H. B. 2838
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
[Introduced March 2, 2005; referred to the
Committee on Government Organization then Finance.]
A BILL to repeal §17-24-1, §17-24-2, §17-24-3, §17-24-4, §17-24-5,
§17-24-6, §17-24-7, §17-24-8, §17-24-9 and §17-24-10 of the
Code of West Virginia, 1931, as amended; to repeal §20-7-24,
§20-7-25, §20-7-26, §20-7-27, §20-7-28 and §20-7-29 of said
code; to repeal §20-11-1, §20-11-2, §20-11-3, §20-11-4,
§20-11-5, §20-11-6, §20-11-7, §20-11-8, §20-11-9, §20-11-10,
§20-11-11 and §20-11-12 of said code as amended; and that said
code be amended by adding thereto a new article, designated
§22-15A-1, §22-15A-2, §22-15A-3, §22-15A-4, §22-15A-5,
§22-15A-6, §22-15A-7, §22-15A-8, §22-15A-9, §22-15A-10,
§22-15A-11, §22-15A-12, §22-15A-13, §22-15A-14, §22-15A-15,
§22-15A-16, §22-15A-17, §22-15A-18, §22-15A-19, §22-15A-20,
§22-15A-21, §22-15A-22, §22-15A-23, §22-15A-24, §22-15A-25 and
§22-15A-26, all relating to the rehabilitation environmental
action plan; consolidating litter control, open dump elimination and reclamation, waste tire cleanup and recycling
programs; defining certain terms; providing for litter control
and recycling programs; providing additional duties of
Secretary of the Department of Environmental Protection;
providing penalties for the unlawful disposal of litter;
providing for litter control education; creating the pollution
prevention and open dump program; providing for assistance to
solid waste authorities for litter and solid waste plans;
prohibiting waste tires in certain places; providing for
penalty for violations thereof; providing that the Department
of Environmental Protection is to administer funds for waste
tire remediation; authorizing the Secretary of the Department
of Environmental Protection to promulgate rules; providing for
the disposal of waste tires; providing for the creation of the
A. James Manchin Fund; establishing remediation and liability
for remediation; clarifying that Commissioner of Bureau of
Public Health has the authority to regulate public health
matters; establishing recycling goals and plans; establishing
county recycling programs for solid waste; providing for a
recycling assessment fee; providing for criminal penalties;
establishing state recycling program for solid waste;
providing for the procurement of recycled products;
prohibiting the disposal of certain items; creating the
recycled oil advisory committee; encouraging newsprint recycling; establishing recycled newsprint advisory committee;
providing for studying the feasibility of recycling
industries; and exempting certain recycling facilities from
regulation.
Be it enacted by the Legislature of West Virginia:
That §17-24-1, §17-24-2, §17-24-3, §17-24-4, §17-24-5,
§17-24-6, §17-24-7, §17-24-8, §17-24-9 and §17-24-10 of the Code of
West Virginia, 1931, as amended, be repealed; that §20-7-24,
§20-7-25, §20-7-26, §20-7-27, §20-7-28 and §20-7-29 of said code be
repealed; that §20-11-1, §20-11-2, §20-11-3, §20-11-4, §20-11-5,
§20-11-6, §20-11-7, §20-11-8, §20-11-9, §20-11-10, §20-11-11 and
§20-11-12 of said code be repealed; that said code be amended by
adding thereto a new article, designated §22-15A-1, §22-15A-2,
§22-15A-3, §22-15A-4, §22-15A-5, §22-15A-6, §22-15A-7, §22-15A-8,
§22-15A-9, §22-15A-10, §22-15A-11, §22-15A-12, §22-15A-13,
§22-15A-14, §22-15A-15, §22-15A-16, §22-15A-17, §22-15A-18,
§22-15A-19, §22-15A-20, §22-15A-21, §22-15A-22, §22-15A-23,
§22-15A-24, §22-15A-25 and §22-15A-26, all to read as follows:
ARTICLE 15A. REHABILITATION ENVIRONMENTAL ACTION PLAN.
§22-15A-1. Legislative findings and purpose.
(a) The Legislature finds that litter is a public nuisance and
distracts from the beauty of the state and its natural resources.
It is therefore necessary to establish and implement a litter
control program to coordinate public and private litter control efforts; to establish penalties for littering; to provide for
litter pickup programs; to create education programs; and to
provide assistance to local solid waste authority litter control
efforts.
(b) The Legislature further finds that the improper management
of commercial and residential solid waste and the unlawful disposal
of such waste creates open dumps that adversely impacts the state's
natural resources, public water supplies, and the public health,
safety and welfare of the citizens of the state. It is therefore
necessary to establish a program to promote pollution prevention
and to eliminate and remediate open dumps.
(c) The Legislature further finds that waste tire piles are a
direct product of state citizens use and enjoyment of state roads
and highways and proper tire waste disposal is a necessary
component of maintenance of the transportation system. The
accumulation of waste tires has also become a significant
environmental and public health hazard to the state and the
location and number of waste tires are directly related to the
efficiency of travel, by citizens, visitors and of commerce, along
public highways in West Virginia. In particular, the Legislature
recognizes that waste tires are widespread in location and in
number throughout the state; waste tires physically touch and
concern public highways, including, but not limited to, state
roads, county roads, park roads, secondary routes and orphan roads, all of which interferes with the efficiency of public highways; and
further that the existence of waste tires along and near public
highways is sometimes accompanied by other hazards and, in turn,
adversely impacts the proper maintenance and efficiency of public
highways for citizens.
(d) The Legislature also recognizes and declares that waste
tires are a public nuisance and hazard; that waste tires serve as
harborage and breeding places for rodents, mosquitoes, fleas, ticks
and other insects and pests injurious to the public health, safety
and general welfare; that waste tires collected in large piles pose
an excessive risk to public health, safety and welfare from disease
or fire; that the environmental, economic and societal damage
resulting from fires in waste tire piles can be avoided by removing
the piles; and that tire pile fires cause extensive pollution of
the air and surface and ground water for miles downwind and
downstream from the fire.
(e) Therefore, in view of the findings relating to waste
tires, the Legislature declares it to be the public policy of the
State of West Virginia to eliminate the present danger resulting
from discarded or abandoned waste tires and to eliminate the visual
pollution resulting from waste tire piles, and that in order to
provide for the public health, safety and welfare, quality of life,
and to reverse the adverse impacts to the proper maintenance and
efficiency of public highways, it is necessary to enact legislation to those ends by providing expeditious means and methods for
effecting the disposal of waste tires.
(f) The Legislature finds that many citizens desire a
recycling program in order to conserve limited natural resources,
reduce litter, recycle valuable materials, extend the useful life
of solid waste landfills, reduce the need for new landfills, and
create markets for recyclable materials. It is therefore necessary
to establish goals for recycling solid waste; to require certain
municipalities to implement recycling programs; to authorize
counties to adopt comprehensive recycling programs; to encourage
source separation of solid waste; to increase the purchase of
recycled products by the various agencies and instrumentalities of
government; and to educate the public concerning the benefits of
recycling.
(g)The Legislature finds that the effectiveness of litter
control, open dump, tire cleanup programs and recycling programs
have been made less efficient by fragmented implementation of the
various programs by different agencies. It is therefore, necessary
to coordinate all such programs under one program managed by the
Department to ensure that all current and future litter, open dump,
waste tire and recycling issues are managed and addressed
efficiently and effectively.
(h) This article will implement the "Rehabilitation
Environmental Action Plan," a coordinated effort to address litter, waste, open dump, tire cleanup and recycling programs.
§22-15A-2. Definitions.
Unless the context clearly indicates a different meaning or
defined elsewhere in this chapter, as used in this article:
(1) "Beneficial use" means the use or reuse of whole waste
tires or tire derived material which are reused in constructing
retaining walls, rebuilding highway shoulders and subbase, building
highway crash attenuation barriers, feed hopper or watering troughs
for livestock, other agricultural uses approved by the Department
of Environmental Protection, playground equipment, boat or truck
dock construction, house or building construction, go-cart,
motorbike or race track barriers, or similar types of beneficial
applications:
Provided, That waste tires may not be reused as
fencing, as erosion control structures, along stream banks or river
banks or reused in any manner where human health or the
environment, as determined by the Secretary of the Department of
Environmental Protection, is put at risk.
