Title 33 W. Va. C.S.R.

Waste Management, Division Of Water And Waste Management Waste Management, Division Of Water And Waste Management

Series 01 Solid Waste Management Rule

W. Va. Code R. § 33-1-1 General

1.1. Scope. -- This legislative rule establishes requirements for the siting (including location standards), financial assurance, installation, establishment, construction, design, groundwater monitoring, modification, operation, permitting, closure and post-closure care of any solid waste facility that processes, recycles, composts, transfers or disposes of solid waste pursuant to W. Va. Code §22-15-1 et seq. This rule applies to any person who owns or operates a solid waste facility or who is responsible for the processing, composting, commercial recycling, transfer or disposal of solid waste, except for those recycling facilities exempted from permitting requirements as authorized by W. Va. Code §20-11-12.

1.1.a. Applicability.

1.1.a.1. Permittees or applicants of solid waste landfills (SWLFs), or portions thereof, that stopped receiving waste before June 2, 1996 must close their SWLF in accordance with the terms and conditions of their solid waste permit, order, and/or the laws, rules and regulations in place on May 1, 1990 unless permit requirements are otherwise required by the Secretary.

1.1.a.2. Permittees of existing SWLFs, or portions thereof, that initiate, or continue receiving waste after June 2, 1996 must comply with the terms and conditions of their existing or renewed solid waste permit, order, and additionally all effective laws, rules and regulations in place, unless said permit is modified by the Secretary to include the requirements of this rule, or unless permit requirements are otherwise modified by the Secretary.

1.1.a.3. Applicants for new SWLFs and lateral expansions of existing SWLFs that are issued permits after the effective date of this rule must comply with the terms and conditions of that new solid waste permit and/or the laws and rules or order in place on the effective date of this rule, unless otherwise required by the Secretary.

1.1.a.4. The applicability requirements of this paragraph apply only to existing solid waste landfill solid waste facilities. All other facilities must continue to comply with their existing permit and this rule, W. Va. Code §§22-15-1 et seq., 22-12-1 et seq. and 22-11-1 et seq. as applicable, until such time as the permit is subject to renewal, modification or other similar permitting function. Applicants of facilities that are not landfills must apply for permits as required by, and in compliance with, this rule.

1.1.a.5. As applicable, all solid waste facilities must comply with the Groundwater Protection Act, W. Va. Code §22-12-1 et seq., and the rules promulgated thereunder.

1.2. Authority. -- W. Va. Code §§22-15-5, 22-15-8(e), 22-15-10, 22-15-12, 22-15-13, and 22-15-14.

1.3. Filing Date. -- May 1, 2015.

1.4. Effective Date. -- June 1, 2015.

1.5. Former Rules. -- This legislative rule amends 33CSR1, the “Solid Waste Management Rule” that was filed May 1, 2012 and became effective on June 1, 2012.

1.6. Lawful Disposal of Solid Waste Required. -- Solid waste must be disposed, processed, stored, transferred, or recycled only at permitted solid waste facilities as described in this rule, and in compliance with W. Va. Code §22C-4-10.

1.6.a. The discharge, deposit, injection, dumping, spilling, leaking burning, burying, or otherwise placing of any solid waste or leachate into or on any land or water so that such solid waste or any constituent thereof may enter the environment or be emitted into the air, or discharged into any waters, including groundwaters, is prohibited unless specifically authorized by a permit or permits from the Department.

1.6.b. Solid waste facilities or activities failing to satisfy this subsection are considered open dumps, as defined in section 2, and will be subject to the actions and penalties outlined in W. Va. Code §22-15-15.

1.6.c. Solid waste may not be disposed of in a dumpster in violation of W. Va. Code §61-3-53.

1.7. Incorporation by Reference. -- Whenever federal or state statutes, rules or regulations are incorporated into this rule by reference, the reference is to the statute, rule or regulation in effect on the date set forth in subsection 1.4 of this rule.

W. Va. Code R. § 33-1-2 Definitions

Unless the context clearly requires a different meaning, all terms contained in this section are defined by their plain meaning. This section contains definitions for terms that appear throughout this rule.

2.1. “Access Road” means any road used for facility access or for the hauling of solid waste to a solid waste facility, including internal or infrequently used access roads to all monitoring and treatment appurtenances or from a road that is under federal, state or local authority.

2.2. “Act” means the “Solid Waste Management Act,” W. Va. Code §22-15-1, et seq.

2.3. “Active Life” means the period of operation beginning with the initial receipt of solid waste and ending at completion of closure activities performed in accordance with section 6 of this rule.

2.4. “Active Portion” means that part of a solid waste facility that has received or is receiving wastes and/or has not been closed in accordance with section 6 of this rule.

2.5. “Airport” means any public-use airport open to the public without prior permission and without restrictions within the physical capacities of available facilities.

2.6. “Anomalous Event” means an accidental, inadvertent, involuntary, unanticipated, unexpected, uncontrolled, unintentional, or unplanned event that has an adverse effect upon the operation of the landfill or the environment.

2.7. “Applicant” means the person applying for a commercial or noncommercial 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 Secretary specifies, including the following: spouses, parents and children and siblings.

2.8. “Approved Solid Waste Facility” means a solid waste facility or practice that has a valid permit under the Act.

2.9. “Aquifer” means a geological formation, group of formations, or portion of a formation capable of yielding significant quantities of ground-water to wells or springs.

2.10. “Areas Susceptible to Mass Movement” means those areas of influence (i.e., areas characterized as having an active or substantial possibility of mass movement) where the movement of earth material at, beneath, or adjacent to the SWLF, or a portion thereof, because of natural or man-induced events, results in the downslope transport of soil and rock material by means of gravitational influence. Areas of mass movement include, but are not limited to, landslides, avalanches, debris slides and flows, soil fluxion, block sliding, and rock fall.

2.11. “Asbestos” means the asbestiform varieties of serpentinite, chrysotile, riebeckite, crocidolite, cummingtonite-grunerite, anthophyllite, and actinolite tremolite.

2.12. “Background Investigation Disclosure Statement” means a required statement, on a form prescribed by the Secretary, filed by any person or persons who is an applicant, permittee, operator, owner or other person of a solid waste facility, containing all required information for the conductance of a background investigation.

2.13. “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.

2.14. “Best Management Practices” (“BMPs”) means schedules of activities, prohibitions, required practices, maintenance and operational procedures, and other waste management practices utilized to prevent or reduce the pollution of waters of the State or other environmental impacts.

2.15. “Bird Hazard” means an increase in the likelihood of bird/aircraft collisions that may cause damage to the aircraft or injury to its occupants.

2.16. “Bond” means any performance bond or other form of financial assurance contemplated pursuant to W. Va. Code §22-15-12.

2.17. “Bulking Agent” means any material mixed and composted with sewage sludge.

2.18. “Bulky Goods” means items or materials that cannot be reasonably and conveniently collected during regularly scheduled weekly pickups, including any of the following discarded items: refrigerators, washing machines, clothes dryers, dishwashers, ovens, stoves, microwave ovens, and other appliances; air conditioners; bicycles; furniture; waste tires off the rim, having a radius of no more than 16.5 inches, from automobiles, from pickup trucks, from motorcycles, from all-terrain vehicles, and from farm tractors; and other items, not included above, that are at least three (3) feet in length, width, or height, or at least fifty (50) pounds in weight. “Bulky goods” do not include: (a) automotive components, parts, or frames that weigh at least two hundred (200) pounds each; (b) automotive parts, such as motors and transmissions, that have a high density; (c) hazardous waste; (d) items that can be easily divided and placed into bags, boxes, or other containers, less than three (3) feet high, long or wide that, with contents, weigh less than fifty (50) pounds each; and (e) construction and demolition debris generally.

2.19. “Category I Nonfriable Material” means asbestos-containing materials such as packing, gaskets, asphalt roofing, and vinyl floor covering, containing one or more percent asbestos, which is not in poor condition and is not friable.

2.20. “Category II Nonfriable Material” means asbestos-containing materials such as transite siding, transite roofing, and brittle vinyl floor covering, containing one or more percent asbestos, which is not friable but likely to become crumbled, pulverized, or reduced to powder during demolition or disposal.

2.21. “Chief” means the Director of the Division of Water and Waste Management of the West Virginia Department of Environmental Protection or his or her authorized representative.

2.22. “Class A Solid Waste Facility” means a commercial solid waste facility that handles an aggregate of between ten thousand (10,000) and thirty thousand (30,000) 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 (9,999) tons of solid waste per month.

2.23. “Class B Solid Waste Facility” means a commercial solid waste facility that receives or is expected to receive an average daily quantity of mixed solid waste equal to or exceeding one hundred (100) tons each working day, or serves or is expected to serve a population equal to or exceeding forty thousand (40,000) persons, but that does not receive solid waste exceeding an aggregate of ten thousand (10,000) 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 Secretary may establish by legislative rule proposed in accordance with the provisions of W. Va. Code §29A-1-1 et seq.

2.24. “Class C Solid Waste Facility” means a commercial solid waste facility that receives or is expected to receive an average daily quantity of mixed solid waste of less than one hundred (100) tons each working day, and serves or is expected to serve a population of less than forty thousand (40,000) persons. Class C solid waste facilities do not include construction/demolition facilities.

2.25. “Class D Solid Waste Facility” means any noncommercial solid waste facility for the disposal of only construction/demolition waste in an area no greater than two (2) acres in size and not exceeding the height of the adjoining ground elevation.

2.26. “Class D-1 Solid Waste Facility” means a commercial or noncommercial solid waste facility for the disposal of only construction/demolition waste permitted pursuant to paragraph 3.16.e.4 below.

2.27. “Class E Solid Waste 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.

2.28. “Class F Solid Waste Facility” means any industrial solid waste disposal facility.

2.29. “Clean Water Act” or “CWA” means the “Federal Water Pollution Control Act,” as amended, 33 U.S.C. §1251, et seq.

2.30. “Coal Combustion By-Products” means the residuals, including fly ash, bottom ash, bed ash, and boiler slag flue gas emission control waste produced by coal-fired or coal/gas-fired electrical or steam generating units. For non-electrical steam generating units burning a combination of solid waste and coal, a carbon monoxide (CO) level of less than or equal to one hundred parts per million (100 ppm) on a 24-hour average basis is required for the by-products to meet this definition. The carbon monoxide level must be calculated on a dry gas basis corrected to seven percent (7%) oxygen.

2.31. “Coal Combustion By-Product Facility” means a facility for the disposal of coal combustion by-products, including coal combustion by-product landfills and coal combustion by-product disposal surface impoundments, and does not include the legitimate beneficial use of coal combustion by-products.

2.32. “Commercial 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 composting facility owned and operated by a person for the sole purpose of composting waste created by that person or such persons on a cost sharing or non-profit basis and shall not include land upon which finished or matured compost is applied for use as a soil amendment or conditioner.

2.33. “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 (70%) by weight of the materials coming into the recycling facility.

2.34. “Commercial Solid Waste” means all types of solid waste generated by stores, offices, restaurants, warehouses, and other nonmanufacturing activities, excluding residential wastes.

2.35. “Commercial Solid Waste Facility” means any solid waste facility that 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 the disposal, processing or composting 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.

2.36. “Composite Liner” means a system consisting of two components; the upper component must consist of a minimum 60-mil high density polyethylene (HDPE) and the lower component must consist of at least a two-foot layer of compacted soil with a hydraulic conductivity of no more than 1X107 cm/sec. The HDPE component must be installed in direct and uniform contact with the compacted soil component.

2.37. “Composting” means the aerobic, thermophilic decomposition of natural constituents of solid waste to produce a stable, humus-like material.

2.38. “Construction/Demolition Waste” means waste building materials, packaging, and grubbing waste resulting from construction, remodeling, repair, and demolition operations on houses, commercial, and industrial buildings, including, but not limited to, wood, plaster, bricks, blocks and concrete, and other masonry materials, but does not include asbestos-containing materials, household furnishings, burnt debris, material containing lead-based paint, pressure-treated wood, contaminated solid waste, yard waste or waste tires, and other items listed in subdivision 5.4.a below.

2.38.a. “Covered Electronic Device” means a television, computer or video display device with a screen that is greater than four inches measured diagonally. ‘Covered electronic device’ does not include a video display device that is part of a motor vehicle or that is contained within a household appliance or commercial, industrial or medical equipment.

2.39. “Cover Material” means soil or other material approved by the Secretary and used in a controlled manner to cover solid waste at solid waste disposal facilities.

2.40. “Department” means the West Virginia Department of Environmental Protection.

2.41. “Disease Vectors” or “Vector” means any rodents, flies, mosquitoes, or other animals, including insects, capable of transmitting disease to humans.

2.42. “Displacement” means the relative movement of any two sides of a fault measured in any direction.

2.43. “Disposal” means the discharge, deposit, injection, dumping, spilling, leaking or placing of any solid waste into or on any land or water so that such solid waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including groundwaters.

2.44. “Division” means the Division of Water and Waste Management of the West Virginia Department of Environmental Protection.

2.45. “Endangered or Threatened Species” means any endangered or threatened species of animal or plant, as defined in 50 CFR §17.3, and includes those species listed as endangered or threatened in 50 CFR Part 17.

2.46. “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.

2.47. “Existing SWLF” means any solid waste landfill that is currently depositing solid waste.

2.48. “Fault” means a fracture or a zone of fractures in any material along which strata on one side have been displaced with respect to that on the other side.

2.49. “Floodplain” means the lowland and relatively flat areas adjoining waters of the state that may be inundated by the 100-year flood.

2.50. “Friable Asbestos” means any friable solid waste material containing more than one percent (1%) asbestos by weight that hand pressure can crumble, pulverize, or reduce to powder when dry.

2.51. “Gas Condensate” means the liquid generated as a result of gas recovery process(es) at the SWLF.

2.52. “Generator” means any person or facility whose act or process produces solid waste, or whose act first causes a solid waste to become subject to regulation.

2.53. “Groundwater” means any water occurring in the zone of saturation beneath the seasonal high water table, or any perched water zones, or water below the land surface in a zone of saturation.

2.54. “Holocene” means the most recent epoch of the Quaternary Period, extending from the end of the Pleistocene Epoch to the present.

2.55. “Household Waste” means any solid waste (including garbage, trash, and sanitary waste in septic tanks) derived from households (including single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas).

2.56. “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.

2.57. “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.

2.58. “Industrial Solid Waste” means any solid waste generated by manufacturing, or industrial processes that is not a hazardous waste regulated under subtitle “C” of the Resource Conservation and Recovery Act (RCRA). Such wastes may include, but are not limited to, waste resulting from factories, processing plants, refineries, fertilizer/agricultural chemicals; food and related products/by-products; inorganic chemicals; iron and steel manufacturing; leather and leather products; nonferrous metals, manufacturing/foundries; organic chemicals; slaughter houses, mills, tanneries, electric power generating plants, mines, or mineral processing operations; plastics and resins manufacturing; pulp and paper industry; rubber and miscellaneous plastic products; stone, glass, clay and concrete products; textile manufacturing; transportation equipment; and water treatment. This term does not include mining waste or oil and gas waste.

2.59. “Industrial Solid Waste Landfill” means any solid waste disposal facility that is owned, operated, or leased by an industrial establishment for the land disposal of industrial solid waste created by that person or such person and other persons on a cost-sharing or nonprofit basis. The term “industrial solid waste landfill” does not include land application units, surface impoundments, or injection wells.

2.60. “Infectious Medical Waste” means infectious medical waste that is capable of producing an infectious disease. Medical waste is considered capable of producing an infectious disease if it has been, or is likely to have been, contaminated by an organism likely to be pathogenic to healthy humans, if such organism is not routinely and freely available in the community, and such organism has a significant probability of being present in sufficient quantities and with sufficient virulence to transmit disease. For the purposes of this rule, infectious medical waste includes the following materials:

2.60.a. “Animal Carcasses, Body Parts, Bedding and Related Waste” means contaminated animal carcasses, body parts, and the bedding of animals that are known to have been exposed to infectious agents during research, the production of biologicals or the testing of pharmaceuticals, or for any other reason.

2.60.b. “Blood and Blood Products” means liquid waste human blood and blood products in a free-flowing or unabsorbed state.

2.60.c. “Laboratory Wastes” means cultures and stocks of infectious agents and associated biologicals including, but not limited to, cultures from medical and pathological laboratories, cultures and stocks of infectious agents from research and industrial laboratories, wastes from the production of biologicals, and discarded live and attenuated vaccines.

2.60.d. “Cultures and Stocks of Microorganisms and Biologicals” means discarded cultures, stocks, specimens, vaccines and associated items likely to have been contaminated by an infectious agent, discarded etiologic agents, and wastes from the production of biologicals and antibiotics likely to have been contaminated by an infectious agent.

2.60.e. “Pathological Wastes” means human pathological wastes, including tissues, organs, body parts, and containers of body fluids exclusive of those fixed in formaldehyde or another fixative.

2.60.f. “Sharps” means discarded articles that may cause punctures or cuts and that have been used in animal or human patient care or treatment, or in pharmacies or medical, research, or industrial laboratories, including, but not limited to, hypodermic needles, syringes with attached needles, scalpel blades, lancets and broken glassware.

2.60.g. “Isolation Wastes” means wastes generated from the care of a patient who has or is suspected of having any disease listed as Class IV in “Classification of Etiologic Agents on the Basis of Hazard” published by the United States Centers for Disease Control.

2.60.h. “Other Infectious Wastes” includes, but is not limited to. any residue or contaminated soil, water, or other debris resulting from the cleanup of a spill of any infectious medical waste, and waste contaminated by or mixed with infectious medical waste.

2.61. “Karst Region” means a type of topography that is formed over limestone or dolomite by dissolution of the formation and is characterized by sinkholes, caves, and similar features.

2.62. “Karst Terranes” means areas where karst topography, with its characteristic surface and subterranean features, is developed as the result of dissolution of limestone, dolomite, or other soluble rock. Characteristic physiographic features present in karst terranes include, but are not limited to, sinkholes, sinking streams, caves, large springs, and blind valleys.

2.63. “Land Application” means the application of liquid wastes onto a soil surface or the incorporation of solid waste into the soil surface for treatment and disposal.

2.64. “Landfill” means any solid waste facility or part of one at which solid waste or its residue after treatment is intentionally used for disposal on or in the land for the purpose of permanent disposal. Such facility is situated, for the purposes of this rule, in the county where the majority of the spatial area of the facility is located. The term “landfill” does not include a land application unit or injection well.

2.65. “Lateral Expansion” means a horizontal expansion of the waste boundaries of an existing SWLF.

2.66. “Leachate” means any liquid that has come into contact with, passed through or emerged from solid waste and contains soluble, suspended, or miscible materials removed from such waste.

2.67. “Lift” means the vertical thickness of compacted solid waste and the cover material immediately above it.

2.68. “Liner” means a continuous layer of natural or manmade materials beneath or on the sides of a surface impoundment, landfill or landfill cell, which restricts the downward or lateral escape of solid waste, any constituents of such waste or leachate and which complies with this rule.

2.69. “Liquid Waste” means any waste material that is determined to contain “free liquids” as defined by Method 9095 (Paint Filter Liquids Test), as described in “Test Methods for Evaluating Solid Wastes, Physical/Chemical Methods” (EPA Pub. No. SW-846).

2.70. “Lithified Earth Material” means all rock, including all naturally occurring and naturally formed aggregates or masses of minerals or small particles of older rock that formed by crystallization of magma or by induration of loose sediments. This term does not include manmade materials such as fill, concrete, and asphalt, or unconsolidated earth materials, soil or regolith lying at or near the earth surface.

2.71. “Lower Explosive Limit” (“LEL”) means the lowest percent by volume of a mixture of explosive gases in air that will propagate a flame at twenty-five degrees centigrade (25° C) and atmospheric pressure.

2.72. “Major Alluvial Aquifer” means an aquifer composed of alluvial materials located adjacent to West Virginia rivers, such as the Kanawha River, Little Kanawha River, and Ohio River as depicted on Groundwater Hydrology of the Minor Tributary Basins of those rivers.

2.73. “Major Domestic Use Aquifer” means an aquifer that serves as a domestic or public water supply serving at least an average of twenty-five (25) individuals per day for at least sixty (60) days per year, or that has at least fifteen (15) service connections.

2.74. “Major Modification” is a modification to an approved permit in which a major change to the permit is to occur as specified in subsection 3.18 of this rule.

2.75. “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.

2.76. “Maximum Horizontal Acceleration in Lithified Earth Material” means the maximum expected horizontal acceleration depicted on a seismic hazard map, with a ninety percent (90%) or greater probability that the acceleration will not be exceeded in two hundred fifty (250) years, or the maximum expected horizontal acceleration based on a site-specific seismic risk assessment.

2.77. “Mixed Solid Waste” means solid waste from which materials sought to be reused or recycled have not been source-separated from general solid waste.

2.78. “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.

2.79. “Municipal Solid Waste” means any household or commercial solid wastes as defined in this rule and any sludge from a waste treatment plant or a water supply treatment plant.

2.80. “Municipal Solid Waste Incineration” means the burning of any solid waste collected by any municipal or residential solid waste disposal company.

2.81. “New SWLF” means any solid waste landfill facility that has not received waste prior to the effective date established in subsection 1.4 of this rule.

2.82. “Noncommercial Solid Waste Facility” means any 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.

2.83. “Open Burning” means the combustion of solid waste without:

2.83.a. Control of combustion air to maintain adequate temperature for efficient combustion;

2.83.b. Containment of the combustion reaction in an enclosed device to provide sufficient residence time and mixing for complete combustion; and

2.83.c. Control of the emission of the combustion products.

2.84. “Open Dump” means any solid waste disposal that does not have a permit under W. Va. Code §22-15-1 et seq., and is not otherwise authorized by an order of the Secretary; or is in violation of state law; or where solid waste is disposed in a manner that does not protect the environment.

2.85. “Operator” means the person(s) responsible for the overall operation of a solid waste facility or part thereof.

2.86. “Operating Hours” means the predetermined period of time specified by the facility permit or other such approval by the Secretary during which activities may be conducted at a solid waste facility. These activities are not limited to the actual process of disposal.

2.87. “Owner” means the person(s) who owns a solid waste facility or part thereof.

2.88. “Perennial Stream” means a stream or a portion of a stream that flows continuously or that under normal conditions supports aquatic life whose life history requires residence in flowing water for a continuous period of at least six (6) months.

2.89. “Permittee” means any person holding a permit or who is otherwise authorized to conduct solid waste activities under the Act.

2.90. “Persistent Violation” means any violation of the Act, this rule, any permit term or condition, or any order of the Secretary that is identified during two or more consecutive inspections performed by the Secretary.

2.91. “Person,” or “Persons,” means:

2.91.a. 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;

2.91.b. The State of West Virginia;

2.91.c. Any governmental agency, including federal facilities;

2.91.d. Any political subdivision of this State, including county commission, municipal corporation, industry, sanitary district, public service district, drainage district, soil conservation district, or watershed improvement district;

2.91.e. Any partnership, trust, or estate;

2.91.f. Any person or individual;

2.91.g. Any group of persons or individuals acting individually or as a group; or

2.91.h. Any legal entity whatever.

2.92. “Petroleum” means petroleum, including crude oil or any fraction thereof that is liquid at standard conditions of temperature and pressure (sixty degrees Fahrenheit (60° F) and fourteen and seven-tenths pounds per square inch absolute (14.7 psia)) and pipeline liquids. The term includes any refined petroleum products.

2.93. “Petroleum-Contaminated Soil” means any soil, dirt, rock or other earthen material that contains more than a de minimis amount of petroleum (one hundred parts per million (100 ppm) petroleum hydrocarbons or less) and that is not a hazardous waste.

2.94. “Point Source” means any discernible, confined, and discrete conveyance including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock or vessel, floating craft or system or landfill leachate collection system from which pollutants are or may be discharged to the waters of the State.

2.95. “Poor Foundation Conditions” means those areas where features exist that indicate that a natural or man-induced event may result in inadequate foundation support for the structural components of a SWLF.

2.96. “Post-Closure” means activities after the closure of a solid waste facility that are necessary to ensure compliance with the provisions of the Act and any rules promulgated thereunder, including the application of final cover, grading, revegetation, groundwater monitoring, surface water monitoring, gas monitoring and control, leachate treatment, erosion control, and the abatement of any pollution or degradation to land, water, air or other natural resources.

2.97. “Publicly-Owned Treatment Works” or “POTW” means any treatment works owned by the State or any political subdivision thereof, any municipality or any other public entity that processes raw, domestic, industrial 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 that produces sewage sludge.

2.98. “Q.A./Q.C.” means “quality assurance and quality control.”

2.99. “Qualified Groundwater Scientist” is a scientist or engineer who has received a baccalaureate or postgraduate degree in the natural sciences or engineering and has sufficient training and experience in groundwater hydrology and related fields as may be demonstrated by state registration, professional certification(s), or completion of accredited university programs that enable that individual to make sound professional judgments regarding groundwater monitoring, contaminant fate and transport, and corrective action.

2.100. “Receiving Hours” means the period of time designated by the facility solid waste permit, or otherwise approved by the Secretary, within the operating hours that the solid waste facility accepts solid waste for disposal.

2.101. “Recycle” means the process by which recovered products are transformed into new products and includes the collection, separation, recovery, and sale or reuse of metals, glass, paper, and other materials.

2.102. “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 or to be reusing or recycling solid waste within the meaning of W. Va. Code §§22-15-1 et seq., 22C-4-1 et seq., and 20-11-1 et seq.

2.103. “Regulated Asbestos-Containing Material” is defined as friable asbestos material; Category I nonfriable asbestos-containing material that has become friable; Category I nonfriable asbestos-containing material that has become friable; Category I nonfriable asbestos-containing material that will be or has been subjected to sanding, grinding, cutting or abrading; and Category II nonfriable asbestos-containing material that has a high probability of becoming or has become crumbled, pulverized, or reduced to powder by the forces expected to act on the material in the course of demolition or renovation operations.

2.104. “Regulated Hazardous Waste” means a solid waste that is a hazardous waste, as defined in 40 CFR §261.3, that is not excluded from regulation as a hazardous waste under 40 CFR §261.4(b).

2.105. “Resource Recovery Facility” means any solid waste facility at which solid wastes are physically, mechanically, biologically, chemically, or thermally transformed for the purpose of separating, removing or creating any material or energy for reuse or sale and at which land disposal of solid waste does not occur. Resource recovery facilities include incinerators equipped with integral or separate heat recovery systems, and other such solid waste facilities not herein specified, but does not include sewage sludge processing facilities.

2.106. “Run-off” means any rainwater, leachate, or other liquid that drains over land from any part of a facility.

2.107. “Run-on” means any rainwater, leachate or other liquid that drains over land onto any part of a facility.

2.108. “Salvage” means, but is not limited to, scrap copper, brass, rope, rags, paper, rubber, junked, dismantled or wrecked machinery, machine or motor vehicles or any parts thereof; or iron, steel and other scrap ferrous or nonferrous materials.

2.109. “Salvage Yard” means any facility that is maintained, operated or used for the storing, buying, selling or processing of salvage materials or for the operation and maintenance of a motor vehicle graveyard, at which only mechanical processing of solid waste takes place and where no solid waste is disposed of on-site.

2.110. “Saturated Zone” means that part of the earth’s crust in which all voids are filled with water.

2.111. “Scale” or “Scale House” means the area of the facility where waste initially enters the premises and the total and tare weights are determined and a receipt of deposit is generated.

2.112. “Schedule of Compliance” or “Compliance Schedule” means a list of activities approved or ordered by the Secretary, which may include dates or specified times for completion of each or all activities that, when completed, will result in a site, facility or practice that is environmentally sound and conforms to the requirements of the Act, this rule, or permit terms and conditions.

2.113. “Secretary” means the Secretary of the West Virginia Department of Environmental Protection or such other person to whom the Secretary has delegated authority or duties pursuant to W. Va. Code §22-1-6 or §22-1-8. For the purpose of this rule, the term “Secretary” also means the administrator of the West Virginia’s solid waste permit program in the administration of sections 2002 and 4005 of RCRA.

2.114. “Seismic Impact Zone” means an area with a ten percent (10%) or greater probability that the maximum horizontal acceleration in lithified earth material, expressed as a percentage of the earth’s gravitational pull will exceed 0.10g in a two hundred fifty (250) year period.

2.115. “Sewage” means water-carried human or animal wastes from residences, buildings, industrial establishments or other places together with such groundwater infiltration and surface waters as may be present.

2.116. “Sewage Sludge” means any solid, semi-solid 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.

2.117. “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 microbial and anaerobic digestion.

2.118. “Sludge” means any solid, semi-solid or liquid waste or residue or precipitate generated from or separated from or created by a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant or air pollution control facility or any other such waste having similar source, exclusive of the treated effluent from a wastewater treatment plant.

2.119. “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 carcasses of any dead animal or any other offensive or unsightly matter; solid, liquid, semisolid, or contained liquid or gaseous material resulting from industrial, commercial, mining or agricultural operations and community activities. The term “solid waste” does not include:

2.119.a. Solid or dissolved materials in sewage;

2.119.b. Solid or dissolved materials in irrigation return flows;

2.119.c. Industrial discharges that are point sources and have permits under W. Va. Code §22-11-1 et seq., or are subject to permit under 33 U.S.C. §1342;

2.119.d. Source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954, as amended, (42 U.S.C. §2014) including any nuclear or by-product material considered by federal standards to be below regulatory concern;

2.119.e. A hazardous waste either identified or listed under W. Va. Code §22-18-1 et seq. and the rules promulgated thereunder;

2.119.f. Refuse, slurry, overburden, or other wastes or material -- resulting either from coal-fired electric power or steam generation, or from the exploration, development, production, storage, and/or recovery of coal, oil and gas and/or other mineral resources -- that are placed or disposed of at a facility that is regulated by W. Va. Code §§22-2-1 et seq., 22-3-1 et seq., 22-4-1 et seq., 22-6-1 et seq., 22-7-1 et seq., 22-8-1 et seq., 22-9-1 et seq., 22-10-1 et seq., 22A-1-1 et seq., 22C-2-1 et seq., 22C-7-1 et seq., 22C-8-1 et seq., or 22C-9-1 et seq., so long as such placement or disposal is in conformance with a permit issued pursuant to such chapters; and

2.119.g. Materials that 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 substitutes for raw material feedstock.

2.120. “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.

2.121. “Solid Waste Disposal Shed” means a geographical area that the Solid Waste Management Board designates as provided in W. Va. Code §22C-3-9 for solid waste management.

2.122. “Solid Waste Disposal Surface Impoundment” means a natural depression or manmade excavation or diked area that is designed for the disposal of solid waste containing free liquids and that is not an injection well, landfill, land application unit, or a surface impoundment as defined in section 2 of this rule.

2.123. “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, solid waste disposal surface impoundments, transfer stations, incinerators, recycling facilities, materials recovery facilities, mixed waste processing facilities, sewage sludge processing facilities, commercial composting facilities and other such facilities not herein specified, but not including land upon which sewage sludge is applied in accordance with W. Va. Code §22-15-20. Such facility is deemed to be situated, for purposes of this rule, 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 W. Va. Code §17-23-1 et seq., is not a solid waste facility.

2.124. “Solid Waste Landfill Facility (SWLF)” means a discrete area of land or portion thereof or an excavation that receives household waste and that is not a land application facility, surface impoundment, injection well, or waste pile. A SWLF may also receive other types of RCRA subtitle D solid wastes, such as commercial solid wastes, nonhazardous sludge, small quantity generator wastes, and industrial solid wastes. Such a publicly or privately owned landfill may be a new SWLF, an existing SWLF, or a lateral expansion.

2.125. “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.

2.126. “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.

2.127. “Staging Area” means an area or facility where solid waste is temporarily stored, sorted and/or processed for transport to a solid waste facility. Staging areas are prohibited unless specifically approved or permitted by the Secretary.

2.128. “Storage” or “Storage Area” means the interim storage of solid waste at a permitted or nonpermitted solid waste facility on a temporary basis. Any storage that exceeds one hundred eighty (180) days, without the prior written approval of the Secretary, in such a manner, constitutes illegal disposal of such solid waste (i.e., staging areas).

2.129. “Structural Components” means liners, leachate collection systems, final covers, run-on/run-off systems, and any other component used in the construction and operation of the SWLF that is necessary for protection of human health and the environment.

2.130. “Structural Fill” means an engineered/designed and controlled homogeneous fill with a projected spread in lifts not exceeding twelve (12) inches and compacted with proper power equipment. The material must be compacted in horizontal lifts to achieve the required design dry density and in-situ strength.

2.131. “Surface Impoundment” means a facility or part of a facility that is a natural topographic depression, manmade excavation or diked area that is designed to hold an accumulation of contaminated surface runoff or leachate or both.

2.132. “Transloading” means the transfer of solid waste from one solid waste collection motorized vehicle to another, where that activity does not constitute either a “staging area” or a “transfer station” as defined in this rule. Such activity is authorized and does not require a solid waste permit, provided that there is no discharge of leachate or other violations of W. Va. Code §§22-15-1 et seq., 22-12-1 et seq., 22-11-1 et seq., or any rules promulgated thereunder.

2.133. “Transfer Station” means a structure, or combination of structures, machinery or devices at a place, location or facility where solid waste is taken from collection vehicles and placed in other transportation units for movement to another solid waste management facility; Provided that when the generator of solid waste disposes of said waste into a container such as a roll-off, greenbox or bin that is temporarily positioned (i.e. not more than five days) at a specific location for transport by a transportation unit, such container will not be considered a transfer station. Under any circumstances, leachate, litter, and windblown materials must be properly managed.

2.134. “Unstable Area” means a location that is susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from a landfill. Unstable areas can include poor foundation conditions, areas susceptible to mass movements, and karst terranes.

2.135. “Uppermost Aquifer” means the geologic formation nearest the natural ground surface that is an aquifer, as well as lower aquifers that are hydraulically interconnected with this aquifer within the facility’s permit boundary.

2.136. “Uppermost Significant Aquifer” means the first, uppermost aquifer encountered that is laterally persistent under the entire site and is free flowing throughout the year. This defines the aquifer that flows all twelve (12) months of the year and can be encountered under any given point on the permitted site.

2.137. “USGS” means the “United States Geological Survey.”

2.138. “Washout” means the carrying away of solid waste by waters of the base flood.

2.139. “Waste Management Unit Boundary” means a vertical surface located at the hydraulically downgradient limit of the unit. This vertical surface extends down into the uppermost aquifer.

2.140. “Water Pollution Control Act” means W. Va. Code §22-11-1 et seq.

2.141. “Water Resources,” “Water,” or “Waters” means any and all water on or beneath the surface of the ground, whether percolating, standing, diffused or flowing, wholly or partially within this State, or bordering this state and within its jurisdiction, and includes, without limiting the generality of the foregoing, natural or artificial lakes, rivers, streams, creeks, branches, forks, brooks, ponds (except farm ponds, industrial settling basins and ponds, and water treatment facilities), impounding reservoirs, springs, wells, watercourses, and natural wetlands.

2.142. “Wetlands” mean those naturally occurring areas, as defined under 40 CFR §232.2(r) that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

2.143. “7Q10” means the seven (7) consecutive day drought flow with a ten (10) year return frequency.

2.144. “100-Year Flood” means a flood that has a 1-percent or greater chance of recurring in any given year or a flood of a magnitude equaled or exceeded once in 100 years on the average, over a significantly long period of time.

W. Va. Code R. § 33-1-3 Solid Waste Facility Permitting Requirements

3.1. Prohibitions. -- No person may establish, construct, operate, maintain or allow the use of property for a solid waste facility within an area where there is a reasonable probability that the facility will cause any of the following:

3.1.a. Natural Wetlands. -- A significant adverse impact upon natural wetlands, as defined in section 2 of this rule;

3.1.b. Endangered or Threatened Species. -- A significant adverse impact upon or jeopardy to the continued existence of any endangered or threatened species, or the destruction or adverse modification of a critical habitat of any animal or plant protected under the Endangered Species Act of 1973, or violation of any requirement under the Marine Protection, Research and Sanctuaries Act of 1972 for the protection of a marine sanctuary, unless specifically approved by the United States Fish and Wildlife Service;

3.1.c. Surface Water. -- A significant adverse impact upon any surface water;

3.1.d. Groundwater. -- A significant adverse impact upon groundwater quality;

3.1.e. Compliance with other agency requirements.

3.1.e.1. A permittee must comply with any and all applicable Federal and State laws, rules, regulations or other requirements. Permittees of SWLFs must not:

3.1.e.1.A. Cause a discharge of pollutants into waters of the State, including natural wetlands, that violates any requirement of the Clean Water Act (CWA), as amended, or applicable portions of W. Va. Code §22-11-1, et seq., including, but not limited to, the National Pollutant Discharge Elimination System (NPDES) requirements of Section 402 of the CWA or as reflected in W. Va. Code §22-11-1 et seq., as amended.

3.1.e.1.B. Cause the discharge of a non-point source of pollution into waters of the state, including natural wetlands, that violates any requirements of an area-wide or state-wide water quality management plan that has been approved under Section 208 or 319 of the CWA or as reflected in W. Va. Code §22-11-1 et seq., as amended.

3.1.e.1.C. Cause the discharge of a point source of pollution into waters of the State, in violation of surface water quality standards found in W. Va. Code §22-11-1 et seq. or any rules or regulations promulgated thereunder; or

3.1.e.1.D. Cause a violation of W. Va. Code §22-12-1 et seq. or any rules promulgated thereunder.

3.1.f. Explosive Gases. -- Cause the generation by any facility and subsequent migration and concentration of methane or other explosive gases in any facility structure, excluding the leachate collection system or gas control or recovery system components, or in the soils or air at or beyond the facility property boundary in excess of twenty-five percent (25%) of the lower explosive limit for such gases at any time; or

3.1.g. Air Pollution. -- The emission of any air contaminant exceeding the limitations for those substances as set by the West Virginia Department of Environmental Protection, Division of Air Quality.

3.2. Location Standards. -- Unless otherwise approved by the Secretary in writing, a person must not establish, construct, operate, maintain or allow the use of property for a landfill in the following areas:

(Note: All distance measurements prescribed in subsection 3.2 of this rule refer to distances as measured from the edge of the waste management unit boundary of a facility.)

3.2.a. Location Standards for Surface Water. No SWLF may be located within three hundred (300) feet of any surface water. Facility drainage or sedimentation control structures are exempt from this distance calculation.

3.2.b. Location Standards for Natural Wetlands. -- No SWLF may be located within three hundred (300) feet of any natural wetlands, unless the permittee can make the following demonstrations to the Secretary (facility drainage or sedimentation control structures are exempt from this distance calculation):

3.2.b.1. Where applicable under section 404 of the CWA or applicable wetland laws under the West Virginia Water Pollution Control Act or any rules promulgated thereunder, the presumption that a practicable alternative to the proposed landfill is available that does not involve natural wetlands is clearly rebutted:

3.2.b.2. The construction and operation of the SWLF must not:

3.2.b.2.A. Cause or contribute to violations of any applicable state water quality standard;

3.2.b.2.B. Violate any applicable West Virginia Water Pollution Control Act and/or other toxic effluent standard or prohibition under section 307 of the CWA;

3.2.b.2.C. Jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of a critical habitat protected under the Endangered Species Act of 1973; and

3.2.b.2.D. Violate any requirement under the Marine Protection, Research, and Sanctuaries Act of 1972 for the protection of a marine sanctuary.

3.2.b.3. The SWLF must not cause or contribute to significant degradation of natural wetlands, and the permittee must also demonstrate the integrity of the SWLF and its ability to protect ecological resources by addressing the following factors:

3.2.b.3.A. Erosion, stability, and migration potential of native wetland soils, muds, and deposits used to support the SWLF;

3.2.b.3.B. Erosion, stability, and migration potential of dredged and fill materials used to support the SWLF;

3.2.b.3.C. The volume and chemical nature of the waste managed in the SWLF;

3.2.b.3.D. Impacts upon fish, wildlife, and other aquatic resources and their habitat from any release of the solid waste or the leachate thereof;

3.2.b.3.E. The potential effects of catastrophic releases of waste or the leachate thereof to the natural wetlands and the resulting impacts on the environment; and

3.2.b.3.F. Any additional factors, as necessary, to demonstrate that ecological resources in the wetland are sufficiently protected.

3.2.b.3.G. To the extent required under section 404 of the CWA or applicable State natural wetlands laws in the West Virginia Water Pollution Control Act, steps must have been taken to attempt to achieve no net loss of natural wetlands (as defined by acreage and function) by first avoiding impacts to natural wetlands to the maximum extent practicable, as required by subdivision 3.2.b of this rule, then minimizing unavoidable impacts to the maximum extent practicable, and finally offsetting remaining unavoidable wetland impacts through all appropriate and practicable compensatory mitigation actions (e.g., restoration of existing degraded natural wetlands or creation of manmade natural wetlands).

3.2.c. Perennial Stream Location Standards. -- No SWLF may be located within the watercourse of a perennial stream.

3.2.d. Location Standards for Floodplains.

3.2.d.1. Permittees of new SWLFs, existing SWLFs and lateral expansions located in 100-year floodplains must demonstrate that the SWLF does not and will not:

3.2.d.1.A. Restrict the flow of the 100-year flood, reduce the temporary water storage capacity of the floodplain, or

3.2.d.1.B. Result in a washout of solid waste so as to pose a hazard to human health and/or the environment.

3.2.e. Location Standards for Highways and Public Parks. -- New SWLFs and lateral expansions must not be located within one thousand (1,000) feet of the nearest edge of the right-of-way of any State highway, interstate, Federal aid primary or Federal aid secondary, county highway or the boundary of any public park, unless the facility is screened by natural objects, plantings, fences or other appropriate means so that it is not readily visible from the highway or park.

3.2.f. Location Standards for Fault Areas.

3.2.f.1. New SWLFs and lateral expansions must not be located within two hundred (200) feet (sixty (60) meters) of a fault that has had displacement in Holocene time (i.e., during the last eleven thousand (11,000) years);

3.2.f.2. Unless the permittee demonstrates to the Secretary in a permit application that an alternative setback distance of less than two hundred (200) feet (sixty (60) meters) will prevent damage to the structural integrity of the SWLF and will be protective of human health and the environment.

3.2.g. Location Standards for Airport Safety.

3.2.g.1. Permittees of new SWLFs, existing SWLFs, and lateral expansions must not be located within ten thousand (10,000) feet (three thousand forty-eight (3,048) meters) of any portion of the airport runway used or planned to be used by turbojet aircraft or within five thousand (5,000) feet (one thousand five hundred twenty-four (1,524) meters) of any portion of the airport runway used or planned to be used only by piston-type aircraft or within other areas where a substantial bird hazard to aircraft would be created, unless such applicants demonstrate that the SWLFs are designed and operated so that the SWLF does not and will not pose a bird hazard to aircraft.

3.2.g.2. Permittees proposing to site new SWLFs and lateral expansions located within a five (5)-mile radius of any portion of an airport runway used by turbojet or piston-type aircraft must provide written notification to both the affected airport and the Federal Aviation Administration (FAA), and provide copies of the same to the Secretary.

3.2.g.3. Owners or operators proposing to site new SWLF units and lateral expansions within a five (5)-mile radius of any airport runway end used by turbojet or piston-type aircraft must notify the affected airport and the Federal Aviation Administration (FAA).

3.2.h. Location Standards for Dwellings.

3.2.h.1. Permittees of new SWLFs and lateral expansions must not be located within five hundred (500) feet of a dwelling that is or will be occupied at the time of initial facility siting, unless written permission is received from the owner of the dwelling;

3.2.i. Location Standards for Wells.

3.2.i.1. Permittees of new SWLFs, existing SWLFs, and lateral expansions cannot be located within twelve hundred (1,200) feet of any public or private water supply well in existence at the time of initial facility siting;

3.2.j. Location Standards for Unstable Areas.

3.2.j.1. Permittees of new SWLFs, existing SWLFs, and lateral expansions cannot be located within one thousand (1,000) feet of any area considered by the Secretary to be unstable due to extreme geologic and hydrologic conditions (e.g., immaturely to maturely developed karst terrane, solution cavities), unless the permittee can demonstrate that engineering measures have been incorporated into the SWLF’s design to ensure that the integrity of the structural components of the SWLF will not be disrupted, and

3.2.j.2. The Permittee must consider the following factors, at a minimum, when determining whether an area is unstable:

3.2.j.2.A. On-site or local soil conditions that may result in significant differential settling;

3.2.j.2.B. On-site or local geologic or geomorphologic features; and

3.2.j.2.C. On-site or local human-made features or events (both surface and subsurface).

3.2.k. Location Standards for Underground Mines.

3.2.k.1. Permittees of new SWLFs and lateral expansions cannot be located above underground mine workings or within the critical angle of draw of such workings, unless otherwise approved by the Secretary in writing;

3.2.l. Location Standards for Surface Mines. -- Permittees of new SWLFs and lateral expansions cannot be located within previously surface mined areas, unless otherwise approved by the Secretary in writing;

3.2.m. Location Standards for Seismic Impact Zones. -- New SWLFs and lateral expansions must not be located in seismic impact zones, unless the permittee demonstrates to the Secretary that all containment structures, including liners, leachate collection systems, and surface water control systems are designed to resist the maximum horizontal acceleration in lithified earth material for the site.

3.2.n. Location Standards for Air Criteria.

3.2.n.1. All permittees must ensure that violations of the applicable requirements developed under a State Implementation Plan (SIP) promulgated pursuant to section 110 of the Clean Air Act as amended or as reflected in the rules promulgated by the Division of Air Quality do not occur.

3.2.n.2. Open burning of solid waste, except for the infrequent burning of agricultural wastes, silvicultural wastes, land-clearing debris, diseased trees or debris from emergency cleanup operations, except as approved by the Division of Air Quality, is prohibited at all SWLFs.

3.2.o. Property Line Distance Requirements. -- A minimum separation distance of one hundred (100) feet must be maintained between the limits of waste filling and all adjacent property lines. A minimum distance of fifty (50) feet must be maintained between any permanent berms or excavations associated with the facility (excluding surface water diversion structures) and all adjacent property lines;

3.2.p. Recordkeeping. -- The permittee must retain a copy of all such demonstrations for location standards that have previously received the written approval of the Secretary pursuant to this subdivision in the facility operating record, as required by subsection 4.4 of this rule.

3.3. Approvable Facilities.

3.3.a. Approvable Solid Waste Facilities. -- Solid waste facilities for which approval may be granted include the following, or any combination thereof:

3.3.a.1. Class A Solid Waste Facility;

3.3.a.2. Class B Solid Waste Facility;

3.3.a.3. Class C Solid Waste Facility;

3.3.a.4. Class D Solid Waste Facility;

3.3.a.5. Class E Solid Waste Facility;

3.3.a.6. Class F Solid Waste Facility;

3.3.a.7. Sewage Sludge Processing Facility;

3.3.a.8. Yard Waste Composting Facility;

3.3.a.9. Mixed Waste Processing Facility; and/or

3.3.a.10. Other solid waste facilities approved in writing by the Secretary.

3.4. Pre-Siting Requirements for Commercial Solid Waste Facilities. -- Except those recycling facilities specifically exempted by W. Va. Code §20-11-12, any person wishing to apply for a permit under the West Virginia Solid Waste Management Act must comply with the following:

3.4.a. Any person investigating an area for the purpose of siting a commercial solid waste facility where no current solid waste facility exists, in order to determine a feasible, approximate location and in order to obtain a permit to construct and operate a commercial solid waste facility in this state, must have complied with the pre-siting requirements of W. Va. Code §22-15-13, including, but not limited to the following:

3.4.a.1. Publish a Class II legal advertisement in a qualified newspaper, as defined in W. Va. Code §59-3-1(b), serving the county or counties in which the facility is proposed to be located. This legal advertisement must include the nature of the proposed activity, and:

3.4.a.1.A. A description of the location at which the proposed facility may be sited;

3.4.a.1.B. A statement of the anticipated size of the proposed facility, in acres; and

3.4.a.1.C. An estimate of the volume, type, and source of solid waste to be handled at the proposed facility.

3.4.a.2. File a pre-siting notice with the Secretary within five (5) days of the publication of the legal advertisement required under paragraph 3.4.a.1 of this rule. The pre-siting notice must be made in writing on forms obtained from the Secretary, which must be signed and verified by the applicant and must include:

3.4.a.2.A. A certification of publication of the legal advertisement required under paragraph 3.4.a.1 of this rule from the qualified newspaper(s) in which such advertisement was published;

3.4.a.2.B. A description of each location at which the proposed facility or facilities may be sited;

3.4.a.2.C. A United States Geological Survey (USGS) topographic map or portion thereof and a map showing the location and anticipated property, site, and other boundaries of each site being considered for the proposed facility;

3.4.a.2.D. An estimate of the volume, type, and source of solid waste to be handled at the proposed facility;

3.4.a.2.E. The period of time over which the investigative review of the site will be undertaken; and

3.4.a.2.F. Other information required by the Secretary.

3.4.a.3. Provide a copy of the pre-siting notice to the appropriate county or regional solid waste authority according to the county or region in which the proposed facility is to be located within five (5) days of the publication of the legal advertisement required under paragraph 3.4.a.1 of this rule.

3.4.b. The Secretary must hold a public hearing on the pre-siting notice in the area potentially affected.

3.4.b.1. The public hearing on the contents of the pre-siting notice must be conducted in accordance with the provisions of subsection 3.23 of this rule.

3.4.b.2. The Secretary may substitute the public hearing held by the county or regional solid waste authority during the county appraisal or county siting process for the hearing contemplated by subdivision 3.4.b of this rule.

3.4.c. Based on comments received at the public hearing or received in writing within ten (10) days following the public hearing, or upon recommendations received from the county or regional solid waste authorities within ninety (90) days after their receipt of the pre-siting notice, the Secretary may require the person who submitted that notice to furnish additional information on the siting of the proposed facility. Such additional information may include, but not be limited to, the following:

3.4.c.1. Impacts upon transportation facilities;

3.4.c.2. Impacts upon public water supplies;

3.4.c.3. Impacts upon land use patterns;

3.4.c.4. Impacts upon agricultural, commercial and residential real estate values;

3.4.c.5. Impacts upon wildlife;

3.4.c.6. Impacts upon endangered or threatened species of animals or plants;

3.4.c.7. Impacts upon aesthetics;

3.4.c.8. Impacts upon socioeconomic conditions;

3.4.c.9. Impacts upon water resources; and

3.4.c.10. Other impacts as determined by the Secretary.

3.5. Facility Permits.

3.5.a. Permit Required. -- A permit must be obtained from the Secretary prior to the installation, establishment, construction, modification, operation or closure of any solid waste facility.

3.5.b. Single Permit. -- Permits issued pursuant to this rule must meet the requirements of W. Va. Code §§22-15-1, et seq. and 22-11-1, et seq. and all associated rules as applicable, so that only one permit for any solid waste facility will be issued by the Secretary. The W. Va. Code §22-11 portion of that single permit must also meet the requirements of the “Groundwater Protection Act,” W. Va. Code §22-12-1, et seq., and any rules promulgated thereunder.

3.5.c. Term of Permit. -- All permits issued pursuant to W. Va. Code §22-15-1, et seq. and this rule must have a fixed term not to exceed five (5) years from the date of issuance. The Secretary may administratively extend any permit expiration date for a period of up to one (1) year.

3.5.d. Existing Permits. -- Any person who holds a valid Department permit, or modifies or renews such permit to conduct a solid waste activity must, upon notification by the Secretary in writing, submit a request to the Secretary for a minor modification of that permit in accordance with the provisions of subsection 3.18 of this rule, so that the applicable provisions of this rule can be incorporated into the terms and conditions of the existing permit. The Secretary may only require a minor modification of the facility permit if the West Virginia Solid Waste Management Act, this rule, or the counterpart federal regulation is modified or amended. The permit modification request must be submitted within ninety (90) days of the date of receipt of the notification by the Secretary that the permittee is required to comply with all requirements of W. Va. Code §22-15-1, et seq. and this rule, as applicable.

3.5.e. Application Completeness. -- A complete permit application, including the background investigation disclosure statement, must consist of all applicable information as required for final permit approval by this rule that renders the application for a permit, renewal, modification, transfer or other permitting function to be both administratively and technically complete.

3.6. Permit Application Fees.

3.6.a. Each application for a solid waste facility permit, renewal, modification, transfer or other permitting functions must be accompanied by a nonrefundable application fee in accordance with the schedule of fees in Appendix IV to this rule.

3.6.b. A fee equal to ten percent (10%) of the application fee listed in Appendix IV to this rule must accompany an application for any renewal, modification, transfer or other permitting functions refiled or that requires additional information due to substantial administrative or technical incompleteness.

3.7. Permit Application Requirements. -- A permit must be obtained from the Secretary prior to the installation, establishment, construction, modification, operation or closure of any solid waste facility. Unless otherwise specified in this rule or on application forms prescribed by the Secretary, all applications for a solid waste facility permit must include the following:

3.7.a. Forms and Number of Copies. -- The application must be made on the forms prescribed by and obtained from the Secretary. Four (4) copies of the application, including all supporting documents, must be submitted to the Secretary; a fifth copy must be submitted to the applicable county or regional solid waste authority for the area in which the proposed facility is or will be located.

3.7.b. Property Rights. -- The application must provide a copy and a narrative description of the legal documents upon which the applicant’s legal right to enter and conduct solid waste operations are based within the solid waste facility proposed permit area and whether that right is the subject of pending or current court litigation.

3.7.c. Certification. -- All application documents related to engineering and design plans and specifications must be compiled, signed, and sealed by a professional engineer who is registered to practice in West Virginia.

3.7.d. Cover Letter. -- The application must include a cover letter detailing the desired Department action and/or response.

3.7.e. Table of Contents. -- The application must include a table of contents listing all sections, visuals, and attachments of the submittal.

3.7.f. Visuals. -- The application must include appropriate maps, figures, photographs, and tables to clarify information or conclusions. The visuals must be legible. All maps, plan sheets, drawings, isometrics, cross-sections, aerial photographs, and other attachments must:

3.7.f.1. Be no smaller than eight and one-half inches by eleven inches (8½” x 11”) and, if larger, must be folded to eight and one-half inches by eleven inches (8½” x 11”);

3.7.f.2. Be of appropriate scale to show all required details in sufficient clarity;

3.7.f.3. Be numbered, referenced in the table of contents and narrative, titled, have a legend of all symbols used, and specify drafting or origination dates;

3.7.f.4. Use uniform horizontal and vertical scales;

3.7.f.5. Contain a north arrow;

3.7.f.6. Use USGS datum as a basis for all elevations;

3.7.f.7. Contain a survey grid with a maximum dimension of two hundred (200) feet square based on monuments established in the field that is referenced to State plane coordinates;

3.7.f.8. Show original topography and the grid system on plan sheets showing construction, operation, or closure topography; and

3.7.f.9. Show survey grid locations and reference major plan sheets on all cross-sections. A reduced diagram of a cross-section location plan view map must be included on the sheets with the cross-section.

3.7.g. Quality Assurance and Quality Control Plans. -- The application must include quality assurance and quality control (Q.A./Q.C.) plans to be implemented to assure conformity of the solid waste facility construction, environmental monitoring, monitoring well development, and provisions for monitoring within applicable standards.

3.7.g.1. The Q.A./Q.C. plans must include a delineation of the quality assurance and quality control management organization, including the chain of command of the Q.A./Q.C. inspectors and contractors;

3.7.g.2. The Q.A./Q.C. plans must include a description of the required level of experience and training for the contractor, the contractor’s crew, and Q.A./Q.C. inspectors for every major phase of construction in sufficient detail to demonstrate that the installation methods and procedures required in this rule will be properly implemented; and

3.7.g.3. The Q.A./Q.C. plans must include a description of the quality assurance and quality control testing procedures for every major phase of construction. At a minimum, these Q.A./Q.C. procedures must include:

3.7.g.3.A. The frequency of field inspections, field testing, and frequency of sampling for laboratory testing;

3.7.g.3.B. The sampling and field testing procedures and any associated equipment to be utilized;

3.7.g.3.C. The calibration of field testing equipment;

3.7.g.3.D. The frequency of performance audits;

3.7.g.3.E. The sampling size;

3.7.g.3.F. The soils or geotechnical laboratory to be used;

3.7.g.3.G. The laboratory procedures to be utilized;

3.7.g.3.H. The calibration of laboratory equipment;

3.7.g.3.I. The laboratory’s Q.A./Q.C. procedures;

3.7.g.3.J. The limits for test failure; and

3.7.g.3.K. A description of the corrective procedures to be used upon test failure;

3.7.g.4. The Q.A./Q.C. plans must include a description of the quality assurance and quality control sampling and analysis procedures. At a minimum, these Q.A./Q.C. procedures must encompass the sampling procedures and analyses of groundwater, surface water, soil, leachate, and gas required under this rule.

3.7.h. Technical Procedures. -- All technical procedures used to investigate a solid waste facility must be the current standard procedures as specified by the American Society for Testing Materials or by the United States Geological Survey or other equivalent, appropriate methods approved by the Secretary.

3.7.h.1. All technical data submitted in the application must be accompanied by the names of person(s) and/or organization(s) that collected and/or analyzed the data, the dates of the collection, dates of analyses, an analysis of the data, a description of the methodology used to collect and analyze the data, and the chain of custody of any sample taken for analyses.

3.7.i. Endangered Species and Historic Sites. The application must include a letter from the Division of Natural Resources’ Section of Wildlife Resources addressing the presence of any endangered or threatened species of animals or plants in the vicinity of the proposed facility. The application must also include a letter from the West Virginia Division of Culture and History addressing the presence of any historical, scientific, or archaeological areas in the vicinity of the proposed facility.

3.7.j. Bonding and Financial Assurance. Sufficient bond or other type of financial assurance must be approved by the Department in compliance with the provisions of subsection 3.13 of this rule and any requirements of the West Virginia Public Service Commission.

3.7.j.1. The permittee must maintain copies of any required closure, post-closure, and corrective action cost estimates in the operating record. A copy of the estimate, or the estimate as amended, must be approved by the Secretary prior to the placement of the estimate in the operating record.

3.7.k. Background Investigation Disclosure Statement. -- The background investigation disclosure statement for a solid waste facility permit must include the name of the applicant or any officer, director or manager thereof; shareholder owning five percent (5%) or more of its capital stock, beneficial or otherwise; or other person conducting or managing the affairs of the applicant or the proposed facility and must be submitted to the Secretary in compliance with subsection 3.14 of this rule.

3.7.l. Facility Expansion. -- In an application for an expansion of an existing facility, the effectiveness of the existing design and operation must be discussed. An evaluation of relevant monitoring data and a discussion of all plan modifications and remedial actions must be included in the application. Any significant adverse impacts to the waters of the State or to any endangered or threatened species of animal or plant that could result from the expansion must also be noted and discussed.

3.7.m. Waste Reduction and Recovery Information. -- The application must include a discussion of the alternatives to the facility, as well as a description of any waste reduction incentives and recycling services to be instituted or provided with the proposed facility as contained in subdivision 3.7.m of this rule.

3.7.m.1. Waste Types, Sources, and Quantities. -- The application must include a brief description of the types, sources, and quantities of household, commercial, industrial, construction/demolition, and other wastes anticipated to be accepted at the existing or proposed facility and a calculation of waste quantities by composition based on State-estimated figures or other data if readily available.

3.7.m.2. Description of Technologies. -- The application must include a brief description of the technologies and methodologies of waste reduction, reuse, recycling, composting and energy recovery as applicable to the wastes anticipated to be accepted at the proposed facility.

3.7.m.3. Ongoing Program. -- The application must include a brief description of any known waste reduction or recovery programs in the area to be served by the proposed facility that handle the types of waste anticipated to be accepted at the existing or proposed facility, including a description of their potential for expansion.

3.7.m.4. Recommendations. -- The application must include a brief description of any recommendations for waste reduction and recovery in approved area-wide solid waste management plans for all counties in the area to be served by the proposed facility.

3.7.m.5. Current Studies. -- The application must include a brief description of any waste reduction or recovery studies being conducted for wastes anticipated to be accepted at the proposed facility.

3.7.m.6. Available Recovery Markets. -- The application must include a description of the nearest available markets for recoverable material from the waste anticipated to be accepted at the proposed facility including:

3.7.m.6.A. Market name and address;

3.7.m.6.B. Market requirements for minimum quantities and preparation for deliverable material; and

3.7.m.6.C. Prices paid for materials, including both current prices and ranges for the past three (3) years, if available.

3.7.m.7. Potential Energy Markets. -- The application must include a brief description of energy users within the service area capable of using at least twenty-five percent (25%) of the energy available in the waste stream anticipated at the proposed facility or for the energy available from a minimum of twenty-five (25) tons of waste per day, whichever is greater. At a minimum, consideration must be given to both electrical generation and to steam production.

3.7.m.8. Future Effects. -- The application must include a brief description of any efforts to be implemented to either assist in the expansion of existing waste reduction and recovery programs or to develop new programs for waste reduction and recovery.

3.7.n. Geotechnical Information. -- The application must include an analysis of the geologic, hydrogeologic, topographic, and hydrologic features of the facility site that may be favorable or unfavorable for facility development in compliance with the requirements of subsection 3.8 of this rule.

3.7.o. Identification and Characterization of Potential Borrow Sources. -- The application must include an identification and characterization of the potential borrow sources as detailed in subsection 3.12 of this rule.

3.7.p. Proposed Design and Operation. -- The application must include a proposed design based on conclusions outlined in the construction design section of the application as designated in subsection 3.10 of this rule. A general discussion of the proposed operating procedures must also be included.

3.7.q. Landfill Liners. -- The application must include plans, drawings, cross-sections, a Q.A./Q.C. plan, and specifications for a liner system as designated in subsection 3.11 of this rule.

3.7.r. Verification of Application. -- The application must include a notarized signature of a principal officer or ranking public official verifying that the information contained in the application is true, complete, and accurate to the best of that individual’s knowledge and belief, based upon inquiry.

3.7.s. Monthly tonnage limit of commercial solid waste facilities.

3.7.s.1. As provided for in W. Va. Code §22-15-8, the Secretary will place a limit on the amount of solid waste received or disposed of per month in commercial solid waste facilities by considering, at a minimum, the following criteria:

3.7.s.1.A. The proximity and potential impact of the solid waste facility upon groundwater, surface water, and potable water;

3.7.s.1.B. The projected life and design capacity of the solid waste facility, including the available air space and lined acreage;

3.7.s.1.C. The solid waste facility’s equipment type, size, and production capacity;

3.7.s.1.D. Adequacy of the solid waste facility’s personnel structure;

3.7.s.1.E. The solid waste facility’s leachate management or treatment capabilities;

3.7.s.1.F. The transportation system networks to access the solid waste facility; and

3.7.s.1.G. Other factors related to environmentally safe and efficient disposal of solid waste.

3.7.s.2. The solid waste permit application must include significant information, acceptable to the Secretary, for considering the above criteria in determining a commercial solid waste facility’s monthly tonnage limit, including the certificate of need, certificate of siting approval, and, if applicable, the referendum.

3.8. General Geologic and Hydrologic Submission Requirements.

3.8.a. Site Information. -- The application must include the following information regarding the potential site:

3.8.a.1. Total acres of area permitted or to be permitted;

3.8.a.2. Total acres of disposal area;

3.8.a.3. Planned life of facility;

3.8.a.4. Previous existence or present activities of mines or quarries at the site;

3.8.a.5. A 7.5 minute USGS topographic map, or an eight and one-half inch by eleven inch (8½” x 11”) copy of a portion thereof showing:

3.8.a.5.A. The site and its boundaries;

3.8.a.5.B. The area surrounding the site for at least fifteen hundred (1,500) feet beyond the site boundaries;

3.8.a.5.C. The name of the USGS quadrangle;

3.8.a.5.D. The date of last USGS map revision;

3.8.a.5.E. The latitude and longitude of the center of the disposal area; and

3.8.a.5.F. The location of the items listed in paragraph 3.8.a.12 of this rule, unless such items are instead shown on the large-scale map;

3.8.a.6. A description of the site location;

3.8.a.7. A description of the site terrain;

3.8.a.8. A description of any title, deed or usage restrictions affecting the proposed permit area;

3.8.a.9. The name of the town nearest to the site;

3.8.a.10. The name of the county or counties in which the site is or will be located;

3.8.a.11. A large-scale map -- with a minimum scale of one inch equal to two hundred feet (1 inch = 200 feet) and a maximum contour interval of ten (10) feet, showing the location of the items listed in paragraph 3.8.a.12 of this rule, unless such items are instead shown on the 7.5 minute topographic map;

3.8.a.12. Map Inclusions. -- All of the following that occur either within the site boundaries or within fifteen hundred (1,500) feet of the site boundaries or within the distances specified in subsections 3.1 and 3.2 of this rule must be indicated on the large-scale map or the 7.5 minute topographic map or both;

3.8.a.12.A. Water supply wells;

3.8.a.12.B. Springs;

3.8.a.12.C. Natural wetlands (e.g., swamps, bogs, marshes);

3.8.a.12.D. Streams;

3.8.a.12.E. Public water supplies;

3.8.a.12.F. Other bodies of water;

3.8.a.12.G. Underground and surface mines (for underground mines, also indicate the subsidence angle of draw, as applicable);

3.8.a.12.H. Mine pool(s) and point(s) of discharge;

3.8.a.12.I. Mine refuse spoil piles and any impoundment capabilities;

3.8.a.12.J. Quarries or sand and gravel pits;

3.8.a.12.K. Gas and oil wells;

3.8.a.12.L. Surface and groundwater quality monitoring points;

3.8.a.12.M. Occupied or habitable dwellings;

3.8.a.12.N. Roads;

3.8.a.12.O. Power lines, pipelines, and other utilities;

3.8.a.12.P. Public buildings;

3.8.a.12.Q. Sinkholes;

3.8.a.12.R. Property boundaries;

3.8.a.12.S. Owners of record both surface and subsurface;

3.8.a.12.T. Easements or rights-of-way;

3.8.a.12.U. 100- year floodplain boundary; and

3.8.a.12.V. All areas prohibited by subsection 3.1 of this rule or for which location standards have been established by subsection 3.2 of this rule.

3.8.b. Soils Information. -- Backhoe test pits or drilled test borings must be employed to determine soil types, characteristics, and conditions. A minimum of four (4) test pits or borings for the first ten (10) or less acres and one (1) test pit or boring for each additional ten (10) or less acres must be excavated or drilled on a uniform grid pattern across each proposed disposal area and each proposed borrow source. Test pits or borings for all solid waste facilities must be located so as to identify all soil types distributed over the site. The applicant must provide the following:

3.8.b.1. A list of each soil series and phase present on the site and each borrow source and soil maps with site and borrow source boundaries as an attachment;

3.8.b.2. The soil maps must show the locations of all test pits or borings made to describe soils and determine their depth;

3.8.b.3. A description of soil horizons containing seventy-five percent (75%) or more coarse fragments (as per the Unified Soil Classification System) including:

3.8.b.3.A. Minimum thickness of soil to horizons with seventy-five percent (75%) or more coarse fragments;

3.8.b.3.B. Soil thickness determination procedures; and

3.8.b.3.C. Degree of weathering of coarse fragments.

3.8.b.4. Test pit or excavation descriptions, including depth to all horizons, color, texture, structure, consistence, depth to, and color of any mottles;

3.8.b.5. Results of laboratory analyses of soil samples taken from test pits or borings, including analyses for grain size, pH, permeability, and Atterberg limits for predominate soil types; and

3.8.b.6. A description of the following general soil characteristics;

3.8.b.6.A. Drainage characteristics of soil;

3.8.b.6.B. Maximum slopes at the proposed site; and

3.8.b.6.C. Shallowest depth from surface to mottling.

3.8.b.7. A minimum of four (4) representative samples for the first ten (10) or less acres and one (1) additional sample for each additional ten (10) or less acres must be tested for the relationship of water content to dry density using either the Modified or Standard Proctor method. Each Proctor curve must be developed with a minimum of five (5) points.

3.8.b.8. A minimum of twenty percent (20%) of the samples used to develop the Proctor curves must be used to evaluate soil permeability. This evaluation must be accomplished by determining the maximum density and optimum moisture through a Proctor test (D-698) and then testing for permeability at a dry density between ninety-five percent (95%) and one hundred percent (100%) of the maximum and within four percent (4%) of optimum moisture.

3.8.c. Site Geological Information. -- A minimum of four (4) test corings must be performed at any landfill site with a permitted surface area of ten (10) or less acres and one (1) additional test coring performed for each additional five (5) acres up to one hundred fifty (150) acres, not to exceed fifteen (15) holes. Any acreage over one hundred fifty (150) acres must require one (1) additional test coring per ten (10) or less acres. Such test corings must be distributed over the entire site area to give an accurate description of subsurface conditions for the area of the site that is intended for use as a landfill. The depth at which coreholes must terminate must be determined by the following: the first coring must be placed in the lowest point of the proposed disturbed area and cored to the uppermost significant aquifer that is to be monitored, or corings must penetrate to a minimum depth of one hundred (100) feet in the absence of the aquifer. Upon the completion of drilling, drilling logs for all completed coreholes must be submitted to the Secretary.

3.8.c.1. The site geological analysis must provide the following information:

3.8.c.1.A. Sediments.

3.8.c.1.A.1. A notation of the presence of any sedimentary deposits under the proposed site including, but not limited to, colluvial, alluvial, or lacustrine;

3.8.c.1.A.2. A description of the type and texture of unconsolidated materials;

3.8.c.1.A.3. The thickness of unconsolidated materials, including the maximum, minimum, and how the thickness was determined procedurally; and

3.8.c.1.A.4. A description of the different formations of unconsolidated materials and the effects of these sediments on potential discharges from the landfill;

3.8.c.1.B. Bedrock.

3.8.c.1.B.1. The formations and names;

3.8.c.1.B.2. The lithologies including major lithologic names in the area (e.g., Morgantown, Sandstone, Ames Limestone), must be plotted on the large-scale map;

3.8.c.1.B.3. An indication of all areas where bedrock outcrops within the site and also within fifteen hundred (1,500) feet of the site boundaries on the large-scale map;

3.8.c.1.B.4. A characterization of the degree of bedrock weathering;

3.8.c.1.B.5. The shallowest depth from surface to bedrock; and

3.8.c.1.B.6. For carbonate rock, show any undrained depressions or sinkholes existent on-site or within fifteen hundred (1,500) feet of the site shown on the large-scale map or the 7.5 minute topographic map or both;

3.8.c.1.C. Structure.

3.8.c.1.C.1. An indication of all of the following types of fracture zones on-site and within fifteen hundred (1,500) feet of the site boundaries on the large-scale map or the 7.5 minute topographic map or both: 3.8.c.1.C.1.(a) Traces; 3.8.c.1.C.1.(b) Lineaments; 3.8.c.1.C.1.(c) Joints; and 3.8.c.1.C.1.(d) Faults.

3.8.c.1.C.2. A description of the influence that these fracture zones have on the movement of infiltrated water and groundwater;

3.8.c.1.C.3. A description of the regional bedrock structures in the area of the site;

3.8.c.1.C.4. A detailed description of the local bedrock structure. Applicants must construct a structural geologic map with a scale of one inch equal to two hundred feet (1 inch = 200 feet) using the structural contour intervals. For bedrock dip at angles of zero (0°) to five degrees (5°), contour intervals must be five (5) feet; for angles of five (5°) to thirty (30°) degrees, contour intervals must be ten (10) feet; and for angles of greater than thirty (30°) degrees, contour intervals must be twenty-five (25) feet. The use of intermediate contours in areas of low structural relief for greater detail is required;

3.8.c.1.C.5. A description of folding as it applies to the site, including strike and plunge of fold axis and location of the site in relation to the local structure;

3.8.c.1.C.6. The strike and dip of bedding planes;

3.8.c.1.C.7. A description of the joints and fractures, including strike, dip, and open joints and a description of the spacing of the joints;

3.8.c.1.C.8. A description of all faults located on or within fifteen hundred (1,500) feet of the site boundaries, including the strike and dip of faults and an indication of all faults in the area of the site on a map; and

3.8.c.1.C.9. A minimum of two (2) geologic profiles using bedrock outcrops and corehole information, including the vertical exaggeration to adequately illustrate the geology of the site;

3.8.c.1.D. Mining.

3.8.c.1.D.1. A notation of the presence of any abandoned, reclaimed, active, and inactive surface mines on the site;

3.8.c.1.D.2. A list of any extractable coal seams beneath the site;

3.8.c.1.D.3. Any abandoned, reclaimed, active or inactive underground mines located on-site or within fifteen hundred (1,500) feet of the site boundaries, including minimum depth to mined area, aerial extent of mined area as shown, and type of minerals mined (if coal, give the names of seams); and

3.8.c.1.D.4. Any mine maps and related information for mined areas under the site or within fifteen hundred (1,500) feet of the site boundaries.

3.8.d. Hydrologic Information. -- The permittee must install a groundwater monitoring system that consists of a sufficient number of wells (a minimum of four (4)). Monitoring wells must be installed at appropriate locations and depths to yield groundwater samples from the uppermost aquifer. One (1) upgradient and three (3) downgradient monitoring wells must monitor the same aquifer. If previously drilled geologic corings are to be used as monitoring wells, and the uppermost significant aquifer has been drilled through, then those holes proposed to monitor groundwater must be plugged from the bottom of the hole to the uppermost significant aquifer with a sodium bentonite grout, then properly screened and cased.

3.8.d.1. Groundwater monitoring wells must meet the following specifications:

3.8.d.1.A. All monitoring well casings and screens must be constructed of a minimum of two (2)-inch (inner diameter) Schedule 40 polyvinyl chloride (PVC) plastic pipe or other casing satisfactory to the Secretary. Lengths of pipe must be joined using threaded couplings. Solvent cement must not be used for PVC couplings. Borehole diameter must be a minimum of six (6) inches larger than the PVC casing. If approved by the Secretary, the borehole diameter may be smaller if proven methods are employed to facilitate the emplacement of the filter pack and annular sealant.

3.8.d.1.B. The screened interval for monitoring wells must consist of a minimum of ten (10) to a maximum of twenty (20) feet of properly sized, preconstructed, commercially available well screen of the same material and diameter as the casing, or screen as approved by the Secretary. The screen is to have a slot size to enable retention of eighty-five to one hundred percent (85% - 100%) of the filter pack material. The bottom of the screen must be capped. Should the uppermost aquifer thickness exceed twenty (20) feet or be comprised of several hydraulically connected formations, then a cluster of wells or some other type of multiple zone monitoring system may be required at the discretion of the Secretary.

3.8.d.1.C. All wells must be sand or gravel-packed (depending on screen size) from the base of the well to a level a minimum of two (2) feet and a maximum of five (5) feet above the top of the screen. An impervious two (2)-foot or greater bentonite seal must be installed on top of the gravel packing.

3.8.d.1.D. All wells must be continuously grouted from the top of the impervious seal to above the groundwater table. Wells must not be grouted with cement below the potentiometric surface of the uppermost significant aquifer.

3.8.d.1.E. From below the frost line, the cap must be composed of concrete (using expanding cement) blending into a four (4)-inch thick apron extending three (3) feet or more from the outer edge of the borehole.

3.8.d.1.F. Upon completion, all wells must be fully developed and pumped to determine the yield of the well.

3.8.d.1.G. The elevation of the top of the well casing must be two (2) to three (3) feet above the elevation of the ground surface.

3.8.d.1.H. All wells must be properly tagged with permit number, top of casing elevation, well number, and flagged or otherwise made visible so they can be readily located in the field and avoided by onsite heavy equipment. A survey mark must be placed on the top of the casing at the point utilized for determining elevation.

3.8.d.a.I. All wells must be provided with a means of protection from tampering, vandalism or damage. At a minimum, protection must be provided by a lockable outer well cap.

3.8.d.1.J. In addition to the requirements of subdivision 3.8.d of this rule, the monitoring system must be installed at appropriate locations and depths to yield ground-water samples from the uppermost aquifer that:

3.8.d.1.J.1. Represent the quality of background groundwater that has not been affected by leakage from a SWLF.

3.8.d.1.J.2. A determination of the background quality may include sampling of wells that are not hydraulically upgradient of the waste management area where: 3.8.d.1.J.2.(a) Hydrogeologic conditions do not allow the permittee to determine what wells are hydraulically upgradient; or 3.8.d.1.J.2.(b) Sampling of other wells will provide an indication of the background groundwater quality that is as representative or more representative than that provided by the upgradient wells.

3.8.d.1.J.3. Represent a quality of groundwater passing the relevant point of compliance specified by the Secretary under subparagraph 4.5.d.1.G of this rule.

3.8.d.1.J.4. The downgradient monitoring system must be installed at the relevant point of compliance specified by the Secretary under subparagraph 4.5.d.1.G of this rule, which ensures detection of groundwater contamination in the uppermost aquifer.

3.8.d.1.J.5. When physical obstacles preclude installation of groundwater monitoring wells at the relevant point of compliance at existing SWLFs, the downgradient monitoring system may be installed at the closest practicable distance hydraulically downgradient from the relevant point of compliance specified by the Secretary that ensure detection of groundwater contamination in the uppermost aquifer.

3.8.d.1.K. The permittee may request the Secretary to approve a multi-unit groundwater monitoring system instead of separate groundwater monitoring systems for each SWLF when the facility has several SWLFs, provided the multi-unit groundwater system meets the requirements of subdivision 3.8.d of this rule and will be as protective of human health and the environment as individual monitoring systems for each SWLF, based on the permittees’ compliance with the following factors:

3.8.d.1.K.1. Number, spacing, and orientation of the SWLFs;

3.8.d.1.K.2. Hydrogeologic setting;

3.8.d.1.K.3. Site history;

3.8.d.1.K.4. Engineering design of the SWLFs; and

3.8.d.1.K.5. Type of waste accepted at the SWLFs.

3.8.d.1.L. Monitoring Well Casing Requirements. Monitoring wells must be cased in a manner that maintains the integrity of the monitoring well bore hole. This casing must be screened or perforated and packed with gravel or sand, where necessary, to enable collection of groundwater samples. The annular space (i.e., the space between the bore hole and well casing) above the sampling depth must be sealed to prevent contamination of samples and the groundwater.

3.8.d.1.L.1. The permittee must notify the Secretary that the documentation of design, installation, development, and decommission of any monitoring wells, peizometers and other measurement, sampling, and analytical devices has been placed in the operating record; and

3.8.d.1.L.2. The monitoring wells, peizometers, and other measurement, sampling, and analytical devices must be operated and maintained so that they perform to design specifications throughout the life of the monitoring program.

3.8.d.1.M. The number, spacing, and depths of monitoring systems must be:

3.8.d.1.M.1. Determined based upon site-specific technical information that must include through characterization of: 3.8.d.1.M.1.(a) Aquifer thickness, groundwater flow rate, and groundwater flow direction, including seasonal and temporal fluctuations in groundwater flow; and 3.8.d.1.M.1.(b) Saturated and unsaturated geologic units and fill materials overlying the uppermost aquifer, materials comprising the uppermost aquifer, and materials comprising the confining unit defining the lower boundary of the uppermost aquifer; including, but not limited to: thicknesses, stratigraphy, lithology, hydraulic conductivities, porosities, and effective porosities.

3.8.d.1.M.2. Certified by a qualified groundwater scientist and approved in writing by the Secretary. 3.8.d.1.M.2.(a) Within fourteen (14) days of this certification, the permittee must notify the Secretary that the certification has been placed in the operating record.

3.8.d.2. Well Drilling. -- The method used to drill the groundwater monitoring wells must be described in the application. The latitude and longitude of each well to within plus or minus one second (+/- 1 sec.) and the USGS datum elevation of the top of each well must be included in the application.

3.8.d.3. Water Table. -- The maximum and minimum depth to the zone of saturation must be included in the application, along with the following:

3.8.d.3.A. Seasonal water table fluctuations at the above locations and seeps and springs affected by seasonal changes must be described in the application, and the source of information must be referenced;

3.8.d.3.B. Perched or special water table conditions must be described in the application;

3.8.d.3.C. The minimum depth to a perched water table must be provided in the application.

3.8.d.3.D. The occurrence of groundwater drainage to underground mines must be determined and, if found, mine discharges must be identified on the large-scale map or the 7.5 minute topographic map or both, as required under paragraph 3.8.a.12 of this rule.

3.8.d.4. Groundwater Movement.

3.8.d.4.A. A large-scale map (1 inch = 200 feet) showing all groundwater flow directions must be constructed and included in the application. The water table/potentiometric surface must be contoured on this map using an appropriate contour interval.

3.8.d.4.B. The approximate rate of groundwater flow and the method used to determine that rate of flow must be provided in the application.

3.8.d.4.C. The method used to determine groundwater flow directions must be included in the application.

3.8.d.4.D. The location of all groundwater discharge points related to the site must be shown on the large-scale map required under subparagraph 3.8.d.4.A of this rule.

3.8.d.4.E. If the site is in a groundwater discharge or recharge zone, this fact must be noted in the application.

3.8.d.4.F. The rate of groundwater flow at the site and its effects on the operation of the proposed facility must be discussed in the application.

3.8.d.5. Groundwater Quality Analyses. -- The method of sampling and date and results of the analyses of the water sampled from each groundwater monitoring well at the site must be provided in the application. All sampling procedures must be included in the application and approved by the Secretary. Analyses for the constituents listed in Appendix I, the facility permit or an order by the Secretary and any other parameter(s) specified by the Secretary in writing must be conducted.

3.8.d.6. Surface Water.

3.8.d.6.A. The name of the nearest stream to the site and its 7Q10 low flow must be included in the application.

Note: “7Q10” means the seven (7) consecutive day drought flow with a ten (10) year return frequency, as defined in section 2 of this rule.

3.8.d.6.B. The surface drainage area of the tributary on which the site is located must be plotted on a map and included in the application.

3.8.d.6.C. The estimated peak surface water drainage flow of the tributary on which the site is located for a twenty-five (25)-year, twenty-four (24)-hour storm must be included in the application.

3.8.d.6.D. The maximum and minimum of surface slopes of the tributary on which the site is located must be included in the application.

3.8.d.6.E. The results of an analysis of water from one (1) grab sample from the nearest stream to the site must be included in the application. This analysis must be performed for the same parameters referenced in paragraph 3.8.d.5 of this rule with the addition of total suspended solids.

3.8.e. Water Budget. -- A water budget must be prepared for the periods of time during active operations when the maximum amount of area has been filled but not capped, and following facility closure at any landfill site. At a minimum, the following factors must be considered in the preparation of the water budget:

3.8.e.1. Average monthly temperature;

3.8.e.2. Average monthly precipitation;

3.8.e.3. Evaporation;

3.8.e.4. Evapotranspiration;

3.8.e.5. Surface slope and topsoil texture;

3.8.e.6. Soil moisture holding capacity and root zone depth;

3.8.e.7. Runoff coefficients;

3.8.e.8. Moisture contribution from the waste; and

3.8.e.9. Any groundwater contribution.

3.8.f. Liners and Leachate Collection System Efficiency. -- The collection efficiency of the leachate collection system at the landfill must be calculated using an approved analytical or numerical method. The factors to be considered in the calculation of collection efficiency must include:

3.8.f.1. The saturated hydraulic conductivity of the liner;

3.8.f.2. Liner thickness;

3.8.f.3. The saturated hydraulic conductivity of the drainage blanket;

3.8.f.4. Drainage blanket porosity;

3.8.f.5. The base slope of the liner;

3.8.f.6. The maximum flow distance across the liner;

3.8.f.7. Annual infiltration; and

3.8.f.8. Any groundwater inflow.

3.8.g. Leachate Generation. -- Information gained from the collection efficiency calculations must be used to predict the daily volume of leachate collected from the landfill.

3.8.h. Waste and Leachate Characterization.

3.8.h.1. Industrial Wastes. -- Unless otherwise approved, the physical and chemical characteristics of all wastes and leachates must be analyzed and described. When more than one waste is generated, testing shall be performed on each waste stream. All leaching tests must be done in accordance with published test procedures. Physical tests must be done in accordance with ASTM standards or published test procedures. All testing procedures must be documented. The proposed testing program, including the leaching test method, the leaching media, the parameters to be analyzed for, and the detection limits for each parameter specified must be discussed with the Secretary prior to initiation of the work. Actual field leachate data may be substituted for chemical characterization data of the waste at facilities for the disposal of industrial wastes, but only if approved in writing by the Secretary.

3.8.h.2. Municipal Wastes. -- Actual field leachate data from existing facilities of similar size, design, and waste type or an estimate of the anticipated leachate quality available from other sources must be included for all facilities for the disposal of municipal solid waste.

3.8.i. Liquid and Non-Liquid Waste Storage. -- All solid waste storage tanks, containers, liquid waste storage tanks, and surface impoundments located at solid waste facilities are subject to regulation under subdivision 3.8.i of this rule.

3.8.i.1. An application for a permit to construct and operate a solid waste facility that includes a waste storage area must contain the following:

3.8.i.1.A. A description of the non-liquid or liquid waste to be stored;

3.8.i.1.B. The estimated volume of the non-liquid or liquid waste generated and a proposed recordkeeping system to record actual quantities stored;

3.8.i.1.C. A schedule of stored waste removal;

3.8.i.1.D. A description of the final treatment and disposal of the stored waste; and

3.8.i.1.E. A description of the storage facility design.

3.9. Existing Land Use and Environmental Assessment.

3.9.a. Land Use Information. -- The application must discuss the present and former land uses at the facility and the surrounding area. A thorough discussion of land uses that may have an impact upon the suitability of the property for waste disposal or affected groundwater quality must be included in the application. The application must address all areas that may affect or be affected by the proposed facility; at a minimum, this will be the area within one (1) mile of the permit area for Class A solid waste facilities and within one-half (½) mile of the permit area for all other facilities. The presentation of land use information in the application must be supplemented with land use maps and, at a minimum, must specifically address the following:

3.9.a.1. Adjacent Landowners. -- The identity and location of the adjacent landowners must be discussed in narrative form. This information may be presented on a plat map but must reflect current ownership conditions and any changes must be so noted;

3.9.a.2. Land Use Zoning. -- The application must provide a review of land use zoning in the area and give particular attention to areas where zoning variances will be required, where agricultural impact statements may be required, or where floodplain, river corridors, or natural wetlands are designated.

3.9.a.3. Documentation of Present Land Uses. -- The application must include a description of the present land use in the area. Particular emphasis must be placed on the discussion of known recreational, historical, archaeological, or environmentally unique areas. The application must include a letter from the Division of Natural Resources’ section of Wildlife Resources addressing the presence of any endangered or threatened species of animal or plant in the vicinity of the proposed facility. The application must include a letter from the West Virginia Division of Culture and History addressing the presence of any historical, scientific, or archaeological areas in the vicinity of the proposed facility. The need for an archaeological survey of the proposed limits of waste fill prior to development must also be addressed in the application.

3.9.a.4. Transportation and Access. -- Present and proposed transportation routes and access roads, including any weight restrictions, must be delineated in the application.

3.9.b. Environmental Review. -- The application must include an environmental assessment section that addresses the following items:

3.9.b.1. Project Summary. -- The application must include a brief summary of the project, with particular attention given to the following:

3.9.b.1.A. The purpose and need for the proposed facility, including the history and background of the project;

3.9.b.1.B. A listing of the statutory authority and other relevant local, state, and federal permits or approvals required for the proposed facility, as well as a discussion of the need for exemptions, zoning changes, and any other special permits; and

3.9.b.1.C. The estimated cost and funding source for the facility.

3.9.b.2. Proposed Physical Changes. -- The application must include a brief description of the proposed physical changes that will result from the project, with particular attention given to the following:

3.9.b.2.A. The changes in terrestrial resources, including the quantity of material to be excavated and the lateral extent of soil removal. This discussion must also cover the quantity and source of materials to be imported for construction of the liner, final cover system, drainage blanket, and perimeter berms. Any other significant terrestrial modifications, such as soil placement, necessary to reach the proposed sub-base grades, construction of access roads, surface water drainage features, and sedimentation controls must also be outlined;

3.9.b.2.B. The changes in aquatic resources, including the potential impacts to streams, existing wetlands, lakes, and drainage basin. This discussion must include discharge rates and volumes for groundwater control structures, leachate collection systems, and surface water runoff under existing conditions, as well as that anticipated during active operation and following closure of the facility;

3.9.b.2.C. Buildings, treatment units, roads, and other structures to be constructed in conjunction with the facility. This discussion must include the size of the facilities and the number of miles of road to be constructed;

3.9.b.2.D. Emissions and discharges such as dust, diesel exhaust, odors, gases, leachate, surface water runoff, and collected groundwater associated with facility preparation, construction, operation, closure, and following closure of the facility;

3.9.b.2.E. Other changes anticipated with facility development; and

3.9.b.2.F. Maps, plans, and other descriptive material to clarify the discussion, such as a county map showing the general area of the project, a USGS topographic map, a plat map, zoning map, county natural wetlands map, and a facility development plan.

3.9.b.3. Existing Environment. -- The application must include a brief description of the existing environment that may be affected by the project, with particular attention given to the following:

3.9.b.3.A. The physical environment including the regional and local topography, geology, surface water drainage features, hydrogeologic conditions, air, natural wetlands, and earth borrow sources, as well as an evaluation of the groundwater quality data and overall performance of any existing solid waste facility;

3.9.b.3.B. The dominant aquatic and terrestrial plant and animal species and habitats found in the area, including any threatened or endangered species, and the amount, type, and hydraulic value of natural wetlands;

3.9.b.3.C. Land use information, including dominant features and zoning in the area;

3.9.b.3.D. Social and economic conditions, including any ethnic or cultural groups;

3.9.b.3.E. Other special resources such as archaeological, historical, state natural areas, and prime agricultural lands; and

3.9.b.3.F. Public and private drinking water supplies.

3.9.b.4. Environmental Consequences. -- The application must include a brief discussion of the probable adverse and beneficial impacts of the project, including primary, indirect, and secondary impacts, with particular attention given to the following:

3.9.b.4.A. The physical impacts that would be associated with facility design, construction, and operation, including visual impacts if applicable;

3.9.b.4.B. The biological impacts, including destruction and creation of habitat, alteration of the physical environment, and any impacts to endangered or threatened species;

3.9.b.4.C. The impacts on land use;

3.9.b.4.D. The social and economic impacts to local residents, cultural groups, and the communities and industries served by the facility;

3.9.b.4.E. Other special resources such as archaeological, historical, state natural areas, and prime agricultural lands; and

3.9.b.4.F. Probable adverse impacts that cannot be avoided including groundwater and surface water impacts, modifications of topography, and any borrow source limitations on development around the facility, any loss of agricultural or forest land, displacement of wildlife, and adverse aesthetic impacts for people in and around the facility.

3.10. Proposed Landfill Design.

3.10.a. Report Preparation. -- The application must include a report describing the proposed landfill design. At a minimum, this report must include the following:

3.10.a.1. Preliminary materials balance calculations, including sources for berms, liner, final cover system, drainage blanket, topsoil, daily and intermediate cover, and any other fill needed to construct the facility;

3.10.a.2. The proposed methods for leachate and gas control, including collection, containment, and treatment. The capability of the wastewater treatment plants to accept leachate must be discussed and an identification made of the wastewater treatment plants the applicant is negotiating with to accept the leachate, if the plant is not directly controlled by the applicant;

3.10.a.3. The proposed operating procedures including the method of facility development, filling sequence, access control for each phase, surface water control, waste screening, covering frequency as applicable, exclusion of hazardous wastes, and other special design features;

3.10.a.4. A description of the proposed groundwater, leachate, surface water, gas, air, unsaturated zone, and other monitoring programs to be implemented to meet the requirements of subsection 4.11 of this rule;

3.10.a.5. The proposed closure plan and final use as specified in subsection 6.1 of this rule;

3.10.a.6. The proposed method of demonstrating financial responsibility for closure, post-closure care, and corrective action requirements, including preliminary itemized cost estimates for land acquisition, facility preparation, construction of each major phase, daily operation, closure, post-closure care, and corrective action. An estimated cost per ton for disposal must also be included;

3.10.a.7. Proposed design for access roads;

3.10.a.8. Proposed design for drainage and sediment control; and

3.10.a.9. Proposed revegetation plan, including seed mixture, seed bed preparation, fertilizers, mulching, and maintenance schedule.

3.10.b. Preliminary Engineering Plans. -- The preliminary engineering design must be presented on twenty-four inch by thirty-six inch (24” x 36”) plan sheets (unless an alternative size is approved by the Secretary in writing) as follows:

3.10.b.1. Proposed access, lateral extent of filling, phases of facility development, sub-base and base grades, slopes, and the leachate collection system. The existing conditions map must be used as a base map for this plan sheet;

3.10.b.2. A plan sheet showing present topography, proposed base and sub-base grades, final grades, and liner and final cover system configuration displayed on all geologic cross-sections intersecting the landfill;

3.10.b.3. A monitoring plan sheet showing the proposed groundwater, leachate, surface water, gas, air unsaturated zone, and any other monitoring programs;

3.10.b.4. A drainage plan sheet showing:

3.10.b.4.A. The directional flow of water on and away from the land to be affected;

3.10.b.4.B. The location of all erosion and sedimentation control structures;

3.10.b.4.C. The component drainage area together with a table showing total acreage and disturbed acreage within each component; and

3.10.b.4.D. A sediment structure table showing type of sediment control structure, total contributing drainage area (acres), disturbed acreage controlled by total disturbance in the drainage area (acres), and storage capacity (acre-feet);

3.10.b.5. A detailed plan sheet showing proposed closure sequence and final grades;

3.10.b.6. A plan sheet showing the details of proposed design features for the major engineering structures at the facility; and

3.10.b.7. A plan sheet for any blasting that must be conducted at the facility. All blasting operations must comply with the following:

3.10.b.7.A. The blasting must be done during clear weather and during times when there is minimal traffic;

3.10.b.7.B. The blasting contractor must follow current blasting laws, regulations, and rules of the State, federal, and local authorities, and all appropriate regulatory agencies must be notified.

3.10.b.7.C. Adjacent residents and property owners and the proper local authorities must be properly informed about and notified of the upcoming blast operations;

3.10.b.7.D. The blasting contractor must initiate or employ a smooth blasting technique by using explosives with low charge concentration. Drilling patterns must be closely spaced with an appropriate blast hole diameter in a square or staggered drilling pattern. Blast hole design must depend on current field conditions;

3.10.b.7.E. To reduce ground vibration and excessive air blast, the contractor must employ proper delay timing, and use appropriate decking of charges and explosive powder factors applicable to the rock types being blasted;

3.10.b.7.F. The contractor must not blast below maximum approved elevations. The under-drilled few feet of the blast holes must not be loaded with explosives; and

3.10.b.7.G. Blasting must not be conducted on Sunday.

3.10.c. Sequencing of Solid Waste Disposal.

3.10.c.1. Solid Waste Placement Schedule. -- The sequence of solid waste disposal must be specified in a schedule of solid waste placement that must be approved by the Secretary. The solid waste placement schedule must correspond to a horizontal control grid system, with grid elements having maximum dimensions of two hundred (200) feet square. The horizontal control grid system must be referenced to a permanent physical marker or object on the site, with vertical control referenced to an elevation established for the marker. The solid waste placement schedule must specify the order in which grid elements (maximum two hundred (200) square feet in size) will be used for solid waste disposal for each lift of every solid waste fill area.

3.10.c.2. Solid Waste Disposal Coordination. -- The schedule of solid waste placement must be coordinated with the construction of on-site access roads, surface water drainage systems, leachate collection systems, and other facility construction in solid waste fill areas.

3.11. Landfill Liners.

3.11.a. Performance Standards. -- The application must contain plans, drawings, cross-sections, and specifications for a liner system to demonstrate compliance with performance standards and other requirements of this rule, including, but not limited to, subdivision 4.5.d, and the following:

3.11.a.1. The design of the liner system;

3.11.a.2. The thickness and characteristics of the sub-base;

3.11.a.3. The thickness and characteristics of the leachate detection zone;

3.11.a.4. The design for the leachate monitoring system in the leachate detection zone;

3.11.a.5. The nature and thickness of the liner material;

3.11.a.6. The thickness and characteristics of the leachate collection zone;

3.11.a.7. The design for the leachate collection system in the collection zone;

3.11.a.8. The thickness and characteristics of the protective cover; and

3.11.a.9. A plan for installing the liner system.

3.11.b. Q.A./Q.C. Plan. -- The application must include a quality assurance and quality control (Q.A./Q.C.) plan for the construction and installation of the liner system. At a minimum, the Q.A./Q.C. plan must include:

3.11.b.1. A description of the testing procedures and construction methods proposed to be implemented during construction of the liner system;

3.11.b.2. A description of the manner in which the protective cover and liner system will be maintained and protected in unfilled portions of the disposal area prior to and during placement of the initial lift of solid waste; and

3.11.b.3. A description of the manner in which the protective cover and liner system will be protected from weather prior to and during placement of the initial lift of solid waste.

3.11.c. Leachate Considerations. -- The application must demonstrate that leachate will not adversely affect the physical or chemical characteristics of the proposed liner system or inhibit the liner’s ability to restrict the flow of solid waste, solid waste constituents or leachate, based on the most recent edition of EPA Method 9090, Compatibility Test for Wastes and Membrane Liners, or other documented data.

3.12. Borrow Sources for Landfills.

3.12.a. General. -- The application must contain a description of each proposed borrow source for liner and capping purposes, including the volume of acceptable material, total acreage, ownership, location, present land use, transportation routes, and any access restrictions, travel distance from the proposed waste disposal facility, surface water drainage patterns, and significant hydrologic features, such as surface waters, springs, drainage divides, and natural wetlands.

3.12.b. Field and Laboratory Investigations. -- At a minimum, preliminary field and laboratory investigations to define the physical characteristics of the proposed borrow material must include the information specified in subdivision 3.8.b of this rule, unless an alternative geotechnical investigation program is approved by the Secretary in writing. Applicants may submit an alternative program in cases where previous information exists regarding the proposed source.

3.12.c. Data Presentation. -- The following information must be submitted as part of the application:

3.12.c.1. The calculated volume of acceptable material based on the information obtained from the test pits or borings;

3.12.c.2. Property boundaries and test pit/boring locations shown on a map based upon a USGS topographic map or other equivalent map, with a scale of one inch equal to five hundred feet (1 inch = 500 feet). The mapped area must extend a minimum of five hundred (500) feet beyond the proposed borrow source;

3.12.c.3. An isopach map showing the thickness of acceptable material;

3.12.c.4. A description of the methods to be used for separating the acceptable materials from any unacceptable materials;

3.12.c.5. A proposal for maintaining drainage, sedimentation control, and proper abandonment of the property, including the introduction and maintenance of vegetation that conforms to the minimum requirements of subdivision 4.5.f of this rule; and

3.12.c.6. All data obtained from the testing program.

Note: It may be necessary to obtain federal, State, or local permits prior to excavating materials from a borrow source near or within surface waters or natural wetlands. It is the responsibility of the applicant or property owner to obtain any such permits.

3.13. Bonding and Financial Assurance for Solid Waste Facilities. -- The mechanisms used to demonstrate financial assurance under this subsection must ensure that the funds necessary to meet the costs of closure, post-closure care, and corrective action for known releases will be available whenever they are needed, and include the requirements of subdivisions 3.7.j, 3.13.n, 3.13.o, and 3.13.p of this rule, and

3.13.a. Requirements for Commercial Solid Waste Facilities.

Note: Non-commercial solid waste facilities are exempt from the requirements of subsection 3.13 of this rule.

