SB 701 Text

Senate Bill No. 701
(By Senator McCabe)
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[Introduced February 19, 2007; referred to the Committee on the Judiciary.]
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A BILL to repeal §22C-4-3 and §22C-4-6 of the Code of West Virginia, 1931, as amended; to repeal §24-2-1h of said code; to repeal §24A-2-4a of said code; to amend said code by adding thereto a new article, designated §22-15B-1, §22-15B-2, §22-15B-3, §22-15B-4, §22-15B-5, §22-15B-6, §22-15B-7, §22-15B-8, §22-15B-9, §22-15B-10, §22-15B-11, §22-15B-12, §22-15B-13, §22-15B-14, §22-15B-15, §22-15B-16, §22-15B-17, §22-15B-18, §22-15B-19, §22-15B-20, §22-15B-21 and §22-15B-22; to amend and reenact §22C-4-1, §22C-4-2, §22C-4-4, §22C-4-5, §22C-4-7, §22C-4-8, §22C-4-9, §22C-4-9a, §22C-4-10, §22C-4-11, §22C-4-12, §22C-4-14, §22C-4-20, §22C-4-22, §22C-4-23, §22C-4-24, §22C-4-25, §22C-4-26, §22C-4-27, §22C-4-28, §22C-4-29 and §22C-4-30 of said code; to amend said code by adding thereto a new section, designated §22C-4-8a; to amend and reenact §22C-4A-1, §22C-4A-2, §22C-4A-3 and §22C-4A-4 of said code; to amend and reenact §24A-1-3 of said code; to amend and reenact §24A-2-5 of said code; and to amend and reenact §24A-3-3 of said code, all relating to abolishing the Solid Waste Management Board; transferring powers and duties of the Solid Waste Management Board to the Department of Environmental Protection; removing from the Public Service Commission the authority to control the flow of solid waste; exempting transporters of solid waste from certain requirements of the Public Service Commission; removing the requirement that a transporter of solid waste must first obtain either a certificate or permit from the Public Service Commission; and creating the obligation and power in regional solid waste authorities to collect, transport and dispose of solid waste and to enter into contracts to franchise or otherwise contract with third parties to perform such services.

Be it enacted by the Legislature of West Virginia:
That §22C-4-3 and §22C-4-6 of the Code of West Virginia, 1931, as amended, be repealed; that §24-2-1h of said code be repealed; that §24A-2-4a of said code be repealed; that said code be amended by adding thereto a new article, designated §22-15B-1, §22-15B-2, §22-15B-3, §22-15B-4, §22-15B-5, §22-15B-6, §22-15B-7, §22-15B-8, §22-15B-9, §22-15B-10, §22-15B-11, §22-15B-12, §22-15B-13, §22-15B-14, §22-15B-15, §22-15B-16, §22-15B-17, §22-15B-18, §22-15B-19, §22-15B-20, §22-15B-21 and §22-15B-22; that §22C-4-1, §22C-4-2, §22C-4-4, §22C-4-5, §22C-4-7, §22C-4-8, §22C-4-9, §22C-4-9a, §22C-4-10, §22C-4-11, §22C-4-12, §22C-4-14, §22C-4-20, §22C-4-22, §22C-4-23, §22C-4-24, §22C-4-25, §22C-4-26, §22C-4-27, §22C-4-28, §22C-4-29 and §22C-4-30 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §22C-4-8a; that §22C-4A-1, §22C-4A-2, §22C-4A-3 and §22C-4A-4 of said code be amended and reenacted; that §24A-1-3 of said code be amended and reenacted; that §24A-2-5 of said code be amended and reenacted; and that §24A-3-3 of said code be amended and reenacted, all to read as follows:
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 15B. SOLID WASTE DISPOSAL PROJECTS ASSISTANCE ACT.

§22-15B-1. Legislative findings; declaration of policy and responsibility; purpose and intent of article.

(a) The Legislature finds that uncontrolled, inadequately controlled and improper collection and disposal of solid waste: (1) Is a public nuisance and a clear and present danger to people; (2) provides harborages and breeding places for disease-carrying, injurious insects, rodents and other pests harmful to the public health, safety and welfare; (3) constitutes a danger to livestock and domestic animals; (4) decreases the value of private and public property, causes pollution, blight and deterioration of the natural beauty and resources of the state and has adverse economic and social effects on the state and its citizens; and (5) results in the squandering of valuable nonrenewable and nonreplenishable resources contained in solid waste.
(b) Further, the Legislature finds that governmental agencies in the state and the private sector do not have the financial and other resources needed to provide for the proper collection and disposal of solid waste; that solid waste projects must be on a scale that is large enough to be economically feasible and stable; and that proper solid waste collection and disposal at the lowest minimum cost can only be achieved through comprehensive solid waste management.
(c) It is declared to be the public policy and a responsibility of this state to assist efforts of governmental agencies and the private sector to provide for the proper collection, disposal and recycling of solid waste and to solve and prevent the problems set forth in this article. It is the purpose and intent of the Legislature in enacting this article to provide for and maintain the necessary, dependable, effective and efficient collection, disposal and recycling of solid waste and to assist and cooperate with governmental agencies and the private sector in achieving all the purposes set forth in this article, and to encourage the recycling or extraction of recoverable resources from such solid waste. The Legislature finds that the public policy and responsibility of the state as set forth in this section cannot be effectively attained without the funding, establishment, operation and maintenance of solid waste disposal projects as provided in this article.
§22-15B-2. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(1) "Bond" or "solid waste disposal revenue bond" means a revenue bond or note issued by the secretary, or previous issued by the solid waste management board, formerly known as the West Virginia resource recovery - solid waste disposal authority, to effect the intents and purposes of this article.
(2) "Construction" includes reconstruction, enlargement, improvement and providing furnishings or equipment for a solid waste disposal project.
(3) "Cost" means, as applied to solid waste disposal projects, the necessary and reasonable cost of their acquisition and construction; the necessary and reasonable cost of acquisition of all land, rights-of-way, property, rights, easements, franchise rights and interests required by the secretary for such acquisition and construction; the necessary and reasonable cost of demolishing or removing any buildings or structures on land so acquired, including the necessary and reasonable cost of acquiring any land to which such buildings or structures may be moved; the necessary and reasonable cost of diverting highways, interchange of highways and access roads to private property, including the necessary and reasonable cost of land or easements therefor; the necessary and reasonable cost of all machinery, furnishings and equipment; all necessary and reasonable financing charges and interest prior to and during construction and for no more than eighteen months after completion of construction; the necessary and reasonable cost of all engineering services and all expenses of research and development with respect to solid waste facilities; the necessary and reasonable cost of all legal services and expenses; the necessary and reasonable cost of all plans, specifications, surveys and estimates of cost and revenues; all necessary and reasonable working capital and other expenses necessary or incident to determining the feasibility or practicability of acquiring or constructing any such project; all necessary and reasonable administrative expenses and such other necessary and reasonable expenses as may be incident to the acquisition or construction of the project; the necessary and reasonable financing of such acquisition or construction, including the amount authorized by the secretary for the issuance of solid waste disposal revenue bonds to be paid into any special funds from the proceeds of such bonds; and the necessary and reasonable financing of the placing of any such project in operation. Any obligation or expenses incurred by any governmental agency, with the approval of the secretary, for surveys, borings, preparation of plans and specifications and other engineering services in connection with the acquisition or construction of a project are apart of the cost of such project and shall be reimbursed out of the proceeds of loans or solid waste disposal revenue bonds as authorized by the provisions of this article.
(4) "Governmental agency" means the state government or any agency, department, division or unit thereof; counties; municipalities; watershed improvement districts; soil conservation districts; sanitary districts; public service districts; drainage districts; regional governmental authorities and any other governmental agency, entity, political subdivision, public corporation or agency having the authority to acquire, construct or operate solid waste facilities; the United States government or any agency, department, division or unit thereof; and any agency, commission or authority established pursuant to an interstate compact or agreement.
(5) "Industrial waste" means any solid waste resulting from or incidental to any process of industry, manufacturing, trade or business, or from or incidental to the development, processing or recovery of any natural resource.
(6) "Owner" includes all persons, partnerships or governmental agencies having any title or interest in any property rights, easements and interests authorized to be acquired by this article.
(7) "Person" means any public or private corporation, institution, association, firm or company organized or existing under the laws of this or any other state or country; the United States or the State of West Virginia; governmental agency; political subdivision; county commission; municipality; industry; sanitary district; public service district; drainage district; soil conservation district; solid waste disposal shed district; partnership; trust; estate; individual; group of individuals acting individually or as a group; or any other legal entity.
(8) "Pollution" means the discharge, release, escape or deposit, directly or indirectly, of solid waste of whatever kind or character, on lands or in waters in the state in an uncontrolled, unregulated or unapproved manner.
(9) "Revenue" means any money or thing of value collected by, or paid to, the secretary as rent, use fee, service charge or other charge for use of; or in connection with, any solid waste disposal project, or as principal of or interest, charges or other fees on loans, or any other collections on loans made by the secretary to governmental agencies to finance, in whole or in part, the acquisition or construction of any solid waste disposal project or projects, or other money or property which is received and may be expended for or pledged as revenues pursuant to this article.
(10) "secretary" means the secretary of the West Virginia Department of Environmental Protection.
(11) "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, other discarded material, 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 eighteen, chapter twenty-two of this code, 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, chapter twenty of this code, or refuse, slurry, overburden or other waste 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 said chapters. "Solid waste" does not include materials which are recycled by being used or reused in an industrial process to make a product, as effective substitutes for commercial products, or are returned to the original process as a substitute for raw material feedstock.
(12) "Solid waste facility" means any system, facility, land, contiguous land, improvements on land, structures or other appurtenances or methods used for processing, recycling or disposing of solid waste, including landfills, transfer stations, materials recovery facilities and other such facilities not herein specified. Such facility is situated, for purposes of this article, in the county where the majority of the spatial area of such facility is located.
(13) "Solid waste disposal project" or"project" means any solid waste facility, waste water treatment plants, sewer treatment plants, water and sewer systems and connecting pipelines the acquisition or construction of which is authorized by the secretary or any acquisition or construction which is financed, in whole or in part, from funds made available by grant or loan by, or through, the secretary as provided in this article, including all buildings and facilities which the secretary deems necessary for the operation of the project, together with all property, rights, easements and interests which may be required for the operation of the project.
(14) "Solid waste disposal shed" or "shed" means a geographical area which the secretary designates as provided in section seven of this article for solid waste management.
(15) "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.

§22-15B-3. secretary to designate and establish disposal sheds; construction, maintenance, etc., of disposal projects; loan agreements; compliance with federal and state law.

To accomplish the public policy and purpose and to meet the responsibility of the state as set forth in this article, the secretary shall designate and establish solid waste disposal sheds and the secretary may initiate, acquire, construct, maintain, repair and operate solid waste disposal projects or cause the same to be operated pursuant to a lease, sublease or agreement with any person or governmental agency; may make loans and grants to persons and to governmental agencies for the acquisition or construction of solid waste disposal projects by such persons and governmental agencies; and may issue solid waste disposal revenue bonds of this state, payable solely from revenues, to pay the cost of; or finance, in whole or in part, by loans to governmental agencies, such projects. A solid waste disposal project shall not be undertaken unless the secretary determines that the project is consistent with federal law, with its solid waste disposal shed plan, with the standards set by the secretary for any waters of the state which may be affected thereby, with the air quality standards set by the secretary and with health standards set by the bureau of public health. Any action of the secretary providing for acquiring or constructing such projects or for making a loan or grant for such projects shall include a finding by the secretary that such determinations have been made. A loan agreement shall be entered into between the secretary and each governmental agency to which a loan is made for the acquisition or construction of a solid waste disposal project, which loan agreement shall include without limitation the following provisions:
(1) The cost of such project, the amount of the loan, the terms of repayment of such loan and the security therefor, which may include, in addition to the pledge of all revenues from such project after a reasonable allowance for operation and maintenance expenses, a deed of trust or other appropriate security instrument creating a lien on such project;
(2) The specific purposes for which the proceeds of the loan shall be expended, the procedures as to the disbursement of loan proceeds and the duties and obligations imposed upon the governmental agency in regard to the construction or acquisition of the project;
(3) The agreement of the governmental agency to impose, collect, and, if required to repay the obligations of such governmental agency under the loan agreement, increase service charges from persons using said project, which service charges shall be pledged for the repayment of such loan together with all interest, fees and charges thereon and all other financial obligations of such governmental agency under the loan agreement;
(4) The agreement of the governmental agency to comply with all applicable laws, rules and regulations issued by the secretary or other state, federal and local bodies in regard to the construction, operation, maintenance and use of the project; and
(5) Such other provisions, terms or conditions as the secretary may reasonably require.

§22-15B-4. Powers, duties and responsibilities of secretary generally.

