ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2445
(By Mr. Speaker, Mr. Chambers, and Delegates P. White,
Douglas, Manuel, Huntwork and Compton)
[Passed April 10, 1993; in effect ninety days from passage.]
A BILL to repeal section twelve, article five-f, chapter twenty
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact sections one,
five-a, five-b and ten of said article; and to amend and
reenact section four, article five-n of said chapter, all
relating to the management and disposal of solid waste;
adding legislative findings which provide that solid waste
incineration presents potentially significant health and
environmental problems; that efforts should continue to
evaluate the viability of future incineration technologies
that are both environmentally sound and economically
feasible; solid waste assessment fees; penalties;
performance bonds; amount and method of bonding; bonding
requirements; period of bonding liability; prohibiting new
municipal and commercial solid waste facilities utilizing
incineration technologies for the purpose of solid waste
incineration; county assessment for Class A facilities;
amount of county assessment fees and purposes for which they
may be expended; solid waste disposal facility assessment
fees; and penalties.
Be it enacted by the Legislature of West Virginia:
That section twelve, article five-f, chapter twenty of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that sections one, five-a, five-b and ten
of said article be amended and reenacted; and that section four,
article five-n of said chapter be amended and reenacted, all to
read as follows:
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 5F. SOLID WASTE MANAGEMENT ACT.
§20-5F-1. Purpose and legislative findings.
(a) The purpose of this article is to transfer jurisdiction
over the management of solid waste under section nine, article
one, chapter sixteen of the code from the division of health to
the division of environmental protection and to establish a
comprehensive program of controlling solid waste disposal.
(b) The Legislature finds that uncontrolled, inadequately
controlled and improper collection, transportation, processing
and disposal of solid waste (1) is a public nuisance and a clear
and present danger to people; (2) provides harborages and
breeding places for disease-carrying, injurious insects, rodents
and other pests harmful to the public health, safety and welfare;
(3) constitutes a danger to livestock and domestic animals; (4)
decreases the value of private and public property, causes
pollution, blight and deterioration of the natural beauty and
resources of the state and has adverse economic and socialeffects on the state and its citizens; (5) results in the
squandering of valuable nonrenewable and nonreplenishable
resources contained in solid waste; (6) that resource recovery
and recycling reduces the need for landfills and extends their
life; and that (7) proper disposal, resource recovery or
recycling of solid waste is for the general welfare of the
citizens of this state.
(c) The Legislature further finds that disposal in West
Virginia of solid waste from unknown origins threatens the
environment and the public health, safety and welfare, and
therefore, it is in the interest of the public to identify the
type, amount and origin of solid waste accepted for disposal at
West Virginia solid waste facilities.
(d) The Legislature further finds that other states of these
United States of America have imposed stringent standards for
the proper collection and disposal of solid waste and that the
relative lack of such standards and enforcement for such
activities in West Virginia has resulted in the importation and
disposal in the state of increasingly large amounts of
infectious, dangerous and undesirable solid wastes and hazardous
waste from other states by persons and firms who wish to avoid
the costs and requirements for proper, effective and safe
disposal of such wastes in the states of origin.
(e) The Legislature further finds that Class A landfills
often have capacities far exceeding the needs of the state or the
areas of the state which they serve and that such landfills
create special environmental problems that require statewide
coordination of the management of such landfills.
(f) The Legislature further finds that incineration
technologies present potentially significant health and
environmental problems.
(g) The Legislature further finds that there is a need for
efforts to continue to evaluate the viability of future
incineration technologies that are both environmentally sound and
economically feasible.
§20-5F-5a. Solid waste assessment fee; penalties.
(a)
Imposition.
-- A solid waste assessment fee is hereby
imposed upon the disposal of solid waste at any solid waste
disposal facility in this state in the amount of one dollar and
seventy-five cents per ton or part thereof of solid waste. The
fee imposed by this section is in addition to all other fees and
taxes levied by law and shall be added to and constitute part of
any other fee charged by the operator or owner of the solid waste
disposal facility.
(b)
Collection, return, payment and records.
