Senate Bill No. 363
(By Senators Unger and Yoder)
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[Introduced January 27, 2006; referred to the Committee on the
Judiciary.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §22C-4-23a; and to
amend and reenact §24A-2-5 of said code, all relating to
allowing certain county or regional waste authorities in
growth areas to designate common carriers of solid waste
exempt from the certificate of convenience and necessity
requirement; establishing criteria for the exemption; and
establishing requirements for notice and a public hearing.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §22C-4-23a; and that
§24A-2-5 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-4-23a. Providing for additional waste haulers in certain
growth areas.
(a) The Legislature finds that certain populous counties that
have experienced rapid population growth may, nonetheless, be
served by only one or two common carriers that have certificates of
convenience and necessity from the Public Service Commission
authorizing the carrier(s) to provide solid waste collection and
hauling services. In these counties, solid waste planning for the
effective collection, recycling and disposal of solid waste can be
enhanced by the introduction of additional common carriers to
service the area. However, the requirement that any new carrier
first obtain a certificate of convenience and necessity from the
Public Service Commission causes significant delay and uncertainty,
impeding the ability of the local solid waste authorities to
effectively plan and provide for the rapidly increasing solid waste
burdens imposed upon the counties. The Legislature therefore finds
that the local solid waste authorities in these counties should be
given limited authority to designate one or more common carriers as
exempt from the requirement for a certificate of convenience and
necessity.
(b) Notwithstanding any provisions of this article or of
article two, chapter twenty-four-a, or any other provision of the
code of West Virginia or any rules that have been promulgated pursuant thereto, a county or regional solid waste authority may
designate a common carrier as exempt from obtaining a certificate
of convenience and necessity from the Public Service Commission, as
would otherwise be required by chapter twenty-four-a of this code,
for the operation of motor vehicles for the collection or
transportation of solid waste; including, but not limited to,
commercial waste, residential waste, construction waste, demolition
waste or recyclable materials that are generated within the county
or regional by residential, commercial, industrial or institutional
sources: Provided, That:
(1) The population of the county increased by fifteen percent
or more between the 1990 and the 2000 decennial censuses conducted
by Bureau of the Census of the United States Department of
Commerce;
(2) The population of the county exceeded thirty thousand
persons (30,000) at the time of the 2000 decennial census; and
(3) The county, on the first day of January, two thousand six,
is served by fewer than three common carriers by motor vehicles
authorized to carry solid waste by certificates of convenience and
necessity issued by the Public Service Commission.
(c) 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: (1) Improvement of the dependability, quality or value of solid waste collection or
recycling services available to the county or region; (2)
enhancement of the disposal, recycling or composing capacity
available to the county or region; (3) enhancement of economic
development in the county or region; and (4) facilitation of the
development of the solid waste infrastructure in the county or
region.
(d) Any applicant for an exemption shall establish to the
satisfaction of the county or regional 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. When granting an exemption,
the county or regional solid waste authority may impose reasonable
conditions not inconsistent with the criteria set forth above.
Prior to granting, denying, transferring or revoking an exemption
a public hearing shall be conducted by the county or regional solid
waste authority to afford interested persons a reasonable
opportunity to submit written or oral comments.
Notice of the public hearing shall be given a minimum of
thirty days in advance of the hearing and shall be in the form of
a Class II legal advertisement placed in the newspaper serving the county with the largest circulation. The county or regional solid
waste authority shall consider written comments for a period not to
exceed ten days beyond the date of the public hearing.
(e) Any exemption granted is effective until revoked or
abandoned. With the exception of the requirement that it obtain a
certificate of convenience and necessity, an exempt carrier shall
be subject to all statutes, rules and other requirements applicable
to common carriers of solid waste, and is subject to the
jurisdiction of the Public Service Commission for these purposes.
Upon finding that a carrier has violated any of the above
conditions or other requirements imposed upon it by the county or
regional solid waste authority or by law, or for other good cause,
the county or regional solid waste authority may revoke any
exemption previously granted.
(f) A copy of the county or regional solid waste authority's
decision granting, denying, transferring or revoking an exemption
shall be supplied to the Motor Carrier Division of the Public
Service Commission along with a notarized statement by the county
or regional solid waste authority's chairperson or secretary that
the copy accurately represents the action taken.
(g) No exemption granted under this subsection may be assigned
or transferred without the written approval of the county or
regional solid waste authority.
CHAPTER 24A. COMMERCIAL MOTOR CARRIERS.
ARTICLE 2. COMMON CARRIERS BY MOTOR VEHICLES.
§24A-2-5. Certificate of convenience and necessity.
(a) Required; application; hearing; granting. -- It shall be
is 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 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 a 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 the
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
the 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 the certificate
such the 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 the certificate holder
shall be given reasonable time and opportunity to remedy such
the inadequacy or insufficiency before any certificate shall be is
granted to an applicant proposing to operate over such the 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 may not grant such the certificate.
(b) Rules and regulatons; taking evidence at hearings; burden
of proof. -- The commission shall prescribe such rules and
regulations as it may deem considers 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
or her personal representative or representatives may operate under
such the 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 has 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.
NOTE: The purpose of this bill is to
allow certain county or
regional waste authorities in growth areas to designate common
carriers of solid waste exempt from the certificate of convenience
and necessity requirement; to establish criteria for the exemption;
and to establish requirements for notice and a public hearing.
§22C-4-23a is new; therefore, strike-throughs and underscoring
have been omitted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.