Senate Bill No. 427

(By Senators Tomblin (Mr. President) and Sprouse
By Request of the Executive)
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[Introduced February 8, 2000; referred to the Committee on the Judiciary; and then to the Committee on Finance.]
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A Bill to amend and reenact sections two and three, article twenty-three, chapter seventeen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section four, article three, chapter seventeen-a of said code; to amend article eleven, chapter twenty of said code by adding thereto four new sections, designated sections two-a, eight-a, eight-b and eight-c; and to amend and reenact section eight of said article, all relating to remediation of waste tire piles; disposal of abandoned waste tires; defining terms; establishing license and permit requirements for storage, use, processing and disposal of waste tires; legislative findings; establishing temporary fee of five dollars for obtaining certificate of title to motor vehicle; establishing "tire refuse/environmental cleanup fund" within the division of highways; providing for certification of waste tire remediation by commissioner of highways; providing for preliminary performance review; establishing duties of highways commissioner; and authorizing disposal of waste tires.
Be it enacted by the Legislature of West Virginia:
That sections two and three, article twenty-three, chapter seventeen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section four, article three, chapter seventeen-a of said code be amended and reenacted; that section eight, article eleven, chapter twenty of said code be amended and reenacted; and that said article be further amended by adding thereto four new sections, designated sections two-a, eight-a, eight-b and eight-c, all to read as follows:
CHAPTER 17. ROADS AND HIGHWAYS.

ARTICLE 23. SALVAGE YARDS.
§17-23-2. Definitions.
As used in this article:
(a) "Abandoned salvage yard" means any unlicensed salvage yard or any salvage yard that was previously licensed but upon which the license has not been renewed for more than one year.
(b) "Commissioner" means the commissioner of the West Virginia department division of highways.
(c) "Fence" means an enclosure, barrier or screen constructed of materials or consisting of plantings, natural objects or other appropriate means approved by the commissioner and located, placed or maintained so as effectively to screen at all times salvage yards and the salvage therein contained from the view of persons passing upon the public roads of this state.
(d) "Occupied private residence" means a private residence which is occupied for at least six months each year.
(e) "Owner or operator" includes an individual, firm, partnership, association or corporation or the plural thereof.
(f) "Residential community" means an area wherein five or more occupied private residences are located within any one thousand foot radius.
(g) "Salvage" means old or scrap brass, copper, iron, steel, other ferrous or nonferrous materials, batteries or rubber and any junked, dismantled or wrecked machinery, machines or motor vehicles or any parts of any junked, dismantled or wrecked machinery, machines or motor vehicles excluding tires not attached to vehicles or machines.
(h) "Salvage yard" means any place which is maintained, operated or used for the storing, keeping, buying, selling or processing of salvage, or for the operation and maintenance of a motor vehicle graveyard: Provided, That notwithstanding the exemption contained in section two (34), article fifteen, chapter twenty-two of this code, no salvage yard shall accept, store or process more than one hundred waste tires unless it has all permits necessary to operate a monofill, waste tire processing facility or solid waste facility. Any salvage yard which currently has on its premises waste tires not on a vehicle must establish a plan in conjunction with the division of highways environmental protection for the proper disposal of the waste tires.
(i) "Waste tire" means any continuous solid or pneumatic rubber covering designed to encircle the wheel of a vehicle that has been discarded, abandoned or is no longer suitable for its original, intended purpose nor suitable for recapping, or other beneficial use because of wear, damage or defect. A tire is no longer considered to be suitable for its original intended purpose when it fails to meet the minimum requirements to pass a West Virginia motor vehicle safety inspection. Used tires located at a commercial recapping facility or tire dealer for the purpose of being reused or recapped are not waste tires.
(j) "Waste tire monofill or 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: Provided, That the waste tires are not mixed with any other solid waste.
(k) "Waste tire processing facility" means a solid waste facility or manufacturer that accepts waste tires generated by sources other than the owner or operator of the facility for processing by such means as cryogenics, pyrolysis, pyroprocessing, cutting, splitting, shredding, quartering, grinding or otherwise breaking down waste tires for the purposes of disposal, reuse, recycling and marketing.
