H. B. 2825
(By Delegates Manuel, Amores, Mahan,
Buchanan, Fleischauer and Trump)
[Introduced March 28, 1997; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section ten, article fifteen, chapter
twenty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section one-c, article two, chapter twenty-four of said
code, all relating to access to the services of commercial
solid waste facilities generally; and considerations in
granting a certificate of need.
Be it enacted by the Legislature of West Virginia:
That section ten, article fifteen, chapter twenty-two of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, 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.
§22-15-10. 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 may not discriminate in favor of
or against the receipt of any waste otherwise eligible for
disposal at the facility merely because its geographical origin
is within or without the state. The facility shall ensure
evenhanded access to its services by in-state customers as well
as out-of-state customers.
(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.
(h) The director shall promulgate legislative rules pursuant
to article three, chapter twenty-nine-a of this code which
reflect the purposes as set forth in this section.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-1c. Certificate 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) 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) For purposes of subsections (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 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 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 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 lifespan and closure date of the
facility; and
(8) Any other information requested on the forms prescribed
by the public service commission.
(d) 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;
(2) The total tonnage of solid waste generated within the
wasteshed;
(3) The current capacity and lifespan of other solid waste
facilities located within the county, if any;
(4) The current capacity and lifespan of other solid waste
facilities located within the wasteshed, if any;
(5) The current capacity and lifespan of other solid waste
facilities located within this state;
(6) The lifespan of the proposed or existing facility;
(7) The cost of transporting solid waste from the points of
generation within the county or wasteshed and the disposal
facility;
(8) The impact of the proposed or existing facility on needs
and criteria contained in the statewide solid waste management
plan; and
(9) Any other criteria which the commission regularly
utilizes in making such determinations Any certificate of need
granted pursuant to this section shall be conditioned on the
facility's acceptance on an evenhanded basis of any waste
otherwise eligible for disposal at the facility regardless of
whether its geographic origin is within or without the state.
(e) 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
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 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.
NOTE: The purpose of this bill is to establish evenhanded
access to the services of commercial solid waste facilities, and
to establish evenhanded considerations in granting a certificate
of need to commercial solid waste facilities.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.