W. Va. Code R. § 33-20-11

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

Section 33-20-11 - The Hazardous Waste Permit Program and Standardized Permit

11.1. 40 C.F.R. Part 270. - The provisions of 40 C.F.R. Part 270, 40 C.F.R. Part 267, and 40 C.F.R. Part 124, Subpart G are hereby adopted and incorporated by reference with the modifications, exceptions, and additions set forth in this section.

11.2.40 C.F.R. § 270.2 Definitions.

11.2.1. Definition of "RCRA permit". - For purposes of this section, the term "RCRA permit" means "West Virginia Hazardous Waste Management Permit". The following additional requirements will apply to obtain a Hazardous Waste Management Permit in West Virginia. All references in 40 C.F.R. Part 270 and 40 C.F.R. Part 267 to 40 C.F.R. Part 124 will be deemed to be references to the applicable provisions of subsections 11.4 through 11.17 of this rule. To the extent of any inconsistency with 40 C.F.R. Part 270 and 40 C.F.R. Part 267, the specific provisions contained herein will control.

11.3. Application Fees.

11.3.1. Any person who applies for a permit for the construction or operation of a hazardous waste management facility, or both, shall submit as part of the application a money order or cashier's check payable to "The Hazardous Waste Management Fund." Persons required to obtain a permit-by-rule pursuant to this rule are not required to pay a permit application fee.

11.3.2. The fee will be determined by the schedule set forth in Table 1. If the cumulative total of application fees imposed under this section equals or exceeds $50,000 then the person required to pay the fees may, at the person's option, elect to submit the fee payments in installments over a three-year period. The installments submitted to the Department of Environmental Protection may not be less frequent than annually, and the amount submitted annually may not be less than 1/3 of the total amount due.

11.3.3. The fee for permit renewal is the same as for an initial permit.

11.4. Pre-application Public Meeting and Notice.

11.4.1. Applicability. The requirements of this subsection will apply to West Virginia Hazardous Waste Management Part B permit applicants seeking initial permits for hazardous waste management units. The requirements of this section will also apply to West Virginia Hazardous Waste Management Part B permit applicants seeking renewal of permits for those units, when the renewal application is proposing a significant change in facility operations. For the purposes of this section, a "significant change" is any change that would qualify as a Class 3 permit modification (See,40 C.F.R. § 270.42 for a description of permit modifications). The requirements of this section shall also apply to hazardous waste management facilities for which facility owners or operators are seeking coverage under a RCRA standardized permit (See, 40 CFR Part 270, Subpart J), including renewal of a standardized permit for such units, where the renewal is proposing a significant change in facility operations, as defined at 40 CFR § 124.211(c). The requirements of this section do not apply to permit modifications under 40 C.F.R. § 270.42 or to applications that are submitted for the sole purpose of conducting post-closure activities or post-closure activities and corrective action at a facility.

11.4.2. Prior to the submission of a West Virginia Hazardous Waste Management Part B permit application for a facility, or to the submission of a written Notice of Intent to be covered by a RCRA standardized permit (See, 40 CFR Part 270, Subpart J), the applicant shall hold at least one meeting with the public in order to solicit questions from the community and inform the community of proposed hazardous waste management activities. The applicant shall post a sign-in sheet or otherwise provide a voluntary opportunity for attendees to provide their names and addresses.

11.4.3. The applicant shall submit a summary of the meeting, along with the list of attendees and their addresses developed under subdivision 11.4.2 and copies of any written comments or materials submitted at the meeting, to the Department as a part of the Part B application, in accordance with 40 C.F.R. § 270.14(b), or with the written Notice of Intent to be covered by a RCRA standardized permit (See, 40 CFR Part 270, Subpart J).

11.4.4. The applicant shall provide public notice of the pre-application meeting at least 30 days prior to the meeting. The applicant shall maintain, and provide to the Department upon request, documentation of the notice.

11.4.4.a. The applicant shall provide public notice in all of the following forms:

11.4.4.a.1. A newspaper advertisement. The applicant shall publish a notice, fulfilling the requirements in paragraph 11.4.4.b., in a newspaper of general circulation in the county or equivalent jurisdiction that hosts the proposed location of the facility. In addition, the Secretary shall instruct the applicant to publish the notice in newspapers of general circulation in adjacent counties or equivalent jurisdictions, where the Secretary determines that publication is necessary to inform the affected public. The notice shall be published as a display advertisement.