(2) "Collected for commercial purposes" means taking solid
waste for disposal from any person for remuneration regardless of
whether or not the person taking the solid waste is a common
carrier by motor vehicle governed by article two, chapter
twenty-four-a of this code.
(3) "Court" means any circuit, magistrate or municipal court.
(4) "Department" means the Department of Environmental Protection.
(5) "Litter" means all waste material including, but not
limited to, any garbage, refuse, trash, disposable package,
container, can, bottle, paper, ashes, cigarette or cigar butt,
carcass of any dead animal or any part thereof, or any other
offensive or unsightly matter, but not including the wastes of
primary processes of mining, logging, sawmilling, farming or
manufacturing.
(6) "Litter receptacle" means those containers suitable for
the depositing of litter at each respective public area designated
by the Secretary's rules promulgated pursuant to subsection (c),
section three of this article.
(7) "Person" means a natural person, corporation, firm,
partnership, association or society, and the plural as well as the
singular.
(8) "Public area" means an area outside of a municipality,
including public road and highway rights-of-way, parks and
recreation areas owned or controlled by this state or any county of
this state, or an area held open for unrestricted access by the
general public.
(9) "Remediate or Remediation" means to remove all litter,
solid waste, and tires located above grade at a site:
Provided,
That remediation does not include clean up of hazardous waste.
(10) "Secretary" means the Secretary of the Department of Environmental Protection.
(11) "Waste tire" means any continuous solid or pneumatic
rubber covering designed to encircle the wheel of a vehicle but
which has been discarded, abandoned or is no longer suitable for
its original, intended purpose nor suitable for recapping, or other
beneficial use because of wear, damage or defect. A tire is no
longer considered to be suitable for its original intended purpose
when it fails to meet the minimum requirements to pass a West
Virginia motor vehicle safety inspection. Used tires located at a
commercial recapping facility or tire dealer for the purpose of
being reused or recapped are not waste tires.
(12) "Waste tire monofill or monofill" means an approved solid
waste facility where no solid waste except waste tires are placed
for the purpose of long term storage for eventual retrieval for
marketing purposes.
(13) "Waste tire processing facility" means a solid waste
facility or manufacturer that accepts waste tires generated by
sources other than the owner or operator of the facility for
processing by such means as cryogenics, pyrolysis, pyroprossing
cutting, splitting, shredding, quartering, grinding or otherwise
breaking down waste tires for the purposes of disposal, reuse,
recycling and/or marketing.
(14) "Waters of the state" means generally, without
limitation, natural or artificial lakes, rivers, streams, creeks, branches, brooks, ponds, impounding reservoirs, springs, wells,
watercourses and wetlands.
§22-15A-3. West Virginia litter control and recycling programs;
additional duties of Secretary; grants to counties
and municipalities; and regulations relating thereto.
(a) In addition to all other powers, duties and
responsibilities granted and assigned to the Secretary of the
Department of Environmental Protection in this chapter and
elsewhere by law, the Secretary, in the administration of the West
Virginia litter control program created by this section, shall:
(1) Coordinate all industry and business organizations seeking
to aid in the litter control and recycling effort;
(2) Cooperate with all local governments to accomplish
coordination of local litter control and recycling efforts;
(3) Encourage, organize, coordinate and increase public
awareness of and participation in all voluntary litter control and
recycling campaigns, including citizen litter watch programs,
seeking to focus the attention of the public on the litter control
and recycling programs of the state and local governments and of
private recycling centers;
(4) Recommend to local governing bodies that they adopt
ordinances similar to the provisions of section four of this
article;
(5) Investigate the methods and success of techniques of litter control, removal and disposal utilized in other states, and
develop, encourage, organize and coordinate local litter control
programs funded by grants awarded pursuant to subsection (b) of
this section utilizing such successful techniques;
(6) Investigate the availability of, and apply for, funds
available from any and all private or public sources to be used in
the litter control program created by this section;
(7) Attract to the state persons or industries that purchase,
process or use recyclable materials; and
(8) Contract for the development, production and broadcast of
radio and television messages promoting the West Virginia litter
control program. The messages should increase public awareness of
and promote citizen responsibility toward the reduction of litter.
(b) All authority to promulgate rules pursuant to article
three, chapter twenty-nine-a of this code establishing criteria for
the awarding of direct and/or matching grants for the study of
available research and development in the fields of litter control,
removal and disposal, methods for the implementation of such
research and development, and the development of public educational
programs concerning litter control is hereby transferred from the
Division of Natural Resources to the Secretary of the Department of
Environmental Protection as of the effective date of enactment of
this section and article during the two thousand five session of
the Legislature:
Provided, That the legislative rule "Awarding of Matching Grants for Local Litter Control Programs, 58 CSR 6"
authorized by legislative enactment during the two thousand session
of the Legislature and the interpretive rule "Awarding of Matching
Grants for Local Litter Control Programs, 58 CSR 7" effective on
December 29, 1986 shall remain in force and effect until the
Secretary amends the rules in accordance with the provisions of
article three, chapter twenty-nine-a of this code.
(c) All authority to promulgate rules pursuant to article
three, chapter twenty-nine-a of this code designating public areas
where litter receptacles shall be placed and the minimum number of
litter receptacles in accordance with subsection (d), section four
of this article is hereby transferred from the Division of Natural
Resources to the Secretary of the Department of Environmental
Protection as of the effective date of enactment of this section
and article during the two thousand five session of the
Legislature.
(d) Commencing on the first day of July, two thousand and
five, the Secretary shall expend annually at least fifty percent of
the moneys credited to the "litter control fund" in the previous
fiscal year for matching grants to counties and municipalities for
the initiation and administration of litter control programs. The
Secretary may promulgate regulations pursuant to article three,
chapter twenty-nine-a of this code establishing criteria for the
awarding of matching grants.
(e) The Secretary of the Department of Environmental
Protection in Cooperation with the Commissioner of Highways, the
Department of Commerce, the Department of Public Safety, the United
States Forestry Service, and other local, state and federal
law-enforcement agencies, shall be responsible for the
administration and enforcement of all laws and regulations relating
to the maintenance of cleanliness and improvement of appearances on
and along highways, roads, streets, alleys and any other private or
public areas of the state and these other agencies shall make
recommendations to the Secretary from time to time concerning means
and methods of accomplishing litter control consistent with the
provisions of this chapter. Such cooperation shall include, but
not be limited to, contracts with the Commissioner of Highways to
operate the litter control program.
(f) All other state agencies and local governments shall
cooperate with the Secretary in effecting the purposes of the
litter control program.
§22-15A-4. Unlawful disposal of litter; civil and criminal
penalty; litter control fund; evidence; notice
violations; litter receptacle placement; penalty;
duty to enforce violations
.
(a) (1) No person shall place, deposit, dump, throw or cause
to be placed, deposited, dumped or thrown any litter as defined in
section two of this article, in or upon any public or private highway, road, street or alley; any private property; any public
property; or the waters of the state or within one hundred feet of
the waters of this state, except in a proper litter or other solid
waste receptacle.
(2) It is unlawful for any person to place, deposit, dump,
throw or cause to be placed, deposited, dumped or thrown any litter
from a motor vehicle or other conveyance or to perform any act
which constitutes a violation of the motor vehicle laws contained
in section fourteen, article fourteen, chapter seventeen-c of this
code.
(3) If any litter is placed, deposited, dumped, discharged,
thrown or caused to be placed, deposited, dumped or thrown from a
motor vehicle, boat, airplane or other conveyance, it is prima
facie evidence that the owner or the operator of the motor vehicle,
boat, airplane or other conveyance intended to violate the
provisions of this section.
(4) Any person who violates the provisions of this section by
placing, depositing, dumping or throwing or causing to be placed,
deposited, dumped or thrown any litter, not collected for
commercial purposes, in an amount not exceeding one hundred pounds
in weight or twenty-seven cubic feet in size, is guilty of a
misdemeanor. Upon conviction, he or she is subject to a fine of
not less than fifty dollars nor more than one thousand dollars, or
in the discretion of the court, sentenced to perform community service by cleaning up litter from any public highway, road,
street, alley or any other public park or public property, or
waters of the state, as designated by the court, for not less than
eight nor more than sixteen hours, or both.