-- The person
disposing of solid waste at the solid waste disposal facility
shall pay the fee imposed by this section, whether or not such
person owns the solid waste, and the fee shall be collected by
the operator of the solid waste facility who shall remit it to
the tax commissioner.
(1) The fee imposed by this section accrues at the time the
solid waste is delivered to the solid waste disposal facility.
(2) The operator shall remit the fee imposed by this section
to the tax commissioner on or before the fifteenth day of the
month next succeeding the month in which the fee accrued. Upon
remittance of the fee, the operator is required to file returnson forms and in the manner as prescribed by the tax commissioner.
(3) The operator shall account to the state for all fees
collected under this section and shall hold them in trust for the
state until remitted to the tax commissioner.
(4) If any operator fails to collect the fee imposed by this
section, he or she is personally liable for such amount as he or
she failed to collect, plus applicable additions to tax,
penalties and interest imposed by article ten, chapter eleven of
this code.
(5) Whenever any operator fails to collect, truthfully
account for, remit the fee or file returns with the fee as
required in this section, the tax commissioner may serve written
notice requiring such operator to collect the fees which become
collectible after service of such notice, to deposit such fees in
a bank approved by the tax commissioner, in a separate account,
in trust for and payable to the tax commissioner, and to keep the
amount of such fees in such account until remitted to the tax
commissioner. Such notice remains in effect until a notice of
cancellation is served on the operator or owner by the tax
commissioner.
(6) Whenever the owner of a solid waste disposal facility
leases the solid waste facility to an operator, the operator is
primarily liable for collection and remittance of the fee imposed
by this section and the owner is secondarily liable for
remittance of the fee imposed by this section. However, if the
operator fails, in whole or in part, to discharge his or her
obligations under this section, the owner and the operator of the
solid waste facility are jointly and severally responsible andliable for compliance with the provisions of this section.
(7) If the operator or owner responsible for collecting the
fee imposed by this section is an association or corporation, the
officers thereof are liable, jointly and severally, for any
default on the part of the association or corporation, and
payment of the fee and any additions to tax, penalties and
interest imposed by article ten, chapter eleven of this code may
be enforced against them as against the association or
corporation which they represent.
(8) Each person disposing of solid waste at a solid waste
disposal facility and each person required to collect the fee
imposed by this section shall keep complete and accurate records
in such form as the tax commissioner may require in accordance
with the rules of the tax commissioner.
(c)
Regulated motor carriers.
-- The fee imposed by this
section and section twenty-two, article five, chapter seven of
this code is considered a necessary and reasonable cost for motor
carriers of solid waste subject to the jurisdiction of the public
service commission under chapter twenty-four-a of this code.
Notwithstanding any provision of law to the contrary, upon the
filing of a petition by an affected motor carrier, the public
service commission shall, within fourteen days, reflect the cost
of said fee in said motor carrier's rates for solid waste removal
service. In calculating the amount of said fee to said motor
carrier, the commission shall use the national average of pounds
of waste generated per person per day as determined by the United
States Environmental Protection Agency.
(d)
Definition of solid waste disposal facility.
-- Forpurposes of this section, the term "solid waste disposal
facility" means any approved solid waste facility or open dump in
this state, and includes a transfer station when the solid waste
collected at the transfer station is not finally disposed of at
a solid waste disposal facility within this state that collects
the fee imposed by this section. Nothing herein authorizes in
any way the creation or operation of or contribution to an open
dump.
(e)
Exemptions.
-- The following transactions are exempt
from the fee imposed by this section:
(1) Disposal of solid waste at a solid waste disposal
facility by the person who owns, operates or leases the solid
waste disposal facility if the facility is used exclusively to
dispose of waste originally produced by such person in such
person's regular business or personal activities or by persons
utilizing the facility on a cost-sharing or nonprofit basis;
(2) Reuse or recycling of any solid waste;
(3) Disposal of residential solid waste by an individual not
in the business of hauling or disposing of solid waste on such
days and times as designated by the director is exempt from the
solid waste assessment fee; and
(4) Disposal of solid waste at a solid waste disposal
facility by a commercial recycler which disposes of thirty
percent or less of the total waste it processes for recycling.
