W. Va. Code R. § 33-3-3

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

Section 33-3-3 - Yard Waste Composting and Permitting Requirements

3.1. Applicability.

3.1.a. This rule applies to all persons who handle or manage yard waste to produce compost and requires that:

3.1.a.1. Methods employed for yard waste composting must be consistent with section 4 of the Solid Waste Management Board's program for the AProper Handling of Yard Waste,@ dated May 1, 1993.

3.1.a.2. Yard wastes must not be combined with Asludge,@ as defined in 33CSR1 section 2 of the Solid Waste Management Rule, Apetroleum contaminated soil@ or other solid waste materials specified by the Secretary.

3.1.a.3. A yard waste composting facility may not be situated atop a partially or fully closed solid waste disposal area, unless approved by the Secretary in writing; An existing solid waste facility by minor permit modification may include yard waste composting operations.

3.1.b. Domestic Yard waste shall be disposed of in a manner consistent with one or any combination of the following options as provided for in W.Va. Code '20-11-8:

3.1.b.1. Disposal in a publicly or privately operated commercial or noncommercial composting facility or activity;

3.1.b.2. Disposal by composting on the property from which domestic yard waste is generated or on adjoining property or neighborhood property if consent is obtained from the owner of the adjoining or neighborhood property;

3.1.b.3. Disposal by open burning where such activity is not prohibited by the W. Va. Code, rules promulgated thereunder or municipal or county codes or ordinances.

3.1.c. Reasonable and Necessary Exceptions to Prohibition. Solid waste landfills may accept and dispose of domestic yard waste delivered to the facility by a municipality, solid waste hauler, resident or tenant when the Secretary determines that none of the options contained in subdivision 3.1.b are available.

3.2. Location Standards for Siting a Commercial Yard Waste Composting Facility.

3.2.a. The following location standards apply to commercial yard waste composting facilities, unless otherwise approved by the Secretary:

3.2.a.1. A yard waste composting facility shall be located in an area which has been authorized for composting facilities by the county and/or regional solid waste authority approved siting plan;

3.2.a.2. Yard waste composting facilities shall not be sited or constructed in areas subject to a one hundred year flood plain and no facility shall be closer than three hundred (300) feet to any regularly flowing stream, perennial stream, pond, lake, wetland or spring;

3.2.a.3. Yard waste composting facilities shall not be located in areas which are geologically unstable or where the site topography exceeds six (6) percent grade;

3.2.a.4. Acceptable sites must have sufficient area and terrain to allow for proper management of run-on, runoff and leachate;

3.2.a.5. A yard waste composting facility shall not be located within two thousand (2,000) feet of any health care facility, school, church, or similar type of institution. The Secretary may reduce this setback distance if the owner or operator can successfully demonstrate that a nuisance will not be created due to the operation of the facility;

3.2.a.6. A yard waste composting facility shall not be located within two hundred (200) feet of drinking water supply wells and occupied dwellings;

3.2.a.7. A yard waste composting facility shall not be located within fifty (50) feet of a federal or state highway right-of-way or within twenty-five (25) feet of a city street right-of-way;

3.2.a.8. The operational area of a yard waste composting facility shall not be located within one hundred (100) feet of an adjacent property owner's boundary line;

3.2.a.9. A yard waste composting facility shall not be located on land where runoff drains into a sinkhole;

3.2.a.10. A yard waste composting facility shall not be located on land that has a seasonal high groundwater table (based on soil maps) less than two (2) feet from the land surface;

3.2.a.11. A yard waste composting facility shall not be located on land that has less than twenty (20) inches of soil over bedrock or on an impervious pan; and

3.2.a.12. A yard waste composting facility shall not be located within ten thousand (10,000) feet to the closest point of any airport runway used or planned to be used by turbojet aircraft or within five thousand (5,000) feet to the closest point of any airport runway used only by piston type aircraft or within other areas where a substantial bird hazard to aircraft would be created.

