SER East End Assoc. v. McCoy, et al.
Annotate this Case
September 1996 Term
___________
No. 23746
___________
STATE OF WEST VIRGINIA
EX REL. EAST END ASSOCIATION,
J. MICHAEL MOLLOHAN
AND CARTER ZERBE,
Petitioners
v.
ELI McCOY, DIRECTOR OF THE
DEPARTMENT OF ENVIRONMENTAL PROTECTION;
GRETCHEN LEWIS, SECRETARY,
DEPARTMENT OF HEALTH AND HUMAN RESOURCES;
AND CHARLESTON AREA MEDICAL CENTER, INC.,
Respondents
___________________________________________________
Petition for Writ of Mandamus and Injunction
WRIT GRANTED AS MOULDED;
INJUNCTIVE RELIEF GRANTED.
___________________________________________________
Submitted: October 29, 1996
Filed: December 16, 1996
Joshua I. Barrett
Sean P. McGinley
DiTrapano & Jackson
Charleston, West Virginia
Patrick C. McGinley
Morgantown, West Virginia
Attorneys for the Petitioners
William E. Adams, Jr.
Charleston, West Virginia
Attorney for the Respondent, Department of Environmental Protection
Darrell V. McGraw, Jr.
Attorney General
Charlene A. Vaughan
Senior Assistant Attorney General
Jeffrey K. Matherly
Charleston, West Virginia
Attorneys for Respondent, Department of Health and Human Resources
James R. Snyder
Barbara D. Little
Jackson & Kelly
Charleston, West Virginia
Attorneys for Respondent, Charleston Area Medical Center, Inc.
CHIEF JUSTICE McHUGH delivered the Opinion of the Court.
JUDGE RECHT sitting by temporary assignment.
SYLLABUS BY THE COURT
1.
"'"Before this Court may properly issue a writ of mandamus three elements
must coexist: (1) the existence of a clear right in the petitioner to the relief sought; (2) the
existence of a legal duty on the part of the respondent to do the thing the petitioner seeks to
compel; (3) the absence of another adequate remedy at law." Syllabus Point 3, Cooper v.
Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981).' Syl. pt. 1, Meadows v. Lewis, 172 W.Va.
457, 307 S.E.2d 625 (1983).
" Syl. pt. 2, State ex rel. Blankenship v. Richardson, ___ W. Va.
___, 474 S.E.2d 906 (1996).
2.
"'"Interpretations of statutes by bodies charged with their administration
are given great weight unless clearly erroneous." Syl. pt. 4, Security National Bank & Trust
Company v. First W. Va. Bancorp, Inc., 166 W. Va. 775, 277 S.E.2d 613 (1981).' Syllabus
point 3, Smith v. Board of Education of County of Logan, 176 W. Va. 65, 341 S.E.2d 685
(1985).
" Syl. Pt. 7, Lincoln County Board of Education v. Adkins, 188 W. Va. 430, 424 S.E.2d 775 (1992).
3. Under
W. Va. Code, 22-15-10(b) [1994], it is unlawful for any person,
unless the person holds a valid permit from the division of environmental protection to
install, establish, construct, modify, operate or abandon any solid waste facility. All
approved solid waste facilities shall be installed, established, constructed, modified, operated
or abandoned in accordance with this article, plans, specifications, orders, instructions and
rules in effect.
A person who obtains a construction permit from the Division of Environmental Protection under W. Va. Code, 22-5-11 [1994] of the West Virginia Air
Pollution Control Act to construct a medical waste incinerator is not required to also obtain
a construction permit for that purpose under W. Va. Code, 22-15-10(b) [1994].
4. Under W. Va. Code, 20-5J-5(b) [1991] and 64 C.S.R. 56-4.1 [1993] no
person may own, construct, modify, operate or close an infectious medical waste
management facility without first obtaining a permit from the secretary of the Department
of Health and Human Resources. According to 64 C.S.R. 56-4.4.4 [1993], an infectious
medical waste management facility permit application must include, among other
information, a proposed infectious medical waste management plan. The secretary of the
Department of Health and Human Resources must approve this plan before he or she grants
a permit to own, construct, modify, operate or close an infectious medical waste management
facility.
5. Under W. Va. Code, 20-5J-6(a)(9) [1994], the secretary of the Department
of Health and Human Resources shall promulgate legislative rules in accordance with the
provisions of W. Va. Code, 29A-1-1, et seq. necessary to effectuate the findings and
purposes of the West Virginia Medical Waste Act, W. Va. Code, 20-5J-1, et seq. These
rules shall include, but not be limited to, procedures for public participation in the
implementation of this article. W. Va. Code, 20-5J-6(a)(9) [1994] requires the secretary of
the Department of Health and Human Resources to promulgate legislative rules setting forth
procedures for public participation in the permit application process of noncommercial
infectious medical waste management facilities.
McHugh, Chief Justice:
Petitioners East End Association, an unincorporated association, J. Michael
Mollohan and Carter Zerbe invoke this Court'sSee footnote 1 original jurisdiction pursuant to W. Va.
Code, 53-1-3 [1933], and request that a writ of mandamus be directed against respondents
Eli McCoy, Director, Division of Environmental Protection (hereinafter collectively referred
to as "DEP"), Gretchen Lewis, Secretary, Department of Health and Human Resources
(hereinafter collectively referred to as "DHHR"), to compel them to perform their
mandatory, nondiscretionary duties under, respectively, the West Virginia Solid Waste
Management Act, W. Va. Code, 22-15-1 et seq., and the West Virginia Medical Waste Act,
W.Va. Code, 20-5J-1 et seq. with regard to the permit application process for respondent
Charleston Area Medical Center, Inc.'s (hereinafter "CAMC") construction of a new medical
waste incinerator. On October 3, 1996, this Court issued a rule in mandamus against
respondents DEP and DHHR to show cause why a peremptory writ of mandamus should not
be awarded against them.See footnote 2
I.
The facts of this case are, for the most part, not in dispute. CAMC provides
health care in Charleston, West Virginia, through three divisions, namely, the Women's and
Children's Hospital, the Memorial Division, and the General Division. CAMC produces
both noninfectious and infectious medical waste, such as blood and other body fluids,
needles, laboratory and pathological wastes.
