ENGROSSED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 427
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
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[Originating in the Committee on Finance;
reported March 1, 2000.]
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A BILL to amend and reenact sections two and three, article twenty-
three, chapter seventeen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to amend and
reenact article twenty-four of said chapter; to amend and
reenact section eight, article eleven, chapter twenty of said
code; to amend article fifteen, chapter twenty-two of said
code by adding thereto a new section, designated section
twenty-one; and to amend chapter twenty-four-a of said code by
adding thereto a new article, designated article two-a, all
relating generally to waste tires; prohibiting collection,
accumulation or storage of waste tires in salvage yards;
providing for exceptions; defining terms; establishing
legislative findings and policy regarding urgent need for remediation of waste tire piles; creating definitions;
prohibiting placing, depositing or abandoning waste tires on
public or private property; creating exceptions for waste tire
monofills, solid waste facilities and other businesses
authorized to accept or process waste tires; providing for
enforcement as illegal open dump; authorizing the division of
highways to administer funds for waste tire remediation;
authorizing the commissioner of the division of highways to
contract with public and private entities to carry out the
requirements of the act; powers and duties of the
commissioner; authorizing promulgation of rules; time disposal
at division of highways county headquarters; collection fee
for tires; providing for the disposal of waste tires; levying
temporary tire disposal tax to be collected by tax
commissioner; creating tire remediation/environmental cleanup
fund; authorizing proceeds of waste tire sales to be deposited
into fund; providing for a performance review; authorizing
remedies; making property owner responsible for waste tires on
property; assessing costs of remediation; creating lien to
recover cost of remediation; authorizing injunctive relief;
establishing authority of commissioner of bureau for public
health; providing for liberal construction; licensing and
manifest requirements; authorizing disposal of waste tires
collected in a remediation effort in solid waste facilities;
providing that waste tires from remediation not subject to
tipping fees or tonnage limits; requiring solid waste facilities to accept waste tires; authorizing reasonable fees;
providing that waste tires from remediation or cleanup
projects may only be deposited in a solid waste facility when
there is no other alternative available; requiring tire
retailers to accept a waste tire for each new tire sold;
authorizing disposal fee; requiring purchaser to leave waste
tires with retailer or sign waiver; posting of signs;
prohibiting accumulation of waste tires without a permit;
prohibiting disposal of waste tires except at facility with
valid permit; prohibiting transportation of waste tires to
facility without permit; prohibiting open burning of tires;
requiring persons transporting waste tires for compensation to
have a certificate of convenience and necessity; reporting
requirements; and authorizing public service commission to
promulgate rules.
Be it enacted by the Legislature of West Virginia:
That sections two and three, article twenty-three, chapter
seventeen of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; that article
twenty-four of said chapter be amended and reenacted; that section
eight, article eleven, chapter twenty of said code be amended and
reenacted; that article fifteen, chapter twenty-two of said code be
amended by adding thereto a new section, designated section twenty-
one; and that chapter twenty-four-a of said code be amended by
adding thereto a new article, designated article two-a, all to read
as follows:
CHAPTER 17. ROADS AND HIGHWAYS.
ARTICLE 23. SALVAGE YARDS.
§17-23-2. Definitions.
As used in this article:
(a) "Abandoned salvage yard" means any unlicenced salvage yard
or any salvage yard that was previously licensed but upon which the
license has not been renewed for more than one year.
(b) "Commissioner" means the commissioner of the West Virginia
department division of highways.
(c) "Fence" means an enclosure, barrier or screen constructed
of materials or consisting of plantings, natural objects or other
appropriate means approved by the commissioner and located, placed
or maintained so as effectively to screen at all times salvage
yards and the salvage therein contained from the view of persons
passing upon the public roads of this state.
(d) "Occupied private residence" means a private residence
which is occupied for at least six months each year.
(e) "Owner or operator" includes an individual, firm,
partnership, association or corporation or the plural combination
thereof.
(f) "Residential community" means an area wherein in which
five or more occupied private residences are located within any one
thousand foot radius.
(g) "Salvage" means old or scrap brass, copper, iron, steel,
other ferrous or nonferrous materials, batteries or rubber and any
junked, dismantled or wrecked machinery, machines or motor vehicles or any parts of any junked, dismantled or wrecked machinery,
machines or motor vehicles.
