ENROLLED
COMMITTEE SUBSTITUTE
FOR
SENATE BILL NO. 130
(Senators Miller and Withers, original sponsors)
__________
[Passed March 12, 1994; in effect from passage.]
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AN ACT to amend and reenact section three, article twenty-six,
chapter sixteen of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; to amend and reenact
sections two, five-a, and eight, article five-f; sections
five and seven, article five-n; sections five and eight,
article eleven, all of chapter twenty of said code; and to
amend and reenact section one-i, article two, chapter
twenty-four of said code, all relating to solid waste;
adding definitions; authorizing a special extension of the
landfill closure deadline up to the thirty-first day of
December, one thousand nine hundred ninety-four; allowing
certain permittees who satisfy certain requirements to
satisfy repayment obligation of the solid waste assessment
fee; authorizing the director of the division of
environmental protection to assist certain solid waste
facilities by allowing the pledge of certain funds to
satisfy loan requirements; authorizing an implementation
date for certain recyclable materials of the first day of
July, one thousand nine hundred ninety-five; extending the
yard waste prohibition until the first day of June, one
thousand nine hundred ninety-six; exempting certain
recycling facilities from the necessity of obtaining
certificates of need and public service commission
jurisdiction; and exempting the public service commission
from being required to make certain determinations regarding
existing commercial solid waste disposal facilities.
Be it enacted by the Legislature of West Virginia:
That section three, article twenty-six, chapter sixteen of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted; that sections two, five-a
and eight, article five-f, chapter twenty be amended and
reenacted; that section seven, article five-n of said chapter be
amended and reenacted; that sections five and eight, article
eleven of said chapter be amended and reenacted; and that section
one-i, article two, chapter twenty-four of said code be amended
and reenacted, all to read as follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 26. WEST VIRGINIA SOLID WASTE MANAGEMENT BOARD.
§16-26-3. Definitions.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Board" means the solid waste management board created
in section four of this article, heretofore known as the West
Virginia state solid waste authority, the duties, powers,
responsibilities and functions of which are specified in this
article. All references in this code to the West Virginiaresource recovery -- solid waste disposal authority shall be
construed as references to the solid waste management board.
(2) "Bond" or "solid waste disposal revenue bond" means a
revenue bond or note issued by the solid waste management board,
heretofore known as the West Virginia resource recovery -- solid
waste disposal authority, to effect the intents and purposes of
this article.
(3) "Construction" includes reconstruction, enlargement,
improvement and providing furnishings or equipment for a solid
waste disposal project.
(4) "Cost" means, as applied to solid waste disposal
projects, the cost of their acquisition and construction; the
cost of acquisition of all land, rights-of-way, property, rights,
easements, franchise rights and interests required by the board
for such acquisition and construction; the cost of demolishing or
removing any buildings or structures on land so acquired,
including the cost of acquiring any land to which such buildings
or structures may be moved; the cost of diverting highways,
interchange of highways and access roads to private property,
including the cost of land or easements therefor; the cost of all
machinery, furnishings and equipment; all financing charges and
interest prior to and during construction and for no more than
eighteen months after completion of construction; the cost of all
engineering services and all expenses of research and development
with respect to solid waste facilities; the cost of all legal
services and expenses; the cost of all plans, specifications,
surveys and estimates of cost and revenues; all working capital
and other expenses necessary or incident to determining thefeasibility or practicability of acquiring or constructing any
such project; all administrative expenses and such other expenses
as may be necessary or incident to the acquisition or
construction of the project; the financing of such acquisition or
construction, including the amount authorized in the resolution
of the board providing for the issuance of solid waste disposal
revenue bonds to be paid into any special funds from the proceeds
of such bonds; and the financing of the placing of any such
project in operation. Any obligation or expenses incurred after
the effective date of this article by any governmental agency,
with the approval of the board, for surveys, borings, preparation
of plans and specifications and other engineering services in
connection with the acquisition or construction of a project
shall be regarded as a part of the cost of such project and shall
be reimbursed out of the proceeds of loans or solid waste
disposal revenue bonds as authorized by the provisions of this
article.
(5) "Governmental agency" means the state government or any
agency, department, division or unit thereof; counties;
municipalities; watershed improvement districts; soil
conservation districts; sanitary districts; public service
districts; drainage districts; regional governmental authorities
and any other governmental agency, entity, political subdivision,
public corporation or agency having the authority to acquire,
construct or operate solid waste facilities; the United States
government or any agency, department, division or unit thereof;
and any agency, commission or authority established pursuant to
an interstate compact or agreement.
(6) "Industrial waste" means any solid waste substance
resulting from or incidental to any process of industry,
manufacturing, trade or business, or from or incidental to the
development, processing or recovery of any natural resource.
(7) "Owner" includes all persons, partnerships or
governmental agencies having any title or interest in any
property rights, easements and interests authorized to be
acquired by this article.