(5) Any person who violates the provisions of this section by
placing, depositing, dumping or throwing or causing to be placed,
deposited, dumped or thrown any litter, not collected for
commercial purposes, in an amount greater than one hundred pounds
in weight or twenty-seven cubic feet in size, but less than five
hundred pounds in weight or two hundred sixteen cubic feet in size
is guilty of a misdemeanor. Upon conviction he or she is subject
to a fine of not less than five hundred dollars nor more than two
thousand dollars, or in the discretion of the court, may be
sentenced to perform community service by cleaning up litter from
any public highway, road, street, alley or any other public park or
public property, or waters of the state, as designated by the
court, for not less than sixteen nor more than thirty-two hours, or
both.
(6) Any person who violates the provisions of this section by
placing, depositing, dumping or throwing or causing to be placed,
deposited, dumped or thrown any litter in an amount greater than
five hundred pounds in weight or two hundred sixteen cubic feet in
size or any amount which had been collected for commercial
purposes, is guilty of a misdemeanor. Upon conviction the person is subject to a fine not less than twenty-five hundred dollars or
not more than twenty-five thousand dollars, or confinement in a
county or regional jail for not more than one year or both. In
addition, the violator may be guilty of creating or contributing to
an open dump as defined in section two, article fifteen, chapter
twenty-two of this code and subject to the enforcement provisions
of section fifteen of said article.
(7) Any person convicted of a second or subsequent violation
of this section is subject to double the authorized range of fines
and community service for the subsection violated.
(8) The sentence of litter cleanup shall be verified by
conservation officers from the Division of Natural Resources or
environmental inspectors from the Department of Environmental
Protection. Any defendant receiving the sentence of litter cleanup
shall provide within a time to be set by the court written
acknowledgment from a conservation officer or environmental
inspector that the sentence has been completed and the litter has
been disposed of lawfully.
(9) Any person who has been found by the court to have
willfully failed to comply with the terms of a litter cleanup
sentence imposed by the court pursuant to this section is subject
to, at the discretion of the court, double the amount of the
original fines and community service penalties.
(10) All law-enforcement agencies, officers and environmental inspectors shall enforce compliance with this section within the
limits of each agency's statutory authority.
(11) No portion of this section restricts an owner, renter or
lessee in the lawful use of his or her own private property or
rented or leased property or to prohibit the disposal of any
industrial and other wastes into waters of this state in a manner
consistent with the provisions of article eleven, chapter
twenty-two of this code. But if any owner, renter or lessee,
private or otherwise, knowingly permits any such materials or
substances to be placed, deposited, dumped or thrown in such
location that high water or normal drainage conditions will cause
any such materials or substances to wash into any waters of the
state, it is prima facie evidence that the owner, renter or lessee
intended to violate the provisions of this section:
Provided, That
if a landowner, renter or lessee, private or otherwise, reports any
placing, depositing, dumping or throwing of these substances or
materials upon his or her property to the prosecuting attorney,
county commission or the Division of Natural Resources or the
Department of Environmental Protection, then the landowner, renter
or lessee will be presumed to not have knowingly permitted the
placing, depositing, dumping or throwing of the materials or
substances.
(b) Any indication of ownership found in litter shall be prima
facie evidence that the person identified violated the provisions of this section:
Provided, That no inference may be drawn solely
from the presence of any logo, trademark, trade name or other
similar mass reproduced things of identifying character appearing
on the found litter.
(c) Every person who is convicted of or pleads guilty to
disposing of litter in violation of subsection (a) of this section
shall pay a civil penalty in the sum of not less than one hundred
dollars nor more than one thousand dollars as costs for cleanup,
investigation and prosecution of the case, in addition to any other
court costs that the court is otherwise required by law to impose
upon a convicted person.
The clerk of the circuit court, magistrate court or municipal
court in which these additional costs are imposed shall, on or
before the last day of each month, transmit fifty percent of a
civil penalty received pursuant to this section to the State
Treasurer for deposit in the State Treasury to the credit of a
special revenue fund to be known as the litter control fund which
is hereby continued and transferred to the Department of
Environmental Protection. Expenditures for purposes set forth in
this section are not authorized from collections but are to be made
only in accordance with appropriation and in accordance with the
provisions of article three, chapter twelve of this code and upon
fulfillment of the provisions set forth in article two, chapter
five-a of this code. Amounts collected which are found from time to time to exceed the funds needed for the purposes set forth in
this article may be transferred to other accounts or funds and
designated for other purposes by appropriation of the Legislature.
(d) The remaining fifty percent of each civil penalty
collected pursuant to this section shall be transmitted to the
county or regional solid waste authority in the county where the
litter violation occurred. Moneys shall be expended by the county
or regional solid waste authority for the purpose of litter
prevention, cleanup and enforcement. The county commission shall
cooperate with the county or regional solid waste authority serving
the respective county to develop a coordinated litter control
program pursuant to section eight, article four, chapter
twenty-two-c of this code.
(e) The Commissioner of the Division of Motor Vehicles, upon
registering a motor vehicle or issuing an operator's or chauffeur's
license, shall issue to the owner or licensee, as the case may be,
a summary of this section and section fourteen, article fourteen,
chapter seventeen-c of the code.
(f) The Commissioner of the Division of Highways shall cause
appropriate signs to be placed at the state boundary on each
primary and secondary road, and at other locations throughout the
state, informing those entering the state of the maximum penalty
provided for disposing of litter in violation of subsection (a) of
this section.
(g) Any state agency or political subdivision that owns,
operates or otherwise controls any public area as may be designated
by the Secretary by rule promulgated pursuant to subdivision (8),
subsection (a), section three of this article, shall procure and
place litter receptacles at its own expense upon its premises and
shall remove and dispose of litter collected in the litter
receptacles. After receiving two written warnings from any
law-enforcement officer or officers to comply with this subsection
or the rules of the Secretary, any person who fails to place and
maintain the litter receptacles upon his or her premises in
violation of this subsection or the rules of the Secretary shall be
fined fifteen dollars per day of the violation.
§22-15A-5. Litter pickup and removal; education; government
recycling responsibilities; monitoring and
evaluation; study commission; repeal; report to
Legislature.
(a) Litter pickup and removal.
(1) Each county commission and the Regional Jail Authority may
establish a jail or prison inmate program including a regular
litter pickup work regimen under proper supervision pursuant to
section four, article fifteen, chapter seventeen of this code.
Funding for said programs shall be from the Litter Control Fund.
Funding requirements may include salaries for additional personnel
needed for the program. Said program may include the cooperative help of the Division of Highways or any other voluntary state,
local, private, civic or public agency for personnel, equipment, or
materials in establishing a county or region-wide, continual
program of inmate litter pickup. Upon final approval of the
projected cost of the program for a given fiscal year, the
Secretary shall disburse the approved amount to the county or
regional authority. The funds will be used by the authority to
reimburse the county commission or Regional Jail Authority for its
expenses related to the program and to pay other costs related to
the use of inmates for litter pickup. Nothing contained herein
shall preclude a county or counties from expending whatever
additional funds its commission or commissions may deem appropriate
from any other revenue source in furtherance of said program.
(2) All persons involved with litter pickup may separate
identifiable recyclable materials from other litter collected. The
funds resulting from the sale of those recyclable materials shall
be returned to the Litter Control Fund.
(3) The county or regional solid waste authority may also
contract with local governments, civic organizations or chief
correctional officers in any county to implement litter pickup and
removal pursuant to this act when the state offender work force is
not available. In such cases, the contract provisions shall
require that identifiable recyclable materials shall be separated
from other litter collected, with resulting funds returned to the Litter Control Fund. Priority shall be given to those contracts
that maximize the use of community service hours by inmates and
youth employment programs.
(b) Education.
(1) The Department of Education in cooperation with the
Department of Environmental Protection shall distribute educational
materials to the schools based on the goals of litter clean up and
proper solid waste disposal, the rationale for said goals, and how
primary and secondary school students can contribute to the
achievement of such goals. The Department of Education shall
further incorporate such information into the curriculum of the
public school system as appropriate.
