H. B. 4462
(By Mr. Speaker, Mr. Kiss, and Delegates
Yeager, Browning, Staton and H. White)
[Introduced February 13, 2004; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §22-15-9 of the code of West Virginia,
1931, as amended, relating to solid waste facilities handling
in excess of thirty thousand tons of solid waste per month;
increasing the allowable tonnage for disposal beyond fifty
thousand tons per month; providing that a commercial solid
waste facility which had received a valid permit from the West
Virginia department of environmental protection (DEP) and,
after a public referendum approved it, was allowed to handle
up to fifty thousand tons per month, the facility be permitted
to accept more than fifty thousand tons per month, with DEP
approval; that a second public referendum shall not be
required should the county commission, county economic
development authority and county solid waste authority concur
that a second referendum is not required; and providing for an
alternative allocation and disbursement of existing solid
waste assessment fees to the county commission and economic development authority, after the original permitted amount of
fifty thousand tons per month fee disbursements are made
according to existing law, in order to fund and promote
economic development in the county where the facility is
located, as well as other counties and the state.
Be it enacted by the Legislature of West Virginia:
That §22-15-9 of the code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 15. SOLID WASTE MANAGEMENT ACT.
§22-15-9. Exemption for solid waste facility handling in excess of
thirty thousand tons per month.
(a) Notwithstanding any provision in this article, article
four, chapter twenty-two-c, article two, chapter twenty-four of
this code, or any other section of this code to the contrary, and
notwithstanding any defects in or challenges to any actions which
were or are required to be performed in satisfaction of the
following criteria, any person who on the first day of October, one
thousand nine hundred ninety-one, has:
(1) Obtained site approval for a commercial solid waste
facility from a county or regional solid waste authority or county
commission pursuant to a prior enactment of this code, or has
otherwise satisfied the requirements of subsection (a), section
twenty-five, article four, chapter twenty-two-c of this code;
(2) Entered into a contract with a county commission regarding the construction and operation of a solid waste facility, which
contract contains rates for the disposal of solid waste anticipated
to be disposed of at the facility;
(3) Obtained, pursuant to section one-f, article two, chapter
twenty-four of this code, following a public hearing, an order from
the public service commission approving the rates established in
the contract with the county commission; and
(4) An application for a permit for a commercial solid waste
facility pending with the division of environmental protection, or
is operating under a permit or compliance order, is permitted to
handle in excess of the limitation established in section eight of
this article up to fifty thousand tons of solid waste per month at
a commercial solid waste facility so long as the person complies
with the provisions of this section.
(b) Any person desiring to operate a commercial solid waste
facility which handles an amount of solid waste per month in excess
of the limitation established in section eight of this article, but
not exceeding the tonnage limitation described in subsection (a) of
this section may file a notice with the county commission of the
county in which the facility is or is to be located requesting a
countywide referendum. Upon receipt of such the notice, the county
commission shall order a referendum be placed upon the ballot, not
less than fifty-six days before the next primary or general
election:
(1) Such The referendum will be to determine whether it is the
will of the voters of the county that a commercial solid waste
facility be permitted to handle more than the limitation
established in section eight of this article not to exceed fifty
thousand tons per month. Any such The election shall be held at
the voting precincts established for holding primary or general
elections. All of the provisions of the general election laws,
when not in conflict with the provisions of this article, apply to
voting and elections hereunder, insofar as practicable;
(2) The ballot, or the ballot labels where voting machines are
used, shall have printed thereon substantially the following:
"Shall a commercial solid waste facility, permitted to handle
up to, but no more than fifty thousand tons of solid waste per
month be located within _________________ County, West Virginia?
/ / For the facility
/ / Against the facility
(Place a cross mark in the square opposite your choice.)"
If a majority of the legal votes cast upon the question is
against the facility handling an amount of solid waste of up to
fifty thousand tons per month then the division shall not proceed
any further with the application. If a majority of the legal votes
cast upon the question is in favor of permitting the facility
within the county, then the application process as set forth in this article may proceed: Provided, That such the vote is not
binding on or require the division to issue a permit.
