Senate Bill No. 363

(By Senators Unger and Yoder)

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[Introduced January 27, 2006; referred to the Committee on the Judiciary.]

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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §22C-4-23a; and to amend and reenact §24A-2-5 of said code, all relating to allowing certain county or regional waste authorities in growth areas to designate common carriers of solid waste exempt from the certificate of convenience and necessity requirement; establishing criteria for the exemption; and establishing requirements for notice and a public hearing.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §22C-4-23a; and that §24A-2-5 of said code be amended and reenacted, all to read as follows:
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS,

AUTHORITIES, COMMISSIONS AND COMPACTS.
ARTICLE 4. COUNTY AND REGIONAL SOLID WASTE AUTHORITIES.
§22C-4-23a. Providing for additional waste haulers in certain growth areas.

(a) The Legislature finds that certain populous counties that have experienced rapid population growth may, nonetheless, be served by only one or two common carriers that have certificates of convenience and necessity from the Public Service Commission authorizing the carrier(s) to provide solid waste collection and hauling services. In these counties, solid waste planning for the effective collection, recycling and disposal of solid waste can be enhanced by the introduction of additional common carriers to service the area. However, the requirement that any new carrier first obtain a certificate of convenience and necessity from the Public Service Commission causes significant delay and uncertainty, impeding the ability of the local solid waste authorities to effectively plan and provide for the rapidly increasing solid waste burdens imposed upon the counties. The Legislature therefore finds that the local solid waste authorities in these counties should be given limited authority to designate one or more common carriers as exempt from the requirement for a certificate of convenience and necessity.
(b) Notwithstanding any provisions of this article or of article two, chapter twenty-four-a, or any other provision of the code of West Virginia or any rules that have been promulgated pursuant thereto, a county or regional solid waste authority may designate a common carrier as exempt from obtaining a certificate of convenience and necessity from the Public Service Commission, as would otherwise be required by chapter twenty-four-a of this code, for the operation of motor vehicles for the collection or transportation of solid waste; including, but not limited to, commercial waste, residential waste, construction waste, demolition waste or recyclable materials that are generated within the county or regional by residential, commercial, industrial or institutional sources: Provided, That:
(1) The population of the county increased by fifteen percent or more between the 1990 and the 2000 decennial censuses conducted by Bureau of the Census of the United States Department of Commerce;
(2) The population of the county exceeded thirty thousand persons (30,000) at the time of the 2000 decennial census; and
(3) The county, on the first day of January, two thousand six, is served by fewer than three common carriers by motor vehicles authorized to carry solid waste by certificates of convenience and necessity issued by the Public Service Commission.
(c) No county or regional solid waste authority shall designate any motor carrier as exempt unless it determines that the above conditions have been met, and that granting an exemption meets one or more of the following criteria: (1) Improvement of the dependability, quality or value of solid waste collection or recycling services available to the county or region; (2) enhancement of the disposal, recycling or composing capacity available to the county or region; (3) enhancement of economic development in the county or region; and (4) facilitation of the development of the solid waste infrastructure in the county or region.
(d) Any applicant for an exemption shall establish to the satisfaction of the county or regional solid waste authority that it has the financial resources and the ability to provide the services proposed in its application. An applicant for an exemption shall be provided with written notice and a reasonable opportunity to make written and oral submissions to the county or regional solid waste authority prior to any decision on whether to grant, deny or revoke an exemption. When granting an exemption, the county or regional solid waste authority may impose reasonable conditions not inconsistent with the criteria set forth above. Prior to granting, denying, transferring or revoking an exemption a public hearing shall be conducted by the county or regional solid waste authority to afford interested persons a reasonable opportunity to submit written or oral comments.
Notice of the public hearing shall be given a minimum of thirty days in advance of the hearing and shall be in the form of a Class II legal advertisement placed in the newspaper serving the county with the largest circulation. The county or regional solid waste authority shall consider written comments for a period not to exceed ten days beyond the date of the public hearing.
(e) Any exemption granted is effective until revoked or abandoned. With the exception of the requirement that it obtain a certificate of convenience and necessity, an exempt carrier shall be subject to all statutes, rules and other requirements applicable to common carriers of solid waste, and is subject to the jurisdiction of the Public Service Commission for these purposes. Upon finding that a carrier has violated any of the above conditions or other requirements imposed upon it by the county or regional solid waste authority or by law, or for other good cause, the county or regional solid waste authority may revoke any exemption previously granted.
(f) A copy of the county or regional solid waste authority's decision granting, denying, transferring or revoking an exemption shall be supplied to the Motor Carrier Division of the Public Service Commission along with a notarized statement by the county or regional solid waste authority's chairperson or secretary that the copy accurately represents the action taken.
(g) No exemption granted under this subsection may be assigned or transferred without the written approval of the county or regional solid waste authority.
CHAPTER 24A. COMMERCIAL MOTOR CARRIERS.
ARTICLE 2. COMMON CARRIERS BY MOTOR VEHICLES.
§24A-2-5. Certificate of convenience and necessity.

