W. Va. Code R. § 33-1-3

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 33-1-3 - Solid Waste Facility Permitting Requirements

3.1. Prohibitions. -- No person may establish, construct, operate, maintain or allow the use of property for a solid waste facility within an area where there is a reasonable probability that the facility will cause any of the following:

3.1.a. Natural Wetlands. -- A significant adverse impact upon natural wetlands, as defined in section 2 of this rule;

3.1.b. Endangered or Threatened Species. -- A significant adverse impact upon or jeopardy to the continued existence of any endangered or threatened species, or the destruction or adverse modification of a critical habitat of any animal or plant protected under the Endangered Species Act of 1973, or violation of any requirement under the Marine Protection, Research and Sanctuaries Act of 1972 for the protection of a marine sanctuary, unless specifically approved by the United States Fish and Wildlife Service;

3.1.c. Surface Water. -- A significant adverse impact upon any surface water;

3.1.d. Groundwater. -- A significant adverse impact upon groundwater quality;

3.1.e. Compliance with other agency requirements.

3.1.e.1. A permittee must comply with any and all applicable Federal and State laws, rules, regulations or other requirements. Permittees of SWLFs must not:

3.1.e.1.A. Cause a discharge of pollutants into waters of the State, including natural wetlands, that violates any requirement of the Clean Water Act (CWA), as amended, or applicable portions of W. Va. Code § 22-11-1, et seq., including, but not limited to, the National Pollutant Discharge Elimination System (NPDES) requirements of Section 402 of the CWA or as reflected in W. Va. Code § 22-11-1 et seq., as amended.

3.1.e.1.B. Cause the discharge of a non-point source of pollution into waters of the state, including natural wetlands, that violates any requirements of an area-wide or state-wide water quality management plan that has been approved under Section 208 or 319 of the CWA or as reflected in W. Va. Code § 22-11-1 et seq., as amended.

3.1.e.1.C. Cause the discharge of a point source of pollution into waters of the State, in violation of surface water quality standards found in W. Va. Code § 22-11-1 et seq. or any rules or regulations promulgated thereunder; or

3.1.e.1.D. Cause a violation of W. Va. Code § 22-12-1 et seq. or any rules promulgated thereunder.

3.1.f. Explosive Gases. -- Cause the generation by any facility and subsequent migration and concentration of methane or other explosive gases in any facility structure, excluding the leachate collection system or gas control or recovery system components, or in the soils or air at or beyond the facility property boundary in excess of twenty-five percent (25%) of the lower explosive limit for such gases at any time; or

3.1.g. Air Pollution. -- The emission of any air contaminant exceeding the limitations for those substances as set by the West Virginia Department of Environmental Protection, Division of Air Quality.

3.2. Location Standards. -- Unless otherwise approved by the Secretary in writing, a person must not establish, construct, operate, maintain or allow the use of property for a landfill in the following areas:

(Note: All distance measurements prescribed in subsection 3.2 of this rule refer to distances as measured from the edge of the waste management unit boundary of a facility.)

3.2.a. Location Standards for Surface Water. No SWLF may be located within three hundred (300) feet of any surface water. Facility drainage or sedimentation control structures are exempt from this distance calculation.

3.2.b. Location Standards for Natural Wetlands. -- No SWLF may be located within three hundred (300) feet of any natural wetlands, unless the permittee can make the following demonstrations to the Secretary (facility drainage or sedimentation control structures are exempt from this distance calculation):

3.2.b.1. Where applicable under section 404 of the CWA or applicable wetland laws under the West Virginia Water Pollution Control Act or any rules promulgated thereunder, the presumption that a practicable alternative to the proposed landfill is available that does not involve natural wetlands is clearly rebutted:

3.2.b.2. The construction and operation of the SWLF must not:

3.2.b.2.A. Cause or contribute to violations of any applicable state water quality standard;

3.2.b.2.B. Violate any applicable West Virginia Water Pollution Control Act and/or other toxic effluent standard or prohibition under section 307 of the CWA;

3.2.b.2.C. Jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of a critical habitat protected under the Endangered Species Act of 1973; and

3.2.b.2.D. Violate any requirement under the Marine Protection, Research, and Sanctuaries Act of 1972 for the protection of a marine sanctuary.

3.2.b.3. The SWLF must not cause or contribute to significant degradation of natural wetlands, and the permittee must also demonstrate the integrity of the SWLF and its ability to protect ecological resources by addressing the following factors:

3.2.b.3.A. Erosion, stability, and migration potential of native wetland soils, muds, and deposits used to support the SWLF;

3.2.b.3.B. Erosion, stability, and migration potential of dredged and fill materials used to support the SWLF;

3.2.b.3.C. The volume and chemical nature of the waste managed in the SWLF;

3.2.b.3.D. Impacts upon fish, wildlife, and other aquatic resources and their habitat from any release of the solid waste or the leachate thereof;

3.2.b.3.E. The potential effects of catastrophic releases of waste or the leachate thereof to the natural wetlands and the resulting impacts on the environment; and

3.2.b.3.F. Any additional factors, as necessary, to demonstrate that ecological resources in the wetland are sufficiently protected.

3.2.b.3.G. To the extent required under section 404 of the CWA or applicable State natural wetlands laws in the West Virginia Water Pollution Control Act, steps must have been taken to attempt to achieve no net loss of natural wetlands (as defined by acreage and function) by first avoiding impacts to natural wetlands to the maximum extent practicable, as required by subdivision 3.2.b of this rule, then minimizing unavoidable impacts to the maximum extent practicable, and finally offsetting remaining unavoidable wetland impacts through all appropriate and practicable compensatory mitigation actions (e.g., restoration of existing degraded natural wetlands or creation of manmade natural wetlands).

3.2.c. Perennial Stream Location Standards. -- No SWLF may be located within the watercourse of a perennial stream.

3.2.d. Location Standards for Floodplains.

3.2.d.1. Permittees of new SWLFs, existing SWLFs and lateral expansions located in 100-year floodplains must demonstrate that the SWLF does not and will not:

3.2.d.1.A. Restrict the flow of the 100-year flood, reduce the temporary water storage capacity of the floodplain, or

3.2.d.1.B. Result in a washout of solid waste so as to pose a hazard to human health and/or the environment.

3.2.e. Location Standards for Highways and Public Parks. -- New SWLFs and lateral expansions must not be located within one thousand (1,000) feet of the nearest edge of the right-of-way of any State highway, interstate, Federal aid primary or Federal aid secondary, county 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.

3.2.f. Location Standards for Fault Areas.

3.2.f.1. New SWLFs and lateral expansions must not be located within two hundred (200) feet (sixty (60) meters) of a fault that has had displacement in Holocene time (i.e., during the last eleven thousand (11,000) years);

3.2.f.2. Unless the permittee demonstrates to the Secretary in a permit application that an alternative setback distance of less than two hundred (200) feet (sixty (60) meters) will prevent damage to the structural integrity of the SWLF and will be protective of human health and the environment.

3.2.g. Location Standards for Airport Safety.

3.2.g.1. Permittees of new SWLFs, existing SWLFs, and lateral expansions must not be located within ten thousand (10,000) feet (three thousand forty-eight (3,048) meters) of any portion of the airport runway used or planned to be used by turbojet aircraft or within five thousand (5,000) feet (one thousand five hundred twenty-four (1,524) meters) of any portion of the airport runway used or planned to be used only by piston-type aircraft or within other areas where a substantial bird hazard to aircraft would be created, unless such applicants demonstrate that the SWLFs are designed and operated so that the SWLF does not and will not pose a bird hazard to aircraft.

3.2.g.2. Permittees proposing to site new SWLFs and lateral expansions located within a five (5)-mile radius of any portion of an airport runway used by turbojet or piston-type aircraft must provide written notification to both the affected airport and the Federal Aviation Administration (FAA), and provide copies of the same to the Secretary.

3.2.g.3. Owners or operators proposing to site new SWLF units and lateral expansions within a five (5)-mile radius of any airport runway end used by turbojet or piston-type aircraft must notify the affected airport and the Federal Aviation Administration (FAA).

3.2.h. Location Standards for Dwellings.

3.2.h.1. Permittees of new SWLFs and lateral expansions must not be located within five hundred (500) feet of a dwelling that is or will be occupied at the time of initial facility siting, unless written permission is received from the owner of the dwelling;

3.2.i. Location Standards for Wells.

3.2.i.1. Permittees of new SWLFs, existing SWLFs, and lateral expansions cannot be located within twelve hundred (1,200) feet of any public or private water supply well in existence at the time of initial facility siting;

3.2.j. Location Standards for Unstable Areas.

3.2.j.1. Permittees of new SWLFs, existing SWLFs, and lateral expansions cannot be located within one thousand (1,000) feet of any area considered by the Secretary to be unstable due to extreme geologic and hydrologic conditions (e.g., immaturely to maturely developed karst terrane, solution cavities), unless the permittee can demonstrate that engineering measures have been incorporated into the SWLF's design to ensure that the integrity of the structural components of the SWLF will not be disrupted, and

3.2.j.2. The Permittee must consider the following factors, at a minimum, when determining whether an area is unstable:

3.2.j.2.A. On-site or local soil conditions that may result in significant differential settling;

3.2.j.2.B. On-site or local geologic or geomorphologic features; and

3.2.j.2.C. On-site or local human-made features or events (both surface and subsurface).

3.2.k. Location Standards for Underground Mines.

3.2.k.1. Permittees of new SWLFs and lateral expansions cannot be located above underground mine workings or within the critical angle of draw of such workings, unless otherwise approved by the Secretary in writing;

3.2.l. Location Standards for Surface Mines. -- Permittees of new SWLFs and lateral expansions cannot be located within previously surface mined areas, unless otherwise approved by the Secretary in writing;

3.2.m. Location Standards for Seismic Impact Zones. -- New SWLFs and lateral expansions must not be located in seismic impact zones, unless the permittee demonstrates to the Secretary that all containment structures, including liners, leachate collection systems, and surface water control systems are designed to resist the maximum horizontal acceleration in lithified earth material for the site.

3.2.n. Location Standards for Air Criteria.

3.2.n.1. All permittees must ensure that violations of the applicable requirements developed under a State Implementation Plan (SIP) promulgated pursuant to section 110 of the Clean Air Act as amended or as reflected in the rules promulgated by the Division of Air Quality do not occur.

3.2.n.2. Open burning of solid waste, except for the infrequent burning of agricultural wastes, silvicultural wastes, land-clearing debris, diseased trees or debris from emergency cleanup operations, except as approved by the Division of Air Quality, is prohibited at all SWLFs.

3.2.o. Property Line Distance Requirements. -- A minimum separation distance of one hundred (100) feet must be maintained between the limits of waste filling and all adjacent property lines. A minimum distance of fifty (50) feet must be maintained between any permanent berms or excavations associated with the facility (excluding surface water diversion structures) and all adjacent property lines;

3.2.p. Recordkeeping. -- The permittee must retain a copy of all such demonstrations for location standards that have previously received the written approval of the Secretary pursuant to this subdivision in the facility operating record, as required by subsection 4.4 of this rule.

3.3. Approvable Facilities.

3.3.a. Approvable Solid Waste Facilities. -- Solid waste facilities for which approval may be granted include the following, or any combination thereof:

3.3.a.1. Class A Solid Waste Facility;

3.3.a.2. Class B Solid Waste Facility;

3.3.a.3. Class C Solid Waste Facility;

3.3.a.4. Class D Solid Waste Facility;

3.3.a.5. Class E Solid Waste Facility;

3.3.a.6. Class F Solid Waste Facility;

3.3.a.7. Sewage Sludge Processing Facility;

3.3.a.8. Yard Waste Composting Facility;

3.3.a.9. Mixed Waste Processing Facility; and/or

3.3.a.10. Other solid waste facilities approved in writing by the Secretary.

3.4. Pre-Siting Requirements for Commercial Solid Waste Facilities. -- Except those recycling facilities specifically exempted by W. Va. Code § 20-11-12, any person wishing to apply for a permit under the West Virginia Solid Waste Management Act must comply with the following:

3.4.a. Any person investigating an area for the purpose of siting a commercial solid waste facility where no current solid waste facility exists, in order to determine a feasible, approximate location and in order to obtain a permit to construct and operate a commercial solid waste facility in this state, must have complied with the pre-siting requirements of W. Va. Code § 22-15-13, including, but not limited to the following:

3.4.a.1. Publish a Class II legal advertisement in a qualified newspaper, as defined in W. Va. Code § 59-3-1(b), serving the county or counties in which the facility is proposed to be located. This legal advertisement must include the nature of the proposed activity, and:

3.4.a.1.A. A description of the location at which the proposed facility may be sited;

3.4.a.1.B. A statement of the anticipated size of the proposed facility, in acres; and

3.4.a.1.C. An estimate of the volume, type, and source of solid waste to be handled at the proposed facility.

3.4.a.2. File a pre-siting notice with the Secretary within five (5) days of the publication of the legal advertisement required under paragraph 3.4.a.1 of this rule. The pre-siting notice must be made in writing on forms obtained from the Secretary, which must be signed and verified by the applicant and must include:

3.4.a.2.A. A certification of publication of the legal advertisement required under paragraph 3.4.a.1 of this rule from the qualified newspaper(s) in which such advertisement was published;

3.4.a.2.B. A description of each location at which the proposed facility or facilities may be sited;

3.4.a.2.C. A United States Geological Survey (USGS) topographic map or portion thereof and a map showing the location and anticipated property, site, and other boundaries of each site being considered for the proposed facility;

3.4.a.2.D. An estimate of the volume, type, and source of solid waste to be handled at the proposed facility;

3.4.a.2.E. The period of time over which the investigative review of the site will be undertaken; and

3.4.a.2.F. Other information required by the Secretary.

3.4.a.3. Provide a copy of the pre-siting notice to the appropriate county or regional solid waste authority according to the county or region in which the proposed facility is to be located within five (5) days of the publication of the legal advertisement required under paragraph 3.4.a.1 of this rule.

3.4.b. The Secretary must hold a public hearing on the pre-siting notice in the area potentially affected.

3.4.b.1. The public hearing on the contents of the pre-siting notice must be conducted in accordance with the provisions of subsection 3.23 of this rule.

3.4.b.2. The Secretary may substitute the public hearing held by the county or regional solid waste authority during the county appraisal or county siting process for the hearing contemplated by subdivision 3.4.b of this rule.

3.4.c. Based on comments received at the public hearing or received in writing within ten (10) days following the public hearing, or upon recommendations received from the county or regional solid waste authorities within ninety (90) days after their receipt of the pre-siting notice, the Secretary may require the person who submitted that notice to furnish additional information on the siting of the proposed facility. Such additional information may include, but not be limited to, the following:

3.4.c.1. Impacts upon transportation facilities;

3.4.c.2. Impacts upon public water supplies;

3.4.c.3. Impacts upon land use patterns;

3.4.c.4. Impacts upon agricultural, commercial and residential real estate values;

3.4.c.5. Impacts upon wildlife;

3.4.c.6. Impacts upon endangered or threatened species of animals or plants;

3.4.c.7. Impacts upon aesthetics;

3.4.c.8. Impacts upon socioeconomic conditions;

3.4.c.9. Impacts upon water resources; and

3.4.c.10. Other impacts as determined by the Secretary.

3.5. Facility Permits.

3.5.a. Permit Required. -- A permit must be obtained from the Secretary prior to the installation, establishment, construction, modification, operation or closure of any solid waste facility.

3.5.b. Single Permit. -- Permits issued pursuant to this rule must meet the requirements of W. Va. Code §§ 22-15-1, et seq. and 22-11-1, et seq. and all associated rules as applicable, so that only one permit for any solid waste facility will be issued by the Secretary. The W. Va. Code §22-11 portion of that single permit must also meet the requirements of the "Groundwater Protection Act," W. Va. Code § 22-12-1, et seq., and any rules promulgated thereunder.

3.5.c. Term of Permit. -- All permits issued pursuant to W. Va. Code § 22-15-1, et seq. and this rule must have a fixed term not to exceed five (5) years from the date of issuance. The Secretary may administratively extend any permit expiration date for a period of up to one (1) year.

3.5.d. Existing Permits. -- Any person who holds a valid Department permit, or modifies or renews such permit to conduct a solid waste activity must, upon notification by the Secretary in writing, submit a request to the Secretary for a minor modification of that permit in accordance with the provisions of subsection 3.18 of this rule, so that the applicable provisions of this rule can be incorporated into the terms and conditions of the existing permit. The Secretary may only require a minor modification of the facility permit if the West Virginia Solid Waste Management Act, this rule, or the counterpart federal regulation is modified or amended. The permit modification request must be submitted within ninety (90) days of the date of receipt of the notification by the Secretary that the permittee is required to comply with all requirements of W. Va. Code § 22-15-1, et seq. and this rule, as applicable.

3.5.e. Application Completeness. -- A complete permit application, including the background investigation disclosure statement, must consist of all applicable information as required for final permit approval by this rule that renders the application for a permit, renewal, modification, transfer or other permitting function to be both administratively and technically complete.

3.6. Permit Application Fees.

3.6.a. Each application for a solid waste facility permit, renewal, modification, transfer or other permitting functions must be accompanied by a nonrefundable application fee in accordance with the schedule of fees in Appendix IV to this rule.

3.6.b. A fee equal to ten percent (10%) of the application fee listed in Appendix IV to this rule must accompany an application for any renewal, modification, transfer or other permitting functions refiled or that requires additional information due to substantial administrative or technical incompleteness.

