Senate Bill No. 165
(By Senators Ross, Anderson,
Macnaughtan
,
Boley and Buckalew)
__________
[Introduced March 3, 1997; referred to the
Committee on Natural Resources;
and then to the Committee on the Judiciary.]
__________
A BILL to amend and reenact section one, article three,
chapter sixty-four of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating
to authorizing the division of environmental protection
to promulgate a legislative rule relating to hazardous
waste management.
Be it enacted by the Legislature of West Virginia:
That section one, article three, chapter sixty-four of
the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted to
read as follows:
ARTICLE 3. AUTHORIZATION FOR BUREAU OF ENVIRONMENT TO
PROMULGATE LEGISLATIVE RULES.
§64-3-1. Division of environmental protection.
(a) The legislative rules rule filed in the state
register on twenty-eighth day of July, one thousand
nine hundred ninety-five, authorized under the
authority of section four, article five, chapter
twenty-two of this code, relating to the division of
environmental protection (emission standards for
hazardous air pollutants pursuant to 40 CFR Part 63, 45
CSR 34), are is authorized.
(b) The legislative rules rule filed in the state
register on the twenty-eighth day of July, one thousand
nine hundred ninety-five, authorized under the
authority of section four, article five, chapter
twenty-two of this code, modified by the division of
environmental protection to meet the objections of the
legislative rule-making review committee and refiled in
the state register on the twenty-seventh day of
October, one thousand nine hundred ninety-five,
relating to the division of environmental protection
(to prevent and control air pollution from hazardous
waste treatment, storage or disposal facilities, 45 CSR
25), are is authorized.
(c) The legislative rules rule filed in the state
register on the twenty-eighth day of July, one thousand
nine hundred ninety-five, authorized under the
authority of section four, article five, chapter
twenty-two of this code, relating to the division of
environmental protection (acid rain provisions and
permits, 45 CSR 33), are is authorized.
(d) The legislative rules rule filed in the state
register on the thirty-first day of July, one thousand
nine hundred ninety-five, authorized under the
authority of section six, article seventeen, chapter
twenty-two of this code, modified by the division of
environmental protection to meet the objections of the
legislative rule-making review committee and refiled in
the state register on the eighteenth day of January,
one thousand nine hundred ninety-six, relating to the
division of environmental protection (underground
storage tanks, 47 CSR 36), are is authorized.
(e) The legislative rules rule filed in the state
register on the thirty-first thirtieth day of July
August, one thousand nine hundred ninety-five ninety-
six, authorized under the authority of section six,
article eighteen, chapter twenty-two of this code, modified by the division of environmental protection to
meet the objections of the legislative rule-making
review committee and refiled in the state register on
the eighteenth day of January, one thousand nine
hundred ninety-six, relating to the division of
environmental protection (hazardous waste management,
regulations, 47 33 CSR 35 20), are is authorized.
(f) The legislative rules rule filed in the state
register on the thirty-first day of July, one thousand
nine hundred ninety-five, authorized under the
authority of section four, article three, chapter
twenty-two of this code, modified by the division of
environmental protection to meet the objections of the
legislative rule-making review committee and refiled in
the state register on the twenty-third day of January,
one thousand nine hundred ninety-six, relating to the
division of environmental protection (surface mining
and reclamation regulations, 38 CSR 2), are is
authorized with the following amendments:
"On page 64, section 3.27, after the word 'Director' by
striking out the word 'may' and inserting in lieu
thereof the word 'shall';
On page 64, section 3.27, after the word 'completed' by striking out the remainder of the first paragraph and
inserting in lieu thereof the following words:
'and reclamation activities are ongoing.'
On page 156, section 11.6(c)(6)(A) after the word
'operations' by striking out the words 'within five (5)
years of the date of SMA approval,';
On page 156, section 11.6(c)(6)(B) after the word '(95- 87)' by striking out the words 'within five (5) years
of the date of SMA approval,';
On page 157, section 11.6(c)(6)(C) after the word
'State' by striking out the words 'within five (5)
years of the date of SMA approval,';
On page 163, section 11.6(d)(6)(A), after the word
'applicant' by striking out the words 'within five (5)
years of the date of SMA approval,';
On page 164, section 11.6(d)(6)(B), after the word '95- 87' by striking out the words 'within five (5) years of
the date of SMA approval,';
On page 164, section 11.6(d)(6)(C), after the word
'wetlands' by striking out the words 'within five (5)
years of the date of SMA approval,';
On page 169, section 11.6(e)(5)(A), after the word '95- 87' by striking out the words 'within five (5) years of the date of SMA approval,';
On page 169, section 11.6(e)(5)(B), after the word
'wetlands' by striking out the words 'within five (5)
years of the date of SMA approval,';
On page 175, section 11.6(f)(5)(A), after the word '95- 87', by striking out the words 'within five (5) years
of the date of SMA approval,';
On page 175, section 11.6(f)(5)(B), after the word
'enhancement' by striking out the words 'of wetlands
within five (5) years of the date of SMA approval,'.
