ENGROSSED
Senate Bill No. 178
(By Senators Oliverio, Bowman, Hunter,
Ross,
Snyder, Deem, Scott, Kessler, White, Dittmar,
Anderson, McKenzie, Ball, Prezioso and Sharpe)
____________
[Introduced January 19, 1998;
referred to the Committee on the Judiciary.]
____________
A BILL to amend and reenact sections one, two, five, eight, nine,
ten, twelve, fifteen and twenty, article fifteen, chapter
twenty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to further amend said article
by adding thereto three new sections, designated sections
nine-a, nine-b and nine-c; to amend and reenact sections one,
two, eight, twenty-four, twenty-five, twenty-six, twenty-seven
and twenty-eight, article four, chapter twenty-two-c of said
code; and to amend and reenact section one-c, article two,
chapter twenty-four of said code, all relating generally to
solid waste management; stating purpose and legislative
findings; providing definitions; establishing powers and duties of the director; providing for rulemaking; limiting the
size of solid waste facilities; requiring the director to
consider certain things in determining facility size;
explaining legislative findings and purpose for local
participation; providing for local participation by
referendum; mandating referendum for new Class A facilities;
allowing petition for referendum for conversion of Class B
facility to a Class A facility; requiring the receipt of a
certificate of need prior to referendum; allowing petition for
referendum when seeking to increase the maximum allowable
monthly tonnage of Class A facilities; prohibiting open dumps;
requiring permits; prohibiting discrimination by a commercial
solid waste facility based on origin of waste; providing for
performance bonds; establishing bond requirements;
establishing period of bond liability; providing for sewage
sludge management; requiring tipping fees for sewage sludge
disposed of in a landfill cell; prohibiting use of sewage
sludge as daily cover; prohibiting treatment retention or
storage of sewage sludge in excess of one hundred tons or more
than one hundred cubic yards; prohibiting transportation of
sludge in violation of this chapter; requiring proportional
output of sludge to intake of sludge; providing that persons
retaining or storing sewage sludge in violation of this
chapter is deemed to be operating an open dump; requiring recordkeeping; overcoming presumption; providing for orders,
inspections and enforcement; providing civil and criminal
penalties; providing for compliance agreements; providing
legislative findings and purposes relating to county and
regional solid waste authorities; providing definitions;
authorizing development of litter and solid waste control
plan; providing for approval by solid waste management board;
developing of plan by director; providing for advisory rules;
providing for commercial solid waste facility siting plan;
providing for facilities subject to plan; establishing
criteria; providing for approval by solid waste management
board; providing for public hearings; providing for rules;
providing that previously established solid waste management
plans, litter control and recycling plans remain in effect to
the extent they are not discriminatory; providing for site
approval for solid waste facilities; providing for approval of
new Class A facilities, conversion from Class B to Class A and
increasing maximum allowable monthly tonnage of Class A
facilities by solid waste authorities; establishing powers and
duties of public service commission; requiring certificate of
need for solid waste facilities; and requiring public service
commission to promulgate rules.
Be it enacted by the Legislature of West Virginia:
That sections one, two, five, eight, nine, ten, twelve, fifteen and twenty, article fifteen, chapter twenty-two 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 three new sections, designated sections nine-a,
nine-b and nine-c; that sections one, two, eight, twenty-four,
twenty-five, twenty-six, twenty-seven and twenty-eight, article
four, chapter twenty-two-c of said code be amended and reenacted;
and that section one-c, article two, chapter twenty-four of said
code be amended and reenacted, all to read as follows:
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 15. SOLID WASTE MANAGEMENT ACT.
§22-15-1. Purpose and legislative findings.
(a) The purpose of this article is to establish a
comprehensive program of controlling all phases of solid waste
management.
(b) The Legislature finds that solid waste disposal is a
universal problem for all of the United States and that West
Virginia is committed to participating in the waste stream market
and not interfering with the free flow of solid waste into or out
of this state. However, the Legislature also recognizes that solid
waste disposal has inherent long-term environmental, health and
infrastructure impacts on the local communities where the
facilities are located. It is the Legislature's intent to
establish reasonable uniform requirements on all waste disposed of in this state regardless of origin. Because of the importance and
impact associated with the location and operation of solid waste
facilities, this article establishes a thorough and balanced
application and regulatory process which provides an efficient and
reasonable permitting process while affording the state and its
citizens full and fair participation in decisions associated with
the location, operation and oversight of the waste collection and
disposal process.
(b) (c) The Legislature
further finds that solid waste
disposal has inherent risks and negative impact on local
communities and specifically finds the following:
(1)
Uncontrolled, inadequately controlled and improper collection,
transportation, processing and disposal of solid waste
(1) is a
public nuisance and a clear and present danger to people; (2)
provides harborages and breeding places for disease-carrying,
injurious insects, rodents and other pests harmful to the public
health, safety and welfare; (3) constitutes a danger to livestock
and domestic animals; (4) decreases the value of private and public
property, causes pollution, blight and deterioration of the natural
beauty and resources of the state and has adverse economic and
social effects on the state and its citizens; (5) results in the
squandering of valuable nonrenewable and nonreplenishable resources
contained in solid waste; (6) that resource recovery and recycling
reduces the need for landfills and extends their life; and that (7) proper disposal, resource recovery or recycling of solid waste is
for the general welfare of the citizens of this state.
(c) The Legislature further finds that the disposal in West
Virginia of solid waste from unknown origins threatens the
environment and the public health, safety and welfare in the
vicinity of the disposal area, and therefore, it is in the interest
of the public to identify the type, amount and origin source of
solid waste accepted for disposal at West Virginia solid waste
facilities.
(d) The Legislature
further also finds that other states of
these United States of America have imposed stringent standards
for the proper collection and disposal of solid waste and that the
relative lack of such standards and enforcement for such activities
in West Virginia has resulted in the
importation and disposal in
the state of increasingly large amounts of infectious, dangerous
and undesirable solid wastes and hazardous waste by persons and
firms who wish to avoid the costs and requirements for proper,
effective and safe disposal of such wastes.
(e) The Legislature further finds that Class A landfills often
have capacities far exceeding the needs of the state or the areas
of the state which they serve and that such landfills create
special environmental problems that require statewide coordination
of the management of such landfills.
(f) The Legislature further finds based upon engineering, environmental concerns, land use planning, transportation system
networks, public health, safety and welfare, the amount of solid
waste disposed of by solid waste facilities must be limited in
order to protect this state's environment and the public in general
against adverse impact.
(f) (g) The Legislature further finds that incineration
technologies present potentially significant health and
environmental problems.
(g) (h) The Legislature further finds that there is a need for
efforts to continue to evaluate the viability of future
incineration technologies that are both environmentally sound and
economically feasible.
§22-15-2. Definitions.
Unless the context clearly requires a different meaning, as
used in this article the terms:
(1) "Agronomic rate" means the whole sewage sludge application
rate, by dry weight, designed:
(A) To provide the amount of nitrogen needed by the food crop,
feed crop, fiber crop, cover crop or vegetation on the land; and
(B) 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 groundwater.
(2) "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 may specify,
including the following: Spouses, parents and children and
siblings.
(3) "Approved solid waste facility" means a solid waste
facility or practice which has a valid permit under this article.
(4) "Back hauling" 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.
(5) "Bulking agent" means any material mixed and composted
with sewage sludge.
(6) "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 includes
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.
(7) "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.
(8) "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 does not include an
approved solid waste facility owned and operated by a person for
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 does not include land upon which reused or
recycled materials are legitimately applied for structural fill,
road base, mine reclamation and similar applications.
(9) "Compost" means a humus like material resulting from
aerobic, microbial, thermophilic decomposition of organic
materials.
(9) (10) "Composting" means the aerobic, thermophilic
decomposition of natural constituents of solid waste to produce a
stable, humus-like material.
(10) (11) "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. solid waste facility owned and
operated by an individual for the sole purpose of composting waste
created by that individual or other individuals on a cost sharing
or nonprofit basis and shall not include land upon which finished compost is applied for use as a soil amendment or conditioner.
(12) "Cured compost" or "finished compost" means compost which
has a very low microbial or decomposition rate which will not
reheat or cause odors when put into storage and that has been put
through a separate aerated curing cycle stage of thirty to sixty
days after and initial composting cycle.
(11)(13) "Director" means the director of the division of
environmental protection or such other person to whom the director
has delegated authority or duties pursuant to article one, chapter
twenty-two of this code.
(12)(14) "Division" means the division of environmental
protection.
(13)(15) "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.
(14)(16) "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.
(15)(17) "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.
(16)(18) "Landfill" means any solid waste facility for the
disposal of solid waste on
or in the land
for the purpose of
permanent disposal or storage. Such facility is situated, for
purposes of this article, in the county where the majority of the
spatial area of such facility is located.
(17)(19) "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.
(20) "Mature compost" means compost which has been produced in
an aerobic, thermophylic manner and does not exhibit phytotoxic
effects.
(18)(21) "Mixed solid waste" means solid waste from which
materials sought to be reused or recycled have not been source- separated from general solid waste.
(19)(22) "Mixed waste processing facility" means any solid
waste facility at which materials are recovered from mixed solid
waste through manual or mechanical means for purposes of reuse,
recycling or composting.
(20)(23) "Municipal solid waste incineration" means the
burning of any solid waste collected by any municipal or residential solid waste disposal company.
(21)(24) "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.
(22)(25) "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.
(26) "Publicly owned treatment works" means any facility which
processes raw domestic or municipal sewage by any artificial or
natural processes in order to remove or so alter constituents as to
render the waste less offensive or dangerous to the public health,
comfort or property of any of the inhabitants of this state, before
the discharge of the plant effluent into any of the waters of this
state, and which produces sewage sludge.
(23) (27) "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.
(24) (28) "Sewage sludge" means solid, semisolid 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.
(25) (29) "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.
(26) (30) "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.
(27) (31) "Solid waste" means any garbage, paper, litter, refuse, cans, bottles, waste processed for the express purpose of
incineration; 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.
(28) (32) "Solid waste disposal" means the practice of
disposing of solid waste including placing, depositing, dumping or
throwing or causing any solid waste to be placed, deposited, dumped or thrown.
(29) (33) "Solid waste disposal shed" means the geographical
area which the solid waste management board designates and files in
the state register pursuant to section eight, article twenty-six,
chapter sixteen of this code.
(30) (34) "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 section twenty 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.
(31) (35) "Solid waste facility operator" means any person or
persons possessing or exercising operational, managerial or
financial control over a commercial solid waste facility, whether
or not such person holds a certificate of convenience and necessity
or a permit for such facility.
(32) (36) "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 sewage sludge.
§22-15-5. Powers and duties; rules and rulemaking.
In addition to all other powers, duties, responsibilities and
authority granted and assigned to the director in this code and
elsewhere described by law, the director is empowered as follows:
(a) The director shall
propose for promulgate legislative
promulgation, rules
in compliance with the West Virginia
administrative procedures act pursuant to the provisions of article
three, chapter twenty-nine-a of this code to carry out the
provisions of this article including modifying any existing rules
and establishing permit application fees up to an amount sufficient
to defray the costs of permit review. In
promulgating developing
the rules the director shall consider and establish requirements
based on the quantity of solid waste to be handled, including
different requirements for solid waste facilities or approved solid
waste facilities which handle more than one hundred tons of solid
waste per day, the environmental impact of solid waste disposal,
the nature,
origin source or characteristics of the solid waste,
potential for contamination of
public water supply, ground, surface
and potable waters, requirements for public roadway standards and
design for access to the facilities with approval by the
commissioner of the division of highways,
public sentiment, the financial capability of the applicant, soil and geological
considerations
, environmental and other natural resource
considerations.
