Corrective action requirements applicable to any hazardous waste management facility shall be consistent with, and equivalent to, corrective action requirements contained in rules and regulations adopted by the United States environmental protection agency under authority of subtitle C of the Resource Conservation and Recovery Act, P.L. 94-580, as amended by the hazardous and solid waste amendments of 1984, P.L. 98-616, and as they may be hereafter amended.
35-11-520. Termination of state regulation of hazardous waste generators and transporters; procedures.
(a) The department shall report to the legislature any reduction in federal hazardous waste grant funds supplied to the state under section 3011 of the Resource Conservation and Recovery Act (42 U.S.C. 6931), which results in the need for additional state funds, exclusive of fees under W.S. 35-11-517, to administer W.S. 35-11-516 through 35-11-520.
(b) The provisions of W.S. 35-11-516 through 35-11-519 shall not be effective one hundred eighty (180) days after the adjournment of the legislative session next following the submission of a report under subsection (a) of this section, unless the legislature appropriates the additional funds required. The expiration of the state program pursuant to this subsection shall be subject to the following:
(i) The annual fee collected by the department under W.S. 35-11-517 shall be remitted to the facility owner on a prorated basis upon termination of regulation by the state under this section;
(ii) The department shall vacate any order issued to any generator or transporter to enforce any provision of W.S. 35-11-516 through 35-11-519;
(iii) The state attorney general may continue to prosecute any action based on alleged violations of W.S. 35-11-516 through 35-11-519 which was filed prior to the adjournment of the legislative session referred to in subsection
(b) of this section.
35-11-521. Grants for municipal solid waste landfill monitoring.
(a) Subject to the availability of funds, the director shall provide grants toward the costs of performing activities specified in subsection (b) of this section to local governmental entities who own or are responsible for any municipal solid waste landfill, for any project where a work plan has been submitted to the department for work performed or initiated after July 1, 2005.
(b) Grant funding under this section may be provided at existing or closed municipal solid waste landfills for the following activities:
(i) Conducting surface or subsurface geophysical studies to determine proper monitor system placement and to provide an indication of the presence or absence of groundwater beneath and adjacent to the landfill;
(ii) Preparing plans for installation of systems to monitor or detect releases of subsurface pollutants from landfills;
(iii) Installing new monitor systems or upgrading existing monitor systems to meet standards for the systems established by the department under this article; and
(iv) Collecting and analyzing samples from monitor systems installed under paragraph (iii) of this subsection, for a period of time sufficient to determine if there have been releases of subsurface pollutants from the landfill for any landfill which ceased receipt of solid wastes before September 13, 1989.
(c) Grants for eligible costs under subsection (b) of this section may be awarded:
(i) For up to fifty percent (50%) of the eligible costs; or
(ii) For up to seventy-five percent (75%) of eligible costs for applicants meeting the following criteria:
(A) Municipalities with a population of less than one thousand three hundred (1,300) or which are located within a county where the three (3) year average of the total local government share of state sales and use tax per capita is less than seventy percent (70%) of the statewide per capita average; or
(B) Counties, solid waste disposal districts, joint powers boards, and special purpose districts located within a county with a total assessed valuation of less than two and one-half percent (2.5%) of the state's total assessed valuation.
35-11-522. Grant criteria; submission and review of grant
applications; recommendation from water and waste advisory board; grant awards.
(a) Following public notice and hearing before the water and waste advisory board, the department shall adopt criteria for awarding grants under W.S. 35-11-521.
(b) When funds are available, applications for grants under W.S. 35-11-521 shall be submitted in a form approved by the department. The department shall review all grant applications, determine the eligibility of projects in accordance with W.S. 35-11-521 and provide recommendations for grant funding to the water and waste advisory board.
(c) Following a public hearing, the water and waste advisory board shall provide recommendations for grant awards to the director.
(d) The director shall award grants in consideration of recommendations provided by the water and waste advisory board.
(e) Repealed By Laws 2011, Ch. 110, § 3.
(a) Effective January 1, 2012, every operator shall file an annual report with the administrator on or within thirty (30) days prior to the anniversary date of each lifetime permit. The report shall include:
(i) The facility name, the name and address of the operator and the permit number;
(ii) A report in such detail as the administrator shall require supplemented with maps, cross sections, aerial photographs, photographs or other material indicating:
(A) The extent to which the landfill operations have been carried out;
(B) The progress of all landfill work;
(C) The extent to which regulatory requirements, expectations and predictions made in the original permit or any previous annual reports have been fulfilled, and any deviation there from, including but not limited to the capacity of landfill used, the results of any environmental monitoring, any remediation required or completed and the remaining usable municipal solid waste landfill capacity.
(iii) A revised schedule or timetable of landfill operations and an estimate of the available capacity to be affected during the next one (1) year period.
(b) Upon receipt of the annual report the administrator shall make such further inquiry as deemed necessary. If the administrator objects to any part of the report or requires further information he shall notify the operator as soon as possible and shall allow a reasonable opportunity to provide the required information, or take such action as necessary to resolve the objection.
(c) Within forty-five (45) days after the receipt of the annual report the administrator shall conduct an inspection of the landfill. A report of this inspection shall be made a part of the operator's annual report and a copy shall be delivered to the operator.
(d) Within sixty (60) days after receipt of the annual report, inspection report and other required materials, if the administrator finds the annual report in order and consistent with the landfill operation plan and solid waste management plan as set forth in the permit, or as amended to adjust to conditions encountered during landfill operations as provided by law, the director shall determine if any adjustment is necessary to the size of the bond required pursuant to W.S. 35-11-504.
35-11-524. Municipal solid waste landfill assessments; priority list; monitoring.
(a) The department shall conduct an assessment of the needs for municipal solid waste landfill monitoring and the necessity for any remediation on leaking municipal solid waste landfills in Wyoming.
(b) The department shall establish a priority list for municipal solid waste landfills that need remediation. The criteria used to establish this priority list shall be developed and reviewed with the water and waste advisory board. The criteria shall include, but not be limited to the:
(i) Type of leachate;
(ii) Volume of leachate;
(iii) Proximity of the leachate to the nearest surface or ground water;
(iv) Ability of the responsible municipality to remediate the contamination;
(v) The nature of contaminants in surface or ground water affected by the municipal solid waste landfill, including whether a contaminant is naturally occurring or manmade; and
(vi) Maximum contaminant levels.
(c) For high priority sites identified on the list established under subsection (b) of this section, the department shall work with the local managers of the high priority municipal solid waste landfills to gather data necessary for the report due under subsection (d) of this section.
(d) The department shall submit to the joint minerals, business and economic development interim committee:
(i) No later than December 31, 2012, an initial report describing an assessment of the clean-up costs at the high priority municipal solid waste landfills;
(ii) No later than June 30, 2013, and annually thereafter, a report including, but not limited to:
(A) Monitoring results;
(B) Remediation results;
(C) The assessment of the clean-up costs at municipal solid waste landfills, including high, medium and low priority landfills;
(D) Estimated high priority sites to be addressed in the coming year;
(E) Orphan landfill sites information and data as required pursuant to W.S. 35-11-525(e).
(a) The director may expend funds contained within the account for remediation of orphan landfill sites and the performance of any other activity as defined in this article.
(b) As used in this section, "orphan landfill site" means:
(i) A landfill where the department determines:
(A) There is no viable party responsible for causing or contributing to the landfill site; and
(B) The landfill site is not the result of activities conducted on the site after September 13, 1989.
(ii) A landfill site, where the department determines that the person responsible for the landfill cannot be identified;
(iii) A landfill site where the department must take prompt action to prevent hazards to human health or the environment where a responsible party fails to act promptly.
(c) To the extent funds are available, the department may expend funds from the account to conduct orphan landfill site evaluations and testing, evaluate remedial measures, select remediation requirements and construct, install, maintain and operate systems to remedy contamination in accordance with a remediation work plan prescribed by the director for the orphan landfill site.
(d) Revenue to the account shall include any monies which may be deposited in the account for use in identification, characterization, prioritization, remediation and monitoring of orphan landfill sites. The liability of the state to fulfill the requirements of this section is limited to the amount of funds available in the account.
(e) The department shall provide a report to the joint appropriations interim committee and the joint minerals, business and economic development interim committee. The report shall be included in the report required under W.S. 35-11-524(d) and shall include:
(i) The work completed on the identification, characterization, prioritization, remediation and monitoring of orphan landfill sites within the state;
(ii) The estimated funding need for the identification, characterization, prioritization, remediation and monitoring of orphan landfill sites within the state for:
(A) The next year or the next biennium, as applicable; and
(B) The next ten (10) years.