On page 178, section 12.2 subsection (e) by striking
12.2.e in its entirety and inserting in lieu thereof
the following:
'Notwithstanding any other provisions of this rule, no
bond release or reduction will be granted if, at the
time, water discharged from or affected by the
operation requires chemical treatment in order to
comply with applicable effluent limitations or water
quality standards: Provided, That the Director may
approve a request for Phase I but not Phase II or III,
release if the applicant demonstrates to the
satisfaction of the Director that either:
(A) The remaining bond is adequate to assure long term
treatment of the drainage; or
(B) The operator has irrevocably committed other
financial resources which are adequate to assure long
term treatment of the drainage: Provided, That the
alternate financial resources must be in acceptable
form, and meet the standards set forth in Section 11 of
the Act and Section 11 of this rule: Provided,
however, That the alternate financial arrangements
shall provide a mechanism whereby the Director can
assume management of the resources and treatment work
in the event that the operator defaults for any reason:
And provided further, That default on a treatment
obligation under this paragraph shall be considered
equivalent to a bond forfeiture, and the operator will
be subject to penalties and sanctions, including permit
blocking, as if a bond forfeiture had occurred.
In order to make such demonstration as referenced
above, the applicant shall address, at a minimum, the
current and projected quantity and quality of drainage
to be treated, the anticipated duration of treatment,
the estimated capital and operating cost of the treatment facility, and the calculations which
demonstrate the adequacy of the remaining bond or of
the alternate financial resources.'
On page sixteen, section 38-2-2.106, after the words
'sum of the loading' by inserting the words 'or
driving'; and by striking out the words 'in a
constructed valley fill, backfill, dam, or refuse pile'
and inserting in lieu thereof the words 'as determined
by acceptable engineering practices';
On page twenty-eight, section 38-2-3.2(e), after the
words 'limited number of minor changes' by inserting
the words 'that do not significantly affect the health,
safety or welfare of the public and';
On page thirty-six, section 38-2-3.6(h)(5), after the
words 'as defined in' by striking out the words
'Article 5D of Chapter 20' and inserting in lieu
thereof the words 'Article 14 of Chapter 22';
On page thirty-nine, section 38-2-3.8(c), at the end
after the words 'reasonable time for compliance.', by
inserting a new sentence to read as follows:
'Provided, That those structures and facilities, where
it can be demonstrated that reconstruction or revision would result in greater environmental harm and the
performance standards set forth in the Act and these
regulations can otherwise be met, may be exempt from
revision or reconstruction.';
On page one hundred seventy-eight, section 38-2- 12.2(d), after the words 'until all coal extraction
operations' by inserting the words 'for the permit or
increment thereof', and after the words 'the entire
disturbed area' by inserting the words 'for the permit
or increment thereof';
On page one hundred ninety-seven, section 38-2- 14.3(c)(2), after the words 'medium is the best' by
inserting the word 'reasonably';
And,
On page two hundred fifteen, section 38-2-14.14(e)(4),
by striking the sentence 'Runoff from areas above and
adjacent to the fill shall not be allowed to flow onto
the fill surface, and shall be diverted into stabilized
diversion channels, designed and constructed to safely
pass the peak runoff from a 100 year, 24 hour
precipitation event.' and inserting in lieu thereof the
sentences 'Surface water runoff from areas above and
adjacent to the fill shall be diverted into properly designed and constructed stabilized diversion channels
which have been designed using best current technology
to safely pass the peak runoff from a 100 year, 24 hour
precipitation event. The channel shall be designed and
constructed to ensure stability of the fill, control
erosion, and minimize water infiltration into the
fill.'"
(g) The legislative rules rule filed in the state
register on the twenty-sixth day of July, one thousand
nine hundred ninety-five, authorized under the
authority of section four, article twenty-one, chapter
twenty-two of this code, modified by the division of
environmental protection to meet the objections of the
legislative rule-making review committee and refiled in
the state register on the fourteenth day of December,
one thousand nine hundred ninety-five, relating to the
division of environmental protection (coalbed methane
wells, 38 CSR 23), are is authorized.