3.13.a.1. The Secretary will not approve a new, reissued, renewed or modified permit for a commercial solid waste facility unless the applicant first submits to the Secretary a bond or other form of financial assurance, as applicable, in accordance with this rule, and the bond or other form of financial assurance is approved by the Secretary.

3.13.a.2. The bond or financial assurance must be submitted after the application is approved but before the permit, modification, transfer, assignment or other permitting function is approved or issued. No permit will be issued until the bond or financial assurance is approved by the Secretary and is in full force and effect.

3.13.a.3. A person who holds a valid Department permit to conduct a commercial solid waste activity but wishes to modify, transfer, assign, or perform any other permitting function must comply with paragraph 3.13.a.2 of this rule and must file a bond or other type of financial assurance with the Secretary prior to receiving the approval of the Secretary for the permit, modification or other permitting function as required under this rule.

3.13.a.4. Applicability. -- The requirements of this paragraph apply to permittees of all SWLFs, except as provided in subdivision 3.13.a. If a state or federal government entity should become a permittee in the State of West Virginia, it will be exempt from the requirements of this paragraph, since their debts and liabilities are the debts and liabilities of the state or the United States.

3.13.b. General Bonding and Financial Assurance Requirements.

3.13.b.1. All forms of financial assurance and bonds must be submitted in accordance with the requirements of this rule on a form prepared and furnished by the Secretary, must be made payable to the State of West Virginia, and must provide for continuous liability from the initiation of operations at the facility for the full term of the permit and for at least thirty (30) years after final closure of the permit site. Any further time period required to achieve compliance with the requirements of the closure plan of the permit or other requirements of the Department must be considered an additional liability period.

3.13.b.1.A. The use of any of the mechanisms listed in subsection 3.13 of this rule, must ensure the satisfaction of the following criteria:

3.13.b.1.A.1. That the amount of funds assured is sufficient to cover the costs of closure, post-closure care, and corrective action for known releases when needed;

3.13.b.1.A.2. That funds will be available in a timely fashion when needed;

3.13.b.1.A.3. In the case of closure and post closure care, the financial assurance mechanism(s) must be in full force and effect prior to the initial receipt of solid waste and in the case of corrective action, no later than one hundred twenty (120) days after the corrective action remedy has been selected in accordance with the requirements of subdivision 4.11.g of this rule, until the permittee is released from the financial assurance requirements of subdivisions 3.13.n, 3.13.o, and 3.13.p of this rule.

3.13.b.1.A.4. The financial assurance mechanisms must be legally valid, binding, and enforceable under State and federal law.

3.13.b.2. If a permit applicant elects to offer a certificate or securities as a form of financial assurance or bond, then the cash deposit or market value of such securities or certificates must be equal to or greater than the sum of the bond.

3.13.b.3. All forms of financial assurance or bonds must be conditioned on compliance with the Solid Waste Management Act, any rules promulgated thereunder, orders issued by the Secretary, and the terms and conditions of the permit.

3.13.b.4. All forms of financial assurance or bonds will be reviewed for legality and form in accordance with established Department procedures.

3.13.b.5. All forms of financial assurance or bonds will be placed with the State Treasurer to be held in the name of the State in trust for the purpose for which the deposit is made when the permit is issued.

3.13.b.6. With the Secretary’s permission, the permittee may remove the deposit if it is first replaced with an equivalent or greater deposit.

3.13.b.7. If for any reason a permittee fails to maintain proper financial assurance or bonding, the Secretary will issue a cease and desist order and revoke the permit, and the permittee becomes fully liable for the amount of the bond.

3.13.b.8. The penal sum of any financial assurance must be in an amount at least equal to the sum of the current closure, post-closure care, and/or corrective action cost estimate, as applicable.

3.13.c. Other Allowable Mechanisms of Financial Assurance or Bonding.

3.13.c.1. The Secretary will accept the following types of financial assurance or bonding:

3.13.c.1.A. A surety bond;

3.13.c.1.B. A collateral bond (including cash and securities);

3.13.c.1.B.1. Cash deposits;

3.13.c.1.B.2. Collateral securities;

3.13.c.1.B.3. Certificates, including: 3.13.c.1.B.3.(a) Bonds of the United States or its possessions; 3.13.c.1.B.3.(b) Bonds of the Federal Land Bank; 3.13.c.1.B.3.(c) Bonds of the Homeowners Loan Corporation; 3.13.c.1.B.3.(d) Full Faith and General Obligation bonds of the State of West Virginia or other states and of any West Virginia county, district or municipality or any county, district or municipality of other states;

3.13.c.1.C. Escrow Account. -- An escrow account;

3.13.c.1.D. Collateral bonds; including:

3.13.c.1.D.1. Letters of credit;

3.13.c.1.D.2. Certificates of deposit; and

3.13.c.1.D.3. Negotiable bonds.

3.13.c.1.E. Performance bonding fund participation as established by the Secretary;

3.13.c.1.F. Trust Fund.

3.13.c.1.G. State-Approved Mechanism (Reserved).

3.13.c.1.H. State Assumption of Responsibility (Reserved).

3.13.c.1.I. Use of Multiple Financial Mechanisms.

3.13.d. Special Terms and Conditions for Surety Bonds Guaranteeing Payment or Performance. -- A permittee may demonstrate financial assurance for closure, post-closure care or corrective action by obtaining a payment or performance surety bond that conforms to the requirements of this subdivision.

3.13.d.1. The Secretary will not accept the bond of a surety company that has failed or unduly delayed, as determined by the Secretary, in making payment on a forfeited surety bond.

3.13.d.1.A. The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on Federal bonds in Circular 570 of the U.S. Department of the Treasury.

3.13.d.2. The Secretary will accept only the bond of a surety authorized to do business in this State when the surety bond is signed by an appropriate official of the surety as determined by the Secretary. If the principal place of business of the surety is outside of this State, the surety bond must also be signed by an authorized resident agent of the surety.

3.13.d.3. The bond must provide that full payment will be made under the bond within thirty (30) days of receipt of the Department’s declaration of forfeiture by the surety.

3.13.d.4. The Secretary will not accept surety bonds from a surety company when the total bond liability to the Department for bonds filed by the permittee, the principal, and related parties exceed the surety company’s single risk limit.

3.13.d.4.A. Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the permittee and to the Secretary one hundred twenty (120) days in advance of cancellation.

3.13.d.4.A.1. If the surety cancels the bond, the permittee must obtain alternative financial assurance as specified in this part.

3.13.d.4.A.2. The permittee may cancel the bond only if alternative financial assurance is substituted as specified in this part or if the permittee is no longer required to demonstrate financial responsibility in accordance with paragraphs 3.13.n.2, 3.13.o.2, or 3.13.p.2 of this rule.

3.13.d.5. The bond must provide that the surety and the principal are jointly and severally liable for payment of the bond amount.

3.13.d.6. Surety Bond Forfeiture.

3.13.d.6.A. The Secretary will provide in the bond that the amount must be confessed to judgment and execution upon forfeiture.

3.13.d.6.B. Any surety bond obtained by the permittee must state that the surety will become liable on the bond obligation should the permittee fail to perform as guaranteed by the bond.

3.13.d.7. The Department will retain, during the term of the bond and upon forfeiture of the bond, a property interest in the surety’s guarantee of payment under the bond, which may not be affected by the bankruptcy, insolvency or other financial incapacity of the permittee or principal on the bond.

3.13.d.8. The bond must provide that the surety will give written notice to the principal and the Department within ten (10) days of a notice received or an action filed by or with a regulatory agency having jurisdiction over the surety alleging one of the following:

3.13.d.8.A. The insolvency or bankruptcy of the surety.

3.13.d.8.B. Violations of regulatory requirements applicable to the surety, when as a result of the violations, suspension or revocation of the surety’s license to do business in this State or another state is under consideration by the regulatory agency.

3.13.d.9. Surety Bonds for Corrective Action, Closure, and Post-Closure Care.

3.13.d.9.A. A permittee may demonstrate financial assurance for corrective action, closure, and post-closure care by obtaining a performance bond that conforms to the requirements of this rule.

3.13.d.9.B. A bond for corrective action must be in accordance with part 3.13.b.1.A.3 of this rule.

3.13.d.9.C. A bond for closure or post-closure care must be effective no later than one hundred twenty (120) days after the corrective action remedy has been selected, in accordance with the requirements of subdivision 4.11.g below.

3.13.d.10. Standby Trust Fund.

3.13.d.10.A. As provided in paragraph 3.13.d.10 of this rule, the permittee must establish a standby trust fund.

3.13.d.10.B. The standby trust fund must meet the requirements of subsection 3.13 of this rule, except the requirements for initial payment and subsequent annual payments specified in paragraph 3.13.k.1 of this rule.

3.13.d.10.C. Payments made under the terms of the bond will be deposited by the surety directly into the standby trust fund.

3.13.d.10.D. Payments from the trust fund must be approved by the trustee.

3.13.e. General Terms and Conditions for Collateral Bonds.

3.13.e.1. The applicant may submit a collateral bond in one or more of the following forms:

3.13.e.1.A. Cash deposits.

3.13.e.1.B. Certified checks, cashiers’ checks or treasurer’s checks that are issued, drawn on or certified by a bank or banking institution authorized to do business in this State.

3.13.e.1.C. Automatically renewable and assignable certificates of deposit from banks or banking institutions authorized to do business in this State.

3.13.e.1.D. Automatically renewable, irrevocable standby letters of credit from banks or banking institutions authorized to do business in this State.

3.13.e.1.E. Negotiable bonds of the United States government; the Federal Land Bank; the Homeowners Loan Corporation; or Full Faith and General Obligation bonds of the State of West Virginia or other states and of any West Virginia county, district or municipality or any county, district or municipality of other states.

3.13.e.2. The market value of the collateral deposited must be at least equal to or greater than the sum of the required bond amount.

3.13.e.3. The Secretary will place collateral submitted under this rule with the State Treasurer, who is responsible for its custody and safe keeping until released or collected and deposited in an appropriate fund designated by the Secretary.

3.13.e.4. Collateral must be in the name of the permittee and pledged and assigned to the State free and clear of claims or rights. The pledge or assignment must vest in the State a property interest in the collateral that must remain until released under the terms of this rule, and may not be affected by the bankruptcy, insolvency or other financial incapacity of the permittee.

3.13.e.5. The State will ensure that its ownership rights to collateral deposited are established to make the collateral readily available to the State upon forfeiture. The Secretary may require proof of ownership and other means, such as secondary agreements, as he or she deems necessary to meet the requirements of this rule. If the Secretary determines that collateral deposited does not meet the requirements of this rule, he or she may take action under the law to protect the State’s interest in the collateral.

3.13.f. Collateral Bonds; Escrow.

3.13.f.1. The Secretary may authorize the permittee to establish an escrow account deposited in one or more federally-insured accounts payable on demand only to the Secretary or directly deposited with the Secretary.

3.13.f.2. Escrow funds deposited in federally-insured accounts must not exceed the maximum insured amount under applicable federal insurance programs, such as the Federal Deposit Insurance Corporation (F.D.I.C.) or the Federal Savings and Loan Insurance Corporation (F.S.L.I.C.).

3.13.f.3. Interest paid on an escrow account must be retained in the escrow account and applied to the bond value of the escrow account unless the Secretary has approved that the interest be paid to the permittee. In order to qualify for interest payment, the permittee must request such action in writing during the permit application process.

3.13.g. Collateral Bonds; Letters of Credit. -- A permittee may satisfy the requirements of this subdivision by obtaining an irrevocable standby letter of credit that conforms to the requirements of this rule.

3.13.g.1. Bank letters of credit submitted as collateral for collateral bonds are subject to the following conditions:

3.13.g.1.A. The letter of credit must be a standby or guarantee letter of credit issued by a federally-insured or equivalently protected bank or banking institution authorized to do business in this State. The letter of credit may not be issued without a credit analysis substantially equivalent to a credit analysis applicable to a potential borrower in an ordinary loan situation. A letter of credit so issued must be supported by an applicant’s unqualified obligation to reimburse the issuer for monies paid under the letter of credit.

3.13.g.1.B. The letter of credit must be irrevocable and must be so designated. The letter of credit must be issued for a period of at least one (1) year in an amount at least equal to the current cost estimate for closure, post-closure care or corrective action, whichever is applicable, except as provided in paragraph 3.13.k.1 of this rule.

3.13.g.1.B.1. The letter of credit must provide that the expiration date will be automatically extended for a period of at least one (1) year unless the issuing institution has canceled the letter of credit by sending notice of cancellation by certified mail to the permittee and to the Secretary ninety (90) days in advance of cancellation.

3.13.g.1.B.2. If the letter of credit is canceled by the issuing institution, the permittee must obtain alternative financial assurance or bonding.

3.13.g.1.B.3. The permittee may cancel the letter of credit only if alternative financial assurance or bonding is substituted as specified in this part or if the permittee is released from the requirements of this part in accordance with paragraphs 3.13.n.2, 3.13.o.2, or 3.13.p.2 of this rule.

3.13.g.1.B.4. A letter from the permittee referring to the letter of credit by number, issuing institution, and date and providing the following information: name and address of the facility and the amount of funds assured must be included with the letter of credit in the operating record.

3.13.g.1.C. The Secretary may not accept letters of credit issued for an applicant when the amounts of the letter of credit, aggregated with other loans and credits extended to the applicant, exceeds the issuer’s legal lending limit for that applicant as defined in the United States Banking Code (12 U.S.C. §§21-220).

3.13.g.1.D. Letters of credit must name the West Virginia Department of Environmental Protection as beneficiary and must be payable to the Department upon demand, in part or in full, upon presentation of the Department’s drafts at sight. The Department’s right to draw upon the letter of credit does not require documentary or other proof by the Department that the applicant has violated the conditions of the bond, the permit or another requirement.

3.13.g.1.E. The Secretary will not accept letters of credit from a bank that has failed or delayed in making payment on a letter of credit previously submitted as collateral to the Department.

3.13.g.2. The Secretary will not accept letters of credit from a bank for any person, for all permits held by that person, in excess of three (3) times the company’s maximum single obligation as provided by State law.

3.13.g.3. The Secretary will provide in the indemnity agreement that the amount will be confessed to judgment upon forfeiture.

3.13.g.4. The letter of credit must provide that:

3.13.g.4.A. The bank will give prompt notice to the permittee and the Secretary of any notice received or action filed alleging the insolvency or bankruptcy of the bank or alleging any violations of regulatory requirements that could result in suspension or revocation of the bank’s charter or license to do business.

3.13.g.4.B. In the event the bank becomes unable to fulfill its obligations under the letter of credit for any reason, notice must be given immediately to the permittee and the Secretary.

3.13.g.4.C. Upon the incapacity of a bank by reason of bankruptcy, insolvency, suspension or revocation of its charter or license, the permittee must be deemed to be without bond coverage. The Secretary must issue an order against any operator who is without bond coverage. The notice will specify the period within which bond coverage must be replaced. If the permittee cannot replace the bond within the specified period of time, then the Secretary must immediately revoke the permit. The permittee will be fully liable for the amount of the bond coverage.

3.13.g.4.D. The estimated bond value of all collateral posted as bond assurance will be subject to a margin-bond-value-to-market-value ratio as determined by the Secretary. This margin will reflect legal and liquidation fees, as well as value depreciation, marketability, and fluctuations that might affect the net cash available to the Secretary in performing closure or other remedial measures. The bond value of collateral may be evaluated at any time, but must be evaluated as part of permit renewal. In no case may the bond value exceed the market value.

3.13.g.5. The issuing bank must waive the rights of setoff or liens that it has or might have against the letter of credit.

3.13.g.6. If the Secretary collects an amount under the letter of credit due to failure of the permittee to replace the letter of credit after demand by the Secretary, the Department will hold the proceeds as cash collateral.

3.13.g.7. After the letter of credit is approved by the Secretary, the permittee must retain a copy of the letter of credit in the facility operating record.

3.13.g.8. In the case of closure and post-closure care, the letter of credit must be effective before the initial receipt of waste or corrective action, no later than one hundred twenty (120) days after the corrective action remedy has been selected, in accordance with the requirements of subdivision 4.11.f of this rule.

3.13.g.9. The issuing institution must be an entity that has the authority to issue letters of credit and whose letter-of-credit operations are regulated and examined by a federal or state agency.

3.13.h. Collateral Bonds; Certificates of Deposit.

3.13.h.1. Certificates of deposit submitted as collateral for collateral bonds are subject to the following conditions:

3.13.h.1.A. The certificates of deposit must be made payable to the Department or the permittee and the Department and must be assigned to the Department by the permittee, in writing, as required by the Secretary and on forms provided by the Secretary. The assignment must be recorded upon the books of the bank issuing the certificate.

3.13.h.1.B. The certificate of deposit must be issued by a federally-insured or equivalently protected bank or banking institution that is authorized to do business in this State.

3.13.h.1.C. The Secretary will not accept certificates of deposit from a bank or banking institution when the accumulated total of certificates of deposit issued by the bank or banking institution for the operator is in excess of one hundred thousand dollars ($100,000) or the maximum insurable amount as determined by the F.D.I.C. or the F.S.L.I.C., if the banking institution is insured by the F.D.I.C. or F.S.L.I.C. If it is insured by an equivalent method administered by the State, similar limits apply.

3.13.h.1.D. The certificate of deposit must state that the bank issuing it waives the rights or setoff or liens that it has or might have against the certificate.

3.13.h.1.E. The certificate of deposit must be automatically renewable and fully assignable to the state. Certificates of deposit must state on the face that they are automatically renewable.

3.13.h.1.F. The permittee must submit certificates of deposit in amounts that will allow the Department to liquidate the certificates prior to maturity, upon forfeiture, for the full amount of the bond determined in accordance with and required by this rule, without penalty to the Department.

3.13.h.1.G. The Secretary will not accept certificates of deposit from banks that have failed or unduly delayed in making payment on certificates of deposit that have previously been submitted as collateral to the Department.

3.13.h.1.H. The permittee is not entitled to interest accruing after forfeiture is declared by the Department, unless and until the forfeiture declaration is ruled invalid by a court having jurisdiction over the Department and the ruling is final, including resolution of appeals.

3.13.i. Collateral Bonds; Negotiable Bonds.

3.13.i.1. Negotiable bonds submitted and pledged as collateral for collateral bonds are subject to the following conditions:

3.13.i.1.A. The Secretary may determine the current market value of governmental securities for the purpose of establishing the value of the securities for bond deposit.

3.13.i.1.B. The current market value must be at least equal to the amount of the required bond.

3.13.i.1.C. The Department may periodically revalue the securities and may require additional amounts if the current market value is insufficient to satisfy the bond amount requirements for the facility.

3.13.i.1.D. The permittee may request and receive the interest accruing on governmental securities with the Department as the same becomes due and payable. No interest will be paid for post-forfeiture interest accruing during appeals and after resolution of the appeals when the forfeiture is adjudicated, decided or settled in favor of the state.

3.13.j. Use of Multiple Mechanisms.

3.13.j.1. The Secretary may accept financial assurance or bond that is comprised of more than one financial mechanism per facility, as listed in this rule, except that it is the combination of mechanisms, rather than the single mechanism, that must provide financial assurance for an amount at least equal to the current cost estimate for closure, post-closure care or corrective action, whichever is applicable.

3.13.j.1.A. The instruments chosen must be construed as part of the entire bond for the facility.

3.13.j.1.B. The Secretary may refuse to accept the bond if he or she determines that the financial guarantee of the bond is unacceptable or it, for any other reason, does not meet the purposes of the Act, this rule or orders of the Secretary.

3.13.j.1.C. The financial test and a guarantee provided by a corporate parent, sibling, or grandparent may not be combined if the financial statements of the two firms are consolidated.

3.13.k. Other Forms of Bonding. -- Other forms of bonding including, but not limited to:

3.13.k.1. Trust Fund.

3.13.k.1.A. A permittee may satisfy the requirements of this paragraph by establishing a trust fund that conforms to the requirements below:

3.13.k.1.A.1. The trustee must be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency.

3.13.k.1.A.2. A copy of the trust agreement must be placed in the facility’s operating record.

3.13.k.1.B. Payment into the trust fund must be made annually by the permittee over the term of the initial permit or over the remaining life of the SWLF, whichever is shorter, in the case of a trust fund for closure or post-closure care, or over one-half of the estimated length of the corrective action program in the case of corrective action for known releases. This period is referred to as the pay-in period.

3.13.k.1.C. For a trust fund used to demonstrate financial assurance for closure and post-closure care, the first payment into the trust fund must be at least equal to the current cost estimate for closure and post-closure care, except as provided in paragraph 3.13.k.3 of this rule, divided by the number of years in the corrective action pay-in period as defined in subparagraph 3.13.p.1.C of this rule.

3.13.k.1.D. The amount of subsequent payments must be determined by the following formula:

Next Payment = CE-CV Y where CE is the current cost estimate for closure or post-closure care (updated for inflation or other changes), CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.

3.13.k.1.E. For a trust fund used to demonstrate financial assurance for corrective action, the first payment into the trust fund must be at least equal to one-half of the current cost estimate for corrective action, except as provided in paragraph 3.13.k.3 of this rule, divided by the number of years in the corrective action pay-in period as defined in subparagraph 3.13.p.1.C of this rule.

3.13.k.1.E.1. The amount of subsequent payments must be determined by the following formula:

Next Payment = RB-CV Y where RB is the most recent estimate of the required trust fund balance for corrective action (i.e., the total costs that will be incurred during the second half of the corrective action period), CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.

3.13.k.1.F. In the case of closure and post-closure care, the initial payment into the trust fund must be made before the initial receipt of waste and, in the case of corrective action, no later than one hundred twenty (120) days after the corrective action remedy has been selected in accordance with the requirements of subdivision 4.11.g of this rule.

3.13.k.1.G. If the permittee establishes a trust fund after having used one or more alternative mechanisms specified in this paragraph, the initial payment into the trust fund must be at least the amount that the fund would contain if the trust fund were established initially and annual payments made according to the specifications of paragraph 3.13.k.1 of this rule.

3.13.k.1.H. The permittee or other person authorized to conduct closure, post-closure care or corrective action activities may request reimbursement from the trustee for these expenditures.

3.13.k.1.H.1. Requests for reimbursement will be granted by the trustee only if sufficient funds are remaining in the trust fund to cover the remaining costs of closure, post-closure care or corrective action, and if justification and documentation of the cost is placed in the operating record.

3.13.k.1.H.2. The permittee must notify the Secretary that the documentation of the justification for reimbursement has been placed in the operating record and that reimbursement has been received.

3.13.k.1.I. The trust fund may be terminated by the permittee only if the permittee substitutes alternative financial assurance as specified in this subparagraph or if he or she is no longer required to demonstrate financial responsibility in accordance with the requirements of paragraphs 3.13.n.2, 3.13.o.2 or 3.13.p.2 of this rule.

3.13.k.2. State-Approved Mechanism. (Reserved)

3.13.k.3. State Assumption of Responsibility. (Reserved)

3.13.l. Replacement of Existing Bond.

3.13.l.1. The Secretary may allow a permittee to replace an existing surety or collateral bond with another surety or collateral bond, if the liability that has accrued against the bond, the permittee, and the facility is transferred to the replacement bond. The replacement bond must include an endorsement by the permittee acknowledging the retroactivity of the liability to the date of issue of the original solid waste permit or a prior date determined by the Secretary. The bond amount for this replacement bond will be determined under this rule, but may not be less than the amount on deposit with the Department.

3.13.l.2. The Department will not release existing bonds until the permittee has submitted and the Secretary has approved acceptable replacement bonds that are in full force and effect. A replacement of bonds under subdivision 3.13.l of this rule does not constitute a release of bond under this rule.

3.13.m. Bond Amounts.

3.13.m.1. In accordance with the provisions of W. Va. Code §22-15-12, all permits must be bonded for at least ten thousand dollars ($10,000) or a sufficient amount to satisfy all of the requirements of this rule, whichever is the higher amount.

3.13.n. Financial Assurance for Closure.

3.13.n.1. The permittee must have a detailed written estimate, in current dollars, of the cost of hiring a third party to close the largest area of all SWLFs ever requiring a final cover, as required under section 6 of this rule, at any time during the active life in accordance with the closure plan.

3.13.n.1.A. The permittee must notify the Secretary in writing of that estimate and maintain a copy in the operating record.

3.13.n.1.A.1. The cost estimate must equal the cost of closing the largest area of all SWLFs ever requiring a final cover at any time during the active life when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan (see part 6.1.e.3.A.2 of this rule).

3.13.n.1.A.2. During the active life of the SWLF, the permittee must annually adjust the closure cost estimate for inflation.

3.13.n.1.A.3. The permittee must increase the closure cost estimate and the amount of financial assurance provided under subparagraph 3.13.n.2.A of this rule, if changes to the closure plan or SWLF conditions increase the maximum cost of closure at any time during the remaining active life.

3.13.n.1.A.4. The permittee may reduce the closure cost estimate and the amount of financial assurance provided under subparagraph 3.13.n.2.A of this rule, if the cost estimate exceeds the maximum cost of closure at any time during the remaining life of the SWLF. 3.13.n.1.A.4.(a) The permittee must notify the Secretary that the justification for the reduction of the closure cost estimate and the amount of financial assurance has been placed in the operating record.

3.13.n.2. The permittee of each SWLF’s operating record must establish financial assurance for closure of the SWLF in compliance with subsection 3.13 of this rule.

3.13.n.2.A. The permittee must provide continuous coverage for closure until released from financial assurance requirements by demonstrating compliance with section 6 of this rule.

3.13.o. Financial Assurance for Post-Closure Care.

3.13.o.1. The permittee must have, at all times, a detailed written estimate, in current dollars, of the cost of hiring a third party to conduct post-closure care for the SWLF in compliance with the post-closure plan developed under subsection 6.3 of this rule.

3.13.o.1.A. The post-closure cost estimate used to demonstrate financial assurance in paragraph 3.13.o.2 and subparagraph 3.13.o.2.A below must account for the total costs of conducting post-closure care, including annual and periodic costs as described in the post-closure plan over the entire post-closure care period. The permittee must notify the Secretary that a copy of the estimate has been placed in the operating record.

3.13.o.1.A.1. The cost estimate for post-closure care must be based on the most expensive costs of post-closure care during the post-closure care period.

3.13.o.1.A.2. During the active life of the SWLF and during the post-closure care period, the permittee must annually adjust the post-closure cost estimate for inflation.

3.13.o.1.A.3. The permittee must increase the post-closure care cost estimate and the amount of financial assurance provided under paragraph 3.13.o.2 and subparagraph 3.13.o.2.A of this rule, if changes in the post-closure plan or SWLF conditions increase the maximum costs of post-closure care.

3.13.o.1.A.4. The permittee may reduce the post-closure cost estimate and the amount of financial assurance provided under paragraph 3.13.o.2 of this rule, if the cost estimate exceeds the maximum costs of post-closure care remaining over the post-closure care period. 3.13.o.1.A.4.(a) The permittee must notify the Secretary and receive written approval of the Secretary of the justification for the reduction of the post-closure cost estimate and the amount of financial assurance prior to placing these documents in the operating record.

3.13.o.2. The permittee of each SWLF must establish, in a manner in accordance with subdivision 3.13.k of this rule, financial assurance for the costs of post-closure care as required under subsection 6.3 of this rule.

3.13.o.2.A. The permittee must provide continuous coverage for post-closure care until released from financial assurance requirements for post-closure care by demonstrating compliance with paragraph 6.3.g.1 of this rule.

3.13.p. Financial Assurance for Corrective Action.

3.13.p.1. A permittee of a SWLF required to undertake a corrective action program under subdivision 4.11.g of this rule must have a detailed written estimate, in current dollars, of the cost of hiring a third party to perform the corrective action in accordance with the program required under subdivision 4.11.g of this rule.

3.13.p.1.A. The corrective action cost estimate must account for the total costs of corrective action activities as described in the corrective action plan for the entire corrective action period.

3.13.p.1.A.1. The permittee must notify the Secretary that the estimate has been placed in the operating record.

3.13.p.1.B. The permittee must annually adjust the estimate for inflation until the corrective action program is completed in accordance with paragraphs 4.11.g.6 and 4.11.g.7 of this rule.

3.13.p.1.C. The permittee must increase the corrective action cost estimate and the amount of financial assurance provided under paragraph 3.13.p.2 of this rule, if changes in the corrective action program or SWLF conditions increase the maximum costs of corrective action.

3.13.p.1.D. The permittee may reduce the amount of the corrective action cost estimate and the amount of financial assurance provided under paragraph 3.13.p.2 of this rule, if the cost estimate exceeds the maximum remaining costs of corrective action.

3.13.p.1.D.1. The permittee must notify the Secretary that the justification for the reduction of the corrective action cost estimate and the amount of financial assurance has been placed in the operating record.

3.13.p.2. The permittee of each SWLF required to undertake a corrective action program under subdivision 4.11.g of this rule must establish, in a manner in accordance with subsection 3.13 of this rule, financial assurance for the most recent corrective action program.

3.13.p.2.A. The permittee must provide continuous coverage for corrective action until released from financial assurance requirements for corrective action by demonstrating compliance with paragraphs 4.11.g.6 and 4.11.g.7 of this rule.

3.14. Background Investigation Disclosure Statement.

3.14.a. Applicability. -- Every applicant for a solid waste facility permit must file a background investigation disclosure statement with the Secretary at the time the initial application is filed, unless exempt from such disclosure under the provisions of subdivision 3.14.d of this rule.

3.14.b. Copies and Fees. -- Background investigation disclosure statements must be filed by submitting a notarized original and one (1) certified copy of all papers and other applicable documents to the Secretary, accompanied by a nonrefundable investigation fee in accordance with the schedule of fees in Appendix IV to this rule.

3.14.b.1. Additional certified copies of background investigation disclosure statements, or any portions thereof, must be supplied upon the request of the Secretary.

3.14.b.2. Within sixty (60) days of receipt of a background investigation disclosure statement from a permit applicant, the Secretary must advise the permit applicant if the background investigation disclosure statement is incomplete on its face, and must specify what additional information is required.

3.14.b.3. Additional Costs. - Should the cost of the background investigation be more than the nonrefundable investigation fee paid by the permittee described in subdivision 3.14.b, the permittee will reimburse the Department for its costs beyond those paid by the permittee’s investigation fee, prior to the issuance of a solid waste facility permit.

3.14.c. Fingerprinting Requirements. -- Any applicant required to be listed in the background investigation disclosure statement must be fingerprinted for identification and investigation purposes in accordance with procedures established by the Secretary.

3.14.c.1. Completed fingerprint cards must be supplied by the applicant with the background investigation disclosure statement, when submitted. The applicant must arrange for the taking of fingerprints.

3.14.c.2. Fingerprints must be taken and verified by an employee of a police agency authorized to take fingerprints.

Note: Most local police departments and the State Police will provide this service. Some charge a fee.

3.14.d. Exemptions. -- The following persons are exempted from the requirement to submit a background investigation disclosure statement:

3.14.d.1. Any person who is an employee of any department, division, agency, commission or authority of the federal, state, county or municipal government.

3.14.d.2. Any person whose application or permit is solely for a Class E or Class F facility.

3.14.e. Contents of Background Investigation Disclosure Statement. -- The background investigation disclosure statement must be filed on forms supplied by the Secretary and must be completed in accordance with W. Va. Code §22-15-5 and include the following:

3.14.e.1. The applicant or any officer, director or manager, any shareholder owning five percent (5%) or more of its capital stock, beneficial or otherwise, including ultimate parent corporations, and any other person conducting or managing the affairs of the applicant or the proposed permitted premises;

3.14.e.2. The disclosure statement must contain the full name, business address, home address, date of birth, social security number, a description of the applicant’s experience and credentials, including any past or present permits for the collection, transportation, treatment, storage or disposal of solid waste or hazardous waste, that are or have been issued to or possessed by the applicant and any person or persons required to be listed by paragraph 3.14.e.1 of this rule;

3.14.e.3. A listing of any agencies outside of West Virginia that had or has regulatory responsibility over the applicant in connection with its collection, transportation, treatment, storage or disposal of solid waste or hazardous waste;

3.14.e.4. An addendum form must be completed and filed with each disclosure statement for each relation (spouse, sibling, parent or child) engaged in the collection, transportation, treatment, storage or disposal of solid or hazardous waste; and

3.14.e.5. Any other information the Secretary may require that relates to the competency, reliability or good character of the applicant, or as required by W. Va. Code §22-15-5.

3.14.f. Signature.

3.14.f.1. Background investigation disclosure statements must be signed by each of the following:

3.14.f.1.A. If of a corporation, by its president, its chairman of the board, any other chief executive officer thereof, its secretary and its treasurer.

3.14.f.1.B. If of a partnership, by each of its partners; if of a limited partnership, only by each of its general partners.

3.14.f.1.C. If of any other business concern, by its chief executive officer, its secretary, and its treasurer.

3.14.f.1.D. If of a natural person, by the person him- or herself.

3.14.f.2. All signatures must be signed in ink and dated on original papers. The name and address of the signatory must be typed, stamped or legibly printed beneath each signature. All signatures must be notarized.

3.14.g. Change of Information on Background Investigation Disclosure Statement. -- Where an applicant has an application pending before the Secretary and any of the information required to be included in a background investigation disclosure statement changes, or any additional information must be added after the filing of the statement, the applicant must provide that change of information to the Secretary in writing within thirty (30) days of the change or addition.

3.14.h. Reporting Requirements. -- Permittees must report to the Secretary within thirty (30) days any changes or additions in the following information required to be included in the background investigation disclosure statement:

3.14.h.1. The name of the permittee or applicant;

3.14.h.2. The names or identities of any applicant or any officer, director or manager thereof, shareholder owning five percent (5%) or more of its capital stock, beneficial or otherwise, including ultimate parent corporations, and any other person conducting or managing the affairs of the applicant or the proposed permitted premises;

3.14.h.3. The name and business address of any company in which the permittee acquires an equity interest that collects, transports, treats, stores or disposes of solid waste or hazardous waste;

3.14.h.4. A listing and explanation of any notices of violation, orders or license revocations issued by any state or federal authority:

3.14.h.4.A. Any judgment of liability or conviction rendered against the permittee or against any key employee, officer, director or manager thereof, shareholder owning five percent (5%) or more of its capital stock, beneficial or otherwise, or other person conducting or managing the affairs of the applicant or the proposed permitted premises.

3.14.h.5. Changes of information required to be reported pursuant to paragraph 3.14.h.6 of this rule may be filed by letter or on copies of applicable portions of background investigation disclosure statement forms. The person filing the report of change must swear to or affirm the truth of the information contained therein.

3.14.h.6. Filing of Changes of Information. -- Changes of information must be filed by submitting an original and one certified copy to the Secretary.

3.14.i. Annual Updates. -- The background investigation disclosure statement annual updates must be filed yearly on the anniversary of the permit issuance. It must be filed on forms supplied by the Secretary and must contain all changes including, but not limited to, deletions in officers, directors, managers, owners, companies, etc. that have occurred since the submittal of the previous application. If there have been any additions to the officers, directors, managers, shareholders owning five percent (5%) or more of capital stock, beneficial or otherwise; general or limited partners; any person performing a function similar to the Secretary; United States parent corporation, including the ultimate parent corporation; agents; or associates of the permittee, a background investigation disclosure statement application must be filed with the Department including proper filing fees and fingerprint cards.

3.14.j. Notarization of Annual Updates. -- Annual updates must be notarized.

3.14.k. Requirement to File New Background Investigation Disclosure Statement. -- Where an applicant or permittee has submitted multiple amendments to its background investigation disclosure statement, or the information concerning an applicant or permittee has undergone substantial change, or if the background investigation disclosure statement currently on file with the Secretary is more than five (5) years old, the Secretary may require the applicant or permittee to file a new background investigation disclosure statement.

3.14.l. Additional Information; Duty to Cooperate. -- All applicants and permittees have the continuing duty to provide any assistance or information requested by the Secretary and to cooperate in any inquiry, investigation, or hearing conducted by the Secretary. If, upon issuance of formal request to answer any inquiry or produce information, evidence or testimony, an applicant or permittee refuses to comply, the permit of that person may be denied or revoked by the Secretary.

3.14.m. Physical Evidence. -- Upon request, the applicant must supply physical evidence, including, but not limited to, photographs or handwriting exemplars of any person listed on the background investigation disclosure statement or any amendment thereof.

3.14.n. Disqualification Criterion. -- No permit may be approved by the Secretary unless the applicant demonstrates compliance with the provisions of W. Va. Code §22-15-5.

3.14.o. Cause for Permit Revocation. -- In addition to any other cause set forth elsewhere in this rule, any permit may be revoked for any violation of W. Va. Code §22-15-5.

3.14.p. Severance of Disqualifying Individuals. -- Notwithstanding the disqualification of any applicant or permittee pursuant to these rules, the Secretary may issue or renew a permit if the applicant or permittee severs the interest of, or affiliation with, the person who would otherwise cause that disqualification.

3.14.p.1. Where the disqualifying individual is the owner of an equity interest or interest in the debt liability of the permittee or applicant, that person must completely divest himself of that interest. Where immediate sale of the interest would work an economic hardship on the individual, the permittee or applicant, at the Secretary’s discretion, may allow for divestiture over a period of time not to exceed one (1) year.

3.14.p.2. Arrangements such as blind trusts will be acceptable only as part of divestiture arrangement under which the trustee is obliged to sell the disqualifying individual’s interest within a period not to exceed two (2) years.

3.14.p.3. Before the Secretary will issue or renew a permit to an applicant or permittee that has severed a disqualifying individual, the applicant or permittee must submit to the Secretary an affidavit, sworn to by the chief executive officer, attesting to the severance of the disqualifying individual and describing the terms, circumstances, and conditions of that severance. Any instruments pertaining to that severance (such as a trust agreement) must be submitted with the affidavit.

3.14.q. Confidential Information. -- Any information received pursuant to subsection 3.14 of this rule must be kept confidential by the Department to the extent allowable by State law, including W. Va. Code §29B-1-1 et seq.

3.14.r. Convicted Persons Generally. -- No permittee may knowingly hire as an officer or director any person who has been convicted of any of the offenses enumerated in W. Va. Code §22-15-5(c) without first submitting a background investigation disclosure statement to and obtaining the approval of the Secretary. No permittee shall knowingly allow any person who has been convicted of any of the crimes enumerated in W. Va. Code §22-15-5(c) to acquire an equity interest or debt liability interest without first submitting a background investigation disclosure statement to and obtaining the approval of the Secretary.

3.14.r.1. In connection with any such request, the permittee must file with the Secretary an amended background investigation disclosure statement containing the necessary information about the person, including any evidence the permittee wishes to bring forth demonstrating the person’s rehabilitation.

3.14.r.2. The Secretary may consider whether the person has affirmatively demonstrated rehabilitation and may consider the factors set forth in determining whether to grant permission to the permittee to employ the person or allow him or her to acquire an interest in the permit.

3.14.r.3. Any permittee that violates the provisions of subsection 3.14 of this rule may be subject to revocation of its permit, notwithstanding the rehabilitation of the individual in question.

3.14.r.4. Mitigation and Restitution. -- In the case of persons convicted of violating the criminal provisions of any federal or state environmental statute, regulation or rule, or persons convicted of any crime that involved the violation of such statutes regulations or rules, the Secretary will not consider such person rehabilitated unless that person has made all reasonable efforts to clean up or mitigate any environmental damage caused by the activities for which he or she was convicted and to make restitution to any victims injured thereby.

3.15. Water Pollution Control Requirements. -- For the purposes of leachate collection and treatment for wastewater and associated facility discharges, the wastewater facility and all appurtenances thereto must meet the permit requirements for such treatment as set out in W. Va. Code §§22-1-1 et seq., 22-11-1 et seq., 22-12-1 et seq., and 22-15-1 et seq. and any rules promulgated thereunder. For the purposes of this subsection only, the requirements of 47CSR2 are hereby incorporated by reference. For landfills, a single permit must be issued pursuant to subdivision 3.5.b of this rule.

3.16. Specific Application and Permitting Requirements.

3.16.a. Requirements for Landfills. -- The applicant must submit all information required by this rule, as applicable, in order for an application to constitute an administratively complete application.

3.16.b. Requirements for Incinerators.

3.16.b.1. General Requirements. -- The applicant must submit the following information to the Secretary in order to obtain a permit for a resource recovery, industrial or municipal solid waste incinerator facility: Provided, That the installation, establishment or construction of a new municipal or commercial solid waste facility utilizing incineration technology for the purpose of solid waste incineration is prohibited, per W. Va. Code §22-15-19, with the single exception of pilot projects.

3.16.b.1.A. All information required under subdivisions 3.7.a through 3.7.l, paragraph 3.7.m.1 and subdivisions 3.7.o, 3.7.p, and 3.8.i, subsection 3.9, paragraphs 3.10.a.8 and 3.10.a.9, and subsections 3.13, 3.14, and 3.15 of this rule;

3.16.b.1.B. Detailed drawings of waste storage areas and cleanup areas showing drainage schemes;

3.16.b.1.C. Recordkeeping procedures;

3.16.b.1.D. A waste management plan describing the handling and storage of the incoming waste and the disposition of the ash and other wastes, alternative disposal options, screening procedures, and handling options for screened waste, and cleanup procedures;

3.16.b.1.E. Dust control procedures;

3.16.b.1.F. A waste characterization plan;

3.16.b.1.G. A contingency plan indicating firefighting equipment, communication procedures with community agencies, and arrangements for emergency assistance; and

3.16.b.1.H. A start-up schedule.

3.16.b.2. Required Permits. At a minimum, two (2) permits will be required for incinerator facilities:

3.16.b.2.A. A permit from the West Virginia Department of Environmental Protection, Division of Air Quality; and

3.16.b.2.B. A solid waste permit for solid waste storage areas and support facilities from the West Virginia Department of Environmental Protection, Division of Water and Waste Management.

3.16.b.3. Exemptions.

3.16.b.3.A. Except for those facilities handling special wastes as provided in subsection 4.13 of this rule, incinerators having a design capacity of five hundred (500) pounds per hour or less are exempt from the permitting requirements of subdivision 3.16.b of this rule. However, such an incinerator must be designed and operated to meet the performance standards of subsection 5.1 of this rule and all applicable rules of the West Virginia Division of Air Quality.

3.16.b.3.B. Incinerators burning only clean wood waste are exempt from all permitting requirements of subdivision 3.16.b of this rule. However, such incinerators must be designed and operated to meet the performance standards of subsection 5.1 of this rule and with all appropriate regulations or rules of the West Virginia Division of Air Quality.

3.16.c. Requirements for Transfer Stations.

3.16.c.1. General Requirements. -- The applicant must submit the following information to the Secretary in order to obtain a permit for a transfer station:

3.16.c.1.A. All information required under subdivisions 3.7.a through 3.7.l, 3.7.o, 3.7.p, 3.8.a, and 3.8.i, and subsections 3.9, 3.13, 3.14, and 3.15 of this rule;

3.16.c.1.B. A description of the solid waste storage or loading areas;

3.16.c.1.C. A description of the areas of land for which a bond will be posted;

3.16.c.1.D. The location and use of buildings and related facilities that will be used in the operation; and

3.16.c.1.E. The location of scales and weigh stations to be used in the operation.

3.16.c.2. Operations Plan. -- An application to conduct transfer station activities must include an operations plan that includes the following:

3.16.c.2.A. A narrative description of the general operating plan for the proposed facility including:

3.16.c.2.A.1. The source, composition, and weight or volume of solid waste that is proposed to be received at the facility;

3.16.c.2.A.2. The proposed operating and receiving hours for the facility;

3.16.c.2.A.3. The process to be used at the facility;

3.16.c.2.A.4. The daily operational methodology of the proposed process;

3.16.c.2.A.5. The loading rate;

3.16.c.2.A.6. The proposed capacity of the facility; and

3.16.c.2.A.7. The expected life of the facility.

3.16.c.2.B. A plan for an alternative waste handling or disposal system during periods when the proposed facility is not in operation, including procedures to be followed in case of equipment breakdown (e.g., the use of standby equipment, extension of operating hours, and contractual agreements for diversion of municipal waste to other facilities); and

3.16.c.2.C. A plan for training equipment operators and other personnel in the design and operation of the facility.

3.16.c.3. Plan for Access Roads. -- An application to conduct transfer station activities must contain designs, cross-sections, and specifications for access roads, including load limits, in accordance with subdivision 4.5.c of this rule.

3.16.c.4. Stormwater, Soil Erosion, and Sedimentation Control Plan. -- An application to conduct transfer station activities must include a plan to manage surface storm water soil erosion and sedimentation control during the various phases of construction and operation on the permit area. Calculations indicating water quantities must be based on the twenty-five (25)-year, twenty-four (24)-hour storm event. The plan must include fully dimensioned diversion ditches and indicate length, gradient, and cross-section for configuration by reach and capacities for ditch volume by reach. Calculations that are necessary to support design and siting must be included in the plan.

3.16.c.5. Groundwater Monitoring Plan. -- If required by the Secretary, the applicant must submit a groundwater monitoring plan to detect contamination, degradation or pollution of groundwater from the facility.

3.16.c.6. Soil Monitoring Plan. -- If required by the Secretary, the applicant must submit a soil monitoring plan capable of detecting soil contamination from the facility.

3.16.c.7. Nuisance Control Plan. -- An application to conduct transfer station activities must contain a plan to prevent hazards or nuisances from vectors, odors, noise, dust, and other nuisances not otherwise provided for in the permit application. The plan must provide for the routine assessment of vector infestation and must also provide for counter measures. The plan may include a control program involving a contractual arrangement for services with an exterminator.

3.16.c.8. Litter Control Plan. -- An application to conduct transfer station activities must contain a plan to control litter.

3.16.c.9. Contingency Plan. -- An application to conduct transfer station activities must contain a contingency plan relating to emergency procedures, hazard prevention, emergency equipment, and the implementation of the contingency plan.

3.16.d. Requirements for Recycling Facilities.

3.16.d.1. Applicability. -- Recycling facilities whose only function is to accept at no charge, buy or transfer source separated recyclable material for reuse, resale or transfer for further processing are exempt from this rule. All other recycling facilities must provide notice and obtain a permit in accordance with the provisions of subdivision 3.16.d of this rule. 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 W. Va. Code §22-15-2, “Recycling facility.”

3.16.d.1.A. Recycling facilities existing on May 1, 1990 are considered to have a valid permit from the Department if the requirements of paragraph 3.16.d.2 of this rule are met.

3.16.d.1.B. Recycling facilities that are developed after May 1, 1990 are considered to have a valid permit from the Department upon fulfilling the requirements of paragraphs 3.16.d.2 and 3.16.d.3 of this rule.

3.16.d.2. Notification of Activity.

3.16.d.2.A. Existing Qualifying Recycling Facilities. -- Any existing recycling facility that qualifies for a permit under paragraph 3.16.d.1 of this rule must notify the Secretary of its existence.

3.16.d.2.B. New Qualifying Recycling Facilities. -- Any new recycling facility that qualifies for a permit under paragraph 3.16.d.1 of this rule must notify the Secretary of its existence prior to installation, establishment, construction, modification or operation of the recycling facility.

3.16.d.2.C. Form of Notification. -- Notification required by paragraph 3.16.d.2 of this rule must be made to the Secretary on forms and in the manner prescribed by the Secretary.

3.16.d.3. Recycling Facility Requirements. -- Except as provided under paragraph 3.16.d.4 of this rule, all persons owning or operating a recycling facility must:

3.16.d.3.A. Comply with the applicable prohibitions and location standards listed under subsections 3.1 and 3.2 of this rule;

3.16.d.3.B. Provide rapidly growing trees, shrubbery, fencing, berms or other appropriate means at the facility to provide a wind break, screening from the surrounding area, and to function as a barrier to discourage unauthorized access;

3.16.d.3.C. Post a sign in conformance with subparagraph 4.6.a.1.M of this rule;

3.16.d.3.D. Construct and maintain adequate shelter and sanitary facilities for all personnel;

3.16.d.3.E. Construct and maintain adequate drainage systems to prevent freestanding storm water;

3.16.d.3.F. Ensure that all leachate, waste water, and storm water is collected, treated, and/or discharged in a manner that does not violate the water quality standards established under W. Va. Code §22-11-1 et seq. or the regulations and rules promulgated thereunder;

3.16.d.3.G. All operations must be conducted within enclosed structure(s);

3.16.d.3.H. Receiving or storing of any hazardous waste material at a recycling facility is strictly prohibited;

3.16.d.3.I. Storage of recyclable materials outside of the enclosed structure must only be materials in bundles, bins or containers, or materials prepared for transportation;

3.16.d.3.J. All materials not used in the recycling process must be properly disposed of;

3.16.d.3.K. No material may be stored for more than sixty (60) days without written approval by the Secretary;

3.16.d.3.L. All materials received by the facility must be accurately weighed or otherwise measured in accordance with the provisions of the West Virginia Tax Department’s Solid Waste Assessment Fee rule, 110CSR6A subsections 4.2 and 4.3.

3.16.d.4. Other Recycling Exemptions. -- The following recycling activities are not required to obtain a solid waste permit pursuant to this rule:

3.16.d.4.A. Nonprofit organizations accepting source-separated materials; and

3.16.d.4.B. Returnable container redemption centers operated by a dealer or distributor.

3.16.d.5. Resource Recovery Permitting Requirements. (Reserved)

3.16.d.6. Other Recycling Requirements. (Reserved)

3.16.e. Permitting Requirements for Class D-1 and Class D Landfills.

3.16.e.1. General Requirements. -- All Class D-1 and Class D landfills must apply for and receive approval from the Secretary prior to operation unless otherwise specified by subdivision 3.16.e. Notwithstanding the provisions of subdivision 3.16.e, a Class D-1 solid waste facility is required to meet all applicable landfill requirements specified by this rule.

3.16.e.2. Exemptions.

3.16.e.2.A. Land Clearing Exemption. The disposal of trees, stumps, woodchips, and yard waste generated from land clearing, when generation and disposal occur on the same property and the disposal area is less than one-half acre, is exempt from the permitting requirements of this rule.

3.16.e.2.B. One-half Acre Exemption for Landowners. A landowner using construction/demolition waste material that, for the purpose of this paragraph, includes Category I Nonfriable Roofing, to improve the grade of the land if the area of that land does not exceed one-half acre, is exempt from the permitting requirements of this rule when generation and disposal occur on the same property; Provided, that the landowner does not fill natural wetlands, adheres to best management practices for construction, and maintains cover over the material. This exemption does not apply to multiple one-half acre sites on the same parcel of land.

3.16.e.2.C. One-Half Acre Exemption for Division of Highways Projects. The Division of Highways or its contractors working on highway construction that dispose of construction/demolition waste material that, for the purpose of this paragraph, includes Category I Nonfriable Roofing, are exempt from the permitting requirements of this rule; Provided, that the disposal area does not exceed one-half acre, does not fill natural wetlands, adheres to best management practices for construction, maintains cover over the material, and the parties are obligated by contract to comply with all disposal provisions specified by the West Virginia Division of Highways Standard Specifications, Roads and Bridges, including supplemental specifications published by the Division of Highways (Standard Specifications), which Standard Specifications and supplemental Specifications are subject to the approval of the Secretary. This exemption does not apply to multiple one-half acre sites on the same parcel of land, or to disposal of material not generated by the highway project. Eligibility for this exemption requires the Division of Highways or its contractors to provide the Secretary with seven (7) days notice prior to disposal and a copy of the landowner agreement. Eligibility also requires proper management of the site by the Division of Highways.

3.16.e.2.D. Clean Bituminous (Asphaltic) Concrete, Portland Concrete, and Masonry Substances Exemption. The legitimate beneficial reuse of clean bituminous (asphaltic) concrete, Portland concrete, and other clean masonry substances for the purpose of fill, riprap, road surfacing or roadbase material is exempt from the permitting requirements of this rule; Provided, that any such fill will not be placed in natural wetlands, adheres to best management practices for construction, and maintains cover over the material; and Provided further, that bituminous (asphaltic) concrete may not be used for riprap material. For the purpose of this subparagraph, “clean” will be defined as uncontaminated bituminous (asphaltic) concrete, Portland concrete or masonry material that does not have protruding metal prior to its reuse. In cases where Portland concrete is used as riprap and that concrete contains metal, the Secretary will decide on a case-by-case basis whether this reuse is eligible for an exemption under this subparagraph.

3.16.e.3. Class D-1 Solid Waste Facilities. -- A Class D-1 solid waste/facility permit must be applied for the disposal of construction/demolition waste in cases where a noncommercial Class D solid waste facility general permit specified by paragraph 3.16.e.4 is not applicable.

3.16.e.3.A. Except as provided in parts 3.16.e.3.A.1 through 3.16.e.3.A.4, an applicant for a Class D-1 solid waste facility permit must meet all of the requirements in section 3 of this rule.

3.16.e.3.A.1. In lieu of the test corings required in subdivision 3.8.c, available literature and field reconnaissance may be used to obtain the information required in subdivision 3.8.c of this rule.

3.16.e.3.A.2. A minimum of one (1) downgradient monitoring well must be drilled to intersect the uppermost significant aquifer. If the permit area is between five (5) to ten (10) acres, a minimum of two (2) downgradient monitoring wells must be drilled. If the permit area is greater than ten (10) acres, a minimum of three (3) monitoring wells must be drilled.

3.16.e.3.A.3. Class D-1 solid waste facilities are exempted from the requirements of subparagraph 3.8.d.4.A and parts 3.8.c.1.C.4, and 3.8.c.1.C.9 of this rule.

3.16.e.3.A.4. Upon written request, the Secretary may exempt a Class D-1 solid waste facility from compliance with a specific requirement in section 3 of this rule that the Secretary deems to be inappropriate or may modify such requirement for that particular facility.

3.16.e.4. Class D General Permit.

3.16.e.4.A. Coverage. -- The Secretary may issue a general permit to regulate noncommercial construction/demolition solid waste facilities except those covered by individual Class D permits.

3.16.e.4.B. Administration. -- General permits may be modified, revoked, reissued or suspended in accordance with the applicable requirements of subsection 3.18 of this rule.

3.16.e.4.B.1. The Secretary may require any person authorized by a general permit to apply for an individual permit. Any interested person may petition the Secretary to take action under this part. Cases where an individual permit may be required include the following: 3.16.e.4.B.1.(a) The permittee is not in compliance with the conditions of the general permit; 3.16.e.4.B.1.(b) A change has occurred in the availability of the best management practices or demonstrated technology for the control or abatement of problems applicable to the facility; 3.16.e.4.B.1.(c) Specific regulations or rules are promulgated for solid waste facilities covered by the general permit.

3.16.e.4.B.2. The Secretary may require any owner or operator authorized by a general permit to apply for an individual permit as provided in part 3.16.e.4.B.1 of this rule, only if the owner or operator has been notified in writing that a permit application is required. This notice must include a brief statement of reasons for this decision, an application form, a statement setting a time for the owner or operator to file the application, and a statement that on the effective date of the individual permit, the general permit as it applies to the individual permittee will automatically terminate. The Secretary may grant additional time upon request of the applicant.

3.16.e.4.B.3. Any owner or operator authorized by a general permit may request to be excluded from the coverage of a general permit by applying for an individual permit. The owner or operator must submit an application under subsection 3.5, with reasons supporting the request, to the Secretary no later than ninety (90) days after the general permit notice, in accordance with subsection 3.21.

3.16.e.4.B.4. Upon issuance of a general permit, the Secretary will cause to be published a notice of issuance as a Class I legal advertisement in a qualified daily or weekly newspaper and by any other means reasonably calculated to give notice of issuance to the persons affected by it.

3.17. Draft Permit.

3.17.a. Once an application is complete, the Secretary must tentatively decide whether to prepare a draft permit or to deny the application.

3.17.a.1. If the Secretary tentatively decides to issue a general permit, he or she will prepare a draft general permit that will contain the following information:

3.17.a.1.A. All conditions under subsections 3.5 and 3.6 and subdivision 5.4.c of this rule;

3.17.a.1.B. Permit application requirements;

3.17.a.1.C. All compliance schedules;

3.17.a.1.D. All limitations, standards, prohibitions and conditions, and all variances that are to be included.

3.17.b. If the Secretary decides to prepare a draft permit, a draft permit must be prepared that contains the following information:

3.17.b.1. All conditions required under section 3 and other applicable sections of this rule.

3.17.b.2. All compliance schedules; and

3.17.b.3. Standards for treatment, storage, and disposal and other permit conditions under sections 4 and/or 5 of this rule.

3.17.c. A fact sheet will be prepared by the Secretary for every draft permit for each solid waste facility or activity and for every general permit. The fact sheet must briefly set forth the principal facts and the significant factual, legal, methodological, and policy questions considered in preparing the draft permit. The Secretary will send this fact sheet to the applicant and, upon request, to any other person.

3.17.d. The fact sheet must include, when applicable:

3.17.d.1. A brief description of the type of facility or activity that is the subject of the draft permit.

3.17.d.2. The type and quantity of wastes that are proposed to be or are being recycled, treated, stored, disposed of, injected, emitted or discharged. A description of the type of wastes must include, but not be limited to, the characteristics of the waste materials and the potential effects upon public health and the environment.

3.17.d.3. A brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions.

3.17.d.4. A rationale explaining why any requested variances or alternatives to required standards do or do not appear justified.

3.17.d.5. A description of the procedures for reaching a final decision on the draft permit including:

3.17.d.5.A. The beginning and ending dates of the comment period and the address where comments will be received;

3.17.d.5.B. The procedures for requesting a hearing and the nature of that hearing; and

3.17.d.5.C. Any other procedures by which the public may participate in the final decision.

3.17.d.6. The name and telephone number of a person to contact for additional information.

3.18. Permit Modification, Reissuance, Suspension, Revocation and Termination.

3.18.a. Actions by the Secretary.

3.18.a.1. Permits may be modified, revoked, reissued, suspended or terminated by the Secretary for the reasons specified in subsection 3.18 of this rule.

3.18.a.1.A. When a permit is modified, only the conditions subject to modification are reopened. All other conditions of the permit will remain in effect for the duration of the permit.

3.18.a.1.B. The Secretary may require additional information and, in the case of a major modification, may require submission of a new permit application.

3.18.a.2. If the Secretary tentatively decides to modify a permit, the Secretary will prepare a modified draft permit and will follow the public notice procedures in subsection 3.21 of this rule. The Secretary may request additional information or require the submission of an updated permit application from the applicant.

3.18.b. Causes for Modification or Permittee-Requested Reissuance of Permits.

3.18.b.1. Minor Modification. -- Permits may be modified by the Secretary at any time except for major modifications as listed in paragraph 3.18.b.2 of this rule. Minor modification does not require the preparation of a draft permit or the completion of the public notice procedures.

3.18.b.1.A. A minor modification may be approved by the Secretary for a permittee proposing to increase the volume of solid waste accepted at the facility by an amount of ten percent (10%) or less upon application in alternate years, unless such an increase requires a change in the classification of the facility.

3.18.b.2. Major Modifications. -- The following are causes for major modification, but not reissuance, of a permit unless the permittee so requests or agrees. These causes require the preparation of a draft permit and public notice and the opportunity for a public hearing as required by this rule unless an emergency is declared by the Secretary.

3.18.b.2.A. The performance, efficiency, or longevity of the liner system or the final cover (cap) will be decreased;

3.18.b.2.B. The efficiency or performance of the leachate management system will be decreased;

3.18.b.2.C. The efficiency or performance of a gas management system will be decreased;

3.18.b.2.D. The efficiency or performance of the surface water control system will be decreased;

3.18.b.2.E. A decrease in the quality or quantity of data from any environmental monitoring system will occur;

3.18.b.2.F. The permitted disposal surface area boundary will be increased;

3.18.b.2.G. A remedial action to protect groundwater is necessary;

3.18.b.2.H. The permit is to be transferred to a new permittee; or

3.18.b.2.I. Other similar modifications as determined by the Secretary.

3.18.b.2.J. Definitions. -- For the purposes of this part:

3.18.b.2.J.1. “Similar Modification,” means those modifications that have a significant potential impact upon the environment, human health and safety, and those parameters set out in W. Va. Code §22-15-8. Similar modifications also include those modifications that have a significant potential impact upon the operation and management of a commercial solid waste facility.

3.18.b.2.J.2. “Significant potential impact,” is defined as that which is adverse or substantial.

3.18.c. Permit Suspension, Termination or Revocation.

3.18.c.1. Suspension. -- A solid waste facility permit may be suspended by order of the Secretary for any of the following reasons:

3.18.c.1.A. Violation of the Act, this rule or any order of the Secretary issued thereunder;

3.18.c.1.B. Interference with a representative of the Secretary in the performance of the Secretary’s duties;

3.18.c.1.C. Failure to adhere to the terms and conditions of the permit or any order issued by the Secretary under this rule or the Act; or

3.18.c.1.D. Discovery of failure in the application or during the permit issuance process to fully disclose all significant facts or the permittee’s misrepresentation of any significant fact at any time.

3.18.c.2. Revocation. A solid waste facility permit may be revoked by order of the Secretary for any of the following reasons:

3.18.c.2.A. Any deficiency at the solid waste facility constituting an imminent pollution, health or safety hazard;

3.18.c.2.B. Persistent violation of this rule, permit terms and conditions, or orders issued by the Secretary under the Act or this rule;

3.18.c.2.C. Discovery of failure in the application or during the permit issuance process to fully disclose all significant facts or the permittee’s misrepresentation of any significant fact at any time; or

3.18.c.2.D. Any cause that would require disqualification pursuant to this rule from receiving a permit upon original application.

3.18.c.3. Effect of Permit Suspension, Termination or Revocation.

3.18.c.3.A. Suspension. -- All solid waste processing, recycling or disposal activities and the receipt of any solid waste at the solid waste facility must cease immediately upon receipt of an order of suspension. Activities at the facility may recommence only after expiration of the order of suspension or upon revocation of that order by the issuing authority.

3.18.c.3.A.1. Should the Secretary deem that there are potentially significant health and/or environmental problems, an order of suspension may be issued and the bond may be seized and utilized for remediation purposes.

3.18.c.3.B. Revocation. -- All solid waste processing, recycling or disposal activities and the receipt of any solid waste at the solid waste facility must cease immediately upon receipt of an order of revocation. The solid waste facility owner must submit either an application for a permit to close the facility or an application for new solid waste facility permit within the time specified in the order of revocation.

3.18.c.3.C. Termination. -- After the effective date of this rule, a solid waste facility permit may be terminated by the Secretary for any of the following reasons:

3.18.c.3.C.1. Failure of the Permittee to initiate construction of the permitted facility within one hundred eighty (180) days of permit issuance; Provided, that a permittee notified by the Secretary of pending termination may request and be granted an extension of time to initiate construction by providing information that demonstrates that construction will be initiated within the remaining portion of the permit life; or

3.18.c.3.C.2. A written request by the permittee to terminate the permit because the permittee cannot, or opts not to, initiate construction or continue the operation of a permitted facility.

3.18.c.3.C.3. A permittee whose permit has been terminated by the Secretary prior to construction or operation may request that the full amount of the solid waste facility financial assurance be refunded.

3.18.c.3.C.4. The Secretary may terminate the permit without compensation to the permittee after the effective date of this rule, if a permittee has not begun construction within six (6) months of the issuance of a new solid waste facility permit or fails to make continual significant progress towards completion of construction,

3.18.c.3.D. Environmental Monitoring and Control. -- Environmental monitoring and control activities specified in an order of suspension or in an order of revocation must continue at the solid waste facility for the duration of such order or until the authority who issued that order approves the cessation of such activities.

3.19. Transfer of Permit.

3.19.a. Transfer Requirements. -- A permit issued by the Secretary in accordance with the provisions of this rule may be transferred to another person. The person seeking to succeed to the rights granted by the permit must:

3.19.a.1. File a completed application with the Secretary on forms and in a manner prescribed by the Secretary, including background investigation disclosure statements as required by subsection 3.14 of this rule;

3.19.a.2. Provide performance bond coverage at least equal to that of the original permit in accordance with subsection 3.13 of this rule. It must be affirmatively demonstrated to the Secretary that a bond in the full amount of that required for the permit will be kept in full force and effect before, during, and after the transfer of the permit rights;

3.19.a.3. Provide for public notice in accordance with subsection 3.21 of this rule; and

3.19.a.4. Obtain the Secretary’s approval for the transfer of permit in writing.

3.19.b. Denial of Transfer. -- The Secretary may refuse to transfer any permit and require that a new application for a solid waste facility permit be submitted prior to any transfer of permit responsibility or rights. Such refusal must be made in writing giving reasons therefor.

3.19.c. Operator Assignment. -- A permittee who wishes to assign the operation of the solid waste facility to another party through an agreement, contract or other legal instrument, but retain the permit must request prior written approval on forms prescribed by the Secretary. Such permittee must complete background investigation disclosure statement(s) as required under subsection 3.14 of this rule.

3.20. Permit Renewal.

3.20.a. Application for Permit Renewal. -- An application for the renewal of a valid permit that proposes no major modification to the permit must be on forms prescribed by the Secretary and must contain the following:

3.20.a.1. The name and address of the permittee, location of the permit area including the county, and the permit number;

3.20.a.2. A statement that the terms and conditions of the permit are being satisfactorily met;

3.20.a.3. A statement that the operation is in compliance with the applicable environmental protection standards of the Act and all applicable rules and regulations;

3.20.a.4. A statement that the performance bond or other financial assurance for the operation will continue in effect;

3.20.a.5. A progress map of the same size and scale as the proposal map;

3.20.a.6. A certification that the information set forth in the form and progress map is true, accurate, and complete; and

3.20.a.7. A notarized signature of the principal officer of the permittee in accordance with subdivision 3.7.r of this rule.

3.20.b. Public Notice. -- An applicant seeking to renew a valid permit who does not propose any major modification to that permit must meet the public notice requirements of subsection 3.21 of this rule. The Department will receive comments only upon the contents of the application for renewal. A public hearing may be held at the discretion of the Secretary.

3.20.c. Modification and Renewal. -- If an application is received that proposes a major modification to the existing permit and the renewal of that permit, it will be treated as a major modification pursuant to paragraph 3.18.b.2 of this rule, in addition to the requirements of subsection 3.20 of this rule.

3.21. Public Notice.

3.21.a. Scope.

3.21.a.1. Public notice must be given whenever either of the following actions have occurred:

3.21.a.1.A. A draft permit has been prepared; or

3.21.a.1.B. A hearing has been scheduled under subsection 3.23 of this rule.

3.21.b. Timing.

3.21.b.1. Public notice of the preparation of a draft permit must allow at least thirty (30) days for public comment. Upon request of the permittee, the public comment period will be extended for an additional thirty (30) days. Further extension of the comment period may be granted by the Secretary for good cause shown, but in no case may the further extension exceed an additional thirty (30) days.

3.21.b.2. Public notice of a public hearing must be given at least thirty (30) days before the hearing. Public notice of the hearing may be given at the same time as public notice of the draft permit and the two (2) notices may be combined.

3.21.b.3. A notice required under subsection 3.21 of this rule may be combined with that notice required under W. Va. Code §22-11-8.

3.21.c. Methods. -- Public notice must be given by the following methods:

3.21.c.1. By mailing a copy of a notice to those persons whose names are included on a mailing list maintained by the Department.

3.21.c.2. By the Secretary publishing the public notice as a Class II legal advertisement in a qualified newspaper, as defined in W. Va. Code §59-3-1(b), serving the county or counties where the facility will be located. The Secretary may also require that legal advertisement be placed in newspapers of adjacent counties. The cost of the publication will be borne by the applicant, who must send a certification of publication to the Department within twenty (20) days after publication.

3.21.c.3. Any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.

3.21.d. Contents.

3.21.d.1. Public Notice Contents. -- All public notices issued under subsection 3.21 of this rule must contain the following information:

3.21.d.1.A. The name and address of the Division processing the permit action for which notice is being given;

3.21.d.1.B. The name and address of the permittee or permit applicant, and if different, of the facility or activity regulated by the permit, except in the case of general permits;

3.21.d.1.C. A brief description of the business conducted at the facility or activity described in the permit application or in the draft permit when there is no application;

3.21.d.1.D. The name, address, and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit and the application;

3.21.d.1.E. A brief description of the comment procedures required by subdivision 3.21.b of this rule and the time and place of any hearing that will be held, including a statement of procedures to request a hearing (unless a hearing has already been scheduled) and other procedures by which the public may participate in the final permit decision;

3.21.d.1.F. A general description of the location of the proposed permit area including streams;

3.21.d.1.G. A clear and accurate location map. A map of a scale and detail found in the West Virginia General Highway Map will be the minimum standard for acceptance. The map size must be at a minimum two inches by two inches (2” x 2”). Longitude and latitude lines and a north arrow must be shown on the map, and such lines will cross at or near the center of the proposed permit area; and

3.21.d.1.H. A description of the activities covered in the application, including the class of the solid waste facility, the types, amounts, and sources of solid wastes to be handled, site improvements, and solid waste handling methods.

3.21.d.2. Other Public Notice Information. -- In addition to the contents required under paragraph 3.21.d.1 of this rule, public notices for hearings must contain the following information:

3.21.d.2.A. A reference to the date of previous public notices relating to the permit;

3.21.d.2.B. The date, time, and place of the hearing; and

3.21.d.2.C. A brief description of the nature and purpose of the hearing, including the applicable rules and procedures.

3.22. Public Comments and Requests for Public Hearings.

3.22.a. During the public comment period provided under subdivision 3.21.b of this rule, any interested person may submit written comments on the draft permit and may request a public hearing, if no public hearing has already been scheduled. A request for a public hearing must be in writing and must state the nature of the issues proposed to be raised in the hearing. All comments must be considered in making the final decision and must be answered as provided in subsection 3.27 of this rule.

3.23. Public Hearings.

3.23.a. The Secretary will hold a public hearing in the vicinity of the proposed facility whenever the Secretary finds, on the basis of requests, a significant degree of public interest on issues relevant to the draft permit. The Secretary also may hold a public hearing at his or her discretion whenever such a hearing might clarify one or more issues involved in the permit decision.

3.23.b. Any person may submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing will automatically be extended to ten (10) days after the close of any public hearings under subsection 3.23 of this rule.

3.23.c. A tape recording or written transcript of the hearing will be made available to the public, upon request.

3.24. Reopening of the Public Comment Period.

3.24.a. If any data, information, or arguments submitted during the public comment period raise substantial new questions concerning a permit or if, as a result of comments submitted by someone other than the permittee or if the Secretary determines to revise any condition of the permit that had been sent to initial public notice, the Secretary must take one or more of the following actions:

3.24.a.1. Prepare a new draft permit.

3.24.a.2. Reopen or extend the public comment period to give interested persons an opportunity to comment on the information or arguments submitted.

3.24.a.3. Conduct a public hearing.

3.24.b. Comments filed during the reopened comment period will be limited to the substantial new questions that caused its reopening. The public notice must define the scope of the reopening.

3.25. Public Participation File. -- The applicant for a permit for a solid waste facility, major modification, or closure must maintain a public participation file. The file must contain all written comments received during the public comment period, copies or tapes of transcripts of all meetings held by the applicant in response to any public comment, and a copy of the applicant’s written response to all written comment letters received during the public comment period. These response letters must clearly address each point in each comment letter, including any actions taken by the applicant to address the comment. The response letters must be sent by certified mail and the signed return receipts must also be included in the public participation file. The complete public participation file must be submitted to the Secretary by the applicant within thirty (30) days of the end of the public comment period designed in the public notice. The Secretary must approve the public participation file prior to permit issuance.

3.26. Public Availability of Information. -- Public availability of information relating to facility permits must be governed by the provisions of W. Va. Code §29B-1-1 et seq.

3.27. Issuance and Effective Date of Permit.

3.27.a. After the close of the public comment period on a draft permit, the Secretary must issue a final permit decision. The Secretary must provide written notification of the decision to the applicant and to each person requesting notice of the final permit decision. For the purposes of subsection 3.27 of this rule, a “final permit decision” means the final decision of the Secretary to issue, deny, modify, suspend, revoke, reissue or terminate a permit.

3.27.b. If the final permit decision is to deny, suspend, revoke, modify or terminate a permit, the Secretary must provide the reasons therefor in the Secretary’s written notification to the applicant. This notification will also include reference to the procedures for appealing the final permit decision.

3.27.c. A final permit decision becomes effective not less than thirty (30) days after the date of notice of the decision, unless an earlier date is requested by the applicant and agreed upon by the Secretary.

3.28. Permit Review by the Secretary.

3.28.a. The Secretary may refuse to grant a permit in accordance with the provisions of W. Va. Code §22-15-5(c). Written notification of such a refusal, and the reasons therefor, will be provided to the applicant.

3.28.b. Within thirty (30) days of receipt of a permit application, compliance schedule, closure plan or major modification application, the Secretary will determine whether such application, schedule or plan is complete (i.e., in proper order for technical review to commence) and will notify the applicant of the determination in writing. If the Secretary determines that such application, schedule or plan is not complete, the notification will advise the applicant of the deficiencies that require remedy.

3.29. Appeals. -- Appeal of permit decisions must be conducted in accordance with the provisions of W. Va. Code §22-15-16.

W. Va. Code R. § 33-1-4 Landfill Performance Standards

4.1. Enforcement of Landfill Performance Standards. -- Enforcement of the performance standards in section 4 of this rule must be conducted in accordance with the provisions of W. Va. Code §22-15-1, et seq.

4.2. Solid Waste Assessment Fees. -- Permittees are required under the provisions of W. Va. Code §22-15-11 and 110CSR6A to pay solid waste assessment fees.

4.3. Landfill Manager Training and Certification.

4.3.a. Qualifications. -- Operation of every commercial solid waste disposal facility “landfill” must be conducted under the direction of an individual who has authority and knowledge to make and implement decisions regarding operating conditions at the facility (called in this subdivision an “individual in responsible charge”) and who has attended and successfully completed a course of instruction in solid waste management procedures and practices. Such course of instruction must be approved in writing by the Secretary.

4.3.b. Applicability. -- Individuals in responsible charge of existing or new landfills and new individuals in responsible charge of existing landfills must be certified landfill managers by attending and successfully completing a course of instruction.

4.3.c. Instruction Course Criteria. -- An approved course of instruction must include at a minimum, the role of sanitary landfills in integrated solid waste management, basics of site selection, complying with design requirements, waste acceptance and screening, leachate management, landfill gas management, landfill operational techniques, environmental/operational and permit compliance inspections, field exercise and homework assignment, landfill economics, closure and post-closure care, state/federal regulations, permitting requirements and a written examination sanctioned by an internationally recognized certification organization or an accredited college or university program.

4.3.d. Certificate Requirement. -- Successful completion of an approved course of instruction by an individual in responsible charge must include passing the written examination and the award of a certificate as a certified manager; and

4.3.d.1. The individual must demonstrate that he or she has remained current in the field of solid waste management by attending at least thirty (30) contact hours of continuing education every three (3) years and providing proof thereof upon request.

4.4. Operating Record. -- Every facility must develop and maintain, on site, or at an alternative location approved by the Secretary an operating record that contains the information listed in this section. New facilities must have a record in place on the first day of business operations. The record must include a table of contents that outlines by section, title and page number the discussion required by this rule.

4.4.a. General Information. -- The items listed in this subdivision may be waived if those items are included in the facility permit, renewals, modifications and other similar permit documents or application thereto, provided that the permit and/or application must be kept in the operating record file including:

4.4.a.1. The facility title;

4.4.a.2. The engineering consultants;

4.4.a.3. The name and address of the facility owner and the name of the facility operator, the permit holder or permittee;

4.4.a.4. The location of the facility by latitude and longitude and county;

4.4.a.5. The proposed area of waste fill;

4.4.a.6. The anticipated life of the facility and its disposal capacity;

4.4.a.7. The waste contributors, including all municipalities and major commercial and industrial customers;

4.4.a.8. The waste type and quantity and source to be disposed; and

4.4.a.9. Any exemptions requested from the Department.

4.4.b. Monitoring. -- The record must include a description of required groundwater, surface water, gas, unsaturated zone, and leachate monitoring programs developed in accordance with the approved Q.A./Q.C. plan and the provisions of subsection 4.4 of this rule, including:

4.4.c. Operations. -- The record must describe the daily operations of the facility including a discussion of the following items:

4.4.c.1. The timetable for the phases of facility development;

4.4.c.2. The waste types accepted or excluded;

4.4.c.3. Typical waste handling techniques and methods for handling unusual waste types;

4.4.c.4. Procedures for excluding the receipt of hazardous waste;

4.4.c.5. The hours of operation;

4.4.c.6. Traffic routing;

4.4.c.7. Drainage and erosion controls;

4.4.c.8. Windy, wet, and cold weather disposal operations;

4.4.c.9. Fire protection equipment;

4.4.c.10. Anticipated staffing requirements;

4.4.c.11. Methods for disease vector, dust, and odor control;

4.4.c.12. Daily clean-up;

4.4.c.13. Direction of filling;

4.4.c.14. Salvaging;

4.4.c.15. Recordkeeping and reporting requirements as follows:

4.4.c.15.A. The permittee must record, retain and maintain copies of the documents listed in this paragraph in the facility operating record, and all information contained in the operating record must be furnished upon request to the Secretary or be made available at all reasonable times for inspection by the Secretary. Those documents include, but are not limited to the following:

4.4.c.15.A.1. Any location standard demonstrations required by subsections 3.1 and 3.2 of this rule;

4.4.c.15.A.2. A listing of any inspection records, training procedures, and notification procedures required by subparagraph 4.6.a.1.F of this rule;

4.4.c.15.A.3. Gas Monitoring results from monitoring and any remediation plans developed in accordance with subsection 4.10 of this rule;

4.4.c.15.A.4. Design documentation for the placement of leachate or gas condensate in the SWLF as required by subdivision 4.13.c of this rule;

4.4.c.15.A.5. Any demonstration, certification, finding, monitoring, testing, or analytical data required by subsection 4.11 of this rule;

4.4.c.15.A.6. Any closure and post-closure care plans and any monitoring, testing or analytical data as required by subsection 4.11 and/or section 6 of this rule;

4.4.c.15.A.7. Any cost estimates and financial assurance documentation required by subdivision 3.7.j and subsection 3.13 of this rule;

4.4.c.15.A.8. Any other demonstration, certification, finding, monitoring, testing, or analytical data required by this rule;

4.4.c.15.B. Alternative Recordkeeping.

4.4.c.15.B.1. The Secretary can set alternative schedules for recordkeeping and notification requirements as specified in subdivision 4.4.c, except for the notification requirements in paragraph 3.2.g.2 and subparagraph 4.11.c.7.A.

4.4.c.16. Parking for visitors, users, and employees;

4.4.c.17. A listing of the backup equipment available; and

4.4.c.18. A listing of local emergency response personnel.

4.4.d. Design. -- A general discussion of the design of the major engineering features, such as base grade configuration and relationships to subsurface conditions, anticipated waste types and characteristics, phases of development, traffic routing, liner design, facility monitoring, final capping, closure, long-term post-closure care and other similar design features.

4.4.e. Appendix. -- An appendix must be included that lists the references used and includes any additional data not previously presented, supplemental design calculations, material specifications, operating agreements such as draft leachate treatment agreements or signed soil borrow agreements, documents related to long-term post-closure care funding, and other appropriate information.

4.5. Minimum Design Criteria for Landfills.

4.5.a. Design Capacity. -- The minimum design capacity of a landfill must equal or exceed the expected volume of solid waste and daily and intermediate cover that will be disposed of at the facility within ten (10) years after operations begin. Expansions of existing facilities are not subject to the ten (10)-year minimum design capacity requirement.

4.5.b. Drainage and Sediment Control Plan.

4.5.b.1. Stream Channel Diversions.

4.5.b.1.A. Design Capacity.

4.5.b.1.A.1. The design capacity of channels for temporary and permanent channel diversions must be at least equal to the capacity of the unmodified stream channel immediately upstream and downstream of the diversion.

4.5.b.1.A.2. The temporary and permanent channel diversions must be designed so that the combination of channel, bank, and floodplain configuration is adequate to pass safely the peak runoff of a twenty-five (25)-year, twenty-four (24)-hour storm for a temporary channel diversion and a one hundred (100)-year, twenty-four (24)-hour storm for a permanent channel diversion.

4.5.b.1.B. Removal of Temporary Diversions. -- Temporary channel diversions must be removed when they are no longer needed to achieve the purpose for which they were approved, as long as downstream facilities that were being protected are modified or removed.

4.5.b.1.C. Stream Channel Specifications. -- The drainage and sediment control plan must contain the following plans, design data, and specifications concerning stream channels:

4.5.b.1.C.1. A “stream channel design computation sheet” to be completed for each proposed temporary or permanent stream channel diversion;

4.5.b.1.C.2. Construction plans showing: 4.5.b.1.C.2.(a) A plan view of the area showing centerline profiles of existing stream channel and proposed location of the temporary or permanent stream channel (drawn to scale); 4.5.b.1.C.2.(b) Profiles along the centerline of the existing and temporary or permanent stream channel showing original ground, proposed and existing stream bottom (drawn to scale); 4.5.b.1.C.2.(c) A cross-section showing original ground limits, bottom width, side slopes, depth of flow, floodplain configuration; and 4.5.b.1.C.2.(d) A detailed sequence of the installation of temporary or permanent stream channel diversions;

4.5.b.1.C.3. Construction specifications; and

4.5.b.1.C.4. Maintenance schedule and procedures for maintenance.

4.5.b.2. Diversions.

4.5.b.2.A. Run-on Control System.

4.5.b.2.A.1. Permittees of all SWLFs must design, construct, operate, and maintain:

4.5.b.2.A.2. A run-on control system capable of preventing flow onto any part of the disposal area including the active portion of the SWLF.

4.5.b.2.B. Design Capacity. -- The run-on control system must have the capacity to pass safely the peak discharge from the contributing watersheds from a twenty-five (25)-year, twenty-four (24)-hour storm.

4.5.b.2.C. Diversion Specifications. -- The drainage and sediment control plan must contain the following plans, design data, and specifications concerning diversions:

4.5.b.2.C.1. A “Diversion Design Computation Sheet” must be completed for each proposed diversion;

4.5.b.2.C.2. Construction plans showing: 4.5.b.2.C.2.(a) A profile based upon survey along the centerline of the diversion showing original ground line and proposed diversion bottom; 4.5.b.2.C.2.(b) A channel cross-section showing the original ground line, bottom width, side slopes, depth of flow, freeboard, and other pertinent information drawn to scale; 4.5.b.2.C.2.(c) The type of soil in which the diversion will be excavated. Either the soil must be sampled and classified at intervals of five hundred (500) feet or a demonstration of erosion potential based on existing soils information must be made; and 4.5.b.2.C.2.(d) The type and design of the outlet proposed for each diversion;

4.5.b.2.C.3. Maintenance schedule and procedures for maintenance; and

4.5.b.2.C.4. Construction and vegetation specifications.

4.5.b.3. Sediment Control. -- Sediment control structures must be constructed in appropriate locations in order to control sedimentation. All runoff from the disturbed area must pass through a sedimentation pond or ponds. All sediment control structures must be designed, constructed, and maintained in accordance with the specifications contained in the U.S. Soil Conservation Service’s “Erosion and Sediment Control Handbook for Developing Areas in West Virginia,” unless the Secretary approves the use of an equivalent handbook of guidance or as otherwise specified in this rule. Temporary erosion and sediment control measures must be implemented during construction until permanent sedimentation control can be established.

4.5.b.3.A. Design and Construction Requirements.

4.5.b.3.A.1. All sediment control structures must be designed, constructed and certified prior to the commencement of any earthmoving or grading activities in upgradient areas that may contribute runoff to such control structures. Any change to the approved control structures made during construction must be indicated on “as-built” plans showing the approved design, the changes made, and surveyed reference points. All “as-built” plans must be submitted to the Secretary.

4.5.b.3.A.2. All sediment control structures must be located as near as possible to the disturbed area. All sediment control structures must be located out of perennial streams unless otherwise approved by the Secretary.

4.5.b.3.A.3. All sediment control structures must have a sediment capacity of 0.125 acre-feet for each acre of disturbed area in the structure’s watershed. In addition to the sediment capacity, the sediment control structure must have the detention capacity to store a two (2)-year, twenty-four (24)-hour frequency storm. The water stored from this storm must be released through a nonclogging dewatering device that allows the stored volume of water to be evacuated within a seven (7)-day to eight (8)-day period. The elevation of the nonclogging dewatering device must not be lower than the maximum elevation of the designed sediment storage volume and also satisfy the storm water provisions of the Federal Clean Water Act as reflected in W. Va. Code §22-11-1, et seq., and any rules promulgated thereunder.

4.5.b.3.A.4. All discharges from sediment control structures must not cause a violation of State and Federal water quality standards and must meet all effluent limitations as reflected in W. Va. Code §22-11-1, et seq. and any rules promulgated thereunder.

4.5.b.3.A.5. All sediment control structures must be designed, constructed, and maintained to prevent short-circuiting.

4.5.b.3.A.6. All sediment control structures must be cleaned out when the sediment accumulation reaches sixty percent (60%) of the design sediment capacity. The clean-out elevation must be indicated on the plans submitted for the structure. Sediment removal and disposal must be done in a manner that minimizes adverse effects on surface water and groundwater quality.

4.5.b.3.A.7. All sediment control structures must be designed, constructed, and maintained to meet the following safety standards: 4.5.b.3.A.7.(a) An adequate structural foundation must be provided for all structures through the clearing of trees and brush and the exclusion of organic material. Earthen materials used in the construction must be free of trees, roots, brush, frozen soil, organic materials, coal processing materials, construction waste, and other debris. All earthen materials must be properly compacted to prevent excessive settlement. 4.5.b.3.A.7.(b) Sediment control structures must provide a combination of principal and emergency spillways that will safely discharge a minimum twenty-five (25)-year, twenty-four (24)-hour storm without overtopping of the structure. There must be no outflow through the emergency spillway during the passage of a ten (10)-year, twenty-four (24)-hour frequency storm through the sediment control structure. All spillways must discharge an adequate distance beyond the downstream toe of the structure to a natural drainway to prevent erosion of the downstream toe. 4.5.b.3.A.7.(c) The contributing drainage area(s) for a sediment control structure must not exceed two hundred (200) acres. 4.5.b.3.A.7.(d) The minimum diameter of the principal spillway and the discharge conduit must be twelve (12) inches. 4.5.b.3.A.7.(e) A minimum difference in elevation of one (1) foot between the crest of the principal spillway and the crest of the emergency spillway must be provided. A minimum difference in elevation of one (1) foot of freeboard between the maximum design flow elevation in the emergency spillway and the top of the settled embankment must be provided. 4.5.b.3.A.7.(f) The vertical distance between the lowest point along the centerline of the sediment control structure and the top (crest) of the sediment control structure must not exceed twenty-five (25) feet. 4.5.b.3.A.7.(g) Appropriate barriers must be provided to control seepage along the conduits that extend through the embankment. 4.5.b.3.A.7.(h) All inspection reports and engineering certifications must be provided to the Secretary. 4.5.b.3.A.7.(i) The sediment control structure must possess a minimum embankment width of ten (10) feet. 4.5.b.3.A.7.(j) The embankment must be designed and constructed with a minimum static safety factor of 1.5. 4.5.b.3.A.7.(k) The embankment must be stabilized and revegetated upon construction.

4.5.b.3.A.8. Sediment control structures must be inspected and closed in accordance with section 6 of this rule.

4.5.b.3.A.9. Any sediment control structure that is an artificial barrier or obstruction, including any works appurtenant to it and any reservoir created by it, which is or will be placed, constructed, enlarged, altered or repaired so that it does or will impound or divert water and: 4.5.b.3.A.9.(a) Is or will be twenty-five (25) feet or more in height from the natural bed of the stream or watercourse measured at the downstream toe of the barrier and that does or can impound fifteen (15) acre-feet or more of water; or 4.5.b.3.A.9.(b) Is or will be six (6) feet or more in height from the natural bed of the stream or watercourse measured at the downstream toe of the barrier and that does or can impound fifty (50) acre-feet or more of water or is, by definition, a “dam” as defined in W. Va. Code §22-14-3(e) is subject to regulation under the provisions of the West Virginia Dam Control and Safety Act, W. Va. Code, §22-14-1, et seq.

4.5.b.3.A.10. Discharge Structures. -- Discharge from temporary or permanent sediment control structures, diversions, or stream channel diversions must be controlled by energy dissipaters, riprap channels or other devices approved by the Secretary to reduce erosion, to prevent deepening or enlargement of stream channels, and to minimize disturbance of the hydrologic balance. Discharge structures must be designed in accordance with standard engineering procedures.

4.5.b.3.B. Abandonment Procedures. -- Minimum requirements for abandoning sediment control structures prior to total release of a bond are as follows:

4.5.b.3.B.1. Excavated Sediment Pond (Dugout Type). -- There is no required abandonment procedure for excavated ponds unless they have an embankment. If they have an embankment, they must follow the abandonment procedures outlined in part 4.5.b.3.B.2 of this rule.

4.5.b.3.B.2. Embankment-Type Sediment Control Structures; Embankment-Type Excavated Sediment Control Structures; Crib and Gabion Control Structures. -- Sediment control structures and all accumulated sediment above the structure must be removed from the natural drainway if they are built across it. Sediment control structures adjacent to natural drainways must be abandoned by diverting the entrance channel to the natural drainways, providing that vegetation has been established on-site, thus preventing any future surface runoff from entering the abandoned sediment control structure. When sediment control structures are removed, the natural drainway must be returned to its original profile and cross-section as near as practical. An original profile and cross-section view for the channel must be submitted with the drainage plan. The channel sides and bottom must be rock riprap. The riprap must extend up to the top of the channel. The riprap requirement may be waived where the bottom and sides of the channel consist of bedrock. Provisions must be made to control sediments during removal of the sediment control structure and any necessary stream channel work.

4.5.b.3.B.3. Revegetation of Disturbed Areas. -- All areas disturbed during abandonment of a sediment control structure must be seeded and mulched immediately to revegetate and stabilize the disturbed areas.

4.5.b.4. Run-off Control System.

4.5.b.4.A. All permittees must design, construct, operate, and maintain a run-off control system capable of flow collections and controlling from any portion of the landfill to collect and control at least the water volume resulting from a twenty-four (24)-hour, twenty-five (25)-year storm.

4.5.b.4.B. Run-off from all portions of the landfill, including the active portion, must be handled in accordance with the Act, the Water Pollution Control Act and the rules promulgated thereunder.

4.5.c. Access Roads.

4.5.c.1. Access Road Construction Plans. -- Construction plans for an access road (i.e., a road used for facility access or for the haulage of solid waste to the facility) must contain the following:

4.5.c.1.A. A plan view drawn to scale showing the station baseline, the location of each culvert with the drainage flow direction, the location of each intermittent or perennial stream with its flow direction, and other data pertinent to the construction of the access road.

4.5.c.1.B. A profile based upon survey drawn to scale (the scale should be no greater than 1 inch = 100 feet horizontal and 1 inch = 50 feet vertical) showing the road surface, the location and size of culverts, station elevations, original ground, and percent grades.

4.5.c.1.C. A cross-section of the access road showing culverts and their slopes, fill materials, original ground, ditches, and sediment control devices.

4.5.c.1.D. A structure computation sheet and a cross-section showing all data pertinent to the crossing of each intermittent or perennial stream.

4.5.c.1.E. Construction specifications -- covering excavation, selection and placement of materials, vegetative protection against erosion, road surfacing, drainage, and sediment control -- that incorporate the design criteria set forth in paragraph 4.5.c.2 of this rule.

4.5.c.1.E.1. All grades referred to in paragraph 4.5.c.2 of this rule must be subject to a tolerance of two percent (2%). All linear measurements referred to in paragraph 4.5.c.2 of this rule must be measured from the horizontal and must be subject to a tolerance of five percent (5%).

4.5.c.1.E.2. All primary access roads for the facility, including those leading to the active area, must be designed for all-weather operation in accordance with standards of the West Virginia Division of Highways.

4.5.c.2. Access Road Construction.

4.5.c.2.A. Grades. -- The grading of an access road must be such that:

4.5.c.2.A.1. The overall grade must not exceed ten percent (10%).

4.5.c.2.A.2. The maximum pitch grade must not exceed fifteen percent (15%) for three hundred (300) feet in each one thousand (1,000) feet of road construction. The intersection of the access road with an existing highway must be designed to provide sufficient sight distance and minimum interference with traffic on the highway.

4.5.c.2.A.3. The surface must pitch toward the ditchline at a minimum rate of one-half (½) inch per foot of surface width or crowned at the minimum rate of one-half (½) inch per foot of surface width as measured from the centerline of the access road.

4.5.c.2.B. Curves. -- The grade on switchback curves must be reduced to less than the approach grade and must not be greater than ten percent (10%);

4.5.c.2.C. Cut Slopes. -- Cut slopes must not be steeper than 1:1 in soils or 1:4 in rock.

4.5.c.2.D. Drainage Ditches. -- After the effective date of this rule, newly designed ditches must be provided on both sides of a throughcut and on the inside shoulder of a cutfill section, with ditch relief culverts being spaced according to grade. Water must be intercepted or directed around and away from a switchback. All ditchlines must be capable of passing the peak discharge of a twenty-five (25)-year, twenty-four (24)-hour storm. Where superelevation to the inside of a curve will improve the safety of the access road, such as in the head of a hollow, a ditchline may be located on the outside shoulder of the cutfill section, provided that the ditchline is designed so that it will remain stable and that drainage control in accordance with the Act is also provided for water on the outside of the curve.

4.5.c.2.E. Drainage Culverts. -- Ditch relief culverts must be installed wherever necessary to ensure proper drainage of surface water beneath or through the access road.

4.5.c.2.E.1. Culverts must be installed in accordance with the following spacings: 4.5.c.2.E.1.(a) For a road grade of zero to five percent (0% to 5%), the spacing must be three hundred to eight hundred (300 to 800) feet; 4.5.c.2.E.1.(b) For a road grade of five to ten percent (5 to 10%), the spacing must be two hundred to three hundred (200 to 300) feet; and 4.5.c.2.E.1.(c) For a road grade of ten to fifteen percent (10 to 15%), the spacing must be one hundred to two hundred (100 to 200) feet.

4.5.c.2.E.2. Culverts must cross the access road at a thirty (30) degree angle downgrade with a minimum grade of three percent (3%) from inlet to outlet, except in the conveyance of intermittent or perennial streams where the pipe must be straight and coincide with the normal flow.

4.5.c.2.E.3. The inlet end of each culvert must be protected by a headwall of stable material as approved by the Secretary and the slope at the outlet end must be protected with an apron of rock riprap, energy dissipater, or other material approved by the Secretary.

4.5.c.2.E.4. Culverts must be covered by compacted fill to a minimum depth of one (1) foot or one-half (½) of the culvert inside diameter, whichever is greater.

4.5.c.2.E.5. Alternative culvert designs may be submitted to the Secretary for approval in cases where the design criteria in subparagraph 4.5.c.2.E of this rule is deemed to be impractical.

4.5.c.2.F. Culvert Openings. -- After the effective date of this rule, newly designed culvert openings installed on an access road must be at least twelve (12) inches in diameter, or equivalent area, but, in any event, all culvert openings must be of adequate capacity to carry the peak discharge capacity of a twenty-five (25)-year, twenty-four (24)-hour storm from the contributing watershed and must receive necessary maintenance to function properly at all times.

4.5.c.2.G. Intermittent or Perennial Stream Crossing. -- After the effective date of this rule, newly designed culverts, bridges, or other drainage structures must be used to cross intermittent or perennial streams. Consideration must be given to such factors as weather conditions, season of the year, and time period for construction with regard to using measures to minimize adverse effects to the water quality and stream channel. In no event may the sediment load of the stream be significantly increased or the water quality be significantly decreased during the construction period. Water control structures must be designed with a discharge capacity capable of passing, at a minimum, the peak runoff of a twenty-five (25)-year, twenty-four (24)-hour storm from the contributing watersheds. If approved by the Secretary, the capacity of the water control structure itself can be at least equal to or greater than the stream channel discharge capacity immediately upstream and downstream of the crossing, provided the structure can pass at least a twenty-five (25)-year, twenty-four (24)-hour storm.

4.5.c.2.H. Revegetation of Slopes. -- All disturbed area, including fill and cut slopes, must be revegetated by the use of seed and mulch immediately after the construction of an access road, unless approved by the Secretary, and that revegetation must be maintained thereafter as necessary to control or prevent erosion.

4.5.c.2.I. Surfacing. -- An access road must not be surfaced with any acid-producing or toxic materials and the surface must be maintained in a manner that controls or prevents erosion and siltation.

4.5.c.3. Removal of Drainage Structures. -- Bridges, culverts, and stream crossings necessary to provide access to the facility must not be removed until reclamation is completed and approved by the Secretary. The same precautions as to water quality are to be taken during removal of drainage structures as those taken during construction and use.

4.5.c.4. Existing Access Roads. -- Where existing roads are to be used for access or haulage, the requirements of subparagraphs 4.5.c.2.A through 4.5.c.2.E of this rule may be waived by the Secretary if it can be demonstrated that reconstruction to meet the requirements of subdivision 4.5.c of this rule would result in greater environmental harm than is produced by existing conditions and that the drainage requirements in paragraph 4.5.c.2 of this rule can otherwise be met.

4.5.c.5. Infrequently Used Access Roads. -- Access roads constructed for and used only to provide infrequent service to facilities, such as monitoring devices, may be exempted by the Secretary from compliance with the requirements of subparagraphs 4.5.c.2.A, 4.5.c.2.H and 4.5.c.2.I of this rule.

4.5.c.6. Dust Control. -- All reasonable means must be employed to control dust from the surface of access roads, including those statutes, rules and regulations of the Division of Air Quality.

4.5.c.7. Abandonment of Access Roads. -- Access roads must be abandoned in accordance with the following:

4.5.c.7.A. Every effort must be made when an access road is abandoned to prevent erosion by the use of culverts, water bars, or other devices. Water bars or earth berms must be installed in accordance with the following spacings;

4.5.c.7.A.1. For a grade of zero to five percent (0% to 5%), the spacing must be three hundred to eight hundred (300 to 800) feet;

4.5.c.7.A.2. For a grade of five to ten percent (5% to 10%), the spacing must be two hundred to three hundred (200 to 300) feet; and

4.5.c.7.A.3. For a grade of ten to fifteen percent (10% to 15%), the spacing must be one hundred to two hundred (100 to 200) feet.

4.5.c.7.B. The land covered by an access road must be revegetated by the use of seed and mulch immediately after the abandonment of the road, unless approved by the Secretary, in accordance with subdivision 4.5.f of this rule.

4.5.d. Liners.

4.5.d.1. Liner System Requirements. -- A person who receives a permit for a landfill after June 2, 1996 -- including a permit that results in an expansion of a currently permitted landfill -- must design, construct, operate, and maintain a liner system at that landfill. Nothing within this rule may be construed to allow the installation of any liner system on areas not lined as of June 2, 1996 that is not in conformance with subparagraph 4.5.d.1.C or 4.5.d.1.E of this rule. Landfills that do have a permit issued pursuant to the Act and a liner installed as of that date may install a liner as approved by the Secretary in accordance with the following:

4.5.d.1.A. A landfill for which a valid closure permit has been issued pursuant to W. Va. Code §22-15-10 may remain in operation after the date of this rule, provided that the facility is in conformance with its permit and this rule, and such landfill has in place:

4.5.d.1.A.1. Groundwater monitoring wells in conformance with the requirements of subdivision 3.8.d of this rule;

4.5.d.1.A.2. A groundwater monitoring program in conformance with the requirements of subsection 4.11 of this rule;

4.5.d.1.A.3. An effective leachate treatment capability; and

4.5.d.1.A.4. Sediment run-off control.

