Current through Register Vol. XLI, No. 37, September 13, 2024
Section 47-63-7 - Corrective Action7.1 Owners and operators of ASTs must, in response to any confirmed release or threatened release from an AST, comply with the requirements of this section unless directed otherwise by the Secretary.7.1a Secretary Authority to Assume Control of Releases 7.1.a.1 The Secretary reserves the right to assume control of any release or threatened release from an AST to address threats to human health, safety, water resources or the environment when the Secretary makes one of the findings set forth in W.Va. Code § 22-30-8(c). In such cases, all liability, including payment to the Department of response costs, will remain with the owner or operator and its guarantors in accordance with W.Va. Code §§ 22-30-8(e) and (f).7.1.a.2 To protect human health, safety, and the environment, the Secretary reserves the right for the Department or its contractors to enter and take appropriate actions on affected properties to investigate, abate, and remediate contamination as provided in W.Va. Code § 22-30-8.7.2 Initial Release Response Requirements 7.2.a. In response to a confirmed release from an AST, owners or operators shall promptly take the following steps to prevent or address an immediate threat to human health or the environment while at the same time initiating, as necessary, one or more of the tasks identified in subsection 7.4: 7.2.a.1 If a faulty AST component is determined to be the cause of a release, take the component or, if necessary, the entire AST system outof service and remove all substance contained in the AST or AST compartment to prevent further release to the environment. The faulty AST shall not be returned to service until the AST is certified as Fit for Service following the procedures outlined in subsection 5.2 .b-e of this rule.7.2.a.2 Determine an estimate of the amount and type of substance released.7.2.a.3 Identify and sample affected water supplies and water supplies with the potential to be affected in a reasonable and systematic manner, in accordance with subdivision 7.3.a.7.2.a.4 Contain the release:7.2.a.5 Identify, mitigate, and continue to monitor and mitigate fire, explosion, and safety hazards posed by vapors and free product.7.2.a.6 If non-aqueous phase liquids (NAPL) are present, owners or operators shall formulate a NAPL Conceptual Site Model (NCSM) to determine the most efficient and environmentally protective remedial approach for addressing the release. NAPL shall be removed and remediated to the maximum extent practicable.7.2.a.7 If contaminated soil exists at the site, the interim remedial action may include excavation of the soils for treatment or disposal. Soils may be stored on site temporarily, in accordance with subsection 7.6.7.2.a.8 At sites where free product recovery, substance removal or contaminated soil excavation is performed, owners and operators must:7.2.a.8.A Conduct recovery, removal, storage, treatment, and disposal activities in a manner that prevents the spread of contamination into previously uncontaminated areas.7.2.a.8.B Minimize the amount of soil and subsurface material affected by a release of a substance by segregating the unaffected soil and subsurface material from the material affected by a release of a regulated substance.7.2.a.8.C Obtain required State and local permits or approvals for treatment and disposal activities.7.2.a.8.D Where soil and subsurface material affected by a release are removed from the site, the person removing the material shall provide a receipt documenting acceptance of the material at a permitted treatment or disposal facility to the owner or operator. In the case that the owner or operator is not the landowner, and the landowner requests a receipt, a receipt must be provided to the landowner.7.3 Affected or Diminished Water Supplies 7.3.a Where the Secretary determines that a public water supply is affected or diminished or potentially affected or diminished due to a release from a regulated AST, sampling shall be done in cooperation and coordination with the public water supplier, the Secretary, and the West Virginia Bureau of Public Health. Where a private water supply is affected or diminished or potentially affected or diminished due to a release, sampling shall be coordinated with the private supply owner(s) and the Secretary. A copy of the sample results shall be provided to the water supplier or supply owner and the Secretary within five (5) days of receipt of the sample results from the laboratory. A water supply affected or diminished by the release shall be restored or replaced with an alternate water supply in accordance with this subsection and in coordination with the water supplier or water supply owner and the Department.7.3.b Owners or operators who affect or diminish a water supply as a result of a release shall restore the water supply to pre-release condition or replace the affected or diminished supply with an alternate source of water