(f) In any case under paragraph (b)(iii) of this section where the department expends funds to remediate or contain contamination resulting from a landfill, and where the department has identified a responsible party, the responsible party shall reimburse the department in an amount equal to two (2) times the expenditure from the account. The attorney general shall bring suit to recover the reimbursement amount required in this subsection where recovery is deemed possible.
(g) For purposes of this section, "account" means the account created under W.S. 35-11-515(a).
35-11-526. Performance based design and performance based
evaluation in consideration and approval of engineered containment systems as part of municipal solid waste landfill permits.
(a) A person submitting an application for a permit pursuant to W.S. 35-11-502 which contains a performance based design for a municipal solid waste landfill that does not incorporate an engineered containment system utilizing a composite liner and leachate collection system, shall submit a report with the application. The report shall contain the applicant's findings as to the proposed performance based design's compliance with applicable state and federal laws and regulations. The report shall contain scientific and engineering data supporting the implementation of the proposed design.
(b) In reviewing scientific and engineering data related to a permit application and report containing a performance based design which does not incorporate an engineered containment system utilizing a composite liner and leachate collection system, the administrator shall prepare a detailed performance evaluation based on applied scientific and engineering data that adheres to W.S. 35-11-527. The administrator shall determine in the performance evaluation whether to validate or invalidate the performance based design or an alternative performance based standard for landfill design contained in the permit application. The administrator shall base the performance based evaluation on acceptable applied scientific and engineering data and an analysis of that data using statistical procedures, including statistical power, when applicable.
(c) The applicant or other interested party may appeal the administrator's determination contained in a performance based evaluation of a permit pursuant to W.S. 35-11-502. If the council determines that the performance based evaluation does not accurately or adequately identify and evaluate all the data and criteria required under this section and W.S. 35-11-527, the council shall direct the administrator to reevaluate his determination. A decision by the council that the performance based evaluation is accurate and adequate shall be a final decision of the agency pursuant to the Wyoming Administrative Procedure Act.
35-11-527. Performance based design evaluation criteria for municipal solid waste landfill units.
(a) New municipal solid waste landfill units and lateral expansions approved by the administrator under W.S. 35-11-502 and 35-11-526 shall be constructed:
(i) In accordance with a performance based design approved by the administrator in a performance based evaluation pursuant to W.S. 35-11-526. Any performance based design approved must ensure that the concentration values for pollutants listed in the National Primary Drinking Water Regulations, 40 C.F.R. Part 141, will not be exceeded in the uppermost aquifer at the relevant point of compliance as determined under subsection (c) of this section; or
(ii) With an engineered containment system that utilizes a composite liner and a leachate collection system that is designed and constructed to maintain less than a thirty (30) centimeter depth of leachate over the liner.
(b) When approving a design that complies with paragraph (a)(i) of this section, in addition to the requirements of W.S. 35-11-526 the administrator shall consider other relevant factors, including, but not limited to:
(i) The hydrogeologic characteristics of the facility and surrounding land;
(ii) The climatic factors of the area; and
(iii) The physical and chemical characteristics and volume of the leachate.
(c) The relevant point of compliance specified by the administrator for the allowable concentration values for pollutants under paragraph (a)(i) of this section shall be no more than one hundred fifty (150) meters from the waste management unit boundary and shall be located on land owned by the owner of the municipal solid waste landfill. In determining the relevant point of compliance, the administrator shall consider at least the following factors:
(i) The hydrogeologic characteristics of the facility and surrounding land;
(ii) The physical and chemical characteristics and volume of the leachate;
(iii) The quantity, quality and direction of flow of ground water in the area;
(iv) The proximity and withdrawal rate of ground water users;
(v) The availability of alternative sources of drinking water supplies;
(vi) The existing quality of the ground water, including other sources of contamination and their cumulative impacts on the ground water and whether the ground water is currently used or reasonably expected to be used for drinking water;
(vii) Public health, safety and welfare effects; and
(viii) Practicable capability of the owner or operator.
35-11-528. Municipal solid waste facilities cease and
transfer program created; criteria for grants and loans; loan terms; availability of other state funding sources.
(a) There is created the municipal solid waste facilities cease and transfer program. Grants and loans under the program shall be awarded by the state loan and investment board. The program shall be administered by the solid and hazardous waste division of the department of environmental quality with the input of the waste and water advisory board as provided in W.S. 35-11-528 through 35-11-531.
(b) Grants and loans shall be made from the municipal solid waste facilities cease and transfer accounts for all cease and transfer activities as provided in this section and by rule and regulation of the board. Grants and loans shall be made for:
(i) Capping of a closed landfill;
(ii) Other closure related expenses including engineering, geological and other professional services;
(iii) Construction or acquisition of appropriate solid waste transfer facilities and equipment, including acquisition of real property.
(c) Total costs of cease and transfer activities for a municipal solid waste facility shall be determined by the department in consultation with the local municipal solid waste facility operator. Grants shall be awarded in an amount determined by the state loan and investment board after consultation with the department and pursuant to the criteria contained in subsection (d) of this section. A municipal solid waste facility which is ceasing operations shall be eligible to receive loans for the costs of cease and transfer activities not funded by a grant pursuant to subsection (e) of this section.
(d) Except as provided in subsection (h) of this section, grants and loans for cease and transfer activities shall be awarded in an amount determined by the state loan and investment board not to exceed seventy-five percent (75%) of the total cost of all cease and transfer activities of the municipal solid waste facility. The state loan and investment board shall base its determination of the percentage of grants and loans awarded for cease and transfer projects under the program on an equitable distribution of available funds among eligible municipal solid waste landfills and rules and regulations adopted pursuant to W.S. 35-11-530. To be eligible for funding under the program the following criteria shall be met:
(i) The local operator enters into a written agreement with the department to meet all regulatory obligations under the program;
(ii) The local operator implements and revises the community's solid waste management plan as necessary to comply with all regulatory obligations;
(iii) The local operator ceases disposal of all municipal solid waste streams at the closed municipal solid waste facility;
(iv) The local operator conforms to the requirements of W.S. 35-11-532;
(v) The local operator:
(A) Ceases disposal into units and facilities regulated under this article which do not have engineered containment systems or do not conform to performance based design standards; or
(B) Obtains department approval, that shall include a time period determined appropriate by the department for operation, to:
(I) Transfer and dispose municipal solid waste into permitted units and facilities regulated by the department which do not have engineered containment systems or do not conform to performance based design standards, for the purpose of closing the facility that is transferring municipal solid waste; and
(II) Increase the rate at which municipal solid waste is accepted for disposal into permitted units and facilities regulated by the department which do not have engineered containment systems or do not conform to performance based design standards, for the purpose of promoting the early closure of the receiving facility or facilities. If the department grants approval under this subparagraph the receiving facility shall not be allowed to enlarge or extend the life of its facility except in furtherance of becoming a facility with an engineered containment system or conforming to performance based design standards.
(e) Loans may be made under the program at zero interest rate, up to an annual interest rate equal to the average prime interest rate as determined in accordance with this subsection. Loans provided under the program shall be adequately collateralized as determined by the state loan and investment board. Principal and interest payments shall be deposited in the general fund. The state loan and investment board shall establish interest rates to be charged for loans under the program, but the interest rate shall not exceed an annual interest rate equal to the average prime interest rate as determined by the state treasurer. To determine the average prime interest rate, the state treasurer shall average the prime interest rate for at least seventy-five percent (75%) of the thirty (30) largest banks in the United States. The interest rate shall be adjusted on January 1 of each year. Interest rates shall be established in recognition of the repayment abilities and needs of the local municipal solid waste facility operator eligible for loans under the program. The state loan and investment board shall establish loan amortization schedules, terms and conditions for each loan approved based on an applicant's need, financial condition of the landfill operator or the entity responsible for solid waste funding, the projected life of the transfer facility and the ability of that entity to repay the loan in a timely manner.
(f) Participation in the program shall not restrict funding for a municipal solid waste facility from any other program created or supported by the state.
(g) Funds under the program shall not be expended on:
(i) Salaries or benefits for employees of the municipal solid waste facility;
(ii) Long-term monitoring at a closed municipal solid waste facility or a closed cell of a still operating municipal solid waste facility;
(iii) Operational costs of municipal solid waste facilities.