4.5.d.1.B. All new SWLFs and lateral expansions that meet all of the requirements enumerated in subparagraphs 4.5.d.1.A and 4.5.d.1.B of this rule may remain in operation, provided that the liner must meet the following criteria:

4.5.d.1.B.1. The liner must be constructed, installed and maintained in accordance with a design approved by the Secretary.

4.5.d.1.B.2. The design must ensure that the concentration values listed in Appendix III to this rule will not be exceeded in the uppermost aquifer at the relevant point of compliance, as specified in subparagraph 4.5.d.1.G or;

4.5.d.1.B.3. With a composite liner as defined in section 2 and a leachate collection system that is designed and constructed to maintain less than a thirty centimeter (30 cm) depth of leachate over the liner.

4.5.d.1.C. A liner system must consist of the following elements:

4.5.d.1.C.1. Subbase, which is the prepared layer of soil or earthen materials upon which the remainder of the liner system is constructed;

4.5.d.1.C.2. Leachate detection zone, which consists of a perforated piping system within a layer of soil or earthen material placed on top of the subbase and upon which the composite liner is placed;

4.5.d.1.C.3. Composite liner, which consists of two (2) components, the compacted clay component topped with the synthetic liner;

4.5.d.1.C.4. Leachate collection and protective cover zone, which is a leachate collection system within a prepared layer of soil or earthen material placed over the composite liner; and

4.5.d.1.C.5. A reinforcement layer, if indicated by stability studies or other indicators, to prevent liner failure.

4.5.d.1.D. Active areas of existing landfills which have installed liners, leachate collection systems, and groundwater monitoring programs, as of June 2, 1996 may petition the Secretary to allow use of an alternative liner system, if:

4.5.d.1.D.1. A demonstration is made to the Secretary that an alternative design will provide the same degree of protection of the groundwater resources as the liner system described in subparagraph 4.5.d.1.E of this rule. The demonstration must include a series of groundwater monitoring well sampling analyses and also the direction-of-migration and rate-of-flow studies showing that there are no existing or potential groundwater pollution problems; and

4.5.d.1.D.2. A bond or other applicable means of financial assurance is posted in compliance with subdivision 3.7.j and subsection 3.13 of this rule.

4.5.d.1.E. In order to allow for the development of new technology, applicants may petition the Secretary to allow installation of an alternative liner system upon a demonstration to the Secretary that the alternative system will be equally or more protective of the groundwater resources than the liner system described in subdivision 4.5.d of this rule.

4.5.d.1.F. Alternative Liner Design. -- Any permittee who wishes to utilize an alternative liner design must submit a design to the Secretary that complies with subdivision 4.5.d of this rule and addresses the following factors:

4.5.d.1.F.1. The hydrogeologic characteristics of the facility and surrounding land;

4.5.d.1.F.2. The climatic factors of the area; and

4.5.d.1.F.3. The volume and physical and chemical characteristics of the leachate.

4.5.d.1.G. Relevant Point of Compliance.

4.5.d.1.G.1. The relevant point of compliance specified by the Secretary must be no more than one hundred fifty (150) meters (four hundred ninety-two (492) feet) from the waste management unit boundary and must be located on land owned by the owner of the SWLF.

4.5.d.1.G.2. In determining the relevant point of compliance, the Secretary must consider at least the following factors: 4.5.d.1.G.2.(a) The hydrogeologic characteristics of the facility and surrounding land; 4.5.d.1.G.2.(b) The volume and physical and chemical characteristics of the leachate; 4.5.d.1.G.2.(c) The quantity, quality, and direction, of flow of groundwater; 4.5.d.1.G.2.(d) The proximity and withdrawal rate of the groundwater users; 4.5.d.1.G.2.(e) The availability of alternative drinking water supplies; 4.5.d.1.G.2.(f) The existing quality of the groundwater, including other sources of contamination and their cumulative impacts on the groundwater and whether groundwater is currently, or reasonably expected to be, used for drinking water; 4.5.d.1.G.2.(g) Public health, safety, and welfare effects; and 4.5.d.1.G.2.(h) Practicable capability of the permittee.

4.5.d.2. Liner System Limitations.

4.5.d.2.A. No person may construct a liner system for a facility unless there is at least four (4) feet maintained between the bottom of the subbase of the liner system and the seasonal high groundwater table.

4.5.d.2.A.1. The location of the seasonal high groundwater table may be inferred by such indicators as soil mottling, soil gleying, and iron and manganese concentrations.

4.5.d.2.A.2. Drainage systems may be utilized to maintain a four (4) foot isolation distance between the bottom of the subbase of the liner system and the seasonal high groundwater table. The drainage system must be limited to drain tile, piping, and French drains.

4.5.d.2.B. No person may construct a liner system for a facility unless at least eight (8) feet can be maintained between the bottom of the subbase of the liner system and the permanent groundwater table.

4.5.d.2.C. A minimum of four (4) feet vertical separation must be maintained between the bottom of the subbase of the liner system and bedrock unless otherwise approved by the Secretary. If backfilled material is used, the nature of these materials is subject to approval by the Secretary.

4.5.d.2.D. If the approved design plans provide for the placement of additional adjacent liner, waste may not be placed within fifteen (15) feet of an edge of the liner that will be joined by an additional adjacent liner. The edge must be protected by soil cover or other method approved in the permit until additional liner is added.

4.5.d.2.E. If the approved design plans do not provide for the placement of additional adjacent liner, waste must not be placed within five (5) feet of an edge of the liner.

4.5.d.2.F. A liner berm at least four (4) feet high must be constructed and maintained along the edge of the liner to prevent the lateral escape of leachate.

4.5.d.2.G. The edge of the liner must be clearly marked.

4.5.d.2.H. The operator must comply with additional requirements the Secretary deems necessary to protect public health, safety, and the environment.

4.5.d.3. Liner System Subbase.

4.5.d.3.A. The subbase portion of a liner system must:

4.5.d.3.A.1. Be at least six (6) inches thick and compacted to a Standard Proctor density of at least ninety-five percent (95%) at three to five percent (3% to 5%) wet of optimum;

4.5.d.3.A.2. Have a minimum bearing capacity of two and one-quarter (2¼) tons per square foot plus one-half (½) of the total applied load in pounds per square foot;

4.5.d.3.A.3. Be no more permeable than 1 x 10-6 cm/sec based on laboratory and field testing;

4.5.d.3.A.4. Be hard, uniform, smooth, and free of debris, rock, plant materials, and other foreign material; and

4.5.d.3.A.5. Have a slope of at least two percent (2%).

4.5.d.3.A.6. The subbase construction certification and a Q.A./Q.C. report must be submitted to the Secretary prior to the placement of any material over the subbase.

4.5.d.3.A.7. Be free of particles greater than two (2) inches in any dimension, and free of debris, rock, plant materials, and other foreign materials.

4.5.d.4. Liner System Leachate Detection Zone.

4.5.d.4.A. The leachate detection zone must:

4.5.d.4.A.1. Create a flow zone between the subbase and the composite liner more permeable than 1 x 10-3 cm/sec based on laboratory and field testing. The leachate detection zone including piping system must be designed and placed on a minimum slope of two percent (2%);

4.5.d.4.A.2. Be at least twelve (12) inches thick;

4.5.d.4.A.3. Be comprised of clean soil or earthen materials that contain no debris, plant material, or material with sharp edges;

4.5.d.4.A.4. Have geotextile material placed within the leachate detection zone in such a manner as to prevent clogging of the piping system. The geotextile material must not be placed directly against pipes; and

4.5.d.4.A.5. Contain a perforated piping system capable of detecting and intercepting liquid within the leachate detection zone and conveying the liquid to central collection points, as follows: 4.5.d.4.A.5.(a) The slope, size, and spacing of the piping system must assure that liquids drain efficiently from the leachate detection zone; 4.5.d.4.A.5.(b) The distance between pipes in the piping system must not exceed one hundred (100) feet on center unless otherwise approved by the Secretary; 4.5.d.4.A.5.(c) The pipes must be installed nearly perpendicular to the slope with continuous positive slope; 4.5.d.4.A.5.(d) The minimum diameter of the perforated pipe must be four (4) inches with a wall thickness of Schedule 40 or greater; 4.5.d.4.A.5.(e) The pipe must be capable of supporting anticipated loads without failure based upon facility design; 4.5.d.4.A.5.(f) Rounded stones or aggregates must be placed around all portions of the pipes of the piping system. The stones or aggregates must be sized to prevent clogging of the pipes and damage to the subbase and the composite liner; 4.5.d.4.A.5.(g) The piping system must be installed in a fashion that facilitates cleanout, maintenance, and monitoring. Manholes or cleanout risers must be located along the perimeter of the leachate collection piping system. The number and spacing of the manholes or cleanout risers must be sufficient to ensure proper maintenance of the piping system by water jet flushing or an equivalent method; 4.5.d.4.A.5.(h) The leachate detection system must be cleaned with a water jet cleanout device or equivalent immediately after construction; 4.5.d.4.A.5.(i) If required by the Secretary in writing, leachate detection pipes used to transport leachate that are not within the bounds of the composite liner must be double-walled pipe; and 4.5.d.4.A.5.(j) The leachate detection zone construction certification and a Q.A./Q.C. report must be submitted to the Secretary prior to the placement of the composite liner.

4.5.d.5. Liner System Composite Liner. -- The composite liner must be comprised of the following components, unless otherwise approved in writing by the Secretary:

4.5.d.5.A. The compacted clay component must:

4.5.d.5.A.1. Be a minimum compacted thickness of two (2) feet;

4.5.d.5.A.2. Be compacted in six (6) inch lifts;

4.5.d.5.A.3. Be no more permeable than 1 x 10-7 cm/sec based on laboratory and field testing;

4.5.d.5.A.4. Be free of particles greater than two (2) inches in any dimension, debris, rock, plant materials, and other foreign materials;

4.5.d.5.A.5. Be placed without damaging the subbase and leachate detection zone;

4.5.d.5.A.6. Be placed during a period of time when both the air temperature and the soil temperature are above freezing, so that neither the compacted clay nor the subbase are frozen;

4.5.d.5.A.7. Have a slope of at least two percent (2%) to facilitate the drainage of leachate across the liner surface; and

4.5.d.5.A.8. Be designed, operated, and maintained so that the physical and chemical characteristics of the liner and liner’s ability to restrict the flow of solid waste, solid waste constituents, or leachate is not adversely affected by the leachate.

4.5.d.5.B. The synthetic component must:

4.5.d.5.B.1. Be no more permeable than 1 x 10-7 cm/sec;

4.5.d.5.B.2. Have a minimum thickness of sixty (60) mils;

4.5.d.5.B.3. Be installed in accordance with manufacturer’s specifications under the supervision of an authorized representative of the manufacturer;

4.5.d.5.B.4. Be inspected for uniformity, damage, and imperfections during construction or installation;

4.5.d.5.B.5. Have a slope of at least two percent (2%) to facilitate the drainage of leachate across the liner surface;

4.5.d.5.B.6. Be designed to withstand the calculated tensile forces acting upon the synthetic materials when installed on slopes greater than twenty-five percent (25%);

4.5.d.5.B.7. Have field seams oriented parallel to the line of the maximum slope and not across the slope. In corners and irregularly-shaped portions, the number of field seams must be minimized. No horizontal seam may be less than five (5) feet from the toe of slope;

4.5.d.5.B.8. Have the seam area free of moisture, dust, dirt, debris, and foreign material of any kind before seaming. Field seaming is prohibited, unless otherwise approved by the Secretary, when the ambient air temperature is below five degrees centigrade (5° C), above forty degrees centigrade (40° C) during precipitation, or when winds are in excess of twenty (20) miles per hour;

4.5.d.5.B.9. Be anchored a minimum of twenty-four (24) inches horizontally back from the edge of the top of the slope. The liner must be anchored by cutting a trench twelve (12) to sixteen (16) inches in depth, laying the liner across the soil perimeter of the trench, backfilling the trench, and compacting the backfill material; and

4.5.d.5.B.10. Be installed under the direction of a field crew foreman or other person approved in writing by the Secretary with documented successful liner installation experience.

4.5.d.5.C. The certification of the construction of the composite liner compacted clay component and a Q.A./Q.C. report must be submitted to the Secretary prior to the placement of the composite liner synthetic component.

4.5.d.5.D. The composite liner synthetic component construction certification and the Q.A./Q.C. report must be submitted to the Secretary prior to the placement of the leachate collection and protective cover zone.

4.5.d.6. Liner System Leachate Collection and Protective Cover Zone.

4.5.d.6.A. The leachate collection and protective cover zone must:

4.5.d.6.A.1. Create a flow zone between the composite liner and solid waste more permeable than 1 x 10-3 cm/sec based upon both laboratory and field testing. The leachate collection zone, including the piping system, must be designed and placed on a minimum slope of two percent (2%) to facilitate efficient leachate drainage and prevent ponding on the composite liner;

4.5.d.6.A.2. Be at least eighteen (18) inches thick;

4.5.d.6.A.3. Be constructed of soil or earthen materials to ensure that the hydraulic leachate head on the composite liner does not exceed one (1) foot at the expected flow capacity from the drainage area except during storm events. Clay and shale may not be used in the protective cover zone;

4.5.d.6.A.4. Be comprised of clean soil or earthen materials that contain no debris, plant materials, rocks, materials with sharp edges, or other solid materials larger than one-quarter (¼) inch in diameter;

4.5.d.6.A.5. Be graded, uniformly compacted, and smoothed;

4.5.d.6.A.6. Be installed in a manner that prevents damage to the composite liner;

4.5.d.6.A.7. Contain a perforated piping system capable of intercepting liquid within the leachate collection zone and conveying the liquid to control collection points. The piping system must also meet the following: 4.5.d.6.A.7.(a) The slope, sizing, and spacing of the piping system must ensure that liquids drain efficiently from the leachate collection zone; 4.5.d.6.A.7.(b) The distance between pipes in the piping system must not exceed one hundred (100) feet on center unless otherwise approved by the Secretary; 4.5.d.6.A.7.(c) The pipes must be installed nearly perpendicular to the slope with continuous positive slope; 4.5.d.6.A.7.(d) The minimum diameter of the perforated pipe must be four (4) inches with a wall thickness of Schedule 40 or greater; 4.5.d.6.A.7.(e) The pipe must be capable of supporting anticipated loads without failure based upon facility design; 4.5.d.6.A.7.(f) Rounded stones or aggregates must be placed around all portions of the pipes of the piping system. The stones or aggregates must be sized to prevent clogging of the pipes and damage to the composite liner; 4.5.d.6.A.7.(g) The piping system must be installed in a fashion that facilitates cleanout, maintenance, and monitoring. Manholes and cleanout risers must be located along the perimeter of the leachate detection piping system. The number and spacing of the manholes and cleanout risers must be sufficient to ensure proper maintenance of the piping system by water jet flushing or an equivalent method; 4.5.d.6.A.7.(h) The leachate collection system must be cleaned with a water jet cleanout device or equivalent immediately after construction; 4.5.d.6.A.7.(i) Have geotextile material placed within the leachate collection system in such a manner as to prevent clogging of the piping system. The geotextile material must not be placed directly against pipes; and 4.5.d.6.A.7.(j) If required by the Secretary in writing, leachate collection pipes used to transport leachate that are not within the bounds of the composite liner must be double-walled pipe.

4.5.d.6.B. The leachate collection zone construction certification and the Q.A./Q.C. report must be submitted to the Secretary prior to the placement of solid waste.

4.5.d.7. Liner System Engineer Certification.

4.5.d.7.A. The liner system must be inspected during and at the end of the construction by a registered professional engineer.

4.5.d.7.B. Upon completion of construction of each major element or stage of the liner system, including the subbase, leachate detection zone, composite liner, leachate collection zone, and protective cover (and prior to the deposition of waste), the engineer must certify to the Secretary under seal that the element or stage was constructed as approved in the permit.

4.5.d.8. Liner System Initial Placement of Solid Waste. -- The first eight (8) feet of solid waste placed on the protective cover must not contain material capable of penetrating or puncturing the protective cover, and must not be comprised of sludge or earthen material. Facilities that have received approval to construct a dedicated cell for the disposal of drill cuttings and associated drilling waste generated in the exploration, production, and development of oil and natural gas and associated activities under subsection 5.6 of this rule may use drilling waste in the first eight (8) feet of waste placed in the dedicated cell.

4.5.e. Quality Assurance and Quality Control. -- The quality control measures and tests required by the Q.A./Q.C. plan under subdivision 4.5.e of this rule must be employed to ensure that the engineering design and performance standards are achieved.

4.5.e.1. The Q.A./Q.C. inspector will inspect those aspects of the subbase and subgrade preparation including, but not limited to, the following:

4.5.e.1.A. Subgrade Preparation.

4.5.e.1.A.1. Site preparation, including clearing, and grubbing;

4.5.e.1.A.2. Excavation and contouring of the subgrade to required elevations;

4.5.e.1.B. Subbase Preparation.

4.5.e.1.B.1. Compaction of subbase to design density at proper moisture content to achieve required strength and stability to support the liner;

4.5.e.1.B.2. Moisture content density and field strength tests performed as required;

4.5.e.1.B.3. Compacted lift thickness;

4.5.e.1.B.4. Compaction equipment weight, speed, and number of passes;

4.5.e.1.B.5. Method of moisture addition;

4.5.e.1.B.6. Proof rolling of subbase; and

4.5.e.1.B.7. Fine finishing of the subbase for acceptability of areas to be lined.

4.5.e.2. The Q.A./Q.C. inspector must inspect those aspects of the liner system including, but not limited to, the following:

4.5.e.2.A. Liner material to ensure that the materials being used meet specifications;

4.5.e.2.B. Liner material stockpiling, storage, and handling in a manner that prevents damage;

4.5.e.2.C. Inspections of locations where inlet/outlet structures that penetrate the liner to ensure the compatibility of those structures with respect to the liner;

4.5.e.2.D. Final grades of the liner to ensure that they are within acceptable tolerance;

4.5.e.2.E. Final inspection of the liner for acceptability prior to placement of the protective cover material;

4.5.e.2.F. Installation of the compacted clay component of the liner with respect to the following:

4.5.e.2.F.1. Compaction of the liner to design density at the proper moisture content to achieve the required hydraulic conductivity and the maintenance of the design strength and stability;

4.5.e.2.F.2. Uniformity of compaction;

4.5.e.2.F.3. Compacted lift thickness;

4.5.e.2.F.4. Compacted liner thickness;

4.5.e.2.F.5. Compaction equipment weight, speed, and number of passes;

4.5.e.2.F.6. Moisture content, density, hydraulic conductivity, and field infiltration tests to ensure that they are performed as required; and

4.5.e.2.F.7. Repairs and corrective or remedial action performed as required;

4.5.e.2.G. Synthetic liner component with respect to the following:

4.5.e.2.G.1. Liner panel placement is in accordance with required configuration;

4.5.e.2.G.2. Permanent and temporary anchoring procedures are followed;

4.5.e.2.G.3. Overlap and seam width are in accordance with the design;

4.5.e.2.G.4. The area of seaming is clean and supported;

4.5.e.2.G.5. The uniformity and continuity of seams and welds;

4.5.e.2.G.6. Cap strips are installed on all seams, as applicable;

4.5.e.2.G.7. Qualitative and quantitative field seaming tests are performed as required for imperfections in seams, wrinkles, and fishmouths and that all imperfections are repaired as required; and

4.5.e.2.G.8. Corrective or remedial action taken;

4.5.e.2.H. The Q.A./Q.C. inspector must inspect those aspects of the leachate detection and leachate collection and protective cover systems including, but not limited to, the following:

4.5.e.2.H.1. Material stockpiling, storage, and handling to prevent damage;

4.5.e.2.H.2. Drainage layer placement;

4.5.e.2.H.3. Thickness of the leachate detection, leachate collection, and protective cover zones;

4.5.e.2.H.4. Grain size analyses, relative density, and compaction tests are performed as required;

4.5.e.2.H.5. Uniformity of the soil;

4.5.e.2.H.6. Grades and alignments are within acceptable tolerance;

4.5.e.2.H.7. Placement of stone or aggregate around all portions of the pipes in the piping systems;

4.5.e.2.H.8. Proper implementation of actions to protect the piping system and the other components of the liner system from the loads and stresses due to the traffic of backfilling and other equipment; and

4.5.e.2.H.9. Proper placement of the geotextile materials within the leachate detection zone and within the leachate collection and protective cover zone.

4.5.e.2.I. Daily Q.A./Q.C. reports must be prepared by the Q.A./Q.C. inspectors and maintained in a bound log book that must be available at the job site at all times for inspection by the Secretary. All lab reports and field testing results must be signed and dated by the inspector and must be attached to the log book reports. Each daily log book report must include, but not be limited to, the following:

4.5.e.2.I.1. Identification of project name, location, and date;

4.5.e.2.I.2. Weather conditions prevalent during construction and installation including: 4.5.e.2.I.2.(a) Temperature (daily high and low); 4.5.e.2.I.2.(b) Barometric pressure (high and low); 4.5.e.2.I.2.(c) Wind direction and maximum speed; 4.5.e.2.I.2.(d) Time of each precipitation event; and 4.5.e.2.I.2.(e) Total amount of each precipitation event;

4.5.e.2.I.3. Description and location of construction currently underway;

4.5.e.2.I.4. A listing of all equipment and personnel at work at each unit;

4.5.e.2.I.5. Description and location of areas being tested or observed;

4.5.e.2.I.6. Off-site material received and quality verification documentation;

4.5.e.2.I.7. Calibration of test equipment;

4.5.e.2.I.8. Description and location of remedial action taken; and

4.5.e.2.I.9. Decisions and comments including conversations, directives, and directions for the following: 4.5.e.2.I.9.(a) Acceptance or failure of inspections and tests; 4.5.e.2.I.9.(b) Acceptance or failure of daily work unit performance; 4.5.e.2.I.9.(c) Problems encountered and corrective action taken; 4.5.e.2.I.9.(d) On-going corrective action; 4.5.e.2.I.9.(e) In-field modifications; and 4.5.e.2.I.9.(f) Assessment of overall project quality.

4.5.f. Revegetation Plan.

4.5.f.1. Function of Annual and Biennial Cover Crops. -- On areas where erosion is likely to occur, rapid establishment of vegetative cover is required. Immediate revegetation by the use of seeding and mulching with approved annuals and biennials on such areas must be approved as a means for achieving temporary vegetative cover only.

4.5.f.2. Minimum Requirements of Soil Amendments.

4.5.f.2.A. A minimum of six hundred pounds per acre (600 lbs/acre) of 10-20-10 or 10-20-20 fertilizer, or equivalent, must be applied. Fertilizer rates based on soil analyses conducted by a qualified lab may be substituted for the minimum fertilizer rate.

4.5.f.2.B. Lime is required where soil pH is less than 5.5. Lime rates must be such that a standard soil pH of 6.0 is achieved.

4.5.f.2.C. Mulch must be used on all disturbed areas. A list of approved materials and minimum application rates is available from the Secretary.

4.5.f.3. Standards for Evaluating Vegetative Cover.

4.5.f.3.A. Final Revegetation Report. -- The report must be submitted to the Secretary within sixty (60) days after the final cover or cap has been completed and contain the actual acreage planted including the application rates of soil amendments, including fertilizer, lime, mulch, and seeding mixture.

4.5.f.3.B. Time for Inspection. -- Prior to the spring and fall planting seasons, the operator must review all disturbed areas. Those areas that will not be disturbed again must be graded, limed, fertilized, mulched, and seeded. Those areas that have been previously seeded but are deficient of vegetative cover must be reseeded to establish a satisfactory stand of vegetation. Disturbed areas that may sit idle for more than sixty (60) days must be temporarily revegetated.

4.5.f.3.C. Standards for Perennials. -- Standards for legumes and perennial grasses are required to achieve at least a ninety percent (90%) ground cover. Substandard areas must not exceed one-quarter (¼) acre in size, nor total more than ten percent (10%) of the revegetated area.

4.5.g. Miscellaneous. -- All facilities must be designed to meet the following requirements:

4.5.g.1. A method of controlling any dust or windblown debris must be included in the facility design. The factors that will be considered by the Secretary when evaluating alternative provisions for controlling dust and windblown debris includes the remoteness of the facility, natural screening and windbreaks, and waste types;

4.5.g.2. Access to the facility must be restricted through the use of fencing, natural barriers, or other methods approved in writing by the Secretary;

4.5.g.3. The facility must be designed so that final grades in each phase are reached as soon as possible and the open area used for refuse filling is minimized;

4.5.g.4. The grade of the surface of the facility must not be less than three percent (3%) nor more than twenty-five percent (25%) unless otherwise approved by the Secretary as a part of the issued permit.

4.5.g.5. Long slopes must incorporate runoff control measures and terracing in order to minimize erosion. For sites having a natural slope greater than twenty-five percent (25%), a slope up to thirty-three percent (33%) may be considered acceptable if terracing is incorporated at least every twenty (20) feet of vertical distance with runoff control.

4.5.g.6. All facilities that may obstruct flight patterns to instrument approach airports must follow Federal Aviation Administration guidelines in designing intermediate and final grades;

4.5.g.7. A permittee storing waste must provide a sufficient number of containers to contain solid waste generated during periods between regularly scheduled collections;

4.5.g.8. An individual container or bulk container used for the storage of solid waste must have the following characteristics:

4.5.g.8.A. The container must be constructed to be easily handled for collection; and

4.5.g.8.B. The container must be corrosion resistant and compatible with waste to be stored;

4.5.g.9. An individual container or bulk container used for the storage of putrescible solid waste must also have the following characteristics:

4.5.g.9.A. The container must be equipped with a tight fitting lid or cover, or otherwise sealed; and

4.5.g.9.B. The container must be watertight, leak proof, insect proof, and rodent proof; and

4.5.g.10. A permittee that stores waste outside of containers must tie the wastes securely in bundles of a size that can be readily handled for collection and in a manner that minimizes litter, safety hazards, and fire hazards.

4.6. General Operational Requirements.

4.6.a. General Requirements.

4.6.a.1. No person may operate or maintain a solid waste facility that does not conform to an approved plan of operation and the following:

4.6.a.1.A. Daily deposition of solid waste must be confined to as small an area as practical;

4.6.a.1.B. Provisions must be made to confine windblown material within the active disposal area;

4.6.a.1.C. At the conclusion of each day of operation, all windblown material must be collected and properly disposed of in the active disposal area in accordance with the provisions of subdivision 4.6.a of this rule, unless the operator establishes, to the satisfaction of the Secretary, that:

4.6.a.1.C.1. All windblown material cannot be collected using reasonable efforts because of conditions beyond the control of the operator;

4.6.a.1.C.2. Windblown material that can be collected using a reasonable effort has been collected and disposed of properly;

4.6.a.1.D. Putrescible materials such as spoiled foods and animal carcasses must be immediately compacted and covered by the use of daily cover and other means;

4.6.a.1.E. Permittees of all SWLFs must control public access and prevent unauthorized vehicular traffic through the use of artificial barriers, including fencing, natural barriers, both, or other methods approved in writing by the Secretary, as appropriate to protect human health and the environment;

4.6.a.1.F. Procedures for Excluding the Receipt of Regulated Hazardous Waste.

4.6.a.1.F.1. The application must contain an operator implemented program at the facility to detect and prevent attempts to dispose of hazardous wastes (regulated under Subtitle C of RCRA and defined in 40 CFR §161) and polychlorinated biphenyls (PCB) wastes at the facility (regulated under the Toxic Substances Control Act and defined in 40 CFR §161, or as reflected in W. Va. Code §22-18-1, et seq.).

4.6.a.1.F.2. Measures that solid waste facility operators must incorporate in their programs to exclude receipt of hazardous waste include at a minimum: 4.6.a.1.F.2.(a) Random inspections of incoming loads, inspection of suspicious loads, recordkeeping of inspection results (including date, time, name of the hauling firm, driver, source of waste, vehicle identification numbers, and all observations made by the inspector), training of personnel to recognize hazardous waste, and procedures for notifying proper Department authorities if a regulated hazardous waste is found at the facility, unless the permittee takes other steps approved by the Secretary in writing to ensure that incoming loads do not contain regulated hazardous wastes or PCB wastes; 4.6.a.1.F.2.(b) Records of any inspections, activities, and information must be reported on a form prescribed by the Secretary, and copies of these inspection records and all related information must be retained in the SWLF’s operating record. 4.6.a.1.F.2.(c) Training of facility personnel to recognize regulated hazardous waste and PCB wastes. These records must be maintained in the SWLFs operating record; and

4.6.a.1.F.3. Procedures for providing written notification to the Secretary as required under Subtitle C of RCRA or applicable rules and regulations promulgated under W. Va. Code §22-18-1, et seq., if a regulated hazardous waste or PCB waste is discovered at the facility.

4.6.a.1.G. Effective means must be taken to limit and control public access and prevent illegal dumping of wastes at the active disposal area to minimize exposure of the public to hazards;

4.6.a.1.H. Effective means, including the use of daily cover, must be taken to prevent or control on-site populations of disease vectors, including flies, rodents, other insects, vermin, and other organisms capable of directly or indirectly transmitting infectious diseases or pathogenic organisms from one person to another, or from an animal to a person, using techniques appropriate for the protection of human health and the environment.

4.6.a.1.I. Equipment must be provided and daily cover material made available to control accidental fires. Also, arrangements must have been made previously with the local fire protection agency to utilize their services when needed;

4.6.a.1.J. An attendant must be on duty at the facility at all times while it is open for public use;

4.6.a.1.K. A gate must be provided at the entrance to the operation and it must be kept locked when an attendant is not on duty;

4.6.a.1.L. The gate area must be policed at the beginning of each day of operation to remove any solid waste that has been indiscriminately dumped during periods when the facility was closed;

4.6.a.1.M. A sign acceptable to the Secretary must be posted at the entrance of any facility operated for public use, which indicates the facility name, permit number, the hours that solid waste is received, the hours of operation, including hours for exempt disposal of solid waste, waste types accepted, penalties for unauthorized use, necessary safety precautions, and any other pertinent information. Such signs must be posted and maintained for the duration of the active life of the SWLF, be clearly visible, readable, and uniform throughout the operation, be permanently fixed, and made of durable material;

4.6.a.1.N. The facility must be surrounded with rapidly growing trees, shrubbery, fencing, berms, or other appropriate means to screen it from the surrounding area and to provide a wind break;

4.6.a.1.O. Means acceptable to the Secretary must be taken to control dust resulting from facility operation;

4.6.a.1.P. Daily cover must be applied to the active disposal area to control the prohibited act of scavenging;

4.6.a.1.Q. All burning is prohibited in accordance with statutes, rules and regulations of the Division of Air Quality;

4.6.a.1.Q.1. All open burning of solid waste, except for the infrequent burning of land clearing debris, diseased trees, or debris from emergency clean-up operations, except as approved by the Division of Air Quality, is prohibited at all SWLFs.

4.6.a.1.R. Provisions must be made for backup equipment in the event of operating equipment breakdown;

4.6.a.1.S. All topsoil within the facility construction limits must be salvaged and stored within the property boundaries for use in facility closure. All stockpiled soil material that is not anticipated to be used within six (6) months must be seeded; and

4.6.a.1.T. All access roads to the active area of the operation must be maintained in good condition so as to prevent sedimentation of drainage ways.

4.6.a.1.U. The operator must also prevent and eliminate conditions not otherwise prohibited by this rule that are harmful to the environment or public health or that create safety hazards, odors, dust, noise, unsightliness, and other public nuisances.

4.6.b. Solid Waste Placement.

4.6.b.1. Solid Waste Placement and Compaction.

4.6.b.1.A. Working Faces. -- Solid waste must be placed for disposal only at designated working faces. Working face width must be minimized and must not exceed one hundred (100) feet unless otherwise approved by the Secretary. The slopes of working faces must not exceed thirty-three and one-third percent (33⅓%). To prevent lateral migration of leachate through the final cover, all daily and intermediate cover from each lift of solid waste within twenty-five (25) feet of the final cover must be removed.

4.6.b.1.B. Daily Cell Height. -- Daily cell height must not exceed eight (8) feet in the vertical dimension except in the middle area of the daily cell to divert storm water. The vertical dimension of the middle area of the daily cell must not exceed eleven (11) feet.

4.6.b.1.C. Layering and Compaction. -- Solid waste must be placed in layers not exceeding two (2) feet in depth and compacted with a minimum of three (3) passes with an 815 Caterpillar compactor or other equipment of equivalent compacting ability, or as otherwise approved by the Secretary.

4.6.b.2. Cover Material Application.

4.6.b.2.A. Daily Cover. -- Except as provided in subparagraph 4.6.b.2.B, the permittee of all SWLFs must cover the entire exposed solid waste disposal area with a minimum thickness of six (6) inches of compacted cover material at the end of each operating day, or at more frequent intervals if necessary, to control disease vectors, fires, odors, blowing litter, and scavenging.

4.6.b.2.A.1. Alternative materials of an alternative thickness (other than at least six (6) inches of earthen material) may be approved by the Secretary if the permittee demonstrates in writing that the alternative material and thickness does or will control disease vectors, fires, odors, windblown material, and scavenging and does not present a threat to human health and the environment.

4.6.b.2.A.2. The Secretary may grant a temporary waiver from the requirement of subparagraph 4.6.b.2.A and part 4.6.b.2.A.1 if the permittee demonstrates that there are extreme seasonal climatic conditions that make meeting such requirements impractical.

4.6.b.2.B. Intermediate Cover. -- Solid waste fill surfaces that will remain exposed to weather for periods in excess of thirty (30) days must have a minimum of twelve (12) inches of compacted cover material applied within thirty (30) days of completion of the fill surface.

4.6.b.2.C. Final Cover. -- Solid waste fill surfaces that will receive no further solid waste deposits must place final cover in accordance with subparagraph 6.1.e.1.A of this rule.

4.6.b.2.D. Availability. -- Cover material must be available from the facility site or other designated sources in sufficient quantities to provide:

4.6.b.2.D.1. Six (6) inches of compacted daily cover material.

4.6.b.2.D.2. Twelve (12) inches of compacted intermediate cover material.

4.6.b.2.D.3. Sufficient cover material, as required in paragraph 4.6.b.2 and section 6 of this rule.

4.6.b.3. Waste Placement in Winter. -- For the installation of all liners, a layer of waste at least four (4) feet thick, or an adequate amount of other frost protection material, must be placed over the granular blanket in all portions of the lined area prior to December 31 of the same year in which the liner was constructed. During the winter, waste must not be placed on any portion of the liner not having a four (4) foot thick layer of waste or other adequate frost protection material covering it after December 31 of each year. Those portions of the liner must be investigated for density and effects from freeze-thaw as specified by the Secretary and must be repaired and recertified during the next construction season if required, prior to additional waste placement. These requirements may be waived by the Secretary upon the request of the permittee.

4.7. Acceptable and Unacceptable Wastes.

4.7.a. Acceptable Wastes. -- SWLF’s may receive the following types of solid wastes, as authorized by the facility’s permit or by written permission of the Secretary that such waste is acceptable:

4.7.a.1. Agricultural waste;

4.7.a.2. Commercial waste;

4.7.a.3. Compost;

4.7.a.4. Construction waste;

4.7.a.5. Debris;

4.7.a.6. Demolition waste;

4.7.a.7. Discarded material;

4.7.a.8. Garbage;

4.7.a.9. Household waste;

4.7.a.10. Industrial waste;

4.7.a.11. Inert waste;

4.7.a.12. Municipal solid waste;

4.7.a.13. Non-municipal incinerator ash;

4.7.a.14. Putrescible waste;

4.7.a.15. Refuse;

4.7.a.16. Residential waste;

4.7.a.17. Rubbish;

4.7.a.18. Scrap metal;

4.7.a.19. Sludge;

4.7.a.20. Trash;

4.7.a.21. Bulky goods;

4.7.a.22. Other materials approved by the Secretary; and

4.7.a.23. Properly treated infectious wastes.

4.7.b. Unacceptable wastes. -- Landfills may not receive the following wastes under any conditions, unless otherwise approved by the Secretary:

4.7.b.1. Free liquids;

4.7.b.2. Hazardous wastes as defined in 40 CFR §261.3 that are not excluded from regulation as hazardous wastes under 40 CFR §261.4(b);

4.7.b.3. Unstabilized sewage sludge or sludges that have not been dewatered, or contain less than twenty percent (20%) solids by weight;

4.7.b.4. Pesticide containers that have not been triple rinsed and crushed;

4.7.b.5. Drums that are not empty and not crushed, except as provided under paragraph 4.13.e of this rule;

4.7.b.6. Waste that may be infectious waste, or is recognizable treated noninfectious medical waste as defined in section 2 of this rule, must be labeled prior to being transported off-site. Treated medical waste that will pass through a screen with a one-half inch (½”) grid is not considered recognizable. The label must be sized and attached in the manner required by the Department of Health & Human Resources’ rule “Infectious Medical Waste,” 64CSR56 §6.3.a unless:

4.7.b.6.A. The waste was generated by a household or by an individual during self-care or self-treatment; or

4.7.b.6.B. The waste has not been compacted and is accompanied by a label, manifest, or shipping document that:

4.7.b.6.B.1. Identifies the generator of the waste by name, address and business telephone number of the generator;

4.7.b.6.B.2. Identifies the name, address and business telephone number of the generator of the facility at which the waste was rendered noninfectious;

4.7.b.6.B.3. Identifies the amount of waste rendered noninfectious by weight, volume, or number of containers, and the method of treatment;

4.7.b.6.B.4. Includes a signed and dated certification by the facility at which the waste was rendered noninfectious that states: “I hereby certify under penalty of law that this waste has been rendered noninfectious in accordance with procedures required by the Infectious Medical Waste rule, 64CSR56;” and

4.7.b.6.B.5. Maintained on file at the municipal solid waste facility receiving that waste for final disposal, with the exception that labels permanently attached to the waste are not required to be maintained on file.

4.7.b.7. Covered Electronic Devices as defined by W. Va. Code §22-15A-22.

4.7.c. Wastes Acceptable under Certain Conditions.

4.7.c.1. The waste has been rendered noninfectious. Certifications establishing the wastes as noninfectious must be maintained for a period of three (3) years at the facility receiving the waste for disposal.

4.7.c.2. Waste containing PCBs at concentrations of fifty parts per million (50 ppm) or greater;

4.7.c.3. Municipal incinerator ash, except as provided in subdivision 4.13.j of this rule; or

4.7.c.4. Petroleum-contaminated soils, except as provided in subdivision 4.13.k of this rule.

4.8. Leachate Management.

4.8.a. General Requirements.

4.8.a.1. Leachate must be removed from all collection tanks, manholes, lift stations, sumps, or other structures used for solid waste leachate storage as often as necessary to allow for gravity drainage of leachate from the facility at all times.

4.8.a.2. Any liquid that comes in contact with waste or accumulates in a portion of the facility where active waste disposal operations are occurring must be handled as leachate and properly treated as specified in subsection 4.8 of this rule unless otherwise approved by the Secretary in writing.

4.8.a.3. All leachate collection and detection lines must be cleaned and maintained with a water jet cleanout device or equivalent immediately after construction, after the first layer of waste has been placed over an entire phase, and annually thereafter.

4.8.a.4. Except as otherwise provided in paragraphs 4.8.a.5 through 4.8.a.6 of this rule, leachate must be collected, treated, and then directly discharged into a POTW or other treatment facility permitted by the Department. In addition, the operator must operate a leachate treatment facility as provided in paragraph 4.8.a.7 of this rule within three (3) years following the detection of leachate in the collection or handling system, unless otherwise approved by the Secretary. In the case of an industrial solid waste landfill, the leachate collection and treatment facility must be in place and operable prior to the commencement of landfill operations.

4.8.a.5. Leachate may be collected, treated on-site, and then discharged into a receiving stream under a permit issued by the Department under W. Va. Code §22-11-1, et seq. and the rules and regulations promulgated thereunder, if the Secretary approves this method in the solid waste facility permit issued under this rule. On-site treatment and discharge to a receiving stream will not be allowed unless direct discharge into a POTW or other permitted facility is not reasonably possible.

4.8.a.6. Except for industrial solid waste landfills, leachate may be collected, treated on-site, and then be applied to land via spray irrigation on a temporary basis if the Secretary approves this method in the solid waste facility permit issued under this rule. On-site treatment and subsequent land application will not be allowed unless, at a minimum:

4.8.a.6.A. Discharge into a POTW or other permitted treatment facility is not possible;

4.8.a.6.B. Discharge of the treated leachate into a receiving stream in a manner consistent with W. Va. Code §22-11-1, et seq. and the rules and regulations promulgated thereunder is not attainable; and

4.8.a.6.C. Temporary spray irrigation is approved in the municipal solid waste facility permit issued under this rule.

4.8.a.7. Except for industrial solid waste landfills, for the first three (3) years following initial discharge of leachate into the collection and handling system, but not thereafter unless otherwise approved by the Secretary, leachate may be handled by vehicular transportation to and leachate treatment at an off-site treatment facility. The continued use of vehicular transportation of leachate to an off-site treatment facility will not be allowed unless, at a minimum, one of the following applies:

4.8.a.7.A. If the Secretary determines that a direct discharge into a POTW or other permitted treatment facility is not reasonably attainable; and

4.8.a.7.B. If the Secretary determines that a discharge of treated leachate into a receiving stream in a manner consistent with W. Va. Code §22-11-1, et seq. and the rules promulgated thereunder is not attainable without potential degradation of the receiving stream within three (3) years.

4.8.a.8. If a permittee using vehicular transportation to and treatment at an off-site treatment facility loses the ability to dispose of leachate at that facility and is unable to secure an alternative off-site treatment facility acceptable to the Secretary within fifteen (15) days from loss of its approved treatment facility, implementation of the treatment plan required by paragraph 4.8.a.6.A of this rule must begin immediately. This leachate treatment system must be completed and operational by the date on which off-site treatment becomes unavailable.

4.8.a.9. Except for industrial solid waste landfills, in conjunction with any of the treatment methods in subdivision 4.8.a of this rule, the temporary recirculation of leachate may be utilized if the following conditions exist:

4.8.a.9.A. The area subject to leachate recirculation previously has been filled with solid waste;

4.8.a.9.B. There is sufficient waste capacity to absorb the leachate;

4.8.a.9.C. The area subject to leachate recirculation is underlain by a leachate collection system and a composite liner as described in subdivision 4.5.d; and

4.8.a.9.D. Leachate recirculation is conducted with a piping system approved by the Secretary located under the intermediate cover and causes no odors, runoff, or ponding.

4.8.a.10. The permittee must immediately notify the Secretary and describe remedial steps to be taken if:

4.8.a.10.A. Operation of the leachate treatment facility under this rule cannot prevent the facility from:

4.8.a.10.A.1. Violating the terms of its permit, this rule, the Clean Water Act and the rules and regulations promulgated thereunder, or W. Va. Code §22-11-1, et seq. and the rules and regulations promulgated thereunder; or

4.8.a.10.A.2. Causing surface water pollution or groundwater degradation, contamination, or pollution;

4.8.a.10.B. The facility is generating a quality or quantity of leachate that exceeds the design capacity of the treatment system;

4.8.a.10.C. For leachate treatment plans that include vehicular transportation of leachate to an off-site treatment plant, the total flow of leachate from the solid waste facility exceeds thirty thousand (30,000) gallons in a period of thirty (30) consecutive days;

4.8.a.10.D. The contractual agreement for leachate treatment by an off-site treatment system is breached or expired; or

4.8.a.10.E. The quality or quantity of solid waste being disposed at the facility changes from that set forth in the permit.

4.8.b. Leachate Treatment System, Design, and Construction.

4.8.b.1. Tanks, containers, and impoundments for storing leachate at a solid waste facility before or during treatment must be constructed and lined in accordance with subdivisions 4.8.b and 4.8.c of this rule.

4.8.b.2. A leachate treatment system must contain impoundments or tanks for the storage of leachate prior to its treatment to effluent standards that have a flow equalization and surge capacity equal to at least thirty (30) days of the leachate production estimated from the facility.

4.8.b.3. Impoundments or tanks must be aerated as necessary to prevent and control odors.

4.8.b.4. The storage capacity of impoundments and tanks at a facility must be increased prior to each major phase of construction and as otherwise necessary.

4.8.b.5. Necessary collection and containment systems must be installed prior to the deposition of solid waste at the facility. A treatment or handling system approved by the Secretary must be installed prior to the storage or disposal of solid waste.

4.8.b.6. Construction of the leachate treatment facility and associated works must be supervised by a registered professional engineer. At the completion of construction of the facility, or at the completion of a modification to the capacity or treatment technique at the facility, the operator must submit to the Secretary a certification under the seal of a registered professional engineer that the work was completed in accordance with the plans and designs in the operator’s permit.

4.8.b.7. A modification to a leachate treatment system must be completed within one (1) year after construction is initiated, unless the Secretary specifies a shorter period of time in the permit modification.

4.8.c. Liquid Storage.

4.8.c.1. Aboveground and Onground Tank Requirements.

4.8.c.1.A. Tanks may be constructed of concrete, steel, or other material approved by the Secretary. Tanks must be designed to prevent structural failure and be supported on a well-drained stable foundation that prevents movement, rolling, or settling of the tank.

4.8.c.1.A.1. Bottoms of steel tanks that rest on earthen material must be cathodically protected with either sacrificial anodes or an impressed current system that is designed, fabricated, and installed in accordance with the approved engineering report.

4.8.c.1.A.2. The exterior surfaces of all aboveground and onground steel storage tanks must be protected by a primer coat, a bond coat, and two (2) or more final coats of paint or have at least an equivalent surface coating system designed to prevent corrosion and deterioration.

4.8.c.1.A.3. The interior of all aboveground and onground tanks must consist of a material or must be lined with a material compatible to the liquid being stored.

4.8.c.1.B. All aboveground and onground tanks must have a secondary containment system that may consist of dikes, liners, pads, ponds, impoundments, curbs, ditches, sumps or other systems capable of containing the liquid stored.

4.8.c.1.B.1. The design volume for the secondary containment system must be one hundred ten percent (110%) of the volume of either the largest tank within the containment system or the total volume of all interconnected tanks, whichever is greater.

4.8.c.1.B.2. The secondary containment system must be constructed of a material compatible with the liquid stored. The containment system must be constructed of either: 4.8.c.1.B.2.(a) A minimum one (1) foot layer of compacted soil with a maximum permeability of 1 x 10-7 centimeters per second; 4.8.c.1.B.2.(b) A concrete pad of a sufficient thickness to maintain integrity for the lifetime of the tank with a corrosion resistant coating; or 4.8.c.1.B.2.(c) A geo-synthetic liner of a minimum thickness equal to sixty (60) mils.

4.8.c.1.B.3. A system must be designed to contain and remove storm water from the secondary containment area. Provisions must be included for the removal of any accumulated precipitation (rain, snow or ice) and be initiated within twenty-four (24) hours or when ten percent (10%) of the storage capacity is reached; whichever occurs first. Disposal must be in compliance with W. Va. Code §§22-11-1, et seq., 22-15-1, et seq. and 22-12-1, et seq. and all applicable federal and state statutes, rules and regulations.

4.8.c.1.C. All aboveground and onground tanks must be equipped on the tank’s discharge side with an overfill prevention system that may include, but not be limited to: level sensors and gauges, high level alarms or automatic shutoff controls. The overfill control equipment must be inspected weekly by the facility operator to ensure it is in good working order.

4.8.c.1.D. The exposed exterior of all aboveground and onground tanks must be inspected weekly by the facility operator for adequacy of the cathodic protection system, leaks, corrosion, and maintenance deficiencies. Interior inspection of tanks must be performed whenever the tank is drained. If the inspection reveals a tank or equipment deficiency, leak or any other deficiency that could result in failure of the tank to contain the liquid, remedial measures must be taken immediately to eliminate the leak or correct the deficiency. Inspection reports must be maintained and made available to the Secretary upon request for the lifetime of the liquid storage system.

4.8.c.1.E. All uncovered tanks must have a minimum two (2) feet freeboard. Odor and vector control must be practiced when necessary.

4.8.c.2. Underground Tank Requirements.

4.8.c.2.A. Underground tank systems including tanks and piping must be placed a minimum of two (2) feet above the seasonally high groundwater table and a minimum of two (2) feet vertical separation must be maintained between bedrock and the lowest point of the tank. The tank system must be installed in accordance with manufacturer installation instructions.

4.8.c.2.B. Tank systems may be constructed of fiberglass reinforced plastic, steel that is cathodically protected and coated with a suitable dielectric material, steel that is clad with fiberglass, or any other materials approved by the Secretary.

4.8.c.2.C. The secondary containment and a continuous leak detection system must be installed in the form of a double-walled tank, designed as an integral structure so that any release from the inner tank is completely contained by the outer shell.

4.8.c.2.C.1. The interstitial space must be monitored at least once per week by the facility operator for tightness using pressure monitoring, vacuum monitoring, electronic monitoring or an approved equivalent method.

4.8.c.2.C.2. Any tank system vulnerable to corrosion must be protected from both corrosion of the primary tank interior and the external surface of the outer shell. 4.8.c.2.C.2.(a) All resistant coatings applied to the primary tank interior must be chemically compatible with the liquid to be stored. 4.8.c.2.C.2.(b) All cathodic protection systems must be tested within six (6) months of installation and at least every three (3) years thereafter unless otherwise specified by the Secretary. A deficiency in the cathodic protection system must be corrected upon discovery.

4.8.c.2.D. All underground tanks must be equipped with an overfill prevention system that may include but not be limited to: level sensors and gauges, high level alarms, or automatic shutoff controls. The overfill control equipment must be inspected weekly by the facility operator to ensure it is in good working order.

4.8.c.2.E. Inspection and leak detection monitoring reports must be maintained and made available upon request for the lifetime of the liquid storage system.

4.8.c.3. Surface Impoundment Requirements.

4.8.c.3.A. Any surface impoundment must be constructed a minimum of five (5) feet above the seasonally high groundwater table. A minimum of four (4) feet vertical separation must be maintained between the base of the constructed liner and bedrock. Any surface impoundment that meets the definition of a “dam” found in W. Va. Code §22-14-3 must first obtain a certificate of approval for a dam before a solid waste facility permit can be approved under this rule.

4.8.c.3.B. Surface impoundments subject to this rule must be constructed with a liner system consisting of a minimum of two (2) liners and a leak detection system. Surface impoundments currently in use that do not have liners and a leak detection system as prescribed in paragraph 4.8.c.3 of this rule must either be closed or retrofitted to conform to this subparagraph. Liner construction must include the following:

4.8.c.3.B.1. The top liner must be a synthetic liner with a minimum thickness equal to sixty (60) mils. A protective cover must be placed over this liner to prevent damage during clean-out operations.

4.8.c.3.B.2. A leak detection and removal system must be installed between the two (2) synthetic liners.

4.8.c.3.B.3. The lower composite liner must consist of a minimum of two (2) feet of compacted clay with a maximum permeability of 1 x 10-7 centimeters per second overlain by a synthetic liner that is at least sixty (60) mils thick.

4.8.c.3.B.4. Quality assurance and quality control testing must be performed by the project engineer in conformance with the requirements identified in subdivision 4.5.e of this rule.

4.8.c.3.C. A minimum of two (2) feet of freeboard must be maintained in all surface impoundments. Odor and vector control must be practiced when necessary.

4.8.c.3.D. A minimum of three (3) groundwater monitoring wells, one (1) upgradient and two (2) downgradient of any surface impoundment may be required to be installed and sampled at the discretion of the Secretary in accordance with this rule.

4.8.c.3.E. The Secretary may determine the liner system requirements for surface impoundments of solid waste facilities, not including municipal solid waste landfills, on a case by case basis. At a minimum, the liner system must be at least as stringent as the liner requirements for the disposal/storage cell area of the facility.

4.8.c.4. Closure of Liquid Storage Facilities.

4.8.c.4.A. The permittee or operator of the liquid storage facility must prepare a written closure plan for the liquid storage facility and submit the plan with the permit application for the solid waste management facility.

4.8.c.4.B. The permittee or operator must complete closure activities in accordance with the approved closure plan and within one hundred eighty (180) days after liquid collection has ceased.

4.8.c.4.C. At closure, all liquid and solid waste must be removed from the tank or surface impoundment, connecting lines, and any associated secondary containment systems. All solid waste removed must be properly handled and disposed of in conformance with the provisions of the Act and applicable federal and state requirements. All connecting lines must be disconnected and securely capped or plugged.

4.8.c.4.C.1. Underground tanks must be removed or thoroughly cleaned to remove traces of waste and all accumulated sediments and then filled to capacity with a solid inert material, such as clean sand or concrete slurry. If groundwater is found to be contaminated from the tank, the tank and surrounding contaminated soil must be removed and appropriately disposed. Other corrective actions to remediate the contaminant plume may be required by the Secretary.

4.8.c.4.C.2. Accessways to aboveground and onground tanks must be securely fastened in place to prevent unauthorized access. Tanks must either be stenciled with the date of permanent closure or removed. The secondary containment system must be perforated to provide for drainage.

4.8.c.4.C.3. For surface impoundments, all waste residues, contaminated system components (e.g., liners) contaminated subsoils, structures, and equipment contaminated with waste must be removed and appropriately disposed. If the groundwater surrounding the impoundment is contaminated, other corrective actions to remediate a contaminant plume may be required by the Secretary. If the groundwater surrounding the impoundment is found not to be contaminated, the liner system may remain in place if drained, cleaned to remove all traces of waste, and both liners punctured so that drainage is allowed. The impoundment must be backfilled and regraded to the surrounding topography.

4.8.d. Leachate Analysis. -- The permittee must comply with the following sampling requirements at all monitoring points of the leachate collection and detection system as prescribed by the Secretary:

4.8.d.1. On a daily basis, the flow rate and volume of flowing liquids from the leachate collection and detection systems must be determined; and

4.8.d.2. On a semiannual basis, the chemical composition of the influent leachate prior to physical and chemical treatment must be determined through the analysis of the leachate for the parameters listed in Appendix I or as specified by the facility permit or order of the Secretary.

4.9. Water Quality Standards. -- All permittees are required under the provisions of W. Va. Code §22-11-1, et seq. and the rules promulgated thereunder to comply with all applicable water quality standards.

4.10. Landfill Gas Management. -- Decomposition gases generated within a landfill must be controlled to avoid hazards to health, safety, or property. Measures to control decomposition gases must be undertaken in accordance with the following requirements:

4.10.a. Explosive Gases Control.

4.10.a.1. Effective means must be utilized by the permittee to prevent the migration of explosive gases generated in any facility structure, and to ensure that:

4.10.a.1.A. The concentration of methane or other explosive gases generated by the facility, including the waste fill, or any facility structure (excluding the leachate collection system or gas control or recovery system components) or in the soils or air at or beyond the facility property boundary does not exceed twenty-five percent (25%) of the lower explosive limit for methane or other such explosive gases in facility structures;

4.10.a.1.B. The concentration of methane and other explosive gases does not exceed the lower explosive detection limit for methane or other explosive gases at the facility property boundary; and

4.10.a.1.C. If required by the Secretary in writing, passive gas vents or other appropriate means to vent gas approved by the Secretary must be installed on disposal areas that have not received waste in six (6) months nor will receive waste in one (1) year, to control methane and other explosive gases. The number of gas vents must number a minimum of one (1) per acre.

4.10.b. Gas Monitoring Program. -- Permittees of all SWLFs must implement an ongoing (routine) explosive gas monitoring program to ensure that the standards of subdivision 4.10.a of this rule are met. The type and frequency of monitoring must be approved by the Secretary and be based on the following factors:

4.10.b.1. Soil conditions;

4.10.b.2. Hydrogeologic conditions surrounding the facility, including the disposal area;

4.10.b.3. The hydraulic conditions surrounding the facility, including the disposal site; and

4.10.b.4. The location of the any manmade or other facility structures and property boundaries.

4.10.b.5. The minimum frequency of monitoring must be quarterly.

4.10.c. Notification. -- Upon detection of methane or other explosive gas levels exceeding the limits specified in subdivision 4.10.a of this rule, the landfill owner and the appropriate officials identified in the contingency plan must:

4.10.c.1. Immediately take all necessary steps to ensure the safety and protection of human health and must immediately notify the Secretary, and

4.10.c.2. Within seven (7) days of detection, place in the operating record the methane gas levels detected and a description of the steps taken to protect human health; and

4.10.c.3. Within sixty (60) days of detection, implement a remediation plan for the methane gas releases, place a copy of the plan in the operating record, and notify the Secretary that the plan has been implemented.

4.10.c.4. The plan must describe the nature and extent of the problem and the proposed remedy.

4.10.c.5. The Secretary may establish alternative schedules for demonstrating compliance with paragraphs 4.10.c.2, 4.10.c.3, and 4.10.c.4.

4.11. Groundwater Monitoring and Corrective Action Program.

4.11.a. Groundwater Monitoring Program. -- The groundwater sampling and analysis requirements for the groundwater monitoring system are as follows:

4.11.a.1. Groundwater Sampling and Analysis Requirements. -- The ground-water monitoring program submitted by the permittee must include consistent sampling and analysis procedures that are designed to ensure monitoring results that provide an accurate representation of the groundwater quality at the background and downgradient wells installed in compliance with paragraph 3.8.d.1 after approval by the Secretary. The permittee must retain a copy in the operating record. At a minimum, the program must include procedures and techniques for:

4.11.a.1.A. Sample collection;

4.11.a.1.B. Sample preservation and shipment;

4.11.a.1.C. Analytical procedures;

4.11.a.1.D. Chain of custody control; and

4.11.a.1.E. Quality assurance and quality control.

4.11.a.2. The groundwater monitoring program must include sampling and analytical methods that are appropriate for groundwater sampling and that accurately measures hazardous constituents and other monitoring parameters in groundwater samples. The sampling and analysis methods must follow the approved quality assurance/quality control plan, and the Secretary will require resampling if he or she believes the samples were not properly sampled or analyzed.

4.11.a.2.A. Groundwater samples must not be field-filtered prior to laboratory analysis, except when monitoring for dissolved metals.

4.11.a.3. The permittee must determine groundwater flow rate and direction of groundwater in the uppermost significant aquifer at least annually.

4.11.a.3.A. The sampling procedures and frequency must be protective of human health and the environment.

4.11.a.4. The permittee must establish background groundwater quality for each of the monitoring parameters of constituents required in the particular groundwater monitoring program that applies to the facility, as determined by the Phase I or Phase II monitoring program. The minimum number of samples used to establish background groundwater quality must be consistent with the appropriate statistical procedures as specified in paragraph 4.11.a.7 of this rule.

4.11.a.5. Background quality at existing facilities may be based on sampling of wells that are not upgradient from the waste management area where:

4.11.a.5.A. Hydrogeologic conditions do not allow the permittee to determine what wells are upgradient; and

4.11.a.5.B. Sampling at other wells will provide an indication of background groundwater quality that is as representative or more representative than that provided by the upgradient wells.

4.11.a.5.C. Groundwater elevations must be measured in each well immediately prior to purging each time groundwater is sampled.

4.11.a.5.D. The permittee must determine the rate and direction of groundwater flow each time groundwater is sampled.

4.11.a.5.E. Groundwater elevations in wells that monitor the same waste management area must be measured within a period of time short enough to avoid temporal variations in groundwater flow that could preclude accurate determination of groundwater flow rate and direction.

4.11.a.5.F. The sampling procedures must be those specified in paragraph 4.11.b.2 for Phase I Detection Monitoring, paragraphs 4.11.c.2 and 4.11.c.3 for Phase II Assessment Monitoring, and subdivision 4.11.e for Corrective Action.

4.11.a.6. The permittee must determine whether there is a statistically significant increase over background values for each parameter or constituent required in the particular groundwater monitoring program that applies to the facility as determined for Phase I and Phase II monitoring programs. The permittee must make these statistical determinations each time he or she assesses groundwater quality.

4.11.a.6.A. In determining whether a statistically significant increase has occurred, the permittee must compare the groundwater quality at each monitoring well at the waste management boundary for each parameter or constituent to the background value for that parameter or constituent, according to the statistical procedures.

4.11.a.6.B. The permittee must determine whether there has been a statistically significant increase at each monitoring well at the facility boundary immediately after completion of sampling.

4.11.a.7. The permittee must employ one of the following statistical procedures in combination with the designated sampling requirement to determine a statistically significant increase. The permittee must specify in the operating record which one of the statistical methods was used in evaluating groundwater monitoring data for each hazardous constituent. The statistical test chosen must be conducted separately for each hazardous constituent in each well.

4.11.a.7.A. A parametric analysis of variance (ANOVA) followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The procedure or methods must include estimation and testing of the contrasts between each compliance (downgradient) well’s mean and the background mean levels for each constituent.

4.11.a.7.B. An analysis of variance (ANOVA) based on ranks followed by multiple comparisons procedures to identify statistically significant evidence of contamination. The procedure or method must include estimation and testing of the contrasts between each compliance (downgradient) well’s mean and the background mean levels for each constituent.

4.11.a.7.C. A tolerance or prediction interval procedure in which an interval for each constituent is established from the distribution of the background data and the level of each constituent in each compliance well is compared to the upper tolerance or prediction limit, or

4.11.a.7.D. A control chart approach that gives control limits for each constituent.

4.11.a.7.E. Another statistical test method that meets the performance standards of subparagraph 4.11.a.9.D may be utilized, provided that:

4.11.a.7.E.1. The permittee must place a justification for this alternative in the operating record and notify the Secretary of the use of this alternative test; and

4.11.a.7.E.2. The justification must demonstrate that the alternative method meets the performance standards of paragraph 4.11.a.9.

4.11.a.8. The Secretary may establish an alternative sampling procedure and statistical test for any of the constituents listed in Appendix I or II of this rule, as required to protect human health and the environment. Factors to consider for establishing this alternative statistical procedure include:

4.11.a.8.A. If the distributions for different constituents differ, more than one procedure may be needed. The permittee must show that the normal distribution is not appropriate if using a nonparametric or other methodology not requiring an assumption of normality. For any statistic not based on a normal distribution, a goodness of fit test must be conducted to demonstrate that the normal distribution is not appropriate. Other tests must be conducted to demonstrate that the assumptions of the statistic or distribution are not grossly isolated;

4.11.a.8.B. Each parameter or constituent must be tested for separately. Each time that a test is done, the test for individual constituents must be done at a type I error level no less than 0.01. A multiple comparison procedure may be used at a type I experiment-wide error rate no less than 0.05. The owner or operator must evaluate the ability of the method to detect contamination that is actually present and may be required to increase the sample size to achieve an acceptable error level;

4.11.a.8.C. The statistical procedure must be appropriate for the behavior of the parameters or constituents involved. It must include methods for handling data below the limit of detection. The permittee must evaluate different ways of dealing with values below the limit of detection and choose the one that is most protective of human health and the environment. In cases where there are a high proportion of values below limits of detection, the permittee may demonstrate that an alternative procedure is more appropriate; and

4.11.a.8.D. The statistical procedure used must account for seasonal and spatial variability and temporal correlation.

4.11.a.9. If contamination is detected by any of the statistical tests, and the Secretary or permittee suspects that detection is an artifact caused by some feature of the data other than contamination, the Secretary may specify that statistical tests of trend, seasonal variation, autocorrelation, or other interfering aspects of the data be done to establish whether the significant result is indicative of detection of contamination or resulted from natural variation.

4.11.a.9.A. The permittee must determine whether there is a statistically significant increase (or decrease, in the case of Phase I) over background values for each parameter or constituent required in the particular groundwater monitoring program that applies to the landfill, as determined under paragraph 4.11.b.1 or 4.11.c.1 of this rule. The permittee must make these statistical determinations each time he or she assesses groundwater quality at the landfill.

4.11.a.9.B. In determining whether a statistically significant increase or decrease has occurred, the permittee must compare the groundwater quality of each parameter or constituent at each monitoring well designated pursuant to subparagraph 3.8.d.1.J to the background value of that parameter or constituent, according to the statistical procedures specified under subsection 4.11 of this rule.

4.11.a.9.C. Within a reasonable time period after completing sampling and analysis as determined by the Secretary, the permittee must determine whether there has been a statistically significant increase over background at each monitoring well.

4.11.a.9.D. Any statistical method chosen under paragraph 4.11.a.7 must comply with the following performance standards, as appropriate:

4.11.a.9.D.1. The statistical method used to evaluate groundwater monitoring data must be appropriate for the distribution of chemical parameters or hazardous constituents.

4.11.a.9.D.2. If the distribution of the chemical parameters or hazardous constituents is shown by the permittee to be inappropriate for a normal theory test, then the data should be transformed or a distribution-free theory test should be used.

4.11.a.9.D.3. If the distributions for the constituents differ, more than one statistical method may be needed.

4.11.a.9.E. If an individual well comparison procedure is used to compare an individual compliance well constituent concentration with background constituent concentrations or a groundwater protection standard, the test must be done at a Type I error level no less than 0.01 for each testing period.

4.11.a.9.E.1. If a multiple comparisons procedure is used, the Type I experiment wise error rate for each testing period must be no less than 0.05; however, the Type I error of no less than 0.01 for individual well comparisons must be maintained.

4.11.a.9.E.2. This performance standard does not apply to tolerance intervals, prediction intervals, or control charts.

4.11.a.9.F. If a control chart approach is used to evaluate groundwater monitoring data, the specific type of control chart and its associated parameter values must be protective of human health and the environment.

4.11.a.9.F.1. The parameters must be determined after considering the number of samples in the background data base, the data distribution, and the range of the concentration values for each constituent of concern.

4.11.a.9.G. If a tolerance interval or a predictional interval is used to evaluate groundwater monitoring data, the levels of confidence and, for tolerance intervals, the percentage of the population that the interval must contain, and must be protective of human health and the environment.

4.11.a.9.G.1. These parameters must be determined after considering the number of samples in the background data base, the data distribution, and the range of the concentration values for each constituent of concern.

4.11.a.9.H. The statistical method must account for data below the limit of detection with one or more statistical procedures that are protective of human health and the environment.

4.11.a.9.H.1. Any practical quantitation limit (PQL) that is used in the statistical method must be the lowest concentration level that can be reliably achieved within specified limits of precision and accuracy during routine laboratory operating conditions that are available to the facility, as must be a concentration level less than the maximum contamination level (MCL) referenced in Appendix III to this rule.

4.11.a.9.I. If necessary, the statistical method must include procedures to control or correct for seasonal and spatial variability as well as temporal correlation in the data.

4.11.a.10. Once established at a SWLF, groundwater monitoring must be conducted throughout the active life and post-closure care period of that SWLF as specified in section 6 of this rule.

4.11.a.11. The permittee may request the Secretary to establish an alternative schedule(s) for demonstrating compliance with subdivision 3.8.d, pertaining to notification of placement of certification in the operating record; subdivisions 4.11.b pertaining to notification that statistically significant increase (SSI) notice is in the operating record; subdivision 4.11.b and paragraph 4.11.c.2, pertaining to an assessment monitoring program; subdivision 4.11.c, pertaining to sampling and analyzing Appendix II constituents; subparagraph 4.11.c.4.B pertaining to placement of notice (Appendix II constituents detected) in the operating record and notification of notice in the operating record; paragraph 4.11.c.7, pertaining to sampling for Appendix I and II to this rule; paragraph 4.11.c.7, pertaining to notification (and placement of notice in operating record) of SSI above groundwater protection standard; subdivisions 4.11.e and 4.11.f, pertaining to assessment of corrective measures; and subdivision 4.11.g, pertaining to selection of remedy and notification of placement in the operating record; alternative corrective action measures and notification of placement in the operating record; and certification of remedy completion and notification of placement in the operating record.

4.11.b. Phase I Detection Monitoring Program.

4.11.b.1. Program Requirements. -- A Phase I Detection Monitoring Program is required for all groundwater monitoring wells at all landfills and solid waste disposal surface impoundments except as otherwise provided in subdivision 4.11.c of this rule.

4.11.b.2. At a minimum, a Phase I detection monitoring program for commercial solid waste facilities must include the monitoring parameters listed in Appendix I, or as specified in the facility permit or order of the Secretary. For Class F solid waste facilities, the Secretary will specify in the permit those parameters to be included in a Phase I monitoring program as appropriate for the types of waste to be disposed in a particular solid waste facility or that are reasonably expected to be present. Such proposed monitoring parameters must be submitted to the Secretary as part of the permit application process. For coal combustion by-product facilities, the monitoring parameters must consist of some combination of the following: pH, temperature, alkalinity, hardness, total dissolved solids, total suspended solids, specific conductance, total organic carbon, calcium, magnesium, sodium, iron, manganese, aluminum, chloride, sulfate, arsenic, copper, nickel, selenium, zinc, barium, mercury, total and hexavalent chromium, lead, boron, molybdenum, cadmium, and vanadium.

4.11.b.2.A. The Secretary may delete any of the Appendix I monitoring parameters for a SWLF if it can be shown that the removed constituents are not reasonably expected to be contained in or derived from the waste contained in the SWLF.

4.11.b.2.B. The Secretary may establish an alternative list of inorganic indicator parameters for a SWLF in lieu of some or all of the heavy metals (constituents in Appendix I to this rule), if the alternative parameters provide a reliable indication of inorganic releases from the SWLF to the groundwater.

4.11.b.2.B.1. In determining alternative parameters, the Secretary may consider the following factors: 4.11.b.2.B.1.(a) The types, quantities, and concentrations of constituents in waste managed at the SWLF; 4.11.b.2.B.1.(b) The mobility, stability, and persistence of waste constituents or their reaction products in the unsaturated zone beneath the SWLF; 4.11.b.2.B.1.(c) The detectability of indicator parameters, waste constituents, and reaction products in the groundwater; and 4.11.b.2.B.1.(d) The concentration or values and coefficients of variation of monitoring parameters or constituents in the groundwater background.

4.11.b.3. Phase I Sampling and Analysis Procedures.

4.11.b.3.A. The monitoring frequency for all constituents listed in Appendix I of this rule must be at least twice a year during the active life of the facility, including closure and the post-closure periods. The Secretary may require more frequent monitoring on a site-specific basis by considering aquifer flow rate and existing quality of the groundwater.

4.11.b.3.B. A minimum of four independent samples from each well (background and downgradient) must be collected and analyzed in accordance with subparagraph 4.11.b.2.B, during the first semiannual sampling event.

4.11.b.3.C. At least one sample from each well (background and downgradient) must be collected and analyzed during subsequent semiannual sampling events.

4.11.b.3.D. The Secretary may specify an appropriate alternative frequency for repeated sampling and analysis for Appendix I constituents or the alternative list approved in accordance with subparagraph 4.11.b.2.B, during the active life (including closure) and the post-closure care period.

4.11.b.3.E. The alternative frequency during the active life (including closure) must be no less than annual.

4.11.b.3.F. The alternative frequency must be based on consideration of the following factors:

4.11.b.3.F.1. Lithology of the aquifer and unsaturated zone;

4.11.b.3.F.2. Hydraulic conductivity of the aquifer and unsaturated zone;

4.11.b.3.F.3. Groundwater flow rates;

4.11.b.3.F.4. Minimum distance between upgradient edge of the SWLF and downgradient monitoring well screen (minimum distance of travel); and

4.11.b.3.F.5. Resource value of the aquifer.

4.11.b.4. Unless otherwise directed by the Secretary, if the permittee determines, pursuant to this rule, that there is a statistically significant increase over background for one or more of the constituents listed in Appendix I to this rule or in the alternative list approved in accordance with subparagraph 4.11.b.2.B, Phase I parameter at the boundary specified under subparagraph 3.8.d.1.J the permittee must:

4.11.b.4.A. Within fourteen (14) days, place a notice in the operating record indicating which constituents have shown statistically significant changes from background levels and notify the Secretary that this notice was placed in the operating record;

4.11.b.4.B. Within thirty (30) days, repeat the sampling of the groundwater in all appropriate monitoring wells as approved by the Secretary and determine the concentration of all constituents designated in paragraph 4.11.b.2 of this rule that are present in the groundwater; and

4.11.b.4.C. If the repeat sampling indicates that no statistically significant increase over background levels has occurred, continue monitoring at the Phase I level; or

4.11.b.4.D. If the repeat sampling confirms that a statistically significant increase over background levels has occurred, establish a Phase II assessment monitoring program meeting the requirements of subdivision 4.11.c of this rule within ninety (90) days of confirmation, except as provided for in paragraph 4.11.b.3.

4.11.b.5. Other Source Determination.

4.11.b.5.A. The permittee may demonstrate that a source other than a SWLF caused the contamination or that the statistically significant increase resulted from error in sampling, analysis, statistical evaluation, or natural variation in groundwater quality. A report documenting this demonstration must be certified by a qualified groundwater scientist approved by the Secretary and be placed in the operating record.

4.11.b.5.B. If the Secretary agrees that a successful demonstration has been made and documented, the permittee may resume Phase I Detection Monitoring as specified in this rule.

4.11.b.5.C. If, after ninety (90) days, a successful demonstration has not been made, the permittee must continue a Phase II Assessment Monitoring Program as required in subdivision 4.11.c.

4.11.c. Phase II Assessment Monitoring Program.

4.11.c.1. A Phase II assessment monitoring program is required whenever statistically significant increases over background have been detected between background and downgradient monitoring wells for one or more constituents listed in Appendix I or in the alternative list approved by the Secretary in accordance with subparagraph 4.11.b.2.B.

4.11.c.2. Phase II Sampling and Analysis Procedures. -- A Phase II monitoring program must include semiannual monitoring of all constituents identified in Appendix II of this rule in addition to specified Phase I parameters, or in the case of Class F solid waste facilities, those specified by the Secretary unless waived by the Secretary upon request of the permittee.

4.11.c.2.A. Within ninety (90) days of triggering an assessment monitoring program, and annually thereafter, the permittee must sample and analyze the groundwater for all constituents identified in Appendix II of this rule.

4.11.c.2.B. A minimum of one (1) sample from each downgradient well must be collected and analyzed during each sampling event.

4.11.c.2.C. For any constituent detected in the downgradient wells as the result of the complete Phase II analysis, a minimum of four (4) independent samples from each well (background and downgradient) must be collected and analyzed to establish background for new constituents.

4.11.c.2.D. The Secretary may specify an appropriate subset of wells to be sampled and analyzed for Phase II constituents during assessment monitoring.

4.11.c.2.E. The Secretary may delete any of the Phase II monitoring parameters for a SWLF if it can be shown that the removed constituents are not reasonably expected to be in or derived from the waste contained in the SWLF.

4.11.c.2.F. For those Phase II constituents that are determined to be below the detectable limits of the standard analytical methods, the Secretary may reduce the required monitoring frequency. In no case may the monitoring frequency be less than once per year.

4.11.c.2.G. If the permittee finds no Phase II constituent in groundwater during the initial sampling made pursuant to a Phase II assessment monitoring program, the permittee may petition the Secretary for a reinstatement of the Phase I monitoring program. Within ninety (90) days of the receipt of such a petition, the Secretary may either approve or deny the petition and notify the permittee of the decision in writing.

4.11.c.3. The Secretary may specify an appropriate alternative frequency for repeated sampling and analysis for the full set of Appendix II constituents required by paragraph 4.11.c.2 of this rule during the active life (including closure) and post-closure care of the SWLF considering the following factors:

4.11.c.3.A. Lithology of the aquifer and unsaturated zone;

4.11.c.3.B. Hydraulic conductivity of the aquifer and unsaturated zone;

4.11.c.3.C. Groundwater flow rates;

4.11.c.3.D. Minimum distance between upgradient edge of the SWLF and downgradient monitoring well screen (minimum distance of travel);

4.11.c.3.E. Resource value of the aquifer; and

4.11.c.3.F. Nature (fate and transport) of any constituents detected in response to this subparagraph.

4.11.c.4. Recording and resampling.

4.11.c.4.A. After obtaining the results from the initial or subsequent sampling events required in paragraph 4.11.c.2, the permittee must, within fourteen (14) days, place a notice in the operating record identifying the Phase II constituents that have been detected, and notify the Secretary that this notice has been placed in the operating record;

4.11.c.4.B. Required Permittee Resampling Procedures for Phase II Events.

4.11.c.4.B.1. Within ninety (90) days, and on at least a semiannual basis thereafter, resample all wells specified by subdivision 3.8.d. The permittee must conduct analyses for all constituents in Appendix I to this rule or in the alternative list approved in accordance with subdivision 4.11.b and for those constituents in Appendix II to this rule that are detected in response to paragraph 4.11.b.3 and record their concentrations in the facility operating record.

4.11.c.4.B.2. At least one sample of each well (background and downgradient) must be collected and analyzed during these sampling events.

4.11.c.4.B.3. The Secretary may specify an alternative monitoring frequency during the active life (including closure) and post-closure period for the constituents referred to in this part.

4.11.c.4.B.4. The alternative frequency for Appendix I constituents, or the alternative list approved in accordance with subparagraph 4.11.b.2.B, during the active life (including closure) must be no less than annual.

4.11.c.4.B.5. The alternative frequency must be based on consideration of the factors specified in paragraph 4.11.c.3.

4.11.c.4.C. Establish background concentrations for any constituents detected pursuant to paragraph 4.11.c.2 or 4.11.c.4, and

4.11.c.4.D. Groundwater Protection Standards.

4.11.c.4.D.1. Establish groundwater protection standards for all constituents detected pursuant to paragraph 4.11.c.2 or 4.11.c.4.

4.11.c.4.D.2. The groundwater protection standards must be established in accordance with paragraph 4.11.c.8 or 4.11.c.9.

4.11.c.5. If the concentrations of all Phase II constituents are shown to be at or below background values, using the statistical procedures in paragraphs 4.11.a.7 and 4.11.a.8 of this rule, for two consecutive sampling events, the permittee must notify the Secretary of this finding and may return to Phase I detection monitoring.

4.11.c.6. If the concentrations of any Phase II constituents are above background values, but all concentrations are below the groundwater protection standard established in paragraphs 4.11.c.8 or 4.11.c.9, using the statistical procedures in paragraphs 4.11.a.7 and 4.11.a.8 of this rule, the permittee must continue assessment monitoring in accordance with this rule.

4.11.c.7. Statistically Significant Level Above Groundwater Protection Standards.

4.11.c.7.A. If one or more Phase II constituents are detected at statistically significant levels above groundwater protection standard established in paragraph 4.11.c.8 or 4.11.c.9 in any sampling event, the permittee must, within fourteen (14) days of this finding, place a notice in the operating record identifying the Phase II constituents that have exceeded the groundwater protection standard and notify the Secretary and all appropriate local government officials that the notice has been placed in the operating record. The permittee must also:

4.11.c.7.A.1. Characterize the nature and extent of the release by installing additional monitoring wells as necessary;

4.11.c.7.A.2. Install at least one additional monitoring well at the facility boundary in the direction of contaminant migration and sample this well in accordance with subparagraph 4.11.c.4.B;

4.11.c.7.A.3. Notify all persons who own the land or reside on the land that directly overlies any part of the plume of contamination if contaminants have migrated off-site if indicated by sampling of wells in accordance with paragraph 4.11.c.7; and

4.11.c.7.A.4. Initiate an assessment of corrective measures as required by subdivision 4.11.e of this rule within ninety (90) days; or

4.11.c.7.B. Other Source of Statistically Significant Increase (SSI) Determination.

4.11.c.7.B.1. The permittee may demonstrate that a source other than a SWLF caused the contamination, or that the SSI resulted from error in sampling, analysis, statistical evaluation, or natural variation in groundwater quality.

4.11.c.7.B.2. A report documenting this demonstration must be certified by a qualified groundwater scientist and approved by the Secretary of an approved state and placed in the operating record.

4.11.c.7.B.3. If the Secretary agrees that a successful demonstration has been made, the permittee must continue monitoring in accordance with the assessment (Phase II) monitoring program pursuant to subdivision 4.11.c, and may return to Phase I detection monitoring if the Phase II constituents upon resampling are at or below background as specified in paragraph 4.11.c.5.

4.11.c.7.B.4. Until the Secretary agrees that a successful demonstration has been made, the permittee must continue to comply with paragraph 4.11.c.7, including initiating an assessment of corrective measures.

4.11.c.8. Establishment of Groundwater Protection Standards.

4.11.c.8.A. The permittee must establish a groundwater protection standard for each Phase II constituent detected in the groundwater.

4.11.c.8.B. The groundwater protection standard must be as follows:

4.11.c.8.B.1. For constituents for which a maximum contaminant level (MCL) has been promulgated under section 1412 of the Safe Drinking Water Act, codified at 40 C.F.R. §141, or groundwater standards listed in 47CSR12, or the MCL for that constituent;

4.11.c.8.B.2. For constituents for which MCLs have not been promulgated, the background concentration for the constituent established from wells in accordance with subdivision 3.8.d; or

4.11.c.8.B.3. For constituents for which the background level is higher than the MCL identified in paragraph 4.11.c.8, or health-based levels identified in paragraph 4.11.c.9 for the background concentration.

4.11.c.9. Alternative Groundwater Protection Standards.

4.11.c.9.A. The Secretary may consider an alternative groundwater protection standard in consultation with the environmental water quality board pursuant to 47CSR57 for constituents for which water quality standards have not been established.

4.11.c.9.B. These groundwater protection standards must be appropriate health-based levels that satisfy the following criteria:

4.11.c.9.C. The level is derived in a manner consistent with EPA guidelines for assessing the health risks of environmental pollutants (51 FR 33992, 34006, 34014, 34028, September 24, 1986);

4.11.c.9.D. The level is based on scientifically valid studies conducted in accordance with the Toxic Substances Control Act, Good Laboratory Practice Standards (40 C.F.R. §792) or equivalent;

4.11.c.9.E. For carcinogens, the level represents a concentration associated with an excess lifetime cancer risk level (due to continuous lifetime exposure) with the 1 x 10-4 to 1 x 10-6 range; and

4.11.c.9.F. Systemic Toxicants.

4.11.c.9.F.1. For systemic toxicants, the level represents a concentration to which the human population (including sensitive subgroups) could be exposed on a daily basis that is likely to be without appreciable risk of deleterious effects during a lifetime.

4.11.c.9.F.2. For purposes of this paragraph, systemic toxicants include toxic chemicals that cause effects other than cancer or mutation.

4.11.c.10. In establishing groundwater protection standards under paragraph 4.11.c.9, the Secretary may consider the following:

4.11.c.10.A. Multiple contaminants in the groundwater;

4.11.c.10.B. Exposure threats to sensitive environmental receptors; and

4.11.c.10.C. Other site-specific exposure or potential exposure to groundwater.

4.11.d. (Reserved).

4.11.e. Assessment of Corrective Measures. -- Whenever a statistically significant increase is found in a Phase II monitoring parameter, or when groundwater contamination is otherwise identified by the Secretary at sites without monitoring programs, which is determined by the Secretary to have resulted in a significant adverse effect on an aquifer and which is attributable to a solid waste facility, the Secretary may require appropriate corrective or remedial action pursuant to this Act, the Water Pollution Control Act or the Groundwater Protection Act to abate, remediate or correct such pollution. Any such corrective or remedial action order must take into account any applicable groundwater quality protection standards and/or background groundwater quality, pursuant to the requirements of the Groundwater Protection Act, W. Va. Code §22-12-1, et seq., the existing use of such waters, the reasonable uses of such waters, background water quality, and the protection of human health and the environment.

4.11.e.1. Within ninety (90) days of finding that any of the constituents listed in Appendix II have been detected at a statistically significant level exceeding the groundwater protection standards defined in paragraph 4.11.c.8 or 4.11.c.9 of this rule, the permittee must initiate an assessment of corrective measures.

4.11.e.1.A. Such an assessment must be completed within a period of time as agreed to in writing by the Secretary.

4.11.e.2. The permittee must continue to monitor in accordance with the assessment monitoring program as specified in subdivision 4.11.c.

4.11.e.3. The assessment must include an analysis of the effectiveness of potential corrective measures in meeting all of the requirements and objectives of the remedy as described in subdivision 4.11.f, addressing at least the following:

4.11.e.3.A. The performance, reliability, ease of implementation, and potential impacts of appropriate potential remedies, including safety impacts, cross-media impacts, and control of exposure to any residual contamination;

4.11.e.3.B. The time required to begin and complete the remedy;

4.11.e.3.C. The costs of remedy implementation; and

4.11.e.3.D. The institutional requirements, such as state or local permit requirements or other environmental or public health requirements that may substantially affect implementation of the remedy(ies).

4.11.e.4. The permittee must discuss the results of the corrective measures assessment prior to the selection of remedy in a public meeting with interested and affected parties.

4.11.f. Selection of Remedy.

4.11.f.1. Based on the results of the corrective measures assessment conducted pursuant to subdivision 4.11.e, the permittee must select a remedy that, at a minimum, meets the standards listed in paragraph 4.11.f.2.

4.11.f.1.A. The permittee must notify the Secretary, within fourteen (14) days of selecting a remedy, by sending him or her a report describing the selected remedy, stating that it has been placed in the operating record, and describing how it meets the standards in paragraph 4.11.f.2.

4.11.f.2. Remedies must:

4.11.f.2.A. Be protective of human health and the environment and maintain existing groundwater quality, pursuant to the requirements of the Groundwater Protection Act, W. Va. Code §22-12-1, et seq.;

4.11.f.2.B. Attain the groundwater protection standard as specified in paragraphs 4.11.c.8 or 4.11.c.9;

4.11.f.2.C. Control the source(s) of releases so as to reduce or eliminate further releases of Phase II constituents into the environment; and

4.11.f.2.D. Comply with standards for management of wastes as specified in paragraph 4.11.g.4.

4.11.f.3. In selecting a remedy that meets the standards of paragraph 4.11.f.2, the permittee must consider the following evaluation factors:

4.11.f.3.A. The long and short-term effectiveness and protectiveness of the potential remedy(ies), along with the degree of certainty that the remedy(ies) will prove successful based on consideration of the following:

4.11.f.3.A.1. Magnitude of reduction of existing risks;

4.11.f.3.A.2. Magnitude of residual risks in terms of likelihood of further releases due to waste remaining following implementation of a remedy;

4.11.f.3.A.3. The type and degree of long-term management required, including monitoring, operation, and maintenance;

4.11.f.3.A.4. Short-term risks that might be posed to the community, workers, or the environment during implementation of such a remedy, including potential threats to human health and the environment associated with excavation, transportation, and re-disposal of containment;

4.11.f.3.A.5. Time until full protection is achieved;

4.11.f.3.A.6. Potential for exposure of humans and environmental receptors to remaining wastes, considering the potential threat to human health and the environment associated with excavation, transportation, re-disposal, or containment;

4.11.f.3.A.7. Long-term reliability of the engineering and institutional controls; and

4.11.f.3.A.8. Potential need for replacement of the remedy.

4.11.f.3.B. The effectiveness of the remedy in controlling the source to reduce further releases based on consideration of the following factors:

4.11.f.3.B.1. The extent to which containment practices will reduce further releases;

4.11.f.3.B.2. The extent to which treatment technologies may be used;

4.11.f.3.C. The ease or difficulty of implementing a potential remedy(ies) based upon consideration of the following types of factors:

4.11.f.3.C.1. Degree of difficulty associated with constructing the technology;

4.11.f.3.C.2. Expected operational reliability of the technologies;

4.11.f.3.C.3. Need to coordinate with and obtain necessary approvals and permits from other agencies;

4.11.f.3.C.4. Availability of necessary equipment and specialists; and

4.11.f.3.C.5. Available capacity and location of needed treatment, storage, and disposal services.

4.11.f.3.D. Practicable capability of the permittee, including a consideration of the technical and economic capability.

4.11.f.3.E. The degree to which community concerns are addressed by a potential remedy(ies).

4.11.f.4. The permittee must specify as part of the selected remedy a schedule(s) for initiating and completing remedial activities.

4.11.f.4.A. Such a schedule must require the initiation of remedial activities within period of time agreed to in writing by the Secretary, taking into consideration the factors set forth in paragraph 4.11.f.4.

4.11.f.4.B. The permittee must consider the following factors in determining the schedule of remedial activities:

4.11.f.4.B.1. Extent and nature of contamination;

4.11.f.4.B.2. Practical capabilities of remedial technologies in achieving compliance with groundwater protection standards established under paragraph 4.11.c.7 or 4.11.c.8 and other objectives of the remedy;

4.11.f.4.B.3. Availability of treatment or disposal capacity for wastes managed during implementation of the remedy;

4.11.f.4.B.4. Desirability of utilizing technologies that are not currently available, but that may offer significant advantages over already available technologies in terms of effectiveness, reliability, safety, or ability to achieve remedial objectives;

4.11.f.4.B.5. Potential risks to human health and the environment from exposure to contamination prior to completion of the remedy;

4.11.f.4.B.6. The hydro-geologic characteristics of the facility and the surrounding land and aquifer including: 4.11.f.4.B.6.(a) Current and future uses; 4.11.f.4.B.6.(b) Proximity and withdrawal rate of users; 4.11.f.4.B.6.(c) Ground-water quantity and quality; 4.11.f.4.B.6.(d) The potential damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituent(s); 4.11.f.4.B.6.(e) Ground-water removal and treatment costs; and 4.11.f.4.B.6.(f) The cost and availability of alternative water supplies.

4.11.f.4.B.7. Practicable capability of the permittee.

4.11.f.4.B.8. Other relevant factors.

4.11.f.5. The Secretary may determine that remediation of a release of a Phase II constituent from a SWLF is not necessary if the permittee demonstrates to the satisfaction of the Secretary that:

4.11.f.5.A. The groundwater is additionally contaminated by substances that have originated from a source other than a SWLF and those substances are present in concentrations such that cleanup of the release from the SWLF would provide no significant reduction in risk to actual or potential receptors; or

4.11.f.5.B. The constituent(s) is present in groundwater that:

4.11.f.5.B.1. Is not currently or reasonably expected to be a source of drinking water; and

4.11.f.5.B.2. Is not hydraulically connected with waters to which the hazardous constituents are migrating or are likely to migrate in a concentration(s) that would exceed the groundwater protection standards established under paragraph 4.11.c.8 or 4.11.c.9; or

4.11.f.5.C. Remediation of the release(s) is technically impracticable; or

4.11.f.5.D. Remediation results in unacceptable cross-media impacts.

4.11.f.6. A determination by the Secretary pursuant to paragraph 4.11.f.5 must not affect the authority of the state to require the permittee to undertake source control measures or other measures that may be necessary to eliminate or minimize further releases to the groundwater, to prevent exposure to the groundwater, or to remediate the groundwater to concentrations that are technically practicable and significantly reduce threats to human health or the environment.

4.11.g. Implementation of the Corrective Action Program.

4.11.g.1. Based on the schedule established in paragraph 4.11.f.4 for initiation and completion of remedial activities the permittee must:

4.11.g.1.A. Establish and implement a corrective action groundwater monitoring program that:

4.11.g.1.A.1. At a minimum, meets the requirements of an assessment monitoring program under subdivision 4.11.c;

4.11.g.1.A.2. Indicate the effectiveness of the corrective action remedy; and

4.11.g.1.A.3. Demonstrate compliance with the Groundwater Protection Act, W. Va. Code §22-12-1, et seq. and/or the groundwater standard pursuant to paragraph 4.11.g.5.

4.11.g.1.B. Implement the corrective action remedy selected under subdivision 4.11.f; and

4.11.g.1.C. Take any interim measures necessary to ensure the protection of human health and the environment.

4.11.g.1.C.1. Interim measures must, to the greatest extent practicable, be consistent with the objectives of and contribute to the performance of any remedy that may be required pursuant to subdivision 4.11.f.

4.11.g.1.C.2. The following factors must be considered by a permittee in determining whether interim measures are necessary: 4.11.g.1.C.2.(a) Time required to develop and implement a final remedy; 4.11.g.1.C.2.(b) Actual or potential exposure of nearby populations or environmental receptors to hazardous constituents; 4.11.g.1.C.2.(c) Actual or potential contamination of drinking water supplies or sensitive ecosystems; 4.11.g.1.C.2.(d) Further degradation of the groundwater that may occur if remedial action is not initiated expeditiously; 4.11.g.1.C.2.(e) Weather conditions that may cause hazardous constituents to migrate or be released; 4.11.g.1.C.2.(f) Risks of fire or explosion, or potential for exposure to hazardous constituents as a result of an accident or failure of a container or handling system; and 4.11.g.1.C.2.(g) Other situations that may pose threats to human health and the environment.

4.11.g.2. A permittee may determine, based on information developed after implementation of the remedy has begun or other information, that compliance with requirements of paragraph 4.11.f.2 are not being achieved through the remedy selected.

4.11.g.2.A. In such cases, the permittee must implement other methods or techniques that could practicably achieve compliance with the requirements, unless the permittee makes the determination under paragraph 4.11.g.3.

4.11.g.3. If the permittee determines that compliance with requirements of paragraph 4.11.f.2 of this rule cannot be practically achieved with any currently available methods, the permittee must:

4.11.g.3.A. Obtain certification of a qualified groundwater scientist and approval by the Secretary that compliance with requirements of paragraph 4.11.f.2 cannot be practically achieved with any currently available methods;

4.11.g.3.B. Implement alternative measures to control exposure of humans or the environment to residual contamination, as necessary to protect human health and the environment; and

4.11.g.3.C. Implement alternative measures for control of the sources of contamination or for removal or decontamination of equipment, units, devices or structures that are:

4.11.g.3.C.1. Technically practicable; and

4.11.g.3.C.2. Consistent with the overall objective of the remedy.

4.11.g.3.D. Notify the Secretary within fourteen (14) days that a report justifying the alternative measures prior to implementing the alternative measures has been placed in the operating record.

4.11.g.4. All solid wastes that are managed pursuant to a remedy required in subdivision 4.11.f, or an interim measure required under subparagraph 4.11.g.1.C must be managed in a manner:

4.11.g.4.A. That is protective of human health and the environment; and

4.11.g.4.B. That complies with applicable RCRA requirements.

4.11.g.5. Remedies selected pursuant to subdivision 4.11.f must be considered complete when:

4.11.g.5.A. The permittee complies with the groundwater protection standards established under paragraph 4.11.c.8 or 4.11.c.9 at all points within the plume of contamination that lie beyond the groundwater monitoring well system established in subdivision 3.8.d and paragraph 3.8.d.1.

4.11.g.5.B. Compliance with the groundwater protection standards established in paragraph 4.11.c.8 or 4.11.c.9 have been achieved by demonstrating that concentrations of Phase II constituents have not exceeded the groundwater protection standard(s) for a period of three (3) consecutive years using the statistical procedures and performance standards in paragraphs 4.11.a.7 and 4.11.a.8 of this rule.

4.11.g.5.B.1. The Secretary may specify an alternative length of time during which the permittee must demonstrate that concentrations of Phase II constituents have not exceeded the groundwater protection standard(s) taking into consideration: 4.11.g.5.B.1.(a) Extent and concentration of the release(s); 4.11.g.5.B.1.(b) Behavior characteristics of the hazardous constituents in the groundwater; 4.11.g.5.B.1.(c) Accuracy of monitoring or modeling techniques, including any seasonal, meteorological, or other environmental variables that may affect the accuracy; and 4.11.g.5.B.1.(d) Characteristics of the groundwater.

4.11.g.5.C. All actions required to complete the remedy have been satisfied.

4.11.g.6. Upon completion of the remedy, the permittee must notify the Secretary within fourteen (14) days that the remedy has been completed in compliance with the requirements of paragraph 4.11.g.5 and a certification of the same has been placed in the operating record.

4.11.g.6.A. The certification must be signed by the permittee and by a qualified groundwater scientist and approved by the Secretary.

4.11.g.7. When, upon completion of the certification, the Secretary determines that the corrective action remedy has been completed in accordance with the requirements of paragraph 4.11.g.5, the permittee must be released from the requirements for financial assurance for corrective action under subdivision 3.13.p.

4.11.h. A copy of each report required by subsection 4.11 must be kept on file at the solid waste facility.

4.12. Reporting.

Anomalous events. -- Each anomalous event that has the potential of affecting human health or the environment must be reported to a person designated by the Secretary. The anomalous event must be reported by telephone, fax or e-mail immediately upon discovery, or as soon thereafter as necessary emergency response permits. Within forty-eight (48) hours of the discovery of the event, or before 5:00 p.m. of the second following business day, whichever comes later, a photocopy of the daily log documenting the anomalous event and the immediate response to it, and such additional information as necessary to describe the event and the current situation, must be submitted to a person and place designated by the Secretary. The Secretary may require additional reports on the anomalous event.

4.12.a. Daily Logs. -- Accurate, complete and true daily logs must be kept by the operator describing the type, amount, and source of all solid waste received at the solid waste facility. These daily logs must be kept on file at the facility and include:

4.12.a.1. A description of waste handling problems or emergency disposal activities;

4.12.a.2. A record of deviations from the approved design or operational plans; and

4.12.a.3. A record of actions taken to correct violations of the Act, other state Acts, and/or the Department’s rules and regulations.

4.12.b. Solid Waste Tonnage Reports. Monthly solid waste tonnage reports describing the type, amount, and source received at the solid waste facility for the month must be submitted to the Secretary postmarked by the twentieth day of the following month, on forms and/or electronic medium obtained from the Secretary, and completed in compliance with any instructions or guidance provided by the Department. A copy must also be submitted to the Department’s Solid Waste Management Board, the West Virginia Public Service Commission (WVPSC), and applicable county or regional solid waste authority.

4.12.b.1. The monthly tonnage report must document the hazardous waste exclusion efforts as required by subparagraph 4.6.a.1.F of this rule, and the results of those efforts.

4.12.b.2. The monthly tonnage report must be legible, and contain the original signature of the principal officer in charge of the facility. The official copy of the tonnage reports may not be faxed or electronically mailed to the Department.

4.12.b.3. The monthly tonnage report must clearly identify the out of shed waste and the total waste from each state, including West Virginia. The report must also list the tax-exempt tonnage and any other tonnage that does not count against the facility’s monthly capacity. Free day tonnage must be included in each monthly report, but shall not count against the facility’s monthly or daily tonnage limit.

4.12.b.4. Facilities that use shredded waste tires as alternative daily cover must include that tonnage in each monthly tonnage report, as required by 33CSR5, paragraph 3.1.e.5.

4.12.c. Groundwater Monitoring Reports. The Secretary may specify the dates by which each landfill must submit particular documents required by subsection 4.11 of this rule, “Groundwater Monitoring and Corrective Action Program.”

4.12.d. Surface Water Monitoring Reports. -- The surface water sampling analysis monitoring reports must be submitted as required by the Water Pollution Control Act and the rules promulgated thereunder.

4.12.e. Leachate Monitoring Reports. -- The leachate sampling analysis monitoring reports must be submitted as required by the Water Pollution Control Act and the rules promulgated thereunder.

4.12.f. Reporting and Recordkeeping. -- A copy of the monthly tonnage and the monitoring reports must also be sent to the county or regional solid waste authority for the county or counties from which the solid waste came. Copies of all of the reports required by this subdivision must be kept on file at the solid waste facility.

4.12.g. Annual Operational Report. -- An annual solid waste facility operational report must be submitted for the current calendar year to the Secretary before January 31 of the following year.

4.12.g.1. The report must include:

4.12.g.1.A. An updated list of users of the facility;

4.12.g.1.B. A summary of the daily logs of solid waste received during the previous year;

4.12.g.1.C. A summary of the previous year’s surface and groundwater monitoring activities; and

4.12.g.1.D. A brief narrative describing the status of development, construction, maintenance, expansion, and closure of all facilities or portion of facilities that are a part of the approved solid waste facility.

