Senate Bill No. 775
(By Senators Wooton, Ball, Bowman, Dittmar, Kessler,

Oliverio,
Schoonover, Snyder, White, Buckalew and Kimble)
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[Originating in the Committee on the Judiciary;

reported March 5, 1998.]
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A BILL to amend article four, chapter twenty-two-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section thirty-one; and to amend article two, chapter twenty-four of said code by adding thereto a new section, designated section one-j, all relating generally to solid waste management; defining terms; establishing mandatory collection; providing for green boxes and convenience centers; requiring development of system for collection; establishing criteria for consideration; providing that the public service commission, division of environmental protection, division of natural resources, solid waste authorities, solid waste board and certificated motor carriers shall develop collection system; providing for public hearings; retaining existing services; establishing penalties; and providing that public service commission shall enforce mandatory collection.

Be it enacted by the Legislature of West Virginia:
That article four, chapter twenty-two-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section thirty- one; and that article two, chapter twenty-four of said code be amended by adding thereto a new section, designated section one-j all to read as follows:
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS, AUTHORITIES,

COMMISSIONS AND COMPACTS.

§22C-4-31. Mandatory collection

(a) For purposes of this section and section 1-j, article 2, chapter twenty-four of this code the following terms shall have the following meanings:
(1) "Green box facility" means a solid waste facility authorized to operate without a solid waste permit to provide for the placement of a green box, bin, roll-off or dumpster at a location where solid waste is deposited in such containers which are temporarily positioned for not more than five days, for subsequent transport to a permitted solid waste facility. Provided, That the green box facility must be operated and maintained in a manner which protects the environment, human health and safety. If the director, upon inspection or investigation by duly authorized representatives or through other means, observes, discovers or learns that a green box facility is not being operated or maintained in a manner which protects the environment, human health and safety, the director is empowered and may implement appropriate orders, enforcement and penalties available to the director in accordance with section fifteen, article fifteen, chapter twenty-two.
(2) "Convenience center" means a solid waste facility owned or operated by a commercial hauler, county commission, municipality or county or regional solid waste authority, providing for a convenient location where residents can place solid waste temporarily for subsequent transport to an approved solid waste disposal facility or to other solid waste facilities for further processing. Provided, That a convenience center is authorized to operate without a solid waste permit and must be operated and maintained in a manner which protects the environment, human health and safety. A convenience center is not a transfer station and may not accept waste generated by businesses, offices, institutions, and other nonresidential sources. If the director, upon inspection or investigation by duly authorized representatives or through other means, observes, discovers or learns that a convenience center is not being operated or maintained in a manner which protects the environment, human health and safety, the director is empowered and shall implement appropriate orders, enforcement and penalties available to the director in accordance with section fifteen, article fifteen, chapter twenty-two.
(3) "Service providers" means any certificated motor carrier, county commission, municipality or solid waste authority authorized to collect, haul, receive or process solid waste including recyclables.
(b) Each person occupying a residence or operating a business establishment in this state shall either:
(1) Subscribe to and use a solid waste collection service and pay the fees established therefor; or
(2) Properly disposes of solid waste at approved solid waste facilities or in any other lawful manner. The public service commission shall promulgate rules pursuant to section three, article one, chapter twenty-nine-a of this code regarding an approved method or methods of supplying proper proof of participation in a solid waste collection system or other lawful method of disposal and shall enforce the mandatory collection requirements set forth in this section.
(c) The division of environmental protection, public service commission and division of natural resources, shall assist each county and regional solid waste authority, the solid waste management board and the certificated motor carriers serving each county, territory or region to develop and implement mandatory collection systems throughout the state. The county or regional solid waste authority is responsible for developing the system and conducting a public hearing. Prior to the public hearing the certificated motor carrier shall designate what if any portions of the additional service the carrier will provide. Each system shall provide for but not be limited to the following:
(1) Currently established waste collection services, commercial and non-commercial recycling services shall be maintained.
(2) Curbside service shall be offered to persons living on established solid waste collection routes.
(3) While curbside service is the preferred level of service, where curbside service is not practicable, economically feasible or desirable to area residents and/or the certificated motor carrier green box service or convenience center service shall be provided. Currently available collection, disposal and recycling services, currently unmet needs, population density, geography and available financial resources shall be considered when determining the level or levels of service to be provided in an area.