Until recently, CAMC operated medical waste incinerators at each of its three
divisions. All three of these medical waste incinerators burned both infectious and
noninfectious waste. Due to the advanced age of the three incinerators, as well as to newly-
enacted state and federal regulatory standards, CAMC, with the help of two consulting firms,
determined that its three incinerators should be replaced with a single, centralized
incinerator.See footnote 3 This centralized, state-of-the-art medical waste incinerator is currently under construction where the incinerator at the General Division formerly stood, in the east end of
Charleston.See footnote 4
Following a proceeding in which some of the petitioners hereinSee footnote 5 were parties
in opposition, CAMC obtained approval from the West Virginia Health Care Cost Review
Authority to commit funds for its new incinerator. CAMC subsequently demolished the
incinerator at the General Division and eventually began construction there of the one
presently at issue.
Prior to commencing construction, CAMC applied to the DEP's Office of Air
Quality (hereinafter "DEP-OAQ") for a permit to construct the new incinerator, which is a
stationary source of air pollutants, pursuant to W.Va. Code, 22-5-11 [1994]See footnote 6 of the West Virginia Air Pollution Control Act. Application for this permit was the subject of two legal
advertisements in local newspapers, advising the public of the permit application and
soliciting public comment thereon. The DEP-OAQ, receiving neither public comment nor
a request for a public meeting on the matter, issued to CAMC a permitSee footnote 7 to construct the
incineratorSee footnote 8 on or about March 17, 1995.See footnote 9
In late July of 1996, CAMC began constructing the new incinerator at the
General Division. As of the date of the filing of this petition, construction of the new
incinerator was scheduled to be completed in November of 1996.
On July 31, 1996, petitioners filed a complaint and motion for a temporary and
permanent injunction in the Circuit Court of Kanawha County to enjoin CAMC from
"undertaking any construction activity related to its proposed incinerator until such time as
it has acquired all permits and approvals it is required by law to obtain before commencing
such construction." Specifically, petitioners alleged, inter alia, that CAMC was required to,
but did not apply for and receive permits under both the West Virginia Solid Waste
Management Act, W. Va. Code, 22-15-1 et seq., and the West Virginia Medical Waste Act,
W. Va. Code, 20-5J-1 et seq, prior to construction of the incinerator.
A.
On August 9, 1996, four days before the scheduled hearing on petitioners'
request for injunctive relief, CAMC filed an application for a solid waste operation permit,See footnote 10
under the West Virginia Solid Waste Management Act, pursuant to 47 C.S.R. 38-3.16.2.b.B [1996], which requires incinerator facilities to obtain "[a] solid waste permit for solid waste
storage areas and support facilities from the [DEP]."See footnote 11
On August 12, 1996, one day before the August 13, 1996 hearing on
petitioners' motion, the DEP and CAMC entered into a consent order, pursuant to W. Va.
Code, 22-15-5(f) [1994].See footnote 12 Under the consent order, CAMC is permitted to operate the new
incinerator while its solid waste permit application is being considered.See footnote 13 According to its
order denying petitioners' motion for injunctive relief, the circuit court found, inter alia, that
"[t]he terms of the consent order are the same as those which will be in the permit if and when it is issued[,]" and that "[t]hese terms relate solely to operations and will not permit
any construction."See footnote 14
The circuit court further found that solid waste permits such as the one applied
for by CAMC and currently being considered by the DEP have not been required of any
other medical waste incinerator in this State. According to the circuit court's order, the DEP
is currently evaluating this situation and it may enter into consent orders with other hospitals.
B.
In 1992, the DHHR began processing applications for permits to operate
infectious medical waste management facilities under the West Virginia Medical Waste Act,
W. Va. Code, 20-5J-1 et seq.See footnote 15 On or about May 27, 1992, CAMC applied to the DHHR for
a permit to operate its existing infectious medical waste management facility at the General
Division under the Medical Waste Act. No public notice of this permit application was
given.See footnote 16 On September 28, 1992, CAMC also submitted its required Infectious Medical Waste Management Plan, pursuant to 64 C.S.R. 56-5 [1993],See footnote 17 at which time it requested a
waiver to certain incinerator operation requirements, as the incinerator at General Division,
in existence when the Medical Waste Act was enacted, did not comply with these
requirements.See footnote 18 The DHHR subsequently granted CAMC a waiver to the incinerator
operation requirements "contingent upon submission of plans to upgrade the facility so as to be in full compliance with [64 C.S.R. 56-10.2.2 through 10.2.4] [.]" 64 C.S.R. 56-10.2.7
[1993], in relevant part. (emphasis added).
CAMC has since applied for and received annual renewal permits to operate
its infectious medical waste management facility at General Division.See footnote 19
In conjunction with its renewal permit application for 1995-96 and submission
of its Infectious Medical Waste Management Plan, Lillian D. Morris, Safety Director at
CAMC, in a letter dated April 14, 1995, informed the DHHR, inter alia, that CAMC had
been issued a permit by the DEP-OAQ to construct the incinerator at issue at the General
Division. CAMC Safety Director Morris, referring to 64 C.S.R. 56-4.1 [1993], which
provides that "no person may . . . construct, modify . . . an infectious medical waste
management facility . . . without first obtaining a permit[,]" Id., in relevant part, asked that
DHHR advise her as to its "specific requirements for application applicable to this project."
In its August 22, 1996 order denying petitioners' motion for injunctive relief, the circuit
court found that, in response to CAMC's inquiry, the "DHHR informed CAMC that all that
would be required for the upgrade would be a[n] [Infectious Medical Waste Management]
[P]lan revision to be approved prior to operation."
CAMC applied for renewal of its permit for 1996-97 by application dated
April 25, 1996. This application indicated, on its face, that a new incinerator was being constructed at the General Division. CAMC submitted its Infectious Medical Waste
Revised Management Plan, dated August 8, 1996, after construction of the incinerator at
issue began in July of 1996.See footnote 20
The DHHR accepted CAMC's revised plan, conveying in an August 15, 1996
letter to Safety Director Morris the following relevant information:
Receipt is acknowledged of your August 9,1996, letter
enclosing the revised Infectious Medical Waste Management
Plans (IMWMP) for CAMC General Division.
Section 10 of your IMWMP includes upgrades to the
incinerator pursuant to [64 C.S.R. 56-10.2.7] which will bring
it into full compliance with [64 C.S.R. 56-10.2.2 through
10.2.4]. We note the replacement incinerator has been
approved by the [DEP-OAQ] and a new Permit to Construct a
Stationary Source of Air Pollutants was issued on July 30, 1996.
The proposed unit will meet or exceed the anticipated EPA
Medical Waste Incinerator Rules. It is also noted that the
incinerator at General division will be used to treat the waste
generated at all three CAMC divisions. Following upgrade and
startup of this facility, and with the closing of the remaining
incinerator at Memorial division, CAMC will no longer be
operating under the waiver issued pursuant to [64 C.S.R. 56-
10.2.7] in October of 1992.
