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1 - WATER DEVELOPMENT AUTHORITY

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2 - WATER POLLUTION CONTROL REVOLVI

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3 - SOLID WASTE MANAGEMENT BOARD

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4 - COUNTY AND REGIONAL SOLID WASTE

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4A - LOCAL PARTICIPATION; REFERENDU

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6 - HAZARDOUS WASTE FACILITY SITING

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7 - ENVIRONMENTAL RESOURCES

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8 - SHALLOW GAS WELL REVIEW BOARD

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9 - OIL AND GAS CONSERVATION

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10 - INTERSTATE MINING COMPACT

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11 - INTERSTATE COMMISSION ON THE

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12 - OHIO RIVER VALLEY WATER SANIT

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CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS, AUTHORITIES, COMMISSIONS AND COMPACTS.
ARTICLE 5. COMMERCIAL HAZARDOUS WASTE MANAGEMENT FACILITY SITING BOARD.

§22C-5-1. Short title.

This article may be known and cited as the "Commercial Hazardous Waste Management Facility Siting Act."

§22C-5-2. Purpose and legislative findings.

(a) The purpose of this article is to establish a state commercial hazardous waste management facility siting board and to establish the procedure for which approval certificates are granted or denied for commercial hazardous waste management facilities.

(b) The Legislature finds that hazardous waste is generated throughout the state as a by-product of the materials used and consumed by individuals, businesses, enterprise and governmental units in the state, and that the proper management of hazardous waste is necessary to prevent adverse effects on the environment and to protect public health and safety. The Legislature further finds that:

(1) The availability of suitable facilities for the treatment, storage and disposal of hazardous waste is necessary to protect the environment resources and preserve the economic strength of this state and to fulfill the diverse needs of its citizens;

(2) Whenever a site is proposed for the treatment, storage or disposal of hazardous waste, the nearby residents and the affected county and municipalities may have a variety of reasonable concerns regarding the location, design, construction, operation, closing and long-term care of facilities to be located at the site, the effect of the facility upon their community's economic development and environmental quality and the incorporation of such concerns into the siting process;

(3) Local authorities have the responsibility for promoting public health, safety, convenience and general welfare, encouraging planned and orderly land use development, recognizing the needs of industry and business, including solid waste disposal and the treatment, storage and disposal of hazardous waste and that reasonable concerns of local authorities should be considered in the siting of commercial hazardous waste management facilities; and

(4) New procedures are needed to resolve many of the conflicts which arise during the process of siting commercial hazardous waste management facilities.

§22C-5-3. Definitions.

Unless the context clearly requires a different meaning, as used in this article the terms:

(a) "Board" means the commercial hazardous waste management facility siting board established pursuant to section four of this article;

(b) "Commercial hazardous waste management facility" means any hazardous waste treatment, storage or disposal facility which accepts hazardous waste, as identified or listed by the director of the division of environmental protection under article eighteen, chapter twenty-two of this code, generated by sources other than the owner or operator of the facility and does not include an approved hazardous waste facility owned and operated by a person for the sole purpose of disposing of hazardous wastes created by that person or such person and other persons on a cost-sharing or nonprofit basis;

(c) "Hazardous waste management facility" means any facility including land and structures, appurtenances, improvements and equipment used for the treatment, storage or disposal of hazardous wastes, which accepts hazardous waste for storage, treatment or disposal. For the purposes of this article, it does not include: (i) Facilities for the treatment, storage or disposal of hazardous wastes used principally as fuels in an on-site production process; or (ii) facilities used exclusively for the pretreatment of wastes discharged directly to a publicly owned sewage treatment works. A facility may consist of one or more treatment, storage or disposal operational units.

§22C-5-4. Establishment of commercial hazardous waste management facility siting board; composition; appointment; compensation; powers; rules; and procedures.