adequate in quantity and quality for the purposes served by the supply at no cost to the public water supplier or owner of the affected or diminished water supply.7.3.b.1. A temporary water supply shall be provided as soon as practicable but not later than forty-eight (48) hours after one of the following: 7.3.b.1.A The owner or operator receives information which establishes that the release has affected or diminished the water supply.7.3.b.1.B The owner or operator is notified by the Secretary that the release has affected or diminished the water supply.7.3.b.2 A permanent water supply shall be provided within ninety (90) days, or within an alternative timeframe as determined by the Secretary, after one of the following: 7.3.b.2.A The owner or operator receives information which establishes that the release has affected or diminished the water supply.7.3.b.2.B The owner or operator is notified by the Secretary that the release has affected or diminished the water supply.7.3.b.3 The total time for providing a permanent water supply may not exceed two (2) years.7.4 Site Characterization Requirements 7.4.a Upon confirming that a release has occurred or upon notification by the Department that a release has been confirmed, unless directed otherwise by the Secretary, owners or operators shall perform site characterization to: 7.4.a.1 Determine whether additional initial response actions are necessary to abate an imminent hazard to human health or the environment.7.4.a.2 Determine whether additional site investigation work is required upon completion of initial response actions that may have been implemented.7.4.a.3 Provide sufficient information to allow for completion of a corrective action plan (CAP) based on the site characterization results.7.4.b Site characterization shall include the following activities, as necessary, based on the nature, extent, type, volume or complexity of the release:7.4.b.1 Assess the physical characteristics of the site as appropriate to the nature of the release in consultation with the Secretary.7.4.b.2 Determine the nature of the release and extent of contamination.7.4.b.3 Evaluate the condition of the ASTs.7.4.b.4 Develop a conceptual site model that describes the sources of contamination, fate and transport of contaminants, and potential receptors.7.4.b.5 Prepare and implement site-specific plans for worker health and safety; identification, management, and disposition of wastes generated; and quality assurance/quality control during site characterization activities.7.4.c Site Characterization Report 7.4.c.1 Owners or operators shall prepare and submit to the Secretary within 120 days of reporting a confirmed release, or within an alternative timeframe as determined by the Secretary, two (2) hard copies and one (1) electronic copy of a site characterization report which describes the activities undertaken in accordance with this section. The site characterization report shall be prepared in accordance to guidance provided by the Office of Environmental Remediation and include the following: 7.4.c.1.A Site Description;7.4.c.1.B Contaminant Information;7.4.c.1.C AST System Information;7.4.c.1.D Initial Response Actions Performed;7.4.c.1.E Site Specific Plans Prepared and Implemented;7.4.c.1.F Methods and Results of Investigation; and7.4.c.1.G Conclusions and Recommendations.7.4.d If owners or operators determine, after completion of initial response or interim actions, that further site characterization is not required, that soil is the only media of concern, and that these actions have remediated the site, owners or operators may submit a site characterization report to the Secretary that contains the following elements, in lieu of the elements required in subdivision 7.4.c: 7.4.d.1 A concise statement that describes the release, including information such as the amount of the substance that was released, the extent of contamination, and initial release response or interim remedial actions taken pursuant to subsection 7.2.7.4.d.2 Data demonstrating that the initial release response or interim remedial actions have attained the standard for the site as determined based on the nature of the substance released, as well as standards as set forth in the Water Pollution Control Act, W.Va. Code § 22-11-1, et seq.; the Groundwater Protection Act, W. Va. Code § 22-12-1, et seq.; the Solid Waste Management Act, W. Va. Code § 22-15-1, et seq.; or the Hazardous Waste Management Act, W. Va. Code § 22-18-1, et seq. and the rules promulgated thereunder.7.4.d.3 Additional information as necessary to fully describe the release, the extent of contamination, and the interim remedial actions taken to address the release.7.4.e Following submission and review of a complete site characterization report, the Secretary may: 7.4.e.1 Approve the site characterization report as submitted;7.4.e.2 Require additional information or clarification from the owners or operators; or7.4.e.3 Disapprove the site characterization report, citing