COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 428
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
____________
[Originating in the Committee on Finance;
reported March 28, 2005.]
____________
A BILL to repeal §17-24-1, §17-24-2, §17-24-3, §17-24-4, §17-24-5,
§17-24-6, §17-24-7, §17-24-8, §17-24-9 and §17-24-10 of the
Code of West Virginia, 1931, as amended; to repeal §20-7-24,
§20-7-25, §20-7-26, §20-7-27 and §20-7-29 of said code; to
repeal §20-11-1, §20-11-2, §20-11-3, §20-11-4, §20-11-5, §20-
11-6, §20-11-7, §20-11-8, §20-11-9, §20-11-10, §20-11-11 and
§20-11-12 of said code; to amend and reenact §7-1-3ff of said
code; to amend and reenact §17-2A-21 of said code; to amend
and reenact §17-23-2 of said code; to amend and reenact §17A-
10-16 of said code; to amend and reenact §17C-14-14 of said
code; to amend and reenact §22-15-2 and §22-15-21 of said
code; to amend said code by adding thereto a new article,
designated §22-15A-1, §22-15A-2, §22-15A-3, §22-15A-4, §22-
15A-5, §22-15A-6, §22-15A-7, §22-15A-8, §22-15A-9, §22-15A-
10, §22-15A-11, §22-15A-12, §22-15A-13, §22-15A-14, §22-15A-15, §22-15A-16, §22-15A-17, §22-15A-18, §22-15A-19, §22-15A-
20, §22-15A-21, §22-15A-22 and §22-15A-23; to amend and
reenact §22C-3-7 and §22C-3-24 of said code; to amend and
reenact §22C-4-24 and §22C-4-25 of said code; to amend and
reenact §31-15A-17a of said code; and to amend and reenact
§49-5-13 and §49-5-13b of said code, all relating to the
Rehabilitation Environmental Action Plan; consolidating
litter control, open dump elimination and reclamation, waste
tire cleanup and recycling programs; defining certain terms;
providing for litter control and recycling programs;
providing additional duties of Secretary of the Department of
Environmental Protection; transferring assets, contracts and
personnel of the Litter Control Program; providing penalties
for the unlawful disposal of litter; providing for litter
control education; creating the Pollution Prevention and Open
Dump Program; providing for assistance to solid waste
authorities for litter and solid waste plans; prohibiting
waste tires in certain places; providing for penalty for
violations thereof; providing that the Department of
Environmental Protection is to administer funds for waste
tire remediation; authorizing the Secretary of the Department
of Environmental Protection to promulgate rules; providing
for the disposal of waste tires; providing for the creation
of the A. James Manchin Fund; establishing remediation and
liability for remediation; clarifying that Commissioner for
Bureau for Public Health has the authority to regulate public health matters; establishing recycling goals and plans;
establishing county recycling programs for solid waste;
providing for a recycling assessment fee; providing for
criminal penalties; establishing state recycling program for
solid waste; providing for the procurement of recycled
products; prohibiting the disposal of certain items; and
exempting certain recycling facilities from regulation.
Be it enacted by the Legislature of West Virginia:
That §17-24-1, §17-24-2, §17-24-3, §17-24-4, §17-24-5,
§17-24-6, §17-24-7, §17-24-8, §17-24-9 and §17-24-10 of the Code of
West Virginia, 1931, as amended, be repealed; that §20-7-24,
§20-7-25, §20-7-26, §20-7-27 and §20-7-29 of said code be repealed;
that §20-11-1, §20-11-2, §20-11-3, §20-11-4, §20-11-5, §20-11-6,
§20-11-7, §20-11-8, §20-11-9, §20-11-10, §20-11-11 and §20-11-12 of
said code be repealed; that §22-15A-23, §22-15A-24 and §22-15A-25
of said code be repealed; that §7-1-3ff of said code be amended and
reenacted; that §17-2A-21 of said code be amended and reenacted;
that §17-23-2 of said code be amended and reenacted; that §17A-10-
16 of said code be amended and reenacted; that §17C-14-14 of said
code be amended and reenacted; that §22-15-2 and §22-15-21 of said
code be amended and reenacted; that said code be amended by adding
thereto a new article, designated §22-15A-1, §22-15A-2, §22-15A-3,
§22-15A-4, §22-15A-5, §22-15A-6, §22-15A-7, §22-15A-8, §22-15A-9,
§22-15A-10, §22-15A-11, §22-15A-12, §22-15A-13, §22-15A-14, §22-
15A-15, §22-15A-16, §22-15A-17, §22-15A-18, §22-15A-19, §22-15A-20,
§22-15A-21, §22-15A-22 and §22-15A-23; that §22C-3-7 and §22C-3-24 of said code be amended and reenacted; that §22C-4-24 and §22C-4-25
of said code be amended and reenacted; that §31-15A-17a of said
code be amended and reenacted; and that §49-5-13 and §49-5-13b of
said code be amended and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3ff. Authority of county commission to enact ordinances
regulating the repair, alteration, improvement,
vacating, closing, removal or demolition of unsafe
or unsanitary structures and the clearance and
removal of refuse, debris, overgrown vegetation,
toxic spills or toxic seepage on private land;
authority to create enforcement agency; procedure
for complaints; promulgation of rules governing
investigation and hearing of complaints; remedies
for failure to comply with commission-ordered
repairs or alterations; lien and sale of land to
recover costs; entry on land to perform repairs and
alterations or to satisfy lien; receipt of grants
and subsidies.
(a) Plenary power and authority are hereby conferred upon
every county commission to adopt ordinances regulating the repair,
alteration or improvement, or the vacating and closing or removal
or demolition, or any combination thereof, of any dwellings or
other buildings, except for buildings utilized for farm purposes on
land actually being used for farming, unfit for human habitation due to dilapidation, defects increasing the hazard of fire,
accidents or other calamities, lack of ventilation, light or
sanitary facilities or any other conditions prevailing in any
dwelling or building, whether used for human habitation or not,
which would cause the dwellings or other buildings to be unsafe,
unsanitary, dangerous or detrimental to the public safety or
welfare, whether the result of natural or manmade force or effect.
(b) Plenary power and authority are hereby conferred upon
every county commission to adopt ordinances regulating the removal
and cleanup of any accumulation of refuse or debris, overgrown
vegetation or toxic spillage or toxic seepage located on private
lands which is determined to be unsafe, unsanitary, dangerous or
detrimental to the public safety or welfare, whether the result of
natural or manmade force or effect.
(c) The county commission, in formally adopting ordinances,
shall designate an enforcement agency which shall consist of the
county engineer (or other technically qualified county employee or
consulting engineer), county health officer or his or her designee,
a fire chief from a county fire company, the county litter control
officer, if the commission chooses to hire one, and two members at
large selected by the county commission to serve two-year terms.
The county sheriff shall serve as an ex officio member of the
enforcement agency and the county officer charged with enforcing
the orders of the county commission under this section.
(d) In addition to the powers and duties imposed by this
section, county litter control officers shall have authority to issue citations for violations of the provisions of section
twenty-six, article seven, chapter twenty four, article fifteen-a,
chapter twenty-two of this code after completing a training course
offered by the West Virginia division of natural resources
Department of Environmental Protection. Nothing in this subsection
supercedes the authority or duty of other law-enforcement officers
to preserve law and order and enforce the litter control program.
(e) Any ordinance adopted pursuant to the provisions of this
section shall provide fair and equitable rules of procedure and any
other standards considered necessary to guide the enforcement
agency, or its agents, in the investigation of dwelling or building
conditions, accumulation of refuse or debris, overgrown vegetation
or toxic spillage or toxic seepage and shall provide for fair and
equitable rules of procedure for instituting and conducting
hearings in the matters before the county commission. Any entrance
upon premises for the purpose of making examinations shall be made
in a manner as to cause the least possible inconvenience to the
persons in possession.
(f) Any county commission adopting ordinances authorized by
this section shall hear and determine complaints of the enforcement
agency. Complaints shall be initiated by citation issued by the
county litter control officer or petition of the county engineer
(or other technically qualified county employee or consulting
engineer) on behalf of and at the direction of the enforcement
agency, but only after that agency has investigated and determined
that any dwelling, building, accumulation of refuse or debris, overgrown vegetation or toxic spillage or toxic seepage is unsafe,
unsanitary, dangerous or detrimental to the public safety or
welfare and should be repaired, altered, improved, vacated,
removed, closed, cleaned or demolished. The county commission
shall cause the owner or owners of the private land in question to
be served with a copy of the complaint. Service shall be
accomplished in the manner provided in rule four of the West
Virginia rules of civil procedure. The complaint shall state the
findings and recommendations of the enforcement agency and that
unless the owner or owners of the property file with the clerk of
the county commission a written request for a hearing within ten
days of receipt of the complaint, an order will be issued by the
county commission implementing the recommendations of the
enforcement agency. If the owner or owners of the property file a
request for a hearing, the county commission shall issue an order
setting this matter down for hearing within twenty days. Hearings
shall be recorded by electronic device or by court reporter. The
West Virginia rules of evidence do not apply to the proceedings,
but each party has the right to present evidence and examine and
cross-examine all witnesses. The enforcement agency has the burden
of proving its allegation by a preponderance of the evidence and
has the duty to go forward with the evidence. At the conclusion of
the hearing the county commission shall make findings of fact,
determinations and conclusions of law as to whether the dwelling or
building: Is unfit for human habitation due to dilapidation; has
defects that increase the hazard of fire, accidents or other calamities, lacks ventilation, light or sanitary facilities; or any
other conditions prevailing in the dwelling or building, whether
used for human habitation or not and whether the result of natural
or manmade force or effect, which would cause such dwelling or
other building to be unsafe, unsanitary, dangerous or detrimental
to the public safety or welfare; or whether there is an
accumulation of refuse or debris, overgrown vegetation, toxic
spillage or toxic seepage on private lands which is determined to
be unsafe, unsanitary, dangerous or detrimental to the public
safety or welfare, whether the result of natural or manmade force
or effect. The county commission has authority to order the owner
or owners thereof to repair, alter, improve, vacate, remove, close,
clean up or demolish the dwelling or building in question or to
remove or cleanup any accumulation of refuse or debris, overgrown
vegetation or toxic spillage or toxic seepage within a reasonable
time and to impose daily civil monetary penalties on the owner or
owners who fail to obey an order. Appeals from the county
commission to the circuit court shall be in accordance with the
provisions of article three, chapter fifty-eight of this code.
(g) Upon the failure of the owner or owners of the private
land to perform the ordered duties and obligations as set forth in
the order of the county commission, the county commission may
advertise for and seek contractors to make the ordered repairs,
alterations or improvements or the ordered demolition, removal or
cleanup. The county commission may enter into any contract with
any contractor to accomplish the ordered repairs, alterations or improvements or the ordered demolition, removal or cleanup.
(h) A civil proceeding may be brought in circuit court by the
county commission against the owner or owners of the private land
which is the subject matter of the order of the county commission
to subject the private land in question to a lien for the amount of
the contractor's costs in making these ordered repairs, alterations
or improvements or ordered demolition, removal or cleanup, together
with any daily civil monetary penalty imposed and reasonable
attorney fees and court costs and to order and decree the sale of
the private land in question to satisfy the lien and to order and
decree that the contractor may enter upon the private land in
question at any and all times necessary to make improvements or
ordered repairs, alterations or improvements, or ordered
demolition, removal or cleanup. In addition, the county commission
shall have the authority to institute a civil action in a court of
competent jurisdiction against the landowner or other responsible
party for all costs incurred by the county with respect to the
property and for reasonable attorney fees and court costs incurred
in the prosecution of the action.
