Title 54 W. Va. C.S.R.

Solid Waste Management Board Solid Waste Management Board

Series 01 Disbursement Of Loans And Grants To Gov Agencies For Acquisition Or Construction Of Solid Waste Disposal Projects (Tech Cleanup 7/26/95)

W. Va. Code R. § 54-1-1 General

1.1. Scope. -- These legislative rules establish requirements governing disbursement of loans and grants to governmental agencies for the acquisition or construction of solid waste disposal projects.

1.2. Authority. -- W. Va. Code '22C-3-1et seq.

1.3. Filing Date. -- May 15, 1991.

1.4. Effective Date. -- June 17, 1991.

W. Va. Code R. § 54-1-2 Definitions

Except where the context indicates otherwise, the following terms as used in these rules shall have the meanings ascribed to them as set forth below.

2.1. General definitions.

2.1.1. The "Act" means W. Va. Code ' 22C-3-1 et seq. .

2.1.2. "Applicant" means a governmental agency which applies for a loan or grant pursuant to the provisions of Section 3 or Section 4 of these rules.

2.1.3. The "Board" means the West Virginia Solid Waste Management Board, established pursuant to W. Va. Code ' 22C-3-4, or its authorized representatives.

2.1.4. The terms "cost", "governmental agency", "solid waste", "solid waste disposal facilities", "solid waste disposal project" and "project" as used in Sections 3 and 4 of these rules, shall have the meanings ascribed to them in the Act.

2.1.5. "Grant" means a disbursement of funds made by the Board to an applicant pursuant to Section 3 of these rules.

2.1.6. "Grant Agreement" means a signed document between the Board and the applicant pertaining to a grant and as more particularly described in Section 3.6 of these rules.

2.1.7. "Loan" means a disbursement of funds made by the Board to an applicant pursuant to Section 4 of these rules.

2.1.8. "Loan Agreement" means a signed document between the Board and the applicant pertaining to a loan and as more particularly described in Section 4.7 of these rules.

W. Va. Code R. § 54-1-3 Grants

3.1. Eligibility for participation in grant program.

3.1.1. Governmental agencies eligible for participation in program. - A governmental agency or any combination thereof empowered to acquire, construct and equip solid waste disposal facilities shall be eligible to participate in the program.

3.1.2. Application for participation in program. - Any eligible governmental agency or any combination thereof which desires to participate in the program shall make a separate application to the Board on forms prescribed by the Executive Director of the Board for each project for which such participation is desired.

3.1.3. Acceptance of grant applications. - Subject to Section 3.6.1 of these rules, no application which is received by the Board shall be accepted until the applicant has satisfied the following conditions:

3.1.3.a. Delivered to the Board an agreement between the applicant and the Board providing for the construction, maintenance and operation of the project which is consistent with Section 3.7.1 of these rules, which has been authorized and approved by the legislative authority or authorities of the applicant and which has been executed by the applicant.

3.1.3.b. If required by the Board, provide a feasibility study prepared by a registered professional engineer and an independent certified public accounting firm demonstrating that the project is technically and financially feasible.

3.1.3.c. Provided certification that detailed plans, profiles, cross sections, estimates, specifications and such other requirements as are appropriate have been approved by all legally required agencies.

3.1.3.d. Provided written assurance that a properly certified operator will be employed upon completion of fifty percent (50%) of the project's construction.

3.1.4. Grants may be awarded for a maximum period of one year, provided that the Board may extend this period for up to sixty (60) days. Applicants should not depend on continued financing for long-term projects through this grant program.

3.1.5. Eligibility for participation in program if project should be combined with another project. - If the Board determines that a project for which application is made should be combined with another project or should serve governmental agencies not included as the applicant, the Board may delay the date upon which the project's priority is established in relation to other projects for which applications are received until such date as the project is expanded to include the additional project or projects or governmental agency or agencies.

3.2. Payment of costs of projects.

3.2.1. Payment of project costs by Board. - Upon entering into the agreement between the Board and the applicant referred to in Section 3.1.3.a of these rules and upon determination by the Board of a project's priority pursuant to Section 3.6.1 of these rules, the amount prescribed by Section 3.3.1 of these rules shall be paid by the Board. In the event such agreement is terminated by the Board pursuant to, and not in breach of, the provisions of such agreement, or in the event such agreement is terminated by the applicant whether or not in breach of this agreement, such grant will be immediately withdrawn.

3.2.2. Source of payment of project costs. - Subject to Section 3.3.1 of these rules, grants shall be made from funds appropriated to the Board or from funds contained in Board accounts which permit for such use.

3.2.3. Distribution of moneys constituting projects costs. - The Board shall pay directly to the applicant such payment as to those project costs which the applicant or one (1) of the governmental agencies constituting the applicant has not paid from its own funds. As to those project costs which the applicant or one (1) of the governmental agencies constituting the applicant has paid from its own funds, the Board shall reimburse the applicant or such governmental agency upon an accounting to the Board of such payment and a request for reimbursement.

3.2.4. Availability of funds. - The grant funds for the purposes herein provided will be disbursed to eligible projects as set forth in Section 3.1 of these rules and will be disbursed until all such projects have been satisfied or until the funds so provided have been exhausted, whichever comes first.

3.3. Participation payments by applicant.

3.3.1. Grants. - Participation in the grant program as described in these rules is subject to the following restrictions:

3.3.1.a. The grant(s) as herein provided is a grant(s) not to exceed fifty percent (50%) of the total project costs.

3.3.1.b. Credit will be given for in-kind services when determining the amount of funding from the authority to be matched by a grant.

3.3.1.c. Volunteer services will be valued at the minimum hourly wage unless the applicant can demonstrate that such services would normally be valued above that wage in the area served by the applicant's program.

3.3.1.d. Donated equipment will be valued at its fair market value prorated over the life of the grant. Such equipment may only be used to determine the amount of matching funds during the first year that a grant is given to the authority involving that equipment.

3.3.1.e. Applicants are only eligible for one (1) (or more) grants totalling an amount not to exceed ten percent (10%) of the estimated revenues of the Board for the fiscal year during which the grant is to be received, provided that this amount of money may be increased when the applicant consists of two or more governmental agencies acting collectively for the purposes of a grant not to exceed ten percent (10%) of the estimated revenues of the Board per each governmental agency.

3.4. Rights of access - construction requirements.

3.4.1. Rights of access to property. - In the event the applicant or one (1) or more of the governmental agencies constituting the applicant either acquires or owns the real and personal property constituting the project, the Board and, if applicable, other legally constituted regulatory entities and agencies shall have rights of access to the project as may be reasonably necessary to inspect the construction of the project and as may be reasonably necessary to ensure the proper operation and maintenance of the project following construction. Similar rights of access shall be given by the Board to the applicant if the Board acquires or owns the real and personal property constituting the project.

3.4.2. Requirements which governmental agency must follow when constructing project. - If the project is constructed by applicant or one (1) or more of the governmental agencies constituting the applicant, such governmental agencies shall (i) Obtain all federal, state, county and municipal approvals required under existing law in connection with the construction of the project; (ii) advertise for bids or construction contracts only after approval by the Board; (iii) require that each construction contractor furnish a performance and payment bond in an amount equal to one hundred percent (100%) of the contract price as security for the faithful performance of the contract and payment of the subcontract; (iv) require that each of its contractors and subcontractors maintain during the life of the contract workers' compensation insurance, public liability, property damage and vehicle liability insurance in the amounts and in terms satisfactory to the Board; (v) provide and maintain competent and adequate resident engineering services satisfactory to the Board covering the supervision and inspection of the development and construction of the project and bearing the responsibility of ensuring that construction conforms with the approved surveys, plans, profiles, cross sections and specifications and certifying to the Board and the applicant at the completion of construction that construction is in accordance with approved surveys, plans, profiles, cross sections and specifications or approved amendments thereto; and (vi) provide an operation and maintenance manual for the project.

3.5. Operation and maintenance of project.

3.5.1. Option to determine who shall operate and maintain project. - If the project serves directly only one (1) governmental agency, the project may be operated and maintained by the Board or the applicant at the option of the Board. If the project serves directly more than one (1) governmental agency, the project may be operated and maintained by the Board at the option of the Board or by one (1) or more of the governmental agencies. Whether operated by one (1) or more than one (1) governmental agency, the operation and maintenance of the project must meet Board requirements.

3.5.2. Requirements which governmental agency must follow when operating and maintaining project. If the project is operated and maintained by applicant or one (1) or more of the governmental agencies constituting the applicant, such governmental agency shall: (i) Provide adequate operation and maintenance of the project to comply with the water quality standards established for the river basin affected thereby and with all applicable rules and regulations of the West Virginia Department of Health and Human Resources and the West Virginia Bureau of Environment; (ii) retain sufficient qualified operating personnel approved by Board to operate the project and perform all operational tests and measurements necessary to determine compliance with the preceding sentence (i) to ensure proper and efficient operation and maintenance of the project from the time of commencement of operation until the approval of the discontinuance of the operation of the project by the Board and all legally required agencies; (iii) operate and maintain the project in a manner which is consistent with design capacity and capability of the project in accordance with an ordinance or resolution acceptable to the Board; (iv) provide property and casualty insurance satisfactory to the Board; (v) if the governmental agency shall fail to comply with either (i), (ii) or (iii) above, it shall permit the Board at its discretion to remedy such default and shall pay the cost of remedying such default to the Board together with interest thereon from the date of payment by the Board.

3.5.3. Requirements which governmental agency must follow when Board operates and maintains project. - If the project is operated and maintained by the Board, the applicant shall (i) agree to provide the funds necessary to pay the cost of operating and maintaining the project at such times as will permit the prompt payment of such costs by the Board from the funds of the applicant; and (ii) cooperate fully with the Board in the operation and maintenance of the project.

3.6. Determination of priority for participation in grant program.

3.6.1. Criteria for considering applications - Each application will be evaluated according to the following criteria:

3.6.1.a. The Board will give preferences to projects in the following order of priority: (i) source reduction; (ii) recycling, reuse and resource recovery; and (iii) landfilling.

3.6.1.b. Potential of project to further the efficient and effective collection, processing, recycling and disposal of solid waste within the area and to assist in the protection of the environment.

3.6.1.c. Sustainability of the project beyond the grant period.

3.6.1.d. Cost-effectiveness of the project.

3.6.1.e. Degree of public involvement in the project.

3.6.1.f. Projects that have not received funding from this particular grant program will be considered before projects funded previously under this program.

3.6.1.g. Consideration of the applicant's ability to assess and collect rentals, fees and service charges for the use or services of any solid waste disposal facilities involved in the grant application.

3.6.2. Withdrawal of grant. - The Board reserves the right to withdraw a grant upon determination of unsatisfactory program compliance with either these rules, or the specifications in the grant document, or the application for the grant.

3.6.3. Cancellation of grant. - A failure to commence program activities within ninety (90) days after receiving funding from the Board may result in the cancellation of the grant.

3.7. Miscellaneous.

3.7.1. Agreement between Board and applicant. - The agreement between the Board and the applicant referred to in Section 3.1.3.a of these rules, shall be consistent with these rules and shall contain such additional provisions which the Board determines are necessary to the implementation of these rules and ensure the proper carrying forward of the program.

3.7.2. Purposes for which grants can be obtained. - Grants obtained in accordance with these rules shall be used by a governmental agency or combination thereof only for the purpose of acquiring, constructing and/or equipping solid waste disposal projects.

W. Va. Code R. § 54-1-4 Loans

4.1. Description of loans.

4.1.1. Source of loan funds. - The Board may obtain the funds with which to make loans from the proceeds of revenue bonds and notes issued from time to time by the Board pursuant to the Act, or the Board may obtain funds from other permitted sources to make such loans.

