorities List developed by EPA pursuant to Title I of CERCLA, unless EPA has formally delisted it;

3.1.c. Any site that is subject to a unilateral enforcement order under § 3008 or § 7003 of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6928 or § 6973;

3.1.d. Any site that is subject to a unilateral enforcement order for corrective action issued pursuant to any provision of Chapter 22 of the West Virginia Code; or

3.1.e. Any site where the release that is subject to remediation was created through gross negligence or willful misconduct by the applicant.

3.2. Eligibility Determination. – In deciding the acceptability of an application, the Secretary shall determine whether the eligibility criteria of this section have been satisfied.

W. Va. Code R. § 60-3-4 Application to Participate in Voluntary Remediation Program

4.1. Contents of Application. – Any person who desires to participate in the Voluntary Remediation Program shall submit to the Secretary, on a form provided by the Secretary, an electronic application which shall contain, at a minimum, the following information:

4.1.a. The applicant’s name, which includes the applicant’s legal name and any other aliases or other names by which the applicant is known or under which the applicant does business;

4.1.b. The applicant’s address, which includes the current address at which the applicant can be reached by mail and, in the event that Post Office delivery is not feasible, the applicant shall also provide a description of his or her current address that will enable the Secretary to locate the applicant;

4.1.c. The applicant’s financial capabilities, which include, but is not limited to, information that demonstrates the applicant has, or has secured access to, financial resources that are adequate to successfully complete the voluntary remediation and satisfy any contractual obligations entered into by the applicant that relate to the voluntary remediation;

4.1.d. The applicant’s technical capabilities, which includes, at a minimum, information that the applicant is contracting or has contracted with a licensed remediation specialist to perform the work required;

4.1.e. A general description of the site, which includes, at a minimum, the following:

4.1.e.1. A written description of the site that includes any city, county, and street addresses and adjacent landmarks, buildings, waterways, former uses, or other identifying information;

4.1.e.2. The deed book number and page number of the site property as contained in the office of the County Clerk;

4.1.e.3. County tax map references;

4.1.e.4. A map delineating the boundaries of the site;

4.1.e.5. Horizontal coordinates of a reference point to the site, such as the center of the site or main entrance, which location data shall have a horizontal accuracy within 5 meters (15 feet);

4.1.e.6. Any other identifying information that will serve to clearly and concisely identify the property;

4.1.e.7. Information of which the applicant is aware concerning the nature and extent of any known contamination at the site and immediately contiguous to the site, or wherever the contamination came to be located; and

4.1.e.8. Information demonstrating the applicant’s legal right to perform the work required for participation in the program (e.g., title report, deed, or access agreement).

4.1.e.9. Where an application covers two or more non-contiguous locations, the applicant shall provide this information for each location.

4.1.f. A site assessment prepared by a licensed remediation specialist, which includes information that identifies all actual or potential contaminants reasonably expected to be at and near the site, the nature and extent of the contamination, and potential receptors and pathways for contaminant migration. In no case, however, shall the Secretary deny an application on the grounds that the site assessment is inadequate if the site assessment satisfies the requirements contained in W. Va. Code § 22-22-4(e). Where the Secretary determines that additional site assessment information is necessary, the Secretary and the applicant may address submission of the necessary additional information in the Voluntary Remediation Agreement; and

4.1.g. Other information as requested by the Secretary.

4.2. Application Fee.

4.2.a. Each applicant shall pay an application fee in accordance with this subsection. The applicant shall mail the application fee, in the form of a check made payable to the West Virginia Department of Environmental Protection for deposit into the Voluntary Remediation Administrative Fund, accompanied by a transmittal letter stating the site name and address. The application fee shall be mailed at the time the application is filed electronically. The Department must receive both the application and application fee before it will take any action on the application.

4.2.b. Should the applicant withdraw the application prior to the Secretary’s determination of eligibility, the Department shall refund to the applicant one-half of the application fee paid by the applicant.

4.2.c. If the Secretary rejects the application and applicant does not resubmit a revised application within 25 days, the Secretary shall refund one-half the application fee within 30 days of the rejection of the application.

4.2.d. The applicant shall calculate the application fee based upon the points assigned to the property using the following criteria:

4.2.d.1. Size of Property. The total square feet of surface area of the property to be covered by the application, rounded to the nearest 1,000 square feet. For properties less than one acre, the assigned points are 10; for properties of one acre or more but less than five acres, the assigned points are 20; and for properties of five acres or more, the assigned points are 30;

4.2.d.2. Years of Operation. The number of years that the property was operated for any non-residential activity. Partial years of operation should be treated as complete years of operation. For properties operated 10 years or less, the assigned points are 10; for properties operated more than 10 years but less than 20 years, the assigned points are 20; and for properties operated 20 years or more, the assigned points are 30;

4.2.d.3. NAICS Code. Using the North American Industry Classification System published by the U.S. Office of Management and Budget as it applies to the activities that have been conducted on the property, if the property falls within NAICS Subsector Codes 316 (Leather and Allied Product Manufacturing), 322 (Paper Manufacturing), 324 (Petroleum and Coal Products Manufacturing), 325 (Chemical Manufacturing), 326 (Plastics and Rubber Products Manufacturing), 331 (Primary Metal Manufacturing), 332 (Fabricated Metal Product Manufacturing), 333 (Machinery Manufacturing), 334 (Computer and Electronic Product Manufacturing), 335 (Electrical Equipment, Appliance, and Component Manufacturing), 336 (Transportation Equipment Manufacturing), or 339 (Miscellaneous Manufacturing), the assigned points are 30; if the property falls within NAICS Subsector Codes, 113 (Forestry and Logging), 211 (Oil and Gas Extraction), 212 (Mining (except Oil and Gas)), 213 (Supporting Activities for Mining), 221 (Utilities), 311 (Food Manufacturing), 312 (Beverage and Tobacco Product Manufacturing), 313 (Textile Mills), 314 (Textile Product Mills), 315 (Apparel Manufacturing), 321 (Wood Product Manufacturing), 323 (Printing and Related Support Activities), 327 (Nonmetallic Mineral Product Manufacturing), 337 (Furniture and Related Product Manufacturing), 486 (Pipeline Transportation), 488 (Support Activities for Transportation), 511 (Publishing Industries (except Internet)), or 562 (Waste Management and Remediation Services), the assigned points are 20; and if the property falls within any other NAICS Subsector Code, the assigned points are 10. If any activity falls in more than one of these groupings, the applicant shall use the category which results in the greatest number of points being assigned;

4.2.d.4. For any of these criteria, if the applicant does not know the correct category, the applicant shall apply the category resulting in the greatest number of points;

4.2.d.5. Applying the criteria described above, where the total number of points is 30 or 40, the application fee shall be $1,000; 50 or 60, the application fee shall be $3,000; and 70, 80, or 90, the application fee shall be $5,000; and

4.2.d.6. If the application covers two or more non-contiguous locations, the application fee shall be $5,000, provided that the locations under consideration display similar contaminant profiles and similar surface and subsurface characteristics. The applicant shall construe similar surface/subsurface characteristics to be limited to upland, riparian/wetland, karst, or other similar landforms as approved by the Secretary. If any of the individual locations includes a surface area greater than two acres, the applicant must submit a separate application and fee for that site.

4.3. Confidentiality. – Information obtained by the Department pursuant to this rule is available to the public, unless the Secretary certifies that the information is confidential. The Secretary may make such certification where any person shows, to the satisfaction of the Secretary, that the information or parts thereof, if made public, would divulge methods, processes, or activities entitled to protection as trade secrets.

4.4. Action on Application. – The Secretary shall act upon all applications within 45 days of receipt, unless the applicant and the Secretary both agree on an extension of time and confirm the same in writing. The Secretary may approve the application, reject the application, or accept the application subject to correction. If correction to the application is required, the applicant shall submit a corrected application within 60 days of receiving notice from the Secretary or withdraw the application. The Secretary shall act upon the corrected application within 45 days of receipt.

4.5. An applicant may appeal the Secretary’s rejection of an application to the Environmental Quality Board in accordance with W. Va. Code § 22B-1-7.

W. Va. Code R. § 60-3-5 Licensed Remediation Specialists

5.1. Professional Responsibilities of Licensed Remediation Specialists.

5.1.a. Any individual who wishes to practice as a licensed remediation specialist in the State of West Virginia must hold a valid remediation specialist license. Each individual has the burden of demonstrating to the Secretary’s satisfaction that he or she meets the requirements for licensing.

5.1.b. It is the licensed remediation specialist’s duty to protect the safety, health, and welfare of the public in the performance of his or her professional duties. If he or she is unable to meet this duty, the licensed remediation specialist may either sever the relationship with the client or employer or refuse professional responsibility for the work plan, report, or design. If the relationship is severed, the applicant shall notify the Department within 72 hours of the severing of the relationship.

5.1.c. Specific areas of professional responsibility of the licensed remediation specialist are as follows:

5.1.c.1. The licensed remediation specialist is responsible for any release of contaminants during assessment and remediation activities undertaken pursuant to and contemplated in the approved remediation agreement, work plans, or reports. The act of moving contaminants within a site in the course of remediation activities is not considered a release;

5.1.c.2. Where a release of contaminants in excess of those identified in the work plan occurs at the site during remediation activities, the licensed remediation specialist shall immediately notify the Department, unless the release does not exceed reportable quantities found in 40 CFR Part 302;

5.1.c.3. A licensed remediation specialist shall only perform assignments for which the specialist is qualified by training and experience in those specific technical fields;

5.1.c.4. A licensed remediation specialist shall be objective in work plans, reports, and opinions and avoid any conflict of interest with employer, clients, and suppliers;

5.1.c.5. A licensed remediation specialist shall not solicit or accept gratuities, directly or indirectly, from contractors, agents, or other parties dealing directly with the employer or client in regard to professional services the licensed remediation specialist is performing at the work site;

5.1.c.6. A licensed remediation specialist shall not accept any type of bribe, falsify or permit misrepresentation of professional qualifications, intentionally provide false information to the Secretary, or knowingly associate with one who is engaging in business or professional practices of fraudulent or dishonest nature; and

5.1.c.7. A licensed remediation specialist shall not charge any special fees above usual and customary professional rates for being licensed.

5.1.d. The Secretary may revoke a license, suspend a license for not more than five years, or impose lesser sanctions as appropriate for acts or omissions in violations of this rule or W. Va. Code § 22-22-1, et seq.

5.2. Application for Licensure. – Any individual who wishes to obtain a license to practice as a licensed remediation specialist must submit a complete and accurate application to the Secretary on forms supplied by the Secretary. The applicant shall submit an application fee, as specified in Table 60-3A of this rule, with the application. In order to qualify for the licensed remediation specialist examination, the applicant must demonstrate to the Secretary that he or she meets the following eligibility requirements:

5.2.a. Minimum Education Requirements: All individuals applying for a license shall meet the requirements of one of the following tracks:

5.2.a.1. Standard Track: The individual has earned a baccalaureate, masters, or doctorate degree from an accredited educational institution in one of the following areas: biology, chemistry, earth sciences, environmental sciences, geology, hydrogeology, microbiology, soil sciences, toxicology, scientific sub-disciplines of public health, risk assessment, hazardous waste management, engineering, or in a curriculum the Secretary determines is equivalent. The charter or accreditation of the recognized educational institution must have been effective as of the date the individual’s degree(s) was granted; or

5.2.a.2. Alternative Track: The individual has earned at least a high school diploma, but does not meet the requirements for the standard track.

5.2.b. Minimum Experience Requirements: Each individual shall demonstrate to the Secretary’s satisfaction that he or she meets the requirements for relevant professional experience, which means that the applicant has performed work of a professional grade and character that indicates the individual is competent to perform professional services pursuant to the requirements of the Act.

5.2.b.1. Relevant professional experience includes, at a minimum, practical knowledge of the following:

5.2.b.1.A. Remediation activities;

5.2.b.1.B. Procedures necessary to remediate a site;

5.2.b.1.C. Management of contaminants at a site, including, but not limited to:

5.2.b.1.C.1. Site investigation;

5.2.b.1.C.2. Health and safety protocol; and

5.2.b.1.C.3. Quality assurance.

5.2.b.1.D. Feasibility studies; and

5.2.b.1.E. Remedial design.

5.2.b.2. Standard Track: The individual must have six years of relevant professional experience, one of which is supervisory or project management related.

5.2.b.3. Alternative Track: The individual must have ten years of relevant professional experience, one of which is supervisory or project management related.

5.2.b.4. In addition to the practical knowledge criteria pursuant to paragraph 5.2.b.1 of this rule, the Secretary will also consider the following criteria in evaluating whether an individual’s remediation and practical experience, considered both individually and collectively, constitute sufficient relevant professional experience:

5.2.b.4.A. Proficiency;

5.2.b.4.B. Broad knowledge of the various remediation technologies;

5.2.b.4.C. Number of individuals and disciplines of other professionals supervised or coordinated;

5.2.b.4.D. Duration of employment;

5.2.b.4.E. Nature of work performed (including, but not limited to, whether such experience includes work at sites where subsurface investigations have occurred); and

5.2.b.4.F. Any other factors the Secretary deems relevant.

5.2.b.5. The individual applying for licensing shall also provide the Secretary with three professional references, each of which, at a minimum, address the individual’s range of practical knowledge and professional experience with regard to providing professional services under the Act.

5.2.b.6. Work performed during a period of full-time undergraduate study at an educational institution is considered part of the educational program, but is not considered acceptable professional experience; provided, that the Secretary may accept work performed for periods of at least two and one-half consecutive months per calendar year when not enrolled as a full-time student, during or incidental to undergraduate education as relevant professional experience, if the individual did not receive college credits for that work.

5.2.b.7. The individual applying for licensing shall submit evidence of any degrees earned from accredited educational institutions which demonstrate ability to meet minimum education requirements.

5.2.c. Credits: Individuals who have earned degrees from recognized educational institutions in addition to those required to meet the minimum educational requirements set forth in subdivision 5.2.a. may request that the Secretary credit some or all of that additional education toward the requirements for relevant professional experience in accordance with the following:

5.2.c.1. Standard Track: One year credit for each master’s degree and two years credit for a doctorate degree, if the degrees are from a recognized educational institution in one of the academic areas identified in paragraph 5.2.a.1;

5.2.c.2. Alternative Track: One-half year credit for each associate degree in one of the academic areas identified in paragraph 5.2.a.1; and

5.2.c.3. The Secretary will grant to an individual up to two years maximum credit for additional education under the Standard Track, or up to one year maximum credit for additional education under the Alternate Track.

5.2.c.4. The individual applying for licensing and requesting credit toward the minimum relevant professional experience requirements shall submit evidence of any degrees earned from accredited educational institutions which demonstrate education beyond the minimum education requirements.

5.3. Licensing Examination: The Secretary is responsible for implementing the following requirements, at a minimum, of the licensed remediation specialist examination:

5.3.a. Frequency and Scheduling: The Secretary shall administer a licensing examination at least every six months to all individuals who have met the requirements for licensure. Examinations shall be held at the time(s) and location(s) set by the Secretary. The Secretary shall provide public notice at least 15 days prior to the application due date for the next scheduled examination;

5.3.b. Examination Format and Content: Examinations shall test the individual’s overall regulatory understanding and overall technical understanding. Overall regulatory understanding means an understanding of the relevant State and federal environmental regulations and related written policies. Overall technical understanding means demonstrating an understanding of basic concepts and methods in those scientific and technical fields related to assessment, containment, and remediation actions;

5.3.c. The Secretary shall prepare the licensing examination;

5.3.d. The Secretary shall initially develop a minimum of three separate examinations. The Secretary shall not repeat one single examination until he or she has given the other two examinations;

5.3.e. After the Secretary has used any of the individual examinations twice, he or she shall prepare a minimum of three new examinations;

5.3.f. An individual may take an examination only if he or she has paid the applicable examination fee established by this rule. The applicant shall pay the examination fee, as specified in Table 60-3A of this rule, after the Secretary has confirmed his or her eligibility to take the exam. The applicant shall pay the examination fee in full by check made payable to the West Virginia Department of Environmental Protection for deposit into the Voluntary Remediation Administrative Fund. The examination fee is non-refundable, except when the applicant shows, to the Secretary’s satisfaction, that his or her failure to appear for the examination was due to circumstances beyond his or her reasonable control, in which case the applicant may either request a refund or request that the Secretary hold open his or her application until he or she can take a subsequent examination. The applicant shall take the make-up examination within two years of the Secretary’s approval of the applicant’s written application.

5.3.g. Examination Procedures and Rules: Each individual shall present some form of photographic identification prior to taking the test. Use of any books, notes, memoranda, scratch paper, calculators, or other materials during the examination is prohibited unless explicitly permitted by the Secretary. No individual may discuss the examination or other procedures during or after the examination, and no individual may make copies of the examination;

5.3.h. The passing score for the examination shall be 70 percent;

5.3.i. Examination Results: The Secretary shall grade the examinations and deliver the results to each individual within 30 days of the examination. The Secretary will not return the examination papers to the individual;

5.3.j. Reapplication for Examination: Individuals who fail to achieve a passing score on the examination may take a subsequent examination subject to the following procedures:

5.3.j.1. An individual shall be allowed to take a subsequent examination that is scheduled to occur on a date not more than two years after the date the Secretary approved the individual’s written application, upon receipt by the Secretary of the following items:

5.3.j.1.A. A letter stating the individual’s intention to take the subsequent examination; and

5.3.j.1.B. The examination fee as provided in Table 60-3A.

5.3.j.2. Individuals who seek to take a subsequent examination that is scheduled for a date that is greater than two years after the date the Secretary approved the individual’s written application must submit the following prior to taking the examination:

5.3.j.2.A. The licensing application as per the procedures set forth in subsection 5.2; and

5.3.j.2.B. The full application fee as provided in Table 60-3A.

5.3.k. Waiver of Examination. – If an individual requests a waiver of the examination for licensure as a remediation specialist, the application shall include any and all information that the applicant wants the Secretary to consider including, but not limited to, relevant licenses and certifications. The Secretary may issue a one-time waiver of the examination for the purpose of submitting an application to participate in the Voluntary Remediation Program. This waiver is only valid for six months after its effective date. No person shall implement a remediation work plan unless and until the remediation specialist has passed the examination. However, to be eligible for a waiver, these individuals shall meet all other requirements for licensing, including, but not limited to, education, relevant professional experience, and practical knowledge.

5.3.k.1. The applicant shall submit an application and application fee regardless of whether the applicant is requesting a waiver of the examination.

5.4. License renewal.

5.4.a. A licensed remediation specialist in good standing may renew his or her license every two years. The Secretary shall consider a renewal application filed in accordance with all appropriate timeframes, which includes the appropriate license renewal fee found in Table 60-3A, and a complete renewal application. A renewal application shall include evidence of continuing education as outlined in Section 5.5.

5.4.b. The Secretary will provide a license renewal notice to the licensed remediation specialist 90 days prior to his or her license expiration. Any individual who fails to renew his or her license shall not continue to practice as a licensed remediation specialist after the day of license expiration. Any individual who fails to renew his or her license within 30 days after the expiration must reapply for examination and is subject to the same requirements as a new applicant.

5.4.c. An individual who has timely completed all of the license renewal requirements will receive a renewed license and may continue to practice as a licensed remediation specialist prior to receiving the renewed license.

5.4.d. Where the applicant has timely filed a renewal application but the Secretary determines that grounds exist for non-renewal of the license, the Secretary shall follow the same procedure for suspension or revocation of licenses set forth in subsection 5.6 of this rule and, pending a final decision by the Secretary on such renewal, the license shall remain in effect.

5.5. Continuing Education Requirements

5.5.a. Licensed remediation specialists must obtain twelve professional development hours every 24 months to be eligible for license renewal. Professional development hours may be earned by attending and successfully completing college courses, continuing education courses, seminars, workshops, and conferences pertaining to investigation, assessment, or remediation of hazardous substances or petroleum. Safety training does not meet the requirements for continuing education.

5.5.a.1. Two of the twelve required professional development hours shall be earned during each license renewal period by successfully completing West Virginia Voluntary Remediation Program training conducted by the West Virginia Department of Environmental Protection.

5.5.a.2. Additional professional development hours earned shall be calculated as follows:

5.5.a.2.A. One college semester hour equals 20 professional development hours.

5.5.a.2.B. One college quarter hour equals 15 professional development hours.

5.5.a.2.C. One continuing education unit (CEU) equals 10 professional development hours.

5.5.a.2.D. One hour of attendance at a seminar, workshop, or professional or technical presentation at a meeting, convention, or conference equals one professional development hour.

5.5.b. Documents used to support professional development hours must be submitted with the renewal application and must include an attendance verification document showing the date of the activity, type of activity claimed, sponsoring organization, and the actual hours of instruction.

5.5.c. The Secretary may excuse or modify the continuing education requirements of this rule for any certification period if a licensed remediation specialist demonstrates to the Secretary’s satisfaction that the licensed remediation specialist is unable to complete the minimum requirements due to health reasons, as certified by a medical doctor, or active service in the United States Armed Forces.

5.6. Suspension and Revocation of Licenses. The provisions set forth in this subsection are in addition to and shall not limit the procedures regarding enforcement orders contained in W. Va. Code § 22-22-12.

5.6.a. Criteria for suspension or revocation of license. – A license issued to a licensed remediation specialist may be suspended or revoked for the following reasons:

5.6.a.1. For fraud by the licensed remediation specialist in the license application process;

5.6.a.2. For fraud, dishonesty, intentional misrepresentation, or gross incompetence by the licensed remediation specialist in the performance of any work required in a work plan or pursuant to a Voluntary Remediation Agreement; or

5.6.a.3. For any act by the licensed remediation specialist in violation of the Act or this rule.

5.6.a.4. Any circumstances that justify revocation of a license under this rule may also justify the non-renewal of a license.

5.6.b. Issuance of Notice of Intent. – If the Secretary finds that sufficient grounds exist to suspend or revoke the license of a licensed remediation specialist, prior to the suspension or revocation, the Secretary shall notify the licensed remediation specialist of his or her intent to suspend or revoke the license. The Secretary shall provide the licensed remediation specialist with a Notice of Intent to Suspend or Revoke by U.S. certified mail, return receipt requested. The Notice shall set forth the specific reasons for the proposed suspension or revocation and shall state that the licensed remediation specialist may request either an informal conference or a hearing on the proposed suspension of revocation pursuant to the Administrative Procedures Act, W. Va. Code § 29A-5-1, et seq. The purpose of the informal conference and the contested case hearing is to determine the rights, duties, interests, and privileges of the licensed remediation specialist. The Secretary may appoint an impartial hearing officer to conduct an informal conference or contested case hearing.

5.6.c. Request for Informal Conference or Contested Case Hearing. – The licensed remediation specialist has 30 calendar days from the receipt of the notice to make a written request for an informal conference or contested case hearing. A request is deemed served on the day it is deposited in the U.S. mail. Failure to respond will result in the imposition of the proposed suspension or revocation. The licensed remediation specialist has a right to an informal conference prior to a formal hearing. The licensed remediation specialist may request an informal conference or a contested case hearing, but the request for and holding of an informal conference does not preclude the licensed remediation specialist from requesting a contested case hearing following the disposition reached in the informal conference.

5.6.c.1. The issuance of a notice of intent to suspend or revoke the license of a licensed remediation specialist shall not prevent the licensed remediation specialist from rendering services under the Voluntary Remediation Program pending a final decision from the Secretary following an informal conference and, if requested, a contested case hearing.

5.6.d. In all proceedings under this section, the licensed remediation specialist may be represented by counsel. The Secretary shall send all notices required by this rule to counsel in the same manner as he or she provides them to the licensed remediation specialist.

5.6.e. Informal Conference. – If the licensed remediation specialist requests an informal conference within the 30-day period, the Secretary shall schedule the conference to be held within 30 days of the request in accordance with the following requirements:

5.6.e.1. The Secretary shall notify the licensed remediation specialist and the primary representative of the Department who was involved in the decision to suspend or revoke the licensed remediation specialist’s license of the time and place of the informal conference. In scheduling the location of the informal conference, the Secretary shall consider the location of the licensed remediation specialist’s business and any particular sites that may have given rise to the decision to revoke or suspend;

5.6.e.2. The Secretary shall notify the licensed remediation specialist of the informal conference at least 15 calendar days prior to the date of the informal conference; and

5.6.e.3. The Secretary may continue the informal conference upon the agreement of the licensed remediation specialist and for good cause shown.

5.6.f. Informal Conference Procedures. – An informal conference, as provided by this rule, is intended to be an informal discussion of the facts which gave rise to the issuance of the decision to suspend or revoke a license. The Secretary shall conduct the conference in the following manner:

5.6.f.1. The Secretary shall be guided by, but need not strictly apply, the West Virginia Rules of Civil Procedure; however, the Secretary shall follow the West Virginia Rules of Evidence as applied in civil cases in the circuit courts of this State;

5.6.f.2. A record of the informal conference is not required but any party may request that a record be made at that party's expense. Any other parties to the conference may obtain copies of the record at their own expense;

5.6.f.3. During an informal conference, the licensed remediation specialist may submit to the Secretary any evidence or demonstration of mitigating circumstances as to why the Secretary should alter the decision to suspend or revoke the license; and

5.6.f.4. At any review proceedings that may occur later, no evidence as to any oral statement made by one party at the informal conference may be introduced as evidence by another party, nor may any statement be used to impeach a witness, unless the statement is or was available as competent evidence independent of its introduction during the informal conference.

5.7. Written Decision.

5.7.a. If the licensed remediation specialist and the Secretary are able to reach an agreement, the Secretary shall prepare a written decision signed by the licensed remediation specialist and the Secretary implementing the decision reached in the informal conference.

5.7.b. If the licensed remediation specialist and the Secretary are unable to reach an agreement within 30 calendar days following the informal conference, the Secretary shall issue and furnish to the licensed remediation specialist a written decision affirming, modifying, or dismissing the initial proposal to suspend or revoke the license and give the specific reasons for the decision. The Secretary shall send notice of his or her decision to the licensed remediation specialist by U.S. certified mail return receipt requested.

5.7.c. Within 30 calendar days of the receipt of the Secretary’s written decision, the licensed remediation specialist may demand a formal hearing as provided herein to determine his or her rights and privileges. The licensed remediation specialist must serve a request in writing upon the Secretary within 30 days of receipt of the written decision. A request is deemed served on the day it is deposited in the U.S. mail. Failure to request a formal hearing on the written decision within the time specified shall cause the decision to become a final unappealable order of the Secretary.

5.8. Contested Cases, Right to a Formal Hearing. – As set forth above, within 30 calendar days after notification of a written decision rendered as a result of an informal conference, the licensed remediation specialist may request a formal hearing before the Secretary in accordance with the Administrative Procedures Act, W. Va. Code § 29A-5-1, et seq. If requested, the Secretary shall grant the request and schedule a contested case hearing.

5.9. Appeals. – An appeal from any final order or ruling entered in a contested case in accordance with this rule shall be to the Circuit Court of Kanawha County in accordance with the provisions of the Administrative Procedures Act, W. Va. Code § 29A-5-4.

5.10. Alternative Procedure. – When imminent or substantial harm is threatened or posed at a voluntary remediation site which, in the Secretary’s opinion, is attributable to the negligence or incompetence of the licensed remediation specialist at the site, the Secretary may, in lieu of the notice of intent under subdivision 5.6.b. of this rule, issue an order in accordance with W. Va. Code § 22-22-12(a)(1). If the licensed remediation specialist files a request for reconsideration as provided in W. Va. Code § 22-22-12(b), the Secretary shall conduct a contested case hearing within ten days of the filing of the request.

W. Va. Code R. § 60-3-6 Voluntary Remediation Agreement

6.1. Any person who desires to participate in the Voluntary Remediation Program shall execute a Voluntary Remediation Agreement with the Secretary. The form agreements contained in Appendix 60-3A and 60-3B meet the requirements of this section. The Secretary and the applicant may agree to additional provisions and modifications consistent with this rule. Except as provided in subsection 6.4 of this rule, the Voluntary Remediation Agreement shall provide for the following:

6.1.a. The services of a licensed remediation specialist for the supervision of all activities described in the agreement, including the supervision of remediation contractors;

6.1.b. The recovery of all reasonable costs incurred by the Department attributable to the implementation of the agreement. Recoverable costs shall include the following:

6.1.b.1. Costs incurred in review and oversight of work plans and reports submitted pursuant to the agreement;

6.1.b.2. Costs incurred as the result of field activities attributable to the agreement; and

6.1.b.3. Costs incurred by the Department in implementing and overseeing activities under the agreement, which costs shall be determined by the number of hours worked under the agreement by each primary employee multiplied by 3.5 times the hourly rate of the employee and then adding the direct expenses incurred by the employee.

6.1.b.4. The Department shall bill all recoverable costs by separate invoice.

6.1.c. A schedule for the payment of recoverable costs;

6.1.d. A description of any work plan or report that the applicant is to submit under the agreement for the Secretary’s review, including the final report, which shall provide all information necessary for the Secretary to verify that the applicant has completed all work contemplated by the agreement: provided, that at the discretion of the applicant, the applicant may submit for the Secretary’s approval work plans describing the work to be performed at the site with the execution of the agreement;

6.1.e. The identification of appropriate tasks, deliverables, and schedules for the submission of any work plans and other deliverables and for the performance of the remediation;

6.1.f. A listing of all environmental statutes and rules for which compliance is mandated;

6.1.g. The reopening of the Voluntary Remediation Agreement upon consent of the parties or the occurrence of one or more of the conditions described in section 15 of the Act; and

6.1.h. The modification of the Voluntary Remediation Agreement upon the agreement of the parties.

6.1.i. The licensed remediation specialist may perform field adjustments which achieve equal performance: provided, that he or she notifies the Department of the field adjustment within 15 days.

6.2. The Voluntary Remediation Agreement shall recognize the right of the applicant to terminate the agreement, in its sole discretion, upon 15 days advance written notice of termination to the Department and shall include provisions for the recovery of costs incurred by the Department before the notice of termination is issued.

6.3. Where the applicant intends to demonstrate that the site meets all applicable standards without further remediation, in lieu of the requirements of subsection 6.1 of this rule, the Voluntary Remediation Agreement shall provide for the following:

6.3.a. The payment of an agreed sum to cover all reasonable costs incurred by the Department attributable to the agreement in excess of fees submitted with the permit application;

6.3.b. A listing of all environmental statutes and rules for which compliance is mandated;

6.3.c. A listing of the applicable standards to be achieved at the site;

6.3.d. The reopening of the agreement upon consent of the parties or upon the occurrence of one or more of the conditions described in section 15 of the Act; and

6.3.e. Where applicable, a description of any engineering or institutional controls and any land use covenant to be imposed for the property.

6.4. The Voluntary Remediation Agreement shall reflect the Secretary’s determination of eligibility in accordance with section 3 of this rule.

6.5. At the discretion of the applicant, the Voluntary Remediation Agreement may address all or only a portion of a site. At the discretion of the Secretary, the Voluntary Remediation Agreement may cover two or more non-contiguous sites; provided, that the sites display similar contaminant profiles and similar surface and subsurface characteristics. Similar surface and subsurface characteristics shall be limited to upland, riparian/wetland, karst, or other similar landforms as approved by the Secretary.

6.6. Where the applicant is a person other than the current owner of the site and the Voluntary Remediation Agreement contemplates the imposition of a land use covenant as provided in section 13 of this rule, the agreement shall have appended to it a provision signed by the current owner(s) of the site authorizing and agreeing to cooperate in the execution and filing of a land use covenant in accordance with the Voluntary Remediation Agreement.

6.7. Upon execution of the Voluntary Remediation Agreement by the parties, the Secretary shall not initiate any enforcement action against the applicant or any person described in section 18 of the Act for the contamination that is the subject of the agreement, unless there is an imminent threat to the public. The Secretary shall not initiate an enforcement action against any applicant from the time the application is filed until the Voluntary Remediation Agreement is signed, so long as the applicant acts in good faith to negotiate a reasonable agreement.

6.8. At the applicant’s discretion, he or she may, in the interest of minimizing environmental contamination and promoting effective cleanups, begin cleanup of soil and groundwater before the Secretary approves the Voluntary Remediation Agreement, provided, that he or she notifies the Secretary in writing.

W. Va. Code R. § 60-3-7 Public Involvement/Public Notification

The public notification and public involvement requirements of this section apply to all Voluntary Remediation Program applicants. Additional public notification and public involvement requirements for applicants receiving Brownfields Revolving Fund moneys are detailed in subsection 15.7 below.

7.1. Public Notice of Applications for Voluntary Remediation Projects. – Upon receipt of an application to conduct a voluntary remediation under the Act, the Department shall publish a summary of the application by both a press release distributed through the Department’s Public Notice Mailing List and to media outlets serving the general area where the remediation is proposed, as well as a legal advertisement in a newspaper of general circulation in the area where the site is located. Information contained in the summary shall include:

7.1.a. The name and business address of the applicant, including a street address or route number;

7.1.b. Geographic location of site and, if one exists, the locally used name of the area;

7.1.c. Current and former uses of the site;

7.1.d. Present and suspected contaminants on site;

7.1.e. Proposed methods to remediate the site;

7.1.f. Proposed methods to control possible health exposure;

7.1.g. Location and address where interested persons may review application;

7.1.h. Name, address, and telephone number of applicant contact for questions from interested individuals; and

7.1.i. Name, address, and telephone number of Department contact where comments and questions can be received.

7.2. Public Inspection of Voluntary Application. – Upon request, any member of the public may inspect and copy a voluntary remediation application at the Department’s Charleston headquarters. Applicant shall place a copy of the application in the municipal offices, county commission offices, or county public library where the remediation is proposed until such time as all certificates of completion applicable to the application have been issued or the application is withdrawn.

7.3. Public Involvement/Public Notification in Development of Remediation Goal.

7.3.a. In the development of remediation goals pursuant to subdivisions 9.3.d and 9.4.a of this rule, the Secretary shall require a 30-day comment period and informational meeting.

7.3.b. To notify the public of the start of the 30-day comment period, the applicant shall:

7.3.b.1. Publish once a week for four consecutive weeks an advertisement in a local newspaper of general circulation in the county where the remediation is occurring.

7.3.b.1.A. The advertisement shall be, at a minimum, four inches by four inches.

7.3.b.1.B. The advertisement shall contain information as set forth in subsection 7.1 of this rule, as well as the date, time, and location of the informational meeting.

7.3.b.2. The applicant shall send a copy of the advertisement to the municipality, the county commission, and either the county and/or municipal land use agency or the area’s Regional Planning and Development Council created under W. Va. Code § 8-25-5.

7.3.b.3. The informational meeting shall be held in the community where the remediation is occurring by day 21 of the 30-day comment period: provided, that a minimum of 15 days’ notice is given for the meeting. The informational meeting shall address how remediation concerns apply to the site, including site risk issues such as key exposure assumptions, uncertainties, populations considered, the context of site risk to other risks, and how the remedy will address site risks.

7.3.c. The applicant shall respond to comments received during the comment period and submit both the comments and the responses to the Secretary.

7.3.d. The Secretary shall review the comments and applicant's responses when making a decision. The Secretary shall notify the parties who provided comments during the comment period of his or her decision.

W. Va. Code R. § 60-3-8 Risk Protocol

This section establishes a risk protocol for conducting human health and ecological risk assessments. It describes general requirements for risk assessments and specific requirements for baseline human health and ecological risk assessments, residual risk assessments, and application of probabilistic risk assessment methods.

8.1. General Requirements for Risk Assessments. – Risk assessments shall consider existing and reasonably anticipated future human exposures and significant adverse effects to ecological receptors of concern in accordance with this rule.

8.1.a. Risk assessments may be conducted using either deterministic (single point value) or probabilistic risk assessment methodologies as agreed to in the Voluntary Remediation Agreement.

8.1.b. Risk assessments, to the extent practicable, shall consider the range of probabilities of carcinogenic risks potentially occurring, the nature and magnitude of potential non-carcinogenic health hazards, the range of size of populations likely to be exposed, current and reasonably anticipated future land and water uses, and quantitative and/or qualitative descriptions of uncertainties in accordance with subsections 8.1 and 8.2 of this rule.

8.1.c. Appropriate sources of toxicity information include the following:

8.1.c.1. For human health risk assessments, in order of preference:

8.1.c.1.A. U.S. EPA Integrated Risk Information System (IRIS);

8.1.c.1.B. U.S. EPA Superfund Health Risk Technical Support Center (SHRTSC) provisional peer reviewed toxicity criteria; and

8.1.c.1.C. Other scientifically valid documents or information developed from governmental or non-governmental sources and approved by the Secretary.

8.1.c.2. For ecological risk assessments, in order of preference:

8.1.c.2.A. U.S. EPA Region 3 BTAG Screening Benchmarks;

8.1.c.2.B. U.S. EPA Region 4 Ecological Risk Assessment Supplemental Guidance;

8.1.c.2.C. U.S. EPA ECOTOX Database;

8.1.c.2.D. U.S. EPA IRIS Database;

8.1.c.2.E. U.S. EPA HEAST Database;

8.1.c.2.F. U.S. Fish and Wildlife Service Technical Reports;

8.1.c.2.G. Oak Ridge National Laboratory Toxicological Benchmark Technical Reports;

8.1.c.2.H. ATSDR Toxicological Profiles;

8.1.c.2.I. Other peer-reviewed technical publications;

8.1.c.2.J. National Oceanic and Atmospheric Administration’s Screening Quick Reference Tables (SQuiRTs); and

8.1.c.2.K. Other scientifically valid documents or information developed from governmental or non-governmental sources and approved by the Secretary.

8.1.d. Risk assessments may include the use of fate and transport models subject to the Secretary’s approval of the model and the data to be used for the parameters specified in the model.

8.1.d.1. The Secretary shall ensure that any fate and transport model approved for use is capable of simulating those site conditions and contaminant properties that might have a significant impact on site-specific contaminant fate or transport.

8.1.d.2. Risk assessments shall include sensitivity analyses of models and data used as model parameters. Sensitivity analyses shall be based on the range of conditions which have historically occurred or may be likely to occur at the site.

8.1.d.3. For models not included in Department guidance documents, risk assessments shall include a description, including published references if available.

8.1.d.4. Where available, the Department shall give preference to the use of peer-reviewed models and data for which on-site validation is demonstrated.

8.1.e. The use of population risk estimates in addition to individual risk assessments is provided for as follows:

8.1.e.1. For human health risk assessments, risk estimates shall initially be made at the level of the individual. A population-based risk assessment may be conducted where the applicant determines it would be practicable and of assistance in evaluating the appropriateness of the remedial action; and

8.1.e.2. For ecological risk assessments, the applicant shall make risk estimates: (A) at the individual level where any endangered or threatened species is significantly impacted by the proposed activities at the site; and (B) at the level of the population for all ecological receptors of concern exposed to contaminants at the site.

8.2. Sampling Protocol, Data Requirements, and Sampling Methods. – The applicant shall use sampling approaches, data quality requirements, and statistical methods set forth in the Voluntary Remediation Program Guidance Manual as approved by the Secretary to support the risk assessment and remedy selection process.

8.2.a. Characterization of Site Contamination. – The applicant shall collect and analyze a sufficient number of environmental media samples so as to provide a reasonable characterization of the nature and distribution of site contaminants, horizontally, vertically, and temporally. Therefore, it may be necessary to sample media such as surface water and groundwater on multiple occasions to assess temporal distribution. The number and location of the samples collected shall be of sufficient quantity and quality to calculate the appropriate exposure point concentration as defined in subparagraph 8.4.b.3.B and subdivision 8.5.c of this rule.

8.2.b. Media to be Sampled. – The applicant shall collect and analyze samples from those media that are reasonably anticipated to have been impacted from contaminants at the site, considering the nature of the site operations and the nature of the contaminants of potential concern at the site.

8.2.c. Contaminants for Analyses. – The applicant may not need to analyze all samples for the same contaminants. The applicant shall analyze collected samples for those contaminants that are reasonably anticipated to be encountered, considering the nature of the site operations and the nature of the substances used or disposed of at the site.

8.2.d. Data Validation. – The applicant shall validate the quality of the analytical data to be used in establishing exposure point concentrations by review of at least ten percent (10%) of the data or some other percentage agreed to by the Secretary in accordance with current EPA protocols and data quality considerations presented in the Voluntary Remediation Program Guidance Manual. Standard EPA protocols for validation may require modification, with the Secretary’s approval, depending on the type of analyses performed (e.g., Contract Laboratory Protocol or SW-846).

8.2.e. The 95th percentile upper confidence limit of the most appropriate frequency distribution of the site data as determined by statistical software (e.g., ProUCL) or the maximum value of the site contaminant concentration data shall be a reasonable estimate of a plausible exposure point concentration for this contaminant. If a contaminant can be shown to have dissimilar distributions of concentrations in different areas, then the areas should be subdivided. For example, "hot spots" may be considered separately.

8.3. Quantification of cumulative risks posed by multiple exposure pathways. – The Applicant shall account for the cumulative risks to each receptor via all pathways to which they may be exposed.

8.3.a. Non-Carcinogenic Risk: An upper-bound hazard quotient shall be calculated for each toxicant in each exposure pathway. The hazard quotients in each pathway will be added to calculate an upper-bound hazard index that accounts for cumulative impacts in that pathway. The hazard indices for each pathway to which a receptor may be exposed will be added to calculate the total site hazard index for each receptor. Where multiple systemic toxicants affect the same target organs or act by the same method of toxicity, the upper-bound estimate of hazard index shall be calculated using these same procedures for each pathway and receptor, but only for the toxicants that impact the specific organ or act by the same method.