(8) "Person" means any public or private corporation,
institution, association, firm or company organized or existing
under the laws of this or any other state or country; the United
States or the state of West Virginia; governmental agency;
political subdivision; county commission; municipality; industry;
sanitary district; public service district; drainage district;
soil conservation district; solid waste disposal shed district;
partnership; trust; estate; individual; group of individuals
acting individually or as a group; or any other legal entity
whatever.
(9) "Pollution" means the discharge, release, escape or
deposit, directly or indirectly, of solid waste of whatever kind
or character, on lands or in waters in the state in an
uncontrolled, unregulated or unapproved manner.
(10) "Revenue" means any money or thing of value collected
by, or paid to, the solid waste management board as rent, use
fee, service charge or other charge for use of, or in connection
with, any solid waste disposal project, or as principal of or
interest, charges or other fees on loans, or any other
collections on loans made by the solid waste management board togovernmental agencies to finance in whole or in part the
acquisition or construction of any solid waste development
project or projects, or other money or property which is received
and may be expended for or pledged as revenues pursuant to this
article.
(11) "Solid waste" means any garbage, paper, litter, refuse,
cans, bottles, waste processed for the express purpose of
incineration, sludge from a waste treatment plant, water supply
treatment plant or air pollution control facility, other
discarded material, including offensive or unsightly matter,
solid, liquid, semisolid or contained liquid or gaseous material
resulting from industrial, commercial, mining or community
activities but does not include solid or dissolved material in
sewage, or solid or dissolved materials in irrigation return
flows or industrial discharges which are point sources and have
permits under article five-a, chapter twenty of this code, or
source, special nuclear or by-product material as defined by the
Atomic Energy Act of 1954, as amended, including any nuclear or
by-product material considered by federal standards to be below
regulatory concern, or a hazardous waste either identified or
listed under article five-e, chapter twenty of this code, or
refuse, slurry, overburden or other waste or material resulting
from coal-fired electric power or steam generation, the
exploration, development, production, storage and recovery of
coal, oil and gas, and other mineral resources placed or disposed
of at a facility which is regulated under chapter twenty-two,
twenty-two-a or twenty-two-b of this code, so long as such
placement or disposal is in conformance with a permit issuedpursuant to said chapters. "Solid waste" shall also not include
materials which are recycled by being used or reused in an
industrial process to make a product, as effective substitutes
for commercial products, or are returned to the original process
as a substitute for raw material feedstock.
(12) "Solid waste facility" means any system, facility,
land, contiguous land, improvements on land, structures or other
appurtenances or methods used for processing, recycling or
disposing of solid waste, including landfills, transfer stations,
materials recovery facilities and other such facilities not
herein specified. Such facility shall be deemed to be situated,
for purposes of this article, in the county where the majority of
the spatial area of such facility is located.
(13) "Solid waste disposal project" or "project" means any
solid waste facility, wastewater treatment plants, sewer
treatment plants, water and sewer systems and connecting
pipelines the acquisition or construction of which is authorized
by the solid waste management board or any acquisition or
construction which is financed in whole or in part from funds
made available by grant or loan by, or through, the board as
provided in this article, including all buildings and facilities
which the board deems necessary for the operation of the project,
together with all property, rights, easements and interests which
may be required for the operation of the project.
(14) "Solid waste disposal shed" or "shed" means a
geographical area which the solid waste management board
designates as provided in section eight of this article for solid
waste management.
(15) "Solid waste facility operator" means any person or
persons possessing or exercising operational, managerial or
financial control over a commercial solid waste facility, whether
or not such person holds a certificate of convenience and
necessity or a permit for such facility.
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 5F. SOLID WASTE MANAGEMENT ACT.
§20-5F-2. Definitions.
Unless the context clearly requires a different meaning, as
used in this article the terms:
(a) "Approved solid waste facility" means a solid waste
facility or practice which has a valid permit under this article.
(b) "Backhauling" means the practice of using the same
container to transport solid waste and to transport any substance
or material used as food by humans, animals raised for human
consumption or reusable item which may be refilled with any
substance or material used as food by humans.
(c) "Chief" means the chief of the office of waste
management of the division of environmental protection.
(d) "Commercial recycler" means any person, corporation or
business entity whose operation involves the mechanical
separation of materials for the purpose of reselling or recycling
at least seventy percent by weight of the materials coming into
the commercial recycling facility.
(e) "Municipal solid waste incineration" means the burning
of any solid waste collected by any municipal or residential
solid waste disposal company.
(f) "Commercial solid waste facility" means any solid wastefacility which accepts solid waste generated by sources other
than the owner or operator of the facility and shall not include
an approved solid waste facility owned and operated by a person
for the sole purpose of disposing of solid wastes created by that
person or such person and other persons on a cost-sharing or
nonprofit basis and shall not include land upon which reused or
recycled materials are legitimately applied for structural fill,
road base, mine reclamation and similar applications.