4.12.h. The annual solid waste facility operational report for landfills must also include:

4.12.h.1. A topographic map showing the permitted area, location of current working areas, and completed areas in relationship to the grid system of the solid waste sequencing plan;

4.12.h.2. Cross-sections of the area that has been filled; and

4.12.h.3. Computations estimating the volume that has been filled and the remaining volume and useful life of the facility, in months.

4.12.i. The Secretary may specify the medium (e.g., paper, Internet, electronic transmission, optical media, etc.) and the format (e.g., forms, outlines, guidelines, electronic data structures, etc.) in which documents are submitted pursuant to this rule.

4.13. Acceptance and Handling of Special Solid Wastes.

4.13.a. General.

4.13.a.1. Except as expressly specified by an order or other written approval by the Secretary, a solid waste facility may receive only those solid wastes allowed by its permit. Facilities may receive solid waste that requires special handling methods for processing or disposal only by specific provisions within the facility permit, by obtaining a minor permit modification, or by obtaining other express written approval from the Secretary. If it is not clear that a particular waste is within the authorized wastes that a permitted facility may receive, the permittee must request and receive a minor permit modification or a letter of permission from the Secretary before receiving the waste.

4.13.a.2. Nothing must limit or affect the power of the Secretary to prohibit or require special handling requirements determined to be necessary to protect the environment or the health, safety, and welfare of the public.

4.13.a.3. Special wastes such as discarded chemicals and pesticides not regulated as hazardous wastes, oil spill cleanup, underground storage site residues from cleanup, properly treated pesticide containers, contaminated food products, and fabrics requiring supervised disposal are examples of the type of special wastes for which approval by the Secretary would be required before permitted solid waste management facilities could receive and dispose of the products.

4.13.a.3.A. Any analytical laboratory performing services for a special waste generator or a contractor under his or her employ must not profit from the treatment, removal or disposal of such waste, and must sign an affidavit stating such facts on a form provided by the Secretary.

4.13.a.3.B. When requesting approval to dispose of any special waste at his/her commercial solid waste facility, the permittee must demonstrate that the waste is suitable for disposal at his/her facility. The permittee must submit, in a medium and a format specified by the Secretary, a detailed description of the process by which the waste was generated, description of the waste, satisfactory characterization of the composition of the waste, the waste matrix, and the contaminants. (Usually the characterization will include chemical analytical results and/or material safety data sheets.) Any solid waste landfill that is granted approval to accept for disposal special waste that might contain volatile organic compounds (such as petroleum contaminated soil for example), must at a minimum maintain on-site at the facility a HNU Photoionizer, or equivalent, to monitor the levels of total organic volatiles (TOVs) present in soil being aerated to ensure that total TOVs are less than one hundred parts per million (100 ppm) prior to disposal of waste soil in the landfill or for use of the soil as daily cover.

Note: The use of any trade name does not imply endorsement by the West Virginia Department of Environmental Protection.

4.13.b. Asbestos Wastes. -- The permittee must ensure that every individual involved in the management of wastes is protected from exposure in conformance with the provisions of this rule and other applicable State and Federal statutes, rules and regulations.

4.13.b.1. Packaging of Friable and Nonfriable Category II Asbestos Materials. -- All solid wastes that may contain friable or nonfriable category II asbestos must be placed in double plastic bags and sealed or encased in two sealed layers of plastic wrap. Each bag or layer must be six (6) mils thick or greater and boldly marked “CAUTION: CONTAINS ASBESTOS FIBERS. AVOID CREATING DUST. CANCER AND LUNG DISEASE HAZARD.” The name and address of the generator must also be marked on the container. Use of sealed cardboard containers or fiber drums may be required for dense waste or as extra protection against breaking of bags. Other special handling or packaging methods may be approved where equal environmental protection is or will be achieved. Such alternative methods must only be considered where bagging, wrapping, or packaging is proven not to be possible.

4.13.b.2. Transportation of Friable Asbestos Materials for Disposal. -- Properly packaged asbestos wastes must be transported in a closed conveyance with the crew segregated from the load. Asbestos waste must be accompanied by appropriate shipping papers to identify the waste, its source, and its destination.

4.13.b.3. Disposal of Friable and Nonfriable Asbestos Materials. -- Asbestos waste must be disposed in a special purpose landfill or in a special area of a landfill and must meet the following conditions:

4.13.b.3.A. Asbestos waste must be placed in a lined area designed and constructed to meet the minimum liner requirements set forth in subdivision 5.4.b of this rule.

4.13.b.3.B. Asbestos waste must be hand placed in the trench or cell or by other means approved by the Secretary that ensure integrity of bags, wrappings, or containers.

4.13.b.3.C. Asbestos waste must not be compacted until a sealing layer of soil has been placed over the waste and precautions are taken to prevent the breaking of bags or wrapping. All accidentally broken materials must be covered with twelve (12) inches or more of soil immediately. A cell that has been completely covered with soil at least one (1) foot thick may be compacted.

4.13.b.3.D. Asbestos waste must be covered with at least one (1) foot of soil at the end of each day of operation. A final cover of three (3) feet of soil must be placed over all areas that have not been in use or will not be used for more than thirty (30) days. Areas that will not or have not been used for one (1) year, in addition to final soil cover, must be graded for erosion prevention and revegetated.

4.13.b.3.E. Any portion of the asbestos disposal area or area that has not received final cover and revegetation, plus a fifty (50) foot wide buffer zone on all sides of the area, must be fenced or a waiver from the Secretary must be obtained; Provided, that a natural barrier exists on the site that adequately deters access by the general public. The fence must be of the six (6) feet high chain link type with three (3) strands of barbed wire on top. The fence must completely encompass the disposal area and internal buffer zone and maintain access control through locked gates.

4.13.b.3.F. The fence must bear permanent signs every three hundred (300) feet or closer that boldly state: “CAUTION: CONTAINS ASBESTOS FIBERS. AVOID CREATING DUST. CANCER AND LUNG DISEASE HAZARD” in two (2) inch high or larger letters.

4.13.b.3.G. A plat of the area, surveyed and clearly marked as containing asbestos waste, must be provided to the Secretary upon request and must be contained and specifically noted in the deed notation as required by subdivision 6.2.f of this rule.

4.13.b.3.H. Asbestos waste must be buried below the natural ground surface of the site or at a depth below the final grade of the landfill approved by the Secretary, in such a manner as to maximize the prevention of wind and water erosion of the asbestos disposal area.

4.13.b.3.I. The fenced area of the asbestos disposal facility must not be located closer than fifty (50) feet to the property boundary or building or structure.

4.13.b.3.J. The permittee is required to maintain records for a period of three (3) years on the nature and quantity of asbestos waste and the source.

4.13.c. Liquids. -- Free liquids cannot be disposed of in a landfill. Free liquids and poorly-contained liquids must be absorbed on solid material before being placed in a landfill.

4.13.c.1. Permittees must not place bulk or noncontainerized liquid waste in SWLF unless:

4.13.c.1.A. The waste is household waste other than septic waste; or

4.13.c.1.B. The waste is leachate or gas condensate derived from the SWLF, whether it is a new or existing SWLF or lateral expansion, and is designed with a composite liner and leachate collection system as described in subparagraph 4.5.d.1.A of this rule.

4.13.c.1.C. The Permittee must place the demonstration in the operating record and notify the Secretary that it has been placed in the operating record.

4.13.c.2. Permittees must not place containers holding liquid waste in a SWLF unless:

4.13.c.2.A. The container is a small container similar in size to that normally found in household waste;

4.13.c.2.B. The container is designed to hold liquids for use other than storage; or

4.13.c.2.C. The waste is household waste.

4.13.d. Tires. Tires must be managed in accordance with the Waste Tire Management Rule, 33CSR5.

4.13.e. Drums. -- Except as provided in paragraph 4.13.e.1 of this rule, drums and other bulk containers must not be disposed until emptied and crushed. Pesticide containers must be triple rinsed before disposal.

4.13.e.1. Fiber drums of asbestos that are to be disposed of in designated asbestos disposal areas in accordance with the provisions of subdivision 4.13.b of this rule need not be either emptied or crushed.

4.13.f. Bulky Goods. -- Appliances and other bulky waste goods may be accumulated at a facility for not more than sixty (60) days prior to disposal. An alternative schedule may be approved by the Secretary.

4.13.g. Infectious Waste. -- Infectious waste as defined in section 2 of this rule must not be disposed of in a landfill, except in accordance with paragraph 4.7.b.6 of this rule. Nonhazardous bottom ash from the incineration of infectious waste must not be considered infectious waste.

4.13.h. Sludges and Sewage Sludge.

4.13.h.1. Sludges disposed at a landfill must contain at least twenty percent (20%) 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 Secretary prior to disposal. Alternative sludge disposal methods can be utilized upon obtaining written approval from the Secretary.

4.13.h.2. Sludges may not represent more than twenty-five percent (25%) by weight of the total weight of waste disposed of at the landfill on any working day.

4.13.h.3. The Department may require the landfill operator to periodically sample and analyze incoming sewage sludge.

4.13.i. Shredder Fluff. -- Shredder fluff must not be disposed of in any facility unless specifically approved in writing by the Secretary.

4.13.j. Municipal Incinerator Ash. -- Ash from municipal incinerators must be disposed of on a liner system that conforms to the requirements of the Department’s Hazardous Waste Management System rule, 33CSR20.

4.13.k. Petroleum-Contaminated Soils. -- Soils contaminated with petroleum must be disposed of in a manner prescribed by the Secretary.

4.14. Monthly Free Disposal Day (“Free Day”).

4.14.a. Definitions. - For the purposes of this subsection:

4.14.a.1. “Residential solid waste” means garbage, rubbish, trash, furniture, household appliances, and other similar wastes not herein specified generated at residential property.

4.14.a.2. “One (1) pick-up truckload, or its equivalent” means no more than five hundred sixteen (516) pounds.

4.14.b. Applicability. 4.14.b.1 All commercial and public landfills must establish and publish a yearly schedule providing for one (1) day per month on which a person not in the business of hauling or disposing of solid waste may dispose of, in a solid waste landfill facility, an amount of residential solid waste up to one (1) pick-up truckload or its equivalent, free of all charges and fees.

4.14.b.2. Any person who is not a resident of West Virginia may only participate in the free day upon proof that his or her state of residence would otherwise allow West Virginia residents to dispose of residential solid waste in the same or substantially similar manner.

4.14.c. Requirements.

4.14.c.1. All commercial landfills, both private and public, must submit and receive prior approval of the landfill facilities’ proposed monthly free day schedule from the Department. The proposed monthly free day schedule must be approved twenty (20) days prior to the initial date of publication each calendar year. The date of the proposed free day schedule for each consecutive month must be separated by at least twenty (20) calendar days. Following the publication, the landfill facility must submit to the Secretary and the Department’s Solid Waste Management Board a copy of the established and published yearly schedule of the free days within fifteen (15) days of publication. The yearly schedule must be posted at the facility and must be clearly visible and legible.

4.14.c.2. Landfill facilities must not give preferential treatment to either paying or non-paying customers on free day. However, landfill facilities may place rolloffs or other similar containers for use by free day customers in order to maintain normal daily operations.

4.14.c.3. Hours of operation on free day must consist of one full day and must be the same as hours of operation on other authorized days of the month.

4.14.c.4. Eligible free day participants are limited to one pick-up truckload or its equivalent per free day.

4.14.c.5. Only household appliances that have had the refrigerant (chlorofluorocarbons or hydro-chlorofluorocarbons) removed may be disposed in the landfill.

4.14.c.6. Residential solid waste is not required to be bagged or bundled for acceptance by the landfill on free day. However, residential solid waste must be secured in a manner to prevent windblown material.

4.14.c.7. Within sixty (60) days of the effective date of this rule, all commercial and public landfills must submit a free day policy to the Secretary for approval.

4.14.c.8. Solid waste landfill facilities are not required to accept waste tires without charge on free day, but may choose to accept waste tires and charge the fees established in the Waste Tire Management Rule, 33CSR5.

W. Va. Code R. § 33-1-5 Other Solid Waste Facility Performance Standards

5.1. Requirements for Incinerators.

5.1.a. General Requirements.

5.1.a.1. The incinerator must be located, designed, and operated in accordance with subsection 5.1 of this rule.

5.1.a.2. Waste characterization must be performed in accordance with subsection 5.1 of this rule.

5.1.b. Location Criteria.

5.1.b.1. No person may establish, construct, operate, maintain or permit the use of property for any facility:

5.1.b.1.A. Within a 100-year floodplain; or

5.1.b.1.B. Within an area where there is a reasonable probability that the facility will cause:

5.1.b.1.B.1. A significant adverse impact upon natural wetlands;

5.1.b.1.B.2. A significant adverse impact upon any endangered or threatened species of animal or plant;

5.1.b.1.B.3. A significant adverse impact upon any surface water;

5.1.b.1.B.4. A significant adverse impact upon groundwater quality; or

5.1.b.1.B.5. The migration and concentration of explosive gases in any facility structures, excluding any leachate collection system or gas control or recovery system components or in the soils or air at or beyond the facility property boundary in excess of twenty-five percent (25%) of the lower explosive limit for such gases at any time.

5.1.c. Operational Requirements.

5.1.c.1. No person may operate or maintain an incinerator except in conformance with the following minimum requirements, unless an exemption is granted by the Secretary in writing:

5.1.c.1.A. The facility must be situated, equipped, operated, and maintained so as to minimize interference with other activities in the area;

5.1.c.1.B. Adequate shelter and sanitary facilities must be available for personnel;

5.1.c.1.C. A sign must be prominently posted at the entrance to the facility that indicates the name, permit number, the hours of operation, the hours waste may be received, necessary safety precautions, and any other pertinent information;

5.1.c.1.D. All incoming solid waste must be confined to the designated storage area and no putrescible waste may be stored for more than twenty-four (24) hours;

5.1.c.1.E. Solid waste must be stored in compliance with subdivision 3.16.b of this rule;

5.1.c.1.F. Dust must be controlled in the unloading and charging areas;

5.1.c.1.G. Permanent records must be maintained, including the weights of material treated, the quantity of resulting ash and residue, hours of plant operation, combustion temperatures, residence time, and other pertinent information;

5.1.c.1.H. Appropriate firefighting equipment must be available in the storage and charging areas and elsewhere as needed;

5.1.c.1.I. Arrangements must be made with a local fire protection agency to provide adequate emergency firefighting forces;

5.1.c.1.J. Means of communication with emergency facilities must be provided;

5.1.c.1.K. Adequate equipment must be provided to allow cleaning after each day of operation or as may be required in order to maintain the plant in a sanitary condition;

5.1.c.1.L. The charging openings as well as all equipment throughout the plant must be provided with adequate safety equipment;

5.1.c.1.M. The facility must be designed and operated such that it will not cause a nuisance because of the emission of noxious odors, gases, contaminants, or particulate matter or exceed emission limitations established by State air pollution control rules;

5.1.c.1.N. Ash and residue must be disposed of at a solid waste facility permitted by the Secretary to accept the material or be handled by an alternative method approved in writing by the Secretary. Approval will be issued on a case-by-case basis after review of the information contained in reports filed pursuant to subsection 5.1 of this rule. Ash or residue from a facility with a design capacity of five hundred (500) pounds per hour must be placed in a monofill, which must meet the design requirements of the Hazardous Waste Management System rule, 33CSR20.

5.1.c.1.O. All wastewater from the facility must be discharged into a sanitary sewer or other system approved in writing by the Secretary;

5.1.c.1.P. Upon the completion of construction of a new facility, and at least ten (10) days prior to initial operation, the Secretary must be notified to allow inspection of the facility both prior to and during any performance test(s) and initial operation;

5.1.c.1.Q. Open burning of solid waste at the facility is prohibited;

5.1.c.1.R. No hazardous waste may be accepted for disposal;

5.1.c.1.S. An alternative disposal method, approved by the Secretary in writing, must be used during any time that the facility is inoperative; and

5.1.c.1.T. The incoming waste must be screened to eliminate unacceptable material from entering the facility, such as hazardous waste, asbestos, explosive materials or other materials that may endanger public health and safety.

5.1.d. Waste Characterization.

5.1.d.1. The owner or operator of an incinerator with a design capacity in excess of five hundred (500) pounds per hour must undertake an ash testing program as follows:

5.1.d.1.A. An ash testing program must be completed within sixty (60) days of construction and shake-down of the incinerator. Representative samples of both fly ash and bottom ash must be tested for physical characteristics, bulk chemical composition, analysis using the appropriate leaching test, and analysis using the Toxicity Characteristic Leaching Procedure (TCLP) or other test to determine the wastes’ regulatory status under Federal or State hazardous waste laws. Test methods, the number of tests, detection limits, and parameters to be tested for will be specified by the Secretary; and

5.1.d.1.B. A long-term ash testing program must be established. For the first year of operation, quarterly testing of at least one (1) sample of bottom ash and one (1) sample of fly ash must be performed using approved methods and procedures. Thereafter, annual sampling and testing must be performed. The Secretary may specify an alternative testing program.

5.1.d.2. The owner or operator of a facility with a design capacity of five hundred (500) pounds per hour or less may be required to undertake the testing program described in paragraph 5.1.d.1 of this rule if the Secretary determines through an examination of information required in paragraph 5.1.c.1 of this rule that such testing is warranted.

5.2. Requirements for Transfer Stations.

5.2.a. General.

5.2.a.1. No person may conduct transfer station activities unless the Secretary has first issued a permit for the activities in accordance with the requirements of this rule.

5.2.a.2. No person conducting transfer station activities may allow ash, residue, or other waste specified in subsection 4.13 of this rule to be received or handled at a transfer station, unless the Secretary has specifically approved handling that waste by the permit.

5.2.a.3. No person conducting transfer station activities may:

5.2.a.3.A. Mix solid waste with or store solid waste in such close proximity to other solid waste to create a risk of fire or explosion or a risk to the accumulation of poisonous or otherwise harmful vapors or gases; or

5.2.a.3.B. Allow explosive waste to be processed at the facility.

5.2.a.4. Regulated hazardous waste may not be disposed, processed or stored where transfer station activities are conducted.

5.2.b. Location Criteria. -- Transfer stations must be sited in compliance with the location requirements of subsection 3.1 and subdivisions 3.2.c and 3.2.e of this rule and may not be sited within one hundred (100) feet of a perennial stream.

5.2.c. Signs. -- A person conducting transfer station activities must identify the operation by posting and maintaining a sign in accordance with subparagraph 4.6.a.1.M of this rule.

5.2.d. Access Control.

5.2.d.1. A gate or other barriers must be maintained at potential vehicular access points to block unauthorized access to the site when an attendant is not on duty.

5.2.d.2. The operator must construct and maintain a fence or other suitable barrier around the site sufficient to prevent unauthorized access.

5.2.d.3. Access to the site must be limited to times when an attendant is on duty.

5.2.e. Access Roads. -- Access roads must be designed, constructed, and maintained in accordance with subdivision 4.5.c of this rule.

5.2.f. Measuring Waste. -- Solid waste delivered to a transfer station must be accurately weighed or otherwise accurately measured prior to unloading in accordance with the provisions of 110CSR6A subsections 4.2 and 4.3.

5.2.g. Operations and Equipment.

5.2.g.1. Loading, unloading, storage, compaction, and related activities must be conducted in an enclosed building, unless otherwise approved by the Secretary.

5.2.g.2. The permittee must maintain on the site equipment necessary for operation of the facility in accordance with the permit. The equipment must be maintained in an operable condition.

5.2.g.3. Standby equipment must be located on the site or at a place where it can be available within twenty-four (24) hours. If a breakdown of the operator’s equipment occurs, the operator must utilize standby equipment as necessary to comply with this rule.

5.2.g.4. Equipment must be operated and maintained so as to prevent solid waste from being unintentionally removed from the storage area.

5.2.g.5. Equipment used to handle putrescible solid waste must be cleaned at the end of each working day.

5.2.h. Unloading Area.

5.2.h.1. The approach and unloading area must be adequate in size and design to facilitate the rapid unloading of solid waste from the collection vehicles and the unobstructed maneuvering of the vehicles and other equipment.

5.2.h.2. The loading areas and unloading areas must be constructed of impervious material that is capable of being cleaned by high pressure water spray and must be equipped with drains or sumps connected to a sanitary sewer system or treatment facility to facilitate the removal of water.

5.2.h.3. If the facility has an unloading pit, the facility must have in place truck wheel curbs and tie downs that are sufficient to prevent trucks from backing into the pit or falling into the pit while unloading.

5.2.h.4. An attendant or clearly marked signs must direct vehicles to the unloading area.

5.2.h.5. The permittee must ensure that collection vehicles unload waste promptly in unloading areas.

5.2.h.6. Solid waste must be confined to the unloading area and the approved storage areas.

5.2.i. Cleaning and Maintenance.

5.2.i.1. All areas within the building must be kept clean.

5.2.i.2. The operator must not allow putrescible waste to remain at the transfer station at the end of the day or for more than twenty-four (24) hours.

5.2.i.3. Plumbing must be properly maintained, and the floors must be well drained.

5.2.i.4. Macerators, hammer mills, and grinders must be cleanable and must be equipped with drains that connect to a sanitary sewer system or treatment facility.

5.2.i.5. Provision must be made for the routine operational maintenance of the facility.

5.2.j. Water Quality Protection. - All permit holders must meet the requirements of the Water Pollution Control Act, W. Va. Code §22-11-1, et seq., and the rules promulgated thereunder.

5.2.k. Other Requirements.

5.2.k.1. The operator must also prevent and eliminate conditions not otherwise prohibited by this rule that are harmful to the environment or public health or that create safety hazards, odors, dust, noise, unsightliness, and other public nuisances.

5.2.k.2. No person may cause or allow open burning.

5.2.k.3. The operator must prevent the attraction, harborage or breeding of vectors.

5.2.k.4. Salvaging of materials must not be conducted unless salvaging is controlled by the operator to prevent interference with prompt and sanitary operations and is conducted to prevent a health hazard or nuisance.

5.2.k.5. Salvaged materials must be promptly removed from the unloading area and either stored in an approved area or transported off-site.

5.2.k.6. The operator must not allow litter to be blown or otherwise deposited off-site.

5.2.k.7. Fences or other barriers sufficient to control blowing litter must be located in the area immediately downwind from the unloading area, unless transfer activities are conducted within an enclosed building or the solid waste being transferred cannot create blowing litter.

5.2.k.8. Litter must be collected at least weekly from fences, roadways, tree line barriers, and other barriers and disposed or stored in accordance with the Act, regulations, and rules promulgated thereunder, unless a greater frequency is set forth in the permit.

5.2.k.9. A facility subject to this rule must be designed, constructed, maintained, and operated to prevent and minimize the potential for fire, explosion or release of solid waste constituents to the air, water or soil of this State that could threaten public health or safety, public welfare or the environment.

5.2.k.10. The operator of a transfer station must meet all of the reporting requirements as specified in subsection 4.12 of this rule.

5.2.k.11. The facility must be surrounded with rapidly growing trees, shrubbery, fencing, berms, or other appropriate means to screen it from the surrounding area.

5.2.k.12. Only household waste and commercial waste must be accepted at the facility. No industrial waste, infectious waste, construction and demolition debris, or hazardous waste regulated under 33CSR20 must be accepted, unless specifically approved by the Secretary.

5.2.k.13. All solid waste passing through the transfer station must be ultimately treated or disposed of at a facility authorized by the Department if in this State or by the appropriate governmental agency or agencies if in other states, territories, or nations.

5.2.k.14. A transfer station with operating mechanical equipment must have an attendant on duty at all times that the facility is open. Suitable fencing, gates, or signs must be provided.

5.2.k.15. All floors must be drained and free from standing water. All drainage from cleaning areas must be discharged to sanitary sewers or the equivalent.

5.2.k.16. Adequate storage space for incoming solid waste must be available at the transfer station.

5.2.k.17. All solid waste must be removed from the transfer station facility whenever transfer containers are full or weekly, whichever comes first.

5.3. Requirements for Recycling Facilities. (Performance Standards Reserved).

5.4. Requirements for the Operation of Class D-1 and Class D Solid Waste Facilities.

5.4.a. General Requirements. -- Only the construction/demolition wastes approved in the facility permit must be accepted. Prohibited materials include, but are not limited to: putrescible wastes, household wastes, automobile shredder fluff, industrial wastes, sludge wastes, liquid paint, including lead-based paint or products coated with lead-based paint, lacquers, solvents, adhesives, cements, sealants, pesticides, aerosols, resin containers, brake fluid, lubricating oil and oil filters, any automotive fluids or fuels, railroad ties, pressure treated wood and engineered wood products, metal wastes (such as piping, wiring appliances, and “white goods”), electrical wastes (such as batteries, mercury-containing switches, ballasts, transformers and capacitors, fluorescent tubes, and computer equipment) carpet and other synthetic flooring material, or other items prohibited by the Class D General Permit Groundwater Protection Plan.

5.4.b. Class D-l Facility Requirements. -- Class D-l solid waste facilities must meet all of the requirements in section 4 of this rule, unless an alternative standard from subdivision 5.4.b of this rule is met or the Secretary has granted, upon written request, an exemption from a specific requirement of section 4 of this rule.

5.4.b.1. A liner system for a Class D-l solid waste facility must consist of the following elements:

5.4.b.1.A. Subbase;

5.4.b.1.B. Compacted soil liner; and

5.4.b.1.C. Leachate collection and protective cover zone.

5.4.b.2. The subbase portion of the liner system must consist of a cleared and grubbed natural ground surface capable of supporting the entire liner system.

5.4.b.3. The compacted soil liner must:

5.4.b.3.A. Be a minimum compacted thickness of two (2) feet;

5.4.b.3.B. Be compacted in six (6) inch lifts;

5.4.b.3.C. Be no more permeable than 1 x 10-6 cm/sec based on laboratory and field testing;

5.4.b.3.D. Be free of particles greater than three (3) inches in any dimension;

5.4.b.3.E. Be placed without damaging the subgrade;

5.4.b.3.F. Be placed during a period of time when both the air temperature and the soil temperature are above freezing, so that neither the compacted soil nor the subbase is frozen;

5.4.b.3.G. Have a slope of at least two percent (2%) to facilitate the drainage of leachate across the liner surface; and

5.4.b.3.H. Be designed, operated, and maintained so that the physical and chemical characteristics of the liner and the liner’s ability to restrict the flow of solid waste, solid waste constituents or leachate is not adversely affected by the leachate.

5.4.b.3.I. The compacted soil construction liner certification and a Q.A./Q.C. report must be submitted to the Secretary prior to the placement of the leachate collection and protective cover zone.

5.4.b.4. The leachate collection and protective cover zone must:

5.4.b.4.A. Create a flow zone between the compacted soil liner and solid waste more permeable than 1 x 10-3 cm/sec based on laboratory and field testing. The leachate collection zone, including the piping system, must be designed and placed on a minimum slope of two percent (2%) to facilitate efficient leachate drainage and prevent ponding on the composite liner;

5.4.b.4.B. Be at least eighteen (18) inches thick;

5.4.b.4.C. Be constructed of soil or earthen materials to ensure that the hydraulic leachate head on the composite liner does not exceed one (1) foot at the expected flow capacity from the drainage area except during storm events;

5.4.b.4.D. Be comprised of clean soil or earthen materials that contain no debris, plant material, rocks, material with sharp edges or other solid material larger than one-quarter (¼) inch in diameter;

5.4.b.4.E. Be graded, uniformly compacted, and smoothed;

5.4.b.4.F. Be installed in a manner that prevents damage to the compacted soil liner; and

5.4.b.4.G. Contain a perforated piping system capable of intercepting liquid within the leachate collection zone and conveying the liquid to control collection points. The piping system must also meet the following:

5.4.b.4.G.1. The slope sizing and spacing of the piping system must ensure that liquids drain efficiently from the leachate collection zone;

5.4.b.4.G.2. The distance between pipes in the piping system may not exceed one (100) hundred feet on center;

5.4.b.4.G.3. The pipes must be installed perpendicular to the flow;

5.4.b.4.G.4. The minimum diameter of the perforated pipe must be four (4) inches with a wall thickness of Schedule 40 or greater;

5.4.b.4.G.5. The pipe must be capable of supporting anticipated loads without failure based on facility design;

5.4.b.4.G.6. Rounded stones or aggregates must be placed around the pipes of the piping system. The stones or aggregates must be sized to prevent clogging of the pipes and damage to the composite liner;

5.4.b.4.G.7. The piping system must be installed in a fashion that facilitates cleanout, maintenance, and monitoring. Manholes or cleanout risers must be located along the perimeter of the leachate detection piping system. The number and spacing of the manholes or cleanout risers must be sufficient to ensure proper maintenance of the piping system by water jet flushing or an equivalent method; and

5.4.b.4.G.8. The leachate collection system must be cleaned and maintained as necessary.

5.4.b.4.H. The leachate collection zone construction certification and a Q.A./Q.C. report must be submitted to the Secretary prior to the placement of solid waste.

5.4.c. Class D Facility Requirements. Except as herein specified, Class D solid waste facilities are exempt from the requirements of section 4 of this rule unless otherwise required by the Secretary, but must comply with the requirements of paragraphs 5.4.c.1 through 5.4.c.7 of this rule. A Class D facility must not exceed two (2) acres in size. Only one (1) Class D landfill may be located per ten (10) acre site. In no circumstance may a Class D facility be located within two hundred (200) feet of another solid waste facility.

5.4.c.1. Access must be controlled in such a manner as to discourage unauthorized entry and must be limited to those authorized to deposit waste material and only during scheduled hours.

5.4.c.2. Construction/demolition and cover material must not be placed in or near a stream channel in any manner that violates paragraph 3.2.a.1. of this rule and must be placed in such a way to prevent erosion and sedimentation.

5.4.c.3. Cover material must be graded and maintained to prevent ponding and minimize erosion.

5.4.c.4. Erosion and sediment controls must be installed as necessary to prevent sedimentation.

5.4.c.5. The disturbed area must be revegetated to prevent erosion and sedimentation in accordance with subdivision 4.5.f of this rule.

5.4.c.6. Except when extended by the Secretary, all operations for a Class D solid waste facility must have been completed, including covering with a minimum of twenty-four (24) inches of soil, regrading, dressing up, seeding, mulching, and fertilizing prior to the expiration date of the permit.

5.4.c.7. The permittee must notify the Secretary to arrange for a final inspection prior to removing equipment from the site. All site reclamation must be completed before equipment removal.

5.4.c.8. The Secretary may require a Class D solid waste facility to meet any specific requirement in section 4 of this rule.

5.5. Requirements for Class F Solid Waste Facilities. -- Except as provided in subsection 5.5 of this rule, all requirements of this rule will be applicable to Class F solid waste facilities.

5.5.a. Waivers and Modifications. -- During the permit issuance process or upon written request or appropriate notation on the application by the permittee, the Secretary may waive or modify the requirements of section 3 of this rule that are listed in paragraph 5.5.a.1 of this rule and the requirements of section 4 of this rule that are listed in paragraph 5.5.a.2 of this rule. Failure of the applicant to supply documentation requested by the Secretary that is necessary to justify the requested waiver or modification is grounds for wavier or modification denial. Each request for waiver or modification of a requirement of section 3 or 4 of this rule must be based upon sound engineering judgment, taking into consideration the type of waste to be disposed, the type facility, and site characteristics.

5.5.a.1. The following requirements of section 3 of this rule that may be waived or modified by the Secretary: subsection 3.4, paragraph 3.7.f.7, subdivisions 3.7.j, 3.7.k, and 3.7.m; part 3.8.c.1.C.4, subparagraph 3.8.d.4.A, paragraph 3.10.a.6, subdivision 3.10.c, subsections 3.13 and 3.14, and subdivision 3.16.d of this rule.

5.5.a.1.A. The requirements of paragraph 3.8.d.5, subparagraph 3.8.i.1.B, subsection 3.9, paragraph 3.10.a.1, and subdivision 3.11.c of this rule, and the gas monitoring and control provisions of paragraphs 3.10.a.2, 3.10.a.4, and 3.10.b.3 of this rule may also be waived or modified by the Secretary for coal combustion by-product facilities.

5.5.a.2. The following requirements of section 4 of this rule may be waived or modified by the Secretary for Class F facilities: subsection 4.4, part 4.5.b.3.A.3, subdivisions 4.5.c, 4.5.d, paragraphs 4.5.g.7, 4.5.g.8, 4.5.g.9, and 4.5.g.10, subparagraphs 4.6.b.1.B, 4.6.b.1.C, 4.6.b.2.A, 4.6.b.2.B, 4.6.b.2.D and 4.8.c.3.B, subsections 4.10 and 4.12, and paragraph 4.13.b.3 of this rule.

5.5.b. Requirements for Coal Combustion By-Product Facilities.

5.5.b.1. Liner System Requirements. -- Liner system requirements for coal combustion by-product landfills, solid waste disposal surface impoundments, and surface impoundments or portions thereof placed in operation after May 1, 1990 must be as follows:

5.5.b.1.A. The liner system for landfills must consist of eighteen (18) inches of clay, having a permeability no greater than 1 x 10-7 centimeters per second and compacted in six (6) inch lifts to a Standard Proctor density of at least ninety-five percent (95%) as determined by ASTM D-698. A sixty (60) mil high density polyethylene (HDPE) synthetic liner must be installed on top of the compacted clay liner. A leachate collection system consisting of a perforated piping system embedded within an eighteen (18) inch drainage layer, which can consist of bottom ash, having a minimum permeability of 1 x 10-3 centimeters per second must be installed on top of the synthetic liner. The eighteen (18) inch leachate collection system layer must serve as the protective cover for the synthetic liner.

5.5.b.1.B. The permittee may elect and construct an alternative liner system for landfills consisting of at least two (2) feet of clay having a permeability no greater than 1 x 10-7 centimeters per second and compacted in six (6) inch lifts to a Standard Proctor density of at least ninety-five percent (95%) as determined by ASTM D-698. Taking into account site-specific conditions, an appropriate groundwater interceptor drainage system, which will also serve as a leachate detection system, must be installed under the clay liner in such a manner as to avoid groundwater penetration of the liner system and to facilitate detection of leachate penetrating the liner. An appropriate leachate collection system, which can consist of bottom ash, having a minimum permeability of 1 x 10-3 centimeters per second must be installed on top of the compacted clay liner, provided that this liner system is prohibited for use in major domestic use aquifer areas, major alluvial aquifers, or karst regions.

5.5.b.1.C. Other alternative liner systems for landfills may be approved by the Secretary on a case-by-case basis. Such alternative liner system may be more or less stringent than the liner system described in subparagraph 5.5.b.1.A of this rule as determined by sound engineering judgment, taking into consideration the type of waste to be disposed, type of facility, site characteristics, operating experience of similar landfills, and protection of the groundwater.

5.5.b.1.D. Failure of an alternative liner design at the applicant’s facility may result in the Secretary disallowing the use of identical technology in new landfills proposed by the applicant, unless the applicant can demonstrate a remedy for the technology’s past failure.

5.5.b.1.E. The liner system for solid waste disposal surface impoundments must be designed and constructed with a leachate detection system imbedded in a filter media having a minimum permeability of 1 x 10-3 centimeters per second topped by eighteen (18) inches of clay having a permeability no greater than 1 x 10-7 centimeters per second and compacted in six (6) inch lifts to a Standard Proctor density of at least ninety-five percent (95%) as determined by ASTM D-698, with a sixty (60) mil synthetic liner installed over the compacted clay.

5.5.b.1.F. Other alternative liner systems for solid waste disposal surface impoundments may be considered by the Secretary on a case-by-case basis. Such determination must be based upon sound engineering judgment, taking into consideration the type of waste to be disposed, type of facility, site characteristics, and groundwater monitoring results at similar existing solid waste disposal surface impoundments.

5.5.b.1.G. For surface impoundments receiving leachate, a permittee may elect use of a liner system consisting of either eighteen (18) inches of clay having a permeability no greater than 1 x 10-7 centimeters per second and compacted to a Standard Proctor density of at least ninety-five percent (95%) as determined by ASTM D-698, with a sixty (60) mil synthetic liner installed on top of the clay; two (2) feet of clay with the aforementioned permeability rate and compaction density; or any other alternative liner system approved by the Secretary on a case-by-case basis. Taking into account site-specific conditions, an appropriate groundwater interceptor drainage system, which must also serve as a leachate detection system, must be installed under all liner systems in such a manner as to avoid groundwater penetration of the liner system and to facilitate detection of leachate penetrating the liner.

5.5.b.1.H. The provisions of subparagraph 4.8.c.3.B of this rule do not apply to coal combustion by-product surface impoundments. Surface impoundments associated with a coal combustion by-product facility are not subject to any of the groundwater monitoring requirements of this rule if such impoundments are covered by the overall groundwater monitoring plan for the coal combustion by-product facility.

5.5.b.2. Operating Requirements. -- Operating requirements for coal combustion by-product landfills and solid waste disposal surface impoundments in operation on or closed prior to May 1, 1990 are as follows:

5.5.b.2.A. Operating landfills in existence on May 1, 1990 may remain in operation and without liner retrofit unless there is a statistically significant increase in groundwater monitoring parameters as determined by the monitoring provisions of subsection 4.11 of this rule. Groundwater remediation may be determined on a case-by-case basis by the Secretary based upon an evaluation of the information from groundwater monitoring and assessment programs, as provided for in subsection 4.11 of this rule. Upon evidence of such contamination, a corrective action program may be required as described in subdivision 4.11.e of this rule. Such corrective action programs may include closure in accordance with section 6 of this rule, retrofit in accordance with paragraph 5.5.b.1 of this rule, or other appropriate remediation measures.

5.5.b.2.B. For coal combustion by-product landfills in existence on May 1, 1990 the liner provisions of subparagraphs 5.5.b.1.A, 5.5.b.1.B, and 5.5.b.1.C of this rule and the provisions of subsection 4.11 of this rule do not apply to closed or closed portions of such landfills. Monitoring will not be required for such facilities that are closed prior to May 1, 1990 except for currently-permitted closed facilities or in connection with any remedial or corrective action program ordered by the Secretary.

5.5.b.2.C. The requirements of this rule are not applicable to coal combustion by-product disposal surface impoundments in existence on or before May 1, 1990 and that are operating under a permit issued under W. Va. Code §22-11-1, et seq., except that all such impoundments will be required to have an adequate groundwater monitoring system in place. Groundwater remediation may be determined on a case-by-case basis by the Secretary, based upon an evaluation of the information from groundwater monitoring and assessment programs. Evidence of groundwater contamination, as determined by subsection 4.11 of this rule, may require a corrective action program as described in subdivision 4.11.e of this rule.

5.5.b.3. Leachate Analysis. -- The requirements of subdivision 4.8.d of this rule apply to coal combustion by-product landfills and surface impoundments, with the exception that the requirements in paragraph 4.8.d.2 of this rule will be replaced by the following:

5.5.b.3.A. On a semiannual basis, the chemical composition of the leachate flowing into a leachate treatment system from a coal combustion by-product facility must, unless waived by the Secretary, be determined through analysis of the leachate for the following parameters: alkalinity, arsenic, barium, bicarbonate, hardness, boron, cadmium, calcium, chloride, total and hexavalent chromium, iron, lead, manganese, magnesium, sulfate, total dissolved solids, total organic carbon (TOC), specific conductance, zinc, and any other parameter that is specifically known to be associated with the wastes in question and specified by the Secretary in writing.

5.5.b.3.A.1. The monitoring parameters listed in subparagraph 5.5.b.3.A of this rule must be reported as total metals, unless otherwise specified by the Secretary.

5.5.b.4. Beneficial Use of Coal Combustion By-Products. -- The following uses of coal combustion by-products are deemed to be beneficial and do not require a permit under this rule, so long as such uses are consistent with the requirements of paragraph 5.5.b.4 of this rule:

5.5.b.4.A. Coal combustion by-products used as a material in manufacturing another product (e.g., concrete, flowable fill, lightweight aggregate, concrete block, roofing materials, plastics, paint) or as a substitute for a product or natural resource (e.g., blasting grit, filter cloth precoat for sludge dewatering);

5.5.b.4.B. Coal combustion by-products used for the extraction or recovery of materials and compounds contained within the coal combustion by-products;

5.5.b.4.C. Coal combustion by-products used as a stabilization/solidification agent for other wastes. This use of coal combustion by-products will be considered a beneficial use for the purposes of paragraph 5.5.b.4 of this rule, if the coal combustion by-product is used singly or in combination with other additives or agents to stabilize or solidify another waste product and if:

5.5.b.4.C.1. The person or entity proposing the use has first given advance written notice to the Secretary; and

5.5.b.4.C.2. The use results in altered physical or chemical characteristics of the other waste and a reduction of the potential for the resulting stabilized mixture to leach constituents into the environment;

5.5.b.4.D. Coal combustion by-products used under the authority of the Abandoned Mine Lands and Reclamation Act (W. Va. Code §22-2-1, et seq.) and the Surface Coal Mining and Reclamation Act (W. Va. Code §22-3-1, et seq.);

5.5.b.4.E. Coal combustion by-products used as pipe bedding or as a composite liner drainage layer;

5.5.b.4.F. Coal combustion by-products used as a daily or intermediate cover for Class A, Class B or Class C solid waste facilities, if the specific permit allows for such use;

5.5.b.4.G. Coal combustion bottom ash or boiler slag used as an anti-skid material, if such use is consistent with West Virginia Division of Highways specifications. The use of fly ash as an anti-skid material is not deemed to be a beneficial use; and

5.5.b.4.H. Coal combustion by-products used as a construction material (e.g., subbases, bases) for roads or parking lots that have asphalt or concrete wearing surfaces, if approved by the West Virginia Division of Highways or the project owner.

Note: Paragraph 5.5.b.4 of this rule does not specifically address the beneficial use of coal combustion by-products for structural fills and as soil amendment. These beneficial use applications will be considered in future rulemaking. Until such time, the established prior practices will be continued.

5.5.c. Requirements for Industrial Solid Waste Facilities Other Than Coal Combustion By-Product Facilities.

5.5.c.1. Liner System Requirements. -- Liner system requirements for industrial solid waste landfills and solid waste disposal surface impoundments are as follows:

5.5.c.1.A. Except as otherwise provided in subdivision 5.5.c of this rule, all provisions of section 4 of this rule are applicable to industrial solid waste landfills and industrial solid waste disposal surface impoundments constructed after May 1, 1990.

5.5.c.1.A.1. Any provision of section 4 of this rule may be waived or modified by the Secretary upon written request of the permittee, if such provision, in the discretion of the Secretary, clearly does not apply to the industrial solid waste facility or where the waiver or modification is shown to be appropriate for the facility type, type of waste disposed or site characteristics. Any alternative approved by the Secretary will be based upon good engineering judgment.

5.5.c.1.A.2. For industrial solid waste landfills in existence on May 1, 1990, the liner provisions in section 4 and subsection 5.5 of this rule do not apply to closed or closed portions of such landfills. However, the liner provisions apply to any expansion of such facilities. In order to continue to use an active portion of an existing landfill that is unlined after November 5, 1991, the permittee must enter into a compliance schedule requiring such active unlined portions to be closed or retrofitted where appropriate in accordance with this rule by an agreed date by which all waste must thereafter be placed on an approved liner system, which date will be no later than thirty (30) months following May 1, 1990.

5.5.c.1.B. Solid waste disposal surface impoundments in operation on May 1, 1990 may continue operation throughout the design life of the impoundment, provided the impoundment must not be expanded to a size greater than the design approved by the Secretary in the permit last issued for the facility. Groundwater remediation may be determined on a case-by-case basis by the Secretary based upon an evaluation of the information developed under the assessment provisions of subdivision 4.11.e of this rule.

5.5.c.2. Appropriate monitoring provisions of subsection 4.11 of this rule will be incorporated into the permits for industrial solid waste landfills and industrial solid waste disposal surface impoundments in operation on May 1, 1990. No monitoring will be required for such facilities closed prior to May 1, 1990, except for closed facilities under a permit as of May 1, 1990 or in connection with any remedial or corrective action program ordered by the Secretary.

5.6. Requirements for the Disposal of Drilling Waste Generated from Horizontal Drill Sites.

5.6.a. Definitions

5.6.a.1. “Drill Cuttings and Associated Drilling Wastes” means the broken bits of solid material and drilling mud removed from a borehole drilled by rotary, percussion, or auger methods, but does not include wastes generated during the completion process or derived from the hydraulic fracturing process, including but not limited to, flowback solids and liquids, brine, tank bottoms, pit cleanout material and sludges, filters and filter media, pipe scale, used frack sand and proppants, etc.

5.6.b. Liner System Requirements

5.6.b.1. Liner system requirements for separate cell(s) dedicated solely to the disposal of drill cuttings and associated drilling waste must meet the requirements of subdivisions 4.5.d and 4.5.e of this rule.

5.6.b.2. The dedicated cell(s) must be designed in a manner that separates the leachate generated in the cell from the leachate in any and all municipal solid waste cells at the facility.

5.6.b.3. The leachate collection and detection lines must be installed in a manner that allows for sampling of the leachate from the dedicated cell.

5.6.b.3.A. Leachate sampling parameters for facilities disposing of drill cuttings and associated drilling waste are in Appendix V of this rule.

5.6.b.3.B. Unless otherwise approved by the Secretary, facilities disposing of drill cuttings and associated drilling waste must sample their leachate monthly for the parameters found in Appendix V of this rule.

5.6.b.3.C. Any facility permitted to accept drilling wastes that does not transfer leachate off-site for additional treatment, must sample and analyze the output fluid from on-site leachate treatment systems to include the sampling parameters in Appendix V of this rule on a quarterly basis.

5.6.c. Waste Profiling Requirements.

5.6.c.1. Drill Cuttings and Associated Drilling Waste.

5.6.c.1.A. Prior to the acceptance and disposal of drill cuttings and associated drilling waste, a permittee must apply for and obtain a special waste minor permit modification in accordance with subsection 4.13 of this rule.

5.6.c.1.B. The facility must obtain from the generator results from at least one composite sample from the lateral or horizontal portion of each well bore unless otherwise approved by the Secretary. The American Petroleum Institute (API) well number must be included in the profile.

5.6.c.1.C. At a minimum the following analyses must be submitted with each special waste minor permit modification application:

5.6.c.1.C.1. Toxicity Characterization Leaching Procedure (TCLP) Metals, EPA Method 1311; TCLP Volatile Organic Compounds, EPA Method 8260B; TCLP Semivolatile Organic Compounds, EPA Method 8270C; and Total Petroleum Hydrocarbons (TPH), EPA Method 8015C. Sampling results for these parameters must not exceed the limits of 40 C.F.R. § 261.24;

5.6.c.1.C.2. Percent Solids, EPA Method Number 160.3 or 2540.

5.6.d. Radiation Monitoring

5.6.d.1. All Solid Waste Facilities that accept drill cuttings and associated drilling waste for disposal must install fixed radiation detection equipment at the entrance to the facility. All drill cuttings and associated drilling wastes generated in the exploration, production and development of oil and natural gas and associated activities must be evaluated by this equipment. The facility must also have a portable radiation monitor capable of determining dose rate and the presence of contamination on a vehicle. The facility shall provide staff with documented training in the operation of all onsite radiation monitors.

5.6.d.2. The fixed detector must be capable of measuring exposure rates from ten microroentgens per hour (10 µR/hr) to greater than fifty milliroentgens per hour (>50 mR/hr.). The instrument must be maintained and calibrated according to manufacturer specifications.

5.6.d.2. The detector elements must be configured to be as close as practical to the waste load and in an appropriate geometry to monitor the waste.

5.6.d.3. The facility shall set the detector to sound an alarm if the reading on the detector exceeds 10µR/hr. above local background.

5.6.d.4. If a load of drilling cuttings or associated drilling waste is confirmed to be less than ten microroentgens per hour (10 µR/hr.) above local background level, the waste may be disposed of in the facility. If the load of waste is confirmed to be equal to or greater than 10 µR/hr. above local background level, the combined concentration of Radium 226 and Radium 228 must be determined. The combined concentration must be analyzed by a State approved method. If the combined concentration in the waste is less than five picocuries per gram (5pCi/gr.) above local background level, the waste may be disposed in the facility. If the values are greater than 5pCi/gr. above local background level, the load must be rejected.

5.6.d.5. For each radiation alarm generated the facility shall provide an incident report to both the West Virginia Department of Environmental Protection (DEP) and West Virginia Department of Health and Human Resources (DHHR) Radiological Health Program using Form 1W Solid Waste Radioactivity Reporting Form within 24 hours of the initial alarm. Form 1W can be obtained by contacting the DHHR Radiological Health Program.

5.6.d.6. Solid Waste facilities accepting drill cuttings and associated wastes must submit and obtain approval from both the DEP and the DHHR Radiological Health Program of a Radiation Monitoring Plan that outlines the facility’s procedures for managing the waste.

5.6.e. A commercial solid waste facility located in a county that is, in whole or in part, within a karst region as determined by the West Virginia Geologic and Economic Survey, may not accept drill cuttings and drilling waste generated from horizontal well sites.

5.7. Requirements for Uncommon or Miscellaneous Facilities.

5.7.a. Green Boxes, Bins, Roll-Offs, and Dumpsters. Each person who causes to be placed a green box, bin, roll-off or dumpster at places other than approved solid waste facilities are responsible for maintenance, prevention of litter, open dump control, and leachate management at the site of the dumpster.

5.7.b. Composting. (Reserved)

Note: Composting requirements are regulated under 33CSR2 “Sewage Sludge Management Rule,” and 33CSR3 “Yard Waste Composting Rule.”

W. Va. Code R. § 33-1-6 Closure and Post-Closure Care

6.1. Permanent Closure Criteria.

6.1.a. Applicability. -- Any person who maintains or operates a solid waste facility must, when the fill area or portion thereof reaches final grade or when the Secretary determines that closure is required, cease to accept waste and perform closure activities at the facility or portion thereof in accordance with the plan approval issued by the Secretary and the provisions of subsection 6.1 of this rule, unless otherwise approved by the Secretary in writing.

6.1.a.1. Upon request of the permittee, or upon the Secretary’s own initiative, the Secretary may waive or modify any of the closure requirements of section 6 of this rule or allow alternative permit conditions or practices as appropriate for a specific coal combustion by-product facility or industrial solid waste facility, based upon the type of wastes disposed, type of facility, site characteristics, and sound engineering judgment.

6.1.b. Notification Procedures.

6.1.b.1. At least one hundred twenty (120) days prior to closing the facility, the permittee must notify the Secretary in writing of the intent to close the facility and the expected date of closure. Prior to this date, the permittee must notify all users of the facility of the intent to close the facility so that alternative disposal options may be evaluated.

6.1.b.2. Signs must be posted at all points of access to the facility at least thirty (30) days prior to closure indicating the date of closure and alternative disposal facilities.

6.1.b.3. Notice of the upcoming closure must be a Class II legal advertisement, which must be published in a local newspaper at least thirty (30) days prior to closure, and a copy of the notice must be provided to the Secretary within ten (10) days of the date of publication.

6.1.c. Restricted Access. -- Within ten (10) days after ceasing to accept waste, the permittee must restrict access by the use of gates, fencing or other appropriate means to ensure against further use of the facility. If the final use allows access, such access must be restricted until closure has been completed and approved by the Secretary.

6.1.d. Deed Notation.

6.1.d.1. Following closure of all portions of the SWLF, the owner or operator must record a deed notation to the SWLF facility property with the county clerk’s office that must be available with the deed of the property, which will in perpetuity notify any potential purchaser of the following: (The permittee must also retain a copy of the deed notation in the facility operating record.)

6.1.d.1.A. The land has been used as a landfill facility;

6.1.d.1.B. Its use is restricted under paragraph 6.3.f.3 to ensure post-closure care, including any use that would interfere with maintaining the integrity and effectiveness of the final cover and maintaining the system to control the formation and release of leachate and explosive gases into the environment.

6.1.d.1.C. The permittee may request permission from the Secretary to remove the notation from the deed if all wastes are removed from the facility.

6.1.d.2. The deed must include at a minimum:

6.1.d.2.A. A survey plot indicating the location and dimension of the landfill;

6.1.d.2.B. A record of waste, including type, location, and quantity of waste disposed of at the site; and

6.1.d.2.C. Disposal location of asbestos and any other waste specified by the Secretary.

6.1.d.3. A certification of deed notation must be filed with the Secretary within ninety (90) days of closure.

6.1.e. Closure and Post-Closure Care.

6.1.e.1. Unless otherwise approved by the Secretary in writing, the closure plan must include the installation of a final cover system that is designed to minimize infiltration and erosion, as follows:

6.1.e.1.A. The permittee must provide a final cover system comprised of an erosion layer underlain by an infiltration layer and grading in the following manner:

6.1.e.1.A.1. Gas Management Layer. -- A one (1) foot layer of a material with a high hydraulic conductivity or a geocomposite drainage layer having a permeability of at least 1 X 10-3 cm/sec may be used in lieu of the one (1) foot drainage layer must be placed directly on the intermediate cover to facilitate landfill gas control;

6.1.e.1.A.2. Clay Cap Layer. -- A cap consisting of a uniform and compacted one (1) foot layer of clay that is no more permeable than 1 x 10-7 cm/s must be placed and graded over the entire surface of each final lift in six (6) inch lifts. The Secretary may, in the issued permit, approve the use of a synthetic material in lieu of the layer of clay;

6.1.e.1.A.2.1. An alternative clay cap layer may be approved by the Secretary on a site-specific basis. In no case may this (infiltration) layer be comprised of less than a minimum of eighteen (18) inches of earthen material that has a permeability less than or equal to the permeability of any bottom liner system or natural subsoils present, or a permeability no greater than 1 x 10-5 cm/sec, whichever is less; and

6.1.e.1.A.3. Drainage Layer. -- A one (1) foot drainage layer that is more permeable than 1 X 10-3 cm/s or a geocomposite drainage layer having a permeability of at least 1 X 10-3 cm/sec may be used in lieu of the one (1) foot drainage layer, capable of transmitting flow and preventing erosion must be placed over the cap.

6.1.e.1.A.4. Vegetative Cover Layer. -- A uniform and compacted layer of soil that is at least two (2) feet in thickness and capable of supporting vegetation must be placed over the drainage layer. The erosion layer portion of the drainage layer must consist of a minimum six (6) inches of earthen material that is capable of sustaining native plant growth.

6.1.e.1.B. The permittee must install an appropriate gas management system, active or passive, if required by W. Va. Code and all rules promulgated thereunder, to collect and control methane and other explosive gases. At a minimum, passive gas vents must be installed at a ratio of one (1) per acre.

6.1.e.1.C. Placement of Final Cover. -- The operator must install a final cover system as described in subdivision 6.1.e. within six (6) months after disposal in the final lift ceases or as soon thereafter as weather permits, unless the permittee obtains written approval from the Secretary allowing a later period, based on a demonstration that a later period is necessary to protect the cap and drainage layer from differential settlement of waste at the facility. The Secretary will not allow a later period unless, at a minimum, delayed installation will not cause or allow any violations of any provision of this rule, or based on a demonstration that a later period is necessary to protect the cap and drainage layer from differential settlement of waste at the facility.

6.1.e.1.D. Surface water run-on must be diverted around all areas used for waste disposal to limit the potential for erosion of the cover soils and increased infiltration. Drainage swales conveying surface water runoff over previous waste disposal areas must be lined with a minimum thickness of two (2) feet of earthen material or a layer of synthetic material acceptable to the Secretary.

6.1.e.1.E. The grade of the final surface of the facility must not be less than three percent (3%) nor more than twenty-five percent (25%) unless otherwise approved by the Secretary as a part of the issued permit. Long slopes must incorporate runoff control measures and terracing in order to minimize erosion. For sites having a natural slope greater than twenty-five percent (25%), a slope up to thirty-three percent (33%) may be considered acceptable if terracing is incorporated at least every twenty (20) feet of vertical distance with runoff control.

6.1.e.1.F. Within ninety (90) days after the placement of the final cover system, the permittee must complete seeding, fertilizing, and mulching of the finished surface. The seed type and amount of fertilizer applied must be selected depending on the type and quality of topsoil and compatibility with both native vegetation and the final use. Unless otherwise approved by the Secretary in writing, seed mixture and application rates must be in accordance with subdivision 4.5.f of this rule.

6.1.e.1.G. Additional information may be required at the discretion of the Secretary.

6.1.e.1.H. A closure plan for solid waste facilities other than landfills must include the requirements of subparagraphs 6.1.e.1.D and 6.1.e.1.E of this rule and any other requirement specified by the Secretary.

6.1.e.2. Alternative Final Cover Design. -- The Secretary may approve an alternative final cover design that includes:

6.1.e.2.A. An infiltration layer that achieves an equivalent reduction in infiltration as the infiltration layer specified in subparagraph 6.1.e.1.A; and

6.1.e.2.B. An erosion layer that provides equivalent protection from wind and water erosion as the erosion layer specified in part 6.1.e.1.A.4.

6.1.e.3. The permittee must prepare a written closure plan that describes the steps necessary to close all portions of the SWLF at any point during its active life, in accordance with the cover design requirements in paragraph 6.1.e.1 or 6.1.e.2, as applicable.

6.1.e.3.A. The closure plan, at a minimum, must include the following information:

6.1.e.3.A.1. A description of the final cover, designed in accordance with paragraph 6.1.e.1 and the methods and procedures to be used to install the cover;

6.1.e.3.A.2. An estimate of the largest area of the SWLF ever requiring a final cover, as required under paragraph 6.1.e.1, at any time during the active life;

6.1.e.3.A.3. An estimate of the maximum inventory of wastes ever on-site over the active life of the landfill facility; and

6.1.e.3.A.4. A schedule for completing all activities necessary to satisfy the closure criteria in section 6 of this rule.

6.1.e.4. The permittee must notify the Secretary that a closure plan has been prepared and placed in the operating record no later than the date of the initial receipt of waste.

6.1.e.5. Prior to beginning closure of each portion of the SWLF, as specified in paragraph 6.1.e.6, a permittee must notify the Secretary that a notice of the intent to close a portion of the SWLF has been placed in the operations record.

6.1.e.6. The permittee must begin closure activities of each portion of the SWLF no later than thirty (30) days after the date on which the SWLF receives the known final receipt of wastes or, if the SWLF has remaining capacity and there is a reasonable likelihood that the SWLF will receive additional wastes, no later than one (1) year after the most recent receipt of wastes.

6.1.e.6.A. Extensions beyond the one-year deadline for beginning closure may be granted by the Secretary if the permittee demonstrates that the SWLF has the capacity to receive additional wastes, and the permittee has taken and will continue to take all steps necessary to prevent threats to human health and the environment from the unclosed portion of the SWLF.

6.1.e.7. The permittee of all SWLFs must complete closure activities of each SWLF in accordance with the closure plan within one hundred eighty (180) days following the beginning of closure as specified in paragraph 6.1.e.6 of this rule, unless otherwise approved by the Secretary in writing.

6.1.e.7.A. Extensions of the closure period may be granted by the Secretary if the permittee demonstrates that closure will, of necessity, take longer than one hundred eighty (180) days and he or she has taken and will continue to take all steps to prevent threats to human health and the environment from the unclosed portion of the SWLF.

6.1.f. Final Use at Landfills. -- The following activities are prohibited at closed landfills, unless specifically approved by the Secretary in writing:

6.1.f.1. Use of the facility for agricultural purposes;

6.1.f.2. Establishment or construction of any buildings; or

6.1.f.3. Excavation of the final cover or any waste materials.

6.1.g. Certification by Registered Professional Engineer.

6.1.g.1. Following closure of each portion of the SWLF, all closure activities must be inspected and approved by a registered professional engineer prior to the application to the Secretary for closure approval. The permittee must also notify the Secretary in writing of this certification, signed by an independent registered professional engineer and approved by the Secretary, verifying that closure has been completed in accordance with the closure plan. A copy of all related information must be retained in the facility operating record.

6.1.h. Closure Approval. -- Upon completion of requirements related to closure, the Secretary will issue a final closure approval. The date of the Secretary’s final closure approval must be the date of commencement of the post-closure bond liability period.

6.2. Inactive Status. -- Upon application to the Secretary, a permittee may request inactive status for a period not to exceed six (6) months. To qualify for inactive status, the permittee must:

6.2.a. Intermediate Cover. -- Demonstrate that all solid wastes are covered by at least one (1) foot of intermediate cover.

6.2.b. Final Cover. -- Demonstrate that all areas where solid waste disposal is complete have been covered with final cover as described in subparagraph 4.6.b.2.C of this rule.

6.2.c. Revegetation. -- Demonstrate that all disturbed areas have been seeded in accordance with the revegetation plans specified by subdivision 4.5.f of this rule.

6.2.d. Restricted Access. -- Restrict access to the area.

6.2.e. Maintenance of Leachate Control. -- Demonstrate that leachate collection and treatment will be maintained.

6.2.f. Deed Notation. -- Demonstrate that notations have been made in permanent deed records in the county clerk’s office that the site has been used as a solid waste facility.

6.2.g. Other Assurances. -- Provide any other assurance specified by the Secretary.

6.3. Post-Closure Care Requirements. -- Following closure of each portion of the SWLF, the permittee must conduct post-closure care as required by the permit. Post-closure care must continue for up to thirty (30) years after final closure of areas unless otherwise modified by the Secretary and must consist of the following:

6.3.a. Monitoring. -- Monitoring must continue as specified in the monitoring plan required by the permit.

6.3.b. Repair of Settlement. -- Any settling of solid waste that occurs up to thirty (30) years after the date of final closure, causing ponding of waters in areas of solid waste deposits, must be repaired promptly. Such repairs must include any necessary regrading, additions of fill material, and revegetation of settled areas, while maintaining the integrity and effectiveness of any final cover, including making repairs to the cover as necessary to correct the effects of settlement, subsidence, erosion or other events, and preventing run-on and run-off from eroding or otherwise damaging the final cover;

6.3.c. Repair of Cover Material. -- Any cracking or erosion of cover material that occurs and may cause waters to enter solid waste deposits must be repaired immediately. Such repairs must include any necessary regrading, additions of cover material, and revegetation to eliminate such cracks or eroded areas.

6.3.d. Site Monitoring. -- Further disposal of solid waste at a closed solid waste facility is prohibited. The closed solid waste facility must be monitored by the permittee at a minimum frequency of once each month during the post-closure period to ensure that solid waste deposits and vandalism do not occur at the closed solid waste facility. Any solid waste deposited at the closed solid waste facility during the post-closure period must be promptly removed and disposed of at an approved solid waste facility. Evidence of disease vectors must be treated promptly.

6.3.d.1. Maintaining and operating the leachate collection system in accordance with the requirements in paragraph 4.5.d.1.

6.3.d.1.A. The Secretary may allow the permittee to stop managing leachate if the permittee demonstrates that leachate no longer poses a threat to human health and the environment;

6.3.d.2. Monitoring the groundwater in accordance with the requirements of subsection 4.11 and maintaining the groundwater monitoring system, if applicable; and

6.3.d.3. Maintaining and operating the gas monitoring system in accordance with the requirements of subsection 4.10 of this rule.

6.3.e. Length of the Post-Closure Care Period. -- The length of the post-closure care period may be:

6.3.e.1. Decreased by the Secretary if the permittee demonstrates that the reduced period is sufficient to protect human health and the environment and this demonstration is approved by the Secretary; or

6.3.e.2. Increased by the Secretary, if the Secretary determines that the lengthened period is necessary to protect human health and the environment.

6.3.f. Post-Closure Plan. -- The permittee of all SWLFs must prepare a written post-closure plan that includes, at a minimum, the following information:

6.3.f.1. A description of the monitoring and maintenance activities required in subsection 6.3 for each SWLF and the frequency at which these activities will be performed;

6.3.f.2. Name, address, and telephone number of the person or office to contact about the facility during the post-closure period; and

6.3.f.3. A description of the planned uses of the property during the post-closure period.

6.3.f.3.A. Post-closure use of the property must not disturb the integrity of the final cover, liner(s), or any other components of the containment system or the function of the monitoring systems, unless necessary to comply with the requirements in this rule.

6.3.f.3.B. The Secretary may approve any other disturbance if the permittee demonstrates that disturbance of the final cover, liner or other component of the containment system, including any removal of waste, will not increase the potential threat to human health or the environment.

6.3.g. The permittee must notify the Secretary that a post-closure plan has been prepared and placed in the operating record no later than the date of the initial receipt of waste.

6.3.g.1. Following completion of the post-closure care period for each portion of the SWLF, the permittee must notify the Secretary that a certification, signed by an independent registered professional engineer and approved by the Secretary, verifying that post-closure care has been completed in accordance with the post-closure plan, has been placed in the operating record.

6.4. Final Post-Closure Inspection.

6.4.a. If the permittee of a solid waste facility believes that post-closure requirements have been met, the permittee may file a request for a final post-closure inspection with the Secretary.

6.4.b. Upon a request for a final post-closure inspection, the Secretary will inspect the facility to verify that final post-closure has been completed as follows:

6.4.b.1. The applicable operating requirements of the Solid Waste Management Act and all other environmental laws of the State of West Virginia, the rules and regulations of the West Virginia Department of Environmental Protection, all terms and conditions of the facility permit(s), including the approved closure plan and all orders issued by the Secretary have been complied with.

6.4.b.2. No further remedial action, maintenance or other activity by the permittee is necessary to continue compliance with the Solid Waste Management Act, all other environmental laws of the State of West Virginia, the rules and regulations of the Department, orders issued by the Secretary, and the terms and conditions of the permit and the approved closure plan.

6.4.b.3. The facility is not causing and will not cause any adverse effects on the environment and is not causing a nuisance.

6.4.c. Upon a finding by the Secretary that the facility is in compliance with all factors listed in subsection 6.4 of this rule, the permittee will be eligible for bond release pursuant to subsection 6.6 of this rule.

6.4.d. Upon a finding by the Secretary that the facility is not in compliance with all the factors listed in subsection 6.4 of this rule, the Secretary will initiate proceedings for bond forfeiture pursuant to subsection 6.5 of this rule.

6.5. Bond Forfeiture.

6.5.a. Procedure. -- If the Secretary declares a bond or any other form of financial assurance provided by the permittee forfeited, the Secretary will:

6.5.a.1. Send written notification of the Secretary’s determination to declare the bond forfeit and the reasons for the forfeiture to the principal, to the bond surety, and to every county or regional solid waste authority in the area that utilizes the facility;

6.5.a.2. Advise the principal and surety of the right to appeal to circuit court; and

6.5.a.3. Proceed to collect on the bond as provided by applicable laws for the collection of defaulted bonds or other debts.

6.5.b. Collateral Bonds and other Forms of Financial Assurance. -- If the Secretary declares a collateral bond forfeited, the Secretary will pay, or direct the State Treasurer to pay, the collateral funds into an appropriate Solid Waste Fund. If, upon proper demand and presentation, the banking institution or other person or municipality that issued the collateral refuses to pay the Department the proceeds of a collateral undertaking, such as a certificate of deposit, letter of credit or government negotiable bond, the Secretary will take appropriate steps to collect the proceeds.

6.5.c. Surety Bond. -- If the Secretary declares a surety bond forfeited, he or she will certify the same to the Office of the West Virginia Attorney General, which will proceed to enforce and collect the amount forfeited, which will, upon collection, be paid into an appropriate Solid Waste Fund.

6.5.d. Use of Funds. -- Monies received from the forfeiture of bonds and interest accrued will be used first to accomplish final closure of, and to take steps necessary and proper to remedy and prevent adverse environmental effects from, the solid waste facilities upon which liability was charged on the bonds. Any monies remaining after such final closure, post-closure, and all necessary remedial actions have been accomplished must be deposited in the Solid Waste Enforcement Fund that was established pursuant to W. Va. Code §22-15-11(h)(1).

6.6. Release of Bonds.

6.6.a. Request. -- An operator seeking a release of a bond previously submitted to the Secretary must file a written request with the Secretary for release of the bond amount after inspection or after posting a replacement bond in accordance with the provisions of subsection 3.13 of this rule.

6.6.b. Application. -- The application for bond release must contain the following:

6.6.b.1. The name of the permittee and identification of the facility for which bond release is sought;

6.6.b.2. The total amount of the bond in effect for the facility; and

6.6.b.3. Other information that may be required by the Secretary.

6.6.b.4. The release or forfeiture of a bond by the Secretary does not constitute a waiver or release of other liability provided in law, nor does it abridge or alter rights of action or remedies of a person or municipality now or hereafter existing in equity or under common law or statutory law, both criminal and civil.

6.6.b.5. The Secretary may grant bond releases immediately upon final closure for facilities other than landfills, if it is clearly demonstrated that further monitoring, restoration or maintenance is not necessary to protect the public health, safety and welfare, and the environment.

6.7. Preservation of Remedies. -- Remedies provided or authorized by law for a violation of applicable Federal or State statutes, the regulations or rules promulgated thereunder, orders issued by the Secretary or the terms and conditions of permits are expressly preserved. Nothing in this rule is an exclusive penalty or remedy for such a violation. No action taken under this rule waives or impairs another remedy or penalty provided in law or equity.

W. Va. Code R. § 33-1-7 Open Dumps

7.1. Prohibitions.

7.1.a. No person may create or operate an open dump.

7.1.b. No person may contribute additional solid waste to an open dump at any time.

7.1.c. Except as provided in subdivisions 7.1.d and 7.1.e of this rule, no landowner may allow an open dump to exist on his or her property, unless such open dump is under a compliance schedule approved by the Secretary.

7.1.d. An open dump operated prior to April 1, 1988 by a landowner or tenant for the disposal of solid waste generated by the landowner or tenant at his or her residence or farm is not deemed to constitute a violation of subdivision 7.1.c of this rule, if such open dump did not constitute a violation of law on January 1, 1988.

7.1.d.1. After April 1, 1988, no additional solid waste may be contributed to an open dump operated by a landowner or tenant for the disposal of solid waste generated by the landowner or tenant at his or her residence or farm.

7.1.d.2. The landowner or tenant who operated an open dump for the disposal of solid waste generated at his or her residence or farm must, at a minimum, cover the accumulated waste with two (2) feet of topsoil.

7.1.e. An unauthorized dump created by unknown persons is not deemed to constitute a violation of subdivision 7.1.c of this rule, and the owner of the land on which such dump is located is not liable for unauthorized dumping, unless he refuses to cooperate with the Department in stopping the dumping. Cooperation with the Department may include, but is not limited to, the following:

7.1.e.1. The posting of signs stating that dumping is illegal;

7.1.e.2. The erection of fencing to surround the accumulated waste;

7.1.e.3. Surveillance of the open dumping areas to determine the identity of contributors to such open dumps;

7.1.e.4. The removal and keeping of certain indications of ownership as contemplated by W. Va. Code §22-15A-4(b); or

7.1.e.5. Testimony before a judicial officer regarding the identity of contributors to the dump.

7.1.f. Open burning of solid waste is prohibited.

7.2. Protection of the Environment and the Public.

7.2.a. Any site at which the following protective measures have not been instituted will be classified as an open dump:

7.2.a.1. Measures must be taken to prevent the discharge of pollutants from the accumulated waste into the waters of the State (e.g., measures to prevent runoff into surface water bodies or the infiltration of leachates into local aquifers);

7.2.a.2. Measures must be taken to impede the access of disease vectors to the accumulated waste (e.g., the application of cover material at appropriate frequencies or other techniques approved in writing by the Secretary);

7.2.a.3. Measures must be taken to prevent the introduction of hazardous or infectious materials to the accumulated waste;

7.2.a.4. Measures must be taken to reduce the risk of fire in the accumulated waste (e.g., venting measures to reduce the concentration of explosive gases generated by the waste);

7.2.a.5. Measures must be taken to limit public access to the accumulated waste (e.g., the erection of fencing to surround the accumulated waste);

7.2.a.6. Measures must be taken to prevent adverse impacts to area wildlife, particularly with regard to the destruction or adverse modification of habitat critical to any endangered or threatened species of animal or plant; and

7.2.a.7. Any other similar measures specified by the Secretary in Department policy, regulation or rule.

7.3. Schedules of Compliance for Open Dumps.

7.3.a. Schedules of compliance for open dumps will contain a sequence of enforceable actions.

7.3.b. Schedules of compliance for open dumps may not exceed a total time period for all compliance actions of two (2) years from the date of issuance.

7.4. Enforcement.

7.4.a. If the Secretary has reasonable cause to believe that a potential for environmental or aesthetic degradation or for harm to the health, safety or welfare of the public exists at any open dump, he or she may require any person responsible for that open dump to conduct such tests or furnish such information as may be reasonably required to determine whether that dump is or may be causing said degradation or harm.

7.4.b. The Department may conduct any test deemed necessary by the Secretary in making an investigation or determination of a potential for environmental or aesthetic degradation or for harm to the health, safety, or welfare of the public exists at any open dump.

7.4.c. The Secretary may perform, or require a person by order to perform, any and all acts necessary to carry out the provisions of the Act, regulations or rules with regard to an open dump.

7.4.c.1. Any person having an interest that is or may be affected or who is aggrieved by any order of the Secretary with regard to an open dump may appeal such order to the Environmental Quality Board pursuant to the provisions of W. Va. Code §22B-3-1, et seq.

7.5. Cooperation with the State Division of Highways.

7.5.a. Roadway Specifications. -- Standards and design specifications for roadways that provide access to municipal solid waste facilities, as promulgated by the commissioner of the West Virginia Division of Highways, are hereby incorporated by reference. A municipal solid waste facility permit may be suspended or revoked if the owner or operator fails to comply with such roadway specifications.

7.5.b. Waste-In-Transit Inspections. -- The Secretary may designate authorized representatives to coordinate with authorized representatives of the commissioner of the West Virginia Division of Highways and the West Virginia Public Service Commission in conducting inspections of solid waste in transit. Such waste-in-transit inspections will be conducted at weigh stations or other designated sites throughout the State pursuant to rules or regulations promulgated by the Division of Highways.

7.6. Cooperation with the West Virginia State Tax Department.

7.6.a. The Department will cooperate with the State Tax Commissioner in the handling of proceeds received by the State Tax Department from fees collected pursuant to the Act.

7.7. Cooperation with the State Health Division.

7.7.a. The Department will cooperate with the West Virginia Department of Health and Human Services’ Bureau for Public Health in assessing the potential for contamination of public water supplies from any proposed or approved solid waste facility, open dump or other property where solid waste is present.

7.8. Cooperation with County and Regional Solid Waste Authorities.

7.8.a. The Department will provide such technical assistance concerning the handling and disposal of solid waste to each county and regional solid waste authority as is reasonable and practicable with existing Department resources and appropriations available for such purposes.

APPENDIX I

CONSTITUENTS FOR PHASE I DETECTION MONITORING1

GROUP A:

Inorganic Constituents:

COMMON NAME2 CAS RN3

Acidity (Total)

Aluminum (Total)

Alkalinity (Total)

Ammonia Nitrogen (Total)

Antimony (Total)

Arsenic (Total)

Barium (Total)

Beryllium (Total)

Bicarbonates (mg/l)

Boron (Total)

Cadmium (Total)

Chlorides (Total)

Chromium (Total)

Cobalt (Total)

COD (mg/l)

Copper (Total)

Dissolved Manganese (Total)

Iron (Total)

Lead (Total)

Magnesium (Total)

Mercury (Total)

Molybdenum (Total)

Nickel (Total)

Nitrate (Total) pH (Std. Units)

Potassium (Total)

Selenium (Total)

Silver (Total)

Sodium (Total)

Specific Conductance (µmhos/cm)

Sulfate (Total)

TDS (mg/l)

Thallium (Total)

TOC (mg/l)

Total Phenolic Materials (Total)

TSS (Total)

Turbidity (Total)

Vanadium (Total)

Zinc (Total)

In addition to the above, the following parameters should be analyzed:

Temperature, (BOD-5day), flouride and calcium.

GROUP B:

Organic Constituents:

COMMON NAME2 CAS RN3

Acetone 67-64-1 Acrylonitrile 107-13-1 Benzene 71-43-2 Bromochloromethane 74-97-5 Bromodichloromethane 75-27-4 Bromoform; Tribromomethane 75-25-2 Carbon disulfide 75-15-0 Carbon tetrachloride 56-23-5 Chlorobenzene 108-90-7 Chloroethane; Ethyl chloride 75-00-3 Chloroform; Trichloromethane 67-66-3 Dibromochloromethane; Chlorodibromomethane 124-48-1 1,2-Dibromo-3-chloropropane; DBCP 96-12-8 1,2,-Dibromoethane; Ethylene dibromide; EDB 106-93-4 o-Dichlorobenzene; 1,2-Dichlorobenzene 95-50-1 p-Dichlorobenzene; 1,4-Dichlorobenzene 106-46-7 trans-1,4-Dichloro-2-butene 110-57-6 1,1-Dichloroethane; Ethylidene chloride 75-34-3 1,2-Dichlorethanel Ethylene dichloride 107-06-2 1,1-Dichloroethylene; 1,1-Dichloroethene;

Vinylidene chloride 75-35-4 cis-1,2-Dichlorethylene; cis-1,2- Dichloroethene 156-59-2 trans-1,2-Dichloroethylene; trans-1,2- Dichloroethene 156-60-5 1,2-Dichloropropane; Propylene dichloride 78-87-5 cis-1,3-Dichloropropene 10061-01-5 trans-1,3-Dichloropropene 10061-02-6 Ethylbenzene 100-41-4 2-Hexanone; Methyl butyl ketone 591-78-6 Methyl bromide; Bromomethane 74-83-9 Methyl chloride; Chloromethane 74-87-3 Methylene bromide; Dibromomethane 74-95-3 Methylene chloride; Dichloromethane 75-09-2 Methyl ethyl ketone; MEK; 2-Butanone 78-93-3 Methyl iodide; Iodomethane 74-88-4 4-Methyl-2-pentanone; Methyl isobutyl ketone 108-10-1 Styrene 100-42-5 1,1,1,2-Tetrachloroethane 630-20-6 1,1,2,2-Tetrachloroethane 79-34-5 Tetrachloroethylene; Perchloroethylene 127-18-4 Toluene 108-88-3 1,1,1-Trichloroethane; Methyichloroform 71-55-6 1,1,2-Trichloroethane 79-00-5 Trichloroethylene; Trichloroethene 79-01-6 Trichlorofluoromethane; CFC-11 75-69-4 1,2,3-Trichloropropane 96-18-4 Vinyl acetate 108-05-4 Vinyl chloride 75-01-4 Xylenes 1330-20-7 1. This list contains volatile organics for which possible analytical procedures provided in EPA Report SW-846 “Test Methods for Evaluating Solid Waste,” third edition, November 1986, as revised December 1987, includes Method 8260 and 8011; and metals for which SW-846 provides either Method 6010 or a method from the 7000 series of methods.

2. Common names are those widely used in government regulations, scientific publications, and commerce; synonyms exist for many chemicals.

3. Chemical Abstracts Service registry number. Where “Total” is entered, all species in the groundwater that contain this element are included.

APPENDIX II

PHASE II ASSESSMENT MONITORING

HAZARDOUS INORGANIC AND ORGANIC CONSTITUENTS1

CHEMICAL ABSTRACTS SUGGESTED PQL

COMMON NAME2 CAS RN3 SERVICE INDEX NAME4 METHODS5 UG/L)6

Acenaphthene 83-32-9 Acenaphthylene,1,2-dihydro- 8100 200 Acenaphthylene 208-96-8 Acenaphthylene 8100 200 Acetone 67-64-1 2-Propanone 8260 100 Acetonitrile; Methyl cyanide 75-05-8 Acetonitrile 8015 100 Acetophenone 98-86-2 Ethanone, 1-phenyl 8270 10 2-Acetylamino fluorene; 2-AAF 53-96-3 Acetamide,N-9H-fluoren-2-yl- 8270 20 Acrolein 107-02-8 2-Propenal 8030 5 8260 100 Acrylonitrile 107-13-1 2-Propenenitrile 8030 5 8260 200 Aldrin 309-00-2 1,4,5,8-Dimethanonaphthalene, 8080 0.05 1,2,3,4,10,10-hexachloro- 8270 10 1,4,4a,5,8,8a-hexahydro- (1a,4a,4aB,5a,8a,8aB)- Allyl chloride 107-05-1 1-Propene, 3-chloro- 8010 5 4-Aminobiphenyl 92-67-1 {1,11--Biphenyl}-4-amine 8270 20 Anthracene 120-12-7 Anthracene 8100 200 Antimony (Total) Antimony 6010 300 7040 2000 7041 30 Arsenic (Total) Arsenic 6010 500 7060 10 7061 20 Barium (Total) Barium 6010 20 7080 1000 Benzene 71-43-2 Benzene 8020 2 Benzo(a)anthracene;Benzathracene 56-55-3 Benz(a)anthracene 8100 200 Benzo(b)fluoranthene 205-99-2 Benz(e)acephenanthrylene 8100 200 Benzo(k)fluoranthene 207-08-9 Benzo(k)fluoranthene 8100 200 Benzo(ghi)perylene 191-24-2 Benzo(ghi)perylene 8100 200 Benzo(a)pyrene 50-32-8 Benzo)a)pyrene 8100 200 Benzyl alcohol 100-51-6 Benzenemethanol 8270 20 Beryllium (Total) Beryllium 6010 3 7090 50 7091 2 alpha-BHC 319-84-6 Cyclohexane, 1,2,3,4,5,6- 8080 0.05 hexachloro-, (1a,2a,3B,4a,5B,6B) 8270 10 beta-BHC 319-85-7 Cyclohexane, 1,2,3,4,5,6- 8080 0.05 hexachloro-, (1a,2a,3B,4a,5B,6B) 8270 20 delta-BHC 319-86-8 Cyclohexane, 1,2,3,4,5,6- 8080 0.1 hexachloro-, (1a,2a,3a,4B,5a,6B) 8270 20 gamma-BHC;Lindane 58-89-9 Cyclohexane, 1,2,3,4,5,6- 8080 0.05 hexachloro-, (1a,2a,3B,4a, 5a,6B) 8270 20 Bis(2-chloroethoxy)methane 111-91-1 Ethane, 1,11 -{methylenebis 8110 5 (oxy)}bis{2-chloro 8270 10 Bis(2-chloroethyl)ether; 111-44-4 Ethane, 1,1-oxybis{2-chloro- 8110 3 Dichlor-oethyl ether 8270 10 Bis(2-chloro 1-methylethyl) 108-60-1 Propane, 2,2-oxybis{1-chloro- 8110 10 ether; 2,21-Dichlorodiiso- 8270 10 propyl ether; DCIP See Note 7 Bis(2-ethylhexyl)phthalate 117-81-7 1,2-Benzenedicarboxylic acid, 8060 20 bis(2-ethylhexyl) ester Bromochloromethane; 74-97-5 Methane, bromochloro- 8021 0.1 Chloro-bromomethane 8260 5 Bromodichloromethane; 75-27-4 Methane, bromodichloro- 8010 1 Dibromochloromethane 8021 0.2 Bromoform;Tribromomethane 75-25-2 Methane, tribromo 8010 2 8021 15 4-Bromophenyl.phenyl ether 101-55-3 Benzene, 1-bromo-4-phenoxy 8110 25 Butyl benzyl phthalate; Benzyl 85-68-7 1,2-Benzenedicarboxylic acid, 8060 5 butyl phthalate butyl phenylmethyl ester 8270 10 Cadmium (Total) Cadmium 6010 40 7130 50 7131 1 Carbon disulfide 75-15-0 Carbon disulfide 8260 100 Carbon tetrachloride 56-23-5 Methane, tetrachloro- 8010 1 Chlordane See Note 8 4,7-Methano-1H-indene, 8080 0.1 1,2,4,5,6,7,8,8-octachloro- 8270 50 2,3,3a,4,7,7a-hexahydrop-Chloroaniline 106-47-8 Benzenamine, 4-chloro 8270 20 Chlorobenzene 108-90-7 Benzene, chloro- 8010 2 8020 2 Chlorobenzilate 510-15-6 Benzeneacetic acid, 4-chloro-a- 8270 10 (4-chlorophenyl)-ahydroxyethyl ester p-Chloro-m-cresol; 59-50-7 Phenol, 4-chloro-3-methyl- 8040 5 4-Chloro-3-methylphenol 8270 20 Chloroethane;Ethyl chloride 75-00-3 Ethane, chloro- 8010 5 8021 1 Chloroform,Trichloromethane 67-66-3 Methane, trichloro- 8010 0.5 8021 0.2 2-Chloronaphthalene 91-58-7 Naphthalene, 2-chloro- 8120 10 2-Chlorophenol 95-57-8 Phenol, 2-chloro- 8040 5 4-Chlorophenyl phenyl ether 7005-72-3 Benzene, 1-chloro-4-phenoxy- 8110 40 Chloroprene 126-99-8 1,3-Butadiene, 2-chloro- 8010 50 8260 20 Chromium (Total) Chromium 6010 70 7190 500 7191 10 Chrysene 218-01-9 Chrysene 8100 200 Cobalt (Total) Cobalt 6010 70 7200 500 7201 10 Copper (Total) Copper 6010 60 7210 200 7211 10 m-Cresol; 3-methylphenol 108-39-4 Phenol, 3-methyl 8270 10 o-Cresol; 2-methylphenol 95-48-7 Phenol, 2-methyl 8270 10 p-Cresol; 4-methylphenol 106-44-5 Phenol, 4-methyl 8270 10 Cyanide 57-12-5 Cyanide 9010 200 2,4-D; 2,4-Dichloro- 94-75-7 Acetic acid (2,4-dichloro phenoxy) 8150 10 phenoxyacetic acid 4,41-DDD 72-54-8 Benzene 1,11-(2,2-dichloro- 8080 0.1 ethylidene)bis{4-chloro- 8270 10 4,41-DDE 72-55-9 Benzene 1,11-(dichloro- 8080 0.05 ethyenylidene)bis{4-chloro- 8270 10 4,41-DDT 50-29-3 Benzene 1,11-(2,2,2-trichloro- 8080 0.1 ethylidene)bis 8270 10 {4-chloro-)

Diallate 2303-16-4 Carbamothioic acid, 8270 10 bis(1-methylethyl)-S-(2,3dichloro- 2-propenyl) ester Dibenz{a,h}anthracene 53-70-3 Dibenz{a,h}anthracene 8100 200 Dibenzofuran 132-64-9 Dibenzofuran 8270 10 Dibromochloromethane; 124-48-1 Methane, dirbromochloro- 8010 1 Chlorodibromomethane 8021 0.3 1,2-Dibromo- 96-12-8 Propane, 1,2-dibrome-3-chloro- 8011 0.1 3-chloropropane;DBCP 8021 30 8260 25 1,2-Dibromoethane; 106-93-4 Ethane, 1,2-dibromo 8011 0.1 Ethylene dribromide;EDB 8021 10 Di-n-butyl phthalate 84-74-2 1,2-Benzenedicarboxylic acid, 8060 5 dibutyl ester 8270 10 o-Dichlorobenzene; 95-50-1 Benzene, 1,2-dichloro- 8010 2 1,2-Dichlorobenzene 8020 5 8021 0.5 8120 10 m-Dichlorobenzene; 541-73-1 Benzene, 1,3-Dichloro- 8010 5 1,3-Dichlorobenzene 8020 5 8021 0.2 8120 10 p-Dichlorobenzene; 106-46-7 Benzene, 1,4-Dichloro- 8010 2 1,4-Dichlorobenzene 8020 5 8120 15 3,31--Dichlorobenzidine 91-94-1 {1,11-Biphenyl}-4,41-diamine, 8270 20 3,31--dichlorotrans-1,4-Dichloro-2- 110-57-6 2-Butene, 1,4-dichlor-(E) 8260 100 butene Dichlorodifluoro- 75-71-8 Methane, dichlorodifluoro 8021 0.5 methane; CFC 12 8260 5 1,1-Dichloroethane; 75-34-3 Ethane, 1,1-dichloro 8010 1 Ethyldidene chloride 8021 0.5 1,2-Dichloroethane; 107-06-2 Ethane, 1,1-dichloro 8010 0.5 Ethylene dichloride 8021 0.3 1,1-Dichloroethylene; 75-35-4 Ethene, 1,1-dichloro 8010 1 1,1-Dichloroethene; 8021 0.5 Vinylidene chloride 8260 5 cis-1,2-Dichloroethylene; 156-59-2 Ethene, 1,2-dichloro-,(Z) 8021 0.2 cis-1,2-Dichloroethane 8260 5 trans-1,2-Dichloro- 156-60-5 Ethene, 1,2-dichloro-,(E) 8010 1 ethylene; trans-1,2- 8021 0.5 Dichloroethene 8260 5 2,4-Dichlorophenol 120-83-2 Phenol, 2,4-dichloro- 8040 5 2,6-Dichlorophenol 87-65-0 Phenol, 2,6-dichloro- 8270 10 1,2-Dichloropropane; 78-87-5 Propane, 1,2-dichloro- 8010 0.5 Propylene dichloride 8021 0.05 1,3-Dichloropropane; 142-28-9 Propane, 1,3-dichloro- 8021 0.3 Trimethylene dichloride 8260 5 2,2-Dichloropropane; 594-20-7 Propane, 2,2-dichloro- 8021 0.5 Isopropylidene chloride 8260 15 1,1-Dichloropropene 563-58-6 1-Propene, 1,1-dichloro- 8021 0.2 cis-1,3-Dichloropropene 10061-01-5 1-Propene, 1,3-dichloro-(Z) 8010 20 trans-1,3-Dichloro- 10061-02-6 1-Propene, 1,3-dichloro-(E) 8010 5 propene 8260 10 Dieldrin 60-57-1 2,7:3,6-Dimethanonaphth 8080 0.05 {2,3-b}oxirene, 3,4,5,6,9,9 8270 10 -hexa, chloro-1a,2,2a,3,6,6a,7, 7a-octa- hydro-,(1aa,2B,2aa,3B, 6B,6aa,7B,7aa)

Diethyl phthalate 84-66-2 1,2-Benzenedicarboxylic 8060 5 acid, diethyl ester 8270 10 0,0-Diethyl 0-2- 297-97-2 Phosphorothioic acid, 8141 5 pyrazinyl 0,0-diethyl 0-pyrazinyl ester 8270 20 phosphorothioate; Thionazin Dimethoate 60-51-5 Phosphorodithioic acid, 8141 3 0,0-diethyl,S-{2-(methylamino) 8270 20 -2-oxoethyl} ester p-(Dimethylamino)azobenzene 60-11-7 Benzenamine,N,N-dimethyl- 8270 10 4-(phenylazo) 7,12-Dimethylbenz{a}anthracene- 57-97-6 Benz{a}anthracene, 7,12-dimethyl- 8270 10 3,3-Dimethlbenzidine- 119-93-7 {1,1Biphenyl}-4,4-diamine, 8270 10 3,3-dimethyl- 2,4-Dimethylphenol; 105-67-9 Phenol, 2,4-dimethyl 8040 5 m-Xylenol 8270 10 Dimethyl phthalate 131-11-3 1,2-Benzenedicarboxylic acid, 8060 5 dimethyl ester 8270 10 m-Dinitrobenzene 99-65-0 Benzene, 1,3-dinitro- 8270 20 4,6-Dinitro-o-cresol 534-52-1 Phenol, 2-methyl-4,6-dinitro 8040 150 4,6-Dinitro-2-methylphenol 8270 50 2,4-Dinitrophenol; 51-28-5 Phenol, 2,4-dinitro 8040 150 8270 50 2,4-Dinitroluene 121-14-2 Benzene, 1-methyl-2,4-dinitro- 8090 0.2 2,6-Dinitrotoluene 606-20-2 Benzene, 2-methyl-1,3-dinitro- 8090 0.1 Dinoseb; DNBP; 2-sec- 88-85-7 Phenol, 2-(1-methylpropyl)- 8150 1 Butyl-4,6-dinitrophenol 4,6-dinitro- 8270 20 Di-n-octyl phthalate 117-84-0 1,2-Benzenedicarboxylic acid, 8060 30 dioctyl ester 8270 10 Diphenylamine 122-39-4 Benezenamine, N-phenyl- 8270 10 Disulfoton 298-04-4 Phosphorodithioic acid,0,0-diethyl 8140 2 S-{2-(ethylthio)ethyl}.ester 8141 0.5 Endosulfan I 959-98-8 6,9-Methano-2,4,3-benzodiox- 8080 0.1 athiepin, 6,7,8,9,10,10-hexa- 8270 20 chloro 1,5,5a,6,9,9a-hexahydro, 3-oxide Endosulfan II 33213-65-9 6,9-Methano-2,4,3-benzodiox- 8080 0.05 athiepin, 6,7,8,9,10,10-hexa- 8270 20 chloro 1,5,5a,6,9,9a-hexa-hydro, 3-oxide, (3a,5aa,6B,9B,9aa)- Endosulfan sulfate 1031-07-8 6,9-Methano-2,4,3-benzodiox- 8080 0.5 athiepin, 6,7,8,9,10,10-hex- 8270 10 achloro 1,5,5a,6,9,9a-hexahydro, 3,3-dioxide.

Endrin 72-20-8 2,7:3,6-Dimethanonaphth{2,3-b} 8080 0.1 oxirene,3,4,5,6,9,9-hexachloro- 8270 20 1a,2,2a,3,6,6a,7,7a- octahydro-, (1aa,2B,2aB,3a,6a,6aB,7B,7aa)- Endrin aldehyde 7421-93-4 1,2,4-Methenocyclopenta{cd} 8080 0.2 pentalene-5- carboxaldehyde, 8270 10 2,2a,3,3,4,7-hexachlorodec ahydro-, (1a,2B,2aB,4B,4aB,5B,6aB,6bB,7R)

Ethylbenzene 100-41-4 Benzene, ethyl- 8020 2 8221 0.05 Ethyl methacrylate 97-63-2 2-Propenoic acid, 2-methyl-, 8015 5 ethyl ester 8260 10 Ethyl methanesulfonate 62-50-0 Methanesulfonic acid, ethylester 8270 20 Famphur 52-85-7 Phosphorothioic acid, 0- 8270 20 [4-{(dimethylamino)sulfonyl} phenyl} 0,0-dimethyl ester Fluoranthene 206-44-0 Fluoranthene 8100 200 Fluorene 86-73-7 9-H-Fluorene 8100 200 Heptachlor 76-44-8 4,7-Methano-1H-indene, 1,4,5,6,7, 8080 0.05 8,8-heptachloro-3a,4,7, 8270 10 7a-tetrahydro- Heptachlor epoxide 1024-57-3 2,5-Methano-2H-indeno{1,2-b} 8080 1 oxirene,2,3,4,5,6,7,7-hepta 8270 10 chloro-1a,1b,5,5a,6,2,2, hexahydro-(1aa,1bB,2a,5a, 5aB,6B,6aa)

Hexachlorobenzene 118-74-1 Benzene, hexachloro 8120 0.5 Hexachlorobutadiene 87-68-3 1,3-Butadiene, 1,1,2,3,4, 8021 0.5 4-hexachloro- 8120 5 Hexachlorocyclopentadiene 77-47-4 1,3-Cyclopentadiene, 1,2,3, 4,5, 8120 5 5-hexachloro- 8270 10 Hexacloroethane 67-72-1 Ethane, hexachloro- 8120 0.5 Hexachloropropene 1888-71-7 1-Propene,1,1,2,3,3,3-hexachloro- 8270 10 2-Hexanone; Methyl 591-78-6 2-Hexanone 8260 50 butyl ketone Indeno(1,2,3-cd)pyrene 193-39-5 Indeno(1,2,3-cd)pyrene 8100 200 Isobutyl alcohol 78-83-1 1-Propanol, 2-methyl- 8015 50 8240 100 Isodrin 465-73-6 1,4,5,8-Dimethanonaphthalene, 8270 20 1,2,3,4,10,10-hexachloro- 8260 10 1,4, 4a,5,8,8a hexahydro- (1a,4a, 4aB,5B,8B,8aB)- Isophorone 78-59-1 2-Cyclohexen-1-one,3,5,5 trimethyl 8090 60 Isosafrole 120-58-1 1,3-Benzodioxole, 5-(1-pro-penyl) 8270 10 Kepone 143-50-0 1,3,4-Metheno-2H-cyclobuta{cd} 8270 20 pentalen-2-one,1,1a,3,3a,4,5,5, 5a,5b, 6-decachlorooctahydro- Lead (Total) Lead 6010 400 7420 1000 7421 10 Mercury (Total) Mercury 7470 2 Methacrylonitrile 126-98-7 2-Propenenitrile, 2-methyl- 8015 5 8260 100 Methapyrilene 91-80-5 1,2-Ethanediamine, N.N-dimethyl- 8270 100 N-2-pridinyl-N1/2- thienylmethyl)

Methoxychlor 72-43 5 Benzene,1,1-(2,2,2,trichloro- 8080 2 ethylidene) bis{4-methoxy- 8270 10 Methyl bromide; 74-83-9 Methane, bromo- 8010 20 Bromomethane 8021 10 Methyl chloride; 74-87-3 Methane, chloro- 8010 1 Chloromethane 8021 0.3 3-Methylcholan threne 56-49-5 Benz{j}aceanthrylene, 1,2 8270 10 dihydro- 3-methyl- Methyl ethyl.ketone; MEK; 78-93-3 2-Butanone 8015 10 2-Butanone 8260 100 Methyl iodide;Iodomethane 74-88-4 Methane, iodo- 8010 40 Methyl methacrylate 80-62-6 2-Propenoic acid, 2-methyl 8015 2 ester 8260 30 Methyl methanesulfonate 66-27-3 Methanesulfonic acid, methyl 8270 10 ester 2-Methylnaphthalene 91-57-6 Naphthalene, 2-methyl- 8270 10 Methyl parathion; 298-00-0 Phosphorothioic acid, 0,0- 8140 0.5 Parathion methyl dimethyl 0-(4-nitrophenyl)ester 8141 1 4-Methyl-2-pentanone;- 108-10-1 2-Pentanone, 4-methyl 8015 5 Methyl isobutyl ketone 8260 100 Methylene bromide; 74-95-3 Methane, dibromo- 8010 15 Dibromomethane 8021 20 Methylene chloride; 75-09-2 Methane, dichloro- 8010 5 Dichloromethane 8021 0.2 Naphthalene 91-20-3 Naphthalene 8021 0.5 8100 .200 1,4-Naphthoquinone 130-15-4 1,4-Naphthalenedione 8270 10 1-Naphthylamine 134-32-7 1-Naphthalenamine 8270 10 2-Naphthylamine 91-59-8 2-Naphthalenamine 8270 10 Nickel (Total) Nickel 6010 150 7520 400 o-Nitroaniline; 2-Nitroaniline 88-74-4 Benzenamine, 2-nitro- 8270 50 m-Nitroaniline;3-Nitroanile 99-09-2 Benzenamine, 3-nitro- 8270 50 p-Nitroaniline; 100-01-6 Benzenamine, 4-nitro- 8270 20 4-Nitroaniline Nitrobenzene 98-95-3 Benzene, nitro- 8090 40 o-Nitrophenol; 2-Nitrophenol 88-75-5 Phenol, 2-nitro- 8040 5 p-Nitrophenol; 4-Nitrophenol 100-02-7 Phenol, 4-nitro- 8040 10 8270 50 N-Nitrosodi-n- butylamine 924-16-3 1-Butanamine, N-butyl-N-nitroso- 8270 10 N-Nitrosodiethylamine 55-18-5 Ethanamine, N-ethyl-N-nitroso 8270 20 N-Nitrosodimethylamine 62-75-9 Methanamine, N-methyl-N-nitroso- 8070 2 N-Nitrosodiphenylamine 86-30-6 Benzenamine, N-nitroso-N-phenyl 8070 5 N-Nitrosodipropylamine; 621-64-7 1-Propanamine, N-nitroso-N-propyl 8070 10 N-Nitroso-N-dipropylamine;

Di-n-propylnitrosamine N-Nitrosomethylethalamine 10595-95-6 Ethanamine, N-methyl-N-nitroso- 8270 10 N-Nitrosopiperidine 100-75-4 Piperidine, 1-nitroso- 8270 20 N-Nitrosopyrrolidine 930-55-2 Pyrrolidine, 1-nitroso- 8270 40 5-Nitro-o-toluidine 99-55-8 Benzenamine, 2-methyl-5-nitro- 8270 10 Parathion 56-38-2 Phosphorothioic acid, 0,0-diethyl 8141 0.5 0-(4-nitrophenyl).ester 8270 10 Pentachlorobenzene 608-93-5 Benzene, pentachloro- 8270 10 Pentachloronitrobenzene 82-68-8 Benzene, pentachloronitro- 8270 20 Pentachlorophenol 87-86-5 Phenol, pentachloro- 8040 5 8270 50 Phenacetin 62-44-2 Acetamide, N-(4-ethoxyphenl) 8270 20 Phenanthrene 85-01-8 Phenanthrene 8100 200 Phenol 108-95-2 Phenol 8040 1 p-Phenylenediamine 106-50-3 1,4-Benzenediamine 8270 10 Phorate 298-02-2 Phosphorodithioic acid,0,0- 8140 2 diethyl S-{ethylthio)methyl} 8141 0.5 ester 8270 10 Polychlorinated See Note 9 1,1-Biphenyl, chloro derivatives 8080 50 biphenyls; PCBs; Aroclors 8270 200 Pronamide 23950-58-5 Benzamide, 3,5-dichloro-N- 8270 10 (1,1-dimethyl-2-propynyl)- Propionitrile; Ethyl 107-12-0 Propanenitrile 8015 60 cyanide 8260 150 Pyrene 129-00-0 Pyrene 8100 200 Safrole 94-59-7 1.3-Benzodioxole, 5-(2-propenyl) 8270 10 Selenium (Total) Selenium 6010 750 7740 20 7741 20 Silver (Total) Silver 6010 70 7760 100 7761 10 Silvex 2,4,5-TP 93-72-1 Propanoic acid, 2-(2,4,5- 8150 2 trichlorophenoxy)- Styrene 100-42-5 Benzene, ethenyl- 8020 1 Sulfide 18496-25-8 Sulfide 9030 4000 2,4,5-T; 2,4,5- 93-76-5 Acetic acid, (2,4,5- 8150 2 Trichlorophen oxyacetic acid trichlorophenoxy)- 1,2,4,5-Tetrachlorobenzene 95-94-3 Benzene, 1,2,4,5-tetrachloro- 8270 10 1,1,1,2-Tetrachloroethane 630-20-6 Ethene, 1,1,1,2-tetrachloro- 8010 5 8021 0.05 1,1,2,2-Tetrachloroethane 79-34-5 Ethane, 1,1,2,2-tetrachloro- 8010 0.5 Tetrachloroethylene; 127-18-4 Ethane, tetrachloro- 8010 0.5 Tetrachloroethene; 8021 0.5 Perchloroethylene 8260 5 2,3,4,6-Tetrachlorophenol 58-90-2 Phenol, 2,3,4,6-tetrachloro- 8270 10 Thallium (Total) Thallium 6010 400 7840 1000 7841 10 Tin (Total) Tin 6010 40 Toluene 108-88-3 Benzene, methyl- 8020 2 o-Toluidine 95-53-4 Benzenamine, 2-mehtyl- 8270 10 Toxaphene See Note 10 Toxaphene 8080 2 1,2,4-Trichlorobenzene 120-82-1 Benzene, 1,2,4-trichloro- 8021 0.3 8120 0.5 1,1,1-Trichloroethane; 71-55-6 Ethane, 1,1,1-trichloro- 8010 0.3 Methylchloroform- 8021 0.3 1,1,2-Trichlorethane 79-00-5 Ethane, 1,1,2-trichloro- 8010 0.2 Trichloroethylene; 79-01-6 Ethene, trichloro- 8010 1 Trichloroethene 8021 0.2 Trichlorofluoro- 75-69-4 Methane, trichlorofluoro- 8010 10 methane; CFC-11 8021 0.3 2,4,5-Trichlorophenol 95-95-4 Phenol, 2,4,5-trichloro- 8270 10 2,4,6-Trichlorophenol 88-06-2 Phenol, 2,4,6-trichloro- 8040 5 1,2,3-Trichloropropane 96-18-4 Propane, 1,2,3-trichloro- 8010 10 8021 5 8260 15 0,0,0-Triethyl 126-68-1 Phosphorothioic acid, 8270 10 phosphorothioate 0,0,0-triethylester sym-Trinitrobenzene- 99-35-4 Benzene, 1,3,5-trinitro- 8270 10 Vanadium (Total) Vanadium 6010 80 7910 2000 7911 40 Vinyl acetate 108-05-4 Acetic acid, ethenyl ester 8260 50 Vinyl chloride; 75-01-4 Ethene, chloro- 8010 2 Chloroethene 8021 0.4 Xylene(total) See Note 11 Benzene, dimethyl- 8020 5 8021 0.2 Zinc (Total) Zinc 6010 20 7950 50 7951 0.5 Notes:

1. The regulatory requirements pertain only to the list of substances; the right hand columns (methods and PQL are given for informational purposes only. See also footnotes 5 and 6.

