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

REGULATIONS

Vol. 32 Iss. 24 - July 25, 2016

TITLE 9. ENVIRONMENT

VIRGINIA WASTE MANAGEMENT BOARD

Chapter 40

Final Regulation

REGISTRAR'S NOTICE: The Virginia Waste Management Board is claiming an exemption from Article 2 of the Administrative Process Act in accordance with § 2.2-4006 A 3, which excludes regulations that consist only of changes in style or form or corrections of technical errors. The Virginia Waste Management Board will receive, consider, and respond to petitions by 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 9VAC20-40-20, 9VAC20-40-40, 9VAC20-40-50, 9VAC20-40-80, 9VAC20-40-90, 9VAC20-40-100, 9VAC20-40-110).

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

Effective Date: August 24, 2016.

Agency Contact: Leslie A. Romanchik, 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 correct citations and update a definition to make them consistent with Virginia statute and update a title of a referenced regulation.

9VAC20-40-20. Purpose of chapter.

Article 6 (§ 101-1433 10.1-1433 et seq.) of Chapter 14 of Title 10.1 of the Code of Virginia contains a detailed description of the process and procedures for a certification of site suitability. This chapter is designed to amplify and supplement the statutes where appropriate. This chapter together with the statute establish administrative procedures for the submission and evaluation of applications for certification of hazardous waste facility sites

Article 2
Definitions

9VAC20-40-40. Definitions.

Section 10.1-1433 of the Code of Virginia defines several words and terms which are used in this chapter. Unless the context clearly indicates otherwise, those words and terms will have the same meaning when used in this chapter. In addition, the following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise:

"Act" means §§ 10.1-1433 through 10.1-1449 of the Code of Virginia.

"Affected communities" means those counties, cities or towns contiguous to the host community which may be affected by the siting of a hazardous waste facility in the host community.

"Applicant" means the person applying for a certification of site suitability or submitting a notice of intent to apply for that. The applicant must be the person who that intends to own or operate the proposed facility.

"Application" means an application to the board for a certification of site suitability.

"Board" means the Virginia Waste Management Board.

"Certification of site suitability" or "certification" means the certification issued by the board pursuant to Chapter 14 (§ 10.1-1400 et seq.) of Title 10.1 of the Code of Virginia.

"Construct" or "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; or (ii) with respect to existing facilities, the alteration or expansion of existing structures or facilities to initially accommodate hazardous waste, any expansion of more than 50% of the area or capacity of an existing hazardous waste facility, or any change in design or process of a hazardous waste facility that will, in the opinion of the board, result in a substantially different type of facility. It does not include preliminary engineering or site surveys, environmental studies, site acquisition, acquisition of an option to purchase or activities normally incident to that.

"Criteria" means the criteria adopted by the board, pursuant to § 10.1-1436 of the Code of Virginia.

"Department" means the Virginia Department of Environmental Quality.

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

"Emergency situation" means where an imminent and substantial endangerment to human health or the environment is determined.

"Fund" means the technical assistance fund created pursuant to § 10.1-1448 of the Code of Virginia.

"Hazardous waste" means a solid waste classified as a hazardous waste by the Virginia Hazardous Waste Management Regulations, 9VAC20-60.

"Hazardous waste facility" or "facility" means any facility, including land and structures, appurtenances, improvements and equipment for the treatment, storage or disposal of hazardous wastes, which accepts hazardous waste for storage, treatment or disposal. For the purposes of this chapter, it does not include: (i) facilities which are owned and operated by and exclusively for the on-site treatment, storage or disposal of wastes generated by the owner or operator; (ii) facilities for the treatment, storage or disposal of hazardous wastes used principally as fuels in an on-site production process; and (iii) facilities used exclusively for the pretreatment of wastes discharged directly to a publicly-owned sewage treatment works.

"Hazardous waste management facility permit" means the permit for a hazardous waste management facility issued by the director or the U.S. Environmental Protection Agency.

"Host community" means any county, city or town within whose jurisdictional boundaries construction of a hazardous waste facility is proposed.