(b) The director, after public notice and opportunity for
public hearing near the affected community, may issue a permit with
reasonable terms and conditions for installation, establishment,
modification, operation or closure of a solid waste facility:
Provided, That the director may deny the issuance of a permit on
the basis of information in the application or from other sources
including public comment, if the solid waste facility is likely to
cause adverse impacts on the environment. The director may also
prohibit the installation or establishment of specific types and
sizes of solid waste facilities in a specified geographical area of
the state based on the above cited factor and may delete such
geographical area from consideration for that type and size solid
waste facility.
(c) The director may refuse to grant any permit if he or she
has reasonable cause to believe, as indicated by documented
evidence, that the applicant, or any officer, director or manager,
thereof, or person owning a five percent or more interest,
beneficial or otherwise, or other person conducting or managing the
affairs of the applicant or of the proposed licensed premises, in
whole or in part:
(1) Has demonstrated, either by his or her police record or by his or her record as a permittee under articles eleven through
nineteen of this chapter or chapter twenty of this code, a lack of
respect for law and order, generally, or for the laws and rules
governing the disposal of solid wastes;
(2) Has misrepresented a material fact in applying to the
director for a permit;
(3) Has been convicted of a felony or other crime involving
moral turpitude;
(4) Has exhibited a pattern of violating environmental laws in
any state or the United States or combination thereof; or
(5) Has had any permit revoked under the environmental laws of
any state or the United States.
(d) The director or any authorized representative, employee or
agent of the division may, at reasonable times, enter onto any
approved solid waste facility, open dump or property where solid
waste is present for the purpose of making an inspection or
investigation of solid waste disposal.
(e) The director or any authorized representative, employee or
agent of the division may, at reasonable times, enter any approved
solid waste facility, open dump or property where solid waste is
present and take samples of the waste, soils, air or water or may,
upon issuance of an order, require any person to take and analyze
samples of such waste, soil, air or water.
(f) The director may also perform or require a person, by order, to perform any and all acts necessary to carry out the
provisions of this article or the rules promulgated thereunder.
(g) The director or his or her authorized representative,
employee or agent shall make periodic inspections at every approved
solid waste facility to effectively implement and enforce the
requirements of this article or its rules and may, in coordination
with the commissioner of the division of highways, conduct at weigh
stations or any other adequate site or facility inspections of
solid waste in transit.
(h) The director shall require and set the amount of
performance bonds for persons engaged in the practice of solid
waste disposal in this state, pursuant to section twelve of this
article.
(i) The director shall require: (1) That persons disposing of
solid waste at commercial solid waste facilities within the state
file with the operator of the commercial solid waste facility
records concerning the type, amount and origin of solid waste
disposed of by them; and (2) that operators of commercial solid
waste facilities within the state maintain records and file them
with the director concerning the type, amount and origin of solid
waste accepted by them.
(j) Identification of interests. -- The director shall require
an applicant for a solid waste facility permit to provide the
following information:
(1) The names, addresses and telephone numbers of:
(A) The permit applicant;
(B) Any other person conducting or managing the affairs of the
applicant or of the proposed permitted premises, including any
contractor for gas or energy recovery from the proposed operation,
if the contractor is a person other than the applicant; and
(C) Parties related to the applicant by blood, marriage or
business association, including the relationship to the applicant.
(2) The names and addresses of the owners of record of surface
and subsurface areas within, and contiguous to, the proposed permit
area.
(3) The names and addresses of the holders of record to a
leasehold interest in surface or subsurface areas within, and
contiguous to, the proposed permit area.
(4) A statement of whether the applicant is an individual,
corporation, partnership, limited partnership, government agency,
proprietorship, municipality, syndicate, joint venture or other
entity. For applicants other than sole proprietorships, the
application shall contain the following information, if applicable:
(A) Names and addresses of every officer, general and limited
partner, director and other persons performing a function similar
to a director of the applicant;
(B) For corporations, the principal shareholders;
(C) For corporations, the names, principal places of businesses and internal revenue service tax identification numbers
of United States parent corporations of the applicant, including
ultimate parent corporations and United States subsidiary
corporations of the applicant and the applicant's parent
corporations; and
(D) Names and addresses of other persons or entities having or
exercising control over any aspect of the proposed facility that is
regulated by the division, including, but not limited to,
associates and agents.
(5) If the applicant or an officer, principal shareholder,
general or limited partner or other related party to the applicant,
has a beneficial interest in, or otherwise manages or controls
another person or municipality engaged in the business of solid
waste collection, transportation, storage, processing, treatment or
disposal, the application shall contain the following information:
(A) The name, address and tax identification number or
employer identification number of the corporation or other person
or municipality; and
(B) The nature of the relationship or participation with the
corporation or other person or municipality.
(6) An application shall list permits or licenses, issued by
the division or other environmental regulatory agency to each
person or municipality identified in paragraph (1) and to other
related parties to the applicant, that are currently in effect or have been in effect in at least part of the previous ten years.
This list shall include the type of permit or license, number,
location, issuance date and when applicable, the expiration date.
(7) An application shall identify the solid waste facilities
in the state which the applicant or a person or municipality
identified in paragraph (1) of this subdivision and other related
parties to the applicant currently owns or operates, or owned or
operated in the previous ten years. For each facility, the
applicant shall identify the location, type of operation and state
or federal permits under which they operate or have operated.
Facilities which are no longer permitted or which were never under
permit shall also be listed.
(k) Compliance information. -- An application shall contain
the following information for the ten-year period prior to the date
on which the application is filed:
(1) A description of notices of violation, including the date,
location, nature and disposition of the violation, that were sent
by the division to the applicant or a related party, concerning any
environmental law, rule, or order of the division, or a condition
of a permit or license. In lieu of a description the applicant may
provide a copy of notices of violation.
(2) A description of administrative orders, civil penalty
assessments and bond forfeiture actions by the division, and civil
penalty actions adjudicated by the state, against the applicant or a related party concerning any environmental law, rule, or order of
the division, or a condition of a permit or license. The
description shall include the date, location, nature and
disposition of the actions. In lieu of a description, the
applicant may provide a copy of the orders, assessments and
actions.
(3) A description of a summary, misdemeanor or felony
conviction, a plea of guilty or plea of no contest that has been
obtained in this state against the applicant or a related party
under any environmental law or rule concerning the storage,
collection, treatment, transportation, processing or disposal of
solid waste. The description shall include the date, location,
nature and disposition of the actions.
(4) A description of a court proceeding concerning any
environmental law or rule that was not described under paragraph
(3) of this subdivision in which the applicant or a related party
has been party. The description shall include the date, location,
nature and disposition of the proceedings.
(5) A description of a consent order, consent adjudication,
consent decree or settlement agreement involving the applicant or
a related party concerning any environmental law or rule in which
the division, other governmental agencies, the United States
environmental protection agency, or a county health department was
a party. The description shall include the date, location, nature and disposition of the action. In lieu of a description, the
applicant may provide a copy of the order, adjudication, a decree
or agreement.
(6) For facilities and activities identified under paragraph
(1) of this subdivision, a statement of whether the facility or
activity was the subject of an administrative order, consent
agreement, consent adjudication, consent order, settlement
agreement, court order, civil penalty, bond forfeiture proceeding,
criminal conviction, guilty or no contest plea to a criminal charge
or permit or license suspension or revocation under the act or the
environmental protection acts. If the facilities or activities
were subject to these actions, the applicant shall state the date,
location, nature and disposition of the violation. In lieu of a
description, the applicant may provide a copy of the appropriate
document. The application shall also state whether the division
has denied a permit application filed by the applicant or a related
party, based on compliance status.
(7) When the applicant is a corporation, a list of the
principal shareholders that have also been principal shareholders
of other corporations which have committed violations of any
environmental law or rule. The list shall include the date,
location, nature and disposition of the violation, and shall
explain the relationship between the principal shareholder and both
the applicant and the other corporation.
(8) A description of a misdemeanor or felony conviction, a
plea of guilty and a plea of no contest, by the applicant or a
related party for violations outside of this state of any
environmental protection laws or regulations. The description
shall include the date of the convictions or pleas, and the date,
location and nature of the offense.
(9) A description of final administrative orders, court
orders, court decrees, consent decrees or adjudications, consent
orders, final civil penalty adjudications, final bond forfeiture
actions or settlement agreements involving the applicant or a
related party for violations outside of this state of any
environmental protection laws or regulations. The description
shall include the date of the action and the location and nature of
the underlying violation. In lieu of a description, the applicant
may provide a copy of the appropriate document.
(l) All of the information provided by the applicant pursuant
to this section is not confidential and
is disclosable may be
disclosed pursuant to the provisions of chapter twenty-nine-b of
this code.
§22-15-8. Limit on the size of solid waste facilities; rulemaking.
(a) On and after the first day of October, one thousand nine
hundred ninety-one, it is unlawful to operate any commercial solid
waste facility that handles between ten thousand and thirty
thousand tons of solid waste per month, except as provided in section nine of this article and sections twenty-six, twenty-seven
and twenty-eight, article four, chapter twenty-two-c of this code.
(b)
Except as provided in section nine of this article, the
The maximum quantity of solid waste which may lawfully be handled
at any commercial solid waste facility is thirty thousand tons per
month.
(c) The director shall, within the limits contained in this
article, place a limit on the amount of solid waste disposed of per
month in commercial solid waste landfill disposal facilities. The
director shall consider at a minimum the following criteria in
determining a solid waste facility's monthly tonnage limit:
(1) The proximity and potential impact of the solid waste
facility upon groundwater, surface water and potable water;
(2) The projected life and design capacity of the solid waste
facility;
(3) The available air space, lined acreage, equipment type and
size, adequate personnel and wastewater treatment capabilities; and
(4) Other factors related to the environmentally safe and
efficient disposal of solid waste.
(d) Within the limits established in this article, the
director shall determine the amount of sewage sludge which may be
safely treated, stored, processed, composted, dumped or placed in
a solid waste facility.
(e) The director shall propose for promulgation emergency and legislative rules pursuant to the provisions of article three,
chapter twenty-nine-a of this code, to effectuate the requirements
of this section. When developing the rules the director shall
consider at a minimum the potential impact of the treatment,
storage, processing, composting, dumping or placing sewage sludge
at a solid waste facility:
(1) On the groundwater, surface waters and potable waters in
the area;
(2) On the air quality in the area;
(3) On the projected life and design capacity of the solid
waste facility;
(4) On the available air space, lined acreage, equipment type
and size, personnel and wastewater treatment capabilities;
(5) The facilities ability to adequately develop markets and
market the product which results from the proper treatment of
sewage sludge; and
(6) Other factors related to the environmentally safe and
efficient treatment, storage, processing, composting, dumping or
placing of sewage sludge at a solid waste facility.
(f) Sewage sludge disposed at a landfill must contain at least
twenty percent solid by weight. This requirement may be met by
adding or blending sand, sawdust, lime, leaves, soil or other
materials that have been approved by the director prior to
disposal. Alternative sludge disposal methods can be utilized upon obtaining written approval from the director. No facility may
accept for land filling in any month sludge in excess of twenty- five percent of the total tons of solid waste accepted at the
facility in the proceeding month.