§17-23-3. License required; issuance; fee; renewal; disposition of fees.

No salvage yard or any part thereof shall be established, operated or maintained without a state license. The commissioner shall have the sole authority to issue such a state license, and he or she shall charge therefor a fee of two hundred dollars payable annually in advance. No license shall be issued or renewed to any salvage yard that contains more than one hundred waste tires which are not on vehicles or machines unless the salvage yard has received a license, permit or approval from the division of environmental protection for storage, use or processing of waste tires or has entered into an agreement with the division of environmental protection for the proper disposal of the waste tires. All licenses issued under this section shall expire on the first day of January following the date of issuance. A salvage license may be renewed from year to year upon paying the commissioner the sum of two hundred dollars for each such renewal. All such renewal license fees collected under the provisions of this article shall be deposited in the special fund provided for in section ten of this article.
CHAPTER 17A. MOTOR VEHICLE ADMINISTRATION

REGISTRATION, CERTIFICATE OF TITLE
AND ANTITHEFT PROVISIONS.
ARTICLE 3. ORIGINAL AND RENEWAL OF REGISTRATION; ISSUANCE OF CERTIFICATES OF TITLE.
§17A-3-4. Application for certificate of title; tax for privilege of certification of title; tire refuse cleanup fee; penalty for false swearing.

(a) Certificates of registration of any vehicle or registration plates for the vehicle, whether original issues or duplicates, may not be issued or furnished by the division of motor vehicles or any other officer or agent charged with the duty, unless the applicant therefor already has received, or at the same time makes application for and is granted, an official certificate of title of the vehicle in either an electronic or paper format. The application shall be upon a blank form to be furnished by the division of motor vehicles and shall contain a full description of the vehicle, which description shall contain a manufacturer's serial or identification number or other number as determined by the commissioner and any distinguishing marks, together with a statement of the applicant's title and of any liens or encumbrances upon the vehicle, the names and addresses of the holders of the liens and any other information as the division of motor vehicles may require. The application shall be signed and sworn to by the applicant. A duly certified copy of the division's electronic record of a certificate of title shall be admissible in any civil, criminal or administrative proceeding in this state as evidence of ownership.
(b) A tax is imposed upon the privilege of effecting the certification of title of each vehicle in the amount equal to five percent of the value of the motor vehicle at the time of the certification, to be assessed as follows:
(1) If the vehicle is new, the actual purchase price or consideration to the purchaser of the vehicle is the value of the vehicle. If the vehicle is a used or secondhand vehicle, the present market value at time of transfer or purchase is the value of the vehicle for the purposes of this section: Provided, That so much of the purchase price or consideration as is represented by the exchange of other vehicles on which the tax imposed by this section has been paid by the purchaser shall be deducted from the total actual price or consideration paid for the vehicle, whether the vehicle be new or secondhand. If the vehicle is acquired through gift, or by any manner whatsoever, unless specifically exempted in this section, the present market value of the vehicle at the time of the gift or transfer is the value of the vehicle for the purposes of this section.
(2) No certificate of title for any vehicle may be issued to any applicant unless the applicant has paid to the division of motor vehicles the tax imposed by this section which is five percent of the true and actual value of the vehicle whether the vehicle is acquired through purchase, by gift or by any other manner whatsoever, except gifts between husband and wife or between parents and children: Provided, That the husband or wife, or the parents or children previously have paid the tax on the vehicles transferred to the state of West Virginia.
(3) The division of motor vehicles may issue a certificate of registration and title to an applicant if the applicant provides sufficient proof to the division of motor vehicles that the applicant has paid the taxes and fees required by this section to a motor vehicle dealership that has gone out of business or has filed bankruptcy proceedings in the United States bankruptcy court and the taxes and fees so required to be paid by the applicant have not been sent to the division by the motor vehicle dealership or have been impounded due to the bankruptcy proceedings: Provided, That the applicant makes an affidavit of the same and assigns all rights to claims for money the applicant may have against the motor vehicle dealership to the division of motor vehicles.