The secretary may exercise all powers necessary or appropriate to implement the provisions of this article. The secretary may:
(1) Sue and be sued and plead and be impleaded to enforce the obligations and covenants made under sections eight, nine and fourteen of this article. Any actions against the secretary shall be brought in the circuit court of Kanawha County.
(2) Make loans and grants to persons and to governmental agencies for the acquisition or construction of solid waste disposal projects and adopt rules and procedures for making such loans and grants.
(3) Acquire, construct, reconstruct, enlarge, improve, furnish, equip, maintain, repair, operate, lease or rent to, or contract for operation by a governmental agency or person, solid waste disposal projects, and, in accordance with chapter twenty-nine-a of this code, adopt rules for the use of such projects.
(4) Make available the use or services of any solid waste disposal project to one or more persons, one or more governmental agencies, or any combination thereof.
(5) Issue solid waste disposal revenue bonds and notes and solid waste disposal revenue refunding bonds of the state, payable solely from revenues as provided in section eight of this article, unless the bonds are refunded by refunding bond, for the purpose of paying all or any part of the cost of acquiring, constructing, reconstructing, enlarging, improving, furnishing, equipping, or repairing solid waste disposal projects, or making loans to persons or to governmental agencies for the acquisition, design or construction of solid waste disposal projects or parts thereof.
(6) Acquire by gift or purchase, hold and dispose of real and personal property in the exercise of its powers and the performance of duties set forth in this article.
(7) Acquire in the name of the state, by purchase or otherwise, on such terms and in such manner as it deems proper, or by the exercise of the right of eminent domain in the manner provided in chapter fifty-four of this code, such public or private lands, or parts thereof or rights therein, rights-of-way, property, rights, easements and interests it deems necessary for carrying out the provisions of this article, but excluding the acquisition by the exercise of the right of eminent domain of any solid waste facility operated under permits issued pursuant to the provisions of article fifteen, chapter twenty-two of this code and owned by any person or governmental agency. This article does not authorize the secretary to take or disturb property or facilities belonging to any public utility or to a common carrier, which property or facilities are required for the proper and convenient operation of such public utility or common carrier, unless provision is made for the restoration, relocation or duplication of such property or facilities elsewhere at the sole cost of the secretary.
(8) Make and enter into all contracts and agreements and execute all instruments necessary or incidental to the performance of its duties and the execution of its powers. When the cost under any such contract or agreement, other than compensation for personal services, involves an expenditure of more than two thousand dollars, the secretary shall make a written contract with the lowest responsible bidder after public notice published as a Class illegal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, the publication area for such publication to be the county wherein the work is to be performed or which is affected by the contract, which notice shall state the general character of the work and the general character of the materials to be furnished, the place where plans and specifications therefor may be examined and the time and place of receiving bids. A contract or lease for the operation of a solid waste disposal project constructed and owned by the secretary or an agreement for cooperation in the acquisition or construction of a solid waste disposal project pursuant to section sixteen of this article is not subject to the foregoing requirements and the secretary may enter into such contract or lease or such agreement pursuant to negotiation and upon such terms and conditions and for such period as the secretary finds to be reasonable and proper under the circumstances and in the best interests of proper operation or of efficient acquisition or construction of such project. The secretary may reject any and all bids. A bond with good and sufficient surety, approved by the secretary, is required of all contractors in an amount equal to at least fifty percent of the contract price, conditioned upon the faithful performance of the contract.
(9) Employ managers, superintendents, engineers, accountants, Auditors and other employees, and retain or contract with consulting engineers, financial consultants, accounting experts, architects, attorneys and such other consultants and independent contractors as are necessary in the secretary?s judgment to carry out the provisions of this article, and fix the compensation or fees thereof. All expenses thereof are payable solely from the proceeds of solid waste disposal revenue bonds or notes issued by the secretary, from revenues and from funds appropriated for such purpose by the Legislature.
(10) Receive and accept from any federal agency, subject to the approval of the Governor, grants for or in aid of the construction of any solid waste disposal project or for research and development with respect to solid waste disposal projects and solid waste disposal sheds and receive and accept from any source aid or contributions of money, property, labor or other things of value, to be held, used and applied only for the purposes for which such grants and contributions are made.
(11) Engage in research and development with respect to solid waste disposal projects and solid waste disposal sheds.
(12) Purchase fire and extended coverage and liability insurance for any solid waste disposal project, and any other insurance the secretary may agree to provide under any action authorizing the issuance of solid waste disposal revenue bonds.
(13) Charge, alter and collect rentals and other charges for the use or services of any solid waste disposal project as provided in this article, and charge and collect reasonable interest, fees and other charges in connection with the making and servicing of loans to governmental agencies in furtherance of the purposes of this article.
(14) Establish or increase reserves from moneys received or to be received to secure or to pay the principal of and interest on the bonds and notes issued by the secretary pursuant to this article.
(15) Do all acts necessary and proper to carry out the powers expressly granted to the secretary in this article.
(16) Enforce all contracts previously made by the Solid Waste Management Board under former W.Va. Code §§22C-3-1 to 26.
§22-15B-5. Review and update of state solid waste management plan.
On or before the first day of January, two thousand nine, the secretary shall review and update the 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, chapter twenty-two-c and articles fifteen and fifteen-a of this chapter of this code: Provided, however, That such plan shall incorporate the county or regional plans developed pursuant to sections six, seven and twenty-four, article four of chapter twenty-two-c, as amended: Provided further, That such plan shall be updated every two years following its initial preparation.

§22-15B-6. Power of the secretary to collect service charges and exercise other powers of governmental agencies in event of default; power to require governmental agencies to enforce their rights.

In order to ensure that the public purposes to be served by the secretary may be properly carried out and in order to assure the timely payment to the secretary of all sums due and owing under loan agreements with governmental agencies, as referred to in section three of this article, notwithstanding any provision to the contrary elsewhere contained in this code, in event of any default by a governmental agency under such a loan agreement, the secretary has, and may, at his or her option, exercise the following rights and remedies in addition to the rights and remedies conferred by law or pursuant to said loan agreement:
(1) The secretary may directly impose, in the department?s name and for its benefit, service charges determined by the secretary to be necessary under the circumstances upon all users of the solid waste disposal project to be acquired or constructed pursuant to such loan agreement, and proceed directly to enforce and collect such service charges, together with all necessary costs of such enforcement and collection.
(2) The secretary may exercise, in the department?s name or in the name of and as agent for the governmental agency, all of the rights, authority, powers and remedies of the governmental agency with respect to the solid waste disposal project or which may be conferred. Upon the governmental agency by statute, rule, regulation or judicial decision, including, without limitation, all rights and remedies with respect to users of such solid waste disposal project.
(3) The secretary may, by civil action, mandamus or other judicial or administrative proceeding, compel performance by such governmental agency of all of the terms and conditions of such loan agreement including, without limitation, the adjustment and increase of service charges as required to repay the loan or otherwise satisfy? the terms of such loan agreement, the enforcement and collection of such service charges and the enforcement by such governmental agency of all rights and remedies conferred by statute, rule, regulation or judicial decision.

§22-15B-7. Development and designation of solid waste disposal sheds by secretary.

The secretary shall maintain the division of the state into geographical areas for solid waste management which shall be known as solid waste disposal sheds. The secretary may, from time to time, modify the boundaries of such sheds in a manner consistent with the provisions of this section. Before modification of the sheds, the secretary shall consult with the affected municipalities and county or regional solid waste authorities and obtain and evaluate their opinions as to how many sheds there should be and where their boundaries should be located. The secretary shall then cause feasibility and cost studies to be made in order to designate the solid waste disposal sheds within each of which the most dependable, effective, efficient and economical solid waste disposal projects may be established. The sheds shall not overlap and shall cover the entire state.
The secretary shall designate the sheds so that:
(1) The goal of providing solid waste collection and disposal service to each household, business and industry in the state can reasonably be achieved.
(2) The total cost of solid waste collection and disposal and the cost of solid waste collection and disposal within each shed and per person can be kept as low as possible.
(3) Solid waste collection and disposal service, facilities and projects can be integrated in the most feasible, dependable, effective, efficient and economical manner.
(4) No county is located in more than one shed: Provided, That the secretary may divide a county among two or more sheds upon request of the appropriate county or regional Solid Waste Authority.
The secretary, in modifying the boundaries of solid waste disposal sheds, is exempt from the provisions of chapter twenty-nine-a.

§22-15B-8. secretary empowered to issue solid waste disposal revenue bonds, renewal notes and refunding bonds; requirements and manner of such issuance.

The secretary is hereby empowered to issue, from time to time, solid waste disposal revenue bonds and notes of the state in such principal amounts as the secretary deems necessary to pay the cost of or finance, in whole or in part, by loans to governmental agencies, one or more solid waste development projects, but the aggregate amount of all issues of bonds and notes outstanding at one time for all projects authorized hereunder shall not exceed that amount capable of being serviced by revenues received from such projects, and shall not exceed in the aggregate the sum of one hundred million dollars: Provided, That up to twenty-five million dollars may be issued for projects located or to be located in areas which lack adequate sewer or water service and the area is in need of such services to comply with federal requirements.
The secretary may, from time to time, issue renewal notes, issue bonds to pay such notes and whenever he or she deems refunding expedient, refund any bonds by the issuance of solid waste disposal revenue refunding bonds of the state. Except as may otherwise be expressly provided in this article or by the secretary, every issue of bonds or notes are obligations of the secretary payable out of the revenues and reserves created for such purposes by the secretary, which are pledged for such payment, without preference or priority of the first bonds issued, subject only to any agreements with the holders of particular bonds or notes pledging any particular revenues. Such pledge is valid and binding from the time the pledge is made and the revenue so pledged and thereafter received by the secretary is immediately subject to the lien of such pledge without any physical delivery thereof or further act and the lien of any such pledge is valid and binding as against all parties having claims of any kind in tort, contract or otherwise against the secretary irrespective of whether such parties have notice thereof. All such bonds and notes shall have all the qualities of negotiable instruments. The bonds and notes shall be authorized by action of the secretary, bear such dates and mature at such times, in the case of any such note or any renewals thereof not exceeding five years from the date of issue of such original note, and in the case of any such bond not exceeding fifty years from the date of issue, as such action may provide. The bonds and notes shall bear interest at such rate, be in such denominations, be in such form, either coupon or registered, carry such registration privileges, be payable in such medium of payment, at such place and be subject to such terms of redemption as the secretary may authorize. The secretary may sell such bonds and notes at public or private sale, at the price the secretary determines. The bonds and notes shall be executed by the secretary, who may use a facsimile signature. The official seal of the department or a facsimile thereof shall be affixed thereto or printed thereon and attested, manually or by facsimile signature, by the secretary, and any coupons attached thereto shall bear the signature or facsimile signature of the secretary. In case the secretary whose signature, or a facsimile of whose signature, appears on any bonds, notes or coupons ceases to be the secretary before delivery of such bonds or notes, such signature or facsimile is nevertheless sufficient for all purposes the same as if he or she had remained in office until such delivery and, in case the seal of the department has been changed after a facsimile has been imprinted on such bonds or notes, such facsimile seal will continue to be sufficient for all purposes.
Any action authorizing any bonds or notes or any issue thereof may contain provisions (subject to such agreements with bondholders or note holders as may then exist, which provisions shall be a part of the contract with the holders thereof) as to pledging all or any part of the revenues of the secretary to secure the payment of the bonds or notes or of any issue thereof; the use and disposition of revenues of the secretary; a covenant to fix, alter and collect rentals, fees, service charges and other charges so that pledged revenues will be sufficient to pay the costs of operation, maintenance and repairs, pay principal of and interest on bonds or notes secured by the pledge of such revenues and provide such reserves as may be required by the applicable action; the setting aside of reserve funds, sinking funds or replacement and improvement funds and the regulation and disposition thereof; the crediting of the proceeds of the sale of bonds or notes to and among the funds referred to or provided for in the action authorizing the issuance of the bonds or notes; the use, lease, sale or other disposition of any solid waste disposal project or any other assets of the secretary; limitations on the purpose to which the proceeds of sale of bonds or notes may be applied and pledging such proceeds to secure the payment of the bonds or notes or of any issue thereof; agreement of the secretary to do all things necessary for the authorization, issuance and sale of bonds in such amounts as may be necessary for the timely retirement of notes issued in anticipation of the issuance of bonds; limitations on the issuance of additional bonds or notes; the terms upon which additional bonds or notes may be issued and secured; the refunding of outstanding bonds or notes; the procedure, if any, by which the terms of any contract with bondholders or note holders may be amended or abrogated, the holders of which must consent thereto, and the manner in which such consent may be given; limitations on the amount of moneys to be expended by the secretary for operating, administrative or other expenses of the secretary; and any other matters, of like or different character, which in any way affect the security or protection of the bonds or notes.
In the event that the sum of all reserves pledged to the payment of such bonds or notes is less than the minimum reserve requirements established in any action authorizing the issuance of such bonds or notes, the secretary shall certify, on or before the first day of December of each year, the amount of such deficiency to the Governor of the state, for inclusion, if the Governor shall so elect, of the amount of such deficiency in the budget to be submitted to the next session of the Legislature for appropriation to the secretary to be pledged for payment of such bonds or notes: Provided, That the Legislature is not required to make any appropriation so requested, and the amount of such deficiencies is not a debt or liability of the state.
The secretary is not liable personally on the bonds or notes or subject to any personal liability or accountability by reason of the issuance thereof.