(h) Upon a showing that a local operator has exhausted all reasonably available funding sources, the director may recommend to the state loan and investment board funding in the form of grants and loans for up to one hundred percent (100%) of the total cost of cease and transfer activities of the municipal solid waste facility. In addition to the requirements contained in subsection (d) of this section, the state loan and investment board shall base its determination of a grant or loan award under this subsection on whether the local operator:
(i) Has any additional funding sources reasonably available to allocate to project costs;
(ii) Is charging sufficient gate or use fees to fully fund the operational costs of transfer facilities constructed under the program.
35-11-529. Municipal solid waste facilities cease and
transfer accounts created; authorized expenditures from the accounts.
(a) There is created the municipal solid waste cease and transfer grant account. Monies from the account shall be awarded for grants to fund approved activities pursuant to W.S. 35-11-528. Interest earned by this account shall be deposited in the general fund. Notwithstanding W.S. 9-2-1008, 9-2-1012(e) and 9-4-207(a), funds deposited in this account shall not revert without further action of the legislature.
(b) There is created the municipal solid waste cease and transfer loan account. Monies from the account shall be awarded for loans to fund approved activities pursuant to W.S. 35-11-528. Interest earned by this account shall be deposited in the general fund. Notwithstanding W.S. 9-2-1008, 9-2-1012(e) and 9-4-207(a), funds deposited in this account shall not revert without further action of the legislature.
(a) The state loan and investment board in consultation with the department of environmental quality shall promulgate rules and regulations necessary to administer the municipal solid waste facility cease and transfer program. Those rules shall include:
(i) Criteria for eligibility under the program based on W.S. 35-11-528(d);
(ii) Specific cease and transfer activities which are eligible for funding under the program;
(iii) Application form and procedure under the program;
(iv) Criteria for grant and loan prioritization based on:
(A) Funding availability;
(B) Cost efficiencies achieved by allocation of resources;
(C) Opportunities for increased cost sharing between cease and transfer actions at multiple leaking municipal solid waste facilities;
(D) Timeliness of cease and transfer actions in reducing risk to public health, safety and welfare or the environment;
(E) Remaining life of the existing municipal solid waste facility;
(F) Whether the proposed actions are a cost-effective alternative in accordance with the integrated solid waste management plan approved for the municipal solid waste facility;
(G) Whether the proposed action is reasonable and appropriate for the current and projected volumes of all solid waste for the area served by the facility;
(H) Whether the proposal contains recycling and other forms of waste diversion as a component of the proposed facilities and management practices; and
(J) The likelihood that the cease and transfer actions will reduce or eliminate the threat posed to public health, safety and welfare or the environment by continuing releases.
35-11-531. General permit for cease and closure for small landfills; rulemaking authority.
(a) The department shall develop a general permit in accordance with W.S. 35-11-801(d) for closing municipal solid waste landfills with a total surface area of less than thirty (30) acres, and shall provide assistance to municipalities in the general permitting process. The general permit shall comply with federal requirements for municipal solid waste landfill closure and post-closure.
(b) The department shall provide assistance for permitting municipal solid waste transfer facility activities at closing municipal solid waste landfills with a total surface area of less than thirty (30) acres.
(c) The department shall promulgate rules and regulations necessary to achieve the purposes of this section.
(d) Repealed by Laws 2019, ch. 186, § 2.
35-11-532. Municipal solid waste facility operator financial responsibility; penalties.
(a) Municipal solid waste facility operators shall ensure continued revenue or funding streams sufficient to provide for all foreseeable costs of the facility, including but not limited to the full costs of:
(i) Operations;
(ii) Monitoring;
(iii) Recycling, composting and other diversion activities;
(iv) Closure; and
(v) Post-closure activities.
(b) On or before January 1, 2014 and at least once every four (4) years thereafter, municipal solid waste facility operators shall submit to the department written documentation demonstrating compliance with subsection (a) of this section.
(c) Municipal solid waste facility operators shall employ accounting principles pursuant to the Uniform Municipal Fiscal Procedures Act, W.S. 16-4-101 through 16-4-125, which recognize liabilities associated with:
(i) Closure and post-closure costs; and
(ii) The long-term cost of waste disposal compared to recycling, composting or other diversion activities.
(d) Compliance with this section shall be a prerequisite for eligibility for any state grant and loan program available to a municipal solid waste facility and state funding for solid waste landfill monitoring and remediation.
35-11-533. Municipal solid waste landfill remediation program created; purpose.
(a) There is created the municipal solid waste landfill remediation program. The program shall be administered by the solid and hazardous waste division of the department of environmental quality with the input of the waste and water advisory board as provided in W.S. 35-11-533 through 35-11-537.
(b) The legislature recognizes the threat to the public health, safety, welfare and the environment caused by pollution to soil and water from leaking municipal solid waste landfills. The purpose of this program is to take state primacy of the municipal solid waste landfill remediation program and to provide funding to take remediation actions at eligible leaking municipal solid waste landfills.
35-11-534. Program criteria; requirements for local operator.
(a) The department shall contract with entities, including contractors and local operators, to provide monitoring and remediation activities, including but not limited to groundwater remediation and monitoring, methane mitigation and monitoring and landfill capping, at eligible leaking municipal solid waste landfills. The department shall oversee and fund up to seventy-five percent (75%) of the cost of the investigation of contamination, the design and installation of monitoring and remediation systems and the operation and maintenance of monitoring and remediation systems for up to ten (10) years. The department may operate and maintain a system for a longer period of time in consideration of site specific circumstances. The period of time during which the department shall have responsibility for the monitoring and remediation activities at a leaking municipal solid waste landfill shall be communicated to the local operator prior to installation of the monitoring and remediation systems.
(b) The department shall contract for monitoring and remediation activities under the program at leaking municipal solid waste landfills based upon the priority list of landfills developed pursuant to W.S. 35-11-524 and other factors as provided in W.S. 35-11-536(a)(iv). The department shall update the priority list of leaking landfills requiring monitoring and remediation activities periodically as conditions warrant and may consider all relevant factors when developing and updating the priority list.
(c) To be eligible for enrollment under the program, the local operators of a leaking municipal solid waste landfill shall:
(i) Enter into a written agreement with the department to meet all regulatory obligations under the program;
(ii) Implement and revise the community's solid waste management plan as necessary to comply with all regulatory obligations;
(iii) Cease disposal of all waste streams at a leaking closed facility or the leaking portion of an operating facility which is undergoing remediation activities pursuant to department rules and regulations and the written agreement between the department and the local operator;
(iv) Cease disposal into units and facilities regulated under this article which do not have engineered containment systems or do not conform to performance based design standards;
(v) Agree to provide funding from any available funding source for at least twenty-five percent (25%) of the total costs of monitoring and remediation under the program;
(vi) Control the source of releases of pollution so as to reduce or eliminate further releases from the leaking municipal solid waste landfill;
(vii) Ensure continued revenue or funding streams sufficient to provide for all foreseeable costs of solid waste facilities under the control of the local operator or political subdivision, including but not limited to the full costs of:
(A) Operations;
(B) Monitoring;
(C) Recycling, composting and other diversion activities;
(D) Closure; and
(E) Post-closure activities.
(viii) Employ accounting principles in managing all solid waste facilities under the control of the local operator or political subdivision, pursuant to the Uniform Municipal Fiscal Procedures Act, W.S. 16-4-101 through 16-4-125, which recognize liabilities associated with:
(A) Closure and post-closure costs; and
(B) The long-term cost of waste disposal compared to recycling, composting or other diversion activities.
(d) In carrying out monitoring and remediation activities under the program the department has the right to construct and maintain any structure, monitor well, recovery system or any other reasonable and necessary item associated with taking remediation and monitoring actions.
(e) The department shall notify the affected public of all confirmed releases requiring a plan for remediation, and upon request, provide or make available to the interested public information concerning the nature of the release and the remediation actions planned or taken.
(f) The department shall delegate and authorize a local operator to conduct or oversee monitoring and remediation under the program pursuant to a written agreement between the department and the local operator acknowledging that the local operator shall adhere to all regulatory requirements of the program in conducting monitoring and remediation activities. The department shall approve the local operator's monitoring and remediation plan prior to authorizing the local operator to conduct or oversee the monitoring and remediation program. The department shall take all actions necessary to ensure that a local operator granted authority to conduct or oversee monitoring and remediation activities under this subsection complies with all regulatory requirements of the program.
35-11-535. Municipal solid waste landfill remediation account; authorized expenditures from the account.