2. Common names are widely used in governmental regulations, scientific publications, and commerce; synonyms exist for many chemicals.

3. Chemical Abstract Service registry number. Where “Total” is entered, all species in the groundwater that contain this element are included.

4. CAS index are those used in the 9th Collective Index.

5. Suggested Methods refer to analytical procedure numbers used in EPA Report SW-846 “Test Methods for Evaluating Solid Waste,” third edition, November 1986, as revised, December 1987. Analytical details can be found in SW-846 and in documentation on file at the Agency. Caution: The methods listed are representative SW-846 procedures and may not always be the most suitable method(s)for monitoring an analyte under the regulations.

6. Practical Quantitation Limits (PQLs) are the lowest concentrations of analytes in groundwaters that can be reliably determined within specified limits of precision and accuracy by the indicated methods under routine laboratory operating conditions. The PQL values listed are generally stated to one significant figure. PQLs are based on 5 ml samples for volatile organics and 1 liter samples for semivolatile organics. Caution: The PQL values in many cases are based only on a general estimate for the method and not on a determination for individual compounds; PQLS are not part of the regulation.

7. This substance is often called Bis(2-chloroisopropyl) ether, the name Chemical Abstracts Service applies to its noncommercial isomer, Propane, 2,2”-oxybis[2-chloro-(CAS RN 39638-32-9).

8. Chlordane: This entry includes alpha-chlordane (CAS RN 5103-71-9), beta-chlordane (CAS RN 5103-74-2), gamma-chlordane (CAS RN 5566-34-7), and constituents of chlordane (CAS RN 57-74-9 and CAS RN 12789-03-6). PQL shown is for technical chlordane. PALS of specific isomers are about 20 ug/l by method 8270.

9. Polychlorinated biphenyls (CAS RN 1336-36-3); this category contains congener chemicals, including constituents of Aroclor 1016 (CAS RN 12676-74-11-2), Aroclor 1221 (CAS RN 11104-28-2), Aroclor 1232 (CAS RN 11141-16-5), Aroclor 1242 (CAS RN 53469-21-9), Aroclor 1248 (CAS RN 12672-29-6), Aroclor 1254 (CAS RN 11097-69-1), and Aroclor 1260 (CAS RN 11096-82-5). The PQL shown is an average value for PCB congeners.

10. Toxaphene: This entry includes congener chemicals contained in technical toxaphene (CAS RN 8001-35-2), i.e., chlorinated camphene.

11. Xylene (total): This entry includes o-xylene (CAS RN 96-47-6), m-xylene (CAS RN 108-38-3), p-xylene (CAS RN 106-42-3), and unspecified xylenes (dimethylbenzenes) (CAS RN 1330-20-7). PALS for method 8021 are 0.2 for o-xylene and 0.1 for m- or p-xylene. The PQL for m-xylene is 2.0 ug/L by method 8020 or 8260.

APPENDIX III

MAXIMUM CONTAMINANT LEVELS (MCLs)

(PROMULGATED UNDER THE SAFE DRINKING WATER ACT)

Chemical CAS No. MCL (mg/l)

Arsenic 7440-38-2 0.05 Barium 7440-39-3 1.0 Benzene 71-343-2 0.005 Cadmium 7440-43-9 0.01 Carbon tetrachloride 56-23-5 0.005 Chromium (hexavalent) 7440-47-3 0.05 2,4-Dichlorophenoxy acetic acid 94-75-7 0.1 1,4-Dichlorobenzene 106-46-7 0.075 1,2-Dichloroethane 107-06-2 0.005 1,1-Dichloroethylene 75-35-4 0.007 Endrin 75-20-8 0.0002 Fluoride 7 4.0 Lindane 58-89-9 0.004 Lead 7439-92-1 0.05 Mercury 7439-97-6 0.002 Methoxychlor 72-43-5 0.1 Nitrate 10.0 Selenium 7782-49-2 0.01 Silver 7440-22-4 0.05 Toxaphene 8001-35-2 0.005 1,1,1-Trichloroethane 71-55-6 0.2 Trichloroethylene 79-01-6 0.005 2,4,5-Trichlorophenoxy acetic acid 93-76-5 0.01 Vinyl chloride 75-01-4 0.002

APPENDIX IV

Schedule of Solid Waste Facility Permit Application Fees Type of Solid Waste Facility Application Fee Class A Solid Waste Facility $7,500.00 Class B Solid Waste Facility $5,000.00 Class C Solid Waste Facility $3,000.00 Class D1 Solid Waste Facility $3,000.00 Class D Solid Waste Facility $250.00 Class E Solid Waste Facility (Reserved)

Class F Solid Waste Facility $5,000.00 Non-Disposal Solid Waste Facility $2,500.00 Renewal of Permit $1,000.00 Solid Waste Facility Closure $2,500.00 Major Modification to Approved Solid Waste Facility $500.00 Background Investigation for Prospective Permittee $1,000.00

APPENDIX V

Leachate Sampling Parameters for Facilities Accepting Drill Cuttings and Associated Drilling Waste Total suspended solids Dibromochloromethane Total recoverable copper Ammonia nitrogen Total recoverable boron Total mercury Nitrogen Nitrate Chlorobenzene Total recoverable zinc Nitrogen Nitrite Sulfate Total recoverable nickel Total recoverable cadmium Total recoverable beryllium Fluoranthene Total recoverable silver Hexavalent chromium Free cyanide Total recoverable aluminum Gross alpha radiation Bis(2-ethylhexyl)

Chloride Gross beta radiation Phthalate Total fluoride Total radium 226 Total recoverable chromium Benzene Total radium 228 Total vanadium Phthalate esters Total strontium 1,2-dichlorobenzene Total recoverable selenium Total strontium 90 1,3-dichlorobenzene Total recoverable arsenic Total lithium 1,4-dichlorobenzene Total barium Total nitrated hydrocarbons toluene Total antimony Total recoverable lead xylene 33CSR1 33CSR1 33CSR1 33CSR1

Series 01A Disposal of Completion Waste

W. Va. Code R. § 33-1A-1 General

1.1. Scope. -- This rule provides guidance and direction to commercial solid waste facilities for the proper disposal of completion or production waste as a special solid waste generated from horizontal well sites, pursuant to the provisions of the Solid Waste Management Rule, 33 C. S. R. 1.

1.2. Authority. -- W. Va. Code §§ 22-15-5(a) and 22-15-8(h)

1.3. Filing. -- June 22, 2017.

1.4. Effective Date. -- August 1, 2017.

1.5. Applicability. – This rule is applicable to the commercial solid waste facilities that are permitted to take drill cuttings and drilling waste generated from horizontal oil and natural gas well sites pursuant to the West Virginia Solid Waste Management Act, W. Va. Code § 22-15-8(g).

W. Va. Code R. § 33-1A-2 Definitions

Unless the context in which used clearly requires a different meaning, the definitions contained in W. Va. Code § 22-15-2 and 33 C.S.R. 1 § 2 apply to this rule, in addition to the definition set forth below.

2.1. “Completion or production waste” means wastes generated during the completion or production processes or derived from the hydraulic fracturing process associated with horizontal natural gas well development, including without limitation, flowback solids, brine, tank bottoms, pit cleanout material and sludges, filters and filter media, pipe scale and used fracturing sand and proppants. Completion or production waste does not include any waste containing radioactive tracers regulated by the Nuclear Regulatory Commission (NRC), unless the generator of the waste has obtained permission from the NRC to dispose of this waste in a West Virginia landfill.

W. Va. Code R. § 33-1A-3 Acceptance and Handling of Completion or Production Waste as a Special Solid Waste

3.1. Prior to the acceptance and disposal of completion or production waste, a permittee shall apply for and obtain a special waste minor permit modification in accordance with subsection 4.13 of the Solid Waste Management Rule.

3.2. The permittee shall dispose of all completion or production waste in a cell(s) dedicated solely to the disposal of drill cuttings and associated drilling waste, as established in the West Virginia Solid Waste Management Act and the Solid Waste Management Rule.

3.3. The permittee shall comply with all liner system requirements set forth in the Solid Waste Management Rule related to the construction of separate cells for the disposal of drill cuttings and associated drilling waste and all radiation monitoring requirements set forth in Section 3.5 below.

3.4. Waste Profiling Requirements.

3.4.a. The facility must obtain from the generator results from at least one representative composite sample of the waste, unless otherwise approved by the Secretary. At a minimum, the facility must submit the following analyses with each application for a special waste minor permit modification: Toxicity Characterization Leaching Procedure (TCLP) Metals, EPA Method 1311; TCLP Volatile Organic Compounds, EPA Method 8260B; and TCLP Semivolatile Organic Compounds, EPA Method 8270C. Sampling results for these parameters must not exceed the limits of 40 C.F.R. § 261.24. The facility must also submit analyses for Total Petroleum Hydrocarbons (TPH), EPA Method 8015C, and Percent Solids, EPA Method Number 160.3 or 2540.

3.4.b. In addition to analyses set forth in subdivision 3.4.a above, the permittee must analyze each load of completion or production waste entering the facility for the combined concentration of Radium 226 and Radium 228, and each load shall be accompanied by the test results for that load. The analysis must be done by a laboratory certified by the Department’s Environmental Laboratories Certification program. If the combined concentration in the waste is less than or equal to fifty picocuries per gram (50pCi/gr.), the facility may accept the waste for disposal. If the values are greater than 50pCi/gr, the facility shall reject the load.

3.5. Radiation Monitoring

3.5.a. The facility must also have a portable radiation monitor capable of determining dose rate and the presence of contamination on a vehicle. The facility shall provide staff with documented training in the operation of all onsite radiation monitors.

3.5.b. The radiation monitor installed at the facility pursuant to the Solid Waste Management Rule must be capable of measuring exposure rates from ten microroentgens per hour (10 µR/hr) to greater than fifty milliroentgens per hour (>50 mR/hr) (or equivalent units). The instrument must be maintained and calibrated according to manufacturer specifications. 3.5c. The detector elements must be configured to be as close as practical to the waste load and in an appropriate geometry to monitor the waste.

3.5.d. The facility shall set the detector to sound an alarm if the reading on the detector exceeds 10µR/hr (or equivalent units) above local background.

3.5.e. For each radiation alarm generated for completion or production waste the facility shall document the fixed detector reading and the associated combined concentration of Radium-226 and Radium-228 provided with the load. This information shall be supplied both to the Department and to the West Virginia Department of Health and Human Resources’ (DHHR) Radiological Health Program on a monthly basis.

3.5.f. Facilities accepting completion or production waste must submit to the DEP a Radiation Monitoring Plan that outlines the facility’s procedures for managing the waste.

W. Va. Code R. § 33-1A-4 Daily Cover

4.1. The Secretary may require daily cover in excess of that required in the Solid Waste Management Rule on these drilling waste cells that receive completion or production waste if, in the Secretary’s discretion, extra cover is needed to protect the environment or the health, safety, and welfare of the public.

33CSR1A

33CSR1A

Series 01B Requirements for the Management of Coal Combustion Residuals

W. Va. Code R. § 33-1B-1 General

1.1. Scope. -- This Legislative Rule adopts 40 CFR Part 257 Subpart D, Standards for the Disposal of Coal Combustion Residuals in Landfills and Surface Impoundments, by reference. This subpart applies to owners and operators of new and existing landfills and surface impoundments, including any lateral expansions of such units that dispose or otherwise engage in solid waste management of CCR generated from the combustion of coal at electric utilities and independent power producers. Unless otherwise provided in this subpart, these requirements also apply to disposal units located off-site of the electric utility or independent power producer. This subpart also applies to any practice that does not meet the definition of a beneficial use of CCR.

Except as otherwise provided, the regulations of the United States Environmental Protection Agency set forth in Subpart D of 40 CFR Part 257, promulgated as of December 14, 2020, excluding 40 CFR 257.50(e), 40 CFR 257.90(g), and 40 CFR 257.95(h)(2), and including 40 CFR 257.3-1, 257.3-2, and 257.3-3, wherein they exclusively relate to standards for the disposal of coal combustion residuals in landfills and surface impoundments, are hereby incorporated as part of the West Virginia Solid Waste Management Regulations, 33CSR1, et seq.

1.2. Authority. -- W. Va. Code §§ 22-15-5 and 22-15-10.

1.3. Filing Date. -- March 01, 2022.

1.4. Effective Date. -- March 01, 2022.

W. Va. Code R. § 33-1B-2 Definitions

2.1. Except as otherwise provided, all material definitions, reference materials, and other ancillaries that are part of incorporated sections of 40 CFR Part 257 are also hereby incorporated as part of the West Virginia Solid Waste Management Regulations.

2.2. In all locations in this series, where text from 40 CFR Part 257 is incorporated by reference, the following additions, modifications, and exceptions shall amend the incorporated text for the purpose of its incorporation into this chapter. The following terms, where they appear in the Code of Federal Regulations shall, for the purpose of this chapter, have the following meanings or interpretations:

2.2.a. “Secretary” shall supplant the “State Director” wherever it appears.

2.2.b. “Qualified professional engineer” or “engineer” means a “professional engineer” certified to practice in the State of West Virginia.

2.3. Definitions in 40 CFR 257.53 are incorporated by reference into this part and are applicable to CCR landfills and CCR surface impoundments.

Series 02 Sewage Sludge Management Rule

W. Va. Code R. § 33-2-2 Definitions

The following definitions shall apply to this rule unless otherwise specified herein:

2.1. "Agricultural Land" is land on which a food crop, feed crop, or fiber crop is grown. This includes, but is not limited to, range land and land used as pasture.

2.2. "Agronomic rate" means the whole sewage sludge application rate, by dry weight, designed: (1) To provide the amount of nitrogen needed by the food crop, feed crop, fiber crop, cover crop or vegetation on the land; and (2) 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 ground water.

2.3. "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, children and siblings.

2.4. "Approved solid waste facility" means a solid waste facility or practice which has a valid permit under W. Va. Code §22-15-1 et seq.

2.5. "Backhauling" 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.

2.6. "Bulking Agent" means materials mixed or composted with sewage sludge such as yard waste, wood chips, leaves and other living or dead plant tissues approved by the chief as suitable to promote the passage of air through a static pile or windrow.

2.7. "Bulk Sewage Sludge Product" is a material derived from sewage sludge that is sold or given away in quantities exceeding one metric ton.

2.8. "Chief" means the chief of the Office of Waste Management of the Division.

2.9. "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.

2.10. "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.

2.11. "Commercial 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 composting facility owned and operated by a person for the sole purpose of composting waste created by that person or such person and other persons on a cost-sharing or nonprofit basis and shall not include land upon which finished or matured compost is applied for use as a soil amendment or conditioner.

2.12. "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 (70%) by weight of the materials coming into the commercial recycling facility.

2.13. "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 the disposal, processing, or composting of solid wastes created by that person or such person and other persons on a cost-sharing or nonprofit basis and shall not include land upon which reused or recycled materials are legitimately applied for structural fill, road base, mine reclamation and similar applications.

2.14. "Compost" means a humus like material resulting from aerobic, microbial, thermophilic decomposition of organic materials.

2.15. "Composting" means the aerobic, thermophilic decomposition of natural constituents of solid waste to produce a stable, humus-like material.

2.16. "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 the initial composting cycle or compost which meets all regulatory requirements after the initial composting cycle.

2.17. "Curing area" means an area where organic material that has undergone the rapid initial stage of decomposition is further stabilized into a humus-like material.

2.18. "Director" means the director of the division of environmental protection or such person to whom the director has delegated authority or duties pursuant to Chapter 22, Article 1 of the W. Va. Code.

2.19. "Distributor" is a person who prepares the product for distribution and marketing and is responsible for distributing and marketing the product.

2.20. "Division" means the Division of Environmental Protection.

2.21. "Domestic septage" means either liquid or solid material (septage) removed from a septic tank, cesspool, portable toilet, Type III marine sanitation device, or similar treatment works that receives only domestic sewage. Domestic septage does not include liquid or solid material removed from a septic tank, cesspool, or similar treatment works that receives either commercial wastewater or industrial wastewater and does not include grease removed from a grease trap at a restaurant.

2.22. "Energy recovery incinerator" means any solid waste facility at which solid waste is incinerated with the intention of using the resulting energy for the generation of steam, electricity or any other use not specified herein.

2.23. "Exceptional Quality Compost" means compost resulting from sewage sludge, which compost meets the Table 1 metal limits of this rule and which has been treated to achieve Class A pathogen reduction requirements in accordance with 40 CFR 503.32(a) and one of the vector attraction requirements in 40 CFR 503.33(b)(1) through (b)(8).

2.24. "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.

2.25. "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.

2.26. "Land Application Site" means the location where sewage sludge is sprayed or spread onto the land surface; injected below the land surface; or incorporated into the soil so that the sewage sludge can either condition the soil or fertilize the crops or vegetation grown in the soil.

2.27. "Landfill" means any solid waste facility for the disposal of solid waste on or in the land for the purpose of permanent disposal. Such facility is situated, for purposes of W. Va. Code §22-15-1 et seq., in the county where the majority of the spatial area of such facility is located.

2.28. "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.

2.29. "Mature compost" means compost which has been produced in an aerobic, microbial, thermophylic manner and which does not exhibit toxic effects to plant species.

2.30. "Mixed solid waste" means solid waste from which materials sought to be reused or recycled have not been source-separated from general solid waste.

2.31. "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.

2.32. "Municipal solid waste incineration" means the burning of any solid waste collected by any municipal or residential solid waste disposal company.

2.33. "Odor" means a sensation resulting from the stimulation of the human sense of smell.

2.34. "Open dump" means any solid waste disposal which does not have a permit under W. Va. Code §22-15-1 et seq., or is in violation of state law, or where solid waste is disposed in a manner that does not protect the environment.

2.35. "Other Container" is either an open or closed receptacle. This includes, but is not limited to, a bucket, box, carton, and vehicle or trailer with a load capacity of one metric ton or less.

2.36. "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.

2.37. "Producer" means any person producing sewage sludge at a publicly owned treatment works (POTW).

2.38. "Publicly owned treatment works" or "POTW" means any treatment works owned by the state or any political subdivision thereof, any municipality or any other public entity which processes raw domestic, industrial, or municipal sewage by 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 waters of this state, and which produces sewage sludge.

2.39. "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 W. Va. Code §22C-4-1 et seq. and 20-11-1 et seq.

2.40. "Representative sample" means a sample collected from a population or whole that exhibits the average or typical properties of the larger population or whole.

2.41. "Sewage sludge" means solid, semi-solid 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.

2.42. "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.

2.43. "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.

2.44. "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 W. Va. Code '22-11-1 et seq., or source, special nuclear or by-product material as defined by the Atomic Energy Act of 1954, as amended, including any nuclear or by-product material considered by federal standards to be below regulatory concern, or a hazardous waste either identified or listed under W. Va. Code '22-18-1 et seq., 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 W. Va. Code §§22-2-1 et seq., 22-3-1 et seq., 22-4-1 et seq., 22-6-1 et seq., 22-7-1 et seq., 22-8-1 et seq., 22-9-1 et seq. or 22-10-1-1 et seq., so long as such placement or disposal is in conformance with a permit issued pursuant to such chapters.

2.45. "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.

2.46. "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, commercial composting facilities and other such facilities not herein specified but not including land upon which sewage sludge is applied in accordance with W. Va. Code '22-15-20. Such facility shall be deemed to be situated, for purposes of this rule, 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 W. Va. Code '17-23-et seq., is not a solid waste facility.

2.47. "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 a facility.

2.48. "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.

2.49. "Source separated organic waste" means readily degradable organic material such as food waste, yard waste and wood waste, except pressure-treated wood waste, which is collected separately from the mixed solid waste stream. It does not include sewage sludge or domestic septage.

2.50. "Stabilization" means the decomposition of organic material to the point where it neither reheats when wetted nor gives off offensive odors and does not include pathogens, toxins or vectors in excess of Federal regulations 40CFR503.

W. Va. Code R. § 33-2-3 Standards for Use, Disposal and Processing of Sewage Sludge

3.1. Incorporation of Federal Regulations. -- Federal regulations 40CFR503, excluding sections 503.10(b)(1) and 503.20 through 503.29 inclusive, in effect on the effective date this rule, are hereby fully incorporated and implemented as a part of this rule promulgated under the authority of W. Va. Code §22-15-20. Provided, That in instances where similar provisions exist, the more stringent requirements (state or federal) shall apply.

3.2. Sewage Sludge Land Application Siting Restrictions and Location Standards.

3.2.a. Except as provided in subsection 3.2.b of this rule, sewage sludge shall not be applied to land that meets any of the following conditions:

3.2.a.1. Land that is frozen, snow-covered, or known to be flooded on a regular basis unless the applicant can demonstrate to the director that the land application will not cause runoff into streams or wetlands.

3.2.a.2. Land within fifty (50) feet of surface water to include streams, springs, ponds, wetlands, or other collection points for surface water.

3.2.a.3. Land within two hundred (200) feet of drinking water supply wells or other personal water supply.

3.2.a.4. Land within two hundred (200) feet of an occupied dwelling.

3.2.a.5. Land within fifty (50) feet of a federal or state highway.

3.2.a.6. Land within one hundred (100) feet of an adjacent property owner's property line.

3.2.a.7. Land from which drainage leads into a sinkhole.

3.2.a.8. Land that has been tested and determined to have a pH of less than 6.2, unless the pH is adjusted to 6.2 or greater.

3.2.a.9. Land that has a slope greater than 15%.

3.2.a.10. Land that has a seasonal high groundwater table less than 2 feet from the surface.

3.2.a.11. Land that has less than 6 inches of soil over bedrock or an impervious pan.

3.2.a.12. Land containing soil with surface permeability of less than 0.6 inches/hour or greater than 6 inches/hour.

3.2.a.13. Other land determined by the director to be unsuitable for application of sewage sludge.

3.2.a.14. The prohibitions of 3.2.a.4, 5, 6, 8, 9, 11 and 12 may be waived by the Division in any land application permit for exceptional quality compost upon a showing by the applicant that the application of exceptional quality compost will not cause significant environmental impact. The applicant shall include in writing the justification for such request in its application for a land application permit.

3.2.b. Sewage sludge products which meet the Table 1 metals limits of this rule, and which have been treated to achieve Class A pathogen reduction requirements in accordance with 40 CFR 503.32(a) and one of the vector attraction reduction requirements in 40 CFR 503.33(b)1 through (b)8, and which are sold or given away in a bag or other container and exceptional quality compost which is land applied in accordance with 4.1.c.3 of this rule, are not subject to the requirements of 3.2.a.1 through 3.2.a.12 of this rule, except that these sewage sludge products shall not be applied to land that meets the any of the following conditions:

3.2.b.1. Land within 50 feet of any surface water, or surface water collection point.

3.2.b.2. Land with a slope greater than 15%.

3.2.b.3. Land from which drainage leads to a sinkhole.

3.2.c. No person or entity shall be allowed to apply sewage sludge to land in a manner that will result in exceeding the maximum soil concentration for arsenic, cadmium, chromium, copper, lead, mercury, molybdenum, nickel, selenium, or zinc, as listed in Table 3 of this rule and the soil testing requirements of this rule. The director is authorized to issue variances to this subdivision to allow land application to soils where the background levels of metals in the soil exceed the maximum soil concentrations of metals listed in Table 3: Provided, that the sewage sludge analyses, soil analyses, and pollutant loss rates from erosion, leaching, and volatilization demonstrate that the land application of the sewage sludge, at a loading rate prescribed by the director, will not cause additional net accumulation of any metal in the soil already exceeding the maximum soil concentration listed in Table 3. Any such variance issued by the director shall contain a requirement to annually monitor the soil concentration of each metal exceeding the Table 3 limit for as long as the site is utilized for the land application of sewage sludge or sewage sludge products.

3.2.c.1. Analytical methods in SW-846 shall be used to analyze all soil metals samples required by this rule.

3.2.c.2. The director shall assign an individual and lifetime loading rate for each land application site for which a permit is required pursuant to 4.1.c of this rule by considering background soil concentrations and maximum allowable pollutant concentrations as per Table 1 and per Table 3 of this rule. New soil analyses for those metals listed in Table 3 shall be required at each land application site whenever the site has received for land application fifty percent of the assigned lifetime loading rate.

3.2.c.3. If circumstances at sewage sludge processing facilities result in short term excursions of Table 1 criteria, written notification must be given to the Chief of the Office of Water Resources within five days of the determination of any such excursions. A written plan to identify and correct the problem must be submitted for the facility within sixty days. The director may develop temporary loading rates, for a period not to exceed one year, based on the provisional limitations of Table 2 of this rule and on results from monthly sewage sludge and wastewater samples taken at the facility.

3.2.d. No person shall be allowed to land apply so much sewage sludge as to exceed the agronomic rate for that land 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.

3.2.e. No person shall be allowed to store sewage sludge at a land application site for a period longer than one week; except storage shall be allowed for no longer than three months where provisions, approved by the chief of the Office of Water Resources of the Division, have been made to prevent leachate runoff into surface or groundwater. Septage storage shall only be allowed in-tank and for no more than three days, or as otherwise authorized by the chief of the Office of Water Resources of the Division.

3.2.f. No person shall be allowed to land apply sludge except during the hours of daylight.

3.2.g. Exceptional quality compost may be stored at a distributor=s property that is not a land application site or sewage sludge processing facility for a period of up to three months. Upon written request by the distributor and with the approval of the Division, the exceptional quality compost may be stored on the distributor=s property for an additional three months. These time limitations for storage do not apply to exceptional quality compost contained in a bag or other container which is closed, and are in addition to and shall not affect the time limitations for storage in 3.2.e and 3.3.a.1 of this rule.

3.3. Sewage Sludge Processing Facility Operational and Design Requirements.

3.3.a. Sewage sludge processing facilities must adhere to the following requirements:

3.3.a.1. Areas used for processing, curing and storage of raw materials, intermediate and final products, loading and unloading areas, impoundments, pipelines, ditches, pumps and drums, sumps and tanks, must be designed, constructed and operated to prevent release of contaminants to the groundwater and surface water. Storage of finished products from the facility shall be limited to one year.

3.3.a.2. The facility must be designed and operated to control vectors and odors.

3.3.a.3. The facility must not be operated or constructed within the one hundred year flood plain unless provisions have been made to prevent the encroachment of flood waters upon the facility.

3.3.a.4. All land areas within the boundaries of a sewage sludge processing facility upon which sewage sludge, intermediate or final products come in direct contact with the land surface must be protected in accordance with the Groundwater Protection Act, W. Va. Code '22-12-1 et seq., and the rules promulgated thereunder, including 46CSR12, 46CSR58, and 46CSR59.

3.3.b. Any person operating a sewage sludge processing facility shall conduct off-site odor monitoring. The frequency of odor monitoring shall be quarterly or as otherwise specified by the director. The Barnebey-Cheney scentometer or other instrument, device or technique designated by the director may be used as a guide in the enforcement of this rule and may used in the determination of the objectionability of an odor.

3.3.b.1. When an odor is determined to be objectionable and repetitious by the director, the director may require the facility to conduct related studies within a specified time period. These studies may include, but are not limited to, sampling and analysis to identify the specific chemical compound(s) which are causing the objectionable odor, analysis of samples by odor panels, air dispersion modeling studies, and evaluation of applicable odor control devices and odor control programs.

3.4. Leachate Management Requirements.

3.4.a. Any liquid which comes in contact with sewage sludge at a sewage sludge processing facility must be handled as leachate and is subject to the requirements of W. Va. Code §22-11 and 12, and the rules promulgated thereunder.

3.5. Storm Water Requirements.

3.5.a. Storm water drainage must be directed around and away from the operating area. All storm water must be collected and discharged in compliance with State Water Quality Standards and the permit issued by the Office of Water Resources of the Division.

3.6. Landfill Disposal of Sewage Sludge.

3.6.a. Sewage sludge disposed in a landfill shall contain at least twenty percent (20%) solids by weight. This requirement may be met by adding or blending sand, sawdust, lime, soil, or other materials that have been approved by the director prior to disposal. Alternative sludge disposal methods can be utilized upon obtaining prior written approval from the chief.

3.6.b. Sewage sludge may not represent more than twenty-five percent (25%) by weight of the total weight of waste disposed of at the landfill on any working day.

3.6.c. No facility may accept for landfilling in any month sewage sludge in excess of twenty-five percent (25%) of the total tons of solid waste accepted at the facility for landfilling in the preceding month.

3.6.d. Sewage sludge shall not be used as daily cover by a landfill.

3.7. Exceptional Quality Compost. -- No person shall sell or give away exceptional quality compost in quantities exceeding one metric ton unless the following requirements are met.

3.7.a. Any person who composts sewage sludge shall notify the Division in writing of their intent to distribute exceptional quality compost in quantities exceeding one metric ton at least 30 days prior to the initial distribution in this state.

3.7.b. Any person who composts sewage sludge shall maintain distribution records for exceptional quality compost, including the name and address of each person receiving bulk quantities of exceptional quality compost in excess of one metric ton; the quantity of exceptional quality compost received by each person; and the results of all tests conducted as part of their monitoring program.

3.7.c. The information required under Subdivision 3.7.b of this rule shall be reported to the Division on a monthly basis.

3.7.d. The person who composts sewage sludge shall prepare a written certification that he has complied with the requirements of 3.7.a, 3.7.b, and 3.7.c of this rule and shall provide such certification to any person to whom he distributes exceptional quality compost in quantities exceeding one metric ton and to the division in the monthly report required by subdivision 3.7.c.

3.7.e. No person shall land apply or further distribute exceptional quality compost in quantities exceeding one metric ton unless a certification has been issued in accordance with 3.7.d herein.

3.7.f. Exceptional quality compost sold or given away in a bag or other container shall not be subject to the requirements of this subsection 3.7.

W. Va. Code R. § 33-2-4 Permits Required

4.1. Applicability.

4.1.a. No person may construct or operate a sewage sludge processing facility (including mixed waste composting facilities which utilize sewage sludge) or a commercial solid waste facility which processes or handles sewage sludge or materials derived from sewage sludge without first obtaining a solid waste facility permit.

4.1.b. On and after the effective date of this rule, all permitted facilities shall submit an application to modify such permit.

4.1.c. Except as provided in 4.1.c.1, 4.1.c.2 and 4.1.c.3 of this rule, no person may land apply sewage sludge without first obtaining a land application permit: Provided, That land application permit requirements may be incorporated into a modification of a facility's WV/NPDES permit required under W Va. Code '22-11-1 et seq.

4.1.c.1. A land application permit is not required for sewage sludge products which meet the Table 1 metals limits of this rule, and which have been treated to achieve Class A pathogen reduction requirements in accordance with 40 CFR 503.32(a) and one of the vector attraction reduction requirements in 40 CFR 503.33(b)1 through (b)8, and which are sold or given away in a bag or other container;

4.1.c.2. Any person who land applies bulk sewage sludge products which meet the Table 1 metals limits of this rule, and which have been treated to achieve Class A pathogen reduction requirements in accordance with 40 CFR 503.32(a) and one of the vector attraction reduction requirements in 40 CFR 503.33(b)1 through (b)8, is not required to obtain a land application permit for sites where such products are applied on agricultural land less than two acres in size and the annual quantity of sludge product applied to that site does not exceed two dry tons per acre, except that those products derived from domestic septage shall not be exempt from permitting requirements. This exemption from permitting does not apply to multiple sites on the same parcel of land, and does not exempt sewage sludge processing facilities from any other permitting or reporting requirements of this rule or of the Sewage Sludge Management Act, W. Va. Code '22-15-20.

4.1.c.3. Any person who land applies exceptional quality compost is not required to obtain a land application permit for sites where such compost is applied on land two acres or less in size and the quantity of exceptional quality compost applied to that site does not exceed the agronomic rate for the land or a rate of fifteen dry tons per acre, whichever is less. This exemption from permitting does not apply to multiple sites on the same parcel of land and does not exempt sewage sludge processing facilities from any other permitting or reporting requirements of this rule or of the Sewage Sludge Management Act, W. Va. Code '22-15-20.

4.1.c.4. The Division may on a site-by-site basis prohibit the land application of exceptional quality compost in bulk quantities in excess of one metric ton without a permit, when such land application results in a nuisance, causes objectionable odors or otherwise may cause harm to the environment. Under such circumstances, the Division may require the person to apply for a land application permit in accordance with subdivision 4.2.c of this rule, and take such other actions deemed necessary to address the problems created at the land application site.

4.1.d. For those publicly owned treatment works (POTW's) or privately owned treatment works which produce sewage sludge and are regulated by the Division pursuant to a water pollution control permit, including a West Virginia national pollutant discharge elimination system WV/NPDES permit required under W. Va. Code §22-11-1 et seq., a sewage sludge processing facility modification will be obtained by the applicant as a part of the existing WV/NPDES permit and shall include a sewage sludge management plan approved by the director. Upon approval by the director, POTWs may accept sewage sludge from other publicly or privately owned treatment works on a cost-sharing or non-profit basis under its WV/NPDES permit without being considered a commercial solid waste facility.

4.1.e. Facilities which are surface disposal sites as defined in 40CFR503, Subpart C, are hereby defined as "landfills" and must meet all requirements of 33CSR1 applicable to landfills.

4.1.f. Permits issued under subdivision 4.1.a of this rule, shall be subject to the provisions of 33CSR1, section 3 (excluding the provisions for liner requirements) and the closure requirements of 33CSR1, section 6.

4.1.g. Permits issued under subdivision 4.1.d. of this rule, shall be subject to the permit issuance procedures, procedures for permit modifications, suspension and revocation, procedures for transfer of permits, and the procedures for permit appeals of 47CSR10 but are not subject to the procedures outlined in subdivisions 4.1.e, 4.1.f and 4.1.h of this rule.

4.1.h. Permits issued under subdivision 4.1.e of this rule, shall be subject to the procedures of 33CSR1 section 3 and the closure requirements of 33CSR1 section 6.

4.1.i. Permits issued under subdivision 4.1.c of this rule except for land application modifications made in WV/NPDES permits under subdivision 4.1.d of this rule shall be subject to the permit issuance procedures (subsections 3.17 through 3.29 inclusive) of 33CSR1 and are not subject to the procedures outlined in subdivisions 4.1.e, 4.1.f and 4.1.g of this rule.

4.2. General, Processing Facility, and Land Application Permit Application Requirements. -- Persons required to obtain a permit pursuant to this rule must provide the following information, in the form and manner prescribed by the chief of the Office of Waste Management or the Office of Water Resources of the Division as appropriate. The form may require information in addition to that required by this subsection.

4.2.a. Permit Application General Requirements. -- All applicants must provide the following information:

4.2.a.1. The name, address, and location of the facility;

4.2.a.2. A description of the activities conducted or to be conducted by the applicant;

4.2.a.3. The operator's and owner's name, address, telephone number, ownership status, and status as a federal, state, private, public or other entity;

4.2.a.4. Other environmental permits issued by any local, state or federal agency;

4.2.a.5. A description of the specific source(s) of sewage sludge;

4.2.a.6. The amount of sewage sludge actually generated, processed, land applied, or disposed;

4.2.a.7. The content of heavy metals, pathogens, toxins or vectors and moisture (percent solids) present in the sewage sludge;

4.2.a.8. 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;

4.2.a.9. Information relative to the quality of the sewage sludge(s) or product(s) derived from sewage sludge as required by 40CFR503, and

4.2.a.10. A detailed design and a description of the method used to collect and control leachate and surface water runoff, including the method for treatment and disposal of leachate generated.

4.2.b. Sewage Sludge Processing Facility Permit Application Requirements. -- All applicants for permits for sewage sludge processing facilities, except facilities located at the site where sewage sludge is generated, must submit the following additional information:

4.2.b.1. An engineering report to construct a sewage sludge processing facility must contain, at a minimum, the following:

4.2.b.1.A. A regional map, or maps, (of appropriate scale) that delineate the entire service area of the proposed facility; existing and proposed collection, processing, and disposal operations; the location of the closest population centers; and the transportation systems including highways, airports, railways and waterways;

4.2.b.1.B. A vicinity map (minimum scale of 1"=2000') that delineates the area within one mile of the facility boundaries, zoning and land use, residences, potable water supplies, surface waters, access roads, bridges, railroads, airports, historic sites, and other existing and proposed man-made or natural features relating to the project;

4.2.b.1.C. A site plan (minimum scale of 1"=200' with five foot contour intervals) that delineates property boundaries, the location of existing and proposed soil boring, monitoring wells, buildings and appurtenances, fences, gates, roads, parking areas, drainage, culverts, storage facilities or areas, loading areas; existing and proposed elevation contours and direction of prevailing winds; and the location of residences, potable wells, surface water bodies, and drainage swales located within the site and in the site plan area; and

4.2.b.1.D. A map indicating wetlands and flood plains within 1,000 feet of the site, if any.

4.2.b.2. A description of the operation of the facility, detailed engineering plans and specifications for the entire facility, must be submitted by the applicant including at a minimum:

4.2.b.2.A. A schedule of operation, including the days and hours that the facility will be open, preparations before opening, and procedures followed after closing for the day;

4.2.b.2.B. Anticipated daily traffic flow to and from the facility, including the number of trips by private or public collection vehicles, and the quantity of material contained in each vehicle;

4.2.b.2.C. The procedure for unloading trucks (including frequency, rate, and method);

4.2.b.2.D. Special precautions or procedures for operation during wind, heavy rain, snow, and freezing conditions;

4.2.b.2.E. A description of the ultimate use for the finished compost or other product, a marketing plan for the finished compost, method for removal from the site, and a plan for use or disposal of those finished products that cannot be used in the expected manner due to poor quality or change in market conditions;

4.2.b.2.F. A (description) copy of the label or other information source, by the distributor, that outlines the type of waste the compost product was derived from, a list of any restrictions on use, and recommended safe uses and application rates;

4.2.b.2.G. Identification of the personnel required to operate and maintain the facility and their job descriptions/responsibilities;

4.2.b.2.H. A detailed description of the source, and anticipated quality, and quantity of any bulking agent to be used in the process; and

4.2.b.2.I. A detailed description of the quantity, quality and specific source of the sewage sludge received or anticipated to be received.

4.2.b.3. The permit application must contain an operating engineering report which must include, at a minimum, the following:

4.2.b.3.A. Detailed engineering plans and specifications for the entire sewage sludge processing facility, including manufacturer's performance data for the selected equipment;

4.2.b.3.B. Contingency plans detailing corrective (or remedial) action to be taken in the event of equipment breakdown; air pollution (odors); unacceptable waste delivered to the facility; groundwater contamination; spills; and undesirable conditions such as fires, dust, noise, vectors, lack of a market for the compost product and unusual traffic conditions; and

4.2.b.3.C. An Operation and Maintenance Manual. -- The manual must contain general design information, detailed operational information and instructions. In addition, the manual must list the specific procedures used or to be used in monitoring, sampling and analyzing sewage sludge and the finished product, and record keeping requirements.

4.2.b.4. A description of the design of the facility, including:

4.2.b.4.A. The type, size, and associated detention times of equipment used in the handling, processing, and storage of sewage sludge;

4.2.b.4.B. The method of measuring, shredding, mixing, and proportioning input materials;

4.2.b.4.C. A description and sizing of the storage facilities for amendment, bulking agent, and finished product;

4.2.b.4.D. The separation, processing, storage, and ultimate disposal of materials that cannot be composted, if applicable;

4.2.b.4.E. The location of all temperature and any other type of monitoring points, and the frequency of monitoring;

4.2.b.4.F. A process flow diagram of the entire process, including all major equipment and flow streams. The flow streams must indicate the quantity of material on a wet weight, dry weight, and volumetric basis;

4.2.b.4.G. The aeration capacity of the system;

4.2.b.4.H. The method of supplying and regulating airflow;

4.2.b.4.I. The expected mass balance through the composting system;

4.2.b.4.J. A description of how the (temperature) monitoring equipment will ensure that facility qualifies as a process to further reduce pathogens, toxins, heavy metals and/or vectors; and

4.2.b.4.K. A description of the air emission collection and control technologies.

4.2.b.5. A description of existing and potential land-use of the area within one mile of the facility.

4.2.b.6. A certified copy of any municipal or county zoning restrictions, if applicable.

4.2.c. Land Application Permit Application Requirement. -- Persons performing land application of sewage sludge or materials derived from sewage sludge must submit the following information to the chief of the Office of Water Resources of the Division in addition to that required under subdivision 4.2.a. of this rule:

4.2.c.1. Soil analysis for all land application sites including but not limited to pH, potassium, phosphorus, nitrogen, all metals listed in Table 1 of this rule and any additional chemical analysis required by the director;

4.2.c.2. Information relative to the nitrogen content of the sludge(s) or product(s) derived from sewage sludge to be land applied;

4.2.c.3. A soils map with application sites clearly defined;

4.2.c.4. An agreement between the preparer of sewage sludge(s) or material(s) derived from sewage sludge, the applier, and the owner of the land application site indicating each party's concurrence with the application, and certifying that each will comply with applicable requirements of 40CFR503. and this rule;

4.2.c.5. A description of existing and future uses of the land application site;

4.2.c.6. Information relative to past application(s) of sewage sludge or material(s) derived from sewage sludge as necessary to comply with section 40CFR503.12 and this rule;

4.2.c.7. Information relative to past fertilizer applications to the site;

4.2.c.8. In addition to the chemical analyses required in subdivision 4.2.a of this rule, any additional chemical analyses of sewage sludge(s) or material(s) derived from sewage sludge, requested by the chief of the Office of Water Resources of the Division, including, but not limited to sodium, chloride, fluoride, calcium and sulfates;

4.2.c.9. A description of the methods to be used for land application;

4.2.c.10. A description of the methods for transportation of sludge to the site;

4.2.c.11. A copy of the NPDES permit for the POTW from which the sludge or material originated;

4.2.c.12. Information relative to the significant industrial users of the POTW from which the sludge or material originated;

4.2.c.13. A description of the methods by which pathogen control and vector attraction reduction are being achieved; and

4.2.c.14. A description of the methods to be utilized to adjust and maintain the soil to a minimum pH of 6.2 for at least 5 years from the date of application.

W. Va. Code R. § 33-2-5 General, Processing Facility, and Land Application Permit Requirements

5.1. Permit General Requirements. -- All permits issued pursuant to this rule shall contain the following:

5.1.a. Any requirement of 40CFR503, including but not limited to:

5.1.a.1. Limitations on the concentrations of pollutants (heavy metals), toxins, vectors and pathogens in the sewage sludge or sewage sludge products;

5.1.a.2. Requirements relative to monitoring sewage sludge and sewage sludge product quality and reporting the results of those analyses for pH, percent solids, organic nitrogen, potassium, phosphorus, calcium, magnesium, total nitrogen, ammonia nitrogen, pathogen test results, vector attraction verification; and all heavy metals listed in Table 1 of this rule except that the frequency of monitoring shall be as described in Appendix A of this rule; except that permits issued for land application of domestic septage shall contain requirements to monitor the soil at the land application sites in lieu of sampling individual domestic septic tank systems. Such permits for domestic septage shall contain a provision requiring a manifest listing each source of domestic septage and certifying that the domestic septage contains no industrial or commercial waste products;

5.1.a.3. Requirements relative to reporting and certification;

5.1.a.4. Requirement to pay fees as identified in section 6 of this rule;

5.1.a.5. Requirements for the proper collection, control and disposal of leachate and stormwater runoff for the protection of groundwater, surface waters, and potable waters in the area;

5.1.a.6. Requirements to retain records for the facility for a minimum of five years;

5.1.a.7. Requirements to monitor and report monthly to the Division the specific source and quantity of sewage sludge generated, treated, stored, processed, composted, disposed, or placed;

5.1.a.8. Requirements not to exceed a commercial solid waste facility's tonnage limits, where applicable;

5.1.a.9. Requirements to provide copies of monthly reports to the county or regional solid waste authority in which the facility or land application site(s) is located;

5.1.a.10. Any other requirements, including additional monitoring, determined to be necessary by the director to insure compliance with state and federal regulations;

5.2. Processing Facility Permit Requirements. -- In addition to the requirements of subsection 5.1. of this rule, any solid waste facility permit issued to a sewage sludge processing facility, pursuant to this rule, must contain the following:

5.2.a. Operational requirements relative to pathogen control in accordance with 40CFR503.32. and its Appendix B;

5.2.b. Operational requirements relative to vector attraction reduction in accordance with 40CFR503.33;

5.2.c. Requirements to routinely monitor and report information relative to the quality of raw materials used in the sewage sludge processing facility including but not limited to: sewage sludge, bulking agents, and kiln dust; except that the frequency of monitoring shall be as described in Appendix A of this rule;

5.2.d. Limitations for the pollutant concentrations of the end product of the sewage sludge processing facility;

5.2.e. Labeling requirements as per 40CFR503.14.e, if applicable, and subsection 3.2.b of this rule;

5.2.f. Requirements for the implementation of practices to prevent the contamination of ground and surface waters, including liners if necessary;

5.2.g. For commercial sewage sludge processing facilities, requirements for reporting in accordance with 33CSR1 subsection 4.12.; and

5.2.h. Requirements for the implementation of practices to protect air quality in and around the facility.

5.3. Land Application Permit Requirements. -- In addition to the requirements of subsection 5.1 of this rule, any land application permit issued pursuant to this rule shall contain the following:

5.3.a. Requirements delineating the sites for which land application is approved;

5.3.b. Limitations on the maximum amount of sewage sludge allowed to be land applied;

5.3.c. Requirements implementing the siting restrictions and location standards of subsection 3.2 of this rule;

5.3.d. Requirements limiting the types of crops that may be grown on land used for application of sewage sludge and the time between application of sewage sludge and the harvesting of crops, in accordance with 40CFR503.32.(b);

5.3.e. Restrictions on animal grazing and public access, in accordance with 40CFR503.32.(b);

5.3.f. Applicable vector attraction reduction requirements of 40CFR503.33; and

5.3.g. Applicable pathogen reduction requirements of 40CFR503.32 and its Appendix B; except that domestic septage shall be held at or above a pH of 12.0 for a period of at least two hours before being applied to land at any location.

W. Va. Code R. § 33-2-6 Fee and Bonding Requirements

6.1. Applicability. -- Any producer, processor, or transporter of sewage sludge for land application shall be subject to non-refundable fees, as described herein, which shall be used to cover the costs of the sewage sludge management program. The fees established herein in subdivisions 6.4.a and 6.4.b of this rule shall be assessed on forms prescribed by the chief of the Office of Water Resources of the Division and shall be paid to said chief quarterly.

6.2. Water Quality Management Fund. -- Fees collected for land application shall be deposited in the special revenue fund designated the "Water Quality Management Fund" established under the provisions of W. Va. Code §22-11-10 except as otherwise specified herein.

6.3. Bonding. -- The director may require a surety bond, deposit or similar instrument in an amount sufficient to cover the cost of future environmental remediation from producers, processors, or transporters of sewage sludge.

6.4. Fee Assessments.

6.4.a. Producers, processors, or transporters of sewage sludge or material derived from sewage sludge for land application shall be assessed a sewage sludge management program fee calculated as $5.00 per actual ton of sludge times the proportion of solids in the sludge for sludge with maximum metals concentrations not exceeding those listed in Table 1 of this rule.

6.4.b. All sewage sludge placed in, or used in a landfill disposal cell by a solid waste facility shall be subject to the same tipping and other fees as levied on the disposal of solid waste under W. Va. Code §22; Provided, That no such fees, excepting assessment fees required by thissubdivision, shall be levied upon the application of sewage sludge to land outside a solid waste facility in accordance with the statute and this rule.

6.4.c. Fees generated pursuant to subdivision 6.4.a. shall be reviewed periodically by the director and shall be adjusted as necessary to assure that total collections shall not exceed $200,000 per year.

TABLE 1

MAXIMUM CONCENTRATION OF METALS IN SEWAGE SLUDGE

FOR LAND APPLICATIONTABLE 1MAXIMUM CONCENTRATION OF METALS IN SEWAGE SLUDGEFOR LAND APPLICATION

Metal Concentration (mg/kg)

Arsenic 20 Cadmium 39 Chromium 1000 Copper 1500 Lead 250 Mercury 10 Molybdenum 18 Nickel 200 Selenium 36 Zinc 2800 TABLE 2 PROVISIONAL MAXIMUM CONCENTRATION OF METALS IN SEWAGE SLUDGE FOR PRODUCERS NOT MEETING TABLE 1 CRITERIATABLE 2PROVISIONAL MAXIMUM CONCENTRATION OF METALS IN SEWAGE SLUDGEFOR PRODUCERS NOT MEETING TABLE 1 CRITERIA Metal Concentration (mg/kg)

Arsenic 75 Cadmium 85 Chromium 3000 Copper 4300 Lead 840 Mercury 57 Molybdenum 75 Nickel 420 Selenium 100 Zinc 7500 TABLE 3 MAXIMUM ALLOWABLE SOIL CONCENTRATIONS Metal Concentration (mg/kg)

Arsenic 13.0 Cadmium 2.4 Chromium 290 Copper 92 Lead 85 Mercury 2.4 Molybdenum 4.6 Nickel 83* Selenium 10 Zinc 290** * For sandy to silt loam soils with a permeability greater than 2.0 inches per hour, the maximum allowable soil concentration for nickel is 50 mg/kg. ** For those sites with greater than 30% legume species, the maximum allowable soil concentration for zinc is 130 mg/kg for sandy to silt loam soils with permeability greater than 2.0 inches per hour and 200 mg/kg for other soil types.

APPENDIX A

FREQUENCY OF MONITORING

AMOUNT OF SEWAGE SLUDGE RECEIVED FREQUENCY

(Actual dry tons per 365 per day) OF MONITORING Greater than zero but less than 290 once every 6 months Equal to or grater than 290 but less than 1,5000 once per quarter (4 times per year)

Equal to or greater than 1,500 but less than 15,000 once per month (12 times per month)

Equal to or greater than 15,000 once per week 33CSR2 33CSR2

Series 03 Yard Waste Composting Rule

W. Va. Code R. § 33-3-1 General

1.1. Scope. -- This legislative rule establishes requirements for the proper handling and composting of yard waste including siting, bonding, design, construction, modification, operation, closure and permitting procedures pertaining to any facility or activity that generates, processes, composts or otherwise reuses or recycles yard waste by whatever means and sets forth requirements for operator training and certification.

1.2. Authority. -- W. Va. Code '20-11-8(c).

1.3. Filing Date. -- June 26, 2001.

1.4. Effective Date. -- June 26, 2001.

1.5. Legislative Mandate.

Effective January 1, 1997 it is unlawful to deposit yard waste, including grass clippings and leaves, in a solid waste facility in West Virginia: Provided, That such prohibitions do not apply to a facility designed specifically to compost yard waste or otherwise recycle or reuse such items: Provided, That reasonable and necessary exceptions to such prohibitions are included in subsection 3.1.c of this rule.

1.6. Incorporation by Reference.

Whenever federal or state statutes or rules are incorporated into this rule by reference, the reference is to the statute or rule in effect on the effective date of this rule.

W. Va. Code R. § 33-3-2 Definitions

All definitions in W. Va. Code '22-15-2 and all definitions in '33CSR1 and '33CSR2 are fully incorporated into this rule by reference. The following additional definitions apply to this rule:

2.1. "Buffer Zone" means the distance between the composting operation and the adjacent property boundaries.

2.2. "Commercial Yard Waste Composting Facility" means any solid waste facility which is authorized to handle or accept up to thirty-six thousand (36,000) tons per year of yard waste and/or other compostable solid waste materials generated by sources other than the owner or operator of the facility, provided that, a commercial yard waste composting facility does not include an approved solid waste facility owned and operated by a person for the sole purpose of composting yard waste created by that person or other persons on a cost-sharing or nonprofit basis and shall not include land upon which finished compost is applied for use as a soil amendment/soil conditioner.

2.3. "Domestic yard waste" means yard wastes generated in small quantities by the resident or tenant of residential property.

2.4. "Non-residential composting activities" means a composting activity by persons such as landscape contractors, nurseries or greenhouses, lawn and garden companies, solid waste authorities and municipalities which are authorized to compost up to twelve thousand (12,000) tons per year of yard waste materials consisting of grass clippings, weeds, leaves, brush/shrub or tree prunings and other acceptable compostable materials which have been approved in writing by the Chief to produce a safe product for use as a soil amendment/soil conditioner.

2.5. "Nuisance" means any practice or condition created by a composting facility or activities which results in dust, dirt, mud, infectious molds, bacteria or fungi, or offensive odor, or attracts vectors such as insects, rodents, snakes or in any way interferes with the normal use of any properties or causes harm or injury to any person or the environment.

2.6. "Runoff" means any flowing water and associated contaminants originating from any part of the solid waste facility or activity that drains over the land.

2.7. "Run-on" means any rainwater, snow melt, wastewater, leachate or other liquid that drains over land onto any part of the compost facility.

2.8. "Soil amendment/soil conditioner" means an organic matter source or yard waste compost that when added to the soil improves the general physical, chemical and biological properties of the soil.

2.9. "Yard waste composting" means the controlled decomposition of yard waste to produce a stable and beneficial humus-like material.

2.10. "Yard waste" means grass clippings, weeds, leaves, brush, garden waste, shrub or tree prunings and other living or dead plant tissues, except that, such materials which, due to inadvertent contamination or mixture with other substances which render the waste unsuitable for composting, shall not be considered to be yard waste: Provided, That the same or similar waste generated by commercial agricultural enterprises is excluded.

2.11. "Windrow" means an elongated pile created by the placement of yard waste.

W. Va. Code R. § 33-3-3 Yard Waste Composting and Permitting Requirements

3.1. Applicability.

3.1.a. This rule applies to all persons who handle or manage yard waste to produce compost and requires that:

3.1.a.1. Methods employed for yard waste composting must be consistent with section 4 of the Solid Waste Management Board's program for the AProper Handling of Yard Waste,@ dated May 1, 1993.

3.1.a.2. Yard wastes must not be combined with Asludge,@ as defined in 33CSR1 section 2 of the Solid Waste Management Rule, Apetroleum contaminated soil@ or other solid waste materials specified by the Secretary.

3.1.a.3. A yard waste composting facility may not be situated atop a partially or fully closed solid waste disposal area, unless approved by the Secretary in writing; An existing solid waste facility by minor permit modification may include yard waste composting operations.

3.1.b. Domestic Yard waste shall be disposed of in a manner consistent with one or any combination of the following options as provided for in W.Va. Code '20-11-8:

3.1.b.1. Disposal in a publicly or privately operated commercial or noncommercial composting facility or activity;

3.1.b.2. Disposal by composting on the property from which domestic yard waste is generated or on adjoining property or neighborhood property if consent is obtained from the owner of the adjoining or neighborhood property;

3.1.b.3. Disposal by open burning where such activity is not prohibited by the W. Va. Code, rules promulgated thereunder or municipal or county codes or ordinances.

3.1.c. Reasonable and Necessary Exceptions to Prohibition. Solid waste landfills may accept and dispose of domestic yard waste delivered to the facility by a municipality, solid waste hauler, resident or tenant when the Secretary determines that none of the options contained in subdivision 3.1.b are available.

3.2. Location Standards for Siting a Commercial Yard Waste Composting Facility.

3.2.a. The following location standards apply to commercial yard waste composting facilities, unless otherwise approved by the Secretary:

3.2.a.1. A yard waste composting facility shall be located in an area which has been authorized for composting facilities by the county and/or regional solid waste authority approved siting plan;

3.2.a.2. Yard waste composting facilities shall not be sited or constructed in areas subject to a one hundred year flood plain and no facility shall be closer than three hundred (300) feet to any regularly flowing stream, perennial stream, pond, lake, wetland or spring;

3.2.a.3. Yard waste composting facilities shall not be located in areas which are geologically unstable or where the site topography exceeds six (6) percent grade;

3.2.a.4. Acceptable sites must have sufficient area and terrain to allow for proper management of run-on, runoff and leachate;

3.2.a.5. A yard waste composting facility shall not be located within two thousand (2,000) feet of any health care facility, school, church, or similar type of institution. The Secretary may reduce this setback distance if the owner or operator can successfully demonstrate that a nuisance will not be created due to the operation of the facility;

3.2.a.6. A yard waste composting facility shall not be located within two hundred (200) feet of drinking water supply wells and occupied dwellings;

3.2.a.7. A yard waste composting facility shall not be located within fifty (50) feet of a federal or state highway right-of-way or within twenty-five (25) feet of a city street right-of-way;

3.2.a.8. The operational area of a yard waste composting facility shall not be located within one hundred (100) feet of an adjacent property owner's boundary line;

3.2.a.9. A yard waste composting facility shall not be located on land where runoff drains into a sinkhole;

3.2.a.10. A yard waste composting facility shall not be located on land that has a seasonal high groundwater table (based on soil maps) less than two (2) feet from the land surface;

3.2.a.11. A yard waste composting facility shall not be located on land that has less than twenty (20) inches of soil over bedrock or on an impervious pan; and

3.2.a.12. A yard waste composting facility shall not be located within ten thousand (10,000) feet to the closest point of any airport runway used or planned to be used by turbojet aircraft or within five thousand (5,000) feet to the closest point of any airport runway used only by piston type aircraft or within other areas where a substantial bird hazard to aircraft would be created.

3.3. Location Standards for Siting Non-Residential Composting Activities.

3.3.a. The following location standards apply to non-residential composting activities:

3.3.a.1. Non-residential composting activities shall not be sited or constructed in areas closer than one hundred (100) feet to any regularly flowing stream, perennial stream, pond, lake, wetland or spring;

3.3.a.2. Non-residential composting activities shall have sufficient area and terrain to allow for the proper management of run-on, runoff and leachate;

3.3.a.3. Non-residential composting activities shall not be located within one hundred (100) feet of an adjacent property owner's boundary line without obtaining prior written permission from the adjacent property owner;

3.3.a.4. Non-residential composting activities shall not be located within one hundred (100) feet of a sinkhole; and

3.3.a.5. Non-residential composting activities shall not exceed five (5) acres in size without written approval from the Secretary.

3.3.b. Compliance with any of the location standards for yard waste composting facilities or activities in this rule does not relieve the owner or operator from compliance with all other codes, ordinances or rules.

3.4. Design and Construction of Commercial Yard Waste Composting Facility.

3.4.a. A handling area and proper equip-ment shall be provided to segregate waste other than yard waste and non-compostable components in the yard waste and to store such components in properly constructed containers prior to their disposal at a permitted solid waste disposal facility.

3.4.b. If the yard waste composting facility is located in any area where the seasonal high water table (based on soil maps) lies within five (5) feet of the ground surface, the composting and handling areas shall be hard-surfaced in a manner acceptable to the Secretary and diked to prevent entry of run-on or escape of runoff and other liquids, and a sump with an adequately sized pump located at the low point of the hard-surface area shall be provided to convey liquids to a wastewater treatment, disposal or holding facility.

3.4.c. Accepted engineering practices shall be incorporated into the design of facilities located on sites with:

3.4.c.1. Springs, seeps, and other groundwater intrusions;

3.4.c.2. Gas, water, phone, sewage lines or other utilities under the active areas; or

3.4.c.3. Electrical transmission lines above or below the active areas; and

3.4.c.4. Additional design and construction considerations.

3.4.c.4.A. Areas used for mixing, curing, and storing of compost shall be graded to prevent run-on, collect runoff, and provided with a drainage system to route the collected runoff to a wastewater storage, treatment, or disposal facility.

3.4.c.4.B. A buffer zone with the minimum width of one hundred (100) feet shall be incorporated in the facility design between facility adjacent property boundaries and the operational areas of the facility.

3.4.c.4.C. Roads serving the unloading, handling, composting, and storage areas shall be of all-weather construction and the design features for each shall be shown on drawings submitted to the Department of Environmental Protection in the application.

3.4.c.4.D. The design of a commercial yard waste composting facility shall be signed and sealed by a W. Va. registered professional engineer.

3.5. Permits Required.

3.5.a. Applicability.

No person may establish, install, construct or operate the following:

3.5.a.1. A commercial yard waste composting facility without obtaining a solid waste facility permit from the Department of Environmental Protection, provided that first, the applicant fulfills the pre-siting requirements of subsection 3.4 of the West Virginia Solid Waste Management Rule, 33CSR1; or

3.5.a.2. A non-residential composting activity without the property owner/operator obtaining a registration number from the Department of Environmental Protection, Division of Waste Management, Solid Waste Management Section.

3.5.b. Exemptions.

Residential and non-residential composting activities are exempt from obtaining a commercial solid waste facility permit. However, the non-residential activity shall be located and operated in compliance with the location standards and the operational requirements as set forth in subsections 3.3 and 3.8 of this rule.

3.6. Permit Application Requirements.

3.6.a. The applicant for a permit to establish, install, construct, operate and close a commercial yard waste composting facility shall include in the permit application the following:

3.6.a.1. A copy of the Certificate of Convenience and Necessity (CON) obtained from the WV Public Service Commission;

3.6.a.2. A copy of the Certificate of Siting Approval;

3.6.a.3. The name, address, and location of the proposed facility;

3.6.a.4. The proposed operator's and owner's name, address, telephone number, ownership status, and status as a federal, state, private, public or other entity;

3.6.a.5. A copy of legal documents demonstrating that the applicant has legal right to enter and conduct commercial yard waste composting operations on the property including a copy of the deed description or lease agreement;

3.6.a.6. A safety program designed to prevent hazards and accidents at the proposed facility;

3.6.a.7. Proof of liability insurance to cover the operations of the proposed facility; and

3.6.a.8. A detailed description of the activities to be conducted by the applicant at the facility.

3.6.b. An engineering report for an application to obtain a permit to construct shall contain, at a minimum, the following:

3.6.b.1. A regional map, or maps, (of appropriate scale) that delineate the entire service area of the proposed facility (both existing and proposed); existing and proposed collection, processing, and disposal operations; the location of the closest population centers; and the transportation systems including highways, airports, railways and waterways;

3.6.b.2. A vicinity map (minimum scale of 1"=2000') that delineates the area within one mile of the facility boundaries, zoning and land uses, residences, surface waters, access roads, bridges, railroads, airports, historic sites, and other existing and proposed manmade or natural features relating to the project;

3.6.b.3. A site plan (minimum scale of 1"=200') with five foot contour intervals that delineates property boundaries, the location of existing and proposed soil boring, monitoring wells, buildings and appurtenances, fences, gates, roads, parking areas, drainage, culverts, storage facilities or areas, loading areas; existing and proposed elevation contours and direction of prevailing winds; and the location of residences, potable wells, surface water bodies, wetlands, and drainage swales located within the site and in the site plan area;

3.6.b.4. A detailed description of the operation of the facility including precautions or procedures for operation during heavy winds, thunderstorms, snowstorms, prolonged freezing conditions and an operational narrative describing the following:

3.6.b.4.A. Collection methods to be employed;

3.6.b.4.B. Methods to be utilized in constructing compost piles or windrows, including equipment;

3.6.b.4.C. Proposed dimensions of compost piles or windrow;

3.6.b.4.D. A source of supplemental water to maintain an optimal moisture content of compost piles or windrows;

3.6.b.4.E. Proposed turning frequency, including the method for determining that frequency;

3.6.b.4.F. Proposed duration of the composting process, including curing or storage time, and the term of compost distribution;

3.6.b.4.G. A distribution plan for the yard waste compost;

3.6.b.4.H. A residue disposal plan including the location of disposal site(s);

3.6.b.4.I. Provisions for emergency response; and

3.6.b.4.J. A public information and education program;

3.6.b.5. A schedule of operation, including the days and hours that the facility will be open, preparations before opening, and procedures followed after closing for the day;

3.6.b.6. Anticipated daily traffic flow to and from the facility;

3.6.b.7. A description of the ultimate use for the finished yard waste compost, method for removal from the site, and a plan for use or disposal of any yard waste compost that cannot be used in the expected manner due to poor quality or change in market conditions;

3.6.b.8. Identification of the personnel required to operate and maintain the facility and their job descriptions and responsibilities;

3.6.b.9. A detailed description of the origin, quality, quantity, and type of yard waste anticipated to be received at the proposed facility. The quantity of yard waste anticipated to be received shall be estimated in both cubic yards and tonnage, and the maximum amount of compost estimated to be produced daily, monthly and annually shall be stated;

3.6.b.10. Contingency plans detailing corrective (or remedial) action to be taken in the event of equipment breakdown; air pollution (odors); unacceptable waste delivered to the facility; groundwater contamination; spills; and undesirable conditions such as fires, dust, noise, vectors, lack of a market for the yard waste compost product and unusual traffic conditions;

3.6.b.11. The procedures for the development of an operations manual. The manual must contain general design information, detailed operational information and instructions including methods of monitoring for moisture, temperature, and other quality control measures during the composting process. In addition, the manual must outline the specific procedures to be used in monitoring, sampling and analyzing finished compost material, which must be acceptable to the Secretary, provided that, as a minimum the finished compost material shall be analyzed by an approved EPA method for the concentration levels of heavy metals prior to its use. If any heavy metal concentration level exceeds regulatory standards, the finished compost material must be disposed of in an approved landfill; and

3.6.b.12. A detailed description of the yard waste composting technology to be utilized at the proposed facility.

3.6.c. Six (6) copies of the application, including all supporting documents shall be submitted as follows: four (4) copies shall be filed with the Department of Environmental Protection, Division of Waste Management, Solid Waste Management Section, one (1) copy shall be submitted to the Solid Waste Management Board, and one copy shall be submitted to the county or regional solid waste authority for the area in which the proposed facility is to be located.

3.7. Permit Application Fees.

3.7.a. Each application filed for a commercial yard waste composting facility permit must be accompanied by a nonrefundable application fee made payable to the Department of Environmental Protection in the amount of five hundred (500) dollars.

3.7.b. The Department of Environmental Protection may require a fee of fifty (50) dollars or ten (10) percent of the application fee for any application refiled due to incompleteness.

3.8. Operational Requirements for Commercial Yard Waste Composting Facilities and Non-Residential Composting Activities.

3.8.a. The addition of any other solid waste including but not limited to hazardous, sludges, infectious, construction debris, demolition, industrial or other municipal solid waste to the yard waste is strictly prohibited.

3.8.b. Waste other than yard waste and non-compostable solid wastes shall be segregated from the compostable yard waste and promptly removed from the site for proper disposal at an approved facility. Segregated solid waste shall be removed from the facility at the end of each working day unless it is stored in containers specifically designed for storage of solid waste, provided that the material shall not remain at the facility more than thirty (30) days.

3.8.c. Screening and removal of non-compostable solid wastes from the windrows or compost piles shall occur after the composting process is completed.

3.8.d. Access to a yard waste composting facility is allowed only when an attendant is on duty.

3.8.e. Any nuisance created by a commercial yard waste composting facility or a non-residential composting activity which causes harm or injury to any person or the environment shall be abated or the composting facility or activity may be required by the Secretary to cease and desist operations.

3.8.f. Shrubs, brush, tree prunings or any other bulky, woody type materials shall be shredded, ground or otherwise reduced in size prior to being mixed with other yard wastes to be composted.

3.8.g. The operator of a yard waste composting facility shall implement, and enforce a safety program designed to prevent hazards and accidents.

3.8.h. Open burning is prohibited, except as provided by paragraph 3.1.b.3 of this rule.

3.8.i. Fugitive dust and mud deposits on main off-site roads and access roads shall be minimized at all times to limit nuisances and the operator must immediately abate any nuisances.

3.8.j. Leachate or other runoff from a compost facility shall not be permitted to drain or discharge into surface waters except when authorized under a West Virginia NPDES permit issued by the Department of Environmental Protection.

3.8.k. A one hundred (100) foot buffer zone shall be provided and maintained in a manner acceptable to the Secretary.

3.9. Other Acceptable Compostable Materials.

3.9.a. Other acceptable compostable materials may include, but are not limited to, coffee grounds, kitchen scraps, pet and human hair, shredded newspapers, lint and sweepings, wood ashes, fish and poultry carcasses/litter, and animal manures.

3.10. Incorporation by Reference.

3.10.a. The following subsections of the West Virginia Solid Waste Management, 47 CSR 38, Rule, 33CSR1 are hereby incorporated and implemented as a part of this yard waste composting rule and apply only to commercial yard waste composting facilities:

3.10.a.1. Subsection 3.4; "Pre-Siting Requirement for Commercial Solid Waste Facilities";

3.10.a.2. Subsection 3.13; "Bonding and Financial Assurance";

3.10.a.3. Subsection 3.17; "Draft Permit";

3.10.a.4. Subsection 3.18; "Permit Modification, Suspension and Revocation";

3.10.a.5. Subsection 3.19; "Transfer of permit";

3.10.a.6. Subsection 3.20; "Permit Renewal";

3.10.a.7. Subsection 3.21; "Public Notice";

3.10.a.8. Subsection 3.22; "Public Comments and Request for Public Hearings";

3.10.a.9. Subsection 3.23; "Public Hearings";

3.10.a.10. Subsection 3.24; "Reopening of the Public Comment Period";

3.10.a.11. Subsection 3.25; "Public Participation File";

3.10.a.12. Subsection 3.26; "Public Availability of Information";

3.10.a.13. Subsection 3.27; "Issuance and Effective Date of Permit";

3.10.a.14. Subsection 3.28; "Permit Review by the Secretary";

3.10.a.15. Subsection 3.29; "Appeals";

3.10.a.16. Subsection 4.5.5; "Quality Assurance and Quality Control" (applicable portions only);

3.10.a.17. Subsection 4.8; "Leachate Management"; and

3.10.a.18. Subsection 4.12; "Reporting.@

W. Va. Code R. § 33-3-4 Closure Requirements for a Commercial Yard Waste Composting Facility

4.1. Maintenance Minimization.

The owner or operator shall close the facility in a manner that minimizes the need for further maintenance. All solid waste, compost, and residues shall be removed and disposed in a permitted solid waste disposal facility.

4.2. Closure Plan and Closure Plan Amendments.

The owner or operator of a commercial yard waste composting facility shall have a written closure plan.

4.2.a. Closure Plan Inclusions.

4.2.a.1. This plan shall identify the steps necessary to completely close the facility at the time when its operation is most extensive or operating at peak capacity. The closure plan must include, at a minimum, a schedule for final closure, the anticipated date when wastes will no longer be received, the date when completion of final closure is anticipated, and intervening milestone dates which will allow tracking of the progress of closure.

4.2.a.2. The closure plan shall be submitted to the Department of Environmental Protection as a part of the application for a permit. If the Secretary finds the closure plan is deficient, the closure plan shall be amended by the owner or operator within ninety (90) days of the Secretary=s finding. The permit will not be issued by the Department of Environmental Protection until the amended plan meets the closure requirements.

4.2.b. Closure Plan Amendments.

4.2.b.1. The owner or operator shall update the closure plan with any changes in operation or facility design that affects the closure plan. The updated plan shall be submitted to the Department of Environmental Protection for approval fifteen (15) days prior to such changes. The Secretary may require modifications to any updated plan which does not meet the closure requirements.

4.2.b.2. At any time during the operating life of the facility, the amended closure plan shall be made available to the Department of Environmental Protection or the county or regional solid waste authority upon request.

4.3. Time Allowed for Closure.

The owner or operator shall complete closure activities in accordance with the approved closure plan and within six months after receiving the final volume of wastes. The Secretary may approve a longer closure period if the owner or operator can demonstrate that the required or planned closure activities will, of necessity, take longer than six months to complete; and that he or she has taken all necessary steps to eliminate any threat to human health and the environment from the unclosed but inactive facility.

4.3.a. At least thirty (30) days prior to the beginning of closure activities, the owner or operator shall post a sign at all points of access to the facility notifying all persons of the closing, and state that further receipt of waste materials is prohibited. Further, upon closure, suitable barriers shall be installed at all former access points to prevent new waste from being deposited.

4.3.b. Notice of the upcoming closure is a Class II legal advertisement which must be published in a local newspaper at least thirty (30) days prior to closure and a copy of the notice must be provided to the Secretary within ten (10) days of the date of publication.

4.4. Site Reclamation Responsibilities.

A uniform and compacted layer of soil that is at least six (6) inches in thickness and capable of supporting revegetation shall be placed over all disturbed land surface areas within the facility's boundaries. A revegetation plan shall be a part of the closure plan requirements and must conform with the provisions of subdivision 4.5.f of 33CSR1, the Solid Waste Management Rule.

4.5. Evidence of Proper Closure.

A compost facility shall be considered properly closed when the actions required by subsection 4.4 of this rule have been taken by the owner or operator and duly authorized representatives of the Secretary verify compliance by an on-site inspection and provide a written confirmation that closure has been completed properly.

W. Va. Code R. § 33-3-5 Commercial Yard Waste Composting Operator Training and Certification Program

5.1. Experience, Training and Education.

In order to ensure the proper, safe and efficient composting of yard waste, operators of commercial yard waste composting facilities must have a minimum of two (2) years on the job experience in yard waste composting or receive training and education in yard waste composting. The training and education shall consist of but not be limited to forty (40) classroom hours. Topics should include:

5.1.a. Proper and safe equipment operation and equipment preventive maintenance; and

5.1.b. Composting science technology which encompasses the composting process, composting methods, composting operations, site and environmental considerations, facility design and use, compost quality control, using and marketing compost, composting economics, record keeping and reporting, worker safety, business math and volumetric calculations.

5.2. Approved Training and Education Programs.

Training and education for yard waste composting shall include programs sponsored by, but not limited to, colleges and universities, agricultural extension services, and county or regional solid waste authorities: Provided that all training and education programs must be approved by the Department of Environmental Protection, Division of Waste Management.

5.3. Certification.

Any person who meets the requirements as listed in subsection 5.1 of this rule is considered a certified yard waste composting operator, provided that, written verification of on the job experience or training and education is properly submitted to, and approved by the Department of Environmental Protection.

33CSR3

Series 04 Lead Acid Battery Rule (Tech Cleanup changing # from 33-38F filed 1997)

W. Va. Code R. § 33-4-1 General

1.1. Scope. -- This legislative rule establishes requirements for the proper storage, handling, recycling, and disposal of lead acid batteries.

1.2. Authority. -- W. Va. Code '20-11-8(c).

1.3. Filing Date. -- May 20, 1994.

1.4. Effective Date. -- June 1, 1994.

W. Va. Code R. § 33-4-2 Definitions

All definitions in W. Va. Code '22-15-2, are fully incorporated into this rule by reference. The following additional definitions apply to this rule unless otherwise specified herein:

2.1. "Lead Acid Battery" means an encasement which contains or contained lead and sulfuric acid to produce an electrical charge.

2.2. "Lead Acid Battery Storage Facility" means any facility used for the storage of lead acid batteries, including any wholesale or retail business, automotive service or repair garages or other persons that handle lead acid batteries for purposes of commerce, recycling or disposal.

2.3. "Lead Acid Battery Dealer" means any person selling, collecting, disposing, storing, recycling or otherwise handling new or spent lead acid batteries on a wholesale or retail basis.

2.4. "Spent Lead Acid Battery" means an encasement which contains or contained lead and sulfuric acid which will no longer produce an electrical charge.

W. Va. Code R. § 33-4-3 Lead Acid Battery Handling, Storage and Disposal Requirements

3.1. Certain Disposal Prohibited. -- After the first day of June 1994, it shall be unlawful to deposit lead acid batteries in a solid waste disposal facility in West Virginia. Spent lead acid batteries must be delivered to an automotive battery dealer, or wholesaler, a secondary lead smelter permitted by the United States Environmental Protection Agency (USEPA), or a collection or recycling facility authorized under the hazardous waste laws of the State of West Virginia, or other jurisdiction.

3.2. Disposal by Dealers. -- No lead acid battery dealer shall dispose of a spent lead acid battery except by delivery to a secondary lead smelter permitted by the USEPA, or to the agent of a battery manufacturer or wholesaler for delivery to a secondary lead smelter permitted by the USEPA, or to a collection or recycling facility authorized under the laws of the State of West Virginia or laws of the state where the collection or recycling facility is located.

3.3. Collection for Recycling and Public Notice Requirements. -- Any person selling or offering lead acid batteries for sale at retail or wholesale shall:

3.3.a. Accept, at the point of transfer, spent lead acid batteries from customers when purchases new batteries. It is not necessary to exchange a battery in order to purchase a new one.

3.3.b. Post written notices on at least 8 1/2 inch by 11 inch poster clearly visible to all customers and containing the universal recycling symbol and the following language:

3.3.a.1. AIt is unlawful to dispose of a lead acid battery in a W. Va. landfill.

3.3.a.2. Please RECYCLE your used batteries.

3.3.a.3. State rules require us to accept used or spent lead acid batteries for recycling in exchange for new batteries purchased from the dealer. Note: It is not necessary to exchange a used battery in order to purchase a new one.@

3.4. Dealer's Reporting Requirements. -- Lead acid batteries shall be collected, recycled, or disposed of in a lawful manner, and records of such collection, recycling or disposal shall be kept on file at the facility for a period of not less than three (3) years for inspection.

3.5. Inspection of Automotive Battery Dealers. -- Authorized agents of the Division of Environmental Protection may at reasonable times or during normal business hours inspect any lead acid battery storage facility governed by these rules.

3.6. Storage. -- New lead acid batteries and spent lead acid batteries shall be stored in compliance with all local, state and federal regulations to prevent contamination or injury from acid spillage or leakage.

3.7. Public Information and Education. -- The Division of Natural Resources' ARecycling Program@ shall prepare a list of the names and locations of buy-back centers in West Virginia who will accept spent lead acid batteries; this list shall be disseminated by the DNR Recycling Program to the Solid Waste Management Board, lead acid battery dealers, the Division of Environmental Protection, and all county or regional solid waste authorities.

33CSR4

Series 05 Waste Tire Management Rule

W. Va. Code R. § 33-5-1 General

1.1. Purpose and Applicability.

1.1.a. Purpose. This rule is intended to meet the requirements of W. Va. Code ''20-11-8 and 22-15-21, as amended, to properly manage waste tires, including collection, accumulation, storage, disposal, processing, monofilling, reusing, transporting, recycling, permitting and recordkeeping.

1.1.b. Applicability. This rule applies to and establishes requirements for any person or persons who manage waste tires by whatever means in the State of West Virginia, as of the effective date of this rule.

1.1.c. Reference to Other State Agency Requirements.

1.1.c.1. Persons who manage waste tires may also be regulated under W. Va. Code, ''17-23 or 24, 20-11, 24-2, and rules promulgated thereunder.

1.1.c.2. In the event of conflict between this rule and other state agencies= rules, the more stringent rule prevails.

1.2. Authority. W. Va. Code ''22-1-3, 22-1-3a, 20-11-8(d), and 22-15-21(k), as amended.

1.3. Filing Date. -- June 26, 2001.

1.4. Effective Date. -- June 26, 2001.

1.5. Legislative Mandate.It is unlawful to dispose of tires in a solid waste landfill in West Virginia , except for waste tires collected as part of the Division of Highways waste tire remediation projects or other collection efforts in accordance with W. Va. Code '17-24 or the Department of Environmental Protection=s Pollution Prevention and Open Dump Program or other state authorized remediation or cleanup programs: Provided, That waste tires may be disposed of in solid waste landfills only when the state agency authorizing the remediaton or cleanup program has determined there is no reasonable alternative available.

1.6. Penalties. Any person who violates the provisions of the "Solid Waste Management Act," W. Va. Code '22- 15, or any permit, rule, or order issued pursuant to W. Va. Code '22-15, is subject to the same criminal and or civil penalties as set forth in W. Va. Code ''22-11-24 and 22-15-15.

W. Va. Code R. § 33-5-2 Definitions

Unless the context clearly requires a different meaning, all terms contained in this rule and not defined by tjhis section are defined by their plain meaning. This section contains definitions for terms that appear throughout this rule.

2.1. "Access Road" means all roads providing access to a solid waste facility from a road that is under federal, state, or local authority, or internal roads providing access from one portion of the facility to another.

2.2. "Automobile Dealer" means any business engaged in the sale of automobiles, trucks or motorized recreational vehicles in the State of West Virginia.

2.3. ABeneficial Use@ means the use or reuse of whole waste tires or tire derived material which are reused in constructing retaining walls, rebuilding highway shoulders and subbase, building highway crash attenuation barriers, and other civil engineering applications, feed hopper or watering troughs for livestock, or other agricultural uses approved by the Department of Environmental Protection, playground equipment, boat or truck dock construction, house or building construction, go-cart, motorbike or race track barriers, recapping, alternative daily cover, or similar types of beneficial applications: Provided, That waste tires may not be reused as fencing, as erosion control structures, along stream banks or river banks or reused in any manner where human health or the environment, as determined by the Secretary of the Department of Environmental Protection, is put at risk.

2.4. "Bond" means any performance bond or other form of financial assurance provided by W. Va. Code '22-15-12 and the Solid Waste Management Rule (33CSR1).

2.5. "Chief" means the chief of the Division of Waste Management of the West Virginia Department of Environmental Protection or his or her authorized representative.

2.6. ADepartment of Transportation Symbol@ means the identification number placed on new tires mandated by the Federal Motor Vehicle Safety Standards for motor vehicles and motor vehicle equipment pursuant to Section 103 of the National Traffic and Motor Vehicle Safety Act of 1966, as amended.

2.7. AD.O.T. Regulated Tire@ means any tire that was originally used for those purposes defined under Atire@or meets the definition of Awaste tire@ that is identified with a Department of Transportation symbol.

2.8. ARemediate or Remediation@ means to remove all tires located above grade at a site and may also include the removal of the solid waste incidental to the removal of waste tires at a site: Provided, That remediation does not include clean up of hazardous waste.

2.9. ARetail Tire Dealer@ means any person or persons engaged in the business of retail sale of tires to an end user in the state of West Virginia.

2.10. "Sale and/or Selling" includes exchange, consignment, barter, gift, and offer for sale. Sale and/or selling includes the removal of tires from a stock of merchandise by a wholesale distributor, or a retail tire dealer, for its own use.

2.11. ASalvage@ means old or scrap brass, copper, iron, steel, other ferrous or nonferrous materials, batteries or rubber and any junked, dismantled or wrecked machinery, machines or motor vehicles or any parts of any junked, dismantled or wrecked machinery, machines or motor vehicles.

2.12. ASalvage Yard@ means any place which is maintained, operated or used for the storing, keeping, buying, selling or processing of salvage, or for the operation and maintenance of a motor vehicle graveyard: Provided, That no salvage yard shall accept, store or process more than one hundred waste tires unless it has all of the permits necessary to operate a monofill, waste tire processing facility or solid waste facility. Any salvage yard which currently has on its premises more than one hundred waste tires not on a vehicle must establish a plan in conjunction with the Department of Environmental Protection for the proper disposal of the waste tires.

2.13. "Shredded Waste Tires" means tires or tire derived material, which has been processed by shredding to particle sizes not greater than 72 square inches.

2.14. "Storage Cell" means a dedicated monofill area for long term storage for waste tires or tire derived material located within an approved solid waste disposal facility for the purpose of long term storage for the eventual retrieval for marketing purposes.

2.15. "Tire" means any continuous solid or pneumatic rubber covering designed to encircle the wheel of a vehicle and may include the following types of tires: passenger car tires, light-duty and heavy-duty truck tires, high speed industrial tires, bus tires, and special service tires (including military, off-the-road, recreational/all terrain vehicle, and slow speed industrial).

2.16. "Tire Derived Material" means any shredded, chipped, crumb rubber or other such tire material that has been processed from a tire, or waste tire. 2.17 "Vector" means any insect, rodent, or other organism capable of directly or indirectly transmitting infectious diseases or pathogenic organisms from one person to another or from an animal to a person.

2.18. AWaste Tire@ means any continuous solid or pneumatic rubber covering designed to encircle the wheel of a vehicle but which has been discarded, abandoned or is no longer suitable for its original, intended purpose nor suitable for recapping, or other beneficial use, as defined in W. Va. Code '17-24-2, because of wear, damage or defect. A tire is no longer considered to be suitable for its original intended purpose when it fails to meet the minimum requirements to pass a West Virginia motor vehicle safety inspection. Used tires located at a commercial recapping facility or retail tire dealer for the purpose of being reused or recapped are not waste tires. 2.19 "Waste Tire Chips" means tires or tire derived materials that have been reduced to particle sizes not greater than 2 inches by 2 inches. 2.20 Waste Tire Generator means any person or persons whose activity results in the generation of waste tires by whatever means.

2.21. AWaste Tire Monofill@ or AMonofill@ means an approved solid waste facility where waste tires not mixed with any other waste are placed for the purpose of long term storage for eventual retrieval for marketing purposes.

2.22. AWaste Tire Pile@means a collection and/or accumulation of more than one hundred waste tires into a single location or given parcel or tract of land.

2.23. AWaste Tire Processing Facility@ means a solid waste facility or manufacturer that accepts waste tires generated by sources other than the owner or operator of the facility for processing by such means as cryogenics, pyrolysis, pyroprocessing, cutting, splitting, shredding, quartering, grinding or otherwise breaking down waste tires for the purposes of disposal, reuse, recycling or marketing.

2.24. AWaste Tire Transporter@ means any person who transports waste tires collected from retail tire dealers or other sources in this state. Waste tire transporters must be in compliance with W. Va. Code 24-2-1b(a) to lawfully transport tires. Provided, That persons transporting waste tires generated by their own business activities, citizens transporting their own waste tires, or persons who are transporting waste tires generated from state authorized waste tire remediation or cleanup projects are not, in this instance, waste tire transporters.

W. Va. Code R. § 33-5-3 Permitting Requirements

3.1. Applicability.

3.1.a. A permit from the Department of Environmental Protection is required for any person or persons who generate, accumulate, collect, transport, store, process, dispose, or otherwise manage waste tires in the State of West Virginia on and after the effective date of this rule.

3.1.b. Exceptions to permitting requirements. Persons who use no more than one hundred waste tires for beneficial use, as defined in this rule, may, in the discretion of the Secretary, accumulate waste tires for this specific purpose without a permit. The commissioner of the Division of Highways may temporarily accumulate, without a permit, as many waste tires as he or she deems necessary at any location or locations necessary to effectuate waste tire pile remediation. A recycling facility is exempt from permitting whose only function is to accept at no charge, buy or transfer source separated material, including waste tires for reuse, resale or transfer for further processing. Provided that, a solid waste permit from the Department is not required for transporting waste tires.

3.1.c. Use of Waste Tires as Alternative Fuel. Waste tires or tire derived material that is used as an alternative or supplemental fuel shall not require a solid waste facility permit or be regulated under this rule: Provided, That the facility utilizing such material is permitted and regulated by the Division of Air Quality within the Department of Environmental Protection or other appropriate state regulatory agency.

3.1.c.1. Use of Waste Tires as a Raw Material Feedstock. A facility or pilot project which utilizes waste tires as raw material feedstock in a process such as pyrolysis, cryogenics, (chemical/thermal) or high pressure waterjetting to break down waste tires into their respective constituents of crumb rubber, polyester or nylon fiber, steel belts and other constituents not herein specified to develop new and/or recyclable materials shall not require a solid waste facility permit or be regulated under this rule: Provided, That the facility is permitted and regulated including the handling, storage, and stockpiling of waste tires consistent with this rule by the Division of Air Quality, Division of Water Resources or other appropriate state regulatory agency. Additionally, the Secretary may allow, without a solid waste facility permit, pilot or test projects using the latest best available technology.

3.1.c.2. Beneficial Use of Waste Tires. Whole waste tires or tire derived materials may be reused in the applications described under the definition of Abeneficial use@ in section 2 of this rule, or in other acceptable civil engineering applications. At the discretion of the Secretary, the Department may require a permit for the accumulation of more than 100 waste tires for beneficial use. Additionally, the Secretary has the authority to determine if an unreasonable number of waste tires have been accumulated for an unreasonable length of time for beneficial use. In such determination, the Secretary may take enforcement action for creating an open dump and require the removal and proper disposal of the waste tires.

3.1.d. Commercial Solid Waste Facilities Required to Accept Waste Tires.

3.1.d.1. Commercial solid waste facilities shall accept whole waste tires from any person and may charge a reasonable fee for acceptance of waste tires. Provided however, whole waste tires accepted may not be disposed of in a landfill except as allowed in paragraph 3.1.e.1 of this section and W. Va. Code '22-15-21(j). Provided further, that whole waste tires accepted which are not eligible for disposal shall be stored in accordance with 3.5.e.

3.1.d.2. Except as required in paragraph 3.1.e.2 of this section, whole waste tires accepted by commercial solid waste facilities are exempt from the calculation of monthly tonnage limits and from any solid waste disposal assessment fees.

3.1.e. Exceptions to Prohibiting Waste Tires from Disposal in Landfills. 3.1.e.1 Commercial solid waste landfill facilities may only dispose of whole waste tires generated from the Division of Highways waste tire remediation projects and the Department of Environmental Protection Open Dump Program when the Division of Highways or the Department of Environmental Protection has determined that there is no other reasonable alternative available.

3.1.e.2. Whole waste tires accepted from the Division of Highways or the Department of Environmental Protection projects and program which are permanently disposed of in a landfill are not exempt from the calculation of monthly tonnage limits or any solid waste disposal assessment fees.

3.1.e.3. The Division of Highways and the Department of Environmental Protection may negotiate with a solid waste landfill facility for rates and charges for the disposal of waste tires regardless of the rates and charges established by the Public Service Commission.

3.1.e.4. Waste Tire Monofills. Waste tires may be disposed in waste tire monofills to provide a long term storage site for waste tires or tire derived material, while minimizing the risk of vector attraction, fire and leachate generation until such time that markets are further developed for reuse and recycling.

3.1.e.5. Alternative Daily Cover. Beneficial use of shredded waste tires is acceptable and may be substituted as alternative daily cover at solid wastelandfills, if approved in writing by the Department: Beneficial use of shredded waste tires as alternative daily cover is exempt from the calculation of monthly tonnage limits and solid waste disposal assessment fees. Provided, That the amount (tons) of shredded waste tires used beneficially as alternative daily cover must be included in each monthly tonnage report.

3.1.e.6. Beneficial Use as Select Waste in Commercial Solid Waste Landfill Facilities. Tire derived material may be beneficially used for the first eight (8) feet of select waste by being placed on the protective cover of the composite liner system and shall be exempt from the calculation of monthly tonnage limits and solid waste disposal assessment fees.

3.2. Types of Permits Required.

3.2.a. Waste Tire Monofill and Waste Tire Processing Facility. A permit must be obtained from the Secretary prior to the installation, establishment, construction or operation of a waste tire monofill or a waste tire processing facility. Provided, That a portable tire grinder or tire shredding machine shall not constitute a waste tire processing facility, unless determined otherwise by the Secretary.

3.2.a.1. Minor Modifications. A permittee of an existing approved commercial solid waste facility shall apply to the Secretary for a minor permit modification to conduct waste tire processing activities. The permittee may also apply for a minor permit modification to install and operate a designated monofill storage cell for the placement of waste tires and/or tire derived material at the facility: Provided, That such activities fully comply with this rule. Each designated monofill storage cell must be located at least two hundred (200) feet from any other solid waste disposal cells.

3.2.a.2. Salvage Yard. In addition to a license issued by the Division of Highways, a salvage yard which on and after the effective date of this rule has on its premises, at any given time, more than 100 waste tires not mounted on wheels on vehicles or machines must obtain a commercial solid waste facility permit to store said tires or have entered into an agreement with the Department of Environmental Protection for the proper disposal of the waste tires.

3.3. Permit Application Requirements.

3.3.a. Regulatory Requirements. Unless otherwise approved by the Secretary in writing, all applicants for a waste tire monofill, storage cell, salvage yard or waste tire processing facility or activity shall comply with the permit application requirements of '33CSR1 subsection 3.7, as applicable, and the following additional requirements:

3.3.b. Projected Maximum Quantity/ Tonnage Information. The proposed annual quantity/tonnage of waste tires and tire derived material to be received, processed and stored at the processing facility/activity shall be stated in the application. The maximum quantity/tonnage received, processed and stored at any given time, may not exceed a projected (quarterly) three month supply. However, if the applicant can verify a market or an end use for the tire derived material by copies of signed contractual agreements, the applicant may be eligible, if approved by the Secretary in writing, to receive, process and store at any given time, up to a six month supply: Provided, That no more waste tires and tire derived material shall be received at the facility until the previous maximum quantity/tonnage allowed by the Secretary to be received, processed and stored has been removed from the facility for marketing.

3.3.c. Market Analysis Information. A market analysis relating to waste tires and tire derived material shall be provided by the applicant including:

3.3.c.1. Identification of Potential and Verified Markets. A listing of specific information utilized by the applicant to identify potential and verified markets for the material to be received and processed at the facility shall be provided. Data supplied must also include any material quality requirements of the potential market contacts, market pricing structures, as available and applicable; and the identification of marketing services available for assistance in product quality or material preparation and transportation.

3.3.d. Flow Diagram. The applicant shall provide a flow diagram along with a narrative description of the operation and activities involving the flow of the waste tires from their receipt, processing into tire derived material, storage and transport to market (end use). There must be sufficient explanation in the flow diagram and narrative descriptions to explain the complete flow of the proposed facility's operation and activities.

3.3.e. Emergency Response Plan. An emergency response plan must be included in the application that includes, at a minimum, the following:

3.3.e.1. Notification Procedures. A notification procedure to summon emergency assistance from the local police departments, fire departments, Department of Environmental Protection and state or local emergency response teams. This procedure must be posted at the facility's office in a conspicuous location and at the main entrance gate visible and legible to the public.

3.3.e.2. Fire Plan. The application shall include a written fire plan with a description of the procedures to be implemented, detailed map depicting location of existing and/or proposed fire hydrants, water supply lines, fire extinguishers or fire ponds if no fire hydrants are to be included in the facility operation or activity and any other proposed fire control equipment. The fire plan must be designed to effectively control a worst case scenario tire fire which could occur at the facility.

3.3.f. Groundwater Protection Plan. All applicants for a waste tire monofill or storage cell, salvage yard, waste tire processing facility or activity shall submit a groundwater protection plan in accordance with 47CSR58 as part of the application.