(4) The division of motor vehicles shall issue a certificate of registration and title to an applicant without payment of the tax imposed by this section if the applicant is a corporation, partnership or limited liability company transferring the vehicle to another corporation, partnership or limited liability company when the entities involved in the transfer are members of the same controlled group and the transferring entity has previously paid the tax on the vehicle transferred. For the purposes of this section, control means ownership, directly or indirectly, of stock or equity interests possessing fifty percent or more of the total combined voting power of all classes of the stock of a corporation or equity interests of a partnership or limited liability company entitled to vote or ownership, directly or indirectly, of stock or equity interests possessing fifty percent or more of the value of the corporation, partnership or limited liability company.
(5) The tax imposed by this section does not apply to vehicles to be registered as Class H vehicles or Class M vehicles, as defined in section one, article ten of this chapter, which are used or to be used in interstate commerce. Nor does the tax imposed by this section apply to the titling of Class B vehicles registered at a gross weight of fifty-five thousand pounds or more, or to the titling of Class C semitrailers, full trailers, pole trailers and converter gear: Provided, That if an owner of a vehicle has previously titled the vehicle at a declared gross weight of fifty-five thousand pounds or more and the title was issued without the payment of the tax imposed by this section, then before the owner may obtain registration for the vehicle at a gross weight less than fifty-five thousand pounds, the owner shall surrender to the commissioner the exempted registration, the exempted certificate of title, and pay the tax imposed by this section based upon the current market value of the vehicle: Provided, however, That notwithstanding the provisions of section nine, article fifteen, chapter eleven of this code, the exemption from tax under this section for Class B vehicles in excess of fifty-five thousand pounds and Class C semitrailers, full trailers, pole trailers and converter gear does not subject the sale or purchase of the vehicles to the consumers sales tax.
(6) The tax imposed by this section does not apply to titling of vehicles leased by residents of West Virginia. A tax is imposed upon the monthly payments for the lease of any motor vehicle leased by a resident of West Virginia, which tax is equal to five percent of the amount of the monthly payment, applied to each payment, and continuing for the entire term of the initial lease period. The tax shall be remitted to the division of motor vehicles on a monthly basis by the lessor of the vehicle.
(7) The tax imposed by this section does not apply to titling of vehicles by a registered dealer of this state for resale only, nor does the tax imposed by this section apply to titling of vehicles by this state or any political subdivision thereof, or by any volunteer fire department or duly chartered rescue or ambulance squad organized and incorporated under the laws of the state of West Virginia as a nonprofit corporation for protection of life or property. The total amount of revenue collected by reason of this tax shall be paid into the state road fund and expended by the commissioner of highways for matching federal funds allocated for West Virginia. In addition to the tax, there is a charge of five dollars for each original certificate of title or duplicate certificate of title so issued: Provided, That this state or any political subdivision of this state, or any volunteer fire department, or duly chartered rescue squad is exempt from payment of the charge.
(8) The certificate is good for the life of the vehicle, so long as the vehicle is owned or held by the original holder of the certificate, and need not be renewed annually, or any other time, except as provided in this section.
(9) If, by will or direct inheritance, a person becomes the owner of a motor vehicle and the tax imposed by this section previously has been paid, to the division of motor vehicles, on that vehicle, he or she is not required to pay the tax.
(10) A person who has paid the tax imposed by this section is not required to pay the tax a second time for the same motor vehicle, but is required to pay a charge of five dollars for the certificate of retitle of that motor vehicle, except that the tax shall be paid by the person when the title to the vehicle has been transferred either in this or another state from the person to another person and transferred back to the person.
(11) The tax imposed by this section does not apply to titling of vehicles rented daily or monthly by West Virginia businesses. A tax is imposed upon the daily payments for the rental of any motor vehicle rented in West Virginia, which tax is twenty-five cents for each day of the period of rental of the motor vehicle. The tax shall be remitted to the division of motor vehicles on a monthly basis by the lessor of the vehicle.
