WEST virginia legislature
2022 regular session
Committee Substitute
for
Senate Bill 554
By Senators Blair
(Mr. President) and Baldwin
(By Request of the Executive)
[Originating in the Committee on Natural Resources; reported on February 15, 2022]
A BILL to repeal §22C-3-22 of the Code of West Virginia, 1931, as amended; and to amend and reenact §22C-3-1, §22C-3-2, §22C-3-3, §22C-3-4, §22C-3-5, §22C-3-6, §22C-3-7, §22C-3-8, §22C-3-9, §22C-3-10, §22C-3-11, §22C-3-12, §22C-3-13, §22C-3-14, §22C-3-15, §22C-3-16, §22C-3-17, §22C-3-18, §22C-3-19, §22C-3-20, §22C-3-21, §22C-3-23, §22C-3-24, §22C-3-25, and §22C-3-26 of said code, all relating to abolishing the West Virginia Solid Waste Management Board and transferring its functions, rights, powers, and duties to the Department of Environmental Protection; defining terms; declaring that the department is bound by actions previously taken by the Solid Waste Management Board; requiring development of state solid waste management plan once every two years beginning 2023; removing or repealing obsolete provisions relating to the former board; and correcting and revising citations to related sections of said code.
Be it enacted by the Legislature of West Virginia:
ARTICLE 3. SOLID
WASTE MANAGEMENT BOARD ADMINISTRATION OF SOLID WASTE MANAGEMENT.
§22C-3-1. Short title.
This article shall be known
and cited as the “Administration of Solid Waste Management Board Act.”
§22C-3-2. Legislative findings; declaration of policy and responsibility; purpose and intent of article.
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 non-replenishable resources contained in solid waste.
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 disposal sheds and projects must be established on a relatively large scale 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.
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 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.
§22C-3-3. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(1) “Board” means the
solid waste management board provided for in section four of this article, the
duties, powers, responsibilities and functions of which are specified in this
article
(2) “Bond” or “solid waste disposal revenue bond” means a
revenue bond or note issued by the solid waste management board, previously
known as the West Virginia resource recovery--solid waste disposal authority
department, to effect the intents and purposes of this article.
(3) “Construction” includes reconstruction, enlargement,
improvement, and providing furnishings or equipment for a solid waste disposal
project.
(4) “Cost” means, as applied to solid waste disposal
projects, the cost of their acquisition and construction; the cost of
acquisition of all land, rights-of-way, property, rights, easements, franchise
rights, and interests required by the board department for such
acquisition and construction; the cost of demolishing or removing any buildings
or structures on land so acquired, including the cost of acquiring any land to
which such buildings or structures may be moved; the cost of diverting
highways, interchange of highways, and access roads to private property,
including the cost of land or easements therefor; the cost of all machinery,
furnishings, and equipment; all financing charges and interest prior to and
during construction and for no more than 18 months after completion of
construction; the cost of all engineering services and all expenses of research
and development with respect to solid waste facilities; the cost of all legal
services and expenses; the cost of all plans, specifications, surveys, and
estimates of cost and revenues; all working capital and other expenses
necessary or incident to determining the feasibility or practicability of
acquiring or constructing any such project; all administrative expenses and
such other expenses as may be necessary or incident to the acquisition or
construction of the project; the financing of such acquisition or construction,
including the amount authorized in the resolution of the board department
providing for the issuance of solid waste disposal revenue bonds to be paid into
any special funds from the proceeds of such bonds; and the financing of the
placing of any such project in operation. Any obligation or expenses incurred
by any governmental agency, with the approval of the board department,
for surveys, borings, preparation of plans and specifications and other
engineering services in connection with the acquisition or construction of a
project are a part 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.
“Department” means the Department of Environmental Protection.
(5) “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.
(6) “Industrial waste” means any solid waste substance
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.
(7) “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.
(8) “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.
(9) “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.