(4) All solid waste collection systems shall provide for removal of white goods and other bulky items. In addition to any existing requirements for recycling, the persons responsible for developing the system shall determine whether there will be an optional or a mandatory recycling component to the system. Where recycling is part of the system, the certificated motor carrier or other recycling service provider shall provide suitable containers for recycling regardless of the level of service provided.
(5) Provision must be made for prompt removal of all solid waste collected at green boxes and convenience centers to prevent these areas from becoming health or safety hazards or nuisances. All containers used for these services shall be of a type and design which will at a minimum prevent leaking, discharge, leachate or runoff. Adequate precautions must be taken to prevent these areas from becoming breeding grounds and nesting areas for insects, animals and vermin.
(6) Provision must be made for consumer education on the proper disposal of solid waste, recycling and consumer rights and responsibilities.
(7) Certificated motor carriers and other service providers must be encouraged to locate and or develop markets for recyclables.
(8) Fees for services shall be flat rate, use-sensitive or a combination of both which shall allow for a range of rates based upon the level of service provided.
(9) In any area where the parties can not, by the first day of July, two thousand, reach agreement on the provision of services as required by this section, the solid waste management board, with any necessary assistance from the division of environment protection, the division of natural resources and/or the public service commission, shall establish the system to be implemented. The solid waste management board shall select through competitive bid, pursuant to the requirements of section ten, article three, chapter five-a of this code, a qualified certificated motor carrier or other service provider.
(10) The board shall establish a schedule for the development of each solid waste collection system required by this section. The schedule shall be upon a priority basis. Those areas perceived by the board to have the greatest need for the system shall be the highest priority.
(11) As soon as practical after the components of a system have been determined the solid waste authority shall conduct a public hearing to obtain the opinions and suggestions of the persons who will be affected by the proposed changes in solid waste collection services. The public opinion elicited at the hearing and any written comments submitted to the authority shall be afforded great weight in making the final determination of the components of the solid waste management system. The authority shall follow the provisions of the advisory rules developed by the solid waste management board for conducting a public hearing.
(c) No more than thirty days after the conclusion of the public comment period, the county or regional solid waste authority shall submit the proposed system to the solid waste management board for review and determination of the system's acceptability pursuant to the requirements of this section. If the board does not accept the system it must provide the authority with a written explanation of the system's deficiencies. The authority shall have thirty days from the receipt of the board's written explanation to correct the deficiencies. If the authority fails to correct the deficiencies, the board, with any necessary assistance from the division of natural resources, division of environmental protection and the public service commission, shall prepare an acceptable solid waste collection system pursuant to the requirements of this section. Notwithstanding any provisions of the code to the contrary, the board shall file all accepted plans for mandatory solid waste collection systems as an amendment to the state solid waste plan; the individual system plans shall be filed as amendments to the appropriate local solid waste authority's solid waste plan.
(d) The public service commission in consultation and collaboration with the division of human services shall prepare and submit, no later than the first day of October, one thousand nine hundred ninety-nine, a method or methods for reducing solid waste collection fees to individuals who directly pay such fees and who receive public assistance from state or federal government agencies and are therefore limited in their ability to afford to pay for solid waste disposal. The method or methods shall consider the individual's health and income maintenance and other relevant matters. The method or methods shall also include procedures for individuals or households to qualify for and avail themselves of a reduction in fees.
(e) Notwithstanding any provision of this code to the contrary, any county commission, municipality or solid waste authority that is currently authorized to provide or, pursuant to a permit issued by the director of the division of environmental protection, is providing solid waste management services including but not limited to collection of solid waste through curbside service, green boxes or convenience centers; collection of recyclable materials by any method or a combination of solid waste and recyclable collection shall continue to operate: Provided, That any such county commission or solid waste authority may choose to modify the solid waste management service they provide in accordance with the provisions of this section.
CHAPTER 34. PUBLIC SERVICE COMMISSION.

ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.

§24-2-1j. Additional powers and duties of commission.