(i) County commissions have the power and authority to
receive and accept grants, subsidies, donations and services in
kind consistent with the objectives of this section.
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 2A. WEST VIRGINIA COMMISSIONER OF HIGHWAYS.
§17-2A-21. Commissioner authorized to contract for implementation
of litter control programs.
In addition to all other powers granted and duties imposed
upon the commissioner, he or she shall contract with the director
of the department of natural resources Secretary of the Department
of Environmental Protection and expend moneys from the highway
litter control fund to implement the litter control program and
litter control maintenance of the highways pursuant to article
seven, chapter twenty article fifteen-a, chapter twenty-two of this
code.
ARTICLE 23. SALVAGE YARDS.
§17-23-2. Definitions.
As used in this article:
(a) "Abandoned salvage yard" means any unlicenced 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
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.
(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 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 more than one hundred waste
tires not on a vehicle must establish a plan in conjunction with
the division of 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 but
which has been discarded, abandoned or is no longer suitable for
its original, intended purpose nor suitable for recapping, or other
beneficial use, as defined in section two, article twenty-four,
chapter seventeen two, article fifteen-a, chapter twenty-two of
this code, 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 not mixed with any other waste are
placed for the purpose of long term storage for eventual retrieval
for marketing purposes.
(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, pyroprossing
cutting, splitting, shredding, quartering, grinding or otherwise
breaking down waste tires for the purposes of disposal, reuse,
recycling or marketing.
CHAPTER 17A. MOTOR VEHICLE ADMINISTRATION, REGISTRATION,
CERTIFICATE OF TITLE, AND ANTITHEFT PROVISIONS.
ARTICLE 10. FEES FOR REGISTRATION, LICENSING, ETC.
§17A-10-16. Fee for the A. James Manchin Fund.
In addition to each fee provided for in this article, an
additional five-dollar fee shall be imposed on the issuance of each
certificate of title issued pursuant to article three of this
chapter. All money collected under this section shall be deposited
in the state treasury and credited to the A. James Manchin Fund to
be established within the department of highways Department of Environmental Protection for waste tire remediation in accordance
to the provisions of article twenty-four twenty-two, chapter
seventeen fifteen-a of this code. The additional fee provided
herein shall be imposed for each application for certificate and
renewal thereof made on or after the first day of July, two
thousand: Provided, That no further collections or deposits shall
be made after the Commissioner Secretary of the Department of
Environmental Protection certifies to the Governor and the
Legislature that the remediation of all waste tire piles that were
determined by the Commissioner to exist on the first day of June,
two thousand one six, has been completed.
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 14. MISCELLANEOUS RULES.
§17C-14-14. Unlawful to litter from motor vehicle; penalty; rule
making.
(a) It is unlawful for any driver or passenger of a motor
vehicle or other conveyance to place, deposit, dump, throw or cause
to be placed, deposited, dumped or thrown, any litter from a motor
vehicle or other conveyance in or upon any public or private
highway, road, street or alley; any private property; any public
property; or the waters of the state or within one hundred feet of
the waters of this state, except in a proper litter or other solid
waste receptacle.
(b) For purposes of this section, "litter" means all waste
material including, but not limited to, any garbage, refuse, trash,
disposable package, container, can, bottle, paper, ashes, cigarette or cigar butt, carcass of any dead animal or any part thereof, or
any other offensive or unsightly matter, but not including the
wastes of primary processes of mining, logging, sawmilling, farming
or manufacturing.
(c) In addition to any penalty imposed for littering under the
provisions of article seven, chapter twenty article fifteen-a,
chapter twenty-two of this code, any driver of a motor vehicle or
other conveyance convicted of violating this section shall have
three points assessed against his or her driver's license.
(d) The Commissioner shall assess points against the driver's
license of any driver of a motor vehicle or other conveyance found
guilty of violating this section upon receiving notice from a
circuit clerk, magistrate court or municipal court of this state of
the conviction. Circuit clerks, magistrate courts and municipal
courts of this state shall promptly notify the Commissioner of the
convictions.
(e) When there is more than one occupant in a motor vehicle or
other conveyance and it cannot be determined which occupant is
responsible for violating this section, the driver shall be
presumed to be responsible for the violation.
(f) The Commissioner of the Division of Motor Vehicles shall
propose or amend legislative rules for promulgation, in accordance
with the provisions of article three, chapter twenty-nine-a of this
code, to effectuate the purposes of this section.
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 15. SOLID WASTE MANAGEMENT ACT.
§22-15-2. Definitions.
Unless the context clearly requires a different meaning, as
used in this article the terms:
(1) "Agronomic rate" means the whole sewage sludge application
rate, by dry weight, designed:
(A) To provide the amount of nitrogen needed by the food crop,
feed crop, fiber crop, cover crop or vegetation on the land; and
(B) To minimize the amount of nitrogen in the sewage sludge
that passes below the root zone of the crop or vegetation grown on
the land to the groundwater.
(2) "Applicant" means the person applying for a commercial
solid waste facility permit or similar renewal permit and any
person related to such person by virtue of common ownership, common
management or family relationships as the director may specify,
including the following: Spouses, parents and children and
siblings.
(3) "Approved solid waste facility" means a solid waste
facility or practice which has a valid permit under this article.
(4) "Back hauling" means the practice of using the same
container to transport solid waste and to transport any substance
or material used as food by humans, animals raised for human
consumption or reusable item which may be refilled with any
substance or material used as food by humans.
(5) "Bulking agent" means any material mixed and composted
with sewage sludge.
(6) "Class A facility" means a commercial solid waste facility which handles an aggregate of between ten thousand and thirty
thousand tons of solid waste per month. Class A facility includes
two or more Class B solid waste landfills owned or operated by the
same person in the same county, if the aggregate tons of solid
waste handled per month by such landfills exceeds nine thousand
nine hundred ninety-nine tons of solid waste per month.
(7) "Commercial recycler" means any person, corporation or
business entity whose operation involves the mechanical separation
of materials for the purpose of reselling or recycling at least
seventy percent by weight of the materials coming into the
commercial recycling facility.
(8) "Commercial solid waste facility" means any solid waste
facility which accepts solid waste generated by sources other than
the owner or operator of the facility and does not include an
approved solid waste facility owned and operated by a person for
the sole purpose of the disposal, processing or composting of solid
wastes created by that person or such person and other persons on
a cost-sharing or nonprofit basis and does not include land upon
which reused or recycled materials are legitimately applied for
structural fill, road base, mine reclamation and similar
applications.
(9) "Compost" means a humus-like material resulting from
aerobic, microbial, thermophilic decomposition of organic
materials.
(10) "Composting" means the aerobic, microbial, thermophilic
decomposition of natural constituents of solid waste to produce a stable, humus-like material.
(11) "Commercial composting facility" means any solid waste
facility processing solid waste by composting, including sludge
composting, organic waste or yard waste composting, but does not
include a composting facility owned and operated by a person for
the sole purpose of composting waste created by that person or such
person and other persons on a cost-sharing or nonprofit basis and
shall not include land upon which finished or matured compost is
applied for use as a soil amendment or conditioner.
(12) "Cured compost" or "finished compost" means compost which
has a very low microbial or decomposition rate which will not
reheat or cause odors when put into storage and that has been put
through a separate aerated curing cycle stage of thirty to sixty
days after an initial composting cycle or compost which meets all
regulatory requirements after the initial composting cycle.
(13) "Director" means the director of the division of
environmental protection or such other person to whom the director
has delegated authority or duties pursuant to article one of this
chapter.
(14) (13) "Division" "Department" means the division
Department of Environmental Protection.
(15) (14) "Energy recovery incinerator" means any solid waste
facility at which solid wastes are incinerated with the intention
of using the resulting energy for the generation of steam,
electricity or any other use not specified herein.
(16) (15) "Incineration technologies" means any technology that uses controlled flame combustion to thermally break down solid
waste, including refuse-derived fuel, to an ash residue that
contains little or no combustible materials, regardless of whether
the purpose is processing, disposal, electric or steam generation
or any other method by which solid waste is incinerated.
(17) (16) "Incinerator" means an enclosed device using
controlled flame combustion to thermally break down solid waste,
including refuse-derived fuel, to an ash residue that contains
little or no combustible materials.
(18) (17) "Landfill" means any solid waste facility for the
disposal of solid waste on or in the land for the purpose of
permanent disposal. Such facility is situated, for purposes of
this article, in the county where the majority of the spatial area
of such facility is located.
(19) (18) "Materials recovery facility" means any solid waste
facility at which source-separated materials or materials recovered
through a mixed waste processing facility are manually or
mechanically shredded or separated for purposes of reuse and
recycling, but does not include a composting facility.
(20) (19) "Mature compost" means compost which has been
produced in an aerobic, microbial, thermophilic manner and does not
exhibit phytotoxic effects.
(21) (20) "Mixed solid waste" means solid waste from which
materials sought to be reused or recycled have not been source-
separated from general solid waste.
(22) (21) "Mixed waste processing facility" means any solid waste facility at which materials are recovered from mixed solid
waste through manual or mechanical means for purposes of reuse,
recycling or composting.
(23) (22) "Municipal solid waste incineration" means the
burning of any solid waste collected by any municipal or
residential solid waste disposal company.
(24) (23) "Open dump" means any solid waste disposal which
does not have a permit under this article, or is in violation of
state law, or where solid waste is disposed in a manner that does
not protect the environment.
(25) (24) "Person" or "persons" means any industrial user,
public or private corporation, institution, association, firm or
company organized or existing under the laws of this or any other
state or country; state of West Virginia; governmental agency,
including federal facilities; political subdivision; county
commission; municipal corporation; industry; sanitary district;
public service district; drainage district; soil conservation
district; watershed improvement district; partnership; trust;
estate; person or individual; group of persons or individuals
acting individually or as a group; or any legal entity whatever.
(26) (25) "Publicly owned treatment works" means any treatment
works owned by the state or any political subdivision thereof, any
municipality or any other public entity which processes raw
domestic, industrial or municipal sewage by any artificial or
natural processes in order to remove or so alter constituents as to
render the waste less offensive or dangerous to the public health, comfort or property of any of the inhabitants of this state before
the discharge of the plant effluent into any of the waters of this
state, and which produces sewage sludge.
(27) (26) "Recycling facility" means any solid waste facility
for the purpose of recycling at which neither land disposal nor
biological, chemical or thermal transformation of solid waste
occurs: Provided, That mixed waste recovery facilities, sludge
processing facilities and composting facilities are not considered
recycling facilities nor considered to be reusing or recycling
solid waste within the meaning of this article, article fifteen-a
of this chapter and article four, chapter twenty-two-c and article
eleven, chapter twenty of this code.
(28) (27) "Sewage sludge" means solid, semisolid or liquid
residue generated during the treatment of domestic sewage in a
treatment works. Sewage sludge includes, but is not limited to,
domestic septage, scum or solids removed in primary, secondary or
advanced wastewater treatment processes and a material derived from
sewage sludge. "Sewage sludge" does not include ash generated
during the firing of sewage sludge in a sewage sludge incinerator.
(28) "Secretary" means the Secretary of the Department of
Environmental Protection or such other person to whom the Secretary
has delegated authority or duties pursuant to article one of this
chapter.
(29) "Sewage sludge processing facility" is a solid waste
facility that processes sewage sludge for: (A) Land application;
(B) incineration; or (C) disposal at an approved landfill. Such processes include, but are not limited to, composting, lime
stabilization, thermophilic, microbial and anaerobic digestion.
(30) "Sludge" means any solid, semisolid, residue or
precipitate, separated from or created by a municipal, commercial
or industrial waste treatment plant, water supply treatment plant
or air pollution control facility or any other such waste having
similar origin.
