At the October interims the discussion of the tire bill was mainly on where to get funding without imposing new fees. A possible source of money within the Division of Motor Vehicles had been mentioned earlier in the year, but research by counsel determined that it would probably be an unconstitutional use of that money to clean up tire piles. It was decided to seek an opinion from the Attorney General’s office on that question. The REAP program was mentioned as a possible source of funding, but the legislation for it was self limiting. Amending the REAP statute was discussed, but no resolution was reached. The possibility of using prisoners to clean up tire piles was discounted because tire piles are often not close to prisons and transportation and security would be costly. Suggestions concerning using regional jail inmates and welfare to work clients were offered, but they did not appear workable either. Although I feel like I am making headway on promoting the use of tires in products instead of burning, funding seems to be the major obstacle to a tire bill right now. A fee on tires seems the most logical way to fund the program. That way those who create the problem, the tire makers, sellers, and users are paying for it, but there doesn’t seem to be the will to override the industry’s objections.

The Legislative Rule Making Review Committee (LRMRC) took up the odor rule (45CSR4) that had been mandated by the legislature in response to grandfathering in the two Mascaro sludge operations in the 1998 solid waste bill. During the drafting and public comment period, the Office of Air Quality (OAQ) received several comments pointing out the inadequacy of the rule in addressing odor problems associated with large sewage sludge composting operations. Although the agency ignored those comments, several members of the LRMRC shared those concerns and the rule was laid over until December, so that the agency could consider those concerns. I will be meeting with representatives of the OAQ, the Attorney General’s office, and composting experts to try and craft language that will address the odor concerns of those living near sewage sludge composting facilities.

I have been asking around to see if there is support for a bottle bill. I have found one very interested party, but there are a surprising number of questions about bottle bills that get in the way, such as health concerns over re-using bottles, and the effect on areas that border states without bottle bills. I have not yet found a "model" bottle bill to offer, but am still looking. If you have any suggestions, please contact me.

The committee was presented with a second draft of a quarry bill. Some of the major changes from draft one are:

• Duration of permits increased from one year to five years;

• Pre-quarry analysis of quality and quantity of surface and groundwater required. This seemingly strong language is compromised by the lack of a requirement for follow-up testing, and language elsewhere in the bill (section 10) that says the director may require pre-quarry and periodic testing of water wells;

• Specific information required to be in the Class III advertisement notifying the public of a quarry permit application was replaced with "shall contain in abbreviated form the information required by/in/for the application;" This leaves it pretty much up to the applicant as to what goes in the ad.

• That a quarry may cause serious adverse impact to aquifers has been added to the reasons for which a permit may be denied;

• An operator whose permit has been revoked may get it reinstated by completing reclamation;

• The buffer zone now applies to residences, but may be waived by owner (not lessee or tenant);

The section on modifications was extensively rewritten:

An insignificant change or incidental boundary revision (which is not defined) is considered a de minimis modification and requires no public notice.

A minor modification is defined not by specific criteria, but by "would not cause a significant departure from the terms and conditions of the existing permit and will not result in a significant impact in any of the following areas: impact on the environment; public health, safety or welfare; post mining land use; or areas which would not be eligible for a permit under this article." Public notice is still required, but not a hearing.

A major modification is not a minor or de minimis modification and shall meet all requirements for a new permit. Modification of a buffer zone is a major modification.

The director may require revisions to a permit.

Permit transfers are to be treated as a modification if modifications are proposed by the transferee. Still no public notice or comment on transfers. A revoked permit can be transferred.

The exceptions for existing quarries, referred to as grandfathering, have been extensively rewritten:

Within two years, existing quarries will submit a plan which will bring the facility into compliance. This plan will include a schedule for compliance. While this language suggests that existing quarries will be required to gradually come into compliance, there is no set date for that compliance. In fact, it is left completely up to the operators as to when they will comply.

Quarry areas that are permitted, disturbed, and stabilized are exempt from the bill’s reclamation requirements.

Existing quarries do not have to conduct pre-blast surveys. The rationale for this was that it would be too much work for the quarry. The director may require them when major modifications are applied for.

Groundwater monitoring will not be required if there has been no demonstrable groundwater problems in the last five years. This is a huge loophole -- since there has been no monitoring required previously, there will be few demonstrable groundwater problems.

Grandfathering still applies to consolidated permits and renewals.

The quarrying and reclamation plan does not have to be prepared by a professional engineer or licensed land surveyor. The current law requires that such plans be prepared by a professional engineer or a person approved by the director. Dropping the requirement that the plan be prepared by a person approved by the director means that anybody could submit a quarrying and reclamation plan. Final slope gradients shall be certified by an engineer or other approved professional specialist, but approved professional specialist is not defined.

The time period for reclamation has been changed from two years to a requirement that the operator describe how reclamation will minimize total land disturbance and keep reclamation contemporaneous with the advance of the quarry. Although it is understandable for reclamation plans to be site-specific, there should be some kind of quantifiable requirement here, such as defining "contemporaneous."

A provision was added prohibiting the director from supervising or regulating a quarry providing water to a governmental entity, and releasing the quarry from liability for the water after it leaves the quarry.

The name of the Reclamation Assurance Fund was changed to the Bond Pooling Fund.

The director is given the right of entry to quarries.

Reclamation of an abandoned site is an acceptable substitute for the civil administrative penalty.

The director may reinstate a revoked permit if the circumstance causing the revocation has been abated and won’t reoccur.

Some changes still missing are:

• The right of citizens to sue the agency if the director fails to discharge his/her duty has not been carried over from the existing act;
• Public notice or hearing on transfers;
• A rebuttable presumption like the one in the oil and gas statute;

The exemption from the groundwater act is still in the bill;

There is no requirement for highwall reduction;

There is nothing addressing noise;

There is nothing addressing compliance with zoning ordinances.

It should be noted that Senator Snyder mentioned requiring the siting of new quarries be subject to zoning ordinances. However, he also said that he did not think operations of existing quarries should be subject to zoning ordinances.

The November interims will be held in Shepardstown from Sunday, November 14, through Tuesday, November 16. There will be a public hearing on the quarry bill on Sunday, November 14 from 2:00 to 4:00 pm. It is important that anyone interested in this issue appear and state their concerns. It is my understanding that the hearing will be held in the U.S. Fish and Wildlife Conservation Training Center.

There will also be a tour of quarries on Monday from 1:00 to 5:00 pm. The tour will be open to the public. If the tour bus is filled up, then cars can follow it.

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

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