Your IMWMP for CAMC General division has been
reviewed and approved.
As indicated above, petitioners herein filed a motion for a temporary and
permanent injunction against CAMC in the Circuit Court of Kanawha County on July 31,
1996. Petitioners sought to enjoin CAMC from constructing the incinerator at issue until it
has, inter alia, obtained permits to construct under the West Virginia Solid Waste
Management Act and the West Virginia Medical Waste Act. A hearing on petitioners'
motion was conducted on August 13, 1996. In an order dated August 22, 1996, the circuit
court denied petitioners' motion for injunctive relief.
Petitioners subsequently filed with this Court a petition for writ of mandamus
against respondents DEP and DHHR to require these agencies to comply with their
mandatory, nondiscretionary duties to require construction permits for incinerators such as
the one at issue. Petitioners' petition further asked this Court to require the DHHR to promulgate regulations affording the right of public participation in the permit application
process under the Medical Waste Act. Petitioners also filed a motion for injunctive relief
against respondent CAMC, seeking to enjoin it from constructing and operating the
incinerator at issue until it applies for and obtains the proper permits under both the Solid
Waste Management Act and the Medical Waste Act. This Court granted the petitioners'
motion for injunctive relief only as to operation of the incinerator. See n. 2, supra.
II.
Entitlement to the extraordinary remedy of mandamus requires three
fundamental elements:
'"Before this Court may properly issue a writ of
mandamus three elements must coexist: (1) the existence of a
clear right in the petitioner to the relief sought; (2) the existence
of a legal duty on the part of the respondent to do the thing the
petitioner seeks to compel; (3) the absence of another adequate
remedy at law." Syllabus Point 3, Cooper v. Gwinn, 171 W.Va.
245, 298 S.E.2d 781 (1981).' Syl. pt. 1, Meadows v. Lewis,
172 W.Va. 457, 307 S.E.2d 625 (1983).
Syl. pt. 2, State ex rel. Blankenship v. Richardson, ___ W. Va. ___, 474 S.E.2d 906 (1996).
III.
The West Virginia Solid Waste Management Act
In an effort to "establish a comprehensive program of controlling all phases of
solid waste management[,]" W. Va. Code, 22-15-1(a) [1994], the legislature enacted the
West Virginia Solid Waste Management Act, W. Va. Code, 22-15-1 et seq. In particular, the
Solid Waste Management Act was enacted because
(b) [t]he Legislature finds that uncontrolled, inadequately
controlled and improper collection, transportation, processing
and disposal of solid waste (1) is a public nuisance and a clear
and present danger to people; (2) provides harborages and
breeding places for disease-carrying, injurious insects, rodents
and other pests harmful to the public health, safety and welfare;
(3) constitutes a danger to livestock and domestic animals; (4)
decreases the value of private and public property, causes
pollution, blight and deterioration of the natural beauty and
resources of the state and has adverse economic and social
effects on the state and its citizens; (5) results in the squandering
of valuable nonrenewable and nonreplenishable resources
contained in solid waste; (6) that resource recovery and
recycling reduces the need for landfills and extends their life;
and that (7) proper disposal, resource recovery or recycling of
solid waste is for the general welfare of the citizens of this state.
(c) The Legislature further finds that disposal in West
Virginia of solid waste from unknown origins threatens the
environment and the public health, safety and welfare, and
therefore, it is in the interest of the public to identify the type,
amount and origin of solid waste accepted for disposal at West
Virginia solid waste facilities.
. . . .
(f) The Legislature further finds that incineration
technologies present potentially significant health and
environmental problems.
Id., in relevant part.
As indicated earlier, a "solid waste facility" is defined as "any system, facility,
land, contiguous land, improvements on the land, structures, or other appurtenances or
methods used for processing, recycling, or disposing of solid waste including . . .
incinerators[.]" 47 C.S.R. 38-2.120 [1996]. Solid waste includes noninfectious medical
waste. W. Va. Code, 20-5J-3(8) [1991]. The incinerator at issue, including the area around it where solid waste is stored and handled prior to incineration, is considered a solid waste
facility and is, therefore, governed by the Solid Waste Management Act.
A.
Petitioners contend that CAMC was required to obtain a permit to construct
the solid waste facility at issue, pursuant to the West Virginia Solid Waste Management Act,
and, in particular, W. Va. Code, 22-15-10(b) [1994]. W. Va. Code, 22-15-10(b) [1994]
provides:
It is unlawful for any person, unless the person holds a
valid permit from the [DEP] to install, establish, construct,
modify, operate or abandon any solid waste facility. All
approved solid waste facilities shall be installed, established,
constructed, modified, operated or abandoned in accordance
with this article, plans, specifications, orders, instructions and
rules in effect.
(emphasis added).
Similarly, W. Va. Code, 22-15-5(b) [1994], provides, in relevant part:
[t]he director [of the DEP], after public notice and
opportunity for public hearing near the affected community,
may issue a permit with reasonable terms and conditions for
installation, establishment, modification, operation or closure of
a solid waste facility: Provided, That the director may deny the
issuance of a permit on the basis of information in the
application or from other sources including public comment, if
the solid waste facility is likely to cause adverse impacts on the
environment.
See 47 C.S.R. 38-3.5.1 [1996] ("[a] permit must be obtained from the director [of the DEP]
prior to the installation, establishment, construction, modification, operation, or closure of
any solid waste facility.")
CAMC and the DEP argue, however, that W. Va. Code, 22-15-10(b) [1994]
simply requires that a single permit be issued by the director of the DEP for the construction
of a solid waste facility. CAMC and the DEP maintain that this directive was followed
when, in March of 1995, the DEP, after public notice was given, issued a construction permit
pursuant to the Air Pollution Control Act, W. Va. Code, 22-5-1 et seq.
Though petitioners do not presently challenge the validity of the construction
permit issued by the DEP-OAQ pursuant to W. Va. Code, 22-5-11 [1994] , they contend that
the issuance of that construction permit does not satisfy the construction permit requirement
of the Solid Waste Management Act. As petitioners point out, when the DEP-OAQ
considered CAMC's permit application under the Air Pollution Control Act, W. Va. Code,
22-5-1, et seq., it did not then consider the application in terms of the requirements of the
Solid Waste Management Act and its corresponding regulations.
