REGULATIONS
Vol. 35 Iss. 9 - December 24, 2018

TITLE 9. ENVIRONMENT
VIRGINIA WASTE MANAGEMENT BOARD
Chapter 130
Fast-Track Regulation

Title of Regulation: 9VAC20-130. Solid Waste Planning and Recycling Regulations (amending 9VAC20-130-10, 9VAC20-130-30, 9VAC20-130-60, 9VAC20-130-100, 9VAC20-130-110, 9VAC20-130-120, 9VAC20-130-125, 9VAC20-130-175, 9VAC20-130-230; adding 9VAC20-130-92 through 9VAC20-130-98, 9VAC20-130-173; repealing 9VAC20-130-180 through 9VAC20-130-220).

Statutory Authority: § 10.1-1411 of the Code of Virginia; 42 USC § 6942(b); 40 CFR Parts 255 and 256.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: January 23, 2019.

Effective Date: February 7, 2019.

Agency Contact: Melissa Porterfield, Department of Environmental Quality, 629 East Main Street, P.O. Box 1105, Richmond, VA 23218, telephone (804) 698-4238, FAX (804) 698-4019, or email melissa.porterfield@deq.virginia.gov.

Basis: Section 4002(b) of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (42 USC § 6942(b)), requires all states to develop and implement state solid waste management plans. 40 CFR Parts 255 and 256 contain requirements applicable to state solid waste management plans.

Section 10.1-1402 of the Code of Virginia directs the Virginia Waste Management Board to "Supervise and control waste management activities in the Commonwealth." Section 10.1-1411 of the Code of Virginia authorizes the Virginia Waste Management Board to promulgate this regulation, which is required to include all aspects of solid waste management, including waste reduction, recycling and reuse, storage, treatment, and disposal. The board is also required to consider urban concentrations, geographic conditions, markets, transportation conditions, and other appropriate factors and provide reasonable variances and exemptions from regulatory requirements when adopting this regulation.

Purpose: The Code of Virginia directs the Virginia Waste Management Board to adopt this regulation, which establishes requirements for localities to conduct planning efforts to ensure that solid waste is properly managed now and in the future. The regulation also implements the mandatory recycling rates described in state statute. These solid waste planning requirements are similar to the planning efforts that localities undertake to ensure their locality is planning for the future and is able to provide general services to their residents. This regulation allows localities to develop their own solid waste management plan or work with other localities to form a regional solid waste management plan. Solid waste management plans ensure that the locality or region is working to meet mandatory recycling rates and is preparing for future waste management needs. These actions reduce the amount of waste required to be disposed of and strive to protect the health and welfare of citizens from impacts related to improper management of solid waste.

Rationale for Using Fast-Track Rulemaking Process: This regulatory action is expected to be noncontroversial. The amendments clarify the requirements of the regulation and do not add any new requirements. There are no additional impacts to the regulated community as a result of these amendments. The changes to the regulation improve the readability and understanding of the regulation. The changes also make the regulation consistent with state statute.

Substance: The regulation is being reorganized to assist the regulated community with understanding and complying with the requirements of the regulation. Sections of the regulation are being rearranged to appear in the order the regulated community would use the regulation. For example, the regulation currently discusses the designation of solid waste planning units after the requirements for the content of solid waste plans are discussed. Prior to developing a solid waste management plan, the membership of the planning unit must be established. The logical progression would be to discuss the establishment of solid waste planning units prior to discussing the plans the planning units are required to develop. Rearranging the order of the sections of the regulation will make understanding the correct order tasks described in the regulation need to occur easier for a reader.

Changes have been made to the definition section. Obsolete definitions are removed from the regulation. Removing the definitions of terms that are not used in the regulation will help to avoid confusion concerning the applicability of these terms. For example, the term "white good" is defined in the definition section of the regulation; however, the term is not found in other sections of the regulation. As part of this amendment, the term "white good" is being removed from the regulation. Two additional definitions have been added to the regulation in response to a comment received during the informal comment period. Definitions of the terms "nonmunicipal solid waste material" and "solid waste management plan" have been included in the regulation to provide additional clarity to the regulation.

Additional details concerning the calculation of recycling rates have been included in the regulation. The calculation in the current regulation does not calculate the recycling rate as a percentage. The current calculation also mentions the inclusion of credits in the recycling rate but fails to explain how these credits are added to the recycling rate. This lack of explanation causes confusion since credits allowed may be expressed in tons or percentages. Additional details have been added to this section to address the inclusion of credits in the recycling rate. The regulatory language now mirrors the information on Department of Environmental Quality form 50-30 that is provided to solid waste planning units to assist them with calculating their recycling rate.

The recycling credits listed in the regulation have been reordered to be listed in the same order as they appear in § 10.1-1411 C of the Code of Virginia. Only those recycling credits detailed in statute are being included in the regulation.

Issues: The revisions to the regulation will make the regulation easier for the public and the regulated community to understand. The agency will benefit by having a regulation that is easier for the regulated community to understand. There are no disadvantages to the public, regulated community, or the agency from making these changes.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Virginia Waste Management Board (Board) proposes to amend its regulation governing solid waste planning and recycling for localities. Most of the changes proposed by the Board are non-substantive. Such changes include adding and modifying definitions, moving regulatory sections and updating obsolete references. Additionally, the Board proposes two substantive changes to regulatory text: 1) the Board proposes to remove a separate one-ton credit for "each inoperable vehicle for which a locality receives reimbursement from the Virginia Department of Motor Vehicles" and 2) the Board proposes to replace the formula for recycling rates that is currently in the regulation with an easier to use formula that is mathematically equivalent.

