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sb770 SUB1 Senate Bill 770 History

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sb770 SUB1
COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 770

(By Senator Chafin)

____________

[Originating in the Committee on the Judiciary;

reported February 21, 2008.]

____________




A BILL to amend and reenact §22-15-11 of the Code of West Virginia, 1931, as amended; to amend and reenact §22-15A-19 of said code; to amend and reenact §22-16-4 of said code; and to amend and reenact §22C-4-30 of said code, all relating generally to reduction of solid waste assessment fees; providing a method for determining effective date of the fee reductions; authorizing reduction in tariffs after assessment fees reduced; providing for reduction in solid waste disposal costs; and deleting obsolete language.

Be it enacted by the Legislature of West Virginia:
That §22-15-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §22-15A-19 of said code be amended and reenacted; that §22-16-4 of said code be amended and reenacted; and that §22C-4-30 of said code be amended and reenacted, all to read as follows:
CHAPTER 22. ENVIRONMENTAL RESOURCES.

ARTICLE 15. SOLID WASTE MANAGEMENT ACT.

§22-15-11. Solid waste assessment fee; penalties.

(a) Imposition. --

(1) A solid waste assessment fee is hereby imposed upon the disposal of solid waste at any solid waste disposal facility in this state in the amount of one dollar and seventy-five cents per ton or part thereof of a ton of solid waste.
(2)
The fee shall be reduced to one dollar and thirty cents per ton or fraction of a ton for solid waste disposed of at a solid waste disposal facility on and after the first day of the calendar month that begins sixty days after the end of the three consecutive calendar-month period during which all landfill solid waste disposal facilities in this state receive for disposal more than five hundred seventy thousand tons of solid waste during that consecutive three-month period. The Secretary of the Department of Environmental Protection shall give written notice to all solid waste disposal facilities in this state, the Public Service Commission and the State Tax Commissioner of the effective date of this rate reduction.
(3) Where the tariffs approved by the Public Service Commission include this assessment fee, the tariffs shall automatically be reduced by the amount of the rate reduction on the date the rate reduction becomes effective without any person having to apply for the rate reduction. A rate reduction shall be passed on to the solid waste disposal customers who generated the solid waste and who are assessed the fee as part of the costs for solid waste disposal services.