Petitioners' argument that CAMC was required to obtain a solid waste
construction permit under W. Va. Code, 22-15-10(b) [1994], in addition to the permit it had
already acquired under W. Va. Code, 22-5-11 [1994] of the Air Pollution Control Act, is not
unreasonable. However, as indicated above, the DEP, which administers both the Solid
Waste Management Act and the Air Pollution Control Act, interprets W. Va. Code, 22-15-
10(b) [1994] as requiring that a single permit be issued by that agency for construction of a
solid waste facility. According to the DEP, the construction permit required and, in fact,
obtained by CAMC was the permit issued by the DEP-OAQ, pursuant to the Air Pollution
Control Act.
We defer to the DEP's interpretation of W. Va. Code, 22-15-10(b) [1994]. As
we held in syllabus point 7 of Lincoln County Board of Education v. Adkins, 188 W. Va.
430, 424 S.E.2d 775 (1992): "'Interpretations of statutes by bodies charged with their
administration are given great weight unless clearly erroneous.' Syl. pt. 4, Security National
Bank & Trust Company v. First W. Va. Bancorp, Inc., 166 W. Va. 775, 277 S.E.2d 613
(1981)." Syllabus point 3, Smith v. Board of Education of County of Logan, 176 W. Va. 65,
341 S.E.2d 685 (1985).See footnote 21
We hold, therefore, that under W. Va. Code, 22-15-10(b) [1994], it is unlawful
for any person, unless the person holds a valid permit from the division of environmental
protection to install, establish, construct, modify, operate or abandon any solid waste facility.
All approved solid waste facilities shall be installed, established, constructed, modified,
operated or abandoned in accordance with this article, plans, specifications, orders,
instructions and rules in effect. A person who obtains a construction permit from the DEP under W. Va. Code, 22-5-11 [1994] of the West Virginia Air Pollution Control Act to
construct a medical waste incinerator is not required to also obtain a construction permit for
that purpose under W. Va. Code, 22-15-10(b) [1994].
As indicated above, under W. Va. Code, 22-15-10(b) [1994], it is unlawful for
any person, unless the person holds a valid operation permit, to operate any solid waste
facility. Accordingly, CAMC may not operate its solid waste facility,See footnote 22 including its new
incinerator, until it receives a solid waste permit. To the extent this opinion conflicts with
the consent order previously entered into between CAMC and the DEP allowing CAMC to
operate the new incinerator pending consideration of its solid waste permit, such consent
order is set aside.
IV.
The West Virginia Medical Waste Act
The West Virginia Medical Waste Act, W. Va. Code, 20-5J-1, et seq., was
enacted to regulate "the generation, handling, storage, transportation, treatment and disposal
of medical waste" in this State. W. Va. Code, 20-5J-2 [1991], in part. According to W. Va.
Code, 20-5J-2 [1991]:
The Legislature finds that the proper and
environmentally-sound disposal of infectious and noninfectious
medical waste is an important issue facing all West Virginians.
The Legislature further finds that effective controls for
the management of medical waste are necessary to ensure the protection of the public health, safety and welfare, and the
environment.
. . . .
The Legislature further finds that toxic pollutants
emitted by medical waste incinerators are an important public
health hazard.
. . . .
The Legislature further finds that safe and cost-effective
alternatives to the incineration of infectious and noninfectious
medical waste should be encouraged.
The Legislature further finds that the public interest is
best served by:
(1) Efforts to reduce the volume of medical waste
generated at all levels;
(2) On-site separation and treatment of infectious medical
waste; [and]
(3) Treatment and disposal of infectious medical waste
in local infectious medical waste management facilities [.]
. . . .
The Legislature further finds that local responsibility for
the minimization in volume, and for the treatment and disposal
of infectious and noninfectious medical waste is an important
part of a sound and rational waste management program.
. . . .
The Legislature further finds that noninfectious medical
waste should be handled by environmentally-sound disposal
technologies, and that alternative disposal technologies
promoting safe recycling and limiting the need for incineration
should be emphasized, developed and utilized.
Id., in relevant part.
A.
The first issue for our review under the West Virginia Medical Waste Act is
whether CAMC was required to obtain a permit thereunder prior to construction of the
incinerator at issue. Resolution of this issue requires careful analysis of the Act's statutory
scheme and the regulations promulgated pursuant thereto.
W. Va. Code, 20-5J-5(b) [1991] provides:
On or after [October 1, 1991], no person may own,
construct, modify, operate or close any facility or site for the
treatment, storage or disposal of infectious medical waste, nor
shall any person store, treat or dispose of any such infectious
medical waste without first obtaining a permit from the
secretary [of the DHHR], unless specifically excluded or
exempted by rules promulgated by the secretary.
(emphasis added).
Similarly, 64 C.S.R. 56-4.1 [1993] and 64 C.S.R. 56-4.2 [1993] provide:
4.1. On or after [October 1, 1991], no person may own,
construct, modify or operate an infectious medical waste
management facility, nor shall any person store, transport, treat
or dispose of any infectious medical waste without first
obtaining a permit from the secretary [of the DHHR], unless
exempted by Sections 2.1, 2.2 or 4.15 of this rule: Provided,
however, That submission of an application for a permit under
this rule within [45] days after the effective date of this rule
shall be a rebuttable presumption of compliance with this rule
until such time as the secretary grants or denies the permit.
4.2. No person shall begin physical construction of a new
infectious medical waste management facility without having
received a permit.
(emphasis added).
An "infectious medical waste management facility" is defined in 64 C.S.R. 56-
3.10 [1993] as
an infectious medical waste facility which generates, handles,
processes, stores, treats or disposes of infectious medical waste,
including all land and structures, other appurtenances, and
improvements thereon, used for infectious medical waste.
(emphasis added).
CAMC points out, and petitioners do not dispute, that the regulatory definition
of the term "facility" is derived from federal and West Virginia hazardous waste management
regulations. Specifically, 40 C.F.R. § 260.10 [1995], as adopted by reference in 47 C.S.R.
35-2, defines the term "facility" as:
All contiguous land, and structures, other appurtenances,
and improvements on the land, used for treating, storing or
disposing of hazardous waste. A facility may consist of several
treatment, storage, or disposal operational units (e.g., one or
more landfills, surface impoundments or combinations of them).
Id., in relevant part.
CAMC maintains that, according to the above definitions, an incinerator, which
treats infectious medical waste,See footnote 23 is a component of an infectious medical waste management facility. In addition to an incinerator, such a facility consists of all land and structures, other
appurtenances and improvements thereon, which generate, handle, process and store
infectious medical waste. Id.See footnote 24
The infectious medical waste management facility in this case, therefore,
includes not only the incinerator at issue, but also CAMC's hospitals and other structures and
improvements where infectious medical waste is generated and stored prior to being treated
in the incinerator.
B.