§22-15-9. Exemption for solid waste facility handling in excess of
thirty thousand tons per month.
(a) Notwithstanding any provision in this article, article
four, chapter twenty-two-c, article two, chapter twenty-four of
this code, any other section of this code, or any prior enactment
of the code to the contrary, and notwithstanding any defects in or
challenges to any actions which were or are required to be
performed in satisfaction of the following criteria, any person who
on the first day of October, one thousand nine hundred ninety-one,
has:
(1) Obtained site approval for a commercial solid waste
facility from a county or regional solid waste authority or county
commission pursuant to a prior enactment of this code, or has
otherwise satisfied the requirements of subsection (a), section
twenty-five, article four, chapter twenty-two-c of this code;
(2) Entered into a contract with a county commission regarding
the construction and operation of a solid waste facility, which
contract contains rates for the disposal of solid waste originating
within the county;
(3) Obtained, pursuant to section one-f, article two, chapter twenty-four of this code, following a public hearing, an order from
the public service commission approving the rates established in
the contract with the county commission; and
(4) An application for a permit for a commercial solid waste
facility pending with the division of environmental protection, or
is operating under a permit or compliance order, is permitted to
handle in excess of the limitation established in section eight of
this article up to fifty thousand tons of solid waste per month at
a commercial solid waste facility so long as the person complies
with the provisions of this section.
(b) Any person desiring to operate a commercial solid waste
facility which handles an amount of solid waste per month in excess
of the limitation established in section eight of this article, but
not exceeding the tonnage limitation described in subsection (a) of
this section may file a notice with the county commission of the
county in which the facility is or is to be located requesting a
county wide referendum. Upon receipt of such notice, the county
commission shall order a referendum be placed upon the ballot, not
less than fifty-six days before the next primary or general
election.
(1) Such referendum will be to determine whether it is the
will of the voters of the county that a commercial solid waste
facility be permitted to handle more than the limitation
established in section eight of this article not to exceed fifty thousand tons per month. Any such election shall be held at the
voting precincts established for holding primary or general
elections. All of the provisions of the general election laws,
when not in conflict with the provisions of this article, apply to
voting and elections hereunder, insofar as practicable.
(2) The ballot, or the ballot labels where voting machines are
used, shall have printed thereon substantially the following:
"Shall a commercial solid waste facility, permitted to handle
up to, but no more than fifty thousand tons of solid waste per
month be located within _________________ County, West Virginia?
/ / For the facility
/ / Against the facility
(Place a cross mark in the square opposite your choice.)"
If a majority of the legal votes cast upon the question is
against the facility handling an amount of solid waste of up to
fifty thousand tons per month then the division shall not proceed
any further with the application. If a majority of the legal votes
cast upon the question is in favor of permitting the facility
within the county, then the application process as set forth in
this article may proceed: Provided, That such vote is not binding
on or require the division to issue a permit.
(c) The county commission shall publish and mail to each voter
in the county, not less than seven days prior to the election, an educational pamphlet fairly and equally explaining the favorable
and unfavorable aspects of expanding the landfill. The pamphlet
must discuss the potential economic, environmental and land use
effects of the increase in landfill capacity. The pamphlet shall
be reviewed by the attorney general to assure that it fairly and
equally presents both sides of the issue.
(c) (d) If a person submits to a referendum in accordance with
this section, all approvals, certificates, and permits granted and
all actions undertaken by a regional or county solid waste
authority or county commission with regard to the person's
commercial solid waste facility within the county under this
article or article four, chapter twenty-two-c, or previously
enacted sections of articles five-f and nine, chapter twenty of
this code are valid, complete and in full compliance with all the
requirements of law and any defects contained in such approvals,
certificates, permits or actions are cured and such defects may not
be invoked to invalidate any such approval, certificate, permit or
action.
(d) (e) Notwithstanding any provision of this code to the
contrary, any person described in subsection (a) of this section
who complies with the referendum requirement of this section and
complies with the permitting requirements of the division provided
in section ten of this article, shall not be required to comply
with the requirements of sections twenty-five, twenty-six, twenty-seven and twenty-eight, article four, chapter twenty-two-c
of this code: Provided, That such person is entitled to receive a
certificate of need pursuant to the provisions of subsection (a),
section one-c, article two, chapter twenty-four of this code to
handle the tonnage level authorized pursuant to subsection (a) of
this section.
(e) (f) The purpose of this section is to allow any person who
satisfies the four criteria contained in subsection (a),
notwithstanding any defects in or challenges to any actions which
were or are required to be performed in satisfaction of such
criteria, to submit the question of siting a facility that accepts
up to fifty thousand tons within the county to a referendum in
order to obtain a decision at the county or regional level
regarding the siting of the facility and that submission of this
question at the county level is the only approval, permit or action
required at the county or regional level to establish and site the
proposed facility.
§22-15-9. Local participation, legislative findings and purposes;
referendum.
(a) The Legislature finds that the potential impacts of
commercial solid waste disposal facilities have a deleterious and
debilitating effect upon the transportation network, property
values, economic growth, environmental quality, other land uses,
and the public health and welfare. These impacts are bore predominantly by the local residents in the communities where the
facilities are located. The Legislature also recognizes that
economic benefits exist for having a solid waste facility,
including new jobs in the local community and increased tax and fee
revenues for the state. The largest of facilities authorized to
operate in West Virginia, Class A facilities, receive up to thirty
thousand tons of solid waste per month. Class A facilities
inevitably cause the most severe impacts to the local area. The
Legislature further finds that Class A facilities cause significant
impact on the local community above and beyond those of smaller
landfills, that this impact requires the local community be
afforded the opportunity to participate in the decision of locating
a landfill of this size in their community. Further, that local
citizens need governmental entities to assure and verify that the
Class A facility will be developed and operated in a manner that
complies will all laws, rules and regulations which regulate
landfills, and that the local infrastructure and environment are
appropriately suited for a Class A facility. As a result, the
Legislature finds that a mechanism must be in place to allow for
the local community to be a significant participant in the Class A
facility siting and expansion decisionmaking process.
(b) Therefore, it is the purpose of the Legislature to allow
the local decision for location of new Class A landfills by county
referendum, and further that a petition process be established to allow demand for a county referendum for expansion of an existing
Class A landfill or redesignation of a Class B landfill to Class A.
§22-15-9a. Approval of new Class A facility.
(a) The purpose of the mandatory referendum for approval of
new Class A facilities is to verify to the local community that the
local infrastructure and environment are appropriately suited for
a new Class A facility and to assure that the local community
accepts the associated benefits and determents of having a new
Class A facility located in their county.
(b) Following receipt of a certificate of need from the public
service commission as required by section one-c, article two,
chapter twenty-four of this code, and local solid waste approval as
required in section twenty-six, article four, chapter twenty-two-c
of this code for a new Class A facility, the county commission
shall cause a referendum to be placed on the ballot not less than
fifty-six days before the next primary, general or other county- wide election:
(1) Such referendum is to determine whether it is the will of
the voters of the county that a new Class A facility be
constructed. Any election at which such question of locating a
solid waste facility is voted upon shall be held at the voting
precincts established for holding primary or general elections.
All of the provisions of the general election laws, when not in
conflict with the provisions of this article, apply to voting and elections hereunder, insofar as practicable.
(2) The ballot, or the ballot labels where voting machines are
used, shall have printed thereon substantially the following:
"The West Virginia Legislature has found that the location of
a Class A solid waste facility has impact to the county in which it
will be located, and further that local citizens should be given
the opportunity to participate in the decision of locating a new
Class A facility in their community. A Class A facility is
authorized to receive between ten and thirty thousand tons of solid
waste per month.
The ________ county commission finds the following:
I. The ______________________(name of applicant) has obtained
site approval for a Class A commercial facility from the
_________________(name of the county or regional solid waste
authority). The applicant has received approval for construction
of the landfill. The authority has determined that the proposed
landfill meets all local siting plan requirements. The local
siting plan evaluates local environmental conditions and other
factors and authorizes commercial landfills in areas of a county
where a commercial landfill can be appropriately located.
II. The West Virginia public service commission has issued a
certificate of need, and has approved the operation of the Class A
landfill. The public service commission has determined that the
landfill complies with the state solid waste management plan, that the permit is necessary based on the anticipated volume of garbage
expected to be received at the landfill, and that the proposal is
consistent with public convenience and necessity.
Please vote whether to approve construction of the facility by
responding to the following question:
Shall the __________ commercial solid waste facility located within
______ County, be permitted to handle between ten and thirty
thousand tons of solid waste per month?"
/ / For the facility
/ / Against the facility
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question is
against the facility, the division of environmental protection
shall not proceed any further with the application. If a majority
of the legal votes cast upon the question be for the facility, then
the application process as set forth in this article and article
fifteen, chapter twenty-two of this code may proceed:
Provided,
That such vote is not binding on nor does it require the division
of environmental protection to issue the permit. If the majority
of the legal votes cast is against the question, the question may
be submitted to a vote at any subsequent election in the manner
herein specified:
Provided, however, That the question may not be resubmitted to a vote until two years after the date of the
previous referendum.
§22-15-9b. Referendum for approval of conversion of a Class B
facility to a Class A facility.
(a) The purpose of the petition and referendum for approval of
conversions of Class B facilities to Class A facilities is to allow
the local community an opportunity to participate in the decision
of whether the local infrastructure and environment are
appropriately suited for expansion of a Class B facility to a Class
A facility, and to assure that the local community accepts the
associated benefits and determents of having a Class A facility
located in their county.
(b) Following receipt of a certificate of need from the public
service commission as required by section one-c, article two,
chapter twenty-four of this code, and local solid waste approval as
required in section twenty-six, article four, chapter twenty-two-c
of this code for a new Class A facility, the county commission
shall publish a Class II legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code, in a
newspaper of general circulation in the counties wherein the solid
waste facility is located. Upon the written petition of registered
voters residing in the county equal to not less than fifteen
percent of the number of votes cast within the county for governor
at the preceding gubernatorial election, which petition shall be filed with the county commission within sixty days after the last
date of publication of the notice provided in this section, the
county commission shall, upon verification of the required number
of signatures on the petition, and not less than fifty-six days
before the election, order a referendum be placed upon the ballot.
Any referendum conducted pursuant to this section shall be held at
the next primary, general or other county-wide election:
(1) Such referendum is to determine whether it is the will of
the voters of the county that the Class B facility be converted to
a Class A facility. Any election at which such question of
locating a solid waste facility is voted upon shall be held at the
voting precincts established for holding primary or general
elections. All of the provisions of the general election laws,
when not in conflict with the provisions of this article, apply to
voting and elections hereunder, insofar as practicable. The
secretary of state shall prescribe the form of the petition which
shall include the printed name, address and date of birth of each
person whose signature appears on the petition.