11.4.4.a.2. A visible and accessible sign. The applicant shall post a notice on a clearly marked sign at or near the facility, fulfilling the requirements in paragraph 11.4.4.b. If the applicant places the sign on the facility property, then the sign shall be large enough to be readable from the nearest point where the public would pass by the site.

11.4.4.a.3. A broadcast media announcement. The applicant shall broadcast a notice, fulfilling the requirements in paragraph 11.4.4.b., at least once on at least one local radio station or television station. The applicant may employ another medium with prior approval of the Secretary.

11.4.4.a.4. A notice to the permitting agency. The applicant shall send a copy of the newspaper notice to the Department and to the appropriate units of State and local government having jurisdiction over the area where the facility is or is proposed to be located and to each State agency having any authority under State law with respect to the construction or operation of the facility.

11.4.4.b. The notices required by paragraph 11.4.4.a shall include:

11.4.4.b.1. The date, time, and location of the meeting;

11.4.4.b.2. A brief description of the purpose of the meeting;

11.4.4.b.3. A brief description of the facility and proposed operations, including the address or a map (e.g., a sketched or copied street map) of the facility location;

11.4.4.b.4. A statement encouraging people to contact the facility at least 72 hours before the meeting if they need special access to participate in the meeting; and

11.4.4.b.5. The name, address, and telephone number of a contact person for the applicant.

11.5. Public Notice Requirements at the Application Stage.

11.5.1. Applicability. The requirements of this subsection apply to all West Virginia Hazardous Waste Management Part B permit applicants seeking initial permits for hazardous waste management units. The requirements of this section also apply to Hazardous Waste Management Part B permit applicants seeking renewal of permits for these units upon the expiration of the existing permit. The requirements of this section do not apply to hazardous waste units for which facility owners or operators are seeking coverage under a RCRA standardized permit (See, 40 CFR Part 270, Subpart J). The requirements of this section do not apply to permit modifications under 40 C.F.R. § 270.42 or permit applications submitted for the sole purpose of conducting post-closure activities or post-closure activities and corrective action at a facility.

11.5.2. Notification. The Secretary shall provide public notice as required in subdivision 11.5 when an applicant has submitted a Part B permit application. The Secretary shall provide public notice that a Part B permit application has been submitted to the Secretary and is available for review to:

11.5.2.a. The applicant;

11.5.2.b. All persons on a mailing list developed pursuant to part 11.11.4.a.4.; and

11.5.2.c. The appropriate units of State and local government having jurisdiction over the area where the facility is proposed to be located and to each State agency having any authority under State law with respect to the construction or operation of the facility.

11.5.2.d. Any person otherwise entitled to receive notice under subdivision 11.5.2 may waive the right to receive notice for any classes and categories of permits.

11.5.3. The Secretary shall publish the notice within a reasonable period of time after he or she receives the application. The notice shall include:

11.5.3.a. The name and telephone number of the applicant's contact person;

11.5.3.b. The name and telephone number of the Department's contact office and a mailing address to which information, opinions, and inquiries shall be directed throughout the permit review process;

11.5.3.c. An address to which people can write in order to be put on the facility mailing list;

11.5.3.d. The location where copies of the permit application and any supporting documents can be viewed and copied;

11.5.3.e. A brief description of the facility and proposed operations, including the address or a map (e.g., a sketched or copied street map) of the facility location on the front page of the notice; and

11.5.3.f. The date that the application was submitted.

11.5.4. Concurrent with the notice required under subdivision 11.5.2., the Secretary shall place the permit application and any supporting documents in a location accessible to the public in the vicinity of the facility or at the Department's office.

11.6. Information Repository.

11.6.1. Applicability. The requirements of this section apply to all applicants seeking West Virginia Hazardous Waste Management Permits for hazardous waste management units.

11.6.2. The Secretary shall assess the need, on a case-by-case basis, for an information repository. When assessing the need for an information repository, the Secretary shall consider a variety of factors, including the level of public interest, the type of facility, the presence of an existing repository, and the proximity to the nearest copy of the administrative record. If the Secretary determines, at any time after submittal of a permit application, that there is a need for a repository, then the Secretary shall notify the facility that it must establish and maintain an information repository.