64 C.S.R. 56-4.4 [1993] sets forth the permit application requirements for
infectious medical waste management facilities under the Medical Waste Act:
4.4 An application for a permit shall be submitted to the
secretary in duplicate on forms prescribed by the secretary and
shall include the following:
4.4.1. The name, mailing address, and location of the
facility for which the application is submitted;
4.4.2. The name, address and telephone number of the
owners of the facility;
4.4.3. The name, address, and telephone number of the
manager of the facility, if different from the owner; and
4.4.4. A proposed infectious medical waste management
plan as required by Section 5 of this rule.
Pursuant to 64 C.S.R. 56-4.5 [1993], permit applications for new infectious
medical waste management facilities are required to include the following detailed
information, in addition to the requirements set forth in 64 C.S.R. 56-4.4 [1993], above:
4.5 For new infectious medical waste management
facilities, the application shall be accompanied by two (2)
copies of a topographic map showing the facility and the area
one thousand (1,000) feet around the facility site, which clearly
shows the following:
4.5.1. The map scale and date;
4.5.2. Land uses (e.g., residential, commercial,
agricultural, recreational);
4.5.3. The orientation of the map (north arrow);
4.5.4. The legal boundaries of the facility site;
4.5.5. Access control (fences, gates); and
4.5.6. Buildings to be used for treatment, storage, and
disposal operations and other structures (e.g. recreation areas,
run-off control systems, access and internal roads, storm,
sanitary, and process sewerage systems, loading and unloading
areas, fire control facilities).
As previously discussed, CAMC was an infectious medical waste management
facility already in existence when the Medical Waste Act was enacted. In 1992, it applied
for a permit under the Medical Waste Act, pursuant to W. Va. Code, 20-5J-5(b) [1991], 64
C.S.R. 56-4.1 [1993] and 64 C.S.R. 56-4.4 [1993]. Because CAMC was not a new infectious medical waste management facility when it applied for a permit in 1992, it was
not required, in its permit application, to submit the detailed information set forth in 64
C.S.R. 56-4.5 [1993], above.
C.
In 1992, when CAMC originally applied for a permit under the Medical Waste
Act, CAMC requested and was granted a waiver as to three incinerator operation
requirements, pursuant to 64 C.S.R. 56-10.2.7 [1993] ("[f]acilities with incinerators in
operation at the time this rule becomes effective may apply . . . for a waiver . . . . [which].
. . . shall be contingent upon submission of plans to upgrade the facility so as to be in full
compliance with [64 C.S.R. 56-10.2.2 through 10.2.4] [.]" Id., in relevant part. (emphasis
added)). This waiver was, according to the language of 64 C.S.R. 56-10.2.7 [1993], granted
on the condition that CAMC upgrade its facility, and in particular, its incinerator(s), to
comply with the three incinerator operation requirements.See footnote 25 See n. 18, supra.
When CAMC filed its application to renew its infectious medical waste
management facility permit for 1995-96, it submitted an Infectious Medical Waste
Management Plan, as required by 64 C.S.R. 56-4.4.4 [1993],See footnote 26 as well as a letter, dated
August 14, 1995, in which it informed the DHHR, inter alia, that it had been issued a permit by the DEP-OAQ to construct the incinerator at issue. In the August 14, 1995 letter, CAMC,
by Safety Director Morris, asked the DHHR to advise it as to CAMC's "specific
requirements for application applicable to this project." Safety Director Morris referred
specifically to 64 C.S.R. 56-4.1 [1993]'s requirement that "no person may own, construct,
modify, or operate an infectious medical waste management facility. . . without first
obtaining a permit[.]" Id., in relevant part. As we have already indicated, the circuit court
found, in its August 22, 1996 order, that the "DHHR informed CAMC that all that would be
required for the upgrade [that is, the new incinerator] would be a[n] [Infectious Medical
Waste Management Plan] revision to be approved prior to operation." (emphasis added).
By application dated April 25, 1996, CAMC applied for renewal of its permit
for 1996-97. This application indicated, on its face, that a new incinerator was being
constructed at the General Division. As we have already noted, CAMC submitted a revised
Infectious Medical Waste Management Plan, on or about August 8, 1996, indicating the
changes to its plan "when the centralized incinerator currently under construction is
operational[,]" and seeking approval thereof.See footnote 27 See n. 20, supra.
Under W. Va. Code, 20-5J-5(b) [1991], supra, and 64 C.S.R. 56-4.1, supra, no
person may own, construct, modify, operate or close an infectious medical waste
management facility without first obtaining a permit from the DHHR. As set forth above, 64 C.S.R. 4.4 through 4.4.4 [1993] provide the application requirements for such permit.See footnote 28
An infectious medical waste management facility permit application must include, among
other information, "[a] proposed infectious medical waste management plan as required by
[64 C.S.R. 56-5]." 64 C.S.R. 56-4.4.4 [1993]. The DHHR must approve this plan before
it grants a permit to own, construct, modify, operate or close an infectious medical waste
management facility.
Accordingly, we hold that under
W. Va. Code, 20-5J-5(b) [1991] and 64
C.S.R. 56-4.1 [1993] no person may own, construct, modify, operate or close an infectious
medical waste management facility without first obtaining a permit from the secretary of the
Department of Health and Human Resources. According to 64 C.S.R. 56-4.4.4 [1993], an
infectious medical waste management facility permit application must include, among other
information, a proposed infectious medical waste management plan. The secretary of the
Department of Health and Human Resources must approve this plan before he or she grants
a permit to own, construct, modify, operate or close an infectious medical waste management
facility.
In this case, CAMC submitted to the DHHR a revised infectious medical waste
management plan which reflects the incinerator currently under construction and the changes to its plan once the incinerator is in operation. CAMC's plan was submitted in conjunction
with its 1996-97 renewal permit application but after construction of the incinerator had
already begun. By letter dated August 15, 1996, the DHHR indicated its approval of
CAMC's revised infectious medical waste management plan. It is unclear from the record
in this case whether the DHHR then issued to CAMC a permit which would allow CAMC
to operate its new incinerator. CAMC may not operate the new incinerator until such time
as it obtains this permit.
V.
The remaining issue under the West Virginia Medical Waste Act is whether
W. Va. Code, 20-5J-6(a)(9) [1994] requires the DHHR to promulgate regulations which
provide for public participation in the permit application process for noncommercial
infectious medical waste management facilitiesSee footnote 29 such as that operated by CAMC.
W. Va. Code, 20-5J-6(a)(9) [1994] provides:
(a) The secretary [of the DHHR] shall promulgate
legislative rules, in accordance with . . . [W. Va. Code, 29A-1-1
et seq.] . . . necessary to effectuate the findings and purposes of
this article. Said rules shall include, but not be limited to the
following:
. . . .