Result of Analysis. Benefits likely outweigh costs for all proposed changes.

Estimated Economic Impact. Many changes that the Board proposes for this regulation will not modify or add any substantive requirement for regulated entities but, instead, are aimed at clarifying existing regulatory requirements. For instance, the Board proposes to add definitions for "nonmunicipal solid waste material" and "solid waste management plan" to the regulatory text. No affected entities will incur costs on account of changes such as these. Interested parties will benefit from the added definitions and the changed structure of the regulation as it will make it both easier to find and read any particular standard. Benefits likely outweigh costs for all reorganizing and clarifying changes.

The Board also proposes to remove language that allowed a one-ton credit for every inoperable vehicle for which a locality receives reimbursement under § 46.2-1407 of the Code of Virginia. Localities will instead be able to claim credit for such vehicles by adding them to the amount of principal recyclable materials. Board staff reports that this change will likely have no impact on localities' calculated recycling rates.

Finally, the Board proposes to replace the formula for calculating minimum recycling rates. Board staff reports that the replacement formula is mathematically equivalent to the formula in current regulation, but that the proposed formula defines all terms so will be easier to use. Board staff reports that the formula that the Board proposes to add to the regulation is already in use on forms that localities must fill out. This change will benefit affected entities as the regulatory formula will be both easier to calculate and consistent with what they already use.

Businesses and Entities Affected. This proposed action will affect all localities and solid waste management planning units in the Commonwealth.

Localities Particularly Affected. No locality in the Commonwealth is likely to be particularly affected by this proposed regulation.

Projected Impact on Employment. This proposed regulatory change is unlikely to affect employment in the Commonwealth.

Effects on the Use and Value of Private Property. This proposed regulatory action is unlikely to have an effect on the use or value of private property in the Commonwealth.

Real Estate Development Costs. This proposed regulatory action is unlikely to affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. This regulatory action will likely not affect small businesses in the Commonwealth.

Alternative Method that Minimizes Adverse Impact. This regulatory action will likely not affect small businesses in the Commonwealth.

Adverse Impacts:

Businesses. This regulatory action will likely not affect small businesses in the Commonwealth.

Localities. Localities in the Commonwealth are unlikely to see any adverse impacts on account of this proposed regulatory changes.

Other Entities. No other entities are likely to be adversely affected by this proposed change.

Agency's Response to Economic Impact Analysis: The board has reviewed the economic impact analysis prepared by the Department of Planning and Budget and has no comment.

Summary:

The amendments (i) reorder the regulatory sections so that the requirements for solid waste planning units precede those for solid waste management plans and the requirement for planning units to maintain and update solid waste management plans is in its own section, (ii) clarify the difference between major and minor amendments to a solid waste management plan as well as other requirements of the regulation, and (iii) conform recycling rate credits to § 10.1-1411 C of the Code of Virginia.

9VAC20-130-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Agricultural waste" means all solid waste produced from farming operations.

"Board" means the Virginia Waste Management Board.

"Commercial waste" means all solid waste generated by establishments engaged in business operations other than manufacturing or construction. This category includes, but is not limited to, solid waste resulting from the operation of stores, markets, office buildings, restaurants, and shopping centers.

"Compost" means a stabilized organic product produced by composting a controlled aerobic decomposition process in such a manner that the product can be handled, stored, and/or or applied to the land without adversely affecting public health or the environment.

"Composting" means the manipulation of the natural process of decomposition of organic materials to increase the rate of decomposition.

"Construction waste" means solid waste that is produced or generated during construction, remodeling, or repair of pavements, houses, commercial buildings, and other structures. Construction wastes include, but are not limited to, lumber, wire, sheetrock, broken brick, shingles, glass, pipes, concrete, paving materials, and metal and plastics if the metal or plastics are a part of the materials of construction or empty containers for such materials. Paints, coatings, solvents, asbestos-containing material, any liquid, compressed gases, or semi-liquids and garbage are not construction wastes.

"Debris waste" means solid waste resulting from land clearing operations. Debris wastes include, but are not limited to, stumps, wood, brush, leaves, soil, and road spoils.

"Demolition waste" means solid waste produced by the destruction of structures and their foundations and includes the same materials as construction wastes.

"Department" means the Department of Environmental Quality.

"Director" means the Director of the Department of Environmental Quality or his designee. For purposes of submissions to the director as specified in the Waste Management Act, submissions may be made to the department.

"Disposal" means the discharge, deposit, injection, dumping, spilling, leaking or placing of any solid waste into or on any land or water so that such solid waste or any constituent of it may enter the environment or be emitted into the air or discharged into any waters.

"Facility" means solid waste management facility unless the context clearly indicates otherwise.

"Hazardous waste" means a "hazardous waste" as defined by the Virginia Hazardous Waste Management Regulation Regulations, 9VAC20-60.

"Incineration" means the controlled combustion of solid waste for disposal.

"Industrial waste" means any solid waste generated by manufacturing or industrial process that is not a regulated hazardous waste. Such waste may include, but is not limited to, waste resulting from the following manufacturing processes: electric power generation; fertilizer/agricultural chemicals; food and related products/byproducts; inorganic chemicals; iron and steel manufacturing; leather and leather products; nonferrous metals manufacturing/foundries; organic chemicals; plastics and resins manufacturing; pulp and paper industry; rubber and miscellaneous plastic products; stone, glass, clay, and concrete products; textile manufacturing; transportation equipment; and water treatment. This term does not include mining waste or oil and gas waste.

