June 27, 2002

Legislative Meetings and Regulatory Updates

Recent legislative committee meetings and regulatory actions that affect the solid waste industry are summarized in this Bulletin. Please feel free to contact us for more detailed information on any of these issues.

Permit Fee Emergency Regulations

Emergency regulations to enact the waste permit fee increases passed by the 2002 General Assembly were published on June 17, 2002, in the Virginia Register. Effective on July 1, 2002, solid waste and hazardous waste permit fees are tripled. The increased fees will be in effect from July 1, 2002, through June 30, 2003, at which time the Department of Environmental Quality (DEQ) intends to have the Solid Waste Management Facility Permit Application Fees regulations amended (see below) to continue the increased fees.

To view the new fee schedule or the DEQ Agency Statement, go to www.townhall.state.va.us, or contact us for a copy.

Permit Fee Regulations NOIRA

The Notice of Intended Regulatory Action (NOIRA) for Amendment 1 of the Solid Waste Management Facility Permit Application Fees regulation was published in the Virginia Register on June 17, 2002. The public comment period on the NOIRA will extend from July 1 through August 2, 2002. If you are interested in serving on the Technical Assistance Committee (TAC) for these regulations, indicate your interest during the public comment period to Mike Dieter of DEQ, at mjdieter@deq.state.va.us. Also, address any other comments to Mr. Dieter regarding the NOIRA.

The Permit Fee Regulation establishes procedures pertaining to the payment and collection of, and the amount of, fees from applicants seeking new permits or permit amendments for solid waste or regulated medical waste management facilities. The goal of the regulatory changes is to study, in collaboration with the regulated community and the public, changes to the regulations to improve clarity and consolidation, and to update the permit fee system. The amended regulations will replace the emergency regulations discussed above.

To view the NOIRA and the DEQ Agency Statement, go to www.townhall.state.va.us, or contact us for a copy.

Permit Fee Committee Meeting

On June 17, 2002, the first meeting of the DEQ’s Permit Fee and Program Funding Study Planning Group was held at DEQ’s Central Office. The study is mandated by Item 376 of the 2002 Appropriations Act, which is quoted below:

1. The Secretary of Natural Resources shall develop a long-term plan to adequately fund the water, waste and hazardous waste regulatory programs in the Department of Environmental Quality. In developing the plan, the Secretary shall seek input from representatives from local governments, private sector organizations and the public. The plan’s objective is to develop a financial strategy for the programs that will protect the public and maintain state primacy in environmental matters delegated to Virginia by the federal government. The plan shall address, but not be limited to these factors: (1) the likelihood of additional general fund resources for environmental activities; (2) projected workloads in the various environmental regulatory programs; (3) cost containment strategies in regulatory management through increased reliance upon technology; and (4) changes to federal environmental policies and funding practices. An interim status report shall be submitted to the Chairman of the Senate Finance and Senate Agriculture, Conservation and Natural Resources Committees, and House Appropriations and House Agriculture, Chesapeake and Natural Resources Committees by December 6, 2002. The final plan shall be submitted by November 14, 2003.

2. In developing the plan, the Secretary shall cooperate with the House Appropriations, House Agriculture, Chesapeake and Natural Resources, Senate Finance, and Senate Agriculture, Conservation and Natural Resources Committees. The Committees shall make periodic inquiries on the progress and content of the plan.

The Group heard brief DEQ presentations regarding each of the four factors to be considered during the study, as quoted above. The next step in the process is for DEQ to finalize and distribute a Survey of Other State Funding Structures to other EPA Region 3 states, North Carolina, South Carolina, Georgia, and any other states requested by the Group. The purpose of the survey is to identify what other states are doing to fund water, solid waste, and hazardous waste regulatory programs.

If you would like to be included in future meetings and/or updates on the Group’s progress, contact Kathy Frahm at DEQ at krfrahm@deq.state.va.us.

Meeting of the Air & Water Resource Impact Studies Group

The Air & Water Resource Impact Studies Group held their first meeting on June 18, 2002. Mr. Robert Burnley, Director of DEQ, organized this technical advisory group to help DEQ identify existing tools available for evaluating air and water quality in the Commonwealth of Virginia. He established this group to meet the requirements of SB389, which requires the DEQ to develop a plan to study the cumulative environmental impacts of proposed electrical generating facilities; fund such a study through the use of federal, state, or private monies; and collect data for such a study by increasing the number of ozone monitoring stations in Virginia. SB389 requires that DEQ submit this information to the House Agriculture, Chesapeake and Natural Resources Committee and the Senate Agriculture, Conservation and Natural Resources Committee by September 1, 2002. In addition to establishing this technical advisory group, in a letter dated February 1, 2002, Mr. Burnley requested Senator Whipple to grant an extension to this deadline until mid-November 2002.