3.3. Location Standards for Siting Non-Residential Composting Activities.

3.3.a. The following location standards apply to non-residential composting activities:

3.3.a.1. Non-residential composting activities shall not be sited or constructed in areas closer than one hundred (100) feet to any regularly flowing stream, perennial stream, pond, lake, wetland or spring;

3.3.a.2. Non-residential composting activities shall have sufficient area and terrain to allow for the proper management of run-on, runoff and leachate;

3.3.a.3. Non-residential composting activities shall not be located within one hundred (100) feet of an adjacent property owner's boundary line without obtaining prior written permission from the adjacent property owner;

3.3.a.4. Non-residential composting activities shall not be located within one hundred (100) feet of a sinkhole; and

3.3.a.5. Non-residential composting activities shall not exceed five (5) acres in size without written approval from the Secretary.

3.3.b. Compliance with any of the location standards for yard waste composting facilities or activities in this rule does not relieve the owner or operator from compliance with all other codes, ordinances or rules.

3.4. Design and Construction of Commercial Yard Waste Composting Facility.

3.4.a. A handling area and proper equip-ment shall be provided to segregate waste other than yard waste and non-compostable components in the yard waste and to store such components in properly constructed containers prior to their disposal at a permitted solid waste disposal facility.

3.4.b. If the yard waste composting facility is located in any area where the seasonal high water table (based on soil maps) lies within five (5) feet of the ground surface, the composting and handling areas shall be hard-surfaced in a manner acceptable to the Secretary and diked to prevent entry of run-on or escape of runoff and other liquids, and a sump with an adequately sized pump located at the low point of the hard-surface area shall be provided to convey liquids to a wastewater treatment, disposal or holding facility.

3.4.c. Accepted engineering practices shall be incorporated into the design of facilities located on sites with:

3.4.c.1. Springs, seeps, and other groundwater intrusions;

3.4.c.2. Gas, water, phone, sewage lines or other utilities under the active areas; or

3.4.c.3. Electrical transmission lines above or below the active areas; and

3.4.c.4. Additional design and construction considerations.

3.4.c.4.A. Areas used for mixing, curing, and storing of compost shall be graded to prevent run-on, collect runoff, and provided with a drainage system to route the collected runoff to a wastewater storage, treatment, or disposal facility.

3.4.c.4.B. A buffer zone with the minimum width of one hundred (100) feet shall be incorporated in the facility design between facility adjacent property boundaries and the operational areas of the facility.

3.4.c.4.C. Roads serving the unloading, handling, composting, and storage areas shall be of all-weather construction and the design features for each shall be shown on drawings submitted to the Department of Environmental Protection in the application.

3.4.c.4.D. The design of a commercial yard waste composting facility shall be signed and sealed by a W. Va. registered professional engineer.

3.5. Permits Required.

3.5.a. Applicability.

No person may establish, install, construct or operate the following:

3.5.a.1. A commercial yard waste composting facility without obtaining a solid waste facility permit from the Department of Environmental Protection, provided that first, the applicant fulfills the pre-siting requirements of subsection 3.4 of the West Virginia Solid Waste Management Rule, 33CSR1; or

3.5.a.2. A non-residential composting activity without the property owner/operator obtaining a registration number from the Department of Environmental Protection, Division of Waste Management, Solid Waste Management Section.

3.5.b. Exemptions.

Residential and non-residential composting activities are exempt from obtaining a commercial solid waste facility permit. However, the non-residential activity shall be located and operated in compliance with the location standards and the operational requirements as set forth in subsections 3.3 and 3.8 of this rule.

3.6. Permit Application Requirements.

3.6.a. The applicant for a permit to establish, install, construct, operate and close a commercial yard waste composting facility shall include in the permit application the following:

3.6.a.1. A copy of the Certificate of Convenience and Necessity (CON) obtained from the WV Public Service Commission;

3.6.a.2. A copy of the Certificate of Siting Approval;

3.6.a.3. The name, address, and location of the proposed facility;

3.6.a.4. The proposed operator's and owner's name, address, telephone number, ownership status, and status as a federal, state, private, public or other entity;

3.6.a.5. A copy of legal documents demonstrating that the applicant has legal right to enter and conduct commercial yard waste composting operations on the property including a copy of the deed description or lease agreement;

3.6.a.6. A safety program designed to prevent hazards and accidents at the proposed facility;

3.6.a.7. Proof of liability insurance to cover the operations of the proposed facility; and

3.6.a.8. A detailed description of the activities to be conducted by the applicant at the facility.