11.6.3. The information repository shall contain all documents, reports, data, and information deemed necessary by the Secretary to fulfill the purposes for which the repository is established. The Secretary has the discretion to limit the contents of the repository.

11.6.4. The information repository shall be located and maintained at a site chosen by the facility. If the Secretary finds the site unsuitable for the purposes and persons for which it was established due to problems with the location, hours of availability, access or other relevant considerations, then the Secretary shall specify a more appropriate site.

11.6.5. The Secretary shall specify requirements for informing the public about the information repository. At a minimum, the Secretary shall require the facility to provide a written notice about the information repository to all individuals on the facility mailing list.

11.6.6. The facility's owner/operator is responsible for maintaining and updating the repository with appropriate information throughout a time period specified by the Secretary. The Secretary shall close the repository at his or her discretion, based on the factors listed in subdivision 11.6.2.

11.7. Application for a Permit.

11.7.1. Any person who requires a permit under this rule shall complete, sign, and submit to the Secretary an application for each permit required under this rule. Applications are not required for hazardous waste permits by rule pursuant to 40 C.F.R. § 270.60. The Secretary shall not begin processing a permit until the applicant has fully complied with the application requirements for that permit. Permit applications shall comply with the signature and certification requirements of 40 C.F.R. § 270.11.

11.7.2. The Secretary shall review for completeness every application. The Secretary shall review for completeness, within 30 days of receipt, each application submitted by a new hazardous waste management facility. The Secretary shall review for completeness, within 60 days of receipt, each application submitted by an existing hazardous waste management facility (both Part A and Part B of the application). Upon completing the review, the Secretary shall notify the applicant in writing whether the application is complete. If the application is incomplete, the Secretary shall list the information necessary to make the application complete. When the application is for an existing hazardous waste management facility, the Secretary shall specify in the notice of deficiency a date for submitting the necessary information. The Secretary shall notify the applicant that the application is complete upon receiving this information. After the application is completed, the Secretary shall request additional information from the applicant, but only when necessary to clarify, modify or supplement previously submitted material. Request for additional information shall not render an application incomplete.

11.7.3. If the applicant fails or refuses to correct deficiencies in the application, the Secretary shall deny the permit and take appropriate enforcement actions pursuant to W. Va. Code §§ 22-18-15, 22-18-16, and 22-18-17.

11.7.4. If the Secretary decides that a site visit is necessary for any reason in conjunction with the processing of an application, he or she shall notify the applicant and schedule a date for the site visit.

11.7.5. The effective date of an application is the date on which the Secretary notifies the applicant that the application is complete as provided for in subdivision 11.7.2 above.

11.7.6. For each application, the Secretary shall, no later than the effective date of the application, prepare and mail to the applicant a project decision schedule. The schedule shall specify target dates by which the Secretary intends to:

11.7.6.a. Prepare a draft permit;

11.7.6.b. Give public notice;

11.7.6.c. Complete the public comment period, including any public hearing; and

11.7.6.d. Issue a final permit.

11.8. Modification, Revocation and Reissuance, or Termination of Permits.

11.8.1. Permits shall be modified, revoked and reissued, or terminated either at the request of an interested person (including the permittee) or upon the Secretary's initiative. However, permits shall only be modified, revoked and reissued, or terminated for the reasons specified in 40 C.F.R. §§ 270.41 or 270.43. All requests shall be in writing and shall contain facts or reasons supporting the request.

11.8.2. If the Secretary decides the request is not justified, he or she shall send the requester a brief written response giving a reason for the decision. Denials of requests for modification, revocation and reissuance, or termination are not subject to public notice, comment or hearings. Denials by the Secretary may be appealed to the Environmental Quality Board in accordance with section 16 of this rule and W. Va. Code § 22-18-20.