(2) The ballot, or the ballot labels where voting machines are
used, shall have printed thereon substantially the following:
"The West Virginia Legislature finds that expansion of a Class
B solid waste facility to a Class A solid waste facility has impact
to the county in which it will be located, and further that local
citizens should be afforded the opportunity to participate in the decision of locating a Class A facility in their community. A
Class A facility is authorized to receive between ten and thirty
thousand tons of solid waste per month. Fifteen percent of the
registered voters in ________________ county have signed a petition
to cause a referendum to determine the following question:
The ________ county commission finds the following:
A. The __________________(name of applicant)has obtained site
approval for a Class A commercial facility from the
_________________(Name of the county or regional solid waste
authority). The applicant has received approval for expansion of
the landfill from a Class B to a Class A landfill. The authority
has determined that the proposed landfill meets all local siting
plan requirements. The local siting plan evaluates local
environmental conditions and other factors and authorizes
commercial landfills where a commercial landfill can be
appropriately located.
B. The West Virginia public service commission has issued a
certificate of need, and has approved the operation of the Class A
landfill. The public service commission has determined that the
landfill complies with the state solid waste management plan, that
the permit is necessary based on the anticipated volume of garbage
expected to be received at the landfill, and that the proposal is
consistent with public convenience and necessity.
Please vote whether to approve construction of the facility by responding to the following question:
Shall the ____________________________ solid waste facility,
located within ________________________ County, West Virginia, be
permitted to handle between ten and thirty thousand tons of solid
waste per month?
/ / For the facility
/ / Against the facility
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question is
against the facility, then the division of environmental protection
shall not proceed any further with the application. If a majority
of the legal votes cast upon the question be for the facility, then
the application process as set forth in this article and article
fifteen, chapter twenty-two of this code may proceed:
Provided,
That such vote is not binding on nor does it require the division
of environmental protection to modify the permit. If the majority
of the legal votes cast is against the question, the question may
be submitted to a vote at any subsequent election in the manner
herein specified:
Provided, however, That the question may not be
resubmitted to a vote until two years after the date of the
previous referendum.
§22C-4-9c. Approval of increase in maximum allowable monthly
tonnage of Class A facilities.
(a) The purpose of the petition and referendum for approval of
modification of Class A facilities is to allow the local community
an opportunity to participate in the decision of whether the local
infrastructure and environment are appropriately suited for
expansion of the Class A facility, and to assure that the local
community accepts the associated benefits and determents of having
a Class A facility located in their county.
(b) Following receipt of a certificate of need from the public
service commission as required by section one-c, article two,
chapter twenty-four of this code, and local solid waste approval as
required in section twenty-six, article four, chapter twenty-two-c
of this code for a new Class A facility, the county commission
shall publish a Class II legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code, in a
newspaper of general circulation in the counties wherein the solid
waste facility is located. Upon the written petition of registered
voters residing in the county equal to not less than fifteen
percent of the number of votes cast within the county for governor
at the preceding gubernatorial election, which petition shall be
filed with the county commission within sixty days after the last
date of publication of the notice provided in this section, the
county commission shall, upon verification of the required number
of signatures on the petition, and not less than fifty-six days
before the election, order a referendum be placed upon the ballot. Any referendum conducted pursuant to this section shall be held at
the next primary, general or other county-wide election:
(1) Such referendum is to determine whether it is the will of
the voters of the county that the Class A facility applicant be
permitted to increase the maximum tonnage allowed to be handled at
the facility not to exceed thirty thousand tons per month. Any
election at which such question is voted upon shall be held at the
voting precincts established for holding primary or general
elections. All of the provisions of the general election laws,
when not in conflict with the provisions of this article, apply to
voting and elections hereunder, insofar as practicable. The
secretary of state shall prescribe the form of the petition which
shall include the printed name, address and date of birth of each
person whose signature appears on the petition.
(2) The ballot, or the ballot labels where voting machines are
used, shall have printed thereon substantially the following:
"The West Virginia Legislature finds that expansion of a Class
A solid waste facility has significant impact to the community in
which it will be located, and further that local citizens should be
afforded the opportunity to participate in the decision of locating
a Class A facility in their community. The____________ facility is
currently authorized to receive________ thousand tons of solid
waste per month. The____________ facility is proposing to be
authorized to receive________ thousand tons of solid waste per month. Fifteen percent of the registered voters in
________________ County have signed a petition to cause a
referendum to determine the following question:
The _____________ county commission finds the following:
I. The __________________(name of applicant)has obtained site
approval to expand a Class A commercial facility from the
_________________(Name of the county or regional solid waste
authority). The applicant has received approval for expansion of
the landfill. The authority has determined that the proposed
landfill meets all local siting plan requirements. The local siting
plan evaluates local environmental conditions and other factors and
authorizes commercial landfills where a commercial landfill can be
appropriately located.
II. The West Virginia public service commission has issued a
certificate of need, and has approved the expansion of the Class A
landfill. The public service commission has determined that the
landfill complies with the state solid waste management plan, that
the expansion is necessary based on the anticipated volume of
garbage expected to be received at the landfill, and that the
proposal is consistent with public convenience and necessity.
Please vote whether to approve construction of the facility by
responding to the following question:
Shall the ______________ solid waste facility located within
___________ County, West Virginia, be allowed to handle a maximum of ___________ solid waste per month?
/ / For the increase in maximum allowable tonnage
/ / Against the increase in maximum allowable tonnage
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question is
against allowing the Class A facility to increase the maximum
tonnage of solid waste allowed to be handled per month at the
facility, then the division of environmental protection shall not
proceed to modify the Class A facility permit to increase the
maximum allowable tonnage. If a majority of the legal votes cast
upon the question is for allowing the Class A facility to increase
the maximum tonnage of solid waste allowed to be handled per month
at such facility, then the application process as set forth in this
article and article fifteen, chapter twenty-two of this code may
proceed:
Provided, That such vote is not binding on nor does it
require the county or regional solid waste authority or the
division of environmental protection to approve an application to
modify the permit. If the majority of the legal votes cast is
against the question, that does not prevent the question from again
being submitted to a vote at any subsequent election in the manner
provided for in this section:
Provided, however, That an applicant may not resubmit the question for a vote prior to a period of two
years from the date of the previous referendum herein described.
§22-15-10. Prohibitions; permits required; priority of disposal.
(a) Open dumps are prohibited and it is unlawful for any
person to create, contribute to or operate an open dump or for any
landowner to allow an open dump to exist on the landowner's
property unless that open dump is under a compliance schedule
approved by the director. Such compliance schedule shall contain
an enforceable sequence of actions leading to compliance and shall
not exceed two years. Open dumps operated prior to the first day
of April, one thousand nine hundred eighty-eight, by a landowner or
tenant for the disposal of solid waste generated by the landowner
or tenant at his or her residence or farm are not a violation of
this section if such open dump did not constitute a violation of
law on the first day of January, one thousand nine hundred
eighty-eight, and unauthorized dumps which were created by unknown
persons do not constitute a violation of this section:
Provided,
That no person
shall may contribute additional solid waste to any
such dump after the first day of April, one thousand nine hundred
eighty-eight, except that the owners of the land on which
unauthorized dumps have been or are being made are not liable for
such unauthorized dumping unless such landowners refuse to
cooperate with the division in stopping such unauthorized dumping.
(b) It is unlawful for any person, unless the person holds a valid permit from the division to install, establish, construct,
modify, operate or abandon any solid waste facility. All approved
solid waste facilities shall be installed, established,
constructed, modified, operated or abandoned in accordance with
this article, plans, specifications, orders, instructions and rules
in effect.
(c) Any permit issued under this article shall be issued in
compliance with the requirements of this article, its rules and
article eleven of this chapter and the rules promulgated
thereunder, so that only a single permit is required of a solid
waste facility under these two articles. Each permit issued under
this article shall have a fixed term not to exceed five years:
Provided, That the director may administratively extend a permit
beyond its five-year term if the approved solid waste facility is
in compliance with this article, its rules and article eleven of
this chapter and the rules promulgated thereunder:
Provided,
however, That such administrative extension may not be for more
than one year. Upon expiration of a permit, renewal permits may be
issued in compliance with rules promulgated by the director.
(d) For existing solid waste facilities which formerly held
division of health permits which expired by law and for which
complete permit applications for new permits pursuant to this
article were submitted as required by law, the division may enter
an administrative order to govern solid waste activities at such facilities, which may include a compliance schedule, consistent
with the requirements of the division's solid waste management
rules, to be effective until final action is taken to issue or deny
a permit for such facility pursuant to this article, or until
further order of the division.
(e) No person may dispose in the state of any solid waste,
whether such waste originates in state or out of state, in a manner
which endangers the environment or the public health, safety or
welfare as determined by the director:
Provided, That the
carcasses of dead animals may be disposed of in any solid waste
facility or in any other manner as provided for in this code. Upon
request by the director, the commissioner of the bureau of public
health shall provide technical advice concerning the disposal of
solid waste or carcasses of dead animals within the state.
(f)
A commercial solid waste facility shall first ensure that
the disposal needs of the wasteshed in which it is located are met.
If one or more local solid waste authorities in the wasteshed in
which the facility is located determine that the present or future
disposal needs of the wasteshed are not being, or will not be, met
by the commercial solid waste facility, such authorities may apply
to the director o to modify the applicable permit. The director,
in consultation with the solid waste management board, may then
modify the applicable permit in order to reduce the total monthly
tonnage of out of wasteshed waste the facility is permitted to accept by an amount that shall not exceed the total monthly tonnage
necessary to ensure the disposal needs of the wasteshed in which
the facility is located A commercial solid waste facility shall
not discriminate in favor of or against the receipt of any waste
otherwise eligible for disposal at the facility based on its
geographic origin.
(g) In addition to all the requirements of this article and
the rules promulgated hereunder, a permit to construct a new
commercial solid waste facility or to expand the spatial area of an
existing facility, not otherwise allowed by an existing permit, may
not be issued unless the public service commission has granted a
certificate of need, as provided in section one-c, article two,
chapter twenty-four of this code. If the director approves a
permit or permit modification, the certificate of need shall become
a part of the permit and all conditions contained in the
certificate of need shall be conditions of the permit and may be
enforced by the division in accordance with the provisions of this
article. If the director approves a permit or permit modification,
the certificate of need shall become a part of the permit and all
conditions contained in the certificate of need shall be conditions
of the permit and may be enforced by the division in accordance
with the provisions of this article.
(h) The director shall
propose for promulgation and approval
by the Legislature promulgate legislative rules pursuant to article three, chapter twenty-nine-a of this code which reflect the
purposes as set forth in this section.
§22-15-12. Performance bonds; amount and method of bonding;
bonding requirements; period of bond liability.
(a) After a solid waste permit application has been approved
pursuant to this article, or once operations have commenced
pursuant to a compliance order, but before a permit has been
issued, each operator of a commercial solid waste facility shall
furnish bond, on a form to be prescribed and furnished by the
director, payable to the state of West Virginia and conditioned
upon the operator faithfully performing all of the requirements of
this article, rules promulgated hereunder and the permit
: Provided,
That the director has the discretion to waive the requirement of a
bond from the operator of a commercial solid waste facility, other
than a Class A facility, which is operating under a compliance
order. The amount of the bond required
is one thousand dollars per
acre and may include an additional amount shall be determined by
the director based upon the total estimated cost to the state of
completing final closure according to the permit granted to such
facility and such measures as are necessary to prevent adverse
effects upon the environment; such measures include, but are not
limited to, satisfactory monitoring, post-closure care
, leachate
treatment and remedial measures:
Provided, however, That the amount
of the bond
shall not exceed eight thousand dollars per acre shall be sufficient to conform to and be consistent with the financial
assurance requirements set forth under Subtitle D of the federal
Resource Conservation and Recovery Act, 42 U.S.C. §§6901 et seq.
and the regulations promulgated thereunder: Provided, however, That
all bonds required to be posted shall be consistent whether the
facility is publicly or privately owned or operated. All permits
shall be bonded for at least ten thousand dollars. The bond shall
cover either: (1) The entire area to be used for the disposal of
solid waste; or (2) that increment of land within the permit area
upon which the operator will initiate and conduct commercial solid
waste facility operations within the initial term of the permit
pursuant to legislative rules promulgated by the director pursuant
to chapter twenty-nine-a of this code. If the operator chooses to
use incremental bonding, as succeeding increments of commercial
solid waste facility operations are to be initiated and conducted
within the permit area, the operator shall file with the director
an additional bond or bonds to cover such increments in accordance
with this section:
Provided further, That once the operator has
chosen to proceed with bonding either the entire area to be used
for the disposal of solid waste or with incremental bonding, the
operator shall continue bonding in that manner for the term of the
permit.
