Senate Bill No. 601
(By Senators Wooton, Ball, Bowman, Dittmar, Hunter, Kessler,
Oliverio, Ross, Schoonover, Snyder, White, Deem and Kimble)
[Originating in the Committee on the Judiciary;
reported February 18, 1998.]
A BILL to amend and reenact section five-a, article eleven, chapter
twenty of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, relating generally to the collection
and disbursement of recycling and solid waste assessment fees;
establishing recycling assessment fee; providing for
collection of the fee, providing recordkeeping; providing for
recycling fee in rate approved by the public service
commission for regulated motor carriers; defining terms;
providing for exemptions; establishing procedures and
administration of the funds; providing for criminal penalties;
providing for the dedication of the proceeds; and establishing
eligibility requirements for receipt of grants.
Be it enacted by the Legislature of West Virginia:
That section five-a, article eleven, chapter twenty of the
code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
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
(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
(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:
"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 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
(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
(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
;: Provided, That persons
responsible for collecting, hauling or disposing of solid waste who
do not participate in the collection and payment of the solid waste
assessment fee imposed by this section in addition to all other
fees and taxes levied by law for solid waste generated in this
state which is destined for disposal, shall not be eligible to
receive grants under the provisions of this article.
(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
(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.