(31) "Solid waste" means any garbage, paper, litter, refuse,
cans, bottles, waste processed for the express purpose of
incineration; sludge from a waste treatment plant; water supply
treatment plant or air pollution control facility; and other
discarded materials, including offensive or unsightly matter,
solid, liquid, semisolid or contained liquid or gaseous material
resulting from industrial, commercial, mining or community
activities but does not include solid or dissolved material in
sewage or solid or dissolved materials in irrigation return flows
or industrial discharges which are point sources and have permits
under article five-a of this chapter, or source, special nuclear or
byproduct material as defined by the Atomic Energy Act of 1954, as
amended, including any nuclear or byproduct material considered by
federal standards to be below regulatory concern, or a hazardous
waste either identified or listed under article five-e of this
chapter or refuse, slurry, overburden or other wastes or material
resulting from coal-fired electric power or steam generation, the
exploration, development, production, storage and recovery of coal,
oil and gas and other mineral resources placed or disposed of at a facility which is regulated under chapter twenty-two, twenty-two-a
or twenty-two-b of this code, so long as such placement or disposal
is in conformance with a permit issued pursuant to such chapters.
(32) "Solid waste disposal" means the practice of disposing of
solid waste including placing, depositing, dumping or throwing or
causing any solid waste to be placed, deposited, dumped or thrown.
(33) "Solid waste disposal shed" means the geographical area
which the solid waste management board designates and files in the
state register pursuant to section eight, article twenty-six,
chapter sixteen of this code.
(34) "Solid waste facility" means any system, facility, land,
contiguous land, improvements on the land, structures or other
appurtenances or methods used for processing, recycling or
disposing of solid waste, including landfills, transfer stations,
materials recovery facilities, mixed waste processing facilities,
sewage sludge processing facilities, commercial composting
facilities and other such facilities not herein specified, but not
including land upon which sewage sludge is applied in accordance
with section twenty of this article. Such facility shall be deemed
to be situated, for purposes of this article, in the county where
the majority of the spatial area of such facility is located:
Provided, That a salvage yard, licensed and regulated pursuant to
the terms of article twenty-three, chapter seventeen of this code,
is not a solid waste facility.
(35) "Solid waste facility operator" means any person or
persons possessing or exercising operational, managerial or financial control over a commercial solid waste facility, whether
or not such person holds a certificate of convenience and necessity
or a permit for such facility.
(36) "Source-separated materials" means materials separated
from general solid waste at the point of origin for the purpose of
reuse and recycling but does not mean sewage sludge.
§22-15-21. Waste tire management.
(a) No person, except those persons who have received and
maintained a valid permit or license from the state for the
operation of a solid waste facility, waste tire monofill, waste
tire processing facility, or other such permitted activities, shall
accumulate waste tires without obtaining a license or permit from
the division: Provided, That persons who use waste tires for
beneficial uses may in the discretion of the director Secretary of
the division Department of Environmental Protection accumulate
waste tires without a permit.
(b) No person shall 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
Department for such disposal or usage.
(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 or license to accept
waste tires.
(d) No person shall engage in the open burning of waste tires.
(e) Persons who violate this article are subject to all enforcement actions available to the director Secretary under the
provisions of section fifteen, article fifteen, chapter twenty-two
of this code.
(f) Except as otherwise provided in subsection (g) of this
section, each retailer is required to accept one tire of comparable
size for each new tire sold at retail. The retailer may charge a
disposal fee to cover the actual costs of lawful waste tire
disposal. No retail tire dealer may deliver any waste tire, or
part thereof, to a person not authorized by the state of West
Virginia to transport or accept waste tires.
(g) 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 division Department,
acknowledging that he or she is retaining the waste 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 for three
years. 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 or sign a waiver.
(h) Each tire retailer shall post in a conspicuous place a
written notice, provided by the division Department, 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 authorizes us to charge you no more than the
actual cost of disposal of your waste tires even if you do not
leave your tires with us."
(3) "It is a crime to burn, bury, abandon or throw away waste
tires without authorization and or permits from the Division
Department of Environmental Protection."
This notice must be at least eight and one-half inches wide
and eleven inches high.
(i) Solid waste facilities shall accept whole waste tires and
may charge a reasonable fee for acceptance of waste tires. All
waste tires except those disposed of in a landfill shall be
excluded from the calculation of monthly tonnage limits and from
any solid waste disposal assessment fees imposed by section five-a,
article eleven, chapter twenty nineteen, article fifteen-a, chapter
twenty-two; 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.
(j) Solid waste facilities shall accept and dispose of whole
tires from state authorized tire remediation projects. All waste
tires from state authorized tire remediation projects except those
disposed of in a landfill shall be excluded from the calculation of
monthly tonnage limits and from any solid waste disposal assessment
fees imposed by section five-a, article eleven, chapter twenty section nineteen, article fifteen-a, chapter twenty-two; 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. For state-sponsored tire
remediation projects, the state may negotiate with the solid waste
facility for rates and charges for the disposal of waste tires
regardless of the rates and charges established by the public
service commission pursuant to article one, chapter twenty-four of
this code: Provided, That the disposal of whole tires in a solid
waste facility is allowed only when the division of highways or the
division Department of Environmental Protection has determined
there is no other reasonable alternative available.
(k) The division Department shall propose for legislative
promulgation emergency and legislative rules to effectuate the
purposes of this section.
ARTICLE 15A. REHABILITATION ENVIRONMENTAL ACTION PLAN.
§22-15A-1. Legislative findings and purpose.
(a) The Legislature finds that litter is a public nuisance and
distracts from the beauty of the state and its natural resources.
It is therefore necessary to establish and implement a litter
control program to coordinate public and private litter control
efforts; to establish penalties for littering; to provide for
litter pickup programs; to create education programs; and to
provide assistance to local solid waste authority litter control
efforts.
(b) The Legislature further finds that the improper management of commercial and residential solid waste and the unlawful disposal
of such waste creates open dumps that adversely impacts the state's
natural resources, public water supplies and the public health,
safety and welfare of the citizens of the state. It is therefore
necessary to establish a program to promote pollution prevention
and to eliminate and remediate open dumps.
(c) The Legislature further finds that waste tire piles are a
direct product of state citizens use and enjoyment of state roads
and highways and proper tire waste disposal is a necessary
component of maintenance of the transportation system. The
accumulation of waste tires has also become a significant
environmental and public health hazard to the state and the
location and number of waste tires are directly related to the
efficiency of travel, by citizens, visitors and of commerce, along
public highways in West Virginia. In particular, the Legislature
recognizes that waste tires are widespread in location and in
number throughout the state; waste tires physically touch and
concern public highways, including, but not limited to, state
roads, county roads, park roads, secondary routes and orphan roads,
all of which interferes with the efficiency of public highways; and
further that the existence of waste tires along and near public
highways is sometimes accompanied by other hazards and, in turn,
adversely impacts the proper maintenance and efficiency of public
highways for citizens.
(d) The Legislature also recognizes and declares that waste
tires are a public nuisance and hazard; that waste tires serve as harborage and breeding places for rodents, mosquitoes, fleas, ticks
and other insects and pests injurious to the public health, safety
and general welfare; that waste tires collected in large piles pose
an excessive risk to public health, safety and welfare from disease
or fire; that the environmental, economic and societal damage
resulting from fires in waste tire piles can be avoided by removing
the piles; and that tire pile fires cause extensive pollution of
the air and surface and groundwater for miles downwind and
downstream from the fire.
(e) Therefore, in view of the findings relating to waste
tires, the Legislature declares it to be the public policy of the
State of West Virginia to eliminate the present danger resulting
from discarded or abandoned waste tires and to eliminate the visual
pollution resulting from waste tire piles and that in order to
provide for the public health, safety and welfare, quality of life
and to reverse the adverse impacts to the proper maintenance and
efficiency of public highways, it is necessary to enact legislation
to those ends by providing expeditious means and methods for
effecting the disposal of waste tires.
(f) The Legislature finds that many citizens desire a
recycling program in order to conserve limited natural resources,
reduce litter, recycle valuable materials, extend the useful life
of solid waste landfills, reduce the need for new landfills, and
create markets for recyclable materials. It is therefore necessary
to establish goals for recycling solid waste; to require certain
municipalities to implement recycling programs; to authorize counties to adopt comprehensive recycling programs; to encourage
source separation of solid waste; to increase the purchase of
recycled products by the various agencies and instrumentalities of
government; and to educate the public concerning the benefits of
recycling.
(g) The Legislature finds that the effectiveness of litter
control, open dump, tire cleanup programs and recycling programs
have been made less efficient by fragmented implementation of the
various programs by different agencies. It is therefore necessary
to coordinate all such programs under one program managed by the
Department to ensure that all current and future litter, open dump,
waste tire and recycling issues are managed and addressed
efficiently and effectively.
(h) This article implements the Rehabilitation Environmental
Action Plan, a coordinated effort to address litter, waste, open
dump, tire cleanup and recycling programs.
§22-15A-2. Definitions.
Unless the context clearly indicates a different meaning or
defined elsewhere in this chapter, as used in this article:
(1) "Beneficial use" means the use or reuse of whole waste
tires or tire derived material which are reused in constructing
retaining walls, rebuilding highway shoulders and subbase, building
highway crash attenuation barriers, feed hopper or watering troughs
for livestock, other agricultural uses approved by the Department
of Environmental Protection, playground equipment, boat or truck
dock construction, house or building construction, go-cart, motorbike or race track barriers, 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 Secretary of the Department of
Environmental Protection, is put at risk.
(2) "Collected for commercial purposes" means taking solid
waste for disposal from any person for remuneration regardless of
whether or not the person taking the solid waste is a common
carrier by motor vehicle governed by article two, chapter
twenty-four-a of this code.
(3) "Court" means any circuit, magistrate or municipal court.
(4) "Department" means the Department of Environmental
Protection.
(5) "Litter" means all waste material including, but not
limited to, any garbage, refuse, trash, disposable package,
container, can, bottle, paper, ashes, cigarette or cigar butt,
carcass of any dead animal or any part thereof, or any other
offensive or unsightly matter, but not including the wastes of
primary processes of mining, logging, sawmilling, farming or
manufacturing.
(6) "Litter receptacle" means those containers suitable for
the depositing of litter at each respective public area designated
by the Secretary's rules promulgated pursuant to subsection (c),
section three of this article.
(7) "Person" means a natural person, corporation, firm, partnership, association or society, and the plural as well as the
singular.
(8) "Public area" means an area outside of a municipality,
including public road and highway rights-of-way, parks and
recreation areas owned or controlled by this state or any county of
this state, or an area held open for unrestricted access by the
general public.
(9) "Remediate or Remediation" means to remove all litter,
solid waste, and tires located above grade at a site: Provided,
That remediation does not include clean up of hazardous waste.
(10) "Secretary" means the Secretary of the Department of
Environmental Protection.
(11) "Waste tire" means any continuous solid or pneumatic
rubber covering designed to encircle the wheel of a vehicle but
which 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.
(12) "Waste tire monofill or monofill" means an approved solid
waste facility where no solid waste except waste tires are placed
for the purpose of long term storage for eventual retrieval for
marketing purposes.
(13) "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, pyroprossing
cutting, splitting, shredding, quartering, grinding or otherwise
breaking down waste tires for the purposes of disposal, reuse,
recycling and/or marketing.
(14) "Waters of the state" means generally, without
limitation, natural or artificial lakes, rivers, streams, creeks,
branches, brooks, ponds, impounding reservoirs, springs, wells,
watercourses and wetlands.
