Senate Bill No. 175
(By Senators Wooton, Snyder, Dittmar and Bowman)

[Introduced January 21, 1999; referred
to the Committee on the Judiciary; and then to the Committee on Finance.]

A BILL to amend and reenact chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article fifteen-a, relating to establishing a program to manage waste tires in this state; establishing legislative findings; defining terms; providing that waste tires are special solid wastes exempted from certain fees; prohibiting disposal of waste tires in solid waste facilities and providing exceptions thereto; creating a temporary tire disposal tax to fund cleanup of waste tires and waste tire piles; providing for expiration of tax; providing for collection of tax; providing for administrative procedures; establishing a waste tire cleanup fund; allowing payment of administrative expenses; creating criminal and civil penalties for failure to collect and remit tax; requiring the state division of environmental protection to establish a program to promote proper cleanup of all waste tires in the state; requiring a performance review by the committee on government operations and providing criteria of the review; establishing liens for remediation costs, ansd requiring notice; providing for civil action and foreclosure to recoup costs; establishing the waste tire management fund to be administered by the solid waste management board; requiring that all tire haulers be registered and pay fee; requiring that all tire retailers, tire recappers and remanufacturers, waste tire processors and monofill operators be licensed by the board and pay fee; requiring every tire retailer to collect a fee to assure remediation of tire piles; requiring purchasers to provide waste tires for new tires purchased or sign an acknowledgment regarding proper disposal; providing certain exceptions thereto; creating a waste tire tracking system; requiring that tire retailers post signs provided by the board; establishing certain prohibitions on waste tire disposal; prohibiting persons from providing tires to non-licensed or permitted persons or facilities; creating a business investment tax credit for waste tire processing equipment; authorizing the tax commissioner to promulgate legislative rules relating to the tax credit; establishing criminal offenses for improper disposal of waste tires and for failure to have a required license, permit or registration; granting civil administrative penalty authority to the board for license, registration and permit violations; directing the division of environmental protection to promulgate rules and providing guidelines for those rules; establishing a waste tire advisory committee; and authorizing the board and the public service commission to promulgate rules necessary to fulfill duties and responsibilities given under this article.

Be it enacted by the Legislature of West Virginia:
That chapter twenty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article fifteen-a, to read as follows:
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 15A. WASTE TIRE MANAGEMENT ACT.
§22-15A-1. Legislative findings.
The purpose of this act is to assure the proper disposal, recycling or reuse of waste tires in West Virginia, by establishing a comprehensive program designed to require proper management of all waste tires and reclamation of existing waste tire piles. The accumulation of used and waste tires constitutes a fire hazard posing a threat to both air and water quality, and further creates a health hazard by providing a habitat for disease spreading mosquitoes. The high costs associated with remediating existing waste tire piles have prevented the state from being able to expediently undertake effective tire pile reclamation measures. Further, mechanisms must be in place to assure the citizens of this state that in the future their waste tires and waste tires imported from outside the state are properly disposed of, recycled or reused in this state. Therefore, it is the intent of the Legislature to promote and facilitate the recycling, reuse and proper disposal of waste tires in this state by establishing mechanisms to ensure that waste tires are properly collected and disposed of, recycled or reused; facilitate the abatement of waste tire dumps and their associated threats to public health; and to encourage investment in tire recycling equipment and facilities.
§22-15A-2. Definitions.
The following words and phrases when used in this article shall have the meanings given to them in this section unless the context clearly indicates otherwise:
(1) "Agricultural use" means the use of waste tires for agricultural purposes as recognized by the division.
(2) "Board" means the solid waste management board. (3) "Division" means the division of environmental protection.
(4) "Monofill" means an approved solid waste facility where waste tires are placed for the purpose of long term storage for eventual retrieval for marketing purposes.
(5) "Motor vehicle" means an automobile, truck, trailer, motorcycle, agricultural equipment, motorized recreational vehicle and industrial equipment with tires.