"Institutional waste" means all solid waste emanating from institutions such as, but not limited to, hospitals, nursing homes, orphanages, and public or private schools. It can include regulated medical waste from health care facilities and research facilities that must be managed as a regulated medical waste.

"Integrated waste management plan" means a governmental plan that considers all elements of waste management during generation, collection, transportation, treatment, storage, disposal, and litter control and selects the appropriate methods of providing necessary control and services for effective and efficient management of all wastes. An "integrated waste management plan" must provide for source reduction, reuse and recycling within the jurisdiction and the proper funding and management of waste management programs.

"Jurisdiction" means a local governing body; city, county or town; or any independent entity, such as a federal or state agency, which join with local governing bodies to develop a waste management plan.

"Landfill" means a sanitary landfill, an industrial waste landfill, or a construction/demolition/debris landfill (as these terms are defined in the Solid Waste Management Regulations (9VAC20-81).

"Litter" means all waste material disposable packages or containers, but not including the wastes of the primary processes of mining, logging, farming, or manufacturing.

"Market" or "markets" means interim or end destinations for the recyclable materials, including a materials recovery facility (MRF).

"Market conditions" means business and system related issues used to determine if materials can be targeted, collected, and delivered to an interim or end market in an efficient manner. Issues may include, but are not limited to: the cost of collection, storage and preparation or both; the cost of transportation; accessible volumes of materials targeted for recycling; market value of materials targeted for collection/recycling; and distance to viable markets.

"Materials recovery facility (MRF)" means, for the purpose of this regulation, a facility for the collection, processing, and marketing of recyclable materials including, but not limited to: metal, paper, plastics, and glass.

"Mulch" means woody waste consisting of stumps, trees, limbs, branches, bark, leaves, and other clean wood waste that has undergone size reduction by grinding, shredding, or chipping, and is distributed to the general public for landscaping purposes or other horticultural uses, except composting as defined and regulated under the Solid Waste Management Regulations (9VAC20-81).

"Municipal solid waste" or "MSW" means waste that is normally composed of residential, commercial, and institutional solid waste and residues derived from the combustion of these wastes.

"Nonmunicipal solid waste material" means waste that is not normally composed of residential, commercial, and institutional solid waste and residues derived from the combustion of these wastes.

"Permit" means the written permission of the director to own, operate, or construct a solid waste management facility.

"Person" means an individual, corporation, partnership, association, a governmental body, a municipal corporation, or any other legal entity.

"Principal recyclable materials" (PRMs) or "PRMs" means paper, metal, plastic, glass, commingled, yard waste, wood, textiles, tires, used oil, used oil filters, used antifreeze, batteries, electronics, or material as may be approved by the director. Commingled materials refers to single stream collections of recyclables where sorting is done at a materials recovery facility.

"Recycling" means the process of separating a given waste material from the waste stream and processing it so that it may be used again as a raw material for a product, which may or may not be similar to the original product. For the purpose of this chapter, recycling shall not include processes that only involve size reduction.

"Recycling residue" means the (i) nonmetallic substances, including but not limited to plastic, rubber, and insulation, which remain after a shredder has separated for purposes of recycling the ferrous and nonferrous metal from a motor vehicle, appliance, or other discarded metallic item and (ii) organic waste remaining after removal of metals, glass, plastics, and paper that are to be recycled as part of a resource recovery process for municipal solid waste resulting in the production of a refuse derived fuel.

"Regional boundary" means the boundary defining an area of land that will be a unit for the purpose of developing a waste management plan, and is established in accordance with 9VAC20-130-180 9VAC20-130-92 through 9VAC20-130-220 9VAC20-130-100.

"Regulated medical waste" means solid wastes so defined by the Regulated Medical Waste Management Regulations (9VAC20-120) as promulgated by the Virginia Waste Management Board.

"Residential waste" means any waste material, including garbage, trash, and refuse, derived from households. Households include single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas. Residential wastes do not include sanitary waste in septic tanks (septage), that is regulated by other state agencies.

"Resource recovery system" means a solid waste management system that provides for collection, separation, recycling, and recovery of energy or solid wastes, including disposal of nonrecoverable waste residues.

"Reuse" means the process of separating a given solid waste material from the waste stream and using it, without processing or changing its form, other than size reduction, for the same or another end use.

"Sanitary landfill" means an engineered land burial facility for the disposal of household waste, which is so located, designed, constructed, and operated to contain and isolate the waste so that it does not pose a substantial present or potential hazard to human health or the environment. A sanitary landfill also may receive other types of solid wastes, such as commercial solid waste, nonhazardous sludge, hazardous waste from conditionally exempt small quantity generators, construction demolition debris, and nonhazardous industrial solid waste.

"Site" means all land and structures, other appurtenances, and improvements on them used for treating, storing, and disposing of solid waste. This term includes adjacent land within the facility boundary used for the utility systems such as repair, storage, shipping or processing areas, or other areas incident to the management of solid waste. (Note: This term includes all sites whether they are planned and managed facilities or open dumps.)

"Sludge" means any solid, semisolid, or liquid waste generated from a public, municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility.

"Solid waste" means any of those materials defined as "solid waste" in the Solid Waste Management Regulations (9VAC20-81).

"Solid waste management plan" means a plan submitted by a solid waste planning unit in accordance with the requirements of this chapter.

"Solid waste planning unit" means each region or locality that submits a solid waste management plan.

"Solid waste management facility ("SWMF")" means a site used for planned treating, storing, or disposing of solid waste. A facility may consist of several treatment, storage, or disposal units.