4.1.2. Evidence of and security for loans. - The loans shall be evidenced by a note or other debt instruments issued by applicants at a discount to reflect the costs the Board incurred in issuing its obligations to provide the funds to make the loans, and other costs related to financing such projects, and shall be secured by a pledge of the fees, charges and all other revenues of the projects to be constructed, in whole or in part, with the proceeds of the loans and any other collateral required by the Board.

4.1.3. Amount of loan. - Each loan shall be in an amount which shall cover all costs of the project to be constructed by the applicant for which funds from the aforesaid grant or other sources are not available.

4.2. Eligibility for loans.

4.2.1. Governmental agencies eligible for loans. - All governmental agencies, or any combination thereof, which have the authority under applicable law to acquire, construct and equip a project shall be eligible for a loan.

4.2.2. Application for loan. - Any eligible governmental agency which desires to obtain a loan shall make a separate application to the Board on forms prescribed by the Executive Director of the Board for each project for which a loan is desired.

4.2.3. Acceptance of loan application. - Subject to Section 4.7.1 of these rules, no application which is received by the Board shall be accepted until the applicant has satisfied the following conditions:

4.2.3.a. Provided documentation satisfactory to the Board that the project is eligible for a loan under the provisions of the Act.

4.2.3.b. If required by the Board, provide a feasibility study prepared by a registered professional engineer and an independent certified public accounting firm demonstrating that the project is technically and financially feasible.

4.2.3.c. Demonstrated to the satisfaction of the Board that it has adopted or will adopt all necessary ordinances or resolutions in form and substance satisfactory to the Board and has taken or will take all proceedings required by law to enable it to enter into a loan agreement with the Board and that it has obtained or will obtain all other necessary governmental agencies' approval of user charges for the project which will provide annual net revenues to the applicant which exceed, by an amount or percentage specified in the loan agreement, the annual payments required to be made by the applicant to the Board under the loan agreement.

4.3. Loans to be subject to agreement.

4.3.1. Prior to the making of a loan, the Board shall execute and enter into a loan agreement with the applicant, pursuant to the provisions of Section 4.7 of these rules, which shall include such provisions as may be required by the Board, including, without limitation, the following:

4.3.1.a. The cost of such project, the amount of the loan, the terms of repayment of the loan and the security therefor, which may include, in addition to the pledge of all fees, charges and other revenues from such project after a reasonable allowance for operation and maintenance expenses, a deed of trust or other appropriate security instrument creating a lien on such project;

4.3.1.b. The specific purposes for which the proceeds of the loan shall be expended, the procedures as to the disbursement of loan proceeds and the duties and obligations imposed upon the applicant in regard to the construction or acquisition of the project;

4.3.1.c. The agreement of the applicant to impose, collect and, if required to repay the obligations of such applicant under the loan agreement, increase service charges from persons using said project, which service charges shall be pledged for the repayment of the loan together with all interest, fees and charges thereon and all other financial obligations of such applicant under the loan agreement; and

4.3.1.d. The agreement of the applicant to comply with all applicable laws, rules and regulations issued by the Board or other state, federal and local bodies in regard to the financing, construction, operation, maintenance and use of the project.

4.4. Repayment of loans; interest on loans; fees and charges.

4.4.1. Payment of principal and interest on loan. - Payments of the principal of the loan shall be made by the applicant on a monthly, quarterly, semi-annual or annual basis as scheduled by the Board and interest payments on the loan shall be made by the applicant on a monthly, quarterly, semi-annual or annual basis as scheduled by the Board, in accordance with the provisions of the loan agreement.

4.4.2. Computation of interest on loans. - Each loan shall bear interest from the date of delivery of the notes or other debt instruments of the applicant evidencing the loan to the applicant at a rate or rates per annum which shall be equal to the rate or rates per annum borne by the obligations of the Board issued to provide the funds to make the loan: Provided, That pursuant to the provisions of the loan agreement, the Board may purchase the notes or other evidences of indebtedness of the applicant at par or at a discount to reflect the costs of the Board incurred in issuing its said obligations and other costs relating to the making of the loan.

4.4.3. Fees and charges. - In addition to payments of principal and interest on the loan, each applicant shall agree in the loan agreement to pay fees and charges to the Board equal to the applicant's share of the administrative expenses of the Board relating to the loan program referred to in this Section 4, including, without limitation, any fees and charges established by rule of the Board, and the fees and expenses of the trustee and paying agents for the bonds to be issued by the Board to make the loan.

4.5. Agreement of Board to make loans conditioned upon sale of bonds.The obligation of the Board to make any loan is and shall be conditioned upon receipt by the Board of the proceeds of bonds issued by the Board or funds from other sources in such amounts and on such terms and conditions as in the sole judgement of the Board, will enable it to make the loans.

4.6. Construction of project.

Each applicant receiving a loan shall, prior to commencement of construction of the project, comply with all applicable provisions of the Act, of the loan agreement and of the resolution or ordinance authorizing the issuance of bonds or notes evidencing the loan, including, without limitation, that the applicant shall obtain all federal, state and local approvals.

4.7. Determination of priority for participation in loan program.

4.7.1. Criteria for ranking applications. - Each application will be evaluated according to the following criteria:

4.7.1.a. The Board will give references to projects in the following order or priority: (i) source reduction; (ii) recycling, reuse and resource recovery; and (iii) landfilling.

4.7.1.b. Potential of project to further the efficient and effective collection, processing, recycling and disposal of solid waste within the area and to assist in the protection of the environment.

4.7.1.c. Degree of public involvement in the project.

4.7.1.d. Consideration of the applicant's ability to assess and collect retails, fees and service charges for the use or services of the project involved in the grant application.

4.7.1.e. Cost effectiveness of the project.

4.8. Miscellaneous.

4.8.1. Agreement between Board and applicant. - The agreement between the Board and the applicant referred to in Section 4.3 of these rules, shall be consistent with these rules and shall contain such additional provisions which the Board determines are necessary to the implementation of these rules and ensure the proper carrying forward of the program.

4.8.2. Purposes for which loans can be obtained. - Loans obtained in accordance with these rules shall be used by a governmental agency or combination thereof only for the purpose of acquiring, constructing and/or equipping solid waste disposal projects.

54CSR1

Series 02 The Establishment Of Fee Schedule And Cost Allocations Applicable To The Issuance Of Bonds By The WV S

W. Va. Code R. § 54-2-1 General

1.1. Scope. -- These legislative rules establish fee schedules and cost allocations applicable to the issuance of bonds by the West Virginia Solid Waste Management Board.

1.2. Authority. -- W. Va. ' 22C-3-1et seq.

1.3. Filing Date. -- May 15, 1991.

1.4. Effective Date. -- June 17, 1991.

W. Va. Code R. § 54-2-2 Definitions

All terms used herein shall, unless the context indicates otherwise, have the meanings ascribed to them as set forth below.

2.1. General definitions.

2.1.1. The "Act" means W. Va. Code '22C-3-1 et seq.

2.1.2. "Applicant" means a governmental agency which applies for a loan from the Board for the purpose of obtaining funds to pay the cost of the acquisition, construction and/or equipping of a solid waste disposal facility.

2.1.3. The "Board" means the West Virginia Solid Waste Management Board, established pursuant to W.Va. Code '22C-3-4, or its authorized representatives.

2.1.4. The terms "cost," "governmental agency" and "solid waste disposal facilities," as used in these rules, shall have the meanings ascribed to them in the Act.

W. Va. Code R. § 54-2-3 Fees

The Board shall be entitled to receive Fees for originating loans to governmental agencies for the purpose of providing funds for the acquisition, construction and equipping of solid waste disposal projects as set forth below.

3.1. Origination Fee. -- Each governmental agency or any combination thereof obtaining a loan from the Board for the purpose of constructing, acquiring and/or equipping a solid waste disposal facility shall pay to the Board an origination fee equal to one-quarter (1/4) of one percent (1%) of the original principal amount of the loan, such fee to be deducted from gross loan proceeds and retained by the Board at the time of closing of the loan.

3.1.1. Waiver or reduction of origination fee. -- The origination fee may be waived or reduced by the Board if the Board decides that the origination fee is not needed for the payment of operating expenses of the Board.

3.2. Annual Fee. -- Each governmental agency or combination thereof which has obtained a loan from the Board as described in Section 3.1 of these rules shall also pay to the Board an annual fee equal to one-eighth (1/8) of one percent (1%) of the outstanding principal balance of the loan.

3.2.1. Payment of annual fee. -- The initial annual fee shall be payable at the time of closing of the loan and all subsequent annual fees shall be paid on the anniversary date of such loan, calculated as of the date thirty (30) days immediately preceding said anniversary date.

3.2.2. Waiver or reduction of annual fee. -- The annual fee may be waived or reduced by the Board if the Board determines that the annual fee is not needed for the payment of the operating expenses of the Board.

W. Va. Code R. § 54-2-4 Allocation of Costs Applicable to Issuance of Bonds of the Board

4.1. All costs incurred by the Board that can be directly attributed to a bond issue pending before the Board may be allocated by the Board to that bond issue and such costs so allocated shall be payable at closing by the governmental agency obtaining a loan financed from such proceeds. If more than one governmental agency obtains a loan from such proceeds, such costs shall be allocated pro-rata between or among such governmental agencies. All such costs so allocated shall be in addition to the fees established in Section 3 of these rules.

4.2. Without limiting in any manner the costs that may be allocated pursuant to Section 4.1 of these rules, all legal and other professional fees incurred by the Board that can be directly attributed to a bond issue may be allocated by the Board to the governmental agency obtaining loans from proceeds of that bond issue and such legal and other professional fees so allocated shall be payable at closing out of the proceeds of that bond issue. If more than one governmental agency obtains a loan from such proceeds, such fees shall be allocated pro-rata between or among such governmental agencies. All such costs so allocated shall be in addition to the fees established in Section 3 of these rules.

W. Va. Code R. § 54-2-5 Amendment of Fee Schedule

5.1. The Board may amend, in accordance with W. Va. Code '29A-3-1 et seq., the fee schedule by the affirmative vote of four (4) board members and any such amendment shall be binding and applicable to all subsequent bond issues.

54CSR2

Series 03 Rules For Developing, Updating And Amending Comprehensive Litter And Solid Waste Control Plans

W. Va. Code R. § 54-3-1 General

1.1. Scope. -- The scope and purpose of this rule is to establish minimum standards and planning requirements for all county and regional solid waste authorities to follow in developing, updating, and amending comprehensive litter and solid waste control plans as required by W. Va. Code '22C-4-1 et seq. Such minimum standards and requirements are designed to protect the public health, safety, and environment throughout the state of West Virginia; provide for an integrated waste management hierarchy; provide for the most effective and efficient use of available resources; and ensure the establishment of the most proper and effective solid waste collection, transportation, processing, recycling and disposal services for all residents of the state.

1.2. Authority. -- W. Va. Code ''22C-3-6, 22C-4-8, 22C-4-23, and 20-11-1 et seq.

1.3. Filing Date. -- May 21, 2001.

1.4. Effective Date. -- May 21, 2001.

W. Va. Code R. § 54-3-2 Definitions

The following words and terms, when used in this rule, shall have the following meaning, unless the context clearly indicates otherwise:

2.1. AAuthority@ means any solid waste authority of any county or region in West Virginia, established by W. Va. Code ''22C-4-3 and 22C-4-4; or the county commission of any county which elected not to establish an authority, as allowed by W. Va. Code '22C-4-6.

2.2. ABoard@ means the West Virginia Solid Waste Management Board, as established by W. Va. Code '22C-3-4, or its authorized representatives.

2.3. ACommercial 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 non-profit basis and shall not include land upon which finished or matured compost is applied for use as a soil amendment or conditioner.

2.4. ALandfill@ 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 the purpose of this rule article, in the county where the majority of the spatial area of such facility is located.