(9) Procedures for public participation in the
implementation of this article[.]
Pursuant to W. Va. Code, 20-5J-6(a)(9) [1994], the DHHR promulgated 64
C.S.R. 56-11 [1993], which sets forth rather detailed procedures for public participation in
the permit application process of commercial infectious medical waste facilities. In
promulgating 64 C.S.R. 56-11 [1993], the DHHR maintains that it has complied with the
requirements set forth in W. Va. Code, 20-5J-6(a)(9) [1994].
Petitioners argue, however, that commercial infectious medical waste
management facilities, defined as "any infectious medical waste management facility at
which thirty-five percent or more by weight of the total infectious medical waste stored,
treated, or disposed of by said facility in any calendar year is generated off-site[,]" W. Va.
Code, 20-5J-3(1) [1991], are, with few exceptions, expressly prohibited by statute. See
W. Va. Code, 20-5J-4 [1991].See footnote 30 Noncommercial infectious medical waste management facilities, on the other hand, such as that operated by CAMC, are lawful and exceedingly
more common in our communities.
As indicated above, the Medical Waste Act was enacted upon findings by the
legislature that, inter alia, "effective controls for the management of medical waste are
necessary to ensure the protection of the public health, safety and welfare, and the
environment" and that "toxic pollutants emitted by medical waste incinerators are an
important public health hazard." W. Va. Code, 20-5J-2 [1991], in part. These findings are
applicable to noncommercial infectious medical waste management facilities, as well as to
commercial ones. Moreover, W. Va. Code, 20-5J-6(a)(9) [1994] makes no distinction
between commercial and noncommercial facilities in its requirement that the DHHR
promulgate rules for procedures for public participation in the implementation of the Medical
Waste Act.
Thus, petitioners essentially maintain that it was the legislature's intention that
the DHHR promulgate rules which set forth procedures for public participation in the permit
application process of the more prevalent noncommercial infectious medical waste
management facilities, in addition to commercial facilities. In promulgating rules for public participation with regard to commercial infectious medical waste management facilities but
not with regard to noncommercial facilities, the DHHR has only partially complied with the
mandates of W. Va. Code, 20-5J-6(a)(9) [1994].
We hold that under W. Va. Code, 20-5J-6(a)(9) [1994], the secretary of the
Department of Health and Human Resources shall promulgate legislative rules in accordance
with the provisions of W. Va. Code, 29A-1-1, et seq. necessary to effectuate the findings
and purposes of the West Virginia Medical Waste Act, W. Va. Code, 20-5J-1, et seq. These
rules shall include, but not be limited to, procedures for public participation in the
implementation of this article. W. Va. Code, 20-5J-6(a)(9) [1994] requires the secretary of
the Department of Health and Human Resources to promulgate legislative rules setting forth
procedures for public participation in the permit application process of noncommercial
infectious medical waste management facilities.
We therefore order the DHHR to carry out its mandatory, nondiscretionary
duty of promulgating legislative rules which set forth procedures for public participation in
the permit application process of noncommercial infectious medical waste management
facilities.
As discussed above, CAMC has received approval of its revised infectious
medical waste management plan which reflects the incinerator at issue. Though the record
is unclear, it appears that the DHHR has not yet issued to CAMC a permit which would
authorize operation of the incinerator.
Under these circumstances, we will not require the DHHR to delay issuance
of CAMC's permit pending DHHR compliance with the requirement that it promulgate rules
for procedures for public participation in the permit application process of noncommercial
infectious medical waste management facilities, and legislative approval thereof.
VI.
As indicated above, this Court previously granted petitioners' request for
injunctive relief only as to operation of the incinerator at issue. In syllabus point 7 of
Jefferson Cty. Bd. of Educ. v. Educ. Ass'n, 183 W. Va. 15, 393 S.E.2d 653 (1990), this
Court set forth the following principles to be considered when determining whether an
injunction should be granted:
'"The granting or refusal of an injunction, whether
mandatory or preventive, calls for the exercise of sound judicial
discretion in view of all the circumstances of the particular case;
regard being had to the nature of the controversy, the object for
which the injunction is being sought, and the comparative
hardship or convenience to the respective parties involved in the
award or denial of the writ." Point 4, syllabus, State ex rel.
Donley v. Barker, 112 W. Va. 263 [164 S.E. 154 (1932)].'
Syllabus Point 2, Severt v. Beckley Coals, Inc., 153 W. Va. 600,
170 S.E.2d 577 (1969).
This Court further stated that
'[u]nder the balance of hardship test the . . . court must consider,
in "flexible interplay," the following four factors in determining
whether to issue a preliminary injunction: (1) the likelihood of
irreparable harm to the plaintiff without the injunction; (2) the
likelihood of harm to the defendant with an injunction; (3) the
plaintiff's likelihood of success on the merits; and (4) the public
interest.'
Id., 183 W. Va. at 24, 393 S.E.2d at 662 (quoting Merrill Lynch, Pierce, Fenner & Smith,
Inc. v. Bradley, 756 F.2d 1048, 1054 (4th Cir. 1985)).
As we have already concluded, CAMC is required to obtain a permit prior to
operation of its solid waste facility, including the new incinerator, under W. Va. Code, 22-
15-10(b) [1994]. The public is currently participating in that permit application process.See footnote 31
Moreover, under W. Va. Code, 20-5J-5(b) [1991], CAMC, whose revised infectious medical
waste management plan has been approved by the DHHR, is required to obtain a permit from
the DHHR which would allow it to operate the incinerator.
We find the above statutory permitting requirements to be mandatory and thus
shall not be disregarded. As discussed above, the primary purpose of both the Solid Waste
Management Act and the Medical Waste Act is to protect the public's health, safety and
welfare, as well as the environment. Though we recognize that this permitting process may
impose a burden on CAMC, such burden does not outweigh the public's interest in the
protection of its own health, safety and welfare.See footnote 32 We should note CAMC commendably
sought to comply with the appropriate statutes, particularly with regard to the required permit
under the Medical Waste Act.
Therefore, CAMC is enjoined from operating the incinerator at issue until such
time as it obtains the required permits under W. Va. Code, 22-15-10(b) [1994] of the Solid
Waste Management Act and W. Va. Code, 20-5J-5(b) [1991] of the Medical Waste Act.
VII.
In conclusion, this Court grants petitioners' petition for writ of mandamus
against the respondents herein and order them to perform their mandatory, nondiscretionary
duties under the Solid Waste Management Act and the Medical Waste Act in accordance
with the principles set forth in this opinion.