3.7. Permit Application Requirements. -- A permit must be obtained from the Secretary prior to the installation, establishment, construction, modification, operation or closure of any solid waste facility. Unless otherwise specified in this rule or on application forms prescribed by the Secretary, all applications for a solid waste facility permit must include the following:

3.7.a. Forms and Number of Copies. -- The application must be made on the forms prescribed by and obtained from the Secretary. Four (4) copies of the application, including all supporting documents, must be submitted to the Secretary; a fifth copy must be submitted to the applicable county or regional solid waste authority for the area in which the proposed facility is or will be located.

3.7.b. Property Rights. -- The application must provide a copy and a narrative description of the legal documents upon which the applicant's legal right to enter and conduct solid waste operations are based within the solid waste facility proposed permit area and whether that right is the subject of pending or current court litigation.

3.7.c. Certification. -- All application documents related to engineering and design plans and specifications must be compiled, signed, and sealed by a professional engineer who is registered to practice in West Virginia.

3.7.d. Cover Letter. -- The application must include a cover letter detailing the desired Department action and/or response.

3.7.e. Table of Contents. -- The application must include a table of contents listing all sections, visuals, and attachments of the submittal.

3.7.f. Visuals. -- The application must include appropriate maps, figures, photographs, and tables to clarify information or conclusions. The visuals must be legible. All maps, plan sheets, drawings, isometrics, cross-sections, aerial photographs, and other attachments must:

3.7.f.1. Be no smaller than eight and one-half inches by eleven inches (81/2" x 11") and, if larger, must be folded to eight and one-half inches by eleven inches (81/2" x 11");

3.7.f.2. Be of appropriate scale to show all required details in sufficient clarity;

3.7.f.3. Be numbered, referenced in the table of contents and narrative, titled, have a legend of all symbols used, and specify drafting or origination dates;

3.7.f.4. Use uniform horizontal and vertical scales;

3.7.f.5. Contain a north arrow;

3.7.f.6. Use USGS datum as a basis for all elevations;

3.7.f.7. Contain a survey grid with a maximum dimension of two hundred (200) feet square based on monuments established in the field that is referenced to State plane coordinates;

3.7.f.8. Show original topography and the grid system on plan sheets showing construction, operation, or closure topography; and

3.7.f.9. Show survey grid locations and reference major plan sheets on all cross-sections. A reduced diagram of a cross-section location plan view map must be included on the sheets with the cross-section.

3.7.g. Quality Assurance and Quality Control Plans. -- The application must include quality assurance and quality control (Q.A./Q.C.) plans to be implemented to assure conformity of the solid waste facility construction, environmental monitoring, monitoring well development, and provisions for monitoring within applicable standards.

3.7.g.1. The Q.A./Q.C. plans must include a delineation of the quality assurance and quality control management organization, including the chain of command of the Q.A./Q.C. inspectors and contractors;

3.7.g.2. The Q.A./Q.C. plans must include a description of the required level of experience and training for the contractor, the contractor's crew, and Q.A./Q.C. inspectors for every major phase of construction in sufficient detail to demonstrate that the installation methods and procedures required in this rule will be properly implemented; and

3.7.g.3. The Q.A./Q.C. plans must include a description of the quality assurance and quality control testing procedures for every major phase of construction. At a minimum, these Q.A./Q.C. procedures must include:

3.7.g.3.A. The frequency of field inspections, field testing, and frequency of sampling for laboratory testing;

3.7.g.3.B. The sampling and field testing procedures and any associated equipment to be utilized;

3.7.g.3.C. The calibration of field testing equipment;

3.7.g.3.D. The frequency of performance audits;

3.7.g.3.E. The sampling size;

3.7.g.3.F. The soils or geotechnical laboratory to be used;

3.7.g.3.G. The laboratory procedures to be utilized;

3.7.g.3.H. The calibration of laboratory equipment;

3.7.g.3.I. The laboratory's Q.A./Q.C. procedures;

3.7.g.3.J. The limits for test failure; and

3.7.g.3.K. A description of the corrective procedures to be used upon test failure;

3.7.g.4. The Q.A./Q.C. plans must include a description of the quality assurance and quality control sampling and analysis procedures. At a minimum, these Q.A./Q.C. procedures must encompass the sampling procedures and analyses of groundwater, surface water, soil, leachate, and gas required under this rule.

3.7.h. Technical Procedures. -- All technical procedures used to investigate a solid waste facility must be the current standard procedures as specified by the American Society for Testing Materials or by the United States Geological Survey or other equivalent, appropriate methods approved by the Secretary.

3.7.h.1. All technical data submitted in the application must be accompanied by the names of person(s) and/or organization(s) that collected and/or analyzed the data, the dates of the collection, dates of analyses, an analysis of the data, a description of the methodology used to collect and analyze the data, and the chain of custody of any sample taken for analyses.

3.7.i. Endangered Species and Historic Sites. The application must include a letter from the Division of Natural Resources' Section of Wildlife Resources addressing the presence of any endangered or threatened species of animals or plants in the vicinity of the proposed facility. The application must also include a letter from the West Virginia Division of Culture and History addressing the presence of any historical, scientific, or archaeological areas in the vicinity of the proposed facility.

3.7.j. Bonding and Financial Assurance. Sufficient bond or other type of financial assurance must be approved by the Department in compliance with the provisions of subsection 3.13 of this rule and any requirements of the West Virginia Public Service Commission.

3.7.j.1. The permittee must maintain copies of any required closure, post-closure, and corrective action cost estimates in the operating record. A copy of the estimate, or the estimate as amended, must be approved by the Secretary prior to the placement of the estimate in the operating record.

3.7.k. Background Investigation Disclosure Statement. -- The background investigation disclosure statement for a solid waste facility permit must include the name of the applicant or any officer, director or manager thereof; shareholder owning five percent (5%) or more of its capital stock, beneficial or otherwise; or other person conducting or managing the affairs of the applicant or the proposed facility and must be submitted to the Secretary in compliance with subsection 3.14 of this rule.

3.7.l. Facility Expansion. -- In an application for an expansion of an existing facility, the effectiveness of the existing design and operation must be discussed. An evaluation of relevant monitoring data and a discussion of all plan modifications and remedial actions must be included in the application. Any significant adverse impacts to the waters of the State or to any endangered or threatened species of animal or plant that could result from the expansion must also be noted and discussed.

3.7.m. Waste Reduction and Recovery Information. -- The application must include a discussion of the alternatives to the facility, as well as a description of any waste reduction incentives and recycling services to be instituted or provided with the proposed facility as contained in subdivision 3.7.m of this rule.

3.7.m.1. Waste Types, Sources, and Quantities. -- The application must include a brief description of the types, sources, and quantities of household, commercial, industrial, construction/demolition, and other wastes anticipated to be accepted at the existing or proposed facility and a calculation of waste quantities by composition based on State-estimated figures or other data if readily available.

3.7.m.2. Description of Technologies. -- The application must include a brief description of the technologies and methodologies of waste reduction, reuse, recycling, composting and energy recovery as applicable to the wastes anticipated to be accepted at the proposed facility.

3.7.m.3. Ongoing Program. -- The application must include a brief description of any known waste reduction or recovery programs in the area to be served by the proposed facility that handle the types of waste anticipated to be accepted at the existing or proposed facility, including a description of their potential for expansion.

3.7.m.4. Recommendations. -- The application must include a brief description of any recommendations for waste reduction and recovery in approved area-wide solid waste management plans for all counties in the area to be served by the proposed facility.

3.7.m.5. Current Studies. -- The application must include a brief description of any waste reduction or recovery studies being conducted for wastes anticipated to be accepted at the proposed facility.

3.7.m.6. Available Recovery Markets. -- The application must include a description of the nearest available markets for recoverable material from the waste anticipated to be accepted at the proposed facility including:

3.7.m.6.A. Market name and address;

3.7.m.6.B. Market requirements for minimum quantities and preparation for deliverable material; and

3.7.m.6.C. Prices paid for materials, including both current prices and ranges for the past three (3) years, if available.

3.7.m.7. Potential Energy Markets. -- The application must include a brief description of energy users within the service area capable of using at least twenty-five percent (25%) of the energy available in the waste stream anticipated at the proposed facility or for the energy available from a minimum of twenty-five (25) tons of waste per day, whichever is greater. At a minimum, consideration must be given to both electrical generation and to steam production.

3.7.m.8. Future Effects. -- The application must include a brief description of any efforts to be implemented to either assist in the expansion of existing waste reduction and recovery programs or to develop new programs for waste reduction and recovery.

3.7.n. Geotechnical Information. -- The application must include an analysis of the geologic, hydrogeologic, topographic, and hydrologic features of the facility site that may be favorable or unfavorable for facility development in compliance with the requirements of subsection 3.8 of this rule.

3.7.o. Identification and Characterization of Potential Borrow Sources. -- The application must include an identification and characterization of the potential borrow sources as detailed in subsection 3.12 of this rule.

3.7.p. Proposed Design and Operation. -- The application must include a proposed design based on conclusions outlined in the construction design section of the application as designated in subsection 3.10 of this rule. A general discussion of the proposed operating procedures must also be included.

3.7.q. Landfill Liners. -- The application must include plans, drawings, cross-sections, a Q.A./Q.C. plan, and specifications for a liner system as designated in subsection 3.11 of this rule.

3.7.r. Verification of Application. -- The application must include a notarized signature of a principal officer or ranking public official verifying that the information contained in the application is true, complete, and accurate to the best of that individual's knowledge and belief, based upon inquiry.

3.7.s. Monthly tonnage limit of commercial solid waste facilities.

3.7.s.1. As provided for in W. Va. Code § 22-15-8, the Secretary will place a limit on the amount of solid waste received or disposed of per month in commercial solid waste facilities by considering, at a minimum, the following criteria:

3.7.s.1.A. The proximity and potential impact of the solid waste facility upon groundwater, surface water, and potable water;

3.7.s.1.B. The projected life and design capacity of the solid waste facility, including the available air space and lined acreage;

3.7.s.1.C. The solid waste facility's equipment type, size, and production capacity;

3.7.s.1.D. Adequacy of the solid waste facility's personnel structure;

3.7.s.1.E. The solid waste facility's leachate management or treatment capabilities;

3.7.s.1.F. The transportation system networks to access the solid waste facility; and

3.7.s.1.G. Other factors related to environmentally safe and efficient disposal of solid waste.

3.7.s.2. The solid waste permit application must include significant information, acceptable to the Secretary, for considering the above criteria in determining a commercial solid waste facility's monthly tonnage limit, including the certificate of need, certificate of siting approval, and, if applicable, the referendum.

3.8. General Geologic and Hydrologic Submission Requirements.

3.8.a. Site Information. -- The application must include the following information regarding the potential site:

3.8.a.1. Total acres of area permitted or to be permitted;

3.8.a.2. Total acres of disposal area;

3.8.a.3. Planned life of facility;

3.8.a.4. Previous existence or present activities of mines or quarries at the site;

3.8.a.5. A 7.5 minute USGS topographic map, or an eight and one-half inch by eleven inch (81/2" x 11") copy of a portion thereof showing:

3.8.a.5.A. The site and its boundaries;

3.8.a.5.B. The area surrounding the site for at least fifteen hundred (1,500) feet beyond the site boundaries;

3.8.a.5.C. The name of the USGS quadrangle;

3.8.a.5.D. The date of last USGS map revision;

3.8.a.5.E. The latitude and longitude of the center of the disposal area; and

3.8.a.5.F. The location of the items listed in paragraph 3.8.a.12 of this rule, unless such items are instead shown on the large-scale map;

3.8.a.6. A description of the site location;

3.8.a.7. A description of the site terrain;

3.8.a.8. A description of any title, deed or usage restrictions affecting the proposed permit area;

3.8.a.9. The name of the town nearest to the site;

3.8.a.10. The name of the county or counties in which the site is or will be located;

3.8.a.11. A large-scale map -- with a minimum scale of one inch equal to two hundred feet (1 inch = 200 feet) and a maximum contour interval of ten (10) feet, showing the location of the items listed in paragraph 3.8.a.12 of this rule, unless such items are instead shown on the 7.5 minute topographic map;

3.8.a.12. Map Inclusions. -- All of the following that occur either within the site boundaries or within fifteen hundred (1,500) feet of the site boundaries or within the distances specified in subsections 3.1 and 3.2 of this rule must be indicated on the large-scale map or the 7.5 minute topographic map or both;

3.8.a.12.A. Water supply wells;

3.8.a.12.B. Springs;

3.8.a.12.C. Natural wetlands (e.g., swamps, bogs, marshes);

3.8.a.12.D. Streams;

3.8.a.12.E. Public water supplies;

3.8.a.12.F. Other bodies of water;

3.8.a.12.G. Underground and surface mines (for underground mines, also indicate the subsidence angle of draw, as applicable);

3.8.a.12.H. Mine pool(s) and point(s) of discharge;

3.8.a.12.I. Mine refuse spoil piles and any impoundment capabilities;

3.8.a.12.J. Quarries or sand and gravel pits;

3.8.a.12.K. Gas and oil wells;

3.8.a.12.L. Surface and groundwater quality monitoring points;

3.8.a.12.M. Occupied or habitable dwellings;

3.8.a.12.N. Roads;

3.8.a.12.O. Power lines, pipelines, and other utilities;

3.8.a.12.P. Public buildings;

3.8.a.12.Q. Sinkholes;

3.8.a.12.R. Property boundaries;

3.8.a.12.S. Owners of record both surface and subsurface;

3.8.a.12.T. Easements or rights-of-way;

3.8.a.12.U. 100- year floodplain boundary; and

3.8.a.12.V. All areas prohibited by subsection 3.1 of this rule or for which location standards have been established by subsection 3.2 of this rule.

3.8.b. Soils Information. -- Backhoe test pits or drilled test borings must be employed to determine soil types, characteristics, and conditions. A minimum of four (4) test pits or borings for the first ten (10) or less acres and one (1) test pit or boring for each additional ten (10) or less acres must be excavated or drilled on a uniform grid pattern across each proposed disposal area and each proposed borrow source. Test pits or borings for all solid waste facilities must be located so as to identify all soil types distributed over the site. The applicant must provide the following:

3.8.b.1. A list of each soil series and phase present on the site and each borrow source and soil maps with site and borrow source boundaries as an attachment;

3.8.b.2. The soil maps must show the locations of all test pits or borings made to describe soils and determine their depth;

3.8.b.3. A description of soil horizons containing seventy-five percent (75%) or more coarse fragments (as per the Unified Soil Classification System) including:

3.8.b.3.A. Minimum thickness of soil to horizons with seventy-five percent (75%) or more coarse fragments;

3.8.b.3.B. Soil thickness determination procedures; and

3.8.b.3.C. Degree of weathering of coarse fragments.

3.8.b.4. Test pit or excavation descriptions, including depth to all horizons, color, texture, structure, consistence, depth to, and color of any mottles;

3.8.b.5. Results of laboratory analyses of soil samples taken from test pits or borings, including analyses for grain size, pH, permeability, and Atterberg limits for predominate soil types; and

3.8.b.6. A description of the following general soil characteristics;

3.8.b.6.A. Drainage characteristics of soil;

3.8.b.6.B. Maximum slopes at the proposed site; and

3.8.b.6.C. Shallowest depth from surface to mottling.

3.8.b.7. A minimum of four (4) representative samples for the first ten (10) or less acres and one (1) additional sample for each additional ten (10) or less acres must be tested for the relationship of water content to dry density using either the Modified or Standard Proctor method. Each Proctor curve must be developed with a minimum of five (5) points.

3.8.b.8. A minimum of twenty percent (20%) of the samples used to develop the Proctor curves must be used to evaluate soil permeability. This evaluation must be accomplished by determining the maximum density and optimum moisture through a Proctor test (D-698) and then testing for permeability at a dry density between ninety-five percent (95%) and one hundred percent (100%) of the maximum and within four percent (4%) of optimum moisture.

3.8.c. Site Geological Information. -- A minimum of four (4) test corings must be performed at any landfill site with a permitted surface area of ten (10) or less acres and one (1) additional test coring performed for each additional five (5) acres up to one hundred fifty (150) acres, not to exceed fifteen (15) holes. Any acreage over one hundred fifty (150) acres must require one (1) additional test coring per ten (10) or less acres. Such test corings must be distributed over the entire site area to give an accurate description of subsurface conditions for the area of the site that is intended for use as a landfill. The depth at which coreholes must terminate must be determined by the following: the first coring must be placed in the lowest point of the proposed disturbed area and cored to the uppermost significant aquifer that is to be monitored, or corings must penetrate to a minimum depth of one hundred (100) feet in the absence of the aquifer. Upon the completion of drilling, drilling logs for all completed coreholes must be submitted to the Secretary.

3.8.c.1. The site geological analysis must provide the following information:

3.8.c.1.A. Sediments.

3.8.c.1.A.1. A notation of the presence of any sedimentary deposits under the proposed site including, but not limited to, colluvial, alluvial, or lacustrine;

3.8.c.1.A.2. A description of the type and texture of unconsolidated materials;

3.8.c.1.A.3. The thickness of unconsolidated materials, including the maximum, minimum, and how the thickness was determined procedurally; and

3.8.c.1.A.4. A description of the different formations of unconsolidated materials and the effects of these sediments on potential discharges from the landfill;

3.8.c.1.B. Bedrock.