(h) "Salvage yard" means any place which is maintained,
operated or used for the storing, keeping, buying, selling or
processing of salvage, or for the operation and maintenance of a
motor vehicle graveyard: Provided, That a salvage yard shall not
accept, store or process more than one hundred waste tires unless
it has all of the permits necessary to operate a monofill, waste
tire processing facility or solid waste facility. Any salvage yard
which currently has on its premises more than one hundred waste
tires not on a vehicle shall establish a plan in conjunction with
the division of environmental protection for the proper disposal of
the waste tires.
(i) "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, as defined in section two, article twenty-four,
chapter seventeen of this code, 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.
(j) "Waste tire monofill or monofill" means an approved solid
waste facility where waste tires not mixed with any other waste are placed for the purpose of long term storage for eventual retrieval
for marketing purposes.
(k) "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 or marketing.
§17-23-3. License required; issuance; fee; renewal; disposition
of fees.
No salvage yard or any part thereof of a salvage yard shall be
established, operated or maintained without a state license. The
commissioner shall have has the sole authority to issue such a
state license and he or she shall charge therefore a fee of two
hundred dollars for the license payable annually in advance. The
commissioner shall not issue a license to any salvage yard that
contains more than one hundred waste tires which are not mounted on
wheels on vehicles or machines unless the salvage yard has received
a license, permit or approval from the division of environmental
protection for storage, use or processing of waste tires or has
entered into an agreement with the division of environmental
protection for the proper disposal of the waste tires. All
licenses issued under this section shall expire on the first day of
January following the date of issuance. A license may be renewed
from year to year upon paying the commissioner the sum of two hundred dollars for each such renewal. All such renewal license
fees collected under the provisions of this article shall be
deposited in the special fund provided for in section ten of this
article.
ARTICLE 24. WASTE TIRE REMEDIATION.
§17-24-1. Legislative findings; statement of policy.
(a) The Legislature affirmatively finds and declares that the
location and number of waste tires, as defined in section two of
this article, 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; waste tires reach and
exist within rights-of-way owned by the state, which are adjacent
to public highways and used by the division of highways to maintain
and service said the highways; the state orphan roads program
within the division of highways faces obstacles to complete
development due to the location and number of waste tires; the
existence of waste tires along and near public highways increases
the likelihood of motor vehicle accidents, personal injury,
property damage, death and destruction along public highways, all
of which interferes with the efficiency of public highways; the
existence of waste tires along and near public highways is
sometimes accompanied by other hazards such as junk equipment, junk motor vehicle parts, litter, rodents and other animal life, all of
which appreciably increase the likelihood of motor vehicle
accidents, personal injury, property damage, death and destruction
and, in turn, adversely impacts the proper maintenance and
efficiency of public highways for citizens, visitors and the flow
of commerce; removal of waste tires would increase the efficiency
of travel along public highways by citizens, visitors and of
commerce.
(b) The Legislature recognizes and declares that waste tires
are a public nuisance and hazard to both adults and children and
therefore are dangerous; 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
and fire; that the environmental, economic and societal damage
resulting from fires in waste tire piles can be avoided by removing
the piles; that tire pile fires cause extensive pollution of the
air and surface and ground water for miles downwind and downstream
from the fire; that abatement of this pollution is costly; that the
accumulation and storage of any waste tires or parts of waste tires
on private or public property, including but not limited to
highways, creates a condition tending to reduce the value of
private property and to promote blight and deterioration which if
permitted to remain will continue to destroy the natural beauty of
this state and have adverse economic and social effects; that waste tires constitute an unattractive nuisance creating a hazard to the
health and safety of minors; that waste tires are nearly always
discarded or abandoned on public highways, rights-of-way or within
sight of the highway rights-of-way and on private property within
a reasonable proximity to public highways, and when located there
the cost of controlling or abating the visual pollution is a cost
of maintenance of public highways; that the visual pollution
elsewhere located may be controlled or abated by funds made
available for that purpose from sources other than those
contemplated by section fifty-two, article VI of the West Virginia
constitution; that all visual pollution is a deterrent to economic
development; and that it is in the public interest and welfare to
provide for a program to eliminate the unsightly practice of
discarding or abandoning waste tires.