The task of the technical advisory group is not limited to identifying tools to evaluate cumulative impacts from power plants. The technical advisory group, which is divided into an Air Work Group and a Water Resource Work Group, is to identify tools to evaluate cumulative impacts from any industrial facility. The Air Work Group will focus on tools applicable to assessing impacts to air quality and assessing mitigation of these impacts. The Water Resource Work Group will focus on tools applicable to assessing impacts to water quality and assessing mitigation of these impacts. After identifying tools that are available to define individual impacts by an industrial facility (e.g., computer models, monitoring techniques), each Work Group is to evaluate what types of data can be collected, the funding required to obtain the data/use each tool, the circumstances under which the use of each tool is appropriate, the output from each tool, how much data are required, and how useful the data are. The technical advisory group is not tasked with prioritizing tools, but rather to provide an assessment of each tool.

The specific tasks of the technical advisory committee include the following:

• Evaluate our current air monitoring system and, in conjunction with EPA’s pending air monitoring network assessment, develop criteria for selecting additional sites;
• Evaluate and develop criteria for the use of air monitoring information developed by organizations other than DEQ;
• Explore approaches to the assessment of the combined impacts on air quality from existing and proposed sources;
• Develop an approach to ensure that the full impacts on water resources and supplies are considered during the environmental impact review process;
• Identify the appropriate tools that are available to assess these impacts, including development or refinement of models;
• Identify the appropriate tools that could be used to address these impacts once identified; and
• Develop cost estimates for implementing each of these and identify any non-state funds that may be available for these purposes, including federal and private funds.

DEQ will use the information to determine which tools can be reasonably implemented based on cost and to prepare the required report. Each Work Group will have monthly meetings until October; all minutes from the meetings will be available on DEQ’s web page. Mr. Burnley welcomes any additional technical advice that the public can provide (e.g., tools not identified by the Work Groups). He wants to know how to collect better data and what more can DEQ do to gather good data.

Representatives of DEQ gave presentations at this meeting concerning their current evaluation of air and water resource impacts. The presentations may be posted on DEQ’s web page; alternatively, they can be obtained via e-mail from Jim Sydnor (Air Work Group) at jesydnor@deq.state.va.us and Alan Brockenbrough (Water Resource Work Group) at abrockenb@deq.state.va.us. Additionally, any questions or comments may be e-mailed to these individuals.

Future meetings of the Water Impact Work Group are as follows:

• July 16, 2002, 10:00 a.m. at DEQ’s Piedmont Regional Office
• August 6, 2002, 10:00 a.m. at DEQ’s Piedmont Regional Office
• September 12, 2002, 10:00 a.m. at DEQ’s Piedmont Regional Office
• October 10, 2002, 10:00 a.m. at DEQ’s Piedmont Regional Office

Future meeting dates of the Air Impact Work Group have not yet been published.

For a copy of SB389 or Robert Burnley’s February 1, 2002, letter to Senator Whipple, please contact us.

Meeting of the Waste Disposal Surcharge Subcommittee – Virginia Recycling Markets Development Council

Two subcommittee members, Tom Smith and Phil Abraham, were present at the June 18, 2002, meeting of the Waste Disposal Surcharge Subcommittee of the Recycling Markets Development Council. No representatives from DEQ attended. This subcommittee was formed to provide DEQ with recommendations concerning the proposed waste disposal surcharge legislation from the recycling market’s perspective. The subcommittee members had received input from VACO but not yet from VML. The general consensus was that most counties do not appear to trust that money will be returned to them from a state agency fund, and most do not appear to be in support of the proposed legislation. However, the subcommittee continued with its task to recommend changes to the language of the proposed legislation.

At this meeting, the subcommittee discussed how the fund would be allocated, and proposed to present two options to DEQ (see table below for summary). The first option would require all money generated by the surcharge be used to fund solid waste planning, and would exempt incinerators from the surcharge. CDD facilities would not be exempt from the surcharge; however, a more accurate average volume-to-ton ratio should be used than previously used (3 cubic yards to 1 ton was proposed). Under this scenario, 28% of the money would be returned to the localities using a formula based on existing formulas for allocating funds to counties (e.g., libraries formula) and perhaps on a per capita basis (e.g., $2 per person for the first 50,000, and $1 per person for each additional person over 50,000). In any event, the consensus was the allocation of the funds to the localities should be based on the number of residents and the cost of the waste collection and recycling programs. More research will be conducted concerning existing formulas; input from the counties is welcomed and even encouraged. The findings will be presented at the next subcommittee meeting.

The first option would also require that at least 20% of the money be available for grants to fund innovative programs. The grant program should be flexible enough to allow access by the private industry to the funds. DEQ would receive 2% of the money to administer the fund. Forty percent of the money would be used to fund closure/clean-up of abandoned waste sites and possibly to provide matching fees for closing HB1205 facilities. The localities requesting funding for closure of HB1205 facilities must provide a good cause for receiving the funding (e.g., act of nature). Finally, 10% of the fund would be used for reclaiming Brownfield sites, since this is a type of recycling/re-use.