(a) There is created the municipal solid waste landfill remediation account. The department shall use monies from the municipal solid waste landfill remediation account as appropriated by the legislature for the administration of the program. Interest earned by this account shall be deposited in the general fund. Notwithstanding W.S. 9-2-1008, 9-2-1012(e) and 9-4-207(a), funds deposited in this account shall not revert without further action of the legislature.
(b) For a leaking municipal solid waste landfill to be eligible for use of monies in the account, the owner or operator of the site shall comply with all requirements of the program and regulations of the council adopted pursuant to W.S. 35-11-536.
(c) In addition to expenditures from the account authorized by W.S. 35-11-534(a), the department shall issue a credit in an amount not to exceed the local operator's twenty-five percent (25%) share required by W.S. 35-11-534(c)(v) of the total cost of eligible remediation and monitoring activities provided in W.S. 35-11-534(a), for past remediation and monitoring expenses incurred by the local operator as specified in this subsection. The department shall issue credits under this subsection for costs incurred by a local operator for remediation and monitoring activities from the account if:
(i) A work plan for the remediation and monitoring activities was submitted to and approved by the department;
(ii) The remediation and monitoring activities were initiated after July 1, 2006;
(iii) The local operator of a municipal solid waste landfill provides the department with an accurate accounting of the costs of remediation and monitoring activities conducted at the municipal solid waste landfill after July 1, 2006 and the department determines that those remediation and monitoring activities would be eligible for funding if they had been performed under the program;
(iv) The local operator conducts additional remediation and monitoring activities at the leaking municipal solid waste landfill which are eligible for funding under W.S. 35-11-534(a) on or after July 1, 2013; and
(v) A credit issued under this subsection shall not exceed an amount equal to seventy-five percent (75%) of the cost incurred by the local operator for eligible remediation and monitoring activities after July 1, 2006.
(d) Repealed by Laws 2015, ch. 47, § 2.
(a) The council shall promulgate rules and regulations necessary to administer the program after recommendation from the director of the department, the administrator of the solid and hazardous waste division and the water and waste advisory board. The rules shall include but shall not be limited to rules and regulations which:
(i) Provide for landfill monitoring and remediation system design, construction, installation and monitoring standards which shall be no less stringent than federal requirements;
(ii) Specify the requirements for delegating installation or modification inspection authority including but not limited to requirements for contractors and local operators;
(iii) Establish a procedure or procedures for reporting any release from a municipal solid waste landfill;
(iv) Include provisions under which priorities for remediation actions shall be established in addition to the priority list created pursuant to W.S. 35-11-524. Those priorities shall be established considering, but not limited to, the following factors:
(A) Funding availability;
(B) Cost efficiencies achieved by allocation of resources;
(C) Opportunities for increased cost sharing between monitoring and remediation actions at multiple leaking municipal solid waste landfills;
(D) Timeliness of remediation in reducing risk to public health, safety and welfare or the environment;
(E) The likelihood that the remedy will reduce or eliminate the threat posed to public health, safety and welfare or the environment by continuing releases; and
(F) Whether the facility has completed closure and transfer actions at the leaking municipal solid waste facility. Priority shall be given to solid waste facilities which have completed closure and transfer actions.
(v) Require records for compliance with repairs and upgrades to be maintained for the operational life of the landfill remediation and monitoring system;
(vi) Create requirements for participation in the program and for the return of the facility to local control pursuant to W.S. 35-11-534(a); and
(vii) Specify standards for restoration of the environment.
Any owner or operator, the department or other person taking a corrective action shall restore the environment to a condition and quality consistent with standards established in rules and regulations.
(a) Any person who owns or is in control of any real or personal property, any plant, building, structure, process or equipment may apply to the administrator of the appropriate division for a variance from any rule, regulation, standard or permit promulgated under this act. A variance may be granted upon notice and hearing. The administrator shall give public notice of the request for a variance in the county in which such real or personal property, plant, building, structure, process or equipment is in existence for which the variance is sought. The notice shall designate who has applied for the variance and the nature of the variance requested and the time and place of hearing and shall be published in a newspaper of general circulation in said county once a week for four (4) consecutive weeks prior to the date of the hearing. The cost of publication shall be paid by the person applying for the variance. The administrator of the division shall promptly investigate the request, consider the views of the persons who may be affected by the grant of the variance, and all facts bearing on the request, and make a decision with the approval of the director within sixty (60) days from the date the hearing for a variance is held.
(b) If the variance is granted on the ground that there is no practicable means known or available for the adequate prevention, abatement or control of the pollution, or mining operation involved, it shall continue in effect only until the necessary means for prevention, abatement or control become known and available, and subject to the taking of any substitute or alternate measures that the director may prescribe.
(c) If the variance is granted on the ground that compliance with the particular requirement or requirements from which variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a considerable period of time, it shall be for a period not to exceed such reasonable time as, in the view of the director is requisite for the taking of the necessary measures. A variance granted on the ground specified herein shall contain a timetable for the taking of action in an expeditious manner and shall be conditioned on adherence to such timetable.
(d) A variance may be granted by the council from standards established by the council for sulfur oxide emissions, if the council determines that the state of the technology for removal of sulfur oxides from the stack gasses is insufficiently advanced to achieve the objective level without causing undue economic hardship on the owner of the facility or the consumer of the product produced by the facility or if the council determines that the developing technology offers promise that superior equipment might, in the near future, be available which would render presently available equipment obsolete and that the best interests of the state would be served by the issuance of the variance. In considering such a variance, the council must consider the health and well being of the citizens in the vicinity of the facility and the effect upon livestock and agricultural production in the area. In no event shall the variance permit emissions less stringent than existing federal standards covering the emission of sulfur oxides. Each application for a variance will be issued on a case by case basis considering the state of the technology at the time of each application.
(e) If the variance is granted on the ground that it is justified to relieve or prevent hardship of a kind other than that provided for in subsections (b), (c) and (d) of this section, it shall be for not more than one (1) year.
(f) Any variance granted pursuant to this section may be renewed on terms and conditions and for periods which would be appropriate on initial granting of a variance. If complaint by an aggrieved party is made to the director on account of the variance, no renewal thereof shall be granted, unless following public hearing on the complaint on due notice, the council finds that renewal is justified. No renewal shall be granted except on application therefor. Any such application shall be made at least sixty (60) days prior to the expiration of the variance.
(g) Any variance or renewal thereof granted by the director pursuant to this section shall become final unless within thirty (30) days after date of notice as provided in subsection (a) of this section an aggrieved party as defined by this act in writing may request a hearing before the council. Upon the filing of such a request for a hearing, the variance shall be stayed pending the council's final determination thereon.
(h) If, after a hearing held pursuant to this section, the council finds that a variance is required, it shall affirm or modify the order previously issued by the director or issue an appropriate order for variance as it deems necessary. If, after a hearing held pursuant to this section, the council finds that there is no need for a variance, it shall rescind the issuance of a variance.
(j) In connection with any hearing held pursuant to this section, the council has the power and upon application by any aggrieved party, it has the duty to compel the attendance of witnesses, and the production of evidence on behalf of all parties.
(k) Any aggrieved party adversely affected by a variance or renewal of same or the denial of same may obtain judicial review thereof in the manner prescribed by the Wyoming Administrative Procedure Act.
(m) Failure to comply with the conditions imposed by any variance shall be cause for modification or termination of the variance by the director.
(n) Nothing in this section and no variance or renewal granted pursuant hereto shall be construed to prevent or limit the application of the emergency provisions and procedures of W.S. 35-11-115 to any person or property.
(o) Nothing in this section shall be construed to permit an application for a water variance. The application for water permits must be made solely under the provisions of W.S. 35-11-302.
(p) Nothing in this act or regulations under this act shall be construed to permit an application for a variance which would result in less stringent land use or environmental controls or regulations of surface coal mining and reclamation operations than authorized by P.L. 95-87, as that law is worded on August 3, 1977, or the federal regulations promulgated pursuant thereto.
(q) In order to encourage advances in mining and reclamation practices or to allow post-mining land use for industrial, commercial, residential or public use (including recreational facilities), the director, with approval by the secretary of the interior, may authorize departures in individual cases on an experimental basis from the environmental protection performance standards promulgated by the council under this act. Such departures may be authorized if:
(i) The experimental practices are potentially more or at least as environmentally protective, during and after mining operations, as those required by promulgated standards;
(ii) The mining operations approved for particular land-use or other purposes are not larger or more numerous than necessary to determine the effectiveness and economic feasibility of the experimental practices; and
(iii) The experimental practices do not reduce the protection afforded public health and safety below that provided by promulgated standards.
