Senate Bill No. 564
(By Senators Helmick and Ross)
____________
[Introduced February 19, 1996; referred to the Committee
on Natural Resources; and then to the Committee on Finance
.]
____________
A BILL to amend and reenact sections five-a and section five-b,
article eleven, chapter twenty of the code of West Virginia,
one thousand nine hundred thirty-one, as amended; and to
amend and reenact section eleven, article fifteen, chapter
twenty-two of said code; to amend and reenact section four,
article sixteen of said chapter; and to amend and reenact
section thirty, article four, chapter twenty-two-c of said
code, all relating to natural resources; environmental
resources; West Virginia recycling plan; recycling
assessment fees; solid and hazardous waste supplemental
assessment fees; solid waste management act; solid waste
assessment fee; solid waste landfill closure assistance program; county and regional solid waste authorities; solid
waste assessment interim fee; definitions; and fifty percent
reduction of assessment fees with respect to industrial
solid waste and construction and demolition waste.
Be it enacted by the Legislature of West Virginia:
That sections five-a and five-b, article eleven, chapter
twenty of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; that section
eleven, article fifteen, chapter twenty-two of said code be
amended and reenacted; that section four, article sixteen of said
chapter be amended and reenacted; and that section thirty,
article four, chapter twenty-two-c be amended and reenacted, all
to read as follows:
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 11. WEST VIRGINIA RECYCLING PROGRAM.
§20-11-5a. Recycling assessment fee; regulated motor carriers;
dedication of proceeds; criminal penalties.
(a) Imposition. -- Effective the first day of January, one
thousand nine hundred ninety-two, a recycling assessment fee is
hereby levied and imposed upon the disposal of solid waste at all
solid waste disposal facilities in this state, to be collected at
the rate of two dollars per ton or part thereof of solid waste. The fee imposed by this section is in addition to all other fees
levied by law.
(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 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 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 may
be enforced against them and 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 is 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) Definitions. -- For purposes of this section:
(1) "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 and also
means any transporter of solid waste transporting solid waste to
a disposal facility that does not collect solid waste assessment
fees.
(2) "Industrial solid waste" means any solid waste that is
not a hazardous waste regulated under Subtitle C of the Resources
Conservation and Recovery Act and that is generated as a result
of manufacturing or industrial processes and includes industrial
sludge. Manufacturing and industrial processes include, but are
not limited to, those processes and activities carried on in factories, processing plants, mining activities or mineral
processing operations.
(3) "Construction and demolition waste" means waste building
materials, grubbing waste and rubble resulting from construction,
remodeling, repair and demolition operations on houses,
commercial buildings and other structures and pavement.
Construction and demolition waste includes, but is not limited
to, wood, plaster, metals, asphaltic substances, bricks, blocks
and concrete, other masonry materials, trees, brush, stumps and
other vegetative materials, but does not include asbestos waste.
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 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; and
(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
environmental protection by rule as exempt from the fee imposed
pursuant to section eleven, article fifteen, chapter twenty-two
of this code.
(4) With respect to industrial solid waste and construction
and demolition waste, the assessment fee imposed hereby shall be
reduced by fifty percent.
(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
applies 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 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 proceeds of the fee
collected pursuant to this section shall be deposited by the tax
commissioner, at least monthly, in a special revenue account
designated as the "Recycling Assistance Fund" which is hereby
created. The director of the division of natural resources shall
allocate the proceeds of the said fund as follows:
(1) Fifty percent of the total proceeds shall be provided in
grants to assist municipalities, counties and other interested
parties in the planning and implementation of recycling programs,
public education programs, and recycling market procurement
efforts, established pursuant to this article. The director of
the division of natural resources shall promulgate rules, in
accordance with chapter twenty-nine-a of this code, containing
application procedures, guidelines for eligibility, reporting
requirements and other matters deemed appropriate;
(2) Twelve and one-half percent of the total proceeds shall
be expended for personal services and benefit expenses of full-
time salaried conservation officers;
(3) Twelve and one-half percent of the total proceeds shall
be transferred to the West Virginia development office, to be used in assisting counties and municipalities in the design and
construction of wastewater treatment facilities;
(4) Twelve and one-half percent of the total proceeds shall
be transferred to the solid waste reclamation and environmental
response fund, established pursuant to section eleven, article
fifteen, chapter twenty-two of this code, to be expended by the
division of environmental protection to assist in the funding of
the pollution prevention and open dumps program (PPOD) which
encourages recycling, reuse, waste reduction and clean-up
activities; and
(5) Twelve and one-half percent of the total proceeds shall
be deposited in the hazardous waste emergency response fund
established in article nineteen, chapter twenty-two of this code.
