COMMITTEE SUBSTITUTE
FOR
SENATE BILL NO. 130
(By Senators Miller and Withers)
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[Originating in the Committee on Finance;
reported March 2, 1994.]
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A BILL to amend and reenact sections five-a and eight, article
five-f, chapter twenty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to amend and
reenact section seven, article five-n of said chapter; and
to amend and reenact section one-i, article two, chapter
twenty-four of said code, all relating to solid waste;
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; and authorizing a special extension of the
landfill closure deadline up to the thirty-first day of
March, one thousand nine hundred ninety-five.
Be it enacted by the Legislature of West Virginia:
That sections five-a and eight, article five-f, chapter
twenty of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; that section
seven, article five-n of said chapter be amended and reenacted;
and that section one-i, article two, chapter twenty-four of saidcode be amended and reenacted, all to read as follows:
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 5F. SOLID WASTE MANAGEMENT ACT.
§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 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 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 ata 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, 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 AdministrationAct" 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 extenso
herein.
(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 sections three through seventeen,
article nine, chapter eleven of this code 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
director shall allocate the remainder, if any, of said net
proceeds among the following 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; and
(2) 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.
§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 the
terms 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 pendingtherefor, 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, for any landfill in a county in which there is also
located 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 wastefacility 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 like
effect 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 petitionseeking 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 environment
and 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 thefirst 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 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 hundred ninety-four, to the director
for a special extension of the closure deadline up to the thirty-
first day of March, one thousand nine hundred and ninety-five.
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 granting a special extension, the solid waste
facility must meet one of the following conditions:
(1) Have started construction of an approved composite liner
system;
(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 theextension 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-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 shall
operate 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) ofthis 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 of
environmental 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 a 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.
(f) There is hereby continued in the state treasury the
"solid waste management board reserve fund" which shall be
exclusively dedicated to providing a reserve fund for thesecurity of solid waste revenue bonds issued by the solid waste
management board prior to the effective date of this subsection.
To effectuate this purpose, prior to the thirtieth day of June,
one thousand nine hundred ninety-four, there shall be transferred
from the "closure cost assistance fund" to the "solid waste
management board reserve fund" the sum of three hundred twenty
thousand dollars.
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 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. The authority granted to the commission under this
section shall expire after the thirtieth day of September, one
thousand nine hundred ninety-four. No temporary certificate
issued pursuant to this section shall extend beyond the thirtieth
day of September, one thousand nine hundred ninety-five. The
director of the division of environmental protection shall modifyany 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 in
which 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 islocated.