Proposed WVDEP Rule Revisions Will Result in Increase in State Voluntary Remediation Revenues

The West Virginia Department of Environmental Protection (WVDEP) filed legislative rule revisions to 60CSR3, Voluntary Remediation and Redevelopment Rule, with the legislative rule-making review committee on July 26, 2013.  These proposed rules went through public hearing and comment period.  The revisions amend the cost recovery provisions for WVDEP oversight of voluntary remediation program projects and should result in increased state revenues.  The revisions also amend the toxicological profiles used in developing the De Minimis risk-based cleanup standards table and incorporate some minor changes. 

The changes will revise the method of calculating the hourly rate for cost recovery for WVDEP employees.  The existing rule requires one to use a 2.5 times multiplier for the hourly rate of the WVDEP employee.  The agency approved regulations will require one to use a 3.5 times multiplier for the hourly rate of the employee and then add the direct expenses incurred by that employee.  See, Agency Approved Rule 60CSR3-6.1.b.5 at http://apps.sos.wv.gov/adlaw/csr/readfile.aspx?DocId=25141&Format=PDF (Please note the edits are not clearly shown on the proposed rule on the Secretary of States website, which provides “recoverable costs shall be determined the number of hours worked under the agreement by each primary employee multiplied by .5 times the hourly rate of each such employee and then adding the direct expenses incurred by each such employee,” it seems that the redlines did not show up when the agency rule was scanned).

The revisions will amend the use of the application fee.  Once the rules are final, the application fee will not apply to direct project oversight costs as was previously done.

The proposed rule amendments will be neutral on costs and should result in an increase in State revenues of $50,418 to result in total revenues of $516,263 for the implementation of the Voluntary Remediation and Redevelopment Act to offset declining federal contribution.  WVDEP funding for voluntary program projects comes from reimbursement fees invoiced to the voluntary program participant for the number of hours worked, direct expenses incurred by agency personnel, and from an annual Federal Brownfields 128a grant.  The federal contribution has declined in recent years and the downward trend will likely continue.  According to WVDEP, failure to amend the cost recovery mechanism for project oversight will necessitate a decrease in program functions.

The agency suggests the De Minimis revisions are necessary because of revisions to the toxicological profiles for many chemicals in the federal IRIS database.  The De Minimis table is used during risk-based clean-ups to determine whether environmental contamination at a proposed site exceeds levels that would be protective of human health.

Laura Goldfarb helps clients resolve their environmental policy, regulation, and enforcement problems. Prior to joining Steptoe & Johnson, Ms. Goldfarb was Assistant Counsel at the West Virginia Department of Environmental Protection, where she represented the agency in a variety of matters relating to the state's environmental programs, and drafted regulatory and statutory environmental provisions for the State of West Virginia.
 
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