We further enjoin CAMC from operating the incinerator until such time as it
obtains the proper permits from the DEP and the DHHR.
Writ granted as moulded;
Injunctive relief granted.
Footnote: 1
The Honorable Arthur M. Recht resigned as Justice of the West Virginia
Supreme Court of Appeals effective October 15, 1996. The Honorable Gaston Caperton,
Governor of the State of West Virginia, appointed him Judge of the First Judicial Circuit on
that same date. Pursuant to an administrative order entered by this Court on October 15,
1996, Judge Recht was assigned to sit as a member of the West Virginia Supreme Court of
Appeals commencing October 15, 1996 and continuing until further order of this Court.Footnote: 2
Petitioners also filed a motion for injunctive relief against CAMC, seeking to
enjoin it from constructing and operating the incinerator at issue until it applies for and
obtains the proper permits under both the Solid Waste Management Act and the Medical
Waste Act. This Court granted petitioner's motion for injunctive relief only as to the
operation of the incinerator at issue, thereby permitting CAMC to continue construction of
the incinerator, which construction began in July, 1996.
As will be discussed below, the Circuit Court of Kanawha County had
previously denied petitioners' motion for injunctive relief by order of August 22, 1996.Footnote: 3
The decision to replace its three incinerators with a single incinerator was
made after CAMC studied the alternatives for managing its waste. The consulting firms
hired by CAMC ultimately recommended that CAMC should continue to use incineration
as the method of medical waste disposal.Footnote: 4
The incinerator located at the Memorial Division is the only incinerator
currently operating.Footnote: 5
Petitioner East End Association, a neighborhood community organization of
more than 300 members, exists to advance, protect and promote the quality of life of
residents of the east end of Charleston. The majority of the association's members live
within one and one-half miles of the incinerator. One-half of the area where the
association's members reside is comprised of a designated "historical district." The
association is also actively involved in promoting a $70 million arts and cultural center and
a farmer's market, both of which are to be built close to the incinerator.
Petitioners Mollohan and Zerbe reside approximately two blocks from the
incinerator.Footnote: 6
W. Va. Code, 22-5-11 [1994] provides, in relevant part:
No person shall construct, modify or relocate any
stationary source of air pollutants without first obtaining a
construction, modification or relocation permit as provided in
this section.
Footnote: 7
According to the circuit court's August 22, 1996 order, revisions were
subsequently made to this permit. However, because "these revisions did not affect
emissions and, in fact, placed more stringent requirements on CAMC, DEP-OAQ, pursuant
to its policies, did not publish a notice concerning them."
Footnote: 8
According to the aforementioned legal advertisement which gave the public
notice of CAMC's permit application to the DEP-OAQ, CAMC had submitted an application
for a permit to construct, as well as to operate, the new incinerator. See W. Va. Code, 22-5-
12 [1994] ("No person may operate a stationary source of air pollutants without first
obtaining an operating permit as provided in this section." Id., in relevant part. (emphasis
added)).
This permit is not at issue in the case before us.
W. Va. Code, 22-5-13 [1994] allows for the consolidation of the construction
permit and the operation permit. See Id. ("For permits required by [W. Va. Code, 22-5-11
and 22-5-12], the director may incorporate the required permits with an existing permit or
consolidate the required permits into a single permit.")Footnote: 9
Pursuant to W.Va. Code, 22-5-14 [1994], "[a]ny person whose interest may
be affected, including, but not necessarily limited to, the applicant and any person who
participated in the public comment process, by a permit issued, modified or denied by the
director may appeal such action of the director to the air quality board pursuant to [W.Va.
Code, 22B-1-1 et seq.] [.]" No appeal of the DEP-OAQ's decision to issue a permit to
CAMC was taken.Footnote: 10
On October 17, 1996, the DEP published notice of this permit application,
inviting public comment on the draft solid waste permit. A public hearing on the draft permit
was scheduled for November 21, 1996.Footnote: 11
A "solid waste facility" is defined as "any system, facility, land, contiguous
land, improvements on the land, structures, or other appurtenances or methods used for
processing, recycling, or disposing of solid waste including . . . incinerators[.]" 47 C.S.R. 38-
2.120 [1996], in relevant part. "'Storage' or 'Storage Area' means the interim storage of
solid waste, at a permitted solid waste facility on a temporary basis. Any storage that
exceeds [180] days, without the prior written approval of the director [of the DEP], in such
a manner, constitutes illegal disposal of such solid waste (i.e., staging areas)." 47 C.S.R. 38-
2.125 [1996]. Footnote: 12
W. Va. Code, 22-15-5(f) [1994] provides:
In addition to all other powers, duties, responsibilities
and authority granted and assigned to the director in this code
and elsewhere described by law, the director is empowered as
follows:
. . . .
(f) The director may also perform or require a person, by
order, to perform any and all acts necessary to carry out the
provisions of this article or the rules promulgated thereunder.Footnote: 13
It was apparently anticipated that the new incinerator would be completed and
ready for operation before completion of the permitting process.Footnote: 14
According to the circuit court's order, the terms of the operation permit, if
and when it is issued under the Solid Waste Management Act, would require such things as:
(1) a plan for an alternate plan for waste disposal; (2) screening of waste; (3) confine wastes
to designated storage areas; (4) dust control; (5) recordkeeping; (6) cleaning; and (7) ash
testing.
Footnote: 15
When the Medical Waste Act became effective upon passage on February 23,
1991, CAMC's infectious medical waste management facility was already in operation and
was previously under the regulation of the DEP-Office of Waste Management.Footnote: 16
According to the DHHR, it likewise gave no public notice prior to issuing
similar permits to approximately 175 other infectious medical waste management facilities.Footnote: 17
See 64 C.S.R. 56-5.1 [1993] ("All infectious medical waste management
facilities shall develop an infectious medical waste management plan." Id. in relevant part);
64 C.S.R. 56-4.4.4 [1993] (requiring, as part of permit application, "[a] proposed infectious
medical waste management plan as required by Section 5 of this rule.").Footnote: 18
Such a waiver is authorized under 64 C.S.R. 56-10.2.7 [1993], which
provides:
Facilities with incinerators in operation at the time this
rule becomes effective may apply to the secretary [of the
DHHR] for a waiver to [64 C.S.R. 56-10.2.2 through 10.2.4] of
this rule. The waiver, if granted, shall be in effect for a
maximum of two (2) years after issuance of applicable final
Environmental Protection Agency rules relating to medical
waste incineration and shall be contingent upon submission of
plans to upgrade the facility so as to be in full compliance with
[64 C.S.R. 56-10.2.2 through 10.2.4] of this rule. The plans
shall be submitted as part of the infectious medical waste
facility management plan required in [64 C.S.R. 56-5] and shall
be subject to approval by the secretary.
