ENGROSSED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 439
(By Senators Unger, Yoder and Barnes)
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[Originating in the Committee on the Judiciary;
reported March 24, 2005.]
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A BILL to amend and reenact §22C-4-23 of the Code of West Virginia,
1931, as amended; to amend and reenact §24A-2-5 of said code;
and to amend and reenact §24A-3-3 of said code, all relating
to allowing an exemption for certain county or regional solid
waste authority-designated motor carriers of commercial solid
waste from the certificate of convenience requirements;
establishing criteria for the exemption; and establishing
requirements for notice and a public hearing.
Be it enacted by the Legislature of West Virginia:
That §22C-4-23 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that
§24A-2-5 of said code be amended
and reenacted; and that §24A-3-3
of said code be amended and
reenacted, all to read as follows:
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS,
AUTHORITIES, COMMISSIONS AND COMPACTS.
ARTICLE 4. COUNTY AND REGIONAL SOLID WASTE AUTHORITIES.
§22C-4-23. Powers, duties and responsibilities of authority
generally.
The authority may exercise all powers necessary or appropriate
to carry out the purposes and duties provided in this article,
including the following:
(1) Sue and be sued, plead and be impleaded and have and use
a common seal.
(2) To conduct its business in the name of the county solid
waste authority or the regional solid waste authority, as the case
may be, in the names of the appropriate counties.
(3) The authority board of directors shall promulgate rules to
implement the provisions of sections nine and ten of this article
and is authorized to promulgate rules for purposes of this article
and the general operation and administration of authority affairs.
(4) Adopt, and, from time to time, amend and repeal, bylaws
necessary and proper for the conduct of its affairs consistent with
this article.
(5) To promulgate such rules as may be proper and necessary to
implement the purposes and duties of this article.
(6) Acquire, construct, reconstruct, enlarge, improve,
furnish, equip, maintain, repair, operate, lease or rent or
contract for the operation by any person, partnership, corporation
or governmental agency, any solid waste facility or collection,
transportation and processing facilities related thereto.
(7) Issue negotiable bonds, notes, debentures or other
evidences of indebtedness and provide for the rights of the holders
thereof, incur any proper indebtedness and issue any obligations
and give any security therefor which it may deem necessary or
advisable in connection with exercising powers as provided herein.
(8) Make available the use or services of any solid waste
facility collection, transportation and processing facilities
related thereto, to any person, partnership, corporation or
governmental agency consistent with this article.
(9) Acquire by gift or purchase, hold and dispose of real and
personal property in the exercise of its powers and duties.
(10) Make and enter all contracts, leases and agreements and
to execute all instruments necessary or incidental to the
performance of its duties and powers.
(11) Employ managers, engineers, accountants, attorneys,
planners and such other professional and support personnel as are
necessary in its judgment to carry out the provisions of this
article.
(12) Receive and accept from any source such grants, fees,
real and personal property, contributions, funds transferred from
a solid waste facility and funds of any nature as may become
available to the authority, in order to carry out the purposes of
this article, including, but not limited to, the development,
operation or management of litter control programs and recycling
programs: Provided, That nothing contained in this subsection
shall be construed to extend the authority or jurisdiction of the Public Service Commission to activities under this subsection
solely because the activities are funded by moneys transferred from
a solid waste facility, nor may the use of transferred funds by a
solid waste authority be considered by the Public Service
Commission in carrying out its duties under section one-f, article
two, chapter twenty-four of this code.
(13) Cooperate with and make such recommendations to local,
state and federal government and the private sector in the
technical, planning and public policy aspects of litter control and
solid waste management as the authority may find appropriate and
effective to carry out the purposes of this article.
(14) Charge, alter and collect rentals, fees, service charges
and other charges for the use or services of any solid waste
facilities or any solid waste collection, transportation and
processing services provided by the authority.
(15) Prohibit the dumping of solid waste outside the hours of
operation of a solid waste facility.
(16) Enforce the hours of operation of a solid waste facility
and the mandatory disposal provision in section ten of this article
by referring violations to the division of environmental protection
or the appropriate law-enforcement authorities.
(17) Do all acts necessary and proper to carry out the powers
expressly granted to the authority by this article and powers
conferred upon the authority by this article.
All rules promulgated by the authority pursuant to this
article are exempt from the provisions of article three, chapter twenty-nine-a of this code.