(10) “Revenue” means any money or thing of value collected
by, or paid to, the solid waste management board department 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 or other
fees on loans, or any other collections on loans made by the solid waste
management board department to governmental agencies to finance, in
whole or in part, the acquisition or construction of any solid waste
development project or projects, or other money or property which is received
and may be expended for or pledged as revenues pursuant to this article.
“Secretary” means the Secretary of the 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 §20-5A-1 et seq. 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 §20-5E-1
et
seq.
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 §22-1-1 et seq., §22A-1-1 et seq. , or §22B-1-1 et seq, 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, wastewater treatment plants, sewer treatment plants,
water and sewer systems, and connecting pipelines the acquisition or
construction of which is authorized by the solid waste management board department
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 board department
as provided in this article, including all buildings and facilities which the board
department 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 solid waste management board department
designates as provided in section eight 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.
§22C-3-4. Solid Abolition
of the solid waste management board; organization of board; appointment
and qualification of board members; their term of office, compensation and
expenses; director of board transfer of authority and responsibilities
to the Department of Environmental Protection.
The solid waste management
board is a governmental instrumentality of the state and a body corporate.
The exercise by the board of the powers conferred on it by this article and the
carrying out of its purposes and duties are essential governmental functions
and are for a public purpose hereby abolished. The department is charged
with carrying out the requirements of this article and assumes the rights and
responsibilities formerly delegated to the Solid Waste Management Board.
The board is composed of
seven members. The secretary of the Department of Health and Human Resources
and the director of the Division of Environmental Protection, or their
designees, are members ex officio of the board. The other five members of the
board are appointed by the Governor, by and with the advice and consent of the
Senate, for terms of one, two, three, four and five years, respectively. Two
appointees shall be persons having at least three years of professional
experience in solid waste management, civil engineering or regional planning
and three appointees shall be representatives of the general public. The
successor of each such appointed member shall be appointed for a term of five
years in the same manner the original appointments were made and so that the
representation on the board as set forth in this section is preserved, except
that any person appointed to fill a vacancy occurring prior to the expiration
of the term for which his or her predecessor was appointed shall be appointed
only for the remainder of such term. Each board member serves until the appointment
and qualification of his or her successor.
No more than three of
the appointed board members may at any one time be from the same congressional
district or belong to the same political party. No appointed board member may
be an officer or employee of the United States or this state. Appointed board
members may be reappointed to serve additional terms. All members of the board
shall be citizens of the state. Each appointed member of the board, before
entering upon his or her duties, shall comply with the requirements of article
one, chapter six of this code and give bond in the sum of $25,000. Appointed
members may be removed from the board only for the same causes as elective
state officers may be removed.
Annually the board shall
elect one of its appointed members as chair, another as vice chair and appoint
a secretary-treasurer, who need not be a member of the board. Four members of
the board are a quorum and the affirmative vote of four members is necessary
for any action taken by vote of the board. No vacancy in the membership of the
board impairs the rights of a quorum by such vote to exercise all the rights
and perform all the duties of the board. The person appointed as
secretary-treasurer shall give bond in the sum of $50,000. If a board member is
appointed as secretary-treasurer, he or she shall give bond in the sum of
$25,000 in addition to the bond required in the preceding paragraph.
The ex officio members
of the board shall not receive any compensation for serving as a board member.
Each of the five appointed members of the board shall be paid the same
compensation, and each member of the board shall be paid the expense
reimbursement, as is paid to members of the Legislature for their interim
duties as recommended by the citizens legislative compensation commission and
authorized by law for each day or portion thereof engaged in the discharge of
official duties. All such compensation and expenses incurred by board members
are payable solely from funds of the board or from funds appropriated for such
purpose by the Legislature and no liability or obligation shall be incurred by
the board beyond the extent to which moneys are available from funds of the
board or from such appropriation.
The board shall meet at
least four times annually and at any time upon the call of its chair or upon
the request in writing to the chair of four board members.
