Senate Bill No. 519
(By Senators Oliverio, Manchin, Sharpe, Ross and Anderson)
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[Introduced February 19, 1996; 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 twelve, article fifteen,
chapter twenty-two of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to amend
and reenact section twelve, article sixteen of said chapter,
all relating to allowing certain landfills to install for
temporary use a lateral expansion of an existing landfill
unit during the construction of a permanent composite liner;
and requiring a five hundred thousand dollar bond subject to
forfeiture for failing to construct the permanent composite
liner.
Be it enacted by the Legislature of West Virginia:
That section twelve, article fifteen, chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted; and that section twelve,
article sixteen of said chapter be amended and reenacted, all to
read as follows:
ARTICLE 15. SOLID WASTE MANAGEMENT ACT.
§22-15-12. Performance bonds; amount and method of bonding;
bonding requirements; period of bond liability.
(a) After a solid waste permit application has been approved
pursuant to this article, or once operations have commenced
pursuant to a compliance order, but before a permit has been
issued, each operator of a commercial solid waste facility shall
furnish bond, on a form to be prescribed and furnished by the
director, payable to the state of West Virginia and conditioned
upon the operator faithfully performing all of the requirements
of this article, rules promulgated hereunder and the permit:
Provided, That the director has the discretion to waive the
requirement of a bond from the operator of a commercial solid
waste facility, other than a Class A facility, which is operating
under a compliance order. The amount of the bond required is one
thousand dollars per acre and may include an additional amount
determined by the director based upon the total estimated cost to the state of completing final closure according to the permit
granted to such facility and such measures as are necessary to
prevent adverse effects upon the environment; such measures
include, but are not limited to, satisfactory monitoring, post-
closure care and remedial measures: Provided, however, That the
amount of the bond shall not exceed eight thousand dollars per
acre a temporary lateral expansion of a landfill in accordance
with subsection (g), section twelve, article sixteen, chapter
twenty-two shall be bonded for five hundred thousand dollars and
is subject to forfeiture if the construction of a permanent
composite liner which complies with section (4.5.4) of 47 CSR 38
is not completed by the fifteenth day of August, one thousand
nine hundred ninety-six: Provided further, That all other
permits shall be bonded for at least ten thousand dollars. The
bond shall cover either (1) the entire area to be used for the
disposal of solid waste, or (2) that increment of land within the
permit area upon which the operator will initiate and conduct
commercial solid waste facility operations within the initial
term of the permit pursuant to legislative rules promulgated by
the director pursuant to chapter twenty-nine-a of this code. If
the operator chooses to use incremental bonding, as succeeding increments of commercial solid waste facility operations are to
be initiated and conducted within the permit area, the operator
shall file with the director an additional bond or bonds to cover
such increments in accordance with this section: Provided
further, That once the operator has chosen to proceed with
bonding either the entire area to be used for the disposal of
solid waste or with incremental bonding, the operator shall
continue bonding in that manner for the term of the permit.
(b) The period of liability for performance bond coverage
shall commence with issuance of a permit and continue for the
full term of the permit and for a period of up to thirty full
years after final closure of the permit site: Provided, That any
further time period necessary to achieve compliance with the
requirements in the closure plan of the permit is considered an
additional liability period.
(c) The form of the performance bond shall be approved by
the director and may include, at the option of the director,
surety bonding, collateral bonding (including cash and
securities), establishment of an escrow account, letters of
credit, performance bonding fund participation (as established by
the director), self-bonding or a combination of these methods.
If collateral bonding is used, the operator may elect to
deposit cash, or collateral securities or certificates as
follows: Bonds of the United States or its possessions, of the
federal land bank, or of the homeowners' loan corporation; full
faith and credit general obligation bonds of the state of West
Virginia, or other states, and of any county, district or
municipality of the state of West Virginia or other states; or
certificates of deposit in a bank in this state, which
certificates shall be in favor of the division. The cash deposit
or market value of such securities or certificates shall be equal
to or greater than the sum of the bond. The director shall, upon
receipt of any such deposit of cash, securities or certificates,
promptly place the same with the treasurer of the state of West
Virginia whose duty it is to receive and hold the same in the
name of the state in trust for the purpose for which the deposit
is made when the permit is issued. The operator making the
deposit is entitled from time to time to receive from the state
treasurer, upon the written approval of the director, the whole
or any portion of any cash, securities or certificates so
deposited, upon depositing with the treasurer in lieu thereof,
cash or other securities or certificates of the classes herein specified having value equal to or greater than the sum of the
bond.