deficiencies, and direct, require or order the owners or operators to perform other tasks or make modifications as necessary to meet the requirements of this section of the rule.7.4.f At any point after reviewing the information contained in the site characterization report, the Secretary may require the owners and operators to submit additional information or to develop and submit a corrective action plan to address contaminated soils, groundwater or surface water. Additional investigation information or corrective action plans requested by the Secretary shall be submitted within ninety (90) days or within an alternative time frame approved by the Secretary upon request by the owner or operator and for good cause shown.7.4.g If data can justify site closure, owners or operators may request site closure in accordance with the requirements of subsection 7.8. Corrective action will be considered complete only upon the Secretary's evaluation and approval of a satisfactory request that no further action be taken.7.5 Corrective Action Plan Requirements 7.5.a. The Secretary may waive the requirement of an investigation under subsection 7.4 when owners or operators have taken the appropriate initial response steps to eliminate imminent dangers and to prevent any further release, and the owners or operators choose to submit a corrective action plan (CAP) to remediate contaminated soil, groundwater or surface water.7.5.b. Owners or operators may, in the interest of minimizing environmental contamination and promoting more effective corrective action, begin remediation of contaminated soil, groundwater or surface water before the CAP is approved, provided that they: 7.5.b.1 Notify the Secretary of their intention to begin remediation;7.5.b.2 Comply with any conditions imposed by the Secretary, including halting remediation or mitigating adverse consequences from cleanup activities;7.5.b.3 Incorporate these self-initiated remediation measures in the CAP that is submitted to the Secretary for approval; and7.5.b.4 Recognize that any actions they take without prior approval by the Secretary is at the risk of the owners or operators and do not absolve them of the obligation to comply with the corrective action requirements of this section.7.5.c The CAP shall: 7.5.c.1 Address the contamination of soils, groundwater, and surface water; vapor intrusion concerns; all occurrences of NAPL resulting from a release; and impacts or potential impacts to water supplies.7.5.c.2 Provide for adequate protection of human health, safety, water resources, and the environment.7.5.c.3 Be of specific design and based on the results of the hydrogeologic investigation or contain appropriate investigatory steps if submitted without a prior hydrogeologic investigation having been completed.7.5.c.4 Include sufficient design information to demonstrate that the remedial technology meets the cleanup goals approved by the Secretary.7.5.d The CAP may propose a phased approach to site remediation.7.5.e Corrective Action Plan 7.5.e.1 Owners and operators shall prepare and submit to the Secretary within ninety (90) days of the approval of a site characterization report, or within an alternative timeframe as determined by the Secretary, two (2) hard copies and one (1) electronic copy of a CAP. The CAP shall be prepared in accordance with guidance provided by the Department's Office of Environmental Remediation, submitted in a report form, and contain the following elements, as necessary, based on the nature, extent, type, volume or complexity of the release:7.5.e.1.A A brief summary of the site characterization report conclusions.7.5.e.1.B A summary of past efforts and a description of any new or continued efforts to effectively remove NAPL where NAPL is present.7.5.e.1.C Cleanup goals for the site.7.5.e.1.D A proposed corrective action method for the site that will: 7.5.e.1.D.1. Reduce contaminant levels at the site to meet the cleanup goals proposed in the CAP and approved by the Secretary; or7.5.e.1.D.2. Reduce contaminant levels to achieve the cleanup goals established by the Secretary.7.5.e.1.E The results of treatability, bench scale or pilot scale studies or other data collected to support the remedial action.7.5.e.1.F A discussion of how the remedial action will attain the remediation standard for the site.7.5.e.1.G Design and construction details for the remedial action, including expected effectiveness.7.5.e.1.H Operation and maintenance details for the corrective action.7.5.e.1.I A list of required federal, State, and local permits or approvals to conduct the remedial action.7.5.e.1.J A site map showing the location of buildings, roads, property boundaries, remedial equipment locations, and other information pertinent to the remedial action.7.5.e.1.K A description of the media and parameters to be monitored or sampled during the remedial action.7.5.e.1.L A description of the analytical methods to be utilized and an appropriate reference for each.7.5.e.1.M A description of the methodology for post-remediation monitoring that will be utilized to demonstrate attainment of the remediation standard.7.5.e.1.N A description of additional items necessary to develop the CAP.7.5.e.1.O Copies of the site-specific plans for worker health and safety; identification, management, and disposition of wastes generated; and quality assurance/quality control during implementation of the CAP.7.5.f The Secretary shall approve the CAP when satisfied that implementation of the CAP provides for measures considered adequate to protect human health, safety, water resources, and the environment. 