(18) A county or regional solid waste authority
may designate
a motor carrier as exempt from obtaining a certificate of
convenience and necessity or permit from the Public Service
Commission, as would otherwise be required by chapter twenty-four
of this code, for the operation of motor vehicles used exclusively
in the collection or transportation of construction and demolition
debris or of solid waste and recyclable materials which are
generated by commercial, industrial, institutional or other
nonresidential sources: Provided, That:
(A) The solid waste is generated in a county in which the
county or regional solid waste authority has in effect and is
operating a drop off or curbside recycling program available to all
county residents;
(B) The population of the county increased by fifteen percent
or more between the two most recent decennial censuses conducted by
the Bureau of the Census of the United States Department of
Commerce;
(C) The county is served by fewer than three common carriers
by motor vehicles authorized to carry nonresidential solid waste by
certificates of convenience and necessity issued by the Public
Service Commission; and
(D) There is not a regional solid waste authority operating
one or more transfer stations for the region.
No county or regional solid waste authority shall designate
any motor carrier as exempt unless it determines that the above conditions have been met, and that granting an exemption meets one
or more of the following criteria: (i) Improvement of the
dependability, quality or value of solid waste collection or
recycling services available to the county or region; (ii)
enhancement of the disposal, recycling or composting capacity
available to the county or region; (iii) enhancement of economic
development in the county or region; and (iv) facilitation of the
development of the solid waste infrastructure in the county or
region.
Any applicant for an exemption shall establish to the
satisfaction of the solid waste authority that it has the financial
resources and the ability to provide the services proposed in its
application. An applicant for an exemption shall be provided with
written notice and a reasonable opportunity to make written and
oral submissions to the county or regional solid waste authority
prior to any decision on whether to grant, deny or revoke an
exemption. Prior to granting any exemption a public hearing shall
be conducted by the authority to afford interested persons a
reasonable opportunity to submit written or oral comments. Notice
of the public hearing shall be given in the manner required for
conducting a public hearing on a solid waste facility siting plan.
When granting an exemption, the county or regional solid waste
authority may impose reasonable conditions not inconsistent with
the criteria set forth above. A copy of the county or regional
solid waste authority's decision granting, denying or revoking an
exemption shall be supplied to the Motor Carrier Division of the Commission along with a notarized statement by the authority's
chairperson or secretary that the copy accurately represents the
action taken. No exemption granted under this subsection may be
assigned or transferred without the approval of the solid waste
authority.
CHAPTER 24A. MOTOR CARRIERS OF PASSENGERS
AND PROPERTY FOR HIRE.
ARTICLE 2. COMMON CARRIERS BY MOTOR VEHICLES.
§24A-2-5. Certificate of convenience and necessity.
(a) Required; application; hearing; granting. -- It shall be
unlawful for any common carrier by motor vehicle to operate within
this state without first having obtained from the Commission a
certificate of convenience and necessity: Provided, That a county
or regional solid waste authority may grant an exemption to this
requirement pursuant to the provisions of section twenty-three,
article four, chapter twenty-two-c of this code. Upon the filing
of an application for such certificate, the Commission shall set a
time a place for a hearing on the application: Provided, however,
That the Commission may, after giving proper notice and if no
protest is received, waive formal hearing on the application.
Notice shall be by publication which shall state that a formal
hearing may be waived in the absence of a protest to such
application. The notice shall be published as a Class I legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code and the publication area for such publication shall be the proposed area of operation. The notice
shall be published at least ten days prior to the date of the
hearing. After the hearing or waiver by the Commission of the
hearing, if the Commission finds from the evidence that the public
convenience and necessity require the proposed service or any part
thereof, it shall issue the certificate as prayed for, or issue it
for the partial exercise only of the privilege sought, and may
attach to the exercise of the right granted by such certificate
such terms and conditions as in its judgment the public convenience
and necessity may require, and if the Commission shall be of the
opinion that the service rendered by any common carrier holding a
certificate of convenience and necessity over any route or routes
in this state is in any respect inadequate or insufficient to met
the public needs, such certificate holder shall be given reasonable
time and opportunity to remedy such inadequacy or insufficiency
before any certificate shall be granted to an applicant proposing
to operate over such route or routes as a common carrier. Before
granting a certificate to a common carrier by motor vehicle the
Commission shall take into consideration existing transportation
facilities in the territory for which a certificate is sought, and
in case it finds from the evidence that the service furnished by
existing transportation facilities is reasonably efficient and
adequate, the Commission shall not grant such certificate.