(c) On and after the first day of July, two thousand, a temporary fee of five dollars in addition to the tax imposed in subsection (a) of this section shall be remitted to and collected by the division of motor vehicles for the privilege of obtaining a certificate of title. This fee shall be transmitted to the division of highways to be deposited in the "Tire Refuse/Environmental Cleanup Fund": Provided, That no further collections or transmittals shall be made after the commissioner of highways certifies to the governor and the Legislature that the remediation of all waste tire piles that were in existence on the first day of January, two thousand one, has been completed.
(c) (d) Notwithstanding any provisions of this code to the contrary, the owners of trailers, semitrailers, recreational vehicles and other vehicles not subject to the certificate of title tax prior to the enactment of this chapter are subject to the privilege tax imposed by this section: Provided, That the certification of title of any recreational vehicle owned by the applicant on the thirtieth day of June, one thousand nine hundred eighty-nine, is not subject to the tax imposed by this section: Provided, however, That mobile homes, manufactured homes, modular homes and similar nonmotive propelled vehicles, except recreational vehicles and house trailers, susceptible of being moved upon the highways but primarily designed for habitation and occupancy, rather than for transporting persons or property, or any vehicle operated on a nonprofit basis and used exclusively for the transportation of mentally retarded or physically handicapped children when the application for certificate of registration for the vehicle is accompanied by an affidavit stating that the vehicle will be operated on a nonprofit basis and used exclusively for the transportation of mentally retarded and physically handicapped children, are not subject to the tax imposed by this section, but are taxable under the provisions of articles fifteen and fifteen-a, chapter eleven of this code.
(d) (e) Any person making any affidavit required under any provision of this section, who knowingly swears falsely, or any person who counsels, advises, aids or abets another in the commission of false swearing, or any person, while acting as an agent of the division of motor vehicles issues a vehicle registration without first collecting the fees and taxes or fails to perform any other duty required by this chapter to be performed before a vehicle registration is issued is on the first offense guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars or be confined in the county or regional jail for a period not to exceed six months or, in the discretion of the court, both fined and confined. For a second or any subsequent conviction within five years, that person is guilty of a felony and, upon conviction thereof, shall be fined not more than five thousand dollars or be imprisoned in the penitentiary state correctional facility for not less than one year nor more than five years or, in the discretion of the court, fined and imprisoned.
(e) (f) Notwithstanding any other provisions of this section, any person in the military stationed outside West Virginia, or his or her dependents who possess a motor vehicle with valid registration, are exempt from the provisions of this article for a period of nine months from the date the person returns to this state or the date his or her dependent returns to this state, whichever is later.
(f) (g) No person may transfer, purchase or sell a factory-built home without a certificate of title issued by the commissioner in accordance with the provisions of this article:
(1) Any person who fails to provide a certificate of title upon the transfer, purchase or sale of a factory-built home is guilty of a misdemeanor and, upon conviction thereof, shall for the first offense be fined not less than one hundred dollars nor more than one thousand dollars, or be confined in the county or regional jail for not more than one year or, both fined and confined. For each subsequent offense, the fine may be increased to not more than two thousand dollars, with confinement in the county or regional jail not more than one year or, both fined and confined.
(2) Failure of the seller to transfer a certificate of title upon sale or transfer of the factory-built home gives rise to a cause of action, upon prosecution thereof, and allows for the recovery of damages, costs and reasonable attorney fees.
(g) (h) Notwithstanding any other provision to the contrary, whenever reference is made to the application for or issuance of any title or the recordation or release of any lien, it shall be understood to include the application, transmission, recordation, transfer of ownership and storage of information in an electronic format.
CHAPTER 20. NATURAL RESOURCES.

ARTICLE 11. WEST VIRGINIA RECYCLING PROGRAM.
§20-11-2a. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(1) "Agricultural use" means the use of waste tires for agricultural purposes recognized by the division of environmental protection.
(2) "Beneficial use" means whole waste tires or tire derived material which are reused in constructing retaining walls, rebuilding highway shoulders and subbase, building highway crash attenuation barriers, feedhopper or watering troughs for livestock, playground equipment, boat or truck dock construction, house or building construction, go-cart, motorbike or race track barriers, leach beds or similar types of beneficial applications: Provided, That waste tires may not be reused as fencing, as erosion control structures, along stream banks or river banks or reused in any manner where human health or the environment, as determined by the director of the division of environmental protection, is put at risk.