(b) The period of liability for performance bond coverage
shall commence with issuance of a permit and continue for the full term of the permit and for a period of up to thirty full years
after final closure of the permit site:
Provided, That any further
time period necessary to achieve compliance with the requirements
in the closure plan of the permit is considered an additional
liability period.
(c) The form of the performance bond shall be approved by the
director and may include, at the option of the director, surety
bonding, collateral bonding (including cash and securities),
establishment of an escrow account, letters of credit, performance
bonding fund participation (as established by the director),
self-bonding or a combination of these methods.
If collateral bonding is used, the operator may elect to
deposit cash, or collateral securities or certificates as follows:
Bonds of the United States or its possessions, of the federal land
bank, or of the homeowners' loan corporation; full faith and credit
general obligation bonds of the state of West Virginia, or other
states, and of any county, district or municipality of the state of
West Virginia or other states; or certificates of deposit in a bank
in this state, which certificates shall be in favor of the
division. The cash deposit or market value of such securities or
certificates shall be equal to or greater than the sum of the bond.
The director shall, upon receipt of any such deposit of cash,
securities or certificates, promptly place the same with the
treasurer of the state of West Virginia whose duty it is to receive and hold the same in the name of the state in trust for the purpose
for which the deposit is made when the permit is issued. The
operator making the deposit is entitled from time to time to
receive from the state treasurer, upon the written approval of the
director, the whole or any portion of any cash, securities or
certificates so deposited, upon depositing with the treasurer in
lieu thereof, cash or other securities or certificates of the
classes herein specified having value equal to or greater than the
sum of the bond.
(d) Within twelve months prior to the expiration of the
thirty-year period following final closure, the division will
conduct a final inspection of the facility. The purpose of the
inspection is to determine compliance with this article, the
division's rules, the terms and conditions of the permit, orders of
the division and the terms and conditions of the bond. Based upon
this determination, the division will either forfeit the bond prior
to the expiration of the thirty-year period following final
closure, or release the bond at the expiration of the thirty-year
period following final closure. Bond release requirements shall be
provided in rules promulgated by the director.
(e) If the operator of a commercial solid waste facility
abandons the operation of a solid waste disposal facility for which
a permit is required by this article or if the permittee fails or
refuses to comply with the requirements of this article in any respect for which liability has been charged on the bond, the
director shall declare the bond forfeited and shall certify the
same to the attorney general who shall proceed to enforce and
collect the amount of liability forfeited thereon, and where the
operation has deposited cash or securities as collateral in lieu of
corporate surety, the director shall declare said collateral
forfeited and shall direct the state treasurer to pay said funds
into a waste management fund to be used by the director to effect
proper closure and to defray the cost of administering this
article. Should any corporate surety fail to promptly pay, in
full, forfeited bond, it is disqualified from writing any further
surety bonds under this article.
§22-15-15. Orders, inspections and enforcement; civil and criminal
penalties.
(a) If the director, upon inspection or investigation by duly
authorized representatives or through other means observes,
discovers or learns of a violation of this article, its rules,
article eleven of this chapter or its rules, or any permit or order
issued under this article, he or she shall:
(1) Issue an order stating with reasonable specificity the
nature of the alleged violation and requiring compliance
immediately or within a specified time. An order under this
section includes, but is not limited to, any or all of the
following: Orders suspending, revoking or modifying permits, orders requiring a person to take remedial action or cease and
desist orders;
(2) Seek an injunction in accordance with subsection (e) of
this section;
(3) Institute a civil action in accordance with subsection (e)
of this section; or
(4) Request the attorney general, or the prosecuting attorney
of the county wherein the alleged violation occurred, to bring an
appropriate action, either civil or criminal in accordance with
subsection (b) of this section.
(b) Any person who willfully or negligently violates the
provisions of this article, any permit or any rule or order issued
pursuant to this article is subject to the same criminal penalties
as set forth in section twenty-four, article eleven of this
chapter.
(c) Any person who violates any provision of this article, any
permit or any rule or order issued pursuant to this article is
subject to a civil administrative penalty, to be levied by the
director, of not more than five thousand dollars for each day of
such violation, not to exceed a maximum of twenty thousand dollars.
(1) In assessing any such penalty, the director shall take
into account the seriousness of the violation and any good faith
efforts to comply with the applicable requirements as well as any
other appropriate factors as may be established by the director by rules promulgated pursuant to this article and article three,
chapter twenty-nine-a of this code. No assessment shall be levied
pursuant to this subsection until after the alleged violator has
been notified by certified mail or personal service. The notice
shall include a reference to the section of the statute, rule,
order or statement of permit conditions that was allegedly
violated, a concise statement of the facts alleged to constitute
the violation, a statement of the amount of the administrative
penalty to be imposed and a statement of the alleged violator's
right to an informal hearing. The alleged violator has twenty
calendar days from receipt of the notice within which to deliver to
the director a written request for an informal hearing. If no
hearing is requested, the notice becomes a final order after the
expiration of the twenty-day period. If a hearing is requested,
the director shall inform the alleged violator of the time and
place of the hearing. The director may appoint an assessment
officer to conduct the informal hearing and then make a written
recommendation to the director concerning the assessment of a civil
administrative penalty. Within thirty days following the informal
hearing, the director shall issue and furnish to the alleged
violator a written decision, and the reasons therefor, concerning
the assessment of a civil administrative penalty. Within thirty
days after notification of the director's decision, the alleged
violator may request a formal hearing before the environmental quality board in accordance with the provisions of section sixteen
of this article. The authority to levy a civil administrative
penalty is in addition to all other enforcement provisions of this
article and the payment of any assessment does not affect the
availability of any other enforcement provision in connection with
the violation for which the assessment is levied:
Provided, That
no combination of assessments against a violator under this section
shall exceed twenty-five thousand dollars for each day of such
violation:
Provided, however, That any violation for which the
violator has paid a civil administrative penalty assessed under
this section shall not be the subject of a separate civil penalty
action under this article to the extent of the amount of the civil
administrative penalty paid. All administrative penalties shall be
levied in accordance with rules issued pursuant to subsection (a),
section five of this article. The net proceeds of assessments
collected pursuant to this subsection shall be deposited in the
solid waste reclamation and environmental response fund established
in subdivision (3), subsection (h), section eleven of this article;
(2) No assessment levied pursuant to subdivision (1),
subsection (c) above becomes due and payable until the procedures
for review of such assessment as set out in said subsection have
been completed.
(d) Any person who violates any provision of this article, any
permit or any rule or order issued pursuant to this article is subject to a civil penalty not to exceed twenty-five thousand
dollars for each day of such violation, which penalty shall be
recovered in a civil action either in the circuit court wherein the
violation occurs or in the circuit court of Kanawha County.
(e) The director may seek an injunction, or may institute a
civil action against any person in violation of any provisions of
this article or any permit, rule or order issued pursuant to this
article. In seeking an injunction, it is not necessary for the
director to post bond nor to allege or prove at any stage of the
proceeding that irreparable damage will occur if the injunction is
not issued or that the remedy at law is inadequate. An application
for injunctive relief or a civil penalty action under this section
may be filed and relief granted notwithstanding the fact that all
administrative remedies provided for in this article have not been
exhausted or invoked against the person or persons against whom
such relief is sought.
(f) Upon request of the director, the attorney general or the
prosecuting attorney of the county in which the violation occurs
shall assist the director in any civil action under this section.
(g) In any civil action brought pursuant to the provisions of
this section, the state, or any agency of the state which prevails,
may be awarded costs and reasonable attorney's fees.
(h) In addition to all other grounds for revocation, the
director shall revoke a permit for any of the following reasons:
(1) Fraud, deceit or misrepresentation in securing the permit,
or in the conduct of the permitted activity;
(2) Offering, conferring or agreeing to confer any benefit to
induce any other person to violate the provisions of this chapter,
or of any other law relating to the collection, transportation,
treatment, storage, or disposal of solid waste, or of any rule
adopted pursuant thereto;
(3) Coercing a customer by violence or economic reprisal or
the threat thereof to utilize the services of any permittee; or
(4) Preventing, without authorization of the division, any
permittee from disposing of solid waste at a licensed treatment,
storage or disposal facility.
(i) Any person who has obtained a permit or modification of a
permit without obtaining a certificate of need on site approval
shall enter into a compliance agreement with the division. The
compliance agreement will become a required permit document for the
solid waste facility.
§22-15-20. Sewage sludge management.
(a)
Within the limits imposed by article fifteen, section
eight of this chapter, Tthe 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 other method of handling sewage sludge within the state.
(b) The director shall
promulgate rules propose emergency and
legislative rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code
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 which generate, process, dispose or otherwise
manage sewage sludge
into in 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
treated,
stored, processed, composted, dumped or
imported placed;
(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
, processors or
importers
transporters 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 of inspecting
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 sludge;
(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, selenium 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
, treatment,
storage, processing, composting, dumping, placing or land applying
of sewage sludge is available to affected communities
and other
persons who may request the information in conformity with article
one, chapter twenty-nine-b of this code;
(9) That all sewage sludge processing facilities contain
sufficient design specifications to protect ground
, and surface
and
potable waters
, air quality, existing and potential land-use
planning and public health and safety;
(10) That regulation of composting facilities varies according
to types and quantities of materials handled;
(11) That only living or dead plant tissues are used as
bulking agents in sewage sludge processing facilities; and
(12) That a fee, to be paid by the producer
, processor or
importer transporter be levied and imposed on the land application
of sewage sludge, to be collected at a per ton rate, sufficient to
cover the costs of the sewage sludge management program. Fees
collected pursuant to the terms of this subsection shall be
deposited in the special revenue fund designated the "water quality management fund" established under the provisions of section ten,
article eleven of this chapter. The fee schedule shall vary
according to the volume of materials handled and the contaminant
level of the sewage sludge and shall be subject to the provisions
of article three, chapter twenty-nine-a of this code.
(c) For those publicly owned treatment works (POTW) which
produce sewage sludge and are regulated by the division pursuant to
a
national pollutant discharge elimination system (NPDES
) permit
required under article eleven 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 director.
(d) On and after the tenth day of April, one thousand nine
hundred ninety-three, 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 rule provided for in subsection (b) of this section is
effective.