The board shall appoint
a director as its chief executive officer. The director shall have successfully
completed an undergraduate education and, in addition, shall have two years of
professional experience in solid waste management, civil engineering, public
administration or regional planning
§22C-3-5. Board to
designate and establish Designation and establishment of 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 solid waste management board department shall
designate and establish solid waste disposal sheds and it 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 board department determines that the project is
consistent with federal law, with its solid waste disposal shed plan, with the
standards set by the State Environmental Quality Board and the director secretary
for any waters of the state which may be affected thereby, with the air quality
standards set by the said director secretary and with
health standards set by the Bureau of Public Health. Any resolution of the
board decision 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 board department that such
determinations have been made. A loan agreement shall be entered into between
the board 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 board department 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 board department may reasonably
require.
The board department
shall comply with the provisions of federal law and of §22-15-1 et seq. of
this code, and any rules promulgated
thereunder which pertain to solid waste collection and disposal. Further,
the department is bound by actions taken by the Solid Waste Management Board
prior to the effective date of this article.
§22C-3-6. Powers, duties,
and responsibilities of board the Department of Environmental
Protection generally.
The solid waste
management board department may exercise all powers necessary or
appropriate to carry out and effectuate its corporate the purpose
of this article. The board department may:
(1) Adopt, and from time to
time, amend and repeal bylaws necessary and proper for the regulation of its
affairs and the conduct of its business, and rules promulgated pursuant to
the provisions of chapter twenty-nine-a §29A-3-1 et seq. of this code,
to implement and make effective its powers and duties.
(2) Adopt an official
seal.
(3) Maintain a principal
office which shall be in Kanawha County, and, if necessary, regional suboffices
at locations properly designated or provided.
(4) (2) Sue and be sued in its own name and plead
and be impleaded in its own name, and particularly to enforce the obligations
and covenants made under §22C-3-10, §22C-3-11, and §22C-3-16 of this code. Any
actions against the board department pursuant to this article
shall be brought in the Circuit Court of Kanawha County.
(5) (3) 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.
(6) (4) 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 §29A-3-1 et seq.
of this code, adopt rules for the use
of such projects.
(7) (5) 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.
(8) (6) 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 section10 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.
(9) (7) Acquire by gift or purchase, hold, and
dispose of real and personal property in the exercise of its powers and the
performance of its duties as set forth in this article.
(10) (8) 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 §54-1-1
et
seq.
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 §22-15-1 et
seq. of
this code and owned by any person or governmental agency. This article does not
authorize the board department 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 board department.
(11) (9) 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 pursuant to this
article. The department shall follow its purchasing rules contained in 60 CSR
10. When the cost under any such contract or agreement, other than
compensation for personal services, involves an expenditure of more than
$2,000, the board shall make a written contract with the lowest responsible
bidder after public notice published as a Class II legal 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 board 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 board may enter into such
contract or lease or such agreement pursuant to negotiation and upon such terms
and conditions and for such period as it 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 board may reject any
and all bids. A bond with good and sufficient surety, approved by the board, 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
(12) (10) 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 its 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 board
department, from revenues and from funds appropriated for such purpose
by the Legislature.
(13) (11) 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.
(14) (12) Engage in research and development with
respect to solid waste disposal projects and solid waste disposal sheds.
(15) (13) Purchase fire and extended coverage and
liability insurance for any solid waste disposal project, and for
the principal office and suboffices of the board, insurance protecting the
board and its officers and employees against liability, if any for damage to property or injury to or death of
persons arising from its operations and any other insurance the board department
may agree to provide under any resolution authorizing the issuance of solid
waste disposal revenue bonds.
is new; therefore,
strike-throughs and underscoring have been omitted.(16) (14) 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.
(17) (15) Establish or increase reserves from
moneys received or to be received by the board department to
secure or to pay the principal of and interest on the bonds and notes issued by
the board department pursuant to this article.
(18) (16) Do all acts necessary and proper to carry
out the powers expressly granted to the board department in this
article.
§22C-3-7. Development of state solid waste management plan.