(2) The Department of Commerce, the Division of Highways and
local governments shall conduct public awareness programs to notify
the public of the provisions of this law and how they can
participate, to inform them as to the rationale behind the
provisions of this law, to advise them of other avenues for
achievement of the noted goals and to encourage their
participation.
(3) The Department of Environmental Protection and the Solid
Waste Management Board shall provide technical assistance to local
governments in the implementation of this law.
(c) Government
recycling
responsibilities.
(1) All state agencies and regional planning councils may establish and implement aluminum container, glass and paper
recycling programs at their public facilities. To the extent
practicable, programs for other metals, plastics, rubber and other
recyclable materials may be established and implemented. The
moneys collected from the sale of such materials shall be deposited
and accounted for in the Litter Control Fund pursuant to the
authority of section four of this article.
(2) To further promote recycling and reduction of the waste
stream, county and municipal governments shall consider the
establishment of recycling programs as provided in this section in
the operation of their facilities and shall evaluate the cost-
effectiveness of:
(A) Procedures that separate identifiable recyclable materials
from solid waste collected; and
(B) Programs that provide for:
(i) The establishment of a collection place for recyclables at
all landfills and other interim solid waste collection sites and
arrangements for the material collected to be recycled;
(ii) Public notification of such places and encouragement to
participate;
(iii) The use of rate differentials at landfills to facilitate
public participation in on-site recycling programs.
(d) Each affected agency and local government shall monitor
and evaluate the programs implemented pursuant to this law.
(e) The Secretary shall submit a report to the Speaker of the
House and the President of the Senate not later than the first day
of March, two thousand six, and every five years thereafter
regarding the effectiveness of the programs authorized by this law.
.
§22-15A-6. Assistance to solid waste authorities.
The Secretary may expend funds from the Litter Control Fund
established pursuant to section four of this article to assist
county and regional solid waste authorities in the formulation of
their comprehensive litter and solid waste control plans pursuant
to section eight, article four, chapter twenty-two-c of this code
and in the construction and maintenance of approved commercial
solid waste facilities authorities which would in the opinion of
the Secretary be unable to construct or maintain an approved
commercial solid waste facility without grant funds.
§22-15A-7. Pollution prevention and open dumps.
(a) The Secretary shall establish the Pollution Prevention and
Open Dump (PPOD) Program to encourage the proper disposal of
commercial and residential solid waste and to undertake all
reclamation, cleanup and remedial actions necessary to minimize or
mitigate damage to the environment, natural resources, public water
supplies, water resources and the public health, safety and welfare
which may result from open dumps or solid waste not disposed of in
a proper or lawful manner. The program shall seek to eliminate open
dumps, which often include waste tires and to recycle as many items as possible from these reclamation efforts. This program shall be
funded through the Solid Waste Reclamation and Environmental
Response Fund established in section eleven, article fifteen,
chapter twenty-two of this code.
(b) Authorized representatives of the Department have the
right, upon presentation of proper identification, to enter upon
any property for the purpose of conducting studies or exploratory
work to determine the existence of adverse effects of an open dump,
to determine the feasibility of the reclamation or prevention of
such adverse effects and to conduct reclamation activities provided
herein. Such entry is an exercise of the police power of the state
and for the protection of public health, safety and general welfare
and is not an act of condemnation of property or trespass thereon.
Nothing contained in this section eliminates any obligation to
follow any process that may be required by law.
§22-15A-8. Waste tires prohibited in certain places; penalty.
(a) No person shall, within this state, place, deposit or
abandon any waste tire or part thereof upon the right-of-way of any
public highway or upon any other public property nor deposit or
abandon any waste tire or part thereof upon any private property
unless it is at a licensed monofill, solid waste facility or at any
other business authorized by the Department of Environmental
Protection to accept, process, manufacture or remanufacture waste
tires:
Provided, That the Secretary may temporarily accumulate as many waste tires as he or she deems necessary at any location or
locations necessary to effectuate the purposes of this article.
(b) No person, except those persons who have received and
maintain a valid permit or license from the state for the operation
of a solid waste facility, waste tire monofill, waste tire
processing facility, or other such permitted activities, shall
accumulate more than one hundred waste tires for beneficial use
without obtaining a license or permit from the Department of
Environmental Protection.
(c) Any person who violates any provision of this section
shall be guilty of creating an open dump and subject to enforcement
actions or prosecution under the provisions of article fifteen,
chapter twenty-two of this code.
§22-15A-9. Department to administer funds for waste tire
remediation; rules authorized; duties of Secretary.
(a) The Department shall administer all funds made available
to the Department for remediation of waste tire piles and for the
proper disposal of waste tires removed from waste tire piles. The
Secretary may: (i) Propose for legislative promulgation in
accordance with article three, chapter twenty-nine-a of this code
emergency and legislative rules necessary to implement the
provisions of this article; and (ii) administer all funds
appropriated by the Legislature to carry out the requirements of
this article and any other funds from whatever source, including, but not limited to, federal, state or private grants.
(b) All authority to promulgate legislative rules necessary to
implement the provisions of this article is hereby transferred from
the Division of Highways to the Secretary of the Department of
Environmental Protection as of the effective date of enactment of
this section and article during the two thousand five session of
the Legislature:
Provided, That the legislative rule "Waste Tire
Remediation/Environmental Clean Up, 157 CSR 8" authorized by
legislative enactment during the two thousand one session of the
Legislature shall remain in force and effect until the Secretary
amends the rules in accordance with the provisions of article
three, chapter twenty-nine-a of this code.
(c) The Secretary also has the following powers:
(1) To apply and carry out the provisions of this article and
the rules promulgated under this article.
(2) To investigate, from time to time, the operation and
effect of this article and of the rules promulgated under this
article and to report his or her findings and recommendations to
the Legislature and the Governor.
(d) On or before the first day of July, two thousand six, the
Secretary shall determine the location, approximate size and
potential risk to the public of all waste tire piles in the state
and establish, in descending order, a waste tire remediation list.
(e) The Secretary may contract with the Department of Health and Human Resources or the Division of Corrections, or both, to
remediate or assist in remediation of waste tire piles throughout
the state. Use of available Department of Health and Human
Resources and the Division of Corrections work programs shall be
given priority status in the contract process so long as such
programs prove a cost-effective method of remediating waste tire
piles.
(f) Waste tire remediation shall be stopped upon the discovery
of any potentially hazardous material at a remediation site. The
Department shall respond to the discovery in accordance with the
provisions of article nineteen, chapter twenty-two of this code.
(g) The Secretary may establish a tire disposal program within
the Department to provide for a cost effective and efficient method
to accept passenger car and light truck waste tires at locations
designated by the Department that have sufficient space for
temporary storage of waste tires and personnel to accept and handle
waste tires. The Secretary may pay a fee for each tire an
individual West Virginia resident or West Virginia business brings
to the Department. The Secretary may establish a limit on the
number of tires an individual or business may be paid for during
any calendar month. The Secretary may in his or her discretion
authorize commercial businesses to participate in the collection
program:
Provided, That no person or business who has a waste tire
pile subject to remediation under this article may participate in this program.
(h) The Secretary may pledge not more than two and one-half
million dollars annually of the moneys appropriated, deposited or
accrued in the A. James Manchin Fund created by section eleven of
this article, to the payment of debt service, including the funding
of reasonable reserves, on bonds issued by the Water Development
Authority pursuant to section seventeen-a, article fifteen-a,
chapter thirty-one of this code to finance infrastructure projects
relating to waste tire processing facilities located in this state:
Provided, That a waste tire processing facility shall be determined
by the Solid Waste Management Board, established pursuant to the
provisions of article three, chapter twenty-two-c of this code, to
meet all applicable federal and state environmental laws and rules
and to aid the state in efforts to promote and encourage recycling
and use of constituent component parts of waste tires in an
environmentally sound manner:
Provided, however, That the waste
tire processing facility shall have a capital cost of not less than
three hundred million dollars, and the council for community and
economic development shall determine that the waste tire processing
facility is a viable economic development project of benefit to the
state's economy.
§22-15A-10. Disposal of waste tires.
(a) The Department may sell waste tires collected during
remediation of waste tire piles at public auction or to a waste tire monofill, waste tire processing facility or business
authorized by the Department of Environmental Protection to accept,
store, use or process waste tires.