2.5. AMaterials 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.

2.6. AOpen 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.

2.7. APlan@ or AComprehensive Plan@ means the comprehensive litter and solid waste control plan or update of such plan required under W. Va. Code '22C-4-8 and sections 5 and 6 of this rule.

2.8. ARecycle@ or ARecycling@ 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, tires, lead-acid batteries, and other materials.

2.9. ARecycling 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 ''20-11-1 et seq., 22-15-1 et seq., or 22C-4-1 et seq.

2.10. AResource recovery facility@ means any solid waste facility at which solid wastes are 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 facility includes composting facilities, environmentally acceptable incinerators, materials recovery facilities, energy recovery facilities and other such solid waste facilities not herein specified.

2.11. ASolid waste@ means any garbage, paper, litter, refuse, cans, bottles, waste processed for the express purpose of incineration, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility; other discarded material, including offensive or unsightly matter, solid, liquid, semisolid, or contained liquid or gaseous material resulting from industrial, commercial, mining, or community activities, but does not include solid or dissolved material in sewage, or solid or dissolved material 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 byproduct material as defined by the Atomic Energy Act of 1954, as amended, including any nuclear or byproduct material considered by federal standards to be below regulatory concern, or a hazardous waste either identified or listed under W. Va. Code ''22-18-1 et seq., or refuse, slurry, overburden, or other waste or material resulting from coal-fired electric power or steam generation, the exploration, development, production, storage, and recovery of coal, oil and gas, and other mineral resources placed or disposed of at a facility which is regulated under 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., or 22A-1-1 et seq., so long as such placement or disposal is in conformance with a permit issued pursuant to said chapters.

2.12. ASolid 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.

2.13. ASolid 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 composing 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 (b). Such facilities shall be deemed to be situated, for the 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, is not a solid waste facility.

2.14. ASource-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.

2.15. ATransfer station@ means a combination of structures, machinery, or devices at a place, or facility where solid waste is taken from collection vehicles and placed in other transportation units (such as a Awalking floor,@ or other method of transfer as determined by the director) for movement to another solid waste management facility. Provided, when the initial generator of solid waste disposes of said waste into a container such as a roll-off, greenbox or bin which is temporarily positioned (not more than five days) at a specific location for transport by a transportation unit, such container shall not be considered a transfer station. Under any circumstances, leachate, litter and windblown materials must be properly managed.

W. Va. Code R. § 54-3-3 Requirement and Procedure for Plan Development, Update, and Approval

3.1. Requirement of Plan. -- All authorities are required to have a plan and to update it.

3.2. Submission to the Board.

3.2.a. A comprehensive litter and solid waste control plan shall be submitted to the Board. The plan shall be updated and submitted every five years after any new or updated plan is approved by the Board or within ninety (90) days of the formation of a new authority.

3.2.b. A grant may be obtained from the Board for the purpose of updating the comprehensive plan in accordance with subsection 4.4 of 54CSR5 - ADisbursement of Grants to Solid Waste Authorities.@ Grant amounts will be subject to the availability of funds.

3.3. Plan Review.

3.3.a. The Board shall review each plan for administrative and technical completeness. If the Board finds the draft plan to be incomplete, i.e., to not contain all of the information required by this rule, it shall return the plan to the authority along with a written statement explaining how the plan is incomplete.

3.3.b. Within ninety (90) days of receipt of a letter disapproving the plan, the authority shall revise the plan to eliminate the insufficiencies and submit the corrected plan to the Board.

3.4. Final Submission to the Board.

3.4.a. The Board shall approve the final plan in writing if the Board determines that the plan complies with the purposes and requirements of applicable state and applicable federal law, if any, and the rules promulgated in this series.

3.4.b. No later than sixty (60) days after approval, each county authority shall submit to the Board four (4) copies of its final plan. Each regional authority must submit one additional copy of the plan for each county within that region. Each authority shall transmit one copy of its plan to each appropriate regional planning and development council, county planning commission and to the office of each appropriate county clerk, who shall file the plan in the appropriate manner and make it available for public inspection.

3.5. Plans Developed by the Board.

3.5.a. The Board shall develop a plan for any authority which fails to submit an update and for any new authority that fails to submit a plan within ninety (90) days of the due date under subsection 3.2.a, provided that in preparing such plans, the Board may determine whether to prepare a regional or county-based plan for those authorities which fail to complete such an update or for those new authorities that fail to complete a plan.

3.5.b. Once a plan or an update has been developed for an authority, the authority shall be responsible for the five-year plan update.

W. Va. Code R. § 54-3-4 Required Format of Plan

4.1. Required Format. -- In addition to the information required in section 5 of this rule, each plan submitted shall include:

4.1.a. A cover sheet which includes the name of the authority, the title of the plan, and the signature of the authority chair;

4.1.b. An introduction explaining the plan=s background, scope, and purpose;

4.1.c. A table of contents indicating the major subdivisions of the plan;

4.1.d. An executive summary of the plan which briefly describes its methodology, goals and objectives, conclusions, and recommendations;

4.1.e. A copy of the Class I legal advertisement as specified in subsection 7.1 of this rule regarding the required public hearings;

4.1.f. A brief summary of public comments and a statement describing how the authority responded to the public comments; and

4.1.g. Maps of an appropriate size and scale that will allow the reader to identify the location of features, services, facilities, and population listed in paragraphs 5.2.b.1. and 5.2.b.3 of this rule.

W. Va. Code R. § 54-3-5 Content of Plan

5.1. General Information. -- The plan shall include the following general information:

5.1.a. Description of plan goals and objectives for solid waste management for the next twenty (20) years.

5.1.b. Status of existing solid waste management activities in the county or region, and a description of how the plan has been implemented. If portions of the plan have not been implemented, discuss the reasons and need for plan modification.

5.1.c. Describe how funds, including grant funding, have been used and will be used to implement the plan.

5.1.d. Describe the actions taken by the authority to implement the hierarchy established in W. Va. Code '22C-4-1, in the following order of priority: (1) source reduction, (2) recycling, reuse, and materials recovery, and (3) landfilling.

5.2. Specific Information and Data. -- In addition, the plan shall include the following specific information:

5.2.a. An assessment of litter and solid waste problems in the county or the region, including, but not limited to, a listing of any open and unpermitted dumps, including waste tire piles, and any other problem areas for litter control.

5.2.b. An evaluation and assessment of existing solid waste collection and disposal services for all county or regional residents at their residences, where practicable, or the use of refuse collection stations at disposal access points in areas where residential collection is not practicable. In developing such collection services, primacy shall be given to private collection services currently operating with a certificate of convenience and necessity from the motor carrier division of the state Public Service Commission.

5.2.b.1. Locate on a county or regional highway map or maps, existing and planned solid waste collection, storage, treatment, transportation, disposal, recycling, and other management facilities, and their projected capacities. Include a listing of haulers and the areas they serve. Information shall be included for all solid waste generated within the area covered by the authority from collection to final disposal, whether or not the above-listed facilities are located within the geographic area of the authority.

5.2.b.2. Include demographic information and projections over twenty (20) years. Information may be obtained from the Regional Research Institute at West Virginia University.

5.2.b.3. Include data on urban concentrations, geographic conditions, markets, transportation conditions, and related factors.

5.2.b.3.A. Indicate the regions which are predominantly urban in nature, their population density, and projected changes in the area or population of these regions. Also indicate any additional regions which are expected to urbanize or where growth is anticipated.

5.2.b.3.B. Include a general description of geographic features in the region, e.g., rolling hills, steep valleys, narrow river plains, or eroded plateau. A short description of soil conditions and underlying bedrock is also requested.

5.2.b.3.C. Identify major highways, rail or river routes currently used in the transportation of solid waste, and which are anticipated to be used in the future. Describe any existing or anticipated problem areas and conditions along such routes.

5.2.c. A recommendation, and the reasons for such recommendation, for the siting of one or more properly permitted public or private solid waste facilities, whether existing or proposed, to serve the solid waste needs of the county or the region, as the case may be, consistent with the comprehensive county plan prepared by the county planning commission, and the anticipated volumes of solid waste originating within or outside the county or region which are likely to be disposed of within the county or region.

5.2.c.1. To ensure that the present and future solid waste needs of the county or regional authority are attained, the authority may recommend that its solid waste be processed, recycled, or disposed of at an existing or proposed solid waste facility located either within or outside the authority=s geographic area.

5.2.c.2. If an authority recommends that its solid waste be processed, recycled, or disposed of at a proposed solid waste facility, such facility may not be located within a prohibited or tentatively prohibited zone established pursuant to 54CSR4 - AThe Development of Commercial Solid Waste Facility Siting Plans@.

5.2.c.3. Whether an authority proposes using a solid waste facility within its area or outside its area, it shall provide documentation that the facility will meet the authority=s future solid waste needs.

5.2.d. A timetable for the implementation of the plan over the twenty (20)-year projection, including stages of progress toward the accomplishment of each item in subsection 5.2 of this rule and the parties responsible for each step in the timetable.

5.2.e. A program for the cleanup, reclamation, and stabilization of any open and unpermitted dumps. The authority should consider using the Pollution Prevention Open Dumps (PPOD) cleanup funds available through the DEP.

5.2.f. A program to enlist the voluntary assistance of private industry and civic groups in volunteer cleanup efforts to the maximum practicable extent.

5.2.g. Coordination with the state Division of Highways and other local, state, and federal agencies in the control and removal of litter and the cleanup of open and unpermitted dumps.

5.2.h. Establishment of a program to encourage and utilize for the purposes of litter pickup those individuals incarcerated in the county or regional jail and those adults and juveniles sentenced to probation.

5.2.i. Provisions for the coordination of the plan with the related solid waste collection and disposal services of municipalities and, if applicable, other counties. Copies of any intergovernmental agreements shall be included in the plan.

5.2.j. A program to identify the anticipated quantities of solid wastes which are disposed of, but are not generated by, sources situated within the boundaries of the county or the region established pursuant to W. Va. Code '22C-4-8. Information on the source of wastes may be available from the DEP and landfills within the county or region for which the plan is being developed.

5.2.k. Provision for the safe and sanitary disposal of all refuse from commercial and industrial sources within the county or region, as the case may be, including refuse from commercial and industrial sources, but excluding refuse from sources owned or operated by the state or federal government.

5.2.k.1. The purpose of this requirement is to ensure that the comprehensive plan addresses not only solid waste from county residents, but also solid waste generated by commercial and industrial sources within the county or region, and further to ensure that all such solid waste is disposed of in a manner which protects the public health and welfare.

5.2.k.2. In order to carry out these purposes, the authority shall inventory all major industrial and commercial sources of solid waste within its boundaries and determine the nature and quantity, and ultimate disposal location of solid wastes which are disposed of at a location outside the property boundary of the particular source. Such information and data shall be included in the plan. For the purposes of this paragraph, the word Amajor@ shall mean any industrial or commercial facility which generates more than five (5) tons of solid waste per month.

5.2.k.3. The authority shall evaluate the information and data it collects pursuant to paragraph 5.2.k.2 of this rule for the following purposes:

5.2.k.3.A. To determine what impact such solid wastes have and are expected to have on the overall solid waste collection, transportation, processing, recycling, and disposal system of the county or region.

5.2.k.3.B. To ensure that such wastes are disposed of in an approved solid waste facility or in an otherwise lawful manner.

5.2.k.4. The authority shall include its evaluation of this information and conclusions reached in the comprehensive plan.

5.2.l. The authority shall provide a summary of all written and oral public comments received at the public hearings required under section 7 of this rule, including a statement of how the authority responded to the comments. Public hearings for the comprehensive plan update may be held at the same time as siting plan update hearings, as long as both plans are advertised and addressed equally.