3.8.c.1.B.1. The formations and names;

3.8.c.1.B.2. The lithologies including major lithologic names in the area (e.g., Morgantown, Sandstone, Ames Limestone), must be plotted on the large-scale map;

3.8.c.1.B.3. An indication of all areas where bedrock outcrops within the site and also within fifteen hundred (1,500) feet of the site boundaries on the large-scale map;

3.8.c.1.B.4. A characterization of the degree of bedrock weathering;

3.8.c.1.B.5. The shallowest depth from surface to bedrock; and

3.8.c.1.B.6. For carbonate rock, show any undrained depressions or sinkholes existent on-site or within fifteen hundred (1,500) feet of the site shown on the large-scale map or the 7.5 minute topographic map or both;

3.8.c.1.C. Structure.

3.8.c.1.C.1. An indication of all of the following types of fracture zones on-site and within fifteen hundred (1,500) feet of the site boundaries on the large-scale map or the 7.5 minute topographic map or both:

3.8.c.1.C.1.(a) Traces;

3.8.c.1.C.1.(b) Lineaments;

3.8.c.1.C.1.(c) Joints; and

3.8.c.1.C.1.(d) Faults.

3.8.c.1.C.2. A description of the influence that these fracture zones have on the movement of infiltrated water and groundwater;

3.8.c.1.C.3. A description of the regional bedrock structures in the area of the site;

3.8.c.1.C.4. A detailed description of the local bedrock structure. Applicants must construct a structural geologic map with a scale of one inch equal to two hundred feet (1 inch = 200 feet) using the structural contour intervals. For bedrock dip at angles of zero (0°) to five degrees (5°), contour intervals must be five (5) feet; for angles of five (5°) to thirty (30°) degrees, contour intervals must be ten (10) feet; and for angles of greater than thirty (30°) degrees, contour intervals must be twenty-five (25) feet. The use of intermediate contours in areas of low structural relief for greater detail is required;

3.8.c.1.C.5. A description of folding as it applies to the site, including strike and plunge of fold axis and location of the site in relation to the local structure;

3.8.c.1.C.6. The strike and dip of bedding planes;

3.8.c.1.C.7. A description of the joints and fractures, including strike, dip, and open joints and a description of the spacing of the joints;

3.8.c.1.C.8. A description of all faults located on or within fifteen hundred (1,500) feet of the site boundaries, including the strike and dip of faults and an indication of all faults in the area of the site on a map; and

3.8.c.1.C.9. A minimum of two (2) geologic profiles using bedrock outcrops and corehole information, including the vertical exaggeration to adequately illustrate the geology of the site;

3.8.c.1.D. Mining.

3.8.c.1.D.1. A notation of the presence of any abandoned, reclaimed, active, and inactive surface mines on the site;

3.8.c.1.D.2. A list of any extractable coal seams beneath the site;

3.8.c.1.D.3. Any abandoned, reclaimed, active or inactive underground mines located on-site or within fifteen hundred (1,500) feet of the site boundaries, including minimum depth to mined area, aerial extent of mined area as shown, and type of minerals mined (if coal, give the names of seams); and

3.8.c.1.D.4. Any mine maps and related information for mined areas under the site or within fifteen hundred (1,500) feet of the site boundaries.

3.8.d. Hydrologic Information. -- The permittee must install a groundwater monitoring system that consists of a sufficient number of wells (a minimum of four (4)). Monitoring wells must be installed at appropriate locations and depths to yield groundwater samples from the uppermost aquifer. One (1) upgradient and three (3) downgradient monitoring wells must monitor the same aquifer. If previously drilled geologic corings are to be used as monitoring wells, and the uppermost significant aquifer has been drilled through, then those holes proposed to monitor groundwater must be plugged from the bottom of the hole to the uppermost significant aquifer with a sodium bentonite grout, then properly screened and cased.

3.8.d.1. Groundwater monitoring wells must meet the following specifications:

3.8.d.1.A. All monitoring well casings and screens must be constructed of a minimum of two (2)-inch (inner diameter) Schedule 40 polyvinyl chloride (PVC) plastic pipe or other casing satisfactory to the Secretary. Lengths of pipe must be joined using threaded couplings. Solvent cement must not be used for PVC couplings. Borehole diameter must be a minimum of six (6) inches larger than the PVC casing. If approved by the Secretary, the borehole diameter may be smaller if proven methods are employed to facilitate the emplacement of the filter pack and annular sealant.

3.8.d.1.B. The screened interval for monitoring wells must consist of a minimum of ten (10) to a maximum of twenty (20) feet of properly sized, preconstructed, commercially available well screen of the same material and diameter as the casing, or screen as approved by the Secretary. The screen is to have a slot size to enable retention of eighty-five to one hundred percent (85% - 100%) of the filter pack material. The bottom of the screen must be capped. Should the uppermost aquifer thickness exceed twenty (20) feet or be comprised of several hydraulically connected formations, then a cluster of wells or some other type of multiple zone monitoring system may be required at the discretion of the Secretary.

3.8.d.1.C. All wells must be sand or gravel-packed (depending on screen size) from the base of the well to a level a minimum of two (2) feet and a maximum of five (5) feet above the top of the screen. An impervious two (2)-foot or greater bentonite seal must be installed on top of the gravel packing.

3.8.d.1.D. All wells must be continuously grouted from the top of the impervious seal to above the groundwater table. Wells must not be grouted with cement below the potentiometric surface of the uppermost significant aquifer.

3.8.d.1.E. From below the frost line, the cap must be composed of concrete (using expanding cement) blending into a four (4)-inch thick apron extending three (3) feet or more from the outer edge of the borehole.

3.8.d.1.F. Upon completion, all wells must be fully developed and pumped to determine the yield of the well.

3.8.d.1.G. The elevation of the top of the well casing must be two (2) to three (3) feet above the elevation of the ground surface.

3.8.d.1.H. All wells must be properly tagged with permit number, top of casing elevation, well number, and flagged or otherwise made visible so they can be readily located in the field and avoided by onsite heavy equipment. A survey mark must be placed on the top of the casing at the point utilized for determining elevation.

3.8.d.a.I. All wells must be provided with a means of protection from tampering, vandalism or damage. At a minimum, protection must be provided by a lockable outer well cap.

3.8.d.1.J. In addition to the requirements of subdivision 3.8.d of this rule, the monitoring system must be installed at appropriate locations and depths to yield ground-water samples from the uppermost aquifer that:

3.8.d.1.J.1. Represent the quality of background groundwater that has not been affected by leakage from a SWLF.

3.8.d.1.J.2. A determination of the background quality may include sampling of wells that are not hydraulically upgradient of the waste management area where:

3.8.d.1.J.2.(a) Hydrogeologic conditions do not allow the permittee to determine what wells are hydraulically upgradient; or

3.8.d.1.J.2.(b) Sampling of other wells will provide an indication of the background groundwater quality that is as representative or more representative than that provided by the upgradient wells.

3.8.d.1.J.3. Represent a quality of groundwater passing the relevant point of compliance specified by the Secretary under subparagraph 4.5.d.1.G of this rule.

3.8.d.1.J.4. The downgradient monitoring system must be installed at the relevant point of compliance specified by the Secretary under subparagraph 4.5.d.1.G of this rule, which ensures detection of groundwater contamination in the uppermost aquifer.

3.8.d.1.J.5. When physical obstacles preclude installation of groundwater monitoring wells at the relevant point of compliance at existing SWLFs, the downgradient monitoring system may be installed at the closest practicable distance hydraulically downgradient from the relevant point of compliance specified by the Secretary that ensure detection of groundwater contamination in the uppermost aquifer.

3.8.d.1.K. The permittee may request the Secretary to approve a multi-unit groundwater monitoring system instead of separate groundwater monitoring systems for each SWLF when the facility has several SWLFs, provided the multi-unit groundwater system meets the requirements of subdivision 3.8.d of this rule and will be as protective of human health and the environment as individual monitoring systems for each SWLF, based on the permittees' compliance with the following factors:

3.8.d.1.K.1. Number, spacing, and orientation of the SWLFs;

3.8.d.1.K.2. Hydrogeologic setting;

3.8.d.1.K.3. Site history;

3.8.d.1.K.4. Engineering design of the SWLFs; and

3.8.d.1.K.5. Type of waste accepted at the SWLFs.

3.8.d.1.L. Monitoring Well Casing Requirements. Monitoring wells must be cased in a manner that maintains the integrity of the monitoring well bore hole. This casing must be screened or perforated and packed with gravel or sand, where necessary, to enable collection of groundwater samples. The annular space (i.e., the space between the bore hole and well casing) above the sampling depth must be sealed to prevent contamination of samples and the groundwater.

3.8.d.1.L.1. The permittee must notify the Secretary that the documentation of design, installation, development, and decommission of any monitoring wells, peizometers and other measurement, sampling, and analytical devices has been placed in the operating record; and

3.8.d.1.L.2. The monitoring wells, peizometers, and other measurement, sampling, and analytical devices must be operated and maintained so that they perform to design specifications throughout the life of the monitoring program.

3.8.d.1.M. The number, spacing, and depths of monitoring systems must be:

3.8.d.1.M.1. Determined based upon site-specific technical information that must include through characterization of:

3.8.d.1.M.1.(a) Aquifer thickness, groundwater flow rate, and groundwater flow direction, including seasonal and temporal fluctuations in groundwater flow; and

3.8.d.1.M.1.(b) Saturated and unsaturated geologic units and fill materials overlying the uppermost aquifer, materials comprising the uppermost aquifer, and materials comprising the confining unit defining the lower boundary of the uppermost aquifer; including, but not limited to: thicknesses, stratigraphy, lithology, hydraulic conductivities, porosities, and effective porosities.

3.8.d.1.M.2. Certified by a qualified groundwater scientist and approved in writing by the Secretary.

3.8.d.1.M.2.(a) Within fourteen (14) days of this certification, the permittee must notify the Secretary that the certification has been placed in the operating record.

3.8.d.2. Well Drilling. -- The method used to drill the groundwater monitoring wells must be described in the application. The latitude and longitude of each well to within plus or minus one second (+/- 1 sec.) and the USGS datum elevation of the top of each well must be included in the application.

3.8.d.3. Water Table. -- The maximum and minimum depth to the zone of saturation must be included in the application, along with the following:

3.8.d.3.A. Seasonal water table fluctuations at the above locations and seeps and springs affected by seasonal changes must be described in the application, and the source of information must be referenced;

3.8.d.3.B. Perched or special water table conditions must be described in the application;

3.8.d.3.C. The minimum depth to a perched water table must be provided in the application.

3.8.d.3.D. The occurrence of groundwater drainage to underground mines must be determined and, if found, mine discharges must be identified on the large-scale map or the 7.5 minute topographic map or both, as required under paragraph 3.8.a.12 of this rule.

3.8.d.4. Groundwater Movement.

3.8.d.4.A. A large-scale map (1 inch = 200 feet) showing all groundwater flow directions must be constructed and included in the application. The water table/potentiometric surface must be contoured on this map using an appropriate contour interval.

3.8.d.4.B. The approximate rate of groundwater flow and the method used to determine that rate of flow must be provided in the application.

3.8.d.4.C. The method used to determine groundwater flow directions must be included in the application.

3.8.d.4.D. The location of all groundwater discharge points related to the site must be shown on the large-scale map required under subparagraph 3.8.d.4.A of this rule.

3.8.d.4.E. If the site is in a groundwater discharge or recharge zone, this fact must be noted in the application.

3.8.d.4.F. The rate of groundwater flow at the site and its effects on the operation of the proposed facility must be discussed in the application.

3.8.d.5. Groundwater Quality Analyses. -- The method of sampling and date and results of the analyses of the water sampled from each groundwater monitoring well at the site must be provided in the application. All sampling procedures must be included in the application and approved by the Secretary. Analyses for the constituents listed in Appendix I, the facility permit or an order by the Secretary and any other parameter(s) specified by the Secretary in writing must be conducted.

3.8.d.6. Surface Water.

3.8.d.6.A. The name of the nearest stream to the site and its 7Q10 low flow must be included in the application.

Note: "7Q10" means the seven (7) consecutive day drought flow with a ten (10) year return frequency, as defined in section 2 of this rule.

3.8.d.6.B. The surface drainage area of the tributary on which the site is located must be plotted on a map and included in the application.

3.8.d.6.C. The estimated peak surface water drainage flow of the tributary on which the site is located for a twenty-five (25)-year, twenty-four (24)-hour storm must be included in the application.

3.8.d.6.D. The maximum and minimum of surface slopes of the tributary on which the site is located must be included in the application.

3.8.d.6.E. The results of an analysis of water from one (1) grab sample from the nearest stream to the site must be included in the application. This analysis must be performed for the same parameters referenced in paragraph 3.8.d.5 of this rule with the addition of total suspended solids.

3.8.e. Water Budget. -- A water budget must be prepared for the periods of time during active operations when the maximum amount of area has been filled but not capped, and following facility closure at any landfill site. At a minimum, the following factors must be considered in the preparation of the water budget:

3.8.e.1. Average monthly temperature;

3.8.e.2. Average monthly precipitation;

3.8.e.3. Evaporation;

3.8.e.4. Evapotranspiration;

3.8.e.5. Surface slope and topsoil texture;

3.8.e.6. Soil moisture holding capacity and root zone depth;

3.8.e.7. Runoff coefficients;

3.8.e.8. Moisture contribution from the waste; and

3.8.e.9. Any groundwater contribution.

3.8.f. Liners and Leachate Collection System Efficiency. -- The collection efficiency of the leachate collection system at the landfill must be calculated using an approved analytical or numerical method. The factors to be considered in the calculation of collection efficiency must include:

3.8.f.1. The saturated hydraulic conductivity of the liner;

3.8.f.2. Liner thickness;

3.8.f.3. The saturated hydraulic conductivity of the drainage blanket;

3.8.f.4. Drainage blanket porosity;

3.8.f.5. The base slope of the liner;

3.8.f.6. The maximum flow distance across the liner;

3.8.f.7. Annual infiltration; and

3.8.f.8. Any groundwater inflow.

3.8.g. Leachate Generation. -- Information gained from the collection efficiency calculations must be used to predict the daily volume of leachate collected from the landfill.

3.8.h. Waste and Leachate Characterization.

3.8.h.1. Industrial Wastes. -- Unless otherwise approved, the physical and chemical characteristics of all wastes and leachates must be analyzed and described. When more than one waste is generated, testing shall be performed on each waste stream. All leaching tests must be done in accordance with published test procedures. Physical tests must be done in accordance with ASTM standards or published test procedures. All testing procedures must be documented. The proposed testing program, including the leaching test method, the leaching media, the parameters to be analyzed for, and the detection limits for each parameter specified must be discussed with the Secretary prior to initiation of the work. Actual field leachate data may be substituted for chemical characterization data of the waste at facilities for the disposal of industrial wastes, but only if approved in writing by the Secretary.

3.8.h.2. Municipal Wastes. -- Actual field leachate data from existing facilities of similar size, design, and waste type or an estimate of the anticipated leachate quality available from other sources must be included for all facilities for the disposal of municipal solid waste.

3.8.i. Liquid and Non-Liquid Waste Storage. -- All solid waste storage tanks, containers, liquid waste storage tanks, and surface impoundments located at solid waste facilities are subject to regulation under subdivision 3.8.i of this rule.

3.8.i.1. An application for a permit to construct and operate a solid waste facility that includes a waste storage area must contain the following:

3.8.i.1.A. A description of the non-liquid or liquid waste to be stored;

3.8.i.1.B. The estimated volume of the non-liquid or liquid waste generated and a proposed recordkeeping system to record actual quantities stored;

3.8.i.1.C. A schedule of stored waste removal;

3.8.i.1.D. A description of the final treatment and disposal of the stored waste; and

3.8.i.1.E. A description of the storage facility design.

3.9. Existing Land Use and Environmental Assessment.

3.9.a. Land Use Information. -- The application must discuss the present and former land uses at the facility and the surrounding area. A thorough discussion of land uses that may have an impact upon the suitability of the property for waste disposal or affected groundwater quality must be included in the application. The application must address all areas that may affect or be affected by the proposed facility; at a minimum, this will be the area within one (1) mile of the permit area for Class A solid waste facilities and within one-half (1/2) mile of the permit area for all other facilities. The presentation of land use information in the application must be supplemented with land use maps and, at a minimum, must specifically address the following:

3.9.a.1. Adjacent Landowners. -- The identity and location of the adjacent landowners must be discussed in narrative form. This information may be presented on a plat map but must reflect current ownership conditions and any changes must be so noted;

3.9.a.2. Land Use Zoning. -- The application must provide a review of land use zoning in the area and give particular attention to areas where zoning variances will be required, where agricultural impact statements may be required, or where floodplain, river corridors, or natural wetlands are designated.

3.9.a.3. Documentation of Present Land Uses. -- The application must include a description of the present land use in the area. Particular emphasis must be placed on the discussion of known recreational, historical, archaeological, or environmentally unique areas. The application must include a letter from the Division of Natural Resources' section of Wildlife Resources addressing the presence of any endangered or threatened species of animal or plant in the vicinity of the proposed facility. The application must include a letter from the West Virginia Division of Culture and History addressing the presence of any historical, scientific, or archaeological areas in the vicinity of the proposed facility. The need for an archaeological survey of the proposed limits of waste fill prior to development must also be addressed in the application.