On or before the first
day of January, one thousand nine hundred ninety-three, the solid waste
management board Once every two
years beginning in 2023, the department shall prepare an overall state plan
for the proper management of solid waste: Provided, That such plan shall
be consistent with the findings and purposes of §22C-4-1 et seq., §22-15-1 et
seq., and §22-15A-1 et seq. of
this code: Provided, however, That
such plan shall incorporate the county or regional plans developed pursuant to
§22C-4-8 and §22C-4-24 of this code, as amended: Provided further, That
such plan shall be updated every two years following its initial preparation.
§22C-3-8. Power of board
the Department of Environmental Protection 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 board department may be
properly carried out and in order to assure the timely payment to the board
department of all sums due and owing under loan agreements with
governmental agencies, as referred to in §22C-3-5 of this code, 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 board department
has, and may, at its 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 board department
may directly impose, in its own name and for its own benefit, service charges
determined by it 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 board department
may exercise, in its own 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 board department
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.
§22C-3-9. Development
and designation of solid waste disposal sheds by board Department of
Environmental Protection.
The board department
shall maintain the division of the state into geographical areas for solid
waste management which shall be known as solid waste disposal sheds. The board
department may, from time to time, modify the boundaries of such sheds
in a manner consistent with the provisions of this section. Before it modifies
the sheds, the board department 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 board department shall then
cause feasibility and cost studies to be made in order for it 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 board department
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 board department
may divide a county among two or more sheds upon request of the appropriate
county or regional solid waste authority.
The board department,
in modifying the boundaries of solid waste disposal sheds, is exempt from the
provisions of §29A-1-1 et seq. of
this code.
§22C-3-10. Board The
Department of Environmental Protection empowered to issue solid waste
disposal revenue bonds, renewal notes, and refunding bonds; requirements and
manner of such issuance.
The board department
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 board department
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 $100 million: Provided, That up to $25 million 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 board department
may, from time to time, issue renewal notes, issue bonds to pay such notes and
whenever it 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 board department,
every issue of its bonds or notes are obligations of the board department
payable out of the revenues and reserves created for such purposes by the board
department, 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 board department 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 board department 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 resolution of the board department, 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 50 years from the date of issue,
as such resolution 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 board department
may authorize. The board department may sell such bonds and notes
at public or private sale, at the price the board department
determines. The bonds and notes shall be executed by the chair and vice
chair of the board secretary both of whom who may use
facsimile or digital signatures. The official seal of the board or a
facsimile thereof shall be affixed thereto or printed thereon and attested,
manually or by facsimile signature, by the secretary-treasurer of the board,
and any coupons attached thereto shall bear the signature or facsimile
signature of the chair of the board. In case any officer whose signature, or a
facsimile of whose signature, appears on any bonds, notes or coupons ceases to
be such officer 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 board
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 resolution decision
by the secretary authorizing any bonds or notes or any issue thereof may
contain provisions (subject to such agreements with bondholders or noteholders
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 board
department to secure the payment of the bonds or notes or of any issue
thereof; the use and disposition of revenues of the board department;
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 resolution; 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 resolution
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 board
department; 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 board department
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
noteholders 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 board department for
operating, administrative, or other expenses of the board department;
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 resolution or resolutions
authorizing the issuance of such bonds or notes, the chair of the board secretary
shall certify, on or before December 1, 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 board department
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.
Neither the members of
the board secretary nor any person executing the bonds or notes are
liable personally on the bonds or notes or are subject to any personal
liability or accountability by reason of the issuance thereof.
§22C-3-11. 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 board
department 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 ten 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 board department 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 board department
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 board department,
shall be remitted to the water development authority at least 30 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 board department,
in a manner consistent with the provisions of this article and with the
resolution 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 resolution 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 §22C-1-15 of this code.
(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 price exceeding the
price at which any of such bonds is in the same year redeemable, as fixed by
the board department in its said resolution, and all bonds
redeemed or purchased shall forthwith be canceled, and shall not again be
issued.
