H. B. 4280
(By Delegates Michael, Miller,
Compton and Doyle)
[Introduced February 5, 1998; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact section four, article sixteen,
chapter twenty-two of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
the allocation of proceeds collected from solid waste
Be it enacted by the Legislature of West Virginia:
That section four, article sixteen, chapter twenty-two of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
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
(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
(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
"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 in
this section 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 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.
(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. -- The proceeds collected shall
be deposited in the closure cost assistance fund established
pursuant to section twelve of this article: Provided, That the director may allocate up to one dollar for each ton of solid
waste disposed in this state upon which the fee imposed by this
section is collected to be deposited in the solid waste
enforcement fund established pursuant to section eleven, article
fifteen of this chapter. 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.
NOTE: The purpose of this bill is to provide that the
allocation of part of the solid waste assessment fee shall be
deposited in the closure cost assistance fund, and to give the
director discretion to deposit some of the fee in the solid waste
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.