§22-15B-9. Establishment of reserve funds, replacement and improvement funds and sinking funds; fiscal agent; purposes for use of bond proceeds; application of surplus.

(a) Before issuing any revenue bonds in accordance with the provisions of this article, the secretary shall consult with and be advised by the water development authority as to the feasibility and necessity of the proposed issuance of revenue bonds. Such consultation shall include, but not be limited to, the following subjects:
(1) The relationship of the proposed issuance of revenue bonds to the statutory debt limitation provided for in section eight of this article;
(2) The degree to which the proceeds will be used for capital improvements in the form of real or personal property;
(3) The extent to which the proposed use of proceeds coincides with the purposes of this article;
(4) A weighing of the public benefit to be derived from the issuance as opposed to any private gain; and
(5) The sufficiency of projected revenues available to the secretary to pay the interest on indebtedness as it falls due, to constitute a sinking fund for the payment thereof at maturity, or to discharge the principal within a prescribed period of time.
(b) Prior to issuing revenue bonds under the provisions of this article, the secretary shall enter into agreements satisfactory to the water development authority with regard to the selection of all consultants, advisors and other experts to be employed in connection with the issuance of such bonds and the fees and expenses to be charged by such persons, and to establish any necessary reserve funds and replacement and improvement funds, all such funds to be administered by the water development authority, and, so long as any such bonds remain outstanding, to establish and maintain a sinking fund or funds to retire such bonds and pay the interest thereon as the same may become due. The amounts in any such sinking fund, as and when so set apart by the secretary, shall be remitted to the water development authority at least thirty days previous to the time interest or principal payments become due, to be retained and paid out by the water development authority, as agent for the secretary, in a manner consistent with the provisions of this article and with the action pursuant to which the bonds have been issued. The water development authority shall act as fiscal agent for the administration of any sinking fund and reserve fund established under each action authorizing the issuance of revenue bonds pursuant to the provisions of this article, and shall invest all funds not required for immediate disbursement in the same manner as funds are invested pursuant to the provisions of section fifteen, article one of this chapter.
(c) Notwithstanding any other provision of this article to the contrary, no revenue bonds shall be issued, nor the proceeds thereof expended or distributed, pursuant to the provisions of this article, without the prior approval of the water development authority. Upon such approval, the proceeds of revenue bonds shall be used solely for the following purposes:
(1) To pay the cost of acquiring, constructing, reconstructing, enlarging, improving, furnishing, equipping or repairing solid waste disposal projects;
(2) To make loans to persons or to governmental agencies for the acquisition, design and construction of solid waste disposal projects, taking such collateral security for any such loans as may be approved by the water development authority; and
(3) To pay the costs and expenses incidental to or necessary for the issuance of such bonds.
(d) If the proceeds of revenue bonds issued for any solid waste disposal project exceed the cost thereof; the surplus shall be paid into the fund herein provided for the payment of principal and interest upon such bonds. Such fund may be used by the fiscal agent for the purchase or redemption of any of the outstanding bonds payable from such fund at the market price, but not at a once exceeding the price at which any of such bonds is in the same year redeemable, as fixed by the secretary in such action, and all bonds redeemed or purchased shall forthwith be canceled, and shall not again be issued.
§22-15B-1O. Legal remedies of bondholders.
Any holder of solid waste disposal revenue bonds issued under the authority of this article or any of the coupons appertaining thereto, except to the extent the rights given by this article may be restricted by the applicable action, may by civil action, mandamus or other proceeding, protect and enforce any rights granted under the laws of this state or granted under this article, by the action authorizing the issuance of such bonds, and may enforce and compel the performance of all duties required by this article, or by the action, to be performed by the secretary, including the fixing, charging and collecting of sufficient rentals, fees, service charges or other charges.

§22-15B-I1. Bonds and notes not debt of state, county, municipality or of any political subdivision; expenses incurred pursuant to article.

Solid waste disposal revenue bonds and notes and solid waste disposal revenue refunding bonds issued under authority of this article and any coupons in connection therewith are not a debt or a pledge of the faith and credit or taxing power of this state or of any county, municipality or any other political subdivision of this state, and the holders or owners thereof have no right to have taxes levied by the Legislature or taxing authority of any county, municipality or any other political subdivision of this state for the payment of the principal thereof or interest thereon, but such bonds and notes are payable solely from the revenues and funds pledged for their payment as authorized by this article unless the notes are issued in anticipation of the issuance of bonds or the bonds are refunded by refunding bonds issued under authority of this article, which bonds or refunding bonds are payable solely from revenues and funds pledged for their payment as authorized by this article. All such bonds and notes shall contain on the face thereof a statement to the effect that the bonds or notes, as to both principal and interest, are not debts of the state or any county, municipality or political subdivision thereof; but are payable solely from revenues and funds pledged for their payment. All expenses incurred in carrying out the provisions of this article are payable solely from funds provided under authority of this article. This article does not authorize the secretary to incur indebtedness or liability on behalf of or payable by the state or any county, municipality or political subdivision thereof.

§22-15B-12. Use of funds, properties, etc., by secretary; restrictions thereon.

All moneys, properties and assets acquired by the secretary, whether as proceeds from the sale of solid waste disposal revenue bonds or as revenues or otherwise, shall be held by the secretary in trust for the purposes of carrying out its powers and duties, and shall be used and reused in accordance with the purposes and provisions of this article. Such moneys shall at no time be commingled with other public funds. Such moneys, except as otherwise provided in any action authorizing the issuance of solid waste disposal revenue bonds or except when invested, shall be kept in appropriate depositories and secured as provided and required by law. The action authorizing the issuance of such bonds of any issue shall provide that any officer to whom such moneys are paid shall act as trustee of such moneys and hold and apply them for the purposes hereof; subject to the conditions this article and such action provide.

§22-15B-13. Audit of funds disbursed by the secretary and recipients thereof.

Beginning in the fiscal year ending the thirtieth day of June, two thousand ten, and every second fiscal year thereafter, the Legislature shall cause to be performed a post audit and a performance audit for the intervening two-year period of the recipients of any grant or loan provided by the secretary. The audit shall cover the disbursement of such loans or grants provided pursuant to section thirty, article four of chapter twenty-two-c, the use of such loans or grants by the recipient as well as all other appropriate subject matter.

§22-15B-14. Rentals, fees, service charges and other revenues from solid waste disposal projects; contracts and leases of secretary; cooperation of other governmental agencies; bonds of such agencies.

This section applies to any solid waste disposal project or projects which are owned, in whole or in part, by the secretary.
The secretary may charge, alter and collect rentals, fees, service charges or other charges for the use or services of any solid waste disposal project, and contract in the manner provided by this section with one or more persons, one or more governmental agencies, or any combination thereof; desiring the use or services thereof; and fix the terms, conditions, rentals, fees, service charges or other charges for such use or services. Such rentals, fees, Service charges or other charges are not subject to supervision or regulation by any other authority, department, commission, board, bureau or agency of the state, and such contract may provide for acquisition by such person or governmental agency of all or any part of such solid waste disposal project for such consideration payable over the period of the contract or otherwise as the secretary in his or her sole discretion determines to be appropriate, but subject to the provisions of any action authorizing the issuance of solid waste disposal revenue bonds or notes or solid waste disposal revenue refunding bonds of the secretary. Any governmental agency which has power to construct, operate and maintain solid waste disposal facilities may enter into a contract or lease with the secretary whereby the use or services of any solid waste disposal project of the secretary will be made available to such governmental agency and pay for such use or services such rentals, fees, service charges or other charges as may be agreed to by such governmental agency and the secretary.
Any governmental agency or agencies or combination thereof may cooperate with the secretary in the acquisition or construction of a solid waste disposal project and shall enter into such agreements with the secretary as are necessary, with a view to effective cooperative action and safeguarding of the respective interests of the parties thereto, which agreements shall provide for such contributions by the parties thereto in such proportion as may be agreed upon and such other terms as may be mutually satisfactory to the parties, including, without limitation, the authorization of the construction of the project by one of the parties acting as agent for all of the parties and the ownership and control of the project by the secretary to the extent necessary or appropriate for purposes of the issuance of solid waste disposal revenue bonds by the secretary. Any governmental agency may provide such contribution as is required under such agreements by the appropriation of money or, if authorized by a favorable vote of the electors to issue bonds or notes or levy taxes or assessments and issue notes or bonds in anticipation of the collection thereof; by the issuance of bonds or notes or by the levying of taxes or assessments and the issuance of bonds or notes in anticipation of the collection thereof; and by the payment of such appropriated money or the proceeds of such bonds or notes to the secretary pursuant to such agreements.
Any governmental agency, pursuant to a favorable vote of the electors in an election held for the purpose of issuing bonds to provide funds to acquire, construct or equip, or provide real estate and interests in real estate for a solid waste disposal project, whether or not the governmental agency at the time of such election had the authority to pay the proceeds from such bonds or notes issued in anticipation thereof to the secretary as provided in this section, may issue such bonds or notes in anticipation of the issuance thereof and pay the proceeds thereof to the secretary in accordance with an agreement between such governmental agency and the secretary: Provided, That the governmental agency finds and determines that the solid waste disposal project to be acquired or constructed by the secretary in cooperation with such governmental agency will serve the same public purpose and meet substantially the same public need as the project otherwise proposed to be acquired or constructed by the governmental agency with the proceeds of such bonds or notes.

§22-15B-15. Maintenance, operation and repair of projects; repair of damaged property; reports by secretary to Governor and Legislature.

Each solid waste disposal project, when constructed and placed in operation, shall be maintained and kept in good condition and repair by the secretary or if owned by a governmental agency, by such governmental agency, or the secretary or such governmental agency shall cause the same to be maintained and kept in good condition and repair. Each such project owned by the secretary shall be operated by such operating employees as the secretary employs or pursuant to a contract or lease with a governmental agency or person. All public or private property damaged or destroyed in carrying out the provisions of this article and in the exercise of the powers granted hereunder with regard to any project shall be restored or repaired and placed in its original condition, as nearly as practicable, or adequate compensation made therefor out of funds provided in accordance with the provisions of this article.
As soon as possible after the close of each fiscal year, the secretary shall make an annual report of activities for the preceding fiscal year to the Governor and the Legislature. Each such report shall set forth a complete~operating and financial statement covering the secretary's operations pursuant to this article during the preceding fiscal year. The secretary shall cause an audit of the books and accounts to be made at least once each fiscal year by certified public accountants and the cost thereof may be treated as a part of the cost of construction or of operation of the secretary?s projects. A report of the audit shall be submitted to the Governor and the Legislature.
§22-15B-16. Solid waste disposal revenue bonds lawful investments.
The provisions of sections nine and ten, article six, chapter twelve of this code notwithstanding, all solid waste disposal revenue bonds issued pursuant to this article are lawful investments for the West Virginia State Board of Investments and are also lawful investments for financial institutions as defined in section two, article one, chapter thirty-one-a of this code, and for insurance companies.
§22-15B-17. Exemption from taxation.
The secretary is not required to pay any taxes, fees or assessments upon any solid waste disposal project or upon any property acquired or used by the secretary or upon the income therefrom. Bonds and notes issued by the secretary and all interest and income thereon are exempt from all taxation by this state, or any county, municipality, political subdivision or agency thereof; except inheritance taxes.
§22-15B-18. Governmental agencies authorized to convey property.
All governmental agencies, notwithstanding any provision of law to the contrary, may lease, lend, grant or convey to the secretary, at his or her request, upon such terms as the proper authorities of such governmental agencies deem reasonable and fair and without the necessity for an advertisement, auction, order of court or other action or formality, other than the regular and formal action of the governmental agency concerned, any real property or interests therein, including improvements thereto or personal property which is necessary or convenient to the effectuation of the authorized purposes of the secretary, including public roads and other real property or interests therein, including improvements thereto or personal property already devoted to public use.

§22-15B-19. Financial interest in contracts, projects, etc., prohibited; gratuities prohibited; penalty.

No employee of the Department of Environmental Protection may be financially interested, directly or indirectly, in any contract of any person with the secretary, or in the sale of any property, real or personal, to or by the secretary. This section does not apply to contracts or purchases of property, real or personal, between the secretary and any governmental agency.
No employee of the Department of Environmental Protection may have or acquire any financial interest, either direct or indirect, in any project or activity of the secretary or in any services or material to be used or furnished in connection with any project or activity of the secretary. If an employee of the Department of Environmental Protection has any such interest at the time he or she becomes an employee, he or she shall disclose such interest to the secretary and shall divest himself or herself of it. Failure to do so is cause for dismissal from the position he or she holds with the Department of Environmental Protection.
Any employee of the Department of Environmental Protection who has any financial interest prohibited by this section or who fails to comply with its provisions is guilty of a misdemeanor and, upon conviction thereof; shall be fined not more than one thousand dollars, or imprisoned in jail not more than one year, or both fined and imprisoned.