"Source reduction" means any action that reduces or eliminates the generation of waste at the source, usually within a process. Source reduction measures include process modifications, feedstock substitutions, improvements in feedstock purity, improvements in housekeeping and management practices, increases in the efficiency of machinery, and recycling within a process. Source reduction minimizes the material that must be managed by waste disposal or nondisposal options by creating less waste. "Source reduction" is also called "waste prevention," "waste minimization," or "waste reduction."

"Source separation" means separation of recyclable materials by the waste generator of materials that are collected for use, reuse, reclamation, or recycling.

"Tons" means 2,000 pounds.

"Transfer station" means any solid waste storage or collection facility at which solid waste is transferred from collection vehicles to haulage vehicles for transportation to a central solid waste management facility for disposal, incineration, or resource recovery.

"Vegetative waste" means decomposable materials generated by yard and lawn care or land-clearing activities and includes, but is not limited to, leaves, grass trimmings, and woody wastes such as shrub and tree prunings, bark, limbs, roots, and stumps. For more detail see the Solid Waste Management Regulations (9VAC20-81).

"Waste exchange" means any system to identify sources of wastes with potential for use, reuse, recycling, or reclamation and to facilitate its acquisition by persons who reuse, recycle, or reclaim it, with a provision for maintaining confidentiality of trade secrets.

"White goods" means any stoves, washers, hot water heaters or other large appliances. For the purposes of this chapter, this definition also includes, but is not limited to, such Freon-containing appliances as refrigerators, freezers, air conditioners, and dehumidifiers.

"Yard waste" means decomposable waste materials generated by yard and lawn care and includes leaves, grass trimmings, brush, wood chips, and shrub and tree trimmings. Yard waste shall not include roots or stumps that exceed six inches in diameter.

9VAC20-130-30. Policy.

It is the policy of the Virginia Waste Management Board to require each region designated pursuant to 9VAC20-130-180 9VAC20-130-92 through 9VAC20-130-220 9VAC20-130-100, as well as each city, county, and town not part of such a region, to develop comprehensive and integrated solid waste management plans that, at a minimum, consider and address all components of the following hierarchy:

1. Source reduction;

2. Reuse;

3. Recycling;

4. Resource recovery (waste-to-energy);

5. Incineration; and

6. Landfilling.

9VAC20-130-60. Applicability of regulations.

A. This chapter applies to all cities, counties, towns, designated solid waste planning units (under 9VAC20-130-180) 9VAC20-130-92), and permitted solid waste facilities within the solid waste planning unit, including those facilities covered under permit by rule procedures found in 9VAC20-81. Any city, county, and town may mutually agree to unite for the purpose of solid waste management planning, and upon joint written notification to the director, department shall be deemed to be a solid waste planning unit for development of a solid waste management plan.

B. Any cities Cities, counties, and towns may be represented by a planning district, public service authority, or designated region that has been adopted under 9VAC20-130-90 B.

C. The plan may (subject to statutory authority) specify that all solid waste must be recycled at the rate established by the plan regardless of the point of origin of the solid waste. Solid wastes from both public and private sources shall be subject to such requirement.

9VAC20-130-92. Designation of solid waste planning units.

The director has been authorized by the Governor to designate regional boundaries defining areas and jurisdictions to be considered for joint development of solid waste management plans. Only those solid waste planning units meeting the standards established in this chapter will be considered. Any group of jurisdictions may petition the director for designation as a solid waste planning unit, and if the proposed region meets the standards established for designation, the director shall approve the request.

9VAC20-130-94. Considerations in designating solid waste unit boundaries.

A. The following shall be considered in designating solid waste planning unit boundaries:

1. Geographic areas or jurisdictions that have a history of cooperating to solve problems in environmental or other related matters;

2. Existing regional management systems, authorities, or similar institutions;

3. The size, configuration, and location of the regional areas should have sufficient solid waste contribution and market availability to support the solid waste management system;

4. Solid waste types within areas and mutuality of solid waste management interests;

5. Geologic, hydrologic, soil, and groundwater conditions; availability of land and soils; and natural barriers and ecosystems; and

6. Existing planning areas established for purposes other than solid waste management including the existence of informational databases containing data related to that needed for solid waste management planning and recycling.

B. Areas included within a solid waste planning unit's boundaries may be local or regional.

1. A local area may include a city, town, or county and any towns within the county that through mutual agreement join with the county for the purpose of developing a plan.

2. A regional area may include:

a. The jurisdictions with existing regional planning district boundaries;

b. Any combination of local governments formally joined to form a region or service authority; or

c. Existing waste management or public service authorities.

9VAC20-130-96. Criteria for designating a solid waste planning unit.

A. The director may authorize an official committee or public body as authorized to develop, adopt, and promulgate the solid waste management plan.

B. Prospective solid waste planning units shall have:

1. Demonstrated ability to plan, manage, or operate solid waste management and recycling services; or

2. Completed planning that resulted in successful implementation of solid waste management and recycling facilities or services.

C. An entity designated as responsible for developing a solid waste management plan shall:

1. Be an organization that represents the executive boards of jurisdictions within the solid waste planning unit;

2. Have planning authority for the regional area;

3. Be capable of readily starting the plan development work tasks;

4. Have an established methodology for resolving conflicts, making planning decisions, and providing public participation in the development of the plan;

5. Have experience in environmental planning and have a staff experienced in the work tasks involved in such planning;

6. Have established a methodology and authority sufficient to implement the plan once it is complete and approved; and

7. Have access to informational resources within the region.

9VAC20-130-98. Development of designated solid waste planning units.

