W. Va. Code R. § 47-35-11

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 47-35-11 - THE HAZARDOUS WASTE PERMIT PROGRAM

11.1. 40 CFR Part 270. -- The provisions of 40 CFR part 270 are hereby adopted " and incorporated by reference with the modifications, exceptions and additions set forth in this section.

11.2.40 CFR §270.1 -- The provisions of 40 CFR § 270.1 (c)(2)(viii)(C) are amended to read as follows:

(c) Thermostats and mercury containing lamps as described in 40 CFR § 273.4.

11.3.40 CFR 270.2 Definitions

11.3.a. Definition of "RCRA Permit" , - For purposes of this section, the term "RCRA permit" means "West Virginia hazardous waste management permit." The following additional requirements shall apply to obtain a hazardous waste permit in West Virginia. All references in 40 CFR part 124 to 40 CFR part 270 shall be deemed to be references to the applicable provisions of subsections 11.4 through 11.14 of this rule. To the extent of any inconsistency with 40 CFR part 270, the specific provisions contained herein shall control.

11.3.b. Definition of "Major Facility". -- The term "major facility" shall have the meaning given at paragraph 2.1.a.1. of this rule.

11.4. Application Fees.

11.4.a. 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 said application a money order or cashier's check payable to "The Hazardous Waste Management Fund" of the state treasury. Persons required to obtain a permit-by-rule pursuant to these regulations are not required to pay a permit application fee.

11.4.b. Such fee shall be determined by the schedule set forth in table 1 of these rules. If the cumulative total of application fees imposed under this section equals or exceeds fifty thousand dollars ($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 Division of Environmental Protection may not be less frequent than annually and the amount submitted annually may not be less than one-third of the total amount due.

11.4.c. The chief reserves the right to promulgate rules establishing a permit renewal fee at a later date.

11.5. Draft Permits.

11.5.a. Once an application is complete, the chief shall tentatively decide whether to prepare a draft permit or to deny the application.

11.5.b. If the chief decides to prepare a draft permit, a draft permit shall be prepared that contains the following information:

11.5.b.1. All conditions under 40 CFR §§ 270.30 and 270.32;

11.5.b.2. All compliance schedules under 40 CFR § 270.33;

11.5.b.3. All monitoring requirements under 40 CFR § 270.31; and

11.5.b.4. Standards for treatment, storage, and disposal and other permit conditions under 40 CFR part 270.

11.5.c. A fact sheet prepared in accordance with subsection 11.6 of these rules shall accompany the draft permit.

11.5.d. Any additional information considered to be necessary or proper.

11.6. Fact Sheet.

11.6.a. A fact sheet shall be prepared by the chief for every draft permit for each hazardous waste management facility or activity. The fact sheet shall briefly set forth the principal facts and the significant factual, legal, methodological, and policy questions considered in preparing the draft permit. The chief shall send this fact sheet to the applicant and, upon request, to any other person.

11.6.b. The fact sheet shall include, when applicable:

11.e.b.1. A brief description of the type of facility or activity which is the subject of the draft permit;

11.6.b.2. The type and quantity of wastes, fluids, or pollutants which are proposed to be or are being treated, stored, disposed of, injected, emitted, or discharged. A description of the type of wastes, fluids, or pollutants shall include, but not limited to, the characteristics of the waste materials and the potential effects on public health and the environment;

11.6.b.3. A brief summary of the basis for the draft permit conditions including references to applicable statutory or rule provisions;

11.6.b.4. Reasons why any requested variances or alternatives to required standards do or do not appear justified;

11.6.b.5. A description of the procedures for reaching a final decision on the draft permit including:

11.6.b.5.A. The beginning and ending dates of the comment period and the address where comments will be received;

11.6.b.5.B. Procedures for requesting a hearing and the nature of that hearing; and

11.6.b.5.C. Any other procedures by which the public may participate in the final decision; and

11.6.b.6. Name and telephone number of a person to contact for additional information.

11.7. Public Access to Information.

11.7.a. Any records, reports, or information and any permit, permit applications, and related documentation within the chief's possession shall be available to the public for inspection and copying; provided, however, that upon a satisfactory showing to the chief that such records, reports, permit documentation, or information, or any part hereof would, if made public, divulge methods or processes or activities entitled to protection as trade secrets, the chief shall consider, treat, and protect such records as confidential.

11.7.b. It shall be the responsibility of the person claiming any information as confidential under the provisions of subsection 11.7. of these rules to clearly mark each page containing such information with the word "CONFIDENTIAL" and to submit an affidavit setting forth the reasons that said person believes that such information is entitled to protection.

11.7.c. Any document submitted to the chief which contains information for which claim of confidential information is made shall be submitted in a sealed envelope marked "CONFIDENTIAL" and addressed to the chief. The document shall be submitted in two (2) separate parts. The first part shall contain all information which 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 which is claimed to be confidential.