§22-15B-20. Cooperation of secretary 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 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 secretary and such enforcement agencies shall cooperate fully with each other in collecting and disposing of such solid waste.
§22-15J-21. Liberal construction of article.
The provisions of this article are hereby declared to be remedial and shall be liberally construed to effectuate its purposes and intents.

§22-l5B-22. Supersedure over county and regional solid waste authorities.

For purposes of exercising the authority provided under section nine-a, article four, chapter twenty-two-c, the secretary may by action supersede and exercise, in part or whole, the powers granted only to county or regional solid waste authorities that operate solid waste facilities as provided in chapters seven, twenty-two, twenty-two-c and twenty-four of this code. Actions of the secretary supersede those powers granted only to county or regional solid waste authorities that operate solid waste facilities.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS,
AUTHORITIES, COMMISSIONS AND COMPACTS.
ARTICLE 4. REGIONAL SOLID WASTE AUTHORITIES.
§22C-4-1. Legislative findings and purposes.
The Legislature finds that the improper and uncontrolled collection, transportation, processing and disposal of domestic and commercial garbage, refuse and other solid wastes in the State of West Virginia results in: (1) A public nuisance and a clear and present danger to the citizens of West Virginia; (2) the degradation of the state's environmental quality including both surface and ground waters which provide essential and irreplaceable sources of domestic and industrial water supplies; (3) provides harborages and breeding places for disease-carrying, injurious insects, rodents and other pests injurious to the public health, safety and welfare; (4) decreases public and private property values and results in the blight and deterioration of the natural beauty of the state; (5) has adverse social and economic effects on the state and its citizens; and (6) results in the waste and squandering of valuable nonrenewable resources contained in such solid wastes which can be recovered through proper recycling and resource-recovery techniques with great social and economic benefits for the state.
The Legislature further finds that the proper collection, transportation, processing, recycling and disposal of solid waste is for the general welfare of the citizens of the state and that ~~the lack of~~ proper and effective solid waste collection services and disposal facilities ~~demands that the State of West Virginia and its political subdivisions act promptly to secure such services and facilities~~ in are essential to both the public and private sectors.
The Legislature further finds that the process of developing and implementing rational and sound solid waste plans at the ~~county or regional level is impeded by the proliferation of siting proposals for new solid waste facilities~~ regional level will be enhanced by being performed exclusively on a regional basis state-wide instead of on either a regional or county basis.
Therefore, it is the purpose of the Legislature to protect the public health and welfare by providing for a comprehensive program of regional solid waste collection, processing, recycling and disposal to be implemented by state and local government in cooperation with the private sector. The Legislature intends to accomplish this goal by eliminating county solid waste control authorities and establishing ~~county and~~ regional solid waste authorities throughout the state to develop and implement litter and solid waste control plans.
It is further the purpose of the Legislature to reduce ~~our~~ the state's solid waste management problems and to meet the purposes of this article by requiring ~~county and~~ regional solid waste authorities to establish programs and plans based on an integrated waste management hierarchy. In order of preference, the hierarchy is as follows:
(1) Source reduction. -- This involves minimizing waste production and generation through product design, reduction of toxic constituents of solid waste and similar activities.
(2) Recycling, reuse and materials recovery. -- This involves separating and recovering valuable materials from the waste stream, composting food and yard waste and marketing of recyclables.
(3) Landfilling. -- To the maximum extent possible, this option should be reserved for nonrecyclables and other materials that cannot practically be managed in any other way. This is the lowest priority in the hierarchy and involves the waste management option of last resort.
The Legislature further finds that the potential impacts of proposed commercial solid waste facilities may have a deleterious and debilitating impact upon the transportation network, property values, economic growth, environmental quality, other land uses and the public health and welfare in affected communities. The Legislature also finds that the siting of such facilities is not being adequately addressed to protect these compelling interests of counties and local communities.
The Legislature further finds that affected citizens and local governments often look to state environmental regulatory agencies to resolve local land-use conflicts engendered by these proposed facilities. The Legislature also finds that such local land-use conflicts are most effectively resolved in a local governmental forum where citizens can most easily participate in the decision making process and the land-use planning values of local communities most effectively identified and incorporated into a comprehensive policy which reflects the values and goals of those communities.
Therefore, it is the purpose of the Legislature to enable local citizens to resolve the land-use conflicts which may be created by proposed commercial solid waste facilities through the existing forum of county or regional solid waste authorities.
§22C-4-2. Definitions.
Unless the context clearly requires a different meaning, as used in this article, the terms:
(a) "Approved solid waste facility" means a commercial solid waste facility or practice which has a valid permit or compliance order under article fifteen, chapter twenty-two of this code.
(b) "Board" means the Board of a Solid Waste Authority.
~~(b)~~ (c) "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 disposing of solid wastes created by that person or that person and another person 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.
~~(c)~~ (d) "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.
~~(d)~~ (e) "Class A facility" means a commercial solid waste facility which handles an aggregate of between ten 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.
~~(e)~~ (f) "Class B facility" means a commercial solid waste facility which receives or is expected to receive an average daily quantity of mixed solid waste equal to or exceeding one hundred tons each working day, or serves or is expected to serve a population equal to or exceeding forty thousand persons, but which does not receive solid waste exceeding an aggregate of ten thousand tons per month. Class B facilities do not include construction/demolition facilities: Provided, That the definition of Class B facility may include such reasonable subdivisions or subclassifications as the director may establish by legislative rule proposed in accordance with the provisions of chapter twenty-nine-a of this code.
~~(f)~~ (g) "Compliance order" means an administrative order issued pursuant to section ten, article fifteen, chapter twenty-two of this code authorizing a solid waste facility to operate without a solid waste permit.
~~(g)~~ (h) "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.
~~(h)~~ (i) "Person" 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; the 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.
(j) "secretary" means the secretary of the Department of Environmental Protection.
~~(i)~~ (k) "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.
~~(j)~~ (l) "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, other discarded material, 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 eleven, chapter twenty-two of this code, 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 eighteen, chapter twenty-two of this code, or refuse, slurry, overburden or other waste 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 article two, three, four, six, seven, eight, nine or ten, chapter twenty-two or chapter twenty-two-a of this code, so long as such placement or disposal is in conformance with a permit issued pursuant to said chapters. "Solid waste" does not include materials which are recycled by being used or reused in an industrial process to make a product, as effective substitutes for commercial products, or are returned to the original process as a substitute for raw material feedstock.
~~(k)~~ (m) "Solid waste disposal" means the practice of disposing of solid waste including placing, depositing, dumping or throwing or causing to be placed, deposited, dumped or thrown any solid waste.
~~(l)~~ (n) "Solid waste disposal shed" means the geographical area which the ~~solid waste management board~~ secretary designates and files in the state register pursuant to section ~~nine, article three~~ seven, article fifteen-b of ~~this~~ chapter twenty-two.
~~(m)~~ (o) "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, resource-recovery facilities and other such facilities not herein specified. Such facility is situated, for purposes of this article, in the county where the majority of the spatial area of such facility is located.
~~(n)~~ (p) "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.
~~(o)~~ (q) "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.
~~(p)~~ (r) "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.
~~(q)~~ (s) "Materials recovery facility" means any solid waste facility at which solid wastes are manually or mechanically shredded or separated so that materials are recovered from the general waste stream for purposes of reuse and recycling.
(t) "Universal collection program" means solid waste collection and disposal services for all county residents at their residences, where practicable, or the use of refuse collection stations at disposal access points in areas where residential collection is not practicable.

§22C-4-4. Establishment of regional solid waste authorities authorized; successor to county solid waste authorities; appointments to board of directors; vacancies.

(a) ~~On and after the first day of January, one thousand nine hundred eighty-nine, any two or more~~ Upon the effective date of this act, all counties within the same solid waste shed ~~and with the approval of the solid waste management board, may establish~~ shall become members of a regional Solid Waste Authority for that solid waste shed. Such a regional Solid Waste Authority is a public agency and is the successor to any county solid waste authority existing on the effective date of this act. said approval by the solid waste management board. The solid waste management board may require a county authority to cooperate and participate in programs with other county and regional authorities if the need arises
(b) The board of directors of the regional Solid Waste Authority are appointed as follows: One by the ~~director~~ secretary of the ~~division~~ Department of Environmental Protection, two by the county commission of each county participating therein, one by the board of supervisors for each soil conservation district in which a county of the region is situated, one by the chairman of the Public Service Commission and two municipal representatives from each county having one or more participating municipality to be selected by the mayors of the participating municipality from each such county. The members of the board are appointed for terms of four years. ~~for which the initial terms start on the first day of July, one thousand nine hundred eighty-eight:~~ ~~Provided,~~ That the members appointed by the county commission shall be appointed to initial terms of two and four years, respectively, and to terms of four years after the expiration of each such initial term: ~~Provided, however,~~ That on and after the first day of July, two thousand, the member appointed by the director of the division of environmental protection shall be appointed to an initial term of one year and for a term of four years for each appointment thereafter: ~~Provided further,~~ ~~That the member appointed by the chairman of the Public Service Commission shall be appointed to an initial term of three years and for a term of four years for each appointment thereafter:~~ ~~And provided further,~~ That of the two members appointed by the mayors from each county, one shall be appointed to an initial term of one year and for a term of four years for each appointment thereafter, and one shall be appointed to an initial term of three years and for a term of four years for each appointment thereafter The members shall serve at the will and pleasure of their respective appointing authorities. The members of the board shall receive no compensation for their service thereon but shall be reimbursed their actual expenses incurred in the discharge of their duties. Vacancies in the office of member of the board of directors shall be filled for the balance of the remaining term by the appropriate appointing authority within sixty days after such vacancy occurs. No member who has any financial interest in the collection, transportation, processing, recycling or the disposal of refuse, garbage, solid waste or hazardous waste shall vote or act on any matter which directly affects the member's personal interests.

§22C-4-5. Authorities as successor to county commissions and former county solid waste authorities.

The ~~county and~~ regional solid waste authorities ~~created herein, as the case may be,~~ are the successors to the county commissions of each county, or the county solid waste authority previously created ~~by said commission~~ and abolished as of the first day of July, two thousand seven, ~~January, one thousand nine hundred eighty-nine~~ by this article, in ~~the ownership, operation and maintenance of such dumps, landfills and other solid waste facilities, solid waste collection services and litter and solid waste control programs~~ all powers, functions, rights, authority and ownership regarding solid waste. The county commission of each county, or the county solid waste authority ~~thereof,~~ shall, ~~on the first day of January, one thousand nine hundred eighty-nine~~ within ninety days after the effective date of this act or the establishment of a regional Solid Waste Authority encompassing the county, whichever comes first, transfer all ownership, operation, control and other rights, title and interests in such solid waste facilities, services and programs, and the properties, funds, appropriations and contracts related thereto to the ~~county or~~ regional Solid Waste Authority established pursuant to this article.

§22C-4-7. Management of regional authority vested in board of directors; expenses paid by county commissions, procedure.

(a) The management and control of ~~the~~ each regional authority, its property, operations and affairs of any nature is vested in and governed by ~~the~~ its board of directors.
(b) The expenses of any county solid waste authority incurred for necessary secretarial and clerical assistance, office supplies and general administrative expenses, in the development of the litter and solid waste control plan under section eight of this article and to provide solid waste collection and disposal services under this article shall be paid by the county commission from the General Funds in the county treasury to the extent that such expenses are not paid by fees, grants and funds received by the authority from other sources. The county commission has the authority to determine the amount to be allocated annually to the authority.
~~(c)~~ (b) The expenses of any regional Solid Waste Authority incurred for necessary secretarial and clerical assistance, office supplies and general administrative expenses, or for the development of the litter and solid waste control plan under section eight of this article, or to provide solid waste collection and disposal services under this article shall be paid by the county commissions of each participating county from general funds in the county treasury to the extent that such expenses are not paid by fees, grants and funds from other sources received by the authority. Each county participating in the regional Solid Waste Authority shall pay a pro rata share of such expenses based upon the population of said county in the most recent decennial census conducted by the United States Census Bureau. Prior to any county becoming liable for any expenses of the authority under this subsection, the authority's annual budget must first be approved by the ~~solid waste management board~~ secretary.
~~(d)~~ (c) An organizational meeting of each board of directors shall be held as soon as practicable. ~~at which time~~ Each board shall elect a chair and vice chair shall be elected from among the members of the board to serve a term of one year after which such officers shall be elected annually. The board of directors shall also appoint a secretary-treasurer, who need not be a member of the board of directors, and who shall give bond in a sum determined adequate to protect the interests of the authority by the ~~director~~ secretary of the ~~division~~ Department of Environmental Protection. The board shall meet at such times and places as it or the chair may determine. It is the duty of the chair to call a meeting of the board upon the written request of a majority of the members thereof. The board shall maintain an accurate record and minutes of all its proceedings and is subject to the provisions of article one, chapter twenty-nine-b of this code, the freedom of information act and article nine-a, chapter six of this code, open governmental proceedings. A majority of the board is a quorum for the transaction of business.