8.3.b. Carcinogenic Risk: The excess lifetime cancer risks (ELCR) above and beyond background exposures shall be calculated for each toxicant in each exposure pathway. The ELCR in each pathway will be added to estimate the cumulative cancer risks in that pathway. The ELCR for each pathway to which a receptor may be exposed will be added to estimate the cumulative cancer risks for each receptor.

8.4. Baseline Human Health Risk Assessments (BHHRA). – The applicant may use a BHHRA to provide a characterization of the risks to human health posed by contaminants at the site, given a full evaluation of site-specific conditions.

8.4.a. The applicant may use the BHHRA either to:

8.4.a.1. Assess the need for remedial action considering site-specific conditions; or

8.4.a.2. Demonstrate the acceptability of current site conditions with respect to the remediation standards specified in this rule.

8.4.b. BHHRAs shall include, but are not limited to, the following information:

8.4.b.1. A conceptual site model showing contaminant sources, release mechanisms, transport routes and media, potential human receptor populations, and reasonable potential exposure scenarios based on current and reasonably anticipated land and water uses;

8.4.b.2. Data quality objectives for the human health risk assessment based on the conceptual site model;

8.4.b.3. An exposure assessment that evaluates the potential for and magnitude of human exposure, considering both the current and reasonably anticipated future land and water uses at and in close proximity to the site. An exposure assessment shall include:

8.4.b.3.A. An exposure pathway analysis which identifies complete exposure pathways from contaminants to receptor populations, identifying the nature and extent of site contamination, the presence or absence of media that could transport the site contamination, the presence or absence of receptor populations that could be exposed to the contamination, and the likely exposure routes; and

8.4.b.3.B. A quantification of the magnitude of the exposure (in accordance with Department guidance documents) if, following the performance of the exposure pathway analysis, the potential exists for exposure of receptor populations to site contaminants. At a minimum, the applicant shall develop exposure levels that approximate a reasonable upper bound of the exposure distribution. The applicant may also account for the implementation of presumptive institutional and engineering exposure controls that meet the criteria in subdivision 9.8.a. to account for exposure pathways that will be rendered incomplete by the implementation of these controls.

8.4.b.4. The applicant shall perform a toxicity analysis if he or she identifies and quantifies the potential for human exposure to site contaminants in accordance with subparagraph 8.4.b.3.B of this rule. The toxicity analysis shall include a summary of current information regarding the carcinogenic and non-carcinogenic effects of the identified contaminants of concern, as well as current slope factors, inhalation unit risks, reference doses, reference concentrations, and any other pertinent toxicity values from the sources described in subdivision 8.1.c of this rule.

8.4.b.5. Risk Characterization. – If the potential exists for human exposure to site contaminants, the applicant shall integrate the exposure quantification information with the dose-response assessment (toxicity analysis) to provide a characterization of the potential risks present at the site. The risk characterization shall include a quantification of risks from individual contaminants. The applicant shall include a quantification of cumulative risks posed by multiple contaminants using the most sensitive exposure pathway for each constituent. The risk characterization shall analyze the following:

8.4.b.5.A. Non-Carcinogenic Risk: In quantifying risks from individual toxicants at the site, the applicant shall develop a hazard quotient for each contaminant in each exposure pathway. In quantifying the risks from cumulative exposure to multiple contaminants at the site, the applicant shall develop a hazard index for exposures to multiple contaminants. In developing the hazard index for multiple contaminants, the applicant shall assume additivity, but may account for those contaminants that affect the same target organ or act by the same method of toxicity as outlined in subdivisions 9.2.d, 9.3.g, and 9.4.b; and

8.4.b.5.B. Carcinogenic Risk: In quantifying risks from carcinogens at the site, the applicant shall estimate the excess lifetime cancer risk above and beyond the risk associated with background exposures for individual toxicants as well as the cumulative risks from exposure to multiple toxicants across all pathways. The risk estimates are presumed to be additive unless an alternative mechanism is appropriate.

8.4.b.5.C. The applicant shall include, as appropriate, a discussion of any available facility-specific human health studies and consideration of any other non-quantified (qualitative) risks in the risk characterization described herein.

8.4.b.6. Uncertainty Analysis: As part of performing the site-specific risk assessment under this section, the applicant shall identify the qualitative, and to the extent practicable, the quantitative uncertainty embodied in the analysis. The applicant shall also identify the likelihood of overestimating or underestimating risk for each element of the analysis. At a minimum, this shall include consideration of:

8.4.b.6.A. The analytical characterization of the site;

8.4.b.6.B. The exposure assessment, including the size of the potentially exposed population; and

8.4.b.6.C. The dose-response assessment, including the toxicological criteria used in the analysis and potential synergistic/antagonistic interactions.

8.5. Baseline Ecological Risk Assessment. – The applicant may perform a site-specific de minimis screening ecological evaluation as specified in subsection 9.5 of this rule as part of the site investigation to determine if a complete exposure pathway exists and there are ecological receptors of concern. If, after this evaluation, the applicant identifies a potentially significant complete exposure pathway, then the applicant shall complete the uniform ecological evaluation as specified in subsection 9.6 of this rule to determine if site concentrations exceed benchmark levels. If the applicant proposes remediation goals that exceed benchmark levels, then the Secretary may require, at his or her discretion, a baseline ecological assessment to evaluate potential risks to ecological receptors and to develop appropriate remediation standards based on these risks. If the Secretary requires a baseline ecological risk assessment, it shall address, but not be limited to, the following information:

8.5.a. Problem Formulation. The applicant shall identify the purpose (goals) of the assessment and define the problem. This step includes identification of potential contaminants of concern, potential ecological effects, potential ecological receptors of concern, potential exposure pathways, and initial assessment and measurement endpoints, all with respect to current and reasonably anticipated future land and water uses. The applicant shall develop a conceptual site model to depict how the site conditions might affect ecological components of the natural environment;

8.5.b. Data Quality. The applicant shall develop data quality objectives for the site based on the conceptual site model;

8.5.c. Exposure Analysis. The applicant shall perform an exposure assessment that evaluates the potential for and magnitude of ecological effects to receptors of concern, considering current and reasonably anticipated future conditions at the site. Exposure is analyzed by describing the source and releases, the distribution of the stressor in the environment, and the extent and pattern of contact or co-occurrence. The end product of this analysis is an exposure profile which summarizes the magnitude and spatial and temporal patterns of exposure for the scenarios described in the conceptual site model;

8.5.d. Ecological Response Analysis. If the Exposure Analysis reveals potentially complete pathways for ecological receptors, the applicant shall develop an ecological response analysis that includes a summary of current information regarding the toxicological and ecological effects of the identified contaminants of ecological concern, as well as ecological benchmark values. Appropriate sources of toxicity information are identified in paragraph 8.1.c.2 of this rule;

8.5.e. Ecological Risk Characterization. If the potential exists for significant ecological risks due to exposure to site contaminants, the applicant shall integrate the exposure quantification information in subdivision 8.5.c of this rule with the ecological response analysis to provide a characterization of the risks presented at the site, considering current and reasonably anticipated future land and water uses. The risk characterization shall include a quantitative evaluation of ecological risks potentially associated with the site, a weight-of-evidence analysis of risk, a discussion of available site-specific ecological studies, and consideration of the non-quantified (qualitative) risks as appropriate; and

8.5.f. Uncertainty Analysis. The applicant shall use, as appropriate, qualitative and/or quantitative uncertainty analyses for each element of the risk assessment.

8.6. Residual Risk Assessments (RRA). – The applicant shall consider, in residual human health and ecological risk assessments, conditions that will be present at the site following implementation of the proposed remedy, should one be needed.

8.6.a. In a situation where the applicant has conducted a baseline risk assessment and found that no further action is necessary, the baseline risk assessment may serve as the residual risk assessment.

8.6.b. A RRA shall include an assessment of the risks under current and reasonably anticipated future land and water use scenarios, given:

8.6.b.1. The exposure conditions that will be present following remediation and the concentrations of untreated constituents or treatment residuals remaining at the conclusion of any excavation, treatment, or off-site disposal; and/or

8.6.b.2. The exposure conditions that will result following implementation of any institutional or engineering controls necessary to manage risks from treatment residuals or untreated hazardous constituents.

8.6.c. The applicant shall conduct the RRA following the same basic steps outlined in subsections 8.4 and 8.5 of this rule, except that the conditions used to define the site shall reflect post-remediation conditions, including site-specific numeric remediation standards and site-specific exposure conditions that incorporate any engineering and institutional controls proposed as part of the remedial action.

8.7. Probabilistic Assessment: The applicant may apply probabilistic techniques to human health and ecological risk assessments. At a minimum, before the commencement of a probabilistic risk assessment, the applicant shall discuss with the Secretary the sources and characteristics of the distributions proposed for use in the assessment. The probabilistic risk assessment shall include, but not be limited to, information regarding:

8.7.a. All formulae used to estimate exposure point values, toxicity (e.g., cancer slope factor, reference dose) values, ecological benchmark values, hazard indices, and incremental lifetime cancer risks;

8.7.b. A combination of input parameters expressed as either point estimates or distributions. For each input parameter expressed as a distribution, the applicant shall provide the following information:

8.7.b.1. The shape of the full distribution;

8.7.b.2. To the extent practicable, the mean, standard deviation, minimum, 5th percentile, 10th percentile, median, 90th percentile, 95th percentile, and maximum of the specified distribution;

8.7.b.3. Justification for the use of each distribution clearly explaining the rationale for its use and the rejection of other relevant distributions; and

8.7.b.4. The extent to which input distributions and their parameters capture and separately represent both stochastic variability and knowledge uncertainty. This information shall comprise a portion of, but not be a replacement for, a comprehensive discussion in the body of the baseline risk assessment of the qualitative and quantitative sources of uncertainty.

8.7.c. A description of any correlations between or among input variables that are known or expected to have the practical effect of significantly affecting the risk assessment;

8.7.d. For each output distribution resulting from the probabilistic risk assessment, the following information:

8.7.d.1. The shape of the full distribution and location of the acceptable risk level; and

8.7.d.2. To the extent practicable, the mean, standard deviation, minimum, 5th percentile, 10th percentile, median, 90th percentile, 95th percentile, and maximum of the specified distribution.

8.7.e. A probabilistic sensitivity analysis for all key input distributions conducted so as to distinguish, to the extent possible, the effects of variability from the effects of uncertainty in the input variables;

8.7.f. Justification for the selection of any point estimate value incorporated into the probabilistic assessment and the rationale for its selection and for the rejection of other relevant point estimate values;

8.7.g. Probabilistic methods may be applied to:

8.7.g.1. Environmental media contaminant concentration data;

8.7.g.2. Transport and fate modeling;

8.7.g.3. Exposure estimation;

8.7.g.4. Ecological response estimation; and/or

8.7.g.5. Risk characterization.

8.7.h. The plausible upper-bound exposure condition is equal to approximately the 90th percentile of the exposure distribution. The central-tendency exposure case is the 50th percentile of the exposure distribution. Risk assessments utilizing only deterministic (single point value) methods shall provide both central tendency and plausible upper-bound estimates of exposures and risk.

W. Va. Code R. § 60-3-9 Remediation Standards

This section shall be used for developing risk-based soil and groundwater remedial objectives for site remediation. The purpose of these procedures is to provide for the adequate protection of human health and the environment relative to the current and the reasonably anticipated future uses of the site while incorporating site-related information, to the extent practicable, which may allow for more cost-effective site remediation based on identified site risks.

9.1. Types of Remediation Standards. – Each applicant who responds to the release of a contaminant at a site shall select and attain compliance with one or a combination of the following remediation standards in subdivision 9.1.a and one or a combination of the remediation standards in subdivision 9.1.b. All standards listed in 9.1.a. and 9.1.b. may be selected based on the application of presumptive remedies such as institutional and engineering controls used to limit or eliminate the exposure of potential receptors to Contaminants of Concern:

9.1.a. Human Health:

9.1.a.1. A De Minimis Risk-Based Standard is one in which contaminant levels pose no substantial risks to human health based on any current or reasonably anticipated future land and water use as provided in subsection 9.2 of this rule. If these levels are below natural background, background levels will be considered the de minimis levels;

9.1.a.2. A Uniform Risk-Based Standard is one which uses pre-approved analytical methodologies established by the Secretary to input exposure factors and other site-specific variables to calculate compound-specific remediation levels that will be protective of human health based on any current or reasonably anticipated future land and water use, as provided in subsection 9.3 of this rule. If these levels are below natural or anthropogenic background levels, the background levels will be considered the uniform risk-based levels;

9.1.a.3. A Site-Specific Risk-Based Standard is one which uses a site-specific analysis of present contamination and develops a remedial approach that considers the remedy selection criteria in subdivision 9.8.a of this rule and is protective of human health based upon any current or reasonably anticipated future land and water use; or

9.1.a.4. The applicant may use a combination of the remediation standards to implement a site remediation plan and may choose to use the Site-Specific Risk-Based Standard whether or not the applicant has made efforts to attain the De Minimis or Uniform Risk-Based Standards.

9.1.a.5. In all cases, the presence of free product at a site requires remediation to the maximum extent practical in accordance with the Voluntary Remediation Program Guidance Manual.

9.1.b. Ecological:

9.1.b.1. A De Minimis Ecological Screening Evaluation is an evaluation of the nature and extent of contaminants following the procedures established in the Voluntary Remediation Program Guidance Manual to determine if potential exposure pathways are completed. If contaminants and ecological receptors of concern do not form complete exposure pathways, no significant risk to ecological receptors is assumed.

9.1.b.2. A Uniform Ecological Evaluation is an assessment where contaminant concentrations are compared to benchmark values listed in subsection 8.1.c.2 which reflect no significant risks to ecological receptors of concern when the concentrations are below these benchmarks. If these benchmark values are below natural or anthropogenic background levels, the background levels will be considered the Uniform Ecological Standard. Where an applicant proposes a remediation standard based on other existing standards which exceed the benchmark levels, and the Secretary determines those other existing standards are not protective of ecological receptors of concern, the Secretary may require a site specific ecological risk assessment in order to establish remediation standards.

9.1.b.3. A Site-Specific Ecological Risk-Based Standard which, based on a site-specific analysis of present contamination, develops a remedial approach that considers the remedy criteria in subdivision 9.8.a of this rule and is protective of ecological receptors of concern for the current or reasonably anticipated future land and water use.

9.1.b.4. The applicant may use a combination of the remediation standards to implement a site remediation plan and may propose to use the Site-Specific Risk-Based Standard whether or not the applicant has made efforts to attain the De Minimis Risk-Based Standards.

9.2. Human Health - De Minimis Standard. – The De Minimis Standard establishes contaminant levels that do not present a substantial risk to human health for exposure pathways established in the conceptual site model. The evaluation of exposure pathways in the conceptual site model may consider the presumptive use of institutional and engineering controls to limit or eliminate exposure when implemented. If, on the basis of the site assessment and the evaluation of the applicable exposure pathways, the site meets these human health standards, the applicant shall perform no further remedial action or characterization with respect to human receptors, except implementation of the presumptive institutional and engineering controls considered in the exposure pathway evaluation.

9.2.a. De Minimis Standards for Soils. – The De Minimis Standards for both surface (less than two feet depth) and subsurface (greater than two feet depth) soils shall be the higher numerical value of concentrations set out in paragraphs 9.2.a.1 or 9.2.a.2.

9.2.a.1. Risk-Based Concentrations (RBCs) for Human Health for Residential or Industrial Site Uses that Consider Direct Contact Exposures (ingestion, dermal, and inhalation). – When risk-based concentrations exceed soil saturation concentrations (CSAT), soil saturation concentrations are considered alternatives to RBCs. All RBCs are presented in the De Minimis Standards Table of the Voluntary Remediation Program Guidance Manual.

9.2.a.2. Natural background concentrations for each constituent as determined by sampling and statistical analyses completed using methods provided in the Voluntary Remediation Program Guidance Manual and/or data sources approved by the Secretary.

9.2.a.3. Migration of Soil Contaminants to Groundwater. – Notwithstanding compliance with the De Minimis Standards for Soils, the applicant shall evaluate the potential for the migration of soil contaminants to cause an exceedance of the De Minimis Groundwater Standards as provided in the Voluntary Remediation Guidance Manual and shall implement control(s) as necessary to limit such migration and mitigate potential future impacts to groundwater quality.

9.2.b. De Minimis Standards for Groundwater. – The De Minimis Standards for groundwater shall be determined as follows:

9.2.b.1. Groundwater contaminant concentration limits established in the Legislative Rule entitled “Requirements Governing Groundwater Standards” (47CSR12);

9.2.b.2. For those contaminants where a concentration limit has not been established in 47CSR12, the higher numerical value of the following:

9.2.b.2.A. The Risk-Based Concentrations (RBCs) for human health for residential site uses will be used as presented in the De Minimis Standards Table of the Voluntary Remediation Program Guidance Manual; or

9.2.b.2.B. Natural background levels for each constituent as determined by sampling and statistical analyses completed using methods provided in the Voluntary Remediation Program Guidance Manual and/or data sources approved by the Secretary.

9.2.c. Vapor Inhalation Pathway. – De Minimis Human Health Standards for soil and groundwater do not include health effects and cancer risks associated with the inhalation of vapors originating from these media. Exposures occurring from the inhalation of Contaminants of Concern in vapor originating from these media must be evaluated following procedures outlined in the Voluntary Remediation Program Guidance Manual.

9.2.d. Revisions to the De Minimis Standards. – The Secretary shall review the De Minimis Standards annually and, if necessary, update the De Minimis Standards to reflect current toxicity information, chemical-specific data, and exposure parameters. Additionally, updates to the De Minimis Standards shall occur following significant regulatory changes such as a revised groundwater quality standard or listing of a new hazardous substance in § 104(14) of CERCLA.

9.2.d.1. Calculating the De Minimis Standards

9.2.d.1.A. The U.S. EPA Regional Screening Level (RSL) equations shall be used to calculate the De Minimis Standards. In circumstances when a chemical does not have approved toxicity data, such as lead, other methods approved by U.S. EPA may be used.

9.2.d.1.B. The sources of toxicity information used to calculate the De Minimis Standards shall follow the order of preference listed in paragraph 8.1.c.1 and may also follow the U.S. EPA use of Toxicity Equivalency Factors, Toxic Equivalency Values, surrogate contaminants, or route-to-route extrapolation for applicable contaminants. However, if there is a scientific basis for selecting a toxicity value different from that selected by U.S. EPA, the Secretary may propose an exception to this protocol and provide detailed justification for the exception through the public comment process outlined in paragraph 9.2.d.2 of this rule.

9.2.d.1.C. Additional chemical-specific data used to calculate the De Minimis Standards shall preferentially come from the Risk Assessment Information System (RAIS), followed by the U.S. EPA CompTox Chemicals Dashboard.

9.2.d.1.D. Exposure parameters used to calculate the De Minimis Standards shall be the most current U.S. EPA Default Exposure Factors. The necessary particulate emission factors, volatilization factors, and soil saturation concentrations shall be calculated using the most current U.S. EPA Soil Screening Guidance. The Secretary may substitute these U.S. EPA default values with more relevant state-specific default values as such data becomes available and provide detailed justification for the exception through the public comment process outlined in paragraph 9.2.d.2 of this rule.

9.2.d.1.E. Prior to public notification of proposed changes to the De Minimis Standards, the calculations of all updates to the De Minimis Standards shall be reviewed and verified for correctness by a third-party environmental risk assessor selected through state purchasing procedures.

9.2.d.2. Public Notification, Public Comment Period, and Implementation

9.2.d.2.A. All proposed changes to the De Minimis Standards shall be promulgated as an interpretive rule pursuant to W. Va. Code § 29A-3-1, et seq., and published in the State Register. For each standard being proposed for update or addition, the following information shall be provided: contaminant name; CAS Registry Number; rationale for updating or adding the contaminant, including changes in the values and sources of toxicity data, chemical-specific data, and exposure factors; media type; current standard; proposed standard; and, if applicable, detailed justification for any exceptions to protocol for calculating the De Minimis Standards, as outlined in paragraph 9.2.d.1 of this rule.

9.2.d.2.B. Upon completion of the annual interpretive rule process, the Secretary shall issue an Order that establishes the De Minimis Standards, whereupon a 30-day public comment period shall commence on the day of publication in the State Register. The Secretary shall review and consider all comments received within the 30-day public comment period. Each person submitting a comment shall receive a direct written response, and all comments and responses shall be compiled and posted on the agency’s website.

9.2.d.2.C. Upon review and consideration of all comments received within the 30-day public comment period, the Secretary shall publish the final De Minimis Standards for implementation on the agency’s website and incorporate the updated standards into the De Minimis Standards Table in the Voluntary Remediation Program Guidance Manual.

9.2.d.3. Appeals

9.2.d.3.A. Any person who provides a comment during the public comment period and disagrees with the final determination of the De Minimis Standards established by the Secretary’s Order may file an appeal with the Environmental Quality Board in accordance with W. Va. Code § 22B-1-7.

9.3. Human Health - Uniform Risk-Based Standard. – This standard sets forth uniform, approved methodologies, exposure factors, and other input variables needed to calculate site risks for residential or nonresidential land uses. The Secretary recognizes that there may be instances where the pre-established input variables may not be applicable to a site, and thus will allow for site-specific variables to replace the default variables with adequate technical justification. Typical parameters that may require site-specific input include soil attenuation factors, site-specific hydrogeologic properties, exposure factors based on designated land and water uses, and institutional controls used to manage potential exposure to site contamination.

9.3.a. Uniform Risk-Based Standards for Surface Soils/Sediments. – The applicant shall derive surface soil and sediment remediation standards for residential or industrial land uses by applying site-specific information to the equations and constants from the Voluntary Remediation Program Guidance Manual or other equations and constants approved by the Secretary considering reasonably anticipated future land and water use.

9.3.b. Uniform Risk-Based Standards for Subsurface Soils. – The applicant shall derive subsurface soil remediation values based on:

9.3.b.1. Migration potentials;

9.3.b.2. Leaching potentials; and

9.3.b.3. Soil Saturation Concentrations. – The equations and constants described in the Voluntary Remediation Program Guidance Manual or other equations and constants approved by the Secretary.

9.3.c. Uniform Risk-Based Standard for Groundwater. – The applicant shall derive groundwater remediation values based on:

9.3.c.1. The Potential for the Groundwater to Serve as a Source of Drinking Water. – The applicant shall not consider as a current or potential drinking water source either groundwater that has a background total dissolved solids content greater than 2500 milligrams per liter (mg/l), or groundwater that the applicant can demonstrate, to the Secretary’s satisfaction, is not being used as a drinking water source, cannot be used for future drinking water sources, and is not hydrologically connected to an aquifer being used for drinking water; and

9.3.c.2. Migration Potentials. – The applicant shall apply the equations and constants described in the Voluntary Remediation Program Guidance Manual or other equations and constants approved by the Secretary.

9.3.d. Uniform Risk-Based Standard for Surface Water. – The applicant shall meet the Surface Water Quality Standards developed in 47CSR2. For those contaminants not listed in the Surface Water Quality Standards, applicant shall derive standards based on potential exposures to surface water.

9.3.e. Uniform Risk-Based Standard for the Vapor Inhalation Pathway. – The applicant shall use the methods outlined in the Voluntary Remediation Program Guidance Manual or other methods approved by the Secretary to establish Uniform Risk-Based Standards that protect current and reasonably anticipated future receptors from the exposure to Contaminants of Concern present in the vapor pathway.

9.3.f. Carcinogens. – For individual known or suspected carcinogens, the applicant shall establish remedial standards derived under subdivisions 9.3.a, 9.3.b, and 9.3.c of this rule at levels which represent an excess upper-bound lifetime risk of between one in ten thousand to one in one million (1x10-4 to 1x10-6). If carcinogenic risk greater than 1x10-6 is considered for development of residential remediation goals or greater than 1 x 10-5, for development of industrial remediation goals, the applicant shall provide public notification as specified in subsection 7.3 of this rule.

9.3.g. Systemic Toxicants. – For individual systemic toxicants, remedial standards derived under subdivisions 9.3.a, 9.3.b, and 9.3.c of this rule shall represent levels to which the human population could be exposed without appreciable risk of deleterious effect, where the hazard quotient shall not exceed 1.

9.3.h. If a contaminant exhibits both carcinogenic and non-carcinogenic effects, then the applicant shall use the more conservative risk-based standard (i.e., the lower of the two values) as the remediation standard.

9.3.i. Cumulative Site Risk. – Cumulative upper-bound estimate of site risk per receptor from exposure to known or suspected carcinogens shall not exceed one in ten thousand (1x10-4). The upper-bound estimate of the hazard index for each receptor shall not exceed one (1) where multiple systemic toxicants affect the same target organ or act by the same method of toxicity, or where it is not determined whether multiple systemic toxicants affect the same organ.

9.3.j. Should the site meet uniform risk-based concentrations for all applicable media and related exposure routes, the applicant shall take no further action with regard to human receptors.

9.4. Human Health - Site-Specific Risk-Based Standard. – The applicant shall determine Site-Specific Risk-Based Standards using one or a combination of a BHHRA as described in subsection 8.4 of this rule or a RRA as described in subsection 8.6 of this rule. In establishing the remediation standard under this section, the applicant shall consider the potential for exposure to site contaminants under current and reasonably anticipated future land and water use and the application of institutional and engineering controls.

9.4.a. Carcinogens. – For individual known or suspected carcinogens, the applicant shall establish remedial standards derived under subsection 9.4 at levels which represent an excess upper-bound lifetime risk of between one in ten thousand to one in one million (1x10-4 to 1x10-6). If the applicant considers carcinogenic risk greater than 1x10-6 for individual carcinogens for development of residential remediation goals, or greater than 1 x 10-5 for development of industrial remediation goals, then the applicant shall provide public notification as specified in subsection 7.3 of this rule.

9.4.b. Systemic Toxicants. – For individual systemic toxicants, remedial standards shall represent levels to which the human population could be exposed without appreciable risk of deleterious effect, where the hazard quotient shall not exceed 1. The upper-bound estimate of the hazard index for each receptor shall also not exceed one (1) where multiple systemic toxicants affect the same target organ or act by the same method of toxicity, or where it is not determined whether multiple systemic toxicants affect the same organ.

9.4.c. If a contaminant exhibits both carcinogenic and non-carcinogenic effects, then the applicant shall use the more protective risk-based standard (i.e., the lower of the two values) as the remediation standard.

9.4.d. If probabilistic risk assessment methods are used in establishing the remedial standards or demonstrating the acceptability of the proposed remedial alternative, exposure levels shall approximate the 90th percentile of the exposure distribution.

9.4.e. Groundwater. – The applicant shall establish remedial standards for groundwater using the following considerations:

9.4.e.1. Potential receptors based on the current and reasonably anticipated future use of groundwater and all potential exposure pathways, including the migration of Contaminants of Concern in vapor;

9.4.e.2. The potential for groundwater to serve as a drinking water source, as defined in paragraph 9.3.c.1 of this rule;

9.4.e.3. Site-specific sources of contaminants;

9.4.e.4. Natural environmental conditions affecting the fate and transport of contaminants, such as natural attenuation processes, as determined by scientific methods set forth in the Department’s Voluntary Remediation Program Guidance Manual; and

9.4.e.5. Institutional and engineering controls.

9.4.f. Soil. – The applicant shall establish remedial standards for soil/sediments using the following considerations:

9.4.f.1. Potential receptors based on the current and reasonably anticipated future use of the site and all potential exposure pathways, including the migration of Contaminants of Concern in vapor;

9.4.f.2. Site-specific sources of contaminants;

9.4.f.3. Natural environmental conditions affecting the fate and transport of contaminants, such as natural attenuation processes, as determined by scientific methods set forth in the Department’s Voluntary Remediation Program Guidance Manual; and

9.4.f.4. Institutional and engineering controls.

9.4.g. The Secretary shall incorporate the equations and constants for risk-based standards into a guidance document, along with other relevant information for establishing and applying the standards to specific sites. The Secretary shall revise the guidance document from time to time as needed to incorporate scientific advancements and new or alternative risk assessment and methods. The guidance document, any subsequent revisions, and any alternative risk assessment methods proposed by an applicant shall be reviewed by independent scientists recognized as experts in relevant risk assessment disciplines. The Secretary shall incorporate, as appropriate, the comments of scientific reviewers into the guidance document or decisions regarding risk-based standards or methods.

9.5. Ecological - De Minimis Screening Evaluation. – This standard sets forth uniform, pre-approved methodologies, exposure assumptions, and other input variables needed to evaluate whether complete exposure pathways exist for aquatic and terrestrial ecological receptors of concern. The Secretary recognizes that there may be instances where the pre-established input variables may not be applicable to a site, and thus will allow for site-specific variables to indicate whether an ecological risk assessment is needed.

9.5.a. Typical parameters that the applicant shall consider when evaluating whether or not to perform an ecological risk assessment include, but are not limited to, the following:

9.5.a.1. An evaluation of whether a complete exposure pathway exists. If no complete exposure pathway exists because either the contamination is restricted in movement or there are no ecological receptors of concern, then no ecological risk exists (e.g., if the majority of the site is paved with roads and buildings, no pathway exists);

9.5.a.2. Some sites may be screened out and not require evaluation given their size, estimated risk to ecological receptors, or lack of valued ecological receptors, including threatened or endangered species;

9.5.a.3. Consideration of local conditions in order to assess whether a site is degrading an aquatic environment. In cases where the site does not present an ecological risk over and above "local conditions" and further release of contaminants into the aquatic environment has been stopped, there will not be a need for further evaluation;

9.5.a.4. A definition of what level of ecological resource is considered valued (e.g., individual, population, community, or ecosystem); and

9.5.a.5. If for each contaminated media, harm is readily apparent and a condition of significant risk of harm to the site biota and habitats clearly exists, further ecological risk characterization would be redundant and is not required. The applicant can then proceed directly to the remedy evaluation.

9.5.b. The following are conditions which may be considered indicators of the need for an ecological risk assessment:

9.5.b.1. Stressors have migrated off-site and become widely distributed in the environment;

9.5.b.2. Wildlife or ecological resources of concern are exposed or have potential for significant exposure to stressors from a site, either on or off-site;

9.5.b.3. Remediation of stressors at a site has the potential to expose ecological resources of concern to further impacts;

9.5.b.4. A potential exists for indirect or cumulative impacts to ecosystems of concern;

9.5.b.5. Rare or sensitive species of concern are potentially impacted;

9.5.b.6. Adverse ecological effects have been observed in an otherwise high-quality habitat; and

9.5.b.7. Projected land use involves sensitive ecosystems.

9.5.c. Should the ecological screening evaluation indicate no complete exposure pathways or other conditions specified in subdivision 9.5.a. of this rule exist, or the site meets the Ecological De Minimis Screening Evaluation outlined in the Voluntary Remediation Program Guidance Manual, the applicant shall take no further action regarding ecological receptors.

9.6. Ecological - Uniform Ecological Evaluation. – The Uniform Ecological Evaluation establishes benchmark levels that do not present a significant risk to potential ecological receptors. If, during initial screening, the applicant finds the site meets these standards, the applicant shall take no further remedial action or perform further characterization, and the site is eligible for issuance of a Certificate of Completion by the Secretary. If at any time during characterization or remedial action the applicant shows that the site meets the Uniform Ecological Evaluation, the applicant shall take no further action, and the Secretary may issue the Certificate of Completion. If site contaminants exceed benchmark criteria, the applicant may propose remediation goals protective of ecological receptors of concern. If the applicant chooses to remediate to benchmark levels, he or she shall use the following:

9.6.a. Uniform Standards for Soils (0-4 feet) shall be the highest of the following numerical values:

9.6.a.1. Benchmarks for relevant ecological receptors that consider direct contact exposures, as presented in the Voluntary Remediation Program Guidance Manual; or

9.6.a.2. Natural or anthropogenic background levels for each constituent as determined by sampling and statistical analyses completed using methods presented in the Voluntary Remediation Program Guidance Manual and/or data sources approved by the Secretary.

9.6.b. Uniform Standards for Sediments (0-6 inches) shall be the highest of the following numerical values:

9.6.b.1. Benchmarks for relevant ecological receptors that consider direct contact exposures, as presented in the Voluntary Remediation Program Guidance Manual; or

9.6.b.2. Natural or anthropogenic background levels for each constituent as determined by sampling and statistical analyses completed using methods presented in the Voluntary Remediation Program Guidance Manual and/or data sources approved by the Secretary.

9.6.c. Uniform Standards for Surface Water shall be the highest of the following numerical value:

9.6.c.1. Applicable State water quality criteria, as established in the Legislative Rule entitled “Requirements Governing Water Quality Standards” (47CSR2); or

9.6.c.2. For those contaminants where State water quality criteria have not been established, the applicant shall use the following, in order of preference:

9.6.c.2.A. U.S. EPA Region III Biological Technical Assistance Group (BTAG) Freshwater Screening Benchmarks.

9.6.c.2.B. U.S. EPA Region IV Ecological Risk Assessment Supplemental Guidance (ERASG).

9.6.c.2.C. Applicable NOAEL (No Observable Adverse Effect Level), if available, or ten percent (10%) of the LOAEL (Lowest Observable Adverse Effect Level) values, as presented in the Voluntary Remediation Program Guidance Manual, for contaminants that do not have BTAG or ERASG freshwater screening benchmarks; or

9.6.c.2.D. Natural or anthropogenic background levels for each constituent as determined by sampling and statistical analyses completed using methods presented in the Voluntary Remediation Program Guidance Manual or approved by the Secretary.

9.6.d. Uniform Standards for Groundwater. – Where groundwater is expected to impact surface water, the uniform standards for groundwater shall be the highest of the following numerical value:

9.6.d.1. Applicable State water quality criteria, as established in the Legislative Rule entitled “Requirements Governing Water Quality Standards” (47CSR2); or

9.6.d.2. For those contaminants where State water quality criteria have not been established, the applicant shall use the higher of the following:

9.6.d.2.A. Applicable NOAEL (No Observable Adverse Effect Level) if available, or ten percent (10%) of the LOAEL (Lowest Observable Adverse Effect Level) values, as presented in the Voluntary Remediation Program Guidance Manual; or

9.6.d.2.B. Background levels for each constituent as determined by sampling and statistical analyses completed using methods presented in the Voluntary Remediation Program Guidance Manual or approved by the Secretary.

9.7. Ecological - Site-Specific Risk-Based Standard. – The applicant shall develop Site-Specific Risk-Based Standards using the procedures and factors established by this subsection.

9.7.a. In establishing the remediation standard under this subsection, the applicant shall consider the potential for exposure of ecological receptors of concern to site contaminants under current and reasonably anticipated future land and water use and the application of institutional and engineering controls.

9.7.b. For individual toxicants, remedial standards shall represent levels to which sensitive (i.e., threatened or endangered) ecological population(s) could be exposed without appreciable risk of deleterious effect, where the hazard index shall not exceed one. For non-sensitive ecological receptors, the applicant shall use a weight-of-evidence approach to establish acceptable remedial standards.

9.7.c. If the applicant uses probabilistic risk assessment methods in establishing the remedial standards or demonstrating the acceptability of the proposed remedial alternative, exposure levels shall approximate the 90th percentile of the exposure distribution.

9.7.d. The applicant shall establish remedial standards for soil, sediment, surface water, or groundwater using the following considerations:

9.7.d.1. Potential receptors of concern based on the current and reasonably anticipated use of the site;

9.7.d.2. Site-specific sources of contaminants;

9.7.d.3. Natural environmental conditions affecting the fate and transport of contaminants, such as natural attenuation processes, as determined by scientific methods set forth in the Voluntary Remediation Program Guidance Manual; and

9.7.d.4. Institutional and engineering controls.

9.7.e. The Secretary shall incorporate the equations and constants into a guidance document, along with other relevant information for establishing and applying such standards to specific sites. The Secretary shall revise the guidance document from time to time as needed to incorporate scientific advancements and new or alternative risk assessment methods. The guidance document, any subsequent revisions, and any alternative risk assessment methods proposed by an applicant will be reviewed by independent scientists recognized as experts in relevant risk assessment disciplines. The Department shall incorporate, as appropriate, the comments of scientific reviewers into the guidance document.

9.8. Remediation Measures. – The applicant may attain any of the remediation standards through one or more remediation activities that can include treatment, removal, engineering or institutional controls, and natural attenuation including, but not limited to, innovative or other demonstrated measures.

9.8.a. Remedy Evaluation. – In selecting a remedial action from among alternatives that achieve the goal of cost effective protection of human health and the environment, the applicant shall balance the following factors, ensuring that no single factor predominates over the others. The applicant shall select the remedy that protects human health and the environment using the following criteria:

9.8.a.1. The effectiveness of the remedy in protecting human health and the environment;

9.8.a.2. The reliability of the remedial action in achieving the standards over the long term;

9.8.a.3. Short-term risks to the affected community, those engaged in the remedial action effort, and to the environment posed by the implementation of the remedial action;

9.8.a.4. The acceptability of the remedial action to the affected community;

9.8.a.5. The implementability and technical practicability of the remedial action from an engineering perspective;

9.8.a.6. Meets protectiveness goal at lowest cost; and

9.8.a.7. Considers net environmental benefits of the remedial action.

9.9. Natural Attenuation. – The applicant may request that the Secretary approve a remediation plan based upon natural processes of degradation and attenuation of contaminants. A request submitted to the Secretary under this subsection shall include a description of site-specific conditions, including written documentation of projected groundwater use in the contaminated area based on current State or local government planning efforts, the technical basis for the request, and any other information requested by the Secretary to thoroughly evaluate the request. In addition, the person making the request must demonstrate to the satisfaction of the Secretary:

9.9.a. That the contaminant has the capacity to degrade or attenuate under the site-specific conditions;

9.9.b. That the contaminant area, such as a groundwater plume or soil volume, is not increasing in size or, because of natural attenuation processes, that the rate of contaminant degradation is demonstrably more rapid than the rate of contaminant migration, and that all sources of contamination and free product have been controlled or removed where practicable;

9.9.c. That the time and direction of contaminant travel can be predicted with reasonable certainty;

9.9.d. That contaminant migration will not result in any violation of applicable groundwater standards at any existing or reasonably foreseeable receptor;

9.9.e. If the contaminants have migrated or are predicted to migrate onto off-site properties, the owner must demonstrate that:

9.9.e.1. Such properties are served by an existing public water supply system dependent on surface waters or hydraulically isolated groundwater, or

9.9.e.2. The owners of the properties have consented in writing to allow contaminant migration onto their property.

9.9.f. That, if the contaminant plume is expected to intercept surface waters, the groundwater discharge beyond the sediment/water interface will not possess contaminant concentrations that would result in violations of standards for surface waters contained in the Legislative Rule entitled “Requirements Governing Water Quality Standards” (47CSR2), or in the case of contaminants for which a water quality standard has not been developed, will not possess contaminant concentrations in excess of a human health or ecological risk-based standard;

9.9.g. That the person making the request will implement a groundwater monitoring program sufficient to document the degradation and attenuation of contaminants and contaminant by-products within and down-gradient of the plume and to detect contaminants and contaminant by-products prior to their reaching any existing or foreseeable receptor. The applicant may satisfy the requirement for groundwater monitoring upon successful completion of all of the following, as determined by the Secretary:

9.9.g.1. Installation of an adequate number of appropriately located groundwater monitoring wells;

9.9.g.2. Collection of a minimum of eight samples of groundwater monitoring data collected no more frequently than quarterly and with no more than fifty percent collected during the same season for site-related contaminants to demonstrate the site meets conditions as specified in subdivision 9.9.b; and

9.9.g.3. Use of an attenuation model approved by the Secretary and calibrated using the aforementioned data. The model must be capable of reliably estimating the extent of contaminant impacts to groundwater and the time required to achieve the applicable groundwater standard;

9.9.h. That all necessary access agreements needed to monitor groundwater quality pursuant to subdivision 9.9.g of this section have been or can be obtained; and

9.9.i. That the proposed remediation plan would be consistent with all other environmental laws.

W. Va. Code R. § 60-3-10 Work Plan

10.1. Submittal of Work Plans. – The applicant or the applicant's licensed remediation specialist or contractor shall submit to the Secretary electronic copies of the appropriate work plans and reports as required by the parties' Voluntary Remediation Agreement.

10.2. Action on Work Plans.

10.2.a. The Secretary may, based upon accuracy, quality, and completeness, either approve or disapprove a work plan or report submitted by the applicant or the applicant's licensed remediation specialist or contractor.

10.2.b. The Secretary shall notify the applicant in writing within five days of his or her disapproval of the proposed work plan. The written notice shall contain the specific reasons that the Secretary disapproved the work plan or report and a description of the additional information the Secretary needs in order to approve the work plan or report.

10.2.c. If the Secretary disapproves a work plan or report as submitted, the applicant must resubmit the work plan or report or terminate the agreement pursuant to W. Va. Code § 22-22-9.

10.3. Timing of Submittal and Review.

10.3.a. The Secretary shall either approve or disapprove all work plans and reports in writing within 30 days of receipt (or within a shorter period if specified in the parties' Voluntary Remediation Agreement) and send the approval or disapproval to the applicant within that 30-day period. The parties may mutually agree to an extension of time for the Secretary to approve or disapprove the work plans or reports, in which case, the parties shall confirm the extension in writing.

10.3.b. If the applicant resubmits work plans or reports, the Secretary shall approve or disapprove the resubmitted work plans or reports in writing within 30 days of receipt (or within a shorter period if specified in the parties' Voluntary Remediation Agreement), and send the approval or disapproval to the applicant within that 30-day period. Any action taken on resubmitted work plans or reports must be confirmed in writing and received by the applicant within the 30-day period for acting on a resubmitted application, or within such shorter time specified in the parties' Voluntary Remediation Agreement. The parties may mutually agree to an extension of time for the Secretary to approve or disapprove resubmitted work plans or reports, in which case, the parties shall confirm the extension in writing.