§22C-3-12. 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 resolution, 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 resolution authorizing
the issuance of such bonds, and may enforce and compel the performance of all
duties required by this article, or by the resolution, to be performed by the board
department or any officer or employee thereof, including the fixing,
charging, and collecting of sufficient rentals, fees, service charges, or other
charges.
§22C-3-13. 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 board
department to incur indebtedness or liability on behalf of or payable by
the state or any county, municipality, or political subdivision thereof.
§22C-3-14. Use of funds,
properties, etc., by board Department of Environmental Protection;
restrictions thereon.
All moneys, properties, and
assets acquired by the board department, whether as proceeds from
the sale of solid waste disposal revenue bonds or as revenues or otherwise,
shall be held by it 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 resolution
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 resolution 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 resolution provide.
§22C-3-15. Audit of
funds disbursed by the board Department of Environmental Protection
and recipients thereof.
Beginning in the fiscal
year ending June 30, 1992 2023, 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 solid waste management board department
pursuant to this article. The audit shall cover the disbursement of such
loans or grants provided pursuant to §22C-4-30 of this code, the use of such
loans or grants by the recipient as well as all other appropriate subject
matter.
§22C-3-16. Rentals,
fees, service charges, and other revenues from solid waste disposal projects;
contracts and leases of board Department of Environmental Protection;
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 board department.
The board department
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 board department
in its sole discretion determines to be appropriate, but subject to the
provisions of any resolution authorizing the issuance of solid waste disposal
revenue bonds or notes or solid waste disposal revenue refunding bonds of the board
department. Any governmental agency which has power to construct,
operate, and maintain solid waste disposal facilities may enter into a contract
or lease with the board department whereby the use or services of
any solid waste disposal project of the board department 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 board department.
Any governmental agency or
agencies, or combination thereof, may cooperate with the board department
in the acquisition or construction of a solid waste disposal project and shall
enter into such agreements with the board department 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 board department to
the extent necessary or appropriate for purposes of the issuance of solid waste
disposal revenue bonds by the board department. 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 board department
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 board
department to pay the proceeds from such bonds or notes issued in
anticipation thereof to the board department as provided in this
section, may issue such bonds or notes in anticipation of the issuance thereof
and pay the proceeds thereof to the board department in accordance
with an agreement between such governmental agency and the board department:
Provided, That the legislative board of the governmental agency finds
and determines that the solid waste disposal project to be acquired or
constructed by the board department 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.
§22C-3-17. Maintenance,
operation, and repair of projects; repair of damaged property; reports by board
Department of Environmental Protection to Governor and Legislature.
Each solid waste
development project, when constructed and placed in operation, shall be
maintained and kept in good condition and repair by the board department,
or if owned by a governmental agency, by such governmental agency, or the board
department or such governmental agency shall cause the same to be
maintained and kept in good condition and repair. Each such project owned by
the board department shall be operated by such operating
employees as the board department 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 board department shall make an
annual report of its 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 board's department’s operations undertaken
pursuant to this article during the preceding fiscal year. The board
department shall cause an audit of its 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
its projects. A report of the audit shall be submitted to the Governor and the
Legislature.
§22C-3-18. Solid waste disposal revenue bonds lawful investments.
The provisions of §12-6-9 and §12-6-10 of this code notwithstanding, all solid waste disposal revenue bonds issued pursuant to this article are lawful investments for the West Virginia Investments Management Board and are also lawful investments for financial institutions as defined in §31A-1-2 of this code, and for insurance companies.
§22C-3-19. Exemption from taxation.
The board department
is not required to pay any taxes or assessments upon any solid waste disposal
project or upon any property acquired or used by the board department
or upon the income therefrom. Bonds and notes issued by the board department
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.
§22C-3-20. 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 board department, at its 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 board department,
including public roads and other real property or interests therein, including
improvements thereto or personal property already devoted to public use.
§22C-3-21. Financial interest in contracts, projects, etc., prohibited; gratuities prohibited; penalty.
