9VAC20-40 Administrative Procedures for Hazardous Waste Facility Site Certification

REGULATIONS

Vol. 29 Iss. 21 - June 17, 2013

TITLE 9. ENVIRONMENT

VIRGINIA WASTE MANAGEMENT BOARD

Chapter 40

Final Regulation

REGISTRAR'S NOTICE: The Virginia Waste Management Board is claiming an exemption from the Administrative Process Act in accordance with § 2.2-4006 A 4 a of the Code of Virginia, which excludes regulations that are necessary to conform to changes in Virginia statutory law where no agency discretion is involved. The Virginia Waste Management Board will receive, consider, and respond to petitions from any interested person at any time with respect to reconsideration or revision.

Title of Regulation: 9VAC20-40. Administrative Procedures for Hazardous Waste Facility Site Certification (amending 9VAC20-40-60, 9VAC20-40-80, 9VAC20-40-130, 9VAC20-40-140).

Statutory Authority: §§ 10.1-1434 and 10.1-1436 of the Code of Virginia.

Effective Date: July 17, 2013.

Agency Contact: Debra A. Harris, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone [phone], FAX [phone], TTY [phone], or email [e-mail].

Summary:

The amendments allow notifications associated with siting of new hazardous waste facilities to be sent via postal or electronic mail. The amendments allow for electronic or postal mail notifications to interested individuals regarding (i) any notice of intent to file an application for a certification of site approval, (ii) a briefing meeting to discuss such an application, (iii) the public hearing associated with such an application, (iii) the decision of the Director of the Department of Environmental Quality to allow a petitioner to become a party to such a hearing regarding an application, and (iv) the final decision of approval or denial of the application. The amendments are required by statutory changes to § 10.1-1183 of the Code of Virginia by Chapter 348 of the 2013 Acts of Assembly.

9VAC20-40-60. Contents of the notice of intent.

A. After December 31, 1984, any person may submit to the board a notice of intent to file an application for a certification of site approval. The notice shall contain:

1. Name and address of the applicant;

2. A copy of the property deed, option, or other document giving right, title, or interest to the proposed site;

3. A description of the proposed facility including a description based on its operating characteristics;

4. A USGS map showing the location of the property at a scale of one inch = 2,000 feet;

5. Names and addresses of all owners of property adjacent to the proposed site; and

6. Any state agency filing a notice of intent shall include a statement explaining why the Commonwealth desires to build a hazardous waste facility and how the public interest will be served by that.

B. Determination of completion of notice of intent. The director will review the notice of intent and determine within 45 days of its receipt whether the notice of intent is complete. If the director determines that the notice of intent is incomplete, the director shall so advise the applicant, specifying the information needed to complete the notice and designating a deadline for the correction of any deficiencies.

C. Distribution of notice of intent. Upon the determination that a notice of intent is complete, the board, at the applicant's expense, shall promptly:

1. Deliver by certified, return receipt mail a copy of the notice of intent with a copy of the Act, a copy of this chapter, and notice of the date, time, location and purpose of the briefing meeting to:

a. The governing body of each host community;

b. The governing body of each affected community;

c. State legislators elected from the areas in which the host community and affected communities are located;

d. The regional planning district commissions of the host community and the affected communities; and

e. Each person owning property immediately adjoining the site of the proposed facility.

2. Have an informative description of the notice published in a newspaper of general circulation in each host community once each week for four successive weeks. The description shall include the name and address of the applicant, a description of the proposed facility and its location, the places and times where the notice of intent may be examined, the address and telephone number of the board or other state agency from which information may be obtained, and the date, time and location of the initial public briefing meeting on the notice.

3. Copies of the notice of intent will be mailed, by electronic or postal delivery, to any person who has specifically requested such notice.

9VAC20-40-80. Briefing meeting.

A. Not more than 75 nor less than 60 days after the delivery of the notice of intent to the host community, the board shall conduct a briefing meeting in or in reasonable proximity to the host community. Notice of the date, time, place and purpose of the briefing session shall be prepared by the board and shall accompany the notice of intent delivered pursuant to § 10.1-1439 of the Code of Virginia, and be included in the notice published pursuant to § 10.1-1439 of the Code of Virginia. At least one representative of the applicant shall be present at the briefing meeting. The primary purpose of the briefing meeting will be to provide information on the proposed site and facility and to receive comments, suggestions and questions on them from the public.