(3) "Commissioner" means the commissioner of the division of highways or his or her designee.
(4) "Person" includes a natural person, corporation, firm, partnership, association or society, and the plural as well as the singular.
(5) "Tire" means a continuous solid or pneumatic rubber wheel covering, which has a rim size of twelve inches or more in diameter. Bicycle tires, other tires for vehicles propelled by human power and off road vehicle tires utilized in earth moving activities are not subject to the provisions of this article.
(6) "Waste tire" means any continuous solid or pneumatic rubber covering designed to encircle the wheel of a vehicle that has been discarded, abandoned or is no longer suitable for its original, intended purposed nor suitable for recapping, or other beneficial use because of wear, damage or defect. A tire is no longer considered to be suitable for its original intended purpose when it fails to meet the minimum requirements to pass a West Virginia motor vehicle safety inspection. Used tires located at a commercial recapping facility or tire dealer for the purpose of being reused or recapped are not waste tires.
(7) "Waste tire monofill or 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: Provided, That the waste tires are not mixed with any other solid waste.
(8) "Waste tire processing facility" means a solid waste facility or manufacturer that accepts waste tires generated by sources other than the owner or operator of the facility for processing by such means as cryogenics, pyrolysis, pyroprossessing, cutting, splitting, shredding, chipping, quartering, grinding, joining for the purpose of reuse or remanufacturing, or otherwise processing waste tires for the purposes of disposal, reuse, recycling and marketing.
§20-11-8. Prohibition on the disposal of certain items; plans for the proper handling of said items required.

(a) Effective the first day of June, one thousand nine hundred ninety-four, it shall be unlawful to deposit lead-acid batteries in a solid waste facility in West Virginia; effective the first day of June, one thousand nine hundred ninety-six, it shall be unlawful to deposit tires in a solid waste facility in West Virginia, except for waste tires collected as part of the division of highways' waste tire remediation projects or other collection efforts in accordance with the provisions of this article or the division of environmental protection's pollution prevention and open dumps program. and
(b) Effective the first day of January, one thousand nine hundred ninety-seven, it shall be unlawful to deposit yard waste, including grass clippings and leaves, in a solid waste facility in West Virginia: Provided, That such prohibitions do not apply to a facility designed specifically to compost such yard waste or otherwise recycle or reuse such items: Provided, however, That reasonable and necessary exceptions to such prohibitions may be included as part of the rules promulgated pursuant to subsection (c) of this section.
(b)(c) No later than the first day of May, one thousand nine hundred ninety-five, the solid waste management board shall design a comprehensive program to provide for the proper handling of yard waste and lead-acid batteries. No later than the first day of May one thousand nine hundred ninety-four, a comprehensive plan shall be designed in the same manner to provide for the proper handling of tires.
(c)(d) No later than the first day of August, one thousand nine hundred ninety-five, the division of environmental protection shall promulgate rules, in accordance with chapter twenty-nine-a of this code, as amended, to implement and enforce the program for yard waste and lead-acid batteries designed pursuant to subsection (b) (c) of this section. No later than the first day of August, one thousand nine hundred ninety-four, the division of environmental protection shall promulgate rules, in accordance with chapter twenty-nine-a of said code, as amended, to implement and enforce the program for tires designed pursuant to subsection (b) (c) of this section.
(d) (e) For the purposes of this section, "yard waste" means grass clippings, weeds, leaves, brush, garden waste, shrub or tree prunings and other living or dead plant tissues, except that, such materials which, due to inadvertent contamination or mixture with other substances which render the waste unsuitable for composting, shall not be considered to be yard waste: Provided, That the same or similar waste generated by commercial agricultural enterprises is excluded.
(e) (f) In promulgating the rules required by subsections (b) (c) and (c) (d) of this section, yard waste, as described in subsection (d) (e) of this section, the division shall provide for the disposal of yard waste in a manner consistent with one or any combination of the following:
(1) Disposal in a publicly or privately operated commercial or noncommercial composting facility.
(2) Disposal by composting on the property from which domestic yard waste is generated or on adjoining property or neighborhood property if consent is obtained from the owner of the adjoining or neighborhood property.