"On-site" means facilities that are located on the same or geographically contiguous property which may be divided by public or private right-of-way, and the entrance and exit between the contiguous properties are at a crossroads intersection so that the access is by crossing, as opposed to going along, the right-of-way. On-site also means noncontiguous properties owned by the same person but connected by a right-of-way which the owner controls and to which the public does not have access.

"Operating characteristics": These include, but are not limited to:

1. Brief description of the nature of the business of the facility, including an estimate of the size of the business (number of employees, etc.);

2. Specification of each hazardous waste involved in the operation of the facility and an estimate of the annual quantity of each;

3. Description of the physical facility (number and size of buildings, tanks and other structures);

4. General description of the process to be used in the treatment, storage, or disposal or both of each hazardous waste;

5. Description of the anticipated traffic to and from the facility (number, type, and capacity of those vehicles transporting hazardous waste as well as other types of vehicles);

6. Short and long term projections for the facility, including its projected life expectancy; and

7. Any other relevant information which will assist the board and other persons to gain a clear understanding of the nature and operation of the facility.

"Operator" means a person who is responsible for the overall operation of a facility.

"Owner" means a person who owns a facility or a part of a facility.

"Person" means an individual, trust, firm, joint stock company, corporation, including a government corporation, partnership, association, state, municipality, commission, political subdivision of a state, interstate body or federal government agency.

"Site plan" means a design of the proposed facility and site. The site plan must accurately represent all structures of the proposed facility. If the site has existing structures, the site plan must designate these and specify the alterations to be made to each. The site plan shall also include a topographic map showing a distance of 1,000 feet around the facility at a scale of 2.5 centimeters (one inch) equal to not more than 61.0 meters (200 feet). Contours shall be shown on the map. The contour interval shall be sufficient to clearly show the pattern of surface water flow in the vicinity of and from each operational unit of the facility, for example, contours with an interval of 1.5 meters (five feet), if relief is greater than 6.1 meters (20 feet) or an interval of 0.6 meters (two feet), if relief is less than 6.1 meters (20 feet). Owners and operators of facilities proposed in mountainous areas should use a larger contour interval to adequately show topographic profiles of facilities. The map shall clearly show the following:

1. Map scale and date;

2. 100 year floodplain area;

3. Surface waters including intermittent streams;

4. Surrounding land uses (residential, commercial, agricultural, recreational);

5. A wind rose (i.e., prevailing wind speed and direction);

6. Orientation of the map (north arrow);

7. Legal boundaries of the facility site;

8. Access control (fences and gates);

9. Injection and withdrawal wells, both on-site and off-site;

10. Buildings; treatment, storage, or disposal operations; or other structures (recreation areas, run-off control systems, access and internal roads; storm, sanitary, and process sewerage systems; loading and unloading areas; fire control facilities, etc.);

11. Barriers for drainage or flood control;

12. Location of operational units within the facility site where hazardous waste is proposed to be treated, stored or disposed, including equipment cleanup areas; and

13. Such additional information as the board deems necessary to carry out its duties as required by the Act.

"Solid waste" means any garbage, refuse, sludge and other discarded material, including solid, liquid, semisolid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations and from community activities but does not include (i) solid or dissolved material in domestic sewage; (ii) solid or dissolved material in irrigation return flows or in industrial discharges which are sources subject to a permit from the State Water Control Board, or (iii) source, special nuclear, or byproduct material as defined by the Federal Atomic Energy Act of 1954 (42 USCS § 2011 et seq.), as amended.

"Storage" means the containment or holding of hazardous wastes pending treatment, recycling, reuse, recovery or disposal.

"Treatment" means any method, technique or process, including incineration or neutralization, designed to change the physical, chemical or biological character or composition of any hazardous waste so as to neutralize such waste it or so as to render such waste it less hazardous or nonhazardous, safer for transport, amenable to recovery, amenable to or storage, or reduced in volume. Such term includes any activity or processing designed to change the physical form or chemical composition of a hazardous waste so as to render it less hazardous or nonhazardous.

