WEST vrrgrm ENVIRo-NTAL QUALITY Bo&D/,x-;i-;l --- CHARLESTON, WEST VIRGINIA L--- '- FINAL ORDER

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1 WEST vrrgrm ENVIRo-NTAL QUALITY Bo&D/,x-;i-;l --- CHARLESTON, WEST VIRGINIA L--- '- A I., - LUSK DISPOSAL SERVICE, Inc. Appellant, Appeal No EQB DIRECTOR, DIVISION OF WATER AND WASTE MANAGEMENT, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee. FINAL ORDER The Appellant, Lusk Disposal Service, Inc., filed this appeal on November 19,2003. The basis of this appeal is a Cease and Desist Order issued by the Division of Water and Waste Management on October 29,2003. The Cease and Desist Order stated that the Appellant operates a solid waste transfer station and that it is operating without a Certificate of Need from the Public Service Commission or a permit to operate a transfer station from the Division of Water and Waste Management. The facility was ordered to cease operating a transfer station until it received a permit from the Appellee. Further, the Order required the Appellant to submit to the Appellee a bbproposed corrective action plan and schedule" within 10 days of the effective date of the Order. The issues in this appeal were whether the facility operated by Lusk Disposal Services,

2 Inc. is a "transfer station" under the West Virginia Solid Waste Management Act and accompanying regulations and whether the Appellant is operating without a valid permit. These issues were raised and evidence was taken in a hearing before a quorum of the members of the Board during a hearing conducted on April 29,2004. The Appellant was represented by Arden J Curry, 11, Esq, Curry & Tolliver. The Appellee was represented by Roland Huson, Esq., Office of Legal Services, Division of Environmental Protection. The Board heard evidence presented by the parties and has decided all issues in this appeal in accordance with the West Virginia Code 8 22B-1-7. The applicable standard of review of the Appellee's action is de novo review. W.Va. Code 8 22B-1-7(e). Pursuant to de novo review, the Board does not afford deference to the Chiefs action, but rather, the Board acts independently on the evidence before it. West Virginia Division of Environmental Protection v. Kingwood Coal Company, 200 W.Va. 734,745,490 S.E. 2d 823,834 (1997). A quorum of the members of the Board met on June 28,2004, to deliberate and decide the issues in this appeal. The members decided this appeal in a manimous vote. To prevail in the appeal, the Appellant must raise an issue with sufficient evidence to support a finding that the Appellee's decision was incorrect. If sufficient evidence supported such finding, then the Appellee would have to produce the evidence demonstrating why its decision was sound, regardless of the Appellants evidence. The Appellant has an opportunity to show that the evidence produced by the Appellee is pre-textual or otherwise deficient. This shifting burden of proof standard was set out in a case before the Circuit Court of Kanawha County, Wetzel County Solid Waste Authority v. ChieJI Ofice of Waste Management, Division of Environmental Protection, Civil Action Number: 95-AA-3 (Circuit Court of Kanawha County,

3 1999). While Wetzel County is merely persuasive authority, the Board agrees with the analysis and has used that test here.. <" In deciding this appeal, the Board reviewed and considered the certified file, the relevant law and regulations, the Notice of Appeal, all written filings and memoranda, the testimony of the witnesses, evidence and arguments presented by counsel. In accordance with W. Va. Code 8 22B-1-7(g)(l), and as explained below, the Board AFFIRMS the Appellee's finding that the Appellant operates a transfer station as defined by the statutes and regulations of West Virginia. The Board, however, sees fit to MODIFY the Cease and Desist Order in order to provide the facility with time in which to comply with the permit requirements contained within that Order.... DISCUSSION This appeal is about a facility operated by the Appellant, Lusk Disposal Services, Inc. in Princeton, West Virginia. The issues are whether this facility is a transfer station as defined by the West Virginia Solid Waste Management Act and accompanying regulations and whether the facility is operating without a valid permit. The Appellant alleges that it is not a transfer station but that it is a recycling facility and that it operates under a permit issued to it in The Appellant operates in several counties in southern West Virginia. The company has been in business since 1967 and it was incorporated in The company has a building located on the same property as its offices in Princeton, West Virginia. Originally built in 1991, the building was reconstructed in 1998 after the first one collapsed under the weight of a heavy snowfall. At the facility, trucks carrying waste material dump the material on the concrete floor of