(i) Severability. -- If any provision of this section or the
application thereof is for any reason adjudged by any court of
competent jurisdiction to be invalid, such judgment does not
affect, impair or invalidate the remainder of this section, but
is confined in its operation to the provision thereof directly
involved in the controversy in which such judgment is rendered,
and the applicability of such provision to other persons or
circumstances is not affected thereby.
(j) Effective date. -- This section is effective on the
first day of January, one thousand nine hundred ninety-two.
§20-11-5b. Solid and hazardous waste supplemental assessment
fee.
(a) Imposition. -- Effective the first day of January, one
thousand nine hundred ninety-two, a solid and hazardous waste
supplemental assessment fee is hereby imposed upon the disposal
of solid or hazardous waste at all solid waste or hazardous waste
disposal facilities in this state, to be collected at the rate of
twenty-five cents per ton or part thereof of solid or hazardous
waste. The fee imposed by this section is in addition to all
other fees levied by law.
(b) Collection, return, payment and records. -- The person
disposing of solid or hazardous waste at the solid or hazardous
waste disposal facility shall pay the fee imposed by this
section, whether or not such person owns the solid or hazardous
waste, and the fee shall be collected by the operator of the
solid or hazardous waste facility who shall remit it to the tax
commissioner.
(1) The fee imposed by this section accrues at the time the
solid or hazardous waste is delivered to the solid or hazardous waste disposal facility.
(2) The operator shall remit the fee imposed by this section
to the tax commissioner on or before the fifteenth day of the
month next succeeding the month in which the fee accrued. Upon
remittance of the fee, the operator shall be required to file
returns on forms and in the manner as prescribed by the tax
commissioner.
(3) The operator shall account to the state for all fees
collected under this section and shall hold them in trust for the
state until they are remitted to the tax commissioner.
(4) If any operator fails to collect the fee imposed by this
section, he or she shall be personally liable for such amount as
he or she failed to collect, plus applicable additions to tax,
penalties and interest imposed by article ten, chapter eleven of
this code.
(5) Whenever any operator fails to collect, truthfully
account for, remit the fee, or file returns with the fee as
required in this section, the tax commissioner may serve written
notice requiring such operator to collect the fees which become
collectible after service of such notice, to deposit such fees in
a bank approved by the tax commissioner, in a separate account, in trust for and payable to the tax commissioner, and to keep the
amount of such fees in such account until remitted to the tax
commissioner. Such notice 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 or hazardous waste
disposal facility leases the solid or hazardous 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 or hazardous waste disposal
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 may be enforced against them and against the association or
corporation which they represent.
(8) Each person disposing of solid or hazardous waste at a
solid or hazardous 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 is a necessary and reasonable cost for motor carriers of
solid or hazardous 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 or hazardous
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) Definitions. -- For purposes of this section:
(1) "Solid or hazardous waste disposal facility" means any
approved solid or hazardous waste facility or open dump in this
state and includes a transfer station when the solid or hazardous
waste collected at the transfer station is not finally disposed
of at a solid or hazardous waste facility within this state that
collects the fee imposed by this section and also means any
transporter of solid waste transporting solid waste to a disposal
facility that does not collect solid waste assessment fees;
(2) "Coal combustion byproduct" means the residuals,
including fly ash, bottom ash, bed ash, and boiler slag produced
by coal-fired or coal/gas-fired electrical or steam generating
units. For nonelectrical steam generating units burning a
combination of solid waste and coal, a carbon monoxide level of
less than or equal to one hundred parts per million on a twenty-
four hour average basis is required for the byproducts to meet
this definition. The carbon monoxide level shall be calculated
on a dry gas basis corrected to seven percent oxygen; and
(3) "Sludge" means any solid, semisolid, residue or
precipitate, separated from or created by a municipal, commercial
or industrial waste treatment plant, water supply treatment plant
or air pollution control facility or any other such waste having similar origin.