Part II
Initiation of Certification Process

9VAC20-40-50. Requirement of certification and waiver.

A. No person shall construct or commence construction of a hazardous waste facility without first obtaining a certification of site approval by the board in the manner prescribed here.

An owner or operator of a facility may submit a notice of intent as prescribed in 9VAC20-40-60 below or submit a request for a waiver from the procedures established in the Act and this chapter.

B. Upon receiving a written request from the owner or operator of a facility, the board may grant a waiver upon such conditions as it may determine, provided that the proposed changes to the facility are designed to:

1. Prevent a threat to human health or the environment because of an emergency situation;

2. Comply with federal or state laws and regulations promulgated after July 1, 1984; or

3. Demonstrably result in safer or environmentally more acceptable processes.

C. The waiver provisions of this chapter shall apply to existing facilities when construction is defined to be:

1. The alteration or expansion of existing structures or facilities to initially accommodate hazardous waste;

2. Any expansion of more than 50% of the area or capacity of an existing hazardous waste facility; or

3. Any change in the design or process of a hazardous waste facility that will result in a substantially different type of facility or will cause the facility to be reclassified as a higher numbered category.

D. Emergency situation.

1. Scope of waiver:. The owner or operator of a facility may be permitted to make changes which are designed to prevent a threat to human health or the environment because of an emergency situation.

2. Applying for waiver:. The owner or operator of the facility may obtain verbal approval from the director effective for a period up to 30 days, unless revised by the board at its next regular meeting, and, in addition, must submit the request for waiver in writing to the director. The request at a minimum must contain the following information:

a. The name and address of the owner or operator or both of the facility;

b. Location of the facility and a description of its operation;

c. Description of the circumstances creating the emergency situation;

d. Description of the resulting threat to human health or the environment or both;

e. Description of the changes to be made in the facility; and

f. Efforts to restore the facility to original conditions of certification after emergency conditions are abated.

3. The waiver:. Upon receipt of the request, the director will grant or deny the request for waiver. In the event the director grants the request for waiver, such waiver is subject to the approval of the council board at its next regularly scheduled meeting. If the director denies the request, the applicant may renew the request at the next regularly scheduled meeting of the board.

E. State or federal laws; more acceptable process.

1. Scope of waiver:. The owner or operator of a facility may be permitted to make changes which are designed to comply with state or federal laws enacted or regulations promulgated after July 1, 1984, or changes which demonstrably result in safer or environmentally more acceptable processes.

2. Applying for waiver:. The owner or operator of the facility must make the request in writing to the director. At a minimum the request must contain the following information:

a. Name and address of the owner and/or or operator of the facility;

b. Location of the facility and a description of its operation; and

c. Either:

(1) A copy of the state or federal law or regulation necessitating the change, if applicable, and a description of the changes to be made in the facility to effect compliance with the law or regulation; or

(2) A description of the changes the owner or operator wishes to make and an analysis demonstrating the improved safety or environmental soundness resulting from the changes.

3. The waiver:. At its next regularly scheduled meeting, the board will consider the request for waiver. The owner or operator or his representative should attend the meeting. At the meeting the board may:

a. Grant the request for waiver;

b. Deny the request for waiver;

c. Determine that additional information is needed from the owner or operator;

d. Decide that a public hearing is needed; or

e. Take any other action the board deems appropriate.

4. Should the board decide to hold a public hearing, it will also determine from among the following who will conduct the hearing: a member or members of the board, the director, or both, or a hearing officer, or both; appointed from outside the board. The director will give notice of the hearing to the same parties and in the same manner as described in 9VAC20-40-60 C, regarding distribution of the notice of intent. The owner or operator shall provide the director with a list of the names and addresses of all owners of property adjoining the facility. The notice of the hearing shall specify the date, time, and location of the hearing and include a copy of the request for waiver.

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 10.1-1437 of the Code of Virginia, and be included in the notice published pursuant to § 10.1-1439 10.1-1437 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.

9VAC20-40-90. Impact analysis.