(g) "Division" means the division of environmental
protection.
(h) "Director" means the director of the division of
environmental protection.
(i) "Open dump" means any solid waste disposal which does
not have a permit under this article, or is in violation of state
law, or where solid waste is disposed in a manner that does not
protect the environment.
(j) "Person" or "persons" mean any industrial user, public
or private corporation, institution, association, firm or company
organized or existing under the laws of this or any other state
or country; state of West Virginia; governmental agency,
including federal facilities; political subdivision; county
commission; municipal corporation; industry; sanitary district;
public service district; drainage district; soil conservation
district; watershed improvement district; partnership; trust;
estate; person or individual; group of persons or individuals
acting individually or as a group; or any legal entity whatever.
(k) "Sludge" means any solid, semisolid, residue or
precipitate, separated from or created by a municipal, commercialor industrial waste treatment plant, water supply treatment plant
or air pollution control facility or any other such waste having
similar origin.
(l) "Solid waste" means any garbage, paper, litter, refuse,
cans, bottles, waste processed for the express purpose of
incineration; sludge from a waste treatment plant; water supply
treatment plant or air pollution control facility; and other
discarded materials, including offensive or unsightly matter,
solid, liquid, semisolid or contained liquid or gaseous material
resulting from industrial, commercial, mining or community
activities but does not include solid or dissolved material in
sewage or solid or dissolved materials in irrigation return flows
or industrial discharges which are point sources and have permits
under article five-a of this chapter, or source, special nuclear
or by-product material as defined by the Atomic Energy Act of
1954, as amended, including any nuclear or by-product material
considered by federal standards to be below regulatory concern,
or a hazardous waste either identified or listed under article
five-e of this chapter or refuse, slurry, overburden or other
wastes or material resulting from coal-fired electric power or
steam generation, the exploration, development, production,
storage and recovery of coal, oil and gas and other mineral
resources placed or disposed of at a facility which is regulated
under chapter twenty-two, twenty-two-a or twenty-two-b of this
code, so long as such placement or disposal is in conformance
with a permit issued pursuant to such chapters.
(m) "Solid waste disposal" means the practice of disposing
of solid waste including placing, depositing, dumping or throwingor causing to be placed, deposited, dumped or thrown any solid
waste.
(n) "Solid waste disposal shed" means the geographical area
which the solid waste management board designates and files in
the state register pursuant to section eight, article twenty-six,
chapter sixteen of this code.
(o) "Solid waste facility" means any system, facility, land,
contiguous land, improvements on the land, structures or other
appurtenances or methods used for processing, recycling or
disposing of solid waste, including landfills, transfer stations,
materials recovery facilities, mixed waste processing facilities,
sewage sludge processing facilities, composting facilities and
other such facilities not herein specified, but not including
land upon which sewage sludge is applied in accordance with
subsection (b), section two-b of this article. Such facility
shall be deemed to be situated, for purposes of this article, in
the county where the majority of the spatial area of such
facility is located: Provided, That a salvage yard, licensed and
regulated pursuant to the terms of article twenty-three, chapter
seventeen of this code, is not a solid waste facility.
(p) "Solid waste facility operator" means any person or
persons possessing or exercising operational, managerial or
financial control over a commercial solid waste facility, whether
or not such person holds a certificate of convenience and
necessity or a permit for such facility.
(q) "Class A facility" means a commercial solid waste
facility which handles an aggregate of between ten thousand and
thirty thousand tons of solid waste per month. Class A facilityshall include two or more Class B solid waste landfills owned or
operated by the same person in the same county, if the aggregate
tons of solid waste handled per month by such landfills exceeds
nine thousand nine hundred ninety-nine tons of solid waste per
month.
(r) "Applicant" means the person applying for a commercial
solid waste facility permit or similar renewal permit and any
person related to such person by virtue of common ownership,
common management or family relationships as the director of the
division of environmental protection may specify, including the
following: Spouses, parents and children and siblings.
(s) "Energy recovery incinerator" means any solid waste
facility at which solid wastes are incinerated with the intention
of using the resulting energy for the generation of steam,
electricity or any other use not specified herein.
(t) "Incineration technologies" means any technology that
uses controlled flame combustion to thermally break down solid
waste, including refuse-derived fuel, to an ash residue that
contains little or no combustible materials, regardless of
whether the purpose is processing, disposal, electric or steam
generation or any other method by which solid waste is
incinerated.
(u) "Incinerator" means an enclosed device using controlled
flame combustion to thermally break down solid waste, including
refuse-derived fuel, to an ash residue that contains little or no
combustible materials.
(v) "Materials recovery facility" means any solid waste
facility at which source-separated materials or materialsrecovered through a mixed waste processing facility are manually
or mechanically shredded or separated for purposes of reuse and
recycling, but does not include a composting facility.
(w) "Source-separated materials" means materials separated
from general solid waste at the point of origin for the purpose
of reuse and recycling but does not mean sewage sludge.