§22C-4-8. Regional Solid Waste Authority to develop litter and solid waste control plan; approval by secretary; development of plan by secretary; advisory rules.

(a) Each ~~county and~~ new regional Solid Waste Authority is required to develop a comprehensive litter and solid waste control plan for its geographic area and to submit said plan to the ~~solid waste management board~~ secretary on or before ~~the first day of July, one thousand nine hundred ninety-one~~ ninety days after formation of the regional Solid Waste Authority. Each authority shall submit a draft litter and solid waste control plan to ~~the solid waste management board~~ secretary ~~by the thirty-first day of March, one thousand nine hundred ninety-one~~ within ninety days after formation of any regional Solid Waste Authority. The comments received by the ~~county or~~ regional Solid Waste Authority at public hearings, two of which are required, shall be considered in developing the final plan.
(b) Each litter and solid waste control plan shall include provisions for:
(1) An assessment of litter and solid waste problems in the county;
(2) The establishment of solid waste collection and disposal services for all county residents at their residences, where practicable, or the use of refuse collection stations at disposal access points in areas where residential collection is not practicable; In developing such collection services, primacy shall be given to private collection services currently operating with a certificate of convenience and necessity from the motor carrier division of the Public Service Commission
(3) The evaluation of the feasibility of requiring or encouraging the separation of residential or commercial solid waste at its source prior to collection for the purpose of facilitating the efficient and effective recycling of such wastes and the reduction of those wastes which must be disposed of in landfills or by other nonrecycling means;
(4) The establishment of an appropriate mandatory garbage disposal program which shall include methods whereby residents must prove either: (i) Payment of garbage collection fee; or (ii) proper disposal at an approved solid waste facility or in an otherwise lawful manner;
(5) A recommendation for the siting of one or more properly permitted public or private solid waste facilities, whether existing or proposed, to serve the solid waste needs of the county or the region ~~as the case may be,~~ consistent with the comprehensive county plan prepared by the county planning commission and the anticipated volumes of solid waste originating within or without the county or region which are likely to be disposed of within the county or region;
(6) A timetable for the implementation of said plan;
(7) A program for the cleanup, reclamation and stabilization of any open and unpermitted dumps;
(8) The coordination of the plan with the related solid waste collection and disposal services of municipalities and, if applicable, other counties;
(9) A program to enlist the voluntary assistance of private industry and civic groups in volunteer cleanup efforts to the maximum practicable extent;
(10) Innovative incentives to promote recycling efforts;
(11) A program to identify the anticipated quantities of solid wastes which are disposed of, but are not generated by sources situated, within the boundaries of the county or the region established pursuant to this section;
(12) Coordination with the Division of Highways and other local, state and federal agencies in the control and removal of litter and the cleanup of open and unpermitted dumps;
(13) Establishment of a program to encourage and utilize those individuals incarcerated in the regional jail and those adults and juveniles sentenced to probation for the purposes of litter pickup; and
(14) Provision for the safe and sanitary disposal of all refuse from commercial and industrial sources within the county or region, as the case may be, including refuse from commercial and industrial sources, but excluding refuse from sources owned or operated by the state or federal governments.
~~(c) The solid waste management board shall establish advisory rules to guide and assist the counties in the development of the plans required by this section.~~
~~(d)~~ (c) Each plan prepared under this section is subject to approval by the solid waste management board. Any plan rejected by the ~~solid waste management board~~ secretary shall be returned to the regional ~~or county~~ Solid Waste Authority with a statement of the insufficiencies in such plan. The authority shall revise the plan to eliminate the insufficiencies and submit it to the director within ninety days.
~~(e)~~ (d) The ~~solid waste management board~~ secretary shall develop a litter and solid waste control plan for any county or regional Solid Waste Authority which fails to submit such a plan on or before the ~~first day of July, one thousand nine hundred ninety-two:~~ ~~Provided,~~ ~~That in preparing such plans the director may determine whether to prepare a regional or county based plan for those counties which fail to complete such a plan~~ deadlines set in this section.
(e) County plans already in place on the effective date of this legislation shall remain in effect until superceded by a new regional comprehensive litter and solid waste control plan.

§22C-4-8a. Requirement for universal solid waste collection program by regional Solid Waste Authority or municipality; options; term limits on contracts or franchises; registration and reports; agreements; exclusions.

(a) Each regional Solid Waste Authority shall be responsible for providing the universal collection program described in this section, except for any city that has elected to provide service within its municipal boundaries as provided herein. The regional Solid Waste Authority or municipality may enter into agreements with any person for the performance of the responsibilities described in this section.
(b) Each regional Solid Waste Authority shall by the first day of October, two thousand seven, or within ninety days after formation of a new regional Solid Waste Authority, provide a universal collection program for all solid waste generated within the region. Collection programs shall include one or more of the following options:
(1) Door-to-door household collection: Collection service may be provided by the regional authority, by contract, or franchise;
(2) Direct haul to staffed convenience centers or staffed transfer facilities within the region: The regional Solid Waste Authority may allow residents to take their waste directly to designated staffed convenience centers or staffed transfer facilities within the region. The number of convenience centers and transfer facilities shall be adequate to assure reasonable convenience; and
(3) Other alternatives may be proposed by the regional authorities, including, but not limited to, subscription service and unstaffed convenience centers, provided the regional authority can demonstrate that all of its citizens are being given reasonable and convenient access to the solid waste collection system which is proposed.
(c) A municipality may elect not to participate as part of the programs established by the regional Solid Waste Authority. If a municipality elects not to participate it must by the date applicable under subsection (2), above, establish a universal collection program for all solid waste generated within the city by door-to-door collection by one or more of the following options; service provided by the city, by contract, or franchise. If a municipality fails to so elect, fails to establish a universal collection program by the first day of October, two thousand seven, or ends its universal collection program, the municipality shall be considered within the plan of the regional Solid Waste Authority.
(d) No contract or franchise entered into or granted by a regional Solid Waste Authority or municipality shall have a term that exceeds five calendar years.
(e) Beginning the first day of October, two thousand seven, all persons providing solid waste collection or transportation service, including collection for the purpose of recycling, shall register annually with the secretary and with the regional Solid Waste Authority for all regions within which such persons provide service.
(f) Beginning the first day of October, two thousand seven, no person providing solid waste collection or transportation service shall provide such service in any manner inconsistent with the provisions of the collection plan developed by the regional Solid Waste Authority or municipality, whichever applies to the area being served.
(g) Beginning the first day of October, two thousand seven, all persons providing collection or transportation service, including collection for the purpose of recycling, shall report annually to the regional Solid Waste Authority or municipality in which they provide the service. The reports shall include:
(A) The number of households, businesses, and industries from which they collected solid waste during the previous year;
(B) The amount, by weight, of solid waste collected for disposal during the previous calendar year;
(C) The amount, by weight, of solid waste collected for recycling during the previous calendar year; and
(D) The types of items collected for recycling.
(h) The regional Solid Waste Authority and municipality, if not participating with the regional authority, shall submit an annual report to the secretary of the Department of Environmental Protection detailing its solid waste collection activities in accordance with this section and any requirements established by statute or rule.

§22C-4-9. Assistance to county or regional solid waste authorities by the Solid Waste Management Board, Division of Natural Resources, Department of Environmental Protection, Bureau of Public Health and the Attorney General.

(a) The Division of Natural Resources, the ~~division~~ Department of Environmental Protection, ~~the solid waste management board,~~ and the bureau of public health shall provide technical assistance to each ~~county and~~ regional Solid Waste Authority as reasonable and practicable for the purposes of this article within the existing resources and appropriations of each agency available for such purposes. The Attorney General shall provide legal counsel and representation to each ~~county and~~ regional Solid Waste Authority for the purposes of this article within the existing resources and appropriations available for such purposes, or with the written approval of the Attorney General, said authority may employ counsel to represent it.
(b) The ~~solid waste management board~~ secretary shall provide assistance to the ~~county or~~ regional solid waste authorities, municipalities and other interested parties in identifying ~~and securing~~ markets for recyclables.

§22C-4-9a. Findings, secretary's performance reviews and measures, legislative rules, intervention of impaired authorities, establishment of uniform chart of accounts, financial examination requirements.

(a) The Legislature finds that performance review and performance measurement are valuable tools for identifying serious impairments of commercial solid waste facilities operated by ~~county or regional~~ solid waste authorities and fostering accountability and effective and efficient facility operations.
(b) The ~~Solid Waste Management Board~~ secretary shall conduct a biennial performance review of each ~~county and regional~~ solid waste authority that operates a commercial solid waste facility: Provided, That the ~~Solid Waste Management Board~~ secretary may conduct a performance review at any time it determines a performance review to be necessary.
(c) The ~~Solid Waste Management Board~~ secretary shall develop and maintain a system of annual and quarterly or more frequent performance measures useful in gauging the productivity and operational health of ~~county and regional~~ solid waste authorities operating commercial solid waste facilities. The authorities shall provide the performance measurement data in accordance with the legislative rule required under subsection (d) of this section.
(d) No later than the first day of August, two thousand ~~six~~ eight, the ~~Solid Waste Management Board~~ secretary in consultation and collaboration with the Public Service Commission, shall propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement a performance review process and system of quarterly performance measures designed pursuant to subsections (b) and (c) of this section.
(e) For the purposes of this section, "performance review" means an accountability system which establishes benchmarks to evaluate and determine the effective and efficient performance of a ~~county~~ solid waste authority operating a commercial solid waste facility. ~~or regional solid waste authority operating a commercial solid waste facility~~
(f) For the purposes of this section, "performance measures" means outcome and output measures. "Outcomes" represent effects or results of programs. Outputs" represent the units of services or activities produced.
(g) In promulgating the rules required by subsection (d) of this section, the ~~Solid Waste Management Board~~ secretary shall establish criteria to be considered in conducting performance reviews, establish benchmarks to identify serious impairments, establish a recommendation process for correcting impairments and establish penalties for failure to comply, including a process for temporary intervention by the ~~Solid Waste Management Board~~ secretary to correct impairments.
(h) When the ~~Solid Waste Management Board~~ secretary determines through a performance review or regular monitoring of performance measures that an authority's commercial solid waste facility is seriously impaired and the authority does not correct the impairments, the intervention process may include, but is not limited to, the following methods:
(1) Appointing a team of improvement consultants to conduct on-site reviews and make strategic recommendations toward remedy of the serious impairments;
(2) Directing the authority's board of directors to prioritize and target its funds strategically toward alleviating the serious impairments;
(3) Recommending to the agencies that appoint the members of the authority's board of directors, as provided by ~~subsection (b), section three, and subsection (b),~~ section four of this article, that one or more members of the authority's board of directors be replaced;
(4) The ~~Director of the Solid Waste Management Board~~ secretary, or his or her designee, may temporarily during intervention, preside as chair of the county or regional Solid Waste Authority board meetings; and
(5) Exercising powers of supersedure provided under section ~~twenty-six, article three of this chapter~~ twenty-three, article fifteen-b of chapter twenty-two of this code.
(i) The State Auditor in consultation and collaboration with the ~~Solid Waste Management Board~~ secretary and the Public Service Commission shall establish a uniform chart of accounts delineating common revenue and expense account naming conventions to be adopted by all ~~county and regional~~ solid waste authorities, beginning no later than the first day of July, two-thousand six.
(j) The State Auditor's chief inspector and supervisor of local government offices shall conduct an annual examination on the financial report of county and regional solid waste authorities with an audit occurring every third year. Additionally, the chief inspector, upon request by ~~the Solid Waste Management Board~~ secretary, shall conduct an audit of any ~~county or regional~~ solid waste authority that operates a commercial solid waste facility as a part of the performance review required by this section. The definitions of "examination", "audit" and "review" provided in section one-a, article nine, chapter six of this code apply to this subsection.

§22C-4-10. Mandatory disposal; proof required; penalty imposed.