3.9.a.4. Transportation and Access. -- Present and proposed transportation routes and access roads, including any weight restrictions, must be delineated in the application.

3.9.b. Environmental Review. -- The application must include an environmental assessment section that addresses the following items:

3.9.b.1. Project Summary. -- The application must include a brief summary of the project, with particular attention given to the following:

3.9.b.1.A. The purpose and need for the proposed facility, including the history and background of the project;

3.9.b.1.B. A listing of the statutory authority and other relevant local, state, and federal permits or approvals required for the proposed facility, as well as a discussion of the need for exemptions, zoning changes, and any other special permits; and

3.9.b.1.C. The estimated cost and funding source for the facility.

3.9.b.2. Proposed Physical Changes. -- The application must include a brief description of the proposed physical changes that will result from the project, with particular attention given to the following:

3.9.b.2.A. The changes in terrestrial resources, including the quantity of material to be excavated and the lateral extent of soil removal. This discussion must also cover the quantity and source of materials to be imported for construction of the liner, final cover system, drainage blanket, and perimeter berms. Any other significant terrestrial modifications, such as soil placement, necessary to reach the proposed sub-base grades, construction of access roads, surface water drainage features, and sedimentation controls must also be outlined;

3.9.b.2.B. The changes in aquatic resources, including the potential impacts to streams, existing wetlands, lakes, and drainage basin. This discussion must include discharge rates and volumes for groundwater control structures, leachate collection systems, and surface water runoff under existing conditions, as well as that anticipated during active operation and following closure of the facility;

3.9.b.2.C. Buildings, treatment units, roads, and other structures to be constructed in conjunction with the facility. This discussion must include the size of the facilities and the number of miles of road to be constructed;

3.9.b.2.D. Emissions and discharges such as dust, diesel exhaust, odors, gases, leachate, surface water runoff, and collected groundwater associated with facility preparation, construction, operation, closure, and following closure of the facility;

3.9.b.2.E. Other changes anticipated with facility development; and

3.9.b.2.F. Maps, plans, and other descriptive material to clarify the discussion, such as a county map showing the general area of the project, a USGS topographic map, a plat map, zoning map, county natural wetlands map, and a facility development plan.

3.9.b.3. Existing Environment. -- The application must include a brief description of the existing environment that may be affected by the project, with particular attention given to the following:

3.9.b.3.A. The physical environment including the regional and local topography, geology, surface water drainage features, hydrogeologic conditions, air, natural wetlands, and earth borrow sources, as well as an evaluation of the groundwater quality data and overall performance of any existing solid waste facility;

3.9.b.3.B. The dominant aquatic and terrestrial plant and animal species and habitats found in the area, including any threatened or endangered species, and the amount, type, and hydraulic value of natural wetlands;

3.9.b.3.C. Land use information, including dominant features and zoning in the area;

3.9.b.3.D. Social and economic conditions, including any ethnic or cultural groups;

3.9.b.3.E. Other special resources such as archaeological, historical, state natural areas, and prime agricultural lands; and

3.9.b.3.F. Public and private drinking water supplies.

3.9.b.4. Environmental Consequences. -- The application must include a brief discussion of the probable adverse and beneficial impacts of the project, including primary, indirect, and secondary impacts, with particular attention given to the following:

3.9.b.4.A. The physical impacts that would be associated with facility design, construction, and operation, including visual impacts if applicable;

3.9.b.4.B. The biological impacts, including destruction and creation of habitat, alteration of the physical environment, and any impacts to endangered or threatened species;

3.9.b.4.C. The impacts on land use;

3.9.b.4.D. The social and economic impacts to local residents, cultural groups, and the communities and industries served by the facility;

3.9.b.4.E. Other special resources such as archaeological, historical, state natural areas, and prime agricultural lands; and

3.9.b.4.F. Probable adverse impacts that cannot be avoided including groundwater and surface water impacts, modifications of topography, and any borrow source limitations on development around the facility, any loss of agricultural or forest land, displacement of wildlife, and adverse aesthetic impacts for people in and around the facility.

3.10. Proposed Landfill Design.

3.10.a. Report Preparation. -- The application must include a report describing the proposed landfill design. At a minimum, this report must include the following:

3.10.a.1. Preliminary materials balance calculations, including sources for berms, liner, final cover system, drainage blanket, topsoil, daily and intermediate cover, and any other fill needed to construct the facility;

3.10.a.2. The proposed methods for leachate and gas control, including collection, containment, and treatment. The capability of the wastewater treatment plants to accept leachate must be discussed and an identification made of the wastewater treatment plants the applicant is negotiating with to accept the leachate, if the plant is not directly controlled by the applicant;

3.10.a.3. The proposed operating procedures including the method of facility development, filling sequence, access control for each phase, surface water control, waste screening, covering frequency as applicable, exclusion of hazardous wastes, and other special design features;

3.10.a.4. A description of the proposed groundwater, leachate, surface water, gas, air, unsaturated zone, and other monitoring programs to be implemented to meet the requirements of subsection 4.11 of this rule;

3.10.a.5. The proposed closure plan and final use as specified in subsection 6.1 of this rule;

3.10.a.6. The proposed method of demonstrating financial responsibility for closure, post-closure care, and corrective action requirements, including preliminary itemized cost estimates for land acquisition, facility preparation, construction of each major phase, daily operation, closure, post-closure care, and corrective action. An estimated cost per ton for disposal must also be included;

3.10.a.7. Proposed design for access roads;

3.10.a.8. Proposed design for drainage and sediment control; and

3.10.a.9. Proposed revegetation plan, including seed mixture, seed bed preparation, fertilizers, mulching, and maintenance schedule.

3.10.b. Preliminary Engineering Plans. -- The preliminary engineering design must be presented on twenty-four inch by thirty-six inch (24" x 36") plan sheets (unless an alternative size is approved by the Secretary in writing) as follows:

3.10.b.1. Proposed access, lateral extent of filling, phases of facility development, sub-base and base grades, slopes, and the leachate collection system. The existing conditions map must be used as a base map for this plan sheet;

3.10.b.2. A plan sheet showing present topography, proposed base and sub-base grades, final grades, and liner and final cover system configuration displayed on all geologic cross-sections intersecting the landfill;

3.10.b.3. A monitoring plan sheet showing the proposed groundwater, leachate, surface water, gas, air unsaturated zone, and any other monitoring programs;

3.10.b.4. A drainage plan sheet showing:

3.10.b.4.A. The directional flow of water on and away from the land to be affected;

3.10.b.4.B. The location of all erosion and sedimentation control structures;

3.10.b.4.C. The component drainage area together with a table showing total acreage and disturbed acreage within each component; and

3.10.b.4.D. A sediment structure table showing type of sediment control structure, total contributing drainage area (acres), disturbed acreage controlled by total disturbance in the drainage area (acres), and storage capacity (acre-feet);

3.10.b.5. A detailed plan sheet showing proposed closure sequence and final grades;

3.10.b.6. A plan sheet showing the details of proposed design features for the major engineering structures at the facility; and

3.10.b.7. A plan sheet for any blasting that must be conducted at the facility. All blasting operations must comply with the following:

3.10.b.7.A. The blasting must be done during clear weather and during times when there is minimal traffic;

3.10.b.7.B. The blasting contractor must follow current blasting laws, regulations, and rules of the State, federal, and local authorities, and all appropriate regulatory agencies must be notified.

3.10.b.7.C. Adjacent residents and property owners and the proper local authorities must be properly informed about and notified of the upcoming blast operations;

3.10.b.7.D. The blasting contractor must initiate or employ a smooth blasting technique by using explosives with low charge concentration. Drilling patterns must be closely spaced with an appropriate blast hole diameter in a square or staggered drilling pattern. Blast hole design must depend on current field conditions;

3.10.b.7.E. To reduce ground vibration and excessive air blast, the contractor must employ proper delay timing, and use appropriate decking of charges and explosive powder factors applicable to the rock types being blasted;

3.10.b.7.F. The contractor must not blast below maximum approved elevations. The under-drilled few feet of the blast holes must not be loaded with explosives; and

3.10.b.7.G. Blasting must not be conducted on Sunday.

3.10.c. Sequencing of Solid Waste Disposal.

3.10.c.1. Solid Waste Placement Schedule. -- The sequence of solid waste disposal must be specified in a schedule of solid waste placement that must be approved by the Secretary. The solid waste placement schedule must correspond to a horizontal control grid system, with grid elements having maximum dimensions of two hundred (200) feet square. The horizontal control grid system must be referenced to a permanent physical marker or object on the site, with vertical control referenced to an elevation established for the marker. The solid waste placement schedule must specify the order in which grid elements (maximum two hundred (200) square feet in size) will be used for solid waste disposal for each lift of every solid waste fill area.

3.10.c.2. Solid Waste Disposal Coordination. -- The schedule of solid waste placement must be coordinated with the construction of on-site access roads, surface water drainage systems, leachate collection systems, and other facility construction in solid waste fill areas.

3.11. Landfill Liners.

3.11.a. Performance Standards. -- The application must contain plans, drawings, cross-sections, and specifications for a liner system to demonstrate compliance with performance standards and other requirements of this rule, including, but not limited to, subdivision 4.5.d, and the following:

3.11.a.1. The design of the liner system;

3.11.a.2. The thickness and characteristics of the sub-base;

3.11.a.3. The thickness and characteristics of the leachate detection zone;

3.11.a.4. The design for the leachate monitoring system in the leachate detection zone;

3.11.a.5. The nature and thickness of the liner material;

3.11.a.6. The thickness and characteristics of the leachate collection zone;

3.11.a.7. The design for the leachate collection system in the collection zone;

3.11.a.8. The thickness and characteristics of the protective cover; and

3.11.a.9. A plan for installing the liner system.

3.11.b. Q.A./Q.C. Plan. -- The application must include a quality assurance and quality control (Q.A./Q.C.) plan for the construction and installation of the liner system. At a minimum, the Q.A./Q.C. plan must include:

3.11.b.1. A description of the testing procedures and construction methods proposed to be implemented during construction of the liner system;

3.11.b.2. A description of the manner in which the protective cover and liner system will be maintained and protected in unfilled portions of the disposal area prior to and during placement of the initial lift of solid waste; and

3.11.b.3. A description of the manner in which the protective cover and liner system will be protected from weather prior to and during placement of the initial lift of solid waste.

3.11.c. Leachate Considerations. -- The application must demonstrate that leachate will not adversely affect the physical or chemical characteristics of the proposed liner system or inhibit the liner's ability to restrict the flow of solid waste, solid waste constituents or leachate, based on the most recent edition of EPA Method 9090, Compatibility Test for Wastes and Membrane Liners, or other documented data.

3.12. Borrow Sources for Landfills.

3.12.a. General. -- The application must contain a description of each proposed borrow source for liner and capping purposes, including the volume of acceptable material, total acreage, ownership, location, present land use, transportation routes, and any access restrictions, travel distance from the proposed waste disposal facility, surface water drainage patterns, and significant hydrologic features, such as surface waters, springs, drainage divides, and natural wetlands.

3.12.b. Field and Laboratory Investigations. -- At a minimum, preliminary field and laboratory investigations to define the physical characteristics of the proposed borrow material must include the information specified in subdivision 3.8.b of this rule, unless an alternative geotechnical investigation program is approved by the Secretary in writing. Applicants may submit an alternative program in cases where previous information exists regarding the proposed source.

3.12.c. Data Presentation. -- The following information must be submitted as part of the application:

3.12.c.1. The calculated volume of acceptable material based on the information obtained from the test pits or borings;

3.12.c.2. Property boundaries and test pit/boring locations shown on a map based upon a USGS topographic map or other equivalent map, with a scale of one inch equal to five hundred feet (1 inch = 500 feet). The mapped area must extend a minimum of five hundred (500) feet beyond the proposed borrow source;

3.12.c.3. An isopach map showing the thickness of acceptable material;

3.12.c.4. A description of the methods to be used for separating the acceptable materials from any unacceptable materials;

3.12.c.5. A proposal for maintaining drainage, sedimentation control, and proper abandonment of the property, including the introduction and maintenance of vegetation that conforms to the minimum requirements of subdivision 4.5.f of this rule; and

3.12.c.6. All data obtained from the testing program.

Note: It may be necessary to obtain federal, State, or local permits prior to excavating materials from a borrow source near or within surface waters or natural wetlands. It is the responsibility of the applicant or property owner to obtain any such permits.

3.13. Bonding and Financial Assurance for Solid Waste Facilities. -- The mechanisms used to demonstrate financial assurance under this subsection must ensure that the funds necessary to meet the costs of closure, post-closure care, and corrective action for known releases will be available whenever they are needed, and include the requirements of subdivisions 3.7.j, 3.13.n, 3.13.o, and 3.13.p of this rule, and

3.13.a. Requirements for Commercial Solid Waste Facilities.

Note: Non-commercial solid waste facilities are exempt from the requirements of subsection 3.13 of this rule.

3.13.a.1. The Secretary will not approve a new, reissued, renewed or modified permit for a commercial solid waste facility unless the applicant first submits to the Secretary a bond or other form of financial assurance, as applicable, in accordance with this rule, and the bond or other form of financial assurance is approved by the Secretary.

3.13.a.2. The bond or financial assurance must be submitted after the application is approved but before the permit, modification, transfer, assignment or other permitting function is approved or issued. No permit will be issued until the bond or financial assurance is approved by the Secretary and is in full force and effect.

3.13.a.3. A person who holds a valid Department permit to conduct a commercial solid waste activity but wishes to modify, transfer, assign, or perform any other permitting function must comply with paragraph 3.13.a.2 of this rule and must file a bond or other type of financial assurance with the Secretary prior to receiving the approval of the Secretary for the permit, modification or other permitting function as required under this rule.

3.13.a.4. Applicability. -- The requirements of this paragraph apply to permittees of all SWLFs, except as provided in subdivision 3.13.a. If a state or federal government entity should become a permittee in the State of West Virginia, it will be exempt from the requirements of this paragraph, since their debts and liabilities are the debts and liabilities of the state or the United States.

3.13.b. General Bonding and Financial Assurance Requirements.

3.13.b.1. All forms of financial assurance and bonds must be submitted in accordance with the requirements of this rule on a form prepared and furnished by the Secretary, must be made payable to the State of West Virginia, and must provide for continuous liability from the initiation of operations at the facility for the full term of the permit and for at least thirty (30) years after final closure of the permit site. Any further time period required to achieve compliance with the requirements of the closure plan of the permit or other requirements of the Department must be considered an additional liability period.

3.13.b.1.A. The use of any of the mechanisms listed in subsection 3.13 of this rule, must ensure the satisfaction of the following criteria:

3.13.b.1.A.1. That the amount of funds assured is sufficient to cover the costs of closure, post-closure care, and corrective action for known releases when needed;

3.13.b.1.A.2. That funds will be available in a timely fashion when needed;

3.13.b.1.A.3. In the case of closure and post closure care, the financial assurance mechanism(s) must be in full force and effect prior to the initial receipt of solid waste and in the case of corrective action, no later than one hundred twenty (120) days after the corrective action remedy has been selected in accordance with the requirements of subdivision 4.11.g of this rule, until the permittee is released from the financial assurance requirements of subdivisions 3.13.n, 3.13.o, and 3.13.p of this rule.

3.13.b.1.A.4. The financial assurance mechanisms must be legally valid, binding, and enforceable under State and federal law.

3.13.b.2. If a permit applicant elects to offer a certificate or securities as a form of financial assurance or bond, then the cash deposit or market value of such securities or certificates must be equal to or greater than the sum of the bond.

3.13.b.3. All forms of financial assurance or bonds must be conditioned on compliance with the Solid Waste Management Act, any rules promulgated thereunder, orders issued by the Secretary, and the terms and conditions of the permit.

3.13.b.4. All forms of financial assurance or bonds will be reviewed for legality and form in accordance with established Department procedures.

3.13.b.5. All forms of financial assurance or bonds will be placed with the State Treasurer to be held in the name of the State in trust for the purpose for which the deposit is made when the permit is issued.

3.13.b.6. With the Secretary's permission, the permittee may remove the deposit if it is first replaced with an equivalent or greater deposit.

3.13.b.7. If for any reason a permittee fails to maintain proper financial assurance or bonding, the Secretary will issue a cease and desist order and revoke the permit, and the permittee becomes fully liable for the amount of the bond.

3.13.b.8. The penal sum of any financial assurance must be in an amount at least equal to the sum of the current closure, post-closure care, and/or corrective action cost estimate, as applicable.

3.13.c. Other Allowable Mechanisms of Financial Assurance or Bonding.

3.13.c.1. The Secretary will accept the following types of financial assurance or bonding:

3.13.c.1.A. A surety bond;

3.13.c.1.B. A collateral bond (including cash and securities);

3.13.c.1.B.1. Cash deposits;

3.13.c.1.B.2. Collateral securities;

3.13.c.1.B.3. Certificates, including:

3.13.c.1.B.3.(a) Bonds of the United States or its possessions;

3.13.c.1.B.3.(b) Bonds of the Federal Land Bank;

3.13.c.1.B.3.(c) Bonds of the Homeowners Loan Corporation;

3.13.c.1.B.3.(d) Full Faith and General Obligation bonds of the State of West Virginia or other states and of any West Virginia county, district or municipality or any county, district or municipality of other states;

3.13.c.1.C. Escrow Account. -- An escrow account;

3.13.c.1.D. Collateral bonds; including:

3.13.c.1.D.1. Letters of credit;

3.13.c.1.D.2. Certificates of deposit; and

3.13.c.1.D.3. Negotiable bonds.