§22-15A-3. West Virginia litter control and recycling programs;
transfer of programs and employees; additional duties
of Secretary; grants to counties and municipalities;
and rules relating thereto.
(a) On and after the first day of July, two thousand five ,
the litter control and recycling programs heretofore operated and
managed by the Division of Natural Resources shall transfer to the
Department of Environmental Protection.
With the transfer of the West Virginia Litter Control and
Recycling Programs from the jurisdiction of the Division of Natural
Resources to the jurisdiction of the Department of Environmental
Protection, all records, assets and contracts, along with rights
and obligations thereunder, obtained or signed on behalf of the
Litter Control and Recycling Programs are hereby transferred and
assigned to the Department of Environmental Protection.
(b) The Commissioner of the Division of Natural Resources and
the Secretary of the Department of Environmental Protection shall
determine which employees of the Division of Natural Resources will
be transferred to the Department of Environmental Protection. All
employees including administrators of the litter control and
recycling programs are subject to being transferred to the
Department of Environmental Protection. Employees in the
classified service who have gained permanent status as of the
effective date of this article, enacted during the two thousand
five regular session of the Legislature, will not be subject to
further qualifying examination in their respective classifications
by reason of the transfer required by the provisions of this
section. Nothing contained in this section may be construed to
either abridge the rights of employees within the classified
service of the state to the procedures and protections set forth in
article six, chapter twenty-nine of this code or to preclude the
reclassification or reallocation of positions in accordance with
procedures set forth in said article. The Division of Personnel
shall work with the Commission and Secretary to efficiently
transfer employees from the Division of Natural Resources to the
Department of Environmental Protection.
(c) In addition to all other powers, duties and
responsibilities granted and assigned to the Secretary of the
Department of Environmental Protection in this chapter and
elsewhere by law, the Secretary, in the administration of the West
Virginia litter control program created by this section, shall:
(1) Coordinate all industry and business organizations seeking
to aid in the litter control and recycling effort;
(2) Cooperate with all local governments to accomplish
coordination of local litter control and recycling efforts;
(3) Encourage, organize, coordinate and increase public
awareness of and participation in all voluntary litter control and
recycling campaigns, including citizen litter watch programs,
seeking to focus the attention of the public on the litter control
and recycling programs of the state and local governments and of
private recycling centers;
(4) Recommend to local governing bodies that they adopt
ordinances similar to the provisions of section four of this
article;
(5) Investigate the methods and success of techniques of
litter control, removal and disposal utilized in other states, and
develop, encourage, organize and coordinate local litter control
programs funded by grants awarded pursuant to subsection (b) of
this section utilizing such successful techniques;
(6) Investigate the availability of, and apply for, funds
available from any and all private or public sources to be used in
the litter control program created by this section;
(7) Attract to the state persons or industries that purchase,
process or use recyclable materials; and
(8) Contract for the development, production and broadcast of
radio and television messages promoting the West Virginia litter
control program. The messages should increase public awareness of and promote citizen responsibility toward the reduction of litter.
(d) All authority to promulgate rules pursuant to article
three, chapter twenty-nine-a of this code establishing criteria for
awarding direct or matching grants for the study of available
research and development in the fields of litter control, removal
and disposal, methods for the implementation of such research and
development, and the development of public educational programs
concerning litter control is hereby transferred from the Division
of Natural Resources to the Secretary of the Department of
Environmental Protection as of the effective date of enactment of
this section and article during the two thousand five session of
the Legislature: Provided, That any rule promulgated by the
Division of Natural Resources relating to such grants shall remain
in force and effect as though promulgated by the Department of
Environmental Protection until the Secretary amends the rules in
accordance with the provisions of article three, chapter twenty-
nine-a of this code.
(e) All authority to promulgate rules pursuant to article
three, chapter twenty-nine-a of this code designating public areas
where litter receptacles shall be placed and the minimum number of
litter receptacles in accordance with subsection (d), section four
of this article is hereby transferred from the Division of Natural
Resources to the Secretary of the Department of Environmental
Protection as of the effective date of enactment of this section
and article during the two thousand five session of the
Legislature. Any rule promulgated by the Division of Natural Resources relating to littering receptacles shall remain in effect
as if promulgated by the Secretary until amended by the Secretary.
(f) Commencing on the first day of July, two thousand five,
the Secretary shall expend annually at least fifty percent of the
moneys credited to the Litter Control Fund in the previous fiscal
year for matching grants to counties and municipalities for the
initiation and administration of litter control programs. The
Secretary shall promulgate rules pursuant to article three, chapter
twenty-nine-a of this code establishing criteria for the awarding
of matching grants.
(g) The Secretary of the Department of Environmental
Protection in Cooperation with the Commissioner of Highways, the
Department of Commerce, the West Virginia State Police, the United
States Forestry Service and other local, state and federal
law-enforcement agencies shall be responsible for the
administration and enforcement of all laws and rules relating to
the maintenance of cleanliness and improvement of appearances on
and along highways, roads, streets, alleys and any other private or
public areas of the state. These other agencies shall make
recommendations to the Secretary, from time to time, concerning
means and methods of accomplishing litter control consistent with
the provisions of this chapter. Such cooperation shall include,
but not be limited to, contracts with the Commissioner of Highways
to operate a litter control program.
(h) All other state agencies and local governments shall
cooperate with the Secretary in effecting the purposes of the litter control program.
§22-15A-4. Unlawful disposal of litter; civil and criminal
penalty; litter control fund; evidence; notice
violations; litter receptacle placement; penalty;
duty to enforce violations.
(a) (1) No person shall place, deposit, dump, throw or cause
to be placed, deposited, dumped or thrown any litter as defined in
section two of this article, in or upon any public or private
highway, road, street or alley; any private property; any public
property; or the waters of the state or within one hundred feet of
the waters of this state, except in a proper litter or other solid
waste receptacle.
(2) It is unlawful for any person to place, deposit, dump,
throw or cause to be placed, deposited, dumped or thrown any litter
from a motor vehicle or other conveyance or to perform any act
which constitutes a violation of the motor vehicle laws contained
in section fourteen, article fourteen, chapter seventeen-c of this
code.
(3) If any litter is placed, deposited, dumped, discharged,
thrown or caused to be placed, deposited, dumped or thrown from a
motor vehicle, boat, airplane or other conveyance, it is prima
facie evidence that the owner or the operator of the motor vehicle,
boat, airplane or other conveyance intended to violate the
provisions of this section.
(4) Any person who violates the provisions of this section by
placing, depositing, dumping or throwing or causing to be placed, deposited, dumped or thrown any litter, not collected for
commercial purposes, in an amount not exceeding one hundred pounds
in weight or twenty-seven cubic feet in size, is guilty of a
misdemeanor. Upon conviction, he or she is subject to a fine of
not less than fifty dollars nor more than one thousand dollars, or
in the discretion of the court, sentenced to perform community
service by cleaning up litter from any public highway, road,
street, alley or any other public park or public property, or
waters of the state, as designated by the court, for not less than
eight nor more than sixteen hours, or both.
(5) Any person who violates the provisions of this section by
placing, depositing, dumping or throwing or causing to be placed,
deposited, dumped or thrown any litter, not collected for
commercial purposes, in an amount greater than one hundred pounds
in weight or twenty-seven cubic feet in size, but less than five
hundred pounds in weight or two hundred sixteen cubic feet in size
is guilty of a misdemeanor. Upon conviction he or she is subject
to a fine of not less than five hundred dollars nor more than two
thousand dollars, or in the discretion of the court, may be
sentenced to perform community service by cleaning up litter from
any public highway, road, street, alley or any other public park or
public property, or waters of the state, as designated by the
court, for not less than sixteen nor more than thirty-two hours, or
both.
(6) Any person who violates the provisions of this section by
placing, depositing, dumping or throwing or causing to be placed, deposited, dumped or thrown any litter in an amount greater than
five hundred pounds in weight or two hundred sixteen cubic feet in
size or any amount which had been collected for commercial
purposes, is guilty of a misdemeanor. Upon conviction the person
is subject to a fine not less than twenty-five hundred dollars or
not more than twenty-five thousand dollars, or confinement in a
county or regional jail for not more than one year or both. In
addition, the violator may be guilty of creating or contributing to
an open dump as defined in section two, article fifteen, chapter
twenty-two of this code and subject to the enforcement provisions
of section fifteen of said article.
(7) Any person convicted of a second or subsequent violation
of this section is subject to double the authorized range of fines
and community service for the subsection violated.
(8) The sentence of litter cleanup shall be verified by
environmental inspectors from the Department of Environmental
Protection. Any defendant receiving the sentence of litter cleanup
shall provide, within a time to be set by the court, written
acknowledgment from an environmental inspector that the sentence
has been completed and the litter has been disposed of lawfully.
(9) Any person who has been found by the court to have
willfully failed to comply with the terms of a litter cleanup
sentence imposed by the court pursuant to this section is subject
to, at the discretion of the court, double the amount of the
original fines and community service penalties originally ordered
by the court.
(10) All law-enforcement agencies, officers and environmental
inspectors shall enforce compliance with this section within the
limits of each agency's statutory authority.
(11) No portion of this section restricts an owner, renter or
lessee in the lawful use of his or her own private property or
rented or leased property or to prohibit the disposal of any
industrial and other wastes into waters of this state in a manner
consistent with the provisions of article eleven, chapter
twenty-two of this code. But if any owner, renter or lessee,
private or otherwise, knowingly permits any such materials or
substances to be placed, deposited, dumped or thrown in such
location that high water or normal drainage conditions will cause
any such materials or substances to wash into any waters of the
state, it is prima facie evidence that the owner, renter or lessee
intended to violate the provisions of this section: Provided, That
if a landowner, renter or lessee, private or otherwise, reports any
placing, depositing, dumping or throwing of these substances or
materials upon his or her property to the prosecuting attorney,
county commission, the Division of Natural Resources or the
Department of Environmental Protection, the landowner, renter or
lessee will be presumed to not have knowingly permitted the
placing, depositing, dumping or throwing of the materials or
substances.
(b) Any indication of ownership found in litter shall be prima
facie evidence that the person identified violated the provisions
of this section: Provided, That no inference may be drawn solely from the presence of any logo, trademark, trade name or other
similar mass reproduced things of identifying character appearing
on the found litter.
(c) Every person who is convicted of or pleads guilty to
disposing of litter in violation of subsection (a) of this section
shall pay a civil penalty in the sum of not less than one hundred
dollars nor more than one thousand dollars as costs for cleanup,
investigation and prosecution of the case, in addition to any other
court costs that the court is otherwise required by law to impose
upon a convicted person.
The clerk of the circuit court, magistrate court or municipal
court in which these additional costs are imposed shall, on or
before the last day of each month, transmit fifty percent of a
civil penalty received pursuant to this section to the State
Treasurer for deposit in the State Treasury to the credit of a
special revenue fund to be known as the Litter Control Fund which
is hereby continued and transferred to the Department of
Environmental Protection. Expenditures for purposes set forth in
this section are not authorized from collections but are to be made
only in accordance with appropriation and in accordance with the
provisions of article three, chapter twelve of this code and upon
fulfillment of the provisions set forth in article two, chapter
five-a of this code. Amounts collected which are found from time
to time to exceed the funds needed for the purposes set forth in
this article may be transferred to other accounts or funds and
designated for other purposes by appropriation of the Legislature.
(d) The remaining fifty percent of each civil penalty
collected pursuant to this section shall be transmitted to the
county or regional solid waste authority in the county where the
litter violation occurred. Moneys shall be expended by the county
or regional solid waste authority for the purpose of litter
prevention, cleanup and enforcement. The county commission shall
cooperate with the county or regional solid waste authority serving
the respective county to develop a coordinated litter control
program pursuant to section eight, article four, chapter
twenty-two-c of this code.