(a) Each person occupying a residence or operating a business establishment in this state shall either:
(1) Subscribe to and use a solid waste collection service and pay the fees established therefor; or
(2) Provide proper proof, as provided in the rules of the secretary that said person properly disposes of solid waste at approved solid waste facilities or in any other lawful manner. The director of the division of environmental protection shall promulgate rules pursuant to chapter twenty-nine-a of this code regarding an approved method or methods of supplying such proper proof.
(b) A civil penalty of one hundred fifty dollars shall be assessed to the person not receiving solid waste collection services in addition to the unpaid fees for every year that a fee is not paid.
(b) The solid waste management board in consultation and collaboration with the Public Service Commission shall prepare and submit, no later than the first day of October, one thousand nine hundred ninety-two, a report concerning the feasibility of implementing a mandatory fee for the collection and disposal of solid waste in West Virginia: ~~Provided,~~ That such plan shall consider such factors as affordability, impact on open dumping and other relevant matters. The report shall be submitted to the Governor, the president of the Senate and the speaker of the House of Delegates.
(c) The Public Service Commission in consultation and collaboration with the division of human services shall prepare and submit, no later than the first day of October, one thousand nine hundred ninety-two, a report concerning the feasibility of reducing solid waste collection fees to individuals who directly pay such fees and who receive public assistance from state or federal government agencies and are therefore limited in their ability to afford to pay for solid waste disposal. This report shall consider the individual's health and income maintenance and other relevant matters. This report shall also include recommended procedures for individuals or households to qualify for and avail themselves of a reduction in fees. This report shall be submitted to the Governor, the president of the Senate and the speaker of the House of Delegates.

§22C-4-11. Acquisition of land; operation of public solid waste landfills and other facilities; restrictions on solid wastes generated outside authority area; fees.

Upon approval of the litter and solid waste control plan by the ~~solid waste management board~~ secretary, the ~~county or~~ regional Solid Waste Authority may acquire, by purchase, lease, gift or otherwise, land for the establishment of solid waste facilities and is authorized to construct, operate, maintain and contract for the operation of such facilities. The authority may pay for lease or acquisition of such lands and the construction, operation and maintenance of such solid waste facilities from such fees, grants, financing by the solid waste program of the ~~division~~ Department of Environmental Protection or funds from other sources as may be available to the authority. The authority may prohibit the deposit of any solid waste in such solid waste facilities owned, leased or operated by the authority which have originated from sources outside the geographic limits of the ~~county or~~ region. The authority board of directors shall establish and charge reasonable fees for the use of such facilities operated by the authority.
§22C-4-12. Bonds and notes.
For constructing or acquiring any solid waste facilities for the authorized purposes of the authority ~~or necessary or incidental thereto,~~ and for constructing improvements and extension thereto, and also for reimbursing or paying the costs and expenses of creating the authority, if any, the board of any such authority is hereby authorized to borrow money from time to time and in evidence thereof issue the bonds or notes of such authority, payable from the revenues derived from the operation of the solid waste facilities under control of the authority or from such other funds as are available to the authority for such purpose. Such bonds or notes may be issued in one or more series, may bear such date or dates, may mature at such time or times not to exceed forty years from their respective dates, may bear interest at such rate or rates, payable at such times, may be in such form, may carry such registration privileges, may be executed in such manner, may be payable at such place or places, may be subject to such terms of redemption with or without premium, may be declared or become due before maturity date thereof, may be authenticated in any manner, and upon compliance with such conditions, and may contain such terms and covenants as may be provided by resolution or resolutions of the board. Notwithstanding the form or tenor thereof, and in the absence of any express recital on the face thereof, that the bond or note is nonnegotiable, all such bonds or notes are, and shall be treated as, negotiable instruments for all purposes. The bonds or notes shall be executed by the chair of the board, who may use a facsimile signature. The official seal of the authority or a facsimile thereof shall be affixed to or printed on each bond or note and attested, manually or by facsimile signature, by the secretary-treasurer of the board, and any coupons attached to any bond or note shall bear the signature or facsimile signature of the chair of the board. Bonds or notes bearing the signatures of officers in office on the date of the signing thereof are valid and binding for all purposes notwithstanding that before the delivery thereof any or all of the persons whose signatures appear thereon have ceased to be such officers. Notwithstanding the requirements or provisions of any other law, any such bonds or notes may be negotiated or sold in such manner and at such time or times as is found by the board to be most advantageous. Any resolution or resolutions providing for the issuance of such bonds or notes may contain such covenants and restrictions upon the issuance of additional bonds or notes thereafter as may be deemed necessary or advisable for the assurance of the payment of the bonds or notes thereby authorized.
§22C-4-14. Bonds or notes may be secured by trust indenture.
In the discretion and at the option of the authority board, such bonds or notes may be secured by a trust indenture by and between the authority and a corporate trustee, which may be a trust company or bank having powers of a trust company within or without the State of West Virginia. The resolution authorizing the bonds or notes and fixing the details thereof may provide that such trust indenture may contain such provisions for protecting and enforcing the rights and remedies of bondholders as may be reasonable and proper, not in violation of law, including covenants setting forth the duties of the authority and the members of its board and officers in relation to the construction or acquisition of solid waste facilities and the improvement, extension, operation, repair, maintenance and insurance thereof, and the custody, safeguarding and application of all moneys, and may provide that all or any part of the construction work shall be contracted for, constructed and paid for, under the supervision and approval of consulting engineers employed or designated by the board and satisfactory to the original bond purchasers, their successors, assignees or nominees, who may be given the right to require the security given by contractors and by any depository of the proceeds of bonds or notes or revenues of the solid waste facilities or other money pertaining thereto be satisfactory to such purchasers, their successors, assignees or nominees. Such indenture may set forth the rights and remedies of the bondholders or note holders and such trustee.
§22C-4-20. Indebtedness of authority.
No constitutional or statutory limitation with respect to the nature or amount of or rate of interest on indebtedness which may be incurred by municipalities, counties or other public or governmental bodies applies to the indebtedness of an authority. No indebtedness of any nature of authority is an indebtedness of the state of West Virginia or any municipality or county therein or a charge against any property of said State of West Virginia or any municipalities or counties. No indebtedness or obligation incurred by any authority gives any right against any member of the governing body of any municipality ~~or any member of the authority of any county~~ or any member of the board of any authority. The rights of creditors of any authority are solely against the authority as a corporate body and shall be satisfied only out of property held by it in its corporate capacity.

§22C-4-22. Use of prisoners for litter pickup; funds provided from litter control fund; county commission, regional jail and correctional facility authority and sheriff to cooperate with solid waste authority.

Upon the approval of the litter and solid waste control plan as provided in section eight hereof, each county and regional Solid Waste Authority is hereby authorized and directed to implement a program to utilize those individuals incarcerated in the county or regional jails for litter pickup within the limits of available funds. Such program shall be funded from those moneys allocated to the authority by the ~~director of the Division of Natural Resources from the litter control fund pursuant to section twenty-six, article four, chapter twenty of this code~~ secretary for that purpose. The authority may expend such additional funds for this program as may be available from other sources. The county commission and the sheriff of each county and the regional jail and correctional facility authority shall cooperate with the county or regional Solid Waste Authority in implementing this program pursuant to section one, article eleven-a, and sections three and thirteen, article twelve, chapter sixty-two of this code.

§22C-4-23. Powers, duties and responsibilities of a regional Solid Waste Authority generally.

The authority may exercise all powers necessary or appropriate to carry out the purposes and duties provided in this article, including the ~~following~~ power to:
(1) Sue and be sued, plead and be impleaded and have and use a common seal.
(2) To Conduct its business in ~~the name of the county solid waste authority or the regional solid waste authority, as the case may be, in the names of the appropriate counties~~ its own name.
(3) ~~The authority board of directors shall~~ Promulgate rules ~~to implement the provisions of sections nine and ten of this article and is authorized to promulgate rules for purposes of this article and~~ for the general operation and administration of authority affairs.
(4) Adopt, and from time to time, amend and repeal bylaws necessary and proper for the conduct of its affairs consistent with this article.
(5) To Promulgate such rules as may be proper and necessary to implement the purposes and ~~duties~~ requirements of this article.
(6) Acquire, construct, reconstruct, enlarge, improve, furnish, equip, maintain, repair, operate, lease or rent or contract for the operation by any person, partnership, corporation or governmental agency, any solid waste facility or collection, transportation and processing facilities related thereto.
(7) Issue negotiable bonds, notes, debentures or other evidences of indebtedness and provide for the rights of the holders thereof, incur any proper indebtedness and issue any obligations and give any security therefor which it may deem necessary or advisable in connection with exercising powers as provided herein.
(8) Make available the use or services of any solid waste disposal facility and collection, transportation and processing facilities related thereto, to any person, partnership, corporation or governmental agency consistent with this article.
(9) Acquire by gift or purchase, hold and dispose of real and personal property in the exercise of its powers and duties.
(10) Make and enter all contracts, leases and agreements and to execute all instruments necessary or incidental to the performance of its duties and powers.
(11) Employ managers, engineers, accountants, attorneys, planners and such other professional and support personnel as are necessary in its judgment to carry out the provisions of this article.
(12) Receive and accept from any source such grants, fees, real and personal property, contributions, funds transferred from a solid waste facility and funds of any nature as may become available to the authority, in order to carry out the purposes of this article including but not limited to the development, operation or management of litter control programs and recycling programs: Provided, That nothing contained in this subsection shall be construed to extend the authority or jurisdiction of the Public Service Commission to activities under this subsection solely because the activities are funded by moneys transferred from a solid waste facility, nor may the use of transferred funds by a solid waste authority be considered by the Public Service Commission in carrying out its duties under section one-f, article two, chapter twenty-four of this code.
(13) Cooperate with and make such recommendations to local, state and federal government and the private sector in the technical, planning and public policy aspects of litter control and solid waste management as the authority may find appropriate and effective to carry out the purposes of this article.
(14) Charge, alter and collect rentals, fees, service charges and other charges for the use or services of any solid waste facilities or any solid waste collection, transportation and processing services provided by the authority.
(15) Prohibit the dumping of solid waste outside the hours of operation of a solid waste facility.
(16) Enforce the hours of operation of a solid waste facility and the mandatory disposal provision in section ten of this article by referring violations to the division of environmental protection or the appropriate law-enforcement authorities.
(17) Do all acts necessary and proper to carry out the powers expressly granted to the authority by this article and powers conferred upon the authority by this article.
All rules promulgated by the authority pursuant to this article are exempt from the provisions of article three, chapter twenty-nine-a of this code.

§22C-4-24. Commercial solid waste facility siting plan; facilities subject to plan; criteria; approval by secretary; effect on facility siting; public hearings; rules.

(a) ~~On or before the first day of July, one thousand nine hundred ninety-one~~ Within ninety days after the effective date of this act, 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~~ secretary 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~~ secretary 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~~ secretary.
(d) The siting plan takes effect upon approval by the ~~Solid Waste Management Board~~ secretary pursuant to the rules promulgated for this purpose. Upon approval of the plan, the ~~Solid Waste Management Board~~ secretary shall transmit a copy thereof ~~to the secretary of the 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~~ secretary, 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: Provided, however, That a commercial solid waste facility permitted by the department and situated within the permitted area of a Class B landfill may operate at the landfill site.
(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~~ secretary 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 presiting 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~~ secretary 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~~ secretary 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 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~~ secretary 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~~ secretary.
(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~~ secretary 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~~ secretary 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 of any regional authority 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 seventeen, article fifteen-a, chapter twenty-two of this code are continued in full force and effect to the extent that those provisions do not conflict with the provisions of this article.
(l) Previously approved county plans will remain in effect until a regional plan encompassing that county is approved.
(m) Notwithstanding other provisions of this article, all areas previously identified as tentatively prohibited shall be designated as prohibited until a comprehensive regional plan is approved. The regional authorities must review all such areas in developing the comprehensive plans.

§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 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, and for commercial solid waste facilities permitted by the department and situated within the permitted area of a Class A or Class B landfill. 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) of this section 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.

§22C-4-26. Approval of new Class A facilities by solid waste authorities.

Except as provided below with respect to Class B facilities, ~~from and after the tenth day of March, one thousand nine hundred ninety,~~ in order to obtain approval to operate a new Class A facility, an applicant shall:
(1) File an application for a certificate of ~~need~~ convenience and necessity with, and obtain approval from, the Public Service Commission in the manner specified in section one-c, article two, chapter twenty-four of this code and in section thirteen, article fifteen, chapter twenty-two of this code;
(2) File an application for a certificate of site approval with, and obtain approval from, the ~~county or~~ regional Solid Waste Authority for the county or counties in which the facility is proposed. Such application shall be submitted on forms prescribed by the ~~solid waste management board~~ secretary. The ~~county or~~ regional Solid Waste Authority shall act on such application and either grant or deny it within thirty days after the application is determined by the ~~county or~~ regional Solid Waste Authority to be filed in a completed manner. The authority shall make a completeness determination within thirty days after an application is filed. The authority shall, within ten days after making the determination, notify the applicant of the determination, providing specific details on deficiencies noted, if any.
§22C-4-27. Approval of conversion from Class B facility to Class A facility.
~~From and after the eighteenth day of October, one thousand nine hundred ninety-one,~~ In order to obtain approval to operate as a Class A facility at a site previously permitted to operate as a Class B facility, an applicant shall:
(1) File an application for a certificate of ~~need~~ convenience and necessity with, and obtain approval from, the Public Service Commission in the manner specified in section one-c, article two, chapter twenty-four of this code, and in section thirteen, article fifteen, chapter twenty-two of this code; and
(2) File an application for a certificate of site approval with, and obtain approval from, the ~~county or~~ regional Solid Waste Authority for the county or counties in which the facility is located or proposed. Such application shall be submitted on forms prescribed by the ~~solid waste management board~~ secretary. The ~~county or~~ regional Solid Waste Authority shall act on such application and either grant or deny it within thirty days after the application is determined by the ~~county or~~ regional Solid Waste Authority to be filed in a completed manner. The authority shall make a completeness determination within thirty days after an application is filed. The authority shall, within ten days after making the determination, notify the applicant of the determination, providing specific details on deficiencies noted, if any.
§22C-4-28. Approval of increase in maximum allowable monthly tonnage of Class A facilities.
~~From and after the eighteenth day of October, one thousand nine hundred ninety-one,~~ In order to increase the maximum allowable monthly tonnage handled at a Class A facility by an aggregate amount of more than ten percent of the facility's permit tonnage limitation within a two-year period, the permittee shall:
(1) File an application for approval with, and obtain approval from, the ~~county or~~ regional Solid Waste Authority for the county or counties in which the facility is located. Such application shall be a modification of the Class A facility's certificate of site approval. The ~~county or~~ regional Solid Waste Authority shall act upon such application and either grant or deny it within thirty days after the application is determined by the county or regional Solid Waste Authority to be filed in a completed manner; and
(2) File an application for approval with, and obtain approval from, the Public Service Commission to modify the certificate of need in the manner set forth in section one-c, article two, chapter twenty-four of this code.