(x) "Mixed waste processing facility" means any solid waste
facility at which materials are recovered from mixed solid waste
through manual or mechanical means for purposes of reuse,
recycling or composting.
(y) "Mixed solid waste" means solid waste from which
materials sought to be reused or recycled have not been source-
separated from general solid waste.
(z) "Composting facility" means any solid waste facility
processing solid waste by composting, including sludge
composting, organic waste or yard waste composting, but does not
include a facility for composting solid waste that is located at
the site where the waste was generated.
(aa) "Recycling facility" means any solid waste facility for
the purpose of recycling at which neither land disposal nor
biological, chemical or thermal transformation of solid waste
occurs: Provided, That mixed waste recovery facilities, sludge
processing facilities and composting facilities are not
considered recycling facilities nor considered to be reusing or
recycling solid waste within the meaning of this article and
articles nine and eleven of this chapter.
(bb) "Landfill" means any solid waste facility for the
disposal of solid waste on land. Such facility is situated, forpurposes of this article, in the county where the majority of the
spatial area of such facility is located.
(cc) "Sewage sludge processing facility" is a solid waste
facility that processes sewage sludge for land application,
incineration or disposal at an approved landfill. Such processes
include, but are not limited to, composting, lime stabilization,
thermophilic digestion and anaerobic digestion.
(dd) "Bulking agent" means any material mixed and composted
with sewage sludge.
(ee) "Sewage sludge" means solid, semisolid or liquid
residue generated during the treatment of domestic sewage in a
treatment works. Sewage sludge includes, but is not limited to,
domestic septage, scum or solids removed in primary, secondary or
advanced wastewater treatment processes and a material derived
from sewage sludge. "Sewage sludge" does not include ash
generated during the firing of sewage sludge in a sewage sludge
incinerator.
(ff) "Composting" means the aerobic, thermophilic
decomposition of natural constituents of solid waste to produce
a stable, humus-like material.
(gg) "Agronomic rate" means the whole sewage sludge
application rate, by dry weight, designed:
(1) To provide the amount of nitrogen needed by the food
crop, feed crop, fiber crop, cover crop or vegetation on the
land; and
(2) To minimize the amount of nitrogen in the sewage sludge
that passes below the root zone of the crop or vegetation grown
on the land to the ground water.
§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 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 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 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 maybe 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.
-- 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 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 opendump.
(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, 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 said article, 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 extensoherein.
(g)
Criminal penalties.
-- Notwithstanding section two,
article nine, chapter eleven of this code, sections three through
seventeen of said article 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 year
shall 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 fiftythousand 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 are
hereby 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 forthe issuance and security of solid waste disposal revenue bonds
issued by the solid waste management board pursuant to article
twenty-six, chapter sixteen of this code; and
(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 being
prematurely depleted by solid waste originating from other
locations.
§20-5F-8. Limited extension of solid waste facility closure
deadline.
(a) The director may grant an extension of the closure
deadline up to the thirtieth day of September, one thousand nine
hundred ninety-four, to a solid waste facility required under theterms of an extension granted pursuant to this subsection to
close by the thirtieth day of June, one thousand nine hundred
ninety-three, or required by solid waste management rules to
close by the thirtieth day of September, one thousand nine
hundred ninety-three, provided that the solid waste facility:
(1) Has a solid waste facility permit, or by the first day
of March, one thousand nine hundred ninety-three, had an
application to obtain a permit pending before the division for
the construction of a landfill in accordance with title
forty-seven, series thirty-eight, solid waste management rules;
and
(2) Has a certificate of need or had an application pending
therefor, from the public service commission; and
(3) Has been determined by the director to pose no
significant hazard to public health, safety or the environment;
and
(4) Has entered into a compliance schedule with the division
of environmental protection to be in full compliance, no later
than the thirtieth day of September, one thousand nine hundred
ninety-four, with title forty-seven, series thirty-eight, solid
waste management rules or to be in full compliance, no later than
the thirtieth day of September, one thousand nine hundred
ninety-four, with preclosure provisions of title forty-seven,
series thirty-eight, solid waste management rules:
Provided,
That no such extension of closure deadline shall extend beyond
the thirty-first day of March, one thousand nine hundred
ninety-four, or such date as any landfill installs a composite
liner system for any landfill in a county in which there is alsolocated a commercial solid waste landfill which has installed a
composite liner system in accordance with the requirements of the
solid waste management rules.
(b) Any solid waste facility seeking to extend its closure
deadline until the thirtieth day of September, one thousand nine
hundred ninety-four, shall submit to the director, no later than
the thirtieth day of April, one thousand nine hundred
ninety-three, an application sufficient to demonstrate compliance
with the requirements of subsection (a) of this section. The
director shall grant or deny any application within thirty days
of receipt thereof:
Provided,
That as a condition precedent for
granting such closure extension, a solid waste facility must
enter into an agreement with the director that the solid waste
facility shall, no later than the thirtieth day of September, one
thousand nine hundred ninety-three, complete and submit to the
director an analysis of the facility's specific requirements and
cost to comply with the applicable design criteria, groundwater
monitoring provisions of title forty-seven, series thirty-eight,
solid waste management rules and the corrective action, financial
assurance and closure and post-closure care provisions of
Subtitle (d) of the federal Resource Conservation and Recovery
Act, 42 U.S.C. 6941-6949.
