Garbage Disposal Fees: Judiciary subcommittee A met on Monday evening, December 14. Their mandatory disposal/collection bill has become two bills. The bill that I have been reporting on has had the exemptions from the Freedom of Information Act concerning customer lists removed, and the fee on garbage collection service bills has been changed from 1% for commercial, educational, governmental, and religious entities to a flat $3.00 per building for those entities. The 2% fee for residential customers is unchanged.

Due to the lack of consensus on mandatory collection/disposal, another bill has been drafted that addresses the usage sensitive rates and bulky goods provisions of the former bill, but does not contain any language pertaining to mandatory collection/disposal. This new bill, referred to as the "Residential Rates/Bulky Goods" bill, 1) contains a definition of bulky goods, 2) a requirement that all landfills and transfer stations accept bulky goods and tires, 3) a requirement that the Division of Environmental Protection (DEP) draft rules for the proper recycling of bulky goods, 4) retains the requirement that the Public Service Commission (PSC) phase in usage sensitive rates within four years, and also 5) retains the requirement that the PSC implement a plan for the collection of bulky goods.

Although it remains to be seen how the PSC would implement these mandates, usage sensitive rates are a more proactive approach to stemming "theft of service" from haulers, increasing collection service participation, and stimulating recycling than the draconian mandatory-flat-rate-on-your-taxes-or-lose-your-house-approach. There is also considerably less bureaucracy, fee hikes, and paperwork involved.

Both bills were laid over until the January interims, when the committee will have to decide which, if either, of these bills to recommend for passage by the Legislature.

Fees on Waste Tires: A second draft of the tire bill was presented. The language declaring that waste tires are not solid waste was removed because the PSC can only regulate tire haulers if waste tires are waste. Instead, waste tires were exempted from the assessment fees applied to solid waste. The fee on tires was capped at $2.00 for tires under 30 inches diameter and $5.00 for tires over 30 inches diameter, the license fees were reduced, and the allocations of the money generated by the fees was changed somewhat.

Delegate Faircloth moved that the fees on tires sold be removed from tires on new vehicles (cars, ATVs, motorcycles, etc.), claiming that such a fee would make West Virginia car dealers less competitive with those in other states. Senator Hunter opposed the motion, saying that people buying new cars were in a better position to pay the fee, and that the removal of tires on new cars would shrink the revenue stream which funds the program. Delegate Faircloth’s motion passed.

Senator Ross moved that all fees be removed from the bill, invoking the ability of the free market system to solve all problems. During the following discussion, co-chair Linch stated that the free market system would have moved in by now, if it was so effective. Delegate Linch also expressed concern that if there were no fees to fund tire pile cleanups, then programs such as the Landfill Closure Assistance Program (LCAP) would continue to be raided to clean up tire piles. Senator Bowman mentioned fixing the LCAP language so that it could not be raided. Senator Ross withdrew the motion.

Senator Ross proposed that since Finance subcommittee E was drafting a tire bill, a joint committee of Judiciary A and Finance E meet to look at the two bills. The response was lukewarm, I would say. Delegate Mahan pointed out that the two committees, although both working on tires, seem to have different missions, with Finance E’s being the burning of tires, and Judiciary C’s being more of a comprehensive look. Co-chair Snyder thought that Senator Wooton, the full Judiciary Committee Chair, wanted a tire bill out of his committee. Co-chair Linch also noted the different missions of the two committees, adding that he didn’t know if citizens wanted to subsidize burning tires. Since the proposal for a joint committee was not a formal motion, the committee did not act on it. At this time, I don’t know what will become of the idea.

Representatives from Capitol Cement and Allegheny Power repeated their positions that a subsidy would be necessary to burn tires. Capitol Cement recommended a subsidy of between $75 to $100 per ton! (note that landfill tipping fees are just over $30/ton) The committee voted to lay the tire bill over until the January interims.

