ENROLLED
Senate Bill No. 289
(By Senators Brackenrich, Dalton, Chafin, Blatnik,
Humphreys, Walker, Craigo, Dittmar, Helmick,
Plymale, Manchin, Jones, Ross, Chernenko,
Wiedebusch, Burdette, Mr. President, Bailey,
Tomblin, Wagner, Whitlow, Boley, Macnaughtan,
Felton, Sharpe, Wehrle, Claypole and Yoder)
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[Passed March 31, 1993; in effect from passage.]
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AN ACT to amend and reenact sections five and eight, article
five-f, chapter twenty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to amend
article two, chapter twenty-four of said code by adding
thereto a new section, designated section one-i, all
relating to solid waste facilities generally, providing for
local solid waste to apply to director of the division of
environmental protection for modification of permits,
providing for extensions of the solid waste facility closure
deadline, providing that appeal from decision of director of
the division of environmental protection shall be made to
circuit court of the county in which the solid waste
facility is located, and providing for issuance of emergency
certificate of need by public service commission to increase
maximum monthly solid waste disposal tonnage.
Be it enacted by the Legislature of West Virginia:
That sections five and eight, article five-f, chapter twenty
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; and that
article two, chapter twenty-four of said code be amended by
adding thereto a new section, designated section one-i, all to
read as follows:
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 5F. SOLID WASTE MANAGEMENT ACT.
§20-5F-5. Prohibitions; permits required; priority of disposal.
(a) Open dumps are prohibited and it shall be 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 his property
unless that open dump is under a compliance schedule approved by
the chief. 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 shall not be deemed to
constitute 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 shall not constitute a violation
of this section: Provided, That no person shall contributeadditional 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 shall not be liable for such unauthorized dumping
unless such landowners refuse to cooperate with the division of
natural resources in stopping such unauthorized dumping.
(b) It shall be unlawful for any person, unless he 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 five-a and the rules promulgated thereunder, so that only
a single permit shall be 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
chief 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 five-a 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 and regulations promulgated by the director
of the division of natural resources.
(d) All existing permits of the division of health for solid
waste facilities under section nine, article one, chapter sixteen
of this code shall continue in full force and effect until a
permit is issued for that approved solid waste facility under
this article: Provided, That all such existing permits of the
division of health shall expire within five years of the tenth
day of June, one thousand nine hundred eighty-three. Within four
years of the tenth day of June, one thousand nine hundred
eighty-three, all persons holding such division of health permits
shall apply to the chief for a permit under this article:
Provided, however, That the chief may require persons holding
such existing health division permits to reapply under this
section prior to four years from the tenth day of June, one
thousand nine hundred eighty-three, if persistent violations of
this article, any permit term or condition, orders or rules
promulgated under this article, exist at that facility.
Notwithstanding any other provision contained in this subsection,
the division of natural resources may enter an extension order
for a period of two years while an application for a permit
pursuant to this article is pending.
(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 of the division
of natural resources: 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 thedirector of the division of natural resources, the director of
the division of 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 of the division of
environmental protection to modify the applicable permit. The
director of the division of environmental protection, 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.
(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 needshall 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 of natural resources in accordance
with the provisions of this article.
(h) The director of the division of natural resources shall
promulgate legislative rules pursuant to chapter twenty-nine-a of
this code which reflect the purposes as set forth in this
article.
§20-5F-8. Limited extension of solid waste facility closure
deadline.
(a) The director of the division of environmental protection
shall grant an extension of the closure deadline up to the
thirtieth day of June, one thousand nine hundred ninety-three, to
a solid waste facility, required by solid waste management
regulations to close by the thirty-first day of March, one
thousand nine hundred ninety-three, requesting such extension
pursuant to the terms of subsection (b) of this section. The
director may also grant an extension of the closure deadline up
to the thirtieth day of September, one thousand nine hundred
ninety-four, to a solid waste facility required under the terms
of an extension granted pursuant to this subsection to close by
the thirtieth day of June, one thousand nine hundred
ninety-three, or required by solid waste management regulations
to close by the thirtieth day of September, one thousand nine
hundred ninety-three, provided that the solid waste facility:
(1) Has a solid waste facility permit, or by the first day
of March, one thousand nine hundred ninety-three, had anapplication to obtain a permit pending before the division of
environmental protection for the construction of a landfill in
accordance with title forty-seven, series thirty-eight, solid
waste management regulations; and
(2) Has a certificate of need or had an application pending
therefor, from the public service commission; and
(3) Has been determined by the director to pose no
significant hazard to public health, safety or the environment;
and
(4) Has entered into a compliance schedule with the division
of environmental protection to be in full compliance, no later
than the thirtieth day of September, one thousand nine hundred
ninety-four, with title forty-seven, series thirty-eight, solid
waste management regulations or to be in full compliance, no
later than the thirtieth day of September, one thousand nine
hundred ninety-four, with preclosure provisions of title
forty-seven, series thirty-eight, solid waste management
regulations: Provided, That no such extension of closure
deadline shall extend beyond the thirty-first day of March, one
thousand nine hundred ninety-four, for any landfill in a county
in which there is also located a commercial solid waste landfill
which has installed a composite liner system in accordance with
the requirements of the solid waste management regulations.