§22C-4-29. Judicial review of certificate of site approval.

(a) Any party aggrieved by a decision of the ~~county or~~ regional Solid Waste Authority or county commission granting or denying a certificate of site approval may obtain judicial review thereof in the same manner provided in section four, article five, chapter twenty-nine-a of this code, which provisions shall govern such review with like effect as if the provisions of said section were set forth in extenso in this section, except that the petition shall be filed, within the time specified in said section, in the circuit court of Kanawha County.
(b) The judgment of the circuit court is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals, in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code, except that notwithstanding the provisions of said section, the petition seeking such review must be filed with the Supreme Court of Appeals within ninety days from the date of entry of the judgment of the circuit court.
§22C-4-30. Solid waste assessment interim fee; dedication of proceeds; criminal penalties.

(a) Imposition. -- Effective the first day of July, one thousand nine hundred eighty-nine, a solid waste assessment fee is hereby levied and imposed upon the disposal of solid waste at any solid waste disposal facility in this state to be collected at the rate of one dollar per ton or part thereof of solid waste. The fee imposed by this section is in addition to all other fees levied by law.
(b) Collection, return, payment and record. -- The person disposing of solid waste at the solid waste disposal facility shall pay the fee imposed by this section, whether or not such 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 is required to 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 such amount as 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 such operator to collect the fees which become collectible after service of such notice, to deposit such 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 such fees in such account until remitted to the Tax Commissioner. Such 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 thereof 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 as against the association or corporation which they represent.
(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 such form as the Tax Commissioner may require in accordance with the rules of the Tax Commissioner.
(c) ~~Regulated motor carriers.~~ -- The fee imposed by this section and section twenty-two, article five, chapter seven of this code 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 said fee in said motor carrier's rates for solid waste removal service. In calculating the amount of said fee to said 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)~~ (c) Definition of solid waste disposal facility. -- For purposes of this section, the term "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 herein authorizes in any way the creation or operation of or contribution to an open dump.
~~(e)~~ (d) Exemptions. -- The following transactions are exempt from the fee imposed by this section:
(1) Disposal of solid waste at a solid waste disposal 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 such person in such person's 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;
(3) Disposal of residential solid waste by an individual not in the business of hauling or disposing of solid waste on such days and times as designated by the ~~director of the division~~ secretary of the Department of environmental protection as exempt from the fee imposed pursuant to section eleven, article fifteen, chapter twenty-two of this code; and
(4) Disposal of solid waste at a solid waste disposal facility by a commercial recycler which disposes of thirty percent or less of the total waste it processes for recycling. In order to qualify for this exemption each commercial recycler must keep accurate records of incoming and outgoing waste by weight. Such records must be made available to the appropriate inspectors from the ~~division~~ Department of Environmental Protection of or the regional Solid Waste Authority, upon request.
~~(f)~~ (e) 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 said act were applicable only to the fee imposed by this section and were set forth in extenso herein.
~~(g)~~ (f) 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 said sections were the only fee imposed by this section and were set forth in extenso herein.
~~(h)~~ (g) Dedication of proceeds. -- The net proceeds of the fee collected by the Tax Commissioner pursuant to this section shall be deposited, at least monthly, in a special revenue account known as the "Solid Waste Planning Fund" which is hereby continued. The ~~solid waste management board~~ secretary shall allocate the proceeds of the said fund as follows:
(1) Fifty percent of the total proceeds shall be divided equally among ~~and paid over to, each county solid waste authority to be expended for the purposes of this article:~~ ~~Provided,~~ ~~That where a regional solid waste authority exists, such funds shall be paid over to~~ the regional ~~solid waste authority~~ authorities to be expended for the purposes of this article; ~~in an amount equal to the total share of all counties within the jurisdiction of said regional solid waste authority~~ and
(2) Fifty percent of the total proceeds shall be expended by the ~~solid waste management board~~ secretary for:
(A) Grants ~~to the county or regional solid waste authorities~~ for the purposes of this article; and
(B) Administration, technical assistance or other costs of the ~~solid waste management board~~ Department of Environmental Protection necessary to implement the purposes of this article and article ~~three~~ fifteen-b of ~~this~~ chapter twenty-two.
~~(i)~~ ~~Effective date.~~ ~~-- This section is effective on the first day of July, one thousand nine hundred ninety.~~
ARTICLE 4A. LOCAL PARTICIPATION; REFERENDUM.
§22C-4A-1. Local participation, legislative findings and purposes; referendum.
(a) The Legislature finds that the potential impacts of commercial solid waste disposal facilities may have a deleterious and debilitating effect upon the transportation network, property values, economic growth, environmental quality, other land uses, and the public health and welfare. These impacts are borne predominantly by the local residents in the communities where the facilities are located. The Legislature also recognizes that economic benefits exist for having a solid waste facility, including new jobs in the local community and increased tax and fee revenues for the state. The largest of facilities authorized to operate in West Virginia, Class A facilities, receive up to thirty thousand tons of solid waste per month. Class A facilities inevitably cause the most severe impacts to the local area. The Legislature further finds that Class A facilities cause significant impact on the local community above and beyond those of smaller landfills, that this impact requires the local community be afforded the opportunity to participate in the decision of locating a landfill of this size in their community. Further, local citizens need governmental entities to assure and verify that the Class A facility will be developed and operated in a manner that complies with all laws, rules and regulations which regulate landfills, and that the local infrastructure and environment are appropriately suited for a Class A facility. As a result, the Legislature finds that a mechanism must be in place to allow for the local community to be a significant participant in the Class A facility siting and expansion decision-making process.
(b) Therefore, it is the purpose of the Legislature to allow the local decision for location of new Class A landfills by county referendum, and further that a petition process be established to allow demand for a county referendum for expansion of an existing Class A landfill or redesignation of a Class B landfill to Class A.
§22C-4A-2. Approval of new Class A facility.
(a) The purpose of the mandatory referendum for approval of new Class A facilities is to verify for the local community that the local infrastructure and environment are appropriate for a new Class A facility and to assure that the local community accepts the associated benefits and detriments of having a new Class A facility located in their county.
(b) Following receipt of a certificate of ~~need~~ convenience and necessity from the Public Service Commission as required by section one-c, article two, chapter twenty-four of this code, and local solid waste approval as required in section twenty-six, article four of this chapter for a new Class A facility, the county commission shall cause a referendum to be placed on the ballot not less than fifty-six days before the next primary, general or other countywide election:
(1) Such referendum is to determine whether it is the will of the voters of the county that a new Class A facility be constructed. Any election at which such question of locating a solid waste facility 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, apply to voting and elections hereunder, insofar as practicable.
(2) The ballot, or the ballot labels where voting machines are used, shall have printed thereon substantially the following:
"The West Virginia Legislature has found that the location of a Class A solid waste facility has impact upon the county in which it will be located, and further that local citizens should be given the opportunity to participate in the decision of locating a new Class A facility in their community. A Class A facility is authorized to receive between ten and thirty thousand tons of solid waste per month.
The _________________ county commission finds the following:
I. The ______________________________ (name of applicant) has obtained site approval for a Class A commercial facility from the ___________________ (name of the ~~county or~~ regional Solid Waste Authority). The authority has determined that the proposed landfill meets all local siting plan requirements. The local siting plan evaluates local environmental conditions and other factors and authorizes commercial landfills in areas of a county where a commercial landfill can be appropriately located.
II. The West Virginia Public Service Commission has issued a certificate of ~~need~~ convenience and necessity, and has approved the operation of the Class A landfill. The Public Service Commission has determined that the landfill complies with the state solid waste management plan and based on the anticipated volume of garbage expected to be received at the landfill, that the proposal is consistent with public convenience and necessity.
Please vote whether to approve construction of the facility by responding to the following question:
Shall the __________ commercial solid waste facility located within ______________ County, be permitted to handle between ten and thirty thousand tons of solid waste per month?

/ / For the facility

/ / Against the facility
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question is against the facility, the ~~division~~ Department of Environmental Protection shall not proceed any further with the application. If a majority of the legal votes cast upon the question be for the facility, then the application process as set forth in this article and article fifteen, chapter twenty-two of this code may proceed: Provided, That such vote is not binding on nor does it require the ~~division~~ Department of Environmental Protection to issue the permit. If the majority of the legal votes cast is against the question, the question may be submitted to a vote at any subsequent election in the manner herein specified: Provided, however, That the question may not be resubmitted to a vote until two years after the date of the previous referendum.

§22C-4A-3. Referendum for approval of conversion of a Class B facility to a Class A facility.

(a) The purpose of the petition and referendum for approval of conversions of Class B facilities to Class A facilities is to allow the local community an opportunity to participate in the decision of whether the local infrastructure and environment are appropriate for expansion of a Class B facility to a Class A facility, and to assure that the local community accepts the associated benefits and detriments of having a Class A facility located in their county.
(b) Within twenty-one days following receipt of a certificate of ~~need~~ convenience and necessity from the Public Service Commission as required by section one-c, article two, chapter twenty-four of this code, and local solid waste authority approval as required in section twenty-six, article four of this chapter, the county commission shall complete publication of a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, in the qualified newspaper of general circulation in the county wherein the solid waste facility is located. Registered voters residing in the county may petition the county commission to place the issue of whether a Class B facility be expanded to a Class A facility be placed on the ballot at the next primary, general or other countywide election held not less than one hundred days after the deadline for filing the petition. The petition shall be in writing, in the form prescribed by the Secretary of State, and shall include the printed name, residence address and date of birth of each person whose signature appears on the petition. The petition shall be filed with the county commission not less than sixty days after the last date of publication of the notice provided in this section. Upon receipt of completed petition forms, the county commission shall immediately forward those forms to the clerk of the county commission for verification of the signatures and the voter registration of the persons named on the petition. If a primary, general or other countywide election is scheduled not more than one hundred twenty days and not less than one hundred days following the deadline for filing the petitions, the clerk of the county commission shall complete the verification of the signatures within thirty days and shall report the number of valid signatures to the county commission. In all other cases, the clerk of the county commission shall complete verification in a timely manner. Upon verification of the signatures of registered voters residing in the county equal to not less than fifteen percent of the number of votes cast within the county for Governor at the preceding gubernatorial election, and not less than seventy days before the election, the county commission shall order a referendum be placed upon the ballot:
(1) Such referendum is to determine whether it is the will of the voters of the county that the Class B facility be converted to a Class A facility. Any election at which such question of locating a solid waste facility 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, 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. Should the petition fail to meet the requirements set forth above, the application process as set forth in this article and article fifteen, chapter twenty-two of this code, may proceed.
(2) The ballot, or the ballot labels where voting machines are used, shall have printed thereon substantially the following:
"The West Virginia Legislature finds that expansion of a Class B solid waste facility to a Class A solid waste facility has impact to the county in which it will be located, and further that local citizens should be afforded the opportunity to participate in the decision of locating a Class A facility in their community. A Class A facility is authorized to receive between ten and thirty thousand tons of solid waste per month. Fifteen percent of the registered voters in ________________ county have signed a petition to cause a referendum to determine the following question:
The _________________ county commission finds the following:
I. The ____________________ (name of applicant) has obtained site approval for a Class A commercial facility from the _________________ (name of the ~~county or~~ regional Solid Waste Authority). The authority has determined that the proposed landfill meets all local siting plan requirements. The local siting plan evaluates local environmental conditions and other factors and authorizes commercial landfills where a commercial landfill can be appropriately located.
II. The West Virginia Public Service Commission has issued a certificate of ~~need~~ convenience and necessity, and has approved the operation of the Class A landfill. The Public Service Commission has determined that the landfill complies with the state solid waste management plan and that based on the anticipated volume of garbage expected to be received at the landfill, that the proposal is consistent with public convenience and necessity.
Please vote whether to approve construction of the facility by responding to the following question:
Shall the ____________________________ solid waste facility, located within ________________________ County, West Virginia, be permitted to handle between ten and thirty thousand tons of solid waste per month?