(b) If there is no market in West Virginia for the sale of
waste tires the Department may sell them at any available market.
(c) If there is no market for the sale of waste tires the
Department may dispose of them in any lawful manner.
§22-15A-11.
Creation of the A. James Manchin Fund; proceeds from
sale of waste tires; fee on issuance of certificate
of title.
(a) There is continued in the State Treasury a special revenue
fund known as the "A. James Manchin Fund," which is transferred to
the Department of Environmental Protection. All moneys
appropriated, deposited or accrued in this Fund shall be used
exclusively for remediation of waste tire piles as required by this
article for the tire disposal program established under section ten
of this article or for the purposes of subsection (h), section ten
of this article or for the purposes of subsection (c), section
eleven of this article. The Fund consists of the proceeds from the
sale of waste tires; fees collected by the Division of Motor
Vehicles as provided in section sixteen, article ten, chapter
seventeen-a of this code; any federal, state or private grants;
legislative appropriations; loans; and any other funding source
available for waste tire remediation. Any unprogrammed balance remaining in the Fund at the end of any state fiscal year shall be
transferred to the Solid Waste Reclamation and Environmental
Response Fund.
(b) No further collections or deposits shall be made after the
Secretary certifies to the Governor and the Legislature that the
remediation of all waste tire piles that were determined by the
Secretary to exist on the first day of January, two thousand six,
has been completed and that all infrastructure bonds issued by the
Water Development Authority pursuant to section seventeen-a,
article fifteen-a of chapter thirty-one of this code have been paid
in full or legally defeased.
(c) If infrastructure bonds are not issued by the Water
Development Authority pursuant to section seventeen-a, article
fifteen-a, chapter thirty-one of this code to finance
infrastructure projects relating to waste tire processing
facilities located in this state on or before the thirty-first day
of December, two thousand six, all further collections and deposits
to the A. James Manchin Fund which are not programmed for
remediation or disposal shall be transferred to the Solid Waste
Reclamation and Environmental Response Fund at the end of each
fiscal year.
§22-15A-12.
Remediation; liability for remediation and court
costs.
(a) Any person who illegally disposed of waste tires or has waste tires illegally disposed on his or her property shall be
liable for:
(1) All costs of removal or remedial action incurred by the
Department;
(2) Any other necessary costs of remediation, including
properly disposing of waste tires and damage to adjacent property
owners; and
(3) All costs incurred in bringing civil actions under this
article.
(b) The Department shall notify any person who owns real
property or rights to property where a waste tire pile is located
that remediation of the waste tire pile is necessary. The
Department shall make and enter an order directing such person or
persons to remove and properly dispose of the waste tires. The
Department shall set a time limit for completion of the
remediation. The order shall be served by registered or certified
mail, return receipt requested, or by a county sheriff or deputy
sheriff.
(c) If the remediation is not completed within the time limit
or the person cannot be located or the person notifies the
Department that he or she is unable to comply with the order, the
Department may expend funds, as provided herein, to complete the
remediation. Any amounts so expended shall be promptly repaid by
the person or persons responsible for the waste tire pile. Any person owing remediation costs, damages or both, shall be liable at
law until such time as all costs and or damages are fully paid.
(d) Authorized representatives of the Department have the
right, upon presentation of proper identification, to enter upon
any property for the purpose of conducting studies or exploratory
work to determine the existence of adverse effects of a waste tire
pile, to determine the feasibility of the remediation or prevention
of such adverse effects and to conduct remediation activities
provided herein. Such entry is an exercise of the police power of
the state and for the protection of public health, safety and
general welfare and is not an act of condemnation of property or
trespass thereon. Nothing contained in this section eliminates any
obligation to follow any process that may be required by law.
(e) There is hereby created a statutory lien upon all real
property and rights to the property from which a waste tire pile
was remediated for all reclamation costs and damages incurred by
the Department. The lien created by this section shall arise at
the later of the following:
(1) The time costs are first incurred by the Department; or
(2) The time the person is provided, by certified or
registered mail, or personal service, written notice as required by
this section.
The lien shall continue until the liability for the costs or
judgment against the property is satisfied.
(f) Liens created by this section shall be duly recorded in
the office of the clerk of the county commission in the county
where the real property is located, be liens of equal dignity, rank
and priority with the lien on such premises of state, county,
school and municipal taxes for the amount thereof upon the real
property served. The Department shall have the power and authority
to enforce such liens in a civil action to recover the money due
for remediation costs and damages plus court fees and costs and
reasonable attorney's fees.
(g) The Department may foreclose upon the premises by bringing
a civil action, in the circuit court of the county where the
property is located, for foreclosure and an order to sell the
property to satisfy the lien.
(h) Any proceeds from any sale of property obtained as a
result of execution of a lien or judgment under this section for
remediation costs, excluding costs of obtaining judgment and
perfecting the lien, shall be deposited into the A. James Manchin
Fund of the State Treasury.
(i) The provisions of this section do not apply and no lien
may attach to the right-of-way, easement or other property interest
of a utility, whether electric, gas, water, sewer, telephone,
television cable or other public service unless the utility
contributed to the illegal tire pile.
§22-15A-13. Injunctive relief; additional remedy.
In addition to all other remedies provided in this article,
the Attorney General of this state, the prosecuting attorney of any
county where any violation of any provision of this article occurs,
or any citizen, resident or taxpayer of the county where any
violation of any provision of this article occurs, may apply to the
circuit court, or the judge thereof in vacation, of the county
where the alleged violation occurred, for an injunction to
restrain, prevent or abate the maintenance and storage of waste
tires in violation of any provision of this article, or the
violation of any other provision of this article. In seeking an
injunction, it is not necessary for the Secretary or any state
agency seeking an injunction under this section to post bond.
§22-15A-14. Authority of Commissioner of Bureau of Public Health.
Although the Secretary is primarily responsible for
remediation of waste tire piles under the provisions of this
article, the Commissioner of the Bureau for Public Health may
enforce the public health laws in any instance where the
Commissioner of the Bureau for Public Health determines there is an
imminent and substantial endangerment to the public health.
§22-15A-15. Continuation of waste tire remediation program.
The waste tire remediation program shall continue to exist,
pursuant to the provisions of article ten, chapter four of this
code, until the first day of July, two thousand six, unless sooner
terminated, continued or reestablished pursuant to the provisions of that article.
§22-15A-16. Recycling goals.
By the first day of January, two thousand ten, it is the goal
of this state to reduce the disposal of municipal solid waste by
fifty percent of the amount of per capita solid waste disposed of
in one thousand nine hundred ninety-one.
§22-15A-17. Recycling plans.
(a) Each county or regional solid waste authority, as part of
the comprehensive litter and solid waste control plan required
pursuant to the provisions of section eight, article four, chapter
twenty-two-c of this code, shall prepare and adopt a comprehensive
recycling plan to assist in the implementation of the recycling
goals in section three of this article.
(b) Each recycling plan required by this section shall
include, but not be limited to:
(1) Designation of the recyclable materials that can be most
effectively source separated in the region or county, which shall
include at least three recyclable materials; and
(2) Designation of potential strategies for the collection,
marketing and disposition of designated source separated recyclable
materials in each region or county.
§22-15A-18. Establishment of county recycling programs for solid
waste; petition for referendum; ballot contents;
election procedure; effect of such election.
(a) On or before the eighteenth day of October, one thousand
nine hundred ninety-two, each municipality described in subsection
(b) of this section shall submit a proposal to the Solid Waste
Management Board, consistent with the provisions of this section,
describing the establishment and implementation of the mandatory
recycling program. The Solid Waste Management Board shall review
the submitted plans for consistency with the criteria provided in
this section, the county or regional solid waste management plan
and the statewide management plan. The Solid Waste Management
Board may make suggested changes to the plan and shall provide
technical assistance to the municipalities in the development of
the plans.
(b) On or before the eighteenth day of October, one thousand
nine hundred ninety-three, each municipality with a population of
ten thousand or more people, as determined by the most recent
decennial census by the Bureau of the Census of the United States
Department of Commerce, shall establish and commence implementation
of a source separation and curbside collection program for
recyclable materials. Implementation shall be phased in by the
first day of July, one thousand nine hundred ninety-five. Such
program shall include, at a minimum, the following:
(1) An ordinance adopted by the governing body of the
municpality requiring that each person, partnership, corporation or
other entity in the municipality shall separate at least three recyclable materials, as deemed appropriate by the municipality,
from other solid waste:
Provided, That the list of recyclables to
be separated may be adjusted according to whether the generator is
residential, commercial or other type of establishment.