5.3. Comprehensive Recycling Plan. -- The comprehensive recycling plan shall include, but not be limited to:

5.3.a. The evaluation, including specific reasons, of the feasibility of requiring or encouraging the separation of residential or commercial solid waste at its source prior to collection for the purpose of facilitating the efficient and effective recycling of such wastes and the reduction of those wastes which must be disposed of in landfills or by other nonrecycling means.

5.3.b. Designation of the recyclable materials that can be most effectively source-separated in the region or county, which shall include at least three (3) recyclable materials. Before designation of the materials, the following should be examined:

5.3.b.1. Characterization of the waste stream to determine the quantity of materials potentially available for recycling. Geographic location and seasonal fluctuations should be taken into account in identifying sources of waste.

5.3.b.2. Description of the existing and anticipated markets for resource recovery, materials recovery, recycling, and composting facilities within the area. Intermediate and final markets should be identified. Markets will dictate the types, quantity, and quality of materials collected. Market conditions will dictate the type of processing necessary.

5.3.c. Designation of potential strategies for the collection, marketing, and disposition of designated source-separated recyclable materials in each region or county, including consideration of utilizing existing private and public recycling facilities.

5.3.c.1. Estimate the likely program recovery rate through an analysis of residential, commercial, and industrial recycling potential. All current recycling activities, including collection and processing, should be identified. Existing capacity of all municipal solid waste management facilities, public and private, should be examined.

5.3.c.2. Estimate the likely program requirements for the collection, storage and retrieval, processing, and marketing of yard waste and tires.

5.3.d. A copy of any ordinance adopting a county recycling program pursuant to W. Va.

Code '20-11-5, if applicable. Minutes from the authority board meeting at which the ordinance is adopted should also be included.

5.3.e. A public education program, to include:

5.3.e.1. Definition of the goals and objectives of the recycling educational efforts.

5.3.e.2. Identification of target audiences and the development of appropriate messages and formats. This should include the selection of an appropriate medium for conveying recycling messages and development of educational materials. Use of materials that are readily available is encouraged.

5.3.e.3. Identification of methods to disseminate information and the development of an effective media relations strategy. Community organizations that can assist in the implementation of a public information program should be utilized.

5.3.e.4. Innovative incentives to promote recycling efforts, e.g., a competition between schools for tonnage recycled, a poster or essay contest in schools, or developing a new recycling market such as using car tires in playground construction.

5.3.e.5. Plans for evaluation of recycling education effectiveness on recycling rate, program expansions, and other changes that measure progress.

5.4. Establishment of an appropriate mandatory garbage disposal program. The program shall include:

5.4.a. Methods whereby residents must prove either (1) payment of garbage collection fee, or (2) proper disposal at an approved solid waste facility or in an otherwise lawful manner. The authority shall include a copy of its rules implementing this provision as required under W. Va. Code ' 22C-4-23(3). In establishing the methods for providing proper proof, the authority shall comply with the DEP, 33CSR7 rules - AProof of Proper Solid Waste Disposal.@

5.4.b. Provisions for how the authority will assist local law enforcement officials in the enforcement of the mandatory garbage disposal program.

W. Va. Code R. § 54-3-6 Development, Update, and Amendment Process

6.1. Each authority shall update the plan for its county or region every five (5) years. Public notice and hearing on any proposed updates or amendments shall be given and held in the same manner as outlined in section 7 of this rule. Any updates or amendments proposed by the authority shall be submitted to the Board for approval in the same manner as provided in subsection 3.4.

6.2. At the time of the five-year update, the authority shall, in addition to any other amendments considered necessary, extend the period of time covered by the plan to include the next twenty (20) years following the five-year update.

6.3. The plan may be amended at any time by the county or regional authority which originated the plan. Amendments must meet all requirements of the original plan, including that of giving notice and holding a public hearing as detailed in section 7 of this rule. No amendments may become effective until approved by the Board in the same manner as the original plan.

6.4. Minutes from the authority meeting in which the new, updated, or amended plan is approved shall be included in the new, updated or amended plan before final submission for approval by the Board. Minutes should be signed by the chair. It is the authority=s responsibility to ensure that it is legally constituted to conduct business in accord with W. Va. Code '22C-4-1 et seq.

W. Va. Code R. § 54-3-7 Public Participation Process

7.1. Public Notice and Hearing.

7.1.a. Prior to the submission of a draft plan to the Board, and to assist the authority in the development of a draft plan, the authority shall publish notice and hold at least one public hearing to solicit ideas, opinions, and comments from the general public on the development of the draft plan.

7.1.a.1. The authority shall publish notice of the hearing at least thirty (30) days in advance of the hearing as a Class I legal advertisement published in a qualified newspaper, as defined in W. Va. Code ''59-3-1 and 2, serving the county or counties, whichever is appropriate.

7.1.a.2. The authority shall consider the public comments received at the public hearing, and shall record the proceedings of the hearing by mechanical means, and such recording and a copy of all written comments received and a written summary of the proceedings shall be retained by the authority for a period of three (3) years from the date of the public hearing.

7.1.b. After submission of the draft plan to the Board, the authority shall publish notice and conduct at least one public hearing to solicit ideas, opinions, and comments from the general public concerning the plan.

7.1.b.1. The authority shall publish notice of the hearing at least thirty (30) days in advance of the hearing as a Class I legal advertisement published in a qualified newspaper, as defined in W. Va. Code ''59-3-1 and 2, serving the county or counties, whichever is appropriate, and by posting the public notice at the appropriate county courthouse or courthouses.

7.1.b.2. A copy of the public notice of the hearing shall be mailed to those persons requesting to be placed on a mailing list to be maintained by the authority.

7.1.b.3. The public notice shall include the date, time, and place scheduled for the public hearing, an invitation for written and oral comments, an address to which comments may be mailed, and the locations in the area where a copy of the draft plan is available for public review.

7.1.b.4. At the public hearing, reasonable limits may be set upon the time allowed for oral statements. The submission of written comments shall be extended to ten (10) days after the public hearing date.

7.2. Public Review of the Plan. -- At least thirty (30) days prior to any public hearing under subsection 7.1.b, the authority shall place for public review a copy of the draft plan at the county clerk=s office or clerks= offices, at all public libraries and branch libraries in the county or counties, and at the office of each appropriate regional planning and development council.

7.3. Consideration of Public Comments.

7.3.a. The authority shall consider all public comments received, written and oral, in the development of the final plan.

7.3.b. The authority shall prepare a written summary of the public comments received and a statement explaining how it responded to the public comments in the development of the final plan. Such written summary and statement shall be submitted to the Board with the final plan.

7.3.c. If requested by the Board, the authority shall submit all or any part of the public comment record to the Board for its review.

54CSR3

Series 04 The Development Of Commercial And Solid Waste Facility Siting Plans

W. Va. Code R. § 54-4-1 General

1.1. Scope. -- The purpose of this rule is to establish minimum standards and requirements for the content, format, amendment, review, approval, and public participation process involved in county and regional solid waste facility siting plans, as required by W. Va. Code '22C-4-24. Such minimum standards and requirements are designed to protect the public health, safety, and environment throughout the state of West Virginia, and to ensure the fair and equitable evaluation of all sites proposed for use as solid waste facilities.

1.2. Authority. -- W. Va. Code ''22C-3-6 and 22C-4-24.

1.3. Filing Date. -- May 21, 2001.

1.4. Effective Date. -- May 21, 2001.

W. Va. Code R. § 54-4-2 Definitions

The following words and terms, when used in this rule, shall have the following meaning, unless the context clearly indicates otherwise:

2.1. AApproved solid waste facility@ means a commercial solid waste facility or practice which has a valid permit or compliance order under W. Va. Code '22-15-1 et seq.

2.2. AAuthority@ means any solid waste authority of any county or region in West Virginia, established by W. Va. Code ''22C-4-3 and 22C-4-4; or the county commission of any county which elected not to establish an authority, as allowed by W. Va. Code '22C-4-6.

2.3. ABoard@ means the West Virginia Solid Waste Management Board, as established by W. Va. Code '22C-3-4, or its authorized representatives.

2.4. AClass A facility@ means a commercial solid waste facility which handles an aggregate of between ten and thirty thousand (10,000-30,000) tons of solid waste per month. AClass 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.

2.5. AClass 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 (100) tons each working day; or serves, or is expected to serve, a population equal to or exceeding forty thousand (40,000) persons, but which does not receive solid waste exceeding an aggregate of ten thousand (10,000) tons per month. AClass B facility@ does not include construction/demolition facilities: Provided, That the definition of Class B facility may include such reasonable subdivisions or subclassifications as the director may establish by legislative rule proposed in accordance with the provisions of W. Va. Code '29A-1-1 et seq.

2.6. AClass C facility@ means a commercial solid waste facility which 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. AClass C facility@ does not include construction/demolition facilities.

2.7. AClass D facility@ means any commercial solid waste facility for the disposal of only construction/demolition waste, and does not include the legitimate beneficial reuse of clean waste concrete/masonry substances for the purpose of structural fill or road base material.

2.8. ACommercial 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.

2.9. ACommercial 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 disposal processing, or compositing 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.

2.10. ACompliance order@ means an administrative order issued pursuant to W. Va. Code '22-15-10, authorizing a solid waste facility to operate without a solid waste permit.

2.11. ACommercial 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 compositing waste created by that person or such person and other 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.

2.12. AConstruction/demolition waste@ means waste building materials, packaging, and grubbing waste resulting from construction, remodeling, repair, and demolition operations on houses, commercial and industrial buildings, and other structures and pavements, including, but not limited to: wood, plaster, metals, asphaltic substances, bricks, blocks and concrete, other masonry materials, trees, brush, stumps, and other vegetative materials, but shall not include asbestos waste.

2.13. AEndangered or threatened species@ means any endangered or threatened species, as defined in 50CFR17, of animal or plant, and includes those species listed as endangered or threatened in 50CFR17.

2.14. AEnergy 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.

2.15. AIncineration 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.

2.16. AIncinerator@ 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.

2.17. AKarst region@ means a type of topography which is formed over limestone or dolomite by dissolution of the formation, and is characterized by sinkholes, caves, and similar features.

2.18. ALandfill@ 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 the purpose of this rule, in the county where the majority of the spatial area of such facility is located.

2.19. AMaterials 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.

2.20. AOpen 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.

2.21. APerson@ or Apersons@ means any industrial user, public or private corporation, institution, association, firm, or company organized or existing under the laws of this or any other state or country; the state of West Virginia; governmental agency, including federal facilities; political subdivision; county commission; municipal corporation; industry; sanitary district; public service district; drainage district; soil conservation district; watershed improvement district; partnership; trust; estate; person or individual; group of persons or individuals acting individually or as a group; or any legal entity whatever.

2.22. APlan@ or ASiting plan@ means the commercial solid waste facility siting plan required under W. Va. Code '22C-4-24.

2.23. ARecycle@ or ARecycling@ 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, tires, lead-acid batteries and other materials.

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

2.25. AResource recovery facility@ means any solid waste facility at which solid wastes are 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. AResource recovery facility@ includes composting facilities, environmentally acceptable incinerators, materials recovery facilities, energy recovery facilities and other such solid waste facilities not herein specified.

2.26. ASludge@ 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.

2.27. ASolid waste@ means any garbage, paper, litter, refuse, cans, bottles, waste processed for the express purpose of incineration, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility; other discarded material, including offensive or unsightly matter, solid, liquid, semisolid, or contained liquid or gaseous material resulting from industrial, commercial, mining, or community activities, but does not include solid or dissolved material in sewage, or solid or dissolved material 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 byproduct material as defined by the Atomic Energy Act of 1954, as amended, including any nuclear or byproduct material considered by federal standards to be below regulatory concern, or a hazardous waste either identified or listed under W. Va. Code '22-18-1 et seq., or refuse, slurry, overburden, or other waste or material resulting from coal-fired electric power or steam generation, the exploration, development, production, storage, and recovery of coal, oil and gas, and other mineral resources placed or disposed of at a facility which is regulated under 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., or 22A-1-1 et seq., so long as such placement or disposal is in conformance with a permit issued pursuant to said chapters.