A. At least 14 days prior to designating a regional boundary for solid waste management planning, the department shall place a notice of the proposed regional boundary and an opportunity to comment in the Virginia Register of Regulations and in a newspaper of general circulation within the proposed solid waste planning unit.

B. If as a result of the notices required by subsection A of this section, the director finds a need exists to hold a public hearing on the issues, a public hearing shall be held in the proposed region prior to the designation. At least 14 days prior to the public hearing, a notice of the public hearing shall appear in the same publications as the notice under subsection A of this section.

9VAC20-130-100. [Reserved] Amendment of solid waste planning unit boundaries.

The director may amend a solid waste planning unit's boundary based on an application from the governing body of the solid waste planning unit. Along with the application, each locality (within the original region and any locality being added) must submit a letter acknowledging the change in the boundary. Once the director amends a solid waste planning unit's boundary, the solid waste planning unit must amend the solid waste management plan as required by 9VAC20-130-175. Any locality that withdraws membership from a regional solid waste planning unit must become a member of an existing solid waste planning unit or develop and submit a solid waste management plan for approval as specified in 9VAC20-130-110.

9VAC20-130-110. Schedule for plan development.

A. Each solid waste planning unit in the Commonwealth shall develop and maintain a solid waste management plan or amend an existing solid waste management plan and submit it for approval in accordance with this chapter. Existing plans may be amended by addendum of items such as consideration of the waste management hierarchy, the recycling program implementation activities, and other requirements of this chapter that are not a part of the existing plan. Details concerning amendments to solid waste management plans are found in 9VAC20-130-175.

B. The department shall review and approve or return comments on the deficiencies in each plan submitted in accordance with 9VAC20-130-110 subsection A of this section no later than 90 days from the date the plans are received. In the event the department is unable to complete its review within 90 days, the applicant will be notified and given a date as to when the review will be completed.

C. Each submitter who receives comments on its solid waste management plan under subsection B of this section shall submit a revised solid waste management plan to the department no later than 90 days following receipt of notification of deficiencies.

D. Plans approved without alteration shall become effective upon notification of such approval by the department. If after review of the corrected plan submitted pursuant to subsection C of this section, the department cannot approve the corrected solid waste management plan because the department finds the plan not to be in accordance with this chapter, it will issue a notice of intent to disapprove to the submitter. The notice of intent to disapprove shall set forth (i) the reason for the disapproval, (ii) what is required for approval, (iii) the right of the submitter to an informal fact-finding proceeding under Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia, and (iv) allow the development of an action plan for the solid waste planning unit as set forth in this chapter at 9VAC20-130-120 I. The department will give priority consideration for review of corrected plans where the solid waste planning unit has a pending permit application for a solid waste management facility.

E. The director may revoke the approval of any plan or require its revision and resubmittal if there is evidence that there has been significant deviation from the plan. Significant deviations are departures or omissions from activities planned in accordance with 9VAC20-130-120. The department director will issue a notice of intent to revoke or require revision and resubmittal of a plan. The notice of intent shall set forth (i) whether the department director intends to revoke or require revision and resubmittal of the plan, (ii) the reason the department director intends to take the action, and (iii) the right of the submitter of the plan to an informal fact-finding proceeding under Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

9VAC20-130-120. Planning requirements.

A. Basic planning elements:

1. Objectives for solid waste management within the planning unit;

2. A discussion as to how the plan will be implemented and tracked, consisting of an integrated waste management strategy to support and promote the hierarchy set forth at 9VAC20-130-30; and giving preference to alternatives in the following order of priority: source reduction, reuse, recycling, resource recovery, incineration, and landfilling;

3. Definition of incremental stages of progress toward the objectives and schedule for their implementation, including, for compliance with 9VAC20-81-450, specific solid waste management facility names, facility capacities, and life based on 20-year need;

4. Strategy for the provision of necessary funds and resources;

5. Descriptions of the funding and resources necessary, including consideration of fees dedicated to future facility development;

6. Strategy for public education and information on source reduction, reuse, and recycling; and

7. Consideration of public and private sector partnerships and private sector participation in execution of the plan. Existing private sector recycling operations should be incorporated in the plan, and the expansion of such operations should be encouraged.

B. A minimum recycling rate as specified in § 10.1-1411 of the Code of Virginia for total municipal solid waste generated annually in each solid waste planning unit shall be met and maintained.

1. The plan shall describe how the minimum recycling rate shall be met or exceeded. The department director may approve the solid waste management plans of units that do not currently meet the minimum recycling rate only if all other requirements of these regulations this chapter have been met and the solid waste planning unit demonstrates its commitment to implementing a strong and detailed action plan for recycling to meet the required rate.

2. When a solid waste planning unit's annual recycling rate falls below the minimum rate, it shall constitute evidence of a significant deviation from the plan. The plan may be subject to revocation by the department under 9VAC20-130-110 E unless the solid waste planning unit submits a recycling action plan acceptable to the department per subsection I of this section.

C. The solid waste management plan shall include data and analyses of the following type(s) type for each jurisdiction. Each item below listed in this subsection shall be in a separate section and labeled as to content:

1. Population information and projections for 20 years of population growth and development patterns;

2. Urban concentrations, geographic conditions, economic growth and development, markets for the reuse and recycling of materials, transportation conditions, and related factors;

3. Estimates of solid waste generation from residential, commercial institutional, industrial, construction, demolition, debris and other types of sources, including the amounts reused, recycled, recovered as a resource, incinerated, and landfilled. Entities engaged in the collection, processing, and marketing of recyclable materials should provide data for incorporation into the recycling rate calculation, when requested by the planning unit.