10.3.c. If the Secretary does not approve or disapprove work plans or reports within 30 days of receipt or within a shorter time as specified in the parties' Voluntary Remediation Agreement, or if the Secretary does not approve or disapprove resubmitted work plans or reports within 30 days of receipt or within a shorter time as specified in the parties' Voluntary Remediation Agreement, then the work plans or reports will be deemed approved, unless the Secretary determines that the work plans or reports are materially inaccurate.

10.4. Notice. – Any notice required to be given under the provisions of this section shall be in writing and sent electronically with proof of receipt required, or as specified in the parties' Voluntary Remediation Agreement. Notice is complete upon receipt.

10.5. Completeness and Quality of Work Plans. – In reviewing work plans for quality and completeness, the Secretary may require the work plans to include all of the following:

10.5.a. Documentation of the investigation conducted by the applicant in preparing the work plan;

10.5.b. A description of assessments and other work, if any, to be performed by the applicant to further determine the nature and extent of the actual or threatened release;

10.5.c. A description of risk assessments, if any, to be conducted by the applicant to show the appropriateness of the proposed remedy for the site;

10.5.d. A statement of work to be conducted to accomplish the proposed remediation in accordance with the risk protocol and remediation standards established under sections 8 and 9 of this rule, and a schedule for the implementation of all tasks set forth in the proposed statement of work;

10.5.e. The applicant's verification sampling plan to determine the adequacy of the remediation; and

10.5.f. Other necessary supporting plans or information as deemed appropriate by the party conducting the remediation.

W. Va. Code R. § 60-3-11 Final Report

11.1. This section sets forth the requirements for the submittal and contents of the final report for a site. The applicant may prepare and submit the final report when the applicant has met all applicable standards developed for the site.

11.2. The applicant may subdivide sites for the purpose of preparing final reports.

11.3. The final report shall include or incorporate by reference all data and information needed to document and verify that the site meets all applicable standards and that the applicant has completed all activities specified in the Voluntary Remediation Agreement. The applicant shall provide a complete bibliographic reference for each document being incorporated by reference or place in appendices to the final report all supporting documentation, such as sample collection records, field monitoring data, laboratory reports, relevant correspondence, and permits. The applicant may include maps, drawings, photographs, tables, and other aids to visualization and data presentation. The applicant shall submit an electronic copy of the final report.

11.4. The applicant shall provide the names, addresses, telephone numbers, and email addresses (if available) of the current owners and operators of the site, the owners and/or operators conducting the remediation (if different), and the licensed remediation specialist. The applicant shall also provide individual names and titles for management contacts for each listed firm or organization.

11.5. The applicant shall clearly identify the site location by providing the street address, legal description (including deed book and page numbers and tax parcel identification numbers), and a site location map.

11.6. The applicant shall describe ongoing work, such as site cover or treatment system operation and maintenance or groundwater or surface water monitoring, including descriptions of planned activities and schedules. Where ongoing work continues after issuance of the Certificate of Completion, the applicant shall include provision for recovery of costs incurred by the Department in implementing and overseeing remediation activities.

11.7. The applicant shall append to the final report copies of the documents recorded or to be recorded if institutional controls, such as deed restrictions or land use covenants, are part of the remediation program, including a site map showing the area(s) subject to institutional controls.

11.8. The applicant or the applicant’s authorized agent and the licensed remediation specialist shall certify in writing the completeness and accuracy of the final report. The form of this certification shall be as follows:

I hereby certify that the information presented in this report is, to the best of my knowledge and belief, true, accurate, and complete, having been prepared under a system and organization designed to produce true, accurate, and complete information.

If the authorized agent and the licensed remediation specialist are the same, a single signature will be sufficient.

W. Va. Code R. § 60-3-12 Certificate of Completion

12.1. Completion of Remediation.

12.1.a. A voluntary remediation is complete when the site meets applicable standards and all work has been completed as contemplated in the Voluntary Remediation Agreement.

12.1.b. When a site meets applicable standards and the applicant has completed all work required by the Voluntary Remediation Agreement to meet applicable standards, the licensed remediation specialist shall issue a final report to the applicant. The report shall explain how the applicant has demonstrated compliance with the requirements of the Voluntary Remediation Agreement.

12.1.c. The applicant to whom the licensed remediation specialist has issued a final report may do either of the following:

12.1.c.1. Request a Certificate of Completion from the Secretary, as provided in subsection 12.2 of this rule; or

12.1.c.2. Request a Certificate of Completion from the licensed remediation specialist, when applicable, as provided in subsection 12.4 of this rule.

12.2. Issuance of Certificate of Completion by the Secretary.

12.2.a. Upon receiving the request provided in paragraph 12.1.c.1 of this rule, the Secretary shall evaluate the final report provided by the applicant and determine, within 60 days, whether the licensed remediation specialist properly issued the final report. When reviewing a final report, the Secretary shall only consider whether:

12.2.a.1. The site meets applicable standards for those areas of the site and for those contaminants identified in the Voluntary Remediation Agreement; and

12.2.a.2. The applicant has complied with the Voluntary Remediation Agreement and any approved work plans for the site.

12.2.b. If the Secretary agrees that the licensed remediation specialist properly issued the final report, the Secretary shall issue a Certificate of Completion within 60 days of receipt of the applicant’s request for a Certificate of Completion.

12.2.c. If the Secretary does not agree that the licensed remediation specialist properly issued the final report, the Secretary shall, within the 60-day review period provided for review of a request for Certificate of Completion, provide written notification to the applicant stating in detail the reasons why he or she does not deem the report properly issued and indicating any further action the applicant must take in order for the Secretary to issue the Certificate. Upon receipt of the notification, the applicant may:

12.2.c.1. Instruct the licensed remediation specialist to take the further action identified by the Secretary; or

12.2.c.2. Terminate the Voluntary Remediation Agreement.

12.3. Contents of the Certificate of Completion.

12.3.a. The Certificate of Completion shall attach or incorporate the following:

12.3.a.1. A legal description of the site to which the Certificate of Completion pertains, including the deed book and page number and tax parcel identification number;

12.3.a.2. A list of the contaminants of concern in each environmental media for which the site meets applicable remediation standards, and a list of the remediation standards applicable to each media;

12.3.a.3. The Voluntary Remediation Agreement under which the site was remediated and/or evaluated;

12.3.a.4. The final report issued by the licensed remediation specialist; and

12.3.a.5. Any land use covenant or deed restriction imposed for purposes of meeting applicable remediation standards including, where applicable, a description of any institutional or engineering controls employed at the site for purposes of meeting the standards.

12.3.b. The Certificate of Completion shall provide that:

12.3.b.1. The site that is described in the Certificate of Completion meets the applicable standards as provided in section 9 of this rule;

12.3.b.2. The applicant and the persons identified in section 18 of the Act (A) are relieved of liability to the State for the release that caused the contamination that was the subject of the voluntary remediation, and the State shall not institute any civil, criminal, or administrative action arising from the release and resulting contamination as long as the site continues to meet applicable standards in effect at the time the Certificate was issued; and (B) shall not be subject to citizen suits or contribution actions with regard to the contamination that was the subject of the Voluntary Remediation Agreement;

12.3.b.3. Where the agreement imposes an obligation that continues beyond the effective date of the Certificate and those obligations are no longer satisfied, with the result that the site no longer meets the applicable standards approved for the remediation or continued compliance with the applicable standard is threatened, the Secretary shall initiate action to ensure the site is brought into compliance in accordance with section 14 of this rule or rescind the covenant contained in this Certificate as it would apply to the then-current owner or operators of the site and their successors and assigns;

12.3.b.4. Except as provided in paragraph 12.3.b.3 of this rule, the Secretary may revoke a Certificate of Completion or instead require further remediation of any site described in the Certificate of Completion only where the Secretary has determined that a reopener has been triggered in accordance with section 16 of this rule. Where a Certificate is revoked under this provision, it is revoked only as to the then-current owner or operator of the site and their successors and assigns, except in the case where fraud was committed in demonstrating attainment at the site as provided in subdivision 16.1.a of this rule. In this latter case, the Certificate is revoked as it would apply to any person; and

12.3.b.5. The duties and benefits of the Certificate of Completion are transferable to successors and assigns of the applicant, subject to the obligations of any land use covenant referred to in the Certificate of Completion.

12.3.c. The Certificate of Completion contained in Appendix 60-3D meets the requirements of this section. The applicant and the Secretary may agree to additional provisions and modifications which differ from the form in Appendix 60-3D, but which are consistent with this rule.

12.4. Certificates of Completion Issued by Licensed Remediation Specialists.

12.4.a. A licensed remediation specialist may issue a Certificate of Completion for any site that complies with the De Minimis Standards set forth in subsections 9.2 and 9.5 of this rule, provided that the licensed remediation specialist issues a final report and gives the Secretary notice of his or her intention to issue a Certificate of Completion for the site.

12.4.b. A Certificate of Completion issued by a licensed remediation specialist shall comply with subsection 12.3 of this rule.

12.4.c. The Secretary may object to the issuance of a Certificate of Completion by a licensed remediation specialist within 30 days of receipt of notice of the Certificate’s issuance, as provided in subdivision 12.4.a. of this rule. If the Secretary objects to issuance of the Certificate, the applicant may take any of the actions allowed under subdivision 12.2.c. of this rule. If the Secretary fails to object within the 30-day period, the licensed remediation specialist may issue the Certificate of Completion.

12.5. Effective Date.

12.5.a. A Certificate of Completion issued by the Secretary shall become effective when signed by the Secretary or, where applicable, upon the filing of any land use covenant required by the Certificate, whichever shall last occur.

12.5.b. A Certificate of Completion issued by a licensed remediation specialist shall become effective when signed by the licensed remediation specialist after notice to the Secretary in accordance with subsection 12.4 of this rule, or, where applicable, upon the filing of any land use covenant required by the Certificate, whichever shall last occur.

W. Va. Code R. § 60-3-13 Land Use Covenants

13.1. Any limitation on the use of a property that is required in order to meet applicable environmental standards shall be contained in a land use covenant. The use restrictions may include prohibiting residential use of some or all of the site or requiring maintenance of engineering or institutional controls.

13.2. Contents of a land use covenant

13.2.a. A land use covenant shall:

13.2.a.1. State that the instrument is an environmental covenant executed pursuant to the Uniform Environmental Covenants Act, W. Va. Code § 22-22B-1, et seq.;

13.2.a.2. Contain a legally sufficient description of the real property subject to the covenant;

13.2.a.3. Describe the activity and use limitations on the real property;

13.2.a.4. Identify every owner of record of a fee interest in the property;

13.2.a.5. Identify every holder of the land use covenant within the meaning of W. Va. Code § 22-22B-2(6);

13.2.a.6. Contain the notarized signature(s) of the agency, every holder, and, unless waived by the agency, every owner of the fee simple of the real property subject to the covenant;

13.2.a.7. Identify the name and location of any administrative record for the work performed under the Act and this rule at the real property subject to the covenant;

13.2.a.8. State whether the applicant used residential or non-residential exposure assumptions to comply with a site-specific remediation standard;

13.2.a.9. Provide requirements for notice within 10 days following transfer of a specified interest in, changes in use of, or applications for building permits or proposals for any site work affecting the contamination on the property subject to the covenant;

13.2.a.10. Contain a provision that the applicant and its assigns and successors are relieved of all civil liability to the State for the release of contaminants and remediation activities, as long as the property meets applicable standards in effect at the time the covenant was issued; and

13.2.a.11. Contain a map indicating the area or areas to which specific activity and use limitations apply.

13.2.b. A land use covenant may:

13.2.b.1. Provide a brief narrative description of the contamination and remedy, including the contaminants of concern, the pathways of exposure, limits on exposure, and the location and extent of the contamination;

13.2.b.2. Grant rights of access to the property for purposes of implementation or enforcement of the covenant;

13.2.b.3. Provide requirements for periodic reporting describing compliance with the covenant;

13.2.b.4. Provide limitations on amendments or termination of the covenant in addition to those specified in W. Va. Code §§ 22-22B-9 and 22-22B-10; and

13.2.b.5. Provide rights of the holder in addition to the holder’s right to enforce the covenant pursuant to W. Va. Code § 22-22B-11.

13.2.c. In addition to other conditions for approval of an environmental covenant, the Secretary may require those persons he or she specifies as having interests in the real property to sign the covenant.

13.3. The applicant for participation in the Voluntary Remediation Program shall record the land use covenant in the deed book of each county in which any portion of the site is located, return the original recorded document to the Secretary, and provide a certified copy of the recorded covenant to each of the parties named in subsection 13.5 of this rule.

13.4. The land use covenant form contained in Appendix 60-3E meets the requirements of this section. The holders and the Secretary may agree to additional provisions or modifications that are not inconsistent with this rule, the Voluntary Remediation and Redevelopment Act, or the Uniform Environmental Covenants Act.

13.5. The applicant, property owner, or responsible party, as applicable, shall provide a copy of the land use covenant to:

13.5.a. Each person who signed the covenant;

13.5.b. Each person holding a recorded interest in the real property subject to the covenant;

13.5.c. Each person in possession of the real property subject to the covenant;

13.5.d. Each municipality or other unit of local government in which real property subject to the covenant is located; and

13.5.e. Any other person the agency requires.

13.6. The applicant shall provide geographic information system (GIS) data in either ESRI® shapefile or a computer aided drafting format adequate to accurately delineate the area or areas to which specific land use restrictions or institutional controls apply.

13.6.a. All GIS location data shall have a horizontal accuracy within 5 meters (15 feet).

13.6.b. All spatial data shall be in one of the three following coordinate systems:

13.6.b.1. Universal Transverse Mercator (UTM) North American Datum 1983 (NAD83) zone 17 North – meters (preferred);

13.6.b.2. Geographic (Latitude and Longitude) 1984 World Geodetic System (WGS84); or

13.6.b.3. West Virginia State Plane Coordinate System, North or South zone as appropriate, NAD27 or NAD83 – US Survey feet or meters.

13.7. The validity of a covenant is not affected by failure to provide a copy of the covenant as required under section 13.5 of this rule.

13.8. The duration, amendment, and termination of a land use covenant shall be governed by the Uniform Environmental Covenants Act, W. Va. Code § 22-22B-1, et seq.

W. Va. Code R. § 60-3-14 Procedure where Certificate of Completion or Land Use Covenant is Violated

14.1. If at any time the Secretary determines that an obligation imposed by the Certificate of Completion or by any land use covenant issued pursuant to the Act is not being satisfied with the result that the site no longer meets the approved remediation standard or continued compliance with the remediation standard is threatened, the Secretary shall issue notice of the determination by providing written notice through certified/registered mail to the current owner or operator of the site. The notice shall identify the obligations that are not being satisfied and the appropriate corrective action that must be taken.

14.2. The covenant set forth in the Certificate of Completion and the provisions regarding relief from liability in any land use covenant shall no longer apply to the current owner or operator of the site and their successors and assigns upon the expiration of 60 days from the date of issuance of notice as provided in subsection 14.1 of this rule, unless prior to that time the current owner or operator takes action to ensure that all obligations imposed by the Certificate are satisfied.

W. Va. Code R. § 60-3-15 Brownfields Revolving Fund

15.1. The Secretary may disburse money from the Brownfields Revolving Fund to an eligible applicant for site assessment or remediation of a brownfield, or for other eligible activities to the extent monies are available in the Brownfields Revolving Fund.

15.2. Eligible Applicants. – A person may apply for a loan from the Brownfields Revolving Fund if the applicant meets all of the following conditions:

15.2.a. The site meets the eligibility requirements for the Voluntary Remediation Program outlined in subsection 3.1 of this rule;

15.2.b. The applicant is able to certify that neither the applicant him- or her-self nor any member of his or her immediate family caused or contributed to the contamination on the site;

15.2.c. The applicant shall provide documentation demonstrating that the applicant:

15.2.c.1. Has a legal right to remediate the subject property through ownership or a legal access agreement;

15.2.c.2. Is authorized to incur debt and enter into a legally binding loan agreement;

15.2.c.3. Has the ability to repay the loan; and

15.2.c.4. Is in compliance with the U.S. EPA’s All Appropriate Inquiry Rule to claim liability protection as a bona fide prospective purchaser (BFPP), contiguous property owner (CPO), or innocent landowner (ILO).

15.3. Ineligible Applicants. – An applicant is ineligible for Brownfields Revolving Fund moneys if any of the following is true:

15.3.a. Applicant was previously suspended, debarred, or declared ineligible for federal assistance programs; or

15.3.b. Applicant is currently delinquent in taxes, loan payments, or other indebtedness to the State of West Virginia or any political subdivision.

15.4. Loan Applications.

15.4.a. As provided in W. Va. Code § 22-22-5(a), after conducting a pre-application conference with the Secretary, any person who satisfies the criteria set forth in subsection 15.2 of this rule may apply to the Secretary for a loan to perform a site assessment or remediation at a brownfield site. The application shall be on a form prescribed by the Secretary.

15.4.b. The Secretary shall act upon a completed Brownfields Revolving Fund loan application within 45 days of receiving it. The Secretary may approve the application, reject the application, or accept the application subject to correction. The Secretary shall provide the applicant a reasonable amount of time to make corrections specified by the Secretary.

15.4.c. The Secretary shall memorialize each loan in a written document that identifies the amount of the loan, the interest rate, and the repayment schedule.

15.5. Loan Conditions. – The Secretary shall include the following conditions in the document memorializing the loan:

15.5.a. The applicant shall periodically report to the Secretary all expenditures of Brownfields Revolving Fund loan funds.

15.5.b. Where the applicant is the owner of the property upon which the site assessment is to be performed, the applicant shall execute a deed of trust or provide any other collateral of equal or greater value to secure the loan.

15.5.c. Where the applicant is not the owner of the property upon which the site assessment is to be performed, the applicant shall provide appropriate collateral to secure the loan.

15.6. Repayment.

15.6.a. The applicant shall repay the loan at a rate of interest determined by the Secretary at the time he or she approves the application. The loan shall be low interest.

15.6.b. The applicant shall repay the loan in equal installments over a period of no longer than ten years, as allowed by the Secretary.

15.7. Additional Public Involvement and Public Notification Requirements.

15.7.a. The applicant shall pay any costs the Department incurs in carrying out the provisions of this subsection.

15.7.b. Public Notice of Application for the Voluntary Remediation Program. – The applicant shall produce and circulate a public notice of its application to the Voluntary Remediation Program in accordance with subsection 7.1 of this rule, which shall also include the following:

15.7.b.1. A summary of the proposed future use of the site; and

15.7.b.2. A summary of the public’s right under the Act to become involved in the development and remediation and reuse of the site, as well as the time, date, and location of an informational meeting the applicant will hold with regard to the application.

15.7.b.3. The applicant shall publish the public notice once a week for four consecutive weeks in a local newspaper of general circulation in the county where the brownfield remediation is proposed.

15.7.c. Public Notice Provided by the Secretary. – The Secretary shall provide the Public Notice of Application outlined in paragraphs 15.7.b.1 through 15.7.b.3 above to:

15.7.c.1. The municipality and county commission where the site is located; and

15.7.c.2. The county and/or municipality land use agency or the area’s Regional Planning and Development Council created by W. Va. Code § 8-25-5.

15.7.c.3. The Secretary may provide the summary to the U.S. EPA, the U.S. Army Corps of Engineers, the State Bureau for Public Health, and other State or federal agencies that may have an interest in the remediation project.

15.7.d. Signage. – The applicant shall erect a sign on the brownfield site that:

15.7.d.1. Informs that community the site is entering the State’s Voluntary Remediation Program;

15.7.d.2. Is placed on the property so that it is clearly visible and legible and is at least three feet by four feet in dimension; and

15.7.d.3. Includes the telephone number and address of the Department’s Office of Environmental Remediation.

15.7.e. Comment Period and Informational Meeting on Public Notice of Application. – The applicant shall provide a 30-day public comment period and hold an informational meeting on the application. The public notice and comment period shall meet the following conditions:

15.7.e.1. The 30-day comment period will begin either on the initial date of publication of the Public Notice of Application or upon erection of a sign on the brownfield site, whichever occurs last.

15.7.e.2. The informational meeting shall occur in the community where the brownfield is located by day 21 of the 30-day comment period. The applicant shall provide a minimum of 15 days’ notice for the meeting. The informational meeting shall address how remediation concerns apply to the site, including site risk issues such as key exposure assumptions, uncertainties, populations considered, the context of site risk to other risks, and how the remedy will address site risks.

15.7.f. Public Participation in Remediation and Reuse Planning. – Any person may ask to be involved in the development of the brownfield remediation and reuse plan by making the request to participate in writing to the Secretary during the 30-day comment period. Any person who files a request may participate in the development of the remediation and reuse plan in person or by representative.

15.7.g. Public Involvement Plan. – The applicant shall establish a Public Involvement Plan if requested by the public, county, municipality, or Secretary. The applicant, in consultation with the persons requesting to be involved in the remediation and reuse of a brownfield site, shall develop the Public Involvement Plan within 30 days of receiving notice from the Secretary that a Public Involvement Plan has been requested. The Public Involvement Plan shall include, but is not limited to, the following:

15.7.g.1. Provisions for further meetings in the community; and

15.7.g.2. Opportunities for participants to review and comment on each work plan, as well as review and comment on the Voluntary Remediation Agreement before it is finalized and accepted by the Secretary.

15.7.g.3. The applicant shall submit the Public Involvement Plan to the Secretary for review and approval prior to its implementation.

15.7.g.4. The approved Public Involvement Plan shall remain in effect until the Secretary issues the Certificate of Completion, or until the applicant withdraws from the Voluntary Remediation Program.

15.7.g.5. The Secretary shall consider comments from participants, as well as the applicant’s responses to comments, regarding the Voluntary Remediation Agreement, work plans, and reports prior to accepting the submission of these documents.

15.7.h. Technical Assistance. – At any time during the life of the Public Involvement Plan, participants other than the applicant may petition the Secretary for technical assistance related to:

15.7.h.1. Reviewing site-related documents;

15.7.h.2. Explaining technical information to stakeholders;

15.7.h.3. Providing assistance in communicating the concerns of stakeholders to the appropriate persons; or

15.7.h.4. Any other areas deemed appropriate by the Secretary.

15.7.h.5. Upon receipt of a petition for technical assistance, the Secretary and applicant, by mutual agreement, will develop a technical assistance component to the Public Involvement Plan. The Secretary and the applicant shall consider comments from participants in the development of the technical assistance component.

15.7.g. Notice of Certificate of Completion. – Upon the Secretary’s issuance of the Certificate of Completion, he or she shall notify the municipality, county commission, and county or municipal land use agency or the area’s Regional Planning and Development Council created by W. Va. Code § 8-25-5.

W. Va. Code R. § 60-3-16 Reopener Provisions

16.1. If at any time the Secretary determines that one of the reopener conditions in the Act has been triggered, he or she shall issue notice of his or her determination by providing written notice through certified/registered mail to the initial remediator and the current occupant, and any other person who has asked to be notified of any actions regarding the site.

16.2. The Certificate of Completion previously issued for the site shall become null and void upon the expiration of 60 days from the date of issuance of notice as provided in subsection 16.1, unless prior to such time at least one of the following occurs:

16.2.a. Where the initial remediator seeks to maintain the Certificate of Completion then in effect, the initial remediator shall:

16.2.a.1. Reopen and revise the Voluntary Remediation Agreement to the extent necessary to return the site to its previously agreed to state of remediation; or

16.2.a.2. Reopen and revise the Voluntary Remediation Agreement to the extent necessary to achieve an alternative appropriate standard as determined by the Secretary;

16.2.b. Where some person other than the initial remediator seeks to maintain the Certificate of Completion then in effect, the person shall enter into a Voluntary Remediation Agreement with the Secretary in accordance with the requirements of this rule that contains provisions necessary to assure that the property meets the state of remediation previously agreed to or another appropriate standard as determined by the Secretary.

APPENDIX 60-3A

WEST VIRGINIA VOLUNTARY REMEDIATION AGREEMENT

FOR NO FURTHER ACTION INVESTIGATION ACTIVITIES

INTRODUCTION

The West Virginia Department of Environmental Protection (WVDEP), by its Secretary, and ­______________ (Applicant) hereby enter into this Voluntary Remediation Agreement (Agreement), pursuant to the Voluntary Remediation and Redevelopment Act, W. Va. Code § 22-22-1, et seq. (the Act), for the purpose of investigating and, if warranted, remediating the property that is the subject of this Agreement (the Site).

Applicant reserves all rights it may have under common law, the West Virginia Code, and federal statutes to seek contribution or indemnity. WVDEP reserves all rights it may have under common law, the West Virginia Code, and federal statutes to seek contribution or indemnity from persons other than Applicant and those persons identified in W. Va. Code § 22-22-18.

By entering into this Agreement, Applicant neither admits nor denies liability for the conditions on the Site.

STATEMENT OF ELIGIBILITY

The Secretary has determined that the Voluntary Remediation Program Application submitted by Applicant is complete and that Applicant is eligible to participate in the Voluntary Remediation Program. However, neither the Secretary’s determination of eligibility nor the entry into this Agreement precludes any finding by the Secretary at a later date that the Site poses an imminent and substantial threat to human health or the environment within the meaning of W. Va. Code § 22-22-7(d). In addition, if the Secretary determines that Applicant withheld or misrepresented information that would be relevant to Applicant’s eligibility, the Secretary may withdraw from this Agreement.

PARTIES BOUND

This Agreement applies to and is binding upon Applicant, its officers, secretaries, principals, employees, agents, successors, subsidiaries, and assigns and upon WVDEP, its employees, agents, and successors. The signatories to this Agreement certify that they are fully authorized to execute and legally bind the parties they represent. No change in ownership, corporate, or partnership status of Applicant shall in any way alter its status or responsibilities under this Agreement unless Applicant or WVDEP withdraws from this Program as provided herein.

Applicant shall provide a copy of this Agreement to any subsequent owners or successors before Applicant transfers any ownership rights.

DEFINITIONS

“Day” means a calendar day with the 24-hour period between 12:00 A.M. - 12:00 A.M.

“No further action” means a site is eligible to receive a Certificate of Completion on the basis of site assessment sampling or sampling data developed under a Voluntary Remediation Agreement which demonstrates that the site meets applicable standards.

“Rule” means the Voluntary Remediation and Redevelopment Rule, 60CSR3, promulgated pursuant to the Act.

“Site” has the meaning ascribed to it in the Act and, for purposes of this Agreement, means the property located in __________, West Virginia, and is more particularly described in the Voluntary Remediation Program Application submitted to WVDEP and accepted by letter dated _______________.

All other terms contained in this Agreement shall be used in the manner as defined by W. Va. Code § 22-22-2 and the Rule.

STATEMENT OF PURPOSE

This Agreement sets forth necessary terms and conditions to satisfy the requirements of the Act for the investigation and, if warranted, the remediation of the Site.

The activities conducted by Applicant under this Agreement are subject to approval by WVDEP as provided herein. The activities conducted by Applicant shall be consistent with this Agreement, all applicable laws and rules, and any appropriate guidance documents.

EVALUATION OF SITE ASSESSMENT

Applicant has submitted a Site Assessment Report as a part of the Voluntary Remediation Program Application. The Site Assessment Report was accompanied by a Final Report prepared by __________, a Licensed Remediation Specialist (LRS), which states that the Site meets the applicable standard described in Paragraph 15 of this Agreement.

The parties agree that the applicable remediation standards for this Site, and where applicable, the engineering or institutional controls and any land use covenant to be imposed for the property, are as follows:

REMEDIATION STANDARDS (as per 60CSR3, Section 9)

Receptors Media Remediation Standards Human Health Surface Soils Subsurface Soils Groundwater Sediment Surface Water Ecological Soils Groundwater Sediment Surface Water ENGINEERING OR INSTITUTIONAL CONTROLS, AND LAND USE CONTROLS Receptors Media Description of Control Human Health Surface Soils Subsurface Soils Groundwater Sediment Surface Water Ecological Soils Groundwater Sediment Surface Water The statutes and rules with which compliance is mandated in connection with the investigation or remediation of this Site are as follows:

Air Pollution Control Act, W. Va. Code § 22-5-1, et seq.;

Water Pollution Control Act, W. Va. Code § 22-11-1, et seq.;

Groundwater Protection Act, W. Va. Code § 22-12-1, et seq.;

Hazardous Waste Management Act, W. Va. Code § 22-18-1, et seq.;

Section 103(a) of Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9603(a);

Section 304 of Emergency Planning and Community Right-To-Know Act, 42 U.S.C. § 11001 to 11050;

Occupational Safety and Health Act, 29 U.S.C. § 651 to 678;

Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. and its State counterpart, the West Virginia Solid Waste Management Act, W. Va. Code § 22-15-1, et seq.;

Toxic Substances Control Act, 15 U.S.C. § 2601, et seq.; and Any applicable rule or regulation promulgated thereunder.

WVDEP has reviewed the Final Report and the Site Assessment Report submitted as a part of the Voluntary Remediation Program Application and has concluded that the Site meets the applicable standards described in Paragraph 15 of this Agreement.

Nothing herein shall be construed as restricting the inspection or access authority of WVDEP under any law or rule.

RECORD PRESERVATION

Applicant agrees to preserve, for a minimum of three (3) years from the effective date of this Agreement, all documents required by this Agreement and any other documents generated or used to prepare the documents required by this Agreement. Upon request by WVDEP, Applicant shall make available to WVDEP the records or copies thereof.

RESERVATION OF RIGHTS

WVDEP and Applicant reserve all rights and defenses they may have pursuant to any available legal authority unless expressly waived herein.

Nothing herein is intended to release, discharge, or in any way affect any claims, causes of action, or demands in law or equity which the parties may have against any person, firm, partnership, or corporation not a party to this Agreement for any liability it may have arising out of, or relating in any way to, the generation, storage, treatment, handling, transportation, release, or disposal of any materials, hazardous substances, hazardous waste, contaminants, or pollutants at, to, or from the Site. The parties to this Agreement expressly reserve all rights, claims, demands, and causes of action they have against any and all other persons and entities who are not parties to this Agreement, and as to each other for matters not covered hereby.

Applicant reserves the right to seek contribution, indemnity, or any other available remedy against any person found to be responsible or liable for contributions, indemnity, or otherwise for any amounts which have been or will be expended by Applicant in connection with the Site.

WVDEP acknowledges that, pursuant to W. Va. Code § 22-22-18, Applicant, upon receipt of the Certificate of Completion, is not liable for claims for contribution concerning matters addressed in this Agreement or any related work plan.

IX. ADMINISTRATIVE COSTS

Applicant agrees to reimburse WVDEP for all of its reasonable administrative costs associated with this Agreement in the amount of $__________ within thirty (30) days of the effective date of this Agreement with a check made payable to the West Virginia Department of Environmental Protection for deposit into the Voluntary Remediation Administrative Fund and mailed along with a transmittal letter stating the Site name and address to:

Reimbursable costs under this provision shall be those costs for which reimbursement is required under the Rule.

X. EFFECTIVE DATE AND SUBSEQUENT MODIFICATION

25. The effective date of this Agreement is the date on which the Applicant receives notice that the Secretary has signed it.

26. The parties may amend this Agreement by mutual agreement. Amendments shall be in writing and effective when Applicant receives notice that the Secretary has signed it.

27. If the Secretary determines that there is an imminent threat to the public, he or she may unilaterally modify or amend this Agreement.

XI. TERMINATION AND SATISFACTION

28. Upon completion of the Final Report prepared by the LRS, Applicant may seek a Certificate of Completion from the Secretary. Upon receipt of a request for a Certificate of Completion, the Secretary shall determine whether the Site meets applicable standards for those areas of the Site and for those contaminants identified in this Agreement and whether Applicant has complied with this Agreement and any approved work plans for the Site. Upon making this determination, the Secretary shall issue a Certificate of Completion which conforms substantially to Appendix 60-3C of the Rule. Where this Agreement requires a Land Use Covenant, the Certificate of Completion shall not become effective until it is properly filed with the Clerk of the County Commission of the county in which the property is located.

If the Secretary determines that the Certificate of Completion should not be issued because Applicant has not completed the work required by this Agreement and any approved work plans or because the Site does not meet applicable standards, the Secretary shall initiate the procedures relating to denial of a Certificate of Completion as provided in the Rule.

29. The provisions of this Agreement are satisfied and this Agreement shall terminate when the Secretary issues the Certificate of Completion.

XII. REOPENER

30. Upon agreement of the parties or upon occurrence of one or more of the conditions of W. Va. Code § 22-22-15, this Agreement may be reopened in accordance with the provisions of W. Va. Code § 22-22-15.

XIII. GOVERNING LAW

31. This Agreement shall be governed by the laws of the State of West Virginia.

[SIGNATURES APPEAR ON THE FOLLOWING PAGE]

Applicant By: [Include if Applicant is not owner of the Site and Agreement calls for Land Use Covenant:] ­­­­­­­­­___________________, as owner of the Site referenced in the above Agreement, hereby acknowledges that the Agreement requires the imposition of a Land Use Covenant and, in consideration of the benefits accruing to the Site from the Agreement, I hereby agree to the imposition of such Land Use Covenant and agree to cooperate in the execution and filing of the Land Use Covenant.

Property Owner Name:

APPENDIX 60-3B

WEST VIRGINIA VOLUNTARY REMEDIATION AGREEMENT

FOR INVESTIGATION AND REMEDIATION ACTIVITIES

I. INTRODUCTION

1. The West Virginia Department of Environmental Protection (WVDEP), by its Secretary, and ­______________ (Applicant) hereby enter into this Voluntary Remediation Agreement (Agreement), pursuant to the Voluntary Remediation and Redevelopment Act, W. Va. Code § 22-22-1, et seq. (the Act), for the purpose of investigating and remediating the property that is the subject of this Agreement (the Site).

2. Applicant reserves all rights it may have under common law, the West Virginia Code, and federal statutes to seek contribution or indemnity. WVDEP reserves all rights it may have under common law, the West Virginia Code, and federal statutes to seek contribution or indemnity from persons other than Applicant and those persons identified in W. Va. Code § 22-22-18.

3. By entering into this Agreement, Applicant neither admits nor denies liability for the conditions on the Site.

II. STATEMENT OF ELIGIBILITY

4. The Secretary has determined that the Voluntary Remediation Program Application submitted by Applicant is complete and that Applicant is eligible to participate in the Voluntary Remediation Program. However, neither the Secretary’s determination of eligibility nor the entry into this Agreement precludes any finding by the Secretary at a later date that the Site poses an imminent and substantial threat to human health or the environment within the meaning of W. Va. Code § 22-22-7(d). In addition, if the Secretary determines that Applicant withheld or misrepresented information that would be relevant to Applicant’s eligibility, the Secretary may withdraw from this Agreement.

III. PARTIES BOUND

5. This Agreement applies to and is binding upon Applicant, its officers, secretaries, principals, employees, agents, successors, subsidiaries, and assigns and upon WVDEP, its employees, agents, and successors. The signatories to this Agreement certify that they are fully authorized to execute and legally bind the parties they represent. No change in ownership, corporate, or partnership status of Applicant shall in any way alter its status or responsibilities under this Agreement unless Applicant or WVDEP withdraws from this Program as provided herein.

6. Applicant shall provide a copy of this Agreement to any subsequent owners or successors before Applicant transfers any ownership rights.

IV. DEFINITIONS

7. “Day” means a calendar day with the 24-hour period between 12:00 A.M. - 12:00 A.M.

8. “Rule” means the Voluntary Remediation and Redevelopment Rule, 60CSR3, promulgated pursuant to the Act.

9. “Site” has the meaning ascribed to it in the Act and, for purposes of this Agreement, means the property located in __________, West Virginia, and is more particularly described in the Voluntary Remediation Program Application submitted to WVDEP and accepted by letter dated __________.

10. All other terms contained in this Agreement shall be used in the manner as defined by W. Va. Code § 22-22-2 or the Rule.

V. STATEMENT OF PURPOSE

11. This Agreement sets forth necessary terms and conditions to satisfy the requirements of the Act for the investigation and remediation of the Site.

12. The activities conducted by Applicant under this Agreement are subject to approval by WVDEP as provided herein. The activities conducted by Applicant shall be consistent with this Agreement, all applicable laws and rules, and any appropriate guidance documents.

VI. WORK TO BE PERFORMED

13. All work to be performed by Applicant pursuant to this Agreement shall be under the direction and supervision of a Licensed Remediation Specialist (LRS). Applicant may designate the LRS as Applicant’s project manager pursuant to Paragraph 27.

14. Applicant shall submit electronic copies of voluntary remediation work plans and reports which, when implemented, provide for the attainment of the applicable remediation standards.

Prior to the filing of the Voluntary Remediation Program Application and prior to the execution of this Agreement, Applicant has undertaken work at the Site. The LRS has accepted and approved the following documents in support of the requirements of the Act for the investigation and remediation of the Site:] [List documents and reports submitted.]

For the purposes of remediation and preparing Final Reports, Applicant may divide the Site into separate areas, and use different human health and ecological remediation standards (e.g., De Minimis, Uniform Risk-Based, and Site-Specific Risk-Based) for these individual areas. Applicant currently contemplates that the Site will be subdivided into the following areas:] [Provide description of the subdivided areas.]

15. The voluntary remediation work plans submitted with this Agreement include the following:

List work plans by Site or Subdivided Areas.]

No voluntary remediation work plans are submitted with this Agreement.]

16. The parties agree that the remediation standards to be achieved at the Site, consistent with Section 9 of the Rule; and where applicable, the engineering or institutional controls and any land use covenant to be imposed for the property, will be determined upon the Secretary’s approval of the work plans and reports submitted in accordance with this Agreement.

VII. SUBMITTAL AND APPROVAL OF WORK PLANS OR REPORTS

17. Applicant shall submit electronic copies of the following work plans or reports in accordance with the following schedule:

Document Due Site Assessment Work Plan (SAWP) ____ days after Agreement Site Assessment Report (SAR) ____ days after SAWP approval Human Health & Ecological Risk Assessment (HHERA) ____ days after SAR approval Remedial Action Work Plan (RAWP) ____ days after HHERA approval Remedial Action Completion Report (as applicable) ____ days after RAWP approval When Applicant plans additional work plans or reports as a follow-up to initial or subsequent activities, or additional or revised work plans or reports are required to achieve the desired remediation standards, Applicant shall submit electronic copies of the future work plans, reports, and schedules in accordance with a modification to this Agreement.

18. The Secretary may, based upon accuracy, quality, and completeness, either approve or disapprove a work plan or report submitted by Applicant.

19. If the Secretary disapproves a work plan or report, the Secretary must, within five (5) days of its disapproval, notify Applicant in writing that he or she has disapproved its work plan or report. The written notice shall include a list specifying the reasons that the Secretary disapproved the work plan or report and shall specify all additional information the Secretary needs in order to approve the work plan or report.

20. If the Secretary disapproves a work plan or report as submitted, Applicant must resubmit the work plan or report or terminate this Agreement as provided herein.

21. Except for the Final Report as described in the Rule and Paragraph 24 of this Agreement, the Secretary shall either approve or disapprove all work plans and reports, including resubmitted work plans and reports, within thirty (30) days of receipt. The Secretary shall take action on a work plan or report and send confirmation in writing to Applicant within the thirty (30)-day period. The parties may mutually agree to an extension of time for the Secretary to approve or disapprove the work plans or reports and confirm the extension in writing.

22. If the Secretary does not approve or disapprove work plans or reports or resubmitted work plans or reports within thirty (30) days of receipt by the Secretary, then the work plans or reports are deemed approved unless the Secretary determines the work plans or reports are materially inaccurate.

23. Any notice required to be given under the provisions of this Agreement shall be in writing and sent electronically with proof of receipt required. Notice is complete upon receipt.

24. Upon completion of the work contemplated by all work plans, Applicant shall submit to the Secretary an electronic copy of the Final Report prepared by the LRS, along with a request for a Certificate of Completion as required in the Rule. The Final Report shall include all information necessary for the Secretary to verify that Applicant has completed all work contemplated by the work plans and provided all information required by the Rule. Upon receiving the request for a Certificate of Completion, the Secretary shall evaluate the Final Report provided by Applicant and determine, within sixty (60) days, whether the LRS properly issued the Final Report.

VIII. ADDRESSES FOR ALL CORRESPONDENCE

25. The parties shall send all documents required by this Agreement, including reports, approvals, notifications, disapprovals, and other correspondence electronically to the following addresses or to alternate addresses as Applicant or WVDEP may designate in writing.

(a) Documents to be submitted to WVDEP should be sent to:

Phone: 304-926-0455 Email: DEPOERFileCopy@wv.gov With a copy of all documents sent to the WVDEP project manager: [Insert Project Manager’s Name]

(b) Documents to be submitted to Applicant should be sent to:

Attn: [Insert Name]

With a copy of all documents sent to the LRS: [Insert LRS Name]

IX. COMPLIANCE WITH APPLICABLE LAWS

26. All work undertaken by Applicant pursuant to this Agreement shall be performed in compliance with all applicable federal, state, and local laws, ordinances, and regulations. Applicant shall be responsible for obtaining all permits where necessary for the performance of any work hereunder. Specific statutes and rules with which compliance is mandated in connection with the investigation or remediation of the Site are as follows:

Surface Coal Mining and Reclamation Act, W. Va. Code § 22-3-1, et seq.;

Air Pollution Control Act, W. Va. Code § 22-5-1, et seq.;

Water Pollution Control Act, W. Va. Code § 22-11-1, et seq.;

Groundwater Protection Act, W. Va. Code § 22-12-1, et seq.;

Solid Waste Management Act, W. Va. Code § 22-15-1, et seq.;

Underground Storage Tank Act, W. Va. Code § 22-17-1, et seq.;

Hazardous Waste Management Act, W. Va. Code § 22-18-1, et seq.;

The Aboveground Storage Tank Act, W. Va. Code § 22-30-1, et seq.;

Section 103(a) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9603(a)

Section 304 of the Emergency Planning and Community Right-To-Know Act, 42 U.S.C. § 11001 to 11050;

Occupational Safety and Health Act, 29 U.S.C. § 651 to 678;

Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq.;

Toxic Substances Control Act, 15 U.S.C. § 2601, et seq.; and Any applicable rule or regulation promulgated thereunder.