2.28. ASolid 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.

2.29. ASolid waste disposal shed@ means the geographical area which the Solid Waste Management Board designates and files in the state register pursuant to W. Va. Code '22C-3-9.

2.30. ASolid 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 composing 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 (b). Such facilities shall be deemed to be situated, for the 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, is not a solid waste facility.

2.31. ATransfer station@ means a combination of structures, machinery, or devices at a place, or facility where solid waste is taken from collection vehicles and placed in other transportation units (such as a Awalking floor,@ or other method of transfer as determined by the director) for movement to another solid waste management facility. Provided, when the initial generator of solid waste disposes of said waste into a container such as a roll-off, greenbox or bin which is temporarily positioned (not more than five days) at a specific location for transport by a transportation unit, such container shall not be considered a transfer station. Under any circumstances, leachate, litter and windblown materials must be properly managed.

2.32. AWetlands@ means those naturally occurring areas, as defined under 40CFR232.2(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. AWetlands@ generally include swamps, marshes, bogs, and similar areas.

2.33. A100-year flood@ means a flood that has a one percent or greater chance of recurring in any given year, or a flood of a magnitude equaled or exceeded once in one hundred (100) years on the average, over a significantly long period of time.

W. Va. Code R. § 54-4-3 Procedure for Plan Development and Approval

3.1. Submission to the Board. -- A commercial solid waste facility siting plan is to be submitted to the Board. The plan shall be updated and submitted every five years after any new or updated plan is approved by the Board or within ninety (90) days of the formation of a new authority.

3.2. Administrative Completeness Review.

3.2.a. If the Board finds the draft plan to be incomplete, ie., to not contain all of the information required by this rule, it shall return the plan to the Authority along with a written statement explaining how the plan is incomplete.

3.2.b. The authority shall have thirty (30) days to amend the plan by providing the remaining required information, and to submit the amended plan to the Board. No plan will be reviewed for technical merit until it is administratively complete.

3.3. Technical Review.

3.3.a. When a plan is determined to be administratively complete it will be subjected to a technical review of its contents, procedures, and processes.

3.3.b. The Board shall approve the final plan in writing if the Board determines that the plan complies with the purposes and requirements of applicable state and applicable federal law, if any, and the rules promulgated in this series.

3.3.c. If the Board determines that the plan should be rejected, it shall return the plan to the authority with a written statement of the insufficiencies in the plan.

3.3.d. Within ninety (90) days of receipt of a letter disapproving the plan, the authority shall revise the plan to eliminate the insufficiencies and submit the amended plan to the Board.

3.4. Final Submission to the Board. -- No later than sixty (60) days after approval, each county authority shall submit to the Board four (4) copies of its final plan. Each regional authority must submit one additional copy of the plan for each county within that region. Each authority shall transmit one copy of its plan to each appropriate regional planning and development council, county planning commission and to the office of each appropriate county clerk, who shall file the plan in the appropriate manner and make it available for public inspection.

3.5. Plans Developed by the Board. -- The Board shall develop a plan for any authority which fails to submit an update and for any new authority that fails to submit a plan within ninety (90) days of the due date under subdivision 3.2.a, provided that in preparing such plans, the Board may determine whether to prepare a regional- or county-based plan for those authorities which fail to complete such an update or for those new authorities that fail to complete a plan.

W. Va. Code R. § 54-4-4 Required Format of Commercial Siting Plan

4.1. Required Format. -- In addition to the information required in section 5 of this rule, each plan submitted shall include:

4.1.a. A cover sheet which includes the name of the authority, the title of the plan, and the signature of the chairman of the authority;

4.1.b. A forward or preface which includes the purpose of the plan;

4.1.c. A table of contents indicating the major subdivisions of the plan;

4.1.d. A brief summary of the plan and its procedures, its methodology, and its conclusions;

4.1.e. The solid waste facility zones;

4.1.f. The rationale for establishing these zones;

4.1.g. The published announcement of all public hearings;

4.1.h. A brief summary of public comments and a statement describing how the authority responded to the public comments; and

4.1.i. Appropriate highway and topographical maps.

W. Va. Code R. § 54-4-5 Required Content of Commercial Siting Plan

5.1. General Information. -- The plan shall include the following general information:

5.1.a. A description of the purposes and objectives to be met by the plan within a period of twenty (20) years.

5.1.b. The provisions of the comprehensive litter and solid waste control plan, as submitted to the Board pursuant to W. Va. Code '22C-4-8, regarding collection and disposal of solid waste and the requirements, if any, for additional commercial solid waste landfill and transfer station capacity.

5.2. Solid Waste Facility Zones.

5.2.a. Each plan shall contain a narrative description and appropriate topographical maps which delineate the zones in which:

5.2.a.1. Class A facilities (over 10,000 tons per month);

5.2.a.2. Class B and C facilities (under 10,000 tons per month);

5.2.a.3. Class D facilities (construction/demolition only);

5.2.a.4. Solid waste transfer stations;

5.2.a.5. Recycling facilities;

5.2.a.6. Energy recovery facilities, and environmentally acceptable incinerators,

5.2.a.7. Materials recovery facilities, and

5.2.a.8. Composting facilities are Aauthorized,@ Atentatively prohibited,@ or Aprohibited.@ Unless the readily available information clearly establishes that an area is suitable for the location of a commercial solid waste facility, or not suitable for such a facility, the area shall be designated as an area in which the location of a commercial solid waste facility is tentatively prohibited.

5.2.b. Each type of facility listed in subdivision 5.2.a shall be addressed separately in the narrative, along with the rationale for establishing the zone in accordance with subsection 5.3 of this rule. The separate zones may be displayed on a single topographical map or a series of topographical maps, as desired by the authority. All existing facilities listed in subsection 5.2.a will be listed in the plan and depicted on the map regardless of location in or out of an authorized zone. When a facility is located in more than one county, each affected county shall depict the facility on the map.

5.3. Rationale for Establishing Siting Zones. -- The rationale for establishing these zones shall be included in the narrative. This rationale shall consider the following criteria:

5.3.a. The efficient disposal of solid waste, including, but not limited to, all solid waste generated within the county or region, regardless of its origin. - Describe how the zones established by the plan will ensure the efficient collection, transfer, and disposal of solid waste.

5.3.b. Economic development. -- Describe how the zones established by the plan will have a positive or negative impact on the county or regional economy. Detail the specific impact and give reasoning behind the impact.

5.3.c. Transportation infrastructure. -- Describe how the transportation network will allow or prohibit the efficient transportation of solid waste into or through the established zones. Address all transportation routes, i.e., roads, river, and rail.

5.3.d. Property values. -- Describe how the zones established will have a positive or negative impact on property values.

5.3.e. Groundwater and surface waters -- Describe how the established zones will protect groundwater and surface waters in the area.

5.3.e.1. An authority shall establish a zone in which solid waste facilities are prohibited where the readily available information clearly establishes that the facilities will cause:

5.3.e.1.A. A significant adverse impact upon wetlands;

5.3.e.1.B. A significant adverse impact upon any surface water;

5.3.e.1.C. A significant adverse impact upon groundwater quality; or

5.3.e.1.D. A violation of surface water quality standards found in 47CSR3.

5.3.e.2. An authority shall establish a zone in which landfills are prohibited in the following areas, unless the readily available information clearly establishes that landfills may be located within the zone and not cause a significant adverse impact upon ground or surface water quality:

5.3.e.2.A. Within three hundred (300) feet of any surface water (facility drainage or sedimentation control structures are exempt from this distance calculation);

5.3.e.2.B. Within three hundred (300) feet of any wetlands (facility drainage or sedimentation control structures are exempt from this distance calculation);

5.3.e.2.C. Within a perennial stream;

5.3.e.2.D. Within a 100-year flood plain; and

5.3.e.2.E. Within twelve hundred (1,200) feet of any public or private water supply well in existence at the time the zone is established.

5.3.f. Geological and Hydrological Conditions. -- Describe what geological and hydrological conditions prohibit or enable a zone to be suitable for siting a solid waste facility. Some of the factors which the authority shall consider are the existence of any known faults within two hundred (200) feet of the area, or other extreme hydrological or geological conditions, e.g., karst regions, solution cavities, extensive sandstone aquifers, shales, consolidated formations, aquitards, and the existence of any mining in the area. If the readily available information clearly establishes that any such conditions will cause a significant adverse impact on ground or surface water quality, the authority shall designate the area as prohibited for landfills.

5.3.f.1. For the purposes of this subsection, the term Amining@ means the extraction of non-replenishable materials from the earth=s crust, e.g., oil, gas, coal, minerals, sand, gravel, limestone, and other substances of a similar nature.

5.3.f.2. For the purposes of this subsection, the term Aknown fault@ means a fault that has had displacement in Holocene time (i.e., during the last eleven thousand (11,000) years).

5.3.g. Aesthetic and Environmental Quality. -- Describe the positive or negative impacts the established zones will have on existing aesthetic and environmental conditions. For example, siting a recycling center at a former open dump might enable the reclamation of an unsanitary dump. Factors to be considered are the presence of public parks and recreation areas, state and national forests, and endangered or threatened species. An authority shall establish a zone in which landfills are prohibited in the following areas:

5.3.g.1. Within one thousand (1,000) feet of the nearest edge of the right-of-way of any state trunk highway, interstate, or federal aid primary 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; and

5.3.g.2. Within ten thousand (10,000) feet of any airport runway used or planned for use by turbojet aircraft, or within five thousand (5,000) feet of any airport runway used only by piston type aircraft, or within other areas where a substantial bird hazard to aircraft would be created.

5.3.h. Historic and Cultural Resources. -- Describe any effect the zones will have on specific historic and cultural sites. A description of each historic or cultural site, including its size and location, should be listed in the plan.

5.3.i. The present or potential land uses for residential, commercial, recreational, environmental conservation, or industrial purposes. -- Provide the present land uses for the different zones, and realistic potential land uses for the zones. Describe how siting a facility in a particular zone will affect the existing and potential land uses. Zones in which landfills are authorized shall not be established within five hundred (500) feet of a dwelling occupied at the time a zone is established unless written permission is obtained from the owner of the dwelling.

5.3.j. The Public Health, Welfare, and Convenience. -- Describe how the established zones will protect the public health, welfare, and convenience, and still allow for the proper collection, transportation, and disposal of solid waste.

5.4. An authority may base its decision to prohibit solid waste facilities in a particular zone upon one or more of the criteria listed in subsection 5.3 of this rule. However, a decision to authorize solid waste facilities in a particular zone shall be made only after consideration of all of the criteria listed in subsection 5.3 of this rule.

5.5. The zones shall be established based upon readily available information.

5.5.a. AReadily available information@ means relevant information which currently exists and can be obtained by the authority upon request of the appropriate agency or other entity.

5.5.b. Examples of potential readily available information or sources of such information include, but are not limited to:

5.5.b.1. County highway maps;

5.5.b.2. United States Geological Survey maps;

5.5.b.3. West Virginia Geological and Economical Survey;

5.5.b.4. West Virginia Bureau of Environment;

5.5.b.5. County and regional planning commissions;

5.5.b.6. West Virginia Development Office;

5.5.b.7. Local libraries;

5.5.b.8. West Virginia Department of Culture and History;

5.5.b.9. Local chambers of commerce;

5.5.b.10. County tax assessor=s office;

5.5.b.11. Existing solid waste facilities, to the extent such information is relevant; and

5.5.b.12. Local solid waste haulers in the area.

