West Virginia Department of Environmental Protection 

ADVISORY COUNCIL MEETING MINUTES 

Tuesday, June 24, 2008 

601 57th Street, SE, Charleston, WV 

West Virginia Room – 3rd Floor 

IN ATTENDANCE: 

Members of the Council: 

 

Jackie Hallinan 

Karen Price 

Bill Raney 

Rick Roberts 

DEP: 

Randy Huffman Cabinet Secretary 

Lisa McClung Deputy Cabinet Secretary and Director, 

 Division of Water and Waste Management 

Raymond Franks II General Counsel 

Karen Watson Associate General Counsel 

Kathy Cosco Communications Director 

Pam Nixon Environmental Advocate 

Ken Politan Mining & Reclamation 

Lewis Halstead Mining & Reclamation 

Charlie Sturey Mining & Reclamation 

Carroll Cather Water & Waste Management 

Don Martin Land Restoration 

Brian Long Water & Waste Management 

Dan Arnold Water & Waste Management 

Mike Zeto Environmental Enforcement 

Terrie Sangid Water & Waste Management 

Jim Mason Air Quality 

Mike Johnson Water & Waste Management 

Kathy Emery Water & Waste Management 

Scott Mandirola Water & Waste Management 

Visitors: 

Tom Boggs Chamber of Commerce 

Don Garvin WV Environmental Council 

Ruth Lemmon WV Auto/Truck Dealers Association 

OLD BUSINESS: 
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Secretary Huffman called the meeting to order at 1:35 p.m., and he announced that Members Lisa 

Dooley and Larry Harris would not be attending. On motion made by Mr. Raney and seconded by 

Ms. Hallinan, the Council approved the minutes from the March 18, 2008 meeting. Secretary 

Huffman then ceded the floor to Mr. Franks.

NEW BUSINESS: 

Mr. Franks noted that for the 2009 regular legislative session, DEP was proposing changes to 20 

rules, grouped by Division for presentation to the Council. Depending on who had shepherded the 

rule through its initial drafting, either Mr. Franks or Ms. Watson would lead the discussion, with 

program administrators available to assist in answering the Council’s questions. 

Ms. Watson presented 60 CSR 3, the “Brownfields” Rule. Ms. Watson explained that the Rule was 

currently pending before the Secretary of State for authorization as an emergency rule, and that the 

proposed changes included adjustments to the “de minimis” table and enhancing DEP’s flexibility in 

obtaining risk assessments. 

Ms. Price referred to a letter recently sent to DEP seeking clarification of the Rule’s provisions 

concerning land use covenants and long-term maintenance agreements. Secretary Huffman stated 

that the letter would be retrieved and the issue noted for further consideration by the agency. 

 

Mr. Raney inquired whether the Council could recommend changes to the rules as presented. Ms. 

Watson responded in the affirmative. Mr. Raney then asked whether written comments, such as 

those submitted by Mr. Harris prior to the meeting, would be appended to the minutes. Mr. Franks 

responded in the negative, and Ms. Watson expounded that Mr. Harris’s comments would be 

summarized and addressed orally during the discussion of the particular rules involved. 

Mr. Franks then presented 38 CSR 2, the Surface Mining Reclamation Rule. Mr. Franks explained 

that the proposed changes would expand the Secretary’s oversight of “approved persons” authorized 

to render technical certifications contained within mining permit applications, and would clarify 

certain collateral activities as being within the scope of requests for incidental boundary revisions to 

existing permits. Mr. Franks also noted that the proposed Rule would set forth more relevant and 

exacting criteria for the Secretary to consider in evaluating applications for revisions. 

Mr. Raney inquired generally about the provisions with respect to approved persons. Secretary 

Huffman replied that the increased oversight is necessary to improve the initial quality of the permit 

applications, such that the delays occasioned by subsequent corrections would be reduced or 

eliminated. Mr. Raney asked whether approved persons could include anyone other than engineers, 

and Mr. Halstead responded that the definition extended to surveyors and geologists. Mr. Raney 

noted the need to establish a procedure for suspension or revocation to limit the agency’s unfettered 

discretion, to which Secretary Huffman and Mr. Franks replied that the Rule provided for notice and 

hearing prior to curtailing the privileges of anyone on the approved-person list. 
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Ms. Watson presented 47 CSR 30, establishing NPDES requirements for coal mining facilities. Ms. 