(e) The Commissioner of the Division of Motor Vehicles, upon
registering a motor vehicle or issuing an operator's or chauffeur's
license, shall issue to the owner or licensee, as the case may be,
a summary of this section and section fourteen, article fourteen,
chapter seventeen-c of the code.
(f) The Commissioner of the Division of Highways shall cause
appropriate signs to be placed at the state boundary on each
primary and secondary road, and at other locations throughout the
state, informing those entering the state of the maximum penalty
provided for disposing of litter in violation of subsection (a) of
this section.
(g) Any state agency or political subdivision that owns,
operates or otherwise controls any public area as may be designated
by the Secretary by rule promulgated pursuant to subdivision (8),
subsection (a), section three of this article shall procure and
place litter receptacles at its own expense upon its premises and shall remove and dispose of litter collected in the litter
receptacles. After receiving two written warnings from any
law-enforcement officer or officers to comply with this subsection
or the rules of the Secretary, any state agency or political
subdivision that fails to place and maintain the litter receptacles
upon its premises in violation of this subsection or the rules of
the Secretary shall be fined fifteen dollars per day of the
violation.
§22-15A-5. Litter pickup and removal; education; government
recycling responsibilities; monitoring and
evaluation; study commission; repeal; report to
Legislature.
(a) Litter pickup and removal. -
(1) Each county commission and the Regional Jail Authority may
establish a jail or prison inmate program including a regular
litter pickup work regimen under proper supervision pursuant to
section four, article fifteen, chapter seventeen of this code.
Funding for these programs shall be from the Litter Control Fund.
Funding requirements may include salaries for additional personnel
needed for the program. The program may include the cooperative
help of the Division of Highways or any other voluntary state,
local, private, civic or public agency for personnel, equipment, or
materials in establishing a county or region-wide, continual
program of inmate litter pickup. Upon final approval of the
projected cost of the program for a given fiscal year, the
Secretary shall disburse the approved amount to the county or Regional Jail Authority. The funds will be used by the Authority
to reimburse the county commission or Regional Jail Authority for
its expenses related to the program and to pay other costs related
to the use of inmates for litter pickup. Nothing contained herein
shall preclude a county or counties from expending whatever
additional funds its commission or commissions may deem appropriate
from any other revenue source in furtherance of said program.
(2) All persons involved with litter pickup may separate
identifiable recyclable materials from other litter collected. The
funds resulting from the sale of those recyclable materials shall
be returned to the Litter Control Fund.
(3) The county or regional solid waste authority may also
contract with local governments, civic organizations or chief
correctional officers in any county to implement litter pickup and
removal pursuant to this act when the state offender work force is
not available. In such cases, the contract provisions shall
require that identifiable recyclable materials shall be separated
from other litter collected, with resulting funds returned to the
Litter Control Fund. Priority shall be given to those contracts
that maximize the use of community service hours by inmates and
youth employment programs.
(b) Education. -
(1) The Department of Education in cooperation with the
Department of Environmental Protection shall distribute educational
materials to the schools based on the goals of litter clean up and
proper solid waste disposal, the rationale for the goals and how primary and secondary school students can contribute to the
achievement of the goals. The Department of Education shall
further incorporate this information into the curriculum of the
public school system as appropriate.
(2) The Division of Highways and local governments shall
conduct public awareness programs to notify the public of the
provisions of this law and how they can participate, to inform them
as to the rationale behind the provisions of this law, to advise
them of other avenues for achievement of the noted goals and to
encourage their participation.
(3) The Department of Environmental Protection and the Solid
Waste Management Board shall provide technical assistance to local
governments in the implementation of this law.
(c) Government recycling responsibilities. -
(1) All state agencies and regional planning councils may
establish and implement aluminum container, glass and paper
recycling programs at their public facilities. To the extent
practicable, programs for other metals, plastics, rubber and other
recyclable materials may be established and implemented. The
moneys collected from the sale of such materials shall be deposited
and accounted for in the Litter Control Fund pursuant to the
authority of section four of this article.
(2) To further promote recycling and reduction of the waste
stream, county and municipal governments shall consider the
establishment of recycling programs as provided in this section in
the operation of their facilities and shall evaluate the cost-effectiveness of:
(A) Procedures that separate identifiable recyclable materials
from solid waste collected; and
(B) Programs that provide for:
(i) The establishment of a collection place for recyclables at
all landfills and other interim solid waste collection sites and
arrangements for the material collected to be recycled;
(ii) Public notification of such places and encouragement to
participate;
(iii) The use of rate differentials at landfills to facilitate
public participation in on-site recycling programs.
(d) Each affected agency and local government shall monitor
and evaluate the programs implemented pursuant to this law.
(e) The Secretary shall submit a report to the Speaker of the
House and the President of the Senate not later than the first day
of March, two thousand six, and every five years thereafter
regarding the effectiveness of the programs authorized by this law.
§22-15A-6. Assistance to solid waste authorities.
The Secretary may expend funds from the Litter Control Fund
established pursuant to section four of this article to assist
county and regional solid waste authorities in the formulation of
their comprehensive litter and solid waste control plans pursuant
to section eight, article four, chapter twenty-two-c of this code
and in the construction and maintenance of approved commercial
solid waste facilities authorities which would in the opinion of
the Secretary be unable to construct or maintain an approved commercial solid waste facility without grant funds.
§22-15A-7. Pollution prevention and open dumps.
(a) The Secretary shall establish the Pollution Prevention and
Open Dump (PPOD) Program to encourage the proper disposal of
commercial and residential solid waste and to undertake all
reclamation, cleanup and remedial actions necessary to minimize or
mitigate damage to the environment, natural resources, public water
supplies, water resources and the public health, safety and welfare
which may result from open dumps or solid waste not disposed of in
a proper or lawful manner. The program shall seek to eliminate
open dumps, which often include waste tires and to recycle as many
items as possible from these reclamation efforts. This program
shall be funded through the Solid Waste Reclamation and
Environmental Response Fund established in section eleven, article
fifteen of this chapter.
(b) Authorized representatives of the Department have the
right, upon presentation of proper identification, to enter upon
any property for the purpose of conducting studies or exploratory
work to determine the existence of adverse effects of an open dump,
to determine the feasibility of the reclamation or prevention of
such adverse effects and to conduct reclamation activities provided
herein. Such entry is an exercise of the police power of the state
and for the protection of public health, safety and general welfare
and is not an act of condemnation of property or trespass thereon.
Nothing contained in this section eliminates any obligation to
follow any process that may be required by law.
§22-15A-8. Waste tires prohibited in certain places; penalty.
The Waste Tire Remediation Program heretofore under the
jurisdiction of the Division of Highways is transferred to the
Department of Environmental Protection effective upon enactment of
this article by the Legislature during the regular session of two
thousand five.
(a) No person shall, within this state, place, deposit or
abandon any waste tire or part thereof upon the right-of-way of any
public highway or upon any other public property nor deposit or
abandon any waste tire or part thereof upon any private property
unless it is at a licensed monofill, solid waste facility or at any
other business authorized by the Department of Environmental
Protection to accept, process, manufacture or remanufacture waste
tires: Provided, That the Secretary may temporarily accumulate as
many waste tires as he or she deems necessary at any location or
locations necessary to effectuate the purposes of this article.
(b) No person, except those persons who have received and
maintain a valid permit or license from the state for the operation
of a solid waste facility, waste tire monofill, waste tire
processing facility, or other such permitted activities, shall
accumulate more than one hundred waste tires for beneficial use
without obtaining a license or permit from the Department of
Environmental Protection.
(c) Any person who violates any provision of this section
shall be guilty of creating an open dump and subject to enforcement
actions or prosecution under the provisions of article fifteen of this chapter.
§22-15A-9. Creation of the A. James Manchin Fund; proceeds from
sale of waste tires; fee on issuance of certificate
of title.
(a) There is continued in the State Treasury a special revenue
fund known as the A. James Manchin Fund which is transferred to the
Department of Environmental Protection upon the enactment of this
article by the Legislature during the regular session of two
thousand five. All moneys appropriated, deposited or accrued in
this Fund shall be used exclusively for remediation of waste tire
piles as required by this article for the tire disposal program
established under section ten of this article or for the purposes
of subsection (h), section ten of this article or for the purposes
of subsection (c), section eleven of this article. The Fund
consists of the proceeds from the sale of waste tires; fees
collected by the Division of Motor Vehicles as provided in section
sixteen, article ten, chapter seventeen-a of this code; any
federal, state or private grants; legislative appropriations;
loans; and any other funding source available for waste tire
remediation. Any unprogrammed balance remaining in the Fund at the
end of any state fiscal year shall be transferred to the Solid
Waste Reclamation and Environmental Response Fund.
(b) No further collections or deposits shall be made after the
Secretary certifies to the Governor and the Legislature that the
remediation of all waste tire piles that were determined by the
Secretary to exist on the first day of July, two thousand six, has been completed and that all infrastructure bonds issued by the
Water Development Authority pursuant to section seventeen-a,
article fifteen-a, chapter thirty-one of this code have been paid
in full or legally defeased.
(c) If infrastructure bonds are not issued by the Water
Development Authority pursuant to section seventeen-a, article
fifteen-a, chapter thirty-one of this code to finance
infrastructure projects relating to waste tire processing
facilities located in this state on or before the thirty-first day
of December, two thousand six, all further collections and deposits
to the A. James Manchin Fund which are not programmed for
remediation or disposal shall be transferred to the Solid Waste
Reclamation and Environmental Response Fund at the end of each
fiscal year.
§22-15A-10. Department to administer funds for waste tire
remediation; rules authorized; duties of Secretary.
(a) The Department shall administer all funds made available
to the Department by legislative appropriation as well as federal,
state or private grants for remediation of waste tire piles and for
the proper disposal of waste tires removed from waste tire piles.
(b) All authority to promulgate legislative rules necessary to
implement the provisions of this article is hereby transferred from
the Division of Highways to the Secretary of the Department of
Environmental Protection as of the effective date of enactment of
this section and article during the two thousand five session of
the Legislature. Any legislative rules promulgated by the Commissioner of the Division of Highways in furtherance of the
waste tire remediation program established in former article
twenty-four, chapter seventeen of this code shall remain in force
and effect as if promulgated by the Secretary they are amended in
accordance with the provisions of article three, chapter twenty-
nine-a of this code.
(c) The Secretary also has the following powers:
(1) To apply and carry out the provisions of this article and
the rules promulgated under this article.
(2) To investigate, from time to time, the operation and
effect of this article and of the rules promulgated under this
article and to report his or her findings and recommendations to
the Legislature and the Governor.
(d) On or before the first day of July, two thousand six, the
Secretary shall determine the location, approximate size and
potential risk to the public of all waste tire piles in the state
and establish, in descending order, a waste tire remediation list.
(e) The Secretary may contract with the Department of Health
and Human Resources or the Division of Corrections, or both, to
remediate or assist in remediation of waste tire piles throughout
the state. Use of available Department of Health and Human
Resources and the Division of Corrections work programs shall be
given priority status in the contract process so long as such
programs prove a cost-effective method of remediating waste tire
piles.
(f) Waste tire remediation shall be stopped upon the discovery of any potentially hazardous material at a remediation site. The
Department shall respond to the discovery in accordance with the
provisions of article nineteen of this chapter.