(4) The fee imposed by this section is in addition to all other fees and taxes levied by law and shall be added to and constitute part of any other fee charged by the operator or owner of the solid waste disposal facility.
(b) Collection, return, payment and records.
-- The person disposing of solid waste at the solid waste disposal facility shall pay the fee imposed by this section, whether or not such the 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 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 the 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 the operator to collect the fees which become collectible after service of such the notice, to deposit such the fees in a bank approved by the Tax Commissioner, in a separate account, in trust for and payable to the Tax Commissioner, and to keep the amount of such the fees in such account until remitted to the Tax Commissioner. Such The notice remains in effect until a notice of cancellation is served on the operator or owner by the Tax Commissioner.
(6) Whenever the owner of a solid waste disposal facility leases the solid waste facility to an operator, the operator is primarily liable for collection and remittance of the fee imposed by this section and the owner is secondarily liable for remittance of the fee imposed by this section. However, if the operator fails, in whole or in part, to discharge his or her obligations under this section, the owner and the operator of the solid waste facility are jointly and severally responsible and liable for compliance with the provisions of this section.
(7) If the operator or owner responsible for collecting the fee imposed by this section is an association or corporation, the officers 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 considered 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 the fee in said the motor carrier's rates for solid waste removal service. In calculating the amount of said fee to said the motor carrier, the commission shall use the national average of pounds of waste generated per person per day as determined by the United States Environmental Protection Agency.
(d) Definition 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 disposal 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) 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 the facility is used exclusively to dispose of waste originally produced by such person in such the 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 secretary is exempt from the solid waste assessment fee; 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 shall keep accurate records of incoming and outgoing waste by weight. Such The records must be made available to the appropriate inspectors from the division department, upon request.
(f) Procedure and administration.
-- Notwithstanding section three, article ten, chapter eleven of this code, each and every provision of the West Virginia Tax Procedure and Administration Act set forth in article ten, chapter eleven of this code shall apply applies to the fee imposed by this section with like effect as if said act it were applicable only to the fee imposed by this section. and were set forth in extenso herein
(g) Criminal penalties.
-- Notwithstanding section two, article nine, chapter eleven of this code, sections three through seventeen, inclusive, article nine, chapter eleven of this code shall apply to the fee imposed by this section with like effect as if said those sections were applicable only to the fee imposed by this section. and were set forth in extenso herein
(h) 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 an account designated by the director secretary. The director secretary shall allocate twenty-five cents for each ton of solid waste disposed of in this state upon which the fee imposed by this section is collected and shall deposit the total amount so allocated into the Solid Waste Reclamation and Environmental Response Fund to be expended for the purposes hereinafter specified. The first one million dollars of the net proceeds of the fee imposed by this section collected in each fiscal year shall be deposited in the Solid Waste Enforcement Fund and expended for the purposes hereinafter specified. The next two hundred fifty thousand dollars of the net proceeds of the fee imposed by this section collected in each fiscal year shall be deposited in the Solid Waste Management Board Reserve Fund and expended for the purposes hereinafter specified: Provided, That in any year in which the Water Development Authority determines that the Solid Waste Management Board Reserve Fund is adequate to defer any contingent liability of the fund, the Water Development Authority shall