(e) All sewage sludge placed in,
or upon, or used
in a
landfill cell by a solid waste facility
or processed or handled,
pursuant to a permit issued by the division, 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 four, chapter twenty-two-c of
this code:
Provided, That no land within a solid waste facility but
outside a landfill disposal cell,
be allowed to shall accept the
permanent application of 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, however, That no such fees, excepting
assessment fees provided for in subdivision (12), subsection (b) of
this section shall be levied upon the application of sewage sludge
to land outside a solid waste facility in accordance with this
section.
(f) Sewage sludge shall not be used as daily cover by a
landfill.
(g) No person shall temporarily or permanently, store, treat,
handle, process, retain or stockpile sewage sludge or any
intermediate or final material or product derived wholly or
partially from sewage sludge, in excess of one hundred thousand
tons, or more than one hundred twenty thousand cubic yards, at any
site or any set of sites owned, operated or controlled by the same
person or persons, that are located within a radius of forty miles
of each other, unless it is disposed of by permanent disposal and
burial within a landfill cell or by land application as authorized
herein.
(h) No person shall knowingly transport or deliver sewage
sludge, or any intermediate or final material or product derived wholly or partially from sewage sludge in violation of subsection
(g) of this chapter.
(i) Any solid waste facility which composts sewage sludge
shall have an output of compost removed from the facility
proportional or corresponding to the input of sewage sludge.
(j) The director shall presume that a person or facility that
stores sewage sludge contrary to the provisions of subsection (g)
is operating an open dump and is subject to the provisions
applicable to open dumps.
(k) A person or facility that stores sewage sludge shall
maintain accurate operational records on site that are sufficiently
detailed to clearly and convincingly demonstrate to the director
that sewage sludge is being stored under subsection (g). The
records shall be made available to the director upon request.
(l) All persons operating a sewage sludge processing facility
shall provide off-site odor monitoring or testing mechanisms,
approved by the director. The director shall propose for
promulgation emergency and legislative rules specifying the nature
and type of odor monitoring or testing which will be approved or
how to obtain approval for proposed odor monitoring or testing; the
areas where the monitoring or testing should occur; the frequency
of monitoring or testing which shall be no less than semiannually
or as otherwise ordered by the director and any other conditions
necessary to effectuate the purposes of this subsection.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS,
AUTHORITIES, COMMISSIONS AND COMPACTS.
ARTICLE 4. COUNTY AND REGIONAL SOLID WASTE AUTHORITIES.
§22C-4-1. Legislative findings and purposes.
The Legislature finds that the improper and uncontrolled
collection, transportation, processing and disposal of domestic and
commercial garbage, refuse and other solid wastes in the state of
West Virginia results in: (1) A public nuisance and a clear and
present danger to the citizens of West Virginia; (2) the
degradation of the state's environmental quality including both
surface and ground waters which provide essential and irreplaceable
sources of domestic and industrial water supplies; (3) provides
harborages and breeding places for disease-carrying, injurious
insects, rodents and other pests injurious to the public health,
safety and welfare; (4) decreases public and private property
values and results in the blight and deterioration of the natural
beauty of the state; (5) has adverse social and economic effects on
the state and its citizens; and (6) results in the waste and
squandering of valuable nonrenewable resources contained in such
solid wastes which can be recovered through proper recycling and
resource-recovery techniques with great social and economic
benefits for the state.
The Legislature further finds that the proper collection,
transportation, processing, recycling and disposal of solid waste is for the general welfare of the citizens of the state and that
the lack of proper and effective solid waste collection services
and disposal facilities demands that the state of West Virginia and
its political subdivisions act promptly to secure such services and
facilities in both the public and private sectors.
The Legislature further finds that other states of these
United States of America have imposed stringent standards for the
proper collection and disposal of solid waste and that the relative
lack of such standards and enforcement for such activities in West
Virginia has resulted in the importation and disposal into the
state of increasingly large amounts of infectious, dangerous and
undesirable solid waste and hazardous waste from other states by
persons and firms who wish to avoid the costs and requirements for
proper, effective and safe disposal of such wastes in the states of
origin.
The Legislature further finds that the process of developing
rational and sound solid waste plans at the county or regional
level is impeded by the proliferation of siting proposals for new
solid waste facilities.
Therefore, it is the purpose of the Legislature to protect the
public health and welfare by providing for a comprehensive program
of solid waste collection, processing, recycling and disposal to be
implemented by state and local government in cooperation with the
private sector. The Legislature intends to accomplish this goal by establishing county and regional solid waste authorities throughout
the state to develop and implement litter and solid waste control
plans.
It is the further purpose of the Legislature to restrict
and regulate persons and firms from exploiting and endangering the
public health and welfare of the state by disposing of solid wastes
and other dangerous materials which would not be accepted for
disposal in the location where such wastes or materials were
generated.
It is further the purpose of the Legislature to reduce our
solid waste management problems and to meet the purposes of this
article by requiring county and regional solid waste authorities to
establish programs and plans based on an integrated waste
management hierarchy. In order of preference, the hierarchy is as
follows:
(1)
Source reduction. -- This involves minimizing waste
production and generation through product design, reduction of
toxic constituents of solid waste, and similar activities.
(2)
Recycling, reuse and materials recovery. -- This involves
separating and recovering valuable materials from the waste stream,
composting food and yard waste, and marketing of recyclables.
(3)
Landfilling. -- To the maximum extent possible, this
option should be reserved for nonrecyclables and other materials
that cannot practically be managed in any other way. This is the
lowest priority in the hierarchy and involves the waste management option of last resort.
The Legislature further finds that the potential impacts of
proposed commercial solid waste facilities may have a deleterious
and debilitating impact upon the transportation network, property
values, economic growth, environmental quality, other land uses and
the public health and welfare in affected communities. The
Legislature also finds that the siting of such facilities is not
being adequately addressed to protect these compelling interests of
counties and local communities.
The Legislature further finds that affected citizens and local
governments often look to state environmental regulatory agencies
to resolve local land use conflicts engendered by these proposed
facilities. The Legislature also finds that such local land use
conflicts are most effectively resolved in a local governmental
forum where citizens can most easily participate in the
decision-making process and the land
-use
planning values of local
communities most effectively identified and incorporated into a
comprehensive policy which reflects the values and goals of those
communities.
Therefore, it is the purpose of the Legislature to enable
local citizens to resolve the land-use conflicts which may be
created by proposed commercial solid waste facilities through the
existing forum of county or regional solid waste authorities.
§22C-4-2. Definitions.
Unless the context clearly requires a different meaning, as
used in this article, the terms:
(a) "Approved solid waste facility" means a commercial solid
waste facility or practice which has a valid permit or compliance
order under article fifteen, chapter twenty-two of this code.
(b) "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 does not include an
approved solid waste facility owned and operated by a person for
the sole purpose of disposing of solid wastes created by that
person or that person and another person on a cost-sharing or
nonprofit basis and does not include land upon which reused or
recycled materials are legitimately applied for structural fill,
road base, mine reclamation and similar applications.
(c) "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.
(d) "Class A facility" means a commercial solid waste facility
which handles an aggregate of between ten and thirty thousand tons
of solid waste per month. Class A facility includes 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.
(e) "Class B facility" means a commercial solid waste facility
which receives or is expected to receive an average daily quantity
of mixed solid waste equal to or exceeding one hundred tons each
working day, or serves or is expected to serve a population equal
to or exceeding forty thousand persons, but which does not receive
solid waste exceeding an aggregate of ten thousand tons per month.
Class B facilities do not include construction/demolition
facilities:
Provided, That the definition of Class B facility may
include such reasonable subdivisions or subclassifications as the
director may establish by legislative rule proposed
for
promulgation and approval by the Legislature in accordance with the
provisions of
article three, chapter twenty-nine-a of this code.
(f) "Compliance order" means an administrative order issued
pursuant to section ten, article fifteen, chapter twenty-two of
this code authorizing a solid waste facility to operate without a
solid waste permit.
(g) "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.
(h) "Person" means 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; the
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.
(i) "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.
(j) "Solid waste" means any garbage, paper, litter, refuse,
cans, bottles, waste processed for the express purpose of
incineration, sludge from a waste treatment plant, water supply
treatment plant or air pollution control facility, other discarded
material, 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
eleven, chapter twenty-two of this code, 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 eighteen, chapter
twenty-two of this code, or refuse, slurry, overburden or other
waste 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 article two,
three, four, six, seven, eight, nine or ten, chapter twenty-two or
chapter twenty-two-a of this code, so long as such placement or
disposal is in conformance with a permit issued pursuant to said
chapters. "Solid waste" does not include materials which are
recycled by being used or reused in an industrial process to make
a product, as effective substitutes for commercial products, or are
returned to the original process as a substitute for raw material
feedstock.
(k) "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.
(l) "Solid waste disposal shed" means the geographical area
which the solid waste management board designates and files in the
state register pursuant to section nine, article three of this
chapter.
(m) "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,
resource-recovery facilities and other such facilities not herein
specified. Such facility is situated, for purposes of this
article, in the county where the majority of the spatial area of
such facility is located.
(n) "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.
(o) "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.
(p) "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.
(q) "Materials recovery facility" means any solid waste
facility at which solid wastes are manually or mechanically shredded or separated so that materials are recovered from the
general waste stream for purposes of reuse and recycling.
§22C-4-8. Authority to develop litter and solid waste control
plan; approval by solid waste management board; development of
plan by director; advisory rules.
(a) Each county and regional solid waste authority is required
to develop a comprehensive litter and solid waste control plan for
its geographic area and to submit said plan to the solid waste
management board on or before the first day of July, one thousand
nine hundred ninety-one. Each authority shall submit a draft
litter and solid waste control plan to the solid waste management
board by the thirty-first day of March, one thousand nine hundred
ninety-one. The comments received by the county or regional solid
waste authority at public hearings, two of which are required,
shall be considered in developing the final plan.
(b) Each litter and solid waste control plan shall include
provisions for:
(1) An assessment of litter and solid waste problems in the
county;
(2) The establishment of solid waste collection and disposal
services for all county residents at their residences, where
practicable, or the use of refuse collection stations at disposal
access points in areas where residential collection is not
practicable. In developing such collection services, primacy shall be given to private collection services currently operating with a
certificate of convenience and necessity from the motor carrier
division of the public service commission;
(3) The evaluation of the feasibility of requiring or
encouraging the separation of residential or commercial solid waste
at its source prior to collection for the purpose of facilitating
the efficient and effective recycling of such wastes and the
reduction of those wastes which must be disposed of in landfills or
by other nonrecycling means;
(4) The establishment of an appropriate mandatory garbage
disposal program which shall include methods whereby residents must
prove either: (i) Payment of garbage collection fee; or (ii)
proper disposal at an approved solid waste facility or in an
otherwise lawful manner;
(5) A recommendation for the siting of one or more properly
permitted public or private solid waste facilities, whether
existing or proposed, to serve the solid waste needs of the county
or the region, as the case may be, consistent with the
comprehensive county plan prepared by the county planning
commission
and the anticipated volumes of solid waste originating
within or without the county or region which are likely to be
disposed of within the county or region;
(6) A timetable for the implementation of said plan;
(7) A program for the cleanup, reclamation and stabilization of any open and unpermitted dumps;
(8) The coordination of the plan with the related solid waste
collection and disposal services of municipalities and, if
applicable, other counties;
(9) A program to enlist the voluntary assistance of private
industry and civic groups in volunteer cleanup efforts to the
maximum practicable extent;
(10) Innovative incentives to promote recycling efforts;
(11) A program to identify the
disposal anticipated quantities
of solid wastes which are
disposed of, but are not generated by
sources situated
, within the boundaries of the county or the region
established pursuant to this section;
(12) Coordination with the division of highways and other
local, state and federal agencies in the control and removal of
litter and the cleanup of open and unpermitted dumps;
(13) Establishment of a program to encourage and utilize those
individuals incarcerated in the
county regional jail and those
adults and juveniles sentenced to probation for the purposes of
litter pickup; and
(14) Provision for the safe and sanitary disposal of all
refuse from commercial and industrial sources within the county or
region, as the case may be, including refuse from commercial and
industrial sources, but excluding refuse from sources owned or
operated by the state or federal governments.