(g) The Secretary may establish a tire disposal program within
the Department to provide for a cost effective and efficient method
to accept passenger car and light truck waste tires at locations
designated by the Department that have sufficient space for
temporary storage of waste tires and personnel to accept and handle
waste tires. The Secretary may pay a fee for each tire an
individual West Virginia resident or West Virginia business brings
to the Department. The Secretary may establish a limit on the
number of tires an individual or business may be paid for during
any calendar month. The Secretary may in his or her discretion
authorize commercial businesses to participate in the collection
program: Provided, That no person or business who has a waste tire
pile subject to remediation under this article may participate in
this program.
(h) The Secretary may pledge not more than two and one-half
million dollars annually of the moneys appropriated, deposited or
accrued in the A. James Manchin Fund created by section eleven of
this article to the payment of debt service, including the funding
of reasonable reserves, on bonds issued by the Water Development
Authority pursuant to section seventeen-a, article fifteen-a,
chapter thirty-one of this code to finance infrastructure projects
relating to waste tire processing facilities located in this state:
Provided, That a waste tire processing facility shall be determined by the Solid Waste Management Board, established pursuant to the
provisions of article three, chapter twenty-two-c of this code, to
meet all applicable federal and state environmental laws and rules
and to aid the state in efforts to promote and encourage recycling
and use of constituent component parts of waste tires in an
environmentally sound manner: Provided, however, That the waste
tire processing facility shall have a capital cost of not less than
three hundred million dollars and the council for community and
economic development shall determine that the waste tire processing
facility is a viable economic development project of benefit to the
state's economy.
§22-15A-11. Disposal of waste tires.
(a) The Department 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 Department 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 Department may sell them at any available market.
(c) If there is no market for the sale of waste tires the
Department may dispose of them in any lawful manner.
§22-15A-12. Remediation; liability for remediation and court
costs.
(a) Any person who has, prior or subsequent to the effective
date of this act, illegally disposed of waste tires or has waste
tires illegally disposed on his or her property 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 bringing civil actions under this
article.
(b) The Department 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
Department shall make and enter an order directing such person or
persons to remove and properly dispose of the waste tires. The
Department shall set a time limit for completion of the
remediation. The order shall be served by registered or certified
mail, return receipt requested, or by a county sheriff or deputy
sheriff.
(c) If the remediation is not completed within the time limit
or the person cannot be located or the person notifies the
Department that he or she is unable to comply with the order, the
Department may expend funds, as provided herein, to complete 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 or damages shall be liable at law
until such time as all costs or damages are fully paid.
(d) Authorized representatives of the Department have the right, upon presentation of proper identification, to enter upon
any property for the purpose of conducting studies or exploratory
work to determine the existence of adverse effects of a waste tire
pile, to determine the feasibility of the remediation or prevention
of such adverse effects and to conduct remediation activities
provided herein. Such entry is an exercise of the police power of
the state and for the protection of public health, safety and
general welfare and is not an act of condemnation of property or
trespass thereon. Nothing contained in this section eliminates any
obligation to follow any process that may be required by law.
(e) There is hereby created a statutory lien upon all real
property and rights to the property from which a waste tire pile
was remediated for all reclamation costs and damages incurred by
the Department. The lien created by this section shall arise at
the later of the following:
(1) The time costs are first incurred by the Department; or
(2) The time the person is provided, by certified or
registered mail or personal service, written notice as required by
this section.
The lien shall continue until the liability for the costs or
judgment against the property is satisfied.
(f) Any person, who in good faith acquired real property prior
to the first day of July, two thousand one, who did not cause,
permit or profit from the illegal disposal of waste tires on the
property is only liable for the costs of remediation to the extent
that the fair market value of the property, when remediation is completed, exceeds the fair market value of the property that
existed on the first day of July, two thousand one. The Department
shall have a cause of action against any previous owner who caused,
permitted, contributed or profited from the illegal disposal of
waste tires on the property for the difference in the amount
recovered from the purchaser and the cost of remediation.
(g) 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 and 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 Department 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.
(h) The Department may foreclose upon the premises by bringing
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.
(i) Any proceeds from any sale of property obtained as a
result of execution of a lien or judgment under this section for
remediation costs, excluding costs of obtaining judgment and
perfecting the lien, shall be deposited into the A. James Manchin
fund of the State Treasury.
(j) The provisions of this section do not apply and no lien
may attach to the right-of-way, easement or other property interest of a utility, whether electric, gas, water, sewer, telephone,
television cable or other public service, unless the utility
contributed to the illegal tire pile.
(k) Upon determining the existence of a waste tire pile, the
Department shall file a notice of the location of the waste tire
pile in the office of the county clerk in the county where property
containing a waste tire pile is situate. The Department shall
immediately file the notice for all property known to have waste
tire piles as of the day the Legislature enacted the amendment to
this section during the two thousand five legislative session. The
notice shall contain the property owner's name, a location and
description of the property and the waste tire pile and the
potential liability for remediation. The county clerk shall record
the notice in the same manner as a lien and index the notice by the
name of the property owner.
§22-15A-13. Injunctive relief; additional remedy.
In addition to all other remedies provided in this article,
the Attorney General of this state, the Department, the prosecuting
attorney of any county where any violation of any provision of this
article occurs, or any citizen, resident or taxpayer of the county
where any violation of any provision of this article occurs, may
apply to the circuit court, or the judge thereof in vacation, of
the county where the alleged violation occurred, for an injunction
to restrain, prevent or abate the maintenance and storage of waste
tires in violation of any provision of this article, or the
violation of any other provision of this article. In seeking an injunction, it is not necessary for the Secretary or any state
agency seeking an injunction under this section to post bond.
§22-15A-14. Authority of Commissioner of Bureau of Public Health.
Although the Secretary is primarily responsible for
remediation of waste tire piles under the provisions of this
article, the Commissioner of the Bureau for Public Health may
enforce the public health laws in any instance where the
Commissioner of the Bureau for Public Health determines there is an
imminent and substantial endangerment to the public health.
§22-15A-15. Continuation of waste tire remediation program.
The waste tire remediation program shall continue to exist,
pursuant to the provisions of article ten, chapter four of this
code, until the first day of July, two thousand six, unless sooner
terminated, continued or reestablished pursuant to the provisions
of that article.
§22-15A-16. Recycling goals.
By the first day of January, two thousand ten, it is the goal
of this state to reduce the disposal of municipal solid waste by
fifty percent of the amount of per capita solid waste disposed of
in one thousand nine hundred ninety-one.
§22-15A-17. Recycling plans.
(a) Each county or regional solid waste authority, as part of
the comprehensive litter and solid waste control plan required
pursuant to the provisions of section eight, article four, chapter
twenty-two-c of this code, shall prepare and adopt a comprehensive
recycling plan to assist in the implementation of the recycling goals in section three of this article.
(b) Each recycling plan required by this section shall
include, but not be limited to:
(1) Designation of the recyclable materials that can be most
effectively source separated in the region or county, which shall
include at least three recyclable materials; and
(2) Designation of potential strategies for the collection,
marketing and disposition of designated source separated recyclable
materials in each region or county.
§22-15A-18. Establishment of county recycling programs for solid
waste; petition for referendum; ballot contents;
election procedure; effect of such election.
(a) On or before the eighteenth day of October, one thousand
nine hundred ninety-two, each municipality described in subsection
(b) of this section shall submit a proposal to the Solid Waste
Management Board, consistent with the provisions of this section,
describing the establishment and implementation of the mandatory
recycling program. The Solid Waste Management Board shall review
the submitted plans for consistency with the criteria provided in
this section, the county or regional solid waste management plan
and the statewide management plan. The Solid Waste Management
Board may make suggested changes to the plan and shall provide
technical assistance to the municipalities in the development of
the plans.
(b) On or before the eighteenth day of October, one thousand
nine hundred ninety-three, each municipality with a population of ten thousand or more people, as determined by the most recent
decennial census by the Bureau of the Census of the United States
Department of Commerce, shall establish and commence implementation
of a source separation and curbside collection program for
recyclable materials. Implementation shall be phased in by the
first day of July, one thousand nine hundred ninety-five. Such
program shall include, at a minimum, the following:
(1) An ordinance adopted by the governing body of the
municipality requiring that each person, partnership, corporation
or other entity in the municipality shall separate at least three
recyclable materials, as deemed appropriate by the municipality,
from other solid waste: Provided, That the list of recyclables to
be separated may be adjusted according to whether the generator is
residential, commercial or other type of establishment.
(2) A scheduled day, at least one per month, during which
separated materials are to be placed at the curbside, or similar
location, for collection.
(3) A system that collects recyclable materials from the
curbside, or similar location, at least once per month: Provided,
That to encourage full participation, the program shall, to the
maximum extent possible, provide for the collection of recyclables
at the same rate of frequency, and simultaneous with, the regular
collection of solid waste.
(4) Provisions to ensure compliance with the ordinance,
including incentives and penalties.
(5) A comprehensive public information and education program covering the importance and benefits of recycling, as well as the
specific features and requirements of the recycling program. As
part of the education program, each municipality shall, at a
minimum, notify all persons occupying residential, commercial,
institutional or other premises within its boundaries of the
requirements of the program, including how the system will operate,
the dates of collection, the responsibilities of persons within the
municipality and incentives and penalties.
(6) Consultation with the county or regional solid waste
authority in which the municipality is located to avoid
duplication, ensure coordination of solid waste programs and
maximize the market for recyclables.
(c) Notwithstanding the provisions of subsection (b) of this
section, a comprehensive recycling program for solid waste may be
established in any county of this state by action of a county
commission in accordance with the provisions of this section. Such
program shall require:
(1) That, prior to collection at its source, all solid waste
shall be segregated into separate identifiable recyclable materials
by each person, partnership, corporation and governmental agency
subscribing to a solid waste collection service in the county or
transporting solid waste to a commercial solid waste facility in
the county;
(2) Each person engaged in the commercial collection,
transportation, processing or disposal of solid waste within the
county shall accept only solid waste from which recyclable materials in accordance with the county's comprehensive recycling
program have been segregated; and
(3) That the provisions of the recycling plan prepared
pursuant to section seventeen of this article shall, to the extent
practicable, be incorporated in the county's comprehensive
recycling program.
(d) For the purposes of this article, recyclable materials
shall include, but not be limited to, steel and bimetallic cans,
aluminum, glass, paper and such other solid waste materials as may
be specified by either the municipality or county commission with
the advice of the county or regional solid waste authority.
(e) A comprehensive recycling program for solid waste may be
established in any county of this state by: (1) A petition filed
with the county commission bearing the signatures of registered
voters of the county equal to not less than five percent of the
number of votes cast within the county for Governor at the
preceding gubernatorial election; and (2) approval by a majority of
the voters in a subsequent referendum on the issue. A referendum
to determine whether it is the will of the voters of a county that
a comprehensive recycling program for solid waste be established in
the county may be held at any regular primary or general election
or in conjunction with any other countywide election. Any election
at which the question of establishing a policy of comprehensive
recycling for solid waste is voted upon shall be held at the voting
precincts established for holding primary or general elections.
All of the provisions of the general election laws, when not in conflict with the provisions of this article, shall apply to voting
and elections hereunder, insofar as practicable. The Secretary of
State shall prescribe the form of the petition which shall include
the printed name, address and date of birth of each person whose
signature appears on the petition. Upon verification of the
required number of signatures on the petition, the county
commission shall, not less than seventy days before the election,
order that the issue be placed on the ballot and referendum held at
the next primary, general or special election to determine whether
it is the will of the voters of the county that a policy of
comprehensive recycling of solid waste be established in the
county: Provided, That the petition bearing the necessary
signatures has been filed with the county commission at least one
hundred days prior to the election.