(a) The commercial hazardous waste management facility siting board is continued. It consists of nine members including the director of the division of environmental protection and the chief of the office of air quality of the division of environmental protection who are nonvoting members ex officio, two ad hoc members appointed by the county commission of the county in which the facility is or is proposed to be located who are residents of said county, and five other permanent members to be appointed by the governor with the advice and consent of the Senate, two of whom are representative of industries engaged in business in this state and three of whom are representative of the public at large. No two or more of the five permanent voting members of the board appointed by the governor shall be from the same county. Upon initial appointment one of said other five members shall be appointed for five years, one for four years, one for three years, one for two years and one for one year. Thereafter, said permanent members shall be appointed for terms of five years each. Vacancies occurring other than by expiration of a term shall be filled by the governor in the same manner as the original appointment for the unexpired portion of the term. The term of the ad hoc members continue until a final determination has been made in the particular proceeding for which they are appointed. Four of the voting members on the board constitute a quorum for the transaction of any business, and the decision of four voting members of the board is action of the board. No person is eligible to be an appointee of the governor to the board who has any direct personal financial interest in any commercial hazardous waste management enterprise. The five permanent voting members of the board shall annually elect from among themselves a chair no later than the thirty-first day of July of each calendar year. The board shall meet upon the call of the chair or upon the written request of at least three of the voting members of the board.

(b) Each member of the board, other than the two members ex officio, shall be paid, out of funds appropriated for such purpose as compensation for his or her services on the board, the sum of seventy-five dollars for each day or substantial portion thereof that he or she is actually engaged in their duties pursuant to this article. In addition, each member, including members ex officio, shall be reimbursed, out of moneys appropriated for such purpose, all reasonable sums which he or she necessarily expends in the discharge of duties as a member of the board. The division of environmental protection shall make available to the board such professional and support staff and services as may be necessary in order to support the board in carrying out its responsibilities within the limit of funds available for this purpose. The office of the attorney general shall provide legal advice and representation to the board as requested, within the limit of funds available for this purpose, or the board, with the written approval of the attorney general, may employ counsel to represent it.

(c) After the eighth day of April, one thousand nine hundred eighty-nine, no person shall construct or commence construction of a commercial hazardous waste management facility without first obtaining a certificate of site approval issued by the board in the manner prescribed herein. For the purpose of this section, "construct" and "construction" means (i) with respect to new facilities, the significant alteration of a site to install permanent equipment or structures or the installation of permanent equipment or structures; (ii) with respect to existing facilities, the alteration or expansion of existing structures or facilities to include accommodation of hazardous waste, or expansion of more than fifty percent the area or capacity of an existing hazardous waste facility, or any change in design or process of a hazardous waste facility that will result in a substantially different type of facility. Construction does not include preliminary engineering or site surveys, environmental studies, site acquisition, acquisition of an option to purchase or activities normallyincident thereto.

(d) Upon receiving a written request from the owner or operator of the facility, the board may allow, without going through the procedures of this article, any changes in the facilities which are designed (1) to prevent a threat to human health or the environment because of an emergency situation; (2) to comply with federal or state laws and regulations; or (3) to result in demonstrably safer or environmentally more acceptable processes.

(e) An application for certificate of site approval consists of a copy of all hazardous waste permits, if any, and permit applications, if any, issued by or filed with any state permit-issuing authority pursuant to article eighteen, chapter twenty-two of this code and a detailed written analysis with supporting documentation of the following factors:

(1) The nature of the probable environmental and economic impacts, including, but not limited to, specification of the predictable adverse effects on quality of natural environment, public health and safety, scenic, historic, cultural and recreational values, water and air quality, wildlife, property values, transportation networks and an evaluation of measures to mitigate such adverse effects;

(2) The nature of the environmental benefits likely to be derived from such facility, including the resultant decrease in reliance upon existing waste disposal facilities which do not comply with applicable laws and rules, and a reduction in fuel consumption and vehicle emissions related to long-distance transportation of hazardous waste; and

(3) The economic benefits likely to be derived from such facility, including, but not limited to, a reduction in existing costs for the disposal of hazardous waste, improvement to the state's ability to retain and attract business and industry due to predictable and stable waste disposal costs, and any economic benefits which may accrue to the municipality or county in which the facility is to be located.

(f) On or before sixty calendar days after the receipt of such application, the board shall mail written notice to the applicant as to whether or not such application is complete. If, or when, the application is complete, the board shall notify the applicant and the county commission of the county in which the facility is or is proposed to be located. Said county commission shall thereupon, within thirty days of receipt of such notice, appoint the two ad hoc members of the board to act upon the application.

(g) Immediately upon determining that an application is complete, the board shall, at the applicant's expense, cause a notice to be published in the state register, which shall be no later than thirty calendar days after the date of such written notice of completeness, and shall provide notice to the chief executive office of each municipality in which the proposed facility is to be located and to the county commission of the county in which the facility is proposed to be located, and shall direct the applicant to provide reasonable notice to the public which shall, at a minimum, include publication as a Class I-O legal advertisement in at least two newspapers having general circulation in the vicinity in which the proposed facility is to be located identifying the proposed location, type of facility and activities involved, the name of the permittee, and the date, time and place at which the board will convene a public hearing with regard to the application. The date of the hearing shall be set by the board and shall commence within sixty days of the date of notice of completeness of an application.