(r) The secretary of interior, acting through the office of surface mining reclamation and enforcement, shall assist the state in the development of a state program for surface coal mining and reclamation operations which meet the requirements of this act and P.L. 95-87, and at the same time, reflect local requirements and local environmental and agricultural conditions.
35-11-701. Complaint; investigations; conference; cease and desist order; hearing; referee.
(a) If the director or the administrators have cause to believe that any persons are violating any provision of this act or any rule, regulation, standard, permit, license, or variance issued pursuant hereto, or in case any written complaint is filed with the department alleging a violation, the director, through the appropriate administrator, shall cause a prompt investigation to be made.
(b) For surface coal mining operations, in the instance of a written complaint by any person which provides a reasonable basis to believe that a violation of article 4 of this act, or of any rule, regulation, standard, order, license, variance or permit issued thereunder, exists, the investigation shall include a prompt inspection. In such event the director shall notify the person when the inspection is proposed to be carried out and the person shall be allowed to accompany the inspector during the inspection, subject to reasonable control by the inspector. The operator shall have a duty to exercise reasonable care for the person's safety only if his presence is known. However, this duty shall not include the duty to inspect the premises to discover dangers which are unknown to the operator, nor giving warning or protection against conditions which are known or should be obvious to the person. The operator or his designee shall be allowed to be present for any such inspection.
(c) For other than those violations specified under subsection (b) of this section, if, as a result of the investigation, it appears that a violation exists, the administrator of the proper division may, by conference, conciliation and persuasion, endeavor promptly to eliminate the source or cause of the violation:
(i) In case of failure to correct or remedy an alleged violation, the director shall cause to be issued and served upon the person alleged to be responsible for any such violation a written notice which shall specify the provision of this act, rule, regulation, standard, permit, license, or variance alleged to be violated and the facts alleged to constitute a violation thereof, and may require the person so complained against to cease and desist from the violation within the time the director may determine;
(ii) Any order is final unless, not later than ten (10) days after the date the notice is served, the person or persons named therein request, in writing, a hearing before the council. Upon the filing of a request the order complained of shall be stayed pending the council's final determination thereon;
(iii) If after a hearing held pursuant to this section, the council finds that a violation has occurred, it shall affirm or modify such order previously issued, or issue an appropriate order or orders for the prevention, abatement or control of the violation involved or for the taking of other corrective action. If, after a hearing on an order contained in a notice, the council finds that no violation has occurred, it shall rescind the order. Any order issued as part of a notice or after hearing may prescribe the date or dates by which the violation shall cease and may prescribe timetables for action. Nothing contained in this subsection shall be construed as preventing any person from applying for a variance as provided in W.S. 35-11-601;
(iv) At any hearing before the council, it may designate a person to be a referee and may authorize the referee to receive evidence, administer oaths, examine witnesses and issue subpoenas requiring the testimony of witnesses and the production of evidence and to make reports and recommendations with respect thereto. Any final determination based on the evidence received by any referee shall be made solely by the council.
(d) Nothing in this section shall be interpreted to in any way limit or contravene any other remedy available under this act, nor shall this section be interpreted as a condition precedent to any other enforcement action under this act.
(a) When the department has, by rule or regulation, required a permit to be obtained it is the duty of the director to issue such permits upon proof by the applicant that the procedures of this act and the rules and regulations promulgated hereunder have been complied with. In granting permits, the director may impose such conditions as may be necessary to accomplish the purpose of this act which are not inconsistent with the existing rules, regulations and standards. An administrator shall not issue permits and may issue a license under this act only as specifically authorized in this act.
(b) Except as otherwise provided in this act the director shall take final action on any application for permit or extension thereof within sixty (60) days after receipt of same unless public notice or hearing is required by state or federal statute.
(c) Except as provided in subsection (e) of this section, a permit to construct is required before construction or modification of any industrial facility capable of causing or increasing air or water pollution in excess of standards established by the department is commenced.
(d) General permits shall be issued solely in accordance with procedures set forth by regulation adopted by the council. Procedures for the issuances of general permits shall include public notice and an opportunity for comment. All department authorizations to use general permits under this section shall be available for public comment for thirty (30) days. Any aggrieved party may appeal the authorization as provided in this act.
(e) Except for sources required to have a permit before construction or modification under the applicable requirements of W.S. 35-11-203 and sources specified by the director, if an applicant for an air quality permit for an oil or gas exploration or production well, with its associated equipment, has submitted a timely and complete application for a permit to construct or modify within ninety (90) days of the first date of production of the oil and gas operation, the applicant's failure to have a permit shall not be a violation of this section. An applicant complies with this section if the applicant demonstrates to the administrator of the air quality division that the oil and gas exploration or production activity qualifies as a nonmajor source. The application shall contain, at a minimum, a demonstration that the applicant will apply the best available control technology to the oil and gas production and exploration activity.
(f) As used in subsection (e) of this section, "first date of production" means the date permanent production equipment is in place and product is consistently flowing to sales lines, gathering lines or storage tanks. Production occurring during well completion activities which is routed to temporary production equipment is considered to occur prior to the first date of production. If extended periods of time pass between zone completions but production from initially completed zones is consistently flowing to permanent production equipment, the first date of production is the date when production from the initial zones began consistently flowing to the permanent production equipment, even though more zones will be completed later.
35-11-802. Refusal to grant permits; applicant's rights.
If the director refuses to grant any permit under this act, the applicant may petition for a hearing before the council to contest the decision. The council shall give a public notice of such hearing. At such hearing, the director and appropriate administrator shall appear as respondent and the rules of practice and procedure adopted by the council pursuant to this act and the Wyoming Administrative Procedure Act shall apply. The burden of proof shall be upon the petitioner. The council must take final action on any such hearing within thirty (30) days from date of hearing.
35-11-803. Single permit for activities covered by more than one article.
(a) The director may grant a single permit for a facility or activity regulated under more than one (1) article of this act provided that there is compliance with all rules, standards and public participation requirements provided by the individual articles of this act.
(b) The council may adopt unified rules which encompass activities covered by more than one (1) article of this act.
(a) Any person who violates, or any director, officer or agent of a corporate permittee who willfully and knowingly authorizes, orders or carries out the violation of any provision of this act, or any rule, regulation, standard or permit adopted hereunder or who violates any determination or order of the council pursuant to this act or any rule, regulation, standard, permit, license or variance is subject to a penalty not to exceed ten thousand dollars ($10,000.00) for each violation for each day during which violation continues, a temporary or permanent injunction, or both a penalty and an injunction subject to the following:
(i) Except that any person who violates any provision of article 2 of this chapter or any provision of the state hazardous waste program authorized pursuant to the Resource Conservation Recovery Act, Subtitle C, 42 U.S.C. § 6901 [6921] et seq., as amended, or any rule, regulation, standard or permit adopted pursuant to those provisions, or who violates any determination or order of the council pursuant to article 2 of this chapter or the state hazardous waste program is subject to a penalty not to exceed ten thousand dollars ($10,000.00) for each violation for each day during which the violation continues, a temporary or permanent injunction, or both a penalty and an injunction; and
(ii) Penalties and injunctive relief under this subsection are to be determined by a court of competent jurisdiction in a civil action, provided that nothing herein shall preclude the department from negotiating stipulated settlements involving the payment of a penalty, implementation of compliance schedules or other settlement conditions in lieu of litigation.
(b) Repealed by Laws 1995, ch. 28, § 4.
(c) Repealed by Laws 1995, ch. 28, § 4.
(d) Repealed by Laws 1995, ch. 28, § 4.
(e) Repealed by Laws 1995, ch. 28, § 4.
(f) Repealed by Laws 1995, ch. 28, § 4.
(g) Repealed by Laws 1995, ch. 28, § 4.
(h) Repealed by Laws 1995, ch. 28, § 4.
(j) Any person who willfully and knowingly violates, or any director, officer or agent of a corporate permittee who willfully and knowingly authorizes, orders or carries out the violation of any provision of this act or any rule, regulation, standard, permit, license, or variance or limitations adopted hereunder or who willfully violates any determination or order of the council or court issued pursuant to this act or any rule, regulation, standard, permit or limitation issued under this act shall be fined not more than twenty-five thousand dollars ($25,000.00) per day of violation, or imprisoned for not more than one (1) year, or both. For a subsequent conviction for a violation of this act, the person shall be subject to a fine of not more than fifty thousand dollars ($50,000.00) per day of violation, imprisonment for not more than two (2) years, or both. For multiple violations, penalties may be assessed up to the maximum amount specified in this subsection for each day of each separate violation.