3.6.b. An engineering report for an application to obtain a permit to construct shall contain, at a minimum, the following:

3.6.b.1. A regional map, or maps, (of appropriate scale) that delineate the entire service area of the proposed facility (both existing and proposed); existing and proposed collection, processing, and disposal operations; the location of the closest population centers; and the transportation systems including highways, airports, railways and waterways;

3.6.b.2. A vicinity map (minimum scale of 1"=2000') that delineates the area within one mile of the facility boundaries, zoning and land uses, residences, surface waters, access roads, bridges, railroads, airports, historic sites, and other existing and proposed manmade or natural features relating to the project;

3.6.b.3. A site plan (minimum scale of 1"=200') with five foot contour intervals that delineates property boundaries, the location of existing and proposed soil boring, monitoring wells, buildings and appurtenances, fences, gates, roads, parking areas, drainage, culverts, storage facilities or areas, loading areas; existing and proposed elevation contours and direction of prevailing winds; and the location of residences, potable wells, surface water bodies, wetlands, and drainage swales located within the site and in the site plan area;

3.6.b.4. A detailed description of the operation of the facility including precautions or procedures for operation during heavy winds, thunderstorms, snowstorms, prolonged freezing conditions and an operational narrative describing the following:

3.6.b.4.A. Collection methods to be employed;

3.6.b.4.B. Methods to be utilized in constructing compost piles or windrows, including equipment;

3.6.b.4.C. Proposed dimensions of compost piles or windrow;

3.6.b.4.D. A source of supplemental water to maintain an optimal moisture content of compost piles or windrows;

3.6.b.4.E. Proposed turning frequency, including the method for determining that frequency;

3.6.b.4.F. Proposed duration of the composting process, including curing or storage time, and the term of compost distribution;

3.6.b.4.G. A distribution plan for the yard waste compost;

3.6.b.4.H. A residue disposal plan including the location of disposal site(s);

3.6.b.4.I. Provisions for emergency response; and

3.6.b.4.J. A public information and education program;

3.6.b.5. A schedule of operation, including the days and hours that the facility will be open, preparations before opening, and procedures followed after closing for the day;

3.6.b.6. Anticipated daily traffic flow to and from the facility;

3.6.b.7. A description of the ultimate use for the finished yard waste compost, method for removal from the site, and a plan for use or disposal of any yard waste compost that cannot be used in the expected manner due to poor quality or change in market conditions;

3.6.b.8. Identification of the personnel required to operate and maintain the facility and their job descriptions and responsibilities;

3.6.b.9. A detailed description of the origin, quality, quantity, and type of yard waste anticipated to be received at the proposed facility. The quantity of yard waste anticipated to be received shall be estimated in both cubic yards and tonnage, and the maximum amount of compost estimated to be produced daily, monthly and annually shall be stated;

3.6.b.10. Contingency plans detailing corrective (or remedial) action to be taken in the event of equipment breakdown; air pollution (odors); unacceptable waste delivered to the facility; groundwater contamination; spills; and undesirable conditions such as fires, dust, noise, vectors, lack of a market for the yard waste compost product and unusual traffic conditions;

3.6.b.11. The procedures for the development of an operations manual. The manual must contain general design information, detailed operational information and instructions including methods of monitoring for moisture, temperature, and other quality control measures during the composting process. In addition, the manual must outline the specific procedures to be used in monitoring, sampling and analyzing finished compost material, which must be acceptable to the Secretary, provided that, as a minimum the finished compost material shall be analyzed by an approved EPA method for the concentration levels of heavy metals prior to its use. If any heavy metal concentration level exceeds regulatory standards, the finished compost material must be disposed of in an approved landfill; and

3.6.b.12. A detailed description of the yard waste composting technology to be utilized at the proposed facility.

3.6.c. Six (6) copies of the application, including all supporting documents shall be submitted as follows: four (4) copies shall be filed with the Department of Environmental Protection, Division of Waste Management, Solid Waste Management Section, one (1) copy shall be submitted to the Solid Waste Management Board, and one copy shall be submitted to the county or regional solid waste authority for the area in which the proposed facility is to be located.