(6) "New tire" means a tire which is not used or retreaded, and is being sold on the market for the first time.
(7) "Remanufacture" means to make a usable product of value to an end user, other than tires, from waste tires.
(8) "Retailer of new tires" means a person who engages in the retail sale of a new tire in any quantity for any use or purpose by the purchaser other than for resale.
(9) "Tire" means a continuous solid or pneumatic rubber wheel covering, which has a rim size of twelve inches or more in diameter. Bicycle tires and other tires for vehicles propelled by human power are not subject to the provisions of this article.
(10) "Tire collector" means a person who owns or operates a site used for the storage, collection, or deposit of more than fifty waste tires.
(11) "Tire derived fuel" means whole or processed waste tires used as a fuel or supplemental fuel.
(12) "Tire hauler" means a person engaged in the picking up or transporting of waste tires for the purpose of storage, processing or disposal. Tire hauler does not include an entity hauling waste tires incidental to hauling solid waste.
(13) "Tire processor" means a person who engages in the processing of waste tires or one who owns or operates a tire processing site.
(14) "Tire processing site" means a site or any portion of a site actively used to produce or manufacture usable materials, including fuel, from waste tires. Waste tire processing facilities are not solid waste facilities.
(15) "Used tires" means a tire that has been removed from a wheel following a period of use and has been determined by its owner to have reuse potential as a tire.
(16) "Waste tire" means a tire that is no longer suitable for its original, intended purpose nor suitable for recapping, because of wear, damage or defect.
(17) "Waste tire collection center" means a site where waste tires are collected before being offered for recycling, disposal or reuse.
(18) "Waste tire processor" means any business that reduces, utilizes cryogenic or pyrolysis processes, or otherwise alters whole waste tires for tire derived fuel, reuse or disposal.
§22-15A-3. Waste tires not subject to solid waste tipping fees; disposal in solid waste facility prohibited; exceptions; permit and certificate of need not required; exceptions.
(a) Persons hauling, collecting, disposing of or processing waste tires are not responsible for any solid waste tipping fees for waste tires except when waste tires are permanently disposed of at a solid waste facility. The disposal of whole tires in solid waste facilities is prohibited except as authorized by section eight, article eleven, chapter twenty and article two, chapter twenty-four of this code and legislative rules promulgated thereunder.
(b) Persons required to be licensed pursuant to subsection five-c of this article are not required to obtain a permit or certificate of need pursuant to the requirements of article fifteen, chapter twenty-two and article one, chapter twenty-four of this code unless they also engage in activities otherwise regulated by article fifteen, chapter twenty-two and article one, chapter twenty-four of this code.
§22-15A-4. Temporary tire disposal tax.
(a) There is hereby levied and imposed upon every sale of a new tire by retailers of new tires, in addition to all other taxes and fees now imposed by law, a temporary tax of two dollars on each new tire, thirty inches or less in diameter, and a temporary tax of three dollars on each new tire, greater than thirty inches in diameter. The amount of the tax shall be added to the sales price paid by the ultimate consumer, and shall constitute a part of that price and be collectable as such. This temporary tax shall expire and no longer be collected after the thirtieth day of June, two thousand four.
(b) The temporary tire tax levied under this section shall be collected by the tax commissioner in the same manner that the consumers sales and service tax is collected under chapter eleven of this code: Provided, That the exemptions contained in chapter eleven do not apply to the temporary tire tax. The provisions of sections four, five, six, seven, eight, nine and ten, article nine, chapter eleven of this code shall apply to the temporary tire tax.
(c) Each and every provision of the "West Virginia Tax Procedure and Administration Act" set forth in article ten, chapter eleven applies to the tax imposed by this section, except as may otherwise be expressly provided in this section, with like effect as if that act were applicable only to the taxes imposed by this section.