X. PROJECT MANAGER/LICENSED REMEDIATION SPECIALIST

27. The WVDEP Project Manager for the Site is identified in Paragraph 25 of this Agreement. Applicant has designated [Insert name of licensed remediation specialist] (LRS # [Insert LRS license number]) as Applicant’s LRS and [IF APPLICABLE: Insert Project Manager Name as] Project Manager for the Site. The LRS is responsible for the supervision of all activities under this Agreement. The WVDEP project manager is the WVDEP-designated representative at the Site. To the maximum extent possible, Applicant and WVDEP shall direct all communications and all documents (including reports, approvals, and other correspondence) concerning the activities performed pursuant to the terms and conditions of this Agreement through the project managers. During the implementation of this Agreement, the project managers shall, whenever possible, operate by consensus and shall attempt in good faith to resolve disputes informally through discussion of the issues. Each party has the right to change its respective project manager or LRS and shall notify the other party of the change in writing within fourteen (14) days and shall execute a modification to this Agreement within thirty (30) days.

28. Work at the Site shall not stop solely due to the absence of Applicant’s or WVDEP’s project manager or LRS from the Site. Applicant’s project manager, LRS, or LRS’s supervisor shall reasonably be available by telephone while work is being performed. Applicant shall designate a person to be in charge who will be available onsite when field work is being performed.

XI. QUALITY ASSURANCE

29. Applicant shall use quality assurance, quality control, and chain of custody procedures in accordance with the Quality Assurance Project Plan approved for use by WVDEP throughout any work plan sample collection and analysis activities pursuant to this Agreement, unless otherwise approved by WVDEP in writing.

30. Applicant shall provide the WVDEP project manager with written notice (e.g., electronic mail) seven (7) days prior to beginning any field activities detailed in any work plan described in this Agreement. To provide quality assurance and maintain quality control, Applicant shall:

(a) Use laboratories certified by WVDEP;

(b) Ensure that all sampling and analyses are performed according to U.S. EPA methods, the approved Quality Assurance Project Plan, or other methods deemed satisfactory by WVDEP; and (c) Ensure that any laboratories used by Applicant for analyses participate in a documented Quality Assurance/Quality Control Program that complies with U.S. EPA guidance documents. As part of such a program, and upon request by WVDEP, such laboratories shall perform analyses of samples provided by WVDEP to demonstrate the quality of analytical data for each such laboratory.

Applicant may use a WVDEP-certified mobile laboratory with the advance written approval of the WVDEP project manager.

31. In the event any laboratory fails to perform the activities required above, WVDEP reserves the right to reject any data not gathered pursuant to the requirements listed above, and to require that Applicant utilize a different laboratory.

XII. SAMPLING AND DATA/DOCUMENT AVAILABILITY

32. Upon request by WVDEP, Applicant shall make available to WVDEP the results of all sampling, including raw data and/or tests or other data generated by Applicant or on Applicant’s behalf. WVDEP shall make available to Applicant the quality-assured results of sampling and/or tests or other data similarly generated by WVDEP.

33. At the request of WVDEP, Applicant shall permit an authorized representative of WVDEP to take samples of wastes, soils, air, surface water, and groundwater at the Site. For each sample taken, the authorized representative shall provide Applicant a receipt describing the sample obtained and, if requested, a portion of each sample equal in weight or volume to the portion retained.

XIII. ACCESS

34. To the extent that the Site or other areas where work is performed hereunder is presently owned or controlled by parties other than those bound by this Agreement, Applicant shall obtain, or use its best efforts to obtain, access agreements from the present owners. Best efforts shall include, at a minimum, a certified letter from Applicant to the present owner of the property requesting access agreements to permit Applicant or any authorized representative of the WVDEP access to the property. The access agreement shall provide access for authorized representatives of WVDEP as specified below. In the event Applicant cannot obtain access agreements, Applicant shall so notify WVDEP, which may then, at its discretion, assist Applicant in gaining access.

35. Upon presentation of proper credentials, Applicant shall provide authorized representatives of WVDEP access to the Site and other areas where work is to be performed under this Agreement at all reasonable times. WVDEP’s access shall be related solely to the work being performed on the Site and shall include, but not be limited to: inspecting records, operating logs, and contracts related to the Site; reviewing the Applicant’s progress in carrying out the terms of this Agreement; and conducting any tests, inspections, and sampling as WVDEP may deem necessary consistent with this Agreement. Applicant shall permit WVDEP’s authorized representatives to inspect and copy all records, files, photographs, documents, and other writings, including all sampling and monitoring data, which pertain to this Agreement over which Applicant exercises control. All persons with access to the Site pursuant to this Agreement shall comply with any applicable health and safety plans.

36. Nothing herein shall be construed as restricting the inspection or access authority of WVDEP under any law or regulation.

XIV. RECORD PRESERVATION

37. Applicant agrees to preserve, during the pendency of this Agreement, and for a minimum of three (3) years after its termination, all documents required by this Agreement and any other documents generated or used to prepare the documents required by this Agreement. Upon request by WVDEP, Applicant shall make available to WVDEP the records, or copies thereof.

38. Applicant may assert a confidentiality claim for any information submitted pursuant to this Agreement on the grounds that information, or parts thereof, if made public would divulge methods, processes, or activities entitled by the West Virginia Freedom of Information Act, W. Va. Code § 29B-1-1, et seq. to protection as trade secrets. If no confidentiality claim accompanies the information when it is submitted to WVDEP, WVDEP may make it available to the public without further notice to Applicant. Applicant agrees not to assert any confidentiality claim with regard to any physical or analytical data regarding environmental conditions at the Site.

XV. DISPUTE RESOLUTION

39. The parties shall use their best efforts to, in good faith, resolve all disputes or differences of opinion informally. The period of informal resolution shall not exceed thirty (30) days from the time that either party commences informal resolution by verbally citing the dispute with reference to this paragraph to the other party, unless the parties agree otherwise in writing. If, however, the parties are unable to resolve the dispute informally, Applicant may, no later than ten (10) days after the expiration of the informal dispute resolution period, request a hearing, in writing, with the Secretary, which request shall set forth the nature of the dispute and Applicant’s proposed remedy.

40. Within sixty (60) days from the date the Secretary receives Applicant’s request, the Secretary or the Secretary’s designee, acting as a hearing examiner, shall hold a hearing on the parties’ dispute. In conducting the hearing, the Secretary or the Secretary’s designee, acting as a hearing examiner, shall follow the procedures contained in the West Virginia Administrative Procedures Act, W. Va. Code § 29A-5-1, et seq.

41. If Applicant is aggrieved by the Secretary’s decision, Applicant may either appeal the Secretary’s decision in accordance with the provisions in W. Va. Code § 29A-5-4 or withdraw from this Agreement.

42. Until the dispute is resolved, all parties shall halt any actions concerning that element of work in dispute. The parties shall incorporate into the work plan the resolution of the dispute, which becomes an enforceable part thereof. The parties shall extend the time schedule for the work in dispute by the amount of time needed for resolution. Applicant shall complete elements of work and/or obligations not affected by the dispute in accordance with the schedule contained in the work plan.

43. The parties shall immediately incorporate, if necessary, elements of work and any actions required as a result of the dispute resolution into the appropriate plan or procedure, and into this Agreement. Applicant shall proceed with all remaining work according to the modified plan or procedure.

XVI. FORCE MAJEURE

44. Applicant shall perform all work and reporting required by this Agreement within the time limits set forth herein, unless performance is delayed by events which constitute a force majeure. “Force Majeure” means conditions or circumstances beyond the reasonable control of Applicant which could not have been overcome by due diligence and shall include, without limitation, acts of God, action or inaction of other governmental agencies, or administrative or judicial tribunals or other third parties, or strikes or labor disputes (provided, that Applicant is not required to concede to any labor demands), which prevent or delay Applicant from complying with the work plan.

45. Applicant shall notify WVDEP by telephone within five (5) days and by writing no later than ten (10) days after any event, which Applicant contends is a Force Majeure. The notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by Applicant to minimize the delay, and the timetable by which these measures will be implemented. Applicant has the burden of demonstrating that the event is a Force Majeure. The Secretary shall make the final decision of whether an event is a Force Majeure and immediately communicate his or her decision to Applicant.

46. If a delay is attributable to a Force Majeure, the parties shall extend, in writing, the time period for performance under this Agreement by the amount of time that is attributable to the event constituting the Force Majeure.

XVII. RESERVATION OF RIGHTS

47. WVDEP and Applicant reserve all rights and defenses they may have pursuant to any available authority unless expressly waived herein.

48. Nothing herein is intended to release, discharge, or in any way affect any claims, causes of actions, or demands in law or equity which the parties may have against any person, firm, partnership, or corporation not a party to this Agreement for any liability it may have arising out of, or relating in any way to, the generation, storage, treatment, handling, transportation, release, or disposal of any materials, hazardous substances, hazardous waste, contaminants, or pollutants at, to, or from the Site. The parties to this Agreement expressly reserve all rights, claims, demands, and causes of action they have against any and all other persons and entities who are not parties to this Agreement, and as to each other for matters not covered hereby.

49. Applicant reserves the right to seek contribution, indemnity, or any other available remedy against any persons found to be responsible or liable for contributions, indemnity, or otherwise for any amounts which have been or will be expended by Applicant in connection with the Site.

50. WVDEP reserves the right to bring an action, including an administrative action, against Applicant for any violation of statutes or rules except for the specific violations or releases that are being remediated in the work plan.

51. WVDEP reserves the right to withdraw its approval of a work plan at any time during Applicant’s implementation of the work plan if:

(a) WVDEP determines that Applicant has failed to substantially comply with the terms and conditions of this Agreement or the work plan;

(b) Applicant declines to implement the work plan after being notified of its approval by the WVDEP; or (c) WVDEP determines that any contaminant or regulated substance on the Site has become an imminent or substantial threat to human health or the environment.

Upon WVDEP’s withdrawal of its approval, WVDEP may choose to terminate this Agreement. WVDEP reserves the right to bring any action to enforce any statute or regulation under Chapter 22 of the West Virginia Code, including an action regarding the violations or releases that were the subject of this Agreement.

52. WVDEP acknowledges that, pursuant to W. Va. Code § 22-22-18, Applicant, upon receipt of the Certificate of Completion, is not liable for claims for contribution concerning matters addressed in this Agreement or any related work plan.

XVIII. ADMINISTRATIVE COSTS

53. Applicant agrees to reimburse WVDEP for all of its reasonable administrative costs associated with implementation of this Agreement at the rate of 3.5 times the hourly rate of the primary employee assigned to the Site plus the actual and direct expenses of the employee. Within sixty (60) days of the approval of the initial work plan, WVDEP shall send Applicant an itemized list of estimated in-house costs that WVDEP expects to incur under this Agreement. Applicant agrees that a reasonable estimate of WVDEP contractor costs will be provided as described in the following paragraph. Itemization will be in standard WVDEP format. The estimated costs may include the preparation of the itemized list of administrative costs. Applicant has the right, upon request, to examine any documentation in WVDEP’s possession used to develop the itemized list of costs. Applicant shall make the request in writing, which WVDEP must receive within two (2) weeks from the date Applicant receives the estimate of costs.

54. WVDEP agrees to allow Applicant to review and comment on the scope of work and associated cost estimates for outside contractors prior to WVDEP’s authorization of the contractor to proceed with the associated work. WVDEP will strive where possible to use cost effective and qualified outside contractors. “Outside contractors” are defined as individuals, partnerships, or corporations paid by WVDEP to assist in the oversight of the activities performed under this Agreement (e.g., risk assessment), but shall not include WVDEP employees. WVDEP shall submit to Applicant cost estimates and invoices from outside contractors within two (2) weeks from the date WVDEP receives the cost estimate or invoice. Applicant shall raise any and all objections regarding cost estimates or invoiced work to WVDEP within two (2) weeks from the date Applicant receives the forwarded cost estimates/invoices from WVDEP or within two (2) weeks of the receipt by Applicant of any back-up documentation of the said cost estimates/invoices that are contained in WVDEP files and requested by Applicant, whichever shall last occur.

55. Applicant shall pay these costs in accordance with the following provisions. WVDEP shall periodically send an accounting of contractor, subcontractor, and laboratory costs to Applicant. The accounting shall itemize all costs incurred by WVDEP for the previous calendar quarter. Applicant shall pay said amount within thirty (30) days of receipt of the accounting. WVDEP shall also periodically send an accounting of WVDEP’s primary employee time charged to this Site to Applicant. Applicant shall pay said amount within thirty (30) days of receipt of the accounting.

56. Checks shall be made payable to the West Virginia Department of Environmental Protection for deposit into the Voluntary Remediation Administrative Fund and mailed along with a transmittal letter stating the Site name and address to:

Applicant shall also send electronically a copy of the check and transmittal letter to the WVDEP project manager.

XIX. NOTICE OF BANKRUPTCY

57. Applicant shall notify WVDEP of its intention to file a bankruptcy petition as soon as Applicant has knowledge of its intention to file bankruptcy or no later than seven (7) days prior to the actual filing of a voluntary or involuntary bankruptcy petition.

XX. INDEMNIFICATION

58. Applicant agrees to indemnify and hold harmless the State of West Virginia, its agencies, departments, agents, and employees from and all claims or causes of action arising from, or on account of, acts or omissions of Applicant, its officers, employees, receivers, trustees, agents, or assigns, in carrying out the activities pursuant to this Agreement.

XXI. EFFECTIVE DATE AND SUBSEQUENT MODIFICATION

59. The effective date of this Agreement is the date on which Applicant receives the notice that the Secretary has signed it.

60. The parties may amend this Agreement by mutual agreement. Amendments shall be in writing and effective when Applicant receives notice that the Secretary has signed it.

61. If the Secretary determines that there is an imminent threat to the public, he or she may unilaterally modify or amend this Agreement.

XXII. EXTENSIONS OF TIME PERIODS

62. Any written response is deemed timely performed if hand delivered, delivered by electronic mail, or postmarked by the last day of any time period prescribed herein. Whenever a party has the right or is required to do some act or make some response within a prescribed period after the service of a notice or other paper and the notice or paper is served by U.S. mail, three (3) days shall be added to the prescribed period.

63. Whenever any party is called upon to respond or otherwise act in a certain number of days, and if the final day occurs on a Saturday, Sunday, or legal holiday (whether State or national), the time limitation shall automatically extend to the next business day after the Saturday, Sunday, or legal holiday.

64. Any time periods specified in this Agreement may be extended only by agreement of the parties in writing.

XXIII. TERMINATION AND SATISFACTION

65. Upon completion of the Final Report prepared by the LRS, Applicant may seek a Certificate of Completion from the Secretary. Upon receipt of a request for a Certificate of Completion, the Secretary shall determine whether the Site meets applicable standards for those areas of the Site and for those contaminants identified in this Agreement and whether Applicant has complied with this Agreement and any approved work plans for the Site. Upon making this determination, the Secretary shall issue a Certificate of Completion which conforms substantially to Appendix 60-3C of the Rule. Where this Agreement requires a Land Use Covenant, the Certificate of Completion shall not become effective until it is properly filed with the Clerk of the County Commission of the county in which the property is located.

If the Secretary determines that the Certificate of Completion should not be issued because Applicant has not completed the work required by this Agreement and any approved work plans or because the Site does not meet applicable standards, the Secretary shall initiate the procedures relating to denial of a Certificate of Completion as provided in the Rule.

66. The provisions of this Agreement are satisfied and this Agreement shall terminate when the Secretary issues the Certificate of Completion.

67. Nothing in this Agreement shall restrict the State of West Virginia from seeking other appropriate relief to protect human health or the environment from pollution or contamination at or from the Site not remediated in accordance with this Agreement.

68. Applicant may, in its sole discretion, terminate this Agreement by providing to the Secretary fifteen (15) days advance written notice of termination. Only those costs incurred or obligated by the Secretary before the notice of termination is received are recoverable if the Agreement is terminated. If Applicant terminates this Agreement, then Applicant shall pay WVDEP’s costs associated with the voluntary remediation within thirty-one (31) days after receiving notice that the costs are due and owing.

XXIV. LAND USE COVENANTS

69. The parties agree that activity and use limitations may be required at the Site to achieve one or more of the applicable remediation standards. If activity and use limitations are required, Applicant agrees to prepare and record a Land Use Covenant or secure other institutional controls as necessary (e.g., government ordinances) once the necessary restrictions are determined.

XXV. REOPENER

70. Upon agreement of the parties or upon occurrence of one or more conditions of W. Va. Code § 22-22-15, this Agreement may be reopened in accordance with the provisions of W. Va. Code § 22-22-15.

XXVI. PRECEDENCE OF AGREEMENT

71. In the event that conflict arises among the terms and conditions of this Agreement, the Statement of Work, or the approved work plan, this Agreement shall govern and the terms and conditions hereunder shall determine the parties’ rights and responsibilities.

XXVII. GOVERNING LAW

72. This Agreement shall be governed by the laws of the State of West Virginia.

[SIGNATURES APPEAR ON THE FOLLOWING PAGE]

Applicant By: [Include if Applicant is not owner of the Site and Agreement calls for Land Use Covenant:] ­­­­­­­­­___________________, as owner of the Site referenced in the above Agreement, hereby acknowledges that the Agreement requires the imposition of a Land Use Covenant and, in consideration of the benefits accruing to the Site from the Agreement, I hereby agree to the imposition of such Land Use Covenant and agree to cooperate in the execution and filing of the Land Use Covenant.

Property Owner Name:

APPENDIX 60-3C

WEST VIRGINIA VOLUNTARY REMEDIATION AGREEMENT

FOR BROWNFIELDS REVOLVING FUND APPLICANTS

INTRODUCTION

The West Virginia Department of Environmental Protection (WVDEP), by its Secretary, and ­______________ (Applicant) hereby enter into this Voluntary Remediation Agreement (Agreement), pursuant to the Voluntary Remediation and Redevelopment Act, W. Va. Code § 22-22-1, et seq. (the Act), for the purpose of investigating and remediating the property that is the subject of this Agreement (the Site).

Applicant reserves all rights it may have under common law, the West Virginia Code, and federal statutes to seek contribution or indemnity. WVDEP reserves all rights it may have under common law, the West Virginia Code, and federal statutes to seek contribution or indemnity from persons other than Applicant and those persons identified in W. Va. Code § 22-22-18.

By entering into this Agreement, Applicant neither admits nor denies liability for the conditions on the Site.

STATEMENT OF ELIGIBILITY

The Secretary has determined that the Voluntary Remediation Program Application submitted by Applicant is complete and that Applicant is eligible to participate in the Voluntary Remediation Program and Brownfields Revolving Fund Program. However, neither the Secretary’s determination of eligibility nor the entry into this Agreement precludes any finding by the Secretary at a later date that the Site poses an imminent and substantial threat to human health or the environment within the meaning of W. Va. Code § 22-22-7(d). In addition, if the Secretary determines that Applicant withheld or misrepresented information that would be relevant to Applicant’s eligibility, the Secretary may withdraw from this Agreement.

PARTIES BOUND

This Agreement applies to and is binding upon Applicant, its officers, secretaries, principals, employees, agents, successors, subsidiaries, and assigns and upon WVDEP, its employees, agents, and successors. The signatories to this Agreement certify that they are fully authorized to execute and legally bind the parties they represent. No change in ownership, corporate, or partnership status of Applicant shall in any way alter its status or responsibilities under this Agreement unless Applicant or WVDEP withdraws from this Program as provided herein.

Applicant shall provide a copy of this Agreement to any subsequent owners or successors before Applicant transfers any ownership rights.

DEFINITIONS

“Day” means a calendar day with the 24-hour period between 12:00 A.M. – 12:00 A.M.

“Rule” means the Voluntary Remediation and Redevelopment Rule, 60CSR3, promulgated pursuant to the Act.

“Site” has the meaning ascribed to it in the Act and, for purposes of this Agreement, means the property located in ­­­­­­­­­­­­­­­­­­­­­___________, West Virginia, and is more particularly described in the Voluntary Remediation Program Application submitted to WVDEP and accepted by letter dated ___________.

All other terms contained in this Agreement shall be used in the manner as defined by W. Va. Code § 22-22-2 or the Rule.

STATEMENT OF PURPOSE

This Agreement sets forth necessary terms and conditions to satisfy the requirements of the Act for the investigation and remediation of the Site.

The activities conducted by Applicant under this Agreement are subject to approval by WVDEP as provided herein. The activities conducted by Applicant shall be consistent with this Agreement, all applicable laws and rules, and any appropriate guidance documents.

WORK TO BE PERFORMED

All work to be performed by Applicant pursuant to this Agreement shall be under the direction and supervision of a Licensed Remediation Specialist (LRS). Applicant may designate the LRS as Applicant’s project manager pursuant to Paragraph 29.

Applicant shall submit electronic copies of voluntary remediation work plans and reports.

Prior to the filing of the Voluntary Remediation Program Application and prior to the execution of this Agreement, Applicant has undertaken work at the Site. The LRS has accepted and approved the following documents in support of the requirements of the Act for the investigation and remediation of the Site:] [List documents and reports submitted.]

For the purposes of remediation and preparing Final Reports, Applicant may divide the Site into separate areas, and use different human health and ecological remediation standards (e.g., De Minimis, Uniform Risk-Based, and Site-Specific Risk-Based) for these individual areas. Applicant currently contemplates that the Site will be subdivided into the following areas:] [Provide description of the subdivided areas.]

The voluntary remediation work plans submitted with this Agreement include the following:

[IF APPLICABLE:

List work plans by Site or Subdivided Areas.]

[IF NOT APPLICABLE:

No voluntary remediation work plans are submitted with this Agreement.]

The parties agree that the remediation standards to be achieved at the Site, consistent with Section 9 of the Rule; and where applicable, the engineering or institutional controls and any land use covenant to be imposed for the property, will be determined upon the Secretary’s approval of the work plans and reports submitted in accordance with this Agreement.

SUBMITTAL AND APPROVAL OF WORK PLANS OR REPORTS

Applicant shall submit electronic copies of the following work plans or reports in accordance with the following schedule:

Document Due Site Assessment Work Plan (SAWP) ____ days after Agreement Site Assessment Report (SAR) ____ days after SAWP approval Human Health & Ecological Risk Assessment (HHERA) ____ days after SAR approval Remedial Action Work Plan (RAWP) ____ days after HHERA approval Remedial Action Completion Report (as applicable) ____ days after RAWP approval When Applicant plans additional work plans or reports as a follow-up to initial or subsequent activities, or additional or revised work plans or reports are required to achieve the desired remediation standards, Applicant shall submit electronic copies of the future work plans, reports, and schedules in accordance with a modification to this Agreement.

The Secretary may, based upon accuracy, quality, and completeness, either approve or disapprove a work plan or report submitted by Applicant.

If the Secretary disapproves a work plan or report, the Secretary must, within five (5) days of its disapproval, notify Applicant in writing that he or she has disapproved its work plan or report. The written notice shall include a list specifying the reasons that the Secretary disapproved the work plan or report and shall specify all additional information the Secretary needs in order to approve the work plan or report.

If the Secretary disapproves a work plan or report as submitted, Applicant must resubmit the work plan or report or terminate this Agreement as provided in Paragraph 70.

Except for the Final Report as described in the Rule and Paragraph 24 of this Agreement, the Secretary shall either approve or disapprove all work plans and reports, including resubmitted work plans and reports, within thirty (30) days of receipt. The Secretary shall take action on a work plan or report and send confirmation in writing to Applicant within the thirty (30)-day period. The parties may mutually agree to an extension of time for the Secretary to approve or disapprove the work plans or reports and confirm the extension in writing.

If the Secretary does not approve or disapprove work plans or reports or resubmitted work plans or reports within thirty (30) days of receipt by the Secretary, then the work plans or reports are deemed approved unless the Secretary determines the work plans or reports are materially inaccurate.

Any notice required to be given under the provisions of this Agreement shall be in writing and sent electronically with proof of receipt required. Notice is complete upon receipt.

Upon completion of the work contemplated by all work plans, Applicant shall submit to the Secretary an electronic copy of the Final Report prepared by the Licensed Remediation Specialist, along with a request for a Certificate of Completion as required in the Rule. The Final Report shall include all information necessary for the Secretary to verify that Applicant has completed all work contemplated by the work plans and provided all information required by the Rule. Upon receiving the request for a Certificate of Completion, the Secretary shall evaluate the Final Report provided by Applicant and determine, within sixty (60) days, whether the Licensed Remediation Specialist properly issued the Final Report.

PUBLIC NOTIFICATION AND INVOLVEMENT

Applicant shall comply with all public notification and involvement requirements for Brownfields Revolving Loan Fund recipients, as outlined in the Rule. Such requirements include, but are not limited to, erecting a notification sign on the Site, producing and circulating a public notice of Voluntary Remediation Program Application, allowing for a public comment period, conducting an informational meeting, and, if requested, submitting a Public Involvement Plan.

ADDRESSES FOR ALL CORRESPONDENCE

The parties shall send all documents required by this Agreement, including reports, approvals, notifications, disapprovals, and other correspondence electronically to the following addresses or to alternate addresses as Applicant or WVDEP may designate in writing.

Documents to be submitted to WVDEP should be sent to:

Phone: 304-926-0455 Email: DEPOERFileCopy@wv.gov With a copy of all documents sent to the WVDEP project manager: [Insert Project Manager’s Name]

(b) Documents to be submitted to Applicant should be sent to:

Attn: [Insert Name]

With a copy of all documents sent to the LRS: [Insert LRS Name]

COMPLIANCE WITH APPLICABLE LAWS

All work undertaken by Applicant pursuant to this Agreement shall be performed in compliance with all applicable federal, state, and local laws, ordinances, and regulations. Specific statutes and rules with which compliance is mandated in connection with the investigation or remediation of the Site are as follows:

Surface Coal Mining and Reclamation Act, W. Va. Code § 22-3-1, et seq.;

Air Pollution Control Act, W. Va. Code § 22-5-1, et seq.;

Water Pollution Control Act, W. Va. Code § 22-11-1, et seq.;

Groundwater Protection Act, W. Va. Code § 22-12-1, et seq.;

Solid Waste Management Act, W. Va. Code § 22-15-1, et seq.;

Underground Storage Tank Act, W. Va. Code § 22-17-1, et seq.;

Hazardous Waste Management Act, W. Va. Code § 22-18-1, et seq.;

The Aboveground Storage Tank Act, W. Va. Code § 22-30-1, et seq.;

Section 103(a) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9603(a)

Section 304 of the Emergency Planning and Community Right-To-Know Act, 42 U.S.C. § 11001 to 11050;

Occupational Safety and Health Act, 29 U.S.C. § 651 to 678;

Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq.;

Toxic Substances Control Act, 15 U.S.C. § 2601, et seq.; and Any applicable rule or regulation promulgated thereunder.

Applicant shall be responsible for obtaining all permits where necessary for the performance of any work hereunder.

PROJECT MANAGER/LICENSED REMEDIATION SPECIALIST

The WVDEP Project Manager for the Site is identified in Paragraph 26 of this Agreement. Applicant has designated _______________ (LRS #___) as Applicant’s Licensed Remediation Specialist and [IF APPLICABLE: Insert Project Manager Name as] project manager for the Site. The LRS is responsible for the supervision of all activities under this Agreement. The WVDEP project manager is the WVDEP-designated representative at the Site. To the maximum extent possible, Applicant and WVDEP shall direct all communications and all documents (including reports, approvals, and other correspondence) concerning the activities performed pursuant to the terms and conditions of this Agreement through the project managers. During the implementation of this Agreement, the project managers shall, whenever possible, operate by consensus and shall attempt in good faith to resolve disputes informally through discussion of the issues. Each party has the right to change its respective project manager or LRS and shall notify the other party of the change in writing within fourteen (14) days and shall execute a modification to this Agreement within thirty (30) days.

Work at the Site shall not stop solely due to the absence of Applicant’s or WVDEP’s project manager or Licensed Remediation Specialist from the Site. Applicant’s project manager, LRS, or LRS’s supervisor shall reasonably be available by telephone while work is being performed. Applicant shall designate a person to be in charge who will be available onsite when field work is being performed.

QUALITY ASSURANCE

Applicant shall use quality assurance, quality control, and chain of custody procedures in accordance with the Quality Assurance Project Plan approved for use by WVDEP throughout any work plan sample collection and analysis activities pursuant to this Agreement, unless otherwise approved by WVDEP in writing.

Applicant shall provide the WVDEP project manager with written notice seven (7) days prior to beginning any field activities detailed in any work plan(s) described in this Agreement. To provide quality assurance and maintain quality control, Applicant shall:

Use laboratories certified by WVDEP;

Ensure that all sampling and analyses are performed according to U.S. EPA methods, the approved Quality Assurance Project Plan, or other methods deemed satisfactory by WVDEP; and Ensure that any laboratories used by Applicant for analyses participate in a documented Quality Assurance/Quality Control Program that complies with U.S. EPA guidance documents. As part of such a program, and upon request by WVDEP, such laboratories shall perform analyses of samples provided by WVDEP to demonstrate the quality of analytical data for each such laboratory.

Applicant may use a WVDEP-certified mobile laboratory with the WVDEP project manager’s advance written approval.

In the event any laboratory fails to perform the activities required above, WVDEP reserves the right to reject any data not gathered pursuant to the requirements listed above, and to require that Applicant utilize a different laboratory.

SAMPLING AND DATA/DOCUMENT AVAILABILITY

At the request of WVDEP, Applicant shall permit an authorized representative of WVDEP to take samples of wastes, soils, air, surface water, and groundwater at the Site. For each sample taken, the authorized representative, if requested, shall provide Applicant a receipt describing the sample obtained and a portion of each sample equal in weight or volume to the portion retained.

Upon request by WVDEP, Applicant shall make available to WVDEP the results of all sampling, including raw data and/or tests or other data generated by Applicant or on Applicant’s behalf. WVDEP shall make available to Applicant the quality-assured results of sampling and/or tests or other data similarly generated by WVDEP.

ACCESS

To the extent that the Site or other areas where work is performed hereunder is presently owned or controlled by parties other than those bound by this Agreement, Applicant shall obtain, or use its best efforts to obtain, access agreements from the present owners. Best efforts shall include, at a minimum, a certified letter from Applicant to the present owner of the property requesting access agreements to permit Applicant or any authorized representative of WVDEP access to the property. The access agreement shall provide access for authorized representatives of WVDEP as specified below. In the event Applicant cannot obtain access agreements, Applicant shall so notify WVDEP, which may then, at its discretion, assist Applicant in gaining access.

Upon presentation of proper credentials, Applicant shall provide authorized representatives of WVDEP access to the Site and other areas where work is to be performed under this Agreement at all reasonable times. WVDEP’s access shall be related solely to the work being performed on the Site and shall include, but not be limited to: inspecting records, operating logs, and contracts related to the Site; reviewing the Applicant’s progress in carrying out the terms of this Agreement; and conducting any tests, inspections, and sampling as WVDEP may deem necessary consistent with this Agreement. Applicant shall permit WVDEP’s authorized representatives to inspect and copy all records, files, photographs, documents, and other writings, including all sampling and monitoring data, which pertain to this Agreement over which Applicant exercises control. All persons with access to the Site pursuant to this Agreement shall comply with any applicable health and safety plans.

Nothing herein shall be construed as restricting the inspection or access authority of WVDEP under any law or regulation.

RECORD PRESERVATION

Applicant agrees to preserve, during the pendency of this Agreement, and for a minimum of three (3) years after its termination, all documents required by this Agreement and any other documents generated or used to prepare the documents required by this Agreement. Upon request by WVDEP, Applicant shall make available to WVDEP the records, or copies thereof.

Applicant may assert a confidentiality claim for any information submitted pursuant to this Agreement on the grounds that information, or parts thereof, if made public would divulge methods, processes, or activities entitled by the West Virginia Freedom of Information Act, W. Va. Code § 29B-1-1, et seq. to protection as trade secrets. If no confidentiality claim accompanies the information when it is submitted to WVDEP, WVDEP may make it available to the public without further notice to Applicant. Applicant agrees not to assert any confidentiality claim with regard to any physical or analytical data regarding environmental conditions at the Site.

DISPUTE RESOLUTION

The parties shall use their best efforts to, in good faith, resolve all disputes or differences of opinion informally. The period of informal resolution shall not exceed thirty (30) days from the time that either party commences informal resolution by verbally citing the dispute with reference to this paragraph to the other party, unless the parties agree otherwise in writing. If, however, the parties are unable to resolve the dispute informally, Applicant may, no later than ten (10) days after the expiration of the informal dispute resolution period, request a hearing, in writing, with the Secretary, which request shall set forth the nature of the dispute and Applicant’s proposed remedy.

Within sixty (60) days from the date the Secretary receives Applicant’s request, the Secretary or the Secretary’s designee, acting as a hearing examiner, shall hold a hearing on the parties’ dispute. In conducting the hearing, the Secretary or the Secretary’s designee, acting as a hearing examiner, shall follow the procedures contained in the West Virginia Administrative Procedures Act, W. Va. Code § 29A-5-1, et seq.

If Applicant is aggrieved by the Secretary’s decision, Applicant may either appeal the Secretary’s decision in accordance with the provisions in W. Va. Code § 29A-5-4 or withdraw from this Agreement.

Until the dispute is resolved, all parties shall halt any actions concerning that element of work in dispute. The parties shall incorporate into the work plan the resolution of the dispute, which becomes an enforceable part thereof. The parties shall extend the time schedule for the work in dispute by the amount of time needed for resolution. Applicant shall complete elements of work and/or obligations not affected by the dispute in accordance with the schedule contained in the work plan.

The parties shall immediately incorporate, if necessary, elements of work and any actions required as a result of the dispute resolution into the appropriate plan or procedure, and into this Agreement. Applicant shall proceed with all remaining work according to the modified plan or procedure.

FORCE MAJEURE

Applicant shall perform all work and reporting required by this Agreement within the time limits set forth herein, unless performance is delayed by events which constitute a force majeure. “Force Majeure” means conditions or circumstances beyond the reasonable control of Applicant which could not have been overcome by due diligence and shall include, without limitation, acts of God, action or inaction of other governmental agencies, or administrative or judicial tribunals or other third parties, or strikes or labor disputes (provided, that Applicant is not required to concede to any labor demands), which prevent or delay Applicant from complying with the work plan.

Applicant shall notify WVDEP by telephone within five (5) days and by writing no later than ten (10) days after any event, which Applicant contends is a Force Majeure. The notification shall describe the anticipated length of the delay, the cause or causes of the delay, the measures taken or to be taken by Applicant to minimize the delay, and the timetable by which these measures will be implemented. Applicant has the burden of demonstrating that the event is a Force Majeure. The Secretary shall make the final decision of whether an event is a Force Majeure and immediately communicate his or her decision to Applicant.

If a delay is attributable to a Force Majeure, the parties shall extend, in writing, the time period for performance under this Agreement by the amount of time that is attributable to the event constituting the Force Majeure.

RESERVATION OF RIGHTS

WVDEP and Applicant reserve all rights and defenses they may have pursuant to any available authority unless expressly waived herein.

Nothing herein is intended to release, discharge, or in any way affect any claims, causes of actions, or demands in law or equity which the parties may have against any person, firm, partnership, or corporation not a party to this Agreement for any liability it may have arising out of, or relating in any way to, the generation, storage, treatment, handling, transportation, release, or disposal of any materials, hazardous substances, hazardous waste, contaminants, or pollutants at, to, or from the Site. The parties to this Agreement expressly reserve all rights, claims, demands, and causes of action they have against any and all other persons and entities who are not parties to this Agreement, and as to each other for matters not covered hereby.

Applicant reserves the right to seek contribution, indemnity, or any other available remedy against any persons found to be responsible or liable for contributions, indemnity, or otherwise for any amounts which have been or will be expended by Applicant in connection with the Site.

WVDEP reserves the right to bring an action, including an administrative action, against Applicant for any violation of statutes or rules except for the specific violations or releases that are being remediated in the work plan.

WVDEP reserves the right to withdraw its approval of the work plan at any time during Applicant’s implementation of the work plan if:

WVDEP determines that Applicant has failed to substantially comply with the terms and conditions of this Agreement or the work plan;

Applicant declines to implement the work plan after being notified of its approval by WVDEP; or WVDEP determines that any contaminant or regulated substance on the Site has become an imminent or substantial threat to human health or the environment.

Upon WVDEP’s withdrawal of its approval, WVDEP may choose to terminate this Agreement. WVDEP reserves the right to bring any action to enforce any statute or regulation under Chapter 22 of the West Virginia Code, including an action regarding the violations or releases that were the subject of this Agreement.

WVDEP acknowledges that, pursuant to W. Va. Code § 22-22-18, Applicant, upon receipt of the Certificate of Completion, is not liable for claims for contribution concerning matters addressed in this Agreement or any related work plan.

ADMINISTRATIVE COSTS

Applicant agrees to reimburse WVDEP for all of its reasonable administrative costs associated with implementation of this Agreement at the rate of 3.5 times the hourly rate of the primary employee assigned to the Site, plus the actual and direct expenses of the employee. Within sixty (60) days of the approval of the initial work plan, WVDEP shall send Applicant an itemized list of estimated in-house costs that WVDEP expects to incur under this Agreement. Applicant agrees that a reasonable estimate of WVDEP contractor costs will be provided as described in the following paragraph. Itemization will be in standard WVDEP format. The estimated costs may include the preparation of the itemized list of administrative costs. Applicant has the right, upon request, to examine documentation in WVDEP’s possession used to develop the itemized list of costs. Applicant shall make the request in writing, which WVDEP must receive within two (2) weeks from the date Applicant receives the estimate of costs.

WVDEP agrees to allow Applicant to review and comment on the scope of work and associated cost estimates for outside contractors prior to WVDEP’s authorization of the contractor to proceed with the associated work. WVDEP will strive where possible to use cost effective and qualified outside contractors. “Outside contractors” are defined as individuals, partnerships, or corporations paid by WVDEP to assist in the oversight of the activities performed under this Agreement (e.g., risk assessment), but shall not include WVDEP employees. WVDEP shall submit to Applicant cost estimates from outside contractors within two (2) weeks from the date WVDEP receives the cost estimate. Applicant shall raise any and all objections regarding cost estimates to WVDEP within two (2) weeks from the date Applicant receives the forwarded cost estimates from WVDEP or within two (2) weeks of the receipt by Applicant of any back-up documentation of the said cost estimates/invoices that are contained in WVDEP files and requested by Applicant, whichever shall last occur.

Applicant shall pay these costs in accordance with the following provisions. WVDEP shall periodically send an accounting of contractor, subcontractor, and laboratory costs to Applicant. The accounting shall itemize all costs incurred by WVDEP for the previous calendar quarter. Applicant shall pay said amount within thirty (30) days of receipt of the accounting. WVDEP shall also periodically send an accounting of WVDEP’s primary employee time charged to the Site to Applicant. Applicant shall pay said amount within thirty (30) days of receipt of the accounting.

Checks shall be made payable to the West Virginia Department of Environmental Protection for deposit into the Voluntary Remediation Administrative Fund and mailed along with a transmittal letter stating the Site name and address to:

Applicant shall also send electronically a copy of the check and transmittal letter to the WVDEP project manager.

NOTICE OF BANKRUPTCY

Applicant shall notify WVDEP of its intention to file a bankruptcy petition as soon as Applicant has knowledge of its intention to file bankruptcy or no later than seven (7) days prior to the actual filing of a voluntary or involuntary bankruptcy petition.

INDEMNIFICATION

Applicant agrees to indemnify and hold harmless the State of West Virginia, its agencies, departments, agents, and employees from and all claims or causes of action arising from, or on account of, acts or omissions of Applicant, its officers, employees, receivers, trustees, agents, or assigns, in carrying out the activities pursuant to this Agreement.

EFFECTIVE DATE AND SUBSEQUENT MODIFICATION

The effective date of this Agreement is the date on which Applicant receives the notice that the Secretary has signed it.

The parties may amend this Agreement by mutual agreement. Amendments shall be in writing and effective when Applicant receives notice that the Secretary has signed it.

If the Secretary determines that there is an imminent threat to the public, he or she may unilaterally modify or amend this Agreement.

EXTENSIONS OF TIME PERIODS

Any written response is deemed timely performed if hand delivered, delivered by electronic mail, or postmarked by the last day of any time period prescribed herein. Whenever a party has the right or is required to do some act or make some response within a prescribed period after the service of a notice or other paper and the notice or paper is served by U.S. mail, three (3) days shall be added to the prescribed period.

Whenever any party is called upon to respond or otherwise act in a certain number of days, and if the final day occurs on a Saturday, Sunday, or legal holiday (whether State or national), the time limitation shall automatically extend to the next business day after the Saturday, Sunday, or legal holiday.

Any time periods specified in this Agreement may be extended only by agreement of the parties in writing.