so certify to the director secretary and the director secretary shall then cause no less than fifty thousand dollars nor more than two hundred fifty thousand dollars to be deposited to the fund: Provided, however, That in any year in which the Water Development Authority determines that the Solid Waste Management Board Reserve Fund is inadequate to defer any contingent liability of the fund, the Water Development Authority shall so certify to the director secretary and the director secretary shall then cause not less than two hundred fifty thousand dollars nor more than five hundred thousand dollars to be deposited in the fund: Provided further, That if a facility owned or operated by the State of West Virginia is denied site approval by a county or regional solid waste authority and if such the denial contributes, in whole or in part, to a default, or drawing upon a reserve fund, on any indebtedness issued or approved by the Solid Waste Management Board, then, in that event, the Solid Waste Management Board or its fiscal agent may withhold all or any part of any funds which would otherwise be directed to such the county or regional authority and shall deposit such withheld funds in the appropriate reserve fund. The director secretary shall allocate the remainder, if any, of said net proceeds among the following three special revenue accounts for the purpose of maintaining a reasonable balance in each special revenue account, which are hereby continued in the State Treasury:
(1) The Solid Waste Enforcement Fund which shall be expended by the director secretary
for administration, inspection, enforcement and permitting activities established pursuant to this article;
(2) The "Solid Waste Management Board Reserve Fund" which shall be exclusively dedicated to providing a reserve fund for the issuance and security of solid waste disposal revenue bonds issued by the Solid Waste Management Board pursuant to article three, chapter twenty-two-c of this code;
(3) The Solid Waste Reclamation and Environmental Response Fund which may be expended by the director secretary
for the purposes of reclamation, cleanup and remedial actions intended to minimize or mitigate damage to the environment, natural resources, public water supplies, water resources and the public health, safety and welfare which may result from open dumps or solid waste not disposed of in a proper or lawful manner.
(i) Findings.
-- In addition to the purposes and legislative findings set forth in section one of this article, the Legislature finds as follows:
(1) In-state and out-of-state locations producing solid waste should bear the responsibility of disposing of said the solid waste or compensate other localities for costs associated with accepting such the solid waste;
(2) The costs of maintaining and policing the streets and highways of the state and its communities are increased by long distance transportation of large volumes of solid waste; and
(3) Local approved solid waste facilities are being prematurely depleted by solid waste originating from other locations.
ARTICLE 15A. THE A. JAMES MANCHIN REHABILITATION ENVIRONMENTAL ACTION PLAN.

§22-15A-19. Recycling assessment fee; regulated motor carriers; dedication of proceeds; criminal penalties.

(a) Imposition. --
(1) A recycling assessment fee is hereby levied and imposed upon the disposal of solid waste at all solid waste disposal facilities in this state, to be collected at the rate of two dollars per ton or part of a ton of solid waste.
(2) The fee shall be reduced to one dollar and fifty cents per ton, or fraction of a ton, for solid waste disposed of at a solid waste disposal facility on and after the first day of the calendar month that begins sixty days after the end of the three consecutive calendar-month period during which all landfill solid waste disposal facilities in this state collectively receive for disposal more than five hundred seventy thousand tons of solid waste during that three-month period. The Secretary of the Department of Environmental Protection shall give written notice to all solid waste disposal facilities in this state, the Public Service Commission and the State Tax Commissioner of the effective date of this rate reduction.
(3) Where the tariffs approved by the Public Service Commission include this assessment fee, the tariffs shall automatically be reduced by the amount of the rate reduction on the date the rate reduction becomes effective without any person having to apply for the rate reduction. A rate reduction shall be passed on to the solid waste disposal customers who generated the solid waste and who are assessed the fee as part of the costs for solid waste disposal services.