(k) Any person who knowingly makes any false statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained under this act or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under this act, shall upon conviction, be fined not more than ten thousand dollars ($10,000.00) per day for each violation or imprisoned for not more than one (1) year, or both.
(m) Repealed by Laws 1995, ch. 28, § 4.
(m) Repealed by Laws 1995, ch. 28, § 4.
(m) Repealed by Laws 1995, ch. 28, § 4.
(m) Repealed by Laws 1995, ch. 28, § 4.
(m) Repealed by Laws 1995, ch. 28, § 4.
35-11-902. Surface coal mining operations; violations of provisions; penalties.
(a) Notwithstanding W.S. 35-11-901, violations by surface coal mining operations of article 4 of this act, or of any rule, regulation, standard, order, license, variance or permit issued thereunder, shall be governed by this section.
(b) Any person who violates, or any director, officer or agent of a corporate permittee who willfully and knowingly authorizes, orders or carries out the violation of any provision of article 4 of this act for surface coal mining operations, or any rule, regulation, standard, license, variance or permit issued thereunder, or who violates any determination or order of the council pursuant to article 4 of this act for surface coal mining operations is subject to either a penalty not to exceed ten thousand dollars ($10,000.00) for each day during which a violation continues, or, for multiple violations, a penalty not to exceed five thousand dollars ($5,000.00) for each violation for each day during which a violation continues, a temporary or permanent injunction, or both a penalty and an injunction. Penalties and injunctive relief under this subsection may be recovered in a civil action.
(c) All notices for abatement and cessation orders shall be reported to the director. The director shall:
(i) Issue a notice of assessment, if a cessation order was issued;
(ii) Make a determination as to whether a notice of assessment will be issued if a notice for abatement was issued.
(d) Upon issuance of a notice of abatement or cessation order, the director shall inform the operator of the proposed amount of the penalty within thirty (30) days. The amount shall be determined in accordance with rules and regulations promulgated by the council. The person charged with the penalty shall have fifteen (15) days to request a conference with the director for informal disposition of any dispute over either the amount of the penalty or the occurrence of the violation.
(e) If a conference is held and after the director has determined that a violation did occur and the amount of the penalty is warranted, the person charged with the penalty shall, within fifteen (15) days, either:
(i) Pay the proposed penalty in full; or
(ii) Petition the council for review of either the amount of the penalty or the fact of the violation, submitting a bond equal to the proposed amount of the penalty at the time of filing the petition. The bond shall be conditioned for the satisfaction of the penalty in full, or as modified by the council, if the director's determination as to the occurrence of the violation and the assessment of a penalty is affirmed. The petition is effective when the bond is approved by the council. If the bond is not approved, the person charged with the penalty has ten (10) days to forward the proposed amount to the council for placement in an escrow account to make the petition effective.
(f) If a conference is not requested, the person charged with the penalty has thirty (30) days to take the action required under subsection (d) of this section.
(g) After a petition is effective, the council shall hold a hearing, which shall be conducted as a contested case proceeding under the Wyoming Administrative Procedure Act. The council shall either:
(i) Determine the occurrence of the violation and the amount of penalty which is warranted for the purpose of ordering that the penalty be paid; or
(ii) Determine that no violation occurred, or that the amount of the penalty shall be reduced. If such a determination is made, either through administrative or judicial review, the director shall within thirty (30) days remit the appropriate amount to the person, if any deposit has been made, with interest at the rate of six percent (6%), or at the prevailing United States department of treasury rate, whichever is greater. Failure to file an effective petition shall result in a waiver of all legal rights to contest the violation or the amount of the penalty.
(h) Any person aggrieved or adversely affected in fact by a final decision of the council pursuant to this section is entitled to judicial review in accordance with the Wyoming Administrative Procedure Act.
(j) Any person who willfully and knowingly violates, or any director, officer or agent of a corporate permittee who willfully and knowingly authorizes, orders or carries out the violation of any provision of article 4 of this act with respect to surface coal mining, or any rule, regulation, standard, permit, license, or variance or limitations adopted thereunder, or who willfully violates any determination or order of the council or court issued pursuant to this section, shall be fined not more than twenty-five thousand dollars ($25,000.00) per day of violation, imprisoned for not more than one (1) year, or both. For a subsequent conviction for a violation of article 4 of this act with respect to surface coal mining, the person shall be subject to a fine of not more than fifty thousand dollars ($50,000.00) per day of violation, imprisonment for not more than two (2) years, or both. For multiple violations, penalties may be assessed up to the maximum amount specified in this subsection for each day of each separate violation.
(k) Any person who knowingly makes any false statement, representation or certification in any application, record, report, plan or other document filed or required to be maintained under article 4 of this act for surface coal mining operations, or who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under article 4 of this act for surface coal mining operations shall, upon conviction be subject to a fine of not more than ten thousand dollars ($10,000.00), imprisonment for not more than one (1) year, or both.
(m) Any person who shall, except as permitted by law, willfully resist, prevent, impede or interfere with the director, any administrator or any of their agents in the performance of their duties in the regulation of surface coal mining operations under article 4 of this act shall be subject to a fine of not more than five thousand dollars ($5,000.00), imprisonment for not more than one (1) year, or both.
(n) Any operator of a surface coal mining operation who fails to correct a violation within the period permitted for its correction, or after a final order or decision issues requiring correction when either the department or a court has relieved the operator from the abatement requirements of the notice or order, shall be assessed a civil penalty of not less than seven hundred fifty dollars ($750.00) for each day during which the failure or violation continues.
(o) Any person who is injured in his person or property through the violation, by any operator, of any rule, regulation, order or permit issued pursuant to article 4 of this act as it provides for the regulation of surface coal mining and reclamation in accordance with the requirements of P.L. 95-87 may bring an action for damages, including reasonable attorney and expert witness fees, only in the judicial district in which the surface coal mining operation complained of is located.
35-11-903. Violations of provisions of act causing damage to wildlife; recoveries; causes of action.
(a) Any person who violates this act, or any rule or regulation promulgated thereunder, and thereby causes the death of fish, aquatic life or game or bird life is, in addition to other penalties provided by this act, liable to pay to the state, an additional sum for the reasonable value of the fish, aquatic life, game or bird life destroyed. Any monies so recovered shall be placed in the game and fish fund.
(b) Except as provided in W.S. 35-11-902(o), nothing in this act shall be construed to abridge, limit, impair, create, enlarge or otherwise affect substantively or procedurally the right of any person to damages or other relief on account of injury to persons or property and to maintain any action or other appropriate proceeding therefor.
(c) All actions pursuant to this article, except actions under W.S. 35-11-902(o), shall be brought in the county in which the violation occurred or in Laramie county by the attorney general in the name of the people of Wyoming. All actions pursuant to this article for the enforcement of any program to administer the provisions of W.S. 35-11-301(a)(iii) and (v) pursuant to the authority delegated under W.S. 35-11-304 may also be brought by the county attorney in the county in which the violation occurred.
(a) Except as provided in subsection (c) of this section, any person having an interest which is or may be adversely affected, may commence a civil action on his own behalf to compel compliance with this act only to the extent that such action could have been brought in federal district court under Section 520 of P.L. 95-87, as that law is worded on August 3, 1977:
(i) Against any governmental entity, for alleged violations of any provisions of this act or of any rule, regulation, order or permit issued pursuant thereto, or against any other person for alleged violations of any rule, regulation, order or permit issued pursuant to this act; or
(ii) Against the state of Wyoming, department of environmental quality, for alleged failure of the department to perform any act or duty under this act which is not discretionary with the department.
(b) Actions against the state of Wyoming, department of environmental quality, pursuant to this section shall be filed in the district court for Laramie county. Actions against any governmental entity, or any other person pursuant to this section shall be filed in the district court for the county in which the violation is alleged to have occurred.
(c) No action pursuant to this section may be commenced:
(i) Prior to sixty (60) days after the plaintiff has given notice in writing of the violation and of his intent to commence the civil action to the department and the alleged violator, except that such action may be brought immediately after such notification if the violation complained of constitutes an imminent threat to the health or safety of the plaintiff or would immediately affect a legal interest of the plaintiff; or
(ii) If the department, through the attorney general, has commenced a civil action to require compliance with the provisions of this act, or any rule, regulation, order or permit issued pursuant to this act, but in any such action any person may intervene as a matter of right.
