ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 602
(Senators Wooton, Ball, Dittmar, Kessler,
Oliverio, Schoonover and Snyder, original sponsors)
____________
[Passed March 14, 1998; in effect ninety days from passage.]
_____________
AN ACT 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; and to amend and reenact section four,
article sixteen, chapter twenty-two of said code, all relating
generally to the collection and disbursement of recycling and
solid waste assessment fees; ineligibility of certain persons
to receive assistance from recycling assistance fund;
authorizing the use of a portion of recycling assessment fee
for certain purposes; reallocating a portion of recycling
assessment fee; and authorizing transfer of a portion of solid
waste assessment fee deposited into closure cost assistance
fund.
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; and that section four, article
sixteen, chapter twenty-two of said code 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. -- 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 of a ton 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 that 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 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 the amount that 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
the operator to collect the fees which become collectible after
service of the notice, to deposit the 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 the fees
in the account until remitted to the tax commissioner. The 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 of the association or corporation 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; and
(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
the form required by the tax commissioner 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
the fee in the motor carrier's rates for solid waste removal
service. In calculating the amount of the fee to the 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 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 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 that person in his or her 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 the days
and times 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.
(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 the act
were applicable only to the fee imposed by this section and were
set forth in extenso in this section.
(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 the sections
were the only fee imposed by this section and were set forth in
extenso in this section.
(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
continued. The director of the division of natural resources shall allocate the proceeds of the 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 considered 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, through the
thirtieth day of June, one thousand nine hundred ninety-eight, to
be used in assisting counties and municipalities in the design and
construction of wastewater treatment facilities and other solid waste management projects designed to protect the waters of the
state. Beginning the first day of July, one thousand nine hundred
ninety-eight, these total proceeds shall be directly allocated to
the solid waste planning fund;
(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.
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 16. SOLID WASTE LANDFILL CLOSURE ASSISTANCE PROGRAM.
§22-16-4. Solid waste assessment fee; penalties.
(a) Imposition. -- A solid waste assessment fee is 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 of a ton 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 the 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 that 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 the amount 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
the operator to collect the fees which become collectible after
service of the notice, to deposit the 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 the fees
in the account until remitted to the tax commissioner. The 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 of the association or corporation 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; and
(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
the form required by the tax commissioner 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
the fee in the motor carrier's rates for solid waste removal
service. In calculating the amount of the fee to the 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 that person in the 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 the days
and times 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 shall keep accurate
records of incoming and outgoing waste by weight. The records
shall 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 the act
were applicable only to the fee imposed by this section and were
set forth in extenso in this section.
(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 the sections
were applicable only to the fee imposed by this section and were
set forth in extenso in this section.
(h) Dedication of proceeds. -- (1) 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: Provided, That the director may transfer up to
fifty cents for each ton of solid waste disposed of in this state
upon which the fee imposed by this section is collected on or after
the first day of July, one thousand nine hundred ninety-eight, to the solid waste enforcement fund established pursuant to section
eleven, article fifteen of this chapter.
(2) 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.