7.5.f.1 Upon approval of the CAP by the Secretary, owners or operators shall implement the CAP, including any modifications to the CAP, according to the schedule contained therein. 7.5.f.1.A Owners or operators must notify the Secretary in writing of any proposed changes to the schedule.7.5.g Corrective Action Progress Reports 7.5.g.1 During implementation of the CAP, remedial action progress reports shall be submitted to the Secretary quarterly or at an alternative interval as determined by the Secretary upon request and for good cause shown. Each corrective action progress report shall provide the data generated during the reporting period and shall show the progress to date toward attainment of the remediation standard. Corrective action progress reports shall be prepared in accordance to the guidance provided by the Office of Environmental Remediation and shall contain the following elements, as necessary, based on the nature, extent, type, volume or complexity of the release: 7.5.g.1.A A summary of site operations and remedial progress made during the reporting period.7.5.g.1.B Quantitative analytical results from media sampling, including laboratory reports and tables summarizing cumulative data.7.5.g.1.C Sufficient information from monitoring data to establish whether the plume is stable, shrinking or expanding.7.5.g.1.D Reporting period and cumulative amounts of free product recovered, groundwater treated, and soil and sediment treated or disposed.7.5.g.1.E Treatment and disposal documentation for waste generated during the reporting period.7.5.g.1.F Recommendations for optimization and improvement as needed to achieve the cleanup goals established in the CAP.7.5.g.2 The first corrective action progress report shall be submitted to the Secretary within 120 days following the date of CAP implementation. Subsequent reports shall be submitted within thirty (30) days of the end of the quarterly monitoring period. Owners or operators shall submit two (2) hard copies and one (1) electronic copy of each progress report.7.5.g.3 The final corrective action progress report shall be submitted to the Secretary as part of a corrective action completion report.7.5.g.4 At least once per twelve (12) month period, the corrective action progress report shall include an evaluation of the effectiveness of the corrective action to determine whether additional measures must be implemented to meet the cleanup goals established in the CAP. The evaluation shall include an estimate of time to corrective action completion. 7.5.g.5. Should the evaluation indicate the corrective action is no longer effective, or the Secretary notifies the owner or operator that the remedy is no longer effective, the owner or operator shall submit a revised CAP to propose a more effective remedy.7.5.h. If, during implementation of the CAP, the owner or operator decides to change the CAP, the owner or operator shall prepare and submit to the Secretary a new or modified CAP for approval.7.5.i. If, during implementation of the CAP, the owner or operator determines that continued implementation of the CAP will cause additional environmental harm, the owner or operator shall suspend corrective action and notify the Secretary within twenty-four (24) hours of suspension. The owner or operator shall prepare and submit a new or modified CAP in accordance with this subsection within ninety (90) days.7.5.j. If the Secretary determines that the implementation of corrective actions are not achieving adequate protection of human health or the environment, the Secretary may require additional responses to be taken.7.5.k. Upon completion of corrective action activities, the owner or operator shall perform four (4) consecutive quarters of groundwater sampling and surface water sampling, or other sampling schedule as approved by the Secretary, to ensure the remediation standard has been met.7.6 Onsite Storage of Contaminated Soil 7.6.a Onsite storage of contaminated soil is prohibited unless performed in accordance with this subsection of the Rule and all other applicable federal, State, and local regulations. The owner or operator must notify the Secretary of its intent to temporarily store contaminated soils at the site and submit a brief written plan to the Secretary prior to storing any soils.7.6.b Onsite storage of contaminated soil may be performed if the soil does not present a threat to human