H. B. 2479
(By Mr. Speaker, Mr. Chambers, and Delegate Burk)
(By Request of the Executive)
[Introduced March 4, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section two, article five-f, chapter
twenty of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to further amend said
article five-f by adding thereto a new section, designated
section two-b; to amend and reenact section twelve-b,
article nine of said chapter twenty; and to amend and
reenact section twelve, article eleven of said chapter
twenty, all relating to authorizing the division of
environmental protection to regulate materials recovery
facilities, mixed waste processing facilities, composting
facilities and recycling facilities, and siting approval
requirements.
Be it enacted by the Legislature of West Virginia:
That section two, article five-f, chapter twenty of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that said article five-f be
further amended by adding thereto a new section, designatedsection two-b; that section twelve-b, article nine of said
chapter twenty be amended and reenacted; and that section twelve,
article eleven of said chapter twenty be amended and reenacted,
all to read as follows:
ARTICLE 5F. SOLID WASTE MANAGEMENT ACT.
§20-5F-2. Definitions.
Unless the context clearly requires a different meaning, as
used in this article the terms:
(a) "Approved solid waste facility" means a solid waste
facility or practice which has a valid permit under this article.
(b) "Backhauling" means the practice of using the same
container to transport solid waste and to transport any substance
or material used as food by humans, animals raised for human
consumption or reusable item which may be refilled with any
substance or material used as food by humans.
(c) "Chief" means the chief of the section office of waste
management of the division of natural resources environmental
protection.
(d) "Commercial recycler" means any person, corporation or
business entity whose operation involves the mechanical
separation of materials for the purpose of reselling or recycling
at least seventy percent by weight of the materials coming into
the commercial recycling facility.
(e) "Municipal solid waste incineration" means the burning
of any solid waste collected by any municipal or residential
solid waste disposal company.
(f) "Commercial solid waste facility" means any solid waste
facility which accepts and is compensated for the receipt of
solid waste generated by sources other than the owner or operator
of the facility and shall not include an approved solid waste
facility owned and operated by a 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 shall
not include the legitimate reuse and recycling of materials land
upon which reused or recycled materials are legitimately applied
for structural fill, road base, mine reclamation and similar
applications.
(g) "Division" means the division of natural resources
environmental protection.
(h) "Director" means the director of the division of natural
resources environmental protection.
(i) "Open dump" means any solid waste disposal which does
not have a permit under this article, or is in violation of state
law, or where solid waste is disposed in a manner that does not
protect the environment.
(j) "Person" or "persons" or "applicant" 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; soilconservation district; watershed improvement district;
partnership; trust; estate; person or individual; group of
persons or individuals acting individually or as a group; or any
legal entity whatever.
(k) "Sludge" means any solid, semisolid, residue or
precipitate, separated from or created by a municipal, commercial
or industrial waste treatment plant, water supply treatment plant
or air pollution control facility or any other such waste having
similar origin.
(l) "Solid waste" means any garbage, paper, litter, refuse,
cans, bottles, waste processed for the express purpose of
incineration, 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 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 orsteam 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. "Solid waste"
shall not include materials which are recycled by being used or
reused in an industrial process to make a product, as an
effective substitute for commercial products, or are returned to
the original process as a substitute for raw material feedstock.
(m) "Solid waste disposal" means the practice of disposing
of solid waste including placing, depositing, dumping or throwing
or causing to be placed, deposited, dumped or thrown any solid
waste.
(n) "Solid waste disposal shed" means the geographical 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.
(o) "Solid waste facility" means any system, facility, land,
contiguous land, improvements on the land, structures or other
appurtenances or methods used for processing, recycling or
disposing of solid waste, including landfills, transfer stations,
materials recovery facilities, mixed waste processing facilities,
composting facilities, and other such facilities not herein
specified. Such facility shall be deemed to be situated, for
purposes of this article, in the county where the majority of thespatial area of such facility is located.
(p) "Class A facility" means a commercial solid waste
facility which handles an aggregate of between ten thousand and
thirty thousand tons of solid waste per month. Class A facility
shall include two or more Class B solid waste landfills owned or
operated by the same person in the same county, if the aggregate
tons of solid waste handled per month by such landfills exceeds
nine thousand nine hundred ninety-nine tons of solid waste per
month.
(q) "Applicant" means the person applying for a commercial
solid waste facility permit or similar renewal permit and any
person related to such person by virtue of common ownership,
common management or family relationships as the director of the
division of natural resources environmental protection may
specify, including the following: Spouses, parents and children
and siblings.
(r) "Energy recovery incinerator" means any solid waste
facility at which solid wastes are incinerated with the intention
of using the resulting energy for the generation of steam,
electricity or any other use not specified herein.
(s) "Incineration technologies" means any technology that
uses controlled flame combustion to thermally break down solid
waste, including refuse-derived fuel, to an ash residue that
contains little or no combustible materials, regardless of
whether the purpose is processing, disposal, electric or steam
generation or any other method by which solid waste isincinerated.
(t) "Incinerator" means an enclosed device using controlled
flame combustion to thermally break down solid waste, including
refuse-derived fuel, to an ash residue that contains little or no
combustible materials.