In Finance subcommittee E, a draft tire bill was presented. It is very preliminary, but the basic provisions are that the solid waste management board (SWMB) would be the lead agency. The local solid waste authorities (SWAs) would develop a tire management plan as part of their existing planning, and the SWMB would develop a master plan from those. A $3.00 per tire fee would fund the program, with up to 65% of it going in grants to local SWAs to implement their tire plans, which are pretty much mandated to be a system of tire collection centers. There would be a manifest system, but the SWMB would administer it and not the PSC. Waste tire processing sites are defined as not being solid waste facilities, and there is language stating that the burning of tire derived fuel is to be permitted in accordance with legislative rules, to be drafted by the Office of Air Quality. There is plenty of discretionary language that could allow for considerable redirection of those fees, and for pilot projects using tires as feedstock (including burning) to forego permits.

Co-chair Helmick questioned DEP and SWMB representatives concerning the uses of the $8.25 solid waste assessment fees. He concluded by stating that he was looking for a source of funding without a new fee. The pool of money from those fees has been decreasing along with landfill tonnage, and those funds have been repeatedly raided before; there is not much left for Senator Helmick’s purposes without further crippling some worthwhile programs, like the LCAP and recycling grants programs.

Burning tires: At the end of the meeting, I was given time to present information I had found concerning burning tires. At four pages long, plus attachments, it is a little long for this message. Basically I found that the pollutants referred to by EPA as "criteria pollutants" (carbon monoxide, nitrogen dioxide, sulfur dioxide, ozone, and particulate matter) tend to decrease when tire burning is compared to coal burning. What EPA calls "non-criteria pollutants" (189 hazardous air pollutants, including volatile organics, dioxins, and furans) tend to increase. The criteria pollutants affect atmospheric pollution and aggravate respiratory problems, especially in the case of particulates, but it is among the non-criteria pollutants that one finds the carcinogens, the teratogens (cause birth defects), the mutagens, and the chemicals that cause reproductive system damage.

Usually when people say that tires burn cleaner than coal, they are referring to test results involving the criteria pollutants. There is a tendency to skew stack test data in favor of burning tires; indeed, many tests do not even test for the "non-criteria" pollutants.

I went to the Office of Air Quality (OAQ) to look at the test burn results for the three facilities offering to burn tires, and found that OAQ had data for only one test, the 1995 Willow Island test burn. They tested for carbon monoxide, nitrous oxide, sulfur dioxide, particulates, TNCHC, oxygen, and carbon dioxide. Non criteria pollutants that have been shown to increase with the addition of tires, such as zinc, lead, chromium, dioxins and furans, were not tested for. Even so, an OAQ statistical analysis shows that emissions will increase by over five tons per year, which would require a permit modification.

I will post my presentation on the West Virginia Environmental Council’s website.

[ www.wvecouncil.org ] If you don’t have access to the web, and would like a copy, please contact me.

Blasting. Government Organization subcommittee C was presented with a draft blasting bill. The bill creates an office of explosives and blasting which will regulate all blasting relating to coal and noncoal surface mining and reclamation. The new office is also to establish a procedure for mediation of blasting complaints.

In its current form, the bill does not give the agency specific instructions to implement many of the changes that blasting victims requested. Instead, it authorizes the DEP to implement them, if it chooses to, during rule making.

One big problem with that approach is that the law, at º22-1-3a, only allows the DEP to be more stringent than federal regulations if the director: provides specific written reasons demonstrating why the provisions are necessary; or relies upon stated legislative findings, policies or purposes.

Several of the provisions that blasting victims have asked for are more stringent than federal regulations. If the committee, in the body of the bill, does not give stated findings, policies, or purposes directing the agency to implement the changes requested during the interim process, then it may appear that the committee has acted upon the problem by passing a bill, but in reality the problem will have been passed on to the agency to handle at the director’s discretion.

Between now and the January interims (Jan. 10-12), members of the subcommittee should be asked to amend the bill to direct the agency to implement the changes we have asked for, such as moving mines back to 1,000 feet from homes, reducing ground vibration from blasting to one half inch per second, requiring site specific blasting plans for blasts within two thousand feet of homes, reducing the air blast limit to 110 decibels, and creating a presumptive liability for damage within one mile of blasting.

If you want copies of any of these bills, they can be obtained from the committees, or from me. I have prepared abstracts of these bills as well. If you want copies of them, or have questions or comments, please contact me. 655-8651; tdegen@wvwise.org or tdegen@wnpb.wvnet.edu