(d) There is hereby created a special revenue account known as the "Waste Tire Cleanup Fund". Except as herein provided, the taxes collected pursuant to subsection (a) of this section shall be deposited into the "Waste Tire Cleanup Fund." Three percent of the taxes collected pursuant to subsection (a) of this section shall be deposited in the waste tire management fund as established in section five of this article. One half of one percent of the taxes collected pursuant to subsection (a) of this section shall be retained and used by the tax commissioner to carry out the administrative responsibilities for collection and disbursement of the tax as set forth in this act. Five percent of the taxes collected pursuant to subsection (a) of this section may be utilized by the division of environmental protection for the administrative costs associated with the duties and responsibilities required of the division by this Act. The remaining taxes collected shall be used by the division to eradicate all illegal waste tire piles in this state and to establish and manage a tire collection program as set forth in subsection (e) of this section: Provided, That the division may expend up to a maximum of five percent of such funds for the establishment and management of the tire collection program. Expenditures are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions of article two, chapter five-a of this code: Provided, That for the fiscal year ending the thirtieth day of June, two thousand, expenditures are authorized from collections rather than pursuant to appropriation by the Legislature. Any monies not utilized by the board, division and the tax commissioner for the purposes set forth herein by the thirtieth day of June two thousand four shall be transferred to the state general revenue fund and the waste tire cleanup fund shall be dissolved.
(e) The joint committee on government operations shall, pursuant to authority granted in article ten of chapter four of this code, conduct a preliminary performance review of the division's compliance with the waste tire collection and cleanup mandated in this section and whether it is appropriate to terminate the temporary tire tax in the year two thousand four. In conducting such preliminary performance review, the committee shall follow the guidelines established in article ten, section ten, chapter four of this code.
(f) The committee may direct that the focus of the preliminary performance review be on a specific area of operation and may direct further inquiry, when necessary and desirable.
§22-15A-5. State waste tire cleanup program.
The division shall develop a method to promote cleanup and proper disposal of waste tires throughout the state which shall include at a minimum, the actual cleanup of waste tires by citizens, agencies and state and local governmental entities throughout the state by establishing collection locations, including but not limited to solid waste landfills and transfer stations, where individuals, volunteer groups, agencies, state and local governmental entities may drop off waste tires without charge. The division shall be responsible for disposal, in a manner consistent with this Act, of all waste tires and parts thereof collected pursuant to this subsection. The division may establish and operate collection centers; enter into agreements or contracts with solid waste authorities; solid waste landfills; transfer stations; and volunteer groups or a combination thereof to establish and operate collection centers. The division may provide grants to solid waste authorities and volunteer groups to defray the costs associated with participating the collection program. The collection program created herein and the funds provided pursuant to section four of this article shall expire the first day of July, two thousand-four. All solid waste landfills and transfer stations shall be collection centers and shall designate an area for the collection and temporary storage of waste tires.
§22-15A-6. Lien for costs of reclamation.
(a) Any person who has prior or subsequent to the effective date of this act accepted waste tires and illegally disposed of them shall be liable for:
(1) all costs of removal or remedial action incurred by the division;
(2) any other necessary costs of remediation including properly disposing of waste tires and damage to adjacent property owners; and
(3) all costs incurred in bring civil actions under this article.
(b) The division shall notify any person who owns real property or rights to property where a waste tire pile is located that remediation of the waste tire pile is necessary. The division shall make and enter an order directing such person or persons to remove and properly dispose of the waste tires. The division shall set a time limit for completion of such action. The order shall be served by registered or certified mail or by a law enforcement officer.
(c) If the remediation is not completed within the time limit, the person can not be located, or the person notifies the division that he or she is unable to comply with the order, the division may expend funds, as provided herein, to make the remediation. Any amounts so expended shall be promptly repaid by the person or persons responsible for the waste tire pile. Any person owing remediation costs and or damages shall be held liable at law until such time as all such costs and or damages are fully paid.