(c) Any party who is aggrieved by an order of the director
regarding the grant or denial of an extension of the closure
deadline for a solid waste facility pursuant to this section may
obtain judicial review thereof in the same manner as provided in
section four, article five, chapter twenty-nine-a of this code,
which provisions shall apply to and govern such review with likeeffect as if the provisions of said section were set forth in
extenso in this section, except that the petition shall be filed,
within the time specified in section four, article five, chapter
twenty-nine-a of this code, in the circuit court of the county
where such facility exists:
Provided,
That the court shall not
in any manner permit the continued acceptance of solid waste at
the facility pending review of the decision of the director of
the division.
(d) The judgment of the circuit court shall be final unless
reversed, vacated or modified on appeal to the supreme court of
appeals, in accordance with the provisions of section one,
article six, chapter twenty-nine-a of this code, except that
notwithstanding the provisions of said section, the petition
seeking such review must be filed with said supreme court of
appeals within thirty days from the date of entry of the judgment
of the circuit court.
(e) Notwithstanding any other provision of this article, the
director, upon receipt of a request for an extension, shall grant
an extension of the closure deadline up to the thirtieth day of
September, one thousand nine hundred ninety-four, to any solid
waste facility required to close on the thirty-first day of
March, one thousand nine hundred ninety-three, or the thirtieth
day of September, one thousand nine hundred ninety-three, which
is owned by a solid waste authority or owned by a municipality
and which accepts at least thirty percent of its waste from
within the county in which it is located and which has not been
determined by the director to pose a significant risk to human
health and safety or cause substantial harm to the environmentand which could not be granted an extension up to the thirtieth
day of September, one thousand nine hundred ninety-four, pursuant
to the terms of subsections (a) and (b) of this section if:
(1) The cost of transporting the waste is prohibitive; or
(2) The cost of disposing of waste in other solid waste
facilities within the wasteshed would increase.
(f) Notwithstanding any other provision of this article, the
director shall grant an extension of the closure deadline up to
the thirtieth day of September, one thousand nine hundred ninety-
four, to any solid waste landfill which, on or before the first
day of March, one thousand nine hundred ninety-three, has entered
into a compliance schedule with the director for the construction
of a transfer station or to any solid waste landfill which on the
first day of March, one thousand nine hundred ninety-three, is
already in the process of constructing a solid waste transfer
station and applies by the first day of April, one thousand nine
hundred ninety-three, to enter into with the director, a
compliance schedule for the completion of the transfer station:
Provided,
That upon the completion of the transfer station and
commencement of operations of the transfer station, such landfill
shall cease accepting solid waste for disposal.
(g) Notwithstanding any other provision of this article, any
commercial solid waste facility which has demonstrated and
continues to be in compliance with the requirements of
subsections (a) and (b) of the prior enactment of this section in
chapter one hundred twenty-five, acts of the Legislature, regular
session, one thousand nine hundred ninety-three, may make
application by the first day of August, one thousand nine hundredninety-four, to the director for a special extension of the
closure deadline up to the thirty-first day of December, one
thousand nine hundred and ninety-four. Such application shall
set forth all reasons why the applicant should receive a special
extension. The director shall grant or deny an application
within thirty days of receipt thereof. As a condition for being
granted a special extension, the solid waste facility permittee
must meet one of the following conditions:
(1) Have started construction of an approved composite liner
system; or
(2) Have obtained financing for such construction; or
(3) Have demonstrated good faith efforts to obtain such
financing and the director has made a finding, in writing, that
such financing and construction is likely to occur within the
extension period and that the facility is necessary to the waste
management plan of the wasteshed or the geographic area served.
ARTICLE 5N. SOLID WASTE LANDFILL CLOSURE ASSISTANCE PROGRAM.
§20-5N-5. Limitation on assistance.