(4) The fee imposed by this section is in addition to all other fees levied by law.
(b) Collection, return, payment and records. -- The person disposing of solid waste at the solid waste disposal facility shall pay the fee imposed by this section, whether or not that person owns the solid waste, and the fee shall be collected by the operator of the solid waste facility who shall remit it to the Tax Commissioner:
(1) The fee imposed by this section accrues at the time the solid waste is delivered to the solid waste disposal facility;
(2) The operator shall remit the fee imposed by this section to the Tax Commissioner on or before the fifteenth day of the month next succeeding the month in which the fee accrued. Upon remittance of the fee, the operator shall file returns on forms and in the manner as prescribed by the Tax Commissioner;
(3) The operator shall account to the state for all fees collected under this section and shall hold them in trust for the state until they are remitted to the Tax Commissioner;
(4) If any operator fails to collect the fee imposed by this section, he or she is personally liable for the amount that he or she failed to collect, plus applicable additions to tax, penalties and interest imposed by article ten, chapter eleven of this code;
(5) Whenever any operator fails to collect, truthfully account for, remit the fee or file returns with the fee as required in this section, the Tax Commissioner may serve written notice requiring the operator to collect the fees which become collectible after service of the notice, to deposit the fees in a bank approved by the Tax Commissioner, in a separate account, in trust for and payable to the Tax Commissioner and to keep the amount of the fees in the account until remitted to the Tax Commissioner. The notice remains in effect until a notice of cancellation is served on the operator or owner by the Tax Commissioner;
(6) Whenever the owner of a solid waste disposal facility leases the solid waste facility to an operator, the operator is primarily liable for collection and remittance of the fee imposed by this section and the owner is secondarily liable for remittance of the fee imposed by this section. However, if the operator fails, in whole or in part, to discharge his or her obligations under this section, the owner and the operator of the solid waste facility are jointly and severally responsible and liable for compliance with the provisions of this section;
(7) If the operator or owner responsible for collecting the fee imposed by this section is an association or corporation, the officers of the association or corporation are liable, jointly and severally, for any default on the part of the association or corporation, and payment of the fee and any additions to tax, penalties and interest imposed by article ten, chapter eleven of this code may be enforced against them and against the association or corporation which they represent; and
(8) Each person disposing of solid waste at a solid waste disposal facility and each person required to collect the fee imposed by this section shall keep complete and accurate records in the form required by the Tax Commissioner in accordance with the rules of the Tax Commissioner.
(c) Regulated motor carriers. -- The fee imposed by this section is a necessary and reasonable cost for motor carriers of solid waste subject to the jurisdiction of the Public Service Commission under chapter twenty-four-a of this code. Notwithstanding any provision of law to the contrary, upon the filing of a petition by an affected motor carrier, the Public Service Commission shall, within fourteen days, reflect the cost of the fee in the motor carrier's rates for solid waste removal service. In calculating the amount of the fee to the motor carrier, the commission shall use the national average of pounds of waste generated per person per day as determined by the United States Environmental Protection Agency.
(d) Definition. -- For purposes of this section, "Solid waste Disposal Facility" means any approved solid waste facility or open dump in this state and includes a transfer station when the solid waste collected at the transfer station is not finally disposed of at a solid waste facility within this state that collects the fee imposed by this section.
Nothing in this section authorizes in any way the creation or operation of or contribution to an open dump.
(e) Exemptions. -- The following transactions are exempt from the fee imposed by this section:
(1) Disposal of solid waste at a solid waste facility by the person who owns, operates or leases the solid waste disposal facility if it is used exclusively to dispose of waste originally produced by that person in his or her regular business or personal activities or by persons utilizing the facility on a cost-sharing or nonprofit basis;
(2) Reuse or recycling of any solid waste; and
(3) Disposal of residential solid waste by an individual not in the business of hauling or disposing of solid waste on the days and times designated by the secretary by rule as exempt from the fee imposed pursuant to section eleven, article fifteen, chapter twenty-two of this code.
(f) Procedure and administration. -- Notwithstanding section three, article ten, chapter eleven of this code, each and every provision of the West Virginia Tax Procedure and Administration Act set forth in said article applies to the fee imposed by this section with like effect as if the act were applicable only to the fee imposed by this section. and were set forth in extenso in this section
(g) Criminal penalties. -- Notwithstanding section two, article nine, chapter eleven of this code, sections three through seventeen, inclusive, article nine, chapter eleven of this code apply to the fee imposed by this section with like effect as if the sections were the only fee imposed by this section. and were set forth in extenso in this section
(h) Dedication of proceeds. -- The proceeds of the fee collected pursuant to this section shall be deposited by the Tax Commissioner, at least monthly, in a special revenue account designated as the Recycling Assistance Fund which is hereby continued and transferred to the Department of Environmental Protection. The secretary shall allocate the proceeds of the fund as follows:
(1) Fifty percent of the total proceeds shall be provided in grants to assist municipalities, counties and other interested parties in the planning and implementation of recycling programs, public education programs and recycling market procurement efforts, established pursuant to this article. The secretary shall promulgate rules, in accordance with chapter twenty-nine-a of this code, containing application procedures, guidelines for eligibility, reporting requirements and other matters considered appropriate: Provided, That persons responsible for collecting, hauling or disposing of solid waste who do not participate in the collection and payment of the solid waste assessment fee imposed by this section, in addition to all other fees and taxes levied by law for solid waste generated in this state which is destined for disposal, shall not be eligible to receive grants under the provisions of this article;
(2) Twelve and one-half percent of the total proceeds shall be expended for personal services and benefit expenses of full-time salaried conservation officers;
(3) Twelve and one-half percent of the total proceeds shall be directly allocated to the solid waste planning fund;
(4) Twelve and one-half percent of the total proceeds shall be transferred to the solid waste reclamation and environmental response fund, established pursuant to section eleven, article fifteen, chapter twenty-two of this code, to be expended by the Department of Environmental Protection to assist in the funding of the Pollution Prevention and Open Dumps Program (PPOD) which encourages recycling, reuse, waste reduction and clean-up activities; and
(5) Twelve and one-half percent of the total proceeds shall be deposited in the Hazardous Waste Emergency Response Fund established in article nineteen of this chapter.
ARTICLE 16. SOLID WASTE LANDFILL CLOSURE ASSISTANCE PROGRAM.