(b) Rules and regulations; taking evidence at hearings; burden
of proof. -- The Commission shall prescribe such rules and
regulations as it may deem proper for the enforcement of the provisions of this section and in establishing that public
convenience and necessity do exist the burden of proof shall be
upon the applicant. The Commission may designate any of its
employees to take evidence at the hearing of any application for a
certificate and submit findings of fact as a part of a report or
reports to be made to the Commission.
(c) Certificate not franchise, etc.; assignment or transfer.
-- No certificate issued in accordance with the terms of this
chapter shall be construed to be either a franchise or irrevocable
or to confer any proprietary or property rights in the use of the
public highways. No certificate issued under this chapter shall be
assigned or otherwise transferred without the approval of the
Commission. Upon the death of a person holding a certificate, his
personal representative or representatives may operate under such
certificate while the same remains in force and effect and, with
the consent of the Commission, may transfer such certificate.
(d) Suspension, revocation or amendment. -- The Commission may
at any time, for good cause, suspend and, upon not less than
fifteen days' notice to the grantee of any certificate and an
opportunity to be heard, revoke or amend any certificate.
(e) The Commission shall have the authority, after hearing, to
ratify, approve and affirm those orders issued pursuant to this
section since the tenth day of March, nineteen hundred
seventy-nine. For the purposes of this subsection the Commission
may give notice by a Class I legal advertisement of such hearing in
any newspaper or newspapers of general circulation in this state, and such other newspapers as the Commission may designate.
ARTICLE 3. CONTRACT CARRIERS BY MOTOR VEHICLES.
§24A-3-3. Permit.
(a) Required; application; hearing; granting. -- It shall be
unlawful for any contract carrier by motor vehicle to operate
within this state without first having obtained from the Commission
a permit: Provided, That a county or regional solid waste
authority may grant an exemption to this requirement pursuant to
the provisions of section twenty-three, article four, chapter
twenty-two-c of this code.
Upon the filing of an application for
such permit, the Commission shall fix a time and place for hearing
thereon: Provided, however, That the Commission may, after giving
notice as hereinafter provided and if no protest is received, waive
formal hearing on such application. Said notice shall be by
publication which shall state that formal hearing may be waived in
the absence of protest to such application. Such notice shall be
published as a Class I legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code and
the publication area for such publication shall be the area of
operation. Such notice shall be published at least ten days prior
to the date of hearing. After hearing or waiver of hearing as
aforesaid, as the case may be, the Commission shall grant or deny
the permit prayed for or grant it for the partial exercise only of
the privilege sought, and may attach to the exercise of the
privilege granted by such permit such terms and conditions as in its judgment are proper and will carry out the purposes of this
chapter. No permit shall be granted unless the applicant has
established to the satisfaction of the Commission that the
privilege sought will not endanger the safety of the public or
unduly interfere with the use of the highways or impair unduly the
condition or unduly increase the maintenance cost of such highways,
directly or indirectly, or impair the efficient public service of
any authorized common carrier or common carriers adequately serving
the same territory.
(b) Rules and regulations; evidence at hearing. -- The
commission shall prescribe such rules and regulations as it may
deem proper for the enforcement of the provisions of this section
and may designate any of its employees to take evidence at the
hearing on any application for a permit and submit findings of fact
as a part of report or reports to be made to the Commission.
(c) Permit not franchise, etc.; assignment or transfer. -- No
permit issued in accordance with the terms of this chapter shall be
construed to be either a franchise or irrevocable or to confer any
proprietary or property rights in the use of the public highways.
No permit issued under this chapter shall be assigned or otherwise
transferred without the approval of the Commission. Upon the death
of a person holding a permit, his personal representative or
representatives may operate under such permit while the same
remains in force and effect and, with the consent of the
Commission, may transfer such permit.
(d) Suspension, revocation or amendment. -- The Commission may at any time, for good cause, suspend and, upon not less than
fifteen days' notice to the grantee of any permit and an
opportunity to be heard, revoke or amend any permit.
(e) Notice of cessation or abandonment. -- Every contract
carrier by motor vehicle who shall cease operation or abandon his
rights under a permit issued shall notify the Commission within
thirty days of such cessation or abandonment.