(a) Required; application; hearing; granting. -- It shall be is unlawful for any common carrier by motor vehicle to operate within this state without first having obtained from the commission a certificate of convenience and necessity: Provided, That a county or regional solid waste may grant an exemption to this requirement pursuant to the provisions of section twenty-three, article four, chapter twenty-two-c of this code. Upon the filing of an application for such a certificate, the commission shall set a time a place for a hearing on the application: Provided, however, That the commission may, after giving proper notice and if no protest is received, waive formal hearing on the application. Notice shall be by publication which shall state that a formal hearing may be waived in the absence of a protest to such the application. The notice shall be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for such the publication shall be the proposed area of operation. The notice shall be published at least ten days prior to the date of the hearing. After the hearing or waiver by the commission of the hearing, if the commission finds from the evidence that the public convenience and necessity require the proposed service or any part thereof, it shall issue the certificate as prayed for, or issue it for the partial exercise only of the privilege sought, and may attach to the exercise of the right granted by such the certificate such the terms and conditions as in its judgment the public convenience and necessity may require, and if the commission shall be of the opinion that the service rendered by any common carrier holding a certificate of convenience and necessity over any route or routes in this state is in any respect inadequate or insufficient to met the public needs, such the certificate holder shall be given reasonable time and opportunity to remedy such the inadequacy or insufficiency before any certificate shall be is granted to an applicant proposing to operate over such the route or routes as a common carrier. Before granting a certificate to a common carrier by motor vehicle the commission shall take into consideration existing transportation facilities in the territory for which a certificate is sought, and in case it finds from the evidence that the service furnished by existing transportation facilities is reasonably efficient and adequate, the commission shall may not grant such the certificate.
(b) Rules and regulatons; taking evidence at hearings; burden of proof. -- The commission shall prescribe such rules and regulations as it may deem considers proper for the enforcement of the provisions of this section and in establishing that public convenience and necessity do exist the burden of proof shall be upon the applicant. The commission may designate any of its employees to take evidence at the hearing of any application for a certificate and submit findings of fact as a part of a report or reports to be made to the commission.
(c) Certificate not franchise, etc.; assignment or transfer. -- No certificate issued in accordance with the terms of this chapter shall be construed to be either a franchise or irrevocable or to confer any proprietary or property rights in the use of the public highways. No certificate issued under this chapter shall be assigned or otherwise transferred without the approval of the commission. Upon the death of a person holding a certificate, his or her personal representative or representatives may operate under such the certificate while the same remains in force and effect and, with the consent of the commission, may transfer such certificate.
(d) Suspension, revocation or amendment. -- The commission may at any time, for good cause, suspend and, upon not less than fifteen days' notice to the grantee of any certificate and an opportunity to be heard, revoke or amend any certificate.
(e) The commission shall have has the authority, after hearing, to ratify, approve and affirm those orders issued pursuant to this section since the tenth day of March, nineteen hundred seventy-nine. For the purposes of this subsection the commission may give notice by a Class I legal advertisement of such hearing in any newspaper or newspapers of general circulation in this state, and such other newspapers as the commission may designate.

NOTE: The purpose of this bill is to allow certain county or regional waste authorities in growth areas to designate common carriers of solid waste exempt from the certificate of convenience and necessity requirement; to establish criteria for the exemption; and to establish requirements for notice and a public hearing.
§22C-4-23a is new; therefore, strike-throughs and underscoring have been omitted.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.