Current through Register Vol. XLI, No. 50, December 13, 2024
Section 60-3-4 - Application to Participate in Voluntary Remediation Program4.1. 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; and4.1.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; and4.1.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; and4.2.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.