3.13.c.1.E. Performance bonding fund participation as established by the Secretary;

3.13.c.1.F. Trust Fund.

3.13.c.1.G. State-Approved Mechanism (Reserved).

3.13.c.1.H. State Assumption of Responsibility (Reserved).

3.13.c.1.I. Use of Multiple Financial Mechanisms.

3.13.d. Special Terms and Conditions for Surety Bonds Guaranteeing Payment or Performance. -- A permittee may demonstrate financial assurance for closure, post-closure care or corrective action by obtaining a payment or performance surety bond that conforms to the requirements of this subdivision.

3.13.d.1. The Secretary will not accept the bond of a surety company that has failed or unduly delayed, as determined by the Secretary, in making payment on a forfeited surety bond.

3.13.d.1.A. The surety company issuing the bond must, at a minimum, be among those listed as acceptable sureties on Federal bonds in Circular 570 of the U.S. Department of the Treasury.

3.13.d.2. The Secretary will accept only the bond of a surety authorized to do business in this State when the surety bond is signed by an appropriate official of the surety as determined by the Secretary. If the principal place of business of the surety is outside of this State, the surety bond must also be signed by an authorized resident agent of the surety.

3.13.d.3. The bond must provide that full payment will be made under the bond within thirty (30) days of receipt of the Department's declaration of forfeiture by the surety.

3.13.d.4. The Secretary will not accept surety bonds from a surety company when the total bond liability to the Department for bonds filed by the permittee, the principal, and related parties exceed the surety company's single risk limit.

3.13.d.4.A. Under the terms of the bond, the surety may cancel the bond by sending notice of cancellation by certified mail to the permittee and to the Secretary one hundred twenty (120) days in advance of cancellation.

3.13.d.4.A.1. If the surety cancels the bond, the permittee must obtain alternative financial assurance as specified in this part.

3.13.d.4.A.2. The permittee may cancel the bond only if alternative financial assurance is substituted as specified in this part or if the permittee is no longer required to demonstrate financial responsibility in accordance with paragraphs 3.13.n.2, 3.13.o.2, or 3.13.p.2 of this rule.

3.13.d.5. The bond must provide that the surety and the principal are jointly and severally liable for payment of the bond amount.

3.13.d.6. Surety Bond Forfeiture.

3.13.d.6.A. The Secretary will provide in the bond that the amount must be confessed to judgment and execution upon forfeiture.

3.13.d.6.B. Any surety bond obtained by the permittee must state that the surety will become liable on the bond obligation should the permittee fail to perform as guaranteed by the bond.

3.13.d.7. The Department will retain, during the term of the bond and upon forfeiture of the bond, a property interest in the surety's guarantee of payment under the bond, which may not be affected by the bankruptcy, insolvency or other financial incapacity of the permittee or principal on the bond.

3.13.d.8. The bond must provide that the surety will give written notice to the principal and the Department within ten (10) days of a notice received or an action filed by or with a regulatory agency having jurisdiction over the surety alleging one of the following:

3.13.d.8.A. The insolvency or bankruptcy of the surety.

3.13.d.8.B. Violations of regulatory requirements applicable to the surety, when as a result of the violations, suspension or revocation of the surety's license to do business in this State or another state is under consideration by the regulatory agency.

3.13.d.9. Surety Bonds for Corrective Action, Closure, and Post-Closure Care.

3.13.d.9.A. A permittee may demonstrate financial assurance for corrective action, closure, and post-closure care by obtaining a performance bond that conforms to the requirements of this rule.

3.13.d.9.B. A bond for corrective action must be in accordance with part 3.13.b.1.A.3 of this rule.

3.13.d.9.C. A bond for closure or post-closure care must be effective no later than one hundred twenty (120) days after the corrective action remedy has been selected, in accordance with the requirements of subdivision 4.11.g below.

3.13.d.10. Standby Trust Fund.

3.13.d.10.A. As provided in paragraph 3.13.d.10 of this rule, the permittee must establish a standby trust fund.

3.13.d.10.B. The standby trust fund must meet the requirements of subsection 3.13 of this rule, except the requirements for initial payment and subsequent annual payments specified in paragraph 3.13.k.1 of this rule.

3.13.d.10.C. Payments made under the terms of the bond will be deposited by the surety directly into the standby trust fund.

3.13.d.10.D. Payments from the trust fund must be approved by the trustee.

3.13.e. General Terms and Conditions for Collateral Bonds.

3.13.e.1. The applicant may submit a collateral bond in one or more of the following forms:

3.13.e.1.A. Cash deposits.

3.13.e.1.B. Certified checks, cashiers' checks or treasurer's checks that are issued, drawn on or certified by a bank or banking institution authorized to do business in this State.

3.13.e.1.C. Automatically renewable and assignable certificates of deposit from banks or banking institutions authorized to do business in this State.

3.13.e.1.D. Automatically renewable, irrevocable standby letters of credit from banks or banking institutions authorized to do business in this State.

3.13.e.1.E. Negotiable bonds of the United States government; the Federal Land Bank; the Homeowners Loan Corporation; or Full Faith and General Obligation bonds of the State of West Virginia or other states and of any West Virginia county, district or municipality or any county, district or municipality of other states.

3.13.e.2. The market value of the collateral deposited must be at least equal to or greater than the sum of the required bond amount.

3.13.e.3. The Secretary will place collateral submitted under this rule with the State Treasurer, who is responsible for its custody and safe keeping until released or collected and deposited in an appropriate fund designated by the Secretary.

3.13.e.4. Collateral must be in the name of the permittee and pledged and assigned to the State free and clear of claims or rights. The pledge or assignment must vest in the State a property interest in the collateral that must remain until released under the terms of this rule, and may not be affected by the bankruptcy, insolvency or other financial incapacity of the permittee.

3.13.e.5. The State will ensure that its ownership rights to collateral deposited are established to make the collateral readily available to the State upon forfeiture. The Secretary may require proof of ownership and other means, such as secondary agreements, as he or she deems necessary to meet the requirements of this rule. If the Secretary determines that collateral deposited does not meet the requirements of this rule, he or she may take action under the law to protect the State's interest in the collateral.

3.13.f. Collateral Bonds; Escrow.

3.13.f.1. The Secretary may authorize the permittee to establish an escrow account deposited in one or more federally-insured accounts payable on demand only to the Secretary or directly deposited with the Secretary.

3.13.f.2. Escrow funds deposited in federally-insured accounts must not exceed the maximum insured amount under applicable federal insurance programs, such as the Federal Deposit Insurance Corporation (F.D.I.C.) or the Federal Savings and Loan Insurance Corporation (F.S.L.I.C.).

3.13.f.3. Interest paid on an escrow account must be retained in the escrow account and applied to the bond value of the escrow account unless the Secretary has approved that the interest be paid to the permittee. In order to qualify for interest payment, the permittee must request such action in writing during the permit application process.

3.13.g. Collateral Bonds; Letters of Credit. -- A permittee may satisfy the requirements of this subdivision by obtaining an irrevocable standby letter of credit that conforms to the requirements of this rule.

3.13.g.1. Bank letters of credit submitted as collateral for collateral bonds are subject to the following conditions:

3.13.g.1.A. The letter of credit must be a standby or guarantee letter of credit issued by a federally-insured or equivalently protected bank or banking institution authorized to do business in this State. The letter of credit may not be issued without a credit analysis substantially equivalent to a credit analysis applicable to a potential borrower in an ordinary loan situation. A letter of credit so issued must be supported by an applicant's unqualified obligation to reimburse the issuer for monies paid under the letter of credit.

3.13.g.1.B. The letter of credit must be irrevocable and must be so designated. The letter of credit must be issued for a period of at least one (1) year in an amount at least equal to the current cost estimate for closure, post-closure care or corrective action, whichever is applicable, except as provided in paragraph 3.13.k.1 of this rule.

3.13.g.1.B.1. The letter of credit must provide that the expiration date will be automatically extended for a period of at least one (1) year unless the issuing institution has canceled the letter of credit by sending notice of cancellation by certified mail to the permittee and to the Secretary ninety (90) days in advance of cancellation.

3.13.g.1.B.2. If the letter of credit is canceled by the issuing institution, the permittee must obtain alternative financial assurance or bonding.

3.13.g.1.B.3. The permittee may cancel the letter of credit only if alternative financial assurance or bonding is substituted as specified in this part or if the permittee is released from the requirements of this part in accordance with paragraphs 3.13.n.2, 3.13.o.2, or 3.13.p.2 of this rule.

3.13.g.1.B.4. A letter from the permittee referring to the letter of credit by number, issuing institution, and date and providing the following information: name and address of the facility and the amount of funds assured must be included with the letter of credit in the operating record.

3.13.g.1.C. The Secretary may not accept letters of credit issued for an applicant when the amounts of the letter of credit, aggregated with other loans and credits extended to the applicant, exceeds the issuer's legal lending limit for that applicant as defined in the United States Banking Code ( 12 U.S.C. §§21 - 220).

3.13.g.1.D. Letters of credit must name the West Virginia Department of Environmental Protection as beneficiary and must be payable to the Department upon demand, in part or in full, upon presentation of the Department's drafts at sight. The Department's right to draw upon the letter of credit does not require documentary or other proof by the Department that the applicant has violated the conditions of the bond, the permit or another requirement.

3.13.g.1.E. The Secretary will not accept letters of credit from a bank that has failed or delayed in making payment on a letter of credit previously submitted as collateral to the Department.

3.13.g.2. The Secretary will not accept letters of credit from a bank for any person, for all permits held by that person, in excess of three (3) times the company's maximum single obligation as provided by State law.

3.13.g.3. The Secretary will provide in the indemnity agreement that the amount will be confessed to judgment upon forfeiture.

3.13.g.4. The letter of credit must provide that:

3.13.g.4.A. The bank will give prompt notice to the permittee and the Secretary of any notice received or action filed alleging the insolvency or bankruptcy of the bank or alleging any violations of regulatory requirements that could result in suspension or revocation of the bank's charter or license to do business.

3.13.g.4.B. In the event the bank becomes unable to fulfill its obligations under the letter of credit for any reason, notice must be given immediately to the permittee and the Secretary.

3.13.g.4.C. Upon the incapacity of a bank by reason of bankruptcy, insolvency, suspension or revocation of its charter or license, the permittee must be deemed to be without bond coverage. The Secretary must issue an order against any operator who is without bond coverage. The notice will specify the period within which bond coverage must be replaced. If the permittee cannot replace the bond within the specified period of time, then the Secretary must immediately revoke the permit. The permittee will be fully liable for the amount of the bond coverage.

3.13.g.4.D. The estimated bond value of all collateral posted as bond assurance will be subject to a margin-bond-value-to-market-value ratio as determined by the Secretary. This margin will reflect legal and liquidation fees, as well as value depreciation, marketability, and fluctuations that might affect the net cash available to the Secretary in performing closure or other remedial measures. The bond value of collateral may be evaluated at any time, but must be evaluated as part of permit renewal. In no case may the bond value exceed the market value.

3.13.g.5. The issuing bank must waive the rights of setoff or liens that it has or might have against the letter of credit.

3.13.g.6. If the Secretary collects an amount under the letter of credit due to failure of the permittee to replace the letter of credit after demand by the Secretary, the Department will hold the proceeds as cash collateral.

3.13.g.7. After the letter of credit is approved by the Secretary, the permittee must retain a copy of the letter of credit in the facility operating record.

3.13.g.8. In the case of closure and post-closure care, the letter of credit must be effective before the initial receipt of waste or corrective action, no later than one hundred twenty (120) days after the corrective action remedy has been selected, in accordance with the requirements of subdivision 4.11.f of this rule.

3.13.g.9. The issuing institution must be an entity that has the authority to issue letters of credit and whose letter-of-credit operations are regulated and examined by a federal or state agency.

3.13.h. Collateral Bonds; Certificates of Deposit.

3.13.h.1. Certificates of deposit submitted as collateral for collateral bonds are subject to the following conditions:

3.13.h.1.A. The certificates of deposit must be made payable to the Department or the permittee and the Department and must be assigned to the Department by the permittee, in writing, as required by the Secretary and on forms provided by the Secretary. The assignment must be recorded upon the books of the bank issuing the certificate.

3.13.h.1.B. The certificate of deposit must be issued by a federally-insured or equivalently protected bank or banking institution that is authorized to do business in this State.

3.13.h.1.C. The Secretary will not accept certificates of deposit from a bank or banking institution when the accumulated total of certificates of deposit issued by the bank or banking institution for the operator is in excess of one hundred thousand dollars ($100,000) or the maximum insurable amount as determined by the F.D.I.C. or the F.S.L.I.C., if the banking institution is insured by the F.D.I.C. or F.S.L.I.C. If it is insured by an equivalent method administered by the State, similar limits apply.

3.13.h.1.D. The certificate of deposit must state that the bank issuing it waives the rights or setoff or liens that it has or might have against the certificate.

3.13.h.1.E. The certificate of deposit must be automatically renewable and fully assignable to the state. Certificates of deposit must state on the face that they are automatically renewable.

3.13.h.1.F. The permittee must submit certificates of deposit in amounts that will allow the Department to liquidate the certificates prior to maturity, upon forfeiture, for the full amount of the bond determined in accordance with and required by this rule, without penalty to the Department.

3.13.h.1.G. The Secretary will not accept certificates of deposit from banks that have failed or unduly delayed in making payment on certificates of deposit that have previously been submitted as collateral to the Department.

3.13.h.1.H. The permittee is not entitled to interest accruing after forfeiture is declared by the Department, unless and until the forfeiture declaration is ruled invalid by a court having jurisdiction over the Department and the ruling is final, including resolution of appeals.

3.13.i. Collateral Bonds; Negotiable Bonds.

3.13.i.1. Negotiable bonds submitted and pledged as collateral for collateral bonds are subject to the following conditions:

3.13.i.1.A. The Secretary may determine the current market value of governmental securities for the purpose of establishing the value of the securities for bond deposit.

3.13.i.1.B. The current market value must be at least equal to the amount of the required bond.

3.13.i.1.C. The Department may periodically revalue the securities and may require additional amounts if the current market value is insufficient to satisfy the bond amount requirements for the facility.

3.13.i.1.D. The permittee may request and receive the interest accruing on governmental securities with the Department as the same becomes due and payable. No interest will be paid for post-forfeiture interest accruing during appeals and after resolution of the appeals when the forfeiture is adjudicated, decided or settled in favor of the state.

3.13.j. Use of Multiple Mechanisms.

3.13.j.1. The Secretary may accept financial assurance or bond that is comprised of more than one financial mechanism per facility, as listed in this rule, except that it is the combination of mechanisms, rather than the single mechanism, that must provide financial assurance for an amount at least equal to the current cost estimate for closure, post-closure care or corrective action, whichever is applicable.

3.13.j.1.A. The instruments chosen must be construed as part of the entire bond for the facility.

3.13.j.1.B. The Secretary may refuse to accept the bond if he or she determines that the financial guarantee of the bond is unacceptable or it, for any other reason, does not meet the purposes of the Act, this rule or orders of the Secretary.

3.13.j.1.C. The financial test and a guarantee provided by a corporate parent, sibling, or grandparent may not be combined if the financial statements of the two firms are consolidated.

3.13.k. Other Forms of Bonding. -- Other forms of bonding including, but not limited to:

3.13.k.1. Trust Fund.

3.13.k.1.A. A permittee may satisfy the requirements of this paragraph by establishing a trust fund that conforms to the requirements below:

3.13.k.1.A.1. The trustee must be an entity that has the authority to act as a trustee and whose trust operations are regulated and examined by a federal or state agency.

3.13.k.1.A.2. A copy of the trust agreement must be placed in the facility's operating record.

3.13.k.1.B. Payment into the trust fund must be made annually by the permittee over the term of the initial permit or over the remaining life of the SWLF, whichever is shorter, in the case of a trust fund for closure or post-closure care, or over one-half of the estimated length of the corrective action program in the case of corrective action for known releases. This period is referred to as the pay-in period.

3.13.k.1.C. For a trust fund used to demonstrate financial assurance for closure and post-closure care, the first payment into the trust fund must be at least equal to the current cost estimate for closure and post-closure care, except as provided in paragraph 3.13.k.3 of this rule, divided by the number of years in the corrective action pay-in period as defined in subparagraph 3.13.p.1.C of this rule.

3.13.k.1.D. The amount of subsequent payments must be determined by the following formula:

Next Payment = CE-CV

Y

where CE is the current cost estimate for closure or post-closure care (updated for inflation or other changes), CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.

3.13.k.1.E. For a trust fund used to demonstrate financial assurance for corrective action, the first payment into the trust fund must be at least equal to one-half of the current cost estimate for corrective action, except as provided in paragraph 3.13.k.3 of this rule, divided by the number of years in the corrective action pay-in period as defined in subparagraph 3.13.p.1.C of this rule.

3.13.k.1.E.1. The amount of subsequent payments must be determined by the following formula:

Next Payment = RB-CV

Y

where RB is the most recent estimate of the required trust fund balance for corrective action (i.e., the total costs that will be incurred during the second half of the corrective action period), CV is the current value of the trust fund, and Y is the number of years remaining in the pay-in period.

3.13.k.1.F. In the case of closure and post-closure care, the initial payment into the trust fund must be made before the initial receipt of waste and, in the case of corrective action, no later than one hundred twenty (120) days after the corrective action remedy has been selected in accordance with the requirements of subdivision 4.11.g of this rule.