(c) In view of these findings 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. The Legislature further finds and declares that the
presence of discarded or abandoned waste tire or any part of a
waste tire, on private or public property, including but not limited to highways is a public nuisance injurious to the public
health, safety and general welfare of the citizens of this state
and adversely impacts the proper maintenance and efficiency of
public highways which shall be abated by the methods provided in
this article.
(d) Therefore, the Legislature finds and declares that removal
of waste tires is directly related to the efficiency of public
highways; removal of waste tires represents a legitimate state
interest; removal of waste tires requires sufficient funding;
removal of waste tires as contemplated in this article amounts to
maintenance of public highways within the meaning of section fifty-
two, article VI of the West Virginia constitution; and funding for
removal of waste tires, as contemplated in this article, is
directly related to the maintenance and efficiency of public
highways.
§17-24-2. Definitions.
Unless the context clearly indicates a different meaning, 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 division 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 director of the division of environmental protection, is put at
risk.
(2) "Commissioner" means the commissioner of the division of
highways or his or her designee.
(3) "Division" means the division of highways.
(4) "Motor vehicle dealer" means any business engaged in the
sale of new automobiles, trucks, trailers, motorcycles,
agricultural equipment, motorized recreational vehicles and
motorized industrial vehicles in the state of West Virginia.
(5) "Motor vehicle" means an automobile, truck, trailer,
motorcycle, agricultural equipment, motorized recreational vehicle
and motorized industrial vehicles: Provided, That off road
industrial vehicles utilized in earth moving activities are
excluded.
(6) "New tire" means a tire which is not used or retreaded,
and is being sold on the market for the first time.
(7) "Person" includes a natural person, corporation, firm,
partnership, association or society.
(8) "Remediate or Remediation" means to remove all tires
located above grade at a site and may also include, at the
discretion of the division, the removal of the solid waste
incidental to the removal of waste tires at a site: Provided, That
remediation does not include clean up of hazardous waste.
(9) "Retailer of new tires" means a person who engages in the
retail sale of a new tire in any quantity for any use or purpose by
the purchaser other than for resale.
(10) "Tire hauler" means a person engaged in the business of
transporting waste tires for hire or consideration. Tire hauler
does not include a person who hauls waste tires generated by their
own business activity.
(11) "Used tires" means a tire that has been removed from a
wheel following a period of use and has been determined by its
owner to have reuse potential as a tire.
(12) "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.
(13) "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.
(14) "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.
§17-24-3. Waste tires prohibited in certain places; penalty.
(a) No person shall, within this state, place, deposit or
abandon any waste tire or part of a waste tire upon the right-of-
way of any public highway or upon any other public property nor
deposit or abandon any waste tire or part of a waste tire upon any
private property unless it is at a licensed monofill, solid waste
facility or at any other business authorized by the division of
environmental protection to accept, process, manufacture or re-
manufacture waste tires; Provided, That the commissioner may
temporarily accumulate as many waste tires as he or she considers
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 division of
environmental protection.
(c) Any person who violates any provision of this section is
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.
§17-24-4. Division of highways to administer funds for waste tire
remediation; rules authorized; duties of commissioner.
(a) The division of highways shall administer all funds made
available to the division for remediation of waste tire piles and
for the proper disposal of waste tires removed from waste tire
piles. The commissioner of the division of highways 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) The commissioner also has the following powers:
(1) To apply and carry out the provisions of this article and
the rules promulgated under this article; and
(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.
(c) The provisions of articles two-a and four, chapter
seventeen of this code and the policy, rules, practices and
procedures under these articles shall be followed by the
commissioner in carrying out the purposes of this article.
(d) On or before the first day of June, two thousand one, the
commissioner 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 commissioner may contract with the department of
health and human resources and/or the division of corrections to
remediate or assist in remediation of waste tire piles throughout
the state. Utilization of available department of health and human
resources and the department of corrections work programs shall be
given priority status in the contract process as long as the
programs prove a cost effective method of remediating waste tire
piles.