/ / For conversion of the facility

/ / Against conversion of the facility
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question is against the facility, then the ~~division~~ Department of Environmental Protection shall not proceed any further with the application. If a majority of the legal votes cast upon the question be for the facility, then the application process as set forth in this article and article fifteen, chapter twenty-two of this code may proceed: Provided, That such vote is not binding on nor does it require the ~~division~~ Department of Environmental Protection to modify the permit. If the majority of the legal votes cast is against the question, the question may be submitted to a vote at any subsequent election in the manner herein specified: Provided, however, That the question may not be resubmitted to a vote until two years after the date of the previous referendum.

§22C-4A-4. Approval of increase in maximum allowable monthly tonnage of Class A facilities.

(a) The purpose of the petition and referendum for approval of modification of Class A facilities is to allow the local community an opportunity to participate in the decision of whether the local infrastructure and environment are appropriately suited for expansion of the Class A facility, and to assure that the local community accepts the associated benefits and determents of having a Class A facility located in their county.
(b) The referendum provisions contained herein must be met in order to increase the maximum allowable monthly tonnage handled at a Class A facility by an aggregate amount of more than ten percent of the facility's permit tonnage limitation within a two-year period.
(c) Within twenty-one days following receipt of a certificate of ~~need~~ convenience and necessity from the Public Service Commission as required by section one-c, article two, chapter twenty-four of this code, and local solid waste approval as required in section twenty-six, article four of this chapter, the county commission shall complete publication of a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, in the qualified newspaper of general circulation in the county wherein the solid waste facility is located. Registered voters residing in the county may petition the county commission to place the issue of whether a Class A facility be permitted to increase the maximum tonnage allowed to be received at the facility be placed on the ballot at the next primary, general or other countywide election held not less than one hundred days after the deadline for filing the petition. The petition shall be in writing, in the form prescribed by the Secretary of State, and shall include the printed name, residence address and date of birth of each person whose signature appears on the petition. The petition shall be filed with the county commission not less than sixty days after the last date of publication of the notice provided in this section. Upon receipt of completed petition forms, the county commission shall immediately forward those forms to the clerk of the county commission for verification of the signatures and the voter registration of the persons named on the petition. If a primary, general or other countywide election is scheduled not more than one hundred twenty days and not less than one hundred days following the deadline for filing the petitions, the clerk of the county commission shall complete the verification of the signatures within thirty days and shall report the number of valid signatures to the county commission. In all other cases, the clerk of the county commission shall complete verification in a timely manner. Upon verification of the signatures of registered voters residing in the county equal to not less than fifteen percent of the number of votes cast within the county for Governor at the preceding gubernatorial election, and not less than seventy days before the election, the county commission shall order a referendum be placed upon the ballot:
(1) Such referendum is to determine whether it is the will of the voters of the county that the Class A facility applicant be permitted to increase the maximum tonnage allowed to be received at the facility not to exceed thirty thousand tons per month. Any election at which such question 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, 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. Should the petition fail to meet the requirements set forth above, the application process as set forth in this article and article fifteen, chapter twenty-two of this code, may proceed.
(2) The ballot, or the ballot labels where voting machines are used, shall have printed thereon substantially the following:
"The West Virginia Legislature finds that expansion of a Class A solid waste facility has significant impact to the community in which it will be located, and further that local citizens should be afforded the opportunity to participate in the decision of locating a Class A facility in their community. The ____________ facility is currently authorized to receive ________ thousand tons of solid waste per month. The ______________ facility is proposing to be authorized to receive ___________ thousand tons of solid waste per month. Fifteen percent of the registered voters in _____________ county have signed a petition to cause a referendum to determine the following question:
The _____________ county commission finds the following:
I. The __________________ (name of applicant) has obtained site approval to expand a Class A commercial facility from the _________________ (name of the county or regional Solid Waste Authority). The authority has determined that the proposed landfill meets all local siting plan requirements. The local siting plan evaluates local environmental conditions and other factors and authorizes commercial landfills where a commercial landfill can be appropriately located.
II. The West Virginia Public Service Commission has issued a certificate of ~~need~~ convenience and necessity, and has approved the expansion of the Class A landfill. The Public Service Commission has determined that the landfill complies with the state solid waste management plan and that based on the anticipated volume of garbage expected to be received at the landfill, that the proposal is consistent with public convenience and necessity.
Please vote whether to approve construction of the facility by responding to the following question:
Shall the ______________ solid waste facility located within ___________ County, West Virginia, be allowed to handle a maximum of ___________ solid waste per month?

/ / For the increase in maximum allowable tonnage

/ / Against the increase in maximum allowable tonnage
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question is against allowing the Class A facility to increase the maximum tonnage of solid waste allowed to be received per month at the facility, then the ~~division~~ Department of Environmental Protection shall not proceed to modify the Class A facility permit to increase the maximum allowable tonnage. If a majority of the legal votes cast upon the question is for allowing the Class A facility to increase the maximum tonnage of solid waste allowed to be received per month at such facility, then the application process as set forth in this article and article fifteen, chapter twenty-two of this code may proceed: Provided, That such vote is not binding on nor does it ~~require the county or regional solid waste authority or~~ the ~~division~~ Department of Environmental Protection to approve an application to modify the permit. If the majority of the legal votes cast is against the question, that does not prevent the question from again being submitted to a vote at any subsequent election in the manner provided for in this section: Provided, however, That an applicant may not resubmit the question for a vote prior to a period of two years from the date of the previous referendum herein described.
CHAPTER 24A. COMMERCIAL MOTOR CARRIERS OF

PASSENGERS AND PROPERTY FOR HIRE.
ARTICLE 1. PURPOSES, DEFINITIONS AND EXEMPTIONS.
§24A-1-3. Exemptions from chapter.
The provisions of this chapter, except where specifically otherwise provided, do not apply to:
(1) Motor vehicles operated exclusively in the transportation of United States mail or in the transportation of newspapers: Provided, That the vehicles and their operators are subject to the safety rules promulgated by the commission;
(2) Motor vehicles owned and operated by the United States of America, the State of West Virginia or any county, municipality or county board of education, urban mass transportation authority established and maintained pursuant to article twenty-seven, chapter eight of this code, or by any of their departments, and any motor vehicles operated under a contract with a county board of education exclusively for the transportation of children to and from school or other legitimate transportation for the schools as the commission may specifically authorize;
(3) Motor vehicles used exclusively in the transportation of agricultural or horticultural products, livestock, poultry and dairy products from the farm or orchard on which they are raised or produced to markets, processing plants, packing houses, canneries, railway shipping points and cold storage plants, and in the transportation of agricultural or horticultural supplies to farms or orchards where they are to be used: Provided, That the vehicles that are exempted by this subdivision and are also operated by common carriers by motor vehicle or contract carriers by motor vehicle, and their operators are subject to the safety and insurance rules promulgated by the commission;
(4) Motor vehicles used exclusively in the transportation of human or animal excreta;
(5) Motor vehicles used exclusively in ambulance service or duly chartered rescue squad service;
(6) Motor vehicles used exclusively for volunteer fire department service;
(7) Motor vehicles used exclusively in the transportation of coal from mining operations to loading facilities for further shipment by rail or water carriers: Provided, That the vehicles and their operators are subject to the safety rules promulgated by the commission and the vehicles that are exempted by this subdivision and are also operated by common carriers by motor vehicle or contract carriers by motor vehicle, and their operators are subject to the insurance rules promulgated by the commission;
(8) Motor vehicles used by petroleum commission agents and oil distributors solely for the transportation of petroleum products and related automotive products when the transportation is incidental to the business of selling the products: Provided, That the vehicles and their operators are subject to the safety rules promulgated by the commission and the vehicles that are exempted by this subdivision and are also operated by common carriers by motor vehicle or contract carriers by motor vehicle, and their operators are subject to the insurance rules promulgated by the commission;
(9) Motor vehicles owned, leased by or leased to any person and used exclusively for the transportation of processed source-separated recycled materials, generated by commercial, institutional and industrial customers, transported free of charge from the customers to a facility for further processing: Provided, That the vehicles and their operators shall be subject to the safety rules promulgated by the commission and the vehicles that are exempted by this subdivision and are also operated by common carriers by motor vehicle or contract carriers by motor vehicle, and their operators are subject to the insurance rules promulgated by the commission;
(10) Motor vehicles specifically preempted from state economic regulation of intrastate motor carrier operations by the provisions of 49 U.S.C. §14501 as amended by title I, section 103 of the federal "Interstate Commerce Commission Termination Act of 1995": Provided, That the vehicles and their operators are subject to the safety regulations promulgated by the commission and the vehicles that are exempted by this subdivision and are also operated by common carriers by motor vehicle or contract carriers by motor vehicle, and their operators are subject to the insurance rules promulgated by the commission;
(11) Motor vehicles designated by the West Virginia Bureau of Senior Services for use and operation by local county aging programs: Provided, That the vehicles and their operators are subject to the safety rules promulgated by the commission;
(12) Motor vehicles designated by the West Virginia division of public transit operated by organizations that receive federal grants from the federal transit administration: Provided, That the vehicles and their operators are subject to the safety and insurance rules promulgated by the commission.
(13) Motor vehicles used exclusively for the transportation of solid waste: Provided, That the vehicles and their operators are subject to the insurance, weight and safety laws and commission's rules.
ARTICLE 2. COMMON CARRIERS BY MOTOR VEHICLES.
§24A-2-5. Certificate of convenience and necessity.
(a) Required; application; hearing; granting. -- It shall be 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 entities involved in the transportation or collection of solid waste shall not be required to obtain a certificate from the commission. Upon the filing of an application for such certificate, the commission shall set a time a place for a hearing on the application: Provided, 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 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 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 certificate such 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 certificate holder shall be given reasonable time and opportunity to remedy such inadequacy or insufficiency before any certificate shall be granted to an applicant proposing to operate over such 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 not grant such certificate.
(b) Rules and regulations; taking evidence at hearings; burden of proof. -- The commission shall prescribe such rules and regulations as it may deem 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 personal representative or representatives may operate under such 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 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.
ARTICLE 3. CONTRACT CARRIERS BY MOTOR VEHICLES.
§24A-3-3. Permit.
(a) Required; application; hearing; granting. -- It shall be unlawful for any contract carrier by motor vehicle to operate within this state without first having obtained from the commission a permit: Provided, That entities involved in the transportation or collection of solid waste shall not be required to obtain a permit. Upon the filing of an application for such permit, the commission shall fix a time and place for hearing thereon: Provided, however, That the commission may, after giving notice as hereinafter provided and if no protest is received, waive formal hearing on such application. Said notice shall be by publication which shall state that formal hearing may be waived in the absence of protest to such application. Such 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 publication shall be the area of operation. Such notice shall be published at least ten days prior to the date of hearing. After hearing or waiver of hearing as aforesaid, as the case may be, the commission shall grant or deny the permit prayed for or grant it for the partial exercise only of the privilege sought, and may attach to the exercise of the privilege granted by such permit such terms and conditions as in its judgment are proper and will carry out the purposes of this chapter. No permit shall be granted unless the applicant has established to the satisfaction of the commission that the privilege sought will not endanger the safety of the public or unduly interfere with the use of the highways or impair unduly the condition or unduly increase the maintenance cost of such highways, directly or indirectly, or impair the efficient public service of any authorized common carrier or common carriers adequately serving the same territory.
(b) Rules and regulations; evidence at hearing. -- The commission shall prescribe such rules and regulations as it may deem proper for the enforcement of the provisions of this section and may designate any of its employees to take evidence at the hearing on any application for a permit and submit findings of fact as a part of report or reports to be made to the commission.
(c) Permit not franchise, etc.; assignment or transfer. -- No permit 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 permit issued under this chapter shall be assigned or otherwise transferred without the approval of the commission. Upon the death of a person holding a permit, his personal representative or representatives may operate under such permit while the same remains in force and effect and, with the consent of the commission, may transfer such permit.
(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 permit and an opportunity to be heard, revoke or amend any permit.
(e) Notice of cessation or abandonment. -- Every contract carrier by motor vehicle who shall cease operation or abandon his rights under a permit issued shall notify the commission within thirty days of such cessation or abandonment.

NOTE: The purpose of this bill is abolish the Solid Waste Management Board and transfer its powers and duties to the State Department of Environmental Protection and to repeal certain provisions relating to the Public Service Commission regarding the transportation of solid waste. The bill also eliminates the Public Service Commission's authority to establish flow control of solid waste while requiring certificates and permits. The bill provides that regional waste authorities will be obliged and authorized to collect, transport and dispose of solid waste and may franchise or contract with third parties for this purpose.

§22-15B 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.

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