The second option would allow the money generated by the surcharge to fund programs other than solid waste planning. Therefore, incinerators would not be exempt from the surcharge, but they would receive a credit such that they would not be double-charged for the waste brought into the facility and for the ash generated by the incinerator. Similar to option 1, CDD facilities would not be exempt from the surcharge; however, a more accurate average volume-to-ton ratio should be used (3 cubic yards to 1 ton was proposed). The first 50% of the money would be distributed the same way as in option 1: 28% to localities, 2% to DEQ, and at least 20% to grants. The remaining 50% would be divided as follows: 20% to close/clean-up abandoned sites, 5% to Brownfield sites, and 25% to other programs (e.g., open space and water quality).

Allocation of Fund (in percent)

	Localities	Grants	DEQ	Abandoned Waste Sites	Brownfield Sites	Other Programs
Option 1 (incinerators exempt)	28	20	2	40	10	0
Option 2	28	20	2	20	5	25

The subcommittee believes that the $5 per ton surcharge is too high, and recommends a $2-$3 per ton surcharge. They also discussed that the legislation should require the localities to show a "maintenance of effort"; otherwise, their funding would be revoked. In other words, if a county were to reduce its recycling budget based on the receipt of money from the fund, then the county would no longer be eligible to receive money from the fund. However, the legislation should allow for flexibility in how each county uses the money received from the fund. The subcommittee proposed that the use of the funds should be tied to sections of the Code of Virginia regarding recycling and solid waste, which are currently non-funded state mandates.

The subcommittee also discussed a mechanism for protecting the fund, such as establishing a commodity board, foundation, or including an enactment clause within the legislation (i.e., the law would be repealed if money were diverted from the fund for uses other than those established in the legislation).

To allow localities to budget for the surcharge, the subcommittee recommended that the law, once promulgated, not become effective for one budget cycle. For example, if the legislation were passed in January 2003, the law would not become effective until July 2004.

The next subcommittee meeting is tentatively scheduled for August 1, 2002, at 10:30a.m. at DEQ – Central Office. Prior to the meeting, the subcommittee members will identify existing distribution formulas for allocating funds, draft proposed language to be incorporated into the proposed legislation, and will conduct research on mechanisms available to protect the money in the fund. These items, including how to avoid encouraging de-regionalization of solid waste management based on the distribution of the fund, will be further discussed at the August 1, 2002, meeting. Again, the subcommittee welcomes and encourages input from the regulated community. The subcommittee members will present their recommendations at the next Virginia Recycling Markets Development Council meeting on August 13, 2002.

Meeting of the Commission on the Future of Virginia’s Environment

The June 18, 2002, meeting of the Commission on the Future of Virginia’s Environment, chaired by Senator Bolling, was the second of two meetings dedicated to the issue of land applying sewage sludge, or biosolids. SB618 (Deeds), which was referred to the Committee on Agriculture, Conservation and Natural Resources and carried over to the 2003 General Assembly session, would provide the authority for localities to enact ordinances that prohibit, restrict, or regulate the land application of sewage sludge. Recent court decisions have made it illegal for localities to regulate or restrict land applications within their jurisdictions.

The Commission heard presentations from local government representatives who are both in favor of and against SB618. Representative of the biosolids application industry presented an overview of the practice. The Virginia Farm Bureau brought a farmer to discuss his positive experience with land application. Nutrient management planning was explained by the director of the Soil and Waste Conservation Division of the Department of Conservation and Recreation. Various citizens groups presented their opinions regarding the adverse health impacts from land applying sewage sludge. The meeting ended with a panel discussion with two scientists, from Virginia Tech and the Virginia Institute of Marine Science.

Senator Bolling established a subcommittee to further study the issue. The initial mission of the subcommittee is to evaluate and make a recommendation to the Commission regarding SB618, and possibly to evaluate whether current regulations regarding land application are adequate. Subcommittee members include Senator Bolling, Delegate Orrock, Delegate Cox, Mr. Maupin, Delegate Albo, and Senator Maxwell.

For a summary of the federal, Virginia, and local biosolids programs, or a copy of SB618, please contact us.

Upcoming Commission meeting dates are as follows. The complete workplan (agenda items) for the Commission has not yet been made available, nor has the schedule for the biosolids subcommittee meetings.

September 11, 2002	1:00	Full Commission
October 15, 2002	1:00	Full Commission
November 7, 2002	1:00	Full Commission

DEQ’s Final 10-Year Permit Review of Solid Waste Facilities

On June 17, 2002, DEQ issued the "Final Report on the Ten-Year Review of Solid Waste Management Permits for 2001," including DEQ’s responses to public comments received on the Draft Report, dated July 2001. This 10-year review is required by the Virginia Waste Management Act and the Virginia Solid Waste Management Regulations (VSWMR), and covered 97 permits issued prior to July 1, 1991, that are still active. DEQ reports that 47 of these permits were issued prior to the promulgation of the VSWMR (December 21, 1988), and do not have any of the components (now called permit modules) that are currently required. Regardless, all facilities are subject to the current VSWMR.

For a copy of the Final Report, go to DEQ’s web page at www.deq.state.va.us/waste, or contact us for a copy.