(f) Waste tire remediation shall be stopped and the division
of environmental protection notified upon the discovery of any
potentially hazardous material at a remediation site. The division
of environmental protection shall respond to the notification in
accordance with the provisions of article eighteen, chapter twenty-
two of this code.
§17-24-5. Tire disposal at division of highways county
headquarters; collection fee for tires.
(a) Any resident of this state may take passenger car and
light truck waste tires to a division of highways county
headquarters for disposal. The division shall establish a station
at each county headquarters for the receipt of these waste tires.
(b) The division shall pay a collection fee of one dollar for
each tire to any person who brings tires to the station. The collection fee shall be paid from the tire
remediation/environmental cleanup fund created in section eight of
this article. The division shall mark each tire it accepts at a
station in such a manner that the same tire cannot be used to
obtain more than one collection fee.
§17-24-6. Disposal of waste tires.
(a) The division may sell waste tires collected during
remediation of waste tire piles or collected under section five of
this article at public auction or to a waste tire monofill, waste
tire processing facility or business authorized by the division 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 division may sell them at any available market.
(c) If there is no market for the sale of waste tires the
division may dispose of them in any lawful manner.
§17-24-7. Temporary tire disposal tax.
(a) There is hereby levied and imposed upon every sale of a
new tire by retailers of new tires and new motor vehicle dealers,
in addition to all other taxes and fees now imposed by law, a
temporary tax of three dollars on each new tire sold. The amount
of the tax shall be added to the sales price paid by the ultimate
consumer, and shall constitute a part of that price and be
collectable as a part of the price. For persons in the business of
selling new motor vehicles, this tax applies to the cost of tires
on or with each vehicle at the time of sale. This temporary tax shall expire and shall no longer be collected after the
commissioner certifies to the Legislature that the remediation of
all waste tire piles that were determined by the commissioner to
exist on the first day of June, two thousand one, has been
completed.
(b) The temporary tire tax levied under this section shall be
collected by the tax commissioner in the same manner that the
consumers sales and service tax is collected under chapter eleven
of this code and deposited in the tire remediation fund created
under section eight of this article: Provided, That the exemptions
contained in chapter eleven do not apply to the temporary tire tax.
The provisions of sections four, five, six, seven, eight, nine and
ten, article nine, chapter eleven of this code apply to the
temporary tire tax.
(c) Each and every provision of the "West Virginia tax
procedure and administration act" set forth in article ten, chapter
eleven applies to the tax imposed by this section, except as may
otherwise be expressly provided in this section, with like effect
as if that act were applicable only to the taxes imposed by this
section.
§17-24-8. Creation of tire remediation environmental cleanup fund;
proceeds from sale of waste tires; performance review.
(a) There is hereby created in the state treasury a special
revenue fund known as the "tire remediation/environmental cleanup
fund". All moneys appropriated, deposited or accrued in this fund
shall be used exclusively for remediation of waste tire piles as required by article twenty-four, chapter seventeen of this code.
The fund shall consist of the proceeds from the sale of waste
tires; fees collected by the division of tax as provided for in
section six of this article; any federal, state or private grants;
legislative appropriations; loans; and any other funding source
available for waste tire remediation. Any balance remaining in the
fund at the end of any state fiscal year shall not revert to the
state treasury but shall remain in this fund and be used only in a
manner consistent with the requirements of this article.
(b) No further collections or deposits shall be made after the
commissioner certifies to the governor and the Legislature that the
remediation of all waste tire piles that were determined by the
commissioner to exist on the first day of June, two thousand, and
one has been completed.
(c) The joint committee on government operations shall,
pursuant to authority granted in article ten, chapter four of this
code, conduct a preliminary performance review of the division's
compliance with the waste tire remediation mandated in this
article; whether the purposes of this article have been met and
whether it is appropriate to terminate this program. In conducting
the preliminary performance review, the committee shall follow the
guidelines established in article ten, section ten, chapter four of
this code. A preliminary review shall be completed on or before
the first day of January, two thousand three.
§17-24-9. Remediation; liability for remediation and court costs.
(a) Any person who has prior or subsequent to the effective date of this act illegally disposed of waste tires or has waste
tires illegally disposed on his or her property liable for:
(1) All costs of removal or remedial action incurred by the
division;
(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 division 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 division
shall make and enter an order directing the person or persons to
remove and properly dispose of the waste tires. The division 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 law-enforcement officer.