No officer, member or
employee of the board department may be financially interested,
directly or indirectly, in any contract of any person with the board department,
or in the sale of any property, real or personal, to or by the board department.
This section does not apply to contracts or purchases of property, real or
personal, between the board department and any governmental
agency.
No officer, member, or
employee of the board department may have or acquire any
financial interest, either direct or indirect, in any project or activity of
the board undertaken by the department pursuant to this article
or in any services or material to be used or furnished in connection with any
project or activity of the board department undertaken pursuant to
this article. If an officer, member or employee of the board department
has any such interest at the time he or she becomes an officer, member or
employee of the board department, he or she shall disclose and
divest himself or herself of it. Failure to do so is cause for dismissal from
the position he or she holds with the authority department.
This section does not
apply in instances where a member of the board who is a contract solid waste
hauler either seeks or has a financial interest, direct or indirect, in any
project or activity of the board or in any services or material to be used or
furnished in connection with any project or activity of the board: Provided,
That member shall fully disclose orally and in writing to the board the nature
and extent of any interest, prior to any vote by the board which involves his
or her interest, withdraw from any deliberation or discussion by the board of
matters involving his or her interest, and refrain from voting on any matter
which directly or indirectly affects him or her
No officer, member or
employee of the board department may accept a gratuity from any
person doing business with the board department or from any
person for the purpose of gaining favor with the board department.
Any officer, member or
employee of the board 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 $1,000, or imprisoned in
the county jail not more than one year, or both fined and imprisoned
§22C-3-22. Conduct of proceedings of board.
[Repealed.]
§22C-3-23. Regulation of solid waste collectors and haulers to continue under Public Service Commission; bringing about their compliance with solid waste disposal shed plan and solid waste disposal projects; giving testimony at commission hearings.
Solid waste collectors and
haulers who are “common carriers by motor vehicle”, as defined in §24A-1-2 of
this code, shall continue to be regulated by the Public Service Commission in
accordance with the provisions of §24A-1-1 et seq. and rules promulgated thereunder. Nothing in this
article gives the board Department of Environmental Protection
any power or right to regulate such solid waste collectors and haulers in any
manner, but the Public Service Commission, when it issues a new certificate of
convenience and necessity, or when it alters or adjusts the provisions of any ex
post facto provision existing certificate of
convenience and necessity, or when it approves ex post facto provision the assignment or transfer of any certificate of
convenience and necessity, shall consult with the board Department of
Environmental Protection regarding what action it could take which would
most likely further the implementation of the board's department’s
solid waste disposal shed plan and solid waste disposal projects and shall take
any reasonable action that will lead to or bring about compliance of such waste
collectors and haulers with such plan and projects.
At any hearing conducted by
the Public Service Commission pertaining to solid waste collectors and haulers
on any of these matters, any member of the board, the director or an
employee of the board designated by the director the department may
appear before the commission and present evidence.
§22C-3-24. Cooperation
of board Department of Environmental Protection 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 §17-24A-1 et
seq. of this code and do not alter or diminish the
authority of any enforcement agency, as defined in section two thereof §17-24A-1
et seq. of this code, to collect and dispose of abandoned household
appliances and motor vehicles, inoperative household appliances, and junked
motor vehicles and parts thereof, including tires. The board department
and such enforcement agencies shall cooperate fully with each other in
collecting and disposing of such solid waste.
§22C-3-25. 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.
§22C-3-26. Supersedure over county and regional solid waste authorities.
For purposes of exercising
the authority provided under §22C-4-9a of this code, the board
secretary may by resolution supersede and exercise, in part or
whole, the powers granted to only county or regional solid waste authorities
that operate solid waste facilities as provided in §7-1-1 et seq. , §22-1-1 et
seq. , §22C-1-1 et seq. , and §24-1-1 et seq. of this code. Actions of the board secretary
supersede those powers granted to only county or regional solid waste
authorities that operate solid waste facilities.