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

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

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

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

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

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

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

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

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

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

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

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

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

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

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