(c) If the remediation is not completed within the time limit,
or the person cannot be located, or the person notifies the
division that he or she is unable to comply with the order, the
division may expend funds, as provided in this article, to complete
the remediation. Any amounts expended shall be promptly repaid by
the person or persons responsible for the waste tire pile. Any
person owing remediation costs and or damages is liable at law
until such time as all costs and or damages are fully paid.
(d) Authorized representatives of the division 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
for in this article. The 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 on property. 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 division. The lien created by this section shall arise at the
later of the following:
(1) The time costs are first incurred by the division; 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 the premises of state, county, school
and municipal taxes for the amount thereof upon the real property served. The division enforce the 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 division 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 judgement and
perfecting the lien, shall be deposited into the waste tire
remediation 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.
§17-24-10. Injunctive relief; additional remedy.
(a) In addition to all other remedies provided for 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 director or any state
agency seeking an injunction under section to post bond.
§17-24-11. Authority of commissioner of bureau of public health.
Although the director is primarily responsible for remediation
of waste tire piles under the provisions of this article, the
commissioner of the bureau of public health may enforce the public
health laws in any instance where the commissioner of the bureau of
public health determines there is an imminent and substantial
endangerment to the public health.
§17-24-12. Licensing and manifest requirements.
(a) No person may operate as a retailer of new tires, waste
tire processing facility, monofill operator, tire hauler or other
business that sells, transports, stores, disposes or process waste
tires in this state without obtaining a license from the division.
The purpose of this license is to assure that all businesses
participating in the flow of tires from new to waste tires are
identified and comply with the provisions of this article.
(b) Each person licensed pursuant to this section shall
document the removal, transportation and proper disposal of all
waste tires in this state using a manifest form to be provided by
the division. The manifest form requirements shall be incorporated
in the rules promulgated under section four of this article. The
division, at a minimum, shall require the manifest form to include
such information as the name, physical address, mailing address, county and telephone number of the licensee and other specific
information as required to track waste tires. The top original of
the manifest shall be kept by the tire retailer or other
originating licensee at the physical address from where the waste
tires were originally transported. The tire retailer or other
originating licensee must receive the completed manifest from the
tire hauler within sixty days after the waste tires were
transported off-site. The tire retailer or other originating
licensee shall notify the division of any tire hauler or other
entity that fails to complete the manifest, alters the tire
retailer's portion of the manifest or fails to return the manifest
within three months after the off-site transportation. The second
original of the manifest shall be kept at the tire hauler's
physical address. The third original of the manifest shall be kept
at the waste tire processing facility's physical address. All
manifests shall be kept on site for a period of three years. Any
authorized representative of the division may, at reasonable times,
enter onto the licensed site to inspect manifests. The licensee
shall submit a copy of the manifests to the division upon request
from the division.
(c) All licensees shall submit an annual report to the
division setting forth the quantity of tires disposed, processed,
remanufactured, recycled or otherwise beneficially reused.
§17-24-13. Requirements for retail sale of tires.
(a) Except as otherwise provided in subsection (b) of this
section, each retailer is required to accept one tire of comparable size for each new tire sold at retail. The retailer may charge a
disposal fee to cover the actual costs of lawful waste tires
disposal. No retail tire dealer licensed by the division may
deliver any waste tire, or part thereof, to a person not authorized
by the state of West Virginia to transport or accept waste tires.
(b) Any person purchasing a new tire from a retailer must
provide a used or waste tire for each tire purchased or sign a
waiver, provided to the tire retailer by the division,
acknowledging that he or she is retaining the waste tire and that
he or she is legally responsible for proper disposal of each tire
retained. These forms are to be kept by the retailer in the same
manner as the tire tracking forms provided for in section seven of
this article. If the tire purchaser returns to the tire retailer
with a signed form given to the purchaser by that retailer, the
retailer must accept up to the total number of comparable size
tires as previously retained by the purchaser: Provided, That
persons having winter tires changed or buying new winter tires and
keeping usable summer tires for later installation are not required
to provide a used or waste tire, or sign a waiver, or pay the fee
authorized by this section.