4. A listing of existing and planned solid waste collection, storage, treatment, transportation, disposal, and other management facilities, their projected capacities, expected life, and systems for their use;

5. All milestones in the implementation of the solid waste management plan over the 20-year projection and the parties responsible for each milestone;

6. A description of programs for solid waste reduction, reuse, recycling, resource recovery, incineration, storage, treatment, disposal, and litter control;

7. A description of outreach programs for waste exchange, public education, and public participation;

8. The procedures for and results of evaluating solid waste collection, including transfer stations; and

9. The assessment of all current and predicted needs for solid waste management for a period of 20 years and a description of the action to be taken to meet those needs.

D. All known solid waste disposal sites, closed, inactive, and active, within the area of the solid waste management plan shall be documented and recorded at a centralized archive authorized to receive and record information and a copy shall be sent to the department. All new sites shall be recorded at the same central data source.

E. A methodology shall be utilized to monitor the amount of solid waste of each type produced within the area of the solid waste management plan and to record the annual production by solid waste types at a centralized archive and a copy shall be sent to the department.

F. The solid waste management plan shall include, when developed locally, a copy of the local governing body's resolution adopting the solid waste management plan.

G. The When the solid waste management plan is developed regionally, the solid waste management plan shall include, when developed regionally, a copy of the resolution of the solid waste planning unit approving the plan adopted in accordance with the Virginia Area Development Regional Cooperation Act, the Virginia Water and Waste Authorities Act, the provisions of the Code of Virginia governing joint exercise of powers by political subdivisions (§ 15.2-1300 of the Code of Virginia), or other authority as applicable. The plan shall specify the solid waste planning unit's legal authority to adopt the solid waste management plan.

H. The solid waste management plan shall clearly and explicitly demonstrate the manner in which the goals of the planning requirements in these regulations this chapter shall be accomplished and actions to take if these requirements are not met.

I. A planning unit that does not meet the requirements of these regulations shall submit an action plan, by mail or electronic mail, for approval by the department. Such action plans shall include:

1. A description of the deficiency that requires the development of the action plan.

2. A time schedule to resolve the deficiency(ies) deficiency associated with the planning unit's failure to meet the requirements of the approved solid waste management plan.

3. A reporting requirement to the department, of a minimum of once every six months, including activities or updates documenting how the action plan requirements are being met.

4. Plans and all subsequent reports and submittals shall be reviewed by the department within 30 days of receipt by the department.

5. All the department's requests for further information or response(s) responses shall be provided within 30 days of receipt at the planning unit. The department may grant reasonable extensions to these deadlines on a case-by-case basis.

9VAC20-130-125. Recycling requirements.

A. Each solid waste planning unit shall maintain a minimum recycling rate for municipal solid waste generated within the solid waste planning unit pursuant to the following schedule:

1. Except as provided in subdivision 2 of this subsection, each solid waste planning unit shall maintain a minimum 25% recycling rate; or

2. Each solid waste planning unit shall maintain a minimum 15% recycling rate if it has (i) a population density rate of less than 100 persons per square mile according to the most recent United States Census, or (ii) a not seasonally adjusted civilian unemployment rate for the immediately preceding calendar year that is at least 50% greater than the state average as reported by the Virginia Employment Commission for such year.

B. The minimum recycling rate shall be determined by the following formula:

Recycling Rate = [PRMs recycled] ÷ [MSW generated] + [all Credits in C]

Where:

PRMs recycled equals the amount of principal recyclable materials received for recycling each calendar year; and

MSW generated equals the sum of PRMs recycled and MSW disposed. (MSW disposed equals the amount of MSW delivered to landfills, transfer stations, incineration and waste-to-energy facilities)

The amounts shall be expressed in tons using one of the methods below:

1. The actual weight of each component in tons; or

2. The volume of each component, converted to weight in tons (conversion chart in Form DEQ 50-30).

C. B. Credits may be added to the recycling formula in subsection B C of this section provided that the aggregate of all such credits shall not exceed five percentage points of the annual municipal solid waste recycling rate achieved for each solid waste planning unit:

1. A credit of one ton for each ton of any nonmunicipal solid waste material that is recycled; two percentage points of the minimum recycling rate mandated for the solid waste planning unit for a source reduction program (SRP) that is implemented within the solid waste planning unit. The existence and operation of such a program shall be certified by the solid waste planning unit;

2. A credit of one ton for each ton of any solid waste material that is reused; recycling residue generated in Virginia and deposited in a landfill permitted under § 10.1-1408.1 of the Code of Virginia;

3. A credit of one ton for each ton of recycling residue generated in Virginia and deposited in a landfill permitted under § 10.1-1408.1 of the Code of Virginia; any nonmunicipal solid waste material that is recycled; and

4. A credit of two percentage points of the minimum recycling rate mandated for the solid waste planning unit for a source reduction program that is implemented within the solid waste planning unit. The existence and operation of such a program shall be certified by the solid waste planning unit; and one ton for each ton of any solid waste material that is reused.

5. A credit of one ton for each inoperable vehicle for which a locality receives reimbursement from the Virginia Department of Motor Vehicles under § 46.2-1407 of the Code of Virginia.

C. Recycling rates shall be expressed in tons using the actual weight of the component or the volume of each component, converted to weight in tons using the conversion chart in Form DEQ 50-30.

EDITOR'S NOTE: The equations in subdivision 1 of this subsection are new text.

