Solid Waste Management Rule: WVDEP Responds to Comments on Proposed Revisions

Earlier this year, the West Virginia Department of Environmental Protection (WVDEP) proposed revisions to West Virginia’s Solid Waste Management Rule, 33 CSR 1. The proposed revisions include removing the requirement that Free Day tonnage count toward monthly/daily totals for landfills and defining the term pick-up truckload as the equivalent of 500 pounds. The definition of pick-up truckload is important because all solid waste facilities in West Virginia are required by W. Va. Code §22-15-7 (2009 Repl. Vol.), to provide one day a month when residential waste (up to one pick-up truck) may be disposed of free of charge. While Free Day discourages the improper, unlawful dumping of waste, it also results in lost revenue for the WVDEP and the county or regional Solid Waste Authorities (SWAs) because the tons are exempt from state and county assessment fees. The WVDEP recently responded to comments opposing the revisions by two of the fifty SWAs in West Virginia as well as comments supporting the revisions by the West Virginia Association of Waste Haulers & Recyclers and the West Virginia Landfill Managers Association. The WVDEP’s response to comments are important for owners and operators of commercial and municipal solid waste landfills and transfer stations, solid waste haulers and recyclers, and county and regional SWAs in West Virginia because they offer insight into the WVDEP’s interpretation of regulatory revisions that will likely be adopted by the West Virginia Legislature in 2010.  

Harrison County, which is the home of the Federal Bureau of Investigation Fingerprinting Center, is also the home of two landfills. The Harrison County SWA objected to the proposed regulatory language limiting a pick-up truckload to 500 pounds as contrary to legislative intent, citing the Legislature’s failure to pass S.B. 585 which attempted to make the same change to the statutory language. In addition, the Harrison County SWA explained that it had only one set of scales and expressed concerns pertaining to a backlog of vehicles onto the public highway and traffic safety issues on Free Day as well as increased illegal dumping. The WVDEP responded that the proposed change to limit a pick-up truckload to 500 pounds would not negatively affect the intent of Free Day, explaining that the intent behind defining a weight limit for the total amount of waste that could be brought to the landfill by one truck was to reduce or eliminate the occurrences of overloaded, overweight vehicles littering the highways and streets leading to the state’s landfills.  

The Berkeley County SWA also objected to the proposed definition to limit one pick-up truckload to 500 pounds. Relying upon data from the U.S. EPA that the average person generates 4.6 pounds of refuse per day, which works out to 552 pounds in 30 days for a family of four, the Berkeley County SWA contended that a weight limit would lead to illegal dumping or stock piling of waste in the back yard. In addition, the Berkeley County SWA expressed “fairness” concerns, stating that the Free Day was “close to being whittled down to no value”. In response, the WVDEP noted that the West Virginia State Plan estimates that a family of four generates 480 pounds of refuse in 30 days, and revised the definition of pick-up truckload or its equivalent to be no more than 516 pounds, the average of the U.S. EPA and West Virginia estimates and the equivalent of approximately 50 bags of trash per family of four per month.  

The Berkeley County SWA also objected to removing the requirement that Free Day tonnage count toward monthly/daily totals for landfills. It explained that the Berkeley County landfill is private and that the monthly and daily tonnage limits were “long-standing agreed upon concessions during the landfill’s initial siting”. The Berkeley County SWA expressed concern that the proposed revision would undermine its agreement as well as “place more tonnage into the facility, more traffic near the schools and more litter on the roads”.   The WVDEP acknowledged the negotiations involved in the siting of the Berkeley County landfill but concluded that the proposed change should not have a negative effect on its operations. The WVDEP reasoned that if Free Day tonnage were to count against a landfill’s monthly or daily total, a landfill could theoretically reach its limit before the end of the month, which would mean it could not accept any more waste that month. The WVDEP further reasoned that if the landfill could not accept waste, it would accumulate on curbs or in yards or garages, creating a greater chance that such waste would be illegally dumped or otherwise contribute to a public health risk.  

In contrast to the comments opposing the proposed revisions, the West Virginia Association of Waste Haulers & Recyclers supported the proposed revision of limiting one pick-up truckload or its equivalent to 500 pounds, finding that it provided clarity to the volume of waste permitted to be disposed of on Free Day, and agreed that the revision would help reduce litter from overloaded trucks. Like the West Virginia Association of Waste Haulers & Recyclers, the West Virginia Landfill Managers Association also supported the revision to limit Free Day disposal to 500 pounds per visit. The West Virginia Landfill Managers Association stated that the weight limit would reduce the unsafe storage of waste for long periods of time and “deter the practice of businesses or individuals charging for cleanup services, un-certificated hauling of trash from multiple households or businesses, and construction and demolition debris being disposed on ‘Free Day’.”  

Both the West Virginia Association of Waste Haulers & Recyclers and the West Virginia Landfill Managers Association supported the proposed revision that Free Day tonnage not count against the facility’s monthly or daily tonnage limit. They reasoned that the proposed revision would result in paying customers not being denied access to landfill space and would relieve the costs and burdens Free Day poses to rate-paying customers, the landfills, and the SWAs.  

In addition, the West Virginia Association of Waste Haulers & Recyclers suggested the rule be further revised to provide for designated areas at each landfill where Free Day customers could unload their vehicles without tying up traffic at the landfill face. The West Virginia Association of Waste Haulers & Recyclers also asked the WVDEP to require a prominent sign posted at each landfill to underscore the penalty for violating the mandatory disposal provisions of the West Virginia Code. The WVDEP declined to make these requested changes explaining that they were outside the scope of the proposed revisions, the purpose for the public notice, and the impetus for the revisions.   

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.