(c) Each tire retailer shall post in a conspicuous place a
written notice, provided by the division, that bears the following
statements:
(1) "State law requires us to accept your (old) waste tires
for recycling or proper disposal if you purchase new tires from
us";
(2) "State law requires us to charge you a tax of $3.00 per
tire to fund a program to cleanup illegally disposed waste tires
even if you do not leave your tires with us";
(3) "Recycle your (old) waste tires";
(4) "It is a crime to burn, bury or throw away waste tires
without authorization and or permits from the division of
environmental protection".
This notice must be at least eight and one-half inches wide
and eleven inches high.
§17-24-14. Construction.
The provisions of this article shall be liberally construed to
accomplish the objectives and purposes of this article.
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 11. WEST VIRGINIA RECYCLING PROGRAM.
§20-11-8. 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 It is unlawful to deposit lead-acid
batteries in a solid waste facility in West Virginia; effective the
first day of June, one thousand nine hundred ninety-six, it shall
be it is unlawful to deposit tires in a solid waste facility in
West Virginia except for waste tires collected as part of the
division of highways waste tire remediation projects or other
collection efforts in accordance with the provisions of article
twenty-four, chapter seventeen of this code or the division of
environmental protection's pollution prevention program and open dump program or other state authorized remediation or cleanup
programs: Provided, That waste tires may be deposited in solid
waste facilities 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 It is unlawful to deposit yard
waste, including grass clippings and leaves, in a solid waste
facility in West Virginia: Provided, That such the prohibitions do
not apply to a facility designed specifically to compost such the
yard waste or otherwise recycle or reuse such the items: Provided,
however, That reasonable and necessary exceptions to such the
prohibitions may be included as part of the rules promulgated
pursuant to subsection (c) 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 division of environmental protection 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 (b) of this section. No later than the first day of August, one
thousand nine hundred ninety-four two thousand, the division of
environmental protection 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 (a)
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 (b)
and (c) of this section, yard waste, as described in subsection (e)
of this section, the division 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 that activity is not prohibited by this code, rules promulgated hereunder under this
code or municipal or county codes or ordinances; or
(4) Disposal in a publicly or privately operated landfill,
only where none of the foregoing options other options in this
subsection are available. Such The manner of disposal will shall
involve only small quantities of domestic yard waste generated only
from the property of the participating resident or tenant.
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 15. SOLID WASTE MANAGEMENT ACT.
§22-15-21 WASTE TIRE MANAGEMENT.
(a) No person, except those persons who have received and
maintained 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 waste tires without obtaining a license or permit from
the division: Provided, That persons who use waste tires for
beneficial uses may in the discretion of the director of the
division of environmental protection accumulate waste tires without
a permit.
(b) No person shall dispose of waste tires in or upon any
public or private land, any site or facility other than a site or
facility which holds a valid permit issued by the division for that
disposal or usage.
(c) No person shall knowingly transport or knowingly allow
waste tires under his or her control to be transported to a site or
facility that does not have a valid permit or license to accept waste tires.
(d) No person shall engage in the open burning of waste tires.
(e) Persons who violate this article are subject to all
enforcement actions available to the director under the provisions
of section fifteen, article fifteen, chapter twenty-two of this
code.
(f) Except as otherwise provided in subsection (g) of this
section, each retailer is required to accept one tire of comparable
size for each new tire sold at retail. The retailer may charge a
disposal fee to cover the actual costs of lawful waste tire
disposal. No retail tire dealer may deliver any waste tire, or
part of a waste tire, to a person not authorized by the state of
West Virginia to transport or accept waste tires.
(g) Any person purchasing a new tire from a retailer shall
provide a used or waste tire for each tire purchased or sign a
waiver, provided to the tire retailer by the division,
acknowledging that he or she is retaining the waste tire and that
he or she is legally responsible for proper disposal of each tire
retained. These forms are to be kept by the retailer for three
years. If the tire purchaser returns to the tire retailer with a
signed form given to the purchaser by that retailer, the retailer
shall accept up to the total number of comparable size tires as
previously retained by the purchaser: Provided, That persons
having winter tires changed or buying new winter tires and keeping
usable summer tires for later installation are not required to
provide a used or waste tire, or sign a waiver.