TERMINATION AND SATISFACTION

Upon completion of the Final Report prepared by the Licensed Remediation Specialist, Applicant may seek a Certificate of Completion from the Secretary. Upon receipt of a request for a Certificate of Completion, the Secretary shall determine whether the Site meets applicable standards for those areas of the Site and for those contaminants identified in this Agreement and whether Applicant has complied with this Agreement and any approved work plans for the Site. Upon making this determination, the Secretary shall issue a Certificate of Completion which conforms substantially to Appendix 60-3C of the Rule. Where this Agreement requires a Land Use Covenant, the Certificate of Completion shall not become effective until it is properly filed with the Clerk of the County Commission of the county in which the property is located.

If the Secretary determines that the Certificate of Completion should not be issued because Applicant has not completed the work required by this Agreement and any approved work plans or because the Site does not meet applicable standards, the Secretary shall initiate the procedures relating to denial of a Certificate of Completion as provided in the Rule.

The provisions of this Agreement are satisfied, and this Agreement shall terminate when the Secretary issues the Certificate of Completion.

Nothing in this Agreement shall restrict the State of West Virginia from seeking other appropriate relief to protect human health or the environment from pollution or contamination at or from the Site not remediated in accordance with this Agreement.

Applicant may, in its sole discretion, terminate this Agreement by providing to the Secretary fifteen (15) days advance written notice of termination. Only those costs incurred or obligated by the Secretary before the notice of termination is received are recoverable if the Agreement is terminated. If Applicant terminates this Agreement, then Applicant shall pay WVDEP’s costs associated with the voluntary remediation within thirty-one (31) days after receiving notice that the costs are due and owing.

LAND USE COVENANTS

The parties agree that activity and use limitations may be required at the Site to achieve one or more of the applicable remediation standards. If activity and use limitations are required, Applicant agrees to prepare and record a Land Use Covenant or secure other institutional controls as necessary (e.g., government ordinances) once the necessary restrictions are determined.

REOPENER

Upon agreement of the parties or upon occurrence of one or more conditions of W. Va. Code § 22-22-15, this Agreement may be reopened in accordance with the provisions of W. Va. Code § 22-22-15.

PRECEDENCE OF AGREEMENT

In the event that conflict arises among the terms and conditions of this Agreement, the Statement of Work, or the approved work plan, this Agreement shall govern, and the terms and conditions hereunder shall determine the parties’ rights and responsibilities.

GOVERNING LAW

This Agreement shall be governed by the laws of the State of West Virginia.

[SIGNATURES APPEAR ON THE FOLLOWING PAGE]

Applicant By: [Include if Applicant is not owner of the Site and Agreement calls for Land Use Covenant:] ­­­­­­­­­___________________, as owner of the Site referenced in the above Agreement, hereby acknowledges that the Agreement requires the imposition of a Land Use Covenant and, in consideration of the benefits accruing to the Site from the Agreement, I hereby agree to the imposition of such Land Use Covenant and agree to cooperate in the execution and filing of the Land Use Covenant.

Property Owner Name:

APPENDIX 60-3D

STATE OF WEST VIRGINIA

VOLUNTARY REMEDIATION PROGRAM

CERTIFICATE OF COMPLETION AND COVENANT [Applicant] entered into a Voluntary Remediation Agreement with the Secretary of the Department of Environmental Protection, dated ­­­__________ (Agreement). The Agreement was entered into to address the release of any contaminants at __________ (Site) located at __________, in __________ District, ______________ County, West Virginia. The following documents are incorporated as a part of this Certificate and Covenant:

The Application dated __________ and the site assessment submitted with the application [IF APPLICABLE: Also include any application amendments]

The Agreement dated ______________and modifications 1-[#], dated as follows:

A map depicting the Site (See Exhibit A)

A list of the contaminants of concern in each environmental media for which the Site meets the applicable remediation standards, and a list of the remediation standards applicable to each media (See Exhibit B)

The Final Report submitted for the Site dated __________, issued by a licensed remediation specialist [If applicable:] A description of any institutional or engineering controls that were used to achieve a remediation standard at the Site (See Exhibit C) [If applicable:] The land use covenant for the Site (See Exhibit D)

This Certificate of Completion is issued pursuant to W. Va. Code § 22-22-13 to [Applicant] in recognition of the completion of the work required under the Agreement.

Pursuant to W. Va. Code §§ 22-22-7(f), 22-22-13, 22-22-14, and 22-22-18, the Secretary of the West Virginia Department of Environmental Protection (hereinafter, “WVDEP”), in the name of and on behalf of the State of West Virginia, now covenants not to bring any civil, criminal or administrative action or claim, resulting from or based upon the release or threatened release of contaminants that were the subject of the Voluntary Remediation Agreement. This covenant shall bar actions against [Applicant], [Applicant]’s successors and assigns, and those persons identified in W. Va. Code § 22-22-18, from all public and private claims arising under Chapter 22 of the West Virginia Code or rules adopted thereunder in connection with the release or threatened release that was the subject of the Voluntary Remediation Agreement. This covenant shall not apply to [Applicant]'s predecessors in title.

CONDITIONS

This Certificate and the covenant it contains are subject to the terms and conditions set forth below:

The following conditions, contained in W. Va. Code § 22-22-15, which may cause the Voluntary Remediation Agreement to be reopened: fraud was committed in demonstrating attainment of a standard at the site that resulted in avoiding the need for further remediation of the site; new information confirms the existence of an area of previously unknown contamination which contains contaminants that have been shown to exceed the standards applied to the previous remediation at the site; the level of risk is increased significantly beyond the established level of protection at the site due to substantial changes in exposure conditions, such as, a change in land use, or new information is obtained about a contaminant associated with the site which revises exposure assumptions beyond the acceptable range. This condition applies only where the level of risk is increased by a factor of at least five or the hazard index exceeds 1, or 10 where multiple systemic toxicants do not affect the same organ; the release occurred after the effective date of this Article on a site not used for industrial activity prior to the effective date of this Article; the remedy relied, in whole or in part, upon institutional or engineering controls instead of treatment or removal of contamination; and treatment, removal or destruction has become technically and economically practicable; or the remediation method failed to meet the remediation standard or combination of standards.

For purposes of this paragraph, “new information” means any information obtained directly or indirectly by the WVDEP from any person after issuance of a Certificate of Completion, but does not include information the WVDEP has received in the application for participation in the Voluntary Remediation Program, including any site assessment, or other information available to the WVDEP under the Voluntary Remediation Program prior to the execution of the Certificate of Completion. Information that does not qualify as new information may be considered by the Secretary along with new information if necessary, to determine whether any of the conditions for reopening set out in W. Va. Code § 22-22-15, have occurred.

Where one of the foregoing conditions is found to exist for a portion but not all of the Site, this certificate and covenant shall continue to apply to all portions of the Site that were unaffected by the occurrence of that condition.

To the extent that the Agreement or any of the documents referenced in this certificate impose obligations that continue after the execution of this certificate, there shall be continued compliance with such obligations.

This certificate and covenant do not preclude the State of West Virginia from taking any unilateral action at the Site, under any existing or future statutory authority, to protect human health and the environment; provided however, in no event shall the State have a right of recovery against [Applicant] or any other person to whom the covenant herein applies to the extent that such right of recovery arises under Chapter 22 of the West Virginia Code, and relates to matters covered by the Agreement.

This certificate and covenant do not preclude the State from seeking recovery of such sums as the [Applicant] has agreed to pay WVDEP under the Agreement.

WHEREFORE, the Secretary of the Department of Environmental Protection, on behalf of the State of West Virginia, issues this certificate and covenant, with all aforementioned privileges, responsibilities, conditions and reservations, this date of __________, to [Applicant]. __________________________________________ Secretary, Department of Environmental Protection

APPENDIX 60-3E

LAND USE COVENANT

This is an environmental covenant executed pursuant to the Voluntary Remediation and Redevelopment Act, W. Va. Code § 22-22, and the Uniform Environmental Covenants Act, W. Va. Code § 22-22B, to restrict the activities on, and uses of, the following described property:

Street Address:

City:

County:

Tax District (as applicable):

Tax Map:

Tax Parcel(s):

Deed Book(s):

Page No(s).:

Acres:

A map is attached as Exhibit A indicating the area to which specific activity and use limitations apply. [If the area subject to restriction is a subset of a larger parcel, provide a survey description (metes and bounds) of the restricted area here, or if more than one page, attach as Exhibit B or C.]

The subject property has been remediated in accordance with the Voluntary Remediation and Redevelopment Act, W. Va. Code § 22-22. [IF APPLICABLE: (Residential/Non-residential) exposure assumptions were used to comply with the site-specific remediation standard.] Contaminants of concern that exceed de minimis residential standards by media are as follows: [Provide list or table of contaminants of concern that exceed de minimis residential standards by media (surface soil, subsurface soil, groundwater). If the number of COCs is extensive, state, “A list of contaminants of concern is provided as Exhibit B, C, or D.”]

The following activities on and uses of the above described property may result in excessive human exposure or the release of a contaminant that was contained as part of the remedial action related to this covenant. Therefore, the following activities on and uses of the real property are prohibited: [Select from the following list of prohibited activities and/or insert additional prohibited activities as applicable.]

1. Use for residential purposes, as defined by W. Va. Code § 22-22-2(bb), including, but not limited to, schools, day care centers, nursing homes, or other residential-style facilities or recreational areas.

2. Use or extraction of groundwater for any purpose, except for groundwater monitoring and/or remediation.

3. Excavation, drilling, or penetration [SELECT AS APPROPRIATE: of the ground surface, or XX feet below the ground surface], unless the following requirements are met:

a. The activity is conducted by persons qualified and knowledgeable about releases and exposures to contaminants known to exist at the site.

b. The work is performed in accordance with applicable health and safety laws and regulations and a Soil Management Plan developed by a West Virginia Licensed Remediation Specialist or similarly qualified individual.

c. The disturbed area is restored in a manner which assures that an equivalent amount of exposure control is achieved at the conclusion of the work.

d. The owner of the real property provides written notice to the West Virginia Department of Environmental Protection (WVDEP) of the intent to conduct such work no less than five (5) days prior to beginning unless a waiver is granted by the WVDEP.

e. At the request of the WVDEP, the owner of the real property provides written evidence (including laboratory analytical data) showing the affected area continues to meet the remediation standard following completion of the work.

4. Any activity that may interfere with the groundwater monitoring well network.

5. Construction of a building without a sub-slab vapor barrier and/or ventilation system adequate to prevent exposure to vapors in soil and groundwater, as determined by a West Virginia Licensed Remediation Specialist or similarly qualified individual. Alternately, the restriction area may be further evaluated by a West Virginia Licensed Remediation Specialist or similarly qualified individual to determine if vapor control is necessary to meet the remediation standard. [INSERT AS APPROPRIATE: The following engineering control(s) (depicted on Exhibit A/B) have been installed at the property as a part of the remedy and is/are necessary to attain the designated remediation standard and shall be operated and maintained as necessary to protect its/their functional integrity: [Provide a list of any engineering controls and a description of any inspection, maintenance, and operation necessary to maintain them.]

Engineering Control 1:

Engineering Control 2:

The current owner(s) of record of the property, and the owner contact information:

Property Owner 1 Contact Person City, State Zip Property Owner 2 Contact Person City, State Zip Property Owner 3 Contact Person City, State Zip Any person, including a person that owns an interest in the real property, the state or federal agency determining or approving the environmental response project pursuant to which an environmental covenant is created, or a municipality or other unit of local government may be a holder of an environmental covenant. The following are all of the holders of this covenant:

Covenant Holder 1 Relationship to Property City, State, Zip Covenant Holder 2 Relationship to Property City, State, Zip Covenant Holder 3 Relationship to Property City, State, Zip The owner(s) of the property shall provide written notice to the WVDEP within ten (10) days following transfer of a specified interest in the property subject to this covenant, changes in use of the property, or applications for building permits or proposals for any site work affecting the contamination on the property. Any notice regarding transfer of a specified interest in the property subject to this covenant shall include the name, address, and contact information for the new owner.

The owner(s) shall conduct inspections of the property one time per year, no more than sixty (60) days before or after the anniversary date of this covenant. Inspections shall be conducted in accordance with the Land Use Covenant Inspection Form provided as Exhibit [select exhibit letter]. Owner shall submit the signed Land Use Covenant Inspection Form to the WVDEP headquarters within thirty (30) days of the inspection.

This covenant relieves the applicant and subsequent successors and assigns from all civil liability to the state as provided under W. Va. Code § 22-22 and shall remain in effect so long as the property complies with the applicable standards in effect at the time this covenant was issued.

This covenant shall not be amended, modified or terminated except by written instrument executed in accordance with W. Va. Code § 22-22B-10, by and between the owner at the time of the proposed amendment, modification or termination, the Secretary of the WVDEP, or his successor in accordance with regulations promulgated by the Secretary or his successor, and the holders of this covenant. Within five (5) days of executing an amendment, modification or termination of this Land Use Covenant, the owner shall record such amendment, modification or termination with the Clerk of the County Commission, and within five (5) days thereafter, the owner shall provide a true copy of the recorded amendment, modification or termination to the WVDEP.

The administrative record for the environmental response project reflected in this covenant is maintained at the WVDEP headquarters and is entitled: [VRP Project Name, VRP Project Number]

The WVDEP is granted full right of access to the property for the purpose of implementation or enforcement of this covenant.

All restrictions and other requirements described in this covenant shall run with the land and shall be binding upon all holders and their grantees, lessees, authorized agents, employees or persons acting under their direction or control.

[SIGNATURES APPEAR ON THE FOLLOWING PAGES]

IN WITNESS WHEREOF, the following holders have executed this covenant on the dates indicated. [Holder]

I, ______________________________, a Notary Public in and for the County of _________________________, State of _________________________, do hereby certify that the holder(s) whose name is signed above, this day executed this document in my presence or this day acknowledged same to be true act and deed of said holder(s).

Given under my hand this the ______ day of _______________, 20.

My commission expires ______________________________________________.

Notary Public [Repeat the Signature and Notary materials as many times as needed. If several holders sign before the same Notary, their signatures may be listed together and only one Notarization, referring to all such holders, will be needed for those signatures.]

I, ______________________________, a Notary Public in and for the County of _________________________, State of _________________________, do hereby certify that _________________________, whose name is signed above as the representative of the agency, this day executed this document in my presence or this day acknowledged same to be true act and deed of said holder(s).

Given under my hand this the ______ day of _______________, 20.

My commission expires ______________________________________________.

Notary Public The Clerk will return the recorded document to: [The document must contain the notarized signature(s) of the agency, every holder and, unless waived by the agency, every owner of the fee simple of the real property subject to the covenant.] [This covenant, and any amendment or termination of this covenant, must be recorded in every county in which any portion of the real property subject to the covenant is located. For purposes of indexing, a holder shall be treated as a grantee.]

TABLE 60-3A

LICENSED REMEDIATION SPECIALIST FEES

APPLICATION FEE $500.00

BIENNIAL RENEWAL FEE $400.00

EXAMINATION FEE $500.00

Series 04 Awarding of WV Stream Partners Program Grants Rule

W. Va. Code R. § 60-4-1 General

1.1. Scope. -- The purpose of this rule is to provide Stream Partners Program grant requirements and guidance concerning the awarding of grants to broad-based community organizations for watershed improvement projects.

1.2. Authority. -- W. Va. Code § 20-13-4.

1.3. Filing Date. --. April 15, 2015.

1.4. Effective Date. --. May 1, 2015.

W. Va. Code R. § 60-4-2 Definitions

2.1. "Broad-based community organization" means an organization comprised of local individuals from a cross section of the community that live on or near the stream. Example organizations include those with a representation of a cross section from industry, environmental organizations, agriculture, local government, tourism, recreation, and landowners.

2.2. "Grant" means the money awarded to the broad-based community organization by the State of West Virginia. The amount of the grant shall not exceed $5,000.

2.3. "Grantee" means the broad-based community organization that has been awarded the grant to complete a watershed improvement project.

2.4. "In-kind services" means goods and services donated to the organization to help complete the watershed improvement project and to match 20% of the awarded grant.

2.5. "Executive Committee" means a committee consisting of the directors and secretary or his or her designee from each of the four agencies that jointly administer the program. These agencies include: the West Virginia Department of Environmental Protection, the West Virginia Divisions of Forestry and Natural Resources and the West Virginia Soil Conservation Agency.

2.6. "West Virginia Stream Partners Program Coordinator" means a staff member of one of the administering agencies who coordinates the program on behalf of the Executive Committee.

2.7. "Watershed" means a topographically (lay-of-the-land) defined drainage system that directs rainfall, spring outflows, and other surface water sources to a common collection area such as a hollow watercourse, a stream, or a river. Watersheds can and do vary in size from several acres to thousands of square miles.

2.8. "Watershed improvement project" means a project that enhances the identified stream or streams and educates the citizens in the area of that stream or streams about the benefits of restoring, protecting and enhancing the quality of life within the watershed.

W. Va. Code R. § 60-4-3 Applicability

3.1. In accordance with W. Va. Code § 20-13-5, grants may be used by broad-based community organizations as defined in subsection 2.1 of this rule.

3.2. Grants will be made for a period of one calendar year. Within that year the grantee must demonstrate the ability to achieve the specific watershed improvement project that enhances the identified stream within the watershed.

3.3. In accordance with W. Va. Code § 20-13-4, grants will be awarded on a twenty per cent (20%) matching basis. The amount of the grant will be determined by a required watershed improvement project budget, not to exceed $5000.

3.4. In accordance with W. Va. Code § 20-13-5, applicant must evidence a commitment to educate the citizens in the area of the identified stream about the benefits of restoring, protecting, and enhancing the stream within the watershed in a responsible manner.

W. Va. Code R. § 60-4-4 In-kind Services

4.1. Credit will be given for any in-kind services, cash contributions, and other grants contributed to the watershed improvement project when determining the twenty per cent (20%) match of the grant.

4.2. Volunteer services furnished by organization members, third-party professionals, technical personnel, consultants, and other skilled and unskilled labor may be counted as in-kind services. Rates for all volunteer services must be consistent with those paid for similar work in the labor market in which the organization competes for the kind of services involved.

4.3. Donated equipment will be valued at its fair market value pro-rated over the life of the grant year.

W. Va. Code R. § 60-4-5 Authorized Uses of Grant Funds

5.1. Grants may be used for the following types of watershed improvement projects:

5.1.a. Fish and wildlife habitat enhancement;

5.1.b. Stream bank stabilization, erosion and sediment control;

5.1.c. Education on the importance of protecting streams within the watersheds;

5.1.d. Water monitoring and watershed assessments include but are not limited to, stream classification, its natural meanders, and land uses;

5.1.e. Improved land use practices; and

5.1.f. Clean up projects when done in conjunction with above-mentioned projects.

5.2. The Executive Committee shall authorize use of grant funds during the grant selection process by approving submitted budgets. All changes to these budgets must be in writing and approved by the Stream Partners Program Coordinator. Authorized uses of grant within the watershed improvement project may include the following:

5.2.a. Production, copying and mailing of public information and educational materials to promote the protection of streams within the watershed;

5.2.b. Implementation and materials for the completion of the watershed improvement project;

5.2.c. General operating expenses of the organization, which can include acquiring and maintaining non-profit status in accordance with Section 501(c)(3) of the IRS Tax Code guidelines;

5.2.d. Equipment for the watershed improvement project that will belong to the organization;

5.2.e. As match for State, federal, and local watershed projects funds;

5.2.f. Travel expenses for organization members for educational training programs;

5.2.g. Office equipment and office supplies to support the organization's outreach efforts and the watershed improvement project; and

5.2.h. Salaries not to exceed twenty percent (20%) of the grant total within the grant year.

W. Va. Code R. § 60-4-6 Review, Evaluation, and Award

6.1. Each application will be scored utilizing the following criteria:

6.1.a. Application Style: Legibility of the application, completed and signed cover sheet, and all questions answered and easy to find;

6.1.b. Membership and History: A description of how the organization is a broad-based community organization. Also provide an overview of the organization's history;

6.1.c. Issues: A review of the issues that affect the stream or streams within the watershed;

6.1.d. Long and Short-Term Goals: A plan showing the organization's vision, mission, long-term goals, short-term goals, and the effect the project and organization will have on the community;

6.1.e. Watershed Improvement Project: A description of the watershed improvement project that will enhance the quality of the stream and the watershed;

6.1.f. Budget: A budget for the watershed improvement project that includes: how the applicant plans to spend the grant, in-kind services, cash contributions, and other grants that constitute the twenty per cent (20%) match;

6.1.g. Outreach: A plan to provide education and outreach to the community about the importance of watershed protection and restoration; and

6.1.h. Past History/ New Organizations:

6.1.h.1. For existing groups: record-keeping ability, completion of documentation of grant expenditures, watershed improvement project, ability to foster partnerships and obtain in-kind/cash contributions.

6.1.h.2. For new organizations: ability to get organized, planning procedures, and partnership building.

6.2. Grants, up to $5000, will be awarded to the highest ranking applicants by Executive Committee.

W. Va. Code R. § 60-4-7 Grant Conditions

7.1. The Executive Committee reserves the right to withdraw a grant upon determination of unsatisfactory program compliance with these rules.

W. Va. Code R. § 60-4-8 Unexpended Funds

8.1. Unexpended funds may be used for future watershed improvement projects under the following conditions:

8.1.a. The grantee files a statement of the intended use of the unexpended portion of the grant;

8.1.b. The grantee sets a target date for the completion of the watershed improvement project; and

8.1.c. The grantee submits a final report and a budget, including grant expenditures, in-kind services, cash contributions, and other grants.

W. Va. Code R. § 60-4-9 Reporting

9.1. The grantee must provide a mid-term report and a final report, including a budget, indicating how the grant money was spent and all in-kind services, cash contributions, and other grants that constitute the twenty per cent (20%) match.

9.2. The grantee must submit copies of all grant expenditures and should retain all receipts from expenditures of the grant for a minimum of three (3) years.

9.3. Grantees that do not comply with the reporting requirements shall not be eligible for future funding. The Executive Committee may deny future funding to grantees who do not comply with reporting requirements.

W. Va. Code R. § 60-4-10 West Virginia Stream Partners Program Coordinator Duties

10.1. The West Virginia Stream Partners Program Coordinator will track the activities, progress, and milestones of the grantees and their watershed improvement projects and disseminate this information to the Executive Committee to be incorporated into the grant selection process.

60CSR4

60CSR4

Series 05 Antidegradation Implementation Procedures

W. Va. Code R. § 60-5-1 General

1.1. Scope. -- This rule establishes the procedures by which the Department of Environmental Protection shall implement the State’s water quality anti-degradation policy found at 47 CSR 2-4.

1.2. Authority. -- W. Va. Code §22-11-7b(d).

1.3. Filing Date. -- April 11, 2008.

1.4. Effective Date. -- July 1, 2008.

1.5. Applicability.

1.5.a. Except as noted, the antidegradation implementation procedures herein apply to regulated activities that have the potential to affect water quality. The level of review required will depend upon the existing uses of the water segment that would be affected, the level of protection (“tier”) assigned to the applicable water segment, the nature of the activity, and the extent to which existing water quality would be degraded.

1.5.b. Nonpoint source activities will be deemed to be in compliance with antidegradation requirements with the installation and maintenance of cost-effective and reasonable best management practices in accordance with 47 CSR 2-4.1.b. These include, but are not limited to, best management practice programs for silviculture administered by the Division of Forestry, programs for oil and gas operations administered by the Office of Oil and Gas of the Department of Environmental Protection, nonpoint source construction activities, and reasonable land, soil and water conservation measures and practices applied to agricultural nonpoint sources.

1.5.c. Where applicable and practical, the antidegradation procedure and review shall be integrated into and proceed concurrently with existing environmental processes and reviews pursuant to the National Environmental Policy Act.

1.5.d. Information contained within existing environmental processes and reviews, such as environmental assessments, environmental impact statements, facilities plans, and findings of no significant impact, may be used to provide part or all of the requirements of the antidegradation procedure and review.

W. Va. Code R. § 60-5-2 Definitions

2.1. “Agency” or “agencies” means the Department of Environmental Protection or other federal, state, or local governmental entities with regulatory authority over activities that may affect water quality.

2.2. “Ambient concentration” means that measured value or level of water quality downstream of the proposed or existing activity (discharge point for point source, runoff area for nonpoint source) for any parameter of concern determined through EPA-approved, collection and analytical methods in 40 CFR 136 or other methods accepted by the Secretary.

2.3. “Ambient water quality conditions” (AWQC) means those physical, chemical, biological and radiological conditions of the receiving waters of the state existing at the time of review of a regulated entity.

2.4. “Baseline water quality” means that ambient concentration established at the time of an initial antidegradation review for a stream or stream segment or any other water(s) of the state.

2.5. “Board” or “EQB” means the West Virginia Environmental Quality Board.

2.6. “Minimum uses” means recreation and wildlife and the propagation and maintenance of fish and other aquatic life.

2.7. “Parameter of concern” means any parameter for which numeric water quality criteria have been adopted in 47CSR2 and any other parameter for which numeric criteria are not established but where the discharge of such parameter has a reasonable potential to either cause or contribute to a violation of the narrative criteria outlined under 47CSR2, section 3.

2.8. “Reasonable less-degrading or non-degrading alternatives” shall be identified based on case specific information. In most cases, less-degrading or non-degrading pollution control alternatives shall be considered reasonable where the costs of such alternatives are less than 110% of the costs of the pollution control measures associated with the proposed activity. 2.9 “Regulated entity” means any regulated entity that affects or is proposing an activity that will affect water quality. For example, an applicant for a WV/NPDES permit, a WV/NPDES permit holder, or an owner or operator of an activity that discharges pollutants into a water of the state would be a regulated entity.

2.10. “Secretary” means the Secretary of the Department of Environmental Protection or its successor.

2.11. “Trading” means establishing upstream controls for a parameter of concern to compensate for new or increased downstream sources for the same parameter resulting in improved water quality for the parameter traded. More than one parameter of concern may be traded on a given stream. Trading may involve point sources, nonpoint sources or a combination of point and nonpoint sources. Unused permitted capacity cannot be traded.

2.12. “Trading assessment procedure” means methodologies to be used by the Secretary to document the basis for any trade and include Total Maximum Daily Load Procedures (40 CFR 130.2(i)), wasteload allocation procedures outlined in EPA’s Technical Support Document for Water Quality-based Toxics Control (EPA/505/2-90-001 PB91-127415, March 1991), wasteload allocation methodologies outlined in EPA’s Draft Framework for Watershed-Based Trading (EPA/800-R-96-001, May 1996) or other EPA approved wasteload allocation methodologies as long as these methodologies are consistent with the trading provisions of this rule.

W. Va. Code R. § 60-5-3 Antidegradation Review Process

3.1. As set forth in 47 CSR 2-4.1, the State’s antidegradation policy requires that existing uses and the level of water quality necessary to protect the existing uses shall be maintained and protected. This requirement applies to all waters of the state.

3.2. Except where a water segment is specifically listed as a Tier 3 water, the following sections outline how the agency conducting the antidegradation review will determine the level of protection (“tier”) assigned to the receiving water body associated with the activity subject to this rule.

3.3. Uses. The Secretary, in conducting an antidegradation review, must determine the existing uses of the receiving water body associated with the proposed activity. The Secretary shall determine the existing uses of the water body by identifying the uses set forth in 47 CSR 2-6 that the water body currently supports, or has supported since November 28, 1975. The regulated entity may be required to provide data sufficient for the permitting agency to determine the existing uses of the water segment.

3.4. Baseline water quality. Where baseline water quality has not been established for the water segment the regulated entity proposes to impact or has not been established for a parameter of concern that is reasonably expected to be discharged into the water segment as a result of the proposed regulated activity, the Secretary must determine the baseline water quality for the receiving water body. The Secretary may consider data for establishing the baseline water quality from a federal or state agency, the regulated entity, the public, or any other source, as long as the data are recent and reliable. If adequate data are not available, the agency may, in conjunction with the regulated entity or on its own initiative, establish a plan for obtaining the necessary data. The regulated entity may be required to provide baseline water quality for those parameters of concern that are reasonably expected to be discharged as a result of the regulated activity into the affected water segment to help the permitting agency determine the baseline water quality, the existing uses, and the applicable tier. The regulated entity may contact the Secretary prior to initiating a baseline water quality evaluation to seek concurrence with its determination of the parameters of concern for its proposed activity and its proposed sampling protocol.

3.5. Determination of tier. If the tier has not already been determined for the water segment the regulated entity proposes to impact, then after determining the baseline water quality for parameters of concern and the existing uses for a water body, the agency will determine which level of protection (i.e. “tier”) applies to the receiving water body associated with the activity, as follows:

3.5.a. Water segments within a federally designated Wilderness Area, or otherwise included in 47CSR2-4.1.c, as well as other water segments specifically listed as an outstanding national resource water pursuant to subsection 7.1 shall receive Tier 3 protection.

3.5.b. Water segments not within a federally designated Wilderness Area, or otherwise included in 47CSR2-4.1.c. or listed pursuant to subsection 7.1. of this rule, shall receive Tier 1 protection, and shall receive Tier 2 protection if the water segment is determined, pursuant to subsections 5.1. through 5.3. of this rule, to be a high quality water for purposes of antidegradation review.

3.5.c. Water segments may be determined to receive only Tier 1 protection, pursuant to subsections 4.2. through 4.6. of this rule, for purposes of antidegradation review.

3.5.d. To the extent practicable, a list of water segments protected under Tier 3 will be maintained on the West Virginia Department of Environmental Protection’s website.

3.6. Level of review. Once the correct level of protection (“tier”) and water segment use(s) are identified for the receiving water body, the agency shall document its findings and proceed with the appropriate level of antidegradation review.

3.7. On or after July 2, 2001, the effective date of these implementation procedures, new and reissued WV/NPDES general permits will be evaluated to consider the potential for significant degradation as a result of the permitted activity. Regulated activities that are granted coverage by a WV/NPDES general permit will not be required to undergo a Tier 2 antidegradation review as part of the permit registration process. Regulated activities that are granted coverage by a WV/NPDES permit that will degrade a Tier 3 water segment must comply with the requirements of sections 6 and 7 herein.

3.8. Regulated activities that qualify for coverage under a Corps of Engineers regional or nationwide permit pursuant to section 404 of the Federal Act that has been certified by the state pursuant to section 401 of the Federal Act will not be required to undergo a Tier 2 antidegradation review, provided, however, that where an individual 401 certification is required, the Secretary may require an appropriate antidegradation review. Where an activity covered by a regional or nationwide permit pursuant to section 404 of the Federal Act and certified pursuant to section 401 of the Federal Act allows for filling of a water, this exemption only applies to the site of the fill, and does not apply to activities downstream of the site of the fill. Regulated activities that are granted section 401 certification that will degrade a Tier 3 water segment must comply with the requirements of sections 6 and 7 herein.

3.9. The Secretary shall develop guidance which addresses these implementation procedures and provides additional information to persons conducting regulated activities that are affected by these procedures. Such guidance shall include, but shall not be limited to, information regarding the following: (a) the determination of baseline water quality; (b) social and economic importance pursuant to subsection 5.8; and (c) the reasonable alternatives analysis required by subsection 5.7. The Secretary shall provide an opportunity for public review and comment before finalizing any guidance.

W. Va. Code R. § 60-5-4 Tier 1 Protection

4.1. Existing uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.

4.2. Tier 1 protection applies to all waters of the state. A water segment shall be afforded Tier 1 protection where the level of water quality is not sufficient to support recreation and wildlife and the propagation and maintenance of fish and other aquatic life, or where the water quality meets but does not exceed levels necessary to support recreation and wildlife and the propagation and maintenance of fish and other aquatic life.

4.3. In determining whether a water segment is afforded only Tier 1 protection, the agency will focus on whether the water segment is meeting or failing to meet minimum uses.

4.4. The Secretary will consider whether a water segment is listed on the state’s 303(d) impaired waters list, but where the parameter(s) for which the water segment is listed does not result in that water segment’s failure to attain minimum uses and where all other parameters exceed the quality necessary to support recreation and wildlife and the propagation and maintenance of fish and other aquatic life, the water segment will be afforded Tier 2 protection. Where the parameter(s) for which the water segment is listed does result in failure to attain minimum uses, such as an acid mine drainage-impacted water segment, that water segment will be afforded only Tier 1 protection.

4.5. All water segments listed on the state’s 303(d) impaired waters list will be afforded only Tier 1 protection for the parameter(s) that resulted in the water segment being listed.

4.6. There also may be waters in the state where one or both of the fishable/swimmable uses are attained, but existing water quality is not “better than necessary” to support those uses (i.e., assimilative capacity does not exist for any of the parameters that would be affected by the proposed activity). Tier 1 protection is appropriate for such a water segment.

4.7. Where existing uses of the water body are impaired, there shall be no lowering of the water quality with respect to the parameters of concern that are causing the impairment. The agency shall consider nomination of such water body for the 303(d) list of water quality-impaired streams.

4.8. Where a proposed activity will result in a new or expanded discharge that would otherwise prevent attainment of an existing use in a water subject to Tier 1 protection, the applicant may be allowed to satisfy antidegradation review requirements by implementing or financing upstream controls of point or nonpoint sources sufficient to offset the water quality effects of the proposed activity from the same parameters and insure an improvement in water quality as a result of the trade. The basis of the trade will be documented and will be consistent with the trading assessment procedure that has been approved by the Secretary. A trade may be made between more than one stream segment where removing a discharge in one stream segment directly results in improved water quality in another stream segment. In addition, (1) the effluent trade must be for the same parameter; (2) where uncertainty exists regarding the effluent trade, an adequate margin of safety will be required; (3) dischargers cannot claim offsets for water quality improvements that are required or will occur irrespective of the proposed new or expanded discharge; and (4) the trade must be enforceable.

W. Va. Code R. § 60-5-5 Tier 2 Protection (High Quality Waters)

5.1. A water segment shall be considered a Tier 2 high quality water where the level of water quality exceeds levels necessary to support recreation and wildlife and the propagation and maintenance of fish and other aquatic life.

5.2. Tier 2 waters need not exceed the level of quality needed to meet or exceed numeric criteria for every parameter. For example, a water segment listed on the state’s 303(d) impaired waters list can qualify for Tier 2 protection, but where the impairment that caused the water segment to be listed results in failure to attain minimum uses, that water segment will be afforded only Tier 1 protection.

5.3. Where a water segment does not meet or exceed applicable water quality criteria for every parameter, the Secretary will determine whether the water segment will be afforded Tier 2 protection as part of the antidegradation review process using best professional judgment. In addition to data available for review, the Secretary may consider factors such as (1) existing aquatic life uses, (2) existing recreational or aesthetic uses, (3) existing water quality data for upstream segments or comparable segments, (4) biological score for the water segment, and (5) the overall value of the segment from an ecological, health and public use perspective.

5.4. Where insufficient information is available to determine which tier should apply, a regulated entity may seek a determination that a water segment should be afforded only Tier 1 protection by submitting water quality data consistent with guidance developed pursuant to subsection 3.9. of this rule showing that there is no remaining assimilative capacity for any parameter to be affected by its activity. In seeking such a determination, the impacts of all of the regulated entity’s activities on the water segment must be considered.

5.5. Where there is insufficient information to establish which tier should apply, it is the intent of these procedures to apply Tier 2 protection to such waters until such time as sufficient water quality data is obtained to determine the appropriate level of protection. No presumption shall be made with regard to the actual quality of any waters as a result of such initial application.

5.6. Tier 2 antidegradation review.

5.6.a. Any regulated activity in a Tier 2 water segment is required to go through the Tier 2 antidegradation review process where:

5.6.a.1. The regulated activity is a new or expanded activity that would significantly degrade water quality; or

5.6.a.2. The Secretary determines, upon renewal of a permit or certification, that other individual circumstances warrant a full review such as cumulative degradation resulting from multiple discharges within a watershed, degradation resulting from a single discharge over time, or degradation caused by a regulated facility’s historic noncompliance with its permit.

5.6.b. In allowing any degradation, the agency shall assure water quality adequate to protect existing uses fully (i.e., Tier 1 protection).

5.6.c. Degradation for Tier 2 shall be deemed significant if the activity results in a reduction in the water segment’s available assimilative capacity (the difference between the baseline water quality and the water quality criteria) of ten percent or more at the appropriate critical flow condition(s) for parameters of concern. Critical flow conditions for non-precipitation induced discharges are the 7Q10 flow of the receiving stream, plus either of the following: maximum permitted flow or maximum flow specified in the application, for industrial activities, or the average design flow, for wastewater treatment activities. Degradation will also be deemed significant if the proposed activity, together with all other activities allowed after the baseline water quality is established, results in a reduction in the water segment’s available assimilative capacity of 20% or more at the appropriate critical flow conditions for the parameters of concern, except that discharges affecting dissolved oxygen, pH or fecal coliform will be deemed insignificant provided that:

5.6.c.1. For dissolved oxygen, the maximum DO sag will not be greater than 0.4 ppm based on an approprite wasteload allocation model, unless that reduction is projected to cause a violation of 47 CSR 2-8.12 through 8.12.3, Appendix E, Table 1;

5.6.c.2. pH is maintained within the 6.0 to 9.0 range;

5.6.c.3. For fecal coliform, necessary and appropriate treatment (disinfection) or control is required and the fecal coliform concentrations are established as 200/100 ml monthly average and 400/100 ml daily maximum.

5.6.d. Significant degradation will be determined on a parameter-by-parameter basis for each parameter of concern that might be affected by the regulated activity.

5.6.e. A proposed activity that will result in a new or expanded discharge in a water subject to Tier 2 protection may be allowed where the applicant agrees to implement or finance upstream controls of point or nonpoint sources sufficient to offset the water quality effects of the proposed activity from the same parameters and insure an improvement in water quality as a result of the trade. The basis of the trade will be documented and will be consistent with the trading assessment procedure that has been approved by the Secretary. A trade may be made between more than one stream segment where removing a discharge in one stream segment directly results in improved water quality in another stream segment. In addition, (1) the effluent trade must be for the same parameter; (2) where uncertainty exists regarding the effluent trade, an adequate margin of safety will be required; (3) dischargers cannot claim offsets for water quality improvements that are required or will occur irrespective of the proposed new or expanded discharge; and (4) the trades must be enforceable.

5.6.f. New or expanded activities determined to be significant by the agency shall be subject to the Tier 2 review requirements described in subsections 5.6. through 5.9. herein. If the agency determines that no further Tier 2 review requirements shall apply for an activity, the activity must still achieve the highest established statutory and regulatory requirements applicable to them, or conditions of the permit, or water quality certification, and that determination must be made a part of the public notification, as provided in subsections 8.1 through 8.5.

5.7. Review of alternatives.

5.7.a. If a determination is made that significant degradation will occur, the agency shall determine whether reasonable and cost effective less-degrading or non-degrading alternatives to the proposed activity exist. The agency will evaluate any alternatives analysis submitted by the regulated activity for consistency with the requirements set forth in Subdivision 5.7.b. herein.

5.7.b. A regulated entity proposing any new or expanded regulated activity that would significantly degrade water quality in a high quality water is required to prepare an evaluation of alternatives to the proposed activity. The evaluation must provide substantive information pertaining to the cost and environmental impacts associated with the following alternatives:

5.7.b.1. Pollution prevention measures;

5.7.b.2. Reduction in scale of project;

5.7.b.3. Water recycle or reuse;

5.7.b.4. Process changes;

5.7.b.5. Innovative treatment technology or technologies;

5.7.b.6. Advanced treatment technology or technologies;

5.7.b.7. Seasonal or controlled discharge options to avoid critical water quality periods;

5.7.b.8. Improved operation and maintenance of existing treatment systems; and

5.7.b.9. Alternative discharge locations.

5.7.c. After alternatives to allowing degradation have been adequately evaluated, a determination shall be made regarding whether cost-effective and reasonable non-degrading or less-degrading alternatives to the proposed activity shall be required. This determination will be based primarily on the alternatives analysis developed by the regulated entity, but may be supplemented with other information and data. As a rule of thumb, cost effective and reasonable non-degrading or less-degrading pollution control alternatives with costs that are less than 110% of the costs of the pollution control measures associated with the proposed activity shall be considered reasonable.

5.7.d. If it is determined that reasonable and cost effective less degrading or non-degrading alternatives to the proposed activity do exist, the project design may be revised accordingly. In general, if reasonable alternative(s) exist, the alternative or combination of alternatives that provide the least amount of degradation shall be implemented up to the determined reasonable and cost-effective threshold. If the regulated entity does not agree to adopt such reasonable and cost-effective alternatives, the alternatives analysis findings will be documented and the activity will not be allowed.

5.8. Review of social and economic importance.

5.8.a. If significant degradation would occur, even after application of reasonable less-degrading or non-degrading alternatives, a determination shall be made as to whether the proposed activity is necessary to accommodate important economic or social development in the area in which the waters are located.

5.8.b. The regulated activity must document the social and economic importance of the proposed activity.

5.8.c. The factors to be addressed in such documentation may include, but are not limited to, the following:

5.8.c.1. Employment (e.g., increasing, maintaining or avoiding a reduction in employment);

5.8.c.2. Increased production;

5.8.c.3. Improved community tax base;

5.8.c.4. Housing;

5.8.c.5. Ancillary community economic benefit; and

5.8.c.6. Correction of an environmental or public health problem.

5.8.d. In addition to the above, a regulated entity may be required to submit the following:

5.8.d.1. Information pertaining to current aquatic life, recreational, or other water uses;

5.8.d.2. Information necessary to determine the environmental impacts that may result from the proposed activity;

5.8.d.3. Facts pertaining to the current state of economic development in the area (e.g., population, area employment, area income, major employers, types of businesses);

5.8.d.4. Government fiscal base; and

5.8.d.5. Land use in the areas surrounding the proposed activity.