3.4. Permit Application Fees.

3.4.a. Amount. The application fee is two thousand five hundred dollars ($2,500) for a waste tire processing facility and three thousand dollars ($3,000) for a waste tire monofill or salvage yard. The application fee for a waste tire processing activity or waste tire storage cell at an existing permitted solid waste facility is five hundred dollars ($500).

3.4.b. Incomplete Application Fee. The Department of Environmental Protection may require an additional fee of ten percent (10%) of the applicable application fee for any application refiled due to deficiency or incompleteness.

3.5. Minimum Design and Construction Requirements for a Waste Tire Processing Facility or Activity.

3.5.a. Perimeter Security. A waste tire processing facility or activity must be secured and enclosed within a minimum six (6) foot high woven wire or chain link perimeter fence with a lockable entrance gate and an emergency exit gate at another location.

3.5.b. Grade. No portion of the surface of the ground on which waste tires or tire derived material is stored may be less than two percent or greater than eight percent in grade.

3.5.c. Access Roads. All access roads including fire lanes/fire breaks and the buffer zone must be designed and constructed for all-weather conditions with proper storm drainage provisions.

3.5.d. Access Flow and Restrictions. The facility shall be designed in a manner that restricts unauthorized access. Signs shall be posted at the main entrance gate that direct persons entering the facility during regular business hours to report to the site office.

3.5.e. Storage Plan for Waste Tire and Tire Derived Material. The storage plan must address the receiving and handling of waste tires and tire derived material at, to and from the facility. The plan must address the following items at a minimum:

3.5.e.1. Storage Requirements. The facility or activity must be designed to receive, process and store a quantity/tonnage of waste tires and tire derived material in accordance with the provisions of subdivision 3.3.b of this rule. Include in the application, the calculations necessary for determining the quantity/tonnage.

3.5.e.2. Other Solid Waste Materials. All miscellaneous solid waste materials generated as a result of operations must be properly disposed at an approved solid waste facility within one week after being received and/or generated at the facility.

3.5.e.3. Size Restriction on Waste Tire Storage.

3.5.e.3.A. Waste tire storage piles may not exceed a maximum dimension of 50 feet wide by 50 feet long by 15 feet in height. A minimum of a 50 foot wide zone around each pile shall be maintained free of all debris and vegetation at all times. The facility shall not exceed a maximum of 18 piles of tires or tire derived material.

3.5.e.3.B. In the absence of an available water supply of at least 500 gallons per minute provided by fire hydrants within 1,000 feet of the facility, a minimum of 10,000 gallon water supply on site for the exclusive use of fire fighting personnel shall be established.

3.5.e.4. Location of Storage Piles. Waste tire and tire derived material storage piles at the proposed facility or activity must be shown on a map in sufficient detail including the length, width and height of each storage pile and the location and dimensions of all fire lanes/fire breaks and buffer zones.

3.5.e.5. Spacing of Storage Piles (Fire Lane/Fire Break). Waste tire and tire derived material storage piles must have a minimum fire lane/fire break spacing of fifty (50) feet between piles at the base and fifty (50) feet from buildings or other structures at the base. Fire lanes/fire breaks must be maintained free of any obstructions at all times so that emergency fire fighting equipment will always have access in the event of an incident.

3.5.e.6. Buffer Zone. A buffer zone of fifty (50) feet wide minimum shall be provided between the perimeter fence and any storage piles. The buffer zone must be kept clear of weeds, trees, vegetation, debris or other materials that may restrict access to all portions of the facility by emergency fire fighting equipment.

3.5.f. Vector Control Plan. A vector control plan shall be submitted that includes the following:

3.5.f.1. Methods of Vector Control. A description of how storage piles and any fire pond impoundment will be maintained to prevent and/or control mosquito breeding and harborage of disease carrying vectors. Methods of acceptable vector control may include, but are not limited to, the following:

3.5.f.1.A. Covering of Storage Pile. Covering by plastic sheets or other impermeable barriers, other than soil, to prevent the accumulation of precipitation in whole tires; and

3.5.f.1.B. Chemical Treatment. Chemical treatment to eliminate harborage or breeding may be utilized. Provided, That any chemical treatment program utilized as part of the vector control plan must be approved by the West Virginia Department of Agriculture.

3.6. Minimum Design and Construction Requirements for a Waste Tire Monofill or Storage Cell.

3.6.a. Unless otherwise approved by the Secretary in writing, the following specific requirements must be followed in designing and constructing a waste tire monofill or storage cell.

3.6.a.1. Liner System. A liner system shall consist of the following elements:

3.6.a.1.A. Subbase;

3.6.a.1.B. Compacted soil liner;

3.6.a.1.C. Leachate collection and protective cover zone; and

3.6.a.1.D. Daily Q.A./Q.C. reports in accordance with '33CSR1 subparagraph 4.5.e.2.I as applicable, shall be prepared and maintained in a bound log book at the site in regard to liner system construction.

3.6.a.2. The subbase portion of the liner system shall consist of a cleared and grubbed natural ground surface capable of supporting the entire liner system.

3.6.a.3. The compacted soil liner shall:

3.6.a.3.A. Be a minimum compacted thickness of one (1) foot;

3.6.a.3.B. Be compacted in six (6) inch lifts;

3.6.a.3.C. Be no more permeable than 1 X 10-6 cm/sec based on laboratory and field testing;

3.6.a.3.D. Be free of particles greater than two (2) inches in any dimension;

3.6.a.3.E. Be placed without damaging the subbase;

3.6.a.3.F. Be placed during a period of time when both the air temperature and the soil temperature are above freezing so that neither the compacted soil nor the subbase are frozen;

3.6.a.3.G. Have a slope of at least two percent (2%) to facilitate the drainage of any leachate across the liner surface; and

3.6.a.3.H. Be designed, operated, and maintained so that the physical and chemical characteristics of the liner and its ability to restrict the flow of constituents, or leachate is not adversely affected by the leachate.

3.6.a.3.I. The construction of the compacted soil liner shall be certified by a W. Va. registered professional engineer and a Q.A./Q.C. report shall be submitted to the Secretary prior to the placement of the leachate collection and protective cover zone.

3.6.a.4. The leachate collection and protective cover zone shall:

3.6.a.4.A. Create a flow zone between the compacted soil liner and waste tires and/or tire derived material more permeable than 1 X 10-3 cm/sec based on laboratory and field testing. The leachate collection zone including the piping system must be designed and placed on a minimum slope of two percent (2%) to facilitate efficient leachate drainage and prevent ponding on the compacted soil liner;

3.6.a.4.B. Be at least nine (9) inches thick;

3.6.a.4.C. Be constructed of soil or earthen materials to ensure that the hydraulic leachate head on the compacted soil liner does not exceed one (1) foot at the expected flow capacity from the drainage area except during storm events;

3.6.a.4.D. Be comprised of clean soil or earthen materials that contain no debris, plant material, rocks, or other solid material larger than one-quarter (1/4) inch in diameter and no material with sharp edges;

3.6.a.4.E. Be graded, uniformly compacted, and smoothed;

3.6.a.4.F. Be installed in a manner that prevents damage to the compacted soil liner; and

3.6.a.4.G. Contain a perforated piping system capable of intercepting liquid within the leachate collection zone and conveying the liquid to control collection points. The piping system shall also meet the following:

3.6.a.4.G.1. The slope sizing and spacing of the piping system shall assure that liquids drain efficiently from the leachate collection zone;

3.6.a.4.G.2. The distance between pipes in the piping system may not exceed one (100) hundred feet on center;

3.6.a.4.G.3. The pipes shall be installed perpendicular to the flow;

3.6.a.4.G.4. The minimum diameter of the perforated pipe shall be four (4) inches with a wall thickness of Schedule 40 or greater;

3.6.a.4.G.5. The pipe shall be capable of supporting anticipated loads without failure based on facility design;

3.6.a.4.G.6. Rounded stones or aggregates shall be placed around the pipes of the piping system. The stones or aggregates shall be sized to prevent clogging of the pipes and damage to the composite liner;

3.6.a.4.G.7. The piping system shall be installed in a fashion that facilitates cleanout, maintenance, and monitoring. Manholes or cleanout risers shall be located along the perimeter of the leachate collection piping system. The number and spacing of the manholes or cleanout risers shall be sufficient to insure proper maintenance of the piping system by water jet flushing or an equivalent method; and

3.6.a.4.G.8. The leachate collection system shall be cleaned and maintained as necessary.

3.6.a.4.H. The construction of the leachate collection and protective cover zone shall be certified by a W. Va. registered professional engineer and a Q.A./Q.C. report shall be submitted to the Secretary prior to the placement of waste tires or tire derived material in the monofill.

3.7. General Operational Requirements.

3.7.a. General Requirements for a Waste Tire Monofill Processing Facility or Activity. Unless otherwise approved by the Secretary in writing, no person may operate a waste tire monofill, processing facility or activity that does not conform to an approved plan of operation and the following:

3.7.a.1. Provisions must be made to secure the facility from theft, vandalism and fire, which may include posting a security guard during non-operational hours if so directed by the Secretary;

3.7.a.2. Confining windblown material within the operational area and controlling dust and noise;

3.7.a.3. Installing and maintaining surface water diversion ditches around the areas;

3.7.a.4. Access to the monofill, processing facility or activity must be restricted through the use of fencing (woven wire or chain link), not less than six feet in height;

3.7.a.5. Effective means must be taken to control flies, rodents, vectors, insects and vermin;

3.7.a.6. A supervisor must be on duty at the facility at all times while it is open;

3.7.a.7. The main entrance gate and emergency exit gate must be kept locked when an attendant is not on duty;

3.7.a.8. No person shall engage in the open burning of waste tires.

3.7.a.9. All topsoil within the facility construction limits shall be salvaged and stored/seeded within the property boundaries for use in the facility closure; and

3.7.a.10. Whole waste tires must be cut into at least four (4) near equal portions, or split into at least two (2) near equal portions, or shredded or chipped prior to placement in a monofill.

3.7.b. Monitoring Wells Required for Waste Tire Monofills. A minimum of one (1) downgradient monitoring well must be drilled to intersect the uppermost significant aquifer. If the disposal area is between five (5) to ten (10 acres, a minimum of two (2) downgradient monitoring wells must be drilled. If the disposal area is greater than ten (10) acres, a minimum of three (3) monitoring wells must be drilled.

3.7.b.1. A minimum of four (4) independent samples from each well (background and downgradient) must be collected and analyzed in accordance with 33CSR1, subparagraph 4.11.b.2.B, during the first semiannual sampling event.

3.7.b.2. At least one (1) sample from each well (background and downgradient) must be collected and analyzed during subsequent semiannual sampling events.

3.7.b.3. The Secretary may specify an appropriate alternative frequency for repeated sampling and analysis for Appendix I constituents, or the alternative list approved in accordance with 33CSR1 subparagraph 4.11.b.2.B, during the active life (including closure) and the post-closure care period.

3.8. Quarterly, and Semiannually Recordkeeping and Reporting Requirements.

3.8.a. Recordkeeping and reporting requirements for waste tire monofills/storage cells, processing facilities/activities and salvage yards shall include the following:

3.8.a.1. Quarterly Reports. Quarterly reports shall be submitted to the Secretary prior to the fifteenth day of the next quarterly reporting period on forms provided by, or acceptable to, the Secretary. More specifically, the report must include:

3.8.a.1.A. Date, quantity and origin of waste tires and tire derived material received at the facility;

3.8.a.1.B. Quantity/tonnage of waste tires and tire derived material processed at the facility;

3.8.a.1.C. Quantity/tonnage of waste tires and tire derived material stored at the facility; and

3.8.a.1.D. Name, address, telephone number and certificated motor carrier identification numbers of the waste tire transporters who transport waste tires and tire derived material transported to and from the facility, including the quantity/tonnage of waste tires and tire derived material so transported.

3.8.a.2. Problems, Conditions or Changes. Also, describe in the quarterly report any fires, vector or environmental problems, other conditions, or changes in the facility's operational procedures. In regard to fire, vector or environmental problems which have occurred, describe steps taken to prevent a recurrence.

3.8.a.3. Pesticide Application. Identify the name, type and quantities of pesticides used during the reporting period for vector control.

3.8.b. Semiannual Groundwater Monitoring Reports.

3.8.b.1. The groundwater sampling analysis monitoring reports and accompanying report of determining whether there was a statistically significant increase over background values for each parameter or constituent required in the particular groundwater monitoring program that applies to the facility, as determined for Phase I and Phase II monitoring programs, as required in 33CSR1 subsection 4.11 and must be submitted semiannually.

3.8.c. Term of Record Keeping. The permittee must retain records of the quarterly reports at the facility for not less than five (5) years.

3.9. Bonding and Financial Assurance Requirements for Permitted Waste Tire Processing Facilities/Activities, Monofills/ Storage Cells, Salvage Yards and Commercial Recycling Facilities.

3.9.a. Bonding. Bonding shall be in the amount of six thousand ($6,000) dollars per acre with a minimum amount of ten thousand ($10,000) dollars as specified in W. Va. Code '22-15-12 of the Code. An additional financial assurance of two ($2) dollars per whole waste tire, accumulated at any given time, as projected in the application and/or permit shall be required. Such two ($2) dollar per tire bond will not be released until all tires are removed from the waste tire processing facility, waste tire monofill, storage cell or salvage yard. Provided that, permitted landfills as defined in the Solid Waste Management Rule (33CSR1) are exempt from additional bonding and financial assurance as required in this subdivision.

3.10. Closure Requirements for a Waste Tire Monofill/Storage Cell or Processing Facility/Activity.

3.10.a. Closure of a Waste Tire Monofill/Storage Cell or Processing Facility/Activity. Should a facility or activity cease operations, or be required to do so by any agency, all of the requirements of '33CSR1, section 6 shall be complied with as applicable including, but not limited to, those specified below:

3.10.a.1. Removal of Miscellaneous Materials. All miscellaneous waste materials including but not limited to wheel rims, hubcaps, paper, trucks, trailers, containers, machinery and other items or debris remaining at the facility at closure shall be removed and taken to a Department of Environmental Protection approved solid waste facility for reuse, recycling and/or disposal as provided in subdivision 3.9.a of this rule, no bond may be released until all provisions of this rule have been met;

3.10.a.2. Security During Closure. All trucks, trailers, containers, structures and machinery shall be secured until removed;

3.10.a.3. Revegetation. All disturbed ground shall be graded, mulched and seeded; and

3.10.a.4. Sediment and Erosion Control Structures. Sediment and erosion control structures shall be installed and maintained as necessary to comply with '33CSR1, paragraph 4.5.b.3.

3.10.a.5. Facility Closure Plan. All applicants must submit a closure plan in the permit application.

3.10.b. Storm Water. Storm water and surface water drainage must be directed away from the facility or activity in a manner consistent with state water quality standards.

3.10.c. Closure Cap for a Waste Tire Monofill. A closure cap shall immediately be installed over the final placement of waste tires or tire derived material consisting of:

3.10.c.1. A substantial separation filter cloth to prevent soil or any other material from coming in contact with the tire material;

3.10.c.2. A minimum of one (1) foot of intermediate cover soil shall be placed and compacted directly over the filter cloth to create a fire break, minimize the inflow of precipitation and to protect the filter cloth from damage; and

3.10.c.3. A final one (1) foot minimum layer of soil sloped not less than three percent (3%) nor more than twenty-five percent (25%) grade shall be placed and compacted directly over the intermediate cover and revegetated (amendments, mulch, seed) as applicable in accordance with '33CSR1 subdivision 4.5.f.

3.10.d. Daily Q.A./Q.C. reports in accordance with '33CSR1 subparagraph 4.5.e.2.I as applicable, shall be prepared and maintained in a bound log book at the site in regard to the closure cap construction.

3.11. General Requirements for Retail Tire Dealers. Tire dealers shall be required to accept D.O.T. regulated tires if offered by their customers in exchange for tires purchased in a quantity equal to the number of tires purchased at the point of transfer or require the customer to sign the waiver form.

3.11.a. A tire dealer may temporarily contain five hundred (500) or less waste tires on the premises for a period not exceeding ninety (90) days, unless otherwise approved by the Secretary in writing. The temporary containment shall be in a safe and orderly manner which does not constitute solid waste disposal. However, the Secretary is authorized to limit the number of waste tires stored by a tire dealer if the Secretary determines that the waste tires are stored in an unsafe, disorderly, or unsightly manner.

3.11.b. Annual Record Keeping Requirements for Retail Tire Dealers.

3.11.b.1. Retail tire dealers must keep records which include the name, address, telephone number and certificated motor carrier identification number of the waste tire transporter and the number of whole waste tires transported from the retail tire dealers business location(s) by the waste tire transporter(s). These records must be kept on site at each business location and made available for inspection by the Secretary or by his or her authorized representative within five (5) days upon request. All records shall be retained for a period of not less than three (3) years. 3.11.c Public Notice and waiver Requirements for Retail Tire Dealers. Tire dealers are required to post written notices on at least 8 2 inch by 11 inch poster clearly visible to all customers and containing the universal recycling symbol and the following language: 3.11.c.1 AWaste Tire Management;@

3.11.c.2. AState law requires us to accept your (old) waste tires for recycling or proper disposal if you purchase new tires from us.@

3.11.c.3. AState law authorizes us to charge you no more than the actual cost of disposal of your waste tires even if you do not leave your tires with us.@

3.11.c.4. AIt is a crime to burn, bury, abandon or throw away waste tires without authorization and or permits from the Department of Environmental Protection.@

3.11.c.5. Public notices and waiver forms are available from the Department of Environmental Protection, Division of Waste Management.

3.11.c.6. Retail tire dealers may not charge a disposal fee to persons having winter tires changed or buying new winter tires and keeping usable summer tires for later installation or require such persons to provide a used or waste tire or sign a waiver.

3.12. General Requirements for Waste Tire Transporters and Other Persons Transporting Waste Tires.

3.12.a. No waste tire transporter or other person shall knowingly transport or knowingly allow waste tires under his or her control to be transported to a site or facility that does not have a valid permit or license to accept waste tires.

3.12.b. Recordkeeping Requirements for Waste Tire Transporters. Waste tire transporters must keep records which include the name, address and telephone number of the retail tire dealer(s), and the number of whole waste tires transported from the retail tire dealer(s) business location(s) by the waste tire transporter. Also, records showing the name, address and telephone number of the permitted site or facility to where the whole waste tires were transported by the waste tire transporter. These records must be made available for inspection by the Secretary or his or her authorized representative within five (5) days upon request. All records shall be retained by the waste tire transporter for a period of not less than three (3) years.

33CSR5

Series 06 Solid Waste Assessment Fee Exemptions

W. Va. Code R. § 33-6-1 General

1.1. Scope.

This rule establishes procedures to be followed in obtaining solid waste assessment fee exemptions provided under W. Va. Code '22-15-11(e).

1.2. Authority. -- W. Va. Code '22-15-5.

1.3. Filing Date. -- February 24, 1999.

1.4. Effective Date. -- April 1, 1999.

W. Va. Code R. § 33-6-2 Solid Waste Assessment Fee Exemptions

2.1. Exemptions for Certain Facility Owners, Operators, and Lessees. -- A person who owns, operates, or leases an approved solid waste disposal facility is exempt from the payment of solid waste assessment fees, upon the receipt of a Certificate of Exemption from the director, if that facility is used exclusively to dispose of waste originally produced by such person in his or her regular business or personal activities or by persons utilizing the facility on a cost-sharing or nonprofit basis.

2.1.a. In order to obtain a Certificate of Exemption under subsection 2.1 of this rule, a person must submit the following information to the Division of Environmental Protection on the form provided in Appendix A of this rule:

2.1.a.1. The name, address, and telephone number of the person applying for the exemption;

2.1.a.2. A notation of the status of the person applying for the exemption as either the owner, operator, or lessee of the approved solid waste disposal facility;

2.1.a.3. The location and permit number of the facility;

2.1.a.4. A description of the origins, types, and estimated amounts of all wastes disposed of at the facility;

2.1.a.5. A brief description of each business or activity that produces the wastes disposed of at the facility;

2.1.a.6. The name, address, and telephone number of each person utilizing the facility on a cost-sharing or nonprofit basis; and

2.1.a.7. A summary of the legal documents that describe the relationship between the owner, operator, or lessee of the approved facility and the other person or persons disposing of solid waste at the facility. Copies of the actual documents may be requested by the director.

2.2. Exemption for Reused or Recycled Solid Waste. -- A person who segregates and delivers his or her solid waste to an approved resource recovery or recycling facility for the purpose of reuse or recycling of that waste is exempt from the payment of solid waste assessment fees upon the receipt of a Certificate of Exemption from the director.

2.2.a. In order to obtain a Certificate of Exemption under subsection 2.2 of this rule, a person must submit the following information to the Division of Environmental Protection on the form provided in Appendix A of this rule:

2.2.a.1. The name, address, and telephone number of the person applying for the exemption;

2.2.a.2. The location and permit number of the facility to which the waste is delivered for reuse or recycling;

2.2.a.3. A description of the origin, type, and estimated amount of the waste delivered for reuse or recycling;

2.2.a.4. A brief description of the process or method of reusing or recycling the delivered waste; and

2.2.a.5. A notarized statement from the owner or operator of the approved facility that certifies that a reuse or recycling process is in operation at his or her facility and that the delivered waste will in fact be reused or recycled.

W. Va. Code R. § 33-6-3 Certificates of Exemption

3.1. Exemption Determination. -- After reviewing the information submitted by a person seeking an exemption under subsection 2.1 or 2.2 of this rule, Division of Environmental Protection personnel will recommend to the director that:

3.1.a. A Certificate of Exemption be granted;

3.1.b. A Certificate of Exemption be denied; or

3.1.c. A letter requesting additional information be sent to the person seeking the exemption.

3.2. Notification of Denial. -- If the director accepts a recommendation to deny the granting of a Certificate of Exemption, he will notify the person who sought the exemption of the denial and the reasons therefor.

3.2.a. A decision of the director to deny the granting of a Certificate of Exemption is appealable under the provisions of W. Va. Code '22-15-16.

3.3. Changes in Information. -- Whenever a change occurs which modifies the information submitted under subsection 2.1 or 2.2 of this rule, the person granted a Certificate of Exemption must, within thirty (30) days, submit written notice to the division detailing the change.

3.3.a. Failure by a person granted a Certificate of Exemption to submit the change of information notice required under subsection 3.3 of this rule constitutes cause for revoking the certificate.

APPENDIX A

WEST VIRGINIA DIVISION OF ENVIRONMENTAL PROTECTION

SOLID WASTE ASSESSMENT FEE EXEMPTION APPLICATION

PLEASE COMPLETE AND RETURN TO:

W. Va. Division of Environmental Protection Assessment Fee Exemption 1356 Hansford Street Charleston, WV 25301 1. NAME, ADDRESS, AND TELEPHONE NUMBER OF APPLICANT:

Please indicate whether you are the:

( )Facility owner, ( )Facility operator, ( )Facility lessee, ( )Person delivering his or her waste to a resource recovery; or ( )Recycling facility.

2. LOCATION OF THE FACILITY AND ITS PERMIT NUMBER:

3. BRIEF DESCRIPTION OF THE TYPE AND ESTIMATED ANNUAL AMOUNT OF WASTE DISPOSED AT THIS FACILITY:

4. BRIEF DESCRIPTION OF THE BUSINESSES OR ACTIVITIES WHICH GENERATE THE WASTE DISPOSED AT THIS FACILITY:

NOTE: If you are seeking an exemption for a facility that disposes of waste on a cost-sharing or nonprofit basis, please complete item 5. If you are seeking an exemption for reuse or recycling, please complete item 6.

5. BRIEF SUMMARY OF THE LEGAL DOCUMENTS WHICH DESCRIBE THE RELATIONSHIP BETWEEN YOUR FACILITY AND THE INDIVIDUALS DISPOSING WASTE THERE ON A COST-SHARING OR NONPROFIT BASIS:

Please attach an additional sheet listing the name, address, and telephone number of each person using the facility on a cost-sharing or nonprofit basis.

6. BRIEF DESCRIPTION OF THE PROCESS OR METHOD EMPLOYED TO REUSE OR RECYCLE YOUR DELIVERED WASTE:

Please attach a notarized statement from the facility owner or operator that certifies that a reuse or recycling process is in operation at his or her facility and that the delivered waste will in fact be reused or recycled.

I hereby declare that the information in this application is accurate and true to the best of my knowledge and belief. I understand that the filing of false, inaccurate, or misleading information is grounds for the revocation of my exemption. ______________________ _____________________ Signature of Applicant Date 33CSR6

Series 07 Proof Of Proper Solid Waste Waste Disposal

W. Va. Code R. § 33-7-1 General

1.1. Scope and Purpose. -- This rule provides guidance to persons occupying a residence or operating a business establishment in this state regarding the approved method of providing proof of proper solid waste disposal to the Division of Environmental Protection.

1.2. Authority. -- W. Va. Code '22C-4-10.

1.3. Filing Date. -- February 24, 1999.

1.4. Effective Date. -- April 1, 1999.

W. Va. Code R. § 33-7-2 Proof of Proper Solid Waste Disposal

2.1. Applicability. -- Each person occupying a residence or operating a business establishment in this state must be able to provide proof to the Division of Environmental Protection that his solid waste was disposed of at an approved solid waste facility.

2.2. Forms of Proof. -- Proof of proper solid waste disposal includes:

2.2.a. Records demonstrating that a person has subscribed to and used a solid waste collection service and has paid the fees established therefor; or

2.2.b. Records, including bills of receipt, demonstrating that a person has delivered his or her waste to an approved solid waste facility for disposal.

Note: The term "solid waste collection service" means a collection service offered either by a common carrier certificated by the West Virginia Public Service Commission (or similar body of a contiguous state) or by a municipality or other governmental body.

2.3. Recordkeeping Requirements. -- The owner or operator of each approved solid waste facility in this state must maintain records of each delivery of solid waste made by an individual who is not in the business of hauling or disposing of solid waste. Such records must include:

2.3.a. The name and address of the individual who delivered the waste for disposal;

2.3.b. A description of the origin, type, and estimated amounts of the waste delivered for disposal; and

2.3.c. A copy of the bill of receipt for the waste delivered for disposal.

2.4. Maintenance and Retention of Records. All records required under this rule must be maintained for a minimum of three (3) years and be made available for inspection by an authorized representative of the director upon request.

33CSR7

Series 08 Standards For Beneficial Use Of Materials Similar To Sewage Sludge

W. Va. Code R. § 33-8-2 Definitions

The following definitions apply to this rule unless otherwise specified herein:

2.1. “Agricultural land” means land on which a food crop, feed crop, or fiber crop is grown. This includes, but is not limited to, range land and land used as pasture.

2.2. “Agronomic rate” means the application rate, by dry weight, designed: (1) To provide the amount of nutrients needed by the food crop, feed crop, fiber crop, cover crop or vegetation on the land; and (2) To minimize the amount of nutrients in the sludge or other material that passes below the root zone of the crop or vegetation grown on the land to the ground water.

2.3. “Applicant” means the person applying for a beneficial reuse permit or renewal permit and any person related to such person by virtue of common ownership, common management or family relationships as the Secretary may specify, including the following: spouses, parents, children and siblings.

2.4. “Beneficial Use” means the use of a non-hazardous material for a specific beneficial purpose where it is done in a manner that protects groundwater and surface water quality, soil quality, air quality, human health, and the environment. This may include use as a fertilizer substitute or other purpose approved by the Secretary.

2.5. “Department” means the Department of Environmental Protection.

2.6. “Domestic septage” means either liquid or solid material (septage) removed from a septic tank, cesspool, portable toilet, Type III marine sanitation device, or similar treatment works that receives only domestic sewage. Domestic septage does not include liquid or solid material removed from a septic tank, cesspool, or similar treatment works that receives either commercial wastewater or industrial wastewater and does not include grease removed from a grease trap at a restaurant.

2.7. “Land application site” means the location where sludge or other material is sprayed or spread onto the land surface, or incorporated into the soil so that the sludge or other material can fertilize the crops or vegetation grown in the soil.

2.8. “Nutrient” or “nutrient content” means an element essential for plant growth, which for the purposes of this rule are nitrogen, phosphorous, potassium, calcium, and magnesium.

2.9. “Odor” means a sensation resulting from the stimulation of the human sense of smell.

2.10. “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.

2.11. “Plow Layer” means the layer of soil which is turned or mixed by plowing, tilling, disking, harrowing, or other similar activity.

2.12. “Producer” means any person producing sludge or other material approved for use in accordance with this rule.

2.13. “Secretary” means the Secretary of the Department of Environmental Protection or person to whom the Secretary has delegated authority or duties pursuant to W. Va. Code §22-1-6.

2.14. “Sewage sludge” means solid, semi-solid 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.

2.15. “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 waste having similar origin.

2.16. “Source water protection area” means the area delineated by the West Virginia Bureau for Public Health for a public water supply system or systems, whether the source is ground water or surface water or both, through which contaminants are reasonably likely to move toward and reach a public water supply system.

2.17. “Total fats” mean fats, oils, and greases of animal or vegetable origin that may be determined quantitatively based on their common solubility in an organic extracting solvent and recovery from that solvent, but does not include petroleum compounds.

2.18. “Wellhead protection area” means the surface and subsurface area surrounding a water well or well field supplying a public water system through which contaminants are reasonably likely to move toward and reach a well or well field as delineated by the Bureau for Public Health.

W. Va. Code R. § 33-8-3 Standards for Beneficial Use of Sludge or Other Approved Materials

Beneficial Use Determination. -- Materials determined by the Secretary to have beneficial characteristics similar to sewage sludge may be beneficially used in a manner approved by the Secretary in accordance with this rule.

3.1.a. Any beneficial use determination made by the Secretary shall be based, at a minimum, on analysis of the material and other information demonstrating its beneficial use characteristics, an evaluation of the sources contributing to the waste stream from which the material originates, an evaluation of the pollutant levels contained in the material, and an evaluation of the potential impact to human health and the environment from the proposed method of use.

3.1.a.1. Beneficial characteristics that may be considered under this rule must include nutrient content.

3.1.a.2. The concentration of any heavy metal in the sludge or other material shall not exceed the values listed in Table 1 of this rule.

3.1.a.3. Background concentrations at land application sites, residential soil concentrations in 60CSR3, and any other applicable information may be used by the Secretary as a guide to establish limits for pollutant loading rates when maximum soil concentrations are not established in Table 2 of this rule.

3.1.b. The beneficial characteristics of the sludge or other material must be demonstrated prior to mixing the sludge or other material with any additives, such as fertilizer, sewage sludge, organic matter, lime, or other materials that would enhance the beneficial characteristics of the sludge or other material.

3.1.c. The Secretary may not issue a permit unless he or she has evaluated the proposed land application site to determine its suitability for use and compliance with this rule.

3.1.d. The Secretary may not issue a permit if he or she has determined the sludge or other material is not suitable for use in accordance with this rule.

3.1.d.1. The following materials may not be land applied:

3.1.d.1.A. Any sludge or other material that is a listed or characteristic hazardous waste referenced in 33CSR20.

3.1.d.1.B. Sludge generated from any manufacturing or processing of metals, plastics, herbicides, pesticides, algaecides, or fungicides;

3.1.d.1.C. Petroleum contaminated soils;

3.1.d.1.D. Sludge generated from a drinking water treatment plant;

3.1.d.1.E. Wastes from saw milling or logging operations; or

3.1.d.1.F. Any sludge or other material having a nutrient concentration that will not provide at least fifty percent of the established crop nutrient need for either nitrogen, phosphorous, or potassium.

3.2. Land Application Location Standards and Restrictions.

3.2.a. Sludge or other approved materials shall not be applied to land that meets any of the following conditions:

3.2.a.1. Land that is frozen, snow-covered, or known to be flooded on a regular basis unless the applicant can demonstrate to the Secretary that the land application will not cause runoff into streams or wetlands.

3.2.a.2. Land within fifty (50) feet of surface water to include streams, springs, ponds, wetlands, or other collection points for surface water.

3.2.a.3. Land within two hundred (200) feet of drinking water supply wells or other personal water supply.

3.2.a.4. Land within two hundred (200) feet of an occupied dwelling.

3.2.a.5. Land within fifty (50) feet of a federal or state highway.

3.2.a.6. Land within one hundred (100) feet of an adjacent property owner's property line, unless written permission is given by the adjacent property owner.

3.2.a.7. Land from which drainage leads into a sinkhole.

3.2.a.8. Land that has been tested and determined to have a pH of less than 6.2, unless the pH is adjusted to 6.2 or greater.

3.2.a.9. Land that has a slope greater than 15%.

3.2.a.10. Land that has a seasonal high groundwater table less than 3 feet from the surface.

3.2.a.11. Land that has less than 6 inches of soil over bedrock or an impervious pan.

3.2.a.12. Land containing soil with surface permeability of less than 0.6 inches/hour or greater than 6 inches/hour.

3.2.a.13. Land that is within 100 feet of a vertical rock outcrop.

3.2.a.13. Land where the application of sludge or other material is likely to adversely affect a threatened or endangered species listed under section 4 of the Endangered Species Act or its designated critical habitat.

3.2.a.14. Other land determined by the Secretary to be unsuitable for land application.

3.2.b. No person shall apply sludge or other approved material to land in a manner that will result in exceeding the maximum soil concentration for arsenic, cadmium, chromium, copper, lead, mercury, molybdenum, nickel, selenium, or zinc, as listed in Table 2 of this rule and the soil testing requirements of this rule. The Secretary is authorized to issue variances to this subdivision to allow land application to soils where the background levels of metals in the soil exceed the maximum soil concentrations of metals listed in Table 2: Provided, That the analyses of the material, soil analyses, and pollutant loss rates from erosion, leaching, and volatilization demonstrate that the land application of the material, at a loading rate prescribed by the Secretary , will not cause additional net accumulation of any metal in the soil already exceeding the maximum soil concentration listed in Table 2. Any such variance issued by the Secretary shall contain a requirement to annually monitor the soil concentration of each metal exceeding the Table 2 limit for as long as the site is utilized for the land application.

3.2.b.1. The Secretary shall assign an individual and lifetime loading rate for each land application site for which a permit is required pursuant to 4.1.c of this rule by considering background soil concentrations and maximum allowable pollutant concentrations as per Table 1 and per Table 2 of this rule. New soil analyses for those metals listed in Table 2 shall be required at each land application site whenever fifty percent of the assigned lifetime loading rate for the site has been achieved.

3.2.c. No person shall land apply sludge or other material which exceeds the agronomic rate for that land 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.

3.2.d. No person shall apply sludge or other approved material to land in a manner that will result in exceeding the groundwater standards established in 46CSR12. Results from a toxicity characteristic leaching procedure analysis of a material may be considered when making an evaluation of the potential to impact groundwater quality.

3.2.e. Sludge or other material may not be stored at a land application site for a period of more than one week: Provided, That the Secretary may authorize storage for up to three months where acceptable provisions have been made to prevent leachate runoff into surface or groundwater.

3.2.f. No person shall apply sludge or other approved material to land in a manner that diminishes soil productivity, seed germination, or plant health.

3.2.g. No person shall land apply sludge except during daylight hours.

3.2.h. Persons applying sludge or other materials containing 10 percent or more total fats shall comply with the following requirements:

3.2.h.1. If the sludge or other material is incorporated into the soil within 20 days of application to the soil, the annual loading rate of total fats to the soil shall not exceed one percent of soil mass of the plow layer.

3.2.h.2. If the sludge or other material is not incorporated into the soil within 20 days of application to the soil, the annual loading rate of total fats to the soil shall not exceed 2 tons/acre/year.

3.2.h.3. Sludge or other material in liquid form with a total fat content exceeding one percent shall not be applied to the surface of existing stands of grass or other forage crops.

3.3. Storage Requirements. 3.3.a Areas used for processing, curing and storage of raw materials, intermediate and final products, loading and unloading areas, impoundments, pipelines, ditches, pumps and drums, sumps and tanks, must be designed, constructed and operated to prevent release of contaminants to the groundwater and surface water. Storage of finished products which have been processed or cured shall be limited to one year.

3.3.b. The storage area must be designed and operated to control vectors and odors.

3.3.c. The storage area must not be operated or constructed within the one hundred year flood plain unless provisions have been made to prevent the encroachment of flood waters upon the storage area.

3.3.d. All land storage areas must protect groundwater in accordance with the Groundwater Protection Act, W. Va. Code '22-12-1 et seq., and the rules promulgated thereunder, including 46CSR12, 47CSR58, 47CSR59, and 47CSR60

3.4. Odor Control. When an odor is determined to be objectionable and repetitious by the Secretary, the Secretary may require the activity to cease and/or require the facility to conduct related studies within a specified time period. These studies may include, but are not limited to, sampling and analysis to identify the specific chemical compound(s) causing the objectionable odor, analysis of samples by odor panels, air dispersion modeling studies, and evaluation of applicable odor control devices and odor control programs.

3.5. Sample Analysis.

3.5.a. U.S. Environmental Protection Agency analytical procedure SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, shall be used to analyze all samples required by this rule: Provided, That the Secretary may allow other approved standard methods of analyses appropriate to certain materials.

3.5.b. All samples required by this rule shall be analyzed by a laboratory certified in accordance with W. Va. Code '22-1-15 and the rules promulgated thereunder.

W. Va. Code R. § 33-8-4 Permits Required

4.1. Applicability.

4.1.a. No person may land apply sludge or other material subject to this rule without first obtaining a land application permit.

4.1.a.1. For those facilities holding a WV/NPDES Permit required under W. Va. Code 22-11-1 et seq., the land application permit requirements may be incorporated into a modification of that facility's WV/NPDES permit.

4.1.b. Permits issued under paragraph 4.1.a.1. of this rule are subject to the permit issuance procedures, procedures for permit modifications, suspension and revocation, procedures for transfer of permits, and the procedures for permit appeals of 47CSR10.

4.1.c. Other permits issued to a person seeking approval for beneficial use of sludge or other materials in accordance with this rule shall be subject to the permit issuance, modification, reissuance, suspension and revocation procedures of section 6 through section 7 of this rule.

W. Va. Code R. § 33-8-5 Permit Application Requirements

5.1. Permit Application Forms. -- Persons required to obtain a permit pursuant to this rule must provide the following information, in the form and manner prescribed by the Secretary. The form may require information in addition to that required by this subsection.

5.2. Permit Application Requirements. -- All applicants must provide the following information:

5.2.a. The name, address, and location of the facility generating the sludge or other material;

5.2.b. A description of the activities conducted or to be conducted by the applicant;

5.2.c. The operator's and owner's name, address, telephone number, ownership status, and status as a federal, state, private, public or other entity;

5.2.d. Other environmental permits issued by any local, state or federal agency previously held or currently in effect;

5.2.e. A description of the specific source(s) of sludge or other material;

5.2.f. A description of the process used to generate the sludge or other material including, but not limited to, raw materials used, contributing waste streams, and other by-products produced;

5.2.g. The amount of sludge or other material generated, processed, or proposed for beneficial use;

5.2.h. A description of the beneficial characteristics of the sludge or other material;

5.2.i. A description of the current method of disposal or use for the sludge or other material;

5.2.j. A physical description of the sludge or other material, including moisture content expressed as the percent solids, odor, particle size, and appearance;

5.2.k. The content of heavy metals, pathogens, and other pollutants present in the sludge or other material;

5.2.l. A hazardous waste determination, including a toxicity characteristic leaching procedure analysis: Provided, That a toxicity characteristic leaching procedure analysis need not be performed if a total analysis of the material demonstrates that individual analytes are not present in the waste or that they are present at such low concentrations that the appropriate regulatory levels could not be exceeded;

5.2.m. A description of the method used to collect or control leachate and surface water runoff from any storage areas;

5.2.n. A description of existing and potential land-use of the area within one mile of the facility; and

5.2.o. A certified copy of any municipal or county zoning restrictions, if applicable.

5.3. Land Application Permit Application Requirement. Persons proposing to perform land application of sludge or other materials must submit the following information to the Secretary in addition to that required under subsection 5.2 of this rule:

5.3.a. Soil analysis for all land application sites including but not limited to pH, potassium, phosphorus, nitrogen, all metals listed in Table 1 of this rule and any additional chemical analysis requested by the Secretary;

5.3.b. Information relative to the nutrient content of the sludge or other material to be land applied;

5.3.c. A description of all soil types present on the site, including a soil profile description and a soil map with application sites clearly defined;

5.3.d. An agreement between the preparer of sludge or other material, the applier, and the owner of the land application site indicating each party's concurrence with the application, and certifying that each will comply with applicable requirements of this rule;

5.3.e. A description of existing and future uses of the land application site;

5.3.f. Information relative to past application of sludge, sewage sludge, material derived from sewage sludge, fertilizers, pesticides, and herbicides to each land application site;

5.3.g. In addition to the chemical analyses required in subdivision 4.2.a of this rule, any additional chemical analyses of the sludge or other material requested by the Secretary;

5.3.h. A description of the methods to be used for land application;

5.3.i. A description of the methods for transportation of sludge or other material to the site;

5.3.j. A copy of the NPDES or other permit for the facility from which the sludge or other material originated;

5.3.k. A description of the methods by which pathogen control and vector attraction reduction are being achieved, if applicable;

5.3.l. A description of the methods to be utilized to inhibit the mobility of metals added to the soil by the land application of sludge or other material, should such land application cause an increase in the concentration of metals in the soil at a land application site;

5.3.m. Information on the type of crop(s) to be grown on the site and the proposed use of the harvested crop(s);

5.3.n. A determination on whether the site is located within a delineated wellhead protection area or source water protection area; and

5.3.o. Any additional information required by the Secretary.

W. Va. Code R. § 33-8-6 Draft Permits and Public Comment

6.1. Administration.

6.1.a. Once an application is complete, the Secretary shall decide whether to prepare a draft permit or to deny the application.

6.1.b. If the Secretary decides to issue a draft permit, it must contain the information required under section 8 of this rule.

6.1.c. All draft permits shall be provided to permittees and shall be publicly noticed and available for public comment in accordance with subsection 6.2.

6.2. Public notice.

6.2.a. Public notice of the preparation of a draft permit must provide at least thirty (30) days for public comment. The public comment period may be extended by the Secretary, but in no case may the extension exceed an additional thirty (30) days.

6.2.b. Public notice of a public hearing shall be given at least thirty (30) days before the hearing. Public notice of the hearing may be given at the same time as public notice of the draft permit and the two (2) notices may be combined.

6.2.c. Methods. Public notice shall be given by the following methods:

6.2.c.1. By mailing a copy of a notice to the applicant;

6.2.c.2. By publishing the public notice as a Class I legal advertisement in a qualified newspaper with the largest circulation for the county where the generator of sludge or other material and the proposed land application site is located pursuant to W. Va. Code '59-3-1 et seq. The cost of the publication will be born by the applicant who must send a certificate of publication to the Department within twenty (20) days after publication; and

6.2.c.3. Any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases, mailing lists or any other forum or medium to elicit public participation.

6.2.d. Draft permit public notice contents. -- All public notices issued under this part shall contain the following minimum information:

6.2.d.1. Name and address of the division processing the permit action for which notice is being given;

6.2.d.2. Name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit;

6.2.d.3. A brief description of the activity described in the permit application or in the draft permit, when there is no application;

6.2.d.4. Name, address and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit, fact sheet, and the application; and

6.2.d.5. A brief description of the comment procedures required by subsections 6.3 and 6.4 and the time and place of any hearing that will be held, including a statement of procedures to request a hearing (unless a hearing has already been scheduled) and other procedures by which the public may participate in the final permit decision.

6.2.e. In addition to the requirements of subdivision 6.2.d. of this rule, public notice of a hearing shall contain the following information:

6.2.e.1. Reference to the date of the public notice relating to the permit;

6.2.e.2. Date, time, and place of the hearing; and

6.2.e.3. A brief description of the nature and purpose of the hearing, including the applicable rules and procedures.

6.3. Public comments and requests for public hearings. -- During the public comment period provided under subsection 6.2, any interested person may submit written comments on the draft permit and may request a public hearing. If a public hearing has already been scheduled additional requests do no require additional hearings. A request for a public hearing shall be in writing and shall state the nature of the issues proposed to be raised in the hearing. All comments shall be considered in making the final permitting decision and shall be responded to as provided subsection 6.6.

6.4. Public hearings.

6.4.a. The Secretary shall hold a public hearing whenever he or she finds, on the basis of requests, a significant degree of public interest on issues relevant to a draft permit. The Secretary also may hold a public hearing at his or her discretion, when, for instance, a hearing might clarify one (1) or more issues involved in the permit decision.

6.4.b. Any person may submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements.

6.4.c. The submission of statements in writing under subdivision 6.3 shall automatically be extended to ten (10) days after the close of any public hearings conducted under this section.

6.4.d. A tape recording or written transcript of the hearing shall be made available to the public, upon request.

6.5. Reopening of the public comment period.

6.5.a. If any information or arguments submitted during the public comment period raise substantial new questions concerning a draft permit, or if as a result of comments submitted by someone other than the permittee, the Secretary decides to revise any condition of the draft permit that had been sent to initial public notice, the Secretary may:

6.5.a.1. Prepare a new draft permit, appropriately modified, under section 7 of this rule; or

6.5.a.2. Reopen or extend the comment period to give interested persons an opportunity to comment on the revision to the draft permit.

6.5.b. Comments filed during the reopened comment period shall be limited to the substantial new questions that caused its reopening. The public notice shall define the scope of the reopening.

6.6. Response to comments.

6.6.a. The Secretary shall issue a response to comments received on the draft permit prior to issuing the final permit. This response shall:

6.6.a.1. Specify which provisions, if any, of the draft permit have been changed in the final permit decision, and the reasons for the change; and

6.6.a.2. Briefly describe and respond to comments on the draft permit raised during the public comment period, or during any hearing.

6.6.b. The response to comments shall be mailed to any person who commented or any person who requests a response.

6.7. Issuance and effective date of permit.

6.7.a. After the close of the public comment period on a draft permit, the Secretary shall issue a final permit decision. The Secretary shall notify the applicant and each person who has submitted written comments or requested notice of the final permit decision. This notice shall advise that anyone aggrieved by the decision may make an appeal to the Environmental Quality Board by filing a Notice of Appeal with the Board within thirty days after the final permit decision is made. For the purposes of this section, a final permit decision means a final decision to issue, deny, modify, revoke and reissue, or terminate a permit.

6.7.b. A final permit decision shall become effective not less than thirty (30) days after the date of notice of the decision under subdivision 6.7.a of this section.

W. Va. Code R. § 33-8-7 Modification, Revocation and Reissuance, Suspension and Revocation of Permits. 7.1 Actions by the Secretary

7.1.a. Permits may be modified, revoked and reissued, suspended or revoked either at the request of any interested person or upon the Secretary's initiative. Permits may only be modified, revoked and reissued, suspended or revoked for the reasons specified in this section. All requests for action on a permit shall be in writing submitted to the Secretary citing facts or reasons supporting the request. The Secretary may require additional information, and in the case of a major modification, may require submission of a new permit application. A new permit application is required for a reissuance under subsection 7.3.

7.1.b. If the Secretary decides the request is not justified, he or she shall send the requestor a brief written response giving the reasons for the decision. Denials of the requests are not subject to public notice, comment, or hearings.

7.1.c. If the Secretary decides to modify or revoke and reissue a permit and the modification is not made under subsection 7.5, he or she shall prepare a draft permit and follow the public notice procedures in section 6. The Secretary may request additional information and, in the case of a modified permit, may require the submission of an updated permit application. The Secretary shall require the submission of a new application if the permit is revoked or reissued.

7.1.d. In a permit modification under this section, only those conditions to be modified are reopened when a new draft permit is prepared. All other conditions of the existing permit shall remain in effect. When a permit is revoked and reissued under this section, the entire permit is reopened just as if the permit had expired and was being reissued. During any revocation and reissuance proceeding the permittee shall comply with all conditions of the existing permit until a new permit is issued.

7.2. Causes for modification or permittee requested reissuance of permits.

7.2.a. Modifications. The following are causes for modification, and requires the preparation of a draft permit and the public notice procedures of section 6. The Secretary may determine the following causes may also be reason for a permit reissuance under section 7.3.

7.2.a.1. Alterations. Material and substantial alterations to the permitted facility or activity which change the content of the wastestream from which a sludge or other material is generated.

7.2.a.2. Information. A permit may be modified during its term if new information becomes known and would be cause for different permit conditions.

7.2.a.3. New rules. The standards or rules on which the permit was based have been changed by promulgation of amended standards or rules or by judicial decision after the permit was issued.

7.2.a.4. For judicial decision, when a court of competent jurisdiction has remanded and stayed State rules or Federal regulations, if the remand and stay concern that portion of the rules or regulations on which the permit condition was based.

7.2.a.5. When the permittee begins or expects to begin to use or manufacture as an intermediate or final product or by-product any toxic pollutant which was not reported in the permit application.

7.2.a.6. A determination that the permitted activity endangers human health or the environment which can be reduced to acceptable levels by a permit modification.

7.2.a.7. Any of the reasons cited in subsection 7.4.

7.2.a.8. To correct technical mistakes, such as errors in calculation, or mistaken interpretations of law made in determining permit conditions.

7.3. Reissuance. When a permit is reissued under this subsection, the entire permit is reopened. Reissuance requires a draft permit and the public notice procedures of section 6. Processing of a reissuance application does not exempt the permittee from compliance with any permit term or condition while the application is pending.

7.4. Suspension and revocation of permits.

7.4.a. The following are causes for revocation or suspension of a permit or for denying a permit renewal application:

7.4.a.1. Noncompliance by the permittee with any condition of the permit; or

7.4.a.2. The permittee's failure in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee's misrepresentation of any relevant facts at any time; or

7.4.a.3. A determination that the permitted activity endangers human health or the environment which can only be reduced to acceptable levels by permit modification or revocation; or

7.4.a.4. A change in any condition that requires either a temporary or a permanent reduction or elimination of any sludge or other material being beneficially used under this rule.

7.4.b. The Secretary may suspend or revoke a permit pursuant to W. Va. Code '22-15-15.

7.5. Minor modifications of permits. Upon the consent of the permittee, the Secretary may modify a permit to make the corrections or allowances for changes in the permitted activity listed in this section without preparing a draft permit or following the procedures of section 6. Minor modifications may only:

7.5.a. Correct typographical errors;

7.5.b. Require more frequent monitoring or reporting by the permittee;

7.5.c. Add acreage to a land application site that is already identified in the permit;

7.5.d. Amend the loading rate contained in the permit due to a change in nutrient requirements at a land application site.

W. Va. Code R. § 33-8-8 Permit Contents and Requirements

8.1. General Requirements. -- All permits issued pursuant to this rule shall contain applicable requirements of this rule, including but not limited to the following:

8.1.a. Limitations on the concentrations of pollutants and pathogens in the sludge or other material;

8.1.b. Requirements to monitor the sludge or other material, and report the results of those analyses for pH, percent solids, organic nitrogen, potassium, phosphorus, calcium, magnesium, total nitrogen, ammonia nitrogen, pathogen test results, vector attraction reduction verification, all heavy metals listed in Table 1 of this rule, and any other analyses required by the Secretary: Provided, That the frequency of monitoring shall be as described in Appendix A of this rule;

8.1.c. Requirement to pay fees as identified in section 9 of this rule;

8.1.d. Requirements for the proper control of stormwater runoff for the protection of groundwater, surface waters, and potable waters in the area;

8.1.e. Requirements to retain records for the facility for at least five years;

8.1.f. Requirements to monitor and report monthly to the Secretary the quantity of sludge or other material generated, stored, and used;

8.1.g. Requirements to provide copies of monthly reports to the county or regional solid waste authority in which the facility or land application site(s) is located;

8.1.h. Requirements for the implementation of practices to prevent the contamination of ground and surface waters, including liners if necessary;

8.1.i. Requirements for the implementation of practices to protect air quality in and around the facility and any land application sites; and

8.1.j. Any other requirements, including additional monitoring, determined to be necessary by the Secretary to ensure compliance with any state and federal laws, regulations, rules, or requirements, or to protect human health or the environment.

8.2. Land Application Permit Requirements. -- In addition to the requirements of subsection 8.1 of this rule, any land application permit issued pursuant to this rule shall contain the following:

8.2.a. A listing of the site(s) for which land application is approved;

8.2.b. Limitations on the maximum amount of sludge or other material allowed to be land applied;

8.2.c. Requirements implementing the siting restrictions and location standards of subsection 3.3 of this rule;

8.2.d. Any necessary restrictions on the types of crops that may be grown on land used for application of sludge or other material and the time between such application and the harvesting of crops;

8.2.e. Any necessary restrictions on animal grazing and public access on the land application site;

8.2.f. Vector attraction reduction requirements, if applicable; and

8.2.g. Pathogen reduction requirements, if applicable.

W. Va. Code R. § 33-8-9 Fees

9.1. Applicability. -- Sludge or other materials that are approved for use in accordance with this rule shall be subject to non-refundable fees, as described herein, which shall be paid by the producer, processor, or transporter of sludge or other material approved for use in accordance with this rule and shall be used to administer the requirements of this rule.

9.2. Water Quality Management Fund. -- Fees required by subsection 9.3. of this rule shall be shall be assessed on forms prescribed by the Director of the Division of Water Resources of the Department and shall be deposited in the special revenue fund designated the "Water Quality Management Fund" established under the provisions of W. Va. Code '22-11-10.

9.3. Fee Assessments.

9.3.a. Producers, processors, or transporters of sludge or other material for land application shall be assessed a fee calculated as $5.00 per actual ton of sludge or other material multiplied by the proportion of solids in the sludge. This fee shall be used to fund site evaluations, compliance inspections, complaint investigations, sampling, and related activities to determine compliance with this rule.

9.3.b. Permits issued under paragraph 4.1.a.1. of this rule shall be subject to the permit fees established in 47CSR26. These fees shall be used to fund issuance of permits and permit modifications, and other activities to determine compliance with this rule.

9.4.c. Permits issued under subdivision 4.1.c. of this rule shall be subject to the permit application fees established in Appendix B of this rule . These fees shall be used to fund issuance of permits and permit modifications, and other activities to determine compliance with this rule.

W. Va. Code R. § 33-8-10 Bonding Requirements

10.1. Bonding. -- The Secretary may require a surety bond, deposit or similar instrument in an amount sufficient to cover the cost of future environmental remediation from producers, processors, or transporters of sludge or other materials. Bonding will be required upon notification by the Secretary when he/she determines environmental conditions warrant remediation and that the financial status of the producer, processor, or transporter of sludge or other material is insufficient to fully address the cost of remedial actions.

APPENDIX A

FREQUENCY OF MONITORING

AMOUNT OF MATERIAL GENERATE FREQUENCY or PROCESSED (dry tons per 365 day period) OF MONITORING Greater than zero but less than 290.......................................... ...........................once every 6 months Equal to or greater than 290 but less than 1,500.............................................................................................................once per quarter (4 times per year)

Equal to or greater than 1,500 but less than 15, 000..........................................................................................................once per month ( 12 times per year)

Equal to or greater than 1,5000.............................................................................once per week

APPENDIX B

PERMIT APPLICATION FEES (Non-WV/NPDES)

New Permit …………………………………………………………….... $5,000 Permit Reissuance………………………………………………………... $1,000 Minor Permit Modification……......………......………………………... $100 Other Permit Modification …………………………....………..…......... $500 TABLE 1 MAXIMUM CONCENTRATION OF METALS IN SLUDGE OR OTHER MATERIAL FOR LAND APPLICATION Metal Concentration (mg/kg)

Arsenic 20 Cadmium 39 Chromium 1000 Copper 1500 Lead 250 Mercury 10 Molybdenum 18 Nickel 200 Selenium 36 Zinc 2800 TABLE 2 MAXIMUM ALLOWABLE SOIL CONCENTRATIONS Metal Concentration (mg/kg)

Arsenic 13.0 Cadmium . 2.4 Chromium ...... 290 Copper ..... 92 Lead 85 Mercury 2.4 Molybdenum 4.6 Nickel .83* Selenium 10 Zinc 290** * For sandy to silt loam soils with a permeability greater than 2.0 inches per hour, the maximum allowable soilconcentration for nickel is 50 mg/kg. ** For those sites with greater than 30% legume species, the maximum allowable soil concentration for zinc is 30 mg/kg for sandy to silt loam soils with permeability greater than 2.0 inches per hour and 200 mg/kg for other soil types.

33CSR8

33CSR8

Series 09 Standards For Beneficial Use Of Filtrate from Water Treatment Plants

W. Va. Code R. § 33-9-2 Definitions

The following definitions apply to this rule unless otherwise specified herein:

2.1. “Agricultural land” means land on which a food crop, feed crop, or fiber crop is grown. This includes, but is not limited to, range land and land used as pasture.

2.2. “Agronomic rate” means the application rate, by dry weight, designed: (1) To provide the amount of nutrients needed by the food crop, feed crop, fiber crop, cover crop or vegetation on the land; and (2) To minimize the amount of nutrients in the filtrate that passes below the root zone of the crop or vegetation grown on the land to the ground water.

2.3. “Applicant” means the person applying for a beneficial reuse determination, permit or renewal permit and any person related to such person by virtue of common ownership, or common management. 2.4 “Beneficial Properties” means those characteristics determined to be analytically acceptable as defined in section 5.

2.5. “Beneficial Use” means the use of a non-hazardous material for a specific beneficial purpose where it is done in a manner that protects groundwater and surface water quality, soil quality, air quality, human health, and the environment. This may include use as a fertilizer substitute, soil amendment, cover material, fill material, mulch or horticultural product, or other purpose approved by the Secretary.

2.6. “Department” means the Department of Environmental Protection.

2.7. “Domestic septage” means either liquid or solid material (septage) removed from a septic tank, cesspool, portable toilet, Type III marine sanitation device, or similar treatment works that receives only domestic sewage. Domestic septage does not include liquid or solid material removed from a septic tank, cesspool, or similar treatment works that receives either commercial wastewater or industrial wastewater and does not include grease removed from a grease trap at a restaurant.

2.8. “Filtrate or water treatment plant filtrate” means any sludge that results from the treatment of water at a water treatment plant. 2.9 “General Permit” means a regional or Statewide permit issued by the Department for a specified category, or categories, of beneficial use of filtrate, in accordance with the provisions of section 11, the terms and conditions of which allow an original applicant and a new applicant to register to operate under the general permit if the terms and conditions of the general permit are met.

2.10. “Long-term” means the application of filtrate to a site multiple times for a period of eighteen months or more.

2.11. “Land Application site” means a location where filtrate is sprayed or spread onto the land surface, or incorporated into the soil so that the filtrate can fertilize the crops or vegetation grown in the soil.

2.12. “Nutrient” or “nutrient content” means an element essential for plant growth, which for the purposes of this rule are nitrogen, phosphorous, potassium, calcium, magnesium, and micronutrients such as iron where applicable to a proposed beneficial use.

2.13. “Odor” means a sensation resulting from the stimulation of the human sense of smell.

2.14. “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.

2.15. “Plow Layer” means the layer of soil, which is turned or mixed by plowing, tilling, disking, harrowing, or other similar activity.

2.16. “Producer” means any person producing filtrate approved for use in accordance with this rule.

2.17. “Secretary” means the Secretary of the Department of Environmental Protection or person to whom the Secretary has delegated authority or duties pursuant to W. Va. Code §22-1-6.

2.18. “Sewage sludge” means solid, semi-solid 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.

2.19. “Short-term” means the application of filtrate to a site one or more times over a period of less than eighteen months.

2.20. “Sludge” means any solid, semisolid, residue or precipitate, separated from or created by a municipal, commercial or industrial water supply treatment plant or any other waste having similar origin.

2.21. “Soil improvement site” means the location where filtrate is sprayed or spread onto the land surface, or incorporated into the soil, so that the filtrate can improve the growing conditions for the crops or vegetation grown in the soil.

2.22. “Source water protection area” means the area delineated by the West Virginia Bureau for Public Health for a public water supply system or systems, whether the source is ground water or surface water or both, through which contaminants are reasonably likely to move toward and reach a public water supply system.

2.23. “Water treatment plant” means any facility, equipment, unit or system used to improve the quality of water to make it more suitable for domestic, commercial, or industrial purposes or for any other beneficial use.

2.24. “Wellhead protection area” means the surface and subsurface area surrounding a water well or well field supplying a public water system through which contaminants are reasonably likely to move toward and reach a well or well field as delineated by the Bureau for Public Health.

W. Va. Code R. § 33-9-3 Procedures for Obtaining a Beneficial Use Determination and Permitting Processes

3.1. Basis for beneficial use determination.

3.1.a. As a part of the permit process, the generator or proposed user of filtrate must request from the Secretary, in writing, a determination that the proposed use of filtrate is a beneficial use. The Secretary shall consider a requested use on a case-specific basis or shall consider a request for a set of similar uses. The Secretary shall consider the following in reviewing a request for a beneficial use permit:

3.1.a.1. Whether the filtrate, either proposed to be used as a mixture with other materials or alone, can be demonstrated to have benefit or usefulness as a raw material;

3.1.a.2. If the filtrate will be a constituent in another product, whether the resulting product, under its intended use, is not likely to adversely impact existing groundwater or surface water quality;

3.1.a.3. Whether the process of manufacturing the product using the filtrate will comply with all applicable permitting requirements;

3.1.a.4. Whether the filtrate may be beneficially used as an effective substitute to a commercially available product.

3.1.a.5. Whether there is an existing market for the filtrate or for the product made with the filtrate, or whether there is the probability of a market coming into existence after the approval of the case-specific beneficial use.

3.1.a.6. Whether the applicant has demonstrated that the filtrate will not need to be treated or otherwise chemically altered before use.

3.1.b. The Secretary shall determine in writing whether to grant the request for a beneficial use permit based on consideration of subsections 3.1.a.1 through 3.1.a.6, and a showing that the following criteria have been met:

3.1.b.1. The use proposed is a reuse, and not a disposal;

3.1.b.2. That where a product is being made with the filtrate there is an existing market for the filtrate or for the product made with the filtrate, or that there is the probability of a market coming into existence after the determination of the beneficial use;

3.1.b.3. That the use will conform to the standards for the beneficial use of filtrate as set forth in sections 5 and 6 of this rule, and

3.1.b.4. The use of the filtrate will not adversely affect human health, soil, air, surface water or groundwater.

3.2. Applicability. Short-term Permit. Persons shall obtain a short-term permit approving the beneficial use of filtrate for one-time or short-term applications of filtrate as set forth in this rule.

3.2.a. No person shall land apply or otherwise beneficially use filtrate subject to this rule without first obtaining a permit for such use from the Secretary.

3.2.a.1. The Secretary shall require a short-term permit for a one-time or short-term beneficial use of filtrate as set forth in this rule. Short-term permits shall be effective for a fixed term not to exceed 18 months.

3.2.b. The applicant must demonstrate that the use of the filtrate will not adversely affect human health, soil, air, surface water or groundwater.

3.3. Applicability. Long-term Permit. Persons shall obtain a long-term permit approving the beneficial use of filtrate for long-term applications of filtrate as set forth in this rule.

3.3.a. No person shall land apply or otherwise beneficially use filtrate subject to this rule without first obtaining a permit for such use from the Secretary.

3.3.a.1. The Secretary shall require a permit for the long-term application of filtrate at a soil improvement site as set forth in section 4 of this rule.

3.3.a.2. The Secretary shall require a long-term permit for multiple or long-term applications of the beneficial use of filtrate as set forth in this rule. Long-term permits shall be effective for a fixed term not to exceed five (5) years.

3.3.b. The applicant must demonstrate that the use of the filtrate will not adversely affect human health, soil, air, surface water or groundwater.

W. Va. Code R. § 33-9-4 Procedures for Obtaining a Permit

4.1. Applicability.

4.1.a. The Secretary shall require that a person proposing to beneficially reuse filtrate subject to this rule obtain a permit. The Secretary shall require a long-term permit where:

4.1.a.1. The application is proposed to occur on an ongoing basis for more than 18 months; or

4.1.a.2. The Secretary deems a permit necessary based on other special circumstances not addressed in sections 5 and 6 of this rule.

4.2. Permit required. When a permit is required by the Secretary, the applicant must comply with sections 4.3, 4.4 or 4.5 of this rule.

4.3. For those facilities holding a WV/NPDES Permit required under W. Va. Code §22-11-1 et seq., the permit requirements of this rule shall be incorporated as a modification of that facility's WV/NPDES permit.

4.4. Permits issued under section 4.3 of this rule are subject to the permit issuance procedures, procedures for permit modifications, suspension and revocation, procedures for transfer of permits, and the procedures for permit appeals of 47CSR10.

4.5. Other permits issued to a person seeking approval for beneficial use of filtrate in accordance with this rule shall be subject to the permit issuance, modification, reissuance, suspension and revocation procedures of section 7 through section 13 of this rule.

W. Va. Code R. § 33-9-5 Standards for Beneficial Use of Filtrate

5.1. Beneficial uses of filtrate approved by a permit must conform to the standards set forth in this section.

5.1.a. A beneficial use permit issued by the Secretary pursuant to this rule shall be based on analysis of the filtrate and other information demonstrating its beneficial use characteristics, an evaluation of the process that creates the filtrate, and an evaluation of potential adverse impacts to human health and the environment from the proposed use.

5.1.a.1. The concentration of any heavy metal in the filtrate shall not exceed the values determined to be appropriate for the specific application site as set forth in Tables 1 of this rule.

5.1.a.2. Residential soil concentrations in 60CSR3, and other applicable information shall be used by the Secretary as a guide to establish limits for pollutant loading rates when maximum soil concentrations are not established in Table 2 of this rule.

5.2. Filtrate may be used as a fill material, to contour grades, as daily cover at a landfill, and for other like uses.

5.3. The Secretary may approve the use of filtrate as fill material within fifty (50) feet of surface water upon submission of information sufficient to show that the fill material will have no significant impact on the quality of runoff reaching the surface water.

5.4. Filtrate may not be used as a fill material or otherwise placed on the land for a beneficial use where the Secretary determines, after investigation into the proposed use, that the use of filtrate would be inappropriate for any structural or environmental reason.

5.5. No person shall apply filtrate in a manner that will result in exceeding the maximum soil concentrations listed in Table 2 of this rule. The Secretary is authorized to issue variances to this subdivision to allow land application to soils where the background levels of metals in the soil exceed the maximum soil concentrations of metals listed in Table 2: Provided, That the analyses of the filtrate, soil analyses, and pollutant loss rates from erosion, leaching, and volatilization demonstrate that the beneficial use of the filtrate will not cause additional net accumulation of any metal in the soil already exceeding the maximum soil concentration listed in Table 2. Any such variance issued by the Secretary shall contain a requirement for soil monitoring, if necessary, of each metal exceeding the Table 2 value.

5.6. The Secretary shall not issue a beneficial use permit unless he or she has determined the suitability of the filtrate for use in compliance with this rule.

5.7. General Location Standards and Restrictions.

5.7.a. Land surface. Filtrate shall not be applied to land that meets any of the following conditions unless approved by the Secretary:

5.7.a.1. Land that is frozen, snow-covered, or known to be flooded on a regular basis unless the applicant can demonstrate to the Secretary that the land application will not result in runoff into streams or wetlands.

5.7.a.2. Land within fifty (50) feet of surface water to include streams, springs, ponds, wetlands, or other collection points for surface water unless the water in the collection point will be treated before being released into a surface water, including but not limited to ponds, ditches, and cells used to treat surface runoff from surface mines or as a phosphorous control material on agricultural sites.

5.7.a.2.a. To qualify for the use as a phosphorous control agent, the applicant must have the use approved as part of a nutrient management plan developed consistent with West Virginia Conservation Agency or Natural Resources Conservation Agency guidelines.

5.7.a.3. Land within two hundred (200) feet of drinking water supply wells or other private water supply.

5.7.a.4. Land within fifty (50) feet of an occupied dwelling.

5.7.a.5. Land within twenty (20) feet of a federal or state highway unless the beneficial use includes soil improvement for plantings on West Virginia Department of Transportation or federal highway rights of way and is applied with permission of the applicable state or federal highway authority or fill or grading material on West Virginia Department of Transportation or federal highway rights of way with permission of the applicable state or federal highway authority.

5.7.a.6. Land from which drainage leads into a sinkhole.

5.7.a.7. Land that has a slope greater than 15%.

5.7.a.8. Land that has a seasonal high groundwater table less than 3 feet from the surface.

5.7.a.9. Land where the application of filtrate is likely to adversely affect a threatened or endangered species listed under section 4 of the Endangered Species Act or its designated critical habitat.

5.7.a.10. Other land determined by the Secretary to be unsuitable for land application.

5.7.a.11. Land where there has been a precipitation event measured at more than 0.25 inches in the previous 24 hours or where there is the expectation that a precipitation event of a like magnitude will occur within 24 hours after application.

5.7.b. Land subsurface. Filtrate shall not be applied to land subsurface that meets any of the following conditions unless approved by the Secretary:

5.7.b.1. Land within two hundred (200) feet of drinking water supply wells or other private water supply.

5.7.b.2. Land from which drainage leads into a sinkhole.

5.7.b.3. Land that has a seasonal high groundwater table less than 3 feet from the surface.

5.7.b.4. Land where the application of filtrate is likely to adversely affect a threatened or endangered species listed under section 4 of the Endangered Species Act or its designated critical habitat.

5.7.b.5. Other land determined by the Secretary to be unsuitable for land application.

5.7.c. In addition to the requirements of 5.7.b, any filtrate applied to the land subsurface for the maintenance and construction of utility distribution and collection systems shall be covered by a minimum of six inches of non-filtrate fill material.

5.8. Land application site location standards and restrictions.

5.8.a. In addition to the general location standards and restrictions in subsection 5.7. of this rule, land application site must conform to the standards and restrictions in this section.

5.8.b. Beneficial characteristics. Beneficial characteristics that may be considered under this subsection include nutrient content and, where applicable, alkaline properties.

5.8.c. The concentration of any heavy metal in the filtrate shall not exceed the values listed in Table 1 of this rule.

5.8.d. Background concentrations at land application sites, residential soil concentrations in 60CSR3, and any other applicable information shall be used by the Secretary as a guide to establish limits for pollutant loading rates when maximum soil concentrations are not established in Table 2 of this rule.

5.8.e. The Secretary shall not issue a permit for a land application site unless he or she has evaluated the proposed land application site to determine its suitability for use and compliance with this rule.

5.8.f. The following materials shall not be land applied at a land application site:

5.8.f.1. Any filtrate that is a listed or characteristic hazardous waste referenced in 33CSR20.

5.8.g. Any filtrate proposed for use at a land application site having a nutrient concentration that will not provide at least fifty percent of the established crop nutrient need for either nitrogen, phosphorous, or potassium unless the Secretary determines that the proposed land application will provide value for agricultural or land improvement purposes, including but not limited to land application of filtrate to improve soil pH levels or soil alkalinity or for micronutrient value.

5.8.h. Filtrate shall not be applied to land that meets any of the following conditions without specific permission from the Secretary:

5.8.h.1. Land within one hundred (100) feet of an adjacent property owner's property line, unless written permission is given by the adjacent property owner.

5.8.h.2. Land that has been tested and determined to have a pH of less than 6.2, unless the pH is adjusted to 6.2 or greater, and provided that the adjustment of pH to 6.2 or greater can be accomplished by the addition of a higher pH filtrate.

5.8.h.3. Land that is within 100 feet of a vertical rock outcrop, unless it is shown that the land application will not adversely affect groundwater.

5.8.i. No person shall apply filtrate to a land application site in a manner that will result in exceeding the maximum soil concentrations listed in Table 2 of this rule. The Secretary is authorized to issue variances to this subdivision to allow land application to soils where the background levels of metals in the soil exceed the maximum soil concentrations of metals listed in Table 2: Provided, That the analyses of the filtrate, soil analyses, and pollutant loss rates from erosion, leaching, and volatilization demonstrate that the land application of the filtrate, at a loading rate prescribed by the Secretary, will not cause additional net accumulation of any metal in the soil already exceeding the maximum soil concentration listed in Table 2. Any such variance issued by the Secretary for a land application site shall contain a requirement to annually monitor the soil concentration of each metal exceeding the Table 2 limit for as long as the site is utilized for the land application.

5.8.j. Filtrate shall not be applied in a manner that diminishes soil productivity, seed germination, or plant health.

5.8.k. No person shall land apply filtrate except during daylight hours.

W. Va. Code R. § 33-9-6 Storage and Other General Requirements

6.1. Storage requirements.

6.1.a. Areas used for storing, mixing, processing, and curing of filtrate, including filtrate loading and unloading areas, impoundments, pipelines, ditches, pumps, drums, sumps and tanks, must be designed, constructed and operated to prevent release of contaminants to the groundwater and surface water. Outdoor storage of finished products which have been processed or cured shall be limited to one year; Provided, that a permanently constructed area for the storage, mixing, processing, or curing of filtrate where filtrate is removed from and added to the area on an ongoing basis shall not be prohibited by this provision so long as the permanent storage area is constructed and operated to prevent the release of contaminants to groundwater or surface water.

6.1.b. All storage areas must be designed and operated to control vectors and odors.

6.1.c. Storage areas must not be operated or constructed within the one hundred year flood plain unless provisions have been made to prevent the encroachment of flood waters upon the storage area.

6.1.d. All land application site storage areas must protect groundwater in accordance with the Groundwater Protection Act, W. Va. Code §22-12-1 et seq., and the rules promulgated thereunder, including 46CSR12, 47CSR58, 47CSR59, and 47CSR 60.

6.1.e. Filtrate shall not be stored at a land application site prior to land application for a period of more than one week: Provided, That the Secretary shall authorize storage for up to three months where acceptable provisions have been made to prevent leachate runoff into surface or groundwater.

6.2. General requirements.

6.2.a. The Secretary shall assign an individual and lifetime loading rate for each land application site for which a permit is required by considering background soil concentrations and maximum allowable pollutant concentrations as per Table 1 and per Table 2 of this rule. New soil analyses for those metals listed in Table 2 shall be required at each land application site whenever fifty percent of the assigned lifetime loading rate for the site has been achieved.

6.2.b. No person shall land apply filtrate, which exceeds the agronomic rate for that land application site or a rate of fifteen dry tons per acre per year, whichever is less.

6.2.c. Twenty-five dry tons per acre per year, agronomic rate, of filtrate may be applied in the reclamation of surface mine land or as cover at a landfill, unless the Secretary determines that based on specific site factors either more or less filtrate can be applied each year.

6.2.d. If filtrate is mixed with sewage sludge, then the rule governing the beneficial use of materials similar to sewage sludge (33 C.S.R. 8) shall govern the resulting mixture. The provisions of 33 CSR 8, Section 3.1.d.a.D. will not be a prohibition to the applicability of the use of the resultant mixture.

6.2.e. If the beneficial use of filtrate is as fill material then the Secretary will exercise best professional judgment in establishing the maximum amount of filtrate that can be used under various site conditions.

6.2.f. If the proposed beneficial use includes application on a reclaimed surface mine or on an active mine then the Secretary may approve the use upon determining that the filtrate or other approved material will not adversely affect the pH in surface or ground waters.

6.2.g. If the filtrate or other approved material is going to be used as a liming agent to raise pH, the original pH of the soil shall be used to determine the amount of filtrate to apply.

6.2.h. No person shall apply filtrate to land in a manner that will result in exceeding the groundwater standards established in 46CSR12. Results from a toxicity characteristic leaching procedure analysis of a material shall be considered when making an evaluation of the potential to impact groundwater quality.

6.2.i. Odor Control. When an odor is determined to be objectionable and repetitious by the Secretary, the Secretary shall require the activity to cease and/or require the facility to conduct related studies within a specified time period. These studies may include, but are not limited to, sampling and analysis to identify the specific chemical compound(s) causing the objectionable odor, analysis of samples by odor panels, air dispersion modeling studies, and evaluation of applicable odor control devices and odor control programs.

6.3. Sample Analysis.

6.3.a. U.S. Environmental Protection Agency analytical procedure SW-846, Test Methods for Evaluating Solid Waste, Physical/Chemical Methods, shall be used to analyze all samples required by this rule: Provided, That the Secretary may allow other approved standard methods of analyses appropriate to certain materials.

6.3.b. All samples required by this rule shall be analyzed by a laboratory certified in accordance with W. Va. Code §22-1-15 and the rules promulgated thereunder.

W. Va. Code R. § 33-9-7 Permit Application Requirements

7.1. Permit Application Forms. -- Persons required to obtain a permit pursuant to this rule must provide the following information, in the form and manner prescribed by the Secretary. The form may require information in addition to that required by this subsection.

7.2. Permit Application Requirements. -- All applicants for a permit must provide the following information:

7.2.a. The name, address, and location of the facility generating the filtrate;

7.2.b. A description of the activities conducted or to be conducted by the applicant;

7.2.c. The operator's and owner's name, address, telephone number, ownership status, and status as a federal, state, private, public or other entity;

7.2.d. Other environmental permits issued by any local, state or federal agency previously held or currently in effect;

7.2.e. A description of the filtrate to be beneficially used, including:

7.2.e.1. The specific source(s) of filtrate;

7.2.e.2. A description of the process used to generate the filtrate;

7.2.e.3. A physical description of the filtrate, including moisture content expressed as the percent solids, odor, particle size, and appearance; and

7.2.e.4. The content of heavy metals in the filtrate as set forth in Table 1 of this rule.

7.2.f. The amount of filtrate generated, processed, or proposed for beneficial use;

7.2.g. A description of the beneficial characteristics of the filtrate;

7.2.h. A description of the current method of disposal or use for the filtrate;

7.2.i. The following information, where necessary and applicable:

7.2.i.1. A hazardous waste determination, including a toxicity characteristic leaching procedure analysis: Provided, that a toxicity characteristic leaching procedure analysis need not be performed if a total analysis of the material demonstrates that individual analytes are not present in the waste or that they are present at such low concentrations that the appropriate regulatory levels could not be exceeded;

7.2.i.2. A description of the method used to collect or control leachate and surface water runoff from any storage areas;

7.2.i.3. A description of existing land uses adjacent to the proposed land application site or beneficial use area; and

7.2.i.4. A certified copy of any municipal or county zoning restrictions.

7.3. Permit Application Requirements.

7.3.a. Persons required by the Secretary to apply for a permit for the beneficial use of filtrate as defined in Section 2.11 and/or Section 2.21 must submit the following information to the Secretary in addition to that required under subsection 7.2 of this rule, where applicable:

7.3.b. Soil analysis for all land application sites including but not limited to pH, potassium, phosphorus, nitrogen, all metals listed in Table 1 of this rule and any additional chemical analysis requested by the Secretary;

7.3.c. Information relative to the nutrient content of filtrate to be land applied;

7.3.d. A description of all soil types present on the site proposed for land application, including a soil profile description and a soil map with application sites clearly defined;

7.3.e. An agreement between the preparer of filtrate, the applier, and the owner of a land application site indicating each party's concurrence with the application, and certifying that each will comply with applicable requirements of this rule;

7.3.f. A description of existing and future uses of the land application site;

7.3.g. Information relative to past application of filtrate, sewage filtrate, material derived from sewage filtrate, fertilizers, pesticides, and herbicides to each land application site;

7.3.h. In addition to the chemical analyses required in subdivision 7.2 of this rule, any additional chemical analyses of the filtrate requested by the Secretary;

7.3.i. A description of the methods to be used for land application;

7.3.j. A description of the methods for transportation of filtrate to the land application or beneficial use site;

7.3.k. A copy of the NPDES or other permit for the facility from which the filtrate originated;

7.3.l. A description of the methods by which pathogen control and vector attraction reduction are being achieved, if applicable;

7.3.m. A description of the methods to be utilized to inhibit the mobility of metals added to the soil by the land application of filtrate, should such land application cause an increase in the concentration of metals in the soil at a land application site;

7.3.n. Information on the type of crop(s) to be grown on the site and the proposed use of the harvested crop(s);

7.3.o. A determination on whether the site is located within a delineated wellhead protection area or source water protection area; and

7.3.p. Any additional information required by the Secretary.

W. Va. Code R. § 33-9-8 Draft Permits and Public Comment

8.1. Administration.

8.1.a. Once an application is complete, the Secretary shall decide whether to prepare a draft permit or to deny the application. The denial of an application may be appealed to the Environmental Quality Board by filing a notice of appeal within 30 days from the date of receipt of the denial in accordance with W. Va. Code §22-15-16.

8.1.b. If the Secretary decides to issue a draft permit, it must contain the agency’s basis for approval.

8.1.c. A draft permit shall be provided to the applicant and shall be publicly noticed and available for public comment in accordance with subsection 8.2.

8.2. Public notice.

8.2.a. Public notice of the preparation of a draft permit pursuant to this rule must provide at least thirty (30) days for public comment. Public notice of the preparation of a draft short-term permit pursuant to this rule must provide at least fifteen (15) days for public comment. The public comment period may be extended by the Secretary, but in no case may the extension exceed an additional thirty (30) days.

8.2.b. Public notice of a public hearing shall be given at least thirty (30) days before the hearing. Public notice of the hearing may be given at the same time as public notice of the draft permit and the two (2) notices may be combined.

8.2.c. Methods. Public notice shall be given by the following methods:

8.2.c.1. By mailing a copy of a notice to the applicant;

8.2.c.2. By publishing the public notice as a Class I legal advertisement in a qualified newspaper with the largest circulation for the county where the generator of filtrate and the location of the proposed beneficial use pursuant to W. Va. Code §59-3-1 et seq. The cost of the publication will be born by the applicant who must send a certificate of publication to the Department within twenty (20) days after publication; and

8.2.c.3. Any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases, mailing lists or any other forum or medium to elicit public participation.

8.2.d. Draft permit public notice contents. -- All public notices issued under this part shall contain the following minimum information:

8.2.d.1. Name and address of the division processing the permit for which notice is being given;

8.2.d.2. Name and address of the applicant;

8.2.d.3. A brief description of the activity described in the permit or in the draft permit ;

8.2.d.4. Name, address and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit, and the permit application; and

8.2.d.5. A brief description of the comment procedures required by subsections 8.3 and 8.4 and the time and place of any hearing that will be held, including a statement of procedures to request a hearing (unless a hearing has already been scheduled) and other procedures by which the public may participate in the final agency decision.

8.2.e. In addition to the requirements of subdivision 8.2.d. of this rule, public notice of a hearing shall contain the following information:

8.2.e.1. Reference to the date of the public notice relating to the draft permit;

8.2.e.2. Date, time, and place of the hearing; and

8.2.e.3. A brief description of the nature and purpose of the hearing, including the applicable rules and procedures.

8.3. Public comments and requests for public hearings. -- During the public comment period provided under subsection 8.2, any interested person may submit written comments on the draft permit and may request a public hearing. If a public hearing has already been scheduled additional requests do no require additional hearings. A request for a public hearing shall be in writing and shall state the nature of the issues proposed to be raised in the hearing. All comments shall be considered in making the final agency decision and shall be responded to as provided subsection 8.6.

8.4. Public hearings.

8.4.a. The Secretary shall hold a public hearing whenever he or she finds, on the basis of requests, a significant degree of public interest on issues relevant to a draft permit. The Secretary also may hold a public hearing at his or her discretion, when, for instance, a hearing might clarify one (1) or more issues involved in the agency’s decision.

8.4.b. Any person may submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements.

8.4.c. The submission of statements in writing under subdivision 8.3 shall automatically be extended to ten (10) days after the close of any public hearings conducted under this section.

8.4.d. A tape recording or written transcript of the hearing shall be made available to the public, upon request.

8.5. Reopening of the public comment period.

8.5.a. If any information or arguments submitted during the public comment period raise substantial new questions concerning a draft permit, or if as a result of comments submitted by someone other than the applicant, the Secretary decides to revise any condition of the draft permit that had been sent to initial public notice, the Secretary may:

8.5.a.1. Prepare a new draft permit, appropriately modified, under section 7 of this rule; or

8.5.a.2. Reopen or extend the comment period to give interested persons an opportunity to comment on the revision to the draft permit.

8.5.b. Comments filed during the reopened comment period shall be limited to the substantial new questions that caused its reopening. The public notice shall define the scope of the reopening.

8.6. Response to comments.

8.6.a. The Secretary shall issue a response to comments received on the draft permit prior to issuing the final permit. This response shall:

8.6.a.1. Specify which provisions, if any, of the draft permit have been changed in the final permit, and the reasons for the change; and

8.6.a.2. Briefly describe and respond to comments on the draft permit raised during the public comment period, or during any hearing.

8.6.b. The response to comments shall be mailed to any person who commented or any person who requests a response.

8.7. Issuance and effective date of permit.

8.7.a. After the close of the public comment period on a draft permit, the Secretary shall issue a final decision. The Secretary shall notify the applicant and each person who has submitted written comments or requested notice of the final decision. This notice shall advise that anyone aggrieved by the decision may make an appeal to the Environmental Quality Board by filing a Notice of Appeal with the Board within thirty days after the final decision is made. For the purposes of this section, a final decision means a final decision to issue, deny, modify, or revoke and reissue, a permit.

W. Va. Code R. § 33-9-9 Modification, Revocation and Reissuance, Suspension and Revocation. 9.1 Actions by the Secretary

9.1.a. Permits may be modified, revoked and reissued, suspended or revoked either at the request of any interested person or upon the Secretary's initiative. Permits may only be modified, revoked and reissued, suspended or revoked for the reasons specified in this section. All requests for action on a permit shall be in writing submitted to the Secretary citing facts or reasons supporting the request. The Secretary may require additional information, and in the case of a major modification, may require submission of a new application or request. A new permit application is required for a permit reissuance under subsection 9.3.

9.1.b. If the Secretary decides the request is not justified, he or she shall send the requestor a brief written response giving the reasons for the decision. Denials of the requests are not subject to public notice, comment, or hearings.

9.1.c. If the Secretary decides to modify or revoke and reissue a permit and the modification is not made under subsection 9.5, he or she shall prepare a draft permit and follow the public notice procedures in section 8. The Secretary may request additional information and, in the case of a modified permit, may require the submission of an updated permit application. The Secretary shall require the submission of a new application if the permit is revoked or reissued.

9.1.d. For a modification of a permit under this section, only those conditions to be modified are reopened when a new draft is prepared. All other conditions of the existing permit shall remain in effect.

9.1.e. When a permit is revoked and reissued under this section, the entire permit is reopened just as if the permit had expired and was being reissued. During any revocation and reissuance proceeding the permittee shall comply with all conditions of the existing permit until a new permit is issued.

9.2. Causes for modification or permittee requested reissuance.

9.2.a. Modifications. The following are causes for modification, and requires the preparation of a draft permit and the public notice procedures of section 8. The Secretary may determine the following causes may also be reason for a permit reissuance under section 9.3.

9.2.a.1. Alterations. Material and substantial alterations to the authorized activity which change the content of the waste stream from which filtrate is generated.

9.2.a.2. Information. New information becomes known and would be cause for different permit conditions.

9.2.a.3. New rules. The standards or rules on which the authorization was based have been changed by promulgation of amended standards or rules or by judicial decision after the permit was issued.

9.2.a.4. For judicial decision, when a court of competent jurisdiction has remanded and stayed State rules or Federal regulations, if the remand and stay concern that portion of the rules or regulations on which the condition was based.

9.2.a.5. When the authorized person begins or expects to begin to use or manufacture as an intermediate or final product or by-product any toxic pollutant, which was not reported in the application or request.

9.2.a.6. A determination that the authorized activity endangers human health or the environment, which can be reduced to acceptable levels by a permit modification.

9.2.a.7. For permit, any of the reasons cited in subsection 9.4.

9.2.a.8. To correct technical mistakes, such as errors in calculation, or mistaken interpretations of law made in establishing authorized conditions.

9.3. Reissuance. When a permit is reissued under this subsection, the entire permit is reopened. Reissuance requires a draft permit and the public notice procedures of section 8. Processing of a reissuance application does not exempt the permittee from compliance with any permit term or condition while the application is pending.

9.4. Suspension and revocation of permits.

9.4.a. The following are causes for revocation or suspension of a permit or for denying a permit renewal application:

9.4.a.1. Noncompliance by the authorized person with any condition of the permit; or

9.4.a.2. The applicant’s failure in the application or request or during the issuance or determination process to disclose fully all relevant facts, or the misrepresentation of any relevant facts at any time; or

9.4.a.3. A determination that the authorized activity endangers human health or the environment which can only be reduced to acceptable levels by modification or revocation of the permit; or

9.4.a.4. A change in any condition that requires either a temporary or a permanent reduction or elimination of any filtrate being beneficially used under this rule.

9.4.b. The Secretary may suspend or revoke a permit pursuant to W. Va. Code §22-15-15.

9.5. Minor modifications. Upon the consent of the authorized person, the Secretary may modify a permit to make corrections or allowances for changes in the authorized activity listed in this section without following the procedures of section 8. Minor modifications may:

9.5.a. Correct typographical errors;

9.5.b. Require more frequent monitoring or reporting;

9.5.c. Add acreage to a land application site that is already identified in the permit;

9.5.d. Amend the loading rate contained in the permit due to a change in nutrient requirements at a land application site.

W. Va. Code R. § 33-9-10 Permit Contents and Requirements

10.1. General Requirements. -- All permits issued pursuant to this rule shall contain applicable requirements of this rule, including but not limited to the following:

10.1.a. Limitations on the concentrations of pollutants and pathogens in the filtrate;

10.1.b. Requirements to monitor the filtrate, and report the results of those analyses for pH, percent solids, organic nitrogen, potassium, phosphorus, calcium, magnesium, total nitrogen, ammonia nitrogen, pathogen test results, vector attraction reduction verification, all heavy metals listed in Table 1 of this rule, and any other analyses required by the Secretary: Provided, that the frequency of monitoring shall be as described in Appendix A of this rule; Provided, However, that the Secretary may require more frequent monitoring based on the results of the monitoring;

10.1.c. Requirement to pay fees as identified in section 12 of this rule;

10.1.d. Requirements for the proper control of storm water runoff for the protection of groundwater, surface waters, and potable waters in the area;

10.1.e. Requirements to retain records for the facility for at least five years;

10.1.f. Requirements to monitor and report to the Secretary the quantity of filtrate generated, stored, and used;

10.1.g. Requirements to provide copies of reports to the county or regional solid waste authority in which the facility or land application site(s) is located;

10.1.h. Requirements for the implementation of practices to prevent the contamination of ground and surface waters, including liners if necessary;

10.1.i. Requirements for the implementation of practices to protect air quality in and around the facility and any land application sites; and

10.1.j. Any other requirements, including additional monitoring, determined to be necessary by the Secretary to ensure compliance with any state and federal laws, regulations, rules, or requirements, or to protect human health or the environment.

10.1.k. A listing of the site(s) for which land application is approved;

10.1.l. Limitations on the maximum amount of filtrate allowed to be land applied;

10.1.m. Requirements implementing the general location standards of section 5 of this rule;

10.1.n. Any necessary restrictions on the types of crops that may be grown on land used for application of filtrate and the time between such application and the harvesting of crops;

10.1.o. Any necessary restrictions on animal grazing and public access on a land application site; and

10.1.p. Vector attraction reduction requirements, if applicable:

10.1.q. Permits shall be effective for a fixed term not to exceed five (5) years.

W. Va. Code R. § 33-9-11 General permits

11.1. Coverage. The Secretary may issue a general permit in accordance with the following:

11.1.a. Area. The general permit shall be written to cover a category of filtrate uses described in the permit within a geographic area. The area shall correspond to existing geographic or political boundaries, such as:

11.1.a.1. Watersheds using the eight-digit HUC or hydrologic unit code, or other some other defined watershed or watersheds;

11.1.a.2. Sewer districts or sewer authorities;

11.1.a.3. City, County, or State political boundaries;

11.1.a.4. State highway systems;

11.1.a.5. Standard metropolitan statistical areas as defined by the United States Office of Management and Budget; and

11.1.a.6. Any other appropriate division or combination of boundaries.

11.1.b. Sources. The general permit may be written to regulate, within the area described in paragraph 11.1.a.1 of this section, either:

11.1.b.1. A category of filtrate uses; or

11.1.b.2. The same or substantially similar types of operations; or

11.1.b.3. Filtrate uses, in the opinion of the Secretary, are more appropriately controlled under a general permit than under individual permits.

11.2. Administration:

11.2.a. In general. General permits may be modified, revoked and reissued, suspended, or revoked in accordance with the applicable requirements of section 9 of this series.

11.2.b. Requiring an individual permit:

11.2.b.1. The Secretary may require any person authorized by a general permit to apply for and obtain an individual permit. Any interested person may petition the Secretary to take action under this subparagraph. Cases where an individual permit may be required include the following:

11.2.b.1.A. The filtrate user is not in compliance with the conditions of the general permit;

11.2.b.1.B. The filtrate use is long-term and determined to need an individual permit;

11.2.b.2. The Secretary may require any owner or operator authorized by a general permit to apply for an individual permit as provided in subparagraph 11.2.b.1 of this section, only if the owner or operator has been notified in writing that a permit application is required. This notice shall include a brief statement of the reasons for this decision, an application form, a statement setting a time for the owner or operator to file the application, and a statement that on the effective date of the individual permit the general permit as it applies to the individual permittee shall automatically terminate. The Secretary may grant additional time upon request of the applicant.

11.2.b.3. Any owner or operator authorized by a general permit may request to be excluded from the coverage of the general permit by applying for an individual permit. The owner or operator shall submit an application under section 7, with reasons supporting the request, to the chief no later than ninety (90) days after the general permit notice in accordance with subsection 11.2.b.4.

11.2.b.4. Upon issuance of a general permit, the Secretary shall cause to be published a notice of issuance as a Class I legal advertisement in a qualified daily or weekly newspaper within the geographical area affected by the subject of the permit, and by any other means reasonably calculated to give notice of issuance to the persons affected by it. Further, the procedures of section 8 relating to a draft permit and public comment shall be followed, including a 30-day public comment period.

W. Va. Code R. § 33-9-12 Fees

12.1. Applicability. -- Filtrate that is approved for use and requires a permit in accordance with this rule shall be subject to fees, as described herein, which shall be paid by the producer, processor, or transporter of filtrate approved for beneficial use in accordance with this rule and shall be used to administer the requirements of this rule.

12.2. Water Quality Management Fund. -- Fees required by subsection 12.3 of this rule shall be shall be assessed on forms prescribed by the Secretary and shall be deposited in the special revenue fund designated the "Water Quality Management Fund" established under the provisions of W. Va. Code §22-11-10.

12.3. Fee Assessments.

12.3.a. Permits issued under this rule shall be subject to the fees established in Appendix B of this rule. These fees shall be used to fund permitting activities and other activities to determine compliance with this rule.

12.3.b. Producers, processors, or transporters of filtrate or other material disposed of under this rule shall be assessed a fee calculated as $5.00 per actual ton of filtrate or other material multiplied by the proportion of solids in the filtrate. This fee shall be used to fund site evaluations, compliance inspections, complaint investigations, sampling, and related activities to determine compliance with this rule.

W. Va. Code R. § 33-9-13 Bonding Requirements

13.1. Bonding. -- Prior to permit issuance, the Secretary may require a surety bond, deposit or similar instrument in an amount sufficient to cover the cost of future environmental remediation from the applicant when the Secretary determines environmental conditions warrant remediation and that the financial status of the applicant is insufficient to fully address the cost of remedial actions.

APPENDIX A

FREQUENCY OF MONITORING

AMOUNT OF MATERIAL GENERATED FREQUENCY or PROCESSED (dry tons per 365 day period) OF MONITORING Greater than zero but less than 290...........................................................................once every 6 months Equal to or greater than 290 but less than 15,000................................................................................................................once per quarter (4 times per year)

Equal to or greater than 15,000.................................................................................once per week

APPENDIX B

PERMIT APPLICATION FEES (Non-WV/NPDES)

New Permit ……………………………………………………………... $1,000 Permit Reissuance……………………………………………………….. $500 Minor Permit Modification……......………......……………………….... $100 Other Permit Modification …………………………....………..….......... $500 Short-Term Permit...........………..….......……………………………….. $250 TABLE 1 MAXIMUM CONCENTRATION OF METALS IN FILTRATE FOR LAND APPLICATION Metal Concentration (mg/kg)

Arsenic………………………………………………………………………………………… 20 Cadmium………………………………………………………………………………………. 39 Chromium……………………………………………………………………………………… 1000 Copper………………………………………………………………………………………….. 1500 Lead……………………………………………………………………………………………. 250 Mercury………………………………………………………………………………………… 10 Molybdenum…………………………………………………………………………………… 18 Nickel…………………………………………………………………………………………... 200 Selenium………………………………………………………………………………………... 36 Zinc……………………………………………………………………………………………... 2800 TABLE 2 MAXIMUM ALLOWABLE SOIL CONCENTRATIONS Metal Concentration (mg/kg)

Arsenic………………………………………………………………………………………… 13.0 Cadmium………………………………………………………………………………………. 2.4 Chromium……………………………………………………………………………………… 290 Copper………………………………………………………………………………………….. 92 Lead…………………………………………………………………………………………….. 85 Mercury…………………………………………………………………………………………. 2.4 Molybdenum…………………………………………………………………………………... 4.6 Nickel…………………………………………………………………………........................... 83* Selenium……………………………………………………………………………………….. 10 Zinc…………………………………………………………………………………………….. 290** * For sandy to silt loam soils with a permeability greater than 2.0 inches per hour, the maximum allowable soil concentration for nickel is 50 mg/kg. ** For those sites with greater than 30% legume species, the maximum allowable soil concentration for zinc is 30 mg/kg for sandy to silt loam soils with permeability greater than 2.0 inches per hour and 200 mg/kg for other soil types.

33CSR9

33CSR9

Series 10 Recycling Assistance Grant Program

W. Va. Code R. § 33-10-1 General

1.1. Scope and Purpose. - This rule sets out guidelines and procedures for providing assistance grants to local governments and other interested parties for the purpose of planning, initiating, expanding, or upgrading recycling and/or source reduction programs, provide related public education programs, and assist in recycling market procurement efforts.

1.2. Authority. – W. Va. Code § 22-15A-19(h)(1).

1.3. Filing date. – April 10, 2023.

1.4. Effective Date. – April 10, 2023.

W. Va. Code R. § 33-10-2 Definitions

2.1. “Applicant” means the local government or other interested party applying for a grant pursuant to this rule.

2.2. “Bulky goods” means bulky appliances such as stoves, hot water heaters, sinks, washers, dryers, refrigerators, and dishwashers.

2.3. “Cure period” means the period between the submission deadline and the date designated by the department during which the applicant may remedy an error.

2.4. “Department” means the West Virginia Department of Environmental Protection.

2.5. “Financially benefitted” means to have received a benefit from a grant, whether by cash, purchases, use of assets, or payment of obligations, that if not received would have caused the beneficiary to avoid the purchase/service of that benefit or to incur and pay the costs or obligation from other financial resources.

2.6. “Grant period” means the period from January 1 to the last day in February of the following year. The total grant period consists of these fourteen months.

2.7. “Grant Recipient” or “Grantee” means an entity to whom a grant has been awarded.

2.8. “Incomplete proposal” means a proposal that does not meet Department submission requirements.

2.9. “Instrumentality” means an agency authorized by state law.

2.10. “Local government” means any unit of local government within the state, including a county, county board of education, municipality, and any other authority, board, commission, district, office, public authority, public corporation, or other instrumentality of a county, county board of education, or municipality or any combination of two or more local governments.

2.11. “Municipality” means an incorporated community.

2.12. “Other interested party” means private business and enterprise and nonprofit organizations, public and private schools, colleges and universities, and state agencies and municipalities.

2.13. “Proposal” means an application, on the proper forms, requesting a grant through the West Virginia Recycling Assistance Grant Program.