(u) "Materials recovery facility" means any solid waste
facility at which solid wastes source-separated materials or
materials recovered through a mixed waste processing facility
are manually or mechanically shredded or separated so that
materials are recovered from the general waste stream for
purposes of reuse and recycling, but does not include a
composting facility.
(v) "Source-separated materials" means materials separated
from general solid waste at the point of origin for the purpose
of reuse and recycling.
(w) "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.
(x) "Mixed solid waste" means solid waste from which
materials sought to be reused or recycled have not been source-
separated from general solid waste.
(y) "Composting facility" means any solid waste facility
processing solid waste by composting, including sludge
composting, organic waste or yard waste composting, but does not
include a facility for composting solid waste that is located atthe site where the waste was generated.
(z) "Recycling facility" means any solid waste facility for
the purpose of recycling at which neither land disposal nor
biological, chemical, or thermal transformation of solid waste
occurs.
(aa) "Landfill" means any solid waste facility for the
disposal of solid waste on land. Such facility is situated, for
purposes of this article, in the county where the majority of the
spatial area of such facility is located.
§20-5F-2b. Sludge management.
(a) The division is authorized to develop and implement a
comprehensive program for the regulation and management of
sludge. The division is authorized to require permits for all
facilities and activities which generate, process or dispose of
sludge by whatever means, including, but not limited to, land
application, composting, mixed waste composting, incineration or
any other method of handling sludge within the State.
(b) The director shall promulgate rules necessary for the
efficient and orderly regulation of sewage sludge no later than
ninety days after the effective date of this article. The
legislature finds and declares that conditions warranting a rule
to be promulgated as an emergency rule do exist and that the
promulgation of the initial rule required by this section should
be accorded emergency status.
(c) For those facilities which produce sludge and are
regulated by the division pursuant to an NPDES permit requiredunder article five-a of this chapter, a sludge processing permit
shall be a part of the existing water pollution control permit
and shall include a sludge management plan approved by the chief.
(d) For facilities covered by an existing solid waste
facility permit as required in this article, a sludge management
plan shall be filed as part of the application and all such
facilities shall be governed by applicable state and federal
rules and regulations.
(e) On and after the effective date of this section, any new
facility seeking to land apply, compost, incinerate or recycle
sludge shall first apply for and obtain a permit from the
division. No such permit may issue until the regulation provided
for in subsection (b) of this section is effective.
(f) The director shall require periodic monitoring data and
information on the sludge type and origin including quantity and
an analysis of constituents in accordance with state and federal
regulations.
(g) Before issuing any permit under this section, the
director shall make an affirmative finding that the sludge sought
to be permitted has been adequately tested and shown not to
contain heavy metals, pathogens, toxins or vectors in excess of
regulatory standards.
(h) All permit applications for new sludge management
facilities described above shall contain design criteria to
protect ground and surface waters of this state.
ARTICLE 9. COUNTY AND REGIONAL SOLID WASTE AUTHORITIES.
§20-9-12b. Siting approval for solid waste facilities; effect
on facilities with prior approval.
(a) It is the intent of the Legislature that all commercial
solid waste facilities operating in this state must receive site
approval at the local level, except for recycling facilities, as
defined in section two, article five-f of this chapter, that are
specifically exempted by section twelve, article eleven of this
chapter. Notwithstanding said intent, facilities which obtained
such approval from either a county or regional solid waste
authority, or from a county commission, under any prior enactment
in this code, and facilities which were otherwise exempted from
local site approval under any prior enactment in this code, shall
be deemed to have satisfied such requirement. All other
facilities, including facilities which received such local
approval but which seek to expand spatial area or to convert from
a Class B facility to a Class A facility, shall obtain such
approval only in the manner specified in sections twelve-c,
twelve-d and twelve-e of this article.
(b) In considering whether to issue or deny the certificate
of site approval as specified in sections twelve-c, twelve-d and
twelve-e of this article, the county or regional solid waste
authority or county commission shall base its determination upon
the following criteria: The efficient disposal of solid waste
generated within the county or region, economic development,
transportation facilities, property values, groundwater and
surface waters, geological and hydrological conditions, aestheticand 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, except that said facilities are not required to
obtain a certificate of need from the public service commission
and they are not subject to any referendum.
ARTICLE 11. WEST VIRGINIA RECYCLING PROGRAM.
§20-11-12. Recycling facilities exemption.
Recycling facilities, as defined in section two, article
five-f of this chapter, whose only function is to which only
accept free-of-charge, buy or transfer source separated material
or recycled material for use, resale or transfer for further
processing shall be exempt from the provisions of articles five-f
and nine of this chapter and sections one-c and one-f, article
two, chapter twenty-four of this code.
NOTE: The purpose of this bill is to authorize the division
of environmental protection to develop and implement a
comprehensive sludge management program. The bill also gives the
division clear authority to require permits and to regulate
materials recovery facilities, mixed waste processing facilities
and composting facilities, and establishes requirements for their
siting approval.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§20-5F-2b is new; therefore strike-throughs and underscoring
have been omitted.