ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 288
(By Senators Burdette, Mr. President, and Boley,
By Request of the Executive)
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[Originating in the Committee on Natural Resources;
reported March 31, 1993.]
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A BILL to amend and reenact section two, article five-f, chapter
twenty of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to further amend said
article by adding thereto a new section, designated section
two-b; to amend and reenact section twelve-b, article nine
of said chapter; and to amend and reenact section twelve,
article eleven of said chapter, all relating to definitions;
sewage sludge management; siting approval for solid waste
facilities; effect on facilities with prior approval; and
recycling facilities exemption.
Be it enacted by the Legislature of West Virginia:
That section two, article five-f, chapter twenty of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that said article be further
amended by adding thereto a new section, designated section two-b; that section twelve-b, article nine of said chapter be amended
and reenacted; and that section twelve, article eleven of said
chapter be amended and reenacted, all to read as follows:
ARTICLE 5F. SOLID WASTE MANAGEMENT ACT.
§20-5F-2. Definitions.
Unless the context clearly requires a different meaning, as
used in this article the terms:
(a) "Approved solid waste facility" means a solid waste
facility or practice which has a valid permit under this article.
(b) "Backhauling" means the practice of using the same
container to transport solid waste and to transport any substance
or material used as food by humans, animals raised for human
consumption or reusable item which may be refilled with any
substance or material used as food by humans.
(c) "Chief" means the chief of the office of waste
management of the division of environmental protection.
(d) "Commercial recycler" means any person, corporation or
business entity whose operation involves the mechanical
separation of materials for the purpose of reselling or recycling
at least seventy percent by weight of the materials coming into
the commercial recycling facility.
(e) "Municipal solid waste incineration" means the burning
of any solid waste collected by any municipal or residential
solid waste disposal company.
(f) "Commercial solid waste facility" means any solid waste
facility which accepts solid waste generated by sources other
than the owner or operator of the facility and shall not include
an approved solid waste facility owned and operated by a personfor the sole purpose of disposing of solid wastes created by that
person or such person and other persons on a cost-sharing or
nonprofit basis and shall not include land upon which reused or
recycled materials are legitimately applied for structural fill,
road base, mine reclamation and similar applications.
(g) "Division" means the division of environmental
protection.
(h) "Director" means the director of the division of
environmental protection.
(i) "Open dump" means any solid waste disposal which does
not have a permit under this article, or is in violation of state
law, or where solid waste is disposed in a manner that does not
protect the environment.
(j) "Person" or "persons" mean any industrial user, public
or private corporation, institution, association, firm or company
organized or existing under the laws of this or any other state
or country; state of West Virginia; governmental agency,
including federal facilities; political subdivision; county
commission; municipal corporation; industry; sanitary district;
public service district; drainage district; soil conservation
district; watershed improvement district; partnership; trust;
estate; person or individual; group of persons or individuals
acting individually or as a group; or any legal entity whatever.
(k) "Sludge" means any solid, semisolid, residue or
precipitate, separated from or created by a municipal, commercial
or industrial waste treatment plant, water supply treatment plant
or air pollution control facility or any other such waste having
similar origin.
(l) "Solid waste" means any garbage, paper, litter, refuse,
cans, bottles, waste processed for the express purpose of
incineration; wet, dry or composted sludge from a waste treatment
plant; water supply treatment plant or air pollution control
facility; and other discarded materials, including offensive or
unsightly matter, solid, liquid, semisolid or contained liquid or
gaseous material resulting from industrial, commercial, mining or
community activities but does not include solid or dissolved
material in sewage, or solid or dissolved materials in irrigation
return flows or industrial discharges which are point sources and
have permits under article five-a of this chapter, or source,
special nuclear or byproduct material as defined by the Atomic
Energy Act of 1954, as amended, including any nuclear or
byproduct material considered by federal standards to be below
regulatory concern, or a hazardous waste either identified or
listed under article five-e of this chapter or refuse, slurry,
overburden or other wastes or material resulting from coal-fired
electric power or steam generation, the exploration, development,
production, storage and recovery of coal, oil and gas and other
mineral resources placed or disposed of at a facility which is
regulated under chapter twenty-two, twenty-two-a or twenty-two-b
of this code, so long as such placement or disposal is in
conformance with a permit issued pursuant to such chapters.
(m) "Solid waste disposal" means the practice of disposing
of solid waste including placing, depositing, dumping or throwing
or causing to be placed, deposited, dumped or thrown any solid
waste.
(n) "Solid waste disposal shed" means the geographical areawhich the solid waste management board designates and files in
the state register pursuant to section eight, article twenty-six,
chapter sixteen of this code.
(o) "Solid waste facility" means any system, facility, land,
contiguous land, improvements on the land, structures or other
appurtenances or methods used for processing, recycling or
disposing of solid waste, including landfills, transfer stations,
materials recovery facilities, mixed waste processing facilities,
sewage sludge processing facilities, composting facilities and
other such facilities not herein specified, but not including
land upon which sewage sludge is applied in accordance with
subsection (b), section two-b, of this article. Such facility
shall be deemed to be situated, for purposes of this article, in
the county where the majority of the spatial area of such
facility is located:
Provided, That a salvage yard, licensed and
regulated pursuant to the terms of article twenty-three, chapter
seventeen of this code, is not a solid waste facility.