5.8.e. Once the available information pertaining to the socio-economic importance of the proposed activity has been reviewed by the agency, a preliminary determination regarding importance shall be made. In evaluating the regulated activity's demonstration of socio-economic importance, the agency may use EPA's Interim Economic Guidance for Water Quality Standards Workbook (EPA 823-B-95-002, March, 1995). Where there is a request for a variance from groundwater standards pursuant to 47 CSR 57 for existing sites where activities on those sites have the potential to impact surface water from contaminated groundwater and the activity is otherwise subject to this rule, the socio-economic justification process required under 47 CSR 57 subdivision 6.2.i will satisfy the requirements of this section. If the proposed activity is determined to have social or economic importance in the area in which the affected waters are located, the substance and basis for that preliminary determination shall be documented and the Tier 2 review shall continue.

5.9. Intergovernmental coordination for Tier 2 reviews.

5.9.a. The intergovernmental coordination requirements in 47 CSR 2-4.1.b. will be accomplished by providing notice to those agencies listed in Appendix A that the Secretary believes may have regulatory oversight of the regulated activity of the preliminary determination of the socio-economic review and requesting comments from those agencies regarding that review.

5.9.b. The public notice of the proposed activity will be provided as set forth in subsections 9.1 through 9.5 herein.

5.9.c. Once the intergovernmental coordination and public notice requirements are satisfied, the Secretary shall make a final determination concerning the social or economic importance of the proposed activity. All social and economic importance determinations, including determinations to prohibit the activity, shall be documented and made a part of the public record.

W. Va. Code R. § 60-5-6 Tier 3 Protection Review Procedures (Outstanding National Resource Waters). See 47 CSR 2-4.1.c and 47 CSR 2-2.10 for a Description of Outstanding National Resource Waters (ONRW)

6.1. Tier 3 waters. ONRWs are to be maintained, protected and improved where necessary. Any proposed new or expanded regulated activity that would degrade (result in a lowering of water quality) a water body that has been designated an ONRW, other than temporary lowering of water quality, is prohibited.

6.2. Tier 3 antidegradation review. The agency shall use the following antidegradation implementation procedures for evaluating new or expanded regulated activities that have the potential to affect Outstanding National Resource Waters (ONRWs), as described in 47 CSR 2 - 4.1.c. and as listed in accordance with subsection 7.1.

6.2.a. Determine whether the proposed activity is short term in nature and the resulting changes in water quality will be temporary. Such determination will be made on a case-by-case basis and shall be made after consideration of the following factors:

6.2.a.1. The length of time during which the water quality will be lowered;

6.2.a.2. The percent change in ambient concentrations;

6.2.a.3. The parameters affected;

6.2.a.4. The likelihood for long-term water quality benefits to the segment (e.g., as may result from dredging of contaminated sediments);

6.2.a.5. The degree to which achieving applicable water quality standards during the proposed activity may be at risk; and

6.2.a.6. The potential for any residual long-term influences on existing uses.

6.2.b. If after review of the factors in paragraphs 6.2.a.1 through 6.2.a.6, the agency determines that the proposed activity will be short term in nature and the changes in water quality will be temporary and limited, the proposed activity may be authorized. In such case the antidegradation review findings shall be documented and public notice activities shall be initiated. If after review of the factors in paragraphs 6.2.a.1 through 6.2.a.6. the agency determines that the proposed activity will not be short term in nature or that changes in water quality will not be temporary and limited, the proposed activity shall be denied.

6.3. Sources upstream from an ONRW. Any proposed activity that would result in a permanent new or expanded discharge upstream of an ONRW segment is prohibited except where such source would improve or not degrade the existing water quality of the downstream ONRW segment.

6.3.a. To determine whether the proposed activity will result in the lowering of water quality in the downstream ONRW segment, the following factors, when applicable, shall be considered:

6.3.a.1. Change in ambient concentrations predicted at the appropriate critical condition(s);

6.3.a.2. Change in loadings (i.e., the new or expanded loadings compared to total existing loadings to the segment);

6.3.a.3. Reduction in available assimilative capacity;

6.3.a.4. Nature, persistence and potential effects of the parameter;

6.3.a.5. Potential for cumulative effects;

6.3.a.6. Degree of confidence in the various components of any modeling technique utilized (e.g., degree of confidence associated with the predicted effluent variability); and

6.3.a.7. Other factors determined by the Secretary, when appropriate.

6.3.b. If a preliminary determination is made that the applicable criteria in paragraphs 6.3.a.1. through 6.3.a.7. will be met, the antidegradation review findings shall be documented and the applicable public notice activities shall be initiated. If after review of the factors in paragraphs 6.3.a.1. through 6.3.a.7., the Secretary determines that the proposed activity will result in the lowering of water quality in the downstream ONRW stream segment, the proposed activity shall be denied.

6.4. For ONRWs in areas designated as federal Wilderness, nothing in this rule is intended to authorize activities not authorized by the Wilderness Act.

6.5. A proposed activity that will result in a new or expanded discharge in a water subject to Tier 3 protection may be allowed where the applicant agrees to implement or finance upstream controls of point or nonpoint sources sufficient to offset the water quality effects of the proposed activity from the same parameters and insure an improvement in water quality as a result of the trade. The basis of the trade will be documented and will be consistent with the trading assessment procedure that has been approved by the Secretary. A trade may be made between more than one stream segment where removing a discharge in one stream segment directly results in improved water quality in another stream segment. In addition, (1) the effluent trade must be for the same parameter; (2) where uncertainty exists regarding the effluent trade, an adequate margin of safety will be required; (3) dischargers cannot claim offsets for water quality improvements that are required or will occur irrespective of the proposed new or expanded discharge; and (4) the trade must be enforceable.

W. Va. Code R. § 60-5-7 Designation of Tier 3 Waters

7.1. Listing process for Tier 3 waters.

7.1.a. Tier 3 Nomination Procedures. Any interested party or the Secretary may nominate a water as an ONRW. After reviewing the nomination the Secretary shall consider the qualification criteria and may classify the nominated water as a Tier 3 water in accordance with the notice and comment provisions of this subsection. The address for filing such petitions is West Virginia Department of Environmental Protection, Attn: Tier 3 List, 601 57th Street, SE, Charleston, WV 25304. The nominating party has the burden of establishing a basis for listing of a water segment as a Tier 3 water. The Secretary shall return insufficient nominations to the nominating party. Generally, nominations that fail to address at least three of the qualification criteria set out in paragraph 7.2.a.2. of this rule shall be considered insufficient.

7.1.a.1. Upon receiving a sufficient nomination of a water or segment of a water for designation as a Tier 3 water pursuant to the State’s antidegradation policy, the Secretary shall notify each locality in which the water or segment lies and shall provide individual notice to property owners on the nominated segment. When a good faith effort to notify individual property owners has failed, and individual notice to property owners is impracticable, constructive notice by publication shall be provided. The written notice shall include, at a minimum:

7.1.a.1.A. A description of the location of the waters or segment;

7.1.a.1.B. The procedures and criteria for designation as well as the impact of the designation;

7.1.a.1.C. The name of the person(s) making the nomination; and

7.1.a.1.D. The name of a contact person at the Department of Environmental Protection who is knowledgeable about the nomination of the waters or segment. After receipt of the notice of the nomination, landowners, the public and localities shall be provided 60 days to comment.

7.1.a.2. Qualification Criteria. Factors to be considered in determining whether to assign an ONRW designation to a water from another category shall include the following:

7.1.a.2.A. Impact on private property owners;

7.1.a.2.B. Whether the interests of all affected parties have been adequately represented during the nomination and designation process;

7.1.a.2.C. The location of the water;

7.1.a.2.D. Any previous special designations;

7.1.a.2.E. Existing water quality;

7.1.a.2.F. Outstanding ecological value;

7.1.a.2.G. Outstanding recreational or aesthetic value; and

7.1.a.2.H. Other factors determined by the Secretary, when applicable.

W. Va. Code R. § 60-5-8 Public Participation in Antidegradation Reviews/Appeals

8.1. All antidegradation review findings shall be documented by the Secretary and made part of the public record. The findings, including the baseline water quality, the existing uses, and the tier assigned to the water body are to be available to the public.

8.2. Any required public notice will be provided through the appropriate Class I or Class II legal advertisement in a qualified newspaper with the largest circulation for the county where the activity will occur. The notice will identify the action being considered, list all existing uses identified of the water, and call for comments from the public regarding the proposed activity. The cost of such publication will be borne by the applicant.

8.3. Public notice, opportunity for public comment, and opportunity for a public hearing, consistent with the requirements of 47 CSR 10-12, will be provided of all activities proposed to be allowed after a Tier 1, 2, or 3 antidegradation review. Such public notice may be combined with other required notifications, such as notification to agencies as part of required intergovernmental coordination or notification of a proposed permit decision. Public notice is not required to be provided for proposed activities on Tier 1 or Tier 2 waters for which a review process has not been required, such as activities covered by a WV/NPDES general permits, except that any trading approved by the Secretary for antidegradation purposes will require public notice consistent with the requirements of 47 CSR 10-12.

8.4. Public notice of Tier 2 antidegradation reviews.

8.4.a. After a full Tier 2 review has been completed for a proposed activity, the public notice shall include notice of the availability of the following:

8.4.a.1. The decision as to whether the proposed activity has been determined to comply with the antidegradation implementation rule;

8.4.a.2. Findings from the alternatives analysis;

8.4.a.3. A determination of the impact of the activity to ambient concentrations and baseline water quality;

8.4.a.4. The results of the socio-economic evaluation of the activity;

8.4.a.5. The determination regarding existence of reasonable and cost effective non-degrading or less degrading alternatives; and

8.4.a.6. A description of the water segment that is subject to the antidegradation review.

8.5. Once the intergovernmental coordination and public notice requirements of subsections 8.1. through 8.5. are satisfied, the Secretary shall make a determination concerning the social or economic importance in the area in which the affected water bodies are located. All determinations, including determinations to prohibit the activity, shall be documented and made a part of the public record.

8.6. Appeals-Final agency decisions, made after public comment, that identify applicable uses, designate tiers, or that find regulated activities to be allowed or prohibited, are final actions that are appealable to the Board.

APPENDIX A

ANTIDEGRADATION IMPLEMENTATION PROCEDURES

INTERGOVERNMENTAL COORDINATION AGENCIES

STATE AGENCIES

Bureau of Commerce Department of Natural Resources Division of Forestry Development Office Department of Health and Human Resources Bureau for Public Health Bureau of the Environment Department of Environmental Protection - all offices Department of Agriculture Soil Conservation Agency Department of Transportation Division of Highways FEDERAL AGENCIES US Environmental Protection Agency, Region III US Fish and Wildlife Service US Army Corps of Engineers US Forest Service US Office of Surface Mining 60CSR5 60CSR5

Series 07 Confidential Information Under Water Resources Protection Act

W. Va. Code R. § 60-7-1 General

1.1. Scope. -- This rule establishes the requirements for claiming information submitted to the Secretary as confidential and the procedures for determinations of confidentiality in accordance with the provisions of W. Va. Code §22-26-4.

1.2. Authority. -- W. Va. Code §§22-26-3(m); 22-26-4.

1.3. Filing Date. -- September 9, 2005.

1.4. Effective Date. -- October 11, 2005.

W. Va. Code R. § 60-7-2 Definitions

2.1. “Act” means the Water Resources Protection Act, W. Va. Code §§ 22-26-1 et seq.

2.2. “Claimant” means the person asserting a claim of confidentiality.

2.3. “Confidential information” includes records, reports, information or data, or a particular portion thereof, that reveal a trade secret, contain protected information relating to homeland security or are subject to another exemption provided by the State Freedom of Information Act [W. Va. Code §29B-1-1 et seq.]; “confidential information” shall also include records, reports or information, or a particular portion thereof, that if made public would:

2.3.a. Divulge production or sales figures or methods, processes or production unique to the submitting person;

2.3.b. Otherwise tend to adversely affect the competitive position of a person by revealing trade secrets, including intellectual property rights; or

2.3.c. Present a threat to the safety and security of any water supply, including information concerning water supply vulnerability assessments.

2.4. “Governmental entities” means every state officer, agency, department, including the executive, legislative and judicial departments, division, bureau, board and commission; and any other body which is created by state or local authority or which is primarily funded by the state or local authority.

2.5. “Person” means an individual, public and private business or industry, public or private water service and governmental entity.

2.6. “Records”, “reports”, “information”, “data” or “documents” shall include information, regardless of physical form or characteristics, including electronic information.

2.7. “Secretary” means the Secretary of the West Virginia Department of Environmental Protection or his or her designee.

2.8. “Trade Secrets” may include, but are not limited to, any formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented which is known only to certain individuals within a commercial concern who are using it to fabricate, produce or compound an article or trade or a service or to locate minerals or other substances, having commercial value, and which gives its users an opportunity to obtain business advantage over competitors.

2.9. “WVDEP” means West Virginia Department of Environmental Protection employees, representatives, contractors, temporary employees, or interns.

W. Va. Code R. § 60-7-3 Claim of Confidentiality

3.1. Time When Made. Any person required to submit information to the Secretary pursuant to the Act, which such person believes in good faith to constitute confidential information, may assert a confidentiality claim in accordance with this rule. Such claim must be made as soon as practicable, but no later than ten (10) days from the date the information was submitted. If a claim of confidentiality is not made within ten (10) days of submission, the Secretary may make the information available to the public without further notice.

3.2. Submission of Information Claimed Confidential.

3.2.a. Confidential Information – Hardcopy Submissions. All information that is claimed to be confidential and which is submitted in hardcopy form must be submitted on colored paper in order to readily identify such information. The claimant must mark each page containing confidential information “CONFIDENTIAL COPY.” The claimant must clearly underscore or highlight by shading the text all information in the confidential copy that the claimant asserts to be confidential in a manner that will be clearly visible on photocopies of the confidential copy.

3.2.b. Redacted Submission of Information Claimed Confidential for Public Disclosure. For each hardcopy submission of information, any portion of which is claimed confidential, a complete set of the information must be submitted simultaneously on uncolored paper with the information claimed to be confidential redacted, and with the words “REDACTED COPY” marked clearly on each page, so that a set of information is suitable for public disclosure and provides notice to the public that a claim of confidentiality has been made.

3.2.c. Confidential Information – Electronic Submissions. For electronic submissions containing information claimed confidential, the claimant must submit a cover document and written justification as required under subsection 3.3, regardless of whether that document is submitted in electronic or hardcopy form. Upon the request of the Secretary, the claimant must submit a redacted form of the information.

3.2.d. The claimant may assert that multiple pieces of data, which do not individually qualify as confidential information, could be pieced together to form confidential information if made publicly available. The Secretary will assess such “mosaic effect” claims on a case-by-case basis.

3.3. Cover Document.

3.3.a. Designee. Each submission of information to the Secretary, any portion of which is claimed to be confidential, must be supported by a cover document that identifies the name and address of the claimant and designates a person as the proper addressee of communications from the Secretary regarding information gathering under the Act, the name, address, and telephone number of the designated person; and a request that all WVDEP inquiries and communications regarding information claimed as confidential (oral and written) be directed to the designee. The cover document must be submitted when a claim of confidentiality is made in accordance with the time frame specified under subsection 3.1.

3.3.b. Justification for Confidentiality in Cover Document. In addition to the information required under subdivision 3.3.a, the cover document must, at a minimum, include the following: a statement that the information is being submitted pursuant to the “Water Resources Protection Act;” identification of each segment of information within each page that is submitted as confidential; and the period of time for which the confidential treatment is desired by the claimant (e.g., until a certain date, until the occurrence of a specified event, or permanently). Furthermore, the claimant must include a detailed justification for each segment of information that is claimed confidential. The justification must address the criteria set forth in subsection 4.1 and must include the following information:

3.3.b.1. If the reason for the claim of confidentiality is that the information would reveal a trade secret, the claimant must provide a description of the substantial harmful effects which disclosure of the confidential information would have upon the claimant’s competitive position, an explanation of why such harmful effects are substantial, and an explanation of the causal relationship between disclosure and such harmful effects;

3.3.b.2. If the confidential information consists of information other than trade secrets, the claimant must provide a description of the information and an explanation as to how it meets the definition of “confidential information” under subsection 2.3; and

3.3.b.3. The claimant may provide any other substantiation that is relevant in establishing that the asserted confidential information is confidential.

3.3.c. Redacted Version. If the cover document contains confidential information, the claimant must provide a redacted version, which will be available for public disclosure.

3.3.d. Cover Document as Basis for Review. The cover document justifying the claim of confidentiality will form the basis for the Secretary’s review of the confidentiality claim. If the claimant submits additional information to support the confidentiality claim pursuant to subdivision 4.2.c, the additional submission will also be considered.

3.4. Submission to Secretary.

3.4.a. Confidential Copy. The claimant must seal the confidential copy in an envelope displaying the word “CONFIDENTIAL” in bold type or stamp on both sides. This envelope must be enclosed in another envelope for transmittal to the Secretary. The outer envelope must bear no markings indicating the confidential nature of the contents.

3.4.b. Method of Delivery. The claimant must send the package containing all required information to the Secretary by certified mail, return receipt requested, or by other means providing a receipt for delivery.

W. Va. Code R. § 60-7-4 Determination of Confidentiality

4.1. In the course of making a determination of confidentiality, the Secretary will consider the following criteria in addition to the required justification under subdivision 3.3.b.

4.1.a. The claim of confidentiality has not expired by its terms, nor been waived or withdrawn;

4.1.b. The claimant has satisfactorily shown that it has taken reasonable measures, and intends to continue taking such measures, to prevent disclosure of the information to others;

4.1.c. The information claimed confidential is not, and has not been, reasonably obtainable without the claimant’s consent by other persons (other than governmental bodies) by use of legitimate means; for example, the information is not contained in materials which are routinely available to the general public, including without limitation material in administrative or judicial proceedings/decisions, press releases, copies of speeches, pamphlets and educational materials;

4.1.d. The extent to which the information has been disclosed to others and whether it was disclosed to other persons either by the claimant (except in a manner which protects the confidentiality of the information) or without the consent of the claimant (other than by subpoena or by discovery based on a showing of special need in a judicial proceeding, arbitration, or other proceeding in which the claimant was required to disclose the information to such other persons, as long as the information has not become available to persons not involved in the proceeding), and the precautions taken to prevent further disclosure;

4.1.e. If the Secretary, United States Environmental Protection Agency or any other agency has previously made a confidentiality determination relevant to the pending confidentiality claim, copies of all such confidentiality determinations; and

4.1.f. No law, regulation or order by a court or other tribunal of competent jurisdiction specifically requires disclosure of the information or provides that the information is not confidential information.

4.2. Notice of Determination by the Secretary.

4.2.a. If, after review of all the information submitted, the Secretary determines that the information is not confidential, the Secretary will notify the claimant by certified mail, return receipt requested. The notice will state the basis for the determination and that it constitutes final agency action concerning the confidentiality claim.

4.2.b. If, after review of all the information submitted, the Secretary determines that the information is confidential, the Secretary will treat such information as confidential in accordance with the provisions set out in section 6. The Secretary will send written notice of the determination to the claimant. This notice will state the basis for the determination and that it constitutes final agency action. The Secretary will send the notice by certified mail, return receipt requested.

4.2.c. If a determination has not been made prior to the time that a request for information is received from the public, the Secretary will, after allowing the claimant up to ten (10) days to claim the information confidential in accordance with this rule, proceed expeditiously to make a final determination in accordance with this rule. Before making such determination, the Secretary will provide notice to the claimant that a request for the confidential information has been received and provide the claimant a period of five (5) days to submit a written response to the Secretary.

4.2.d. All requests to inspect or copy documents submitted under the Act must state with reasonable specificity the documents or type of documents sought to be inspected or copied. Within ten (10) business days of the receipt of a request, the Secretary will:

4.2.d.1. Advise the person making the request in writing of the time and place where the person may inspect and copy the documents which, if the request addresses information claimed as confidential, may not be sooner than twenty (20) days following the date of the determination to disclose, unless an earlier disclosure date is agreed to by the claimant; or

4.2.d.2. Deny the request, stating in writing the reasons for denial.

4.2.e. If the request addresses information claimed as confidential, the Secretary will provide notice of the action taken pursuant to subdivision 4.2.d to the claimant by certified mail, return receipt requested.

Treatment of information pending confidentiality determination. The Secretary will treat asserted confidential information as confidential in accordance with the provisions of section 6 until the Secretary has made a final determination that the asserted information is not confidential.

W. Va. Code R. § 60-7-5 Appeal of Confidentiality Determination

5.1. Any person adversely affected by a determination regarding confidential information under the Act may appeal the determination to the appropriate circuit court pursuant to the provisions of W. Va. Code §29A-5-1 et seq. Pursuant to W. Va. Code §29A-5-4(b), an appeal must be filed within thirty (30) days after the date upon which the aggrieved person received notice of the final decision of the Secretary. The filing of a timely notice of appeal will stay any determination to disclose confidential information pending a final decision on appeal. The scope of review is limited to the question of whether the portion of the records, reports, data or other information sought to be deemed confidential, inspected or copied is entitled to be treated as confidential under the Act. The Secretary will take all measures to afford evidentiary protection in appeals as necessary to protect the confidentiality of the information at issue, including the use of in camera proceedings and the sealing of records when appropriate.

W. Va. Code R. § 60-7-6 Treatment of Confidential and Asserted Confidential Information

6.1. Handling of confidential material by authorized personnel. Only those WVDEP persons whose activities necessitate access to information for which a confidentiality claim has been made may open and handle any envelope or file which is marked “CONFIDENTIAL.”

6.2. Storage of records. The WVDEP will store any records containing confidential or asserted confidential information only in secure rooms, provided that if such records are in a form which is not amenable to such storage, the WVDEP will store such records in a manner which similarly restricts access by persons to whom disclosure of the confidential information in question is restricted. With regard to confidential electronic data, the WVDEP will take every reasonable precaution to safeguard the integrity of the data.

6.3. Confidential information clearly identified. Any records made, possessed, or controlled by the WVDEP and containing confidential or asserted confidential information, will contain indicators clearly identifying the confidential or asserted confidential information.

6.4. Record of persons accessing confidential information. The WVDEP will maintain a record of all persons obtaining access to confidential or asserted confidential information, including the date and time of, and the reasons for, the access.

W. Va. Code R. § 60-7-7 Release of Confidential Information To Other Governmental Entities

7.1. Information designated as confidential may be released to governmental entities, their employees and agents when compiling and analyzing survey and registration information and as may be necessary to develop the legislative report required by the Act or to develop water resources plans. Any governmental entity or person requesting information designated as confidential must, prior to receiving such information, complete the “Description of Intent” form attached as Appendix A to this rule and agree to be bound by the terms of the “Non-Disclosure Agreement” attached as Appendix B to this rule. Any governmental entity or person receiving information designated confidential will take appropriate measures to safeguard such information and to protect against its improper disclosure.

W. Va. Code R. § 60-7-8 Use of Confidential Material by the Secretary

8.1. A claim of confidentiality will in no way limit the Secretary in the exercise of his or her powers or duties under the West Virginia Code or any rule promulgated thereunder.

APPENDIX A

West Virginia Department of Environmental Protection Description of Intent Pursuant to the Water Resources Protection Act, W. Va. Code §22-26-1 to 22-26-6, (the “Act”), the WVDEP may release confidential information to governmental entities, their employees and agents when compiling and analyzing survey and registration information and as may be necessary to develop the legislative report required by the Act or to develop water resources plans.

All requesters of confidential information must read and agree to be bound by the terms of the attached Non-Disclosure Agreement.

Requesters of confidential information must provide in writing their reason(s) for requesting this information and provide specific account of the manner in which the information will be used and for what purpose(s). The requester must understand fully, and agree to be bound by the limits placed upon the use, reproduction, and dissemination of the information under the terms and conditions of the Non-Disclosure Agreement.

Description of Intent Information Requested Reason for Requesting Information (attach additional pages if necessary)

Name of Requester Company/Institution Project Title Project Leader Funding Source Project Address Contact Telephone Contact Fax Contact E-mail

Appendix B West Virginia Department of Environmental Protection Non-Disclosure Agreement This agreement dated the _____ day of _______, 200 is made between the West Virginia Department of Environmental Protection (“Disclosing Party”) and _______________________ (“Receiving Party”) for the release of confidential information identified in the attached “Description of Intent” form.

1. Receiving Party agrees to use confidential information only for the reasons outlined on the “Description of Intent” form.

2. For confidential information received from Disclosing Party, Receiving Party agrees that each employee, temporary employee, contractor, subcontractor, agent or any other individual who is provided with confidential information shall take appropriate measures to safeguard such information and to protect against its improper disclosure, including, but not limited to, the following measures:

(a) Confidential information will be opened only by persons authorized by Receiving Party to handle the information.

(b) Only those employees of Receiving Party whose activities necessitate access to confidential information may open any envelope or file which is marked “CONFIDENTIAL.” (c) Receiving Party shall store any records containing confidential information only in secure rooms; provided, however, that if such records are in a form which is not amenable to such storage, Receiving Party shall store such records in a manner which similarly restricts access by persons to whom disclosure of the confidential information in question is restricted.

(d) Receiving Party shall take every reasonable precaution to safeguard the integrity of confidential electronic data.

(e) Receiving Party shall maintain a record of all persons obtaining access to confidential information, including the date and time of, and the reasons for, the access.

(f) Any records made, possessed, or controlled by Receiving Party, and containing confidential information, shall contain indicators identifying the confidential information.

Obligations of parties under this Agreement shall not apply to information that: was already lawfully in the public domain when disclosed; or subsequently lawfully enters into the public domain when disclosed; or subsequently lawfully enters into the public domain other than through disclosure by the Receiving Party; was already lawfully in the possession of or known by the Receiving Party free of any obligation at the time disclosed to the Receiving Party; is rightfully received by the Receiving Party from a third party without a duty of confidentiality; is developed independently by the Receiving Party without use of the confidential information; or is disclosed pursuant to judicial or governmental order, provided that the Receiving Party notifies Disclosing Party so that an adequate opportunity is given to respond to such order.

4. Receiving Party agrees, upon the written request of Disclosing Party, to return to Disclosing Party all confidential information and confidential materials provided by Disclosing Party.

5. Receiving Party agrees, upon the written request of Disclosing Party, to provide Disclosing Party with analyses, studies, compilations, copies, extracts, reproductions, computer data, memoranda and notes and other writings prepared by Receiving Party based on or containing any of the confidential information.

6. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any modifications to this Agreement must be made in writing and must be signed by both parties.

This Agreement constitutes the entire understanding between both parties regarding the release of the confidential information and merges all prior agreements between them relating to this information and its use.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement.

(Receiving Party) West Virginia Department of Environmental Protection By: ___________________________ By:___________________________ Name: Name:

Title: Title:

Date: Date:

60CSR7

60CSR7

Series 09 Voluntary Remediation and Redevelopment De Minimis Standards

W. Va. Code R. § 60-9-1 General

1.1. Scope. -- This Interpretive Rule establishes the De Minimis Standards applicable for voluntary remediation activities and brownfield revitalization performed in accordance with the Voluntary Remediation and Redevelopment Act, W. Va. Code § 22-22-1, et seq.

1.2. Authority. -- W. Va. Code § 22-22-3.

1.3. Filing Date. -- March 9, 2026.

1.4. Effective Date. -- April 8, 2026.

W. Va. Code R. § 60-9-2 Definitions

The definitions contained in W. Va. Code § 22-22-2 and the Voluntary Remediation and Redevelopment Rule, 60CSR3, apply to this rule, in addition to those definitions set forth below:

2.1. “De Minimis Standard” means a contaminant level that poses no substantial risk to human health based on the current or reasonably anticipated future land and groundwater use for either residential or industrial purposes.

W. Va. Code R. § 60-9-3 De Minimis Standards

3.1. The Secretary shall review the De Minimis Standards annually and, if necessary, update the De Minimis Standards to reflect current toxicity information, chemical-specific data, and exposure parameters. Additionally, updates to the De Minimis Standards shall occur following significant regulatory changes such as a revised groundwater quality standard or listing of a new hazardous substance in § 104(14) of CERCLA.

3.2. The Voluntary Remediation and Redevelopment Rule, 60CSR3 (§ 9.2.d), outlines the method for calculating De Minimis Standards.

3.3. De Minimis Standards to be used in all voluntary remediation activities and brownfield revitalization are presented in Table 60-9.

Table 60-9: De Minimis Standards Table CONTAMINANT CAS No.

Residential Soil1,3 (mg/kg)

Value Basis4 Industrial Soil1,3 (mg/kg)

Value Basis4 Ground Water2,3 (ug/L)

Value Basis4 Acetaldehyde 75-07-0 3.7E+02 Acetochlor 34256-82-1 Acetone 67-64-1 7.0E+04 1.8E+04 Acetonitrile 75-05-8 8.7E+02 3.7E+03 Acetophenone 98-86-2 Acrolein 107-02-8 1.5E-01 6.5E-01 4.2E-02 Acrylamide 79-06-1 4.6E+01 4.8E-02 Acrylonitrile 107-13-1 4.6E-02 Alachlor 15972-60-8 9.2E+00 4.1E+02 Alar 1596-84-5 2.9E+01 3.8E+00 Aldicarb 116-06-3 Aldicarb sulfone 1646-88-4 Aldrin 309-00-2 3.7E-02 8.0E-04 Aluminum 7429-90-5 7.7E+04 2.0E+04 Aniline 62-53-3 9.0E+01 4.0E+03 Antimony and compounds 7440-36-0 4.7E+02 Arsenic 7440-38-2 3.0E-02 1.4E+00 Assure 76578-14-8 7.4E+03 Atrazine 1912-24-9 Azobenzene 103-33-3 5.3E+00 Barium and compounds 7440-39-3 1.5E+04 2.2E+05 Baygon 114-26-1 3.3E+03 7.8E+01 Baythroid 68359-37-5 2.1E+04 Bentazon 25057-89-0 Benzaldehyde 100-52-7 1.7E+02 Benzene 71-43-2 5.4E+01 Benzidine 92-87-5 5.2E-04 1.0E-04 Benzoic acid 65-85-0 2.5E+05 7.5E+04 Benzyl alcohol 100-51-6 Benzyl chloride 100-44-7 1.0E+00 7.8E-02 Beryllium and compounds 7440-41-7 2.3E+03 4.0E+00 1,1'-Biphenyl 92-52-4 8.3E-01 Bis(2-chloroethyl)ether 111-44-4 2.2E-01 1.2E-02 Bis(2-chloroisopropyl)ether 108-60-1 4.7E+00 2.3E+02 3.1E-01 Bis(chloromethyl)ether 542-88-1 7.7E-05 3.9E-03 6.3E-05 Bis(2-ethylhexyl)phthalate (DEHP) 117-81-7 3.7E+01 Bromodichloromethane 75-27-4 2.7E-01 Bromoform (tribromomethane) 75-25-2 1.8E+01 9.1E+02 Bromomethane 74-83-9 7.3E+00 7.5E+00 Bromophos 2104-96-3 3.4E+02 3.9E+03 1,3-Butadiene 106-99-0 7.1E-02 3.6E+00 6.2E-02 1-Butanol 71-36-3 4.9E+03 7.6E+03 5.9E+02 Butylate 2008-41-5 3.3E+03 3.4E+04 2.2E+02 n-Butylbenzene 104-51-8 Butyl benzyl phthalate 85-68-7 Cadmium and compounds 7440-43-9 7.5E+00 Caprolactam 105-60-2 3.1E+04 4.0E+05 9.9E+03 Carbaryl 63-25-2 Carbon disulfide 75-15-0 7.4E+02 7.4E+02 8.1E+02 Carbon tetrachloride 56-23-5 6.1E-01 Carbosulfan 55285-14-8 Chloranil 118-75-2 1.3E+00 5.7E+01 1.6E-01 Chlordane (Technical Mixture) 12789-03-6 8.9E+01 Chloroacetic acid 79-11-8 2.2E+02 2.9E+03 6.0E+01 4-Chloroaniline 106-47-8 2.6E+00 3.2E-01 Chlorobenzene 108-90-7 2.9E+02 7.6E+02 Chlorobenzilate 510-15-6 4.7E+00 2.8E-01 p-Chlorobenzoic acid 74-11-3 5.1E+02 2-Chloro-1,3-butadiene (chloroprene) 126-99-8 3.7E-03 4.7E-01 6.4E-03 1-Chlorobutane 109-69-3 7.3E+02 Chloroethane 75-00-3 2.1E+03 2.1E+03 8.3E+03 Chloroform 67-66-3 3.0E-01 Chloromethane 74-87-3 4-Chloro-2-methylaniline 95-69-2 5.2E+00 2.3E+02 6.2E-01 beta-Chloronaphthalene 91-58-7 5.1E+03 5.3E+04 o-Chloronitrobenzene 88-73-3 7.7E+01 2.1E-01 p-Chloronitrobenzene 100-00-5 8.6E+00 1.0E+00 2-Chlorophenol 95-57-8 4.0E+03 2.9E+01 o-Chlorotoluene 95-49-8 9.1E+02 9.8E+01 Chlorpyrifos-methyl 5598-13-0 Chromium III 16065-83-1 4.9E+04 3.0E+05 2.2E+04 Chromium VI 18540-29-9 9.4E-01 Cobalt 7440-48-4 Copper and compounds 7440-50-8 3.1E+03 4.7E+04 Crotonaldehyde 123-73-9 8.0E-02 4.0E+00 7.9E-03 Cyanazine 21725-46-2 6.1E-01 2.7E+01 7.7E-02 Cyanide and compounds 74-90-8 1.5E+02 Cyanogen 460-19-5 7.8E+01 Cyanogen bromide 506-68-3 7.0E+03 Cyclohexane 110-82-7 1.3E+04 Cyclohexanone 108-94-1 5.1E+03 5.1E+03 Cypermethrin 52315-07-8 4.6E+03 5.9E+04 Dacthal 1861-32-1 Dalapon 75-99-0 DDD 72-54-8 2.1E+00 9.6E+01 2.8E-02 DDE 72-55-9 9.3E+01 4.0E-02 DDT 50-29-3 8.5E+01 Diazinon 333-41-5 4.4E+01 Dibenzofuran 132-64-9 7.8E+01 7.9E+00 1,4-Dibromobenzene 106-37-6 4.4E+02 3.1E+03 Dibromochloromethane 124-48-1 7.9E+00 1,2-Dibromo-3-chloropropane 96-12-8 5.4E-03 6.9E-01 1,2-Dibromoethane 106-93-4 3.4E-02 5.0E-02 Dibutyl phthalate 84-74-2 9.0E+02 Dicamba 1918-00-9 1,2-Dichlorobenzene 95-50-1 1,4-Dichlorobenzene 106-46-7 2.4E+00 7.5E+01 3,3'-Dichlorobenzidine 91-94-1 1.1E-01 1,4-Dichloro-2-butene 764-41-0 2.0E-03 1.2E-03 Dichlorodifluoromethane 75-71-8 9.4E+01 4.0E+02 1,1-Dichloroethane 75-34-3 3.3E+00 1.7E+02 2.4E+00 1,2-Dichloroethane 107-06-2 4.3E-01 2.2E+01 1,1-Dichloroethylene 75-35-4 5.1E+00 2.2E+01 7.0E+00 1,2-Dichloroethylene (cis) 156-59-2 6.5E+01 7.0E+01 1,2-Dichloroethylene (trans) 156-60-5 7.5E+01 2,4-Dichlorophenol 120-83-2 4.6E+01 4-(2,4-Dichlorophenoxy)butyric Acid (2,4-DB) 94-82-6 4.5E+02 2,4-Dichlorophenoxyacetic Acid (2,4-D) 94-75-7 7.0E+02 9.6E+03 7.0E+01 1,2-Dichloropropane 78-87-5 2.3E+00 7.1E+01 1,3-Dichloropropene 542-75-6 8.6E+01 4.1E-01 2,3-Dichloropropanol 616-23-9 5.9E+01 Dichlorvos 62-73-7 7.9E+01 2.3E-01 Dicyclopentadiene 77-73-6 1.4E+00 5.8E+00 6.3E-01 Dieldrin 60-57-1 4.0E-02 6.3E-04 Diethylene glycol, monobutyl ether 112-34-5 2.4E+04 Diethylene glycol, monoethyl ether 111-90-0 3.8E+03 4.8E+04 Di(2-ethylhexyl)adipate 103-23-1 4.3E+02 1.9E+04 4.0E+02 Diethyl phthalate 84-66-2 5.1E+04 6.6E+05 1.5E+04 Diethylstilbestrol 56-53-1 1.5E-03 6.6E-02 4.5E-05 Difenzoquat (Avenge) 43222-48-6 5.2E+03 6.8E+04 1.7E+03 1,1-Difluoroethane 75-37-6 8.3E+04 Diisopropyl methylphosphonate 1445-75-6 5.3E+02 5.3E+02 3,3'-Dimethoxybenzidine 119-90-4 7.5E-02 1.5E-02 N-N-Dimethylaniline 121-69-7 2.5E+01 7.8E+02 2,4-Dimethylaniline 95-68-1 2.6E+00 3.3E-01 2,4-Dimethylaniline hydrochloride 21436-96-4 8.9E-01 4.0E+01 1.2E-01 3,3'-Dimethylbenzidine 119-93-7 1.1E-02 2.1E+00 2.0E-03 2,4-Dimethylphenol 105-67-9 3.6E+02 2,6-Dimethylphenol 576-26-1 3.8E+01 4.9E+02 3,4-Dimethylphenol 95-65-8 1.8E+01 4,6-Dinitro-o-cyclohexyl phenol 131-89-5 1,2-Dinitrobenzene 528-29-0 1,3-Dinitrobenzene 99-65-0 1,4-Dinitrobenzene 100-25-4 2,4-Dinitrophenol 51-28-5 3.9E+01 Dinitrotoluene (Technical Grade) 25321-14-6 9.2E-02 2,4-Dinitrotoluene 121-14-2 7.4E+01 2.1E-01 2,6-Dinitrotoluene 606-20-2 3.4E-01 4.3E-02 Dinoseb 88-85-7 7.0E+00 1,4-Dioxane 123-91-1 Diphenylamine 122-39-4 1,2-Diphenylhydrazine 122-66-7 6.4E-01 2.9E+01 6.9E-02 Diquat 85-00-7 Disulfoton 298-04-4 2.5E+00 3.3E+01 5.0E-01 1,4-Dithiane 505-29-3 4.9E+03 5.9E+01 Diuron 330-54-1 3.6E+01 Endosulfan 115-29-7 4.5E+02 6.1E+03 3.3E+01 Endothall 145-73-3 Endrin 72-20-8 Epichlorohydrin 106-89-8 8.8E+01 Ethion 563-12-2 4.1E+02 4.3E+00 2-Ethoxyethanol 110-80-5 2.7E+03 Ethyl acetate 141-78-6 6.7E+02 2.8E+03 Ethylbenzene 100-41-4 5.4E+00 7.0E+02 Ethylene diamine 107-15-3 6.4E+03 7.8E+04 5.3E+02 Ethylene glycol 107-21-1 5.1E+04 6.6E+05 Ethylene glycol, monobutyl ether 111-76-2 Ethylene thiourea (ETU) 96-45-7 5.1E+00 6.6E+01 1.5E+00 Ethyl ether 60-29-7 2.4E+03 Ethyl methacrylate 97-63-2 Fenamiphos 22224-92-6 4.4E+00 Fluometuron 2164-17-2 1.1E+04 2.4E+02 Fluorine (Soluble Fluoride) 7782-41-4 4.7E+03 7.0E+04 4.0E+03 Fomesafen 72178-02-0 Fonofos 944-22-9 2.4E+01 Formaldehyde 50-00-0 3.6E+00 5.8E+02 1.5E-01 Formic Acid 64-18-6 6.3E-01 Furan 110-00-9 9.1E+00 4.2E+01 5.3E+00 Furazolidone 67-45-8 1.4E-01 1.8E-02 Furfural 98-01-1 9.4E+02 Glycidaldehyde 765-34-4 2.4E+01 Glyphosate 1071-83-6 7.0E+02 Heptachlor 76-44-8 1.3E-01 6.3+00 Heptachlor epoxide 1024-57-3 6.7E-02 3.3E+00 Hexabromobenzene 87-82-1 1.5E+02 Hexachlorobenzene 118-74-1 6.1E+00 1.0E+00 Hexachlorobutadiene 87-68-3 1.7E+01 1.2E-01 HCH (alpha) 319-84-6 8.2E-02 3.6E+00 6.4E-03 HCH (beta) 319-85-7 2.9E-01 1.3E+01 2.2E-02 HCH (gamma) Lindane 58-89-9 5.7E-02 8.0E-01 HCH-technical 608-73-1 2.9E-01 1.3E+01 2.2E-02 Hexachlorocyclopentadiene 77-47-4 8.0E+00 5.0E+01 Hexachlorodibenzo-p-dioxin mixture (HxCDD)