(c) The solid waste management board shall establish advisory
rules to guide and assist the counties in the development of the
plans required by this section.
(d) Each plan prepared under this section is subject to
approval by the solid waste management board. Any plan rejected by
the solid waste management board shall be returned to the regional
or county solid waste authority with a statement of the
insufficiencies in such plan. The authority shall revise the plan
to eliminate the insufficiencies and submit it to the director
within ninety days.
(e) The solid waste management board shall develop a litter
and solid waste control plan for any county or regional solid waste
authority which fails to submit such a plan on or before the first
day of July, one thousand nine hundred ninety-two:
Provided, That
in preparing such plans the director may determine whether to
prepare a regional or county based plan for those counties which
fail to complete such a plan.
§22C-4-24. Commercial solid waste facility siting plan; facilities
subject to plan; criteria; approval by solid waste management
board; effect on facility siting; public hearings; rules.
(a) On or before the first day of July, one thousand nine
hundred ninety-one, each county or regional solid waste authority
shall prepare and complete a commercial solid waste facilities
siting plan for the county or counties within its jurisdiction:
Provided, That the solid waste management board may authorize any
reasonable extension of up to one year for the completion of the
said siting plan by any county or regional solid waste authority.
The siting plan shall identify zones within each county where
siting of the following facilities is authorized or prohibited:
(1) Commercial solid waste facilities which may accept an
aggregate of more than ten thousand tons of solid waste per month.
(2) Commercial solid waste facilities which shall accept only
less than an aggregate of ten thousand tons of solid waste per
month.
(3) Commercial solid waste transfer stations or commercial
facilities for the processing or recycling of solid waste.
The siting plan shall include an explanation of the rationale
for the zones established therein based on the criteria established
in subsection (b) of this section.
(b) The county or regional solid waste authority shall develop
the siting plan authorized by this section based upon the
consideration of one or more of the following criteria: The
efficient disposal of solid waste, including,
but not limited to,
all solid waste
generated which is disposed of within the county or
region
regardless of its origin, economic development,
transportation facilities, property values, groundwater and surface
waters, geological and hydrological conditions, aesthetic and
environmental quality, historic and cultural resources, the present or potential land uses for residential, commercial, recreational,
environmental conservation or industrial purposes and the public
health, welfare and convenience. The
initial plan shall be
developed based upon information readily available. Due to the
limited funds and time available the
initial plan need not be an
exhaustive and technically detailed analysis of the criteria set
forth above. Unless the information readily available clearly
establishes that an area is suitable for the location of a
commercial solid waste facility or not suitable for such a
facility, the area shall be designated as an area in which the
location of a commercial solid waste facility is tentatively
prohibited. Any person making an application for the redesignation
of a tentatively prohibited area shall make whatever examination is
necessary and submit specific detailed information in order to meet
the provision established in subsection (g) of this section.
(c) Prior to completion of the siting plan, the county or
regional solid waste authority shall complete a draft siting plan
and hold at least one public hearing in each county encompassed in
said draft siting plan for the purpose of receiving public comment
thereon. The authority shall provide notice of such public
hearings and encourage and solicit other public participation in
the preparation of the siting plan as required by the rules
promulgated by the solid waste management board for this purpose.
Upon completion of the siting plan, the county or regional solid waste authority shall file said plan with the solid waste
management board.
(d) The siting plan takes effect upon approval by the solid
waste management board pursuant to the rules promulgated for this
purpose. Upon approval of said plan, the solid waste management
board shall transmit a copy thereof to the director of the division
of environmental protection and to the clerk of the county
commission of the county encompassed by said plan which county
clerk shall file the plan in an appropriate manner and shall make
the plan available for inspection by the public.
(e) Effective upon approval of the siting plan by the solid
waste management board, it is unlawful for any person to establish,
construct, install or operate a commercial solid waste facility at
a site not authorized by the siting plan:
Provided, That an
existing commercial solid waste facility which, on the eighth day
of April, one thousand nine hundred eighty-nine, held a valid solid
waste permit or compliance order issued by the division of natural
resources pursuant to the former provisions of article five-f,
chapter twenty of this code may continue to operate but may not
expand the spatial land area of the said facility beyond that
authorized by said solid waste permit or compliance order, and may
not increase the aggregate monthly solid waste capacity in excess
of ten thousand tons monthly unless such a facility is authorized
by the siting plan.
(f) The county or regional solid waste authority may, from
time to time, amend the siting plan in a manner consistent with the
requirements of this section for completing the initial siting plan
and the rules promulgated by the solid waste management board for
the purpose of such amendments.
(g) Notwithstanding any provision of this code to the
contrary, upon application from a person who has filed a pre-siting
notice pursuant to section thirteen, article fifteen, chapter
twenty-two of this code, the county or regional solid waste
authority or county commission, as appropriate, may amend the
siting plan by redesignating a zone that has been designated as an
area where a commercial solid waste facility is tentatively
prohibited to an area where one is authorized. In such case, the
person seeking the change has the burden to affirmatively and
clearly demonstrate, based on the criteria set forth in subsection
(b) of this section, that a solid waste facility could be
appropriately operated in the public interest at such location.
The solid waste management board shall provide, within available
resources, technical support to a county or regional solid waste
authority, or county commission as appropriate, when requested by
such authority or commission to assist it in reviewing an
application for any such amendment.
(h) The solid waste management board shall prepare and adopt
a siting plan for any county or regional solid waste authority which does not complete and file with the said state authority such
a siting plan in compliance with the provisions of this section and
the rules promulgated thereunder. Any siting plan adopted by the
solid waste management board pursuant to this subsection shall
comply with the provisions of this section, and the rules
promulgated thereunder, and has the same effect as a siting plan
prepared by a county or regional solid waste authority and approved
by the solid waste management board.
(i) The siting plan adopted pursuant to this section shall
incorporate the provisions of the litter and solid waste control
plan, as approved by the solid waste management board pursuant to
section eight of this article, regarding collection and disposal of
solid waste and the requirements, if any, for additional commercial
solid waste facility capacity.
(j) The solid waste management board is authorized and
directed to promulgate rules specifying the public participation
process, content, format, amendment, review and approval of siting
plans for the purposes of this section.
(k) To the extent that current solid waste plans approved by
the board and are approved as provided for in this section, and in
place on the effective date of this article, provisions which limit
approval for new or expanded solid waste facilities bases solely on
local needs without consideration for national waste disposal needs
are disallowed as being in conflict with the public policy of this article: Provided, That all other portions of the solid waste
management plans as established in the litter and solid waste
control plan as provided for in this section and the comprehensive
recycling plan as provided for in section four, article eleven,
chapter twenty of the code, are continued in full force and effect
to the extent that those provisions do not conflict with the
provisions of this article.
§22C-4-25. 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 fifteen, chapter twenty-two of this
code, that are specifically exempted by section twelve, article
eleven, chapter twenty of this code. 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 of this code, and facilities which were
otherwise exempted from local site approval under any prior
enactment
in of 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 twenty-six, twenty-seven and twenty-eight of this article.
(b) In considering whether to issue or deny the certificate of
site approval as specified in sections twenty-six, twenty-seven and
twenty-eight 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
anticipated to be received or processed at the facility, including
solid waste generated within the county or region, economic
development,
transportation facilities public roads and highways,
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 certificate of
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.
§22C-4-26. Approval of new Class A facilities by solid waste
authorities and county commissions, and referendum.
(a) Except as provided below with respect to Class B
facilities, from and after the tenth day of March, one thousand
nine hundred ninety, in order to obtain approval to operate a new
Class A facility, an applicant shall:
(1) File an application for a certificate of need with, and
obtain approval from, the public service commission in the manner
specified in section one-c, article two, chapter twenty-four of
this code and in section thirteen, article fifteen, chapter
twenty-two of this code;
(2) File an application for a certificate of site approval
with, and obtain approval from, the county or regional solid waste
authority for the county or counties in which the facility is
proposed. Such application shall be submitted on forms prescribed
by the solid waste management board. The county or regional solid
waste authority shall act on such application and either grant or
deny it within thirty days after the application is determined by
the county or regional solid waste authority to be filed in a
completed manner; and
(3) File an application for approval of operation as a Class
A facility with, and obtain approval from, the county commission
for each county in which the facility would be located.
Each
county commission shall act on such application and either grant or deny it within thirty days after the application is determined by
the county commission to be filed in a completed manner. The
county commission shall hold at least one public hearing and shall
solicit public comment prior to acting on the application. The
county commission shall provide notice of such public hearing with
publication of a Class II legal advertisement in a qualified
newspaper serving the county where the proposed site is situated.
(b) If applications are approved pursuant to subdivisions (1),
(2) and (3), subsection (a) of this section, each county commission
shall order that a referendum be placed upon the ballot not less
than fifty-six days before the next primary, general or other
countywide election.
(1) Such referendum is to determine whether it is the will of
the voters of the county that a Class A facility be located in the
county. Any such election shall be held at the voting precincts
established for holding primary or general elections. All of the
provisions of the general election laws, when not in conflict with
the provisions of this article, apply to voting and elections
hereunder, insofar as practicable.
(2) The ballot, or the ballot labels where voting machines are
used, shall have printed thereon substantially the following:
"Shall a solid waste facility handling of between ten and
thirty thousand tons of solid waste per month be located within
____________________ County, West Virginia?
/ / For the facility
/ / Against the facility
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question is
against the siting of a Class A facility within the county, then
the county commission, the county or regional solid waste authority
and the division of environmental protection shall not proceed any
further with the application. If a majority of the legal votes
cast upon the question is for siting a Class A facility within the
county, then the application process as set forth in this article
and article fifteen, chapter twenty-two of this code may proceed:
Provided, That such vote is not binding on and does not require the
division of environmental protection to issue a permit. If the
majority of the legal votes cast is against the question, the
question may be submitted to a vote at any subsequent election in
the manner herein specified: Provided, however, That the question
may not be resubmitted to a vote until two years after the date of
the previous referendum.
(c) After the tenth day of March, one thousand nine hundred
ninety, the public referendum established in this section is
mandatory for every new Class A facility applicant which will
accept between ten and thirty thousand tons of solid waste per
month. A new Class A facility applicant means any applicant for a state solid waste permit for a Class A facility who has not prior
to the tenth day of March, one thousand nine hundred ninety,
obtained a certificate of site approval for a Class A facility from
the county or regional solid waste authority to establish,
construct or operate a Class A facility, and also means any
applicant for a state solid waste permit for a Class A facility if
a legal challenge to the issuance of a certificate of site approval
by the county or regional solid waste authority or the county
commission approval for the proposed Class A facility was pending
in any state or federal court as of the first day of September, one
thousand nine hundred ninety-one.