health, safety, water resources or the environment and one of the following applies: 7.6.b.1 Soil excavation is necessary to perform a removal from service.7.6.b.2 Soil excavation is performed as part of an interim remedial action.7.6.b.3 Soil excavation is performed as part of remedial action.7.6.c Where excavated contaminated soil is stored onsite in accordance with subdivision 7.6.b, the excavated soil shall be disposed of or active treatment of the excavated soil shall be initiated within ninety (90) days from the first day of storage or within an alternative timeframe authorized by the Secretary in writing upon request of the owner or operator and for good cause shown.7.6.d If contaminated soil is stored onsite, the owner or operator shall manage the soil in accordance with applicable federal regulations, legislative rules, and Departmental policies relating to solid and hazardous wastes. In addition to these requirements, unless otherwise specified in applicable federal regulations, legislative rules or Departmental policies, contaminated soil shall be completely and securely covered for the duration of the storage period with an impermeable material of sufficient strength, thickness, anchoring or weighting to prevent tearing or lifting of the cover, infiltration of precipitation or surface water, discharge of any leachate, exposure of the soil to the atmosphere, and runoff. Contaminated soil shall not be stored in such proximity to adjacent properties, public areas or residences as to cause nuisance odor. Appropriate steps shall be taken to deter public access to the storage area, which steps may include fencing or similar barriers, security patrols or warning signs.7.6.e The Secretary may require immediate removal of contaminated soil if the soil is not being properly stored or managed in accordance with subdivisions 7.6.c. or 7.6.d. above or if the Secretary determines that storage poses a threat to human health, safety, water resources or the environment.7.7 No Further Action 7.7.a Request for No Further Action Determination7.7.a.1 After all remedial action goals have been achieved, the owner or operator shall submit a written request to the Secretary for no further action (NFA) status. NFA documentation shall include, but not be limited to, the following: 7.7.a.1.A A demonstration that the site does not threaten human health, safety, water resources or the environment based on current conditions at the site and surrounding areas.7.7.a.1.B A demonstration that NAPL has been addressed in accordance with subsection 7.5.c.1.7.7.a.1.C A demonstration that all contaminated soils previously stored at the site have been properly disposed in accordance with subsections 7.2 and 7.6.7.7.a.1.D Copies of all documents, permits, certificates, approvals, etc. relating to the transportation of impacted environmental media and materials from the site, including ASTs, the substances contained in the ASTs, soils, and water, that have not been previously submitted to the Secretary. Documentation shall include tipping fees, waste receipts, bills of lading or any other documentation verifying that all waste has been properly disposed.7.7.b The Secretary shall issue a letter requiring NFA and documenting that site cleanup objectives have been met. The NFA letter does not absolve the owner or operator from previously incurred or potential future liability.7.7.c The NFA letter applies to known site conditions at the time that the NFA request is made. If the risk posed by the site changes in the future or the presence of contamination related to the release in question is discovered at a later date, the Secretary reserves the right to reopen the release case and require the owner or operator to perform additional investigation and remediation to eliminate the risk to human health, safety, water resources or the environment.7.8 Alternative Corrective Action7.8.a The owner or operator has the option to remediate releases from ASTs to risk-based standards through the Voluntary Remediation and Redevelopment Program (VRRP) as authorized by the Voluntary Remediation and Redevelopment Act, W.Va. Code § 22-22-1, et seq., and the Voluntary Remediation and Redevelopment Rule (60 C.S.R.3). If the owner or operator chooses this option, it shall inform the Secretary in writing and make application to the VRRP within thirty (30) days of the notification. Subsequent corrective action activities will be governed by the requirements of the Act and its associated legislative rule until a Certificate of Completion is issued, or until either party (the owner or operator or the Secretary) withdraws from the voluntary remediation agreement. If remediation is not completed under the VRRP, the owner or operator must meet the requirements of this section of this Rule.7.9 Violations. - Owners and operators who fail to comply with the requirements for investigation and corrective action of releases from ASTs shall be subject to the enforcement provisions of W. Va. Code § 22-30-17.