(d) There is hereby created a statutory lien upon all real property and rights to such property from which a waste tire pile was remediated for all reclamation costs and damages incurred by the division. The lien created by this section shall arise at the later of the following:
(1) the time costs are first incurred by the division; or
(2) the time the person is provided, by certified or registered mail, written notice as required by this section.
The lien shall continue until the liability for the costs or a judgement against the person is satisfied.
(e) Liens created by this section shall be duly recorded in the office of the clerk of the county commission in the county where the real property is located, be liens of equal dignity, rank and priority with the lien on such premises of state, county, school and municipal taxes for the amount thereof upon the real property served. The division shall have the power and authority to enforce such liens in a civil action to recover the money due for remediation costs and damages plus court fees and costs and reasonable attorney's fees.
(f) The division may foreclose upon the premises by bring a civil action, in the circuit court of the county where the property is located, for foreclosure and an order to sell the property to satisfy the lien.
(g) Any proceeds from any sale of property obtained as a result execution of a lien or judgment under this section for remediation costs, excluding costs of obtaining judgement and perfecting the lien, shall be deposited into the general revenue fund of the state treasury.
§22-15A-7. Registration and licensing requirements.
(a) There is hereby created a special revenue account known as the "Waste Tire Management Fund." The registration and license fees collected pursuant to this section shall be deposited into the waste tire management fund. Expenditures from the fund shall be used by the board to administer the licensing and registration provisions of this section and the tracking and regulation of waste tires as provided for in this act. Expenditures are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon of the fulfillment of the provisions of article two, chapter five-a of this code: Provided, That for the fiscal year, ending the thirtieth day of June, two thousand, expenditures are authorized from collections rather than pursuant to appropriation by the Legislature.
(b) As a requirement for holding a motor carrier certificate pursuant to section five, article two, chapter twenty-four-a of this code, all waste tire haulers shall register with the solid waste management board and submit an annual twenty-five dollar registration fee which shall be deposited into the waste tire management fund. Upon receipt of the registration fee, the board shall issue to the tire hauler a waste tire hauling identification number. Each tire hauler shall furnish its hauling identification number on all certification forms required by the board.
(c) All retailers of new tires, tire recappers, tire remanufacturers, waste tire processors and monofill operators shall submit an annual twenty-five dollar licensure fee which shall be deposited into the waste tire management fund. No person may operate as a retailer of new tires, tire recapper, tire remanufacturer, waste tire processor or monofill operator in this state without obtaining a license from the board. The purpose of this license is to assure that all businesses participating in the flow of tires from new to waste tires are identified and comply with the provisions of this act.
§22-15A-8. Requirements for retail sale of tires.
(a) Each retailer is required to accept one tire of comparable size for each new tire sold at retail. No retail tire dealer may deliver any waste tire, or part thereof, to a person in this state not authorized by the state of West Virginia to accept waste tires.
(b) Any person purchasing a new tire from a retailer must provide a used or waste tire for each tire purchased or sign a waiver, provided to the tire retailer by the solid waste management board, acknowledging that he or she is retaining the tire and that he or she is legally responsible for proper disposal of each tire retained. These forms are to be kept by the retailer in the same manner as the tire tracking forms provided for in subsection (c) of this section. If the tire purchaser returns to the tire retailer with a signed form given to the purchaser by that retailer, the retailer must accept up to the total number of comparable size tires as previously retained by the purchaser: Provided, that persons having winter tires changed or buying new winter tires and keeping usable summer tires for later installation are not required to provide a used or waste tire nor pay the fee imposed by section of this article.
(c) The solid waste management board shall prescribe and distribute certification forms which shall be completed and signed by every tire retailer or other person disposing of waste tires. The form shall contain the following: (1) how the tires were collected for disposal; (2) where the waste tires were collected; (3) the quantity of waste tires to be disposed; (4) the fee charged by the hauler and or disposal facility; and, (5) any additional information as the board may require. This form shall also be completed and signed by the tire hauler, certifying that the load contains the same tires that were received from the tire retailer or other person disposing of waste tires. The tire hauler shall present this certification form to the tire processor or collector at the time of delivery of the waste tires for disposal, collection or processing. Copies of these certification forms shall be retained for a minimum of three years after the delivery date by the tire processor or collector.
