H. B. 4028
(By Delegates Linch, Hunt, Mahan,
Staton, Riggs, Thomas and Amores)
[Introduced January 19, 1998; referred to
the Committee on the Judiciary then Finance.]
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, 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 record keeping; 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, liter 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; and 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 citizen 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)
U
ncontrolled, 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 non-profit 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 rule making.
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 waste water treatment
capabilities; and
(4) other factors related to the environmentally safe and
efficient disposal of solid waste.
(e) 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.
(f) 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 waste water 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.
(g) 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 decision making 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.
§22-4-9c. 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 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:
"
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 an 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
:
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 in 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 in-put 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.
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 articles 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 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 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 re 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.
NOTE: The purpose of this bill is to
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§22-15-9a, 9b and 9c are new; therefore, strike-throughs and
underscoriing have been omitted.