(h) The legislative rules rule filed in the state
register on the twenty-third day of November, one
thousand nine hundred ninety-four, authorized under the
authority of section eight, article eleven, chapter
twenty of this code, modified by the division of environmental protection to meet the objections of the
legislative rule-making review committee and refiled in
the state register on the twentieth day of December,
one thousand nine hundred ninety-five, relating to the
division of environmental protection (waste tire
management, 47 CSR 38G), are is authorized.
(i) The legislative rules rule filed in the state
register on the twenty-second day of June, one thousand
nine hundred ninety-five, authorized under the
authority of section twenty, article fifteen, chapter
twenty-two of this code, modified by the division of
environmental protection to meet the objections of the
legislative rule-making review committee and refiled in
the state register on the twenty-second day of
December, one thousand nine hundred ninety-five,
relating to the division of environmental protection
(sewage sludge management, 47 CSR 38D), are is
authorized with the amendments set forth below:
On page seven, section 3.2.2, by striking out the words
"Table 3 of this rule will automatically be repealed
and replaced with Table 3A of this rule on December 31,
1997, unless this provision is modified prior to that
date.";
And,
On page seven, section 3.2.2, after the word "rule."
by inserting the following: The director is authorized
until Dec. 31, 1999, to issue variances to this section
to allow land application to soils which exceed the
maximum soil concentrations of metals listed in Table 3
where soil analyses demonstrate that other soil
factors, including, but not limited to, soil pH, cation
exchange capacity, organic matter content, or clay
content, will limit mobility and availability of the
metals. No later than June 30, 1999, the director
shall propose revisions to Table 3 to adequately
protect soil quality, human health and the
environment',
And,
On page 20, by striking the following from Table 3:
"NOTE: Table 3 of this rule will automatically be
repealed and replaced with Table 3A of this rule on
December 31, 1997, unless the provision of paragraph
3.2.2 of this rule is modified prior to that date.",
And,
On page 21, by striking out all of Table 3A.
(j) The legislative rules rule filed in the state register on the thirty-first day of July, one thousand
nine hundred ninety-five, authorized under the
authority of section four, article five, chapter
twenty-two of this code, relating to the division of
environmental protection (to prevent and control of air
pollution from the emission of volatile organic
compounds, 45 CSR 21), are is authorized with the
following amendment:
"On pages 170 and 171, by striking out section 40 in
its entirety and inserting in lieu thereof a new
section 40, to read as follows:
§45-21-40. Other Facilities that Emit Volatile Organic Compound (VOC).
40.1. Applicability.
a. This section 40. applies to any facility that has
aggregate maximum theoretical emissions of 90.7
megagrams (mg) (100 tons) or more of volatile organic
compounds (VOCs) per calendar year in the absence of
control devices; provided that this section 40. applies
to any source or sources within such facility other
than those sources subject to regulation under sections
11. through 39. VOC emissions from sources regulated
under sections 11. through 39., but which fall below the applicability thresholds of these sections, and
thus are not subject to the emissions control standards
of these sections, shall be included in the
determination of maximum theoretical emissions for a
facility but shall not be subject to the requirements
of this section 40. Emissions from sources listed in
section 40.1.d. shall not be included in the
determination of maximum theoretical emissions for a
facility.
b. The owner or operator of a coating line or
operation, whose emissions are below this applicability
threshold, shall comply with the certification,
recordkeeping, and reporting requirements of section
40.6.a.
c. The owner or operator of a non-coating source, whose
emissions are below this applicability threshold, shall
comply with the certification, recordkeeping, and
reporting requirements of section 40.6.b.
d. The requirements of this section 40. shall not apply
to coke ovens (including by-product recovery plants),
fuel combustion sources, barge loading facilities, jet
engine test cells, vegetable oil processing facilities,
wastewater treatment facilities, iron and steel production, surface impoundments, pits; and boilers,
industrial furnaces, and incinerators having a
destruction efficiency of 95 percent or greater.
e. The requirements of this section 40. shall not apply
to any facility bound by an order or permit,
enforceable by the Director, which limits the
facility's emissions to less than 100 tons of VOC per
calendar year without the application of control
devices.
40.2. Definitions. -- As used in this section 40., all
terms not defined herein shall have the meaning given
them in section 2.
a. 'Reasonably available control measures' (also
denoted as RACM) means an emission limit or limits
that reflect the application of control technology
and/or abatement techniques or measures that are
reasonably available, considering technological and
economic feasibility. Such emission limits may be
considered on a plant-wide basis to achieve emission
reduction requirements in the most cost effective
manner.
b. "Fugitive emissions" means those emissions which
could not reasonably pass through a stack, chimney, vent, or other functionally equivalent opening.