The director may provide closure assistance only to
permittees who meet the following requirements:
(1) The permittee of a landfill that does not have a liner
and ceases accepting solid waste on or before the thirtieth day
of November, one thousand nine hundred ninety-one, except for
those landfills allowed to accept solid waste pursuant to the
provisions of section eight, article five-f of this chapter and
ceases accepting solid waste on or before the extension deadline
as determined by the director; or the permittee of a landfill
that has only a single liner and ceases accepting solid waste onor before the thirtieth day of September, one thousand nine
hundred ninety-three;
(2) The permittee of the landfill must demonstrate to the
satisfaction of the director that it does not have the financial
resources on hand or the ability to generate the amounts needed
to comply, in a timely manner, with the closure requirements
provided in article five-f of this chapter and any rules
promulgated pursuant thereto:
Provided,
That any permittee which
is a municipality, county, county solid waste authority or
regional solid waste authority and which has been required to
close a landfill, or any portion thereof, due to the lack of an
approved composite liner system, shall be eligible for closure
assistance for any closure costs related to such closure that
exceed the amount that permittee has set aside for closure
expenses pursuant to section four, subsection (a) of this
article. If any such permittee continues to accept solid waste
after receiving such closure assistance, the payment of the
"solid waste assessment fee" by that permittee as required in
section four of this article shall satisfy both the repayment of
any such closure assistance and the payment of said solid waste
assessment fee; and
(3) The permittee must maintain a permit for the landfill
pursuant to the provisions of section five, article five-f of
this chapter and maintain the full amount of the bond required to
be submitted pursuant to section five-b of said article.
§20-5N-7. Solid waste facility closure cost assistance fund.
(a) The "Closure Cost Assistance Fund" is hereby created as
a special revenue account in the state treasury. The fund shalloperate as a special fund whereby all deposits and payments
thereto shall not expire to the general revenue fund, but shall
remain in such account and be available for expenditure in the
succeeding fiscal year. Separate subaccounts may be established
within the special account for the purpose of identification of
various revenue resources and payment of specific obligations.
(b) Interest earned on any money in the fund shall be
deposited to the credit of the fund.
(c) The fund consists of the following:
(1) Moneys collected and deposited in the state treasury
which are specifically designated by acts of the Legislature for
inclusion in the fund;
(2) Contributions, grants and gifts from any source, both
public and private, which may be used by the director for any
project or projects;
(3) Amounts repaid by permittees pursuant to section nine,
article five-f of this chapter; and
(4) All interest earned on investments made by the state
from moneys deposited in this fund.
(d) The amounts deposited in the fund may be expended only
on the cost of projects as provided for in sections three and ten
of this article and as provided in subsections (e) and (f) of
this section:
Provided,
That no more than one percent of the
annual deposits to such fund may be used for administrative
purposes.
(e) Notwithstanding any provision of this article, upon
request of the solid waste management board, and with the
approval of the projects by the director of the division ofenvironmental protection, the director may pledge and place into
escrows accounts up to an aggregate of two million dollars of the
fund to satisfy two years debt service requirement that
permittees of publicly owned landfills and transfer stations are
required to meet in order to obtain loans. Pledges shall be made
on a project by project basis, may not exceed five hundred
thousand dollars for a project and shall be made available after
loan commitments are received. The director may pledge funds for
a loan only when the following conditions are met:
(1) The proceeds of the loan are used only to perform
construction of a transfer station or a composite liner system
that is required to meet the provisions of title forty-seven,
series thirty-eight, solid waste management rules;
(2) The permittee dedicates all yearly debt service revenue,
as determined by the public service commission, to meet the
repayment schedule of the loan, before it uses available revenue
for any other purpose; and
(3) That any funds pledged may only be paid to the lender if
the permittee is in default on the loan.
ARTICLE 11. WEST VIRGINIA RECYCLING PROGRAM.
§20-11-5. Establishment of county recycling programs for solid
waste; petition for referendum; ballot contents; election
procedure; effect of such election.
(a) Within twelve months following the effective date of
this section, each municipality described in subsection (b) of
this section shall submit a proposal to the solid waste
management board, consistent with the provisions of this section,
describing the establishment and implementation of the mandatoryrecycling program. The solid waste management board shall review
the submitted plans for consistency with the criteria provided in
this section, the county or regional solid waste management plan
and the statewide management plan. The solid waste management
board may make suggested changes to the plan and shall provide
technical assistance to the municipalities in the development of
the plans.
(b) Within twenty-four months following the effective date
of this section, each municipality with a population of ten
thousand or more people, as determined by the most recent
decennial census by the bureau of the census of the United States
department of commerce, shall establish and commence
implementation of a source separation and curbside collection
program for recyclable materials. Implementation shall be phased
in by the first day of July, one thousand nine hundred
ninety-five. Such program shall include, at a minimum, the
following:
(1) An ordinance adopted by the governing body of the
municipality requiring that each person, partnership, corporation
or other entity in the municipality shall separate at least three
recyclable materials, as deemed appropriate by the municipality,
from other solid waste:
Provided,
That the list of recyclables
to be separated may be adjusted according to whether the
generator is residential, commercial or other type of
establishment.
(2) A scheduled day, at least one per month, during which
separated materials are to be placed at the curbside, or similar
location, for collection.
(3) A system that collects recyclable materials from the
curbside, or similar location, at least once per month:
Provided,
That to encourage full participation, the program
shall, to the maximum extent possible, provide for the collection
of recyclables at the same rate of frequency, and simultaneous
with, the regular collection of solid waste.