5.6. An authority shall Aauthorize@ or Aprohibit@ solid waste facilities in a given zone only when the readily available information clearly establishes that the facility should be authorized or prohibited in that zone. Otherwise, the authority shall Atentatively prohibit@ facilities in the zone.

5.7. The establishment of zones pursuant to this rule shall be consistent with the comprehensive plan prepared by the county planning commission, if such plan exists.

W. Va. Code R. § 54-4-6 Review and Amendment Process

6.1. Each authority shall review the plan for its county or region every five (5) years. A public hearing on any amendments must be held in the same manner as outlined in section 7 of this rule. Any changes or amendments necessary shall be submitted to the Board for approval.

6.2. At the time of the five-year review, the authority shall, in addition to any other amendments considered necessary, extend the period of time covered by the plan to include the next twenty (20) years following the five-year review date.

6.3. The plan may be amended at any time by the county or regional authority which originated the plan. Amendments must meet all requirements of the original plan, including that of holding a public hearing as detailed in section 7 of this rule. No amendments may become effective until approved by the Board in the same manner as the original plan.

6.4. Upon application from any person or group, the authority may amend the siting plan by redesignating a zone or any portion of a zone.

6.4.a. In such case, the person seeking the change has the burden to affirmatively and clearly demonstrate, based on all of the criteria set forth in subsection 5.3 of this rule, that the requested redesignation is appropriate and proper, and that any solid waste facility sited at such location could be appropriately operated in the public interest.

6.4.b. In order to make such demonstration, the person seeking the change shall make whatever examination is necessary and submit specific detailed information to the authority relating to the criteria in subsection 5.3 of this rule.

W. Va. Code R. § 54-4-7 Public Participation Process

7.1. Public Notice and Hearing.

7.1.a. After submission of the draft plan to the Board, the authority shall publish notice and conduct at least one public hearing in each county affected to solicit ideas, opinions, and comments concerning the plan from the general public.

7.1.b. The authority shall publish notice of the hearing at least thirty (30) days in advance of the hearing as a Class I legal advertisement published in a qualified newspaper, as defined in W. Va. Code '59-3-1, serving the county or counties, as appropriate, and by posting the public notice at the appropriate county courthouse or courthouses.

7.1.c. A copy of the public notice of the hearing shall be mailed to those persons requesting to be placed on a mailing list to be maintained by the authority.

7.1.d. The public notice shall include the date, time, and place scheduled for the public hearing; an invitation for written and oral comments; an address to which comments may be mailed; and, the locations in the area where a copy of the draft plan is available for public review.

7.1.e. The authority shall consider the public comments received at the public hearing, and shall record the proceedings of the hearing by mechanical means, and such recording and a copy of all written comments received and a written summary of the proceedings shall be retained by the authority for a period of three (3) years from the date of the public hearing.

7.1.f. At the public hearing, reasonable limits may be set upon the time allowed for oral statements. The submission of written comments shall be extended to ten (10) days after the public hearing date.

7.2. Public Review of the Plan. -- At least thirty (30) days prior to any public hearing on the plan, the authority shall place a copy of the draft plan for public review at the county clerk=s office or offices, and at all public libraries and branch libraries in the county or counties.

7.3. Consideration of Public Comments.

7.3.a. The authority shall consider all public comments received, written and oral, in the development of the final plan.

7.3.b. The authority shall prepare a written summary of the public comments received, and a statement explaining how it responded to the public comments in the development of the final plan. Such written summary and statement shall be submitted to the Board with the final plan.

7.3.c. If requested by the Board, the authority shall submit all or any part of the public comment record to the Board for its review.

54CSR4

Series 05 Rules And Regulations For The Disbursement Of Grants To Solid Waste Authorities

W. Va. Code R. § 54-5-1 General

1.1. Scope. -- The purpose of this rule is to provide interpretation and guidance concerning the awarding of grants to county and regional solid waste authorities for use in carrying out the purposes of W. Va. Code §22C-4-1 et seq.

1.2. Authority. -- W. Va. Code §§22C-3-6 and 22C-4-30.

1.3. Filing Date. -- April 10, 2002.

1.4. Effective Date. -- April 15, 2002.

W. Va. Code R. § 54-5-2 Definitions

The following words and terms, when used in this rule, shall have the following meaning, unless the context clearly indicates otherwise:

2.1. “Applicant” – means a solid waste authority which applies for a grant pursuant to this rule.

2.2. “Approved solid waste facility” – means a commercial solid waste facility or practice which has a valid permit or compliance order under W. Va. Code §22-15-1 et seq.

2.3. “Authority” – means any solid waste authority of any county or region in West Virginia, established by W. Va. Code §§22C-4-3 and 22C-4-4; or the county commission of any county which elected not to establish an authority, as allowed by W. Va. Code §22C-4-6.

2.4. “Board” – means the West Virginia Solid Waste Management Board, as established by W. Va. Code §22C-3-4, or its authorized representatives.

2.5. “Buy-back center” – means any recycling facility which has an attendant present while open, at which source-separated recyclables are purchased from the general public, or accepted for a nominal fee. Limited processing of materials is required or conducted.

2.6. “Commercial solid waste facility” – means any solid waste facility which accepts solid waste generated by sources other than the owner or operator of the facility, and does not include an approved solid waste facility owned and operated by a person for the sole purpose of disposing of solid waste created by that person or, that person and another person on a cost-sharing or nonprofit basis, and does not include land upon which reused or recycled materials are legitimately applied for structural fill, road base, mine reclamation, and similar applications.

2.7. “Construction” – includes reconstruction, enlargement, improvement, and providing furnishings or equipment for a solid waste disposal project.

2.8. “Cost” – means, as applied to solid waste disposal projects, the cost of their acquisition and construction; the cost of acquisition of all land, rights-of-way, property rights, easements, franchise rights, and interests required by the Board for such acquisition and construction; the cost of demolishing or removing any buildings or structures on land so acquired, including the cost of acquiring any land to which such buildings or structures may be moved; the cost of diverting highways, interchange of highways, and access roads to private property, including the cost of land or easements therefor; the cost of all machinery, furnishings, and equipment; all financing charges and interest prior to and during construction and for no more than eighteen (18) months after completion of construction; the cost of all engineering services and all expenses of research and development with respect to solid waste facilities; the cost of all legal services and expenses; the cost of all plans, specifications, surveys, and estimates of cost and revenues; all working capital and other expenses necessary or incident to determining the feasibility or practicability of acquiring or constructing any such project; all administrative expenses and such other expenses as may be necessary or incident to the acquisition or construction of the project; the financing of such acquisition or construction, including the amount authorized in the resolution of the Board providing for the issuance of solid waste disposal revenue bonds to be paid into any special funds from the proceeds of such bonds; and the financing of the placing of any such project in operation. Any obligation or expenses incurred after the effective date of this rule by any governmental agency, with the approval of the Board, for surveys, borings, preparation of plans and specifications, and other engineering services in connection with the acquisition or construction of a project shall be regarded as a part of the cost of such project and shall be reimbursed out of the proceeds of loans or solid waste disposal revenue bonds as authorized by the provisions of W. Va. Code §22C-3-10 et seq.

2.9. “Grant” – means a grant made by the Board to an applicant pursuant to this rule.

2.10. “Government agency” – means the state government or any agency, department, division, or unit thereof; counties; municipalities; watershed improvement districts; soil conservation districts; sanitary districts; public service districts; drainage districts; regional governmental authorities and any other governmental agency, entity, political subdivision, public corporation, or agency having the authority to acquire, construct, or operate solid waste facilities; the United States government or any agency, department, division, or unit thereof; and any agency, commission, or authority established pursuant to an interstate compact or agreement.

2.11. “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 the purpose of this rule, in the county where the majority of the spatial area of such facility is located.

2.12. “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.

2.13. “Owner” – includes all persons, partnerships, or governmental agencies having any title or interest in any property rights, easements, and interests authorized to be acquired by this rule.

2.14. “Recycle” or “Recycling” – 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, tires, lead-acid batteries, and other materials.

2.15. “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 §§20-11-1 et seq., 22-15-1 et seq., or 22C-4-1 et seq.

2.16. “Solid waste” – means any garbage, paper, litter, refuse, cans, bottles, waste processed for the express purpose of incineration, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility; other discarded material, including offensive or unsightly matter, solid, liquid, semisolid, or contained liquid or gaseous material resulting from industrial, commercial, mining, or community activities, but does not include solid or dissolved material in sewage, or solid or dissolved material in irrigation return flows or industrial discharges which are point sources and have permits under W. Va. Code §22-11-5 et seq., or source, special nuclear or byproduct material as defined by the Atomic Energy Act of 1954, as amended, including any nuclear or byproduct material considered by federal standards to be below regulatory concern, or a hazardous waste either identified or listed under W. Va. Code §22-18-1 et seq., or refuse, slurry, overburden, or other waste or material resulting from coal-fired electric power generation, 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., 22-10-1 et seq., or 22A-1-1 et seq., so long as such placement or disposal is in conformance with a permit issued pursuant to said chapters.

2.17. “Solid waste disposal” – means the practice of disposing of solid waste, including placing, depositing, dumping, or throwing, or causing any solid waste to be placed, deposited, dumped, or thrown.

2.18. “Solid waste disposal project” or “Project” – means any solid waste facility, the development of Comprehensive Litter and Solid Waste Control Plans and Commercial Solid Waste Facility Siting Plans, administrative costs, open dump cleanup, and other purposes for expenditure of grant monies approved by the Board at its discretion.

2.19. “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 (b). Such facilities shall be deemed to be situated, for the 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, is not a solid waste facility.

W. Va. Code R. § 54-5-3 Application for Grants

3.1. Any eligible solid waste authority which desires to participate in the program shall make an application to the Board on prescribed forms as published in the grant application package. One form may be used to apply for separate projects.

3.2. Applications must include a description of the proposed project, a detailed project budget, properly executed and signed resolution authorizing the application, and all other documentation as prescribed in the grant application package. All required documentation must be signed by the chairperson(s) of the authority or authorities where indicated.

3.3. Grant applications must be received by the Board no later than April 30 to be considered at its July meeting. The Board may consider grant applications or revisions for emergency or extraordinary purposes at any time at its sole discretion.

3.4. Incomplete applications will not be considered; they will be marked “incomplete” and returned to the applicant. Applications that fulfill all requirements may be resubmitted within the original filing deadline.

3.5. Grants will be awarded to solid waste authorities for the purchase of equipment, materials, services, land, and buildings used on behalf of the authority. Grant monies cannot be passed on to a third party. Equipment, buildings, and land purchased with grant funds may be leased to other solid waste authorities or other parties provided that such lease will directly assist in the implementation of Comprehensive Litter and Solid Waste Control Plan goals, objectives, and recommendations. Title to equipment, buildings, and land purchased with grant funds must remain with the solid waste authority unless otherwise approved by the Board. Grants will not be given for construction or improvements to facilities on property which is not owned by the authority.

3.6. The applicant will be notified in writing within a reasonable period of time of approval or disapproval of the grant. Approval or disapproval of the grant will be determined by the Board after consideration of the factors listed under §54-5-7 of this rule.

W. Va. Code R. § 54-5-4 Eligibility for Participation

The following criteria will determine the eligibility of a proposed project to receive funding under this program:

4.1. The applicant must be a county or regional solid waste authority, or group of such authorities acting collectively for the purpose of the grant project.

4.2. Grants will be awarded for a maximum period of one year, provided that the Board may extend this period for up to ninety (90) days. Continued financing for long-term projects will be provided at the sole discretion of the Board. All projects shall be consistent with the goals, objectives, and recommendations of the Comprehensive Litter and Solid Waste Control Plan.

4.3. Each fiscal year, the Board will determine both the total amount of funds available for grants and the maximum grant amount for a single applicant. The total amount will be subject to the availability of funds and appropriation by the Legislature and may, at the sole discretion of the Board, be increased/decreased at subsequent meetings of the Board as necessary. The grant amount may be increased when the applicant consists of two (2) or more counties acting collectively for the purposes of a grant.