(d) Each tire retailer shall post in a conspicuous place a written notice, provided by the board, that bears the following statements:
(1) "State law requires us to accept your (old) waste tires for recycling or proper disposal if you purchase new tires from us."
(2) "State law requires us to charge you a tax of $2.00 per tire to fund a program to clean up illegally disposed of waste tires even if you do not leave your tires with us."
(3) "Recycle your (old) waste tires."
(4) "It is a crime to burn, bury or throw away waste tires."
This notice must be at least eight and one-half inches wide and eleven inches high.
§22-15A-9. Prohibitions on waste tire disposal.
(a) No person, except those persons who have received and maintain a valid permit from the division of environmental protection for the operation of a waste tire monofill or waste tire processing facility, shall accumulate more than one hundred waste tires without registering with the division of environmental protection.
(b) No person shall bury or otherwise dispose of waste tires in or upon any public or private land, any site or facility other than a site or facility which holds a valid permit issued by the division of environmental protection for such disposal.
(c) No person shall knowingly transport or knowingly allow waste tires under his or her control to be transported to a site or facility that does not have a valid permit to accept waste tires.
(d) No person shall engage in the open burning of waste tires.
(e) Waste tires shall not be disposed of at an incinerator unless the incinerator owner or operator maintains a permit which provides for the use of tire derived fuel.
§22-15A-10. New business investment tax credit.
(a) For tax years beginning on or after the first day of January, two thousand, an investment tax credit is hereby created to encourage recycling, reuse or remanufacturing of whole waste tires. A total investment tax credit may be applied for in an amount equal to ten percent of the cost of the equipment acquired through either purchase, lease purchase or capital purchase and used at a processing center in the remanufacturing or recycling, but not recapping, of whole waste tires in this state. The tax credit herein created is for ten percent of the total purchase cost of the equipment excluding financing and set up costs. The tax credit allowed under this section may be credited against the taxpayer's liability for business franchise corporate net income tax or for personal income tax as applicable. The tax credit may be credited against the taxpayer's tax liability for the taxable year in which the equipment is put in service. If the amount of the tax credit exceeds the taxpayer's tax liability for the taxable year, the amount of the credit which exceeds the tax liability for the taxable year may be carried forward to the succeeding taxable years until used in full, or until forfeited: Provided, That tax credits may not be carried forward beyond four taxable years and may not be carried back to prior taxable years. Any tax credit remaining after the fifth taxable year is forfeited.
(b) In order to qualify for a tax credit under this section, a taxpayer must:
(1) be engaged in the business of recycling, reuse or remanufacturing waste tires for an end market at a processing center in West Virginia;
(2) purchase equipment and use it in the state for the purpose of recycling, or remanufacturing of waste tires, or the preparation of waste tires for reuse; and
(3) demonstrate that at least ten percent of the waste tires processed each year were generated in West Virginia or show proof that a reasonable effort was made to use waste tires from West Virginia but was not possible because of cost or availability.
(c) The investment tax credit created herein shall be available to qualified taxpayers until the tax year beginning the on or after first day of January, two thousand five.
(d) The state tax commissioner shall propose for legislative promulgation legislative rules pursuant to chapter twenty-nine-a of this code regarding the applicability, method of claiming the credit, the documentation necessary to claim the credit, and any other requirements necessary to effectuate the purposes and intent of this section.
(e) The division and the board may disclose information to the state tax commissioner as needed to assist the commissioner with collection, enforcement and audit duties required by this act.
22-15A-11. Waste Tire Advisory Committee.