11.7.d. No information shall be protected as confidential information by the chief unless it" is submitted in accordance with the provisions of subdivision 11.7.c. of these rules and no information which is submitted in accordance with the provisions of subdivision 11.7.c. of these rules shall be afforded protection as confidential information unless the chief finds that such protection is necessary to protect trade secrets. The person who submits information claimed to be confidential shall receive written notice from the chief as to whether the information has been accepted as confidential or not.

11.7.e. All information which meets the tests of subdivision 11.7.d. of these rules shall be marked with the term "ACCEPTED" and shall be protected as confidential information. If said person fails to satisfactorily demonstrate to the chief that such information in the form presented to him meets the criteria of subsection 11.7.d. of these rules, the chief shall mark the information "REJECTED" and promptly return such information to the person submitting such information.

11.7.f. Nothing contained herein shall be construed so as to restrict the release of relevant confidential information during situations declared to be emergencies by the chief or his designee.

11.7.g. Nothing in subsection 11.7. of these rules may be construed as limiting the disclosure of information by the division to any officer, employee, or authorized representative of the State or federal government concerned with effecting the purposes of subsection 11.7. of these rules.

11.7.h. Persons interested in obtaining information pursuant to subsection 11.7. of these rules should submit a request in accordance with Title 46 Water Resources Board, Series 8 (46 C.S.R. 8).

11.7.i. Claims of confidentiality for the name and address of any permit applicant or permittee will be denied.

11.8. Public Participation in Permit Process.

11.8.a. Public notice shall be given that the following actions have occurred:

11.8.a.1. A draft permit has been prepared; or

11.8.a.2. A hearing has been scheduled.

11.8.b. Timing. Public notice of the preparation of a draft permit required under subsection 11.8. of these rules shall allow at least forty-five (45) days for public comment.

11.8.c. Public notice of a public hearing shall be given at least thirty (30) days before the hearing.

11.8.d. Methods. Public notice of activities described in subsection U.S. of these rules shall be given by the following methods:

11.8.e. By mailing a copy of the notice to the following persons;

11.8.e.1. The applicant;

11.8.e.2. Any federal or state agency which the chief knows has issued or is required to issue a RCRA, UIC, PSD, NPDES or 404 permit for the facility or activity including, but not limited to, the U.S. environmental protection agency and the U.S. army corps of engineers;

11.8.e.3. Each state agency having authority under state law with responsibility to the construction or operation of such facility;

11.8.e.4. Any unit of local government having jurisdiction over the area where the facility is proposed to be located;

11.8.e.5. Other appropriate federal or state agencies including, but not limited to, the U.S. fish and wildlife service, the U.S. forest service, the West Virginia department of culture and history, the West Virginia department of health, other governmental authorities including any affected states, and the Advisory Council on Historic Preservation (Suite 430, 1522 K Street, N.W., Washington, D.C. 20005); and

11.8.e.6. All persons to whom a public notice is sent;

11.8.e.7. Persons on the mailing list developed by:

11.8.e.7.A. Including those who request in writing to be on the list,

11.8.e.7.B. Soliciting persons for "area lists" from participants in past permit proceedings in that area.

11.8.e.7.C. Notifying the public of the opportunity to be put on the mailing list through periodic publication in the public press and in appropriate publications of the state. The chief may update the mailing list by requesting written indication of continued interest from those listed. The chief may delete from the list the name of any person who fails to respond to such a request.

11.8.e.8. By publishing the public notice, in the form of a class I legal advertisement in a qualified daily or weekly newspaper of general circulation and broadcasting the public notice over local radio stations in the area in which the facility is or is proposed to be located. A qualified daily or weekly newspaper is, for the purpose, of subsection 11.8, of these rules, any newspaper which meets the provisions of W. Va. Code, § 59-3-1(b).

11.8.e.9. By any other method reasonably calculated to give actual notice of the action in question to the person potentially affected by it, including press releases" or any other forum of medium to elicit public participation.

11.8.e.10. Any person otherwise entitled to receive notice under subsection 11.8. of these rules may waive the right to receive notice for any classes and categories of permits.

11.9. Personal Notification by Facility Owner or Operator to Individual Residents.

11.9.a. Following the submittal of a Part B application which is deemed complete by the chief, and before the public notice of the preparation of a draft permit as required under subsection 11.8. of these rules, the facility owner or operator shall serve notice upon the residence of all persons residing within one-quarter mile of the boundaries of the specific hazardous waste management facility.

11.9.b. Service of such notice as herein provided shall be made by delivering a copy to the residence of each person upon whom service must be made or by mailing it by registered mail to the last known address of each person or by such other reasonable means as the chief and the owner or operator agree will provide an effective and practical method of notification.

