Senate Bill No. 385
(By Senators Bailey, Whitlow and Schoonover)
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[Introduced February 18, 1994; referred to the Committee
on Natural Resources; and then to the Committee on Finance.]
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A BILL to amend and reenact section thirteen, article one,
chapter twenty of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; and to amend and
reenact section thirteen, article nine of said chapter, all
relating to requiring division of natural resources to hire
no less than six litter control officers; and providing that
such officers are paid from funds received from tipping fees
for solid waste disposal.
Be it enacted by the Legislature of West Virginia:
That section thirteen, article one, chapter twenty of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that section thirteen,
article nine of said chapter be amended and reenacted, all to
read as follows:
ARTICLE 1. ORGANIZATION AND ADMINISTRATION.
§20-1-13. Law enforcement, litter control and legal services.
The director shall select and designate a competent andqualified person to be department division law-enforcement
officer, who shall have the title of chief conservation officer
and who shall be responsible for the prompt, orderly and
effective enforcement of all of the provisions of this chapter.
Under the supervision of the director and subject to personnel
qualifications and requirements otherwise prescribed in this
chapter, the chief conservation officer shall be responsible for
the selection, training, assignment, distribution and discipline
of conservation officers and the effective discharge of their
duties in carrying out the law-enforcement policies, practices
and programs of the department division in compliance with the
provisions of article seven of this chapter and other controlling
laws and regulations. Except as otherwise provided in this
chapter, he or she and his or her conservation officers are
hereby authorized to enter into and upon private lands and waters
to investigate complaints and reports of conditions, conduct,
practices and activities considered to be adverse to and
violative of the provisions of this chapter and to execute writs
and warrants and make arrests thereupon.
The chief conservation officer shall also be responsible for
the selection, training, assignment, distribution and discipline
of litter control officers and the effective discharge of their
duties in carrying out the law-enforcement policies, practices
and programs of the division in relation to litter control and in
compliance with the provisions of article seven of this chapter
and other controlling laws and rules. There shall be at least sixlitter control officers employed by the division: Provided, That
there shall be at least one litter control officer in each
district for which the division has responsibilities under the
provisions of this chapter: Provided, however, That the creation
and existence of litter control officers does not effect any
duties heretofore established for and prescribed to conservation
officers. The director shall make and establish rules regarding
the specific duties of litter control officers and their
salaries: Provided further, That the director's setting of
salaries shall be subject to the approval of the Legislature and
the existence of sufficient funds as provided for under section
thirteen, article nine of this chapter.
The attorney general and his assistants and the prosecuting
attorneys of the several counties shall render to the director,
without additional compensation, such legal services as the
director may require of them in the discharge of his or her
duties and the execution of his or her powers under and his or
her enforcement of the provisions of this chapter. The director,
in an emergency and with prior approval of the attorney general,
may employ an attorney to act in proceedings wherein criminal
charges are brought against personnel of the department division
because of action in line of duty. For such attorney services,
a reasonable sum, not exceeding five hundred dollars, may be
expended by the director in any one case.
The director, if he deems such action necessary, may request
the attorney general to appoint an assistant attorney general,who shall perform, under the supervision and direction of the
attorney general, such duties as may be required of him by the
director. The attorney general, in pursuance of such request,
may select and appoint an assistant attorney general to serve
during the will and pleasure of the attorney general, and such
assistant shall receive a salary to be paid out of any funds made
available for that purpose by the Legislature to the department.
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 other
fees levied by law.
(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 sectionto 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 operatorshall 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 any
default on the part of the association or corporation, and
payment of the fee and any additions to tax, penalties and
interest imposed by article ten, chapter eleven of this code may
be enforced against them as against the association or
corporation which they represent.
(8) Each person disposing of solid waste at a solid waste
disposal facility and each person required to collect the fee
imposed by this section shall keep complete and accurate records
in such form as the tax commissioner may require in accordance
with the rules 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 thiscode. 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 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 appropriate
inspectors 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 waste
authority 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; and
(C) Funding of salaries of at least six full-time employees
under the authority of the division of natural resources as
litter control officers as prescribed in section thirteen,
article one of this chapter.
(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 require DNR to hire at
least six litter control officers to enforce the litter control
laws in West Virginia. The bill provides that at least one
officer must serve in each district for which DNR has
responsibility and that the salaries of such officers will be set
by rule subject to the approval of the Legislature. The bill
further provides that funding of the salaries shall be made from
solid waste assessment interim fees collected.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.