(4) Provisions to ensure compliance with the ordinance,
including incentives and penalties.
(5) A comprehensive public information and education program
covering the importance and benefits of recycling, as well as the
specific features and requirements of the recycling program. As
part of the education program, each municipality shall, at a
minimum, notify all persons occupying residential, commercial,
institutional or other premises within its boundaries of the
requirements of the program, including how the system will
operate, the dates of collection, the responsibilities of persons
within the municipality, and incentives and penalties.
(6) Consultation with the county or regional solid waste
authority in which the municipality is located to avoid
duplication, ensure coordination of solid waste programs, and
maximize the market for recyclables.
(c) Notwithstanding the provisions of subsection (b) of this
section, a comprehensive recycling program for solid waste may be
established in any county of this state by action of a county
commission in accordance with the provisions of this section.
Such program shall require:
(1) That, prior to collection at its source, all solid waste
shall be segregated into separate identifiable recyclablematerials by each person, partnership, corporation and
governmental agency subscribing to a solid waste collection
service in the county or transporting solid waste to a commercial
solid waste facility in the county;
(2) Each person engaged in the commercial collection,
transportation, processing or disposal of solid waste within the
county shall accept only such solid waste from which recyclable
materials in accordance with said county's comprehensive
recycling program have been segregated; and
(3) That the provisions of the recycling plan prepared
pursuant to section four of this article shall, to the extent
practicable, be incorporated in said county's comprehensive
recycling program.
(d) For the purposes of this article, recyclable materials
shall include, but not be limited to, steel and bi-metallic cans,
aluminum, glass, paper and such other solid waste materials as
may be specified by either the municipality or county commission
with the advice of the county or regional solid waste authority.
(e) A comprehensive recycling program for solid waste may be
established in any county of this state by: (1) A petition filed
with the county commission bearing the signatures of registered
voters of the county equal to not less than five percent of the
number of votes cast within the county for governor at the
preceding gubernatorial election; and (2) approval by a majority
of the voters in a subsequent referendum on the issue. A
referendum to determine whether it is the will of the voters of
a county that a comprehensive recycling program for solid waste
be established in the county may be held at any regular primaryor general election or in conjunction with any other countywide
election. Any election at which the question of establishing a
policy of comprehensive recycling for solid waste is voted upon
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, shall apply to voting and elections hereunder,
insofar as practicable. The secretary of state shall prescribe
the form of the petition which shall include the printed name,
address and date of birth of each person whose signature appears
on the petition. Upon verification of the required number of
signatures on the petition, the county commission shall, not less
than seventy days before the election, order that the issue be
placed on the ballot and referendum held at the next primary,
general or special election to determine whether it is the will
of the voters of said county that a policy of comprehensive
recycling of solid waste be established in the county:
Provided,
That the petition bearing the necessary signatures has
been filed with the county commission at least one hundred days
prior to the election.
The ballot, or the ballot labels where voting machines are
used, shall have printed thereon substantially the following:
"Shall the County Commission be required to establish a
comprehensive recycling program for solid waste in
County, West Virginia?
/ / For Recycling
/ / Against Recycling
(Place a cross mark in the square opposite your choice.)"
If a majority of legal votes cast upon the question be for
the establishment of a policy of comprehensive recycling of solid
waste, the county commission shall, after the certification of
the results of the referendum, thereafter adopt an ordinance,
within one hundred eighty days of said certification,
establishing a comprehensive recycling program for solid waste in
the county:
Provided,
That such program shall be implemented and
operational no later than twelve months following said
certification. If a majority of the legal votes cast upon the
question be against the establishment of a policy of
comprehensive recycling of solid waste, said policy shall not
take effect, but the question may again be submitted to a vote at
any subsequent election in the manner herein provided.
(f) A comprehensive recycling program for solid waste
established by petition and referendum may be rescinded only
pursuant to the procedures set out herein to establish the
program.
To rescind the program, the ballot, or the ballot labels
where voting machines are used, shall have printed thereon
substantially the following:
"Shall the County Commission be required to terminate the
comprehensive recycling program for solid waste in
County, West Virginia?
/ / Continue Recycling
/ / End Recycling
(Place a cross mark in the square opposite your choice.)"
(g) If a majority of legal votes cast upon the question be
for the termination of a policy of comprehensive recycling of
solid waste previously established in the county, the county
commission shall, after the certification of the results of the
referendum, thereafter rescind by ordinance the comprehensive
recycling program for solid waste in the county within ninety
days of said certification. If a majority of the legal votes
cast upon the question be for the continuation of the policy of
comprehensive recycling of solid waste, said ordinance shall not
be rescinded, but the question may again be submitted to a vote
at any subsequent election in the manner herein provided.