11.8.2.a. If the Secretary initially decides to modify or revoke and reissue a permit under 40 C.F.R. §§ 270.41 (other than § 270.41(b)(3)) or 270.42 (c), he or she shall prepare a draft permit pursuant to subsection 11.9 below, incorporating the proposed changes. The Secretary may request additional information and, in the case of a modified permit, may require the submission of an updated application. In the case of a revoked and reissued permit, other than under 40 CFR § 270.41(b)(3), the Secretary shall require the submission of a new application. In the case of revoked or reissued permits under 40 CFR § 270.41(b)(3), the Secretary and the permittee shall comply with the appropriate requirements in 40 CFR Part 124, Subpart G for RCRA standardized permits.

11.8.2.b. In a permit modification under this section, only those conditions to be modified will be reopened when a new draft permit is prepared. When a permit is revoked and reissued under this section, the entire permit is reopened. During any revocation and reissuance proceeding, the permittee shall comply with all conditions of the existing permit until a new final permit is reissued.

11.8.2.c. "Classes 1 and 2 Modifications" as defined in 40 C.F.R. §§ 270.42 (a) and (b) are not subject to the requirements of this Section.

11.8.3. If the Secretary decides to terminate a permit under 40 C.F.R. § 270.43, he or she shall issue a Notice of Intent to Terminate. A Notice of Intent to Terminate is a type of draft permit that follows the same procedures as any draft permit prepared under subsection 11.9 below.

11.9. Draft Permits.

11.9.1. Once an application is complete, the Secretary shall decide whether to prepare a draft permit or to deny the application.

11.9.2. If the Secretary decides to deny the permit application, he or she shall issue a Notice of Intent to Deny. A Notice of Intent to Deny the permit application is a type of draft permit that follows the same procedures as any draft permit prepared under this section. If the Secretary's final decision is that the initial decision to deny the permit application was incorrect, he or she shall withdraw the Notice of Intent to Deny and proceed to prepare a draft permit.

11.9.3. If the Secretary decides to issue a draft permit, he or she shall prepare a draft permit that contains the following information:

11.9.3.a. All conditions under 40 C.F.R. §§ 270.30 and 270.32;

11.9.3.b. All compliance schedules under 40 C.F.R. § 270.33;

11.9.3.c. All monitoring requirements under 40 C.F.R. § 270.31; and,

11.9.3.d. Standards for treatment, storage, and disposal and other permit conditions under 40 C.F.R. § 270.30.

11.9.4. All draft permits prepared by the Secretary under this section shall be accompanied by a fact sheet and shall be based on the administrative record, publicly noticed, and made available for public comment.

11.10. Fact Sheet.

11.10.1. The Secretary shall prepare a fact sheet for every draft permit for a hazardous waste management facility that the Secretary finds is the subject of wide-spread public interest or raises major issues. The fact sheet will briefly set forth the principal facts and the significant factual, legal, and methodological and policy questions considered in preparing the draft permit. The Secretary shall send the fact sheet to the applicant and to anyone who requests it.

11.10.2. The fact sheet shall include when applicable:

11.10.2.a. A brief description of the type of facility or activity that is the subject of the draft permit;

11.10.2.b. The type and quantity of waste, fluids or pollutants that are proposed to be or are being treated, stored, disposed of, injected, emitted or discharged;

11.10.2.c. A brief summary of the basis for the draft permit conditions, including references to applicable statutory or regulatory provisions and appropriate supporting references to the administrative record;

11.10.2.d. Reasons why any requested variances or alternatives to required standards do or do not appear justified;

11.10.2.e. A description of the process for reaching a final decision on a draft permit including:

11.10.2.e.1. The beginning and the ending dates of the comment period and the address where comments will be received;

11.10.2.e.2. Procedures for requesting a hearing and the nature of that hearing; and

11.10.2.e.3. Any other procedures by which the public participates in the final decision.

11.10.2.f. Name and telephone number of a person to contact for additional information.

11.11. Public Notice of Permit Actions and Public Comment Period.

11.11.1. Scope. The Secretary shall give public notice if the following actions have occurred:

11.11.1.a. A draft permit has been prepared; and

11.11.1.b. A hearing has been scheduled.

11.11.2. No public notice is required when a request for permit modification, revocation and reissuance, or termination is denied under subsection 11.8 above. Written notice of that denial shall be given to the requester and to the permittee.