The ballot, or the ballot labels where voting machines are
used, shall have printed thereon substantially the following:
"Shall the County Commission be required to establish a
comprehensive recycling program for solid waste in __________
County, West Virginia?
? For Recycling
? Against Recycling
(Place a cross mark in the square opposite your choice.)"
If a majority of legal votes cast upon the question be for the
establishment of a policy of comprehensive recycling of solid
waste, the county commission shall, after the certification of the
results of the referendum, thereafter adopt an ordinance, within one hundred eighty days of certification, establishing a
comprehensive recycling program for solid waste in the county:
Provided, That such program shall be implemented and operational no
later than twelve months following certification. If a majority of
the legal votes cast upon the question be against the establishment
of a policy of comprehensive recycling of solid waste, the policy
shall not take effect, but the question may again be submitted to
a vote at any subsequent election in the manner herein provided.
(f) A comprehensive recycling program for solid waste
established by petition and referendum may be rescinded only
pursuant to the procedures set out herein to establish the program.
To rescind the program, the ballot, or the ballot labels where
voting machines are used, shall have printed thereon substantially
the following:
"Shall the County Commission be required to terminate the
comprehensive recycling program for solid waste in ___________
County, West Virginia?
? Continue Recycling
? End Recycling
(Place a cross mark in the square opposite your choice.)"
(g) If a majority of legal votes cast upon the question be for
the termination of a policy of comprehensive recycling of solid
waste previously established in the county, the county commission
shall, after the certification of the results of the referendum,
thereafter rescind by ordinance the comprehensive recycling program
for solid waste in the county within ninety days of certification. If a majority of the legal votes cast upon the question be for the
continuation of the policy of comprehensive recycling of solid
waste, the ordinance shall not be rescinded, but the question may
again be submitted to a vote at any subsequent election in the
manner herein provided.
(h) In the case of any municipality having a population
greater than thirty thousand persons, as indicated by the most
recent decennial census conducted by the United States, the
governing body of such municipality may by ordinance establish a
materials recovery facility in lieu of or in addition to the
mandatory recycling program required under the provisions of this
section: Provided, That a materials recovery facility shall be
subject to approval by both the Public Service Commission and the
Solid Waste Management Board upon a finding by both the Public
Service Commission and the Solid Waste Management Board that the
establishment of a materials recovery facility will not hinder, and
will be consistent with, the purposes of this article.
§22-15A-19. 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) Definition. -- 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 Secretary 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 and transferred to the Department of Environmental
Protection. The Secretary 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 Secretary 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
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
Department 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.
§22-15A-20. Establishment of state recycling program for solid
waste.
(a) In the absence of either a municipal or a comprehensive
county recycling plan pursuant to section eighteen of this article,
all agencies and instrumentalities of the state, all primary and
secondary schools, where practicable, and private colleges and
universities shall implement programs to recycle solid waste. To
carry out the purposes of this section, any affected party may be
eligible to receive grants pursuant to subdivision (1), subsection
(h), section nineteen of this article. Such programs shall
include, but not be limited to, the following:
(1) Source separation of at least two recyclable materials;
and
(2) In the absence of either a municipal program or a
comprehensive county recycling plan pursuant to section eighteen of
this article, collection and transportation of source separated
recycled materials to an appropriate location.
(b) For purposes of this section, the Department shall be
designated the lead agency to ensure proper compliance and
coordination of any such recycling program.
§22-15A-21. Procurement of recycled products.
(a) It is the policy of the State of West Virginia that, to
the maximum extent possible, all agencies and instrumentalities of
the state purchase recycled products. The goal of the state is to
achieve a recycled product mix on future purchases.
(b) In furtherance of the aforesaid goal, the Secretary of the
Department of Administration in consultation with the Secretary
shall develop a comprehensive procurement program for recycled
products. The program shall include, but not be limited to:
(1) A review, and subsequent revision, of existing procurement
procedures and bid specifications to remove language that
discriminates against recycled products;
(2) A review, and subsequent revision, of existing procurement
procedures and bid specifications to ensure that, to the maximum
extent possible, all agencies and instrumentalities of the state
purchase recycled products: Provided, That recycled paper products
shall be given a price preference of ten percent: Provided,
however, That priority shall be given to paper products with the
highest postconsumer content;
(3) A plan to eliminate, to the maximum extent possible, the
use of disposable and single-use products; and
(4) A requirement that all agencies and instrumentalities of
the state use compost in all land maintenance and landscaping
activities: Provided, That the use of composted or deep stacked
poultry litter products, certified by the Commissioner of
Agriculture as being free from organisms that are not found in poultry litter produced in this state, have priority unless
determined to be economically unfeasible by the agency or
instrumentality.
(c) The Secretary shall prepare and submit an annual report on
the thirty-first day of January of each year summarizing the
program's accomplishments, prospects for the future, and any
recommendations. The report shall be submitted to the Governor,
Speaker of the House of Delegates and President of the Senate.
§22-15A-22. 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 dispose of lead-acid batteries
in a solid waste landfill in West Virginia; effective the first day
of June, one thousand nine hundred ninety-six, it shall be unlawful
to dispose of tires in a solid waste landfill in West Virginia
except for waste tires collected as part of the Department's waste
tire remediation projects or other collection efforts in accordance
with the provisions of this article or the pollution prevention
program and open dump program or other state authorized remediation
or cleanup programs: Provided, That waste tires may be disposed of
in solid waste landfills only when the state agency authorizing the
remediation or cleanup program has determined there is no
reasonable alternative available.
(b) Effective the first day of January, one thousand nine
hundred ninety-seven, it shall be unlawful to dispose of 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
(d) of this section.
(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.
(d) No later than the first day of August, one thousand nine
hundred ninety-five, the Department 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 (c) of this section. No
later than the first day of August, two thousand, the Department
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 (c) of this section.
(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.
(f) In promulgating the rules required by subsections (c) and
(d) of this section, yard waste, as described in subsection (e) of
this section, the Department 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.
§22-15A-23. Recycling facilities exemption.
Recycling facilities, as defined in section two, article
fifteen of this chapter, whose only function is to accept free-of-charge, buy or transfer source separated material or
recycled material for resale or transfer for further processing are
exempt from the provisions of said article and article four of
chapter twenty-two-c and sections one-c and one-f, article two,
chapter twenty-four of this code.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS,
AUTHORITIES, COMMISSIONS AND COMPACTS.
ARTICLE 3. SOLID WASTE MANAGEMENT BOARD.
§22C-3-7. Development of state solid waste management plan.
On or before the first day of January, one thousand nine
hundred ninety-three, the solid waste management board shall
prepare an overall state plan for the proper management of solid
waste: Provided, That such plan shall be consistent with the
findings and purposes of article four of this chapter, article
fifteen of chapter twenty-two and article eleven of chapter twenty
fifteen-a of chapter twenty-two of this code: Provided, however,
That such plan shall incorporate the county or regional plans
developed pursuant to sections eight and twenty-four, article four
of this chapter, as amended: Provided further, That such plan
shall be updated every two years following its initial preparation.
§22C-3-24. Cooperation of board and enforcement agencies in
collecting and disposing of abandoned household
appliances and motor vehicles, etc.
The provisions of this article are complementary to those
contained in article twenty-four, chapter seventeen twenty-four,
chapter fifteen-a of this code and do not alter or diminish the authority of any enforcement agency, as defined in section two
thereof, to collect and dispose of abandoned household appliances
and motor vehicles, inoperative household appliances and junked
motor vehicles and parts thereof, including tires. The board and
such enforcement agencies shall cooperate fully with each other in
collecting and disposing of such solid waste.
ARTICLE 4. COUNTY AND REGIONAL SOLID WASTE AUTHORITIES.
§22C-4-24. Commercial solid waste facility siting plan; facilities
subject to plan; criteria; approval by solid waste
management board; effect on facility siting; public
hearings; rules.
(a) On or before the first day of July, one thousand nine
hundred ninety-one, each county or regional solid waste authority
shall prepare and complete a commercial solid waste facilities
siting plan for the county or counties within its jurisdiction:
Provided, That the Solid Waste Management Board may authorize any
reasonable extension of up to one year for the completion of the
said siting plan by any county or regional solid waste authority.
The siting plan shall identify zones within each county where
siting of the following facilities is authorized or prohibited:
(1) Commercial solid waste facilities which may accept an
aggregate of more than ten thousand tons of solid waste per month.
(2) Commercial solid waste facilities which shall accept only
less than an aggregate of ten thousand tons of solid waste per
month.
(3) Commercial solid waste transfer stations or commercial facilities for the processing or recycling of solid waste.
The siting plan shall include an explanation of the rationale
for the zones established therein based on the criteria established
in subsection (b) of this section.
(b) The county or regional solid waste authority shall develop
the siting plan authorized by this section based upon the
consideration of one or more of the following criteria: The
efficient disposal of solid waste, including, but not limited to,
all solid waste which is disposed of within the county or region
regardless of its origin, economic development, transportation
infrastructure, property values, groundwater and surface waters,
geological and hydrological conditions, aesthetic and environmental
quality, historic and cultural resources, the present or potential
land uses for residential, commercial, recreational, environmental
conservation or industrial purposes and the public health, welfare
and convenience. The initial plan shall be developed based upon
information readily available. Due to the limited funds and time
available, the initial plan need not be an exhaustive and
technically detailed analysis of the criteria set forth above.
Unless the information readily available clearly establishes that
an area is suitable for the location of a commercial solid waste
facility or not suitable for such a facility, the area shall be
designated as an area in which the location of a commercial solid
waste facility is tentatively prohibited. Any person making an
application for the redesignation of a tentatively prohibited area
shall make whatever examination is necessary and submit specific detailed information in order to meet the provision established in
subsection (g) of this section.
(c) Prior to completion of the siting plan, the county or
regional solid waste authority shall complete a draft siting plan
and hold at least one public hearing in each county encompassed in
said draft siting plan for the purpose of receiving public comment
thereon. The authority shall provide notice of such public
hearings and encourage and solicit other public participation in
the preparation of the siting plan as required by the rules
promulgated by the Solid Waste Management Board for this purpose.
Upon completion of the siting plan, the county or regional solid
waste authority shall file said plan with the Solid Waste
Management Board.
(d) The siting plan takes effect upon approval by the Solid
Waste Management Board pursuant to the rules promulgated for this
purpose. Upon approval of said the plan, the Solid Waste
Management Board shall transmit a copy thereof to the director
Secretary of the division Department of Environmental Protection
and to the clerk of the county commission of the county encompassed
by said plan which county clerk shall file the plan in an
appropriate manner and shall make the plan available for inspection
by the public.
(e) Effective upon approval of the siting plan by the Solid
Waste Management Board, it is unlawful for any person to establish,
construct, install or operate a commercial solid waste facility at
a site not authorized by the siting plan: Provided, That an existing commercial solid waste facility which, on the eighth day
of April, one thousand nine hundred eighty-nine, held a valid solid
waste permit or compliance order issued by the Division of Natural
Resources pursuant to the former provisions of article five-f,
chapter twenty of this code may continue to operate, but may not
expand the spatial land area of the said facility beyond that
authorized by said solid waste permit or compliance order and may
not increase the aggregate monthly solid waste capacity in excess
of ten thousand tons monthly unless such a facility is authorized
by the siting plan.
(f) The county or regional solid waste authority may, from
time to time, amend the siting plan in a manner consistent with the
requirements of this section for completing the initial siting plan
and the rules promulgated by the Solid Waste Management Board for
the purpose of such amendments.