B. The board shall select from among its membership a briefing officer who will be responsible for conducting the meeting as follows:

1. The briefing officer will call the meeting to order and explain the purpose of the briefing;

2. The applicant shall be allowed to give a presentation describing the proposal and to respond to questions;

3. Persons asking questions shall be requested to state their names, addresses, and interests in the project;

4. The briefing officer shall conduct the meeting in an orderly manner while ensuring that all interested parties present are as fully briefed as possible on the proposal; and

5. A stenographic or electronic record shall be made of all briefing meetings. A transcript of the meeting, together with copies of any documents submitted at the briefing, shall be made available for inspection at the office of the board and host community during normal working hours.

C. If the board conducts additional briefing meetings, notice of such meetings shall be provided as follows:

1. Notice of the date, time, place and purpose of the meeting is delivered in writing to the applicant, each member of the governing body of the host community, and to all owners of property adjoining the proposed site at least 15 days in advance of the meeting;

2. Such notice is published once each week for at least two successive weeks in a newspaper of general circulation in the host community;

3. Such notice is broadcast over one or more radio stations within the area to be affected by the subject of the notice;

4. Such notice is mailed, by electronic or postal delivery, to each person who has asked to receive notice; and

5. Such notice is disseminated by any additional means the board deems appropriate.

9VAC20-40-130. Public hearing on draft certification of site approval.

A. The board shall conduct a public hearing on the draft certification not less than 15 nor more than 30 days after the first publication of notice. The hearing shall be conducted in the host community.

B. Notice of the hearing shall be made at the applicant's expense and shall:

1. Provide for public participation by sending a copy of the notice by certified, return receipt mail to the following:

a. The governing body of the host community;

b. The governing body of the affected communities;

c. Legislators elected from the areas in which the host community is located and the affected communities are located;

d. The regional planning district commissions of the host community and affected communities;

e. Persons owning property adjoining the site of the proposed facility.

f. The applicant.

g. Any person who has been designated a party pursuant to 9VAC20-40-130 D.

2. In addition to the requirements imposed by paragraph 1, in accordance with § 10.1-1447 of the Code of Virginia, the notice shall be disseminated:

a. By publication once each week for two successive weeks in a newspaper of general circulation within the area to be affected by the subject of the notice;

b. By broadcast over one or more radio stations within the area to be affected by the subject of the notice;

c. By mail, electronic or postal delivery, to each person who has asked to receive notice; and

d. By such additional means as the board deems appropriate.

Every notice shall provide a description of the subject for which notice is made and shall include the name and telephone number of a person from whom additional information may be obtained.

3. Provide that the contents of such notice include:

a. A brief description of the terms and conditions of the draft certification;

b. Information describing the date, time, place and purpose of the hearing;

c. The location where the draft certification may be reviewed;

d. The name, address and telephone number of an official designated by the board to receive written comments of the draft certification;

e. A brief description of the rules and procedures to be followed at the hearing and the time for receiving comments; and

f. Any such information as the board deems appropriate.

C. Designation and powers of hearing officer.

1. The public hearing held pursuant to these procedures will be conducted by a hearing officer designated by the board.

2. The hearing officer shall conduct the hearing in an orderly and expeditious manner, and shall hold all powers necessary to those ends, including, but not limited to, the power to do the following:

a. Prescribe the methods and procedures to be used in the development of evidentiary facts and the presentation of evidence by the parties, including the issuance of prehearing orders setting forth the issues for hearing and establishing deadlines for the filing of written testimony and exhibits;

b. Impose reasonable limitations on the time permitted for oral testimony;

c. Consolidate the presentation of factual data, arguments and proof to avoid repetitive presentation of them;

d. Administer oaths and affirmations;

e. Receive probative evidence, rule upon offers of proof and, upon his own motion or the objection of any party, exclude irrelevant, immaterial, insubstantial or repetitive proofs, rebuttal or cross-examination;

f. Examine witnesses;

g. Hold prehearing conferences for the settlement determination, simplification or stipulation of issues and facts by consent;

h. Rule on procedural matters; and

i. Issue subpoenas and subpoenas duces tecum in accordance with § 2.2-4022 of the Code of Virginia.

3. Rulings of the hearing officer on the admissibility of evidence or testimony, on the propriety or conduct of cross-examination, and on any and all procedural matters shall appear in the hearing record and shall control further proceedings in the hearing. Parties shall be presumed to have taken objection to any adverse ruling, and no objection shall be considered waived by further participation on the hearing.

D. Parties; rights of parties; petition to become a party.

1. The following persons are entitled to become parties to the public hearing conducted pursuant to this section:

a. The applicant;

b. The host community, acting through its governing body; and

c. Any person owning land adjoining the site of the proposed facility.

