Senate Bill No. 551
(By Senator Dittmar)
____________
[Originating in the Committee on Natural Resources;
reported April 2, 1997.]
_____________
A BILL to amend article four, 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 four, chapter twenty-two-c of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section twenty- three-a, to read as follows:
ARTICLE 4. COUNTY AND REGIONAL SOLID WASTE AUTHORITIES.
§22C-4-23a. 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.