11.11.3. Timing. Public notice of the preparation of a draft permit (including a Notice of Intent to Deny a Permit Application) required under subdivision 11.11.1 will allow at least 45 days for public comment. Public notice of a public hearing shall be given at least 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 notices may be combined.)

11.11.4. The Secretary shall provide public notice of activities described in subdivision 11.11.1 by the following methods:

11.11.4.a. By mailing a copy of a notice to the following persons (any person otherwise entitled to receive notice under this paragraph may waive his or her rights to receive notice for any classes and categories of permits):

11.11.4.a.1. The applicant;

11.11.4.a.2. The West Virginia Division of Water and Waste Management and the Division of Air Quality, if those agencies are required to issue a RCRA permit, an underground injection control (UIC) permit, a prevention of significant deterioration (PSD) permit or other permit under the Clean Air Act, and W.Va. Code § 22-5-1, et seq., a National Pollutant Discharge Elimination System (NPDES) permit, or a sludge management permit for the same facility or activity;

11.11.4.a.3. Federal and State agencies with jurisdiction over fish, shellfish, and wildlife resources and over coastal zones management plans, the advisory council on historic preservation, and the State Historic Preservation Office, as applicable;

11.11.4.a.4. Persons on a mailing list developed by:

11.11.4.a.4.A. Including those who request in writing to be on the list;

11.11.4.a.4.B. Soliciting persons for "area lists" from participants in past permit proceedings in that area; and

11.11.4.a.4.C. Notifying the public of the opportunity to be put on the mailing list through periodic publication in the public press and in such publications as regional and State funded newsletters, environmental bulletins or state law journals. The Secretary may update the mailing lists from time to time by requesting written indications of continued interest from those listed. The Secretary may delete from the lists the name of any person who fails to respond to the request.

11.11.4.a.5. To any unit of local government having jurisdiction over the area where the facility is proposed to be located; and

11.11.4.a.6. To each State agency having any authority under State law with respect to the construction or operation of the facility.

11.11.4.b. By publishing a notice in a daily or weekly major local newspaper of general circulation and broadcast over local radio stations;

11.11.4.c. By any manner constituting legal notice to the public under State laws; and

11.11.4.d. By 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.

11.11.5. All public notices issued under this section shall contain the following minimum information:

11.11.5.a. Name and address of the office processing the permitting action for which notice is being given;

11.11.5.b. Name and address of the permittee or the permit applicant and, if different, of the facility or activity regulated by the permit;

11.11.5.c. A brief description of the business conducted at the facility or activity described in the permit application or the draft permit;

11.11.5.d. Name, address and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit, fact sheet, and the application;

11.11.5.e. A brief description of the comment procedures required by subsections 11.12 and 11.13 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 decision;

11.11.5.f. The location of the administrative record and the times that the record will be open for public inspection; and

11.11.5.g. Any additional information considered by the Secretary to be necessary or proper.

11.11.6. Public notices for hearings. In addition to the general public notice described in subdivision 11.11.5., the public notice of a hearing shall contain the following information:

11.11.6.a. Reference to the date of previous public notices relating to the permit;

11.11.6.b. Date, time, and place of the hearing; and

11.11.6.c. A brief description of the nature and purpose of the hearing, including the applicable rules and procedures.

11.11.7. In addition to the general public notice described in subdivision 11.11.5., the Secretary shall send to all persons identified in subparagraphs 11.11.4.a.1 through 11.11.4.a.6 a copy of the fact sheet, the permit application, and the draft permit, as applicable.

11.12. Public Comments and Requests for Public Hearings.

11.12.1. During the public comment period provided under subsection 11.11., any interested person may submit written comments on the draft permit and may request a public hearing, if a hearing has not already been scheduled.

11.12.2. A request for a public hearing shall be in writing and shall state the nature of the issues proposed to be raised in the hearing. The Secretary shall consider and respond to all relevant comments, as provided in subsection 11.16 below, in making the final decision.

11.13. Public Hearings.

11.13.1. The Secretary shall hold a public hearing whenever he or she finds, on the basis of requests, a significant degree of public interest in a draft permit.

11.13.2. The Secretary shall also hold a public hearing at his or her discretion, whenever, for instance, a hearing might clarify one or more issues involved in the permit decision.