(g) Notwithstanding any provision of this code to the
contrary, upon application from a person who has filed a pre-siting
notice pursuant to section thirteen, article fifteen, chapter
twenty-two of this code, the county or regional solid waste
authority or county commission, as appropriate, may amend the
siting plan by redesignating a zone that has been designated as an
area where a commercial solid waste facility is tentatively
prohibited to an area where one is authorized. In such case, the
person seeking the change has the burden to affirmatively and
clearly demonstrate, based on the criteria set forth in subsection
(b) of this section, that a solid waste facility could be appropriately operated in the public interest at such location.
The Solid Waste Management Board shall provide, within available
resources, technical support to a county or regional solid waste
authority, or county commission as appropriate, when requested by
such authority or commission to assist it in reviewing an
application for any such amendment.
(h) The Solid Waste Management Board shall prepare and adopt
a siting plan for any county or regional solid waste authority
which does not complete and file with the said state authority such
a siting plan in compliance with the provisions of this section and
the rules promulgated thereunder. Any siting plan adopted by the
Solid Waste Management Board pursuant to this subsection shall
comply with the provisions of this section, and the rules
promulgated thereunder, and has the same effect as a siting plan
prepared by a county or regional solid waste authority and approved
by the Solid Waste Management Board.
(i) The siting plan adopted pursuant to this section shall
incorporate the provisions of the litter and solid waste control
plan, as approved by the Solid Waste Management Board pursuant to
section eight of this article, regarding collection and disposal of
solid waste and the requirements, if any, for additional commercial
solid waste facility capacity.
(j) The solid waste management board is authorized and
directed to promulgate rules specifying the public participation
process, content, format, amendment, review and approval of siting
plans for the purposes of this section.
(k) To the extent that current solid waste plans approved by
the board are approved as provided for in this section, and in
place on the effective date of this article, provisions which limit
approval for new or expanded solid waste facilities based solely on
local solid waste disposal needs without consideration for national
waste disposal needs are disallowed as being in conflict with the
public policy of this article: Provided, That all other portions
of the solid waste management plans as established in the litter
and solid waste control plan as provided for in this section and
the comprehensive recycling plan as provided for in section four,
article eleven, chapter twenty seventeen, article fifteen-a,
chapter twenty-two of the code, are continued in full force and
effect to the extent that those provisions do not conflict with the
provisions of this article.
§22C-4-25. Siting approval for solid waste facilities; effect on
facilities with prior approval.
(a) It is the intent of the Legislature that all commercial
solid waste facilities operating in this state must receive site
approval at the local level, except for recycling facilities, as
defined in section two, article fifteen, chapter twenty-two twenty-
three, article fifteen-a, chapter twenty-two of this code, that are
specifically exempted by section twelve, article eleven, chapter
twenty of this code. Notwithstanding said intent, facilities which
obtained such approval from either a county or regional solid waste
authority, or from a county commission, under any prior enactment
of this code, and facilities which were otherwise exempted from local site approval under any prior enactment of this code, shall
be deemed to have satisfied such requirement. All other
facilities, including facilities which received such local approval
but which seek to expand spatial area or to convert from a Class B
facility to a Class A facility, shall obtain such approval only in
the manner specified in sections twenty-six, twenty-seven and
twenty-eight of this article.
(b) In considering whether to issue or deny the certificate of
site approval as specified in sections twenty-six, twenty-seven and
twenty-eight of this article, the county or regional solid waste
authority shall base its determination upon the following criteria:
The efficient disposal of solid waste anticipated to be received or
processed at the facility, including solid waste generated within
the county or region, economic development, transportation
infrastructure, property values, groundwater and surface waters,
geological and hydrological conditions, aesthetic and environmental
quality, historic or cultural resources, the present or potential
land uses for residential, commercial, recreational, industrial or
environmental conservation purposes and the public health, welfare
and convenience.
(c) The county or regional solid waste authority shall
complete findings of fact and conclusions relating to the criteria
authorized in subsection (b) hereof which support its decision to
issue or deny a certificate of site approval.
(d) The siting approval requirements for composting
facilities, materials recovery facilities and mixed waste processing facilities shall be the same as those for other solid
waste facilities.
CHAPTER 31. CORPORATIONS.
ARTICLE 15A. WEST VIRGINIA INFRASTRUCTURE AND JOBS DEVELOPMENT
COUNCIL.
§31-15A-17a. Infrastructure revenue bonds payable from A. James
Manchin fund.
Notwithstanding any other provision of this code to the
contrary, the Water Development Authority may issue, in accordance
with the provisions of section seventeen of this article,
infrastructure revenue bonds payable from the A. James Manchin Fund
created by section six, article twenty-four, chapter seventeen of
this code and such other sources as may be legally pledged for such
purposes other than the West Virginia infrastructure revenue debt
service fund created by section seventeen of this article.
CHAPTER 49. CHILD WELFARE.
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-13. Disposition of juvenile delinquents; appeal.
(a) In aid of disposition of juvenile delinquents, the
juvenile probation officer assigned to the court shall, upon
request of the court, make an investigation of the environment of
the juvenile and the alternative dispositions possible. The court,
upon its own motion, or upon request of counsel, may order a
psychological examination of the juvenile. The report of such
examination and other investigative and social reports shall not be
made available to the court until after the adjudicatory hearing. Unless waived, copies of the report shall be provided to counsel
for the petitioner and counsel for the juvenile no later than
seventy-two hours prior to the dispositional hearing.
(b) Following the adjudication, the court shall conduct the
dispositional proceeding, giving all parties an opportunity to be
heard. In disposition the court shall not be limited to the relief
sought in the petition and shall, in electing from the following
alternatives, consider the best interests of the juvenile and the
welfare of the public:
(1) Dismiss the petition;
(2) Refer the juvenile and the juvenile's parent or custodian
to a community agency for needed assistance and dismiss the
petition;
(3) Upon a finding that the juvenile is in need of
extra-parental supervision: (A) Place the juvenile under the
supervision of a probation officer of the court or of the court of
the county where the juvenile has his or her usual place of abode
or other person while leaving the juvenile in custody of his or her
parent or custodian; and (B) prescribe a program of treatment or
therapy or limit the juvenile's activities under terms which are
reasonable and within the child's ability to perform, including
participation in the litter control program established pursuant to
section twenty-five, article seven, chapter twenty three, article
fifteen-a, chapter twenty-two of this code or other appropriate
programs of community service;
(4) Upon a finding that a parent or custodian is not willing or able to take custody of the juvenile, that a juvenile is not
willing to reside in the custody of his parent or custodian or that
a parent or custodian cannot provide the necessary supervision and
care of the juvenile, the court may place the juvenile in temporary
foster care or temporarily commit the juvenile to the department or
a child welfare agency. The court order shall state that
continuation in the home is contrary to the best interest of the
juvenile and why; and whether or not the department made a
reasonable effort to prevent the placement or that the emergency
situation made such efforts unreasonable or impossible. Whenever
the court transfers custody of a youth to the department, an
appropriate order of financial support by the parents or guardians
shall be entered in accordance with section five, article seven of
this chapter and guidelines promulgated by the supreme court of
appeals;
(5) Upon a finding that the best interests of the juvenile or
the welfare of the public require it, and upon an adjudication of
delinquency pursuant to subdivision (1), section four, article one
of this chapter, the court may commit the juvenile to the custody
of the director of the division of juvenile services for placement
in a juvenile services facility for the treatment, instruction and
rehabilitation of juveniles: Provided, That the court maintains
discretion to consider alternative sentencing arrangements.
Notwithstanding any provision of this code to the contrary, in the
event that the court determines that it is in the juvenile's best
interests or required by the public welfare to place the juvenile in the custody of the division of juvenile services, the court
shall provide the division of juvenile services with access to all
relevant court orders and records involving the underlying offense
or offenses for which the juvenile was adjudicated delinquent,
including sentencing and presentencing reports and evaluations, and
provide the division with access to school records, psychological
reports and evaluations, medical reports and evaluations or any
other such records as may be in the court's possession as would
enable the division of juvenile services to better assess and
determine the appropriate counseling, education and placement needs
for the juvenile offender. Commitments shall not exceed the
maximum term for which an adult could have been sentenced for the
same offense and any such maximum allowable sentence to be served
in a juvenile correctional facility may take into account any time
served by the juvenile in a detention center pending adjudication,
disposition or transfer. The order shall state that continuation
in the home is contrary to the best interests of the juvenile and
why; and whether or not the state department made a reasonable
effort to prevent the placement or that the emergency situation
made such efforts unreasonable or impossible; or
(6) After a hearing conducted under the procedures set out in
subsections (c) and (d), section four, article five, chapter
twenty-seven of this code, commit the juvenile to a mental health
facility in accordance with the juvenile's treatment plan; the
director of the mental health facility may release a juvenile and
return him or her to the court for further disposition. The order shall state that continuation in the home is contrary to the best
interests of the juvenile and why; and whether or not the state
department made a reasonable effort to prevent the placement or
that the emergency situation made such efforts unreasonable or
impossible.
(c) The disposition of the juvenile shall not be affected by
the fact that the juvenile demanded a trial by jury or made a plea
of denial. Any dispositional order is subject to appeal to the
supreme court of appeals.
(d) Following disposition, the court shall inquire whether the
juvenile wishes to appeal and the response shall be transcribed; a
negative response shall not be construed as a waiver. The evidence
shall be transcribed as soon as practicable and made available to
the juvenile or his or her counsel, if the same is requested for
purposes of further proceedings. A judge may grant a stay of
execution pending further proceedings.
(e) Notwithstanding any other provision of this code to the
contrary, if a juvenile charged with delinquency under this chapter
is transferred to adult jurisdiction and there tried and convicted,
the court may make its disposition in accordance with this section
in lieu of sentencing such person as an adult.
§49-5-13b. Authority of the courts to order fines; revocation of
vehicle privileges and restitution.
(a) In addition to the methods of disposition provided in
section thirteen of this article, the court may enter an order
imposing one or more of the following penalties, conditions and limitations:
(1) Impose a fine not to exceed one hundred dollars upon such
child;
(2) Require the child to make restitution or reparation to the
aggrieved party or parties for actual damages or loss caused by the
offense for which the child was found to be delinquent, or if the
child does not make full restitution, require the custodial parent
or parents, as defined in section two, article seven-a, chapter
fifty-five, of the child to make partial or full restitution to the
victim to the extent the child fails to make full restitution;
(3) Require the child to participate in a public service
project under such conditions as the court prescribes, including
participation in the litter control program established pursuant to
the authority of section twenty-five, article seven, chapter twenty
three, article fifteen-a, chapter twenty-two of this code;
(4) When the child is fifteen years of age or younger and has
been adjudged delinquent, the court may order that the child is not
eligible to be issued a junior probationary operator's license or
when the child is between the ages of sixteen and eighteen years
and has been adjudged delinquent, the court may order that the
child is not eligible to operate a motor vehicle in this state, and
any junior or probationary operator's license shall be surrendered
to the court. Such child's driving privileges shall be suspended
for a period not to exceed two years, and the clerk of the court
shall notify the commissioner of the department of motor vehicles
of such order.
(b) Nothing herein stated shall limit the discretion of the
court in disposing of a juvenile case: Provided, That the juvenile
shall not be denied probation or any other disposition pursuant to
this article because the juvenile is financially unable to pay a
fine or make restitution or reparation: Provided, however, That
all penalties, conditions and limitations imposed under this
section shall be based upon a consideration by the court of the
seriousness of the offense, the child's ability to pay, and a
program of rehabilitation consistent with the best interests of the
child.
(c) Notwithstanding any other provisions of this code to the
contrary, in the event a child charged with delinquency under this
chapter is transferred to adult jurisdiction and there convicted,
the court may nevertheless, in lieu of sentencing such person as an
adult, make its disposition in accordance with this section.