(H) Each tire retailer shall post in a conspicuous place a
written notice, provided by the division, that bears the following
statements:
(1) "State law requires us to accept your (old) waste tires
for recycling or proper disposal if you purchase new tires from
us";
(2) "State law authorizes us to charge you no more than the
actual cost of disposal of your waste tires even if you do not
leave your tires with us"; and
(3) "It is a crime to burn, bury, abandon or throw away waste
tires without authorization and or permits from the division of
environmental protection".
This notice shall be at least eight and one-half inches wide
and eleven inches high.
(i) Solid waste facilities shall accept whole waste tires and
may charge a reasonable fee for acceptance of waste tires. All
waste tires shall be excluded from the calculation of monthly
tonnage limits and from any solid waste disposal assessment fees
imposed by section five-a, article eleven, chapter twenty; section
eleven, article fifteen, chapter twenty-two, section four, article
sixteen, chapter twenty-two and section thirty, article four,
chapter twenty-two-c of this code.
(j) Solid waste facilities shall accept and dispose of whole
tires from state authorized tire remediation projects. All waste
tires from state authorized tire remediation projects shall be
excluded from the calculation of monthly tonnage limits and from any solid waste disposal assessment fees imposed by section five-a,
article eleven, chapter twenty; section eleven, article fifteen,
chapter twenty-two, section four, article sixteen, chapter twenty-
two and section thirty, article four, chapter twenty-two-c of this
code. For state sponsored tire remediation projects, the state may
negotiate with the solid waste facility for rates and charges for
the disposal of waste tires regardless of the rates and charges
established by the public service commission pursuant to article
one, chapter twenty-four of this code: Provided, That the disposal
of whole tires in a solid waste facility is allowed only when the
division of highways or the division of environmental protection
has determined there is no other reasonable alternative available.
(k) The division shall propose emergency and legislative rules
for promulgation in accordance with article three, chapter twenty-
nine-a of this code to effectuate the purposes of this section.
CHAPTER 24A. MOTOR CARRIERS OF PASSENGERS
AND PROPERTY FOR HIRE.
ARTICLE 2A. TRANSPORTERS OF WASTE TIRES BY MOTOR VEHICLE.
§24A-2A-1. Certificate of authority to operate as a motor carrier
in the transportation of used tires; requiring bond; rates and
charges for motor carriers, solid waste facilities and tire
collection centers.
(a) No person may engage in the transportation of waste tires
for compensation unless the person possesses a certificate of
convenience and necessity from the public service commission. The
vehicles and their operators are subject to the requirements of this article, article twenty-four, chapter seventeen of this code,
vehicle registration requirements and safety rules promulgated by
the public service commission. The requirement to obtain a
certificate of convenience and necessity to operate as a motor
carrier in the transportation of used tires does not apply to
persons who currently possess a certificate of convenience and
necessity pursuant to articles two or three of this chapter.
(b) The commission shall require each common carrier or
contract carrier by motor vehicle in the transportation of waste
tires to post a five thousand dollar bond as surety for compliance
with the provisions of this article and article fifteen-a, chapter
twenty-two of this code.
(c) The commission shall not exercise rate jurisdiction over
carriers registered pursuant to this article.
(d) The commission may not establish exclusive territories for
motor carriers in the transportation of waste tires but the
carriers may operate in any or all parts of the state. Nor shall
anything in this article be construed to limit the operating
territory or rights of a motor carrier possessing a certificate of
convenience and necessity or permit pursuant to articles two or
three of this chapter.
(e) The commission shall issue or deny a certificate of
convenience and necessity under this article within ninety days of
receipt of a complete application. The commission is specifically
authorized to issue temporary authority to operate pending final
decision on the application contemplated in this article.
§24A-2A-2. Reporting requirements.
Each common carrier or contract carrier by motor vehicle
authorized to haul tires pursuant to this article or articles two
or three of this chapter shall submit an annual report to the
division of highways including the name, address and telephone
number of the carrier, the quantity and location of waste tires
collected within this state and the quantity and location where the
tires were deposited.
§24A-2A-3. Rulemaking.
The commission shall promulgate rules as needed to effectuate
the purposes of this section.