4.4. Solid waste authorities which have not received the Board’s approval of their Comprehensive Litter and Solid Waste Control Plan, Commercial Solid Waste Facility Siting Plan, or updates of such plans in accordance with the requirements of W. Va. Code §§22C-4-8, 22C-4-24, and the rules promulgated thereunder shall not be eligible for grants other than those awarded for purposes of completing such plans. Eligibility for projects other than completion of the Comprehensive Litter and Solid Waste Control Plan and the Commercial Solid Waste Facility Siting Plan will be reinstated upon the approval of such plans or their updates.

4.5. If the purpose of the grant is to fund costs associated with a solid waste facility, the facility must be in compliance with all applicable federal and West Virginia laws and rules, including any compliance orders issued by state agencies and/or departments.

4.6. The applicant shall be responsible for establishing and maintaining adequate procedures and internal financial controls governing the management and utilization of funds provided under this grant award. The applicant shall establish a separate checking account through which all grant project related financial transactions shall take place. The applicant shall not use grant monies for any purpose other than those approved by the Board in the grant application. The applicant shall ensure that the programmatic intent and purpose for which the grant funds are expended is implemented, utilized and maintained in an appropriate manner.

4.7. The applicant shall cause an audit of this program, including a physical inventory of all property and equipment purchased with grant funds, to be included in its annual audit performed by the Office of the State Auditor, Chief Inspector Division or its designated representative pursuant to W. Va. Code §6-9-7. A copy of the audit report and inventory shall be forwarded to the Board by the applicant.

4.8. At any time during normal business hours, and as often as the Board may deem necessary, the applicant shall make available to the Board all of its records pertaining to this grant and permit the Board to examine and make excerpts, transcripts, or copies from such records, and audit all contracts, invoices, materials, payrolls, personnel records, conditions of employment, and other data relating to all matters covered by this grant during the period beginning with the project approval and ending three years after the final disbursement of grant funds or until audited, whichever is later.

4.9. The applicant shall solicit sealed bids for all construction-related contracts or purchases in accordance with the governing purchasing procedures and guidelines. Any attempts by the applicant to circumvent this requirement by segregating the project into sections each having an estimated value of less than the amount requiring sealed bids may be cause for termination of the agreement.

4.9.1. The bids shall be obtained by public notice as a Class II legal advertisement in compliance with the provisions of W. Va. Code §59-3-2. This notice shall be published by the applicant in the newspaper with the largest circulation serving the general area twice within fourteen (14) days preceding the final date for submitting bids. The applicant shall also, where feasible, solicit sealed bids by mailing requests to prospective suppliers or contractors. The applicant shall have available upon request for review by the Board bid documents and other evidence of compliance with these procedures.

4.9.2. The applicant shall comply with the requirements of W. Va. Code §5G-1-1 et seq., regarding obtaining architectural or engineering services, if such services are needed.

4.10. Whenever practicable, grant funds will be disbursed according to the following schedule: fifty percent (50%) at the time of the grant award, and fifty percent (50%) after the applicant has (1) demonstrated to the Board that approximately fifty percent (50%) of the total project funds have been expended, and (2) prepared and received approval of a semi-annual report as described in §54-5-9.1.1. Provided, however, that upon a finding that disbursement by this schedule will adversely affect the continuity of the project, the Board may disburse funds on a schedule which will ensure continuity.

4.11. Applicants with a current grant may not be eligible for the next cycle of grants.

4.12. A delinquent final report may cause ineligibility for future grants.

W. Va. Code R. § 54-5-5 Personnel Qualifications

5.1. The applicant must document within the application that it has, or will secure, personnel with the necessary qualifications and experience required to perform the services under this grant award. Such personnel shall not be employees of or have any contractual relationship with the Solid Waste Management Board.

5.2. The grant may not be used to replace existing personnel currently being provided by the local government.

W. Va. Code R. § 54-5-6 Compliance with Federal and State Laws

The applicant agrees to ensure that the following conditions are met and shall submit a signed affirmation of compliance with all applicable Federal and State laws in the final report:

6.1. That it will not discriminate against any employee or applicant for employment because of race, color, age, religion, sex, national origin, or physical handicap.

6.2. That it shall take affirmative action to ensure that all contractors employed during this project treat all their employees without regard to race, color, age, religion, sex, national origin, or physical handicap; and that such affirmative action shall include, but not be limited to, the following: employment, upgrading, demotions, transfers, recruitment, compensation, selection for training (including apprenticeship), and participation in recreational and educational activities. All solicitations or advertisements for employees placed by or on behalf of the applicant shall state that all qualified applicants for employment will be considered without regard to race, color, age, religion, sex, national origin, or physical handicap. The applicant shall cause the provisions of this nondiscrimination clause to be inserted in all subcontracts for any work covered by the grant award so that such provisions will be binding upon each subcontractor; and shall keep such records and submit such information concerning the racial and ethnic origin of employees and applicants for employment as the Board may require.

6.3. The applicant shall require any contractors and/or subcontractors it engages on this project to comply with Titles VI and VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000 e-2(a); et seq.); Presidential Executive Order 11246, as amended by EEOC Guidelines, 29 C.F.R. 1604.11(a)(1)(2)(3); Presidential Executive Order 11375; and the Unlawful Discriminatory Practices of the West Virginia Human Rights Act, as contained in W. Va. Code §5-11-9.

6.4. The applicant shall ensure that the contractor /or subcontractors has complied with the regulations issued by the Contractors Licensing Board pursuant to W. Va. Code §21-11-1 et seq., regarding operating a contracting business in the state of West Virginia. The contractor and license number will be included in the final report.

6.5. The applicant shall require compliance of this with the standards documented within Title III of the Americans With Disabilities Act of 1991, and its applicable regulations.

6.6. Certification is required by the Drug-Free Workplace Act of 1988 and is implemented through additions to the Debarment and Suspension regulations published in the Federal Register on January 31, 1989. The certification form must be completed and accompany the grant application.

6.7. The applicant shall insure that all personnel and contractors employed during this project work in an environment which is free from harassment in any form including, but not limited to, sexual, racial, age, or disability.

W. Va. Code R. § 54-5-7 Authorized Use of Grant Funds and Factors Considered in Evaluating Applications

Applicants may request grant money to be used for any of the purposes under W. Va. Code §22C-4-1 et seq. The project should be consistent with the local authority’s Comprehensive Litter and Solid Waste Control Plan and the state Solid Waste Management Plan.

7.1. The Board will consider all projects which are consistent with the Authority’s statutory responsibilities for the purpose of W. Va. Code §22C-4-1 et seq. Consideration will also be given to a balance in funding for programs and personnel to support the programs. The Board will give preference to grant projects and the computer hardware and software needed to achieve or enhance program or project objectives such as:

7.1.1. Source reduction in toxicity or volume.

7.1.2. Reuse of materials with little or no processing.

7.1.3. Recycling, composting, processing, and marketing of recovered materials.

7.1.4. Mandatory disposal, open dump cleanup and litter control.

7.1.5. Transfer stations.

7.1.6. Landfills and other solid waste facilities.

7.1.7. Administrative costs (ie. salary, operations and maintenance, administrative equipment) for any of the above items or other projects.

7.1.8. Projects for the development, purchase, or delivery of educational materials, programs, or seminars. Applicants are encouraged to use existing educational information, programs, and seminars available from other sources.

7.2. Potential of project to further the efficient and effective collection, processing, recycling, and disposal of solid waste within the area and to assist in the protection of the environment.

7.3. Cost-effectiveness of the project.

7.4. Degree of public involvement in the project.

7.5. The applicant’s ability to obtain a grant or loan from monies available under the provisions of W. Va. Code §22C-3-1 et seq., or any other state-funded source.

7.6. The applicant’s ability to implement the project as soon as practicable after receipt of the first installment of grant funds.

7.7. No grants will be approved for operation or equipment for buy-back centers which are in direct competition with private enterprise operations existing within the same county, unless such buy-back centers agree in writing not to pay more for commodities than the price paid for such commodities by the private enterprise.

7.8. No grants will be approved for the conduct of brokering operations of recycled material or to be used to subsidize personnel who carry out such operations.

7.9. Applications for physical resources, such as equipment or facilities, may receive preference over funding of operations or salaries of employees.

7.10. No grants will be approved that violate the primacy of private solid waste collection services currently operating with a certificate of necessity from the motor carrier division of the West Virginia Public Service Commission.

W. Va. Code R. § 54-5-8 Grant Withdrawal and Penalty

8.1. The Board reserves the right to withdraw a grant upon determination of unsatisfactory compliance with these rules, the specifications in the grant document, or the grant application.

8.2. Failure to commence program activities within ninety (90) days after receiving funding from the Board may result in cancellation of the grant.

8.3. Failure to expend twenty percent (20%) of the grant funds within the first semi-annual period of the grant may result in cancellation of the grant and a recall of all funds plus any accrued interest.

8.4. The applicant shall not use grant monies to fund lobbying activities. Use of grant funds for this purpose will result in cancellation of the grant and a recall of all funds plus any accrued interest.

8.5. The Board reserves the right to conduct an on-site inspection of the applicant’s facilities related to the grant, and to conduct an audit of an applicant’s program records during or after the grant period. The applicant shall retain all financial records, statistical records, and all other documents relating to the grant for a period of three (3) years from the end of the grant period or until audited, whichever is later.

W. Va. Code R. § 54-5-9 Reporting Requirements

9.1. Semi-annual reports. – Semi-annual reports shall be submitted to the Board on a semi-annual basis within fifteen (15) working days of the end of the six-month period and shall contain the following information:

9.1.1. A detailed listing of all funds expended or received during the semi-annual period with copies of: invoices, purchase orders, cancelled checks, and bank statements; titles evidencing ownership for all equipment and materials purchased; contracts, employment and bid advertisements, all bids received and service agreements; time sheets, payrolls, tax payments and reports; and, any other information deemed pertinent to the grant by the Board.

9.1.2. The balance of the grant monies remaining.

9.1.3. The percentage of the project completed to date. Specify the progress that has been made and any problems which have been encountered.

9.2. For purposes of this section the first semi-annual period ends six months after the grant award date, and the second semi-annual period ends one year after the grant award date.

9.3. Final Report. – A final report, including the same documentation for this period as required in the semi-annual report, shall be submitted to the Board within thirty (30) days of completion of the project The report must include a narrative summary of the project’s accomplishments as compared with its original goals, and an explanation of any unachieved objectives. The report should also address any questions posed by the Board.

9.3.1. If an extension regarding the project is authorized pursuant to Section 4.2, the filing deadline will be extended accordingly.

9.3.2. An applicant must submit a final report at the time all grant funds have been expended.

9.4. All reports required under this section shall be filed with the Board on prescribed forms as published in the grant award package.

W. Va. Code R. § 54-5-10 Management of Grant

10.1. The applicant shall establish a separate interest bearing checking account through which all grant project-related financial transactions, and only those transactions, shall take place. Grant monies shall be deposited into this dedicated account immediately upon receipt.

10.2. The applicant shall return to the Board all unexpended funds remaining at the end of the grant period, unless the Board finds good cause to waive this requirement. Such unexpended funds, including all accrued interest, must be returned to the Board within sixty (60) days following the end of the grant period.

W. Va. Code R. § 54-5-11 Disposition of Equipment

11.1. Disposition of equipment purchased with grant funds, in whole or in part, requires prior Board approval.

11.2. The Board reserves the right to conduct on-site inspections of all equipment purchased with grant funds.

W. Va. Code R. § 54-5-12 General Conditions and Requirements

12.1. The proposed project shall be designed to affect a significant and measurable reduction in the solid waste stream.

12.2. If applicable, all grant proposals shall include an analysis and projection of materials that will be diverted from the solid waste currently being landfilled and the costs and/or savings that will directly result from the proposed project.