Various 9.9E-05 4.7E-03 1.1E-05 Hexachloroethane 67-72-1 8.6E+01 2.9E-01 Hexachlorophene 70-30-4 1,6-Hexamethylene diisocyanate 822-06-0 3.4E+00 2.1E-02 n-Hexane 110-54-3 1.5E+03 Hexazinone 51235-04-2 2.1E+03 2.7E+04 6.4E+02 HMX 2691-41-0 3.9E+03 5.7E+04 Hydrazine 302-01-2 3.0E-02 1.5E+00 9.5E-04 Hydrogen sulfide 7783-06-4 4.2E+00 p-Hydroquinone 123-31-9 8.6E+00 Iron 7439-89-6 5.5E+04 8.2E+05 1.4E+04 Isobutanol 78-83-1 7.3E+02 Isophorone 78-59-1 5.4E+02 2.4E+04 6.9E+01 Isopropalin 33820-53-0 1.5E+04 3.0E+01 Isopropylbenzene (Cumene) 98-82-8 4.5E+02 Isopropyl methyl phosphonic acid 1832-54-8 Lead 7439-92-1 4.6E+02 Lead (tetraethyl) 78-00-2 7.8E-03 1.2E-01 1.3E-03 Lithium 7439-93-2 2.3E+03 4.0E+01 Malathion 121-75-5 Maleic anhydride 108-31-6 8.0E+04 Manganese (non-food) 7439-96-5 2.6E+04 4.3E+02 Mephosfolan 950-10-7 5.7E+00 7.4E+01 Mepiquat 24307-26-4 Mercury (elemental and inorganic) 7439-97-6 3.1E+00 3.1E+00 Mercury (methyl) 22967-92-6 7.8E+00 Methacrylonitrile 126-98-7 7.6E+00 Methanol 67-56-1 2.0E+04 Methidathion 950-37-8 9.5E+01 2.9E+01 Methoxychlor 72-43-5 4.1E+03 4.0E+01 Methyl acetate 79-20-9 2.9E+04 5.9E+03 Methyl acrylate 96-33-3 6.6E+02 4.2E+01 Methyl Tertiary Butyl Ether (MTBE) 1634-04-4 4.4E+01 2.2E+03 2-Methylaniline (o-toluidine) 95-53-4 4.2E+00 2-Methyl-4-chlorophenoxyacetic acid 94-74-6 4.1E+02 7.5E+00 4-(2-Methyl-4-chlorophenoxy) butyric acid 94-81-5 2.8E+03 3.6E+04 6.5E+02 2-(2-Methyl-4-chlorophenoxy) propionic acid 93-65-2 4,4'-Methylenebisbenzeneamine 101-77-9 3.2E-01 4.2E-02 4,4'-Methylene bis(2-chloroaniline) 101-14-4 1.2E+00 2.3E+02 1.5E-01 4,4'-Methylene bis(N,N'-dimethyl)aniline 101-61-1 6.6E-01 Methylene bromide 74-95-3 2.5E+01 8.0E+00 Methylene chloride 75-09-2 5.7E+01 3.3E+03 Methylenediphenyl diisocyanate 101-68-8 8.5E+05 Methyl ethyl ketone 78-93-3 2.8E+04 2.8E+04 5.6E+03 Methyl isobutyl ketone 108-10-1 3.4E+03 3.4E+03 Methyl methacrylate 80-62-6 2.4E+03 2.4E+03 2-Methyl-5-nitroaniline 99-55-8 5.7E+01 2.6E+03 7.2E+00 Methyl parathion 298-00-0 4.5E+00 2-Methylphenol (o-Cresol) 95-48-7 4.1E+04 9.3E+02 3-Methylphenol (m-Cresol) 108-39-4 4.1E+04 9.3E+02 4-Methylphenol (p-Cresol) 106-44-5 3.7E+02 Methyl styrene (mixture) 25013-15-4 3.3E+02 Methyl styrene (alpha) 98-83-9 7.8E+02 Metolaclor (Dual) 51218-45-2 9.5E+03 1.2E+05 2.7E+03 Metribuzin 21087-64-9 2.1E+04 4.9E+02 Mirex 2385-85-5 3.4E-02 7.6E-04 Molybdenum 7439-98-7 Monochloramine 10599-90-3 7.8E+03 1.2E+05 4.0E+03 Naled 300-76-5 Nickel and compounds 7440-02-0 1.7E+04 Nitrate 14797-55-8 1.3E+05 Nitrite 14797-65-0 7.8E+03 1.2E+05 2-Nitroaniline 88-74-4 8.0E+03 Nitrobenzene 98-95-3 4.8E+00 2.4E+02 1.2E-01 Nitrofurantoin 67-20-9 4.4E+03 5.7E+04 Nitrofurazone 59-87-0 1.8E+01 5.3E-02 Nitroglycerin 55-63-0 2-Nitropropane 79-46-9 5.9E-02 8.4E-03 N-Nitrosodi-n-butylamine 924-16-3 9.4E-02 4.7E+00 2.4E-03 N-Nitrosodiethanolamine 1116-54-7 1.8E-01 8.2E+00 2.5E-02 N-Nitrosodiethylamine 55-18-5 8.0E-04 1.5E-01 (1.6E-04 N-Nitrosodimethylamine 62-75-9 2.0E-03 3.5E-01 1.1E-04 N-Nitrosodiphenylamine 86-30-6 4.7E+03 N-Nitroso di-n-propylamine 621-64-7 7.4E-02 3.3E+00 9.5E-03 N-Nitroso-N-methylethylamine 10595-95-6 1.9E-02 9.4E-01 6.2E-04 N-Nitrosopyrrolidine 930-55-2 2.5E-01 3.3E-02 m-Nitrotoluene 99-08-1 o-Nitrotoluene 88-72-2 1.5E+02 2.8E-01 p-Nitrotoluene 99-99-0 3.8E+00 NuStar 85509-19-9 Oryzalin 19044-88-3 6.6E+01 2.9E+03 7.0E+00 Oxadiazon 19666-30-9 7.3E+00 4.4E-01 Oxamyl 23135-22-0 2.1E+04 Oxyfluorfen 42874-03-3 7.1E+00 3.1E+02 4.8E-01 Paraquat dichloride 1910-42-5 2.8E+02 3.7E+03 9.0E+01 Parathion 56-38-2 4.9E+03 8.6E+01 Pentachlorobenzene 608-93-5 5.0E+01 Pentachloronitrobenzene 82-68-8 2.6E+00 1.1E-01 Pentachlorophenol 87-86-5 9.6E-01 4.0E+01 1.0E+00 Per- and Polyfluoroalkyl Substances (PFAS)

Perfluorooctanesulfonic acid (PFOS) 1763-23-1 6.3E-03 8.2E-02 4.0E-03 Perfluorooctanoic acid (PFOA) 335-67-1 1.8E-05 7.8E-04 4.0E-03 Perchlorate and perchlorate salts Various 5.5E+01 Permethrin 52645-53-1 4.1E+04 Phenol 108-95-2 1.9E+04 2.5E+05 m-Phenylenediamine 108-45-2 4.9E+03 p-Phenylenediamine 106-50-3 2-Phenylphenol 90-43-7 2.7E+01 Phosphine 7803-51-2 5.7E-01 Phosphorus (white) 7723-14-0 1.6E+00 p-Phthalic acid 100-21-0 3.2E+04 4.1E+05 9.4E+03 Phthalic anhydride 85-44-9 1.3E+05 3.9E+04 Polybrominated biphenyls 36355-01-8 1.7E-02 7.7E-01 2.3E-03 Polychlorinated biphenyls (PCBs) 1336-36-3 2.9E-01 5.0E-01 Aroclor 1016 12674-11-2 5.5E+00 Aroclor 1221 11104-28-2 Aroclor 1232 11141-16-5 Aroclor 1242 53469-21-9 3.0E-01 Aroclor 1248 12672-29-6 3.0E-01 Aroclor 1254 11097-69-1 3.1E-01 Aroclor 1260 11096-82-5 3.1E-01 Polycyclic Aromatic Hydrocarbons (PAHs)

Acenaphthene 83-32-9 4.2E+03 4.9E+04 Acenaphthylene 208-96-8 4.3E+03 5.3E+04 Anthracene 120-12-7 2.3E+04 3.5E+05 Benz[a]anthracene 56-55-3 1.5E+00 2.8E-02 Benzo[b]fluoranthene 205-99-2 Benzo[k]fluoranthene 207-08-9 2.1E+03 2.4E+00 Benzo[g,h,i]perylene 191-24-2 2.3E+04 Benzo[a]pyrene 50-32-8 1.1E-01 2.1E+01 Chrysene 218-01-9 2.1E+04 2.4E+01 Dibenz[a,h]anthracene 53-70-3 1.1E-01 2.1E+01 2.4E-02 Fluoranthene 206-44-0 2.4E+03 3.0E+04 8.0E+02 Fluorene 86-73-7 2.9E+03 3.8E+04 Indeno[1,2,3-cd]pyrene 193-39-5 1-Methylnaphthalene 90-12-0 1.3E+01 5.7E-01 2-Methylnaphthalene 91-57-6 3.1E+02 4.7E+03 3.6E+01 Naphthalene 91-20-3 Phenanthrene 85-01-8 2.3E+04 3.5E+05 1.7E+03 Pyrene 129-00-0 2.3E+03 3.4E+04 8.1E+01 Prometon 1610-18-0 9.5E+02 Prometryn 7287-19-6 3.3E+04 Propachlor 1918-16-7 1.1E+04 Propanil 709-98-8 4.1E+03 Propargite 2312-35-8 2.7E+00 1.4E-01 n-Propylbenzene 103-65-1 6.6E+02 Propylene glycol 57-55-6 4.0E+05 Propylene glycol, monoethyl ether 1569-02-4 3.9E+04 3.9E+04 1.4E+04 Propylene glycol, monomethyl ether 107-98-2 4.2E+04 Pursuit 81335-77-5 1.6E+05 4.7E+04 Pyridine 110-86-1 5.9E+01 5.5E+02 5.9E+00 Quinoline 91-22-5 1.7E-01 7.7E+00 2.1E-02 RDX (Cyclonite) 121-82-4 8.0E+00 8.5E-01 Resmethrin 10453-86-8 6.7E+01 Ronnel 299-84-3 3.8E+03 5.2E+04 Rotenone 83-79-4 3.3E+03 6.1E+01 Selenious Acid 7783-00-8 Selenium 7782-49-2 5.0E+01 Silver and compounds 7440-22-4 9.4E+01 Simazine 122-34-9 4.3E+00 4.0E+00 Sodium azide 26628-22-8 3.1E+02 4.7E+03 Sodium diethyldithiocarbamate 148-18-5 8.5E+01 2.5E-01 Strontium, stable 7440-24-6 4.7E+04 7.0E+05 Strychnine 57-24-9 5.9E+00 Styrene 100-42-5 8.7E+02 8.7E+02 tert-butanol 75-65-0 6.5E+04 2,3,7,8-Tetrachlorodibenzodioxin (TCDD/dioxin) 1746-01-6 4.9E-06 2.4E-04 3.0E-05 1,2,4,5-Tetrachlorobenzene 95-94-3 2.3E+00 1.6E-01 1,1,1,2-Tetrachloroethane 630-20-6 9.4E+01 5.0E-01 1,1,2,2-Tetrachloroethane 79-34-5 5.7E-01 2.8E+01 6.6E-02 Tetrachloroethylene (PCE) 127-18-4 2.2E+01 1.7E+02 2,3,4,6-Tetrachlorophenol 58-90-2 2.4E+02 p,a,a,a-Tetrachlorotoluene 5216-25-1 2.6E-02 1.3E+00 6.4E-04 Tetrahydrofuran 109-99-9 2.0E+04 1.0E+05 3.4E+03 Thallium and compounds 7440-28-0 7.8E-01 Thiobencarb 28249-77-6 Thiocyanates Various 2.3E+02 4.0E+00 Tin and compounds 7440-31-5 4.7E+04 7.0E+05 Toluene 108-88-3 Toluene-2,4-diamine 95-80-7 1.3E-01 5.7E+00 1.7E-02 Toluene-2,5-diamine 95-70-5 2.9E+00 3.8E-01 Toluene-2,6-diamine 823-40-5 p-Toluidine 106-49-0 1.7E+01 7.7E+02 Toxaphene 8001-35-2 4.7E-01 2.1E+01 1,2,4-Tribromobenzene 615-54-3 2.9E+02 2.6E+03 2.2E+01 Tributyltin oxide (TBTO) 56-35-9 5.7E+00 2,4,6-Trichloroaniline 634-93-5 2.5E+01 1,2,4-Trichlorobenzene 120-82-1 2.8E+02 7.0E+01 1,1,1-Trichloroethane 71-55-6 6.4E+02 6.4E+02 1,1,2-Trichloroethane 79-00-5 6.8E+00 Trichloroethylene (TCE) 79-01-6 9.2E-01 Trichlorofluoromethane 75-69-4 7.9E+02 2,4,5-Trichlorophenol 95-95-4 2,4,6-Trichlorophenol 88-06-2 4.7E+01 3.6E+00 2,4,5-Trichlorophenoxyacetic Acid 93-76-5 2-(2,4,5-Trichlorophenoxy) propionic acid 93-72-1 5.1E+02 6.6E+03 5.0E+01 1,1,2-Trichloropropane 598-77-6 1.8E+02 2.8E+01 1,2,3-Trichloropropane 96-18-4 5.1E-03 7.2E-04 1,2,3-Trichloropropene 96-19-5 7.8E-01 3.3E+00 6.2E-01 1,1,2-Trichloro-1,2,2-trifluoroethane (Freon 113) 76-13-1 9.1E+02 9.1E+02 1,2,4-Trimethylbenzene 95-63-6 2.2E+02 2.2E+02 5.6E+01 1,3,5-Trimethylbenzene 108-67-8 1.8E+02 1.8E+02 6.0E+01 Trimethyl phosphate 512-56-1 2.6E+01 3.4E+00 1,3,5-Trinitrobenzene 99-35-4 2.2E+03 3.2E+04 5.9E+02 Trinitrophenylmethylnitramine (Tetryl) 479-45-8 2.3E+03 3.9E+01 2,4,6-Trinitrotoluene 118-96-7 5.1E+02 Vanadium and compounds 7440-62-2 4.0E+02 8.4E+03 1.5E+02 Vinclozolin 50471-44-8 7.6E+01 9.8E+02 2.1E+01 Vinyl acetate 108-05-4 9.7E+02 2.7E+03 4.1E+02 Vinyl bromide 593-60-2 3.2E-01 Vinyl chloride 75-01-4 6.0E-02 1.8E+01 Warfarin 81-81-2 5.6E+00 Xylenes 1330-20-7 Zinc and Compounds 7440-66-6 2.3E+04 3.5E+05 6.0E+03 Zinc phosphide 1314-84-7 Zineb 12122-67-7 4.1E+04 9.9E+02 Notes 1Where appropriate, the residential and industrial soil values consider ingestion and dermal exposure to soil and inhalation exposure to contaminants moving from soil to ambient air from volatilization or particulate emission. 2Groundwater standards promulgated under 47CSR12 are provided, where available. Standards that are unavailable under 47CSR12 are based on a risk-based methodology that considers ingestion, dermal, and inhalation exposure arising from the domestic use of groundwater. 3The concentrations in this table shall be applied where the exposure pathways described in footnotes 1 and 2 are the major contributors to risks identified in the site assessment. If other exposure pathways are identified, the acceptable contractions shall be determined only in consultation with the Secretary, considering all exposure pathways, and all other requirements of the regulations. 4Basis of standard: c – cancer effect; nc – noncancer effect; max – calculated risk-based concentration exceeds maximum possible contaminant level of 1x106 mg/kg; Csat – calculated risk-based concentration exceeds residual saturation level; gws – West Virginia Groundwater Quality Standards from 47CSR12.

Series 10 Purchasing Procedure

W. Va. Code R. § 60-10-1 General

1.1. Scope. -- This rule is to ensure certain controls and accountabilities are in place for the procurement of construction reclamation contracts by the Department of Environmental Protection.

1.2. Authority. -- W. Va. Code §5A-1-12.

1.3. Filing Date. – May 9, 2023

1.4. Effective Date. – June 12, 2023

W. Va. Code R. § 60-10-2 Definitions

2.1. “Department” means the West Virginia Department of Environmental Protection created and established under W. Va. Code §22-1-1 et seq.

2.2. “Local Governmental Agencies” means counties; municipalities; watershed improvement districts; soil conservation districts; sanitary districts; public service districts; drainage districts; regional governmental authorities and any other governmental agency, entity, political subdivision, public corporation or agency having the authority to acquire, construct or operate public water facilities, storm-water systems or wastewater facilities.

2.3. “RFP” means Request for Proposal.

2.4. “Secretary” means the cabinet secretary of the West Virginia Department of Environmental Protection.

2.5. “State” means the State of West Virginia.

W. Va. Code R. § 60-10-3 Overview

3.1. The Department is the charged by the West Virginia Legislature with the mission to use all practicable means and measures to prevent or eliminate harm to the environment and biosphere, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations.

W. Va. Code R. § 60-10-4 Purchasing Requirements for Construction or Reclamation Contracts

4.1. All procurement of construction or reclamation services by the Department are in accordance with W.Va. Code §5-22 Government Construction Contracts and are subject to expenditure approval.

4.2. The Secretary shall adopt standard specification terms and conditions which shall establish the requirements to which the services to be contracted for by the Department must conform.

4.3. Requirements for all construction or reclamation projects:

4.3.a. The proposed purchase must receive the approval of an Authorized Designee or the Program Director.

4.3.b. All solicitations for construction or reclamation contracts must be publicly advertised using advertising media such as the wvOASIS Vendor Self-Service Portal.

4.3.c. All responses to solicitations must be received electronically and remain sealed until the system releases the bid information at the specified date and time stated on the solicitation. The vendor is solely responsible for the submittal of the bid prior to the appointed date and hour of the bid close.

4.3.d. All results of bids received will be posted on the DEP' s website and available within 24 hours of bid close time.

4.3.e. All bidders will be notified of either successful or unsuccessful bid or quote in writing, which may be via e-mail.

4.3.f. Contracts will be awarded to the lowest responsible bidder meeting the required specifications.

4.3.g. Any or all bids and/or quotes may be rejected if there is a sound, documented reason for such rejection.

4.3.h. The proposed contract must receive the approval of the Director or other officer or employee with full signature authority.

W. Va. Code R. § 60-10-5 Emergency Construction or Reclamation Contracts. 5.1 Any request to procure construction or reclamation services on an emergency basis must be submitted in writing to the DEP Procurement Office. The Assistant Chief shall review a spending unit's written request and issue written approval or disapproval. 5.2 Approval to construction or reclamation services on an emergency basis will permit the division or office to purchase the required services directly from a vendor. Provided, however, that the division or office must obtain three bids, if possible. Any required documentation must be submitted to the DEP Procurement Office as soon as possible for processing. 5.3 What qualifies as an emergency under this subsection shall be evaluated by the Assistant Chief on a case by case basis, but will at least include unforeseen events or circumstances, including delays by contractors, delays in transportation, or an unanticipated volume of work, as well as procurement of specific commodities for immediate delivery related to an official declaration of emergency by the Governor or federal officials. Emergency purchases are not used for hardship resulting from neglect, poor planning, or lack of organization by the Department. Competitive bids shall be obtained if possible

W. Va. Code R. § 60-10-6 Protests

6.1. Submission of Protest.

6.1.a. Protests based on bid or specifications must be submitted no later than five (5) working days prior to the bid close. Protest of a purchase order or contract award must be submitted no later than five (5) working days after the award. The vendor is responsible for knowing the bid close and award dates. Protests received after these dates may be rejected at the option of the Secretary or designee.

6.1.b. All protests must be submitted in writing to the Department and contain the following information:

6.1.b.i. The name and address of the protestor;

6.1.b.ii. The requisition, solicitation, purchase order or contract numbers;

6.1.b.iii. A statement of the grounds of protest;

6.1.b.iv. Supporting documentation, if necessary; and

6.1.b.v. The resolution or relief sought.

6.1.c. Failure to submit the information shall be grounds for rejection of the protest by the Secretary.

6.2. Protest Review.

6.2.a. The Secretary or his/her designee shall review the matter of protest and issue a written decision. A hearing may be conducted at the option of the Secretary or assigned designee. Continuation or delay of a purchase order or contract award is at the discretion of the Secretary.

6.2.b. The Department may refuse to review any protests when the matter involved has been decided in a previous protest by the Department.

W. Va. Code R. § 60-10-7 Permitted Exceptions

7.1. Emergencies. Exceptions may be made in the event of federally declared emergencies or State declared emergencies affecting the Department or its programs.

7.2. Documentation of Exceptions. The reasoning for and approval of exceptions should be noted in the supporting documentation and/or the payment/voucher request. Any exception shall require the written approval of the Director or other officers or employees with full signature authority.

W. Va. Code R. § 60-10-8 Public Records. 8.1 All bids received, and contracts awarded are publicly available for viewing

W. Va. Code R. § 60-10-9 Severability

9.1. If any word, phrase, or provision of this rule is held to be invalid, the remainder of the rule shall, to the fullest extent possible, not affected by that holding.

Series 11 Reclamation of Solar and Wind Electricity Generation Facilities

W. Va. Code R. § 60-11-1 General

1.1. Scope - This legislative rule establishes requirements for the decommissioning of solar and wind generation facilities and bonding to guarantee such decommissioning.

1.2. Authority - W. Va. Code §§22-32-1, et seq.

1.3. Filing Date – April 28, 2023

1.4. Effective Date – April 28, 2023

W. Va. Code R. § 60-11-2 Definitions

Unless the context clearly requires a different meaning, all terms contained in this section are defined by their plain meanings. This section contains definitions for terms that appear through this rule.

2.1. “Abandon” or “abandonment” means generating 10 percent or less of the monthly maximum generation potential, as determined by the facility’s nameplate capacity, each month for 12 consecutive months, unless an application for a new or modified siting certificate is pending before the Public Service Commission. A facility will not be considered abandoned during any period in which the facility is being repowered, subject to any commencement or completion deadlines set by the Public Service Commission.

2.2. “Act” means The West Virginia Wind and Solar Energy Facility Reclamation Act, West Virginia Code § 22-32-1, et seq.

2.3. “Alternative decommissioning agreement” is a legally binding agreement providing for decommissioning of a solar generation facility or a wind generation facility that can be enforced by a qualified independent party and that has been approved by the Department of Environmental Protection or the Public Service Commission.

2.4. “Board” means the Environmental Quality Board as defined in West Virginia Code § 22B-1-7.

2.5. “Bond” means a surety bond or any other arrangement, including but not limited to letters of credit and escrow accounts, that represent a financial guarantee from the owner of a wind generation facility or solar generation facility to meet decommissioning requirements as established in this Act.

2.6. “Commenced commercial operation” means the first date the solar generation or wind generation facility delivers energy to the distribution or transmission system.

2.7. “Decommission” or “decommissioning” means:

2.7.a. The removal and proper disposal of the solar generation facility and its foundation after the end of the facility's useful life or abandonment; or

2.7.b. The removal and proper disposal of an aboveground wind turbine tower and its foundation after the end of a wind generation facility's useful life or abandonment; and

2.7.c. Except as otherwise provided in §22-32-4 of the Act, the removal and proper disposal with a wind generation or solar generation facility; and

2.7.d. Except as otherwise provided in §22-32-4 of the Act, the reclamation of the surface lands upon which buildings, equipment, and equipment foundations using backfill and compacting of soil in order to return the surface to beneficial use and to prevent adverse hydrologic effects.

2.8. “Decommissioning agreement” is any lease, contract, deed, administrative order, or other legally binding document requiring the owner of a wind generation or solar generation facility to decommission such facility.

2.9. “Department” means the West Virginia Department of Environmental Protection.

2.10. “Facility” means a wind or solar generation facility as defined in West Virginia Code § 22-32-3(f) or (g).

2.11. “Landowner” means a person or persons who hold legal title to the real property where a wind or solar generation facility is located.

2.12. “Owner” means a person who owns a wind generation or solar generation facility operated in West Virginia for the generation of electricity.

2.13. “Person” means any individual, firm, partnership, company, association, corporation, limited liability company, city, town, or local governmental entity or any other state, federal, or private entity, whether organized for profit or not.

2.14. “Qualified independent party” is a public or private entity that, with regard to a wind or solar generation facility, has no ownership interest in such facility. Qualified independent parties include county commissions. Qualified independent parties also include landowners who have no ownership interest in a wind or solar generation facility located on the landowner’s real property.

2.15. “Repowering” means substantial upgrades or changes in solar or wind generation equipment that will extend the operational life of a solar or wind generation facility.

2.16. “Solar generation facility” means an installation or combination of solar panels or plates, including a canopy or array, and other associated property, including appurtenant land, improvements, and personal property, that are normally operated together to capture and convert solar radiation to produce electricity, including flat plate, focusing solar collectors, or photovoltaic solar cells, and that has a nameplate capacity, singularly or in the aggregate, greater than or equal to 1.0 megawatts.

2.17. “Wind generation facility” means any combination of a physically connected wind turbine or turbines, associated prime movers, and other associated property, including appurtenant land, improvements, and personal property, that are normally operated together to produce electric power from wind and that have a nameplate capacity, singularly or in the aggregate, greater than or equal to 1.0 megawatts.

W. Va. Code R. § 60-11-3 Owner Responsibilities

3.1. An owner of a solar or wind generation facility shall:

3.1.a. Decommission its generation facility according to this rule and pay for all costs associated with decommissioning;

3.1.b. Commence decommissioning activities within 90 days after abandonment, unless the owner receives department approval of an alternative written plan for decommissioning;

3.1.c. Complete decommissioning within 24 months after abandonment, or according to a reasonable alternative schedule proposed by the owner and approved by the department upon a showing of good cause for the extension.

3.1.d. Notify the department in writing within 30 days after abandonment; and 3.1e. Notify the department in writing within 30 days after beginning onsite decommissioning activities.

3.2. The owner of a facility that commenced commercial operation on or before July 1, 2021 shall submit in writing the following to the department on or before July 1, 2022. The department may, but is not required to, review these initial decommissioning plans and information for completeness:

3.2.a. The date that the generation facility commenced commercial operation;

3.2.b. A decommissioning plan in accordance with the requirements of these rules, regardless of any bond exemption allowed under these rules;

3.2.c. Identification of each landowner; and

3.2.d. If the landowner or landowners identified pursuant to 3.2.c. are not governmental entities, whether the landowner or landowners have an ownership interest in the facility and, if so, a detailed description of the interests.

3.3. The owner of a facility that commences commercial operation after July 1, 2021 shall submit to the department the information required in 3.2.a. within 12 months after commencing commercial operation. The department may, but is not required to, review these initial submissions for completeness. Within 90 days after receipt, the department shall notify the owner of any deficiencies in the decommissioning plan. Within 90 days after receiving the deficiency notice, the owner shall address all deficiencies and resubmit the decommissioning plan.

3.4. Within 12 months after purchasing a facility, the new owner shall confirm compliance with the decommissioning agreement of the prior owner or submit an alternative decommissioning agreement to the department for approval. The purchaser of a controlling interest in a business entity that owns existing facility assets is not a new owner.

3.5. The department may, at its discretion, inspect solar or wind generation facilities to ensure compliance with this rule. When inspecting a facility, the department representative shall comply with site safety and general access restrictions while at the facility.

3.6. Within one year of commencing commercial operations, or within one year of the effective date of this rule, whichever last occurs, each non-exempt facility shall pay a fee to the Wind and Solar Decommissioning Account of $100 per megawatt of nameplate generation capacity installed, and $50 per megawatt of nameplate generation for each subsequent modification of the facility that is approved by the Public Service Commission.

W. Va. Code R. § 60-11-4 Decommissioning Agreement

4.1. Unless exempt, the owner of each solar or wind generation facility must prepare a decommissioning plan. A decommissioning plan must include:

4.1.a. A commitment to remove all aboveground solar panels, wind turbines, and towers;

4.1.b. Plans, including general structural and electrical information, relative to the calculation of the bond for all facilities and all disturbances associated with the facility. The plans must be certified by a professional engineer that that the as-built plans are complete and accurate. The department may allow treatment of all or a portion of the plan as confidential information if the owner demonstrates to the department’s satisfaction that the information or plan may be protected pursuant to West Virginia Code § 29B-1-4;

4.1.c. A detailed estimate of the cost of decommissioning the facility with supporting calculations, including:

4.1.c.i. A detailed estimate of the current salvageable value of the facility by an evaluator who is a qualified independent party; and

4.1.c.ii. An estimate of all other expenses related to decommissioning that are the responsibility of the owner.

4.1.d. A description of the manner in which the facility will be decommissioned and a proposed decommissioning schedule, which, except as provided for in 4.2, must include:

4.1.d.i. Removal of all overhead electrical transmission lines and structures, transformers, buildings, and all other ancillary equipment and debris from operation of the facility that is not associated with interconnecting the facility into the electrical grid;

4.1.d.ii. Removal of all underground cables and pipelines to a depth of 24 inches or deeper if necessary for the post operation land use;

4.1.d.iii. Removal of wind turbine and solar foundations and other concrete foundations and slabs to a minimum depth of 36 inches below the surface;

4.1.d.iv. Reclamation of the facility site to the approximate original surface topography that existed prior to the start of the construction of the facility with grading, topsoil application over the disturbed areas at a depth similar to that in existence prior to the disturbance, reseeding, and revegetation to achieve the same utility as the surrounding area at the time of decommissioning to prevent adverse hydrological effects;

4.1.d.v. Repair and reconstruction from damage to public roads, culverts, and natural drainage ways resulting directly from operation of or decommissioning of the facility; and

4.2. In lieu of the foregoing decommissioning plan requirements, a landowner and the owner of a solar or wind generation facility, and to the extent necessary any local governing body, may reach an alternative decommissioning agreement concerning:

4.2.a. Alternative restoration of buildings, equipment, other associated property (including appurtenant land, improvements, and personal property), cabling, electrical components, roads, or any other associated facilities (instead of removal); and/or

4.2.b. Alternative plans for the reclamation of surface lands.

4.3. The alternative decommissioning agreement may be specific to decommissioning or it may be a more general agreement, such as a deed, lease, contract, or other writing, with specific provisions relating to decommissioning.

4.4. The alternative decommissioning agreement must be provided to the department for review, and the department must approve or deny the alternative plan submission within 90 days of receipt. The department shall only deny an alternative decommissioning agreement if they determine that it will not result in the restoration of the property to a condition in which it can be used towards the same or a similar use as its use prior to the onset of the alternative decommissioning agreement. The department shall require, as a condition of any approval or modification of an alternative decommissioning agreement, that the parties grant the department and the Public Service Commission authority to enforce compliance with the alternative decommissioning agreement, through legal or administrative proceedings.

4.5. Decommissioning agreements which legally bind exempt parties are not subject to approval or modification by the department but are subject to review and comment by the department.

W. Va. Code R. § 60-11-5 Bonding and Decommissioning Exemptions

5.1. The owner of a solar or wind generation facility is exempt from the decommissioning and bonding requirements of this rule if:

5.1.a. The facility has a nameplate capacity of less than 1.0 megawatts;

5.1.b. The facility is operated by regulated public utility who can successfully demonstrate to the department and the Public Service Commission an acceptable showing of financial integrity and long-term viability; or

5.1.c. The facility:

5.1.c.i. Is legally bound by a decommissioning agreement, based upon a qualified independent party and executed before July 9, 2021; or

5.1.c.ii. Was granted a siting certificate, modification waiver, order, or other authorization to construct by the Public Service Commission, conditioned upon the execution of such agreement before July 9, 2021.

5.2. A facility remains exempt unless or until the facility, pursuant to West Virginia Code § 22-32-4(i)(3), is:

5.2.a. Found to be in breach of such agreement, or such agreement is found to be unenforceable;

5.2.b. Sold or transferred to a party or parties not bound under such agreement; or

5.2.c. Substantially expands its facility by 50% or more in total disturbed acreage.

5.3. Appendix A sets forth an inclusive, but not exclusive, list of solar and wind generation facilities that were granted a siting certificate or other authorization to construct by the Public Service Commission, conditioned on compliance with a legally binding decommissioning agreement that was executed before July 9, 2021. Such facilities are therefore exempt from the requirements of this rule, except that they are required to provide decommissioning agreements to the department.

5.4. Facilities that are exempt from the bonding and decommissioning requirements of the Act must provide the department with a properly executed and legally binding decommissioning agreement, with all attachments, schedules, and addendums.

W. Va. Code R. § 60-11-6 Determination of Bond Amount. 6.1 Unless exempt, each solar and wind generation facility shall provide a decommissioning bond conditioned on the faithful decommissioning of the facility. The department shall set the bond amount at the estimated amount for the department to perform the decommissioning work required of an owner

6.2. The bond amount must be based on:

6.2.a. Estimated costs of decommissioning and salvage value as submitted by the owner in the decommissioning plan and in accordance with these rules with such costs estimated by the department using current machinery production handbooks and publications or other documented or substantiated cost estimates acceptable to the department;

6.2.b. Estimated costs to the department that may arise from applicable public contracting requirements or the need to bring personnel and equipment to the facility after its abandonment by the owner to perform decommissioning and reclamation work;

6.2.c. Estimated costs to the department that may arise from management and maintenance of the facility upon owner insolvency or abandonment, until full bond liquidation can be effected; and

6.2.d. Other cost information as may be required by or available to the department.

6.3. The value of the bond shall be based upon the total disturbed acreage of land upon which the facility is operated, less salvage value, and shall not exceed the total projected future cost of decommissioning, less salvage value. In determining the amount of bond required, the department shall consult with the facility owner and provide the owner with a preliminary bond determination.

6.4. The line items in the bond calculations are estimates only and are not limits on spending of any part of the bond to complete any particular task subsequent to forfeiture of the bond or settlement in the context of bond forfeiture proceedings.

6.5. The department shall notify the owner of the facility by certified mail of any denial, approval, or modification to the decommissioning plan or the bond amount. Any person adversely affected by a decision of the department to approve or deny a decommissioning plan; to establish the amount of a decommissioning bond; to approve or deny an application to modify a decommissioning plan or bond; to grant or release a decommissioning bond, or to forfeit a decommissioning bond may appeal that decision to the Environmental Quality Board within 30 days after receipt of written notice of the department’s action, and thereafter to the appropriate court in accordance with the provisions of West Virginia Code § 22B-1-1, et seq.

W. Va. Code R. § 60-11-7 Bonding Deadline

7.1. Except as provided in 6.3 and 6.5 of these rules, an owner who is required to provide a bond for decommissioning shall submit a pond payable to the State of West Virginia in a form acceptable to the department and the Attorney General of the State of West Virginia and in a sum determined by the department pursuant to these rules, conditioned on the faithful decommissioning of the facility. The owner shall submit the bond:

7.1.a. On or before July 1, 2022 if the solar or wind generation facility commenced commercial operation on or before July 1, 2021; or 7.1.b Within one year of the date on which the solar or wind generation facility first produces electricity for consumer or industrial use, if the solar or wind generation facility commenced commercial operation after July 1, 2021.

W. Va. Code R. § 60-11-8 Penalties

8.1. If the owner of the solar or wind generation facility fails to submit a decommissioning bond acceptable to the department or the properly executed and legally binding decommissioning agreement within the timeframe required by these rules, the department shall provide notice to the facility owner. If, after 30 days, the owner has not submitted a decommissioning bond or such agreement, the department may assess an administrative penalty of not more than $10,000.00 for the first day of violation and may assess an additional administrative penalty of not more than $500.00 for each day the failure to submit the bond continues.

8.2. The owner of the solar or wind generation facility may appeal a penalty assessment to the Environmental Quality Board within 30 after receipt of written notice of the penalty.

W. Va. Code R. § 60-11-9 Replacement of Bond

9.1. If the owner transfers ownership of the facility to a successor owner, the department shall release the bond posted by the owner in accordance with this rule within 90 days. The successor owner shall, within 90 days after transfer, provide a bond that meets the requirements of these rules.

9.2. The owner must receive approval from the department prior to replacing any bond. The department shall approve a replacement bond within 90 days of receipt of the request for replacement if it meets the requirements of these rules.

W. Va. Code R. § 60-11-10 Adjustment of Bond Amount

10.1. Once every five years, an owner may request a reduction of the required bond amount by submitting to the department an amended decommissioning plan. If the department finds that the amended decommissioning plan reduces the estimated cost to the department to complete decommissioning, the department may approve reducing the bond. Prior to denying the request in whole or in part, the department shall consult with the owner. The department shall issue its decision within 90 days of receipt of the facility owner’s request.

10.2. The department shall review each nonexempt decommissioning plan and bond amount every five years after a facility is bonded, or when a new owner submits a revised decommissioning plan. The department may increase the amount of the bond if the facility has expanded or the cost to decommission the facility has otherwise increased. The department shall notify the owner of any proposed bond increase and provide the owner an opportunity for an informal conference on the proposal. If the department determines that the bond amount must be increased, it shall mail to the owner a written justification for the increase. The owner shall increase the bond amount within 90 days after the date the written justification was mailed.

10.3. The owner of the solar or wind generation facility may appeal a determination relating to bond adjustments to the Environmental Quality Board within 30 after receipt of written notice of the agency approval or denial of the request for bond adjustment.

W. Va. Code R. § 60-11-11 Form of Bond

11.1. The owner shall submit either a surety bond, collateral bond, letter of credit, or certificate of deposit in a form acceptable to the department and to the Attorney General of the State of West Virginia by the deadline established by these rules.

11.2. Liability under any bond, including separate bond increments or bonds applicable to a single facility, extends to the owner’s entire facility.

W. Va. Code R. § 60-11-12 Surety Bonds

12.1. An owner may satisfy the bonding requirements of these rules by submitting a surety bond that:

12.1.a. Is in an amount that does not exceed 10 percent of the surety’s capital surplus account as shown on a balance sheet certified by a certified public accountant and submitted to the department;

12.1.b. Is in an amount that does not exceed three times the surety’s maximum single obligation;

12.1.c. Is issued by a surety authorized by the Insurance Commissioner of the State of West Virginia and which is listed in the United States Department of the Treasury Circular 570;

12.1.d. Has a power of attorney attached that states that the surety has authorized the person issuing the bond to bind it to the bond’s terms; and

12.1.e. Provides a requirement and a mechanism for the surety to give prompt notice to the department and the owner of:

12.1.e.i. Any action alleging bankruptcy or insolvency of the surety or a violation that would result in suspension or revocation of the surety’s authorization;

12.1.e.ii. Cancellation by the owner; and

12.1.e.iii. Cancellation or pending cancellation by the surety.

12.2. Upon a written determination by the department that a surety is unable to comply with the terms of the bond, the owner is deemed to be without bond. The owner shall replace the bond within 90 days after the written determination is mailed by the department.

W. Va. Code R. § 60-11-13 Letters of Credit

13.1. An owner may satisfy the bonding requirements of these rules by submitting a letter of credit that:

13.1.a. Is issued by a bank organized and authorized to do business in the United States;

13.1.b. Is irrevocable prior to being released by the department;

13.1.c. Is payable to the department in part or in full upon demand and receipt from the department of a notice of forfeiture issued in accordance with these rules;

13.1.d. Provides, upon expiration, if the department has not notified the bank in writing that a substitute bond has been provided or is not required, the bank shall immediately pay the department the full amount of the letter of credit less any previous drafts;

13.1.e. Is not for an amount in excess of 10 percent of the bank’s capital surplus account as shown on a balance sheet certified by a certified public accountant and submitted to the department with the letter of credit;

13.1.f. Is for an amount that does not exceed three times the bank’s maximum single obligation; and

13.1.g. Is automatically renewable annually on the letter of credit anniversary date.

13.2. The department shall review a bank’s qualifications annually before a letter of credit is renewed. If the department determines that a bank has become unable to fulfill its obligations under the letter of credit, the department shall, in writing, notify the owner and specify a reasonable period, not to exceed 90 days, in which the owner shall replace the bond.

W. Va. Code R. § 60-11-14 Certificates of Deposit

14.1. An owner may satisfy the bonding requirements of these rules by submitting a certificate of deposit that:

14.1.a. Is issued by a single institution in a denomination not in excess of $250,000.00, or the maximum insurance amount as determined by the Federal Deposit Insurance Corporation, whichever is less. The department may not accept a combination of certificates of deposit from an owner in excess of that limit from a single institution. If the issuing institution uses a system in which the issuing institution serves as custodian for the payees of multiple certificates of deposit and arranges for one or more additional institutions to issue certificates of deposit not in excess of each institution’s Federal Deposit Insurance Corporation limit, and submits those certificates of deposit to the department with proof determined to be acceptable to the department that the issued certificates of deposit are insured by the Federal Deposit Insurance Corporation, the, the department may accept those certificates of deposit;

14.1.b. Is automatically renewable annually on the certificate of deposit’s anniversary date;

14.1.c. In combination with all certificates of deposit, is in an amount sufficient to ensure that funds in the amount of the bond required by these rules will be paid to the department by the issuing bank if the department forfeits the bond and liquidates the certificates of deposit before maturity;

14.1.d. Is payable to the owner and the department, and the owner has assigned its interest in the certificate of deposit, both in writing and in the records of the bank issuing the certificate of deposit;

14.1.e. Expressly prohibits the owner from withdrawing funds until the department has released the certificate of deposit assignment; and

14.1.f. Waives all rights of the issuer to a setoff or lien against the certificate of deposit.

W. Va. Code R. § 60-11-15 Forfeiture of Bond

15.1. If an owner fails to decommission a facility in either the manner or schedule set forth in the decommissioning plan under these rules and did not commence action to rectify deficiencies within 90 days after the department’s notification was mailed, the department may cause the bond to be forfeited for the entire facility. The department shall notify the owner and the surety or bank by certified mail of the forfeiture.

15.2. The notification must include the reasons for the forfeiture, the amount to be forfeited, the time within which corrective action to avoid forfeiture must begin, and the right to appeal the decision to the Board.

W. Va. Code R. § 60-11-16 Release of Bond; Use of Bond by Department

16.1. The department shall release a bond if the department is satisfied that an owner has completed decommissioning of a facility in accordance with the decommissioning plan or as otherwise agreed to by the department in consultation with the landowner.

16.2. At any time, an owner or any person authorized to act on behalf of the owner may make a written request to the department for release of all or a portion of a bond, and the department shall reply with a determination within 90 days unless the conditions do not permit access to the facility within the 90 days period. The owner shall allow the department to inspect the facility to verify the adequacy of decommissioning for bond release.