Watson explained that the proposed changes were relatively minor, designed to enhance consistency 

with the non-coal rule, to allow for digital signatures, and to permit correction of clerical errors. 

The Council then considered the Air Quality rules. Mr. Franks presented 45 CSR 1 and 45 CSR 26, 

relating to control and reduction of nitrogen oxides from, respectively, non-electric and electric 

generating units, the latter by means of a budget trading program. The rules are to be repealed in 

their entireties, and Mr. Mason explained that both are being subsumed within the Clean Air 

Interstate Rule program. 

Mr. Franks then presented 45 CSR 8, the Ambient Air Quality Rule. Mr. Franks explained that the 

1-hour primary and secondary ozone standards were being replaced with 8-hour standards, with the 

maximum tolerance being reduced slightly. Mr. Raney inquired as to the practical effect of the 

proposed change, particularly with regard to whether non-compliance areas within the State might 

be expanded. Mr. Mason replied that an expansion might occur, but that it was difficult to predict at 

this early stage. Mr. Mason added that the time-period increase would inevitably lead to more 

accurate measurements. 

Ms. Watson presented 45 CSR 13, governing permits for constructing and modifying non-major 

stationary sources of air pollutants. Ms. Watson explained that the Rule was being amended to 

reflect the recent statutory changes reducing the lag time for issuing permits and authorizing certain 

pre-permit construction. It was noted that Mr. Harris had submitted in writing his concern that 

courts would be loath to enforce agency cease-and-desist orders based on defects discovered during 

the permitting process after construction had already begun. Ms. Watson pointed out that the statute 

had been carefully crafted to avoid facile invocation of detrimental reliance, with Mr. Franks 

observing that the Rule strove to conform to the statute. Ms. Price wondered whether one or more of 

the timeframe provisions included within the existing Rule had been inadvertently omitted from the 

proposed version. Ms. Watson responded that the Rule had been carefully checked for 

completeness, but that she would once again verify the language to assure its accuracy. 

Mr. Franks presented 45 CSR 14, governing permits for constructing and significantly modifying 

major stationary sources of air pollutants. Mr. Franks explained that references to pollution control 

projects and clean units were deleted in accordance with a federal appellate court decision vacating 

those provisions. 

Mr. Franks went on to present 45 CSR 16, 45 CSR 25, and 45 CSR 34, relating respectively to 

performance standards for new stationary sources, pollution from hazardous waste treatment, 

storage, and disposal facilities, and emission standards for hazardous air pollutants. Mr. Mason 

noted that the changes incorporate revisions to the Rules’ federal counterparts, except that some of 

the new standards were not incorporated within 45 CSR 34, because they constituted unfunded 

mandates. Mr. Garvin was recognized, and he asked whether the failure to incorporate equated to a 

lack of regulation. Mr. Mason responded in the negative, explaining that the monitoring and 

regulation would be performed by the federal government. Mr. Garvin inquired as to the affected 

industries, and Mr. Mason referred to a list including smaller gas facilities and paint-stripping shops. 
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Ms. Watson presented 45 CSR 37, detailing the budget trading program to reduce mercury 

emissions. Ms. Watson explained that the rule is being repealed as inconsistent with a federal 

appellate court decision, pending alternative action by the EPA. Mr. Garvin inquired whether the 

Rule repealed two years ago would be reinstated upon revocation of the current version, to which 

Ms. Watson and Mr. Franks replied that it would not, if there had indeed been a previous rule in 

place, which was somewhat in question. Mr. Mason explained that mercury emissions would be 

monitored and regulated as usual, except that budget trading would not be available as a method of 

reduction. He also stated that there have been discussions on a national level as to whether to 

reinstate the federal mercury monitoring requirements. 

The Council then turned its attention to the Water and Waste Management Rules. Ms. Watson 

presented 33 CSR 20, governing hazardous waste management systems. Ms. Watson explained that 

the Rule incorporated by reference its federal counterpart, the most salient change to which is its 

attempt to reduce disposal by permitting facilities to stage hazardous waste for three days pending 

recycling. Mr. Raney asked whether three days was sufficient time, and Mr. Cather responded in the 

affirmative. 