§22-16-4. Solid waste assessment fee; penalties.
(a) Imposition. --
(1) A solid waste assessment fee is levied and imposed upon the disposal of solid waste at any solid waste disposal facility in this state in the amount of three dollars and fifty cents per ton or like ratio on any part of a ton of solid waste, except as provided in subsection (e) of this section. Provided, That any
(2) The fee shall be reduced to two dollars and eighty cents per ton, or fraction thereof, for solid waste disposed of at a solid waste disposal facility on and after the first day of the calendar month that begins sixty days after the end of the three consecutive calendar-month period during which all landfill solid waste disposal facilities in this state collectively receive for disposal more than five hundred seventy thousand tons of solid waste per month during that three-month period. The Secretary of the Department of Environmental Protection shall give written notice to all solid waste disposal facilities in this state, the Public Service Commission and the State Tax Commissioner of the effective date of this rate reduction.
(3) Where the tariffs approved by the Public Service Commission include this assessment fee, the tariffs shall automatically be reduced by the amount of the rate reduction on the date the rate reduction becomes effective without any person having to apply for the rate reduction. A rate reduction shall be passed on to the solid waste disposal customers who generated the solid waste and who are assessed the fee as part of the costs for solid waste disposal services.
(4) A solid waste disposal facility may deduct from this assessment fee an amount, not to exceed the fee, equal to the amount that the facility is required by the Public Service Commission to set aside for the purpose of closure of that portion of the facility required to close by article fifteen of this chapter.
(5) The fee imposed by this section is in addition to all other fees and taxes levied by law and shall be added to and constitute part of any other fee charged by the operator or owner of the solid waste disposal facility.
(b) Collection, return, payment and records. -- The person disposing of solid waste at the solid waste disposal facility shall pay the fee imposed by this section, whether or not that person owns the solid waste, and the fee shall be collected by the operator of the solid waste facility who shall remit it to the Tax Commissioner:
(1) The fee imposed by this section accrues at the time the solid waste is delivered to the solid waste disposal facility;
(2) The operator shall remit the fee imposed by this section to the Tax Commissioner on or before the fifteenth day of the month next succeeding the month in which the fee accrued. Upon remittance of the fee, the operator shall file returns on forms and in the manner prescribed by the Tax Commissioner;
(3) The operator shall account to the state for all fees collected under this section and shall hold them in trust for the state until they are remitted to the Tax Commissioner;
(4) If any operator fails to collect the fee imposed by this section, he or she is personally liable for the amount he or she failed to collect, plus applicable additions to tax, penalties and interest imposed by article ten, chapter eleven of this code;
(5) Whenever any operator fails to collect, truthfully account for, remit the fee or file returns with the fee as required in this section, the Tax Commissioner may serve written notice requiring the operator to collect the fees which become collectible after service of the notice, to deposit the fees in a bank approved by the Tax Commissioner, in a separate account, in trust for and payable to the Tax Commissioner, and to keep the amount of the fees in the account until remitted to the Tax Commissioner. The notice shall remain in effect until a notice of cancellation is served on the operator or owner by the Tax Commissioner;
(6) Whenever the owner of a solid waste disposal facility leases the solid waste facility to an operator, the operator is primarily liable for collection and remittance of the fee imposed by this section and the owner is secondarily liable for remittance of the fee imposed by this section. However, if the operator fails, in whole or in part, to discharge his or her obligations under this section, the owner and the operator of the solid waste facility are jointly and severally responsible and liable for compliance with the provisions of this section;
(7) If the operator or owner responsible for collecting the fee imposed by this section is an association or corporation, the officers of the association or corporation are liable, jointly and severally, for any default on the part of the association or corporation, and payment of the fee and any additions to tax, penalties and interest imposed by article ten, chapter eleven of this code may be enforced against them as against the association or corporation which they represent; and
(8) Each person disposing of solid waste at a solid waste disposal facility and each person required to collect the fee imposed by this section shall keep complete and accurate records in the form required by the Tax Commissioner in accordance with the rules of the Tax Commissioner.
(c) Regulated motor carriers. -- The fee imposed by this section is a necessary and reasonable cost for motor carriers of solid waste subject to the jurisdiction of the Public Service Commission under chapter twenty-four-a of this code. Notwithstanding any provision of law to the contrary, upon the filing of a petition by an affected motor carrier, the Public Service Commission shall, within fourteen days, reflect the cost of the fee in the motor carrier's rates for solid waste removal service. In calculating the amount of the fee to the motor carrier, the commission shall use the national average of pounds of waste generated per person per day as determined by the United States Environmental Protection Agency.
(d) Definitions. -- 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 in this section authorizes in any way the creation or operation of or contribution to an open dump.
(e) Exemptions. -- The following transactions are exempt from the fee imposed by this section:
(1) Disposal of solid waste at a solid waste disposal facility by the person who owns, operates or leases the solid waste disposal facility if the facility is used exclusively to dispose of waste originally produced by that person in the 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 the days and times designated by the
director secretary as exempt from the solid waste assessment fee; 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 shall keep accurate records of incoming and outgoing waste by weight. The records shall be made available to the appropriate inspectors from the division department upon request.
(f) Procedure and administration. -- Notwithstanding section three, article ten, chapter eleven of this code, each and every provision of the West Virginia Tax Procedure and Administration Act set forth in article ten, chapter eleven of this code applies to the fee imposed by this section with like effect as if the act were applicable only to the fee imposed by this section. and were set forth in extenso in this section
(g) Criminal penalties. -- Notwithstanding section two, article nine, chapter eleven of this code, sections three through seventeen, inclusive, article nine, chapter eleven of this code apply to the fee imposed by this section with like effect as if the sections were applicable only to the fee imposed by this section. and were set forth in extenso in this section
(h) Dedication of proceeds. -- (1) The proceeds of the fee collected pursuant to this section shall be deposited in the closure cost assistance fund established pursuant to section twelve of this article: Provided, That the
director secretary may transfer up to fifty cents for each ton of solid waste disposed of in this state upon which the fee imposed by this section is collected on or after the first day of July, one thousand nine hundred ninety-eight to the Solid Waste Enforcement Fund established pursuant to section eleven, article fifteen of this chapter.
(2) Fifty percent of the proceeds of the fee One dollar and seventy-five cents of the proceeds of the fee for each ton, or part thereof, of solid waste collected pursuant to this article in excess of thirty thousand tons per month from any landfill which is permitted to accept in excess of thirty thousand tons per month pursuant to section nine, article fifteen of this chapter shall be remitted, at least monthly, to the county commission in the county in which the landfill is located. The remainder of the proceeds of the fee collected pursuant to this section shall be deposited in the closure cost assistance fund established pursuant to section twelve of this article.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS,