In order to qualify for this exemption each commercial recycler
must keep accurate records of incoming and outgoing waste by
weight. Such records must be made available to the appropriate
inspectors from the division of environmental protection, uponrequest.
(f)
Procedure and administration.
-- Notwithstanding section
three, article ten, chapter eleven of this code, each and every
provision of the "West Virginia Tax Procedure and Administration
Act" set forth in article ten, chapter eleven of this code shall
apply to the fee imposed by this section with like effect as if
said act were applicable only to the fee imposed by this section
and were set forth in extenso herein.
(g)
Criminal penalties.
-- Notwithstanding section two,
article nine, chapter eleven of this code, sections three through
seventeen, article nine, chapter eleven of this code shall apply
to the fee imposed by this section with like effect as if said
sections were applicable only to the fee imposed by this section
and were set forth in extenso herein.
(h)
Dedication of proceeds.
-- The net proceeds of the fee
collected by the tax commissioner pursuant to this section shall
be deposited at least monthly in an account designated by the
director. The director shall allocate twenty-five cents for each
ton of solid waste disposed of in this state upon which the fee
imposed by this section is collected and shall deposit the total
amount so allocated into the "Solid Waste Reclamation and
Environmental Response Fund" to be expended for the purposes
hereinafter specified. The first one million dollars of the net
proceeds of the fee imposed by this section collected in each
fiscal year shall be deposited in the "Solid Waste Enforcement
Fund" and expended for the purposes hereinafter specified. The
next two hundred fifty thousand dollars of the net proceeds of
the fee imposed by this section collected in each fiscal yearshall be deposited in the "Solid Waste Management Board Reserve
Fund", and expended for the purposes hereinafter specified:
Provided,
That in any year in which the water development
authority determines that the solid waste management board
reserve fund is adequate to defer any contingent liability of the
fund, the water development authority shall so certify to the
director and the director shall then cause no less than fifty
thousand dollars nor more than two hundred fifty thousand dollars
to be deposited to the fund:
Provided, however,
That in any year
in which the water development authority determines that the
solid waste management board reserve fund is inadequate to defer
any contingent liability of the fund, the water development
authority shall so certify to the director and the director shall
then cause not less than two hundred fifty thousand dollars nor
more than five hundred thousand dollars to be deposited in the
fund:
Provided further,
That if a facility owned or operated by
the state of West Virginia is denied site approval by a county or
regional solid waste authority, and if such denial contributes,
in whole or in part, to a default, or drawing upon a reserve
fund, on any indebtedness issued or approved by the solid waste
management board, then in that event the solid waste management
board or its fiscal agent may withhold all or any part of any
funds which would otherwise be directed to such county or
regional authority and shall deposit such withheld funds in the
appropriate reserve fund. The director shall allocate the
remainder, if any, of said net proceeds among the following three
special revenue accounts for the purpose of maintaining a
reasonable balance in each special revenue account, which arehereby continued in the state treasury:
(1) The "Solid Waste Enforcement Fund" which shall be
expended by the director for administration, inspection,
enforcement and permitting activities established pursuant to
this article;
(2) The "Solid Waste Management Board Reserve Fund" which
shall be exclusively dedicated to providing a reserve fund for
the issuance and security of solid waste disposal revenue bonds
issued by the solid waste management board pursuant to article
three, chapter twenty-two-c of this code;
(3) The "Solid Waste Reclamation and Environmental Response
Fund" which may be expended by the director for the purposes of
reclamation, cleanup and remedial actions intended to minimize or
mitigate damage to the environment, natural resources, public
water supplies, water resources and the public health, safety and
welfare which may result from open dumps or solid waste not
disposed of in a proper or lawful manner.
(i)
Findings.