(p) "Class A facility" means a commercial solid waste
facility which handles an aggregate of between ten thousand and
thirty thousand tons of solid waste per month. Class A facility
shall include two or more Class B solid waste landfills owned or
operated by the same person in the same county, if the aggregate
tons of solid waste handled per month by such landfills exceeds
nine thousand nine hundred ninety-nine tons of solid waste per
month.
(q) "Applicant" means the person applying for a commercial
solid waste facility permit or similar renewal permit and any
person related to such person by virtue of common ownership,common management or family relationships as the director of the
division of environmental protection may specify, including the
following: Spouses, parents and children and siblings.
(r) "Energy recovery incinerator" means any solid waste
facility at which solid wastes are incinerated with the intention
of using the resulting energy for the generation of steam,
electricity or any other use not specified herein.
(s) "Incineration technologies" means any technology that
uses controlled flame combustion to thermally break down solid
waste, including refuse-derived fuel, to an ash residue that
contains little or no combustible materials, regardless of
whether the purpose is processing, disposal, electric or steam
generation or any other method by which solid waste is
incinerated.
(t) "Incinerator" means an enclosed device using controlled
flame combustion to thermally break down solid waste, including
refuse-derived fuel, to an ash residue that contains little or no
combustible materials.
(u) "Materials recovery facility" means any solid waste
facility at which source-separated materials or materials
recovered through a mixed waste processing facility are manually
or mechanically shredded or separated for purposes of reuse and
recycling, but does not include a composting facility.
(v) "Source-separated materials" means materials separated
from general solid waste at the point of origin for the purpose
of reuse and recycling but does not mean wet, dry or composted
sewage sludge.
(w) "Mixed waste processing facility" means any solid wastefacility at which materials are recovered from mixed solid waste
through manual or mechanical means for purposes of reuse,
recycling or composting.
(x) "Mixed solid waste" means solid waste from which
materials sought to be reused or recycled have not been source-
separated from general solid waste.
(y) "Composting facility" means any solid waste facility
processing solid waste by composting, including sludge
composting, organic waste or yard waste composting, but does not
include a facility for composting solid waste that is located at
the site where the waste was generated.
(z) "Recycling facility" means any solid waste facility for
the purpose of recycling at which neither land disposal nor
biological, chemical or thermal transformation of solid waste
occurs:
Provided, That mixed waste recovery facilities, sludge
processing facilities and composting facilities are not
considered recycling facilities nor considered to be reusing or
recycling solid waste within the meaning of this article and
articles nine and eleven of this chapter.
(aa) "Landfill" means any solid waste facility for the
disposal of solid waste on land. Such facility is situated, for
purposes of this article, in the county where the majority of the
spatial area of such facility is located.
(bb) "Sewage sludge processing facility" is a solid waste
facility that processes sewage sludge for land application,
incineration or disposal at an approved landfill. Such processes
include, but are not limited to, composting, lime stabilization,
thermophilic digestion and anaerobic digestion.
(cc) "Bulking agent" means any material mixed and composted
with sewage sludge.
(dd) "Sewage sludge" means solid, semi-solid or liquid
residue generated during the treatment of domestic sewage in a
treatment works. Sewage sludge includes, but is not limited to,
domestic septage, scum or solids removed in primary, secondary or
advanced wastewater treatment processes and a material derived
from sewage sludge. "Sewage sludge" does not include ash
generated during the firing of sewage sludge in a sewage sludge
incinerator.
(ee) "Composting" means the aerobic, thermophilic
decomposition of natural constituents of solid waste to produce
a stable, humus-like material.
(ff) "Agronomic rate" means the whole sewage sludge
application rate, by dry weight, designed:
(1) To provide the amount of nitrogen needed by the food
crop, feed crop, fiber crop, cover crop or vegetation on the
land; and
(2) To minimize the amount of nitrogen in the sewage sludge
that passes below the root zone of the crop or vegetation grown
on the land to the ground water.
§20-5F-2b. Sewage sludge management.
(a) The division shall develop and implement a comprehensive
program for the regulation and management of sewage sludge. The
division is authorized to require permits for all facilities and
activities which generate, process or dispose of sewage sludge by
whatever means, including, but not limited to, land application,
composting, mixed waste composting, incineration or any othermethod of handling sewage sludge within the state.
