H. B. 2837
(By Delegate Dalton)
[Introduced March 28, 1997; referred to the
Committee on the Judiciary.]
A BILL to amend article three, chapter twenty-two-c of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
twenty-three-a, relating to findings and declarations;
prohibiting municipal, county or regional solid waste
authorities from competing with private solid waste haulers
unless first meeting certain requirements; providing that
public notice and hearing be provided before planned public
solid waste hauling services commence operations; requiring
a public authority to demonstrate that planned services
would be cost effective; requiring public authorities to
comply with particular existing legal requirements relative
to private solid waste companies if they offer planned
services; requiring a five year notice be given to private
solid waste companies before hauling services from a public authority commences or, alternatively, requiring payment of
a sum representing one year of lost revenue that would be
incurred by private companies if the planned public services
commence operations; requiring a qualified economist and
accountant to perform the computation of the projected lost
revenue; and defining "compete" and "competition".
Be it enacted by the Legislature of West Virginia:
That article three, chapter twenty-two-c of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
be amended by adding thereto a new section, designated section
twenty-three-a, to read as follows:
ARTICLE 3. SOLID WASTE MANAGEMENT BOARD.
§22C-3-23a. Prevention of unduly burdensome rates to residential, commercial and industrial consumers of solid waste services.
(a) The Legislature hereby finds and declares as follows:
(1) Residential, commercial and industrial solid waste
customers should not be arbitrarily or unfairly charged higher
rates for solid waste hauling services, but should be permitted
to pay substantially the same rates relative to one another, when
such customers exist in the same geographic area served by a
solid waste hauling service.
(2) County, municipal or regional solid waste authorities,
or combinations thereof, may wish to provide solid waste hauling
services within or outside their respective geographical
boundaries. However, when a county, municipal or regional solid
waste authority provides solid waste hauling services it often
competes with an existing private solid waste company that offers
hauling services. The very essence of this competition is that
it is conducted on significantly unfair and unequal terms.
(3) A private solid waste company offering hauling services
is regulated by the public service commission, while having a
duty imposed by law to serve all customers within the private
solid waste company's service area. Contrary to this, a
municipal, county or regional solid waste facility is not so
regulated nor is it required to serve all customers within the
private solid waste company's service area.
(4) A municipal, county or regional solid waste authority
has the ability to pick and choose which customers it will serve.
These choices are largely made in consideration of the easiest
customers to reach as well as the most profitable customers to
serve.
(5) As a municipal, county or regional solid waste authority
obtains customers, existing private solid waste companies that
offer hauling services must charge higher rates to their customers in order to compensate for the customers lost to a
municipal, county or regional solid waste authority. This rise
in rates is unfair to the remaining customers, yet no other
viable option exists which would allow the private company to
remain in business and still offer the service.
(6) Legislative action is needed to protect solid waste
customers from paying rate increases that are arbitrarily and
unfairly imposed and to level the playing field that now exists
between private and public entities offering solid waste hauling
services;
(b) No municipal, county or regional solid waste authority
may make a final determination to compete, after making an
initial determination pursuant to subsection (c) of this section,
for hauling business with a private solid waste company offering
hauling services that is authorized to do so pursuant to section
five, article two, chapter twenty-four-a of this code, or section
three, article three of said chapter, without first complying
with the following requirements:
(1) A hearing shall be scheduled and held which shall
provide for open public comment and debate regarding the
feasibility and desirability of the municipal, county or regional
solid waste authority offering such hauling services;
(2) At a minimum, notice shall be given forty-five days before the scheduled date of the hearing and it shall be provided
by first class United States mail, postage prepaid, which shall
be directed to every private solid waste company providing
hauling services which provide such service within the
geographical area contemplated to be served by the municipal,
county or regional solid waste authority. Public notice shall
also be provided by Class II publication in a newspaper of
general circulation serving the geographical area;
(3) Following any public hearing required by this
subsection, and in no event longer than one year thereafter, the
municipal, county or regional solid waste authority may provide
the service upon satisfactory demonstration that it will provide
it in a more cost effective manner to affected customers than can
otherwise be provided by private solid waste companies offering
hauling services:. Provided, That, a county or regional
government or authority, or a municipal government or authority
seeking to offer the service outside its geographical boundaries,
shall be required to comply with the provisions of section five,
article two, chapter twenty-four-a of this code, or with section
three, article three of said chapter before it may provide the
service.
(c) After a municipal, county or regional authority or
government makes an initial determination to provide hauling services for solid waste, it shall provide notice of such
initial determination, at a minimum, five years before the
planned commencement of such services, to all private solid waste
haulers that may be affected by the provision of the services by
such authority or government. Alternatively to the five year
provision of notice provided for hereunder, the municipal, county
or regional authority or government may pay the private solid
waste companies that offer hauling services that will be affected
by the planned operations, an amount equal to the projected lost
revenues that will be incurred for one year by the affected
private solid waste companies as the result of the intended
competition from the municipal, county or regional authority or
government. Lost revenues shall be projected using sound
accounting, actuarial and economic principles. The projections
shall be computed by a qualified economist and accountant with
minimum qualifications consisting of an undergraduate degree in
economics and a graduate degree at the masters level in
accounting, both degrees having been attained from accredited
institutions of higher learning.
(d) For the purposes of this section, "compete" or
"competition" means a municipal, county or regional solid waste
authority's or government's provision of solid waste hauling
services which are intended to, or result in, the loss of existing customers from existing private solid waste companies
that provide hauling services in a particular geographical area.
NOTE: The purpose of this bill is to protect private solid
waste companies that offer hauling services from economic
encroachments from local or regional governments or authorities
that offer or intend to offer solid waste hauling services to
customers or potential customers of the private solid waste
companies. The proposed legislation makes findings that the
protective provisions are needed to prevent residential,
industrial and commercial customers from being subjected to
varying rates that are arbitrarily and unfairly imposed under the
current legal scheme relative to private and public solid waste
removal services. It further finds that the current scheme
imposes unfair burdens on private solid waste haulers relative to
haulers operating under county, municipal or regional
authorities. Finally, it requires public authorities to give
five years notice upon an initial determination to provide solid
waste hauling services which would encroach in areas where
existing private companies provide the service, or alternatively
pay projected lost revenue to private companies in an amount
representing one year. After a final determination, presumably
at the lapse of five years, to provide services, the public
authority would be required to provide forty-five days notice of
the scheduling of a public hearing intended for public comment
and debate on the proposed provision of services. The public
authority would then be required to demonstrate the proposed
services would be "cost effective."
Section twenty-three-a is new; therefore, strike-throughs
and underscoring have been omitted.