(h) The board shall conduct a public hearing upon the application in the county in which the facility is to be located and shall keep an accurate record of such proceedings by stenographic notes and characters or by mechanical or electronic means. Such proceedings shall be transcribed at the applicant's expense. The board may accept both written and oral comments on the application.

(i) The commercial hazardous waste management facility siting board may request further information of the applicant and shall render a decision based upon the application and the record, either, requesting further information, granting a certificate ofsite approval, denying it, or granting it upon such terms, conditions and limitations as the board deems appropriate. The board shall base its decision upon the factors set forth in subsection (e). The written decision of the board containing its findings and conclusions shall be mailed by certified mail to the applicant and to any requesting person on or before sixty calendar days after receipt by the board of a complete record of the hearing.

(j) The board may exercise all powers necessary or appropriate to carry out the purposes and duties provided in this article, including the power to promulgate rules in compliance with chapter twenty-nine-a of this code.

§22C-5-5. Effect of certification.

A grant of an approval certificate shall supersede any local ordinance or regulation that is inconsistent with the terms of the approval certificate. Nothing in this chapter affects the authority of the host community to enforce its regulations and ordinances to the extent that they are not inconsistent with the terms and conditions of the approval certificate. Grant of an approval certificate does not preclude or excuse the applicant from the requirement to obtain approval or permits under this chapter or other state or federal laws.

§22C-5-6. Commercial hazardous waste management facility siting fund; fees.

(a) There is hereby continued in the state treasury a special revenue fund entitled the "commercial hazardous waste management facility siting fund" which may be expended by the director of the division of environmental protection for the following:

(1) The necessary expenses of the board which may include expenses and compensation for each member of the board as authorized by this article.

(2) Administration, professional and support services provided by the division to the board.

(3) Legal counsel and representation provided by the attorney general to the board for the purposes of this article.

(b) The director of the division of environmental protection shall promulgate rules, pursuant to section one, article one, chapter twenty-nine-a of this code, establishing reasonable fees to be charged each applicant for a certificate of site approval. Such fees shall be calculated to recover the reasonable and necessary expenses of the board, division of environmental protection and attorney general which such agencies incur as pursuant to this article.

§22C-5-7. Judicial review.

(a) Any person having an interest adversely affected by a final decision made and entered by the board is entitled to judicial review thereof in the circuit court of Kanawha County, or the circuit court of the county in which the facility is, or is proposed to be, situated, such appeal to be perfected by the filing of a petition with the court within sixty days of the date of receipt by the applicant of the board's written decision.

(b) The review shall be conducted by the court without a jury and shall be upon the record made before the board except that in cases of alleged irregularities in procedure before the board not shown in the record, testimony thereon may be taken before the court. The court may hear oral arguments and require written briefs.

The court may affirm the order or decision of the board or remand the case for further proceedings. It may reverse, vacate or modify the order or decision of the board if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decision or order are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority or jurisdiction of the board;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

(c) The judgment of the circuit court is final unless reversed, vacated or modified on appeal to the supreme court of appeals. The petition seeking such review must be filed with said supreme court of appeals within ninety days from the date of entry of the judgment of the circuit court.

(d) Legal counsel and services for the board in all appeal proceedings shall be provided by the attorney general.

§22C-5-8. Remedies.

(a) Any person who violates this section shall be compelled by injunction, in a proceeding instituted in the circuit court or the locality where the facility or proposed facility is to be located, to cease the violation.

(b) Such an action may be instituted by the board, director of the division of environmental protection, political subdivision in which the violation occurs or any other person aggrieved by such violation. In any such action, it is not necessary for the plaintiff to plead or prove irreparable harm or lack of an adequate remedy at law. No person shall be required to post any injunction bond or other security under this section.

(c) No action may be brought under this section after an approval certificate has been issued by the board, notwithstanding the pendency of any appeals or other challenges to the board's action.

(d) In any action under this section, the court may award reasonable costs of litigation, including attorney and expert witness fees, to any party if the party substantially prevails on the merits of the case and if in the determination of the court the party against whom the costs are requested has acted in bad faith.