(b) The director shall promulgate rules necessary for the
efficient and orderly regulation of sewage sludge no later than
ninety days after the effective date of this article. The
Legislature finds and declares that conditions warranting a rule
to be promulgated as an emergency rule do exist and that the
promulgation of the initial rule required by this section should
be accorded emergency status. All rules, whether emergency or
not, promulgated pursuant to this section shall assure, at a
minimum, the following:
(1) That entities either producing sewage sludge within the
state or importing sewage sludge into the state are required to
report to the division the following:
(i) The specific source of the sewage sludge;
(ii) The amount of sewage sludge actually generated or
imported;
(iii) The content of heavy metals, pathogens, toxins or
vectors present in the sewage sludge; and
(iv) Each location that the sewage sludge is stored, land
applied or otherwise disposed of; the amount so stored, land
applied or otherwise disposed of; and the capacity of that
location to accept sewage sludge;
(2) That the division engage in reasonable and periodic
monitoring of all sewage sludge related activities and to monitor
data supplied by sewage sludge producers or importers to ensure
compliance with state and federal regulations;
(3) That representatives of the division have the ability to
enter onto any land application site for the purposes ofinspecting and analyzing the effects of sewage sludge application
on that site;
(4) That no permit for the processing or disposal of sewage
sludge will be issued until there is an accurate finding that it
has been adequately tested and shown not to contain heavy metals,
pathogens, toxins or vectors in excess of regulatory standards;
(5) That the director may require a surety bond, deposit or
similar instrument in an amount sufficient to cover the costs of
future environmental remediation from producers and importers of
sewage.
(6) That no person or entity be allowed to apply sewage
sludge to land in a manner that will result in exceeding the
maximum soil concentration for all pollutants, including, but not
limited to, arsenic, cadmium, chromium, copper, lead, mercury,
molybdenum, nickel, selinium and zinc;
(7) That no land, except a solid waste facility, be allowed
to accept or store so much sewage sludge as to exceed the
agronomic rate or a rate of fifteen dry tons per acre per year,
whichever is less:
Provided, That up to twenty-five dry tons per
acre per year may be applied in the reclamation of surface mine
land;
(8) That information relating to the disposal of wet, dry or
composted sewage sludge is available to affected communities;
(9) That all sewage sludge processing facilities contain
sufficient design specifications to protect ground and surface
waters;
(10) That regulation of composting facilities varies
according to types and quantities of materials handled; and
(11) That only living or dead plant tissues are used as
bulking agents in sewage sludge processing facilities.
(c) For those publicly owned treatment works (POTW) which
produce sewage sludge and are regulated by the division pursuant
to an NPDES permit required under article five-a of this chapter,
a sewage sludge processing permit shall be a part of the existing
water pollution control permit and shall include a sewage sludge
management plan approved by the chief.
(d) On and after the effective date of this section, any
facility seeking to land apply, compost, incinerate or recycle
sewage sludge shall first apply for and obtain a permit from the
division. No such permit may be issued until the regulation
provided for in subsection (b) of this section is effective.
(e) All wet, dry or composted sewage sludge placed in, or
upon, or used by a solid waste facility, or processed, or
handled, pursuant to a permit issued by the division of
environmental protection, shall be subject to the same tipping
and other fees levied by this chapter on the disposal of solid
waste, and shall be included in said facility's total tonnage,
subject to the limitations established in this article and the
provisions of article nine of this chapter.
ARTICLE 9. COUNTY AND REGIONAL SOLID WASTE AUTHORITIES.
§20-9-12b. Siting approval for solid waste facilities; effect
on facilities with prior approval.
(a) It is the intent of the Legislature that all commercial
solid waste facilities operating in this state must receive site
approval at the local level, except for recycling facilities, as
defined in section two, article five-f of this chapter, that arespecifically exempted by section twelve, article eleven of this
chapter. Notwithstanding said intent, facilities which obtained
such approval from either a county or regional solid waste
authority, or from a county commission, under any prior enactment
in this code, and facilities which were otherwise exempted from
local site approval under any prior enactment in this code, shall
be deemed to have satisfied such requirement. All other
facilities, including facilities which received such local
approval but which seek to expand spatial area or to convert from
a Class B facility to a Class A facility, shall obtain such
approval only in the manner specified in sections twelve-c,
twelve-d and twelve-e of this article.
(b) In considering whether to issue or deny the certificate
of site approval as specified in sections twelve-c, twelve-d and
twelve-e of this article, the county or regional solid waste
authority or county commission shall base its determination upon
the following criteria: The efficient disposal of solid waste
generated within the county or region, economic development,
transportation facilities, property values, groundwater and
surface waters, geological and hydrological conditions, aesthetic
and environmental quality, historic or cultural resources, the
present or potential land uses for residential, commercial,
recreational, industrial or environmental conservation purposes
and the public health, welfare and convenience.
(c) The county or regional solid waste authority, or county
commission, as appropriate, shall complete findings of fact and
conclusions relating to the criteria authorized in subsection (b)
hereof which support its decision to issue or deny a certificateof site approval.
(d) The siting approval requirements for composting
facilities, materials recovery facilities and mixed waste
processing facilities shall be the same as those for other solid
waste facilities.
ARTICLE 11. WEST VIRGINIA RECYCLING PROGRAM.
§20-11-12. Recycling facilities exemption.
Recycling facilities, as defined in section two, article
five-f of this chapter, whose only function is to accept free-of-
charge, buy or transfer source separated material or recycled
material for resale or transfer for further processing shall be
exempt from the provisions of articles five-f and nine of this
chapter and sections one-c and one-f, article two, chapter
twenty-four of this code.