-- In addition to the purposes and legislative
findings set forth in section one of this article, the
Legislature finds as follows:
(1) In-state and out-of-state locations producing solid
waste should bear the responsibility of disposing of said solid
waste or compensate other localities for costs associated with
accepting such solid waste;
(2) The costs of maintaining and policing the streets and
highways of the state and its communities are increased by long
distance transportation of large volumes of solid waste; and
(3) Local approved solid waste facilities are beingprematurely depleted by solid waste originating from other
locations.
§20-5F-5b. Performance bonds; amount and method of bonding;
bonding requirements; period of bond liability.
(a) After a solid waste permit application has been approved
pursuant to this article, or once operations have commenced
pursuant to a compliance order, but before a permit has been
issued, each operator of a commercial solid waste facility shall
furnish bond, on a form to be prescribed and furnished by the
director, payable to the state of West Virginia and conditioned
upon the operator faithfully performing all of the requirements
of this article, rules promulgated hereunder and the permit:
Provided,
That the director has the discretion to waive the
requirement of a bond from the operator of a commercial solid
waste facility, other than a Class A facility, which is operating
under a compliance order. The amount of the bond required is one
thousand dollars per acre and may include an additional amount
determined by the director based upon the total estimated cost to
the state of completing final closure according to the permit
granted to such facility and such measures as are necessary to
prevent adverse effects upon the environment; such measures
include, but are not limited to, satisfactory monitoring,
post-closure care and remedial measures:
Provided, however,
That
the amount of the bond shall not exceed eight thousand dollars
per acre. All permits shall be bonded for at least ten thousand
dollars. The bond shall cover either (1) the entire area to be
used for the disposal of solid waste, or (2) that increment of
land within the permit area upon which the operator will initiateand conduct commercial solid waste facility operations within the
initial term of the permit pursuant to legislative rules
promulgated by the director pursuant to chapter twenty-nine-a of
this code. If the operator chooses to use incremental bonding,
as succeeding increments of commercial solid waste facility
operations are to be initiated and conducted within the permit
area, the operator shall file with the director an additional
bond or bonds to cover such increments in accordance with this
section:
Provided further,
That once the operator has chosen to
proceed with bonding either the entire area to be used for the
disposal of solid waste or with incremental bonding, the operator
shall continue bonding in that manner for the term of the permit.
(b) The period of liability for performance bond coverage
shall commence with issuance of a permit and continue for the
full term of the permit and for a period of up to thirty full
years after final closure of the permit site:
Provided,
That any
further time period necessary to achieve compliance with the
requirements in the closure plan of the permit is considered an
additional liability period.
(c) The form of the performance bond shall be approved by
the director and may include, at the option of the director,
surety bonding, collateral bonding (including cash and
securities), establishment of an escrow account, letters of
credit, performance bonding fund participation (as established by
the director), self-bonding or a combination of these methods.
If collateral bonding is used, the operator may elect to
deposit cash, or collateral securities or certificates as
follows: Bonds of the United States or its possessions, of thefederal land bank, or of the homeowners' loan corporation; full
faith and credit general obligation bonds of the state of West
Virginia, or other states, and of any county, district or
municipality of the state of West Virginia or other states; or
certificates of deposit in a bank in this state, which
certificates shall be in favor of the division. The cash deposit
or market value of such securities or certificates shall be equal
to or greater than the sum of the bond. The director shall, upon
receipt of any such deposit of cash, securities or certificates,
promptly place the same with the treasurer of the state of West
Virginia whose duty it is to receive and hold the same in the
name of the state in trust for the purpose for which the deposit
is made when the permit is issued. The operator making the
deposit is entitled from time to time to receive from the state
treasurer, upon the written approval of the director, the whole
or any portion of any cash, securities or certificates so
deposited, upon depositing with the treasurer in lieu thereof,
cash or other securities or certificates of the classes herein
specified having value equal to or greater than the sum of the
bond.
(d) Within twelve months prior to the expiration of the
thirty-year period following final closure, the division will
conduct a final inspection of the facility. The purpose of the
inspection is to determine compliance with this article, the
division's rules, the terms and conditions of the permit, orders
of the division and the terms and conditions of the bond. Based
upon this determination, the division will either forfeit the
bond prior to the expiration of the thirty-year period followingfinal closure, or release the bond at the expiration of the
thirty-year period following final closure. Bond release
requirements shall be provided in rules promulgated by the
director.