3.13.k.1.G. If the permittee establishes a trust fund after having used one or more alternative mechanisms specified in this paragraph, the initial payment into the trust fund must be at least the amount that the fund would contain if the trust fund were established initially and annual payments made according to the specifications of paragraph 3.13.k.1 of this rule.

3.13.k.1.H. The permittee or other person authorized to conduct closure, post-closure care or corrective action activities may request reimbursement from the trustee for these expenditures.

3.13.k.1.H.1. Requests for reimbursement will be granted by the trustee only if sufficient funds are remaining in the trust fund to cover the remaining costs of closure, post-closure care or corrective action, and if justification and documentation of the cost is placed in the operating record.

3.13.k.1.H.2. The permittee must notify the Secretary that the documentation of the justification for reimbursement has been placed in the operating record and that reimbursement has been received.

3.13.k.1.I. The trust fund may be terminated by the permittee only if the permittee substitutes alternative financial assurance as specified in this subparagraph or if he or she is no longer required to demonstrate financial responsibility in accordance with the requirements of paragraphs 3.13.n.2, 3.13.o.2 or 3.13.p.2 of this rule.

3.13.k.2. State-Approved Mechanism. (Reserved)

3.13.k.3. State Assumption of Responsibility. (Reserved)

3.13.l. Replacement of Existing Bond.

3.13.l.1. The Secretary may allow a permittee to replace an existing surety or collateral bond with another surety or collateral bond, if the liability that has accrued against the bond, the permittee, and the facility is transferred to the replacement bond. The replacement bond must include an endorsement by the permittee acknowledging the retroactivity of the liability to the date of issue of the original solid waste permit or a prior date determined by the Secretary. The bond amount for this replacement bond will be determined under this rule, but may not be less than the amount on deposit with the Department.

3.13.l.2. The Department will not release existing bonds until the permittee has submitted and the Secretary has approved acceptable replacement bonds that are in full force and effect. A replacement of bonds under subdivision 3.13.l of this rule does not constitute a release of bond under this rule.

3.13.m. Bond Amounts.

3.13.m.1. In accordance with the provisions of W. Va. Code § 22-15-12, all permits must be bonded for at least ten thousand dollars ($10,000) or a sufficient amount to satisfy all of the requirements of this rule, whichever is the higher amount.

3.13.n. Financial Assurance for Closure.

3.13.n.1. The permittee must have a detailed written estimate, in current dollars, of the cost of hiring a third party to close the largest area of all SWLFs ever requiring a final cover, as required under section 6 of this rule, at any time during the active life in accordance with the closure plan.

3.13.n.1.A. The permittee must notify the Secretary in writing of that estimate and maintain a copy in the operating record.

3.13.n.1.A.1. The cost estimate must equal the cost of closing the largest area of all SWLFs ever requiring a final cover at any time during the active life when the extent and manner of its operation would make closure the most expensive, as indicated by its closure plan (see part 6.1.e.3.A.2 of this rule).

3.13.n.1.A.2. During the active life of the SWLF, the permittee must annually adjust the closure cost estimate for inflation.

3.13.n.1.A.3. The permittee must increase the closure cost estimate and the amount of financial assurance provided under subparagraph 3.13.n.2.A of this rule, if changes to the closure plan or SWLF conditions increase the maximum cost of closure at any time during the remaining active life.

3.13.n.1.A.4. The permittee may reduce the closure cost estimate and the amount of financial assurance provided under subparagraph 3.13.n.2.A of this rule, if the cost estimate exceeds the maximum cost of closure at any time during the remaining life of the SWLF.

3.13.n.1.A.4.(a) The permittee must notify the Secretary that the justification for the reduction of the closure cost estimate and the amount of financial assurance has been placed in the operating record.

3.13.n.2. The permittee of each SWLF's operating record must establish financial assurance for closure of the SWLF in compliance with subsection 3.13 of this rule.

3.13.n.2.A. The permittee must provide continuous coverage for closure until released from financial assurance requirements by demonstrating compliance with section 6 of this rule.

3.13.o. Financial Assurance for Post-Closure Care.

3.13.o.1. The permittee must have, at all times, a detailed written estimate, in current dollars, of the cost of hiring a third party to conduct post-closure care for the SWLF in compliance with the post-closure plan developed under subsection 6.3 of this rule.

3.13.o.1.A. The post-closure cost estimate used to demonstrate financial assurance in paragraph 3.13.o.2 and subparagraph 3.13.o.2.A below must account for the total costs of conducting post-closure care, including annual and periodic costs as described in the post-closure plan over the entire post-closure care period. The permittee must notify the Secretary that a copy of the estimate has been placed in the operating record.

3.13.o.1.A.1. The cost estimate for post-closure care must be based on the most expensive costs of post-closure care during the post-closure care period.

3.13.o.1.A.2. During the active life of the SWLF and during the post-closure care period, the permittee must annually adjust the post-closure cost estimate for inflation.

3.13.o.1.A.3. The permittee must increase the post-closure care cost estimate and the amount of financial assurance provided under paragraph 3.13.o.2 and subparagraph 3.13.o.2.A of this rule, if changes in the post-closure plan or SWLF conditions increase the maximum costs of post-closure care.

3.13.o.1.A.4. The permittee may reduce the post-closure cost estimate and the amount of financial assurance provided under paragraph 3.13.o.2 of this rule, if the cost estimate exceeds the maximum costs of post-closure care remaining over the post-closure care period.

3.13.o.1.A.4.(a) The permittee must notify the Secretary and receive written approval of the Secretary of the justification for the reduction of the post-closure cost estimate and the amount of financial assurance prior to placing these documents in the operating record.

3.13.o.2. The permittee of each SWLF must establish, in a manner in accordance with subdivision 3.13.k of this rule, financial assurance for the costs of post-closure care as required under subsection 6.3 of this rule.

3.13.o.2.A. The permittee must provide continuous coverage for post-closure care until released from financial assurance requirements for post-closure care by demonstrating compliance with paragraph 6.3.g.1 of this rule.

3.13.p. Financial Assurance for Corrective Action.

3.13.p.1. A permittee of a SWLF required to undertake a corrective action program under subdivision 4.11.g of this rule must have a detailed written estimate, in current dollars, of the cost of hiring a third party to perform the corrective action in accordance with the program required under subdivision 4.11.g of this rule.

3.13.p.1.A. The corrective action cost estimate must account for the total costs of corrective action activities as described in the corrective action plan for the entire corrective action period.

3.13.p.1.A.1. The permittee must notify the Secretary that the estimate has been placed in the operating record.

3.13.p.1.B. The permittee must annually adjust the estimate for inflation until the corrective action program is completed in accordance with paragraphs 4.11.g.6 and 4.11.g.7 of this rule.

3.13.p.1.C. The permittee must increase the corrective action cost estimate and the amount of financial assurance provided under paragraph 3.13.p.2 of this rule, if changes in the corrective action program or SWLF conditions increase the maximum costs of corrective action.

3.13.p.1.D. The permittee may reduce the amount of the corrective action cost estimate and the amount of financial assurance provided under paragraph 3.13.p.2 of this rule, if the cost estimate exceeds the maximum remaining costs of corrective action.

3.13.p.1.D.1. The permittee must notify the Secretary that the justification for the reduction of the corrective action cost estimate and the amount of financial assurance has been placed in the operating record.

3.13.p.2. The permittee of each SWLF required to undertake a corrective action program under subdivision 4.11.g of this rule must establish, in a manner in accordance with subsection 3.13 of this rule, financial assurance for the most recent corrective action program.

3.13.p.2.A. The permittee must provide continuous coverage for corrective action until released from financial assurance requirements for corrective action by demonstrating compliance with paragraphs 4.11.g.6 and 4.11.g.7 of this rule.

3.14. Background Investigation Disclosure Statement.

3.14.a. Applicability. -- Every applicant for a solid waste facility permit must file a background investigation disclosure statement with the Secretary at the time the initial application is filed, unless exempt from such disclosure under the provisions of subdivision 3.14.d of this rule.

3.14.b. Copies and Fees. -- Background investigation disclosure statements must be filed by submitting a notarized original and one (1) certified copy of all papers and other applicable documents to the Secretary, accompanied by a nonrefundable investigation fee in accordance with the schedule of fees in Appendix IV to this rule.

3.14.b.1. Additional certified copies of background investigation disclosure statements, or any portions thereof, must be supplied upon the request of the Secretary.

3.14.b.2. Within sixty (60) days of receipt of a background investigation disclosure statement from a permit applicant, the Secretary must advise the permit applicant if the background investigation disclosure statement is incomplete on its face, and must specify what additional information is required.

3.14.b.3. Additional Costs. - Should the cost of the background investigation be more than the nonrefundable investigation fee paid by the permittee described in subdivision 3.14.b, the permittee will reimburse the Department for its costs beyond those paid by the permittee's investigation fee, prior to the issuance of a solid waste facility permit.

3.14.c. Fingerprinting Requirements. -- Any applicant required to be listed in the background investigation disclosure statement must be fingerprinted for identification and investigation purposes in accordance with procedures established by the Secretary.

3.14.c.1. Completed fingerprint cards must be supplied by the applicant with the background investigation disclosure statement, when submitted. The applicant must arrange for the taking of fingerprints.

3.14.c.2. Fingerprints must be taken and verified by an employee of a police agency authorized to take fingerprints.

Note: Most local police departments and the State Police will provide this service. Some charge a fee.

3.14.d. Exemptions. -- The following persons are exempted from the requirement to submit a background investigation disclosure statement:

3.14.d.1. Any person who is an employee of any department, division, agency, commission or authority of the federal, state, county or municipal government.

3.14.d.2. Any person whose application or permit is solely for a Class E or Class F facility.

3.14.e. Contents of Background Investigation Disclosure Statement. -- The background investigation disclosure statement must be filed on forms supplied by the Secretary and must be completed in accordance with W. Va. Code § 22-15-5 and include the following:

3.14.e.1. The applicant or any officer, director or manager, any shareholder owning five percent (5%) or more of its capital stock, beneficial or otherwise, including ultimate parent corporations, and any other person conducting or managing the affairs of the applicant or the proposed permitted premises;

3.14.e.2. The disclosure statement must contain the full name, business address, home address, date of birth, social security number, a description of the applicant's experience and credentials, including any past or present permits for the collection, transportation, treatment, storage or disposal of solid waste or hazardous waste, that are or have been issued to or possessed by the applicant and any person or persons required to be listed by paragraph 3.14.e.1 of this rule;

3.14.e.3. A listing of any agencies outside of West Virginia that had or has regulatory responsibility over the applicant in connection with its collection, transportation, treatment, storage or disposal of solid waste or hazardous waste;

3.14.e.4. An addendum form must be completed and filed with each disclosure statement for each relation (spouse, sibling, parent or child) engaged in the collection, transportation, treatment, storage or disposal of solid or hazardous waste; and

3.14.e.5. Any other information the Secretary may require that relates to the competency, reliability or good character of the applicant, or as required by W. Va. Code § 22-15-5.

3.14.f. Signature.

3.14.f.1. Background investigation disclosure statements must be signed by each of the following:

3.14.f.1.A. If of a corporation, by its president, its chairman of the board, any other chief executive officer thereof, its secretary and its treasurer.

3.14.f.1.B. If of a partnership, by each of its partners; if of a limited partnership, only by each of its general partners.

3.14.f.1.C. If of any other business concern, by its chief executive officer, its secretary, and its treasurer.

3.14.f.1.D. If of a natural person, by the person him- or herself.

3.14.f.2. All signatures must be signed in ink and dated on original papers. The name and address of the signatory must be typed, stamped or legibly printed beneath each signature. All signatures must be notarized.

3.14.g. Change of Information on Background Investigation Disclosure Statement. -- Where an applicant has an application pending before the Secretary and any of the information required to be included in a background investigation disclosure statement changes, or any additional information must be added after the filing of the statement, the applicant must provide that change of information to the Secretary in writing within thirty (30) days of the change or addition.

3.14.h. Reporting Requirements. -- Permittees must report to the Secretary within thirty (30) days any changes or additions in the following information required to be included in the background investigation disclosure statement:

3.14.h.1. The name of the permittee or applicant;

3.14.h.2. The names or identities of any applicant or any officer, director or manager thereof, shareholder owning five percent (5%) or more of its capital stock, beneficial or otherwise, including ultimate parent corporations, and any other person conducting or managing the affairs of the applicant or the proposed permitted premises;

3.14.h.3. The name and business address of any company in which the permittee acquires an equity interest that collects, transports, treats, stores or disposes of solid waste or hazardous waste;

3.14.h.4. A listing and explanation of any notices of violation, orders or license revocations issued by any state or federal authority:

3.14.h.4.A. Any judgment of liability or conviction rendered against the permittee or against any key employee, officer, director or manager thereof, shareholder owning five percent (5%) or more of its capital stock, beneficial or otherwise, or other person conducting or managing the affairs of the applicant or the proposed permitted premises.

3.14.h.5. Changes of information required to be reported pursuant to paragraph 3.14.h.6 of this rule may be filed by letter or on copies of applicable portions of background investigation disclosure statement forms. The person filing the report of change must swear to or affirm the truth of the information contained therein.

3.14.h.6. Filing of Changes of Information. -- Changes of information must be filed by submitting an original and one certified copy to the Secretary.

3.14.i. Annual Updates. -- The background investigation disclosure statement annual updates must be filed yearly on the anniversary of the permit issuance. It must be filed on forms supplied by the Secretary and must contain all changes including, but not limited to, deletions in officers, directors, managers, owners, companies, etc. that have occurred since the submittal of the previous application. If there have been any additions to the officers, directors, managers, shareholders owning five percent (5%) or more of capital stock, beneficial or otherwise; general or limited partners; any person performing a function similar to the Secretary; United States parent corporation, including the ultimate parent corporation; agents; or associates of the permittee, a background investigation disclosure statement application must be filed with the Department including proper filing fees and fingerprint cards.

3.14.j. Notarization of Annual Updates. -- Annual updates must be notarized.

3.14.k. Requirement to File New Background Investigation Disclosure Statement. -- Where an applicant or permittee has submitted multiple amendments to its background investigation disclosure statement, or the information concerning an applicant or permittee has undergone substantial change, or if the background investigation disclosure statement currently on file with the Secretary is more than five (5) years old, the Secretary may require the applicant or permittee to file a new background investigation disclosure statement.

3.14.l. Additional Information; Duty to Cooperate. -- All applicants and permittees have the continuing duty to provide any assistance or information requested by the Secretary and to cooperate in any inquiry, investigation, or hearing conducted by the Secretary. If, upon issuance of formal request to answer any inquiry or produce information, evidence or testimony, an applicant or permittee refuses to comply, the permit of that person may be denied or revoked by the Secretary.

3.14.m. Physical Evidence. -- Upon request, the applicant must supply physical evidence, including, but not limited to, photographs or handwriting exemplars of any person listed on the background investigation disclosure statement or any amendment thereof.

3.14.n. Disqualification Criterion. -- No permit may be approved by the Secretary unless the applicant demonstrates compliance with the provisions of W. Va. Code § 22-15-5.

3.14.o. Cause for Permit Revocation. -- In addition to any other cause set forth elsewhere in this rule, any permit may be revoked for any violation of W. Va. Code § 22-15-5.

3.14.p. Severance of Disqualifying Individuals. -- Notwithstanding the disqualification of any applicant or permittee pursuant to these rules, the Secretary may issue or renew a permit if the applicant or permittee severs the interest of, or affiliation with, the person who would otherwise cause that disqualification.

3.14.p.1. Where the disqualifying individual is the owner of an equity interest or interest in the debt liability of the permittee or applicant, that person must completely divest himself of that interest. Where immediate sale of the interest would work an economic hardship on the individual, the permittee or applicant, at the Secretary's discretion, may allow for divestiture over a period of time not to exceed one (1) year.

3.14.p.2. Arrangements such as blind trusts will be acceptable only as part of divestiture arrangement under which the trustee is obliged to sell the disqualifying individual's interest within a period not to exceed two (2) years.

3.14.p.3. Before the Secretary will issue or renew a permit to an applicant or permittee that has severed a disqualifying individual, the applicant or permittee must submit to the Secretary an affidavit, sworn to by the chief executive officer, attesting to the severance of the disqualifying individual and describing the terms, circumstances, and conditions of that severance. Any instruments pertaining to that severance (such as a trust agreement) must be submitted with the affidavit.

3.14.q. Confidential Information. -- Any information received pursuant to subsection 3.14 of this rule must be kept confidential by the Department to the extent allowable by State law, including W. Va. Code § 29B-1-1 et seq.

3.14.r. Convicted Persons Generally. -- No permittee may knowingly hire as an officer or director any person who has been convicted of any of the offenses enumerated in W. Va. Code § 22-15-5(c) without first submitting a background investigation disclosure statement to and obtaining the approval of the Secretary. No permittee shall knowingly allow any person who has been convicted of any of the crimes enumerated in W. Va. Code § 22-15-5(c) to acquire an equity interest or debt liability interest without first submitting a background investigation disclosure statement to and obtaining the approval of the Secretary.

3.14.r.1. In connection with any such request, the permittee must file with the Secretary an amended background investigation disclosure statement containing the necessary information about the person, including any evidence the permittee wishes to bring forth demonstrating the person's rehabilitation.