11.13.3. The Secretary shall hold a public hearing whenever he or she receives written notice of opposition to a draft permit and a request for a hearing within 45 days of public notice under subdivision 11.11.3. Whenever possible, the Secretary shall schedule a hearing under this section at a location convenient to the nearest population center to the proposed facility.

11.13.4. The Secretary shall provide public notice of the hearing as specified in subsection 11.11.

11.13.5. Whenever a public hearing will be held, the Secretary shall designate a presiding officer for the hearing who will be responsible for its scheduling and orderly conduct.

11.13.6. Any person may submit oral or written statements and data concerning the draft permit. The Secretary may set reasonable limits upon the time allowed for oral statements and may require the submission of statements in writing. The public comment period under subsection 11.11 shall automatically be extended to the close of any public hearing under this section. The hearing officer may also extend the comment period by so stating at the hearing.

11.13.7. A tape recording or written transcript of the hearing shall be made available to the public.

11.14. Reopening of the Public Comment Period.

11.14.1. If any data, information, or arguments submitted during the public comment period appear to raise substantial new questions concerning a permit, the Secretary shall take one or more of the following actions:

11.14.1.a. Prepare a new draft permit, appropriately modified, under subsection 11.9.

11.14.1.b. Prepare a revised fact sheet under subsection 11.10 and reopen the comment period.

11.14.1.c. Reopen or extend the comment period under subsection 11.11 to give interested persons an opportunity to comment on the information or arguments submitted.

11.14.2. Comments filed during the reopened comment period shall be limited to the substantial new questions that caused its reopening. The public notice under subsection 11.11 shall define the scope of the reopening.

11.14.3. The Secretary shall issue public notice of any of the above actions in accordance with subsection 11.11. above.

11.15. Issuance and Effective Date of Permit.

11.15.1. After the close of the public comment period on a draft permit, the Secretary shall issue a final permit decision. The Secretary shall notify the applicant and each person who has submitted written comments or requested notice of the final permit decision. The notice shall include reference to the procedures for appealing a decision on the permit. For purposes of this section the final permit decision means a final decision to issue, deny, modify, revoke and reissue, or terminate a permit.

11.15.2. A final permit decision will become effective 30 days after the service of Notice of Decision unless:

11.15.2.a. A later effective date is specified in the decision; or

11.15.2.b. Review is requested or evidentiary hearing is requested; or

11.15.2.c. No comments requested change in the draft permit, in which case the permit will become effective immediately upon issuance.

11.16. Response to Comments.

11.16.1. At the time that any final permit decision is issued, the Secretary shall issue a response to comments. This response will:

11.16.1.a. Specify which provisions, if any, of the draft permit have been changed in the final permit decision and the reasons for the change; and

11.16.1.b. Briefly describe and respond to all comments on the draft permit or the permit application raised during the public comment period or during any hearing.

11.16.2. The response to comments shall be available to the public.

11.17. Administrative Record.

11.17.1. The provisions of a draft permit prepared under subsection 11.9 shall be based on the administrative records consisting of:

11.17.1.a. The application and any supporting data furnished by the applicant;

11.17.1.b. The draft permit or notice of intent to deny the application or to terminate the permit;

11.17.1.c. The fact sheet;

11.17.1.d. All documents cited in the fact sheet; and

11.17.1.e. Other documents contained in the supporting file for the draft permit.

11.17.2. The Secretary shall base final permit decisions on the administrative record consisting of:

11.17.2.a. Administrative record for the draft permit;

11.17.2.b. All comments received during the public comment period provided under subsection 11.11 (including any extension or reopening under subsection 11.14);

11.17.2.c. The tape or transcript of any hearing(s) held under subsection 11.13.;

11.17.2.d. Any written material submitted at the hearing;

11.17.2.e. The response to comments required by subsection 11.16 that identify and support any change made in the draft permit and any new material placed in the record under that subsection;

11.17.2.f. Other documents contained in the supporting file for the permit;

11.17.2.g. An addendum to the fact sheet if needed; and

11.17.2.h. The final permit.

11.17.3. The administrative record shall be complete on the date the final permit is issued.

11.17.4. Material readily available at the Department or published material that is generally available and that is included in the administrative record under subdivisions 11.17.1 and 11.17.2 need not be physically included with the rest of the record, as long as it is specifically referred to in the fact sheet or in the addendum to the fact sheet.