(a) The waste tire advisory committee is hereby created. This committee shall consist of nine members who shall serve without compensation. Each of the following associations shall designate a representative; tire retailers in West Virginia, service station dealers in West Virginia, automotive dealers in West Virginia and the association of West Virginia solid waste authorities. The governor shall appoint a representative from the environmental community, a representative of state farmers, and a representative citizen- at-large to each serve a term of two years on the waste tire advisory committee. The director of the division of environmental protection or his or her designee and the executive director of the solid waste management board or his or her designee shall be ex officio members of the committee. The executive director of the solid waste management board or his or her designee shall serve as chair of the committee.
(b) The waste tire advisory committee shall meet at least twice per year, or upon the call of three members, to discuss all aspects of waste tire management.
(c) On or before the thirty-first day of January, 2000, and each succeeding year thereafter, the waste tire advisory committee shall prepare and submit a report to the governor, the speaker of the House of Delegates and the president of the Senate, summarizing the activities of the waste tire advisory committee and any recommendations for legislative action.
22-15A-12. Penalties.
(a) Any person who disposes of ninety nine or less tires at any facility or location not approved for tire disposal in accordance with the provisions of this article is guilty of a misdemeanor, and upon conviction thereof shall be fined not more than one thousand dollars and incarcerated at a county or regional jail for not more than sixty days, or both. Any person who disposes of one hundred or more tires at any facility or location not approved for tire disposal in accordance with the provisions of this article is guilty of a felony, and upon conviction thereof shall be fined not more than fifty thousand dollars and imprisoned at a state correctional facility for not less than one year nor more than five years, or both.
(b) Notwithstanding the provisions of subsection (a) any person who acts as a tire retailer, hauler or processor without a permit or license is guilty of a misdemeanor, and upon conviction thereof, shall be fined not more that five thousand dollars and incarcerated at a county or regional jail not more than sixty days, or both.
(c) Any permittee or licensee who violates any provision of this article is subject to a civil administrative penalty, to be levied by the solid waste management board, not to exceed five thousand dollars for each violation. Any funds collected as a civil administrative penalty shall be deposited in the waste tire management fund created in section five of this article. The board may also revoke or suspend any license in accordance with the administrative procedures contained in article five, chapter twenty-nine-a of this code.
§22-15A-13. Rulemaking.
(a) No later than the first day of August one thousand nine hundred ninety-nine, the division shall propose rules for promulgation by the legislature, in accordance with article three, chapter twenty-nine-a of this code, necessary to carry out the provisions of this act. The rules shall:
(1) Set standards for waste tire processing facilities and associated waste tire sites, waste tire collection centers, waste tire collectors, and end users such as tire derived fuel facilities.
(2) Establish limits, below which licenses are not required, for storage of tires on the premises of tire retreading businesses, tire retailers serving as waste tire collection centers, and businesses that, in the ordinary course of business, remove tires from motor vehicles including, but not limited, to salvage yards.
(3) Establish criteria to assure that tires are properly collected, stored and used in a manner which protects public health and safety at the following businesses and business locations: (i) the premises of tire retailers in the area where tires are sold and stored; (ii) the premises of a tire retreading business; (iii) any site where waste tires are stored for use in road surfacing and construction of embankments; (iv) business premises where tires are removed from motor vehicles; and (v) any other such business where waste tires are accumulated or used.
(b) The solid waste management board shall propose rules for legislative promulgation, in accordance with article three, chapter twenty nine-a of this code, to fulfill the duties and responsibilities of the board and effectuate the purposes of this act.
(c) The public service commission shall by rule authorize a reasonable fee to be charged by solid waste facilities and transfer stations for the collection, temporary storage, disposal or recycling of waste tires.

Note: The purpose of this bill is to establish a program to manage waste tires, which includes cleanup of illegal waste tire piles, create a temporary tax to fund the cleanup, provide a tax incentive for the purchase of equipment for reusing waste tires and establish a regulatory program to track the flow of waste tires in the state.

The Joint Committee on the Judiciary has recommended introduction and passage of this bill during the 1999 legislative session.