§22C-4-27. Approval of conversion from Class B facility to Class
A facility.
(a) From and after the eighteenth day of October, one thousand
nine hundred ninety-one, in order to obtain approval to operate as
a Class A facility at a site previously permitted to operate as a
Class B facility, an applicant shall:
(1) File an application for a certificate of need with, and
obtain approval from, the public service commission in the manner
specified in section one-c, article two, chapter twenty-four, and
in section thirteen, article fifteen, chapter twenty-two of this
code;
and
(2) File an application for a certificate of site approval
with, and obtain approval from, the county or regional solid waste authority for the county or counties in which the facility is
located or proposed. Such application shall be submitted on forms
prescribed by the solid waste management board. The county or
regional solid waste authority shall act on such application and
either grant or deny it within thirty days after the application is
determined by the county or regional solid waste authority to be
filed in a completed manner.
; and
(3) File an application for approval of operation as a Class
A facility with, and obtain approval from, the county commission
for each county in which the facility is or would be located. Each
county commission shall act on such application and either grant or
deny it within thirty days after the application is determined by
the county commission to be filed in a completed manner. The
county commission shall hold at least one public hearing and shall
solicit public comment prior to acting on the application. The
county commission shall provide notice of such public hearing with
publication of a Class II legal advertisement in a qualified
newspaper serving the county where the proposed site is situated.
(b) If applications are approved pursuant to subdivisions (1),
(2) and (3), subsection (a) of this section, the county or regional
solid waste authority shall publish a Class II legal advertisement
in compliance with the provisions of article three, chapter fifty- nine of this code, in a newspaper of general circulation in the
counties wherein the solid waste facility is located. Upon the written petition of registered voters residing in the county equal
to not less than fifteen percent of the number of votes cast within
the county for governor at the preceding gubernatorial election,
which petition shall be filed with the county commission within
sixty days after the last date of publication of the notice
provided in this section, the county commission shall, upon
verification of the required number of signatures on the petition,
and not less than fifty-six days before the election, order a
referendum be placed upon the ballot. Any referendum conducted
pursuant to this section shall be held at the next primary, general
or other countywide election.
(1) Such referendum is to determine whether it is the will of
the voters of the county that the Class B facility be converted to
a Class A facility. Any election at which such question of
locating a solid waste facility is voted upon shall be held at the
voting precincts established for holding primary or general
elections. All of the provisions of the general election laws,
when not in conflict with the provisions of this article, apply to
voting and elections hereunder, insofar as practicable. The
secretary of state shall prescribe the form of the petition which
shall include the printed name, address and date of birth of each
person whose signature appears on the petition.
(2) The ballot, or the ballot labels where voting machines are
used, shall have printed thereon substantially the following:
"Shall the ____________________________ solid waste facility,
located within ________________________ County, West Virginia, be
permitted to handle between ten and thirty thousand tons of solid
waste per month?
/ / For the facility
/ / Against the facility
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question is
against the facility, then the county commission, the county or
regional solid waste authority and the division of environmental
protection shall not proceed any further with the application. If
a majority of the legal votes cast upon the question be for the
facility, then the application process as set forth in this article
and article fifteen, chapter twenty-two of this code may proceed:
Provided, That such vote is not binding on nor does it require the
division of environmental protection to modify the permit. If the
majority of the legal votes cast is against the question, the
question may be submitted to a vote at any subsequent election in
the manner herein specified: Provided, however, That the question
may not be resubmitted to a vote until two years after the date of
the previous referendum.
§22C-4-28. Approval of increase in maximum allowable monthly
tonnage of Class A facilities.
(a) From and after the eighteenth day of October, one thousand
nine hundred ninety-one, in order to increase the maximum allowable
monthly tonnage handled at a Class A facility by an aggregate
amount of more than ten percent of the facility's permit tonnage
limitation within a two-year period, the permittee shall:
(1) File an application for approval with, and obtain approval
from, the county or regional solid waste authority for the county
or counties in which the facility is located. Such application
shall be a modification of the Class A facility's certificate of
site approval. The county or regional solid waste authority shall
act upon such application and either grant or deny it within thirty
days after the application is determined by the county or regional
solid waste authority to be filed in a completed manner;
and
(2) File an application for approval with, and obtain approval
from, the public service commission to modify the certificate of
need in the manner set forth in section one-c, article two, chapter
twenty-four of this code.
; and
(3) File an application for a major permit modification with
the division of environmental protection.
(b) If applications are approved pursuant to subdivisions (1)
and (2), subsection (a) of this section and an application has been
filed pursuant to subdivision (3), subsection (a) of this section,
the county or regional solid waste authority shall publish a Class
II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, in a newspaper of general
circulation in the counties wherein the solid waste facility is
located. Upon the written petition of registered voters residing
in the county equal to not less than fifteen percent of the number
of votes cast within the county for governor at the preceding
gubernatorial election, which petition shall be filed with the
county commission within sixty days after the last date of
publication of the notice provided in this section, the county
commission shall, upon verification of the required number of
signatures on the petition, and not less than fifty-six days before
the election, order a referendum be placed upon the ballot. Any
referendum conducted pursuant to this section shall be held at the
next primary, general or other countywide election.
(1) Such referendum is to determine whether it is the will of
the voters of the county that the Class A facility applicant be
permitted to increase the maximum tonnage allowed to be handled at
the facility not to exceed thirty thousand tons per month. Any
election at which such question is voted upon shall be held at the
voting precincts established for holding primary or general
elections. All of the provisions of the general election laws,
when not in conflict with the provisions of this article, apply to
voting and elections hereunder, insofar as practicable. The
secretary of state shall prescribe the form of the petition which
shall include the printed name, address and date of birth of each person whose signature appears on the petition.
(2) The ballot, or the ballot labels where voting machines are
used, shall have printed thereon substantially the following:
"Shall the ______________ solid waste facility located within
___________ County, West Virginia, be allowed to handle a maximum
of ___________ solid waste per month?
/ / For the increase in maximum allowable tonnage
/ / Against the increase in maximum allowable tonnage
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question is
against allowing the Class A facility to increase the maximum
tonnage of solid waste allowed to be handled per month at the
facility, then the division of environmental protection shall not
proceed to modify the Class A facility permit to increase the
maximum allowable tonnage. If a majority of the legal votes cast
upon the question is for allowing the Class A facility to increase
the maximum tonnage of solid waste allowed to be handled per month
at such facility, then the application process as set forth in this
article and article fifteen, chapter twenty-two of this code may
proceed: Provided, That such vote is not binding on nor does it
require the county or regional solid waste authority or the
division of environmental protection to approve an application to
modify the permit. If the majority of the legal votes cast is against the question, that does not prevent the question from again
being submitted to a vote at any subsequent election in the manner
provided for in this section: Provided, however, That an applicant
may not resubmit the question for a vote prior to a period of two
years from the date of the previous referendum herein described.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-1c. Certificate
s of need required for solid waste
facilities; priority of disposal.
(a) Any person who holds a valid permit, compliance order or
administrative order allowing continued operation of a commercial
solid waste facility in this state on the first day of September,
one thousand nine hundred ninety-one, shall submit an application
for a certificate of need with the public service commission, on
forms prescribed by the commission, prior to the first day of
March, one thousand nine hundred ninety-two. The commission shall
grant such application within sixty days after submission of a
complete application.
(b) (a) Any person applying for a permit to construct, operate
or expand a commercial solid waste facility as defined in section
two, article fifteen, chapter twenty-two of this code, or any
person seeking a major permit modification from the division of
environmental protection first shall obtain a certificate of need
from the public service commission. Application for such certificate shall be submitted on forms prescribed by the
commission. The commission shall grant or deny a certificate of
need, in accordance with provisions set forth in this chapter. If
the commission grants a certificate of need, the commission may
include conditions not inconsistent with the criteria set forth in
this section.
(c) (b) For purposes of subsection
s (a)
and (b) of this
section, a complete application consists of the following and
notwithstanding any other provision of this chapter to the
contrary, such information contained in the application provided by
the applicant is not confidential and
is disclosable may be
disclosed pursuant to the provisions of chapter twenty-nine-b of
this code:
(1) The names of the owners or operators of the facility
including any officer, director, manager, person owning five
percent or more interest or other person conducting or managing the
affairs of the applicant
or of as to the proposed facility;
(2) The
proposed or existing location of the facility;
(3) A description of the geographic area to be served by the
facility;
(4) The anticipated total number of citizens to be served by
the facility;
(5) The average monthly tonnage of solid waste
anticipated to
be disposed of by the facility;
(6) The total monthly tonnage of solid waste for which the
facility is seeking a permit from the division of environmental
protection;
(7) The anticipated life span and closure date of the
facility; and
(8) Any other information requested on the forms prescribed by
the
public service commission.
(d) (c) In considering whether to grant a certificate of need
the commission shall consider, but is not limited to considering,
the following factors:
(1)
The total tonnage of solid waste generated within the
county The total tonnage of solid waste, regardless of geographic
origin, that is likely to be delivered each month to the facility
if the certificate is granted;
(2) The total tonnage of solid waste generated within the
wasteshed;
(3) (2) The current capacity and life-span of other solid
waste facilities
located within the county, if any that are likely
to compete with the applicant's facility;
(4) The current capacity and life-span of other solid waste
facilities located within the wasteshed, if any;
(5) The current capacity and life-span of other solid waste
facilities located within this state;
(6) (3) The life span of the proposed or existing facility;
(7) (4) The cost of transporting solid waste from the points
of generation
within the county or wasteshed and to the disposal
facility;
(8)(5) The impact of the proposed or existing facility on
needs and criteria contained in the statewide solid waste
management plan; and
(9) (6) Any other criteria which the commission regularly
utilizes in making such determinations.
(e) (d) The public service commission shall deny a certificate
of need upon one or more of the following findings:
(1) The proposed capacity is unreasonable in light of
the
total tonnage of solid waste that is likely to be delivered each
month to the facility if the certificate is granted demonstrated
needs;
(2) The location of the facility is inconsistent with the
statewide solid waste management plan;
(3) The location of the facility is inconsistent with any
applicable county or regional solid waste management plan;
(4) The proposed
capacity facility is not reasonably cost
effective in light of alternative disposal sites;
(5) The proposal, taken as a whole, is inconsistent with the
needs and criteria contained in the statewide solid waste
management plan; or
(6) The proposal, taken as a whole, is inconsistent with the public convenience and necessity.
(f) Any certificates of need granted pursuant to this section
shall be conditioned on acceptance of:
(1) Solid waste generated within the county in which the
facility is or is to be located; and
(2) Solid waste generated within the wasteshed in which the
facility is or is to be located
(g) (e) An application for a certificate of need shall be
submitted prior to submitting an application for certificate of
site approval in accordance with section twenty-four, article four,
chapter twenty-two-c of this code. Upon the decision of the
commission to grant or deny a certificate of need, the commission
shall immediately notify the solid waste management board and the
division of environmental protection.
(h) (f) Any party aggrieved by a decision of the commission
granting or denying a certificate of need may obtain judicial
review thereof in the same manner provided in section one, article
five of this chapter.
(i) (g) No person may sell, lease or transfer a certificate of
need without first obtaining the consent and approval of the
commission pursuant to the provisions of section twelve, article
two of this chapter.
(h) The commission shall promulgate rules relating to the
types of facility modification or construction that require certificates of need.