(d) The state of Wyoming, department of environmental quality, may intervene as a matter of right in any action filed pursuant to this section.
(e) The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation, (including attorney and expert witness fees), to any party whenever the court determines such award is appropriate.
(f) The availability of judicial review established pursuant to W.S. 16-3-114 shall not be construed to limit the operation of rights established in this section.
(g) Nothing in this act shall in any way limit any existing civil or criminal remedy for any wrongful action arising out of a violation of any provision of this act or any rule, regulation, standard, permit, license, or variance or order adopted hereunder.
(a) Any aggrieved party under this act, any person who filed a complaint on which a hearing was denied, and any person who has been denied a variance or permit under this act, may obtain judicial review by filing a petition for review within thirty (30) days after entry of the order or other final action complained of pursuant to the provisions of the Wyoming Administrative Procedure Act.
(b) Any person having a legal interest in the mineral rights or any person or corporation having a producing mine or having made substantial capital expenditures and commitments to mine mineral rights with respect to which the state has prohibited mining operations because the mining operations or proposed mining operations would irreparably harm, destroy or materially impair an area that has been designated to be of a unique and irreplaceable historical, archeological, scenic or natural value, may petition the district court for the district in which the mineral rights are located to determine whether the prohibition so restricts the use of the property as to constitute an unconstitutional taking without compensation. Upon a determination that a taking has occurred the value of the investment in the property or interests condemned shall be ascertained and damages shall be assessed as in other condemnation proceedings.
(c) In a proceeding to review any order or decision of the department providing for regulation of surface coal mining and reclamation operations in accordance with P.L. 95-87, the court may under conditions it prescribes grant temporary relief pending final determination of the review proceedings if:
(i) All parties to the proceedings were notified and given opportunity for hearing on the request for temporary relief;
(ii) The party requesting relief shows there is a substantial likelihood he will prevail on the final determination of the proceeding; and
(iii) The relief will not adversely affect the public health and safety or cause significant environmental harm to land, air or water resources.
Any rule, regulation or standard promulgated under this act shall be published and distributed to members of the legislature and any other interested party.
35-11-1101. Records available to the public; restrictions.
(a) Any records, reports or information obtained under this act or the rules, regulations and standards promulgated hereunder are available to the public. Upon a showing satisfactory to the director by any person that his records, reports or information or particular parts thereof, other than emission and pollution data, to which the director and administrators have access under this act if made public would divulge trade secrets, the director and administrators shall consider the records, reports or information or particular portions thereof confidential in the administration of this act.
(b) Nothing herein shall be construed to prevent disclosure of any records, reports or information to federal, state or local agencies necessary for the purposes of administration of any federal, state or local air, water or land control measures or regulations or when relevant to any proceedings under this act.
(c) In any suit under this section or the Public Records Act, W.S. 16-4-201 et seq., to compel the release of information under this act, the court may assess against the state reasonable attorney fees and other litigation costs reasonably incurred in any case in which the complainant has substantially prevailed and in which the court determines the award is appropriate.
35-11-1103. Property exempt from ad valorem taxation.
The following property is exempt from ad valorem taxation pursuant to the provisions of this act and includes facilities, installations, machinery or equipment attached or unattached to real property and designed, installed and utilized primarily for the elimination, control or prevention of air, water or land pollution, or in the event such facility, installation, equipment or machinery shall also serve other beneficial purposes and use, such portion of the assessed valuation thereof as may be reasonably calculated to be necessary for and devoted to elimination, control or prevention of air, water and land pollution. The department of revenue shall determine the exempt portion on all property assessed pursuant to W.S. 39-13-102(m). The county assessor shall determine the exempt portion on all property assessed pursuant to W.S. 39-13-103(b). The determination shall not include as exempt any portion of any facilities which have value as the specific source of marketable byproducts or facilities constructed for the sole purpose of capturing nonpoint source carbon dioxide.
(a) Nothing in this act:
(i) Grants to the department or any division thereof any jurisdiction or authority with respect to pollution existing solely within commercial and industrial plants, works or shops;
(ii) Affects the relations between employers and employees with respect to or arising out of any condition of pollution;
(iii) Limits or interferes with the jurisdiction, duties or authority of the state engineer, the state board of control, the director of the Wyoming game and fish department, the state mine inspector, the oil and gas supervisor or the oil and gas conservation commission, or the occupational health and safety commission.
burden of proof; waiver; disclosure after in camera review; application.
(a) As used in this section:
(i) "Environmental audit" means a voluntary, internal and comprehensive evaluation of one (1) or more facilities or an activity at one (1) or more facilities regulated under this act, or of management systems related to the facility or activity, that is designed to identify and prevent noncompliance and to improve compliance with this act. An environmental audit may be conducted by the owner or operator, by the owner's or operator's employees or by independent contractors. Once initiated the voluntary environmental audit shall be completed within one hundred eighty (180) days. Nothing in this section shall be construed to authorize uninterrupted voluntary environmental audits;
(ii) "Environmental audit report" means a set of documents, each labeled "Environmental Audit Report: Privileged Document," prepared as a result of an environmental audit and may include field notes and records of observations, findings, opinions, suggestions, conclusions, drafts, memoranda, drawings, photographs, computer-generated or electronically recorded information, maps, charts, graphs and surveys if supporting information is generated or developed for the primary purpose and in the course of an environmental audit. An environmental audit report, when completed, shall have three (3) components:
(A) An audit report prepared by the auditor, including the scope, commencement and completion dates of the audit, the information gained in the audit, conclusions and recommendations, together with exhibits and appendices;
(B) Memoranda and documents analyzing the audit report and discussing implementation issues; and
(C) An audit implementation plan that corrects past noncompliance, improves current compliance and prevents future noncompliance.
(iii) "In camera review" means a hearing or review in a courtroom, hearing room or chambers to which the general public is not admitted. However, all parties to a civil or administrative proceeding may attend an in camera hearing and shall have a reasonable opportunity to review the documents for which the privilege is claimed and challenge the application of privilege to an environmental audit report. After such hearing or review, the content of oral and other evidence and statements of the judge, counsel and all parties shall be held in confidence by those participating in or present at the hearing or review, and any transcript of the hearing or review shall be sealed and not considered a public record until its contents are disclosed, pursuant to this section, by a court having jurisdiction over the matter.
(b) Owners and operators of facilities and persons whose activities are regulated under this act may conduct a voluntary internal environmental audit of compliance programs and management systems to assess and improve compliance with this act. An environmental audit privilege is created to protect the confidentiality of communications relating to these audits.
(c) An environmental audit report is privileged and shall not be admissible as evidence in any civil or administrative proceeding, except as follows:
(i) The owner or operator of a facility may waive this privilege in whole or in part. If an owner or operator of a facility or person conducting an activity seeks to introduce any part of an environmental audit report as evidence in any proceeding, including reporting of violations under W.S. 35-11-1106(a), the privilege is waived as to those sections of the report dealing with that media sought to be introduced into evidence;
(ii) In a civil or administrative proceeding, the court or hearing officer after in camera review consistent with the Wyoming Rules of Civil Procedure, shall require disclosure of all or part of the report if it determines:
(A) The privilege is asserted for a fraudulent purpose;
(B) The material is not subject to the privilege;
(C) The material shows evidence of noncompliance with this act or any federal environmental law or regulation and appropriate efforts to achieve compliance were not pursued as promptly as circumstances permit and completed with reasonable diligence; or
(D) The information contained in the environmental audit report demonstrates a substantial threat to the public health or environment or damage to real property or tangible personal property in areas outside of the facility property.
(iii) Repealed By Laws 1998, ch. 80, § 2.
(iv) A party asserting the privilege granted under this section has the burden of proving the privilege, including proof that appropriate efforts to achieve compliance with this act or any federal environmental law or regulation were promptly pursued and completed with reasonable diligence. A party seeking disclosure under subparagraph (c)(ii)(A) of this section has the burden of proving that the privilege is asserted for a fraudulent purpose;
(v) Repealed By Laws 1998, ch. 80, § 2.
(vi) Repealed By Laws 1998, ch. 80, § 2.
(vii) Repealed By Laws 1998, ch. 80, § 2.
(viii) The parties may at any time stipulate to entry of an order directing whether specific information contained in an environmental audit report is subject to the privilege provided under this section;
(ix) Upon making a determination under paragraph (c)(ii) of this section, the court shall compel disclosure of those portions of an environmental audit report relevant to issues in dispute in the proceeding.