Mr. Franks presented 33 CSR 24, the Hazardous Waste Management Fee Rule. Mr. Franks 

explained that increases to the fee assessments are necessary to sustain the underlying Fund by 

ensuring sufficient matching revenue for federal grants. Ms. Price indicated her belief that, as part 

of the legislative compromise extending the fee’s duration, no increases would be forthcoming until 

completion and review of the Fund’s legislative audit. Secretary Huffman responded that the 

preliminary audit findings in no way indicate any misallocation within the Fund or contravene the 

agency’s determination that fee increases are necessary. Ms. Lemmon was recognized, and she 

commented that the proposed increase was unfair to automobile and truck dealers, as well as other 

small generators. Ms. Lemmon suggested that a study be done to identify the industries causing 

DEP to incur program costs, with fee assessments to be made proportionately. 

Ms. Watson presented 33 CSR 22 and 47 CSR 56, governing the assessment of civil administrative 

penalties for, respectively, hazardous and solid waste violations and violations relating to 

groundwater. Ms. Watson explained that the Rules were being modified for the first time since their 

initial promulgation, with the purpose of clarifying their application by listing additional factors to 

be considered in calculating penalties, providing ratings examples, and expanding facility categories. 

Ms. Watson then presented 47 CSR 31, addressing the State Water Pollution Control Revolving 

Fund. Ms. Watson explained that the proposed changes include the creation of a state review 

process for sewer projects in lieu of a wholesale adoption of the federal requirements. Mr. Roberts 

observed that many of the eligibility criteria would be deleted, but Ms. Emery assured the Council 

that inasmuch as the criteria were not being uniformly met, the deletion would have no practical 

effect on the Fund’s administration. Ms. Watson advised Mr. Roberts that if he continued to have 

concerns upon further review, he should submit written suggestions for changes during the formal 

comment period. 

Mr. Franks presented 47 CSR 32, governing the certification of laboratories conducting analyses of 

waste and wastewater. Mr. Franks explained that the proposed changes are designed to modernize 
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outdated procedures and protocols that have remained constant since 1995, and to increase program 

funding through increased certification fees and a new application fee. Mr. Raney asked whether the 

new fees would render the program self-sustaining, and Mr. Arnold replied that it would for the 

time-being. In response to further inquiry, Mr. Arnold stated that DEP conducts annual, on-site 

audits of commercial and industrial labs, with municipal labs typically audited every two years, 

depending on the experience of the support personnel. 

Ms. Watson presented 47 CSR 34, the Dam Safety Rule. Ms. Watson explained that the Rule is 

being extensively augmented to govern disbursement and use of a new Revolving Fund to finance 

repair and rehabilitation of deficient dams. Secretary Huffman commented that it appeared 

imminent that the Legislature would approve a transfer of $350,000 from excess general revenue as 

seed money for the Fund. 

Lastly, Ms. Watson presented 47 CSR 2, the Water Quality Standards Rule. Ms. Watson explained 

that the proposed revisions are designed to clarify the definition of Category A use, while providing 

specific standards to be applied in the permitting process to determine in a more streamlined fashion 

whether the use is unsuitable in cases of insufficient flow and hydrologic modification. Mr. Raney 

commented that the Category A determination process has always been a significant problem for the 

coal industry. Ms. Price also agreed for her members. Mr. Garvin noted that the environmental 

community had expressed some initial concern regarding the proposed streamlining mechanisms, but 

that there was some general support for taking the matter out of the legislative arena. Mr. Huffman 

affirmed that the revisions are designed solely for the benefit of the regulated public and that the 

revisions must include the clarification that Category A applies statewide. 

Ms. Watson reported that the rules will proceed to be filed with the Secretary of State, some perhaps 

as early as the week following the Council meeting, and that some will have an extended 45-day 

comment period. 

Mr. Franks requested closing comments from Council members and from the public. Following the 

cessation of discussion, Mr. Franks reminded the Council that the next meeting is scheduled for 1:30 

p.m. on September 9, 2008. 

Secretary Huffman declared the meeting adjourned at 3:25 p.m.