40.3. Standards. -- The owner or operator of a
facility subject to this section 40. shall:
a. Except as provided in section 40.3.b.,
1. With respect to any existing non-fugitive emission
source which has maximum theoretical emissions of 6
pounds per hour or more, comply with an emission
control plan established on a case-by-case basis
approved by the Director that meets the definition of
reasonably available control measures (RACM) and
achieves at least a 90 percent reduction in emissions
below the total (aggregate) maximum theoretical
emissions from all such non-fugitive emission sources
subject to RACM requirements; and
2. With respect to each process unit producing a
product or products, intermediate or final, in excess
of 1000 megagrams (Mg) (1,100 tons) per year,
regardless of whether such product or products are
listed in 40 CFR 60.489, comply with an emission
control plan for fugitive sources using the methods and
criteria of section 37., or alternative methods and
criteria approved by the Director. The Director may
exempt a process unit from fugitive emission control requirements upon satisfactory demonstration that
emissions are of minor significance.
b. With respect to such sources as described in
sections 40.3.a.1. and 40.3.a.2., comply with emission
limits and measures based upon an alternative emissions
reduction plan approved by the Director considering
technical, economic and air quality benefit
considerations that, at a minimum, maintains emission
control measures incorporated as part of any federally
approved maintenance plan for the county or area in
which the source is located.
c. With respect to any source at a facility subject to
this section 40., which source has maximum theoretical
emissions of 6 pounds per hour or more and is
constructed, modified or begins operating after the
effective date of this rule, comply with a control plan
developed on a case-by-case basis approved by the
Director that meets the definition of reasonably
available control technology (RACT) in section 2.60.
for both fugitive and non-fugitive emission
sources.
40.4. Submissions and Approval of Control Plans
a. Within 90 days after the effective date of this rule, the owner or operator of a facility subject to
this section 40. shall submit any required amendments
to the case-by-case RACT control plans previously
submitted to the Director, that revise such control
plans to meet the definition of reasonably available
control measures (RACM).
b. Notwithstanding the provisions of section 9.2., the
owner or operator of a facility subject to this rule
solely due to this section 40., that requires a major
process change and/or major capital investment to
comply with RACM requirements, may petition the
Director for an additional extension beyond December
31, 1996, for compliance certification, and the
Director may grant such extension when warranted.
Provided however, such compliance certification date
shall be no later July 31, 1997.
c. The Director shall not approve a RACM plan or an
alternative emissions reduction plan under this section
40. unless such plan includes:
1. A commitment to develop and submit a complete RACT
plan to the Director within 180 days of a finding by
the Director that a violation of the National Ambient
Air Quality Standard for ozone has occurred within the county or maintenance area in which the source is
located; and
2. A commitment to achieving full implementation of
RACT within 2 years of approval of the RACT plan by the
Director.
d. A finding by the Director that a violation of the
National Ambient Air Quality Standard for ozone has
occurred shall be made based upon verification of a
monitored ozone standard violation in the county or
maintenance area in which the source is located. The
three maintenance areas (the Huntington area,
comprising Cabell and Wayne counties; the Charleston
area, comprising Kanawha and Putnam counties; and the
Parkersburg area, comprising Wood county) shall be
treated separately and independently for any such
finding(s).
e. All RACM control plans, RACT control plans, and
alternative emissions reduction plans approved by the
Director pursuant to this section 40. shall be embodied
in a consent order or permit in accordance with 45CSR13
or 45CSR30, as required. A facility owner or operator
may at any time petition the Director to approve
revisions to these plans. The decision concerning said petition shall be issued by the Director in accordance
with 45CSR13 or 45CSR30, as required, or a consent
order. Any such revisions shall be subject to the
public participation requirements of 45CSR13 or
45CSR30.
f. The owner or operator of a facility subject to this
section 40. may submit for approval by the Director an
emission control plan that meets the definition of
reasonably available control technology (RACT) in
section 2.60.
40.5. Test methods and procedures. -- The owner or
operator of any source subject to this section 40.
shall demonstrate compliance with section 40.3. by
using the applicable test methods specified in sections
41. through 46 or by other means approved by the
Director. Notwithstanding the requirements of section
41.1., EPA approval for alternate test methods to
demonstrate compliance shall not be required for
sources which are subject solely to emission control
requirements specified in section 40.3.
40.6. Reporting and Recordkeeping Requirements for
Exempt Non-Control Technique Guideline (CTG) Sources.
a. An owner or operator of a coating line or operation that is exempt from the emission limitations in section
40.3. shall comply with the certification,
recordkeeping, and reporting requirements in section
4.2.
b. An owner or operator of a non-coating source that is
exempt from the emission limitations in section 40.3.
shall submit, upon request by the Director, records
that document that the source is exempt from these
requirements.