12.3. If applicable, project proposals shall include a plan to identify markets able to handle the projected volumes of materials to be collected and demonstrate the cost effectiveness and self-sufficiency of the proposed project.

12.4. Grant recipients may request a revision to their grant budget only after approval by the Solid Waste Authority’s Board and only if it does not materially alter the original grant proposal approved by the Board.

12.5. Grant recipients will include in their final report an analysis of the project including any or all of the following when it applies: 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 landfilling.

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54CSR5

Series 06 Performance Measures And Review Standards For Solid Waste Authorities Operating Commercial Solid Waste Facilities

W. Va. Code R. § 54-6-1 General

1.1. Scope. -- This legislative rule establishes a system for performance reviews and measures to be conducted by the West Virginia Solid Waste Management Board. The Board shall conduct a biennial performance review of a county and regional solid waste authority that operates a commercial solid waste facility to gauge the productivity and operational health of the authority. The Board shall also conduct a biennial performance review of each commercial solid waste facility operated by a county or regional solid waste authority to promote accountability, support effective and efficient facility operations and identify serious impairments of the facility.

1.2. Authority. -- W. Va. Code §§22C-3-26, 22C-4-9a(d), and 22C-4-9a(g).

1.3. Filing Date. -- April 10, 2008.

1.4. Effective Date. -- July 1, 2008.

1.5. Incorporation by Reference.

W. Va. Code R. § 54-6-2 Definitions

2.1. All terms used herein shall, unless the context indicates otherwise, have the meanings ascribed to them as set forth below.

2.1.a. “Act” means W. Va. Code §22C-4-1 et seq.

2.1.b. “Audit” means a systematic examination and collection of sufficient, competent evidential matter needed for an auditor to attest to the fairness of management's assertions in the financial statements, and to evaluate whether management has sufficiently and effectively carried out its responsibilities and complied with applicable laws and regulations. An audit shall be conducted in accordance with generally accepted auditing standards, standards issued by the WV State Auditor’s chief inspector division, and, as applicable, the single audit requirement of OMB Circular A-133 Audits of States, Local Governments and Non-Profit Organizations.

2.1.c. “Benchmark” means a reference point to evaluate and determine the effective and efficient performance of a solid waste authority and its commercial solid waste facility and to assist in the identification of any impairments.

2.1.d. “Board” means the West Virginia Solid Waste Management Board, as established by W. Va. Code §22C-3-4.

2.1.e. “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 does not include land upon which reused or recycled materials are legitimately applied for structural fill, road base, mine reclamation, and similar applications.

2.1.f. “Director” means the appointed executive director of the West Virginia Solid Waste Management Board.

2.1.g. “Examination” includes an audit or review as defined in W. Va. Code §6-9-1a.

2.1.h. “Financial audit” includes financial statement audits and financial related audits, as defined by government auditing standards and conducted by the WV State Auditor’s office or designee.

2.1.i. “Improvement Consultants” means a team of experienced professionals in the field of solid waste management, appointed by the director, to conduct on-site reviews and make strategic recommendations toward remedy of serious impairments at a commercial solid waste facility operated by a county or regional solid waste authority.

2.1.j. “Impairment” means any operational, financial, managerial or any other practice(s) which diminishes the current or future efficient and effective operation of a solid waste authority or its commercial solid waste facility.

2.1.k. ‟Internal Controls” are procedures and devices that serve to monitor routines, in an effort to eliminate error or impropriety.

2.1.l. “Performance Measure” means outcomes and outputs. “Outcomes” represent effects or results of programs. “Outputs” represent the units of services or activities produced.

2.1.m. “Performance Review” means an accountability system which establishes benchmarks to evaluate and determine the effective and efficient performance of a county or regional solid waste authority operating a commercial solid waste facility.

2.1.n. “Program” means solid waste disposal, recycling, composting, reduction, transferring or other solid waste management practices or any combination thereof.

2.1.o. “Review” means an inquiry or analytical procedure that provides the auditor with a reasonable basis for expressing limited assurance that there are no material modifications that should be made to the financial statements in order for them to be in conformity with generally accepted accounting principles or, if applicable, with another comprehensive basis of accounting and conducted by the WV State Auditor’s office or designee.

2.1.p. “Seriously Impaired” means any operational, financial, managerial or other practice(s) which adversely affects the current or future efficient and effective operation of a solid waste authority or its commercial solid waste facility.

2.1.q. “Solid Waste Authority” means a county or regional governmental agency as defined in W. Va. Code §22C-3-3, and also as created and established by W. Va. Code §§22C-4-3 and 22C-4-4.

2.1.r. “Supersedure” means the temporary intervention by the West Virginia Solid Waste Management Board to exercise in part or whole, the powers granted to only county or regional solid waste authorities that operate solid waste facilities as provided in chapters seven, twenty two, twenty two-c and twenty-four of the W. Va. Code, and as provided in W. Va. Code §22C-3-26.

2.1.s. “Uniform Chart of Accounts” means delineating common revenue and expense account naming conventions to be used by all solid waste authorities as provided in §22C-4-9a(i).

W. Va. Code R. § 54-6-3 Performance Measures for Accountability

3.1. Written quarterly reports shall be submitted to the Board by a solid waste authority operating a commercial solid waste facility on forms provided by the Board. The performance measurement report shall include, but is not limited to, accurate information in the areas of regulatory and statutory compliance, financial records, business operations management, number of full and part-time employees, job titles, program outcomes and outputs. A solid waste authority shall provide the performance measurement data, based on a calendar year’s quarter, by the last day of the month following each quarter. Data shall be submitted more frequently if required by the Board. The last quarterly report of each calendar year shall also include a copy of the solid waste facility’s annual operating report required by 33 CSR 1-4.12.g.

W. Va. Code R. § 54-6-4 Performance Review

4.1. A performance review by the Board shall be conducted at least once every two years of each county and regional solid waste authority that operates a commercial solid waste facility. The review shall benchmark both the performance of the county or regional solid waste authority and its commercial solid waste facility. Provided that the performance review shall not duplicate areas of environmental regulatory oversight performed by the Department of Environmental Protection

4.1.a. Notification - The director will send a standard letter notifying the county or regional solid waste authority of the upcoming performance review. The letter should include:

4.1.a.1. Statutory and regulatory authority for conducting the review;

4.1.a.2. A request to hold an entrance conference;

4.1.a.3. Identification of assigned Board staff; and

4.1.a.4. A request for advanced information such as an organizational chart, bylaws, policies and procedures, annual operations report, budgetary documents, minutes of solid waste authority board meetings, etc.

4.1.b. Criteria to Evaluate - The Board’s performance review shall, at a minimum, evaluate the following criteria of the county or regional solid waste authority:

4.1.b.1. Agency appointments to board of directors, vacancies and attendance record of board members;

4.1.b.2. Review of all business operations including but not limited to, financial and administrative functions, loans, notes or lines of credit, contracts, agreements and procurement practice, pending or potential litigation involving more than five thousand dollars ($5,000);

4.1.b.3. Review or recommend solid waste management training and education for the solid waste authority’s board and staff members;

4.1.b.4. Solid waste authority’s general status of compliance with W. Va. Code, Chapter 22C, Article 4 (County and Regional Solid Waste Authorities Act);

4.1.b.5. Operation of composting activities and facilities, or operation of recycling activities and facilities, or operation of drop-off locations for solid waste and composting activity or facility, and

4.1.b.6. Other criteria as determined by the director for evaluation.

4.1.c. The Board’s performance review shall also evaluate the effective and efficient operation of the county or regional solid waste authority’s commercial solid waste facility including but not limited to recordkeeping, internal controls, equipment maintenance and procurement and overall safety program.

W. Va. Code R. § 54-6-5 Benchmarking

5.1. In order to evaluate and determine performance of a solid waste authority and its commercial solid waste facility, benchmarks will be used in, but not limited to, the following areas:

5.1.a. Compliance with all applicable federal, state and local laws, codes, ordinances, rules and regulations.

5.1.b. Financial accountability including but not limited to examinations on financial records, loan payments, and debt leveraging.

5.1.c. General business procedures, safety and training programs.

W. Va. Code R. § 54-6-6 Performance Review Categories

6.1. Each member of the solid waste authority’s board of directors shall receive a copy of the final performance review, which shall identify any impairments that exist requiring corrective action by the solid waste authority. Based upon the final performance review the solid waste authority and its commercial solid waste facility shall be placed in one of the following categories:

6.1.a. “Satisfactory,” when the Board determines that the solid waste authority’s performance and progress allows for a efficient and effective operation.

6.1.b. “Impaired,” when the Board determines that any operational, financial, managerial or other practice by the solid waste authority, diminishes the current or future efficient and effective operation of the authority’s commercial solid waste facility.

6.1.c. “Seriously Impaired,” when the Board determines that any operational, financial, managerial or other practice by the solid waste authority, has adversely affected the current or future efficient and effective operation of the solid waste authority’s commercial solid waste facility.

W. Va. Code R. § 54-6-7 Process for Correcting Impairments

7.1. A solid waste authority placed in a category of impaired or seriously impaired shall correct the impairments within ninety (90) days after receiving the final performance review which begins the intervention process. Any impairment to be corrected shall not duplicate or conflict with regulatory oversight performed by the Department of Environmental Protection. Provided, That prior to correction the director may require the solid waste authority to employ an appropriate professional such as an engineer, accountant or planner to make strategic recommendations for remedy. Upon written request of the solid waste authority’s board, the Board may determine that extraordinary circumstances necessitate an extension of time to correct serious impairments. Provided, However, the Board or its director as part of the intervention process may at any time require but is not limited to the following:

7.1.a. Appoint a team of improvement consultants specific to the area of impairment(s) to conduct on-site reviews and make strategic recommendations toward remedy of serious impairments.

7.1.a.1. The team of improvement consultants may include representatives from the Board, solid waste authority, Department of Environmental Protection, Public Service Commission, State Auditor’s Office and if deemed necessary by the Board, representatives from the private sector.

7.1.a.2. Costs associated with representatives from the private sector to be the responsibility of the solid waste authority.

7.1.b. Require that the solid waste authority’s board prioritize and target its funds strategically toward alleviating the impairments.

7.1.c. Require the solid waste authority to prepare an annual fiscal budget, which must be submitted to the Board for approval.

7.1.d. Recommend to the agencies that appoint the members to the solid waste authority’s board of directors that one or more members of the solid waste authority’s board of directors be replaced.

7.1.e. The director or his or her designee, may preside as chair of the solid waste authority board meetings during intervention.

7.1.f. After receiving a final performance review or through regular monitoring of performance measures that identify impairments, a solid waste authority shall not be eligible to receive grant funds from the Board’s grant program in accordance with 54CSR5-4.5 or from the Department of Environmental Protection’s recycling grant program, in accordance with 58CSR5-10.7 until such impairments have been corrected. Provided, That the Board or the Department of Environmental Protection may, at their discretion, award grant funds if they determine that the specific purpose of such funds is to correct the impairments.

7.1.g. The director shall notify the solid waste authority in writing that the temporary intervention has ended only after a determination by the Board that impairments have been corrected.

W. Va. Code R. § 54-6-8 Supersedure over Solid Waste Authorities

8.1. The Board may by resolution supersede and exercise, in part or whole, the powers granted to only county or regional solid waste authorities that operate commercial solid waste facilities as provided by W. Va Code §22C-3-26 which are impaired or seriously impaired, following the 90-day improvement period.

8.2. Actions of the Board supersede those powers granted to such solid waste authorities. Provided, That nothing in this rule relieves the solid waste authority of its legal duties, obligations or liabilities incident to the ownership or operation of its solid waste facility.

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