(e) If the operator of a commercial solid waste facility
abandons the operation of a solid waste disposal facility for
which a permit is required by this article or if the permittee
fails or refuses to comply with the requirements of this article
in any respect for which liability has been charged on the bond,
the director shall declare the bond forfeited and shall certify
the same to the attorney general who shall proceed to enforce and
collect the amount of liability forfeited thereon, and where the
operation has deposited cash or securities as collateral in lieu
of corporate surety, the secretary shall declare said collateral
forfeited and shall direct the state treasurer to pay said funds
into a waste management fund to be used by the director to effect
proper closure and to defray the cost of administering this
article. Should any corporate surety fail to promptly pay, in
full, forfeited bond, it is disqualified from writing any further
surety bonds under this article.
§20-5F-10. Municipal and commercial solid waste incineration
and backhauling prohibited; exceptions.
(a) Notwithstanding any other provision of this code to the
contrary, it shall be unlawful to install, establish or construct
a new municipal or commercial solid waste facility utilizing
incineration technology for the purpose of solid waste
incineration:
Provided,
That such prohibition shall not include
the development of pilot projects which may include tire or tirematerial incineration, designed to analyze the efficiency and
environmental impacts of incineration technologies:
Provided,
however,
That any pilot project proposing to incinerate solid
waste must comply with regulatory requirements for solid waste
facilities established in this chapter and shall demonstrate with
particularity to the division that it has the financial and
technical ability to comply with all regulations applicable to
solid waste facilities utilizing incineration technologies. The
division shall require a surety bond, deposit or similar
instrument in an amount sufficient to cover the costs of
potential future environmental harm at the site.
(b) It shall be unlawful to engage in the practice of
backhauling as such term is defined in section two of this
article.§20-5N-4. Solid waste assessment fee; penalties.
(a)
Imposition.
-- A solid waste assessment fee is hereby
levied and imposed upon the disposal of solid waste at any solid
waste disposal facility in this state in the amount of three
dollars and fifty cents per ton or like ratio on any part thereof
of solid waste, except as provided in subsection (e) of this
section:
Provided,
That any solid waste disposal facility may
deduct from this assessment fee an amount, not to exceed the fee,
equal to the amount that such facility is required by the public
service commission to set aside for the purpose of closure of
that portion of the facility required to close by article fifteen
of this chapter. The fee imposed by this section is in addition
to all other fees and taxes levied by law and shall be added to
and constitute part of any other fee charged by the operator or
owner of the solid waste disposal facility.
(b)
Collection, return, payment and records.
-- The person
disposing of solid waste at the solid waste disposal facility
shall pay the fee imposed by this section, whether or not such
person owns the solid waste, and the fee shall be collected by
the operator of the solid waste facility who shall remit it to
the tax commissioner.
(1) The fee imposed by this section accrues at the time the
solid waste is delivered to the solid waste disposal facility.
(2) The operator shall remit the fee imposed by this section
to the tax commissioner on or before the fifteenth day of the
month next succeeding the month in which the fee accrued. Upon
remittance of the fee, the operator shall file returns on forms
and in the manner prescribed by the tax commissioner.
(3) The operator shall account to the state for all fees
collected under this section and shall hold them in trust for the
state until they are remitted to the tax commissioner.
(4) If any operator fails to collect the fee imposed by this
section, he or she is personally liable for such amount as he or
she failed to collect, plus applicable additions to tax,
penalties and interest imposed by article ten, chapter eleven of
this code.
(5) Whenever any operator fails to collect, truthfully
account for, remit the fee or file returns with the fee as
required in this section, the tax commissioner may serve written
notice requiring such operator to collect the fees which become
collectible after service of such notice, to deposit such fees in
a bank approved by the tax commissioner, in a separate account,
in trust for and payable to the tax commissioner, and to keep theamount of such fees in such account until remitted to the tax
commissioner. Such notice shall remain in effect until a notice
of cancellation is served on the operator or owner by the tax
commissioner.