4 the building. From there, the material is sorted. Cardboard is sorted and then baled. Aluminum, other metals, glass and plastics are also baled. The bales of recyclable materials are then sold and shipped to a manufacturer. The remaining waste material is loaded into walking floor trailers and transported to a landfill in Bristol, Virginia. Lusk does not currently pay the solid waste assessment fees which are required if it is classified as a transfer station. The company argues that since it is a recycling facility, those fees do not apply to it. Witnesses for the Appellant testified that the Appellee,visited the site and inspected the facility numerous times, including during the time the new building was constructed and in the years afterwards." Irrspector~ReportS in the Certified Record support this contention. The facility operates about the same way now as it has previously. No notice of violation for operating a transfer station without a permit was ever issued to the Appellant until October 2003.' One factor that apparently has varied over time and that continues to fluctuate, admitted the Appellant, is the percentage of waste that they recycle. On average, the Appellant stated that it now recycles fifteen to thirty percent of the waste that comes into the facility, which is less than in the past. The Appellee notes that the amount of recycled materials is an important factor since the Appellant's 1991 "Recycling Permit" contained four conditions. The following two conditions are of the most importance to this appeal: 1) "the amount of non-recyclable material taken at the facility must be kept at an absolute minimum;" and 2) "in the future, this facility may be considered a processing unit if the amount of here was an issue discussed in the hearing regarding a Notice of Violation that dated back to August The violation concerned the lack of a stormwater permit for the facility. The Notice of Violation stated that the facility needed such permit. Although the Appellant later applied and paid for a stormwater permit, for some reason never explained by the Appellee during the hearing, the permit application was never acted upon by the agency.

5 non-recyclable material is unacceptable." In August 2003, the Appellee received a letter from Mr. William Patton, the Executive Director of the Raleigh County Solid Waste Authority. The letter contained a request for the Appellee to investigate whether the Appellant operated a transfer station by taking solid waste from Raleigh County to Lusk's operation in Mercer County. The letter alleged that transfer of waste occurred at the Lusk facility and that Lusk did not have a permit to operate as such. Further, the letter alleged that the operation deprived the state and counties of revenue. Later in August, inspectors from the Division of Environmental Protection inspected the Appellant's facility. From the inspection, the Appellee determined that the Appellant operated a transfer station without a permit. The findings made by the inspectors during the August 2003 inspection were then incorporated in the Cease and Desist Order that was issued on October 29,2003. The Order stated that the inspectors determined that the facility transferred waste "from one truck to another to facilitate transport to a landfill, in such a manner that requires a permit." The Appellant argues that it is not a transfer station because it does not transfer the waste from one truck directly to another. Instead, the Appellant argues that it brings the waste to its facility where it is processed. The processing involves the sorting, removal and baling of the recyclable material that is performed before the remaining waste is then loaded into a walking floor trailer that transports it to a landfill. Lusk argues that these extra processing steps make its facility a recycling facility and not a transfer station. Transfer stations, the Appellant argues, are operations that transfer waste from one vehicle to a transport vehicle for delivery to a landfill. The waste at a transfer station, it argues, is not processed or recycled.

6 The Appellee argues that the definition of transfer station does not require that waste is loaded from one vehicle directly to another. The Appellee even concedes that a facility, such as the Appellant's, could be both a transfer station and a mixed waste processing facility. The definitions of the pertinent terms in this appeal are found in the Solid Waste Management Act and the accompanying regulations promulgated by the Appellee. Under the regulations2, a transfer station is defined as follows: "a combination of structures, machinery, or devices at a place, location or facility where solid waste is taken from collection vehicles, and placed in other transportation units (such as a "walking floor," "dump trailer" or other method of transfer as determined by the director) for movement to another solid waste management facility. Provided, when the initial generator of solid waste disposes of said waste into a container such as a roll-off, greenbox or bin which is temporarily positioned (not more than five days) at a specific location for transport by a transportation unit, such container shall not be considered a transfer station. Under any circumstances, leachate, litter and windblown materials must be properly managed." 33 CSR On its face the regulation does not state that the waste must be taken from a collection vehicle and placed "directly" in a transportation unit. Further, the regulation does not preclude the sorting or other processing of waste before it is placed in the transportation vehicle. Another pertinent' defifii'tibn is that for "recycling facility." This term is defined the same in the statute and the regulation. The statutory definition of recycling facility is as follows: "any solid waste facility for the purpose of recycling at which neither land disposal nor biological, chemical or thermal transformation of solid waste occurs: Provided, That mixed waste recovery facilities, sludge processing facilities and composting facilities are not considered recycling facilities nor considered to be reusing or recycling solid waste within the meaning of this article, article four, chapter twenty-two-c and article eleven, chapter twenty of this code." The Boardlapplied. the Solid Waste Management Rule that has an effective date of April 30,1999. A more recent rule became effective on April 14,' 2004, however, this rule was not effective on the date of the Appellee's Cease and Desist Order which is the basis of this appeal.

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