(4) "Industrial solid waste" means any solid waste that is
not a hazardous waste regulated under Subtitle C of the Resources
Conservation and Recovery Act and that is generated as a result
of manufacturing or industrial processes and includes industrial
sludge. Manufacturing and industrial processes include, but are
not limited to, those processes and activities carried on in
factories, processing plants, refineries, slaughter houses,
mills, tanneries, power generating plants, mining activities or
mineral processing operations.
(5) "Construction and demolition waste" means waste building
materials, grubbing waste and rubble resulting from construction,
remodeling, repair and demolition operations on houses,
commercial buildings, and other structures and pavement.
Construction and demolition waste includes, but is not limited
to, wood, plaster, metals, asphaltic substances, bricks, blocks
and concrete, other masonry materials, trees, brush, stumps and
other vegetative materials, but does not include asbestos waste.
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 in which the recycling
assessment fee levied and imposed by section five-a of this
article has been paid;
(2) Disposal of sludge or coal combustion byproducts;
(3) Reuse or recycling of any solid or hazardous waste; or
(4) 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
environmental protection by rule as exempt from the fee imposed
pursuant to section eleven, article fifteen, chapter twenty-two
of this code.
(5) With respect to solid waste and construction and
demolition waste, the assessment fee imposed hereby shall be
reduced by fifty percent.
(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
applies 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 proceeds of the fee
collected pursuant to this section shall be deposited by the tax
commissioner, at least monthly, to the hazardous waste emergency
response fund established in article nineteen, chapter twenty-two
of this code.
(i) Severability. -- If any provision of this section or the
application thereof is for any reason adjudged by any court of
competent jurisdiction to be invalid, such judgment does not
affect, impair or invalidate the remainder of this section, but
is confined in its operation to the provision thereof directly
involved in the controversy in which such judgment is rendered,
and the applicability of such provision to other persons or
circumstances is not affected thereby.
(j) Effective date. -- This section is effective on the first day of January, one thousand nine hundred ninety-two.
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 15. SOLID WASTE MANAGEMENT ACT.
§22-15-11. 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 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 Definitions. -- For purposes
of this section:
(1) "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 and also means any transporter of solid waste
transporting solid waste to a disposal facility that does not
collect solid waste assessment fees. Nothing herein authorizes
in any way the creation or operation of or contribution to an
open dump.
(2) "Industrial solid waste" means any solid waste that is
not a hazardous waste regulated under Subtitle C of the Resources
Conservation and Recovery Act and that is generated as a result
of manufacturing or industrial processes and includes industrial
sludge. Manufacturing and industrial processes include, but are
not limited to, those processes and activities carried on in
factories, processing plants, refineries, slaughter houses,
mills, tanneries, power generating plants, mining activities or
mineral processing operations.
(3) "Construction and demolition waste" means waste building
materials, grubbing waste and rubble resulting from construction,
remodeling, repair and demolition operations on houses,
commercial buildings, and other structures and pavement. Construction and demolition waste includes, but is not limited
to, wood, plaster, metals, asphaltic substances, bricks, blocks
and concrete, other masonry materials, trees, brush, stumps and
other vegetative materials, but does not include asbestos waste.
(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, upon request.
(5) With respect to industrial solid waste and construction
and demolition waste, the assessment fee imposed hereby shall be
reduced by fifty percent.
(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 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 fifty
thousand 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 for
the issuance and security of solid waste disposal revenue bonds
issued by the solid waste management board pursuant to article
three, chapter twenty-two-c of this code;
(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.
ARTICLE 16. SOLID WASTE LANDFILL CLOSURE ASSISTANCE PROGRAM.
§22-16-4. Solid waste assessment fee; penalties.