(2) A scheduled day, at least one per month, during which
separated materials are to be placed at the curbside, or similar
location, for collection.
(3) A system that collects recyclable materials from the
curbside, or similar location, at least once per month:
Provided,
That to encourage full participation, the program shall, to the
maximum extent possible, provide for the collection of recyclables
at the same rate of frequency, and simultaneous with, the regular
collection of solid waste.
(4) Provisions to ensure compliance with the ordinance,
including incentives and penalties.
(5) A comprehensive public information and education program
covering the importance and benefits of recycling, as well as the
specific features and requirements of the recycling program. As
part of the education program, each municipality shall, at a
minimum, notify all persons occupying residential, commercial,
institutional or other premises within its boundaries of the
requirements of the program, including how the system will operate,
the dates of collection, the responsibilities of persons within the
municipality and incentives and penalties.
(6) Consultation with the county or regional solid waste
authority in which the municipality is located to avoid
duplication, ensure coordination of solid waste programs and
maximize the market for recyclables.
(c) Notwithstanding the provisions of subsection (b) of this
section, a comprehensive recycling program for solid waste may be
established in any county of this state by action of a county
commission in accordance with the provisions of this section. Such
program shall require:
(1) That, prior to collection at its source, all solid waste
shall be segregated into separate identifiable recyclable materials
by each person, partnership, corporation and governmental agency
subscribing to a solid waste collection service in the county or
transporting solid waste to a commercial solid waste facility in
the county;
(2) Each person engaged in the commercial collection,
transportation, processing or disposal of solid waste within the
county shall accept only such solid waste from which recyclable
materials in accordance with said county's comprehensive recycling
program have been segregated; and
(3) That the provisions of the recycling plan prepared
pursuant to section seventeen of this article shall, to the extent
practicable, be incorporated in said county's comprehensive
recycling program.
(d) For the purposes of this article, recyclable materials
shall include, but not be limited to, steel and bi-metallic cans,
aluminum, glass, paper and such other solid waste materials as may
be specified by either the municipality or county commission with
the advice of the county or regional solid waste authority.
(e) A comprehensive recycling program for solid waste may be
established in any county of this state by: (1) A petition filed
with the county commission bearing the signatures of registered
voters of the county equal to not less than five percent of the
number of votes cast within the county for Governor at the
preceding gubernatorial election; and (2) approval by a majority of
the voters in a subsequent referendum on the issue. A referendum
to determine whether it is the will of the voters of a county that
a comprehensive recycling program for solid waste be established in
the county may be held at any regular primary or general election
or in conjunction with any other countywide election. Any election
at which the question of establishing a policy of comprehensive
recycling for solid waste is voted upon shall be held at the voting
precincts established for holding primary or general elections.
All of the provisions of the general election laws, when not in
conflict with the provisions of this article, shall apply to voting
and elections hereunder, insofar as practicable. The Secretary of
State shall prescribe the form of the petition which shall include
the printed name, address and date of birth of each person whose signature appears on the petition. Upon verification of the
required number of signatures on the petition, the county
commission shall, not less than seventy days before the election,
order that the issue be placed on the ballot and referendum held at
the next primary, general or special election to determine whether
it is the will of the voters of said county that a policy of
comprehensive recycling of solid waste be established in the
county:
Provided, That the petition bearing the necessary
signatures has been filed with the county commission at least one
hundred days prior to the election.
The ballot, or the ballot labels where voting machines are
used, shall have printed thereon substantially the following:
"Shall the County Commission be required to establish a
comprehensive recycling program for solid waste in __________
County, West Virginia?
? For Recycling
? Against Recycling
(Place a cross mark in the square opposite your choice.)"
If a majority of legal votes cast upon the question be for the
establishment of a policy of comprehensive recycling of solid
waste, the county commission shall, after the certification of the
results of the referendum, thereafter adopt an ordinance, within
one hundred eighty days of said certification, establishing a
comprehensive recycling program for solid waste in the county:
Provided, That such program shall be implemented and operational no
later than twelve months following said certification. If a
majority of the legal votes cast upon the question be against the
establishment of a policy of comprehensive recycling of solid
waste, said policy shall not take effect, but the question may
again be submitted to a vote at any subsequent election in the
manner herein provided.
(f) A comprehensive recycling program for solid waste
established by petition and referendum may be rescinded only
pursuant to the procedures set out herein to establish the program.
To rescind the program, the ballot, or the ballot labels where
voting machines are used, shall have printed thereon substantially
the following:
"Shall the County Commission be required to terminate the
comprehensive recycling program for solid waste in ___________
County, West Virginia?
? Continue Recycling
? End Recycling
(Place a cross mark in the square opposite your choice.)"
(g) If a majority of legal votes cast upon the question be for
the termination of a policy of comprehensive recycling of solid
waste previously established in the county, the county commission
shall, after the certification of the results of the referendum,
thereafter rescind by ordinance the comprehensive recycling program for solid waste in the county within ninety days of said
certification. If a majority of the legal votes cast upon the
question be for the continuation of the policy of comprehensive
recycling of solid waste, said ordinance shall not be rescinded,
but the question may again be submitted to a vote at any subsequent
election in the manner herein provided.
(h) In the case of any municipality having a population
greater than thirty thousand persons, as indicated by the most
recent decennial census conducted by the United States, the
governing body of such municipality may by ordinance establish a
materials recovery facility in lieu of or in addition to the
mandatory recycling program required under the provisions of this
section:
Provided, That such materials recovery facility shall be
subject to approval by both the Public Service Commission and the
Solid Waste Management Board upon a finding by both the Public
Service Commission and the Solid Waste Management Board that the
establishment of such materials recovery facility will not hinder,
and will be consistent with, the purposes of this article.
§22-15A-19. Recycling assessment fee; regulated motor carriers;
dedication of proceeds; criminal penalties.
(a)
Imposition. -- A recycling assessment fee is hereby
levied and imposed upon the disposal of solid waste at all solid
waste disposal facilities in this state, to be collected at the
rate of two dollars per ton or part of a ton of solid waste. The fee imposed by this section is in addition to all other fees levied
by law.
(b)
Collection, return, payment and records. -- The person
disposing of solid waste at the solid waste disposal facility shall
pay the fee imposed by this section, whether or not that person
owns the solid waste, and the fee shall be collected by the
operator of the solid waste facility who shall remit it to the tax
commissioner:
(1) The fee imposed by this section accrues at the time the
solid waste is delivered to the solid waste disposal facility;
(2) The operator shall remit the fee imposed by this section
to the Tax Commissioner on or before the fifteenth day of the month
next succeeding the month in which the fee accrued. Upon
remittance of the fee, the operator shall file returns on forms and
in the manner as prescribed by the tax commissioner;
(3) The operator shall account to the state for all fees
collected under this section and shall hold them in trust for the
state until they are remitted to the tax commissioner;
(4) If any operator fails to collect the fee imposed by this
section, he or she is personally liable for the amount that he or
she failed to collect, plus applicable additions to tax, penalties
and interest imposed by article ten, chapter eleven of this code;
(5) Whenever any operator fails to collect, truthfully account
for, remit the fee or file returns with the fee as required in this section, the tax commissioner may serve written notice requiring
the operator to collect the fees which become collectible after
service of the notice, to deposit the fees in a bank approved by
the tax secretary, in a separate account, in trust for and payable
to the tax commissioner, and to keep the amount of the fees in the
account until remitted to the tax commissioner. The notice remains
in effect until a notice of cancellation is served on the operator
or owner by the tax commissioner;
(6) Whenever the owner of a solid waste disposal facility
leases the solid waste facility to an operator, the operator is
primarily liable for collection and remittance of the fee imposed
by this section and the owner is secondarily liable for remittance
of the fee imposed by this section. However, if the operator
fails, in whole or in part, to discharge his or her obligations
under this section, the owner and the operator of the solid waste
facility are jointly and severally responsible and liable for
compliance with the provisions of this section;
(7) If the operator or owner responsible for collecting the
fee imposed by this section is an association or corporation, the
officers of the association or corporation are liable, jointly and
severally, for any default on the part of the association or
corporation, and payment of the fee and any additions to tax,
penalties and interest imposed by article ten, chapter eleven of
this code may be enforced against them and against the association or corporation which they represent; and
(8) Each person disposing of solid waste at a solid waste
disposal facility and each person required to collect the fee
imposed by this section shall keep complete and accurate records in
the form required by the tax commissioner in accordance with the
rules of the tax commissioner.
