H. B. 2699
(By Delegate Johnson, By Request)
[Introduced March 24, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section thirteen, article nine,
chapter twenty of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to fees
charged by solid waste authorities.
Be it enacted by the Legislature of West Virginia:
That section thirteen, article nine, chapter twenty of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 9. COUNTY AND REGIONAL SOLID WASTE AUTHORITIES.
§20-9-13. Solid waste assessment interim fee; regulated motor
carriers; dedication of proceeds; criminal penalties.
(a) Imposition. -- Effective the first day of July, one
thousand nine hundred eighty-nine, 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 to be collected
at the rate of one dollar per ton or part thereof of solid waste.
The fee imposed by this section shall be in addition to all otherfees levied by law: Provided, That each solid waste disposal
facility shall designate two days per calendar year in which no
fees will be collected. Any solid waste disposal facility which
allows more than two days per calendar year in which no fees are
collected shall be subject to such disciplinary action the
authority deems appropriate.
(b) Collection, return, payment and record. -- 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 be required to file
returns on 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 they are remitted to the tax commissioner.
(4) If any operator fails to collect the fee imposed by this
section, he or she shall be 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 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
shall be primarily liable for collection and remittance of the
fee imposed by this section and the owner shall be secondarily
liable for remittance of the fee imposed by this section.
However, if the operator fails, in whole or in part, to discharge
his obligations under this section, the owner and the operator of
the solid waste facility shall be 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 shall be liable, jointly and severally, for anydefault 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 and regulations 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 shall be 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. -- For
purposes of this section, the term "solid waste disposal
facility" means any approved solid waste facility or open dump inthis 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 herein shall be construed to
authorize in any way the creation or operation of or contribution
to an open dump.
(e) Exemptions. -- The following transactions shall be
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 it 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 of the division of
natural resources as exempt from the fee imposed pursuant to
section five-a, article five-f of this chapter; 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 appropriateinspectors from the division of natural resources of solid waste
authority, 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 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 the only 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 a special revenue account
known as the "Solid Waste Planning Fund" which is hereby created.
The solid waste management board shall allocate the proceeds of
the said fund as follows:
(1) Fifty percent of the total proceeds shall be divided
equally among, and paid over to, each county solid waste
authority to be expended for the purposes of this article:
Provided, That where a regional solid waste authority exists,
such funds shall be paid over to the regional solid wasteauthority to be expended for the purposes of this article in an
amount equal to the total share of all counties within the
jurisdiction of said regional solid waste authority; and
(2) Fifty percent of the total proceeds shall be expended by
the solid waste management board for:
(A) Grants to the county or regional solid waste authorities
for the purposes of this article; and
(B) Administration, technical assistance or other costs of
the solid waste management board necessary to implement the
purposes of this article and article twenty-six, chapter sixteen
of this code.
(i) Severability. -- If any provision of this section or the
application thereof shall for any reason be adjudged by any court
of competent jurisdiction to be invalid, such judgment shall not
affect, impair or invalidate the remainder of this section, but
shall be confined in its operation to the provision thereof
directly involved in the controversy in which such judgment shall
have been rendered, and the applicability of such provision to
other persons or circumstances shall not be affected thereby.
(j) Effective date. -- This section is effective on the
first day of July, one thousand nine hundred ninety.
NOTE: The purpose of this bill is to permit each solid
waste disposal facility to designate two days each year in which
no fees are to be collected.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new languagethat would be added.