64 C.S.R. 56-10.2.2 through 10.2.4 [1993] generally concern certain
temperature, control device and monitoring and recording requirements for infectious
medical waste incinerators. Footnote: 19
See 64 C.S.R. 56-4.9 [1993] ("Permits shall be renewed annually prior to
expiration. An application for permit renewal shall be submitted forty-five (45) days prior
to the expiration date of the previous permit.")Footnote: 20
This revised plan indicated, inter alia:
This plan reflects changes that will be made to the CAMC-
General Division infectious medical waste management plan
when the centralized incinerator currently under
construction is operational (anticipated November, 1996).
(Bold provided).
Section 10.1 of the revised plan stated, inter alia:
Pursuant to [64 C.S.R. 56-10.2.7], CAMC plans to upgrade its
facility by replacing the incinerator at its General Division with
a unit which will be in full compliance with each requirement of
[64 C.S.R. 56-10.2.2 through 10.2.4] . . . for which a waiver
was requested in 1992.
See n. 18, supra.
Finally, section 10.2.7 of the revised plan provided:
Upon approval of this plan and commencement of the operation
of the replacement incinerator, CAMC withdraws its request for
a waiver of [64 C.S.R. 56-10.2.2 through 10.2.4] of the
Infectious Waste Management rules requested in 1992 as the
current incinerator meets and exceeds current requirements.Footnote: 21
Likewise, 47 C.S.R. 38-3.5.1 [1996], not unlike W. Va. Code, 22-15-10(b)
[1994], requires that a permit be obtained form the DEP "prior to the installation,
establishment, construction, modification, operation, or closure of any solid waste facility."
This rule, having been legislatively-approved,
has the force of a statute itself. Being an act of the West
Virginia Legislature, it is entitled to more than mere deference;
it is entitled to controlling weight. As authorized by legislation,
a legislative rule should be ignored only if the agency has
exceeded its constitutional or statutory authority or is arbitrary
and capricious.
Syl. pt. 2, in relevant part, HCCRA v. Boone Memorial Hospital, ___ W. Va. ___, 472 S.E.2d 411 (1996).Footnote: 22
See 47 C.S.R. 38-2.120 [1996] (defining "solid waste facility").Footnote: 23
64 C.S.R. 56-10 [1993],"Methods of Treatment," provides:
10.1. General.
10.1.1. All infectious medical waste shall be treated by
one of the following methods:
10.1.1.1. Incineration as described in Section 10.2 of this
rule;
10.1.1.2. Steam treatment as described in Section 10.3
of this rule;
10.1.1.3. Discharge to a sanitary sewer as described in
Section 10.4 of this rule; or
10.1.1.4. Any other alternative method approved in
writing and permitted by the secretary according to the
provisions of Section 10.5 of this rule.Footnote: 24
64 C.S.R. 56-3.16 [1993] and 64 C.S.R. 56-3.17 [1993], defining the terms
"off-site" and "on-site," respectively, further indicate that an "infectious medical waste
management facility" consists of more than an incinerator unit:
Off-site -- A facility or area for the collection, storage, transfer,
processing, treatment, or disposal of infectious medical waste
which is not on the generator's site, or a facility or area that
receives infectious medical waste for storage or treatment that
has not been generated on-site at that facility or area.
64 C.S.R. 56-3.16 [1993]. See W. Va. Code, 20-5J-3(9) [1991] (similarly defining "off-
site").
On-site -- The same or geographically contiguous property
which may be divided by a public or private right-of-way,
provided the entrance and exit between the properties is at a
cross-roads intersection and access is by crossing, as opposed to
going along the right-of-way. Non-contiguous properties owned
by the same person but connected by a right-of-way controlled
by said person and to which the public does not have access, is
also considered on-site property. Hospitals with more than one
(1) facility located in the same county shall be considered one
(1) site.
64 C.S.R. 56-3.17 [1993]. See W. Va. Code, 20-5J-3(10) [1991] (similarly defining "on-
site").Footnote: 25
The incinerator now under construction will be in compliance with these
operating requirements.Footnote: 26
"An application for a permit . . .shall include . . . [a] proposed infectious
medical waste management plan [.]" 64 C.S.R. 56-4.4.4 [1993], in part.Footnote: 27
Section 10.2.7 of CAMC's revised infectious medical waste management plan
provided: "Upon approval of this plan and commencement of the operation of the
replacement incinerator, CAMC withdraws its request for a waiver of [64 C.S.R. 56-10.2.2
through 10.2.4] of the Infectious Waste Management rules[.]"Footnote: 28
64 C.S.R. 56-4.1 [1993] requires that a permit be obtained to own, construct,
modify or operate an infectious medical waste management facility. The permit application
and approval procedures contained in 64 C.S.R. 56-4.4 [1993] (and 64 C.S.R. 56-4.5 [1993],
for new infectious medical waste management facilities) are to be followed when such
permits are sought.Footnote: 29
"'Noncommercial infectious medical waste facility' means any infectious
medical waste facility at which less than thirty-five percent by weight of the total infectious
medical waste stored, treated or disposed of by said facility in any calendar year is generated
off-site." W. Va. Code, 20-5J-3(7) [1991]. Footnote: 30
W. Va. Code, 20-5J-4 [1991] provides:
It shall be unlawful to construct or operate a commercial
infectious medical waste facility in the state of West Virginia:
Provided, That the secretary may authorize an exception to this
prohibition solely for facilities not utilizing incineration
technology in any form, including the manufacture or burning
of refuse derived fuel: Provided, however, That such an
exception may be granted only following: (1) The promulgation
of legislative rules, in accordance with the provisions of . . .
[W. Va. Code, 29A-1-1 et seq.]of this code, containing
guidelines for such an exception that are being fully consistent
with the findings and purposes contained in . . . [W. Va. Code,
20-5J-2] . . .; (2) a public hearing on the record in the region
affected by the proposed facility; (3) an investigation of the
infectious medical waste stream in the region affected by the
proposed facility; and (4) a determination that programs to
minimize and reduce the infectious medical waste stream have
been implemented.
(emphasis added).Footnote: 31 For example, a public hearing on the solid waste permit was scheduled to be conducted on November 21, 1996. See n. 10, supra.Footnote: 32 We note that during oral argument before this Court, petitioners indicated that, in light of the fact that construction of the incinerator was near completion, their request for relief did not include that the incinerator be dismantled.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.