(3) Disposal by open burning where such activity is not prohibited by this code, rules promulgated hereunder or municipal or county codes or ordinances.
(4) Disposal in a publicly or privately operated landfill, only where none of the foregoing options are available. Such manner of disposal will involve only small quantities of domestic yard waste generated only from the property of the participating resident or tenant.
§20-11-8a. Creation of waste tire remediation fund; proceeds from sale of waste tires; performance review.
(a) There is hereby created a special revenue fund in the division of highways known as the "Tire Refuse/Environmental Cleanup Fund." The fund shall operate as a special fund whereby all deposits and payments thereto and interest thereon do not expire to the general revenue fund, but remain in the fund and are available for expenditure in succeeding fiscal years. The fund shall consist of the proceeds from the sale of waste tires; fees collected by the division of motor vehicles as provided for in section four, article three, chapter seventeen-a of this code; any federal, state or private grants; legislative appropriations; and any other funding source available for waste tire remediation.
(b) 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 remediation mandated in this article; whether the purposes of this article have been met and whether it is appropriate to terminate this program. In conducting a preliminary performance review, the committee shall follow the guidelines established in article ten, section ten, chapter four of this code. The review shall be completed on or before the first day of January, two thousand two.
§20-11-8b. Division of highways to administer funds for waste tire remediation; rules authorized; duties of commissioner.

(a) The division of highways shall administer all funds made available to the division for remediation of waste tire piles and for the proper disposal of waste tires removed from waste tire piles. The commissioner of the division of highways is hereby authorized and empowered: (i) To propose for legislative promulgation in accordance with article three, chapter twenty-nine-a of this code, rules necessary to implement the provisions of this article; and (ii) to administer all funds appropriated by the Legislature to carry out the requirements of this article, and any other funds from whatever source including, but not limited to, federal, state or private grants. The commissioner shall also have the following powers and duties:
(1) To apply and carry out the provisions of this article and the rules promulgated hereunder.
(2) To investigate from time to time the operation and effect of this article and of the rules promulgated hereunder and to report his or her findings and recommendations to the secretary of the department of transportation, the legislature and the governor.
(b) The provisions of articles two-a and four, chapter seventeen of this code and the policy, rules, practices and procedures thereunder shall be followed by the commissioner in carrying out the purposes of this article.
(c) The commissioner may contract with the department of health and human resources and/or the division of corrections to remediate or assist in remediation of waste tire piles throughout the state.
§20-11-8c. Disposal of waste tires.
(a) The commissioner may sell waste tires collected during remediation of waste tire piles at public auction or to a waste tire monofill, waste tire processing facility or business authorized by the division of environmental protection to accept, store, use or process waste tires.
(b) If there is no market in West Virginia for the sale of waste tires, the division of highways may sell them at any available market.
(c) If there is no market for the sale of waste tires, the division of highways may dispose of them in any lawful manner.
 (d) Persons authorized by the division of highways to haul, collect, dispose, or process waste tires as part of the division's waste tire remediation project and persons processing waste tires or the division of environmental protection's pollution prevention and open dumps program are not responsible for any solid waste disposal assessment tipping fees for waste tires imposed by section five-a, article eleven, chapter twenty; section eleven, article fifteen, chapter twenty-two, section four, article sixteen, chapter twenty-two and section thirty, article four, chapter twenty-two-c of this code.
(e) Solid waste disposal facilities are required to accept waste tires from persons authorized by the division of highways as part of a waste tire pile remediation project or by the division of environmental protection's pollution prevention and open dumps program conducted pursuant to this article. All waste tires from division of highways remediation projects or the division of environmental protection's pollution prevention and open dumps program shall be excluded from the calculation of monthly tonnage limits and from the rates and charges established by the public service commission pursuant to article one, chapter twenty-four of this code.



 NOTE: The purpose of this bill is to create a fund for the remediation of waste tire piles and to authorize the commissioner of highways to collect and dispose of the waste tires.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
§§20-11-2a, 8a, 8b and 8c are new; therefore, strike-throughs and underscoring have been omitted.