3.14.r.2. The Secretary may consider whether the person has affirmatively demonstrated rehabilitation and may consider the factors set forth in determining whether to grant permission to the permittee to employ the person or allow him or her to acquire an interest in the permit.

3.14.r.3. Any permittee that violates the provisions of subsection 3.14 of this rule may be subject to revocation of its permit, notwithstanding the rehabilitation of the individual in question.

3.14.r.4. Mitigation and Restitution. -- In the case of persons convicted of violating the criminal provisions of any federal or state environmental statute, regulation or rule, or persons convicted of any crime that involved the violation of such statutes regulations or rules, the Secretary will not consider such person rehabilitated unless that person has made all reasonable efforts to clean up or mitigate any environmental damage caused by the activities for which he or she was convicted and to make restitution to any victims injured thereby.

3.15. Water Pollution Control Requirements. -- For the purposes of leachate collection and treatment for wastewater and associated facility discharges, the wastewater facility and all appurtenances thereto must meet the permit requirements for such treatment as set out in W. Va. Code §§ 22-1-1 et seq., 22-11-1 et seq., 22-12-1 et seq., and 22-15-1 et seq. and any rules promulgated thereunder. For the purposes of this subsection only, the requirements of 47CSR2 are hereby incorporated by reference. For landfills, a single permit must be issued pursuant to subdivision 3.5.b of this rule.

3.16. Specific Application and Permitting Requirements.

3.16.a. Requirements for Landfills. -- The applicant must submit all information required by this rule, as applicable, in order for an application to constitute an administratively complete application.

3.16.b. Requirements for Incinerators.

3.16.b.1. General Requirements. -- The applicant must submit the following information to the Secretary in order to obtain a permit for a resource recovery, industrial or municipal solid waste incinerator facility: Provided, That the installation, establishment or construction of a new municipal or commercial solid waste facility utilizing incineration technology for the purpose of solid waste incineration is prohibited, per W. Va. Code § 22-15-19, with the single exception of pilot projects.

3.16.b.1.A. All information required under subdivisions 3.7.a through 3.7.l, paragraph 3.7.m.1 and subdivisions 3.7.o, 3.7.p, and 3.8.i, subsection 3.9, paragraphs 3.10.a.8 and 3.10.a.9, and subsections 3.13, 3.14, and 3.15 of this rule;

3.16.b.1.B. Detailed drawings of waste storage areas and cleanup areas showing drainage schemes;

3.16.b.1.C. Recordkeeping procedures;

3.16.b.1.D. A waste management plan describing the handling and storage of the incoming waste and the disposition of the ash and other wastes, alternative disposal options, screening procedures, and handling options for screened waste, and cleanup procedures;

3.16.b.1.E. Dust control procedures;

3.16.b.1.F. A waste characterization plan;

3.16.b.1.G. A contingency plan indicating firefighting equipment, communication procedures with community agencies, and arrangements for emergency assistance; and

3.16.b.1.H. A start-up schedule.

3.16.b.2. Required Permits. At a minimum, two (2) permits will be required for incinerator facilities:

3.16.b.2.A. A permit from the West Virginia Department of Environmental Protection, Division of Air Quality; and

3.16.b.2.B. A solid waste permit for solid waste storage areas and support facilities from the West Virginia Department of Environmental Protection, Division of Water and Waste Management.

3.16.b.3. Exemptions.

3.16.b.3.A. Except for those facilities handling special wastes as provided in subsection 4.13 of this rule, incinerators having a design capacity of five hundred (500) pounds per hour or less are exempt from the permitting requirements of subdivision 3.16.b of this rule. However, such an incinerator must be designed and operated to meet the performance standards of subsection 5.1 of this rule and all applicable rules of the West Virginia Division of Air Quality.

3.16.b.3.B. Incinerators burning only clean wood waste are exempt from all permitting requirements of subdivision 3.16.b of this rule. However, such incinerators must be designed and operated to meet the performance standards of subsection 5.1 of this rule and with all appropriate regulations or rules of the West Virginia Division of Air Quality.

3.16.c. Requirements for Transfer Stations.

3.16.c.1. General Requirements. -- The applicant must submit the following information to the Secretary in order to obtain a permit for a transfer station:

3.16.c.1.A. All information required under subdivisions 3.7.a through 3.7.l, 3.7.o, 3.7.p, 3.8.a, and 3.8.i, and subsections 3.9, 3.13, 3.14, and 3.15 of this rule;

3.16.c.1.B. A description of the solid waste storage or loading areas;

3.16.c.1.C. A description of the areas of land for which a bond will be posted;

3.16.c.1.D. The location and use of buildings and related facilities that will be used in the operation; and

3.16.c.1.E. The location of scales and weigh stations to be used in the operation.

3.16.c.2. Operations Plan. -- An application to conduct transfer station activities must include an operations plan that includes the following:

3.16.c.2.A. A narrative description of the general operating plan for the proposed facility including:

3.16.c.2.A.1. The source, composition, and weight or volume of solid waste that is proposed to be received at the facility;

3.16.c.2.A.2. The proposed operating and receiving hours for the facility;

3.16.c.2.A.3. The process to be used at the facility;

3.16.c.2.A.4. The daily operational methodology of the proposed process;

3.16.c.2.A.5. The loading rate;

3.16.c.2.A.6. The proposed capacity of the facility; and

3.16.c.2.A.7. The expected life of the facility.

3.16.c.2.B. A plan for an alternative waste handling or disposal system during periods when the proposed facility is not in operation, including procedures to be followed in case of equipment breakdown (e.g., the use of standby equipment, extension of operating hours, and contractual agreements for diversion of municipal waste to other facilities); and

3.16.c.2.C. A plan for training equipment operators and other personnel in the design and operation of the facility.

3.16.c.3. Plan for Access Roads. -- An application to conduct transfer station activities must contain designs, cross-sections, and specifications for access roads, including load limits, in accordance with subdivision 4.5.c of this rule.

3.16.c.4. Stormwater, Soil Erosion, and Sedimentation Control Plan. -- An application to conduct transfer station activities must include a plan to manage surface storm water soil erosion and sedimentation control during the various phases of construction and operation on the permit area. Calculations indicating water quantities must be based on the twenty-five (25)-year, twenty-four (24)-hour storm event. The plan must include fully dimensioned diversion ditches and indicate length, gradient, and cross-section for configuration by reach and capacities for ditch volume by reach. Calculations that are necessary to support design and siting must be included in the plan.

3.16.c.5. Groundwater Monitoring Plan. -- If required by the Secretary, the applicant must submit a groundwater monitoring plan to detect contamination, degradation or pollution of groundwater from the facility.

3.16.c.6. Soil Monitoring Plan. -- If required by the Secretary, the applicant must submit a soil monitoring plan capable of detecting soil contamination from the facility.

3.16.c.7. Nuisance Control Plan. -- An application to conduct transfer station activities must contain a plan to prevent hazards or nuisances from vectors, odors, noise, dust, and other nuisances not otherwise provided for in the permit application. The plan must provide for the routine assessment of vector infestation and must also provide for counter measures. The plan may include a control program involving a contractual arrangement for services with an exterminator.

3.16.c.8. Litter Control Plan. -- An application to conduct transfer station activities must contain a plan to control litter.

3.16.c.9. Contingency Plan. -- An application to conduct transfer station activities must contain a contingency plan relating to emergency procedures, hazard prevention, emergency equipment, and the implementation of the contingency plan.

3.16.d. Requirements for Recycling Facilities.

3.16.d.1. Applicability. -- Recycling facilities whose only function is to accept at no charge, buy or transfer source separated recyclable material for reuse, resale or transfer for further processing are exempt from this rule. All other recycling facilities must provide notice and obtain a permit in accordance with the provisions of subdivision 3.16.d of this rule. 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 § 22-15-2, "Recycling facility."

3.16.d.1.A. Recycling facilities existing on May 1, 1990 are considered to have a valid permit from the Department if the requirements of paragraph 3.16.d.2 of this rule are met.

3.16.d.1.B. Recycling facilities that are developed after May 1, 1990 are considered to have a valid permit from the Department upon fulfilling the requirements of paragraphs 3.16.d.2 and 3.16.d.3 of this rule.

3.16.d.2. Notification of Activity.

3.16.d.2.A. Existing Qualifying Recycling Facilities. -- Any existing recycling facility that qualifies for a permit under paragraph 3.16.d.1 of this rule must notify the Secretary of its existence.

3.16.d.2.B. New Qualifying Recycling Facilities. -- Any new recycling facility that qualifies for a permit under paragraph 3.16.d.1 of this rule must notify the Secretary of its existence prior to installation, establishment, construction, modification or operation of the recycling facility.

3.16.d.2.C. Form of Notification. -- Notification required by paragraph 3.16.d.2 of this rule must be made to the Secretary on forms and in the manner prescribed by the Secretary.

3.16.d.3. Recycling Facility Requirements. -- Except as provided under paragraph 3.16.d.4 of this rule, all persons owning or operating a recycling facility must:

3.16.d.3.A. Comply with the applicable prohibitions and location standards listed under subsections 3.1 and 3.2 of this rule;

3.16.d.3.B. Provide rapidly growing trees, shrubbery, fencing, berms or other appropriate means at the facility to provide a wind break, screening from the surrounding area, and to function as a barrier to discourage unauthorized access;

3.16.d.3.C. Post a sign in conformance with subparagraph 4.6.a.1.M of this rule;

3.16.d.3.D. Construct and maintain adequate shelter and sanitary facilities for all personnel;

3.16.d.3.E. Construct and maintain adequate drainage systems to prevent freestanding storm water;

3.16.d.3.F. Ensure that all leachate, waste water, and storm water is collected, treated, and/or discharged in a manner that does not violate the water quality standards established under W. Va. Code § 22-11-1 et seq. or the regulations and rules promulgated thereunder;

3.16.d.3.G. All operations must be conducted within enclosed structure(s);

3.16.d.3.H. Receiving or storing of any hazardous waste material at a recycling facility is strictly prohibited;

3.16.d.3.I. Storage of recyclable materials outside of the enclosed structure must only be materials in bundles, bins or containers, or materials prepared for transportation;

3.16.d.3.J. All materials not used in the recycling process must be properly disposed of;

3.16.d.3.K. No material may be stored for more than sixty (60) days without written approval by the Secretary;

3.16.d.3.L. All materials received by the facility must be accurately weighed or otherwise measured in accordance with the provisions of the West Virginia Tax Department's Solid Waste Assessment Fee rule, 110CSR6A subsections 4.2 and 4.3.

3.16.d.4. Other Recycling Exemptions. -- The following recycling activities are not required to obtain a solid waste permit pursuant to this rule:

3.16.d.4.A. Nonprofit organizations accepting source-separated materials; and

3.16.d.4.B. Returnable container redemption centers operated by a dealer or distributor.

3.16.d.5. Resource Recovery Permitting Requirements. (Reserved)

3.16.d.6. Other Recycling Requirements. (Reserved)

3.16.e. Permitting Requirements for Class D-1 and Class D Landfills.

3.16.e.1. General Requirements. -- All Class D-1 and Class D landfills must apply for and receive approval from the Secretary prior to operation unless otherwise specified by subdivision 3.16.e. Notwithstanding the provisions of subdivision 3.16.e, a Class D-1 solid waste facility is required to meet all applicable landfill requirements specified by this rule.

3.16.e.2. Exemptions.

3.16.e.2.A. Land Clearing Exemption. The disposal of trees, stumps, woodchips, and yard waste generated from land clearing, when generation and disposal occur on the same property and the disposal area is less than one-half acre, is exempt from the permitting requirements of this rule.

3.16.e.2.B. One-half Acre Exemption for Landowners. A landowner using construction/demolition waste material that, for the purpose of this paragraph, includes Category I Nonfriable Roofing, to improve the grade of the land if the area of that land does not exceed one-half acre, is exempt from the permitting requirements of this rule when generation and disposal occur on the same property; Provided, that the landowner does not fill natural wetlands, adheres to best management practices for construction, and maintains cover over the material. This exemption does not apply to multiple one-half acre sites on the same parcel of land.

3.16.e.2.C. One-Half Acre Exemption for Division of Highways Projects. The Division of Highways or its contractors working on highway construction that dispose of construction/demolition waste material that, for the purpose of this paragraph, includes Category I Nonfriable Roofing, are exempt from the permitting requirements of this rule; Provided, that the disposal area does not exceed one-half acre, does not fill natural wetlands, adheres to best management practices for construction, maintains cover over the material, and the parties are obligated by contract to comply with all disposal provisions specified by the West Virginia Division of Highways Standard Specifications, Roads and Bridges, including supplemental specifications published by the Division of Highways (Standard Specifications), which Standard Specifications and supplemental Specifications are subject to the approval of the Secretary. This exemption does not apply to multiple one-half acre sites on the same parcel of land, or to disposal of material not generated by the highway project. Eligibility for this exemption requires the Division of Highways or its contractors to provide the Secretary with seven (7) days notice prior to disposal and a copy of the landowner agreement. Eligibility also requires proper management of the site by the Division of Highways.

3.16.e.2.D. Clean Bituminous (Asphaltic) Concrete, Portland Concrete, and Masonry Substances Exemption. The legitimate beneficial reuse of clean bituminous (asphaltic) concrete, Portland concrete, and other clean masonry substances for the purpose of fill, riprap, road surfacing or roadbase material is exempt from the permitting requirements of this rule; Provided, that any such fill will not be placed in natural wetlands, adheres to best management practices for construction, and maintains cover over the material; and Provided further, that bituminous (asphaltic) concrete may not be used for riprap material. For the purpose of this subparagraph, "clean" will be defined as uncontaminated bituminous (asphaltic) concrete, Portland concrete or masonry material that does not have protruding metal prior to its reuse. In cases where Portland concrete is used as riprap and that concrete contains metal, the Secretary will decide on a case-by-case basis whether this reuse is eligible for an exemption under this subparagraph.

3.16.e.3. Class D-1 Solid Waste Facilities. -- A Class D-1 solid waste/facility permit must be applied for the disposal of construction/demolition waste in cases where a noncommercial Class D solid waste facility general permit specified by paragraph 3.16.e.4 is not applicable.

3.16.e.3.A. Except as provided in parts 3.16.e.3.A.1 through 3.16.e.3.A.4, an applicant for a Class D-1 solid waste facility permit must meet all of the requirements in section 3 of this rule.

3.16.e.3.A.1. In lieu of the test corings required in subdivision 3.8.c, available literature and field reconnaissance may be used to obtain the information required in subdivision 3.8.c of this rule.

3.16.e.3.A.2. A minimum of one (1) downgradient monitoring well must be drilled to intersect the uppermost significant aquifer. If the permit area is between five (5) to ten (10) acres, a minimum of two (2) downgradient monitoring wells must be drilled. If the permit area is greater than ten (10) acres, a minimum of three (3) monitoring wells must be drilled.

3.16.e.3.A.3. Class D-1 solid waste facilities are exempted from the requirements of subparagraph 3.8.d.4.A and parts 3.8.c.1.C.4, and 3.8.c.1.C.9 of this rule.

3.16.e.3.A.4. Upon written request, the Secretary may exempt a Class D-1 solid waste facility from compliance with a specific requirement in section 3 of this rule that the Secretary deems to be inappropriate or may modify such requirement for that particular facility.

3.16.e.4. Class D General Permit.

3.16.e.4.A. Coverage. -- The Secretary may issue a general permit to regulate noncommercial construction/demolition solid waste facilities except those covered by individual Class D permits.

3.16.e.4.B. Administration. -- General permits may be modified, revoked, reissued or suspended in accordance with the applicable requirements of subsection 3.18 of this rule.

3.16.e.4.B.1. The Secretary may require any person authorized by a general permit to apply for an individual permit. Any interested person may petition the Secretary to take action under this part. Cases where an individual permit may be required include the following:

3.16.e.4.B.1.(a) The permittee is not in compliance with the conditions of the general permit;

3.16.e.4.B.1.(b) A change has occurred in the availability of the best management practices or demonstrated technology for the control or abatement of problems applicable to the facility;

3.16.e.4.B.1.(c) Specific regulations or rules are promulgated for solid waste facilities covered by the general permit.

3.16.e.4.B.2. The Secretary may require any owner or operator authorized by a general permit to apply for an individual permit as provided in part 3.16.e.4.B.1 of this rule, only if the owner or operator has been notified in writing that a permit application is required. This notice must include a brief statement of reasons for this decision, an application form, a statement setting a time for the owner or operator to file the application, and a statement that on the effective date of the individual permit, the general permit as it applies to the individual permittee will automatically terminate. The Secretary may grant additional time upon request of the applicant.

3.16.e.4.B.3. Any owner or operator authorized by a general permit may request to be excluded from the coverage of a general permit by applying for an individual permit. The owner or operator must submit an application under subsection 3.5, with reasons supporting the request, to the Secretary no later than ninety (90) days after the general permit notice, in accordance with subsection 3.21.

3.16.e.4.B.4. Upon issuance of a general permit, the Secretary will cause to be published a notice of issuance as a Class I legal advertisement in a qualified daily or weekly newspaper and by any other means reasonably calculated to give notice of issuance to the persons affected by it.

3.17. Draft Permit.

3.17.a. Once an application is complete, the Secretary must tentatively decide whether to prepare a draft permit or to deny the application.