(a) The public service commission shall designate staff who shall offer assistance to solid waste authorities in the development of mandatory collection systems pursuant section thirty-one, article four, chapter twenty-two-c of this code.
(b) Upon receipt of an application from a certificated motor carrier to increase its level or type of service pursuant to section thirty-one, article four, chapter twenty-two-c of this code the commission shall conduct a hearing to determine the economic feasibility and the proper rate or rates to be charged for the additional solid waste services.
(c) The commission shall require each certificated motor carrier providing solid waste services to provide records to the commission of persons on established collection routes who subscribe and, to the extent possible, those persons who do not subscribe to collection services. The commission shall determine whether or not persons not subscribing to collection services are disposing of solid waste generated by him or her in a lawful manner.
(d) The public service commission shall promulgate rules pursuant to chapter twenty-nine-a of this code regarding an approved method or methods of supplying proper proof of participation in a solid waste collection system or other lawful method of disposal. A graduated system of civil penalties shall be imposed. For the first offense the person not participating in solid waste collection services or other lawful method of disposal shall be warned and required to participate in collection service or other lawful method of disposal. For the second offense the person not participating in solid waste collection services or other lawful method of disposal shall be fined fifty dollars, assessed the unpaid fees for the period of time between the first and second offense and required to participate in collection services or other lawful method of disposal. For the third and subsequent offenses a civil penalty of one hundred fifty dollars shall be assessed to the person not participating in solid waste collection services or other lawful method of disposal, in addition to the unpaid fees for every year that a fee was not paid and required to participate in collection services or other lawful method of disposal.
(e) The public service commission shall enforce the mandatory collection system throughout the state. The persons authorized to facilitate enforcement of the regulation of solid waste in section one-h, article two, chapter twenty-four of this code are authorized to enforce the provisions of this section and section thirty-one, article, four, chapter twenty-two-c of this code.
(f)Every person who pleads guilty or is found guilty of violating the mandatory collection law as set forth in this section and in section thirty-one, article four, chapter twenty-two of this code shall, in addition to the fines and penalties provided for in subsection (e) of this section, pay not less than fifty dollars nor more than five hundred dollars as costs for clean-up, investigation and prosecution of the case, as well as any other court costs that the court may impose.
(g) The clerk of the circuit court, magistrate court or municipal court wherein the additional costs provided for in subsection (f) of this section are imposed shall, on or before the last day of each month, transmit all such costs received to the sate treasurer for deposit in the state treasury. The funds remitted to the treasurer pursuant to subsection (f) of this section shall be disbursed as follows:
(1) Fifty percent of the funds shall be deposited, at least monthly to the solid waste planning fund established pursuant to section thirty, article four, section twenty-two-c of this code. Fifty percent of the proceeds so deposited shall be paid equally to each county and regional solid waste authority to be expended for purpose of educating the public about mandatory collection, recycling and proper waste disposal. Fifty percent of the proceeds so deposited shall be paid to the solid waste management board to implement the purposes of article three, chapter twenty-two-c of this code.
(2) The remaining fifty percent of the funds shall be deposited, at least monthly to the recycling assistance fund established pursuant to section five-a, article eleven, chapter twenty of this code to be used to provide 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.
(h) At the request of the defendant or in the discretion of the court, the court may sentence the defendant to pickup and remove from any public highway, road, street, alley or any other public park or pubic property as designed by the court, any and all litter, garbage, refuse, trash, cans, bottles, papers, ashes, carcass of any dead animal or any part thereof, offal or any other offensive or unsightly matter placed, deposited, dumped or thrown contrary to the provision of section twenty-six, article seven, chapter twenty of this code. For the first offense, the alternative sentence of litter pickup shall be not less than eight hours nor more than sixteen hours in lieu of the additional costs provided for in subsection (f) of this section. For the second offense, the alternative sentence of litter pickup shall be not less than sixteen hours nor more than thirty-two hours in lieu of the additional costs provided for in subsection (f) of this section. For third and subsequent offenses, the alternative sentence of litter pickup shall be not less than thirty-two hours nor more than sixth-four hours in lieu of the additional costs provided for in subsection (f) of this section.
(i) The alternative sentence of litter pickup set forth in subsection (h) of this section shall be verified by the conservation officers from the division of natural resources or environmental inspectors from the division of environmental protection or a regional engineering technician from the division of environmental protection pollution prevention ad open dumps program (PPOD) of the county in which the offense occurred. Any defendant receiving an alternative sentence pursuant to this section shall provide within a time frame to be set by the court, written acknowledgment from an above listed officer that the sentence has been completed.