(b) Any commercial solid waste facility seeking to extend
its closure deadline until the thirtieth day of June, one
thousand nine hundred ninety-three, shall submit a request for an
extension with the director, postmarked no later than the tenthday after this section becomes law. Any solid waste facility
seeking to extend its closure deadline until the thirtieth day of
September, one thousand nine hundred ninety-four, shall submit to
the director, no later than the thirtieth day of April, one
thousand nine hundred ninety-three, an application sufficient to
demonstrate compliance with the requirements of subsection (a) of
this section. The director shall grant or deny any application
within thirty days of receipt thereof: Provided, That as a
condition precedent for granting such closure extension, a solid
waste facility must enter into an agreement with the director
that the solid waste facility shall, no later than the thirtieth
day of September, one thousand nine hundred ninety-three,
complete and submit to the director an analysis of the facility's
specific requirements and cost to comply with the applicable
design criteria, groundwater monitoring provisions of title
forty-seven, series thirty-eight, solid waste management
regulations and the corrective action, financial assurance and
closure and post-closure care provisions of Subtitle (d) of the
federal Resource Conservation and Recovery Act, 42 U.S.C.
6941-6949.
(c) Any party who is aggrieved by an order of the director
regarding the grant or denial of an extension of the closure
deadline for a solid waste facility pursuant to this section may
obtain judicial review thereof in the same manner as provided in
section four, article five, chapter twenty-nine-a of this code,
which provisions shall apply to and govern such review with like
effect as if the provisions of said section were set forth inextenso in this section, except that the petition shall be filed,
within the time specified in section four, article five, chapter
twenty-nine-a of this code, in the circuit court of the county
where such facility exists: Provided, That the court shall not in
any manner permit the continued acceptance of solid waste at the
facility pending review of the decision of the director of the
division.
(d) The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals, in accordance with the provisions of section one,
article six, chapter twenty-nine-a of this code, except that
notwithstanding the provisions of said section, the petition
seeking such review must be filed with said supreme court of
appeals within thirty days from the date of entry of the judgment
of the circuit court.
(e) The director of the division of natural resources shall
grant an extension of the closure deadline not to exceed the
thirtieth day of September, one thousand nine hundred ninety-
three, to a solid waste facility required by solid waste
management regulations to close by the thirtieth day of November,
one thousand nine hundred ninety-two.
?(f) Notwithstanding any other provision of this article, the
director, upon receipt of a request for an extension, shall grant
an extension of the closure deadline up to the thirtieth day of
September, one thousand nine hundred ninety-four, to any solid
waste facility required to close on the thirty-first day of
March, one thousand nine hundred ninety-three, or the thirtiethday of September, one thousand nine hundred ninety-three, which
is owned by a solid waste authority or owned by a municipality
and which accepts at least thirty percent of its waste from
within the county in which it is located and which has not been
determined by the director to pose a significant risk to human
health and safety or cause substantial harm to the environment
and which could not be granted an extension up to the thirtieth
day of September, one thousand nine hundred ninety-four, pursuant
to the terms of subsections (a) and (b) of this section if:
(1) The cost of transporting the waste is prohibitive; or
(2) The cost of disposing of waste in other solid waste
facilities within the wasteshed would increase.
(g) Notwithstanding any other provision of this article, the
director shall grant an extension of the closure deadline up to
the thirtieth day of September, one thousand nine hundred
ninety-four, to any solid waste landfill which, on or before the
first day of March, one thousand nine hundred ninety-three, has
entered into a compliance schedule with the director for the
construction of a transfer station or to any solid waste landfill
which on the first day of March, one thousand nine hundred
ninety-three, is already in the process of constructing a solid
waste transfer station and applies by the first day of April, one
thousand nine hundred ninety-three, to enter into with the
director, a compliance schedule for the completion of the
transfer station: Provided, That upon the completion of the
transfer station and commencement of operations of the transfer
station, such landfill shall cease accepting solid waste fordisposal.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-1i. Commission authorized to issue emergency certificate
of need to certain commercial solid waste facilities;
division of environmental protection to modify facility
permit; criteria for emergency certificates.
(a) Notwithstanding any provision of this article, or any
provision of article five-f or nine, chapter twenty, or any other
provision of this code, upon the application of any commercial
solid waste facility, the commission may grant to a commercial
solid waste facility an emergency certificate of need to increase
the maximum monthly solid waste disposal tonnage, for a period
not to exceed one year, to the extent deemed necessary to prevent
any disruption of solid waste disposal services in any county or
wasteshed of the state resulting from the closure of an existing
landfill in said county or wasteshed. The authority granted to
the commission under this section shall expire after the
thirtieth day of September, one thousand nine hundred
ninety-three. No temporary certificate issued pursuant to this
section shall extend beyond the thirtieth day of September, one
thousand nine hundred ninety-four. The director of the division
of environmental protection shall modify any commercial solid
waste facility permit, issued under article five-f, chapter
twenty of this code, to conform with the maximum monthly solid
waste disposal tonnage and any other terms and conditions set
forth in a temporary certificate issued under this section.
(b) If the net tonnage increase under a temporary
certificate application made pursuant to subsection (a) of this
section would cause the gross monthly solid waste disposal
tonnage of such facility to exceed ten thousand tons, a temporary
certificate shall be issued only if the solid waste facility has:
(1) Obtained from the county or regional solid waste authority
for the county or counties in which the facility is located a
certificate of site approval or approval for conversion from a
Class B facility to a Class A facility; and (2) obtained from the
county or regional solid waste authority for the county or
counties in which the facility is located approval to increase
the maximum monthly tonnage disposed at the facility; and (3)
obtained from the county commission for the county or counties in
which the landfill is located approval to operate as a Class A
facility; and (4) has a certificate of need application pending
before the public service commission; and (5) has installed a
composite liner system in compliance with the requirements set
forth in the solid waste management regulations promulgated by
the division of environmental protection or its predecessor.
Such emergency certificate shall not authorize an increase in the
maximum monthly solid waste disposal tonnage in an amount greater
than that approved by the county or regional solid waste
authority for the county or counties in which the landfill is
located.