2.14. “Recyclable materials” means, for the purpose of this rule, any source separated material collected from the solid waste stream for the intended purpose of reprocessing or having that material reprocessed into a useable, marketable end product. This includes, but is not limited to, steel and bimetal cans, aluminum, glass, paper, plastic, tires, bulky goods, electronics, and yard waste. Provided, that sewage sludge processing facilities are not considered recycling facilities and sewage sludge compost is not considered a recyclable material within the meaning of W.Va. Code Chapter 22, Article 15.

2.15. “Recycle” means the process by which recovered products are transformed into new products and includes the collection, separation, recovery, processing and marketing, or reuse, of the recyclable materials.

2.16. “Recycling market procurement” means developing markets for the materials generated by recycling programs.

2.17. “Recycling program” means any program, project, endeavor, or facility created for the purpose of recycling or promoting recycling.

2.18. “Secretary” means the Cabinet Secretary of the West Virginia Department of Environmental Protection.

2.19. “Sewage” means water-carried human or animal wastes from residences, buildings, industrial establishments, or other places together with such groundwater infiltration and surface waters as may be present.

2.20. “Sewage sludge” means any solid, semi-solid or liquid residue generated during the treatment of domestic sewage in a treatment works. Sewage sludge includes, but is not limited to, domestic septic, scum or solids removed in primary, secondary or advanced wastewater treatment processes and a material derived from sewage sludge.

2.21. “Source separated” means materials separated from general solid waste at the point of origin for the purpose of reuse and recycling but does not include sewage sludge.

2.22. “Submission deadline” means the latest date and time that proposals must be received by the department to be considered for funding, which is 5:00 p.m. on the first business day in July.

2.23. “Yard waste” means grass clippings, weeds, leaves, brush, garden waste, shrub or tree prunings and other living or dead plant tissue, except that, such materials which, due to inadvertent contamination or mixture with other substances which render the waste unsuitable for composting, shall not be considered to be yard waste. Provided, that the same or similar waste generated by commercial agricultural enterprises is excluded.

2.24. “Yard waste composting” means the controlled decomposition of yard waste to produce a stable and beneficial humus-like material.

W. Va. Code R. § 33-10-3 Grants Available From Recycling Assistance Grant Program

3.1. The recycling assistance grant program provides grants to assist local governments and other interested parties in:

3.1.a. initiating, expanding, or upgrading recycling and/or source reduction programs;

3.1.b. public education programs which promote recycling and/or source reduction; and

3.1.c. recycling market procurement efforts.

3.2. The Recycling Assistance Fund Grant Review Committee shall evaluate the Recycling Assistance grant proposals that have met all department submission requirements and eligibility requirements established by this rule and are in compliance with one or more criteria of section 3.1 of this rule on a competitive basis considering each proposal’s objectives towards maximizing the following factors:

3.2.a. conservation of limited natural resources;

3.2.b. public education regarding litter control recycling and/or source reduction;

3.2.c. recycling of valuable materials;

3.2.d. extending the useful life of solid waste landfills; and

3.2.e. reducing the need for new landfills.

3.3. The following types of grants are available:

3.3.a. Local Government Recycling Feasibility Study and Planning Grant – This grant is for researching the feasibility of community, county, and regional recycling programs including market development and requires submittal of a detailed comprehensive plan. A local government may use a professional service to assist in planning and/or implementing a comprehensive recycling program.

3.3.b. Recycling Program Assistance Grant - This grant is for initiating, expanding, or upgrading recycling programs, and emphasizes the integration of source reduction and recycling.

W. Va. Code R. § 33-10-4 Grant Program Eligibility and Priority

4.1. All West Virginia entities, as defined under 2.10 and 2.12 of this rule, are eligible to apply for recycling program assistance grants as provided for in subdivision 3.3.b. of this rule, through notification of the county or regional solid waste authority in which the applicant is located. Only local governments are eligible to apply for grants as provided for in subdivision 3.3.a. of this rule, through notification of the county or regional solid waste authority in which the applicant is located. The recycling assistance fund grant review committee shall give priority to those municipalities, counties, state instrumentalities, private schools, proprietorships, partnerships, corporations, and cooperatives, required to recycle as a result of a county referendum or pursuant to the provisions of West Virginia Code §§ 22-15A-18 and 22-15A-20. If a county has adopted a recycling ordinance by referendum vote, the ordinance shall be consistent with the provisions of West Virginia Code § 22-15A-18(c) for the applicant to receive priority for a grant.

4.2. An applicant that has a current grant from the Recycling Assistance Grant Program is not eligible for the next cycle of grants.

4.3. A request for a waiver to receive consecutive funding may be submitted to the Secretary for the following reasons:

4.3.a. Significant damages, through no fault of the applicant, caused by fire, flood, or other act of nature;

4.3.b. New legislative requirements or restrictions that materially affect program operations.

4.4. A grant recipient who files a delinquent final report shall be ineligible to receive grants for a period of two years following the year in which the delinquent final report was received. A grant recipient who has a final report outstanding and due to the department shall not be eligible to receive a grant.

4.5. Applicants shall be in compliance with all federal, state and local laws, codes, ordinances, rules and regulations to be eligible for a grant.

W. Va. Code R. § 33-10-5 Use of a Grant

5.1. A recycling assistance grant shall be used for:

5.1.a. Personnel - The salary costs of a recycling manager or coordinator, or recycling program laborers. No more than a total of $25,000 may be used from grant funds for the combined wages and/or benefits of a recycling manager, coordinator, and/or laborers.

5.1.b. Conference Attendance - Educational recycling conference expenses limited to: airfare or mileage, meals, lodging, parking and registration fees. No more than a total of $1,500 may be used from grant funds for travel.

5.1.c. Office Supplies - General office supplies used in the ordinary course of business. No more than $1,000 may be used from grant funds for office supplies, such as paper, stamps, notebooks, and filing supplies.

5.1.d. Operational Supplies - Operational supplies used in the collection, transportation, and processing of recyclable material, such as collection bags, household bins, gaylord boxes, baling wire and gloves.

5.1.e. Equipment - Collection equipment, processing equipment, material handling or storage equipment, scales, and safety equipment used in recycling activities.

5.1.f. Recycling Vehicle Expense - The maintenance, fuel, and insurance for a truck or van used in approved recycling activities. Collecting and transporting materials to market using the program’s vehicle and labor is an approved recycling activity.

5.1.g. Printing - Costs associated with printing educational materials on recycling such as pamphlets, posters, flyers, etc.

5.1.h. Advertising - Costs associated with the production and/or placement of recycling advertising in newspaper, radio, business cards, and other advertising related to development and implementation of a recycling and/or source reduction program.

5.1.i. Promotional Items - Costs associated with promotional items such as awards, decals, patches, buttons, magnets, and costs associated with the rental of a fair booth and/or exhibit space for creating public awareness.

5.1.j. Utilities - Costs associated with the utilities required to operate a recycling processing center, such as electric, gas, telecommunications, internet, and water. No more than a total of $1,200 may be used for telecommunications costs. Rent or lease charges related to a recycling program for a building, or office space are allowable expenditures. However, to obtain grant funds for rent or lease charges, the applicant shall provide the department with a copy of the written rental or lease agreement which shall exceed twenty years and meet the following criteria:

5.1.j.1. the rental or lease agreement shall not contain any cancellation or termination clause without cause;

5.1.j.2. the rental or lease agreement shall not be transferrable,; and

5.1.j.3. the rental or lease agreement shall not allow for subleasing;.

5.1.k. Recycling Facility Construction, Improvement and Repairs - A grant may be used for, but not limited to, new construction or repairs or minor improvements to an existing recycling facility, such as loading docks, sheds, structures, abutment walls, fences, roof repair, gravel or paving, if the land is owned or leased by the grantee. However, to obtain grant funds for construction, improvements and repairs for rental or leased property, the applicant shall provide the department a copy of the written rental or lease agreement which shall meet the criteria stated in subdivision 5.1.j. of this rule.

5.1.l. Professional Services - To assist in planning and implementation of recycling projects including feasibility studies, A grant may be utilized by local and state governments or state instrumentalities for recycling projects in which a private “for profit” business or a not-for-profit organization is contracted to provide a service, or services, only as long as the bid for the services is in accordance with the appropriate local or state competitive bidding process.

5.1.m. Grant Auditing and Report Costs - A reasonably proportionate share of the costs of audits required by, and performed in accordance with, West Virginia Code §12-4-14 are allowable to a maximum of $2,000. The proportionate share will be based on the auditor’s hours directly applied to auditing the Recycling Assistance Grant and preparing the report, in relation to the entire audit costs.

5.1.n. Computer Hardware and Software – Costs associated with computer hardware and software to be used solely in the recycling operation and justified in writing by the applicant.

5.2. A recycling assistance grant may not be used for:

5.2.a. The purchase or long-term lease of dumpsters or other containers, or their servicing, when they are not part of an approved recycling activity;

5.2.b. Land acquisitions;

5.2.c. The cost for office equipment including such items as desks, chairs, telephones, typewriters, filing cabinets, and photocopying equipment;

5.2.d. Street sweepers or their equivalents;

5.2.e. Entertainment costs (banquets, parties, etc.);

5.2.f. Alcoholic beverages, in-state lunches, and all gratuities;

5.2.g. Beautification projects (plantings, mowing, weeding, etc.) unless the purpose is to provide natural screening to neighboring properties; or

5.2.h. Any type of lobbying expense.

5.3. A grant shall not be used to replace funding which is currently budgeted or being provided by the applicant.

5.4. A grant shall not be used to fund an entity, program, or facility that financially benefited from a Recycling Assistance grant the previous year. A waiver to apply for a consecutive grant may be approved as provided in section 4.3. of this rule. A request for a waiver shall be submitted to the Secretary in writing.

W. Va. Code R. § 33-10-6 General Conditions Applicable to Proposals

6.1. The following general conditions apply to all proposals for funding under the recycling assistance grant program:

6.1.a. The proposed project shall be designed to affect a significant and measurable reduction in the municipal solid waste stream.

6.1.b. All proposals shall plan to involve all or a substantial percentage of the community’s residents located in the project area and should include a plan to provide public education regarding the recycling program.

6.1.c. The grant proposal should demonstrate the relationship to, and support of, the hierarchy established under West Virginia Code § 22C-4, i.e., source reduction, recycling, reuse and resource recovery, and landfilling.

W. Va. Code R. § 33-10-7 Schedule of Funding Levels

7.1. An applicant may receive one grant every other year from the Recycling Assistance Grant Program. The schedule of funding levels per applicant by type of grant is as follows:

Type of Grant Maximum Grant Recycling Feasibility Study and Planning Grant Local Government $35,000 Recycling Program Assistance Grant Municipality over 10,000 population $150,000 Municipality under 10,000 $75,000 County or Regional Solid Waste Authority $150,000 County Commission $150,000 State agency/state instrumentality or school $75,000 Other Interested Party $75,000

7.2. An entity, program, organization or facility shall not receive more than $250,000 during a grant year, regardless of the number of proposals submitted for that entity, program, organization or facility.

W. Va. Code R. § 33-10-8 Proposal Content

8.1. The proposal for a recycling program assistance grant shall contain the following:

8.1.a. An outline of the materials to be source separated and recycled. The list of recyclable material may be adjusted according to whether the generator is residential, commercial or another type of establishment;

8.1.b. A public information program to ensure receipt of good clean quality materials;

8.1.c. A description of a collection system;

8.1.d. A projection of the cost effectiveness and self-sufficiency of the proposed project;

8.1.e. Documentation of the type of in-kind services to be provided by the grantee;

8.1.f. Documentation of any other type of county, state and federal grant assistance, loans, or other financial support received within the 36-month period prior to the grant submission deadline date, including the dollar amount, type of project, purpose of funding, etc., for recycling and/or solid waste management;

8.1.g. Economic development aspects of the project, i.e.: job creation;

8.1.h. An analysis and projection of materials that are expected to be diverted from the solid waste stream currently being landfilled and the cost and/or savings that are expected to directly result from the proposed project;

8.1.i. A description of the proposed project;

8.1.j. An estimated budget with justification;

8.1.k. Attested financial documents or complete federal tax returns for two years prior to the year in which the proposal is submitted. Local governments that have not had an audit or review in the year or fiscal year prior to the year in which the proposal is submitted shall be allowed to submit the most current two years of attested financial documents, provided that the most recent of those documents are no older than 24 months prior to the submission deadline date. Businesses or other entities that have been in existence less than two years shall submit a detailed business plan to be approved by the department;

8.1.l. A letter of receipt of proposal from the county or regional solid waste authority in which the proposed project shall be located, as required by section 9.2. of this rule;

8.1.m. A timeline graph representing the objectives to be completed and the approximate dates of completion;

8.1.n. A checklist in which the applicant indicates eligibility and completion of the proposal;

8.1.o. A narrative profile demonstrating the applicant’s past and current performance in recycling and operational methods;

8.1.p. All equipment specifications, provided by the seller and includes the seller’s name and the price of the equipment;

8.1.q. Identify markets able to handle the projected volumes of material to be collected;

8.1.r. The Drug Free Workplace Act of 1988, Title V-D Public Law 100-690, Federal Register, Volume 54, No. 19, and West Virginia Code § 60A-2-201 requires that all state governments, federal contractors, and federal and state grant recipients maintain a drug-free workplace. The Act is implemented through additions to the Debarment and Suspension regulations published in the Federal Register on January 31, 1989. The certification form shall be completed and accompany the grant proposal; and

8.1.s. Applicants requesting funding for a recycling coordinator/manager must include, as part of the grant proposal, a list of objectives to be achieved during the grant period and the methods of achieving those objectives.

W. Va. Code R. § 33-10-9 Submission Requirements

9.1. All applicants shall make a proposal to the department on prescribed forms as published by the department. All proposals shall meet submission requirements established by the department to be eligible for funding. Proposals shall be received by the Department on or before 5:00 p.m. on the first business day in July.

9.2. All applicants shall submit a copy of their proposal to the county or regional solid waste authority in which the proposed project is located.

9.3. Proposals received by the department after the submission deadline shall not be considered for funding.

W. Va. Code R. § 33-10-10 Departmental Reviews of Proposals

10.1. The department reserves the right to reject any and all proposals that do not meet eligibility and submission requirements established by the department and this rule at the department’s discretion.

10.2. The department shall review all proposals received on or before the submission deadline to ensure that all required forms, documents, and attachments have been completed and included in the proposal. The department may take action to verify that the information in the proposals is correct at the department’s discretion. If a proposal is found to be incomplete or incorrect, the department may, at its discretion, contact the applicant to remedy the error within the cure period designated by the Department. Incomplete or inaccurate proposals that have not been corrected by the applicant and received by the department on or before the end of the cure period shall not be considered for funding.

10.3. The department shall present all proposals meeting eligibility and submission requirements to the recycling assistance grant review committee for consideration.

W. Va. Code R. § 33-10-11 Recycling Assistance Fund Grant Review Committee

11.1. The recycling assistance grant review committee, shall be composed of the following: a representative of the municipal league, a representative of business or industry, and a representative from the solid waste industry, a member or representative of the Solid Waste Management Board, each to be appointed by the Secretary; the Director of the West Virginia Development Office; and the Secretary of the Department of Environmental Protection or any other person to whom the agency Secretary has delegated his or her authority or duties. For the purpose of conducting business, four (4) members of the recycling assistance grant review committee are required for a quorum. The Secretary or his or her designee may only vote to break tie votes of the committee. The committee shall consider each proposal and make a determination as to funding. The committee shall submit proposals recommended for funding to the Secretary of the Department of Environmental Protection for final approval and awarding.

11.2. Applicants shall be notified in writing, by the department, of approval or denial of a grant within a reasonable time after proposal award recommendations of the committee have been approved by the Secretary.

W. Va. Code R. § 33-10-12 Requirements of Grant Recipients

12.1. All recycling assistance grants are for a fourteen-month period beginning the first of January and ending the last day in February of the following year.

12.2. Unless a grant recipient specifically requests and can demonstrate a need for a larger portion of the awarded grant to initiate the project, the department shall disburse all grants on the following schedule: 30% at the time of grant award with subsequent payments of 30% to be made upon receipt of a quarterly report. The final payment shall be 10% and shall be withheld until receipt of the third quarterly report.

12.3. The grant recipient shall retain and make available upon request by the Department of Environmental Protection for a period of five years after the grant period, all financial records, supporting documents, statistical records, and all other records as they relate to the proposal, acceptance and use of the grant. The provisions of West Virginia Code § 12-4-14 apply to all recycling assistance grants. The grant recipient shall provide the department with a copy of the grant recipient’s independent audit report or sworn statement of expenditures, whichever may apply, that cover the entire grant period.

12.4. The grant recipient shall return any unexpended grant funds remaining as of March 1 of the following year to the West Virginia Department of Environmental Protection. If the grant recipient expends any grant funds on or after March 1 this shall be considered an unauthorized expenditure.

12.5. If, through any cause, the grant recipient fails to fulfill in a timely and proper manner its obligation as proposed in the grant proposal, and as accepted and approved by the department, the department shall terminate payment of the remaining grant funds. The grant recipient shall return any amount of the grant used for unauthorized expenditures. Authorized expenditures are those outlined in the original budget that was approved by the grant review committee.

12.6. The grant recipient shall comply with all federal, state and local laws, codes, ordinances, rules and regulations. The department may withdraw all funds from grant recipients who fail to comply with grant guidelines.

12.7. The grant recipient shall deposit the grant immediately upon receipt in a separate checking account. The department may waive this requirement for grant recipients who anticipate having a minimal number of expenditures from the grant during the entire grant period and can demonstrate a high level of accountability through proper internal controls.

12.8. The department shall consider requests made in writing for a change in budget only if the change does not materially significantly alter the original scope of the grant proposal approved by the grant review committee Conservative spending resulting in excess, changes in operational needs, and/or emergency events are examples of reasonable requests for changes in budget.

12.9. The grant recipient shall solicit a minimum of three verbal bids for all purchases which have an estimated value between five thousand dollars ($5,000) and ten thousand dollars ($10,000). The lowest bid meeting specifications shall be awarded the contract, unless the grantee receives approval from the Department to award based upon other criteria with valid justification as determined by the Department. Electronic bids are acceptable. Screen prints from internet sites in which the commodity or service is for sale and may be procured can substitute for a verbal bid. All bids must be recorded in the grant reports submitted to the Department and retained in the grant recipient’s file. Any attempts to segregate the project into sections having an estimated value of less than $5,000 may be cause for termination of the grant.

12.10. The grant recipient shall solicit written bids for all purchases having an estimated value of more than $10,000. All bids received prior to the bid opening deadline shall be reviewed equally and given proper consideration. The lowest bid meeting specifications shall be awarded the contract, unless the grantee receives approval from the Department to award based upon other criteria with valid justification as determined by the Department. All bids must be recorded in the required grant reports and retained in the grant recipient’s file. Any attempt to segregate the project into sections having an estimated value of less than $10,000 may be cause for termination of the grant.

12.10.a. The written bids shall be obtained by public notice as a Class II legal advertisement in compliance with the provision of West Virginia Code § 59-3-2. This notice shall be published by the grant recipient in the newspaper with the largest circulation serving the general area twice within fourteen days preceding the final date of submitting bids. The grant recipient shall submit all bid documentation and other evidence of compliance with these procedures for review and approval to the Department of Environmental Protection prior to accepting a bid.

12.10.b. Upon prior approval from the Department, alternative publication methods can be used in lieu of a newspaper Class II legal advertisement to obtain written bids when the alternative method renders a larger pool of competition. Examples of alternative methods may include, but are not limited to, official procurement websites for a city or county government.

12.10.c. Feasibility studies may be procured using a Best Value Procurement method. This method is used to acquire services where the specifications or scope of work may not be well defined, or cost is not the sole factor in determining the value. Best Value Procurement techniques such as Requests for Proposals (RFPs) can be used to solicit proposals from potential bidders, taking into consideration the vendor’s ability, resources, experience, and proposed methods to provide the required services. Grantees shall advertise RFP opportunities following the appropriate state or local competitive bidding process. The grant recipient shall submit all bid documentation, scoring criteria, and other evidence of compliance with these procedures for review and approval to the Department prior to award. All proposals must be retained in the grant recipient’s file.

12.10.d. The Department may waive or modify the bidding procedures to allow direct purchase of commodities and services identified to be non-competitive, and/or ineffective or impossible to bid. The grant recipient must submit a written request prior to the purchase with justification as to why competitive bids are not possible and receive written approval from the Department before proceeding. Examples include, but are not limited to, promotional and educational advertising, utilities, postage, and equipment maintenance requiring specific manufacturer service. Advertising may include: any promotional and educational advertisement placed directly with newspapers, trade magazines, internet publications, social media, or billboards; broadcast television and radio advertisements placed directly with the broadcaster or publisher; or participation fees for conferences. Advertising does not include any indirect placement, advertisements for bids, promotional items, or advertising consultant services. The grant recipient must continue to follow documentation requirements.

12.11. All grant recipients shall submit the title to equipment purchased with a grant to the West Virginia Department of Environmental Protection listing the West Virginia Department of Environmental Protection as first lienholder for the lien term. The lien shall apply to equipment purchased with the grant, in whole or part. The grant recipient shall assume the risk of loss and maintain adequate insurance on the equipment.

12.11.a. The department shall determine the lien period for each individual piece of equipment purchased with grant funds using the class-life depreciation schedules published by the Internal Revenue Service. If a piece of equipment is in question as to which class the equipment is to be placed in, the department shall make that determination; and

12.11.b. Public and private sector grants involving equipment shall have subsequent on-site inspections for the term specified.

12.12. Grant recipients shall submit a final report for approval on or before March 31 following the end of the grant period. The report shall include the following:

12.12.a. An evaluation of successes and failures encountered in implementing the original proposal’s work tasks;

12.12.b. An evaluation of the operating costs and community support for the project;

12.12.c. An analysis of the economic development achievements, such as job creation;

12.12.d. An analysis of the project including: total volume (tons) of waste diverted from the solid waste stream, the estimated cost per ton to recycle that volume, the estimated revenue per ton of recycled material, and the estimated savings from recycling in lieu of land filling; and

12.12.e. A complete accounting of the grant expended for the entire year.

12.13. A progress status report and expenditure statement shall be submitted by all grant recipients to the department every quarter containing a brief narrative of accomplishments (including individual volumes of material recycled), projections for the next report period and detailed grant expenditures for the past three months.

12.13.a. The grant recipient shall attach evidence of all grant expenditures to the quarterly reports, including but not limited to: copies of invoices, checks, titles, bids, and bank statements.

12.13.b. The department shall return an incomplete quarterly report to the grant recipient for completion. The department shall withhold any remaining grant payments until it receives a complete report as required in section 12.12. of this rule.

12.14. The department shall periodically conduct site visits with grant recipients. These visits shall be conducted to provide assistance, to review progress, to discuss any problems encountered in project implementation, or to review financial compliancy and clarify discrepancies found in reports the grant recipient has submitted to the department.

W. Va. Code R. § 33-10-13 Equal Employment Opportunity

13.1. To implement the recycling assistance grant, grantee shall agree:

13.1.a. That it will not discriminate against any employee or applicant for employment because of race, color, age, religion, sex, or national origin; and

13.1.b. That all solicitations or advertisements for employees placed by or on behalf of grantee shall state that all qualified applicants shall receive consideration for employment without regard to race, color, age, religion, sex, or national origin.

Series 11 Covered Electronic Devices Takeback Program

W. Va. Code R. § 33-11-1 General

1.1. Scope and Purpose -- This legislative rule establishes procedures for covered electronic device manufacturers to register their brands with the state and sets out guidelines for municipalities and counties to apply for and receive grants for the purpose of conducting electronic collection events and programs. The funding available for grants is established by the registration fee imposed on all covered electronic device manufacturers that conduct business in West Virginia.

1.2. Authority -- West Virginia Code §22-15A-29.

1.3. Filing Date -- April 15, 2010.

1.4. Effective Date -- April 15, 2010.

W. Va. Code R. § 33-11-2 Definitions

2.1. “Brand” means the name, symbol, logo, trademark, or other information that identifies a product rather than the components of the product.

2.2. “Computer” means a desktop, personal computer or laptop computer, including a computer monitor. Computer does not include a personal digital assistant device, computer peripheral such as a mouse or other similar pointing device, a printer or a detachable keyboard.

2.3. “Consumer” means, for the purpose of this rule, a natural person or resident, corporation, firm, partnership, agency, association, organization or society or any other entity that resides in West Virginia and has legally purchased or is in legal possession of a CED.

2.4. “County” means any county commission or solid waste authority within the state.

2.5. “Covered electronic device (CED)” means a television, computer or video display device with a screen that is greater than four inches measured diagonally. “Covered electronic device” does not include a video display device that is part of a motor vehicle or that is contained within a household appliance or commercial, industrial, or medical equipment.

2.6. “Department” means the Department of Environmental Protection.

2.7. “Manufacturer” means a person that is the brand owner of a covered electronic device or television sold or offered for sale in West Virginia by any means, including transactions conducted through retail sales outlets, catalogs or the internet.

2.8. “Municipality” means a community incorporated through the West Virginia Secretary of State’s Office.

2.9. “Person” means a natural person, corporation, firm, partnership, association or society and the plural as well as the singular.

2.10. “Recyclable Materials” means those materials that would otherwise become solid waste for disposal in a refuse disposal system and which may be collected, separated or processed and returned to the marketplace in the form of raw materials or products.

2.11. “Television” means any telecommunication system device that is designed to receive moving pictures and sound broadcasts over a distance and includes a television tuner or a video display device peripheral to a computer in which the display contains a television tuner.

2.12. “Secretary” means the Secretary of the Department of Environmental Protection.

2.13. “Video display device” means an electronic device with an output surface that displays or is capable of displaying moving graphical images or visual representations of images sequences or pictures that show a number of quickly changing images on a screen to create the illusion of motion. Video display device includes a device that is an integral part of the display and cannot easily be removed from the display by the consumer and that produces the moving images on the screen. A “video display device” may use a cathode-ray tube (CRT), liquid crystal display (LCD), gas plasma, digital light processing, other image projection technology or imaging display technologies.

2.14. Other definitions in West Virginia Code §22-15A-2 are adopted for use, where applicable, in this rule.

W. Va. Code R. § 33-11-3 Manufacturer Registration

3.1. The registration and fee requirements of this rule apply to manufacturers that manufactured an average of more than one thousand covered electronic devices per year in the three-year period immediately preceding the initial registration required by this section.

3.2. Manufacturers that sold or leased covered electronic devices in 2008, on or after June 6, 2008, shall register with the Secretary no later than January 1, 2009, using a registration form prescribed by the department.

3.3. Manufacturers commencing the sale or lease of covered electronic devices after December 31, 2008, shall register with the Secretary prior thereto. Registration shall be made on a form prescribed by the department.

3.4. All registrations, regardless of the date submitted, expire on December 31 of the registration year and shall in no case be effective for more than one year.

3.5. The registration form shall contain the following:

3.5.1. Legal name of the manufacturer;

3.5.2. Contact person regarding the registration;

3.5.3. Address of manufacturer;

3.5.4. Telephone number of manufacturer;

3.5.5. All brand names under which the manufacturer sells, leases, or offers for sale covered electronic devices or televisions in West Virginia;

3.5.6. Whether the manufacturer has implemented a takeback program for its covered electronic devices or televisions or both;

3.5.7. A toll free telephone number and website that the manufacturer has established to provide detailed information about the takeback program, if any, and the procedures for returning covered electronic devices;

3.5.8. The Secretary may request additional information necessary to further the goals of the program.

3.6. Any changes to the registration information during the year shall be reported to the department within thirty days of its occurrence.

3.7. Any registration that does not meet the requirements of this section will be considered incomplete. The manufacturer shall submit a revised registration within sixty days of being notified of the deficiency.

W. Va. Code R. § 33-11-4 Registration Fees

4.1. Annual registration fees shall be paid by manufacturers to the department. The amount of the fee shall be based on whether an approved covered electronic device takeback program has been implemented in West Virginia by the manufacturer. The fees are structured as follows:

Initial Registration:

Did not implement an approved program in WV the previous year $10,000 Initial Registration:

Did implement and maintain an approved program in WV the previous year $3,000 Subsequent Registration:

Did not implement an approved program in WV the previous year $5,000 Subsequent Registration:

Did implement and maintain an approved program in WV the previous year $500

4.2. Registration fees are due to the department no later than the first day of January of the year to which they apply and shall accompany the required registration form described in section 3.5. The registration fees shall be paid in full, are nonrefundable, and shall not be pro-rated for the year.

4.3. A program shall be considered implemented during the year for which the manufacturer has submitted a complete performance report approved by the department.

4.4. Notwithstanding the lack of a complete performance report, a manufacturer that demonstrates to the satisfaction of the department that a takeback program for its brands was implemented and maintained in West Virginia during 2008 shall be subject to the initial registration fee of $3,000.

W. Va. Code R. § 33-11-5 Performance Reports

5.1. All manufacturers that have implemented a covered electronic device takeback or recycling program shall submit a performance report to the department on or before February 15th detailing the programs methods and results for the previous year.

5.2. The department shall prescribe the annual performance report form to be used by manufacturers.

5.3. The department shall review all submitted performance reports and make a determination whether the program meets the minimum requirements of a takeback program.

5.4. The performance report shall include, at a minimum, the following information:

5.4.1. The total weight of covered electronic devices received by the program from West Virginia during the reporting year;

5.4.2. The total number of covered electronic devices from West Virginia that were recycled or refurbished and reused during the reporting year, either by actual count or by using average product weights;

5.4.3. A detailed description of the processes and methods used to collect, recycle or refurbish and reuse the covered electronic devices received from West Virginia;

5.4.4. Any significant changes to the program that the manufacturer plans to make in the current year;

5.4.5. Any additional information the Secretary deems appropriate to further the goals of the program.

W. Va. Code R. § 33-11-6 Required Elements of a Manufacturer’s Takeback Program

6.1. A manufacturer’s takeback program must meet the following requirements to be approved by the department:

6.1.1. The takeback program shall enable a consumer to recycle covered electronic devices without paying a separate recycling fee at the time of recycling or collection;

6.1.2. The takeback program shall implement a method of collecting covered electronic devices that have reached the end of their useful lives and are labeled with the manufacturer’s brand;

6.1.3. The takeback program shall implement a method of recycling, refurbishing or reusing the covered electronic devices collected or provide evidence that the recyclable materials were delivered to an electronic device recycling market;

6.1.4. The collection process of the covered electronic devices shall be reasonable, convenient, and available to the consumers of West Virginia and designed to meet the collection needs of those consumers.

6.1.4.a. Convenient systems of collection include mail-in recycling at no charge to the consumer, drop off centers, or collection events;

6.1.4.b. Manufacturers who use existing collection infrastructure for collecting covered electronic devices, such as public or private recycling centers and recycling organizations, or who establish a system of collection and recycling managed by a group of manufacturers, shall be deemed to meet the convenience requirement of this section.

6.1.5. The takeback program shall include information for the consumer on how and where to return the manufacturers covered electronic devices.

6.1.6. The takeback program shall include a method of maintaining a current and accurate record of all manufacturer’s covered electronic devices collected and recycled or refurbished and reused.

6.2. If more than one person is a manufacturer of a certain brand of covered electronic devices, any of those persons may assume responsibility for and satisfy the obligations of a manufacturer for that brand.

6.3. A takeback program implemented with the use of state grant funds, whether wholly or in part, shall not be considered a takeback program implemented by a manufacturer.

6.4. The department may require the takeback program to comply with any environmental management standards adopted, approved, or established by the United States Environmental Protection Agency that ensure safe and proper handling of electronic devices.

W. Va. Code R. § 33-11-7 Public List of Manufacturers

7.1. The department shall maintain a current list of registered covered electronic device manufacturers and their brands and shall publish the list on the internet to provide retailers access to the manufacturers authorized to sell or lease their products in West Virginia.

7.2. No manufacturer shall be considered registered that has not complied with all the requirements of this rule.

7.3. Retailers are responsible for reviewing the public list of manufacturers periodically to ensure the brands they are selling are registered.

W. Va. Code R. § 33-11-8 CED Recycling Grant Program

8.1. CED Recycling Grants are available to counties and municipalities for the purpose of establishing CED recycling or takeback programs, CED collection events, and CED recycling education programs.

8.2. CED Recycling Grants are limited to a maximum amount of $40,000.

8.3. Applications for CED Recycling Grants shall be submitted to the department on forms prescribed by the department.

8.4. CED Recycling Grants shall be awarded on a tiered matching basis. The first $20,000 of a grant shall not require the grantee to provide matching funds. Any amount over the first $20,000 of a grant shall be matched by the grantee on a dollar-to-dollar basis. (Example: A grant in the amount of $32,000 would require a $12,000 match from the grantee. The total grant of $32,000 less $20,000 equals $12,000. The grantee would be required to match the $12,000 for a total project cost of $44,000).

8.5. All matching funds provided by the grantee shall be actual funds expended from sources other than funds provided by the department. In-kind costs and estimated costs shall not be considered matching costs.

8.6. At least fifty percent of the monies credited to the Covered Electronic Device Takeback Fund in the previous fiscal year shall be used for grants for the current year.

8.7. Applications must be postmarked no later than August 31 for consideration in the next grant period.

W. Va. Code R. § 33-11-9 General Conditions Applicable to Grant Applications

9.1. The following general conditions apply to all applications for funding under the CED Recycling Grant Program:

9.1.1. The project shall be designed to affect a significant and measurable amount of covered electronic devices in the area to be served;

9.1.2. The project shall be designed to involve all or a substantial percentage of the residents located in the project area and should include a plan to provide public education regarding CED recycling.

W. Va. Code R. § 33-11-10 Authorized Uses of Grant

10.1. Authorized use of grant funds in an approved CED recycling program may include the following:

10.1.1. Operational costs incurred in the implementation of the program;

10.1.2. Costs associated with the production and distribution or placement of advertising in newspapers, radio, or elsewhere, such costs being related to the development and implementation of the program;

10.1.3. Purchase of equipment and supplies that will specifically serve to fulfill the program objectives;

10.1.4. Costs associated with promotional items that serve to create public awareness of the program;

10.1.5. Public informational and educational programs that increase public awareness or solicit public support for promoting citizen responsibility toward CED recycling;

10.1.6. Other relevant costs upon approval of the department.

W. Va. Code R. § 33-11-11 Unauthorized Uses of a Grant

11.1. The grantee shall not use a grant to replace funds currently budgeted or used to maintain and operate a CED recycling program during the grant period.

11.2. The grantee shall not use a grant for expenditures not substantially related to CED recycling.

11.3. Grant funds shall not be used for the following:

11.3.1. Land acquisitions;

11.3.2. Office furniture or equipment, or to decorate or renovate an office;

11.3.3. Entertainment costs;

11.3.4. Alcoholic beverages, meals, and gratuities;

11.3.5. Beautification costs;

11.3.6. Any type of lobbying expenses;

11.3.7. Landfill operations or management.

W. Va. Code R. § 33-11-12 Departmental Review of Applications

12.1. The department may reject any and all applications that do not meet eligibility and submission requirements established by the department and this rule.

12.2. If the total request for funding for the year exceeds the amount of funding available for grants, the department may reject applicants that received a CED recycling grant the previous year.

12.3. The department shall review all applications and submit those applications recommended for funding to the Secretary for final approval and awarding.

12.4. Applicants shall be notified in writing of approval or denial of a grant within a reasonable time after award recommendations have been approved by the Secretary.

W. Va. Code R. § 33-11-13 Requirements of a Grant Recipient

13.1. All CED recycling grants are for the twelve-month period beginning the first day of October and ending the last day of September of the following year.

13.2. Grant funds will be disbursed at the time a completed grant agreement and all required documents necessary to initiate the grant are received by the department.

13.3. The grantee shall retain and make available upon request by the department, for a period of five years, all financial records, supporting documents, statistical records, and all other records and data as they relate to the application, acceptance and use of the grant.

13.4. The grantee shall deposit the grant immediately upon receipt in a separate account.

13.5. If, through any cause, the grantee fails to fulfill in a timely and proper manner the obligations imposed in the grant agreement or violates any provision of this rule, the department may terminate the grant and the grantee shall immediately return the grant, in its entirety, to the department.

13.6. The grantee shall comply with all federal, state, and local laws, codes, ordinances, rules and regulations.

13.7. The grantee shall solicit sealed bids, by public notice as a Class II legal advertisement in compliance with the provisions of West Virginia Code §59-3-2, for all purchases that have an estimated cost of five thousand dollars or more. Any attempt to segregate the purchase into sections to circumvent the bidding requirement shall be cause for termination of the grant.

13.8. The grantee shall reimburse the department any amount of the grant used for unauthorized expenditures. Authorized expenditures are those outlined in the budget of the approved application and that have sufficient supporting documentation.

13.9. The grantee shall return any unexpended grant funds remaining at the end of the grant period to the department. If the grantee expends any grant funds after the grant period specified on the grant agreement, those expenditures shall be considered unauthorized. 13.10 The grantee shall submit a final report to the department within 30 days following the last day of the grant period. The report shall contain:

13.10.1. A complete accounting of the grant expended during the period;

13.10.2. Documentation supporting all grant expenditures, including without limitation, invoices, checks, titles and purchase orders;

13.10.3. All bank statements of the grant account;

13.10.4. All bidding information for expenditures costing $5,000 or greater, including copies of the legal ads, bids received, and authorization to purchase;

13.10.5. An evaluation of the total operating costs and community support for the project;

13.10.6. An evaluation of successes and failures encountered in implementing the original application’s work tasks;

13.10.7. Program information as described in section 5.4 of this rule; and

13.10.8. An analysis of the project including: the estimated cost per ton to recycle that volume and the estimated revenue per ton of recycled material.

13.11. The department shall return an incomplete report to the grantee for completion. A grantee shall resubmit a completed report within thirty days of notification that the report is incomplete.

W. Va. Code R. § 33-11-14 Department Site Visits

14.1. The department shall periodically conduct site visits with grantees. These visits shall be conducted to provide assistance, to review progress, to discuss any problems encountered in project implementation, or to review financial compliance and clarify any discrepancies found in the final report.

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33CSR11

Series 12 Covered Electronic Device Recycling Rule

W. Va. Code R. § 33-12-1 General

1.1. Scope. – This legislative rule establishes requirements for the proper storage, handling, recycling, and disposal of covered electronic devices.

1.2. Authority. – W. Va. Code § 22-15A-22(d) and (f).

1.3. Filing Date. – May 10, 2013

1.4. Effective Date. – July 1, 2013

W. Va. Code R. § 33-12-2 Definitions

All definitions in W. Va. Code §§ 22-15-2 and 22-15A-2 are fully incorporated into this rule by reference. The following definitions apply to this rule unless otherwise specified or unless the context in which used clearly requires a different meaning.

2.1. “Covered Electronic Device” or CED means a television, computer or video display device with a screen that is greater than four inches measured diagonally. "Covered electronic device" does not include a video display device that is part of a motor vehicle or that is contained within a household appliance or commercial, industrial or medical equipment.

2.2. “Computer” means a desktop, personal computer or laptop computer, including the computer monitor. Computer does not include a personal digital assistant device, computer peripheral devices such as a mouse or other similar pointing device, a printer or a detachable keyboard.

2.3. “Television” means any telecommunication system device that can receive moving pictures and sound broadcast over a distance and includes a television tuner or a video display device peripheral to a computer in which the display contains a television tuner.

2.4. "Video Display Device" means an electronic device with an output surface that displays or is capable of displaying moving graphical images or visual representations of image sequences or pictures that show a number of quickly changing images on a screen to create the illusion of motion. Video display device includes a device that is an integral part of the display and cannot easily be removed from the display by the consumer and that produces the moving image on the screen. A “video display device” may use a cathode-ray tube (CRT), liquid crystal display (LCD), gas plasma, digital light processing, other image-projection technology or imaging display technologies.

2.5. “Cathode Ray Tube” means vacuum tubes, made primarily of glass, which constitute the video display components of, among other things, televisions and computer monitors.

2.6. “Covered Electronic Device Collector” means any person that accepts and stores CEDs for the purpose of sending them to an electronics recycling facility.

W. Va. Code R. § 33-12-3 General Requirements Governing Covered Electronic Devices

3.1. Certain Disposal Prohibited. – After January 1, 2011, it is unlawful to deposit CEDs in a solid waste landfill in West Virginia. CEDs must be delivered to a commercial solid waste facility or to a collection or recycling facility authorized to take them by the laws of the State of West Virginia or of the state where the collection or recycling facility is located.

3.2. Certain Disposal Allowed. – Solid waste landfills shall continue to accept for disposal all electronic devices that are not specifically exempted from landfill disposal by this rule.

3.3. Commercial Solid Waste Facilities Required to Accept Covered Electronic Devices

3.3.a. Commercial solid waste facilities shall accept CEDs from any person and may charge a reasonable fee for acceptance of the same, in accordance with the rates and charges established by the Public Service Commission pursuant to W. Va. Code § 24-1-1, et seq. CEDs accepted by the commercial solid waste facility shall not be disposed of in a landfill except as allowed in subsection 3.4 of this rule.

3.3.b. CEDs collected by commercial solid waste facilities or CED collectors shall be stored and handled in compliance with the requirements of section 4 of this rule.

3.3.b. CEDs collected by commercial solid waste facilities are exempt from the calculation of monthly tonnage limits and from any solid waste disposal assessment fees.

3.4. Exception to Prohibiting Covered Electronic Devices from Disposal in Landfills. – Commercial solid waste landfills may only dispose of CEDs generated from Department of Environmental Protection (DEP) remediation events when the DEP has determined that there is no other reasonable disposal alternative available.

3.4.a. CEDs accepted from DEP as a result of DEP remediation events that are permanently disposed of in a landfill are not exempt from the calculation of monthly tonnage limits or any solid waste disposal assessment fees.

3.4.b. DEP may negotiate with a solid waste landfill for rates and charges for the disposal of CEDs regardless of the rates and charges established by the Public Service Commission.

W. Va. Code R. § 33-12-4 Covered Electronic Device Storage, Handling, Recycling, and Disposal Requirements

4.1. General Operational Requirements. Unless otherwise approved by the Secretary in writing, all commercial solid waste landfills and CED collectors shall conform to the following operational requirements:

4.1.a. The facility shall be secure from theft, vandalism, fire, and unauthorized access.

4.1.b. The facility shall be designed to receive, process, and store CEDs and any components thereof in a manner that prevents surface water, stormwater or groundwater contamination. 4.1.b.1 Within one year after the effective date of this rule, receiving, storage, operations, and shipping areas must be under a roof or in an enclosed area sufficient to prevent stormwater contamination. 4.1.b.2 Receiving, storage, operations, and shipment areas must have an impermeable surface sufficient to prevent surface water and groundwater contamination.

4.1.c. The facility must manage all cathode ray tubes (CRTs) in a manner that prevents breakage and ship them intact to a designated recycling facility. All CRTs, regardless of condition (broken, intact or otherwise separated from the CED), must be accepted by the facility and properly managed for recycling. Any broken CRTs shall be handled as described in subdivision 4.1.e below.

4.1.d. If circuit boards are removed from CEDs they must be removed, stored, and shipped to the recycler as an intact or whole circuit board. Components removed from a whole or intact circuit board are considered newly generated waste and may be subject to handling, storage, and shipment in accordance with the West Virginia Hazardous Waste Management Act, W. Va. Code § 22-18-1, et seq., and any rules promulgated thereunder.

4.1.e. The facility shall immediately clean up any broken CRTs from a CED and place all such waste in a container that is closed, structurally sound, compatible with the CRTs, and capable of preventing leakage, spillage or releases of broken CRTs, glass particles or other hazardous constituents from the broken CRTs to the environment. As soon as possible, the facility shall package and ship broken CRTs to a designated recycling facility.

4.1.f. The facility shall not shred, crush, heat or otherwise treat CEDs or any component thereof and shall not break the CRT in any CED. A facility may disassemble CEDs for the sole purpose of marketing, reselling, reusing or recycling components thereof.

4.1.g. The facility shall clearly label or mark each CED or container, package or pallet containing CEDs with one of the following phrases: “Universal Waste – Covered Electronic Devices” or “Waste Covered Electronic Devices” or “Used Covered Electronic Devices.”

4.1.h. The facility shall determine whether all CEDs and any component thereof destined for disposal meet the definition of “hazardous waste” as defined in W. Va. Code § 22-18-3(6). Any CED or component thereof that meets the definition of hazardous waste shall be stored, managed, handled, and disposed of in accordance with the West Virginia Hazardous Waste Management Act, W. Va. Code § 22-18-1, et seq., and the rules promulgated thereunder.

4.2. Annual Reporting Requirements. – Commercial solid waste landfills and CED collectors shall submit annual reports to the Secretary by December 31 of each year on forms provided by or acceptable to the Secretary. The report shall include, at a minimum:

4.2.a. The date, quantity, and origin of CEDs received at the facility;

4.2.b. The quantity or tonnage or CEDs processed at the facility;

4.2.c. The quantity or tonnage of CEDs stored at the facility;

4.2.d. Entities contracting for CED recycling services and dates on which those services were provided;

4.2.e. The name, address, telephone number, and certificated motor carrier identification number of all transporters that transport CEDs to and from the facility, including the quantity or tonnage of CEDs so transported; and

4.2.f. A description of any theft, vandalism, fire, unauthorized access or environmental problems or changes in the facility’s operational procedures for handling CEDs. With regard to each of these problems, describe the steps taken to prevent a recurrence.

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Series 13 Reclamation of Abandoned and Dilapidated Properties Grant Program

W. Va. Code R. § 33-13-1 General

1.1. Scope and Purpose - This legislative rule establishes procedures and sets out guidelines for county commissions, municipalities, urban renewal authorities created pursuant to West Virginia Code § 16-18-1 et seq., and land reuse agencies and municipal land banks created pursuant to West Virginia Code § 31-18E-1 et seq. to apply for and receive grants for the purpose of remediating abandoned and dilapidated structures in their communities by demolishing or deconstructing them.

1.2. Authority – W. Va. Code § 22-15A-30

1.3. Filing Date. – May 1, 2023

1.4. Effective Date. – May 1, 2023

W. Va. Code R. § 33-13-2 Definitions

2.1. “Abandoned” means a code enforcement inspection has determined that the property is not habitable and the owner has taken no corrective actions within 90 days of notification of the deficiencies.

2.2. “Applicant” means county commissions, municipalities, urban renewal authorities created pursuant to West Virginia Code § 16-18-1 et seq., and land reuse agencies and municipal land banks created pursuant to West Virginia Code § 31-18E-1 et seq.

2.3. “Application” means the written request submitted to the Secretary by the applicant on forms provided by the Secretary.

2.4. “Asbestos” means any of several minerals that readily separate into long flexible fibers, that cause asbestosis and have been implicated as causes of certain cancers, and that have been used especially formerly as fireproof insulating materials.

2.5. “Department” means the West Virginia Department of Environmental Protection.

2.6. “Dilapidated” means a structure that has decayed, deteriorated, or fallen into partial ruin especially through neglect or misuse.

2.7. “Grant” means funds allocated to an approved program applicant by the Department pursuant to West Virginia Code § 22-15A-30.

2.8. “Grantee” means the entity to whom the grant has been awarded.

2.9. “Grant Period” means the 12 months following approval of a grant application and execution of a grant agreement.

2.10. “Municipality” means a community incorporated through the West Virginia Secretary of State’s Office.

2.11. “Secretary” means the Secretary of the Department of Environmental Protection.

W. Va. Code R. § 33-13-3 Reclamation of Abandoned and Dilapidated Properties (RADP) Grant Program

3.1. RADP Grants are available to county commissions, municipalities, urban renewal authorities created pursuant to West Virginia Code § 16-18-1 et seq., and land reuse agencies and municipal land banks created pursuant to West Virginia Code § 31-18E-1 et seq. for the purpose of remediating abandoned and dilapidated structures in their communities by demolishing or deconstructing them.

3.2. Applications for RADP Grants shall be submitted through the West Virginia Vendor Self Service (VSS) portal on forms prescribed by the department.

3.3. The RADP Grants will be awarded for a period of one year from the date of the grant agreement. One six-month extension may be granted for good cause if a request is submitted in writing to the Secretary before the expiration of the 12-month grant period. Subsequent grants may be obtained by a grantee through submission of a new application submitted through the VSS portal to the department, so long as all the objectives of the current grant have been completed to the satisfaction of the Secretary.

W. Va. Code R. § 33-13-4 General Conditions Applicable to Grant Applications

4.1. The following general conditions apply to all applications for funding under the RADP Grant Program:

4.1.a. This project shall provide environmental improvement through decreasing imminent danger, risk to public health and welfare and negative visibility of structures.

4.1.b. This project may provide for redevelopment of property or new development initiatives. 4.1c. This project shall give priority to structures near highly visible traffic areas, tourism corridors, and/or common open space.

W. Va. Code R. § 33-13-5 Authorized Uses of Grant

5.1. Authorized use of grants funds in an approved RADP Grant Program may include the following:

5.1.a. Asbestos testing;

5.1.b. Asbestos removal prior to demolition;

5.1.c. Demolition of Structure;

5.1.d. Costs associated with structure disposal at a permitted landfill or materials recovery center;

5.1.e. Site stabilization;

5.1.f. Legal costs associated with securing properties for demolition; and

5.1.g. Other relevant costs upon approval of the department.

W. Va. Code R. § 33-13-6 Unauthorized Uses of Grant

6.1. The grantee shall not use a grant to replace funds currently budgeted to demolish or deconstruct an abandoned or dilapidated structure.

6.2. The grantee shall not use a grant for expenditures not related to demolishing or deconstructing an abandoned or dilapidated structure.

6.3. Grant funds shall not be used for the following:

6.3.a. Land acquisitions;

6.3.b. Environmental testing of soil conditions;

6.3.c. Administrative costs;

6.3.d. Beautification costs that are not related to site stabilization;

6.3.e. Office equipment;

6.3.f. Entertainment costs;

6.3.g. Alcoholic beverages, meals and gratuities;

6.3.h. Any type of lobbying expenses; or

6.3.i. Landfill operations or management.

W. Va. Code R. § 33-13-7 Department Review of Applications

7.1. The department may reject all applications that do not meet eligibility and submission requirements established by the department and this rule.

7.2. The department may partially award or reject applications based on available funding.

7.3. The department shall review all applications and submit those applications recommended for funding to the Secretary for approval and the Governor for final approval.

7.4. Applicants shall be notified in writing of approval or denial of a grant within a reasonable time after award recommendations have received final approval by the Governor.

W. Va. Code R. § 33-13-8 Requirements of a Grant Recipient

8.1. Grant funding will be disbursed at the time of receipt of invoices and all other required information by the department for approved expenditures on at least a 30-day rolling basis.

8.2. The grantee shall retain and make available upon request by the department, for a period of five years, all financial records, supporting documents, statistical records, and all other records and data as they relate to the application, acceptance and use of the grant.

8.3. If, through any cause, the grantee fails to fulfill in a timely and proper manner the obligations imposed in the grant agreement or violates any provisions of this rule, the department shall terminate the grant and the grantee shall immediately return any unspent funds of the grant to the department. The department may file a civil action in the Circuit Court of Kanawha County to recoup grant funds that are improperly spent.

8.4. The grantee shall comply with all federal, state, and local laws, codes, ordinances, rules and regulations.

8.5. All bids must be solicited and submitted in accordance with West Virginia procurement and contract bidding statutes and legislative rules.

8.6. The grantee shall submit a final report to the department within 30 days following the last day of the grant period. The report shall contain:

8.6.a. A complete accounting of the grant expended during the period;

8.6.b. Documentation supporting all grant expenditures, including without limitation, invoices, checks, and bank statements relating to the account into which grant funds are placed;

8.6.c. Documentation supporting demolition of structures required by the department;

8.6.d. Documentation evidencing site of waste disposal;

8.6.e. An accounting of the total demolition costs and community support for the project;

8.6.f. A qualitative evaluation of success and/or failures encountered in implementing the original application’s requests;

8.6.g. The department shall return an incomplete report to the grantee for completion. A grantee shall resubmit a completed report within 30 days of notification that the report is incomplete. Failure to comply with reporting requirements may result in the grantee’s ineligibility for future grants related to the RADP Grant Program.

W. Va. Code R. § 33-13-9 Department Site Visits

9.1. The department may periodically conduct site visits with grantees. These visits shall be conducted to provide assistance, to review progress, to discuss problems encountered in project implementation, or to review all compliances with federal, state, and local laws, codes, ordinances, rules and regulations.

W. Va. Code R. § 33-13-10 Unexpended Funds

10.1. All committed grant funding that is unexpended at the end of the grant period shall remain with the RADP Program.

Series 20 Hazardous Waste Management System

W. Va. Code R. § 33-20-1 General

1.1. Scope. -- This rule establishes and adopts a program of regulation for the generation, treatment, storage, and disposal of hazardous waste to the extent necessary for the protection of the public health and safety and the environment.

1.2. Authority. -- W. Va. Code § 22-18-6.

1.3. Filing Date. -- March 03, 2026.

1.4. Effective Date. -- March 03, 2026.

1.5. Sunset Provision. -- This rule does not sunset.

1.6. Incorporation by Reference. -- Whenever either federal statutes or regulations or State statutes or rules are incorporated by reference into this rule, the reference is to that statute or regulation in effect on February 10, 2025, unless otherwise noted in the text of this rule. This incorporation by reference is not intended to replace or abrogate federal authorities granted the Resource Conservation and Recovery Act.

1.6.1. In applying the federal requirements incorporated by reference throughout this rule, the following exceptions or substitutions apply, unless the context clearly requires otherwise or the referenced rule cannot be delegated to the State:

1.6.1.a. “West Virginia Department of Environmental Protection” will be substituted for “Environmental Protection Agency”.

1.6.1.b. “Secretary of the West Virginia Department of Environmental Protection” will be substituted for “Administrator”, “Regional Administrator”, and “Director”. In those sections that are not adopted by reference or that are not delegable to the State, “Administrator”, “Regional Administrator”, and “Director” will have the meaning defined in 40 C.F.R. § 260.10.

1.6.1.c. Whenever the regulations require publication in the “Federal Register” compliance will be accomplished by publication in the “West Virginia Register”, a part of the “State Register” created pursuant to the provisions of W. Va. Code § 29A-2-2 for those areas applicable and delegable to the state.

1.6.1.d. Whenever in the federal regulation reference is made to the Resource Conservation and Recovery Act (42 U.S.C. § 6930), the reference is to section 4 of this rule. The notification requirements of the Resource Conservation and Recovery (42 U.S.C. §3010) remain in effect and will be satisfied by compliance with section 4 of this rule.

1.7. This rule references the provisions of the West Virginia Department of Environmental Protection, Division of Air Quality rule, 45CSR25, “Control of Air Pollution from Hazardous Waste Treatment, Storage and Disposal Facilities” that is in effect on the date that this rule becomes effective.

W. Va. Code R. § 33-20-2 Hazardous Waste Management System: General

2.1. 40 C.F.R. Part 260. – The provisions of 40 C.F.R. § 260 are hereby adopted and incorporated by reference with the modifications, exceptions, and additions set forth in this section.

2.1.1. The definitions of terms used in this rule will have the meaning ascribed to them in 40 C.F.R. §§ 260, 261, 262, 263, 264, 265, 266, 267, 268, 270, 273, and 279 with the exceptions, modifications, and additions set forth in this section.

2.1.1.a. “Full regulation” means those rules applicable to generators of greater than 1,000 kilograms of non-acutely hazardous waste in a calendar month and/or those generators that treat, store or dispose of hazardous waste at the facility.

2.1.1.b. “Stage” or “staging” means the temporary placement of off-site generated recyclable materials within a recycling facility for a period of time no longer than three days. Placement of recyclable materials for longer than three days is considered “storage”.

2.1.1.c. In all matters related to implementation of the West Virginia Hazardous Waste Management Act and the rules promulgated thereunder, the term “conditionally exempt small quantity generator” shall have the same meaning as the term “very small quantity generator” as defined in 40 CFR § 260.10.

2.2. 40 C.F.R. §260.2. – The provisions of 40 C.F.R. §§ 260.2(a) and (b) are excepted from incorporation by reference herein. Availability of information provided under this rule is controlled by the provisions of W. Va. Code § 22-18-12.

2.3. 40 C.F.R. § 260.21(d). – The provisions of 40 C.F.R. § 260.21(d) are excepted from incorporation by reference in this rule.

2.4. Petitions for Waste Exclusions.

2.4.1. Any person seeking to exclude a waste at a particular generating facility from 40 C.F.R. § 261.3 or 40 C.F.R. part 261, Subpart D, as incorporated by this rule, may petition the Secretary for an exclusion following the procedures established in 40 C.F.R. § 260.20 and 40 C.F.R. § 260.22. The Secretary will utilize EPA guidance in evaluating delisting petitions.

2.4.2. An initial non-refundable fee of $1,000.00 shall accompany all petitions submitted under this rule. The petitioner shall execute an agreement with the Secretary providing for the recovery of all reasonable costs incurred by the Department of Environmental Protection attributable to the review and investigation of the petition in excess of the initial fee submitted with the petition.

2.4.2.a. Recoverable costs will be determined by the number of hours worked under the agreement by the primary Department of Environmental Protection employee multiplied by 2.5 times the hourly rate of that employee and then adding direct expenses incurred by that employee. Costs related to independent contractors retained by the Department of Environmental Protection to assist in the review and investigation of petitions will be included as direct expenses.

2.4.2.b. Within 30 calendar days of receiving a petition under this section, the Department shall send the petitioner an itemized list of estimated costs it expects to incur as a result of reviewing and investigating the petition. The list will include anticipated outside contractor costs.

2.4.2.c. If, upon review of the itemized list of estimated costs submitted by the Department, the petitioner determines not to continue the petition process, the petitioner, if he wishes to withdraw the petition, shall submit a certified letter to the Secretary withdrawing the petition. If the letter is submitted within ten (10) days of the date of receipt of the Department’s list of estimated costs, the petitioner will not be liable for any costs incurred in excess of the initial application fee.

2.4.3. Where the Administrator of the EPA has granted a petition to exclude hazardous waste from 40 C.F.R. § 261.3 or 40 C.F.R. part 261, Subpart D, pursuant to 40 C.F.R. § 260.22, the Secretary shall accept the determination and amend this rule accordingly, provided:

2.4.3.a. Petitioner submits a copy of the petition submitted to the Administrator, including all demonstrative information, and a copy of the Administrator’s approval granting the exclusion pursuant to 40 C.F.R. § 260.20(e); and

2.4.3.b. No scientifically supportable reasons for denying the petition are advanced that had not been presented to the Administrator.

2.5. Petitions to amend the regulations to include additional wastes as universal wastes.

2.5.1. Persons desiring to include a waste as a universal waste shall petition the Secretary for an inclusion after having received approval from the Administrator of the Environmental Protection Agency. The petition will include:

2.5.1.a. A copy of the petition submitted to the Administrator of the Environmental Protection Agency pursuant to 40 C.F.R. § 260.23, including all demonstration information;

2.5.1.b. A copy of the Administrator’s approval granting the petition under 40 C.F.R. § 260.23 and 40 C.F.R. § 260.20 and 40 C.F.R. Part 273; and

2.5.1.c. Any additional information that may be required for the Secretary to evaluate the petition.

2.5.2. Within 120 days of the filing of the petition, the Secretary shall decide whether to approve or to deny the petition and so advise the petitioner. If the Secretary denies the petition is made, he or she shall notify the petitioner of the action in writing, setting forth the reasons therefor.

2.5.3. The Secretary shall not deny a petition to include a waste as a universal waste that has been approved by the Administrator, unless scientifically supportable reasons for the denial are advanced that had not been presented to the Administrator.

2.5.4. Any person may petition the Secretary to include a waste as a universal waste as follows:

2.5.4.a. Submit a petition to the Secretary demonstrating that regulation under the universal waste regulations of 40 C.F.R. Part 273 is appropriate for the waste or category of waste, will improve management practices for the waste or category of waste, and will improve implementation of the Hazardous Waste Program. The petition shall also include information required by 40 C.F.R. § 260.20(b) and include as many of the factors listed in 40 C.F.R. § 273.81 as are appropriate for the waste or category of waste addressed in the petition.

2.5.4.b. The Secretary shall grant or deny a petition using the factors listed in 40 C.F.R. § 273.81. The decision will be based on the weight of evidence showing that regulation under 40 C.F.R. Part 273 is appropriate for the waste or category of waste, will improve management practices for the waste or category of waste, and will improve implementation of the Hazardous Waste Program.

2.5.4.c. The decision of the Secretary will be in writing and state the reasons to either grant or deny the petition. Any petitioner aggrieved by the decision of the Secretary may appeal the decision to the Environmental Quality Board in accordance with the provisions of W. Va. Code § 22-18-20.

W. Va. Code R. § 33-20-3 Identification and Listing of Hazardous Waste

3.1. 40 C.F.R. Part 261. – The provisions of 40 C.F.R. Part 261 are hereby adopted and incorporated by reference with the modifications, exceptions, and additions set forth in this section.

3.1.1. In order for a mixture of a waste and one or more hazardous wastes identified in 40 C.F.R. § 261.3(a)(2)(iv) to be exempt from the definition of hazardous waste, the owner or operator shall comply with the following:

3.1.1.a. Provide a certification in writing to the Secretary that groundwater monitoring that either complies with 40 C.F.R. Part 265, Subpart F or that is agency approved is or will be in place at the wastewater treatment facility identified in 40 C.F.R. § 261.3(a)(2)(iv). The certification shall include a time schedule for the installation of groundwater monitoring. This requirement does not apply to wastewater treatment units or containers.

3.1.1.b. Before claiming an exemption, the owner or operator of each wastewater treatment facility receiving mixtures of wastes under 40 C.F.R. § 261.3(a)(2)(iv) shall notify the Secretary of the receipt of the wastes on a form prescribed by the Secretary.

3.1.1.c. Annually submit to the Secretary a list of hazardous wastes that are expected to be present in the mixture to be exempted.

W. Va. Code R. § 33-20-4 Notification of Hazardous Waste Activity Regulations

4.1. Applicability. – Pursuant to 40 C.F.R. §262.18 any person engaging in any activity involving hazardous waste in the State of West Virginia shall notify the Secretary of those activities when they begin, unless those activities are exempted from the requirements of this rule.

4.2. Notification. Any person who notified EPA of its hazardous waste activities in the State of West Virginia shall provide a copy of that notification to the Secretary.

4.2.1. Any person exempted from the federal notification requirements as specified in 40 C.F.R. §§ 261.6(a)(2) and (3) and 262.14, remains subject to West Virginia notification requirements, and shall notify the Secretary in writing of hazardous waste activities on the date of initiation of those activities. Notification may be accomplished by using EPA Form 8700-12 or by providing the same information required by EPA Form 8700-12 in any other manner selected by the notifier.

4.2.2. One notification form is required for each generator.

4.2.3. A notification form is required for each storage, treatment, disposal or other facility. However, if one facility site includes more than one storage, treatment or disposal activity, only one notification form for the entire facility site is required.

4.2.4. Generators that store, treat or dispose of hazardous waste on-site shall file a notification form for generation activities, as well as storage, treatment, and disposal activities, unless those activities are exempted from the requirements of this rule.

W. Va. Code R. § 33-20-5 Standards Applicable to Generators of Hazardous Waste

5.1. 40 C.F.R. Part 262. – The provisions of 40 C.F.R. Part 262 are hereby adopted and incorporated by reference with the modifications, exceptions, and additions contained in this section.

5.2. 40 C.F.R. §§ 262.10(g)(1) and 262.10 (g)(2). – The provisions of 40 C.F.R. §§ 262.10(g)(1) and 262.10 (g)(2) will be excepted from incorporation.

5.2.1. A person who generates a hazardous waste as defined by 40 C.F.R. Part 261 is subject to the compliance requirements and penalties prescribed in W. Va. Code § 22-18-1, et seq. if he or she does not comply with the requirements of this rule. This rule in no way abrogates the enforcement authority of the Resource Conservation and Recovery Act.

5.2.2. All references to 40 C.F.R. § 262.10(g) will be deemed references to subsection 5.2 of this rule and its subdivisions, as appropriate.

5.3. The provisions of 40 C.F.R. 262.14 (a)(5)(iv) and (v) are excepted from incorporation by reference.

5.4. 40 C.F.R. Part 262, Subpart H. – The provisions of 40 C.F.R. Part 262, Subpart H -- Transboundary Movements of Hazardous Waste for Recovery or Disposal are hereby adopted and incorporated by reference. The substitution of terms in subdivision 1.6.1 above does not apply to the provisions of this subsection. In addition to the requirements contained therein, any person subject to the provisions of Subpart H shall file with the Secretary copies of all documentation, manifests, exception reports, annual reports or records submitted to EPA, the Administrator or the Regional Administrator as required by and within the time frames set forth in subpart H.

W. Va. Code R. § 33-20-6 Standards Applicable to Transporters of Hazardous Waste

6.1. 40 C.F.R. Part 263. – The provisions of 40 C.F.R. Part 263 are hereby adopted and incorporated by reference, insofar as those regulations relate to the transportation of hazardous waste by air and water.

6.2. Transportation of hazardous waste by railroad, roads, and highways is regulated by the West Virginia Public Service Commission rules, “Rules and Regulations Governing the Transportation of Hazardous Waste by Rail,”150CSR11. The use of the state highways for the transportation of hazardous waste is also regulated by the West Virginia Division of Highways at 157CSR7, “Transportation of Hazardous Wastes upon the Roads and Highways.”

W. Va. Code R. § 33-20-7 Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities

7.1. 45CSR25, Division of Air Quality. – The standards in this section apply to owners and operators of all facilities that treat, store or dispose of hazardous waste, except as otherwise provided by law. In addition to the standards in section 7 of this rule, 45CSR25, “Control of Air Pollution from Hazardous Waste Treatment, Storage and Disposal Facilities” applies to hazardous waste management facilities that may emit hazardous waste or the constituents thereof into the atmosphere, including incineration facilities, except as otherwise provided by law. For purposes of this section, the following persons are considered to be incinerating hazardous waste:

7.1.1. Owners or operators of hazardous waste incinerators; and

7.1.2. Owners or operators of boilers or industrial furnaces used to destroy wastes.

7.2. 40 C.F.R. Part 264. – The provisions of 40 C.F.R. Part 264 are hereby adopted and incorporated by reference with the modifications, exceptions, and additions set forth in this section.

7.3. Required Receipt of Identical Notification. – The provisions of 40 C.F.R. §§ 264.12(a)(1) and (2) are retained by the Environmental Protection Agency; however, the Secretary shall receive identical notification.

7.4. Releases from Solid Waste Management Units. – The provisions of 40 C.F.R. Part 264, Subpart F - Releases from Solid Waste Management Units are incorporated by reference with the following modifications, exceptions, and additions.

7.4.1. For purposes of 40 C.F.R. § 264.92, reference to the “Regional Administrator” will be to the Secretary of the Department of Environmental Protection. The Secretary establishes groundwater protection standards pursuant to the authority granted to the Secretary in W. Va. Code § 22-12-4.

7.4.2. For purposes of 40 C.F.R. § 264.94 and subparagraphs thereof, the agency rule on groundwater protection standards, 47CSR12, will apply as required pursuant to the authority granted the Secretary in W. Va. Code § 22-12-4.

7.4.3. The provisions of 40 C.F.R. § 264.99(g) are incorporated by reference with the following modifications:

7.4.3.a. The Secretary shall specify in the facility permit the frequencies for collecting samples required under 40 C.F.R. § 264.99(g). This frequency shall not be less than once annually.

7.5. Financial Requirement. – The provisions of 40 C.F.R. Part 264, Subpart H - Financial Requirements are adopted and incorporated by reference with the following modifications:

7.5.1. The provisions of 40 C.F.R. §§ 264.149 and 264.150 are excepted from incorporation by reference.

7.6. Provisions Relating to Incinerators. – The provisions of 40 C.F.R. §§ 264.341, 264.342, 264.343, 264.344, 264.345, and 264.347(a) relating to incinerators are excepted from incorporation by reference. Consult the rules of the Division of Air Quality regarding emissions from incinerators. The Division of Air Quality retains its authority to enforce the air monitoring items listed in 40 C.F.R. § 264.347(a) related to incinerating hazardous waste. The Division of Water and Waste Management retains authority to enforce 40 C.F.R. §§ 264.347(b), (c), and (d). Consult the Division of Air Quality, 45CSR25, “Control of Air Pollution from Hazardous Waste Treatment, Storage and Disposal Facilities”.

7.7. 40 C.F.R. Part 264, Subparts AA, BB, CC and 40 C.F.R. § 264.1080(f); and 40 C.F.R. § 264.1080(g). – The provisions of 40 C.F.R. § 264.1080(f) and 40 C.F.R. § 264.1080(g) are hereby adopted and incorporated by reference, and the remaining provisions of 40 C.F.R. Part 264, Subparts AA, BB, and CC are excepted from incorporation by reference. Consult the rules of the Division of Air Quality regarding air emission standards for process vents, air emission standards for equipment leaks, and air emission standards for tanks, surface impoundments and containers.

W. Va. Code R. § 33-20-8 Interim Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities

8.1. 40 C.F.R. Part 265. – The provisions of 40 C.F.R. Part 265 are adopted and incorporated by reference with the modifications, exceptions, and additions set forth in this section.

8.2. Required Receipt of Identical Notification. – The provisions of 40 C.F.R. §§ 265.12(a)(1) and (2) are retained by the Environmental Protection Agency; however, the Secretary shall receive identical notification.

8.3. Financial Requirement. – The provisions of 40 C.F.R. Part 265, Subpart H - Financial Requirements are adopted and incorporated by reference with the following modifications:

8.3.1. The provisions of 40 C.F.R. §§ 265.149 and 265.150 are excepted from incorporation by reference.

8.4. 40 C.F.R. §§ 265.341, 265.345, 265.347, 265.352. – The provisions of 40 C.F.R. §§ 265.341, 265.345, 265.347, and 265.352 relating to incinerators are excepted from incorporation by reference. Consult the rules of the Division of Air Quality regarding emissions from incinerators. The Division of Air Quality retains its authority to enforce the items listed in 40 C.F.R. § 265.347(a) related to incinerating hazardous waste. The Division of Water and Waste Management retains authority to enforce 40 C.F.R. §§ 265.347(b).

8.5. Thermal Treatment. – The provisions of 40 C.F.R. Part 265, Subpart P - Thermal Treatment are incorporated by reference except for the provisions of 40 C.F.R. § 265.375 and 40 C.F.R. § 265.383 that are excepted from incorporation by reference. Consult the rules of the Division of Air Quality regarding emissions from thermal treatment units.

8.6. 40 C.F.R. Part 265, Subparts AA, BB, CC and 40 C.F.R. § 265.1080(f) and (g). – The provisions of 40 C.F.R. § 265.1080(f) and (g) are hereby adopted and incorporated by reference, and the remaining provisions of 40 C.F.R. Part 265, Subparts AA, BB, and CC are excepted from incorporation by reference. Consult the rules of the Division of Air Quality regarding air emission standards for process vents, air emission standards for equipment leaks, and air emission standards for tanks, surface impoundments and containers.

W. Va. Code R. § 33-20-9 Standards for the Management of Specific Hazardous Wastes and Specific Types of Hazardous Waste Management Facilities

9.1. 40 C.F.R. Part 266. – The provisions of 40 C.F.R. Part 266 are hereby adopted and incorporated by reference. Consult the rules of the Division of Air Quality regarding Subpart H of this part.

W. Va. Code R. § 33-20-10 Land Disposal Restrictions

10.1. 40 C.F.R. Part 268. – The provisions of 40 C.F.R. Part 268 are hereby adopted and incorporated by reference with the modifications, exceptions, and additions set forth in this section.

10.2. 40 C.F.R. §§ 268.5, 268.6, 268.13, 268.42(b), and 268.44. – The provisions of 40 C.F.R. §§ 268.5, 268.6, 268.13, 268.42(b), and 268.44 are excepted from incorporation by reference.

10.3. Definition of Administrator in 40 C.F.R. § 268.40(b). The term “Administrator” in 40 C.F.R. § 268.40(b) will retain its meaning as defined in 40 C.F.R. § 260.10.

W. Va. Code R. § 33-20-11 The Hazardous Waste Permit Program and Standardized Permit

11.1. 40 C.F.R. Part 270. – The provisions of 40 C.F.R. Part 270, 40 C.F.R. Part 267, and 40 C.F.R. Part 124, Subpart G are hereby adopted and incorporated by reference with the modifications, exceptions, and additions set forth in this section.

11.2. 40 C.F.R. § 270.2 Definitions.

11.2.1. Definition of “RCRA permit”. – For purposes of this section, the term “RCRA permit” means “West Virginia Hazardous Waste Management Permit”. The following additional requirements will apply to obtain a Hazardous Waste Management Permit in West Virginia. All references in 40 C.F.R. Part 270 and 40 C.F.R. Part 267 to 40 C.F.R. Part 124 will be deemed to be references to the applicable provisions of subsections 11.4 through 11.17 of this rule. To the extent of any inconsistency with 40 C.F.R. Part 270 and 40 C.F.R. Part 267, the specific provisions contained herein will control.

11.3. Application Fees.

11.3.1. Any person who applies for a permit for the construction or operation of a hazardous waste management facility, or both, shall submit as part of the application a money order or cashier’s check payable to “The Hazardous Waste Management Fund.” Persons required to obtain a permit-by-rule pursuant to this rule are not required to pay a permit application fee.

11.3.2. The fee will be determined by the schedule set forth in Table 1. If the cumulative total of application fees imposed under this section equals or exceeds $50,000 then the person required to pay the fees may, at the person’s option, elect to submit the fee payments in installments over a three-year period. The installments submitted to the Department of Environmental Protection may not be less frequent than annually, and the amount submitted annually may not be less than 1/3 of the total amount due.

11.3.3. The fee for permit renewal is the same as for an initial permit.

11.4. Pre-application Public Meeting and Notice.

11.4.1. Applicability. The requirements of this subsection will apply to West Virginia Hazardous Waste Management Part B permit applicants seeking initial permits for hazardous waste management units. The requirements of this section will also apply to West Virginia Hazardous Waste Management Part B permit applicants seeking renewal of permits for those units, when the renewal application is proposing a significant change in facility operations. For the purposes of this section, a “significant change” is any change that would qualify as a Class 3 permit modification (See, 40 C.F.R. § 270.42 for a description of permit modifications). The requirements of this section shall also apply to hazardous waste management facilities for which facility owners or operators are seeking coverage under a RCRA standardized permit (See, 40 CFR Part 270, Subpart J), including renewal of a standardized permit for such units, where the renewal is proposing a significant change in facility operations, as defined at 40 CFR § 124.211(c). The requirements of this section do not apply to permit modifications under 40 C.F.R. § 270.42 or to applications that are submitted for the sole purpose of conducting post-closure activities or post-closure activities and corrective action at a facility.

11.4.2. Prior to the submission of a West Virginia Hazardous Waste Management Part B permit application for a facility, or to the submission of a written Notice of Intent to be covered by a RCRA standardized permit (See, 40 CFR Part 270, Subpart J), the applicant shall hold at least one meeting with the public in order to solicit questions from the community and inform the community of proposed hazardous waste management activities. The applicant shall post a sign-in sheet or otherwise provide a voluntary opportunity for attendees to provide their names and addresses.

11.4.3. The applicant shall submit a summary of the meeting, along with the list of attendees and their addresses developed under subdivision 11.4.2 and copies of any written comments or materials submitted at the meeting, to the Department as a part of the Part B application, in accordance with 40 C.F.R. § 270.14(b), or with the written Notice of Intent to be covered by a RCRA standardized permit (See, 40 CFR Part 270, Subpart J).

11.4.4. The applicant shall provide public notice of the pre-application meeting at least 30 days prior to the meeting. The applicant shall maintain, and provide to the Department upon request, documentation of the notice.

11.4.4.a. The applicant shall provide public notice in all of the following forms:

11.4.4.a.1. A newspaper advertisement. The applicant shall publish a notice, fulfilling the requirements in paragraph 11.4.4.b., in a newspaper of general circulation in the county or equivalent jurisdiction that hosts the proposed location of the facility. In addition, the Secretary shall instruct the applicant to publish the notice in newspapers of general circulation in adjacent counties or equivalent jurisdictions, where the Secretary determines that publication is necessary to inform the affected public. The notice shall be published as a display advertisement.

11.4.4.a.2. A visible and accessible sign. The applicant shall post a notice on a clearly marked sign at or near the facility, fulfilling the requirements in paragraph 11.4.4.b. If the applicant places the sign on the facility property, then the sign shall be large enough to be readable from the nearest point where the public would pass by the site.

11.4.4.a.3. A broadcast media announcement. The applicant shall broadcast a notice, fulfilling the requirements in paragraph 11.4.4.b., at least once on at least one local radio station or television station. The applicant may employ another medium with prior approval of the Secretary.

11.4.4.a.4. A notice to the permitting agency. The applicant shall send a copy of the newspaper notice to the Department and to the appropriate units of State and local government having jurisdiction over the area where the facility is or is proposed to be located and to each State agency having any authority under State law with respect to the construction or operation of the facility.

11.4.4.b. The notices required by paragraph 11.4.4.a shall include:

11.4.4.b.1. The date, time, and location of the meeting;

11.4.4.b.2. A brief description of the purpose of the meeting;

11.4.4.b.3. A brief description of the facility and proposed operations, including the address or a map (e.g., a sketched or copied street map) of the facility location;

11.4.4.b.4. A statement encouraging people to contact the facility at least 72 hours before the meeting if they need special access to participate in the meeting; and

11.4.4.b.5. The name, address, and telephone number of a contact person for the applicant.

11.5. Public Notice Requirements at the Application Stage.

11.5.1. Applicability. The requirements of this subsection apply to all West Virginia Hazardous Waste Management Part B permit applicants seeking initial permits for hazardous waste management units. The requirements of this section also apply to Hazardous Waste Management Part B permit applicants seeking renewal of permits for these units upon the expiration of the existing permit. The requirements of this section do not apply to hazardous waste units for which facility owners or operators are seeking coverage under a RCRA standardized permit (See, 40 CFR Part 270, Subpart J). The requirements of this section do not apply to permit modifications under 40 C.F.R. § 270.42 or permit applications submitted for the sole purpose of conducting post-closure activities or post-closure activities and corrective action at a facility.

11.5.2. Notification. The Secretary shall provide public notice as required in subdivision 11.5 when an applicant has submitted a Part B permit application. The Secretary shall provide public notice that a Part B permit application has been submitted to the Secretary and is available for review to:

11.5.2.a. The applicant;

11.5.2.b. All persons on a mailing list developed pursuant to part 11.11.4.a.4.; and

11.5.2.c. The appropriate units of State and local government having jurisdiction over the area where the facility is proposed to be located and to each State agency having any authority under State law with respect to the construction or operation of the facility.

11.5.2.d. Any person otherwise entitled to receive notice under subdivision 11.5.2 may waive the right to receive notice for any classes and categories of permits.

11.5.3. The Secretary shall publish the notice within a reasonable period of time after he or she receives the application. The notice shall include:

11.5.3.a. The name and telephone number of the applicant’s contact person;

11.5. 3.b. The name and telephone number of the Department’s contact office and a mailing address to which information, opinions, and inquiries shall be directed throughout the permit review process;

11.5.3.c. An address to which people can write in order to be put on the facility mailing list;

11.5.3.d. The location where copies of the permit application and any supporting documents can be viewed and copied;

11.5.3.e. A brief description of the facility and proposed operations, including the address or a map (e.g., a sketched or copied street map) of the facility location on the front page of the notice; and

11.5.3.f. The date that the application was submitted.

11.5.4. Concurrent with the notice required under subdivision 11.5.2., the Secretary shall place the permit application and any supporting documents in a location accessible to the public in the vicinity of the facility or at the Department’s office.

11.6. Information Repository.

11.6.1. Applicability. The requirements of this section apply to all applicants seeking West Virginia Hazardous Waste Management Permits for hazardous waste management units.

11.6.2. The Secretary shall assess the need, on a case-by-case basis, for an information repository. When assessing the need for an information repository, the Secretary shall consider a variety of factors, including the level of public interest, the type of facility, the presence of an existing repository, and the proximity to the nearest copy of the administrative record. If the Secretary determines, at any time after submittal of a permit application, that there is a need for a repository, then the Secretary shall notify the facility that it must establish and maintain an information repository.

11.6.3. The information repository shall contain all documents, reports, data, and information deemed necessary by the Secretary to fulfill the purposes for which the repository is established. The Secretary has the discretion to limit the contents of the repository.

11.6.4. The information repository shall be located and maintained at a site chosen by the facility. If the Secretary finds the site unsuitable for the purposes and persons for which it was established due to problems with the location, hours of availability, access or other relevant considerations, then the Secretary shall specify a more appropriate site.

11.6.5. The Secretary shall specify requirements for informing the public about the information repository. At a minimum, the Secretary shall require the facility to provide a written notice about the information repository to all individuals on the facility mailing list.

11.6.6. The facility’s owner/operator is responsible for maintaining and updating the repository with appropriate information throughout a time period specified by the Secretary. The Secretary shall close the repository at his or her discretion, based on the factors listed in subdivision 11.6.2.

11.7. Application for a Permit.

11.7.1. Any person who requires a permit under this rule shall complete, sign, and submit to the Secretary an application for each permit required under this rule. Applications are not required for hazardous waste permits by rule pursuant to 40 C.F.R. § 270.60. The Secretary shall not begin processing a permit until the applicant has fully complied with the application requirements for that permit. Permit applications shall comply with the signature and certification requirements of 40 C.F.R. § 270.11.

11.7.2. The Secretary shall review for completeness every application. The Secretary shall review for completeness, within 30 days of receipt, each application submitted by a new hazardous waste management facility. The Secretary shall review for completeness, within 60 days of receipt, each application submitted by an existing hazardous waste management facility (both Part A and Part B of the application). Upon completing the review, the Secretary shall notify the applicant in writing whether the application is complete. If the application is incomplete, the Secretary shall list the information necessary to make the application complete. When the application is for an existing hazardous waste management facility, the Secretary shall specify in the notice of deficiency a date for submitting the necessary information. The Secretary shall notify the applicant that the application is complete upon receiving this information. After the application is completed, the Secretary shall request additional information from the applicant, but only when necessary to clarify, modify or supplement previously submitted material. Request for additional information shall not render an application incomplete.

11.7.3. If the applicant fails or refuses to correct deficiencies in the application, the Secretary shall deny the permit and take appropriate enforcement actions pursuant to W. Va. Code §§ 22-18-15, 22-18-16, and 22-18-17.

11.7.4. If the Secretary decides that a site visit is necessary for any reason in conjunction with the processing of an application, he or she shall notify the applicant and schedule a date for the site visit.

11.7.5. The effective date of an application is the date on which the Secretary notifies the applicant that the application is complete as provided for in subdivision 11.7.2 above.

11.7.6. For each application, the Secretary shall, no later than the effective date of the application, prepare and mail to the applicant a project decision schedule. The schedule shall specify target dates by which the Secretary intends to:

11.7.6.a. Prepare a draft permit;

11.7.6.b. Give public notice;

11.7.6.c. Complete the public comment period, including any public hearing; and

11.7.6.d. Issue a final permit.

11.8. Modification, Revocation and Reissuance, or Termination of Permits.

11.8.1. Permits shall be modified, revoked and reissued, or terminated either at the request of an interested person (including the permittee) or upon the Secretary’s initiative. However, permits shall only be modified, revoked and reissued, or terminated for the reasons specified in 40 C.F.R. §§ 270.41 or 270.43. All requests shall be in writing and shall contain facts or reasons supporting the request.

11.8.2. If the Secretary decides the request is not justified, he or she shall send the requester a brief written response giving a reason for the decision. Denials of requests for modification, revocation and reissuance, or termination are not subject to public notice, comment or hearings. Denials by the Secretary may be appealed to the Environmental Quality Board in accordance with section 16 of this rule and W. Va. Code § 22-18-20.

11.8.2.a. If the Secretary initially decides to modify or revoke and reissue a permit under 40 C.F.R. §§ 270.41 (other than § 270.41(b)(3)) or 270.42 (c), he or she shall prepare a draft permit pursuant to subsection 11.9 below, incorporating the proposed changes. The Secretary may request additional information and, in the case of a modified permit, may require the submission of an updated application. In the case of a revoked and reissued permit, other than under 40 CFR § 270.41(b)(3), the Secretary shall require the submission of a new application. In the case of revoked or reissued permits under 40 CFR § 270.41(b)(3), the Secretary and the permittee shall comply with the appropriate requirements in 40 CFR Part 124, Subpart G for RCRA standardized permits.

11.8.2.b. In a permit modification under this section, only those conditions to be modified will be reopened when a new draft permit is prepared. When a permit is revoked and reissued under this section, the entire permit is reopened. During any revocation and reissuance proceeding, the permittee shall comply with all conditions of the existing permit until a new final permit is reissued.

11.8.2.c. “Classes 1 and 2 Modifications” as defined in 40 C.F.R. §§ 270.42 (a) and (b) are not subject to the requirements of this Section.

11.8.3. If the Secretary decides to terminate a permit under 40 C.F.R. § 270.43, he or she shall issue a Notice of Intent to Terminate. A Notice of Intent to Terminate is a type of draft permit that follows the same procedures as any draft permit prepared under subsection 11.9 below.

11.9. Draft Permits.

11.9.1. Once an application is complete, the Secretary shall decide whether to prepare a draft permit or to deny the application.

11.9.2. If the Secretary decides to deny the permit application, he or she shall issue a Notice of Intent to Deny. A Notice of Intent to Deny the permit application is a type of draft permit that follows the same procedures as any draft permit prepared under this section. If the Secretary’s final decision is that the initial decision to deny the permit application was incorrect, he or she shall withdraw the Notice of Intent to Deny and proceed to prepare a draft permit.

11.9.3. If the Secretary decides to issue a draft permit, he or she shall prepare a draft permit that contains the following information:

11.9.3.a. All conditions under 40 C.F.R. §§ 270.30 and 270.32;

11.9.3.b. All compliance schedules under 40 C.F.R. § 270.33;

11.9.3.c. All monitoring requirements under 40 C.F.R. § 270.31; and,

11.9.3.d. Standards for treatment, storage, and disposal and other permit conditions under 40 C.F.R. § 270.30.

11.9.4. All draft permits prepared by the Secretary under this section shall be accompanied by a fact sheet and shall be based on the administrative record, publicly noticed, and made available for public comment.

11.10. Fact Sheet.

11.10.1. The Secretary shall prepare a fact sheet for every draft permit for a hazardous waste management facility that the Secretary finds is the subject of wide-spread public interest or raises major issues. The fact sheet will briefly set forth the principal facts and the significant factual, legal, and methodological and policy questions considered in preparing the draft permit. The Secretary shall send the fact sheet to the applicant and to anyone who requests it.

11.10.2. The fact sheet shall include when applicable:

11.10.2.a. A brief description of the type of facility or activity that is the subject of the draft permit;

11.10.2.b. The type and quantity of waste, fluids or pollutants that are proposed to be or are being treated, stored, disposed of, injected, emitted or discharged;

11.10.2.c. A brief summary of the basis for the draft permit conditions, including references to applicable statutory or regulatory provisions and appropriate supporting references to the administrative record;

11.10.2.d. Reasons why any requested variances or alternatives to required standards do or do not appear justified;

11.10.2.e. A description of the process for reaching a final decision on a draft permit including:

11.10.2.e.1. The beginning and the ending dates of the comment period and the address where comments will be received;

11.10.2.e.2. Procedures for requesting a hearing and the nature of that hearing; and

11.10.2.e.3. Any other procedures by which the public participates in the final decision.

11.10.2.f. Name and telephone number of a person to contact for additional information.

11.11. Public Notice of Permit Actions and Public Comment Period.

11.11.1. Scope. The Secretary shall give public notice if the following actions have occurred:

11.11.1.a. A draft permit has been prepared; and

11.11.1.b. A hearing has been scheduled.

11.11.2. No public notice is required when a request for permit modification, revocation and reissuance, or termination is denied under subsection 11.8 above. Written notice of that denial shall be given to the requester and to the permittee.

11.11.3. Timing. Public notice of the preparation of a draft permit (including a Notice of Intent to Deny a Permit Application) required under subdivision 11.11.1 will allow at least 45 days for public comment. Public notice of a public hearing shall be given at least 30 days before the hearing. (Public notice of the hearing may be given at the same time as public notice of the draft permit, and the two notices may be combined.)

11.11.4. The Secretary shall provide public notice of activities described in subdivision 11.11.1 by the following methods:

11.11.4.a. By mailing a copy of a notice to the following persons (any person otherwise entitled to receive notice under this paragraph may waive his or her rights to receive notice for any classes and categories of permits):

11.11.4.a.1. The applicant;

11.11.4.a.2. The West Virginia Division of Water and Waste Management and the Division of Air Quality, if those agencies are required to issue a RCRA permit, an underground injection control (UIC) permit, a prevention of significant deterioration (PSD) permit or other permit under the Clean Air Act, and W.Va. Code §22-5-1, et seq., a National Pollutant Discharge Elimination System (NPDES) permit, or a sludge management permit for the same facility or activity;

11.11.4.a.3. Federal and State agencies with jurisdiction over fish, shellfish, and wildlife resources and over coastal zones management plans, the advisory council on historic preservation, and the State Historic Preservation Office, as applicable;

11.11.4.a.4. Persons on a mailing list developed by:

11.11.4.a.4.A. Including those who request in writing to be on the list;

11.11.4.a.4.B. Soliciting persons for “area lists” from participants in past permit proceedings in that area; and

11.11.4.a.4.C. Notifying the public of the opportunity to be put on the mailing list through periodic publication in the public press and in such publications as regional and State funded newsletters, environmental bulletins or state law journals. The Secretary may update the mailing lists from time to time by requesting written indications of continued interest from those listed. The Secretary may delete from the lists the name of any person who fails to respond to the request.

11.11.4.a.5. To any unit of local government having jurisdiction over the area where the facility is proposed to be located; and

11.11.4.a.6. To each State agency having any authority under State law with respect to the construction or operation of the facility.

11.11.4.b. By publishing a notice in a daily or weekly major local newspaper of general circulation and broadcast over local radio stations;

11.11.4.c. By any manner constituting legal notice to the public under State laws; and

11.11.4.d. By any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.

11.11.5. All public notices issued under this section shall contain the following minimum information:

11.11.5.a. Name and address of the office processing the permitting action for which notice is being given;

11.11.5.b. Name and address of the permittee or the permit applicant and, if different, of the facility or activity regulated by the permit;

11.11.5.c. A brief description of the business conducted at the facility or activity described in the permit application or the draft permit;

11.11.5.d. Name, address and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit, fact sheet, and the application;

11.11.5.e. A brief description of the comment procedures required by subsections 11.12 and 11.13 and the time and place of any hearing that will be held, including a statement of procedures to request a hearing (unless a hearing has already been scheduled) and other procedures by which the public may participate in the final decision;

11.11.5.f. The location of the administrative record and the times that the record will be open for public inspection; and

11.11.5.g. Any additional information considered by the Secretary to be necessary or proper.

11.11.6. Public notices for hearings. In addition to the general public notice described in subdivision 11.11.5., the public notice of a hearing shall contain the following information:

11.11.6.a. Reference to the date of previous public notices relating to the permit;

11.11.6.b. Date, time, and place of the hearing; and

11.11.6.c. A brief description of the nature and purpose of the hearing, including the applicable rules and procedures.

11.11.7. In addition to the general public notice described in subdivision 11.11.5., the Secretary shall send to all persons identified in subparagraphs 11.11.4.a.1 through 11.11.4.a.6 a copy of the fact sheet, the permit application, and the draft permit, as applicable.

11.12. Public Comments and Requests for Public Hearings.

11.12.1. During the public comment period provided under subsection 11.11., any interested person may submit written comments on the draft permit and may request a public hearing, if a hearing has not already been scheduled.

11.12.2. A request for a public hearing shall be in writing and shall state the nature of the issues proposed to be raised in the hearing. The Secretary shall consider and respond to all relevant comments, as provided in subsection 11.16 below, in making the final decision.

11.13. Public Hearings.

11.13.1. The Secretary shall hold a public hearing whenever he or she finds, on the basis of requests, a significant degree of public interest in a draft permit.

11.13.2. The Secretary shall also hold a public hearing at his or her discretion, whenever, for instance, a hearing might clarify one or more issues involved in the permit decision.

11.13.3. The Secretary shall hold a public hearing whenever he or she receives written notice of opposition to a draft permit and a request for a hearing within 45 days of public notice under subdivision 11.11.3. Whenever possible, the Secretary shall schedule a hearing under this section at a location convenient to the nearest population center to the proposed facility.

11.13.4. The Secretary shall provide public notice of the hearing as specified in subsection 11.11.

11.13.5. Whenever a public hearing will be held, the Secretary shall designate a presiding officer for the hearing who will be responsible for its scheduling and orderly conduct.

11.13.6. Any person may submit oral or written statements and data concerning the draft permit. The Secretary may set reasonable limits upon the time allowed for oral statements and may require the submission of statements in writing. The public comment period under subsection 11.11 shall automatically be extended to the close of any public hearing under this section. The hearing officer may also extend the comment period by so stating at the hearing.

11.13.7. A tape recording or written transcript of the hearing shall be made available to the public.

11.14. Reopening of the Public Comment Period.

11.14.1. If any data, information, or arguments submitted during the public comment period appear to raise substantial new questions concerning a permit, the Secretary shall take one or more of the following actions:

11.14.1.a. Prepare a new draft permit, appropriately modified, under subsection 11.9.

11.14.1.b. Prepare a revised fact sheet under subsection 11.10 and reopen the comment period.

11.14.1.c. Reopen or extend the comment period under subsection 11.11 to give interested persons an opportunity to comment on the information or arguments submitted.

11.14.2. Comments filed during the reopened comment period shall be limited to the substantial new questions that caused its reopening. The public notice under subsection 11.11 shall define the scope of the reopening.

11.14.3. The Secretary shall issue public notice of any of the above actions in accordance with subsection 11.11. above.

11.15. Issuance and Effective Date of Permit.

11.15.1. After the close of the public comment period on a draft permit, the Secretary shall issue a final permit decision. The Secretary shall notify the applicant and each person who has submitted written comments or requested notice of the final permit decision. The notice shall include reference to the procedures for appealing a decision on the permit. For purposes of this section the final permit decision means a final decision to issue, deny, modify, revoke and reissue, or terminate a permit.

11.15.2. A final permit decision will become effective 30 days after the service of Notice of Decision unless:

11.15.2.a. A later effective date is specified in the decision; or

11.15.2.b. Review is requested or evidentiary hearing is requested; or

11.15.2.c. No comments requested change in the draft permit, in which case the permit will become effective immediately upon issuance.

11.16. Response to Comments.

11.16.1. At the time that any final permit decision is issued, the Secretary shall issue a response to comments. This response will:

11.16.1.a. Specify which provisions, if any, of the draft permit have been changed in the final permit decision and the reasons for the change; and

11.16.1.b. Briefly describe and respond to all comments on the draft permit or the permit application raised during the public comment period or during any hearing.

11.16.2. The response to comments shall be available to the public.

11.17. Administrative Record.

11.17.1. The provisions of a draft permit prepared under subsection 11.9 shall be based on the administrative records consisting of:

11.17.1.a. The application and any supporting data furnished by the applicant;

11.17.1.b. The draft permit or notice of intent to deny the application or to terminate the permit;

11.17.1.c. The fact sheet;

11.17.1.d. All documents cited in the fact sheet; and

11.17.1.e. Other documents contained in the supporting file for the draft permit.

11.17.2. The Secretary shall base final permit decisions on the administrative record consisting of:

11.17.2.a. Administrative record for the draft permit;

11.17.2.b. All comments received during the public comment period provided under subsection 11.11 (including any extension or reopening under subsection 11.14);

11.17.2.c. The tape or transcript of any hearing(s) held under subsection 11.13.;

11.17.2.d. Any written material submitted at the hearing;

11.17.2.e. The response to comments required by subsection 11.16 that identify and support any change made in the draft permit and any new material placed in the record under that subsection;

11.17.2.f. Other documents contained in the supporting file for the permit;

11.17.2.g. An addendum to the fact sheet if needed; and

11.17.2.h. The final permit.

11.17.3. The administrative record shall be complete on the date the final permit is issued.

11.17.4. Material readily available at the Department or published material that is generally available and that is included in the administrative record under subdivisions 11.17.1 and 11.17.2 need not be physically included with the rest of the record, as long as it is specifically referred to in the fact sheet or in the addendum to the fact sheet.

11.18. Public Access to Information.

11.18.1. Any records, reports, or information and any permit, permit applications, and related documentation within the Secretary’s possession shall be available to the public for inspection and copying; provided that, upon a satisfactory showing to the Secretary that those records, reports, permit documentation or information or any part thereof would, if made public, divulge methods or processes or activities entitled to protection as trade secrets, the Secretary shall consider, treat, and protect those records as confidential.

11.18.2. It is the responsibility of the person claiming any information as confidential under the provisions of this subsection to clearly mark each page containing that information with the word “CONFIDENTIAL” and to submit an affidavit setting forth the reasons that the person believes that the information is entitled to protection.

11.18.3. The person claiming confidentiality shall submit any document that contains information for which claim of confidentiality is made in a sealed envelope marked “confidential” and addressed to the Secretary. The person claiming confidentiality shall submit the document in two separate parts. The first part shall contain all information that is not deemed by the person preparing the report as confidential and shall include appropriate cross-references to the second part, which contains data, words, phrases, paragraphs or pages and appropriate affidavits containing or relating to information that is claimed to be confidential.

11.18.4. No information shall be protected as confidential information by the Secretary unless it is submitted in accordance with the provisions of subdivision 11.18.3 above, and no information that is submitted in accordance with the provision of subdivision 11.18.3 shall be afforded protection as confidential information unless the Secretary finds that the protection is necessary to protect trade secrets. The person who submits information claimed to be confidential shall receive written notice from the Secretary as to whether the information has been accepted as confidential or not.

11.18.5. The Secretary shall mark with the term “accepted” all information that meets the tests of subdivision 11.18.4 and shall protect the same as confidential information. If the person fails to satisfactorily demonstrate to the Secretary that information in the form presented meets the criteria of subdivision 11.18.4., the Secretary shall mark the information “rejected” and promptly return it to the person who submitted the information. The Secretary shall retain a copy of the information for reference.

11.18.6. Nothing contained herein shall be construed to restrict the release of relevant confidential information during situations declared to be emergencies by the Secretary.

11.18.7. Nothing in subsection 11.18 shall be construed as limiting the disclosure of information by the Department to any officer, employee or authorized representative of State or federal government concerned with effectuating the purposes of this subsection.

11.18.8. Persons interested in obtaining information pursuant to this subsection shall submit a request in accordance with the Freedom of Information Act, W. Va. Code § 29B-1-1, et seq.

11.19. 40 C.F.R. § 270.12. The provisions of 40 C.F.R. § 270.12 are excepted from incorporation by reference herein. Availability of information provided under this rule is controlled by the provision of W. Va. Code §§ 22-18-12, 29B-1-1, et seq., and subsection 11.18 of this rule.

11.20. 40 C.F.R. § 270.24. The provisions of 40 C.F.R. § 270.24 are excepted from incorporation by reference herein. Consult the rules of the Division of Air Quality regarding emissions from process vents.