11.9.c. Following completion of service of notice as set forth herein, and no later than the date of public notice required in subsection 11.8. of these rules, the owner or operator shall certify in writing to the chief that service has been completed, describe the method of service, and provide a copy of the written notice employed to the chief.

11.9.d. The personal notice required herein shall be a written notice containing at a minimum:

11.9.d.1. The name and address of the permit applicant;

11.9.d.2. The name, location, and type of hazardous waste management facility for which the application has been submitted;

11.9.d.3. A statement advising the recipients of the notice that a complete application for permit has been submitted; and

11.9.d.4. A statement advising the notice recipients that an opportunity for public comment upon the application and draft permit will be made available to them upon completion of division review of the application and that such notice will be published as a legal advertisement in a local newspaper and broadcast over the radio.

11.10. Contents.

11.10.a. All public notices issued under subsection 11.8. of these rules shall contain the following information:

11.10.a.1. Name and address of the office processing the permit action for which notice is being given;

11.10.a.2. Name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit;

11.10.a.3. A brief description of the business conducted at the facility described in the permit application or the draft permit;

11.10.a.4. The name, address, and telephone number of a person from whom interested persons may obtain further information including copies of the draft permit or fact sheet, and the application; and

11.10.a.5. A brief description of the comment procedures required by subsections 11.11. and 11.12. of these rules and the time and place of any hearing that will be held, including a statement of procedures to request a hearing unless already scheduled, and other procedures by which the public may participate in the final permit decision.

11.10.b. In addition to the general public notice described in subdivision 11.10.a. of these rules, the public notice of a hearing shall contain the following information:

11.10.b.1. Reference to the date of previous public notices relating to the permit;

11.10.b.2. Date, time and place of the hearing;

11.10.b.3. A brief description of the nature and purpose of the hearing, including the applicable rules and procedures; and

11.10.b.4. Name and address of the nearest district office where the file will be available for inspection.

11.11. Public Comment and Request for Public Hearings. During the public comment period provided that any interested person may submit written comments on the draft permit and may request a public hearing if no hearing has already been scheduled. 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 decision and shall be answered as provided in subsections 11.13. and 11.14. of these rules.

11.12. Public Hearings.

11.12.a. The chief shall hold a public hearing whenever he finds, on the basis of requests, a significant degree of public interest in a draft permit(s). The chief may also hold a public hearing at his discretion whenever, for instance, such hearing may clarify one or more issues involved in the permit decision.

11.12.b. The chief shall hold a public hearing upon receiving written notice of opposition to a draft permit and a request for public hearing within forty-five (45) days of the public notice. Whenever possible the chief shall schedule a hearing under subsection 11.12. of these rules at a location convenient to the nearest such proposed facility. Public notice of the hearing shall be given as specified in subsection 11.8. of these rules.

11.13. Reopening of the Public Comment Period.

11.13.a. If any data, information, or arguments submitted during the public comment period appear to raise substantial new questions concerning a permit, the chief may take one or more of the following actions:

11.13.a.1. Prepare a new draft permit, appropriately modified, under subsection 11.2. of these rules.

11.13.a.2. Prepare a revised fact sheet under subsection 11.6. of these rules and reopen the comment period.

11.13.a.3. Reopen or extend the comment period under subsection 11.11. of these rules to give interested persons an opportunity to comment on the information or arguments submitted.

11.13.b. Comments filed during the reopened comment period shall be limited to the substantial new questions that caused its reopening. The public notice under subsection 11.8. of these rules shall define the scope of the reopening.

11.14.Response to Comments.

11.14.a. At the time that any final permit is issued, the chief shall issue a response to comments. This response shall be in writing and shall:

11.14.a.1. Specify which provisions, if any, of the draft permit have been changed in the final permit and the reasons for change; and

11.14.a.2. Briefly describe and respond to all significant comments on the draft permit raised during the public comment period or hearing.

11.14.b. The response to comments shall be delivered to any person who commented or any person who requests the same.

11.15.40 CFR § 270.12. The provisions of 40 CFR § 270.12 are excepted from incorporation by reference. Availability of information provided under these rules is controlled by the provisions of W. Va. Code, § 22-18-12 and subsection 11.7. of these rules.

11.16.40 CFR § 270.24. The provisions of 40 CFR § 270.24 are excepted from incorporation by reference. Consult the rules of the air quality board regarding emissions from process vents.

11.17.40 CFR §§ 270.60 (b) and 270.64. The provision of 40 CFR §§ 270.60 (b) and 270.64 are excepted from incorporation by reference. Consult the rules of the office of water resources and the environmental quality board regarding the requirements for underground injection wells.

W. Va. Code R. § 47-35-11