(6) Whenever the owner of a solid waste disposal facility
leases the solid waste facility to an operator, the operator is
primarily liable for collection and remittance of the fee imposed
by this section and the owner is secondarily liable for
remittance of the fee imposed by this section. However, if the
operator fails, in whole or in part, to discharge his or her
obligations under this section, the owner and the operator of the
solid waste facility are jointly and severally responsible and
liable for compliance with the provisions of this section.
(7) If the operator or owner responsible for collecting the
fee imposed by this section is an association or corporation, the
officers thereof are liable, jointly and severally, for any
default on the part of the association or corporation, and
payment of the fee and any additions to tax, penalties and
interest imposed by article ten, chapter eleven of this code may
be enforced against them as against the association or
corporation which they represent.
(8) Each person disposing of solid waste at a solid waste
disposal facility and each person required to collect the fee
imposed by this section shall keep complete and accurate records
in such form as the tax commissioner may require in accordance
with the rules of the tax commissioner.
(c)
Regulated motor carriers.
-- The fee imposed by this
section is a necessary and reasonable cost for motor carriers ofsolid waste subject to the jurisdiction of the public service
commission under chapter twenty-four-a of this code.
Notwithstanding any provision of law to the contrary, upon the
filing of a petition by an affected motor carrier, the public
service commission shall, within fourteen days, reflect the cost
of said fee in said motor carrier's rates for solid waste removal
service. In calculating the amount of said fee to said motor
carrier, the commission shall use the national average of pounds
of waste generated per person per day as determined by the United
States Environmental Protection Agency.
(d)
Definitions.
-- For purposes of this section, the term
"solid waste disposal facility" means any approved solid waste
facility or open dump in this state, and includes a transfer
station when the solid waste collected at the transfer station is
not finally disposed of at a solid waste facility within this
state that collects the fee imposed by this section. Nothing in
this section authorizes in any way the creation or operation of
or contribution to an open dump.
(e)
Exemptions.
-- The following transactions are exempt
from the fee imposed by this section:
(1) Disposal of solid waste at a solid waste disposal
facility by the person who owns, operates or leases the solid
waste disposal facility if the facility is used exclusively to
dispose of waste originally produced by such person in such
person's regular business or personal activities or by persons
utilizing the facility on a cost-sharing or nonprofit basis;
(2) Reuse or recycling of any solid waste;
(3) Disposal of residential solid waste by an individual notin the business of hauling or disposing of solid waste on such
days and times as designated by the director as exempt from the
solid waste assessment fee; and
(4) Disposal of solid waste at a solid waste disposal
facility by a commercial recycler which disposes of thirty
percent or less of the total waste it processes for recycling.
In order to qualify for this exemption each commercial recycler
must keep accurate records of incoming and outgoing waste by
weight. Such records must be made available to the appropriate
inspectors from the division of environmental protection, upon
request.
(f)
Procedure and administration.
-- Notwithstanding section
three, article ten, chapter eleven of this code, each and every
provision of the "West Virginia Tax Procedure and Administration
Act" set forth in article ten, chapter eleven of this code
applies to the fee imposed by this section with like effect as if
said act were applicable only to the fee imposed by this section
and were set forth in extenso herein.
(g)
Criminal penalties.
-- Notwithstanding section two,
article nine, chapter eleven of this code, sections three through
seventeen, article nine, chapter eleven of this code apply to the
fee imposed by this section with like effect as if said sections
were applicable only to the fee imposed by this section and were
set forth in extenso herein.
(h)
Dedication of proceeds.
-- Fifty percent of the proceeds
of the fee collected pursuant to this article in excess of thirty
thousand tons per month from any landfill which is permitted to
accept in excess of thirty thousand tons per month pursuant tosection nine, article fifteen of this chapter shall be remitted,
at least monthly, to the county commission in the county in which
the landfill is located. The remainder of the proceeds of the
fee collected pursuant to this section shall be deposited in the
closure cost assistance fund established pursuant to section
twelve of this article.