Local Solid Waste Authority (SWA) Planning and Notice Rules

 

In West Virginia, the implementation of solid waste rules and fees operates through a bifurcated system: environmental regulations are managed via the state's Administrative Procedures Act (APA), while commercial disposal fees and hauling rates are regulated as utility tariffs by the Public Service Commission (PSC).

Here is the comprehensive procedure for implementing rules, fee increases, and local solid waste plans:

1. Administrative Rulemaking Procedure (Environmental Rules)

Because solid waste regulations impose liabilities or grant operating benefits, they are classified as Legislative Rules and must undergo a strict five-step promulgation process under Chapter 29A:

• Step 1: Public Comment & Notice: The agency (such as the WVDEP or SWMB) must file a Notice of Public Comment Period in the West Virginia State Register. Notices must be filed electronically by 5:00 p.m. on Thursday to be published in Friday's edition. The comment period must remain open for a minimum of 30 days and a maximum of 60 days.
• Step 2: Response & Agency Approval: The agency must review all feedback, generate a formal response explaining why comments were or were not incorporated, and file a Notice of Agency Approval within 90 days of the comment period closing. To be considered for the next legislative session, this must be filed with the Legislative Rule-Making Review Committee (LRMRC) by the last Friday in July (or August on a four-year cycle).
• Step 3: Committee Modification: The LRMRC reviews the rule. If changes are recommended, the agency has 10 days to file a Notice of Rule Modification.
• Step 4: Legislative Authorization: The rule is placed into an omnibus bill during the legislative session and must be passed by both chambers and signed by the Governor.
• Step 5: Final Filing: The agency submits a clean copy of the authorized rule within 60 days of the bill’s effective date.

(Note: Agencies may bypass these steps to file an Emergency Rule only if immediate action is needed for public health/safety, though it expires in 31 to 91 days if standard procedures aren't subsequently followed.)

2. Implementing Fee and Rate Increases (PSC Jurisdiction)

Commercial solid waste facilities and haulers must have their rates approved by the PSC. They can implement fee changes through three primary pathways:

• Standard Rate Case: The carrier must provide 30 to 90 days' notice to the PSC and the public. If the increase affects more than 20 customers, the carrier must publish a Class II legal advertisement (published weekly for two successive weeks). The PSC can suspend the increase for up to 120 days to conduct hearings.
• Tipping Fee Pass-Through: If a landfill increases its tipping fees, waste haulers can pass this cost directly to customers via a Tariff Form No. 2 application. The hauler submits six months of disposal bills, and the PSC must rule on this expedited surcharge within 14 days.
• Indexed Rate Adjustment: Haulers can implement an annual rate increase based on the Urban Consumer Garbage Trash Collection Index without a formal rate case, provided the PSC approves the proposed public notice within five business days.

3. Local Solid Waste Authority (SWA) Planning and Notice Rules

When local SWAs draft or update their comprehensive litter and solid waste control plans (required every five years), they must adhere to specific public participation mandates:

• Document Repositories: Draft plans must be placed in the County Clerk's Office, all public/branch libraries in the county, and the regional planning council office.
• Class I Legal Advertisement: The SWA must publish a Class I legal advertisement in a local newspaper detailing the hearing date, location, and comment deadlines.
• Public Hearings: The SWA must hold at least two public hearings. The first hearing must be scheduled a minimum of 30 calendar days after the Class I ad is published.
• Written Comment Window: The written public comment period must remain open for at least 10 calendar days following the date of the public hearing.

If an SWA seeks to amend a Commercial Solid Waste Siting Plan or a new commercial facility is proposed, the applicant must publish a Class II legal advertisement and file a Pre-Siting Notice within five days. The WVDEP will then hold a local public hearing, automatically extending the standard 30-day public comment period by an additional 10 days following the hearing's conclusion.