11.18. Public Access to Information.

11.18.1. Any records, reports, or information and any permit, permit applications, and related documentation within the Secretary's possession shall be available to the public for inspection and copying; provided that, upon a satisfactory showing to the Secretary that those records, reports, permit documentation or information or any part thereof would, if made public, divulge methods or processes or activities entitled to protection as trade secrets, the Secretary shall consider, treat, and protect those records as confidential.

11.18.2. It is the responsibility of the person claiming any information as confidential under the provisions of this subsection to clearly mark each page containing that information with the word "CONFIDENTIAL" and to submit an affidavit setting forth the reasons that the person believes that the information is entitled to protection.

11.18.3. The person claiming confidentiality shall submit any document that contains information for which claim of confidentiality is made in a sealed envelope marked "confidential" and addressed to the Secretary. The person claiming confidentiality shall submit the document in two separate parts. The first part shall contain all information that is not deemed by the person preparing the report as confidential and shall include appropriate cross-references to the second part, which contains data, words, phrases, paragraphs or pages and appropriate affidavits containing or relating to information that is claimed to be confidential.

11.18.4. No information shall be protected as confidential information by the Secretary unless it is submitted in accordance with the provisions of subdivision 11.18.3 above, and no information that is submitted in accordance with the provision of subdivision 11.18.3 shall be afforded protection as confidential information unless the Secretary finds that the protection is necessary to protect trade secrets. The person who submits information claimed to be confidential shall receive written notice from the Secretary as to whether the information has been accepted as confidential or not.

11.18.5. The Secretary shall mark with the term "accepted" all information that meets the tests of subdivision 11.18.4 and shall protect the same as confidential information. If the person fails to satisfactorily demonstrate to the Secretary that information in the form presented meets the criteria of subdivision 11.18.4., the Secretary shall mark the information "rejected" and promptly return it to the person who submitted the information. The Secretary shall retain a copy of the information for reference.

11.18.6. Nothing contained herein shall be construed to restrict the release of relevant confidential information during situations declared to be emergencies by the Secretary.

11.18.7. Nothing in subsection 11.18 shall be construed as limiting the disclosure of information by the Department to any officer, employee or authorized representative of State or federal government concerned with effectuating the purposes of this subsection.

11.18.8. Persons interested in obtaining information pursuant to this subsection shall submit a request in accordance with the Freedom of Information Act, W. Va. Code § 29B-1-1, et seq.

11.19.40 C.F.R. § 270.12. The provisions of 40 C.F.R. § 270.12 are excepted from incorporation by reference herein. Availability of information provided under this rule is controlled by the provision of W. Va. Code §§ 22-18-12, 29B-1-1, et seq., and subsection 11.18 of this rule.

11.20.40 C.F.R. § 270.24. The provisions of 40 C.F.R. § 270.24 are excepted from incorporation by reference herein. Consult the rules of the Division of Air Quality regarding emissions from process vents.

11.21.40 C.F.R. § 270.60(b). The provisions of 40 C.F.R. § 270.60(b) are hereby adopted and incorporated by reference. Consult the rules of the Division of Water and Waste Management regarding additional requirements for underground injection wells.

11.22.40 C.F.R. § 270.155. - The provisions of 40 C.F.R. § 270.155 relating to the administrative appeal of a decision to approve or deny a Remedial Action Plan (RAP) application are hereby modified for the purposes of this rule as follows: Any commenter on the draft RAP or notice of intent to deny or any participant in any public hearing(s) on the draft RAP may appeal the Secretary's decision to approve or deny the RAP application to the Environmental Quality Board pursuant to W. Va. Code § 22-18-20. Any person who did not file comments or did not participate in any public hearing(s) on the draft RAP may petition for administrative review only to the extent of the changes from the draft to the final RAP decision. Appeals of a RAP may be made to the same extent as for final permit decisions under section 11 of this rule. The Secretary shall give public notice of any grant of review of a RAP by the Environmental Quality Board through the same means used to provide notice under subsections 11.4 through 11.17 above.

W. Va. Code R. § 33-20-11