1. Recycling rates shall be calculated using the following formulas:

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http://leg5.state.va.us/images/752917662570LEGKWP_files/image002.gif

http://leg5.state.va.us/images/753172894321LEGAB_files/image001.gif

Where:

A = adjusted recycling rate

B = base recycling rate

C = the total tons that may be added to the recycling formula as allowed by subdivisions B 2, B 3, and B 4 of this section

M = the sum of PRMs recycled and MSW disposed in the calendar year. (MSW disposed equals the amount of MSW delivered to landfills, transfer stations, incineration, and waste-to-energy facilities.)

P = the amount of PRMs received for recycling in the calendar year

S = base or adjusted recycling rate with SRP credit

In cases where the solid waste planning unit cannot obtain actual and accurate information from solid waste management facilities, a solid waste planning unit may request the department to allow the use of an alternative method to calculate MSW disposed for the purposes of calculating the recycling rate.

2. Annual municipal solid waste recycling rate. The annual municipal solid waste recycling rate is either the base recycling rate, adjusted recycling rate, base recycling rate with SRP credit, or the adjusted recycling rate with SRP credit, whichever is higher; however, if the annual municipal solid waste recycling rate exceeds the base recycling rate by more than five percentage points, the annual municipal solid waste recycling rate shall be the base recycling rate plus five percentage points.

D. Yard wastes and vegetative wastes are deemed to be recycled if they are composted or mulched and the finished mulch or compost is marketed or otherwise used productively. Tires are deemed to be recycled if they are beneficially used in a method consistent with the waste tire program operated by the department. Used oil, oil filters, and antifreeze are deemed to be recycled if they are marketed or otherwise used productively.

9VAC20-130-173. Maintenance of solid waste management plans.

A. Solid waste management planning units are required to maintain current solid waste management plans containing a 20-year planning window.

B. On or before each five-year anniversary of the department's plan approval date, the planning unit shall submit a letter to the department, by mail or electronic mail, certifying that the following plan elements listed in 9VAC20-130-120 C have been maintained and updated:

1. Waste generation estimates are current (9VAC20-130-120 C 3);

2. The schedule increments have been met (9VAC20-130-120 C 5); and

3. A projected 20-year waste management capacity remains available or projects otherwise are on schedule to meet the planning unit's solid waste needs (9VAC20-130-120 C 9).

C. The letter of certification submitted in accordance with subsection B of this section shall be used in the department's assessment of whether any plan amendments are necessary and to ensure compliance with 9VAC20-130-110 E.

D. If revisions to the plan are needed, solid waste management planning units shall amend the plan as described in 9VAC20-130-175.

9VAC20-130-175. Amendments to plans.

A. Amendments to the plans shall be classified as major or minor. These classifications are as described in this section below.

B. Major amendments.

1. Major amendments shall include:

a. Any addition, deletion, or cessation of operation of any solid waste disposal facility;

b. Any increase in landfill capacity;

c. Any change that moves toward implementation of a waste management strategy that is lower in the waste management hierarchy;

d. Action plan(s) plans, including an action plan to address a planning unit's recycling rate that has fallen below the statutory minimum; or

e. Any change to membership in the approved area. Director approval of changes to planning unit boundaries, as described in 9VAC20-130-100, shall occur prior to submission of solid waste plan amendments to revise plan membership.

2. Minor amendments shall include:

a. Any addition, deletion, or cessation of operation of any facility that is not a solid waste disposal facility;

b. Any change that moves toward implementation of a waste management strategy that is higher in the waste management hierarchy; or

c. Any nonsubstantive administrative change such as a change in name.

3. Minor amendments shall be submitted, by mail or electronic mail, directly to the department for notation. The planning units are the repository for the minor amendments to the plans.

B. 2. Major amendments shall require the same public participation as detailed in 9VAC20-130-130 B before being submitted, by mail or electronic mail, to the department for approval prior to implementation.

C. 3. The department shall review major amendments and approve or return comments on any deficiencies no later than 90 days from the date the amendments are received. In the event the department is unable to complete its review within 90 days, the applicant will be notified and given a date as to when the review will be completed. No department approval shall be necessary for minor amendments.

D. 4. Each submitter who receives comments on his major plan amendment under subsection C subdivision B 3 of this section shall submit a corrected amendment to the department no later than 90 days following notification of deficiencies.

E. 5. Major amendments approved without alteration shall become effective upon notification. If after review of the corrected amendment submitted pursuant to subsection D subdivision B 4 of this section, the department cannot approve the corrected amendment because it finds the amendment not to be in accordance with this chapter, it will issue a notice of intent to disapprove to the submitter. The notice of intent to disapprove shall set forth (i) the reason for the disapproval, (ii) what is required for approval, and (iii) the right of the submitter to an informal fact-finding proceeding under Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia. The department will give priority consideration for review of corrected amendments when the planning unit has a pending permit application for a solid waste management facility.

F. Solid waste management planning units are required to maintain current plans. On or before each five-year anniversary of the department's plan-approval date, the planning unit shall submit a letter to the department, by mail or electronic mail, certifying that the following plan elements, listed in 9VAC20-130-120 C, have been maintained and updated: waste generation estimates are current, the schedule increments have been met, and a projected 20-year waste management capacity remains available or projects otherwise are on schedule to meet the unit's solid waste needs. The letter of certification will be used in the department's assessment of whether any plan amendments are necessary and to ensure compliance with 9VAC20-130-110 E.

C. Minor amendments.

1. Minor amendments shall include:

a. Any addition, deletion, or cessation of operation of any facility that is not a solid waste disposal facility;

b. Any change that moves toward implementation of a waste management strategy that is higher in the waste management hierarchy; or

c. Any nonsubstantive administrative change such as a change in name.