(d) The privilege described in this section shall not extend to:
(i) Documents, communications, data, reports or other information required to be collected, developed, maintained, reported or otherwise made available to a regulatory agency or to any person pursuant to any regulatory requirement of this act or any other federal or state law or regulation;
(ii) Information obtained by observation, sampling or monitoring by any regulatory agency;
(iii) Information obtained from a source independent of the environmental audit;
(iv) Documents existing prior to the commencement of the environmental audit; or
(v) Documents prepared subsequent to and independent of the completion of the environmental audit.
(e) Nothing in this section shall limit, waive or abrogate the scope or nature of any statutory or common law privilege, including the work product doctrine and the attorney-client privilege.
35-11-1106. Limitation on civil penalties; voluntary reports of violations.
(a) If an owner or operator of a facility regulated under this act voluntarily reports to the department a violation disclosed by the audit conducted under W.S. 35-11-1105 within sixty (60) days of the completion date of the audit, the department shall not seek civil penalties or injunctive relief for the violation reported unless:
(i) The facility is under investigation for any violation of this act at the time the violation is reported;
(ii) The owner or operator does not take action to eliminate the violation within the time frame specified in an order affirmed by the council or otherwise made final pursuant to W.S. 35-11-701(c)(ii);
(iii) The violation is the result of gross negligence or recklessness; or
(iv) The department has assumed primacy over a federally delegated environmental law and a waiver of penalty authority would result in a state program less stringent than the federal program or the waiver would violate any federal rule or regulation required to maintain state primacy. If a federally delegated program requires the imposition of a penalty for a violation, the voluntary disclosure of the violation shall to the extent allowed under federal law or regulation, be considered a mitigating factor in determining the penalty amount.
(b) Reporting a violation is mandatory if required by this act, any departmental rule or regulation, federal law or regulation, local ordinance or resolution, any order of the council or by any court and is therefore not voluntary under this section.
(c) Notwithstanding subsection (a) of this section, injunctive relief may be sought under W.S. 35-11-115.
(d) The elimination of administrative or civil penalties under this section does not apply if a person or entity has been found by a court to have committed serious violations that constitute a pattern of continuous or repeated violations of environmental laws, rules, regulations, permit conditions, settlement agreements or orders on consent and that were due to separate and distinct events giving rise to the violations, within the three (3) year period prior to the date of the disclosure. A pattern of continuous or repeated violations may also be demonstrated by multiple settlement agreements related to substantially the same alleged violations concerning serious instances of noncompliance with environmental laws that occurred within the three (3) year period immediately prior to the date of the voluntary disclosure.
In addition to any other powers and duties imposed by law, the governor, through the director shall perform any and all acts necessary or expedient to implement and administer an abandoned mine reclamation program pursuant to section 405 of P.L. 95-87 in accordance with an approved state reclamation plan and annual approved applications for implementation of specific reclamation projects.
(a) The state reclamation plan may provide for any or all of the following activities:
(i) The acquisition, reclamation or restoration of land and water resources which were mined for coal or minerals or affected by coal or other mineral mining processes and left or abandoned in an unreclaimed or inadequately reclaimed condition prior to August 3, 1977, and for which there is no continuing reclamation responsibility under state or federal statutes. The effective date for the purpose of determining eligibility on federal lands managed by the forest service shall be August 28, 1974, and the effective date for determining eligibility on federal lands managed by the bureau of land management shall be November 26, 1980. Any of the activities under this paragraph shall reflect the following priorities in the order stated:
(A) The protection of public health, safety, general welfare and property from extreme danger of adverse effects of mining and processing practices;
(B) The protection of public health, safety and general welfare from adverse effects of mining and processing practices;
(C) The restoration of land and water resources and the environment previously degraded by the adverse effects of coal and mineral mining and processing practices.
(D) Repealed by Laws 1991, ch. 72, § 2.
(E) Repealed by Laws 1991, ch. 72, § 2.
(F) Repealed by Laws 1991, ch. 72, § 2.
(ii) Repealed by Laws 1991, ch. 72, § 2.
(iii) The acquisition, reclamation and transfer of land to the state or to a political subdivision thereof, or to any person after a determination by the governor that such is an integral and necessary element of an economically feasible plan for a project to construct or rehabilitate housing for persons disabled as the result of employment in the mines or work incidental thereto, persons displaced by acquisition of land pursuant to this article, persons dislocated as a result of adverse effects of coal mining practices which constitute an emergency, or persons dislocated as the result of natural disasters or catastrophic failures from any cause. However, no part of the abandoned mine reclamation funds may be used to pay the actual construction costs of housing;
(iv) Repealed by Laws 1991, ch. 72, § 2.
(v) Reclamation projects involving the protection, repair, replacement, construction or enhancement of utilities, such as those relating to water supply, roads and other facilities serving the public adversely affected by coal and mineral mining and processing practices. The construction and maintenance of public facilities in communities impacted by coal or mineral mining and processing practices is deemed to be included within the objectives established for the abandoned mine reclamation program, and shall be undertaken in accordance with the priorities stated in paragraph (i) of this subsection.
(b) The state reclamation plan shall be developed by the governor, after recommendation from the director. The director after consulting the administrator of the abandoned land mine division shall make this recommendation only after he has prepared a proposed plan and afforded, at a minimum, an opportunity for the public to inspect and comment on this proposed plan in each county having land and water resources which qualify for acquisition, reclamation or restoration under subsection (a) of this section. All comments shall be recorded and considered in the development of the plan.
(c) Notwithstanding subsection (a) of this section, the governor may request abandoned mine land funds be appropriated for the construction of specific public facilities related to the coal or mineral industries or for other activities related to the impacts of these industries.
(a) Upon approval of the state reclamation plan, the state treasurer shall create an abandoned mine reclamation account for the purpose of accounting for monies received by the state from the secretary of the interior and any other monies authorized to be deposited in the account. The account shall be administered in compliance with the approved plan.
(b) Revenue to the account shall include amounts granted by the secretary of the interior under Title IV of P.L. 95-87, monies received by the state for the use or sale of lands acquired with monies from the account and such other monies which may be deposited in the account for use in carrying out the state reclamation program.
(c) There is created a coal mine subsidence mitigation account. Revenue to the account shall be ten percent (10%) of the amount granted by the secretary of the interior under title IV of P.L. 95-87 as provided by P.L. 100-34. Revenue shall be deposited in an interest bearing account and all interest shall be credited to the program. No monies from the account shall be expended prior to September 30, 1995. After September 30, 1995 the money may be expended as provided in this subsection. The legislature shall authorize expenditure by appropriation from the account as necessary to defray the administrative expenses of the program. The remaining funds in the account shall only be used to address the reclamation activities described in W.S. 35-11-1202(a)(i)(A) and (B) where mine reclamation is necessary for the protection of the public health or safety, with a priority given to pay for contractual services to mitigate and control mine subsidence that threatens structures. If authorized by the United States congress, funds from the account may be used for the repair or enhancement of structures defined in W.S. 35-11-1301(a)(iii), provided that no funds from the account may be used for any structure where construction is commenced after the effective date of this act unless an engineering assessment documenting the minimal risk of loss from mine subsidence precedes commencement of construction. The liability of the state to fulfill the requirements of this subsection is limited to the amount of funds available in the account established in this subsection. The state has no obligations under this subsection except to the extent of federal funds deposited in the coal mine mitigation account and the interest thereon to operate the program.
(a) The director, administrator of the abandoned mine land division, or their designated authorized representative shall have the right to enter upon or have access to any property adversely affected by past coal mining practices to restore, reclaim, abate, control or prevent the adverse effects if the director makes a finding that:
(i) The adverse effects on land or water resources are such that, in the public interest, the action should be taken; and
(ii) The owners of the property either are not known or readily available or refuse to give permission to enter.
(b) Prior to entry, notice shall be given by mail to the owners, if known, or if not known, by posting notice upon the premises and advertising once in a newspaper of general circulation in the locality of the land.
(c) Monies expended for work on or to the premises and the benefits accruing to any premises entered upon shall be chargeable against the land and shall mitigate or offset any claim of or any action brought by any owner of any interest in the premises for any alleged damages by virtue of the entry. However, this provision is not intended to create new rights of action or eliminate existing immunities.
(d) The director, administrator of the abandoned mine land division, or their designated authorized representatives shall have the right to enter upon any property for the purpose of conducting exploratory work to determine the feasibility to restore, reclaim, abate, control or prevent the adverse effects.
(e) Any entry under this section shall be construed as an exercise of the state's police power and shall not be construed as an act of condemnation or trespass.