16.3. Upon bond forfeiture for an abandoned facility, the department, with staff, equipment, and material under its control or by contract with others, may take any necessary action to secure and decommission the facility.

16.4. Before decommissioning is considered complete, each wind generation facility owner shall record a map with the appropriate county clerk’s office showing the location of any remaining wind turbine foundation and its depth. The owner shall submit a copy of the map showing that it was stamped by the appropriate county clerk, and associated documents, to the department.

APPENDIX A

1. Case No. 01-1664-E-CN Mt. Storm Wind Force, LLC (See Public Service Commission Order August 29, 2002); Case No. 16-1117-E-CS-PC Mt. Storm Wind Force, LLC (See Public Service Commission Order May 3, 2017); Case No. 22-0079-E-CS-PC Catamount Wind LLC (See Public Service Commission Order March 30, 2022) (now known as Catamount Wind LLC).

2. Case No. 02-1189-E-CN Nedpower Mount Storm LLC (See Public Service Commission Orders April 2, 2003 and July 11, 2007).

3. Case No. 05-1590-E-CS Beech Ridge Energy LLC (See Public Service Commission Order August 28, 2006).

4. Case No. 08-1109-E-CS AES Laurel Mountain, LLC (See Public Service Commission Order November 26, 2008).

5. Case No. 08-2105-E-CS AES New Creek, LLC (See Public Service Commission Order September 30, 2009).

6. Case No. 09-0360-E-CS Pinnacle Wind Force, LLC (See Public Service Commission Order January 11, 2010); Case No. 19-1154-E-CS-PW Black Rock Wind Force, LLC (See Public Service Commission Order February 7, 2020).

7. Case No. 12-1196-E-CS Beech Ridge Energy II LLC (See Public Service Commission Order June 19, 2013).

8. Case No. 19-0483-E-CS Black Rock Wind Force, LLC (See Public Service Commission Order November 19, 2019); Case No. 20-0787-E-CS-PW Black Rock Wind Force, LLC (See Public Service Commission Order December 17, 2020).

9. Case No. 19-0890-E-CS-CN Longview Power II, LLC (See Public Service Commission Order April 3, 2020).

10. Case No. 20-0845-E-SCS-PW Wild Hill Solar, LLC (See Public Service Commission Order February 11, 2021).

11. Case No. 00-1209-E-CN Backbone Mountain Windpower, LLC (See Public Service Commission Order December 28, 2000).

APPENDIX B

Examples of Decommissioning Agreements may be obtained by contacting the West Virginia Department of Environmental Protection’s Division of Land Restoration in Charleston, West Virginia.

Series 12 Drinking Water Treatment Revolving Fund

W. Va. Code R. § 60-12-1 General

1.1. Scope. -- The 1996 Safe Drinking Water Act Amendments authorized a Drinking Water Treatment Revolving Fund program. The federal government provided most of the initial funding to start the West Virginia Drinking Water Treatment Revolving Fund program. This program allows the State to provide financial assistance to public water systems to finance the cost of infrastructure improvements needed to comply with the requirements of the federal Safe Drinking Water Act. The fund has been and will continue to be administered by the Water Development Authority along with the West Virginia Department of Environmental Protection. This rule establishes State-level procedures, standards for project eligibility, and gives direction to the Water Development Authority. The Drinking Water Treatment Revolving Fund was originally created under West Virginia Code § 16-13C-3, is continued under West Virginia Code § 22-36-3, and all monies and assets of the Fund continue to be held by the Fund which is permanent and perpetual.

1.2. Authority. -- W. Va. Code § 22-36-1 et seq.

1.3. Filing Date. -- May 21, 2024

1.4. Effective Date. – May 21, 2024

1.5. Sunset Provision. – This series is sunset-exempt.

W. Va. Code R. § 60-12-2 Definitions

2.1. “Capacity Development” means the technical, managerial and financial capability of a public water system.

2.2. “Capitalization Grant” means the assistance agreement by which the United States Environmental Protection Agency obligates funds allotted to a State for purposes of capitalizing the State’s revolving fund and funds for other purposes authorized in Section 1452 of the Safe Drinking Water Act.

2.3. “Community Water System” means a public water system which serves at least 15 service connections used by year‑round residents or regularly serves at least 25 year-round residents.

2.4. “Compliance” means conformity with State and federal laws, rules, and regulations applicable to public water systems.

2.5. “Cost” means the cost of all labor, materials, machinery, equipment, lands, property, rights and easements, plans and specifications, and all other expenses necessary or incident to the acquisition, construction, improvement, expansion, extension, repair, or rehabilitation of all or part of a project, including, but not limited to:

2.5.1. The costs of developmental, planning, and feasibility studies, surveys, plans, and specifications;

2.5.2. The costs of architectural, engineering, financial, legal, or other special services;

2.5.3. The costs of acquisition of land, only if the land is necessary to locate eligible project components and the land is acquired from a willing seller (land which must be condemned is not eligible);

2.5.4. The costs of site preparation and development, including demolition or removal of existing structures, construction and reconstruction, labor, materials, machinery, and equipment;

2.5.5. The reasonable costs of financing incurred by the local entity in the course of the development of the project, carrying charges incurred before placing the project in service, interest on funds borrowed to finance the project to a date subsequent to the estimated date the project is to be placed in service, necessary expenses incurred in connection with placing the project in service, and the funding of accounts and reserves as required by the Authority and the Instrumentality; and

2.5.6. Such other items as are deemed reasonable and necessary by the Instrumentality.

2.6. “Cross Cutter Authorities” means the Federal laws and authorities that apply by their own terms to projects or activities receiving federal assistance.

2.7. “Disadvantaged Community” means the service area of a public water system that meets the affordability criteria established in the annual Intended Use Plan after public review and comment by the Instrumentality and as approved by the United States Environmental Protection Agency.

2.8. “Drinking Water Treatment Revolving Fund” or “DWTRF” means the fund continued by W. Va. Code § 22-36-3(a) to be used for financial assistance to the public water systems for eligible infrastructure project costs.

2.9. The “Instrumentality,” “Department,” or “the WVDEP” mean the West Virginia Department of Environmental Protection, and any successor thereto, which has the primary responsibility for administering the DWTRF pursuant to requirements of the federal Safe Drinking Water Act.

2.10. “Intended Use Plan” means a document prepared by the Instrumentality each year which identifies the intended uses of the funds in the Drinking Water Treatment Revolving Fund, any new capitalization grants from the United States Environmental Protection Agency, any remaining funds from previous capitalization grants, and any state match.

2.11. “Local entity” means any municipality, public utility, or person, including any individual, firm, partnership, association, not-for-profit corporation, or other corporation organized and existing under the laws of the state which may construct and operate an eligible project.

2.12. “Public water system,” as defined by West Virginia Code §16-1-9a, means any water supply or system which regularly supplies or offers to supply water for human consumption through pipes or other constructed conveyances, if serving at least an average of 25 individuals per day for at least 60 days per year, or which has at least 15 service connections, and shall include:

2.12.1. Any collection, treatment, storage, and distribution facilities under the control of the owner or operator of the system and used primarily in connection with the system; and

2.12.2. Any collection or pretreatment storage facilities not under such control which are used primarily in connection with the system;

2.12.3. A public water system does not include a system which meets all of the following conditions:

2.12.3.a. Consists only of distribution and storage facilities and does not have any collection and treatment facilities;

2.12.3.b. Obtains all of its water from, but is not owned or operated by, a public water system which otherwise meets the definition;

2.12.3.c. Does not sell water to any person; and

2.12.3.d. Is not a carrier conveying passengers in interstate commerce.

2.13. “Project” means a project for improving a drinking water system for the purpose of achieving or maintaining compliance with applicable state and federal drinking water regulations.

2.14. “Project Priority List” means the list of projects that are eligible to be funded which is published in the Intended Use Plan.

2.15. “Safe Drinking Water Act” means the federal statute commonly known as the “Safe Drinking Water Act,” 42 U.S.C. 300f et seq., as enacted, amended, and as may be subsequently amended.

2.16. “Secretary” means the cabinet secretary of the Instrumentality or the Instrumentality’s successor.

2.17. “Set-Aside” means the moneys from the capitalization grant to be used for non-project activities specific to the Safe Drinking Water Act.

2.18. “Set-aside accounts" means those accounts that shall be set up for activities required by the federal Safe Drinking Water Act and the moneys for these accounts may be taken from the federal capitalization grant for these non-project activities before the capitalization grant is deposited into the fund.

2.19. “Small System” means a public water system serving 10,000 or fewer persons.

2.20. “USEPA” means the United States Environmental Protection Agency or any successor thereto.

2.21. “Water Development Authority” means the Water Development Authority created by W. Va. Code § 22C-1-4, and any successor thereto.

W. Va. Code R. § 60-12-3 Procedure

3.1. The Instrumentality will receive capitalization grants from the USEPA for the purpose of capitalizing the Drinking Water Treatment Revolving Fund to provide financial assistance to public water systems for the cost of infrastructure needed to comply with the federal Safe Drinking Water Act and to fund non-project activities outlined in Section 4 of this rule.

3.2. The Instrumentality shall develop an annual Intended Use Plan for the Drinking Water Treatment Revolving Fund program and present the plan for review and comment by the public.

3.2.1. The Intended Use Plan shall contain the proposed set-aside amounts for non-project activities. The set-aside accounts are described in Section 4.2 of this rule.

3.2.2. The Intended Use Plan shall contain a priority list of eligible projects per Section 5 of this rule that the State may fund during the fiscal year covered. The priority ranking procedure is described in Section 6 of this rule. This list shall contain at a minimum, the public water system name and Public Water System identification number, population served, water supply, project description, project type, estimated project cost, project priority and the expected financial terms. The financial administration is described in Section 7 of this rule.

3.2.3. The Instrumentality shall also maintain a comprehensive priority list of anticipated future projects as described in Section 6 of this rule. This list shall contain the projects, the estimated priority and the expected funding schedule for each.

3.2.4. The Intended Use Plan shall include a discussion of the financial status of the Drinking Water Treatment Revolving Fund. This discussion shall include the total amount of moneys in the fund from all sources, the types of projects to be funded, the general types and terms of financial assistance to be provided, the amounts for non-project activities and the amounts used for disadvantaged communities. The procedure for disadvantaged communities is described in Section 8 of this rule and shall be included in the annual Intended Use Plan.

3.3. The Instrumentality shall submit a capitalization grant application to the USEPA annually during the years that capitalization grants are available for the federal Drinking Water Treatment Revolving Fund program.

3.4. After the WVDEP receives USEPA approval of the annual Intended Use Plan, financial assistance may be made to public water systems by the Water Development Authority as specified in Section 7 of this rule and W. Va. Code §22-36-1 et seq.

3.5. The WVDEP shall submit an annual report to the USEPA regional administrator outlining the State’s activities which receive funding from the federal capitalization grant and the projects funded during the reporting period from the DWTRF.

W. Va. Code R. § 60-12-4 Fund Establishment

4.1. Establishment of the Fund. The Water Development Authority shall continue to administer and manage, under the direction of the Instrumentality, a permanent and perpetual fund known as the West Virginia Drinking Water Treatment Revolving Fund. The fund shall be kept separate and apart from all other funds or programs of the Water Development Authority and the Instrumentality.

4.2. Establishment of Set Aside Accounts. There are four allowable set-asides from the capitalization grant, each to be administered by the Instrumentality:

4.2.1. Program Oversight (Administration of the Fund). An amount up to the percentage allowable by law of the capitalization grant may be used to finance the costs of the Instrumentality or its agents in administering the program and for other administrative costs determined eligible by USEPA guidance.

4.2.2. Technical Assistance. An amount up to 2% of the federal capitalization grants shall be utilized to provide technical assistance services for small systems to assist those systems in maintaining compliance with the federal Safe Drinking Water Act. The technical assistance services for small systems shall be contracted by the Instrumentality to non-profit organizations that:

4.2.2.a. Have a membership that represents at least 25% of the small systems of this State; and

4.2.2.b. Have at least five years of experience in providing on-site technical assistance to small systems.

4.2.3. Local Assistance. An amount up to 15% of the capitalization grant may be used for local assistance such as, but not limited to: delineation and assessment of source water protection areas, loans for source water protection programs and well-head protection programs and capacity development assistance. Contractual services may be funded from this account for these services. No more than 10% may be used for any one activity.

4.2.4. State Activities. An amount up to 10% of the capitalization grant may be used for State activities such as, but not limited to: the public water supply supervision program, source water protection, capacity development, and operator certification

4.2.5. Reserving Set-Asides. Each year, the Instrumentality may reserve the Program Oversight, Technical Assistance, Local Assistance, and State Activities set-asides to be used in a future year. When used in a future year, the reserved amounts may be taken from capitalization grant in addition to the amounts in Sections 4.2.1, 4.2.2, 4.2.3, and 4.2.4

4.3. Sources of Money for the Drinking Water Treatment Revolving Fund. The Drinking Water Treatment Revolving Fund is comprised of moneys appropriated by the legislature, moneys allocated to the State by the federal government for the purposes of continuing to capitalize the Drinking Water Treatment Revolving Fund, all receipts and repayments from loans made from the Drinking Water Treatment Revolving Fund, all income from investment of moneys held in the Drinking Water Treatment Revolving Fund, and all other sums designated for deposits to the Drinking Water Treatment Revolving Fund from any source, public or private.

4.4. Use of Moneys in the Drinking Water Treatment Revolving Fund. Moneys in the Fund shall be used solely to make loans and other allowable financial assistance to local entities to finance or refinance the costs of a project and to defray the costs incurred by the Authority and the Instrumentality in administering the Fund and the programs created by the Act.

4.5. Investment of Moneys in the Drinking Water Treatment Revolving Fund. The Water Development Authority is permitted to invest the moneys in the Drinking Water Treatment Revolving Fund that are not needed for immediate disbursement or use in obligations or securities that are lawful investments for public funds of the State.

4.6. Disbursement of Moneys from the Drinking Water Treatment Revolving Fund. Moneys are to be disbursed from the Drinking Water Treatment Revolving Fund only for purposes allowed pursuant to the Safe Drinking Water Act for project expenses deemed eligible by the Instrumentality and upon written authorization from the director of the Water Development Authority or his or her designee.

W. Va. Code R. § 60-12-5 Project and System Eligibility

5.1. Both community and non-community non-transient public water systems are eligible for Drinking Water Treatment Revolving Fund funding, with the following exceptions:

5.1.1. For-profit non-community non-transient water systems; and

5.1.2. Federally owned public water systems.

5.2. The eligible system shall not be significantly out of compliance with any national or State drinking water rules, regulations, or variances unless the Instrumentality determines that the proposed project will enable it to come into compliance. The system shall provide assurances to the Instrumentality that the proposed project will enable the system to attain compliance.

5.3. Projects must conform to USEPA guidance to be considered eligible for funding by the DWTRF.

5.4. The purchase of a portion of another system’s capacity is eligible for a loan, if the system to be purchased is a small system which is part of a consolidation plan to bring the system into compliance, and it is the most cost-effective solution for that small system, when considering the buy-in and user fees.

5.5. The costs of project planning, design and other related costs are eligible for DWTRF funding. Funding of the design of a project does not guarantee funding of the project construction. The design loan assistance shall be described in the annual Intended Use Plan. 5.6 Costs of preparing environmental assessment reports (Section 11 of this rule) may be included as part of costs of planning the project and are eligible costs from the DWTRF.

5.7. Land is an eligible cost only if it is integral to a project that is needed to meet or maintain compliance and further public protection. In this instance, land that is integral to a project is only the land needed to locate eligible treatment or distribution projects. Land must be acquired from a willing seller and condemnation may not be used.

5.8. Ineligible projects. The following projects are ineligible for assistance from the DWTRF:

5.8.1. Expenditures that do not facilitate compliance with the national primary drinking water regulations or do not otherwise significantly further the public health protection objectives of the SDWA.

5.8.2. Projects that are deemed ineligible by the USEPA.

5.8.3. Reservoirs or rehabilitation of reservoirs, except for finished water reservoirs and those reservoirs that are part of the treatment process and are on the property where the treatment facility is located.

5.8.4. Projects needed primarily for fire protection.

5.8.5. Projects needed primarily to serve future population growth. Projects must be sized only to accommodate a reasonable amount of population growth expected to occur over the useful life of the facility.

5.8.6. Projects that have received assistance from the national set-aside for Indian Tribes and Alaska Native Villages under section 1452(i) of the Act.

5.9. Ineligible project-related costs. The following project-related costs are ineligible for assistance from the DWTRF:

5.9.1. Laboratory fees for routine compliance monitoring.

5.9.2. Operation and maintenance expenses.

W. Va. Code R. § 60-12-6 Priority Ranking Procedure

6.1. The Instrumentality shall develop an annual Intended Use Plan indicating how the Drinking Water Treatment Revolving Fund will be used. The Instrumentality shall give the highest priority to projects that:

6.1.1. Address the most serious health risks;

6.1.2. Are necessary to achieve compliance; and

6.1.3. Assist those systems most in need on a per household basis.

6.2. The Intended Use Plan shall include criteria for bypass procedures which identify the conditions which would allow a project to be bypassed and the way in which the Instrumentality will identify projects to receive the bypassed funds.

6.3. The Intended Use Plan shall undergo public review and comment and shall be submitted to the USEPA for approval.

W. Va. Code R. § 60-12-7 Financial Administration

7.1. Evidence and Security for Loans. Each loan shall be evidenced by revenue bonds or notes or other debt instruments issued by the local entity and purchased by the Water Development Authority, at par or at a discount to reflect the costs of the Water Development Authority and the Instrumentality incurred to the financing, in whole or in part, of the costs of a project. Each loan shall be secured by a pledge of the fees, charges, and all other revenues of the project to be constructed, in whole or in part, with the proceeds of the loan and any other collateral as may be required by the Water Development Authority. The Water Development Authority may require a water customer survey or user agreements to ensure that the proposed new customers will connect to the system.

7.2. Applications for Loans. A local entity that has the authority under State law to undertake a project and has been approved as an eligible recipient by the Instrumentality may apply for a loan. An eligible recipient desiring a loan shall make a separate application to the Water Development Authority, on the forms prescribed by the director of the Water Development Authority, for each project for which a loan is desired. Following approval by the Water Development Authority and the Instrumentality and when moneys are available for loan the Instrumentality shall provide the local entity with a binding commitment letter setting forth the terms of the loan.

7.3. Determination of Eligible Recipients. Public water systems projected to be able to qualify for DWTRF financial assistance shall be identified in the annual Intended Use Plan as described in Section 3 of this rule. Only those projects included in the State’s Intended Use Plan for the current fiscal year shall be considered by the Water Development Authority and the Instrumentality for financial assistance from the DWTRF.

7.4. Loan Agreements. Prior to providing a loan to an eligible recipient, the Water Development Authority shall execute and enter into a loan agreement with the applicant which shall be binding under the laws of the State and which shall contain such provisions as may be required by the Water Development Authority and the Instrumentality under the Safe Drinking Water Act including:

7.4.1. The cost of the project, the amount of the loan and the security therefor, which may include in addition to a pledge of fees, charges and other revenues from the project after a reasonable allowance for operation, maintenance, renewal and replacement expenses, and a reasonable reserve fund;

7.4.2. A deed of trust or other appropriate security instrument creating a lien on such project: Provided, That the annual repayment of principal and payment of interest begins not later than one year after the project completion and that the final payment shall not exceed 40 years (or as approved under the Safe Drinking Water Act) from said completion date except as provided in Section 8 of this rule;

7.4.3. The specific purposes for which the proceeds of the loan shall be expended, the procedures as to the disbursement of the loan proceeds including an estimated monthly draw schedule, and the duties and obligations imposed upon the applicant in regard to the acquisition or construction of the project;

7.4.4. If notes or other interim obligations are being issued by the applicant, the agreement of the applicant to issue the revenue bonds and take such other actions as are required of the applicant under the loan agreement;

7.4.5. The agreement of the applicant to accept the Water Development Authority’s remedies in the event of any default under the loan; and

7.4.6. The agreement of the applicant to comply with all applicable federal and State statutes, rules and regulations, the applicable requirements of all federal cross cutting authorities, and all applicable local ordinances pertinent to the financing, acquisition, construction, operation, maintenance, and use of the project.

7.5. Payment of Principal and Interest on Loans. Payments of the principal or any interest on a loan shall be made by the applicant in accordance with the provisions of the loan agreement.

7.6. Computation of Interest on Loans. Each loan shall bear interest at such rate or rates as are established by the Intended Use Plan, at a rate or rates per annum, either fixed or variable, provided that said rate or rates shall be made at or below market rate as stated in the Safe Drinking Water Act.

7.7. Fees and Charges. Administrative fees are charged on all loans as a means of supporting the administrative costs of operating the DWTRF in perpetuity. The administrative fees are established in the Intended Use Plan.

7.8. Loans Conditioned Upon Availability of Moneys in the Drinking Water Treatment Revolving Fund. The obligation of the Water Development Authority to make any loan shall be conditioned upon the availability of the moneys in the DWTRF in such amounts and on such terms and conditions as, in the sole judgment of the Water Development Authority, shall enable it to make loans.

7.9. Disbursement of Loan Moneys.

7.9.1. The Water Development Authority shall disburse to each recipient the amount certified to the Water Development Authority as costs incurred for the project. The certification shall be made in the form prescribed by the Water Development Authority and shall be accompanied by a written approval from the Instrumentality. The director of the Water Development Authority or his or her authorized representative shall then provide written authorization for the disbursement of the approved dollar amount to the recipient.

7.9.2. Each recipient shall comply with all terms and conditions of both the loan agreement and the resolution or ordinance authorizing the issuances of revenue bonds or notes or other debt instruments evidencing the loan.

7.10. Audit Requirements.

7.10.1. The programmatic set-aside accounts shall be audited annually by the Instrumentality in accordance with federal and State requirements and shall use generally accepted government accounting standards.

7.10.2. The DWTRF construction funds shall be audited annually by the Water Development Authority with separate opinions as required by the federal government generally and as required specifically by the Safe Drinking Water Act. The audit shall be in accordance with generally accepted government accounting standards. The annual audit of the DWTRF shall include an audit of the fund’s financial statements and an opinion on the financial statements and additional reports on internal controls and compliance with all federal laws and regulations.

W. Va. Code R. § 60-12-8 Disadvantaged Communities

8.1. Thirty percent of the annual federal capitalization grant shall be dedicated to the funding of projects for disadvantaged communities.

8.2. The subsidy options for assistance to disadvantaged communities shall be described in the annual Intended Use Plan. 8.3 Extended loan terms. The loan from the DWTRF is up to 30 years, but in the case of a system defined as a disadvantaged community the State may provide extended loan terms, up to 40 years. The loan terms may not exceed the expected design life of the project.

W. Va. Code R. § 60-12-9 Application Procedures and Requirements

9.1. Pre-application Process.

9.1.1. The applicant shall complete and submit to the Instrumentality a preliminary application package obtained from the Instrumentality.

9.1.2. The application shall provide documentation that the project has been approved, and funding recommended, by the West Virginia Infrastructure and Jobs Development Council.

9.2. Pre-Bid Process.

9.2.1. The applicant shall obtain prior written permission from the Instrumentality to bid the project. The project may be bypassed from the project priority list if the project is bid prior to receiving written approval. The applicant shall meet the uniform bidding procedures of the West Virginia Infrastructure and Jobs Development Council.

9.2.2. The following documents, where applicable, shall be submitted to the Instrumentality prior to bidding the project:

9.2.2.a. Updated project costs and financing plan;

9.2.2.b. A copy of the engineering agreement;

9.2.2.c. A set of project plans prepared by a registered professional engineer and approved by the Instrumentality;

9.2.2.d. The Public Service Commission’s or County Commission’s schedule for the approval, if required;

9.2.2.e. Copies of applicable permits from the BPH and/or the Instrumentality;

9.2.2.f. Evidence of other applicable permits including, but not limited to: permits from the BPH; the West Virginia Division of Highways; and the United States Army Corps of Engineers;

9.2.2.g. Bid documents and proposed bid advertisement;

9.2.2.h. Evidence that 100% of all necessary easements and rights-of-way have been obtained;

9.2.2.i. The project administration agreement; and

9.2.2.i.1. If the project will serve two or more entities, a PSC-approved agreement between the entities; or

9.2.2.i.2. If the project will serve a municipality, evidence of adoption of a non-appealable rate ordinance.

9.3. Pre-Loan Closing Requirements. Before loan closing the applicant shall submit the following documents to the Instrumentality:

9.3.1. A final order from the Public Service Commission or County Commission, if legally required, which approves the construction and financing of the project, including project rates;

9.3.2. Evidence that all applicable permits have been obtained;

9.3.3. An affidavit of publication of advertisement for bids;

9.3.4. A set of bid documents if changed since the previous submittal;

9.3.5. Bid tabulation certified by a registered professional engineer, indication of which bid was selected, and if the lowest bidder was not selected, a statement prepared by an attorney describing why the lowest bidder was not selected;

9.3.6. A statement by a registered professional engineer that the chosen bidder received any and all addenda to the original bid documents;

9.3.7. A statement by a registered professional engineer that the bid documents reflect the project as approved by the Instrumentality, that the chosen bid includes every construction item necessary to complete the project and that the uniform bidding procedures were followed;

9.3.8. A title opinion signed by an attorney, which identifies the project and contracts and which indicates that 100% of the necessary titles, easements and rights-of-way have been obtained or that the governmental agency has received rights-of-entry for the same;

9.3.9. Copies of invoices to be paid at closing;

9.3.10. Payment instructions for funds to be received at closing and on a monthly draw basis thereafter;

9.3.11. All necessary ordinances or resolutions in a form and substance satisfactory to the Water Development Authority and assurance that the applicant has taken or will take all measures required by law to enable it to enter into a loan agreement and to issue its revenue bonds or notes for purchase by the Water Development Authority;

9.3.12. An acceptable schedule for project initiation and completion;

9.3.13. Agreement that the applicant will follow all applicable procurement procedures set forth by State laws and rules;

9.3.14. Documentation that the applicant has obtained approval of user charges necessary to finance the project;

9.3.15. Documentation that the applicant has the financial, managerial and technical capability to complete the project;

9.3.16. Documentation that all federal cross-cutters have been addressed in project planning and assurances that the applicant will comply with applicable cross-cutters during project construction.

9.4. Construction and Post Construction.

9.4.1. The system shall follow all applicable procurement procedures set forth by the West Virginia Code.

9.4.2. The recipient shall establish and maintain a financial management system to account for all the costs incurred related to the project. The financial management system shall assure that generally accepted accounting principles and practices are consistently applied in all financial matters related to the project. Financial management shall include the following:

9.4.2.a. The establishment of appropriate controls over project funds, property, and other assets; 9.4 2.b. The maintenance of ledgers containing accurate, current and complete records of all financial actions related to the project;

9.4.2.c. The maintenance of records that identify the source and amount of all moneys used for the project and document how such moneys were used;

9.4.2.d. The maintenance of records that allow a comparison of actual project costs with budgeted costs; and

9.4.2.e. The establishment of procedures that assure a timely resolution of audit findings and recommendations.

9.5. In maintaining the accounting system, the recipient shall:

9.5.1. Establish a separate account for the project;

9.5.2. Record all transactions in ledgers;

9.5.3. Record all transactions in a timely manner;

9.5.4. Prepare and submit to the Instrumentality monthly reports of the financial status of the project; and

9.5.5. Prepare and submit to the Instrumentality an annual budget for the project.

9.6. The recipient shall maintain records for each loan received that include:

9.6.1. Loan application and loan approval documents;

9.6.2. All contracts and sub-agreements related to the project;

9.6.3. All documents related to the financial management;

9.6.4. All documents requiring action by the State;

9.6.5. Documentation of compliance with applicable federal and State laws, rules, and regulations; and

9.6.6. Documentation of moneys received and expended.

9.7. All records maintained shall be made available for inspection by the Instrumentality or the Authority upon request.

9.8. Prior written approval from the Instrumentality shall be obtained for any change orders to the construction contract.

9.9. Explanation of any project budget item overrun shall be submitted with that month’s funds draw request.

W. Va. Code R. § 60-12-10 Capacity Development

The Instrumentality shall continue to follow a capacity development strategy to assist systems in developing and maintaining technical, financial and management capability. The strategy shall be designed to ensure that all new community water systems and non-community non-transient water systems demonstrate technical, managerial and financial capability needed to comply with applicable federal and State laws, rules and regulations for drinking water.

W. Va. Code R. § 60-12-11 Environmental Review

11.1. General Requirements. The Instrumentality shall conduct or cause to be conducted, an environmental review for each project funded, in whole or in part, from the Fund. Any adverse environmental impacts that may occur on a project, as determined by the Secretary, shall be mitigated by the local entity. The local entity shall implement all measures, as stipulated by the Secretary, that are necessary to prevent adverse impacts to the public health, safety, or welfare or to the environment. The environmental review must be conducted before the project loan is closed upon.

11.2. In accordance with 40 CFR Part 35, Subpart L (§35.3140), projects must undergo a State environmental review process (SERP) that conforms generally to the National Environmental Policy Act (NEPA), 42 U.S.C.§4321 et. seq.

11.3. The applicant should consult with the State early in the facilities planning stage to determine whether a project is eligible for a categorical exclusion, to determine alternatives to the proposed project for evaluation, and to identify potential environmental issues and opportunities for public recreation and open space.

11.3.1. All requests for a categorical exclusion shall conform to 40 CFR Part 6, subpart B (§6.204).

11.3.2. One public meeting must be held by the local entity prior to the Instrumentality’s issuance of the categorical exclusion to discuss the chosen alternative as well as the reasons for rejecting other alternatives and to allow for comments.

11.4. Environmental Review Procedures. The applicant shall prepare and submit an environmental information document in conjunction with the facilities plan. The facilities plan must comply with the Instrumentality’s policies and procedures. The environmental information document must include the following information:

11.4.1. Correspondence with and responses from the West Virginia Division of Culture and History concerning possible impacts to historic, architectural, archaeological, and cultural sites.

11.4.2. Correspondence with and responses from the United States Army Corp of Engineers concerning possible impacts to floodplains and wetlands.

11.4.3. Correspondence with and responses from the U.S. Department of the Interior (Fish and Wildlife Service) and the West Virginia Division of Natural Resources concerning possible impacts to wetlands, wild and scenic rivers, fish and wildlife, and endangered or threatened species.

11.4.4. Correspondence with and responses from the U. S. Department of Agriculture concerning possible impacts to important farmlands.

11.4.5. Evaluation of possible impacts to air quality, development, and noise levels.

11.5. Environmental Assessment. An environmental assessment shall be prepared by the Instrumentality to provide sufficient data and analysis to determine whether a finding of no significant impact (FNSI) can be issued. The environmental assessment will address the concerns and impacts listed in 40 CFR Part 6, subpart B (§6.205(d) - (§6.205(e)(4)).

11.6. Finding of No Significant Impact (FNSI). When the environmental review indicates no significant impacts are anticipated or when the project is altered to eliminate any significant adverse impacts, a FNSI shall be issued and made available to the public. The environmental assessment shall be included as a part of the FNSI. The FNSI shall list all mitigation measures as defined in 40 CFR §1508.20, and specifically identify the measures necessary to make the recommended alternative environmentally acceptable. 11.6.1 The Instrumentality is responsible for monitoring mitigation measures identified in the FNSI. The Instrumentality will not close on a loan until the applicant complies with all conditions of the FNSI.

11.6.2. If it is not possible to mitigate or eliminate significant impacts caused by the project and allow the issuance of a FNSI, funds from the SRF will not be used to fund the project.

11.7. Public Involvement. The Instrumentality shall make diligent efforts to involve the public in the environmental review process and shall allow for sufficient public review of a FNSI before a facilities plan is approved. A period of at least 30 calendar days for comments will be allowed before administrative action will be taken after the release and publication of the FNSI. Comments will be submitted as directed in the FNSI. The FNSI will be posted at the applicant’s office location or other locations as directed and mailed to appropriate agencies and interested parties. One public meeting must be held by the local entity prior to FNSI issuance to discuss the chosen alternative as well as the reasons for rejecting other alternatives and to allow for comments.

11.8. All environmental assessment/FNSI determinations shall be re-evaluated in accordance with 40 CFR §6.200(h)

11.9. Public Notification. The public notification requirements of this section shall be fulfilled and consistent with 40 CFR §1506.6. The Instrumentality may institute such additional NEPA-related public participation procedures as are deemed necessary during the environmental review process.

11.9.1. Public notification options from 40 CFR §1506.6 include, but are not limited to, publication in local newspapers (in papers of general circulation rather than legal papers), publication in local newsletters that may be expected to reach potentially interested persons, direct mailing to owners and occupants of nearby or affected property, and posting of notice on and off site in the area where the action is to be located.

W. Va. Code R. § 60-12-12 Records

The Instrumentality shall maintain files for each DWTRF project in perpetuity.

Series 13 Design Build Program

W. Va. Code R. § 60-13-1 General

1.1. Scope. -- The purpose of this procedural rule is to establish guidelines and procedures for the use of design-build for reclamation projects. This policy ensures that the agency meets the requirements for design-build as outlined in State and federal laws and regulations. This procedural rule applies to all reclamation projects that will use the design-build delivery method. This includes projects that involve the reclamation of land and water damaged by mining, drilling, or other activities that have caused an environmental impact.

1.2. Authority. -- W. Va. Code § 22-34-2.

1.3. Filing Date. – August 3, 2026.

1.4. Effective Date. – September 2, 2026.

W. Va. Code R. § 60-13-2 Definitions

2.1. “Department” means the West Virginia Department of Environmental Protection created and established under W. Va. Code §22-1-1 et seq.

2.2. "Engineering/design services" are those professional services within the scope of the practice of engineering.

2.3. "Best Value" same as Value-based; see below.

2.4. "Business" means any corporation, partnership, individual sole proprietorship, joint stock company, joint venture, or any other private legal entity.

2.5. "Change order" means a written order signed by the procurement officer, directing the contractor to suspend work or make changes, which the appropriate clauses of the contract alteration in specification, delivery point, rate of delivery, period of performance, price, quantity, or other provisions of any contract accomplished by mutual action of the parties to the contract.

2.6. "Construction" means the process of building, renovating, altering, improving, or repairing.

2.7. "Construction does not mean the routine operation, routine repair, or routine maintenance of existing structures, buildings, or real property.

2.8. "Contract" means any state agreement for the procurement or disposal of supplies, services, design, or construction.

2.9. "Design-Build" means a project delivery method whereby the design and construction phases are combined into a single project. This method of design and construction can include the design-build provider acquiring the right of way as part of the contract.

2.10. “Local Governmental Agencies” means counties; municipalities; watershed improvement districts; soil conservation districts; sanitary districts; public service districts; drainage districts; regional governmental authorities and any other governmental agency, entity, political subdivision, public corporation or agency having the authority to acquire, construct or operate public water facilities, storm-water systems or wastewater facilities.

2.11. "Maintenance" refers to a commitment to maintain a highway facility in an acceptable condition for an established period of time.

2.12. “Owner” means the West Virginia Department of Environmental Protection.

2.13. "Procurement" means buying, purchasing, renting, leasing, leasing with an option to purchase, or otherwise acquiring any supplies, service, or construction. It also includes all projects or functions that pertain to the obtaining of any supply, service, or construction, including description of requirements, selection, and solicitation of sources, preparation, and award of a contract, and all phases of contract administration.

2.14. "Request for Proposals" (RFP) means an advertisement requesting proposals for work in accordance with the requirements outlined in the design-build criteria package.

2.15. "Request for Qualifications" (RFQ) means an advertisement requesting statements of qualifications. It contains at least the desired minimum qualifications of the designbuilder, criteria for evaluation, a scope of work statement, and general project requirements.

2.16. "Responsive bidder or proposer" means an entity or person who has submitted a bid or proposal which conforms in all material respects to the invitation for dibs or request for proposals.

2.17. “Secretary” means the cabinet secretary of the West Virginia Department of Environmental Protection.

2.18. "Sealed" does not prelude acceptance of electronically sealed and submitted bids or proposals in addition to bids or proposals manually sealed and submitted.

2.19. "Services" means the furnishing of labor, time, or effort by a contractor, not involving the delivery of a specific end project other than reports which are merely incidental to the required performance. It does not include employment agreements or collective bargaining agreements.

2.20. "Specification" means any description of the physical or functional characteristics, or of the nature of a supply, service, or construction item for delivery.

2.21. “State” means the State of West Virginia.

2.22. "Stipend" refers to the fee paid to unsuccessful firms for development of a responsive proposal.

2.23. "Supplies" means all property, including equipment, materials, and printing.

2.24. "Value-based" refers to a procurement process where price and other key factors are considered in the evaluation and selection process.

W. Va. Code R. § 60-13-3 Overview

3.1. The agency recognizes the benefits of using the design-build delivery method for environmental projects. Design-build allows for increased efficiency, reduced costs, and greater collaboration between the design and construction teams.

3.2. The agency/owner will be responsible for providing a clear delineation of environmental needs/goals. The agency will use a two-phase selection process for design-build projects is a procurement method that involves two distinct phases of Best Value evaluation for selecting the design-build team for a construction project. This process helps to ensure that the project is delivered with the highest quality, efficiency, and cost-effectiveness.

W. Va. Code R. § 60-13-4 Phase One: Request for Qualifications (RFQ). 4.1 During the first phase, the owner/agency will release a Request for Qualifications (RFQ) to interested parties, which will include the project scope, requirements, evaluation criteria, and disclosure of the Design-Build form agreement. Prospective vendors will be required to submit their qualifications, and relevant experience/past performance to the project objectives

4.2. The evaluation criteria may include, but is not limited to:

4.2.1. Experience and qualifications of the team;

4.2.2. Technical competence and expertise;

4.2.3. Past performance and references;

4.2.4. Design-Build experience/past performance;

4.2.5. Safety/past performance;

4.2.6. Quality Control/past performance;

4.2.7. Permit management; or

4.2.8. Performance guarantees /warranty(s).

4.3. Based on the evaluation of the submitted qualifications, the owner/agency will shortlist no more than three of the most qualified firms who will be invited to participate in the second phase of the selection process.

W. Va. Code R. § 60-13-5 Phase Two: Request for Proposal (RFP)

5.1. During the second phase, shortlisted firms will be required to provide site-specific details of how they propose to solve the problem. During this phase, shortlisted firms will also propose costs based on solutions proposed. The cost component will be evaluated separately. It is also a DBIA Best Practice to disclose the budget.

5.2. The evaluation criteria for the second phase may include:

5.2.1. Technical approach and methodology

5.2.2. Project management, schedule, and phasing

5.2.3. Cost and value engineering

5.2.4. Sustainability and environmental considerations

5.2.5. Risk management

5.2.6. Design management

5.2.7. Safety management

5.2.8. Quality Control/Quality Assurance management

5.3. Scoring during the second phase will not be based solely on price, but a combination of price and the non-price criteria, as shown above. The owner/agency will provide a stipend to those participating in the second phase of the selection process.

5.4. The agency will provide the two unsuccessful offerors, up to a 1.5% stipend of the stated project budget for the second phase of the selection process.

5.5. The two-phase selection process for design-build projects is an effective way to ensure that the owner/agency selects a highly qualified design-build team that will deliver the project with the highest quality, efficiency, and cost-effectiveness. The process allows for a comprehensive evaluation of the qualifications of the prospective vendors and their proposed solutions, ensuring that the owner/agency selects the best team for the project.

5.6. The Design-Builder will provide appropriate performance guaranties and or warranty(s) for all aspects of the project as applicable, and further described in the projects’ RFP.

W. Va. Code R. § 60-13-6 General Provisions

6.1. In collaboration with WV DEP, permits will be the responsibility of the winning Design-Builder.

6.2. Construction can begin in phases as design allows using a "release for construction" process.

6.3. Progress payment will be made according to the Design-Builder as per a payment schedule included in the contract.

6.4. Quality Control and Quality Assurance responsibilities will be collaborated between the agency and the winning Design Builder on a project-by-project basis. Both parties will agree on responsibilities in the executed Design-Build agreement.

6.5. Incentives and disincentives will be associated with time. The contract will specify the expected duration of the project, and the Design-Builder will be incentivized for early completion. Conversely, they will be disincentivized for late completion.

6.6. Agency oversight of design-build refers to the process of monitoring and regulating the design-build process to ensure that it meets the agency's goals, requirements, and standards. In design-build projects, the agency is typically the owner of the project, and it is responsible for ensuring that the project meets its objectives. The agency may utilize the 3rd party services of an Owners-Advisor to assist the agency in the implementation and execution of Design-Build best practices.

W. Va. Code R. § 60-13-7 Oversight

7.1. The agency's oversight of design-build typically involves several key activities, including:

7.1.1. Reviewing the design-build team's qualifications: The agency will review the design-build team's qualifications to ensure that they have the necessary experience and expertise to successfully deliver the project.

7.1.2. Developing the project requirements: The agency will work with the design-build team to develop the project requirements, which will include the project's scope, budget, and timeline.

7.1.3. Monitoring the design process: The agency will monitor the design process to ensure that the design meets the project requirements and is consistent with the agency's standards and guidelines.

7.1.4. Evaluating the construction process: The agency will evaluate the construction process to ensure that it meets the project requirements and is carried out safely and efficiently.

7.1.5. Conducting inspections and audits: The agency will conduct inspections and audits throughout the design-build process to ensure that the project meets all quality and safety standards.

W. Va. Code R. § 60-13-8 Public Records. 8.1 All bids received, and contracts awarded are publicly available for viewing

W. Va. Code R. § 60-13-9 Severability

9.1. If any word, phrase, or provision of this rule is held to be invalid, the remainder of the rule shall, to the fullest extent possible, not affected by that holding.