11.21. 40 C.F.R. § 270.60(b). The provisions of 40 C.F.R. § 270.60(b) are hereby adopted and incorporated by reference. Consult the rules of the Division of Water and Waste Management regarding additional requirements for underground injection wells.

11.22. 40 C.F.R. § 270.155. – The provisions of 40 C.F.R. § 270.155 relating to the administrative appeal of a decision to approve or deny a Remedial Action Plan (RAP) application are hereby modified for the purposes of this rule as follows: Any commenter on the draft RAP or notice of intent to deny or any participant in any public hearing(s) on the draft RAP may appeal the Secretary’s decision to approve or deny the RAP application to the Environmental Quality Board pursuant to W. Va. Code § 22-18-20. Any person who did not file comments or did not participate in any public hearing(s) on the draft RAP may petition for administrative review only to the extent of the changes from the draft to the final RAP decision. Appeals of a RAP may be made to the same extent as for final permit decisions under section 11 of this rule. The Secretary shall give public notice of any grant of review of a RAP by the Environmental Quality Board through the same means used to provide notice under subsections 11.4 through 11.17 above.

W. Va. Code R. § 33-20-12 Deed and Lease Disclosure; Notice in Deed to Property

12.1. Recording Requirement. – The owner of the property on which a hazardous waste management facility is located shall record, in accordance with State law, a notation on the deed or lease to the facility property, or on some other instrument that is normally examined during title search, that will in perpetuity notify any potential purchaser of the property that:

12.1.1. The land has been used to manage hazardous wastes; and

12.1.2. Its use is restricted under 40 C.F.R. § 264.117(c).

12.2. Upon actual transfer of property that contains hazardous wastes that have been stored, treated or disposed of, the previous owner shall notify the Secretary in writing of the transfer.

12.3. Other Requirements. – Nothing contained in this section will relieve any person from complying with the requirements on deed and lease disclosures set forth in W. Va. Code § 22-18-21.

W. Va. Code R. § 33-20-13 Universal Waste Rule

13.1. 40 C.F.R. Part 273. – The provisions of 40 C.F.R. Part 273 are hereby adopted and incorporated by reference with the modifications, exceptions, and additions contained in this section.

13.2. 40 C.F.R. §§ 273.20, 273.40, and 273.56. – The provisions of 40 C.F.R. §§ 273.20, 273.40, and 273.56 relating to exports are hereby adopted and incorporated by reference. The substitution of terms in subdivision 1.6.1 does not apply to the provisions of this subsection. In addition to the requirements contained therein, any person subject to the provisions of 40 C.F.R. Part 273 shall file with the Secretary copies of all documentation, manifests, exception reports, annual reports or records submitted to EPA, the Administrator or the Regional Administrator as required by 40 C.F.R. Part 273.

13.3. 40 C.F.R. § 273.70. – The provisions of 40 C.F.R. § 273.70 “Imports” are hereby adopted and incorporated by reference. Persons managing universal waste that is imported to West Virginia are subject to the requirements of this rule.

13.4. 40 C.F.R. §§ 273.80 and 273.81. – The provisions of 40 C.F.R. §§ 273.80 and 273.81 are excepted from incorporation by reference. Consult the provisions of subdivision 2.5.4 above to petition to include a waste as a universal waste.

W. Va. Code R. § 33-20-14 Standards for the Management of Used Oil

14.1. 40 C.F.R. Part 279. – The provisions of 40 C.F.R. Part 279 are hereby adopted and incorporated by reference, with the exception contained in this section. Consult the rules of the Division of Air Quality regarding the burning of used oil.

14.2. 40 C.F.R. § 279.82(b). – Notwithstanding the provisions of paragraph 1.6.1.a above, the term “EPA” at 40 C.F.R. §279.82(b) will mean United States Environmental Protection Agency.

W. Va. Code R. § 33-20-15 Standards for Hazardous Waste Recycling

15.1. The provisions of 40 C.F.R. § 261.6 are hereby adopted and incorporated by reference, with the modifications contained in this section.

15.2. Standards Applicable to All Hazardous Waste Recycling Activities.

15.2.1. Any residual material resulting from a recycling process shall be evaluated in accordance with section 3 of this rule to determine whether it is subject to regulation as a hazardous waste.

15.2.2. Any facility that treats hazardous waste without recycling it, or that treats hazardous waste prior to recycling it, is subject to regulation under section 11 above. Generators that treat hazardous waste in containers or tanks in compliance with 40 C.F.R. §§ 262.16 and 262.17 are exempt from regulation under section 11 of this rule for that treatment activity.

15.2.3. Owners or operators of facilities with hazardous waste management units that recycle hazardous wastes are subject to section 7 of this rule.

15.3. Hazardous Waste Recycling at Off-Site Facilities.

15.3.1. Owners or operators of facilities that receive recyclable materials, stage recyclable materials, and recycle them without storing them before they are recycled are subject to:

15.3.1.a. The requirements of subsection 15.2 of this rule;

15.3.1.b. The generator requirements of section 5 of this rule; and

15.3.1.c. Financial Requirements. – Prior to staging any material, owners or operators shall demonstrate financial assurance for closure of the facility by:

15.3.1.c.1. Maintaining a closure cost estimate that meets the requirements of 40 C.F.R. § 265.142 and that has been approved by the Secretary; and

15.3.1.c.2. Establishing financial assurance in accordance with 40 C.F.R. § 265.143.

15.3.2. Owners or operators of facilities that store recyclable materials before they are recycled are subject to subsection 11 of this rule and to all applicable provisions of subsections 1, 3, and 5.

W. Va. Code R. § 33-20-16 Appeal Rights

Any person aggrieved or adversely affected by the failure or refusal of the Secretary to act within a reasonable time on an application for a permit or by the issuance or denial of or by the terms and conditions of a permit granted by the Secretary under the provisions of this rule, may appeal to the Environmental Quality Board in accordance with the provisions of W. Va. Code §§ 22-18-22 and 22B-2-1, et seq.

TABLE 1

PERMIT APPLICATION FEE SCHEDULE

STORAGE

S01 Container $3,750.00 S02 Tank $3,750.00 S04 Surface Impoundment <1,000 tons capacity $10,000.00 >1,000 tons capacity $12,500.00 S05 Drip Pad S03 Waste Pile S06 Waste Pile (Containment Bldg.)

DISPOSAL

D80 Landfill $15,000.00 $25,000.00 D81 Land Application $15,000.00 $25,000.00 D83 Surface Impoundment $15,000.00 $25,000.00 TABLE 1 PERMIT APPLICATION FEE SCHEDULE (CONTINUED)

TREATMENT

T01 Tank $3,750.00 T02 Surface Impoundment $10,000.00 $12,500.00 T03 Incinerator T80 thru T93 Boiler/Industrial Furnace T04 Other T-94 Containment Bldg.

Treatment EMERGENCY PERMITS State and Federal Nil Others $500.00 TABLE 1 PERMIT APPLICATION FEE SCHEDULE (CONTINUED)

MISCELLANEOUS

Permit Modification under 40 C.F.R., 270.42 (Class I) $500.00 Permit Modification under 40 C.F.R., 270.42 (Class II and III) HWIR Staging Pile $1,250.00 Modification under 40 C.F.R., 270.41 Post-Closure Care Permit $15,000.00 Closure Plans $1,500.00

Series 22 Assessment Of Civil Administrative Penalties

W. Va. Code R. § 33-22-1 General

1.1. Scope and Purpose. -- This legislative rule establishes the criteria and procedures that shall be followed in the assessment of civil administrative penalties imposed under the provisions of W. Va. Code §22-18-17 or W. Va. Code .§22-15-15.

1.2. Authority. -- W. Va. Code §22-18-17 and §22-15-15.

1.3. Filing Date. -- May 14, 2009.

1.4. Effective Date. -- July 1, 2009.

W. Va. Code R. § 33-22-2 Definitions

2.1. ”Acts“ means the West Virginia Hazardous Waste Management Act (W. Va. Code §22-18-1 et seq.) and the West Virginia Solid Waste Management Act (W. Va. Code §22-15-1 et seq.).

2.2. ”Assessment Officer“ means a person appointed by the Secretary to carry out the review, assessment, and hearing procedures outlined in these regulations.

2.3. ”Civil Administrative Penalty Referral“ means a written document that includes the observations made by the inspector relative to the seriousness of the alleged violation and any good faith efforts made to comply with applicable requirements as well as any other appropriate factors established by these regulations.

2.4. ”Facility“ means the site of the alleged violation.

2.5. ”Inspector“ means an authorized representative of the Secretary who as a normal function of his or her responsibilities conducts inspections, investigations, or sampling at facilities regulated under either of the Acts.

2.6. ”Notice of Civil Administrative Penalty“ means a written notification provided to a violator by the assessment officer, by means of certified mail or personal service, assessing a civil administrative penalty. A notice of civil administrative penalty shall include:

2.6.a. A reference to the section of the statute, rule, order, or permit condition allegedly violated;

2.6.b. A concise statement of the facts alleged to constitute the violation;

2.6.c. A statement of the amount of the initial civil administrative penalty to be imposed; and

2.6.d. A statement of the alleged violator’s right to an informal hearing.

2.7. ”Notice of Dismissal“ means a written notification provided to a violator by the assessment officer or the Secretary, by means of certified mail or personal service, dismissing and vacating the enforcement action. A notice of dismissal may be issued at any time during the proceedings.

2.8. ”Notice of Violation“ means a written notification provided to an alleged violator by the inspector.

2.9. “Secretary” means the Secretary of the West Virginia Department of Environmental Protection or his or her authorized representative.

2.10. ”Violator“ means the person, as defined by §22-15-2(24) or §22-18-3(11), who is alleged to have violated the Acts, or any rule, order, or permit condition imposed pursuant to the Acts.

2.11. ”Written Decision“ means a written decision furnished to the violator concerning the Secretary’s final decision regarding the assessment of a civil administrative penalty and the reasons therefor.

W. Va. Code R. § 33-22-3 Notice of Violations

3.1. General. An inspector or other authorized representative of the Secretary may issue a notice of violation for any violation he or she observes.

3.2. Notice Procedures. A notice of violation shall be in writing, shall be signed by the inspector or other authorized representative of the Secretary, and shall set forth with reasonable specificity:

3.2.a. The nature of the violation with a reference to the section of the statute, rule, order, or permit condition that was allegedly violated;

3.2.b. The time and date of the observance of the violation; and

3.2.c. A reasonable description of the facility where the violation is observed, where within that facility the observation was observed, and the point of generation, treatment, storage, or disposal at which the violation occurred, if appropriate.

W. Va. Code R. § 33-22-4 Penalty Assessment Procedures

4.1. Review of Notice of Violation and Penalty Calculation. The assessment officer shall review each notice of violation referred to him or her for civil administrative penalty assessment to determine:

4.1.a. The appropriateness of a civil administrative penalty;

4.1.b. The initial amount of penalty, if any, based upon the rates and methods given in this rule;

4.1.c. The appropriateness of assessing a daily civil administrative penalty for continuing violations;

4.1.d. The total initial civil administrative penalty assessed; and

4.1.e. The appropriateness of assessing a civil administrative penalty against an individual.

4.2. Notice of Civil Administrative Penalty. The assessment officer shall provide the violator by certified mail or personal delivery with:

4.2.a. A notice of civil administrative penalty which shall include procedures for requesting an informal hearing and a notification of applicable time constraints; or

4.2.b. A notice of dismissal.

W. Va. Code R. § 33-22-5 Hearings and Appeals

5.1. Right to Informal Hearing. The violator shall have twenty (20) calendar days from receipt of the notice of civil administrative penalty within which to request, in writing, an informal hearing before the assessment officer. If a hearing is requested, the assessment officer will hold the hearing to deduce the actual facts and circumstances regarding the violation and, based thereon, will make a final recommendation of civil administrative penalty assessment to the Secretary. If no hearing is requested within the specified time period, the notice of civil administrative penalty shall become a final order after the expiration of the twenty-day period and the civil administrative penalty shall become due and payable.

5.2. Notice and Scheduling of Informal Hearing. If the violator requests an informal hearing within the twenty-day period, the assessment officer shall schedule such a hearing in accordance with the following procedures:

5.2.a. The time and place the informal hearing is to be held is to be communicated to any inspector or other authorized representative of the Secretary who filed a notice of violation bringing about the informal hearing and to the violator.

5.2.b. Such communication shall be provided at least fifteen (15) calendar days prior to the time of the hearing.

5.2.c. The assessment officer may continue the informal hearing only for good cause shown.

5.3. Informal Hearing Procedures. An informal hearing, as provided by these regulations, is intended to be an informal discussion of the facts which gave rise to the issuance of a notice of violation and shall be conducted in the following manner:

5.3.a. The West Virginia Rules of Civil Procedure and West Virginia Rules of Evidence shall not apply.

5.3.b. A record of the informal hearing is not required but may be made by any party to the hearing at the party’s expense. Any other party to the hearing may obtain copies thereof at the expense of the party requesting such copy.

5.3.c. At formal review proceedings which may ensue, no evidence as to any statement made by one party at the informal hearing may be introduced as evidence by another party, nor may any statement be used to impeach a witness, unless the statement is or was available as competent evidence independent of its introduction during the informal hearing.

5.3.d. During the course of the informal hearing, a violator may make a request to have its ability to pay a civil administrative penalty evaluated. Such a request will only be evaluated if the violator provides all required information and it is received by the Assessment Officer within ten (10) calendar days of the informal hearing date. Incomplete information or information received more than ten (10) days after the informal hearing date will not be evaluated. Should completed information be received in a timely fashion, it will be evaluated in accordance with United States Environmental Protection Agency (USEPA) guidance.

5.4. Written Decision. Within thirty (30) calendar days following the informal hearing, the Secretary shall issue and furnish to the violator a written decision affirming, decreasing, or dismissing the initial civil administrative penalty assessment and giving the reasons therefor.

5.5. Request for Formal Hearing. Within thirty (30) calendar days after notification of the Secretary’s decision, the violator may request a formal hearing before the Environmental Quality Board in accordance with the provisions of the Acts. If no hearing is requested, the Secretary’s decision shall become a final order after the expiration of the thirty-day period and the civil administrative penalty shall become due and payable.

W. Va. Code R. § 33-22-6 Individual Civil Administrative Penalties

6.1. The Secretary may assess an individual civil administrative penalty against any corporate director, officer, agent, or employee of a violator, or any other person, who authorizes, orders, or carries out a violation of the statute, rule, order, or permit condition or who fails or refuses to follow an order from the Secretary.

6.2. In determining the amount of a civil administrative penalty to be assessed against a violator under this section, consideration shall be given to the criteria specified in section 7.

6.3. The Secretary shall serve on each violator to be assessed an administrative penalty a notice of individual civil administrative penalty assessment. For purposes of this subsection, service shall be deemed to be sufficient if it satisfies Rule 4 of the West Virginia Rules of Civil Procedure for service of a summons and complaint. A notice of individual civil administrative penalty assessment shall include:

6.3.a. A reference to the section of the statute, rule, order, or permit condition allegedly violated;

6.3.b. A concise statement of the facts alleged to constitute the violation;

6.3.c. A statement of the amount of the individual civil administrative penalty to be imposed;

6.3.d. A copy of the underlying notice of violation; and

6.3.e. A statement of the violator’s right to an informal hearing.

6.4. A violator has a right to an informal hearing and/or appeal as outlined in section 5.

6.5. The informal hearing, if requested, will be scheduled and conducted pursuant to subsections 5.2, 5.3 and 5.4.

W. Va. Code R. § 33-22-7 Civil Administrative Penalty Calculation Procedures

7.1. The Secretary shall calculate a civil administrative penalty by taking into account the seriousness of the alleged violation, negligence or good faith on the part of the violator, the type of facility, and any history of noncompliance by the violator.

7.1.a. Seriousness of Violation. The Secretary shall take into account the seriousness of the violation by assigning a rating for the extent of deviation from the requirement of the statute, rule, order, or permit condition in accordance with Table A and a rating for the potential harm which may have resulted from the alleged violation in accordance with Table B. These ”seriousness of the violation“ ratings shall be used to determine the base penalty amount of the civil administrative penalty assessment through the use of Tables C and D. Table C shall be used for hazardous waste violations. Table D shall be used for solid waste violations.

7.2. Negligence/Good Faith. The Secretary shall take into account the negligence or good faith which the violator displayed with regard to the alleged violation by assigning a rating in accordance with Table E. The negligence/good faith rating shall be used to determine the multiplying factor to be applied to the base penalty amount through the use of Table F.

7.3. Adjustment Factor. The Secretary shall take into account the type of facility by assigning an adjustment factor in accordance with Table G. The subtotal calculated pursuant to subsections 7.1 and 7.2 shall be multiplied by the adjustment factor.

7.4. “Unique” Factors. Should the violation in question involve an actual release to the environment or harm to human health or involve a chemical that is persistent or bioaccumulative, the associated civil administrative penalty may be multiplied by a factor of up to 2.0.

7.5. History of Noncompliance. The Secretary shall take into account the violator’s history of noncompliance by determining the number of previous enforcement actions (administrative, civil, or criminal) which have been taken against the facility during the twenty-four (24) months prior to the violation. Those enforcement actions which were withdrawn, dismissed, or vacated shall not be included in this determination. The number of previous enforcement actions shall be used to determine the dollar amount to be added to the penalty through the use of Tables H and I. Table H shall be used for hazardous waste violations. Table I shall be used for solid waste violations.

7.6. The civil administrative penalty shall be calculated by multiplying the base penalty amount (established from the seriousness of violation pursuant to subsection 7.1) by the multiplying factor (established from the negligence/good faith ratings pursuant to subsection 7.2), multiplying that product by the adjustment factor (established from the adjustment factor pursuant to subsection 7.3), multiplying by the “unique” factor, if applicable (established pursuant to subsection 7.4), and then adding to that product a dollar amount (established from the history of noncompliance pursuant to subsection 7.5) through the use of Table J.

7.7. The civil administrative penalty assessed may not exceed the maximum assessments prescribed by the Acts. The maximum assessment for hazardous waste violations shall not exceed seven thousand five hundred dollars ($7,500) per day per violation, up to a maximum of twenty-two thousand five hundred dollars ($22,500) total penalty. The maximum assessment for solid waste violations shall not exceed five thousand dollars ($5,000) per day per violation, up to a maximum of twenty thousand dollars ($20,000) total penalty.

TABLE A

Ratings for Deviation from Requirements 1 to 3 - The violator had completed nearly all requirements of the statute, rule, regulation, order, or permit condition in question. However, there were some aspects of the requirements which were clearly not accomplished or the requirements were completed in most, but not all, areas of the facility. 4 to 6 - The violator had completed approximately one-half of the requirements of the statute, rule, regulation, order, or permit condition in question or the requirements were not completed in approximately one-half of the areas of the facility. 7 to 9 - The violator has completed almost none of the requirements of the statute, rule, regulation, order, or permit condition in question. However, some aspects of the requirements clearly were accomplished or the requirements were not completed in most, but not all, areas of the facility. 10 - The violator had not completed any of the requirements of the statute, rule, regulation, order, or permit condition in question or the requirements were not completed in any area of the facility.

TABLE B

Ratings of Potential for Harm 1 to 3 - The violation is of an administrative nature and could not result in a potential for harm to human health or the environment. 4 to 6 - The violation is of an administrative or a physical nature and may result in a minor potential for harm to human health or the environment (e.g., material being improperly handled/stored is relatively stable or readily remediated, report does not contain necessary information of a specific nature, necessary environmental controls are present but not maintained). 7 to 9 - The violation is of an administrative or a physical nature and may result in a moderate potential for harm to human health or the environment (e.g., material being improperly handled/stored is relatively unstable or difficult to remediate, report does not fully address intended subject matter or is deficient regarding specific information concerning multiple areas, violator has not made a good faith effort to install/maintain necessary environmental controls). 10 - The violation is of an administrative or physical nature and may result in a major potential for harm to human health or the environment (e.g., material being improperly handled/stored is unstable or requires additional measures to remediate, failure to submit a report, failure to provide necessary environmental controls).

TABLE C

Seriousness of Hazardous Waste Violation Deviation from Requirement 1 2 3 4 5 6 7 8 9 10 Potential for Harm 1 200 245 300 365 440 525 620 730 855 1000 2 300 345 400 465 540 625 720 830 955 1100 3 500 545 600 665 740 825 920 1030 1155 1300 4 800 845 900 965 1040 1125 1220 1330 1455 1600 5 1200 1245 1300 1365 1440 1525 1620 1730 1855 2000 6 1700 1745 1800 1865 1940 2025 2120 2230 2355 2500 7 2250 2295 2350 2415 2490 2575 2670 2780 2905 3050 8 2850 2895 2950 3015 3090 3175 3270 3380 3505 3650 9 3500 3545 3600 3665 3740 3825 3920 4030 4155 4300 10 4200 4245 4300 4365 4440 4525 4620 4730 4855 5000 TABLE D Seriousness of Solid Waste Violation Deviation from Requirement 1 2 3 4 5 6 7 8 9 10 Potential for Harm 1 100 140 190 250 320 400 490 590 700 725 2 200 240 290 350 420 500 590 690 800 825 3 400 440 490 550 620 700 790 890 1000 1125 4 700 740 790 850 920 1000 1090 1190 1300 1425 5 1025 1065 1115 1175 1245 1325 1415 1515 1625 1750 6 1375 1415 1465 1525 1595 1675 1765 1865 1975 2100 7 1725 1765 1815 1875 1945 2025 2115 2215 2325 2450 8 2075 2115 2165 2225 2295 2375 2465 2565 2675 2800 9 2425 2465 2515 2575 2645 2725 2815 2915 3025 3150 10 2775 2815 2865 2925 2995 3075 3165 3265 3375 3500 TABLE E Ratings for Negligence/Good Faith 1 - The violation is not the result of negligence and the violator expended all possible effort to comply with the requirement in question or the violator has completed all actions to correct the violation. 2 to 4 - The violation is the result of an oversight by the violator and could have been avoided if a more conscientious effort had been made in the operation of the facility or the violator has begun but not completed current actions to correct the violation. 5 to 7 - The violation is obvious and a result of a lack of reasonable care by the violator or the violator has taken inadequate action to correct the violation. 8 to 10 - The violation is the result of a complete disregard for the requirement in question or the violator failed to respond to a previous enforcement action pertaining to the same requirement.

TABLE F

Negligence/Good Faith Negligence/Good Faith Multiplying Factor 1 0.5 2 0.6 3 0.7 4 0.8 5 1.0 6 1.2 7 1.4 8 1.6 9 1.8 10 2.0 TABLE G Adjustment Factor Type of Facility Multiplying Factor Conditionally Exempt Small Quantity Hazardous Waste Generator 0.5 Small Quantity Hazardous Waste Generator;

Used Oil Violation;

Facility Not Otherwise Listed in this Table;

Class C Solid Waste Facility;

Class D Solid Waste Facility;

Transfer Station; Open Dump 0.75 Hazardous Waste Generator;

Hazardous Waste Transporter Class B Solid Waste Facility;

Class E Solid Waste Facility 1.0 Hazardous Waste Treatment, Storage, or Disposal Facility;

Class A Solid Waste Facility;

Class F Solid Waste Facility 1.5 TABLE H

History of Hazardous Waste Noncompliance Number of Previous Enforcement Actions Dollar Amount 1 $250.00 2 $500.00 3 $1000.00 4 $1750.00 5 $2750.00 6 $4000.00 7 and greater $5500.00 TABLE I

History of Solid Waste Noncompliance Number of Previous Enforcement Actions Dollar Amount 1 $100.00 2 $200.00 3 $350.00 4 $550.00 5 $850.00 6 $1250.00 7 $1650.00 8 $2150.00 9 $2750.00 10 and greater $3350.00 TABLE J Calculation of Civil Administrative Penalty Assessment Seriousness of Violation Negligence/Good Faith X Subtotal:

Adjustment Factor X Subtotal:

Unique Factor X Subtotal:

History of Noncompliance + Total Assessment:

33CSR22

33CSR22

Series 24 Hazardous Waste Management Fee

W. Va. Code R. § 33-24-1 General

1.1. Scope. -- The purpose of this rule is to establish procedures for the assessment and collection of hazardous waste management fund fees pursuant to W. Va. Code §§22-18-22-(b) and (c).

1.2. Authority. -- W. Va. Code §§22-18-22(b), (c), and 29A-1, et seq.

1.3. Filing Date. -- May 11, 2009.

1.4. Effective Date. -- June 1, 2009.

1.5. Incorporation by Reference. -- Whenever either federal statutes or rules or state statutes or rules are incorporated by reference into this rule, the reference is to the statute in effect on July 1, 2008.

W. Va. Code R. § 33-24-2 Definitions

2.1. Definitions of all terms used shall have the meaning prescribed in the State Hazardous Waste Management Act, W. Va. Code §§22-18-1 et seq. and the rules promulgated thereunder.

W. Va. Code R. § 33-24-3 Fee Assessment and Deposits

3.1. An annual certification fee shall be assessed for all facilities that manage hazardous waste. Calculation of the certification fee assessment shall be in accordance with the requirements of section five of this rule. If a fee schedule projection for any year shows the annual certification assessment would generate an amount in excess of that authorized by WV Code §22-18-22(b), the assessment will be equitably prorated to ensure compliance with the statute.

3.2. Deposits to the Fund.

3.2.a. All monies collected from the fees assessed pursuant to this rule shall be deposited in the State Treasury in a special fund designated “The Hazardous Waste Management Fee Fund.”

3.2.b. Deposits shall include all certification fee assessments and all interest accruing on investments and deposits of the Fund.

W. Va. Code R. § 33-24-4 Information and Reporting Requirements

4.1. Annual Reporting.

Each calendar year, all large quantity generators (LQG), small quantity generators (SQG), conditionally exempt small quantity generators (CESQG), and treatment, storage and disposal facilities (TSD) shall provide the information to the Secretary on the form identified as Appendix I attached to this rule and shall submit the completed form to the department, along with the required fee payment, by the first day of October.

4.2. Review of Information. All information submitted pursuant to this rule is subject to review by the Secretary to ensure that accurate and verifiable information is obtained. The Secretary may request clarifications, corrections, or additional information to supplement the information received to enable the department to properly calculate or recalculate fee assessments.

4.3. Exemptions.

4.3.a. No fee shall be assessed on the management of any wastes that have been excluded from classification as a hazardous waste by state or federal law or rule.

4.3.b. No fee shall be assessed on the management of waste from any underground storage tanks containing regulated substances that are registered pursuant to the requirements of Title 33 CSR Series 30 and which are otherwise subject to this rule; Provided however, that other management of hazardous waste at facilities containing such underground storage tanks is subject to the requirements of this rule.

W. Va. Code R. § 33-24-5 Fee Assessment

5.1. All persons subject to this rule shall annually pay the hazardous waste management fee in accordance with the following schedule:

Category Fee TSD $3,000 per facility Large Quantity Generator $2,200 per facility or a maximum of $5,600 for multiple facilities owned by the same person, whichever is lower Small Quantity Generator $500 per facility or a maximum of $5,000 for multiple facilities owned by the same person, whichever is lower Conditionally Exempt Small Quantity Generator $100 per facility

5.2. Payment of Fees.

5.2.a. Fee assessments shall be remitted in accordance with the form identified as Appendix I and attached to this rule.

5.2.b. A fee assessment paid pursuant to this rule shall be made by submitting a money order, check, or electronic funds transfer made payable to the Hazardous Waste Management Fee Fund along with the completed Appendix I form. Such fee payment must be transmitted to the Secretary. If such fee payment is mailed, then the payment must be postmarked by the date specified by these rules. Electronic funds transfers shall be made in accordance with procedures established by the State Treasurers Office.

5.2.c. If the facility of a person subject to this rule is described by more than one of the categories identified in section 5.1, only the category resulting in the highest fee shall apply. No person shall be required to pay more than one category of fees for each facility listed in section 5.1.

5.2.d. If a person owns or operates more than one facility in the large quantity generator or small quantity generator category, such person shall be required to pay the fee established in section 5.1 for each facility or the maximum amount for multiple facilities, whichever is less.

5.3. Fees submitted after November 15 of each calendar year are subject to a late charge of twenty-five percent of the fee assessed. Persons with a facility subject to this rule who have not paid the fee assessment and any late charge by December 31 of each calendar year may be subject to the provisions of W. Va. Code §22-18.

5.4. Reconsideration of Assessed Fees.

5.4.a. Any person assessed a fee for a facility pursuant to this rule may request the Secretary to reconsider the amount of fee assessed. Such request, accompanied by supporting documentation, must be submitted to the Secretary, in writing, by August 15 of the year for which the assessment is due, and must specify the reasons for requesting such reconsideration.

5.4.b. Upon reviewing a request submitted pursuant to subdivision 5.4.a., the Secretary shall reconsider the applicable calculations and shall respond in writing. If the fee assessment is revised, the Secretary shall issue a revised fee assessment invoice.

5.4.c. Any person aggrieved or adversely affected by a decision of the Secretary made and entered in accordance with the provisions of this section or by the failure or refusal of the Secretary to act pursuant to this section may appeal to the environmental quality board in accordance with the provisions of W. Va. Code §22b-1.

5.5. Reassessment of Fee.

The Secretary shall not be authorized to recalculate the fee assessments provided for by section 5.1. of this rule, except as provided for by section 5.4 of this rule.

West Virginia Department of Environmental Protection Hazardous Waste Management Program Hazardous Waste Management Fee Fund Appendix I Generator:

EPA Identification Number:

Location:

Mailing Address:

Operation Manager’s Name & Title: _______________________________________________________________ Mailing Address: ______________________________________________________________________________ _____________________________________________________________________________________________ Telephone Number: ____________________________ E-Mail Addr: ____________________________________ Contact Person Name & Title: ____________________________________________________________________ Mailing Address: ______________________________________________________________________________ _____________________________________________________________________________________________ Telephone Number: ____________________________ E-Mail Addr: ___________________________________ Has your facility ceased generating hazardous waste? Yes_____ No_____ If so, what is the date that your facility ceased generating waste? ________________________________________ Please review the categories below and mark an “X” next to the category that represents your facility’s current hazardous waste generating status.

Place an “X” in one of the categories below Generating Category Fee Amount Per Facility Treatment, Storage or Disposal Facility (Permitted) $3,000 Large Quantity Generator (LQG) Generates 1000 kg (about 2,200 pounds or 300 gallons) or more of hazardous waste, or more than 1 kg of acutely hazardous waste in a month $2,200 Small Quantity Generator (SQG) Generates more than 100 and less than 1,000 kg (between 220 and 2,200 pounds or about 25 to under 300 gallons) of hazardous waste,, or no more than 1 kg acutely hazardous waste in a month $500 Conditionally Exempt Small Quantity (CESQG) Generates no more than 100 kg (about 220 pounds or 25 gallons) of hazardous waste or no more than 1 kg of acutely hazardous waste in a month $100 No longer generating hazardous waste, but still in business No longer in business, closed Fee payments are due October 1 of each calendar year. Fees submitted after November 15 of each calendar year are subject to a late charge of twenty-five percent (25%) of the fee assessed. Persons with a facility subject to this rule who have not paid the fee assessment and any late charge by December 31 of each calendar year may be subject to the provisions of chapter twenty-two, article eighteen of the West Virginia Code. Persons with multiple facilities subject to this rule may utilize copies of the attachment to Appendix I to comply with this rule.

I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assume that qualified personnel properly gather and evaluate the information as submitted. Based on my inquiry of the person or persons who manage the system, as the person directly responsible for gathering this information, the information is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.

NAME:___________________________ TITLE: _________________ DATE: ____________

West Virginia Department of Environmental Protection Hazardous Waste Management Program Hazardous Waste Management Fee Fund - Appendix I – Multiple Site Form Company Name: Responsible Corporate Official:

Mailing Address: Title:

Telephone No:

E-mail Address:

Site Name & Location: Site Contact Person:

Physical Address: Title:

EPA ID No: Mailing Address:

Telephone No Current Status (mark applicable box) E-Mail Address: ___TSD ___LQG ___SQG ___CESQG ___No Longer a generator of hazardous waste, but still in business ___No longer in business Site Name & Location: Site Contact Person:

Physical Address: Title:

EPA ID No: Mailing Address:

Telephone No:

Current Status (mark applicable box) E-Mail Address: ___TSD ___LQG ___SQG ___CESQG ___No Longer a generator of hazardous waste, but still in business ___No longer in business Site Name & Location: Site Contact Person:

Physical Address: Title:

EPA ID No: Mailing Address:

Telephone No:

Current Status (mark applicable box) E-Mail Address: ___TSD ___LQG ___SQG ___CESQG ___No Longer a generator of hazardous waste, but still in business ___No longer in business 33CSR24 33CSR24 33CSR24 33CSR24

Series 26 Hazardous Waste Emergency Response Fund Procedural Rule Conderning Fee Assessment

W. Va. Code R. § 33-26-1 General

1.1. Scope. -- The purpose of this rule is to establish procedures for the assessment and collection of hazardous waste generator fees pursuant to W. Va. Code §22-19-1 et seq.

1.2. Authority. -- W. Va. Code §§22-19-5(d) and 29A-3.

1.3. Filing Date. -- August 28, 2002.

1.4. Effective Date. -- September 27, 2002.

1.5. Incorporation by Reference. -- Whenever either federal statutes or regulations or state statutes or rules are incorporated by reference into this rule, the reference is to the statute in effect on the date on which this rule is now proposed.

1.6. Repeal of Former Rule. -- This rule repeals and replaces 33CSR26 filed December 16, 1999, and effective January 19, 2000.

W. Va. Code R. § 33-26-2 Definitions

Definitions of all terms used, but not defined in this subsection, shall have the meaning prescribed in the HWMR and Article 19.

2.1. "Article 19" means W. Va. Code §22-19-1 et seq.

2.2. "Director" means the director of the Division of Waste Management of the West Virginia Department of Environmental Protection.

2.3. "Generator" means any person, corporation, partnership, association, or other legal entity, by site location, whose act or process produces hazardous waste as defined or listed by the director in rules promulgated pursuant to W. Va. Code §22-18-6 in an amount greater than five thousand kilograms ( 5,000 kg) per year.

2.4. "HWMR" or "The Hazardous Waste Management Rule" means Title 33, Series 20, Department of Environmental Protection’s Hazardous Waste Management Rule (33CSR20).

2.5. "Hazardous Components" shall be equivalent to the term "Hazardous Constituent" as used in Article 19, and shall mean that portion of a mixture of hazardous waste and other waste which is identified or listed in HWMR.

2.6. "Nonhazardous Constituents" means that portion of a mixture of hazardous waste and other waste which is neither identified nor listed pursuant to HWMR. (Note: Water which is mixed with a hazardous waste is considered a nonhazardous constituent for the purposes of this rule.)

W. Va. Code R. § 33-26-3 Fee Assessment Deposits

3.1. Deposits to the Fund.

3.1.a. All monies collected from generators under Article 19 will be deposited in the State Treasury in a special fund designated "The Hazardous Waste Emergency Response Fund."

3.1.b. Deposits will include all generator fee assessments, all interest or surcharges assessed and collected by the director, and all interest accruing on investments and deposits of the Fund.

W. Va. Code R. § 33-26-4 Information and Reporting Requirements

4.1. Reporting.

4.1.a. All generators shall provide the following information to the division for the applicable calendar year on the form identified as Appendix I and attached to this rule:

4.1.a.1. Total amounts (in tons) of hazardous waste generated, excluding nonhazardous constituents;

4.1.a.2. The amounts (in tons) of the quantity of hazardous waste reported for paragraph 4.1.a.1 of this rule which was treated or disposed of off-site;

4.1.a.3. The amounts (in tons) of that quantity of hazardous waste reported for paragraph 4.1.a.1 of this rule which was treated or disposed of on-site;

4.1.a.4. The amount (in tons) of that quantity of hazardous waste reported for paragraph 4.1.a.1 of this rule which was treated off-site so that such waste was rendered nonhazardous; and

4.1.a.5. The amount (in tons) of that quantity of hazardous waste reported for paragraph 4.1.a.1 of this rule which was treated on-site so that such waste was rendered nonhazardous.

4.1.b. If the total amount of hazardous waste reported under paragraph 4.1.a.1 of this rule is not equal to the sum of hazardous waste reported under paragraphs 4.1.a.2 through 4.1.a.5 of this rule, the reasons for the difference must be stated on the form identified as Appendix attached to this rule.

4.1.c. Once he or she completes the form identified as Appendix I to this rule, a generator shall submit that form to the division.

4.2. Review of Information.

4.2.a. All information submitted pursuant to this rule is subject to review by the director to ensure that accurate and verifiable information is obtained. The director may request clarifications, corrections, or additional information to supplement the information received to enable the department to properly calculate or recalculate fee assessments.

4.2.b. The result of any sample analyzes performed for reporting the quantity of hazardous waste generated shall be made available to the director upon request.

4.3. Separation of Hazardous Waste and Nonhazardous Constituents.

4.3.a. The determination of the amount of hazardous waste generated must account for the mixture of hazardous components and nonhazardous constituents in the generated hazardous waste in accordance with the following:

4.3.a.1. If the hazardous waste is listed in subsection 3.1 of the HWMR, or exhibits any of the characteristics described in subsection 3.1 of the HWMR, the amount of hazardous waste generated must represent the total amount of hazardous waste generated prior to mixing;

4.3.a.2. If the hazardous waste exhibits the characteristic described in subsection 3.1 of the HWMR, then the amount of hazardous component in the waste generated shall be determined by chemical analysis or computed from knowledge of the amount of the waste mixture and chemical composition of the waste stream;

4.3.a.3. If the hazardous waste exhibits any of the characteristic described in subsection 3.1 of the HWMR and physical separation or visual inspection can be employed to measure the proportions of hazardous components and nonhazardous constituents, then the amount of hazardous component in the waste generated may be measured by visual inspection or physical separation techniques and determined directly; and

4.3.a.4. If the hazardous waste is a mixture of nonhazardous constituents and a hazardous component listed in subsection 3.1 of the HWMR, then the amount of hazardous component in the waste generated must be determined and reported based on knowledge of the generation processes, physical separation, or chemical analysis.

4.3.b. If the generator finds, when making determinations as described under paragraphs 4.3.a.2 through 4.3.a.4 of this rule, that nonhazardous constituents have chemically bonded, physically bonded, or chemically and physically bonded to an extent that prevents physical or chemical separation of nonhazardous constituents and hazardous components, then the total amount of the hazardous waste mixture must be reported.

4.3.c. For all determinations performed pursuant to section 4 of this rule which require chemical analysis, reported weight determinations must be completed by employing total analytical concentration values.

4.4. No fee shall be assessed on any wastes that have been excluded from classification as a hazardous waste by state or federal law, rule or regulation.

W. Va. Code R. § 33-26-5 Fee Assessment

5.1. Dissemination of Fee Schedule.

5.1.a. Fee assessments will be computed by the department for all generators in accordance with the provisions of Article 19. Generators for whom fee assessments are computed by the department to be less than five dollars ($5.00) will not be sent a fee assessment invoice, nor are they required to pay such fees.

5.1.b. The director shall provide a copy of the fee schedule to each generator, by certified mail, within fifteen (15) days of publishing the fee schedule in the state register.

5.1.c. An invoice for the fee required pursuant to this rule shall be provided by the director to each generator upon whom a fee is assessed within fifteen (15) days of publication of the fee schedule in the state register. Such invoice shall include an itemized list of fees to be assessed and the date upon which such fees are due and payable. The invoice shall be provided in the form and manner prescribed by the director.

5.2. Payment of Fees.

5.2.a. Generator fee assessments are due and payable to the department on the fifteenth day of January (January 15) of 2004 and each succeeding year thereafter, except as provided in subdivision 5.2.b of this rule.

5.2.b. If a fee schedule is not published by the first day of August (August 1) of each year, generators upon whom fees are assessed pursuant to Article 19 must pay such fees within one hundred and sixty-eight (168) days after the publication of the fee schedule in the state register.

5.2.c. A fee payment made pursuant to this rule shall be made by submitting a money order or check made payable to the "Hazardous Waste Emergency Response Fund." Such fee payment must be transmitted to the director by the date specified on the invoice. If such fee payment is mailed, then the payment must be postmarked by the date specified on the invoice.

5.3. Reconsideration.

5.3.a. Any generator assessed a fee pursuant to this rule may request the director to reconsider the amount of fee assessed. Such request must be submitted to the director, in writing, within forty-five (45) days of the date sent as noted on the fee assessment invoice required under subdivision 5.1.c of this rule, and must specify the reasons for requesting such reconsideration.

5.3.b. Upon reviewing a request submitted pursuant to subdivision 5.3.a of this rule, the director will reconsider the applicable calculations and will notify the generator by letter of the results. If the director revises the fee assessment, the generator shall be sent a revised fee assessment invoice, payable on the normal fee payment date.

5.3.c. If a revision of fee assessment made pursuant to subdivision 5.3.d of this rule determines that a generator has made an overpayment greater than two hundred dollars ($200.00), the generator may choose to either receive a fund of the excess amount or use that excess as a credit against the subsequent fee assessment. If the overpayment is two hundred dollars ($200.00) or less, the excess amount will be credited against the subsequent fee assessment.

APPENDIX I

HAZARDOUS WASTE EMERGENCY RESPONSE FUND

FEE ASSESSMENT REPORT

Company Name: __________________________________ EPA I.D.#: ___________________________________________ Generator Location: _____________________________________ The amount of hazardous wastes generated during the 20____calendar year, EXCLUDING NONHAZARDOUS CONSTITUENTS. ____Tons 2. The amount of hazardous wastes generated (from the amount determined in #1)that were treated or disposed of off-site, but remained hazardous. ____Tons 3. The amount of hazardous wastes generated (from the amount determined in #1) that were treated or disposed of on-site, but remained hazardous. ____Tons 4. The amount of hazardous wastes generated (from the amount determined in #1) that were treated off-site, so that such wastes were rendered nonhazardous. ____Tons 5. The amount of hazardous wastes generated (from the amount determined in #1) that were treated on-site, so that such wastes were rendered nonhazardous. _____Tons 6. Provide a brief narrative of the method(s)used to determine the amount given in #1, including method(s) used to determine the nonhazardous constituents.

7. If the total of items #2 through #5 is not equal to item #1, provide reasons for the difference.

CERTFICIATION:

I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based upon my inquiry of the person or persons who managed the system or those persons directly responsible for gathering the information, the information submitted is to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations. _____________________________ ___________________________ Print or Type Name of Title Representative

Series 27 Hazardous Waste Administrative Proceedings and Civil Penalty Assessment

W. Va. Code R. § 33-27-1 General

1.1. Scope. -- This rule establishes a procedure for the resolution of enforcement actions and the assessment of civil penalties for violations of the Hazardous Waste Management Act in lieu of the institution of a civil action.

1.2. Authority. -- W. Va. Code §22-18-17(b)(2).

1.3. Filing Date. -- May 2, 2013

1.4. Effective Date. -- June 1, 2013

1.5. Nothing in this rule shall be construed as limiting or altering the authority of the Secretary to enforce the provisions of the Hazardous Waste Management Act (“Act”) or the Hazardous Waste Management Rule(s) (“Rules”) as set forth therein. This enforcement provision is in addition to any and all other enforcement provisions set forth in the Act or Rules.

W. Va. Code R. § 33-27-2 Definitions

2.1. This Rule hereby incorporates by reference the definitions of all terms as contained in the Hazardous Waste Management Act, W. Va. Code § 22-18-1 et seq., and the Hazardous Waste Management Rule, 33 CSR 20. In addition, for the purpose of this Rule, the following definitions apply:

2.2. “Administrative Proceedings” means those proceedings undertaken pursuant to this Rule by the Secretary upon the Secretary’s decision to attempt to resolve alleged violations of the Hazardous Waste Management Act and its rules.

2.3. “Base Penalty” means that amount assessed for a violation of the Act or its Rules based solely upon the extent of the deviation from the Act and the potential for harm to the public or the environment resulting from the violation.

2.4. “Responsible Party” may be a permittee, a hazardous waste generator or transporter, or any person alleged to have violated the Act or its Rules.

2.5. “Secretary” means the Secretary of the Department of Environmental Protection.

W. Va. Code R. § 33-27-3 Applicability of the Rule

3.1. Upon discovery of a violation, through whatever means, of the Hazardous Waste Management Act or its Rules, the Secretary may, at the Secretary’s discretion, choose to institute administrative proceedings pursuant to the Act and this Rule to resolve the alleged violation.

3.2. Not a Waiver. -- Nothing in this rule shall be construed as limiting the ability of the Secretary to pursue a civil action for any violation of the Act or its Rules should the agency and the responsible party be unable to reach settlement of the alleged violations pursuant to the procedures set forth in this Rule. The Secretary is under no requirement to institute administrative proceedings prior to taking any other lawful action pursuant to the Act or its Rules.

W. Va. Code R. § 33-27-4 Notice

4.1. The Secretary shall notify any responsible party of the Secretary’s decision to institute administrative proceedings pursuant to the Act and this Rule.

4.2. Notice of the Secretary’s decision to commence an administrative proceeding in an attempt to resolve an alleged violation of the Act or its Rules shall be by certified mail to the responsible party.

4.3. Notice shall include a proposed Consent Order initially containing, at a minimum, findings of fact and conclusions of law outlining the alleged violations, any remedial work to be performed by the responsible party, and a proposed civil penalty assessment that shall be based on the procedures set forth in this Rule.

4.4. The responsible party shall respond to the Secretary’s Notice within ten days of receipt thereof, indicating whether it will participate or refuses to participate in the administrative proceeding. Failure to timely respond shall be considered refusal to participate in the process.

W. Va. Code R. § 33-27-5 Administrative Proceedings

5.1. Should the responsible party agree to participate in an administrative proceeding, the parties shall set a meeting to be held within thirty days of the initial Notice, if possible.

5.2. The administrative proceeding may consist of multiple meetings amongst the parties and may continue until a satisfactory resolution of the alleged violation is agreed to.

5.3. If agreed to, resolution of the alleged violations contained in the Notice shall be by Consent Order entered into by the responsible party and the Secretary.

5.4. The administrative proceeding may be terminated at any time and for any reason by any party involved in the proceeding.

W. Va. Code R. § 33-27-6 Civil Penalty Assessment

6.1. Determination of Base Penalty – the seriousness (gravity) of a violation must be taken into account in assessing a penalty for a violation. This gravity based penalty amount should be determined by examining two factors: potential for harm and extent of deviation from the statutory or regulatory requirement.

6.1.a. Potential for harm to human health and the environment. --

6.1.a.1. The potential for harm to human health or the environment from a violation is based on two factors: the risk of human or environmental exposure to hazardous waste and/or hazardous constituents that may be posed by noncompliance, and the adverse effect noncompliance may have on the statutory or regulatory purposes or procedures for implementing the Resource Conservation and Recovery Act (RCRA) program.

6.1.a.2. Risk of exposure may be evaluated by considering the probability of exposure and the potential seriousness of contamination.

6.1.a.3. Violations of the Act or Rules may be evaluated by considering how the violation directly increases threat of harm to human health and the environment, how the violation undermines the statutory or regulatory purposes or procedures for implementing the RCRA Program and how the violation impairs the overall goals of RCRA to handle wastes in a safe and responsible manner. Examples include but are not limited to:

6.1.a.3.A. Failure to notify the Department that you are a generator or transporter of hazardous waste or an owner or operator of a hazardous waste facility

6.1.a.3.B. Failure to submit a timely or adequate Part B application.

6.1.a.3.C. Failure to respond to a formal information request.

6.1.a.3.D. Operating without a permit.

6.1.a.3.E. Failure to prepare or maintain a manifest.

6.1.a.3.F. Failure to maintain groundwater monitoring results.

6.1.a.4. Consideration shall be given to the potential harm posed by a violation rather than the actual harm which occurred. There need not be any showing of actual harm to human health or the environment to support a finding of potential harm.

6.1.a.5. Emphasis shall be placed on evidence of an actual release to the environment and harm to human health and/or actual exposure of humans or other environmental receptors to hazardous waste or constituents.

6.1.a.6. The Secretary shall determine whether the potential for harm was major, moderate or minor depending upon factors to be considered on a case-by case basis.

6.1.b. Extent of Deviation from Requirements. --

6.1.b.1. The extent of deviation from RCRA and its regulatory requirements relates to the degree to which the violation renders inoperative the requirements violated.

6.1.b.2. The Secretary shall determine whether the extent of deviation from the statutory or regulatory requirement was major, moderate or minor dependent upon factors to be considered on a case-by-case basis.

6.1.c. Factors that may be considered in determining potential for harm to human health and the environment and the extent of deviation from a regulatory requirement may include, but are not limited to, harm to the RCRA Program, probability of exposure, potential seriousness of contamination, and degree of non-compliance.

6.1.d. Civil Penalty Matrix. -- Each of the above factors - potential for harm and extent of deviation from a requirement - forms one of the axes of a civil penalty matrix from which the base penalty is calculated. The matrix shall have nine cells, each containing a penalty range. The selection of the exact penalty amount is within the discretion of the Secretary. The seriousness of the violation is considered in determining the base penalty. The reason the violation was committed, the intent of the responsible party or other factors related to the violator are not considered. The complete matrix is illustrated in Appendix A.

6.2. Penalty Adjustment Factors. --

6.2.a. The base penalty may be adjusted at the discretion of the Secretary after consideration of factors presented by the responsible party. The adjustment may raise or lower the base civil penalty.

6.2.b. The Secretary may consider the following factors in determining whether an adjustment in the base civil penalty assessment is justified;

6.2.b.1. Good faith efforts to comply or lack of good faith;

6.2.b.2. Degree of willfulness or negligence;

6.2.b.3. Cooperation with the Secretary

6.2.b.4. History of noncompliance;

6.2.b.5. Ability to pay a civil penalty;

6.2.b.6. Economic benefits derived by the responsible party;

6.2.b.7. Staff investigative costs; and

6.2.b.8. Other factors deemed relevant by the Secretary that may be present on a case-by-case basis.

6.3. Multi-Day Penalties. – In cases of an ongoing or continuing violation, each day of violation is one distinct violation for which a calculation must be made.

W. Va. Code R. § 33-27-7 Entry of Consent Order

7.1. Prior to a responsible party and the Secretary signing any Consent Order resolving an alleged violation of the Act or its Rules pursuant to this Rule, the Secretary shall publish notice in the form of a Class I Legal Advertisement in accordance with W. Va. Code § 59-3-1 et. seq. in a newspaper of general circulation in the county that the facility subject to the action is located at least thirty (30) days prior to the final settlement of any consent order. This notice will identify the facility found to be in violation, the specific enforcement action to be taken, and the name and address where information about the proposed settlement can be obtained. The Secretary shall consider all comments received during the thirty (30) day period.

7.2. The Secretary, based upon the public comments, may determine to either modify the Consent Order based upon the public comments or execute the Consent Order as proposed.

7.3. Should the Secretary modify the Consent Order as a result of public comments, the responsible party may reject the proposed modifications and thereby may reject the modified Consent Order.

7.4. Penalties collected pursuant to this Rule shall be deposited into the Hazardous Waste Management Fund within the Department of Environmental Protection for uses related to permitting, inspection, environmental remediation or any other activity deemed appropriate by the Secretary.

APPENDIX A

CIVIL PENALTY MATRIX

Extent of Deviation from Requirement MAJOR MODERATE MINOR Potential for Harm to Human Health or the Environment MAJOR $8,000 to $10,000 $6,000 to $8,000 $5,000 to $6,000 MODERATE $4,000 to $5,000 $3,000 to $4,000 $2,000 to $3,000 MINOR $1,500 to $2,000 $1,000 to $1,500 Up to $1,000

Series 30 Underground Storage Tanks

W. Va. Code R. § 33-30-1 General

1.1. Scope. – This legislative rule governs the construction, installation, upgrading, use, maintenance, testing, and closure of underground storage tanks in this State.

1.2. Authority. – W. Va. Code § 22-17-6.

1.3. Filing Date. -- March 9, 2018

1.4. Effective Date. -- June 1, 2018

W. Va. Code R. § 33-30-2 Adoption of Federal Regulations

2.1. Incorporation by Reference. – The Secretary hereby adopts and incorporates by reference the provisions contained in 40 C.F.R. Part 280 as published in the Code of Federal Regulations on July 1, 2016, with the following exceptions:

2.1.a. The definition of “implementing agency” that appears in 40 C.F.R. § 280.12 shall not apply and shall be replaced by “the West Virginia Department of Environmental Protection.”

2.1.b. The provisions contained in 40 C.F.R. § 280.20(e) shall not apply, and section 3 of this rule shall apply in lieu thereof.

2.1.c. The provisions contained in 40 C.F.R. § 280.22 shall not apply, and section 4 of this rule shall apply in lieu thereof.

2.1.d. The citation “section 9005 of Subtitle I of the Resource Conservation and Recovery Act, as amended” that appears in 40 C.F.R. § 280.34 shall not apply and shall be replaced by the phrase “W. Va. Code § 22-17-13.”

2.1.e. The provisions contained in 40 C.F.R. §§ 280.34(a)(1) and 280.251 (b) shall not apply and shall be replaced by the notification requirements in accordance with the provisions of section 4 of this rule.

2.1.f. The provisions contained in appendices I, II, and III of 40 C.F.R. Part 280 shall not apply.

W. Va. Code R. § 33-30-3 Certification Requirements for Individuals Who Install, Repair, Retrofit, Upgrade, Perform Change-in-Service, Close or Tightness Test Underground Storage Tank Systems or Install, Repair, Upgrade or Test Corrosion Protection on Underground Storage Tank Systems

3.1. Application of Requirements. – The requirements of this section apply to individuals engaged in underground storage tank system installation, repair, retrofitting, upgrading, change-in-service, closure, tightness testing or corrosion protection installation, repair, upgrade or testing.

3.2. Certified Individual Required. – No individual shall conduct an underground storage tank system installation, repair, retrofit, upgrade, change-in-service, closure, conduct a tightness test or a corrosion protection installation, repair, upgrade or test unless an individual present at the underground storage tank system site and exercising responsible supervisory control over the installation, repair, retrofit, upgrade, change-in-service, closure, tightness test or corrosion protection installation, repair, upgrade or test is currently certified by the Secretary in accordance with this section. The underground storage tank system owner or operator must ensure that the individual supervising the installation, repair, retrofitting, upgrade, change-in-service, closure, tightness testing or corrosion protection installation, repair, upgrade or testing is certified by the Secretary in the applicable class for the activity performed. The certified individual is required to ensure that the underground storage tank system installation, repair, retrofit, upgrade, change-in-service, closure, tightness testing or corrosion protection installation, repair, upgrade or testing is conducted in accordance with all applicable rules, regulations, and policies established by the Secretary.

3.2.a. An individual who holds a current certificate issued by the Secretary shall be present at all times during:

3.2.a.1. The installation process involving the preparation of the excavation immediately prior to receiving backfill and the tank; the setting of the tank; and the piping (including placement of any anchoring devices), backfilling to the level of the tank or strapping anytime during the installation in which piping components are connected; the installation of corrosion protection, either galvanic or impressed current, when anodes are installed; making electrical connections to the tank and anodes and when the system is energized; all testing of the underground storage tank and piping performed during the installation, completion of the backfill, and filling of the excavation; and installation of release detection devices within the excavation zone; or

3.2.a.2. The repair, retrofitting or upgrading process involving the excavation of existing tanks or piping; the actual performance of repairs to the tank or piping anytime during the process when components of the piping are connected; anytime during repair or upgrade of corrosion protection, either galvanic or impressed current, when anodes are installed making electrical connections to the tank and anodes and when the system is energized; anytime during the repair process when the tank or associated piping are tested; and at anytime during the process when equipment is connected to the tank or piping.

3.2.a.3. The tightness testing of tanks or piping;

3.2.a.4. The change-in-service or closure process involving the process of vapor removal, purging, inerting, cleaning, and all subsurface sample collection events; and

3.2.a.5. The installation or testing of a corrosion protection system, either galvanic or impressed current.

3.2.b. All class A, B, C, D, E, and F certified workers are required to use testing forms approved by the Secretary.

3.3. Certification Categories. – The underground storage tank system certificates issued by the Secretary will address the following categories:

3.3.a. A class A certificate will allow the individual certified to install, repair, retrofit or upgrade an underground storage tank system, to tightness test Under Dispenser Containment (UDC) basins, tightness test all sumps and spill buckets during installation or replacements, excluding activities associated with corrosion protection or linings (e.g. internal lining, external coating, installation of or maintenance on galvanic or impressed current systems), which must be performed by a Class D or E certified worker as appropriate;

3.3.b. A Class B certificate will allow the individual certified to perform a change-in-service or close an underground storage tank system;

3.3.c. A Class C certificate will allow the individual certified to perform tank or piping tightness testing, tank integrity testing, tightness testing of spill buckets, tightness testing of Under Dispenser Containment basins, tightness testing of Submersible Turbine Pump (STP) basins, function testing of line leak detectors, and to disconnect and reconnect piping and equipment to an underground storage tank system as is necessary to perform the tightness test;

3.3.d. A Class D certificate will allow the individual certified to install, repair, test or upgrade corrosion protection systems, either galvanic, impressed current, internal liners, and/or external coatings on an underground storage tank system; and

3.3.e. A Class E certificate will allow the individual certified to conduct routine tests, system maintenance, and routine inspections on corrosion protection systems, either galvanic or impressed current, on an underground storage tank system.

3.3.f. A Class F certificate will allow the individual certified to verify ball floats or overfill, replace vapor recovery adapters, replace fill shut offs, replace STP motors, check and replace probes and sensors, fix unions under dispensers, replace fuel adapters, replace line leak detectors, replace flex connectors, check and replace valves, replace pipe fittings accessible without excavating, and perform hydrostatic testing of all sumps, under dispenser containers, and spill buckets.

3.4. Certification Requirements. – An individual applying for a certification under any Class listed above must file a written application on a form supplied by the Secretary showing the Secretary that he or she meets the following requirements:

3.4.a. The applicant must be an individual. Businesses or corporations may not be certified;

3.4.b. The applicant need not be a resident of West Virginia;

3.4.c. The applicant shall demonstrate ethical practice. The demonstration shall consist of providing to the Secretary written statements from two (2) personal references and two (2) business references attesting to the applicant’s ethical practices. In addition, the Secretary may check with other certification or licensing boards with which the applicant is registered to determine the nature of violations of federal, State or local laws and regulations relating to the applicant’s performance in an ethical and competent manner. The Secretary may deny the applicant’s certification application based upon the documentary evidence obtained pursuant to this subdivision;

3.4.d. The applicant for class A, B, C, or F certification must demonstrate active participation in a minimum of ten (10) regulated underground storage tank system installations, repairs, retrofits, upgrades, performances of a change-in-service, closures or tightness testing conducted after December 22, 1988, as is applicable to the class A, B, C, or F certificate. The applicant shall submit documentation of a minimum of ten (10) active job participations for each individual certificate classification for which the applicant has applied. An applicant who is a professional civil or mechanical engineer duly licensed by the State Board of Registration for Professional Engineers of West Virginia may substitute this license for the required experience for class A or class B certification;

3.4.d.1. Applicants shall provide the Secretary a listing of the work performed, site locations, and the names of the companies or employers for whom the work was performed;

3.4.d.2. Applicants for Class C certification must submit proof of a current certification by the manufacturer of each tank or piping tightness test method that the applicant will be using and must assure by a signed written statement filed with the Secretary that the applicant will follow the current test protocol established by the manufacturer and policies established by the Secretary;

3.4.e. Applicants for Class D certification must submit, at a minimum, proof of a current certification level as a corrosion technician by the National Association of Corrosion Engineers (NACE) or an equivalent certification from another organization if the applicant will be installing, upgrading, repairing or testing galvanic and impressed current systems. Applicants for Class D certification must have, at a minimum, proof of current certification level as a protective coating technician by NACE or an equivalent certification from another organization if the applicant will be installing, upgrading or repairing internal and external coatings and certification from the coating manufacturer. The applicant must prove that certification by an organization other than the National Association of Corrosion Engineers is equivalent to the National Association of Corrosion Engineers by submitting copies of the course of study for review by the Secretary.

3.4.f. Applicants for Class E certification must submit, at a minimum, proof of a current certification level as a corrosion tester by the National Association of Corrosion Engineers or an equivalent certification from another organization for testing of galvanic and impressed current systems. The applicant must prove that certification by an organization other than the National Association of Corrosion Engineers is equivalent to the National Association of Corrosion Engineers by submitting copies of the course of study for review.

3.4.g. No applicant for Class A, B, C or F certification shall be issued a certificate unless he or she has successfully passed a written examination administered by the Secretary;

3.4.g.1. Examinations administered to applicants for certification shall be written, multiple choice examinations. The Secretary shall derive the questions used in the examination from standards, instructions, industry recommended practices, and State and federal laws and regulations pertaining to underground storage tank system installation, repair, retrofitting, upgrading, change-in-service, closure, and tightness testing. The Secretary may, at his or her discretion, make available to applicants alternative testing procedures;

3.4.g.2. The Secretary or persons designated by the Secretary shall conduct written examinations at such times and locations within the State as the Secretary may consider necessary and appropriate;

3.4.g.3. Applicants for certification must correctly answer not less than eighty percent (80%) of the questions in a category of certification to qualify for that category of certification; and

3.4.g.4. No applicant may take an examination more than three times within a 12-month period. Applications are considered current for a period of one year from the date they are received by the Secretary. After one year, the applicant must file a new application and pay the examination fee;

3.4.h. At the time of the examination the applicant for Class A, B, C, or F certification shall remit a nonrefundable $185 fee by check or money order made payable to the Department of Environmental Protection for each certification for which the applicant has applied. This fee shall be deposited in the Underground Storage Tank Administrative Fund. A fee of $60 shall be assessed for each retesting of each individual certification within the same year.

3.4.i. Applicants for Class D or E certification shall submit a nonrefundable application fee of $185 by check or money order made payable to Department of Environmental Protection for each certification for which the applicant has applied. This fee shall be deposited in the Underground Storage Tank Administrative Fund.

3.5. Certificate Expiration and Renewal. – All certificates and certificate renewals expire December 31 of every third year after issuance. Applications for certificate renewal and payment of a nonrefundable renewal fee of $125 must be submitted to the Secretary by November 1 of the year in which the certificate expires., which fee shall be deposited into the Underground Storage Tank Administrative Fund. An individual whose certificate has expired prior to his or her submission of an application for renewal is considered a new applicant for each certification.

3.5.a. An individual may renew each of his or her certificates for another three-year period by:

3.5.a.1. Paying the renewal fee for each certification for which the applicant has applied; and

3.5.a.2. Submitting on a form supplied by the Secretary a certificate renewal application demonstrating that he or she has completed 16 hours of continuing education training courses approved by the Secretary for each class of certification and has participated in at least one job annually applicable to the class of certification within the prior certification period.

3.5.a.2.A. The continuing education training course must be relevant to the subject area of installation, repair, retrofitting, upgrading, corrosion protection, change-in-service, closure, tightness testing or the regulation of underground storage tank systems as it relates to the category of certification and offer instruction on the most current generally acceptable technology or methods for these subjects.

3.5.a.2.B. The training provider shall provide to the Secretary in writing applications for approval of specific training programs. The submissions shall contain a complete course outline, training material, sample certificates, the methodology for verifying attendance, the date, time and location of the course, the name of the offering organization, the credentials of the instructors, and a certification that the technology or methods that will be presented in the training program will satisfy State and federal laws governing underground storage tank system installation, repair, retrofitting, upgrading, corrosion protection, change-in-service, closure or tightness testing; or

3.5.a.3. Submitting on a form supplied by the Secretary a certificate renewal application, demonstrating that he or she has participated in at least one job annually applicable to the class of certification within the prior certification period and successfully passing the written examination described in subdivision 3.4.g. of this rule. At the time of the examination, the applicant applying for renewal must remit a nonrefundable $125 fee by check or money order made payable to the Department of Environmental Protection for each certification for which the applicant has applied, which fee shall be deposited into the Underground Storage Tank Administrative Fund; and

3.5.b. Individuals certified in Class C must submit a copy of their current certification by the manufacturer of each test method that they are and will be using. Individuals certified in Class D or Class E must submit a copy of their current certification by the National Association of Corrosion Engineers or another previously approved equivalent organization.

3.6. Identification Card. – Upon issuance of the certification, the Secretary shall issue an identification card to the successful applicant that shows the individual’s name, certificate issuance date, certificate expiration date, certification number, and the class(es) of certification. An individual who holds a current certificate shall present his or her identification card upon request by a representative of the Secretary or the owner or operator of the underground storage tank system for which an installation, repair, retrofit, upgrade, change-in-service, closure, tightness test or corrosion protection installation, repair, upgrade or test is to be conducted.

3.7. Denial or Revocation of Certification. – Should the Secretary deny issuance or renewal of certification or should the Secretary revoke the individual’s certificate, the Secretary shall set forth in writing to the applicant the reason or reasons for the denial or revocation.

3.7.a. Possible reasons for denial of issuance of certification, renewal of certification or revocation of certification may include, but are not limited to, failure to achieve a passing score on the written examination described in subdivision 3.4.g. of this rule; failure to submit required documentation; failure to follow the tank or piping tightness testing manufacturer’s protocol or policies established by the secretary; failure to be on site performing or providing direct oversight of work required to be performed by the certified worker; failure to follow industry standards for corrosion protection or policies established by the Secretary; previous revocation of certification held by the applicant; evidence of fraud or deceit with respect to the certification application, notification form or testing documents; failure to present the identification card upon request of a Secretary’s representative; violations of the laws or rules of West Virginia for ethical considerations enumerated in subdivision 3.4.c. of this rule; or any other cause that, in the opinion of the Secretary, constitutes adequate grounds for denial or revocation of a certificate.

3.7.b. An individual who has been denied issuance or renewal of certification or who has had a certificate revoked may appeal the action to the Environmental Quality Board pursuant to the provisions of W. Va. Code § 22-17-18.

W. Va. Code R. § 33-30-4 Notification Requirements

4.1. Notification. – Except as provided in subdivision 4.1.a., 4.1.b., or 4.1.c. of this rule, the owner and operator of an underground storage tank system that was in the ground prior to May 1, 1990, must submit a notice of the existence of such tank system to the secretary by completing the form prescribed by the secretary.

4.1.a. The owner and operator of an underground storage tank system that was in the ground prior to May 1, 1990, is exempt from the notification requirements of subsection 4.1 of this rule if notice was previously given to the secretary in accordance with the provisions of the federal Hazardous and Solid Waste Amendments of 1984 on the form published in the federal register on November 8, 1985 (50 F.R. 46602), unless such notice was given pursuant to section 103(c) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

4.1.b. The owner and operator of an underground storage tank system that was removed from the ground on or before May 8, 1986, is exempt from the notification requirements of subsection 4.1 of this rule.

4.1.c. The owner and operator of an underground storage tank that was installed before December 22, 1988, need only complete sections I through X of the form prescribed by the secretary. Tank systems installed on or after December 22, 1988 must comply with the provisions of subsection 4.2 of this rule.

4.2. Notification of Compliance. -- All owners and operators of underground storage tank systems installed on or after December 22, 1988 must provide the Secretary notification of compliance with the following requirements:

4.2.a. For underground storage tank systems installed on or after January 1, 1995, installation of tanks and piping by an individual certified by the Secretary in accordance with section 3 of this rule.

4.2.b. Cathodic protection of steel tanks and piping in accordance with the provisions of 40 C.F.R. § 280.20(a) and (b).

4.2.c. Spill and overfill prevention equipment in accordance with the provisions of 40 C.F.R. § 280.20(c).

4.2.d. Financial responsibility in accordance with the provisions of 40 C.F.R. Part 280, Subpart H.

4.2.e. Release detection in accordance with the provisions of 40 C.F.R. § 280.41 and § 280.42.

4.3. Notification of Installation or Upgrade. – At least 30 days prior to commencement of the activity, all owners and operators of underground storage tank systems shall notify the Secretary in writing of any installation, upgrade or repair of the tank’s internal lining or corrosion protection systems. The owner or operator shall also notify the Secretary, in writing, within 30 days of discovery of any deficiency in the structural integrity of the tank(s). The Secretary may waive the 30-day time period when such action is in response to a release from an existing UST system on the site.

4.4. Certification of Installation. – All owners and operators of UST systems must ensure that:

4.4.a. When the system was installed on or after December 22, 1988, and before January 1, 1995, the installer certifies, in the notification form, that the methods used to install the tanks and piping comply with the requirements of 40 C.F.R. §280.20(d); and

4.4.b. When the system was installed on or after January 1, 1995, but prior to the effective date of this rule, the installation of tanks and piping was performed by an individual certified by the secretary in accordance with section 3 of this rule. The installer must certify in the notification form that the methods used to install the tanks and piping comply with the requirements of 40 C.F.R. 280.20(a) through (d). After the effective date of this Rule, the installer shall certify in the notification form that the methods used to install the tanks and piping comply with the requirements of 40 C.F.R. § 280.20(a) through (d) and (f).

4.5. Notification Requirements. – An owner and operator who is required to submit notices under section 4 of this rule may provide notice for several tanks by using one notification form, but an owner of tanks located at more than one place of operation must file a separate notification form for each separate place of operation.

4.6. Notification to Purchaser. – After June 10, 1988, any person who sells a tank intended to be used as an underground storage tank must notify the purchaser of the tank of the owner’s notification obligations under section 4 of this rule. The following notice may be used to comply with the requirement:

“NOTICE: Owners of certain underground storage tanks in West Virginia are required by law to notify the Secretary of the Department of Environmental Protection of the existence of their tanks. Notifications for tanks brought into use after May 8, 1986 must be made within 30 days of commencement of the use. Consult the Department’s Underground Storage Tank Rule (33 C.S.R. 30) to determine if you must provide this notification.”

After June 14, 1993, any person who sells an existing tank intended to be used as an underground storage tank must notify the Secretary in writing at least 30 days prior to the transfer of ownership.

4.7. Notification of Change in Status. – Except as provided in subsection 4.6. of this rule, the owner and operator must report changes in the status of any underground storage tank system by completing the form prescribed by the Secretary and submitting the form to the Secretary by December 31 of the year in which the change of status occurred. A new owner of an underground storage tank must provide notification of the transfer of ownership of that tank, a change in tank operator or a change of contact information and address for the tank owner and operator by completing the form prescribed by and submitting the form to the Secretary, along with proof of financial responsibility in accordance with the provisions of 40 C.F.R. Part 280, Subpart H. The new owner and operator must submit this information to the Secretary within 30 days of the change of ownership, change of operator or change of address information.

W. Va. Code R. § 33-30-5 Delivery Prohibition

5.1. Proof of Compliance. – Product deliverers, including any person who approves a delivery order or delivers or deposits product into an underground storage tank, shall not deliver product into an underground storage tank unless the Secretary has certified that the underground storage tank owner or operator is in compliance with the requirements of the Underground Storage Tank Fee Assessments (33 C.S.R. 31) and the notification requirements under section 4 of this Rule, and the owner or operator presents proof of this certification along with proof of financial responsibility in compliance with 40 C.F.R. Part 280, Subpart H to the product deliverer.

5.2. Tank Eligibility for Delivery, Deposit or Acceptance. – An underground storage tank is eligible to receive product when in compliance with the requirements of 40 C.F.R. Part 280:

5.2.a. Required spill prevention equipment is installed and properly operated and maintained;

5.2.b. Required overfill protection equipment is installed and properly operated and maintained;

5.2.c. Required leak detection equipment is installed and properly operated and maintained;

5.2.d. Required corrosion protection equipment including a buried metal flexible connector is installed and properly operated and maintained; and

5.2.e. Required financial responsibility is maintained.

5.3. Delivery, Deposit or Acceptance of Product to Ineligible Tanks. – Product deliverers shall not deliver or deposit into an underground storage tank, nor shall an underground storage tank owner or operator accept or allow delivery or deposit to an underground storage tank, that the Secretary has identified as ineligible to receive product.

5.4. Notification of Ineligibility. – The Secretary shall notify the owner or operator in writing that an underground storage tank is ineligible to accept deposit or delivery and may affix a tag, notice or locking device to the underground storage tank until the owner or operator achieves compliance with the requirements of subsection 5.2.

5.4.a. The Secretary may choose to classify an underground storage tank as ineligible to receive product but then authorize delivery in an emergency situation.

5.5. Enforcement. – Any product deliverer, owner or operator who violates the provisions of this section is subject to enforcement action under W. Va. Code § 22-17-1, et seq.

W. Va. Code R. § 33-30-6 Operator Training Requirements

6.1. Approval of Required Training.

6.1.a. Training for individuals identified in 40 C.F.R. § 280.242 must receive prior approval by the Secretary. Upon approval, the training may be conducted multiple times at multiple locations.

6.1.a.1. Operator training courses must be renewed every five years or as otherwise specified by the Secretary. The training provider shall submit to the Secretary in writing applications for approval of specific training programs. The submissions shall meet the operator training course requirements set forth in 40 C.F.R. § 280.242, the requirements of this Rule, and guidance provided by the Secretary.

6.1.a.2. The training provider shall submit to the Secretary, with the application for approval of a specific training program, a nonrefundable application fee of $280.00 by check or money order made payable to the Department of Environmental Protection for deposit into the Underground Storage Tank Administrative Fund. This fee shall be deposited in the Underground Storage Tank Administrative Fund.

Series 31 Underground Storage Tank Fee Assessments

W. Va. Code R. § 33-31-1 General

1.1. Scope. -- This legislative rule establishes procedures for the assessment and collection of fees for the Underground Storage Tank Administrative Fund and the Leaking Underground Storage Tank Response Fund pursuant to W. Va. Code §§22-17-20 and 22-17-21.

1.2. Authority. -- W. Va. Code §22-17-6.

1.3. Filing Date. -- May 10, 2005.

1.4. Effective Date. -- June 1, 2005.

1.5. Incorporation by Reference. -- Whenever federal statutes or regulations are incorporated by reference into this rule, the reference is to the statute or rule in effect on the date on which this rule was proposed April 8, 2004.

1.6. Tanks Excluded From Fee Assessments. -- The following categories of underground storage tanks are excluded from the fee assessment provisions of section 3 of this rule.

1.6.a. Any underground storage tank holding hazardous wastes listed or identified under Subtitle C of the federal Resource Conservation and Recovery Act of 1976, as amended, or a mixture of such hazardous waste and other regulated substances;

1.6.b. Any wastewater treatment tank system that is part of a wastewater treatment facility regulated under section 402 or 307(b) of the federal Clean Water Act;

1.6.c. Equipment or machinery that contains regulated substances for operational purposes such as hydraulic lift tanks and electrical equipment tanks;

1.6.d. Any underground storage tank system whose capacity is one hundred and ten (110) gallons or less;

1.6.e. Any underground storage tank system that contains a de minimis concentration of regulated substances; and

1.6.f. Any emergency spill or overflow containment underground storage tank system that is expeditiously emptied after use.

W. Va. Code R. § 33-31-2 Definitions

2.1. "Act" means the West Virginia Underground Storage Tank Act (W. Va. Code §22-17-1 et seq.).

2.2. "Change-In-Service" means when an underground storage tank system has undergone a "change-in-service" pursuant to 40 C.F.R. §§280.71 and 280.72.

2.3. “Department” means the department of environmental protection.

2.4. "Owner" means:

2.4.a. In the case of an underground storage tank system in use on November 8, 1984, or brought into use after that date, a person who owns an underground storage tank used for the storage, use, or dispensing of a regulated substance.

2.4.b. In the case of an underground storage tank system, in use before November 8, 1984, but no longer in use on that date, a person who owned such a tank immediately before the discontinuation of its use.

2.5. "Person" means any individual, trust, firm, joint stock company, federal agency, corporation (including government corporations), partnership, association, state, municipality, commission, political subdivision of a state, interstate body, consortium, joint venture, commercial entity, or the United States government.

2.6. "Permanent Closure" means the closure of an underground storage tank in the manner specified under 40 C.F.R. §§ 280.71 and 280.72.

2.7. "Regulated Substance" means:

2.7.a. Any substance defined in section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, but not including any substance regulated as a hazardous waste under Subtitle C of the federal Resource Conservation and Recovery Act of 1976, as amended; or

2.7.b. Petroleum, including crude oil or any fraction thereof which is liquid at a temperature of sixty (60) degrees fahrenheit and a pressure of fourteen and seven-tenths pounds per square inch absolute (14.7 psia).

2.8. "Underground Storage Tank" or "UST" means any one or combination of tanks, and the underground pipes connected thereto, that is used to contain an accumulation of regulated substances and the volume of which, including the volume of underground pipes connected thereto, is ten percent (10%) or more beneath the surface of the ground. The term underground storage tank does not include:

2.8.a. Farm or residential tanks with a capacity of eleven hundred (1,100) gallons or less and used for storing motor fuel for noncommercial purposes;

2.8.b. Tanks used for storing heating oil for consumptive use on the premises where stored;

2.8.c. Septic tanks;

2.8.d. A pipeline facility, including gathering lines, regulated under the Natural Gas Pipeline Safety Act of 1968 or the Hazardous Liquid Pipeline Safety Act of 1979, or an intrastate pipeline facility regulated under state laws comparable to the provisions of either of those acts;

2.8.e. Surface impoundments, pits, ponds, or lagoons;

2.8.f. Storm water or wastewater collection systems;

2.8.g. Flow-through process tanks;

2.8.h. Liquid traps or associated gathering lines directly related to oil or gas production and gathering operations;

2.8.i. Storage tanks situated in an underground area such as basement, cellar, mine working, drift, shaft, or tunnel if such storage tank is situated upon or above the surface of the floor; and

2.8.j. Any pipes connected to any tank which is described in sub-division 2.8.a. through 2.8.i. of this rule.

W. Va. Code R. § 33-31-3 Fee Assessment

3.1. Registration Fees.

3.1.a. The department will collect an annual registration fee from each owner of an underground storage tank which has not undergone permanent closure or change-in-service in this state. The registration fee will not exceed sixty-five dollars ($65) per tank per year.

3.2. Response Fees.

3.2.a. The department will collect an annual response fee from each owner of an underground petroleum storage tank which has not undergone permanent closure or change-in-service in this state. The response fee will not exceed twenty-five dollars ($25) per tank per year.

3.3. Fee Calculation.

3.3.a. The department will calculate the fees assessed pursuant to this rule based upon the maximum assessment allowable under the Act.

3.3.b. Owners of USTs, the use of which commenced on or after January 1 of the current calendar year must pay the full annual fees assessed under sub-sections 3.1. and 3.2. of this rule (i.e., fees assessed will not be prorated).

3.3.c. Owners of USTs that have completed permanent closure or a change-in-service during the calendar year must pay the full annual fees assessed under sub-sections 3.1. and 3.2. of this rule.

3.4. Fee Consolidation.

3.4.a. The fees assessed pursuant to this rule will be consolidated.

W. Va. Code R. § 33-31-4 Fee Collection

4.1. An invoice for the fees assessed pursuant to this rule will be provided by the department to each tank owner upon whom a fee is assessed. Such invoice will include an itemized list of fees assessed and the date upon which such fees are due and payable. The invoice will be provided in the form and manner prescribed by the department.

4.2. Fees assessed pursuant to this rule must be paid by check, money order, or bank draft payable to the West Virginia department of environmental protection. Payment of the entire amount of the fees assessed, as calculated on the assessment invoice, must be made in a single payment.

4.3. Fee payments must be sent to the address on the assessment invoice provided by the department by the date specified on the invoice. If such fee payment is mailed, then the payment must be postmarked by the date specified on the invoice.

4.4. Correcting Fee Assessment Errors.

4.4.a. Under charges that appear on the assessment invoices issued by the department will be corrected by the issuance of a corrected invoice.

4.4.b. Overcharges that appear on the assessment invoices issued by the department will be corrected on the assessment invoices issued for the next calendar year unless the tank owner submits a written request for a refund to the department. Said request, along with documentation supporting the claim of erroneous assessment, must accompany the payment of the assessed fee. The department shall investigate the tank owner's claim and issue a refund for the amount in excess of the proper assessment if the tank owner's claim proves to be valid.

4.4.c. Any errors made in the calculation of assessment fees, whether by the department or as a result of inaccurate information submitted by the owner or operator pursuant to the notification requirements under section 4 of the Underground Storage Tank Rule ((33 C.S.R 30 §4) and section 8 of The Underground Storage Tank Act (W. Va. Code §22-17-8), must be corrected within one (1) year of the due date posted on the invoice:

4.4.d. All fee assessments shall be as originally assessed if no errors are identified within the one (1) year period.

4.5. A tank owner who does not make a full, timely payment of the fees pursuant to this rule, or who otherwise fails to comply with the provisions of this rule, is subject to the penalties provided under W. Va. Code §§22-17-15 and 22-17-16.

4.6. Penalties shall be assessed on fee payments not received by the specified due date on the invoice. Late fees shall be a cumulative sum based on the following penalty assessment:

4.6.a. Fifty percent (50%) of the balance assessed for delinquent fees in excess of thirty (30) days after the due date specified on the invoice.

W. Va. Code R. § 33-31-5 Fee Deposit

5.1. Fees collected by the department pursuant to this rule will be deposited into the state treasury in accordance with W. Va. Code §§22-17-20 and 22-17-21.

5.1.a. The deposit of a fee payment into the state treasury is not an admission by the department of an assessment for the correct number of tanks. Each tank owner is obligated to notify the department if the number of tanks assessed is incorrect. Corrections will be made in accordance with sub-section 4.4 of this rule.

5.1.b. Deposits into the Underground Storage Tank Administrative Fund will include:

5.1.b.1. All registration fees collected pursuant to sub-section 3.1 of this rule;

5.1.b.2. The net proceeds of all fines, penalties, and forfeitures collected under the Act; and

5.1.b.3. All interest accruing on investments and deposits of this fund.

5.1.c. Deposits into the Leaking Underground Storage Tank Response Fund will include;

5.1.c.1. All response fees collected pursuant to sub-section 3.2 of this rule;

5.1.c.2. Any registration fee monies received by the department that exceed the maximum annual balance for the Underground Storage Tank Administrative Fund as prescribed under W. Va. Code §22-17-20(a).

5.1.c.3. All interest accruing on investments and deposits of this fund.

33CSR31

33CSR31

Series 40 Commercial Solid Waste Landfill Closure Assistance Program (97 tech cleanup changing # from 47-38C)

W. Va. Code R. § 33-40-1 General

1.1. Scope. -- This legislative rule establishes requirements for the operation of the Landfill Closure Assistance Program pursuant to W. Va. Code '22-16-1 et seq. Article 16 provides an application process for the permittee, sets conditions for application approval, provides guidance for interim status assistance, and establishes a prioritization procedure for assistance. This rule applies to any permittee who may desire closure assistance from the Division of Environmental Protection.

1.2. Authority. -- W. Va. Code '22-16-13.

1.3. Filing Date. -- May 20, 1994.

1.4. Effective Date. -- June 1, 1994.

1.5. Short Title. -- Closure Assistance Program.

1.6. Incorporation by Reference. -- Whenever federal or state statutes or regulations are incorporated into this rule by reference, the reference is to the statute or rule in effect on July 1, 1992.

W. Va. Code R. § 33-40-2 Definitions

2.1. "Chief" means the chief of the Office of Waste Management, Division of Environmental Protection or his or her authorized representative.

2.2. "Cost of Project" includes the cost of the services authorized in W. Va. Code ''22-16-3 and 15, property, material and labor which are essential thereto, financing charges, interest during construction, and all other expenses, including legal fees, trustees' engineers' and architects' fees which are necessarily or properly incidental to the program;

2.3. "Director" means the director of the Division of Environmental Protection, or his or her authorized representative;

2.4. "Landfill" means any solid waste facility for the disposal of solid waste on land, and also 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. The facility shall be considered to be situated, for purposes of this rule, in the county where the majority of the spatial area of the facility is located;

2.5. "Permittee" means a person who has or should obtain a permit for a commercial solid waste facility that is a landfill;

2.6. "Project" means the providing of closure assistance to one or more landfills under this rule;

2.7. Incorporation of '22-15-2 Definitions. -- The definitions provided in W. Va. Code '22-15-2, and the rules promulgated thereunder, to the extent they are applicable, apply to this rule. .'33-40-3. Closure Assistance Application.

3.1. Application Form. -- Unless otherwise instructed by the director in writing, the permittee shall use the application form attached (Appendix A).

3.2. Application Information. -- The application may request the following information:

3.2.a. Name of permittee;

3.2.b. Mailing address of permittee;

3.2.c. Name of facility;

3.2.d. General location of facility;

3.2.e. Solid Waste Facility Permit Number, or the Permit Application Number, as applicable;

3.2.f. NPDES Permit Number, and the effective date or Application Number, or General Permit Number, as applicable;

3.2.g. Type of bond in effect, and the bond's amount, and expiration date;

3.2.h. Financial information;

3.2.h.1. The financial statement shall include income statements, balance sheets, statements of changes in financial position, and accompanying notes to the statements. The statements will cover the most recent accounting year and the two immediately preceding accounting years.

3.2.h.2. It is required that these statements be audited statements provided by independent certified public accountants unless the director grants a waiver of these requirements pursuant to paragraph 3.2.h.4 of this rule.

3.2.h.3. If the statements are supplied unaudited, they shall at a minimum contain the following information:

3.2.h.3.A. The income statements will contain such detail as to identify all sources of revenue and a reasonable breakdown of expenses including interest, depreciation and taxes;

3.2.h.3.B. The balance sheet's asset section will contain identification of all cash and investments, property, plant, and equipment, and other assets. The liabilities section will contain current accounts and notes receivable and a listing of all long term debt. The equity section will contain the beginning balance, current year changes and ending balance;

3.2.h.3.C. The statements of changes in financial position will identify the sources and uses of cash by the reporting entity;

3.2.h.3.D. The statements will be accompanied with supporting notes which explain and detail the major items of interest and make necessary disclosures; and

3.2.h.3.E. Unaudited statements will be accompanied with and supported by copies of filed federal income tax returns.

3.2.h.4. At the discretion of the director, the above requirements or portions thereof may be waived for good cause. The waiver shall be requested and approved or denied in writing.

3.2.h.5. The financial information section of this rule may apply to all parties named in the original disclosure application as required in W. Va. Code '22-15- 5(k); and

3.2.i. Any other information from the permittee required by the director, in writing, in order to determine the permittee's acceptance into the program.

3.3. Application Review and Decision. -- The application will be reviewed by the director and notification of acceptance or rejection will be sent to the permittee within a reasonable amount of time. If the application is rejected, the notice shall contain the reason(s) for the rejection.

3.4. Application Resubmittal. -- If the permittee's application is rejected, the permittee shall have the opportunity to correct or remedy where the director finds, in writing, that the conditions which are the basis for the director's rejection can be corrected or remedied. The applicant may resubmit its application for closure assistance within ninety (90) days after the date of receipt of the director's notice of rejection and the deadline for application for landfill closure assistance will be extended for this period to allow for resubmission of the permittee's application.

3.5. Application Deadlines. -- All deadlines set forth in W. Va. Code '22-16-11 are applicable.

W. Va. Code R. § 33-40-4 Conditions for Closure Assistance Application Approval. 4.1 Valid Landfill Facility Permit Required. -- The applicant must currently have in his or her possession a valid landfill facility permit in compliance with the Solid Waste Management Act (W. Va. Code '22-15-1, et seq.) containing an approved closure plan for the landfill facility

4.1.a. That landfill facility permit must contain, in the form of "major" or "minor" modifications, all changes in name, operation, ownership, or operator(s).

4.1.b. That landfill facility permit must contain, in the form of a modification, the landfill facility NPDES requirements of the Water Pollution Control Act (W. Va. Code '22-11-1 et seq.).

4.2. Bonding.

4.2.a. The applicant must have submitted the full amount of the bond required under subdivision 4.2.b of this rule and received approval of the bond from the director.

4.2.b. The bonding requirements set forth in W. Va. Code '22-15-1 et seq. and in Division of Environmental Protection Solid Waste Management Rule 33CSR1 subsection 3.13, are applicable.

4.2.c. None of the requirements of subdivision 4.2.b of this rule may be waived without written approval of the director. 4.3 Violations.

4.3.a. All closure-related Division of Environmental Protection Notice of Violation(s) shall have been abated.

4.3.b. All closure-related Division of Environmental Protection Civil Administrative Penalties are paid or reflected in a payment schedule contained in subsequently-issued Solid Waste Administrative Orders.

4.3.c. All terms and conditions of any prior closure-related administrative orders shall have been resolved.

4.3.d. All stipulated penalty amounts in any prior administrative orders shall have been paid, or reflected in a payment schedule contained in a subsequently-issued administrative order.

4.3.e. None of the requirements of subsection 4.3 of this section may be waived without written approval of the director.

4.4. Legalities.

4.4.a. All pending magistrate, Environmental Quality Board, state court, federal court, or other legal actions must have been resolved.

4.4.b. None of the requirements of subdivision 4.4.a of this rule may be waived without written approval of the director.

4.5. Closure Funds.

4.5.a. All funds available at the time of closure that have been dedicated to closure, as may have been required by the Public Service Commission, shall have been expended for closure, in compliance with Division of Environmental Protection, Solid Waste Management Rule, 33CSR1, section 6 or donated to the Closure Cost Assistance Fund as outlined in W. Va. Code '22-16-5.

4.6. Additional Closure Items.

4.6.a. The applicant shall have complied, or begun to comply with the following permit, or regulatory requirements, as outlined in Division of Environmental Protection, Solid Waste Management Rule 33CSR1, section 6. These items are ineligible for coverage by the assistance program:

4.6.a.1. Legal advertisement;

4.6.a.2. Notification to users;

4.6.a.3. Notification to director;

4.6.a.4. Posting of signs on the fence;

4.6.a.5. Denial of entry/restricted access;

4.6.a.6. Notification to Solid Waste Authority, State Solid Waste Management Board, etc.; and

4.6.a.7. Deed notation.

4.6.b. The Closure Assistance Program shall also cover the payment of principal, premium, if any, and interest accrued with respect to any indebtedness, bonded or otherwise, outstanding with respect to any landfill scheduled for closure which was incurred in connection with acquisition, construction or equipping landfills qualifying for assistance.

4.7. Authority of Director to Modify Permit. -- An approved application provides a basis for the director to modify the permit in accordance with the provisions of Division of Environmental Protection Solid Waste Management Rule 33CSR1, section 6 in order to meet the requirements of the Closure Assistance Program.

4.8. Granting of Access to Facility to Director. -- Upon acceptance of a permittee into the Closure Assistance Program, access to the facility shall be given to the director.

W. Va. Code R. § 33-40-5 Interim Status Assistance

5.1. Authority of the Director to Establish Maintenance Contracts. -- The director may establish maintenance contracts to maintain intermediate cover, water control structures, sediment control structures, surface water and ground water monitoring, gas management, leachate management and any other closure related requirements of W. Va. Code '22-15-1 et seq. and rules promulgated pursuant thereto. These contracts will be established for the purpose of assisting the permittee, who has an approved closure assistance application, in maintaining compliance with closure related requirements until final closure activities are initiated.

W. Va. Code R. § 33-40-6 Post-Closure Assistance

6.1. Performance of Post-Closure Activities. -- Unless otherwise specified by the director, all post-closure monitoring maintenance, sampling, testing, and water treatment will be conducted by the Division of Environmental Protection.

W. Va. Code R. § 33-40-7 Contracting

7.1. Expenditure of Funds from the Closure Assistance Fund. -- All funds expended from the Closure Assistance Fund for the purposes of fulfilling the requirements of W. Va. Code '22-16-1 et seq. will be in accordance with Department of Administration laws, rules, and procedures.

7.2. Assistance Contingent upon the Availability of Revenues. -- Landfill closure assistance provided by the director is contingent upon the availability of revenues from the Closure Cost Assistance Fund.

W. Va. Code R. § 33-40-8 Final Closure Assistance Priority

8.1. Priority for Final Closure Assistance. -- The director shall establish the priority for final closure assistance by assessing landfill conditions as provided for by the utilization of the Priority Evaluation Matrix in Appendix B.

33CSR40

Series 41 Awarding of Matching Grants for Local Litter Control Programs

W. Va. Code R. § 33-41-1 General

1.1. Scope. – This rule sets out guidelines and procedures for providing matching assistance grants to counties and municipalities for the initiation and administration of litter control programs.

1.2. Authority. – W. Va. Code § 22-15A-3(f).

1.3. Filing Date. -- April 17, 2017.

1.4. Effective Date. -- June 1, 2017.

1.5. Former Rules. – This legislative rule replaces 58CSR6, “Awarding of Matching Grants for Local Litter Control Programs”, to reflect that responsibility for this program transferred from the Division of Natural Resources to the Department of Environmental Protection through W. Va. Code § 22-15-3.

W. Va. Code R. § 33-41-2 Definitions

Unless the context dictates otherwise, the following words and their meanings as used in this rule are defined below.

2.1. “Applicant” means the local government applying for a grant.

2.2. “Application” means the written request submitted to the Secretary by the applicant on forms provided by the Secretary.

2.3. “Cooperative Program” means a program involving two or more local governments and coordinated by one of the participating local governments.

2.4. “Coordinator” means the individual who is responsible for coordinating the implementation and administration of a cooperative program.

2.5. “Department” means the West Virginia Department of Environmental Protection.

2.6. “Grant” means matching grant funds allocated to an approved program applicant by the Department pursuant to W. Va. Code § 22-15A-3(f).

2.7. “Grantee” means the entity to whom a grant has been awarded.

2.8. “Grant Period” means July 1 of one calendar year through June 30 of the subsequent calendar year.

2.9. “In-kind Services” means any personnel, equipment, supplies or other items for a local litter control program supplied or obtained by the applicant with funds or by methods other than the use of any other grant moneys.

2.10. “Litter” means all waste material including, but not limited to, any garbage, refuse, trash, disposable package, container, can, bottle, paper, covered electronic devices, ashes, cigarette or cigar butt, carcass of any dead animal or any part thereof, or any other offensive or unsightly matter, but not including the wastes of primary processes of mining, logging, sawmilling, farming, or manufacturing.

2.11. “Litter Control Fund” means the fund created pursuant to W. Va. Code § 22-15A-4(c).

2.12. “Local Government” means any unit of local government within the State, including a county, county board of education, municipality, and any other authority, board, commission, district, office, public authority, public corporation or other instrumentality of a county, county board of education or municipality or any combination of two or more local governments.

2.13. “Local Litter Control Program” means a program sponsored by a local government for the purposes stated in its application.

2.14. “Recycle” means the process by which recovered products are transformed into new products and includes the collection, separation, recovery, processing, and marketing or reuse of that new product.

2.15. “Resolution” means a resolution adopted by a local government that authorizes the creation of a local litter control program.

2.16. “Secretary” means the Secretary of the Department of Environmental Protection or his or her designee.

W. Va. Code R. § 33-41-3 Applicability

3.1. Grants may be used by eligible local governments, singly or in cooperative groups, in a local litter control program.

3.2. The Secretary shall award grants for a period not to exceed one year. Subsequent grants may be obtained by a grantee through submission of a revised application to the Department, so long as all objectives of the current grant have been completed to the satisfaction of the Secretary.

3.3. The Secretary shall award grants on a one-to-one matching basis. For each dollar budgeted by an applicant for a local litter control program, the Department shall award up to one dollar ($1.00) in matching grant funds upon approval of the application. The Department reserves the right to limit the amount of a grant in accordance with the amount of money in the Litter Control Fund available for distribution as matching grants.

3.4. Grant awards are limited to a maximum amount of five thousand dollars ($5,000).

3.5. Applications must be postmarked no later than May 31 for consideration in the next grant period.

W. Va. Code R. § 33-41-4 In-kind Services

4.1. The Department shall give credit for in-kind services when determining the amount of local government funding to be matched by a grant.

4.2. The Department shall value volunteer services at the minimum hourly wage unless the applicant can demonstrate that the services would normally be valued above that wage in the area served by the applicant’s program.

4.3. The Department shall value donated equipment at its fair market value prorated over the life of the grant.

W. Va. Code R. § 33-41-5 Authorized Uses Of Grant Funds

5.1. A grantee may use a grant for the initiation, continuation or expansion of a local litter control program.

5.2. Authorized uses of grant funds in an approved local litter control program may include the following:

5.2.a. Enforcement of anti-litter statutes;

5.2.b. Expenses incurred in traveling to Department-sponsored or approved workshops, conferences or other meetings;

5.2.c. Implementation and administration of the approved litter control program;

5.2.d. Implementation of local litter cleanup campaigns;

5.2.e. Public informational and educational programs, such as those which increase public awareness or solicit public support in promoting citizen responsibility toward reducing litter;

5.2.f. Purchase of equipment which will specifically serve to fulfill litter control program objectives;

5.2.g. Research or development of local solid waste recycling programs;

5.2.h. Surveys and evaluation studies made for the purpose of identifying and prioritizing local littering problems;

5.2.i. Costs associated with razing abandoned buildings or other structures which are unsightly or offensive and promote possible health hazards; and

5.2.j. Other relevant items upon the approval of the Secretary.

W. Va. Code R. § 33-41-6 Unauthorized Uses of Grant Funds

6.1. Grants shall not be used in any way to replace local funds currently budgeted or being used to maintain and operate a local litter control program during the grant period.

6.2. Grants shall not be used for expenditures not related to litter prevention, elimination or control.

6.3. Grants shall not be used for the following:

6.3.a. To fund beautification projects such as landscaping (tree or shrub purchases) or the removal of roadside vegetation;

6.3.b. To purchase lawn, tree or shrub maintenance equipment;

6.3.c. To purchase equipment routinely used to collect or transport solid waste;

6.3.d. To fund landfill operations or management;

6.3.e. To buy office furniture or equipment or to decorate or renovate an office; or

6.3.f. To pay for professional consultation or production in the development of litter control films, slide shows or similar programs.

W. Va. Code R. § 33-41-7 Reporting Requirements

7.1. The grantee shall submit a final performance and accounting report for approval on or before July 31 of the year the grant ends. The report shall include the following:

7.1.a. An evaluation of accomplishments in implementing the original proposal’s work tasks;

7.1.b. An accounting of in-kind services provided;

7.1.c. An accounting of grant funds expended;

7.1.d. Evidence supporting in-kind services and grant expenditures; and

7.1.e. An analysis of and evidence supporting the amount of litter collected or material recycled during the period.

W. Va. Code R. § 33-41-8 Grant Withdrawal and Penalty

8.1. The Department reserves the right to withdraw a grant upon determination of the grantee’s unsatisfactory compliance with either this rule or the specifications in the application.

8.2. The Department may cancel a grant in the event a grantee fails to commence litter control program activities within 90 days after receiving a notice of award from the Department.

8.3. A grantee is responsible for the reimbursement to the Department the total sum of a grant not properly used or accounted for pursuant to this rule. The total sum constitutes a debt owed by the applicant or its successors or assignees by appropriate legal action. At its option, the Department may proceed against any local government participating in a cooperative program for the total sum owed by the applicant or its successors or assignees, or may hold each local government participating in a cooperative program individually liable to the State of West Virginia for its pro rata share of the total liability.

8.4. The Department reserves the right to conduct an on-site inspection or audit of a grantee’s litter control program records during or after the grant period for a period of three years.

8.5. Applicants and grantees shall be in compliance with all federal, State, and local laws, codes, ordinances, rules, and regulations in order to be eligible for a grant. The Department reserves the right to deny applications or withhold funding from grantees failing to comply with this subsection.

W. Va. Code R. § 33-41-9 Unexpended Funds

9.1. All unexpended funds remaining at the end of the grant period shall be returned to the Department.

33CSR41