(c)
Regulated motor carriers. -- The fee imposed by this
section is a necessary and reasonable cost for motor carriers of
solid waste subject to the jurisdiction of the Public Service
Commission under chapter twenty-four-a of this code.
Notwithstanding any provision of law to the contrary, upon the
filing of a petition by an affected motor carrier, the Public
Service Commission shall, within fourteen days, reflect the cost of
the fee in the motor carrier's rates for solid waste removal
service. In calculating the amount of the fee to the motor
carrier, the Commission shall use the national average of pounds of
waste generated per person per day as determined by the United
States Environmental Protection Agency.
(d)
Definition. -- For purposes of this section, "Solid waste
Disposal Facility" means any approved solid waste facility or open
dump in this state and includes a transfer station when the solid
waste collected at the transfer station is not finally disposed of
at a solid waste facility within this state that collects the fee
imposed by this section.
Nothing in this section authorizes in any way the creation or
operation of or contribution to an open dump.
(e)
Exemptions. -- The following transactions are exempt from
the fee imposed by this section:
(1) Disposal of solid waste at a solid waste facility by the
person who owns, operates or leases the solid waste disposal
facility if it is used exclusively to dispose of waste originally
produced by that person in his or her regular business or personal
activities or by persons utilizing the facility on a cost-sharing
or nonprofit basis;
(2) Reuse or recycling of any solid waste; and
(3) Disposal of residential solid waste by an individual not
in the business of hauling or disposing of solid waste on the days
and times designated by the Secretary by rule as exempt from the
fee imposed pursuant to section eleven, article fifteen, chapter
twenty-two of this code.
(f)
Procedure and administration. -- Notwithstanding section
three, article ten, chapter eleven of this code, each and every
provision of the "West Virginia Tax Procedure and Administration
Act" set forth in article ten, chapter eleven of this code applies
to the fee imposed by this section with like effect as if the Act
were applicable only to the fee imposed by this section and were
set forth in extenso in this section.
(g)
Criminal penalties. -- Notwithstanding section two, article nine, chapter eleven of this code, sections three through
seventeen, article nine, chapter eleven of this code apply to the
fee imposed by this section with like effect as if the sections
were the only fee imposed by this section and were set forth in
extenso in this section.
(h)
Dedication of proceeds. -- The proceeds of the fee
collected pursuant to this section shall be deposited by the tax
commissioner, at least monthly, in a special revenue account
designated as the "recycling assistance fund" which is hereby
continued and transferred to the Department of Environmental
Protection. The Secretary shall allocate the proceeds of the fund
as follows:
(1) Fifty percent of the total proceeds shall be provided in
grants to assist municipalities, counties and other interested
parties in the planning and implementation of recycling programs,
public education programs and recycling market procurement efforts,
established pursuant to this article. The Secretary shall
promulgate rules, in accordance with chapter twenty-nine-a of this
code, containing application procedures, guidelines for
eligibility, reporting requirements and other matters considered
appropriate:
Provided, That persons responsible for collecting,
hauling or disposing of solid waste who do not participate in the
collection and payment of the solid waste assessment fee imposed by
this section in addition to all other fees and taxes levied by law for solid waste generated in this state which is destined for
disposal, shall not be eligible to receive grants under the
provisions of this article;
(2) Twelve and one-half percent of the total proceeds shall be
expended for personal services and benefit expenses of full-time
salaried conservation officers;
(3) Twelve and one-half percent of the total proceeds shall be
directly allocated to the solid waste planning fund;
(4) Twelve and one-half percent of the total proceeds shall be
transferred to the solid waste reclamation and environmental
response fund, established pursuant to section eleven, article
fifteen, chapter twenty-two of this code, to be expended by the
Department of Environmental Protection to assist in the funding of
the pollution prevention and open dumps program (PPOD) which
encourages recycling, reuse, waste reduction and clean-up
activities; and
(5) Twelve and one-half percent of the total proceeds shall be
deposited in the hazardous waste emergency response fund
established in article nineteen, chapter twenty-two of this code.
§22-15A-20. Establishment of state recycling program for solid
waste.
(a) In the absence of either a municipal or a comprehensive
county recycling plan pursuant to section eighteen of this article,
all agencies and instrumentalities of the state, all primary and secondary schools, where practicable, and private colleges and
universities shall implement programs to recycle solid waste. To
carry out the purposes of this section, any affected party may be
eligible to receive grants pursuant to subdivision (1), subsection
(h), section nineteen of this article. Such programs shall
include, but not be limited to, the following:
(1) Source separation of at least two recyclable materials;
and
(2) In the absence of either a municipal program or a
comprehensive county recycling plan pursuant to section eighteen
of this article, collection and transportation of source separated
recycled materials to an appropriate location.
(b) For purposes of this section, the Department shall be
designated the lead agency to ensure proper compliance and
coordination.
§22-15A-21. Procurement of recycled products.
(a) It is the policy of the State of West Virginia that, to
the maximum extent possible, all agencies and instrumentalities of
the state purchase recycled products. The goal of the state is to
achieve a recycled product mix on future purchases of:
(b) In furtherance of the aforesaid goal, the Secretary of the
Department of Administration in consultation with the Secretary
shall develop a comprehensive procurement program for recycled
products. The program shall include, but not be limited to:
(1) A review, and subsequent revision, of existing procurement
procedures and bid specifications to remove language that
discriminates against recycled products;
(2) A review, and subsequent revision, of existing procurement
procedures and bid specifications to ensure that, to the maximum
extent possible, all agencies and instrumentalities of the state
purchase recycled products:
Provided, That recycled paper products
shall be given a price preference of ten percent:
Provided,
however, That priority shall be given to paper products with the
highest postconsumer content;
(3) A plan to eliminate, to the maximum extent possible, the
use of disposable and single-use products; and
(4) A requirement that all agencies and instrumentalities of
the state use compost in all land maintenance and landscaping
activities:
Provided, That the use of composted or deep stacked
poultry litter products, certified by the Commissioner of
Agriculture as being free from organisms that are not found in
poultry litter produced in this state, have priority unless
determined to be economically unfeasible by the agency or
instrumentality.
(c) The Secretary shall prepare and submit an annual report on
the thirty-first day of January of each year summarizing the
program's accomplishments, prospects for the future, and any
recommendations. The report shall be submitted to the Governor, Speaker of the House of Delegates and President of the Senate.
§22-15A-22. Prohibition on the disposal of certain items; plans
for the proper handling of said items required.
(a) Effective the first day of June, one thousand nine hundred
ninety-four, it shall be unlawful to dispose of lead-acid batteries
in a solid waste landfill in West Virginia; effective the first day
of June, one thousand nine hundred ninety-six, it shall be unlawful
to dispose of tires in a solid waste landfill in West Virginia
except for waste tires collected as part of the Department's waste
tire remediation projects or other collection efforts in accordance
with the provisions of this article or the pollution prevention
program and open dump program or other state authorized remediation
or cleanup programs:
Provided, That waste tires may be disposed of
in solid waste landfills only when the state agency authorizing the
remediation or cleanup program has determined there is no
reasonable alternative available.
(b) Effective the first day of January, one thousand nine
hundred ninety-seven, it shall be unlawful to dispose of yard
waste, including grass clippings and leaves, in a solid waste
facility in West Virginia:
Provided, That such prohibitions do not
apply to a facility designed specifically to compost such yard
waste or otherwise recycle or reuse such items:
Provided, however,
That reasonable and necessary exceptions to such prohibitions may
be included as part of the rules promulgated pursuant to subsection (d) of this section.
(c) No later than the first day of May, one thousand nine
hundred ninety-five, the Solid Waste Management Board shall design
a comprehensive program to provide for the proper handling of yard
waste and lead-acid batteries. No later than the first day of May
one thousand nine hundred ninety-four, a comprehensive plan shall
be designed in the same manner to provide for the proper handling
of tires.