(d) Within twelve months prior to the expiration of the
thirty-year period following final closure, the division will
conduct a final inspection of the facility. The purpose of the
inspection is to determine compliance with this article, the
division's rules, the terms and conditions of the permit, orders
of the division and the terms and conditions of the bond. Based
upon this determination, the division will either forfeit the
bond prior to the expiration of the thirty-year period following
final closure, or release the bond at the expiration of the
thirty-year period following final closure. Bond release
requirements shall be provided in rules promulgated by the
director.
(e) If the operator of a commercial solid waste facility
abandons the operation of a solid waste disposal facility for
which a permit is required by this article or if the permittee
fails or refuses to comply with the requirements of this article
in any respect for which liability has been charged on the bond,
the director shall declare the bond forfeited and shall certify
the same to the attorney general who shall proceed to enforce and collect the amount of liability forfeited thereon, and where the
operation has deposited cash or securities as collateral in lieu
of corporate surety, the director shall declare said collateral
forfeited and shall direct the state treasurer to pay said funds
into a waste management fund to be used by the director to effect
proper closure and to defray the cost of administering this
article. Should any corporate surety fail to promptly pay, in
full, forfeited bond, it is disqualified from writing any further
surety bonds under this article.
ARTICLE 16. SOLID WASTE LANDFILL CLOSURE ASSISTANCE PROGRAM.
§22-16-12. Solid waste facility closure cost assistance fund;
closure extension; reporting requirements.
(a) The "closure cost assistance fund" is continued as a
special revenue account in the state treasury. The fund shall
operate as a special fund whereby all deposits and payments
thereto do 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, including moneys collected and deposited
into the fund pursuant to section four of this article;
(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
eighteen, article fifteen of this chapter; and
(4) All interest earned on investments made by the state
from moneys deposited in this fund.
(d) The solid waste management board, upon written approval
of the director, has the authority to pledge all or such part of
the revenues paid into the closure cost assistance fund as may be
needed to meet the requirements of any revenue bond issue or
issues of the solid waste management board authorized by this
article, including the payment of principal of, interest and
redemption premium, if any, on such revenue bonds and the
establishing and maintaining of a reserve fund or funds for the payment of the principal of, interest and redemption premium, if
any, on such revenue bond issue or issues when other moneys
pledged may be insufficient therefor. Any pledge of moneys in
the closure cost assistance fund for revenue bonds shall be a
prior and superior charge on such fund over the use of any of the
moneys in such fund to pay for the cost of any project on a cash
basis. Expenditures from the fund, other than for the retirement
of revenue bonds, may only be made in accordance with the
provisions of this article.
(e) The amounts deposited in the fund may be expended only
on the cost of projects as provided for in sections three and
fifteen of this article, as provided in subsection (f) of this
section and for payment of bonds and notes issued pursuant to
section five of this article: Provided, That no more than two
percent of the annual deposits to such fund may be used for
administrative purposes.
(f) 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
escrow 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.
(g) Any landfills which were ordered to close by the
thirty-first day of December, one thousand nine hundred
ninety-four, and which have been granted a certificate of need
pursuant to the provisions of subsection (b), section one-c, article two, chapter twenty-four of this code or section one-i of
said article are hereby granted a closure extension until the
first day of January, one thousand nine hundred ninety-six:
Provided, That no landfill which closed on or before the
thirtieth day of September, one thousand nine hundred ninety-
four, shall be eligible for such an extension: Provided,
however, That any landfills granted a closure extension until the
first day of January, one thousand nine hundred ninety-six, who
have been granted a permit to construct a permanent composite
liner which complies with section (4.5.4) of 47 CSR 38 may
install for temporary use a lateral expansion of an existing
landfill unit until the fifteenth day of August, one thousand
nine hundred ninety-six, during the construction of the permanent
composite liner. The design criteria for the temporary lateral
expansion must at a minimum comply with RCRA 40 CFR Part 258.40.
(h) The department of environmental protection is required
to file, by the first day of January of each ensuing year, an
annual report with the joint committee on government and finance
providing details on the manner in which the landfill closure
assistance funds were expended for the prior fiscal year.
NOTE: The purpose of this bill is to allow certain
landfills to install for temporary use a lateral expansion of an
existing landfill unit during the construction of a permanent
composite liner; and to require a five hundred thousand dollar
bond subject to forfeiture for failing to construct the permanent
composite liner.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.