Judiciary subcommittee A was presented with a rough draft of a tire bill at the December interims. The draft tire bill exempts everybody handling waste tires from getting solid waste facility permits, except salvage yards, which must obtain them.

The Department of Highways (DOH) is given temporary authority to clean up waste tire piles, funded by a one dollar fee on new motor vehicle titles.

Tire processors and monofills are declared NOT to be solid waste facilities and the Division of Environmental Protection’s (DEP) authority to implement and enforce the tire program designed by Solid Waste Management Board (SWMB) has been removed, meaning the existing waste tire rule becomes defunct and there is no regulatory program for waste tire processors or monofills.

The bill requires the SWMB to design another tire program by July 1, 2001, but does not provide for any agency to implement that program through rule. This regulatory vacuum is filled by a tracking system administered by DEP.

The landfill ban on tires is relaxed in the case of DOH cleanups when there is no reasonable alternative available. Landfills must take tires from DOH cleanups for free, but it won’t count against their tonnage caps. Waste tires are exempt from assessment fees.

Tire retailers must accept a waste tire for each new tire sold, and may charge a fee for waste tires to cover costs of properly disposing of them. Tire buyers must provide a used tire for each tire purchased or sign a waiver stating that they are responsible for retained tires. The tire purchaser can return later with the waiver and the retained tires, and the retailer must accept them. The waiver is not required for winter/summer tire changes.

No person shall accumulate more than 100 waste tires without a license or permit from DEP.

The positive aspect of the bill is that a way has been crafted to clean up tire piles.

The problems I see are that salvage yards are singled out as the bad actors, which is silly. The waste management hierarchy gives preference to reduction, recycling, reuse, then landfilling. Salvage yards probably divert more used tires to reuse than any other entity handling waste tires. Yet they are required to get a solid waste facility permit while monofills are exempted from that requirement, and the landfill ban is relaxed.

By exempting everybody but salvage yards from solid waste facility status, all regulations concerning waste tire processors and monofills become defunct. Local control provisions such as solid waste authority siting approval, referendum, certificate of need, public notice and comment are all gone, and technical requirements concerning storage of tires, fire lanes, liner requirements, reporting procedures, bonding, etc. are all removed and replaced with a tracking system. The facilities only need keep their tracking documentation for three years, and there is no mechanism in place to address situations when the tracking system is abused.

The bill does nothing to create incentives to actually reduce, reuse, or recycle tires. By exempting waste tires from assessment fees, the pool of money for recycling grants is reduced, yet again. The only "market" created is to force landfills to accept waste tires for free, when no alternative is available. Since the bill does nothing to address alternatives, it is predictable that the alternatives will be few. With no regulatory requirements to hamper them, tire monofills may increase, but without a regulatory program, they may turn out to be nothing more than tire piles. Considering that waste tires are exempted from the assessment fees, they could be BIG tire piles.

The requirement that landfills accept tires from DOH cleanups raises the constitutional question of preferential treatment for local waste. After spending most of the 1998 session fixing just that problem, it is puzzling that we haven’t learned not to repeat that mistake.

The bill is admittedly a rough draft. In my opinion, it will take a lot of work to fix it.

The quarry bill keeps leaning more and more towards industry’s wants, and away from considerations of the environment or of neighboring citizens or businesses.

In the latest draft presented to Judiciary Subcommittee A on Tuesday, December 14, many things we have been requesting all along have not been included, plus several important provisions were weakened.

The groundwater monitoring that the DEP, the Highlands Conservancy, and the WV Environmental Council originally requested has turned into a study, with no actual sampling or testing required. This means that there will be no base-line data from which to determine damage to groundwater quality or quantity.

The exemption from the groundwater protection act is still there, and the rebuttable presumption that a quarry caused damage to a water supply, which was flawed already, was weakened even more.

This means there is no mechanism to determine whether a quarry damaged a water supply, leaving neighboring property owners unprotected from damage to their wells.

A buffer zone of 300 feet was created to protect residences, but only residences in existence at the time the quarry permit was issued.

The process for waiving the buffer requirements, which is not in current law, only considers whether the post quarrying land use will be enhanced by an alteration of the topography within the buffer zone. There is no requirement to consider potential adverse impacts on economic and community uses of adjoining properties.

The current provision for citizen suits is conspicuously absent from the new bill.

There is still no provision for noise abatement, and no new provisions have been added concerning dust abatement.

Public participation provisions are still unclear, especially for permit renewals and transfers. For new permits and major modifications, it is not clear whether hearings will be mandatory or upon request, and by whom and for what reasons.

The program is woefully underfunded. A fiscal note submitted by the DEP indicates the agency needs $518,510.60 to operate the program, yet revenues for fiscal year 1999 are listed as $15,819.75.

A 1996 survey of 39 states by the Interstate Mining Compact Commission reveals that West Virginia’s annual budget for its noncoal regulatory program was less than $50,000. A comparison with surrounding states shows: PA--$22 million (both coal and noncoal combined), OH--$2.3 million, MD--$284,662, VA--$1,500,000, KY--$331,752. While those states have more quarries than WV, it is questionable whether $50,000 can fund the basic requirements of a regulatory program of any size.

This same survey found that 90 percent of WV quarry operations are non-regulated or exempt. One big reason for this new quarry legislation is to remedy that situation, but the grandfathering provisions of this bill work against that purpose. Only new quarries will have to perform pre-blast surveys, only new quarries will be subject to local zoning ordinances, and when existing quarries must comply with the new reclamation requirements that is left up to them!

On the subject of pre-blast surveys, since existing quarries don’t have to conduct them, the draft bill allows homeowners to pay for their own pre-blast surveys, but there is no requirement to notify them of that right. If they don’t have them, they are unlikely to be reimbursed for damage to property or water supplies.

There are no requirements for reducing highwalls (cliffs created by quarrying) other than to provide positive drainage.

It is important that the legislation have the following components.

• That the act be generally protective of water resources, and specifically that it include a groundwater monitoring program that can generate sufficient data to determine the affects of quarrying on groundwater quality and quantity;

• A buffer zone that is a set distance from the property line so that future and existing residences are protected equally. Any waiver of the buffers zone should consider potential adverse impacts on economic and community uses of adjoining properties, and include the discretion to require a larger buffer zone;

• That the current provision that allowing citizens to sue the agency if it fails to enforce the act or its rules, be included in this legislation;

• Provisions for noise abatement, and stronger provisions for dust abatement.

• Requirements for highwall reduction; and

• Although this seems obvious, make it clear that any quarry law should apply to the entire quarry industry, not just to quarries that don’t yet exist. Let’s turn that 90 percent figure into one that refers to quarries that ARE regulated.

If you have any questions or comments, please contact me.

Tom Degen, PO Box 83, Chloe, WV 25235, 304-655-8651 (phone/fax)