(c) If a person submits to a referendum in accordance with
this section, all approvals, certificates and permits granted and
all actions undertaken by a regional or county solid waste
authority or county commission with regard to the person's
commercial solid waste facility within the county under this
article or article four, chapter twenty-two-c of this code, or
previously enacted sections of articles five-f and nine, chapter
twenty of this code are valid, complete and in full compliance with
all the requirements of law and any defects contained in such the
approvals, certificates, permits or actions are cured and such the
defects may not be invoked to invalidate any such approval,
certificate, permit or action.
(d) Notwithstanding any provision of this code to the
contrary, any person described in subsection (a) of this section
who complies with the referendum requirement of this section and
complies with the permitting requirements of the division provided
in section ten of this article, shall not be required to comply
with the requirements of sections twenty-five, twenty-six,
twenty-seven and twenty-eight, article four, chapter twenty-two-c
of this code: Provided, That such the person is entitled to
receive a certificate of need pursuant to the provisions of
subsection (a), section one-c, article two, chapter twenty-four of this code to handle the tonnage level authorized pursuant to
subsection (a) of this section.
(e) The purpose of this section is to allow any person who
satisfies the four criteria contained in subsection (a) of this
section, notwithstanding any defects in or challenges to any
actions which were or are required to be performed in satisfaction
of such criteria, to submit the question of siting a facility that
accepts up to fifty thousand tons within the county to a referendum
in order to obtain a decision at the county or regional level
regarding the siting of the facility and that submission of this
question at the county level is the only approval, permit or action
required at the county or regional level to establish and site the
proposed facility.
(e) (1) Notwithstanding any portion of this code to the
contrary, a commercial solid waste facility that has received a
valid permit from the West Virginia department of environmental
protection pursuant to section nine, article fifteen, chapter
twenty-two of this code, and has received a certificate of need
from the public service commission and has submitted a request to
handle up to fifty thousand tons of solid waste per month for
public referendum in the county where the facility is to be located
and has received referendum results in favor of the facility, may
apply to the department to accept and handle in excess of fifty
thousand tons of solid waste per month
. The application shall be considered a major modification. A second referendum shall not be
required unless the county commission, county economic development
authority and the county solid waste authority concur unanimously
by vote at a county commission meeting prior to the facility
exceeding fifty thousand tons per month.
(2) Once the solid waste facility that has complied with
subdivision (1) of subsection(e) of this section exceeds accepting
and handling fifty thousand tons per month, the entire assessment
fee on waste between fifty thousand and seventy thousand tons per
month shall be three dollars and fifty cents per ton and shall be
allocated as follows:
(A) One dollar and fifty cents per ton to the department of
environmental protection for discretionary agency needs, as
determined by the secretary of the department; and
(B) Two dollars per ton to be distributed equally to solid
waste authorities and economic development authorities of West
Virginia counties contiguous with the county in which the facility
is located and to county solid waste authorities with existing
regional recycling facilities within fifty miles of the facility,
to support unfunded solid waste responsibilities and for the
purpose of economic development.
(3) Once the solid waste facility that has complied with
subdivision (1) of subsection(e) of this section exceeds accepting
and handling seventy thousand tons per month, the entire assessment fee on waste between seventy thousand and one hundred thousand
tons per month shall be two dollars and fifty cents per ton to be
distributed equally to county economic development authorities of
West Virginia counties contiguous with the county in which the
facility is located
, and to county solid waste authorities with
existing regional recycling facilities within fifty miles of the
solid waste facility. The fees are intended explicitly for the
purposes of recycling and economic development.
NOTE: The purpose of this bill is to facilitate the operation
of a commercial solid waste landfill already permitted, which
received a certificate of need (CON) from the public service
commission, but which can not comply with the CON because of
constitutional or economic reasons because of discrimination
against out-of-county, wasteshed and state waste and also because
of required allocation of assessment fees, after current state
programs receive their statutory fees, to counties and economic
development authorities to stimulate economic development.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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