1. These records shall be submitted to the Director
within 30 days from the date of request.
2. If such records are not made available, the source
will be considered subject to the limits in section
40.3.
40.7. Reporting and Recordkeeping Requirements for
Subject Non-CTG Coating Sources. -- An owner or
operator of a coating line or operation subject to this
section 40. and complying with section 40.3. shall
comply with the certification, recordkeeping, and
reporting requirements in section 4.
40.8. Reporting and Recordkeeping Requirements for
Subject Non-CTG, Non-Coating Sources.
a. The owner or operator of the subject VOC sources shall perform all testing and maintain the results of
all tests and calculations required under sections
40.3. and 40.5. to demonstrate that the subject source
is in compliance.
b. The owner or operator of the subject VOC source
shall maintain these records in a readily accessible
location for a minimum of 3 years, and shall make these
records available to the Director upon verbal or
written request.
c. The owner or operator of any facility containing
sources subject to this section 40. shall comply with
the requirements in section 5. except that such
requirements, as they apply to sources solely subject
to this section 40., may be modified by the Director
upon petition by the owner or operator. Any such
modified requirements shall be embodied in the
facility's control plan (RACM, RACT or alternative
plan) and reflected in the associated consent order or
permit issued pursuant to 45CSR13 or 45CSR30.'"
(k) The legislative rules rule filed in the state
register on the twenty-seventh day of July, one
thousand nine hundred ninety-five, authorized under the
authority of section five, article twelve, chapter twenty-two of this code, modified by the division of
environmental protection to meet the objections of the
legislative rule-making review committee and refiled in
the state register on the seventeenth day of January,
one thousand nine hundred ninety-six, relating to the
division of environmental protection (monitoring well
design standards, 47CSR60), are is authorized.
(l) The legislative rules rule filed in the state
register on the thirty-first day of July, one thousand
nine hundred ninety-five, authorized under the
authority of section five, article fifteen, chapter
twenty-two of this code, modified by the division of
environmental protection to meet the objections of the
legislative rule-making review committee and refiled in
the state register on the twenty-fourth day of January,
one thousand nine hundred ninety-six, relating to the
division of environmental protection (solid waste
management, 47 CSR 38), are is authorized with the
following amendments:
"On page 37, subdivision 3.8.4, after the words 'from
the uppermost' by striking the word 'significant.'
On page 142, by striking the existing subdivision
4.11.2.c.A and inserting in lieu thereof the following:
'4.11.2.c.A
The monitoring frequency for all constituents listed in
Appendix I of this rule, must be at least twice a year
during the active life of the facility, including
closure and the post-closure periods. The director
may require more frequent monitoring on a site- specific basis by considering aquifer flow rate and
existing quality of the groundwater.'
On page 148, by striking the existing subdivision
4.11.3.i.A. and inserting in lieu thereof the
following:
'4.11.3.i.A.
The director may consider an alternative groundwater
protection standard in consultation with the
environmental quality board pursuant to 47CSR57 for
constituents for which water quality standards have not
been established.'
On page 151, subdivision 4.11.5., by following the
words 'any applicable groundwater quality protection
standards' by inserting the words 'and/or background
groundwater quality, pursuant to the requirements of
the Groundwater Protection Act, WVC §22-12-1 et seq.'
On page 152, subdivision 4.11.6.b.A., by following the
words 'Be protective of human health and the
environment' inserting the words 'and maintain existing
groundwater quality, pursuant to the requirements of
the Groundwater Protection Act, WVC §22-12-1 et seq.'
On page 154, subdivision 4.11.6.d.B.(f), by striking
the words 'Resource value of the aquifer' and inserting
in lieu thereof the words 'The hydrogeologic
characteristics of the facility and the surrounding
land,'
On page 154, subdivision 4.11.6.d.B(f).(e) by striking
out the words "The hydrogeologic characteristics of the
facility and surrounding land;
And, by renumbering and relettering the remaining
subdivisions of the rule.
On page 156, subdivision 4.11.7.a.A., by following the
words 'Demonstrate compliance with' inserting the words
'the Groundwater Protection Act, WVC §22-12-1 et seq.,
and/or the''
And,
On page 173, subdivision 5.4.3, by adding the following
sentence to the end of the subdivision: 'A class D
facility other than a class D-1 solid waste facility shall not exceed two (2) acres in size.'"
NOTE: The purpose of this bill is to authorize the
Division of Environmental Protection to promulgate a
legislative rule relating to Hazardous Waste
Management.
Strike-throughs indicate language that would be
stricken from the present law, and underscoring
indicates new language that would be added.