2. Minor amendments shall be submitted, by mail or electronic mail, directly to the department for notation. The planning units are the repository for the minor amendments to the plans.

9VAC20-130-180. Designation of solid waste planning units. (Repealed.)

The director has been authorized by the Governor to designate regional boundaries defining areas and jurisdictions to be considered for joint development of solid waste management plans. Only those solid waste planning units meeting the standards established in this chapter will be considered. Any group of jurisdictions may petition the director for designation as a solid waste planning unit, and, if the proposed region meets the standards established for designation, the director shall approve the request.

9VAC20-130-190. Development of designated solid waste planning units. (Repealed.)

A. At least 14 days prior to designating a regional boundary for solid waste management planning, the director shall place a notice of the proposed regional boundary and an opportunity to comment in the Virginia Register of Regulations and in a newspaper of general circulation within the proposed solid waste planning unit.

B. If, as a result of the notices required by subsection A of this section, the director feels a significant need exists to hold a public hearing on the issues, a public hearing shall be held in the proposed region prior to the designation. At least 14 days prior to the public hearing, a notice of the proposed public hearing shall appear in the same publications as the notice under subsection A of this section.

9VAC20-130-200. Considerations in designating solid waste planning unit boundaries. (Repealed.)

A. The following shall be considered in designating solid waste planning unit boundaries:

1. Geographic areas or jurisdictions which have a history of cooperating to solve problems in environmental or other related matters;

2. Existing regional management systems, authorities or similar institutions;

3. The size, configuration and location of the regional areas should have sufficient solid waste contribution and market availability to support the solid waste management system;

4. Solid waste types within areas and mutuality of solid waste management interests;

5. Geologic, hydrologic, soil and groundwater conditions; availability of land and soils; and natural barriers and ecosystems; and

6. Existing planning areas established for purposes other than solid waste management including the existence of informational databases containing data related to that needed for solid waste management planning and recycling.

B. Areas included within a solid waste planning unit's boundaries may be local or regional.

1. A local area may include a city, town or county and any towns within the county that through mutual agreement join with the county for the purpose of developing a plan.

2. A regional area may include:

a. The jurisdictions with existing regional planning district boundaries;

b. Any combination of local governments formally joined to form a region or service authority; or

c. Existing waste management or public service authorities.

9VAC20-130-210. Criteria for designating a solid waste planning unit. (Repealed.)

A. The director may authorize an official committee or public body as authorized to develop, adopt and promulgate the solid waste management plan.

B. Prospective solid waste planning units shall have:

1. Demonstrated ability to plan, manage or operate solid waste management and recycling services; or

2. Completed planning that resulted in successful implementation of solid waste management and recycling facilities or services.

C. An entity designated as responsible for developing a solid waste management plan shall:

1. Be an organization that represents the executive boards of jurisdictions within the solid waste planning unit;

2. Have planning authority for the regional area;

3. Be capable of readily starting the plan development work tasks;

4. Have an established methodology for resolving conflicts, making planning decisions and providing public participation in the development of the plan;

5. Have experience in environmental planning and have a staff experienced in the work tasks involved in such planning;

6. Have established a methodology and authority sufficient to implement the plan once it is complete and approved; and

7. Have access to informational resources within the region.

9VAC20-130-220. Amendment of solid waste planning unit boundaries. (Repealed.)

The director may amend a solid waste planning unit's boundary based on an application from the governing body or bodies of the solid waste planning unit. Along with the application, each locality (within the original region and any locality being added) must submit a letter acknowledging the change in the boundary.

9VAC20-130-230. Petitioning for variance or exemption.

A. Any person regulated by this chapter may petition the director to grant a variance or an exemption from any requirement of this chapter subject to the provisions of this section. Any petition submitted to the department is also subject to Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

B. The director may grant the variance or an exemption provided the applicant demonstrates to the satisfaction of the director that: 1. The the solid waste planning unit has demonstrated that it has made a good faith effort to comply with the minimum recycling rates and with the requirements of this chapter before that unit petitioned for a variance; and:

2. (i) 1. If the minimum recycling rate is addressed in the petition, and strict application of the minimum recycling rates will result in undue hardship as a result of the solid waste planning unit's particular market conditions that are beyond the planning unit's control; or (ii) if

2. If the recycling rate is not addressed in the petition and, granting the variance will not have an adverse impact on the integrity of the overall solid waste management plan.

C. The petition shall be submitted to the department by certified mail and shall include:

1. The petitioner's name and address;

2. A statement of petitioner's interest in the proposed action;

3. A description of desired action and a citation of the regulation from which a variance is requested;

4. A description of need and justification for the proposed action, including impacts from existing operations and market conditions (if the planning unit chooses to petition for subdivision B 2 (i) 1 of this section);

5. The duration of the variance, if applicable;

6. Other information believed by the applicant to be pertinent; and

7. The following statement signed by the petitioner or authorized representative:

"I certify that I have personally examined and am familiar with the information submitted in this petition and all attached documents, and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment."

D. Petition processing and resolution.

1. In the case of a denial, the petitioner's procedural rights are outlined in Chapter 40 (§ 2.2-4000 et seq.) of Title 2.2 of the Code of Virginia.

2. If the director grants a variance request, the notice to the petitioner shall provide that the variance may be terminated upon a finding by the director that the petitioner has failed to comply with any variance requirements.

DOCUMENTS INCORPORATED BY REFERENCE (9VAC20-130)

Paint Filter Liquids Test, Method 9095, USEPA Publication SW-846.

VA.R. Doc. No. R19-4196; Filed November 28, 2018, 9:51 a.m.