(d) No later than the first day of August, one thousand nine
hundred ninety-five, the Department shall promulgate rules, in
accordance with chapter twenty-nine-a of this code, as amended, to
implement and enforce the program for yard waste and lead-acid
batteries designed pursuant to subsection (c) of this section. No
later than the first day of August, two thousand, the Department
shall promulgate rules, in accordance with chapter twenty-nine-a of
said code, as amended, to implement and enforce the program for
tires designed pursuant to subsection (c) of this section.
(e) For the purposes of this section, "yard waste" means grass
clippings, weeds, leaves, brush, garden waste, shrub or tree
prunings and other living or dead plant tissues, except that, such
materials which, due to inadvertent contamination or mixture with
other substances which render the waste unsuitable for composting,
shall not be considered to be yard waste:
Provided, That the same
or similar waste generated by commercial agricultural enterprises is excluded.
(f) In promulgating the rules required by subsections (c) and
(d) of this section, yard waste, as described in subsection (e) of
this section, the Department shall provide for the disposal of yard
waste in a manner consistent with one or any combination of the
following:
(1) Disposal in a publicly or privately operated commercial or
noncommercial composting facility.
(2) Disposal by composting on the property from which domestic
yard waste is generated or on adjoining property or neighborhood
property if consent is obtained from the owner of the adjoining or
neighborhood property.
(3) Disposal by open burning where such activity is not
prohibited by this code, rules promulgated hereunder or municipal
or county codes or ordinances.
(4) Disposal in a publicly or privately operated landfill,
only where none of the foregoing options are available. Such
manner of disposal will involve only small quantities of domestic
yard waste generated only from the property of the participating
resident or tenant.
§22-15A-23. Recycled Oil Advisory Committee.
(a) The Recycled Oil Advisory Committee is continued. The
Recycled Oil Advisory Committee shall consist of nine members
appointed by the Governor, for terms of two years, who serve without compensation. One member of the Committee shall have
significant experience in the oil refining industry, one member
shall have significant experience in the jobbing or distributing of
motor oil, one member shall be a representative of retail gasoline
dealers, one member shall be a representative of retail merchants,
one member shall be a representative of the insurance industry, one
member shall be a member of a county or Regional Solid Waste
Authority, one member shall be a member of the general public, one
member shall be a member of the House of Delegates recommended by
the Speaker of the House of Delegates, and one member shall be a
member of the Senate recommended by the President of the Senate.
The Secretary or his or her designated representative shall be an
ex officio member of the committee and shall serve as chair of the
Committee. The Recycled Oil Advisory Committee shall meet at least
monthly, or upon the call of four members, to discuss all aspects
of the collection, handling, transportation, storage, disposal and
recycling of used motor oil.
(b) The functions of the committee include, but are not
limited to, the following:
(1) Making recommendations to the Department of Environmental
Protection and the Legislature concerning the adoption of
management standards with respect to collection, handling,
transportation, storage, disposal and recycling of used motor oil.
The committee shall make the first report of its recommendations on or before the fifteenth day of January, one thousand nine hundred
ninety-two, and other such reports may be made at such times as the
committee deems appropriate.
(2) Carrying out education and promotional activities
regarding the use of recycled oil.
(3) Identifying areas in the public and private sectors where
recycled oil could be utilized.
(4) Entertaining proposals from citizens, corporations and
businesses related to all aspects of used motor oil.
(5) Identifying administrative requirements at both the state
and local levels to ascertain resources and needs relating to used
motor oil.
(6) Examining federal law and regulations, both existing and
proposed, to assure that West Virginia businesses and individuals
who generate used motor oil may participate in a program of
handling and disposing of used motor oil that complies with federal
statutes and regulatory requirements.
§22-15A-24. Recycled newsprint encouraged; findings; goals;
recycled newsprint advisory committee formed;
annual report required.
(a) The purpose of this section is to encourage newspapers
published and distributed in the State of West Virginia to use
recycled newsprint.
(b) The Legislature finds that:
(1) It is the public policy of the State of West Virginia to
preserve natural resources, extend the useful life of solid waste
facilities, stimulate the demand for recycled products and ensure
a more efficient allocation of resources;
(2) The publication of newspapers consumes large quantities of
virgin paper;
(3) Discarded newspapers present significant solid waste
management problems; and
(4) Encouraging newspaper publishers to use recycled newsprint
will help attain the aforementioned public policy.
(c) In furtherance of the public policy set forth in
subsection (b) of this section, it is the goal of this state that
for the year ending the thirty-first day of December, one thousand
nine hundred ninety-six, eighty percent of the newsprint used by
newspapers published and distributed in this state shall contain
the highest post-consumer recycled paper content practicable.
(d) The recycled newsprint advisory committee is continued.
The recycled newsprint advisory committee shall consist of seven
members appointed by the Governor, for terms of two years, who
shall serve without compensation. One member of the committee
shall be the publisher, or his or her designated representative, of
a daily newspaper with a general circulation in excess of
twenty-five thousand newspapers per day, one member of the
committee shall be the publisher, or his or her designated representative, of a daily newspaper with a general circulation of
less than or equal to twenty-five thousand newspapers per day, one
member of the committee shall be the publisher, or his or her
designated representative, of a weekly newspaper, one member of the
committee shall be a member of the general public representing
environmental interests, one member of the committee shall be a
member of a county or regional solid waste authority, one member of
the committee shall be a member of the House of Delegates
recommended by the Speaker of the House of Delegates, and one
member of the committee shall be a member of the Senate recommended
by the President of the Senate. The Secretary, or his or her
designated representative, shall serve as an ex officio member of
the committee and shall serve as chair of the committee. The
Executive Director of the Solid Waste Management Board, or his or
her representative, shall serve as an ex officio member of the
committee. The Recycling Newspaper Advisory Committee shall meet
at least quarterly, or upon the call of three members, to discuss
all aspects of encouraging the use of recycled newsprint and
meeting the goals set forth in this section.
(e) On or before the thirty-first day of January, one thousand
nine hundred ninety-three, the recycled newsprint advisory
committee shall prepare and submit a report to the Governor, the
Speaker of the House of Delegates and the President of the Senate,
summarizing the activities of the committee, its progress in achieving the recycled newsprint goal and any recommendations for
legislative action.
§22-15A-25. Feasibility study of recycling industries.
The Secretary in consultation with the Governor's Office of
Community and Industrial Development shall develop a plan for
presentation to the Governor, the President of the Senate and the
Speaker of the House of Delegates no later than the fifteenth day
of January, one thousand nine hundred ninety-two, which plan shall
contain recommendations relating to the feasibility of establishing
glass preparation plants, de-inking plants and re-refining used
motor oil plants.
The plan may include provisions to carry out each of the
following:
(1) Encouragement, to the maximum extent feasible and
consistent with the protection of the public health and the
environment, of the use of re-refined motor oil, de-inked pulp and
prepared glass in all appropriate areas of state and local
government;
(2) Encouragement of persons contracting with the state to use
re-refined motor oil, de-inked pulp and prepared glass to the
maximum extent feasible, consistent with protection of the public
health and the environment;
(3) Informing the public of uses of re-refined motor oil, de-
inked pulp and prepared glass; and
(4) Establishment and implementation of a program, including
any necessary licensing of persons and including the use, where
appropriate, of manifests to assure the used re-refined motor oil,
de-inked pulp and prepared glass is collected, transported,
treated, stored, reused and disposed of, in a manner which does not
present a hazard to the public health or the environment.
§22-15A-26. Recycling facilities exemption.
Recycling facilities, as defined in section two, article
fifteen of chapter twenty-two of this code, whose only function is
to accept free-of-charge, buy or transfer source separated material
or recycled material for resale or transfer for further processing
are exempt from the provisions of said article and article four of
chapter twenty-two-c and sections one-c and one-f, article two,
chapter twenty-four of this code.
NOTE: The purpose of this bill is to consolidate all litter
control, open dump elimination and reclamation, waste tire
remediation, and recycling programs into one program administered
by the Department of Environmental Protection.
This article is new; therefore, strike-throughs and
underscoring have been omitted.