3.7. Permit Application Fees.

3.7.a. Each application filed for a commercial yard waste composting facility permit must be accompanied by a nonrefundable application fee made payable to the Department of Environmental Protection in the amount of five hundred (500) dollars.

3.7.b. The Department of Environmental Protection may require a fee of fifty (50) dollars or ten (10) percent of the application fee for any application refiled due to incompleteness.

3.8. Operational Requirements for Commercial Yard Waste Composting Facilities and Non-Residential Composting Activities.

3.8.a. The addition of any other solid waste including but not limited to hazardous, sludges, infectious, construction debris, demolition, industrial or other municipal solid waste to the yard waste is strictly prohibited.

3.8.b. Waste other than yard waste and non-compostable solid wastes shall be segregated from the compostable yard waste and promptly removed from the site for proper disposal at an approved facility. Segregated solid waste shall be removed from the facility at the end of each working day unless it is stored in containers specifically designed for storage of solid waste, provided that the material shall not remain at the facility more than thirty (30) days.

3.8.c. Screening and removal of non-compostable solid wastes from the windrows or compost piles shall occur after the composting process is completed.

3.8.d. Access to a yard waste composting facility is allowed only when an attendant is on duty.

3.8.e. Any nuisance created by a commercial yard waste composting facility or a non-residential composting activity which causes harm or injury to any person or the environment shall be abated or the composting facility or activity may be required by the Secretary to cease and desist operations.

3.8.f. Shrubs, brush, tree prunings or any other bulky, woody type materials shall be shredded, ground or otherwise reduced in size prior to being mixed with other yard wastes to be composted.

3.8.g. The operator of a yard waste composting facility shall implement, and enforce a safety program designed to prevent hazards and accidents.

3.8.h. Open burning is prohibited, except as provided by paragraph 3.1.b.3 of this rule.

3.8.i. Fugitive dust and mud deposits on main off-site roads and access roads shall be minimized at all times to limit nuisances and the operator must immediately abate any nuisances.

3.8.j. Leachate or other runoff from a compost facility shall not be permitted to drain or discharge into surface waters except when authorized under a West Virginia NPDES permit issued by the Department of Environmental Protection.

3.8.k. A one hundred (100) foot buffer zone shall be provided and maintained in a manner acceptable to the Secretary.

3.9. Other Acceptable Compostable Materials.

3.9.a. Other acceptable compostable materials may include, but are not limited to, coffee grounds, kitchen scraps, pet and human hair, shredded newspapers, lint and sweepings, wood ashes, fish and poultry carcasses/litter, and animal manures.

3.10. Incorporation by Reference.

3.10.a. The following subsections of the West Virginia Solid Waste Management, 47 CSR 38, Rule, 33CSR1 are hereby incorporated and implemented as a part of this yard waste composting rule and apply only to commercial yard waste composting facilities:

3.10.a.1. Subsection 3.4; "Pre-Siting Requirement for Commercial Solid Waste Facilities";

3.10.a.2. Subsection 3.13; "Bonding and Financial Assurance";

3.10.a.3. Subsection 3.17; "Draft Permit";

3.10.a.4. Subsection 3.18; "Permit Modification, Suspension and Revocation";

3.10.a.5. Subsection 3.19; "Transfer of permit";

3.10.a.6. Subsection 3.20; "Permit Renewal";

3.10.a.7. Subsection 3.21; "Public Notice";

3.10.a.8. Subsection 3.22; "Public Comments and Request for Public Hearings";

3.10.a.9. Subsection 3.23; "Public Hearings";

3.10.a.10. Subsection 3.24; "Reopening of the Public Comment Period";

3.10.a.11. Subsection 3.25; "Public Participation File";

3.10.a.12. Subsection 3.26; "Public Availability of Information";

3.10.a.13. Subsection 3.27; "Issuance and Effective Date of Permit";

3.10.a.14. Subsection 3.28; "Permit Review by the Secretary";

3.10.a.15. Subsection 3.29; "Appeals";

3.10.a.16. Subsection 4.5.5; "Quality Assurance and Quality Control" (applicable portions only);

3.10.a.17. Subsection 4.8; "Leachate Management"; and

3.10.a.18. Subsection 4.12; "Reporting.@

W. Va. Code R. § 33-3-3