2. In addition to the above named parties, any person whose significant interest will be adversely affected by the decision of the board may file a petition to become a party to the hearing. The following procedures apply to such petitions:

a. The petition to become a party must be received by the board at least 10 days prior to the scheduled hearing date.

b. The petition shall contain the following:

(1) The names and addresses of the petitioner, the petitioner's counsel (if any) and all persons for whom the petitioner is acting as a representative;

(2) A statement setting forth the interest of the petitioner in the matter;

(3) A statement by the petitioner that, should his petition be granted, the petitioner will be available, without cost to any other party, to appear at the hearing; and

(4) A statement by the petitioner explaining how his interests would not be adequately represented by existing parties to the hearing.

c. The director shall acknowledge the receipt of all petitions to become a party.

d. The director shall consider all petitions filed in accordance herewith, and shall grant those petitions that both:

(1) Raise one or more genuine substantial issues in the petition which, if resolved adversely to the petitioner, would result in an injury to a significant interest of the petitioner; and

(2) Adequately describe how the petitioner's interest is not represented by an existing party to the hearing.

e. The director shall notify the petitioner, and all other parties, of his decision to grant or deny petition to become a party by mail, electronic or postal delivery, at least five days prior to the scheduled hearing date. The decision of the director in no way limits the rights of judicial review granted under § 10.1-1433 et seq. of the Code of Virginia.

3. The rights of the parties to the hearing shall be limited to those enumerated in this chapter and the Act.

E. Evidence at the hearing.

1. Parties to the hearing may present direct and rebuttal evidence in written and oral form, as the hearing officer may direct.

2. The hearing officer shall admit all relevant, competent and material evidence offered by the parties but shall exclude evidence which he determines to be repetitive, irrelevant, immaterial or otherwise inadmissible.

3. Whenever any evidence or testimony is excluded by the hearing officer as inadmissible, so much of the excluded material as is in written form shall remain in the record as an offer of proof, and shall be marked "excluded" by the hearing officer. Where oral testimony is excluded, the party seeking to introduce it may make an offer of proof in the form of a brief descriptive statement for the record.

4. Any other interested person may be given an opportunity to testify during the hearing. The hearing officer shall allow such testimony to be heard as is not irrelevant, immaterial, insubstantial or repetitive. Any interested person who so testifies shall be sworn and subject to cross-examination as prescribed in this section.

F. Hearing record.

1. The hearing officer shall assemble a hearing record after the close of the hearing.

The hearing record shall consist of:

a. A transcript of the hearing, and any exhibits admitted in evidence;

b. A copy of the final impact statement;

c. A copy of the application for certification of site approval;

d. Reports of any consultants hired by the board that have been made available to the parties prior to the hearing;

e. A copy of the draft certification of site approval; and

f. A summary of the record, if the hearing officer so desires.

2. Within 15 days after the close of the hearing, the hearing officer shall deliver a copy of the hearing record to each member of the board.

Part IV
Certification and Approval of Site

9VAC20-40-140. Final decision on certification of site approval.

A. Within 45 days after the close of the public hearing, the board shall meet within or in close proximity to the host community and shall vote to issue or deny the certification of site approval. The board may include in the certification any terms and conditions which it deems necessary and appropriate to protect and prevent injury or adverse risk to health, safety, welfare, the environment and natural resources. At least seven days notice of the date, time, place and purpose of the meeting shall be made in the manner provided in § 10.1-1447 of the Code of Virginia. No testimony or evidence will be received at the meeting.

B. The board shall grant the certification of site approval if it finds:

1. That the terms and conditions of it will protect and prevent injury or unacceptable adverse risk to health, safety, welfare, the environment and natural resources;

2. That the facility will comply and be consistent with the criteria promulgated by the board; and

3. That the applicant has made reasonable and appropriate efforts to reach a siting agreement with the host community including, though not limited to, efforts to mitigate or compensate the host community and its residents for adverse economic effects, if any, of the facility.

C. The board's decision to grant or deny certification will be based on the hearing record and shall be accompanied by the written findings of fact and conclusions upon which the decision was based. The board shall provide the applicant and the governing body of the host community with copies of the decision, together with the findings and conclusions, by certified mail in accordance with § 10.1-1183 of the Code of Virginia.

D. The grant or denial of certification constitutes final action by the board.

VA.R. Doc. No. R13-3655; Filed May 20, 2013, 9:49 a.m.