3.17.a.1. If the Secretary tentatively decides to issue a general permit, he or she will prepare a draft general permit that will contain the following information:

3.17.a.1.A. All conditions under subsections 3.5 and 3.6 and subdivision 5.4.c of this rule;

3.17.a.1.B. Permit application requirements;

3.17.a.1.C. All compliance schedules;

3.17.a.1.D. All limitations, standards, prohibitions and conditions, and all variances that are to be included.

3.17.b. If the Secretary decides to prepare a draft permit, a draft permit must be prepared that contains the following information:

3.17.b.1. All conditions required under section 3 and other applicable sections of this rule.

3.17.b.2. All compliance schedules; and

3.17.b.3. Standards for treatment, storage, and disposal and other permit conditions under sections 4 and/or 5 of this rule.

3.17.c. A fact sheet will be prepared by the Secretary for every draft permit for each solid waste facility or activity and for every general permit. The fact sheet must briefly set forth the principal facts and the significant factual, legal, methodological, and policy questions considered in preparing the draft permit. The Secretary will send this fact sheet to the applicant and, upon request, to any other person.

3.17.d. The fact sheet must include, when applicable:

3.17.d.1. A brief description of the type of facility or activity that is the subject of the draft permit.

3.17.d.2. The type and quantity of wastes that are proposed to be or are being recycled, treated, stored, disposed of, injected, emitted or discharged. A description of the type of wastes must include, but not be limited to, the characteristics of the waste materials and the potential effects upon public health and the environment.

3.17.d.3. A brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions.

3.17.d.4. A rationale explaining why any requested variances or alternatives to required standards do or do not appear justified.

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

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

3.17.d.5.B. The procedures for requesting a hearing and the nature of that hearing; and

3.17.d.5.C. Any other procedures by which the public may participate in the final decision.

3.17.d.6. The name and telephone number of a person to contact for additional information.

3.18. Permit Modification, Reissuance, Suspension, Revocation and Termination.

3.18.a. Actions by the Secretary.

3.18.a.1. Permits may be modified, revoked, reissued, suspended or terminated by the Secretary for the reasons specified in subsection 3.18 of this rule.

3.18.a.1.A. When a permit is modified, only the conditions subject to modification are reopened. All other conditions of the permit will remain in effect for the duration of the permit.

3.18.a.1.B. The Secretary may require additional information and, in the case of a major modification, may require submission of a new permit application.

3.18.a.2. If the Secretary tentatively decides to modify a permit, the Secretary will prepare a modified draft permit and will follow the public notice procedures in subsection 3.21 of this rule. The Secretary may request additional information or require the submission of an updated permit application from the applicant.

3.18.b. Causes for Modification or Permittee-Requested Reissuance of Permits.

3.18.b.1. Minor Modification. -- Permits may be modified by the Secretary at any time except for major modifications as listed in paragraph 3.18.b.2 of this rule. Minor modification does not require the preparation of a draft permit or the completion of the public notice procedures.

3.18.b.1.A. A minor modification may be approved by the Secretary for a permittee proposing to increase the volume of solid waste accepted at the facility by an amount of ten percent (10%) or less upon application in alternate years, unless such an increase requires a change in the classification of the facility.

3.18.b.2. Major Modifications. -- The following are causes for major modification, but not reissuance, of a permit unless the permittee so requests or agrees. These causes require the preparation of a draft permit and public notice and the opportunity for a public hearing as required by this rule unless an emergency is declared by the Secretary.

3.18.b.2.A. The performance, efficiency, or longevity of the liner system or the final cover (cap) will be decreased;

3.18.b.2.B. The efficiency or performance of the leachate management system will be decreased;

3.18.b.2.C. The efficiency or performance of a gas management system will be decreased;

3.18.b.2.D. The efficiency or performance of the surface water control system will be decreased;

3.18.b.2.E. A decrease in the quality or quantity of data from any environmental monitoring system will occur;

3.18.b.2.F. The permitted disposal surface area boundary will be increased;

3.18.b.2.G. A remedial action to protect groundwater is necessary;

3.18.b.2.H. The permit is to be transferred to a new permittee; or

3.18.b.2.I. Other similar modifications as determined by the Secretary.

3.18.b.2.J. Definitions. -- For the purposes of this part:

3.18.b.2.J.1. "Similar Modification," means those modifications that have a significant potential impact upon the environment, human health and safety, and those parameters set out in W. Va. Code § 22-15-8. Similar modifications also include those modifications that have a significant potential impact upon the operation and management of a commercial solid waste facility.

3.18.b.2.J.2. "Significant potential impact," is defined as that which is adverse or substantial.

3.18.c. Permit Suspension, Termination or Revocation.

3.18.c.1. Suspension. -- A solid waste facility permit may be suspended by order of the Secretary for any of the following reasons:

3.18.c.1.A. Violation of the Act, this rule or any order of the Secretary issued thereunder;

3.18.c.1.B. Interference with a representative of the Secretary in the performance of the Secretary's duties;

3.18.c.1.C. Failure to adhere to the terms and conditions of the permit or any order issued by the Secretary under this rule or the Act; or

3.18.c.1.D. Discovery of failure in the application or during the permit issuance process to fully disclose all significant facts or the permittee's misrepresentation of any significant fact at any time.

3.18.c.2. Revocation. A solid waste facility permit may be revoked by order of the Secretary for any of the following reasons:

3.18.c.2.A. Any deficiency at the solid waste facility constituting an imminent pollution, health or safety hazard;

3.18.c.2.B. Persistent violation of this rule, permit terms and conditions, or orders issued by the Secretary under the Act or this rule;

3.18.c.2.C. Discovery of failure in the application or during the permit issuance process to fully disclose all significant facts or the permittee's misrepresentation of any significant fact at any time; or

3.18.c.2.D. Any cause that would require disqualification pursuant to this rule from receiving a permit upon original application.

3.18.c.3. Effect of Permit Suspension, Termination or Revocation.

3.18.c.3.A. Suspension. -- All solid waste processing, recycling or disposal activities and the receipt of any solid waste at the solid waste facility must cease immediately upon receipt of an order of suspension. Activities at the facility may recommence only after expiration of the order of suspension or upon revocation of that order by the issuing authority.

3.18.c.3.A.1. Should the Secretary deem that there are potentially significant health and/or environmental problems, an order of suspension may be issued and the bond may be seized and utilized for remediation purposes.

3.18.c.3.B. Revocation. -- All solid waste processing, recycling or disposal activities and the receipt of any solid waste at the solid waste facility must cease immediately upon receipt of an order of revocation. The solid waste facility owner must submit either an application for a permit to close the facility or an application for new solid waste facility permit within the time specified in the order of revocation.

3.18.c.3.C. Termination. -- After the effective date of this rule, a solid waste facility permit may be terminated by the Secretary for any of the following reasons:

3.18.c.3.C.1. Failure of the Permittee to initiate construction of the permitted facility within one hundred eighty (180) days of permit issuance; Provided, that a permittee notified by the Secretary of pending termination may request and be granted an extension of time to initiate construction by providing information that demonstrates that construction will be initiated within the remaining portion of the permit life; or

3.18.c.3.C.2. A written request by the permittee to terminate the permit because the permittee cannot, or opts not to, initiate construction or continue the operation of a permitted facility.

3.18.c.3.C.3. A permittee whose permit has been terminated by the Secretary prior to construction or operation may request that the full amount of the solid waste facility financial assurance be refunded.

3.18.c.3.C.4. The Secretary may terminate the permit without compensation to the permittee after the effective date of this rule, if a permittee has not begun construction within six (6) months of the issuance of a new solid waste facility permit or fails to make continual significant progress towards completion of construction,

3.18.c.3.D. Environmental Monitoring and Control. -- Environmental monitoring and control activities specified in an order of suspension or in an order of revocation must continue at the solid waste facility for the duration of such order or until the authority who issued that order approves the cessation of such activities.

3.19. Transfer of Permit.

3.19.a. Transfer Requirements. -- A permit issued by the Secretary in accordance with the provisions of this rule may be transferred to another person. The person seeking to succeed to the rights granted by the permit must:

3.19.a.1. File a completed application with the Secretary on forms and in a manner prescribed by the Secretary, including background investigation disclosure statements as required by subsection 3.14 of this rule;

3.19.a.2. Provide performance bond coverage at least equal to that of the original permit in accordance with subsection 3.13 of this rule. It must be affirmatively demonstrated to the Secretary that a bond in the full amount of that required for the permit will be kept in full force and effect before, during, and after the transfer of the permit rights;

3.19.a.3. Provide for public notice in accordance with subsection 3.21 of this rule; and

3.19.a.4. Obtain the Secretary's approval for the transfer of permit in writing.

3.19.b. Denial of Transfer. -- The Secretary may refuse to transfer any permit and require that a new application for a solid waste facility permit be submitted prior to any transfer of permit responsibility or rights. Such refusal must be made in writing giving reasons therefor.

3.19.c. Operator Assignment. -- A permittee who wishes to assign the operation of the solid waste facility to another party through an agreement, contract or other legal instrument, but retain the permit must request prior written approval on forms prescribed by the Secretary. Such permittee must complete background investigation disclosure statement(s) as required under subsection 3.14 of this rule.

3.20. Permit Renewal.

3.20.a. Application for Permit Renewal. -- An application for the renewal of a valid permit that proposes no major modification to the permit must be on forms prescribed by the Secretary and must contain the following:

3.20.a.1. The name and address of the permittee, location of the permit area including the county, and the permit number;

3.20.a.2. A statement that the terms and conditions of the permit are being satisfactorily met;

3.20.a.3. A statement that the operation is in compliance with the applicable environmental protection standards of the Act and all applicable rules and regulations;

3.20.a.4. A statement that the performance bond or other financial assurance for the operation will continue in effect;

3.20.a.5. A progress map of the same size and scale as the proposal map;

3.20.a.6. A certification that the information set forth in the form and progress map is true, accurate, and complete; and

3.20.a.7. A notarized signature of the principal officer of the permittee in accordance with subdivision 3.7.r of this rule.

3.20.b. Public Notice. -- An applicant seeking to renew a valid permit who does not propose any major modification to that permit must meet the public notice requirements of subsection 3.21 of this rule. The Department will receive comments only upon the contents of the application for renewal. A public hearing may be held at the discretion of the Secretary.

3.20.c. Modification and Renewal. -- If an application is received that proposes a major modification to the existing permit and the renewal of that permit, it will be treated as a major modification pursuant to paragraph 3.18.b.2 of this rule, in addition to the requirements of subsection 3.20 of this rule.

3.21. Public Notice.

3.21.a. Scope.

3.21.a.1. Public notice must be given whenever either of the following actions have occurred:

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

3.21.a.1.B. A hearing has been scheduled under subsection 3.23 of this rule.

3.21.b. Timing.

3.21.b.1. Public notice of the preparation of a draft permit must allow at least thirty (30) days for public comment. Upon request of the permittee, the public comment period will be extended for an additional thirty (30) days. Further extension of the comment period may be granted by the Secretary for good cause shown, but in no case may the further extension exceed an additional thirty (30) days.

3.21.b.2. Public notice of a public hearing must be given at least thirty (30) days before the hearing. Public notice of the hearing may be given at the same time as public notice of the draft permit and the two (2) notices may be combined.

3.21.b.3. A notice required under subsection 3.21 of this rule may be combined with that notice required under W. Va. Code § 22-11-8.

3.21.c. Methods. -- Public notice must be given by the following methods:

3.21.c.1. By mailing a copy of a notice to those persons whose names are included on a mailing list maintained by the Department.

3.21.c.2. By the Secretary publishing the public notice as a Class II legal advertisement in a qualified newspaper, as defined in W. Va. Code § 59-3-1(b), serving the county or counties where the facility will be located. The Secretary may also require that legal advertisement be placed in newspapers of adjacent counties. The cost of the publication will be borne by the applicant, who must send a certification of publication to the Department within twenty (20) days after publication.

3.21.c.3. Any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.

3.21.d. Contents.

3.21.d.1. Public Notice Contents. -- All public notices issued under subsection 3.21 of this rule must contain the following information:

3.21.d.1.A. The name and address of the Division processing the permit action for which notice is being given;

3.21.d.1.B. The name and address of the permittee or permit applicant, and if different, of the facility or activity regulated by the permit, except in the case of general permits;

3.21.d.1.C. A brief description of the business conducted at the facility or activity described in the permit application or in the draft permit when there is no application;

3.21.d.1.D. The name, address, and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit and the application;

3.21.d.1.E. A brief description of the comment procedures required by subdivision 3.21.b of this rule and the time and place of any hearing that will be held, including a statement of procedures to request a hearing (unless a hearing has already been scheduled) and other procedures by which the public may participate in the final permit decision;

3.21.d.1.F. A general description of the location of the proposed permit area including streams;

3.21.d.1.G. A clear and accurate location map. A map of a scale and detail found in the West Virginia General Highway Map will be the minimum standard for acceptance. The map size must be at a minimum two inches by two inches (2" x 2"). Longitude and latitude lines and a north arrow must be shown on the map, and such lines will cross at or near the center of the proposed permit area; and

3.21.d.1.H. A description of the activities covered in the application, including the class of the solid waste facility, the types, amounts, and sources of solid wastes to be handled, site improvements, and solid waste handling methods.

3.21.d.2. Other Public Notice Information. -- In addition to the contents required under paragraph 3.21.d.1 of this rule, public notices for hearings must contain the following information:

3.21.d.2.A. A reference to the date of previous public notices relating to the permit;

3.21.d.2.B. The date, time, and place of the hearing; and

3.21.d.2.C. A brief description of the nature and purpose of the hearing, including the applicable rules and procedures.

3.22. Public Comments and Requests for Public Hearings.

3.22.a. During the public comment period provided under subdivision 3.21.b of this rule, any interested person may submit written comments on the draft permit and may request a public hearing, if no public hearing has already been scheduled. A request for a public hearing must be in writing and must state the nature of the issues proposed to be raised in the hearing. All comments must be considered in making the final decision and must be answered as provided in subsection 3.27 of this rule.

3.23. Public Hearings.

3.23.a. The Secretary will hold a public hearing in the vicinity of the proposed facility whenever the Secretary finds, on the basis of requests, a significant degree of public interest on issues relevant to the draft permit. The Secretary also may hold a public hearing at his or her discretion whenever such a hearing might clarify one or more issues involved in the permit decision.

3.23.b. Any person may submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing will automatically be extended to ten (10) days after the close of any public hearings under subsection 3.23 of this rule.

3.23.c. A tape recording or written transcript of the hearing will be made available to the public, upon request.

3.24. Reopening of the Public Comment Period.

3.24.a. If any data, information, or arguments submitted during the public comment period raise substantial new questions concerning a permit or if, as a result of comments submitted by someone other than the permittee or if the Secretary determines to revise any condition of the permit that had been sent to initial public notice, the Secretary must take one or more of the following actions:

3.24.a.1. Prepare a new draft permit.

3.24.a.2. Reopen or extend the public comment period to give interested persons an opportunity to comment on the information or arguments submitted.

3.24.a.3. Conduct a public hearing.

3.24.b. Comments filed during the reopened comment period will be limited to the substantial new questions that caused its reopening. The public notice must define the scope of the reopening.

3.25. Public Participation File. -- The applicant for a permit for a solid waste facility, major modification, or closure must maintain a public participation file. The file must contain all written comments received during the public comment period, copies or tapes of transcripts of all meetings held by the applicant in response to any public comment, and a copy of the applicant's written response to all written comment letters received during the public comment period. These response letters must clearly address each point in each comment letter, including any actions taken by the applicant to address the comment. The response letters must be sent by certified mail and the signed return receipts must also be included in the public participation file. The complete public participation file must be submitted to the Secretary by the applicant within thirty (30) days of the end of the public comment period designed in the public notice. The Secretary must approve the public participation file prior to permit issuance.

3.26. Public Availability of Information. -- Public availability of information relating to facility permits must be governed by the provisions of W. Va. Code § 29B-1-1 et seq.

3.27. Issuance and Effective Date of Permit.

3.27.a. After the close of the public comment period on a draft permit, the Secretary must issue a final permit decision. The Secretary must provide written notification of the decision to the applicant and to each person requesting notice of the final permit decision. For the purposes of subsection 3.27 of this rule, a "final permit decision" means the final decision of the Secretary to issue, deny, modify, suspend, revoke, reissue or terminate a permit.

3.27.b. If the final permit decision is to deny, suspend, revoke, modify or terminate a permit, the Secretary must provide the reasons therefor in the Secretary's written notification to the applicant. This notification will also include reference to the procedures for appealing the final permit decision.

3.27.c. A final permit decision becomes effective not less than thirty (30) days after the date of notice of the decision, unless an earlier date is requested by the applicant and agreed upon by the Secretary.

3.28. Permit Review by the Secretary.

3.28.a. The Secretary may refuse to grant a permit in accordance with the provisions of W. Va. Code § 22-15-5(c). Written notification of such a refusal, and the reasons therefor, will be provided to the applicant.

3.28.b. Within thirty (30) days of receipt of a permit application, compliance schedule, closure plan or major modification application, the Secretary will determine whether such application, schedule or plan is complete (i.e., in proper order for technical review to commence) and will notify the applicant of the determination in writing. If the Secretary determines that such application, schedule or plan is not complete, the notification will advise the applicant of the deficiencies that require remedy.

3.29. Appeals. -- Appeal of permit decisions must be conducted in accordance with the provisions of W. Va. Code § 22-15-16.

W. Va. Code R. § 33-1-3