(h) In the case of any municipality having a population
greater than thirty thousand persons, as indicated by the most
recent decennial census conducted by the United States, the
governing body of such municipality may by ordinance establish a
materials recovery facility in lieu of or in addition to the
mandatory recycling program required under the provisions of this
section:
Provided,
That such materials recovery facility shall
be subject to approval by both the public service commission and
the solid waste management board upon a finding by both the
public service commission and the solid waste management board
that the establishment of such materials recovery facility will
not hinder, and will be consistent with, the purposes of this
article.
§20-11-8. Prohibition on the disposal of certain items; plans
for the proper handling of said items required.
(a) Effective the first day of June, one thousand nine
hundred ninety-four, it shall be unlawful to deposit yard waste,including grass clippings and leaves, and lead-acid batteries in
a solid waste facility in West Virginia; effective the first day
of June, one thousand nine hundred ninety-five, it shall be
unlawful to deposit tires in a solid waste facility in West
Virginia; and effective the first day of January, one thousand
nine hundred ninety-six, it shall be unlawful to deposit yard
waste, including grass clippings and leaves, in a solid waste
facility in West Virginia: Provided, That such prohibitions do
not apply to a facility designed specifically to compost such
yard waste or otherwise recycle or reuse such items: Provided,
however, That reasonable and necessary exceptions to such
prohibitions may be included as part of the rules promulgated
pursuant to subsection (c) of this section.
(b) No later than the first day of May, one thousand nine
hundred ninety-three, the solid waste management board shall
design a comprehensive program to provide for the proper handling
of yard waste and lead-acid batteries. No later than the first
day of May, one thousand nine hundred ninety-four, a
comprehensive plan shall be designed in the same manner to
provide for the proper handling of tires.
(c) No later than the first day of August, one thousand nine
hundred ninety-three, the division of environmental protection
shall promulgate rules, in accordance with chapter twenty-nine-a
of this code, as amended, to implement and enforce the program
for yard waste and lead-acid batteries designed pursuant to
subsection (b) of this section. No later than the first day of
August, one thousand nine hundred ninety-four, the division of
environmental protection shall promulgate rules, in accordancewith chapter twenty-nine-a of said code, as amended, to implement
and enforce the program for tires designed pursuant to subsection
(b) of this section.
§20-11-12. Recycling facilities exemption.
Recycling facilities, as defined in section two, article
five-f of this chapter, whose only function is to accept without
charge, buy or transfer source-separated material or recycled
material for resale or transfer for further processing shall be
exempt from the provisions of sections one-c and one-f, article
two, chapter twenty-four of this code.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-1i. Commission authorized to issue emergency certificate
of need to certain commercial solid waste facilities;
division of environmental protection to modify facility
permit; criteria for emergency certificates.
(a) Notwithstanding any provision of this article, or any
provision of article five-f or nine, chapter twenty of this code,
or any other provision of this code, upon the application of any
commercial solid waste facility, the commission may grant to a
commercial solid waste facility an emergency certificate of need
to increase the maximum monthly solid waste disposal tonnage for
a period not to exceed one year, to the extent deemed necessary
to prevent any disruption of solid waste disposal services in any
county or wasteshed of the state resulting from the closure of an
existing landfill in said county or wasteshed: Provided, That
the commission is not required to make any determination of need,
necessity or reasonableness when acting on any application filedpursuant to this article regarding an existing commercial solid
waste disposal facility, which is owned or operated by a county
government or by an agency, board or entity thereof, and which
has previously been denied a certificate of need prior to the
effective date of this section. The authority granted to the
commission under this section shall expire after the thirtieth
day of September, one thousand nine hundred ninety-three. No
temporary certificate issued pursuant to this section shall
extend beyond the thirtieth day of September, one thousand nine
hundred ninety-four. The director of the division of
environmental protection shall modify any commercial solid waste
facility permit, issued under article five-f, chapter twenty of
this code, to conform with the maximum monthly solid waste
disposal tonnage and any other terms and conditions set forth in
a temporary certificate issued under this section.
(b) If the net tonnage increase under a temporary
certificate application made pursuant to subsection (a) of this
section would cause the gross monthly solid waste disposal
tonnage of such facility to exceed ten thousand tons, a temporary
certificate shall be issued only if the solid waste facility has:
(1) Obtained from the county or regional solid waste authority
for the county or counties in which the facility is located a
certificate of site approval or approval for conversion from a
Class B facility to a Class A facility; and (2) obtained from the
county or regional solid waste authority for the county or
counties in which the facility is located approval to increase
the maximum monthly tonnage disposed at the facility; and (3)
obtained from the county commission for the county or counties inwhich the landfill is located approval to operate as a Class A
facility; and (4) has a certificate of need application pending
before the public service commission; and (5) has installed a
composite liner system in compliance with the requirements set
forth in the solid waste management rules promulgated by the
division of environmental protection or its predecessor. Such
emergency certificate shall not authorize an increase in the
maximum monthly solid waste disposal tonnage in an amount greater
than that approved by the county or regional solid waste
authority for the county or counties in which the landfill is
located.