AUTHORITIES, COMMISSIONS AND COMPACTS.

ARTICLE 4. COUNTY AND REGIONAL SOLID WASTE AUTHORITIES.

§22C-4-30. Solid waste assessment interim fee; regulated motor carriers; dedication of proceeds; criminal penalties.

(a)
Imposition. --
(1) 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 a ton of solid waste.
(2) The fee shall be reduced to seventy-five cents per ton, or fraction of a ton, for solid waste disposed of at a solid waste disposal facility on and after the first day of the calendar month that begins sixty days after the end of the three consecutive calendar-month period during which all landfill solid waste disposal facilities in this state receive for disposal more than five hundred seventy thousand tons of solid waste during that consecutive three-month period. The Secretary of the Department of Environmental Protection shall give written notice to all solid waste disposal facilities in this state, the Public Service Commission and the State Tax Commissioner of the effective date of this rate reduction.
(3) Where the tariffs approved by the Public Service Commission include this assessment fee, the tariffs shall automatically be reduced by the amount of the rate reduction on the date the rate reduction becomes effective without any person having to apply for the rate reduction. A rate reduction shall be passed on to the solid waste disposal customers who generated the solid waste and who are assessed the fee as part of the costs for solid waste disposal services.
(4) 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 the operator to collect the fees which become collectible after service of such the notice, to deposit such the fees in a bank approved by the Tax Commissioner, in a separate account, in trust for and payable to the Tax Commissioner, and to keep the amount of such the fees in such the account until remitted to the Tax Commissioner. Such The notice remains in effect until a notice of cancellation is served on the operator or owner by the Tax Commissioner.
(6) Whenever the owner of a solid waste disposal facility leases the solid waste facility to an operator, the operator is primarily liable for collection and remittance of the fee imposed by this section and the owner is secondarily liable for remittance of the fee imposed by this section. However, if the operator fails, in whole or in part, to discharge his or her obligations under this section, the owner and the operator of the solid waste facility are jointly and severally responsible and liable for compliance with the provisions of this section.
(7) If the operator or owner responsible for collecting the fee imposed by this section is an association or corporation, the officers 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 the fee in said the motor carrier's rates for solid waste removal service. In calculating the amount of said the fee to said the motor carrier, the commission shall use the national average of pounds of waste generated per person per day as determined by the United States Environmental Protection Agency.
(d)
Definition 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)
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 the person in such the 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 Secretary
of the Division 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 shall keep accurate records of incoming and outgoing waste by weight. Such The records must be made available to the appropriate inspectors from the division Department
of Environmental Protection of or solid waste authority, upon request.
(f)
Procedure and administration. -- Notwithstanding section three, article ten, chapter eleven of this code, each and every provision of the West Virginia Tax Procedure and Administration Act set forth in article ten, chapter eleven of this code applies to the fee imposed by this section with like effect as if said act it were applicable only to the fee imposed by this section. and were set forth in extenso herein
(g)
Criminal penalties. -- Notwithstanding section two, article nine, chapter eleven of this code, sections three through seventeen, inclusive, article nine, chapter eleven of this code apply to the fee imposed by this section with like effect as if said those sections were the only fee imposed by this section. and were set forth in extenso herein
(h)
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 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 the funds shall be paid over to the regional solid waste authority 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 the regional solid waste authority; and
(2) Fifty percent of the total proceeds shall be expended by the Solid Waste Management Board 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 necessary to implement the purposes of this article and article three of this chapter.
(i)
Effective date. -- This section is effective on the first day of July, one thousand nine hundred ninety.


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NOTE: The purpose of this bill is to reduce landfill solid waste assessment fees in West Virginia effective on the first day of a calendar month that begins 60 days after a three consecutive month period during which the average tonnage of solid waste disposed of in West Virginia landfills exceeds 570,000 tons per month during that consecutive three-month period.


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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