A. The applicant shall submit a draft impact analysis in accordance with § 10.1-1440 of the Code of Virginia and, in addition, shall furnish a copy of the draft impact analysis to each person designated in that section.

B. The draft impact analysis shall include:

1. A detailed assessment of the project's suitability with respect to the criteria.

2. A cover letter signed by the applicant;

3. An executive summary providing a brief description of the applicant's proposal, the impacts, and mitigating actions;

4. A site plan;

5. A full report addressing each of the following:

a. Effects on botanical resources;

b. Energy and water consumption;

c. Discharge of any substance, or of heat, in surface or ground waters;

d. A description of any necessary clearing, excavating, dredging, filling;

e. The types and amounts of wastes which will be accepted;

f. The process or processes to be employed including its basic characteristics and principal limitations;

g. Planned operational safeguards and monitoring of the facility following cessation of operations;

h. Emission of radiation; and

i. Solid waste disposal.

6. An ownership report containing:

a. A legal description of the applicant, including identification of all principal participants;

b. A current audited financial statement or statements prepared by a certified public accountant including the accountant's opinions;

c. A description of all liability insurance the applicant has or plans to obtain for the proposed site and facility and a description of the financial and managerial arrangements for closure and post-closure care of the site;

d. A description of the applicant's experience in the field, including any other hazardous waste facilities operated or owned currently or in the past by the applicant and details of their compliance record; and

e. A description of how the applicant intends to finance the project.

7. An appendix providing any supporting documentation.

C. The board, at the applicant's expense, shall cause notice of the filing of the draft impact analysis to be made in the manner provided in § 10.1-1440 10.1-1447 of the Code of Virginia, within 10 days of receipt. The notice shall include (i) a general description of the analysis, (ii) a list of recipients, (iii) a description of the places and times that the analysis will be available for inspection, (iv) a description of the board's procedures for receiving comments on the analysis, and (v) the addresses and telephone numbers for obtaining information from the board.

D. The board shall allow 45 days after publication of notice for comment on the draft impact analysis. No sooner than 30 and no more than 40 days after publication of notice of the draft impact analysis, the board shall conduct a public meeting on the draft impact analysis in or near the host community. The meeting shall be for the purpose of explaining, answering questions and receiving comments on the draft impact analysis. A representative of the governing body and a representative of the applicant shall be present at the meeting.

E. The board will receive comments on the draft impact analysis pursuant to the following procedures:

1. Comments on the draft analysis may be in writing and mailed to the board within 45 days of publication of the notice for comment; and

2. Comments may be submitted in writing or by presentation before the board at the public meeting conducted pursuant to § 10.1-1444 of the Act. The meeting will be conducted in the same manner as the briefing meeting in 9VAC20-40-80 B.

F. Within 10 days after the close of the comment period, the board shall forward to the applicant a copy of all comments received on the draft impact analysis, together with its own comments.

G. The applicant shall prepare and submit a final impact analysis to the board after receiving the comments. The final impact analysis shall reflect the comments as they pertain to each of the items listed in subsection B of this section. A copy of the final impact analysis shall be provided by the applicant upon request to each of the persons who received the draft impact analysis.

H. Preparation and submission of the final impact analysis will be in accordance with § 10.1-1440 of the Code of Virginia.

Part III
Application for Certification of Site Approval

9VAC20-40-100. Application.

A. At any time within six months after submission of the final impact analysis, the applicant may submit to the board an application for certification of site approval. The application shall contain:

1. A summary of the proposal including a general description of the facility and the nature of the business;

2. Conceptual engineering designs for the proposed facility;

3. A copy of the final impact analysis which evaluates the siting criteria;

4. A detailed description of the facility's suitability to meet the criteria promulgated by the board, including any design and operation means that will be necessary or otherwise undertaken to meet the criteria;

5. A siting agreement, if one has been executed pursuant to 9VAC20-40-100 subsections F and H of this section, 9VAC20-40-110 and § 10.1-1442 of the Code of Virginia, or, if none has been executed, a statement to that effect.