(a) Imposition. -- 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 in the amount of three
dollars and fifty cents per ton or like ratio on any part thereof
of solid waste, except as provided in subsection (e) of this
section: Provided, That any solid waste disposal facility may
deduct from this assessment fee an amount, not to exceed the fee,
equal to the amount that such facility is required by the public
service commission to set aside for the purpose of closure of
that portion of the facility required to close by article fifteen
of this chapter. 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 shall file returns on forms
and in the manner 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 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 shall remain in effect until a notice
of cancellation is served on the operator or owner by the tax
commissioner.
(6) Whenever the owner of a solid waste disposal facility
leases the solid waste facility to an operator, the operator 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
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 is 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) Definitions. -- For purposes of this section: the term
(1) "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
and also means any transporter of solid waste transporting solid
waste to a disposal facility that does not collect solid waste
assessment fees. Nothing in this section authorizes in any way
the creation or operation of or contribution to an open dump.
(2) "Industrial solid waste" means any solid waste that is
not a hazardous waste regulated under Subtitle C of the Resources
Conservation and Recovery Act and that is generated as a result
of manufacturing or industrial processes and includes industrial
sludge. Manufacturing and industrial processes include, but are
not limited to, those processes and activities carried on in factories, processing plants, refineries, slaughter houses,
mills, tanneries, power generating plants, mining activities or
mineral processing operations.
(3) "Construction and demolition waste" means waste building
materials, grubbing waste and rubble resulting from construction,
remodeling, repair and demolition operations on houses,
commercial buildings, and other structures and pavement.
Construction and demolition waste includes, but is not limited
to, wood, plaster, metals, asphaltic substances, bricks, blocks
and concrete, other masonry materials, trees, brush, stumps and
other vegetative materials, but does not include asbestos waste.
(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 as 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, upon request.
(5) With respect to industrial solid waste and construction
and demolition waste, the assessment fee imposed hereby shall be
reduced by fifty percent.
(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
applies 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 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. -- Fifty percent of the proceeds
of the fee collected pursuant to this article in excess of thirty
thousand tons per month from any landfill which is permitted to
accept in excess of thirty thousand tons per month pursuant to
section nine, article fifteen of this chapter shall be remitted,
at least monthly, to the county commission in the county in which
the landfill is located. The remainder of the proceeds of the
fee collected pursuant to this section shall be deposited in the
closure cost assistance fund established pursuant to section
twelve of this article.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS, AUTHORITIES,
COMMISSIONS AND COMPACTS.
ARTICLE 4. COUNTY AND REGIONAL SOLID WASTE AUTHORITIES.
§22C-4-30. 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 is 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 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 they are 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 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 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.
Definitions. -- For purposes of this section: the term
(1) "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 and also
means any transporter of solid waste transporting solid waste to
a disposal facility that does not collect solid waste assessment
fees. Nothing herein authorizes in any way the creation or
operation of or contribution to an open dump.
(2) "Industrial solid waste" means any solid waste that is
not a hazardous waste regulated under Subtitle C of the Resources
Conservation and Recovery Act and that is generated as a result
of manufacturing or industrial processes and includes industrial
sludge. Manufacturing and industrial processes include, but are
not limited to, those processes and activities carried on in
factories, processing plants, refineries, slaughter houses,
mills, tanneries, power generating plants, mining activities or
mineral processing operations.
(3) "Construction and demolition waste" means waste building
materials, grubbing waste and rubble resulting from construction,
remodeling, repair and demolition operations on houses,
commercial buildings, and other structures and pavement.
Construction and demolition waste includes, but is not limited
to, wood, plaster, metals, asphaltic substances, bricks, blocks
and concrete, other masonry materials, trees, brush, stumps and
other vegetative materials, but does not include asbestos waste.
(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 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
environmental protection as exempt from the fee imposed pursuant
to section eleven, article fifteen, chapter twenty-two of this
code; 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 of solid
waste authority, upon request.
(5) With respect to industrial solid waste and construction
and demolition waste, the assessment fee imposed hereby shall be reduced by fifty percent.
(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
applies 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 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
continued. 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 three of this chapter.
(i) 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: (1) Reduce the solid
waste assessment fees on industrial solid waste and construction
and demolition waste by fifty percent; and (2) to impose the
solid waste assessment fees on all solid waste generated in West
Virginia, regardless of whether it is disposed of outside of West Virginia.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.