B. Fees. The application shall be accompanied by the fee established by the Fee Schedule Regulation of Fees for Hazardous Waste Facility Site Certification (9VAC20-20).

C. Form of the application.

1. The application should be contained in one or more three-ring loose-leaf binders preferably on 8-1/2 X 11 inch paper.

2. All maps required by this chapter shall be detachable, but may be fold outs.

3. The summary shall be capable of separate reproduction and distribution.

D. The director shall review the application for completeness and notify the applicant within 15 days of receipt that the application is incomplete or complete.

If the application is incomplete, the director shall so advise the applicant and shall identify the information necessary to make the application complete. The director shall take no further action until the application is complete.

If the application is complete, the director shall so advise the applicant and shall direct the applicant to furnish copies of the application to the following: five to the host community and one to each person owning property adjoining the proposed site. At least one copy of the application shall be made available by the applicant for inspection and copying at a convenient place in a host community during normal business hours.

E. The board shall cause notice of the application to be made in the manner provided in § 10.1-1441 10.1-1447 of the Code of Virginia, and shall notify each governing body that upon publication of the notice the governing body must conclude all negotiations with the applicant within 30 days. The applicant and the governing body may, by agreement, extend the time for negotiation to a fixed date but shall forthwith notify the board of this date. The board may also extend the time to a fixed date for good cause shown.

F. At the end of the period specified in subsection E of this section, a governing body shall submit to the board and to the applicant a report containing:

1. A complete siting agreement, if any, or in case of failure to reach full agreement, a description of points of agreement and unresolved points; and

2. Any conditions or restrictions on the construction, operation or design of the facility that are required by local ordinance.

G. If the report is not submitted within the time required, the board may proceed as specified in § 10.1-1443 A of the Code of Virginia.

H. The applicant may submit comments on the report of the governing body at any time prior to the issuance of the draft certification of site approval.

9VAC20-40-110. Negotiations; role of board; good faith required.

A. The governing body or its designated representatives and the applicant, after submission of notice of intent to file an application for certification of site approval, may meet to discuss any matters pertaining to the site and the facility, including negotiations of a siting agreement. The time and place of any meeting shall be set by agreement, but at least a 48-hour notice shall be given to members of the governing body and the applicant.

B. The board shall assist in facilitating negotiations between the local governing body and the applicant to the extent of recommending a mediator or other conflict resolution mechanism, but shall not become integrally involved in the siting agreement negotiations.

C. The siting agreement may include any terms and conditions, including mitigation of adverse impacts and financial compensation to the host community, concerning the facility. In the event that a provision of a siting agreement conflicts with state or federal law, the state or federal law shall prevail.

D. The siting agreement shall be executed by the signatures of (i) the chief executive officer of the host community, who has been so directed by a majority vote of the local governing body, and (ii) the applicant or authorized agent.

E. Determination of agreement.

1. If the report submitted by the governing body pursuant to § 10.1-1442 10.1-1441 of the Code of Virginia indicates that no siting agreement has been reached and contains a written allegation that the applicant has failed or refused to negotiate in good faith, the director shall issue notice to the applicant and host community of the board's intention to hold an informal conference pursuant to § 2.2-4019 of the Virginia Administrative Process Act. The notice shall state the time, place and date of such conference. The purpose shall be to determine the sole issue of whether or not the applicant has failed or refused to negotiate in good faith with the governing body in developing a siting agreement.

2. If the board finds that the governing body has shown by a preponderance of the evidence that the applicant has failed or refused to negotiate in good faith with the governing body for the purpose of attempting to develop a siting agreement, the board may deny the application for certification of site approval. Such a finding shall constitute final action by the board.

3. If the board finds that the governing body has not shown by a preponderance of the evidence that the applicant has failed or refused to negotiate in good faith with the governing body for the purpose of attempting to develop a siting agreement, the board may issue the draft certification of site approval pursuant to § 10.1-1443 of the Code of Virginia. Such finding shall not be considered final action by the board.

VA.R. Doc. No. R16-4628; Filed June 27, 2016, 2:16 p.m.