H. B. 2847
(By Delegates Amores, Doyle, Varner and Givens)
[Introduced February 19, 1999; referred
to the Committee on the Judiciary then Finance.]
A BILL to repeal section five-b, article eleven, chapter
twenty of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
section twenty-two, article eighteen, chapter twenty-two
of said code; and to amend and reenact, sections one,
two, three, four, five and six, article nineteen of
chapter twenty-two of said code, all relating to
eliminating the solid and hazardous waste supplemental
assessment fee; imposing annual fees on large and small
quantity generators of hazardous waste; lowering
hazardous waste tonnage subject to the emergency response
fund; and amending language to remove certain
consequences caused by language used in the original
legislation.
Be it enacted by the Legislature of West Virginia:
That section five-b, article eleven, chapter twenty of
the code of West Virginia, one thousand nine hundred thirty- one, as amended, be repealed; and that section twenty-two,
article eighteen, chapter twenty-two of said code be amended
and reenacted; and that sections one, two, three, four, five
and six, article nineteen, of said chapter twenty-two be
amended and reenacted, all to read as follows:
ARTICLE 18. HAZARDOUS WASTE MANAGEMENT ACT.
§22-18-22. Appropriation of funds; hazardous waste management
fund.
The net proceeds of all fines, penalties and forfeitures
collected under this article shall be appropriated as directed
by article XII, section 5 of the constitution of West
Virginia. For the purposes of this section, the net proceeds
of such fines, penalties and forfeitures shall be deemed the
proceeds remaining after deducting therefrom those sums
appropriated by the Legislature for defraying the cost of
administering this article. All permit application fees
collected under this article shall be paid into the state
treasury into a special fund designated "The Hazardous Waste
Management Fund." In making the appropriation for defraying
the cost of administering this article, the Legislature shall first take into account the sums included in such special fund
prior to deducting such additional sums as may be needed from
the fines, penalties and forfeitures collected pursuant to
this article.
Effective on the first day of July, one thousand nine
hundred ninety-nine, and each year after, there is imposed an
annual certification fee for any large quantity generator of
hazardous waste, as defined by the rules promulgated by the
director pursuant to this article, in the amount of seven
hundred fifty dollars, and for any small quantity generator of
hazardous waste, as defined by the director, in the amount of
three hundred and fifty dollars. The revenues collected from
the annual certification fee shall be deposited in the state
treasury to the credit of the "Hazardous Waste Management
Fund," which is hereby continued. In addition to the annual
certification fee, all civil assessments, fines, penalties and
forfeitures, imposed pursuant to the authority of this article
along with any other moneys designated from whatever source
derived may be deposited into the fund. The director is
authorized to invest the fund to earn a reasonable rate of
return on the unexpended balance. The fund shall be an
interest bearing account and any interest accruing on
investments and unexpended moneys in the fund shall be
credited to the fund. Expenditures from the fund shall be for the purposes set forth in this article and are not authorized
from collections but are to be made only in accordance with
appropriation by the Legislature and in accordance with the
provisions of article three, chapter twelve of this code and
upon the fulfillment of the provisions set forth in article
two, chapter five-a of this code: Provided, That for the
fiscal year ending the thirtieth day of June, one thousand
nine hundred ninety-nine, expenditures are authorized from
collections rather than pursuant to an appropriation by the
Legislature. Amounts collected which are found from time to
time to exceed the funds needed for purposes set forth in this
article may be transferred to other accounts or funds and
redesignated for other purposes by appropriation of the
Legislature. The director may propose for promulgation
legislative rules, pursuant to chapter twenty-nine-a, to
implement the provisions of this section.
ARTICLE 19. HAZARDOUS WASTE EMERGENCY RESPONSE FUND.
§22-19-1. Findings; purpose.
The Legislature recognizes that large quantities of
hazardous waste are generated within the state, and that
emergency situations involving hazardous waste can and will
arise which may present a hazard to human health, safety or
the environment. The Legislature also recognizes that some hazardous waste has been stored, treated or disposed of at
sites in the state in a manner insufficient to protect human
health, safety or the environment. The Legislature further
recognizes that the federal government has enacted the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986, which provides for federal
assistance to respond to hazardous substance emergencies and
to remove and remedy the threat of damage to the public health
or welfare or to the environment, and declares that West
Virginia desires to produce revenue for matching the federal
assistance provided under the federal act acts. Therefore,
the Legislature hereby creates a hazardous waste emergency
fund to provide state funds for responding to hazardous waste
emergencies, responding to releases of hazardous substances
into the environment, matching federal financial assistance
for restoring hazardous waste sites and other costs or
expenses incurred in the administration of this article.
§22-19-2. Definitions.
As used in this article, unless the context clearly
requires a different meaning:
(1) "Cleanup" means such actions as may be necessary to
monitor, assess and evaluate the threat of release of hazardous waste or hazardous substances, the containment,
collection, control, identification, treatment, dispersal,
removal or disposal of hazardous waste or other such actions
as may be necessary to respond to hazardous waste or hazardous
substance emergencies or to prevent, minimize or mitigate
damage to the public health, safety, welfare or to the
environment, and includes, where necessary, replacement of
existing, or provision of alternative, drinking water supplies
that have been contaminated with hazardous waste as a result
of an emergency;
(2) "Cleanup costs" means all costs incurred by the
director, or with the approval of the director, by any state
agency or person participating in the cleanup of a hazardous
waste or hazardous substance emergency or remedial action.
For purposes of this article, "cleanup costs" includes
responding to emergencies that may contain petroleum products;
however, the term "cleanup costs" does not include
expenditures for remediation of or responding to releases from
underground storage tanks;
(3) "Generator" means any person, corporation,
partnership, association or other legal entity, by site
location, whose act or process produces hazardous waste as
identified or listed by the director in rules promulgated
pursuant to section six, article eighteen of this chapter, in an amount greater than twelve five thousand kilograms per
year;
All other terms have the meaning as prescribed in the
rules promulgated by the director pursuant to the provisions
of section six, article eighteen of this chapter.
§22-19-3. Hazardous waste emergency response fund; components
of fund.
(a) The special fund designated "The Hazardous Waste
Emergency Response Fund," hereinafter referred to as "the
fund," shall be continued in the state treasury.
(b) All generator fee assessments, any interest or
surcharge assessed and collected by the director, interest
accruing on investments and deposits of the fund, and any
other moneys designated shall be paid into the fund.
Expenditures from the fund shall be for the purposes set forth
in this article and are not authorized from collections but
are to be made only in accordance with appropriation by the
Legislature and in accordance with the provisions of article
three, chapter twelve of this code and upon the fulfillment of
the provisions set forth in article two, chapter five-a of
this code: Provided, That for the fiscal year ending the
thirtieth day of June, one thousand nine hundred ninety-nine,
expenditures are authorized from collections rather than pursuant to an appropriation by the Legislature. Amounts
collected which are found from time to time to exceed the
funds needed for purposes set forth in this article may be
transferred to other accounts or funds and redesignated for
other purposes by appropriation of the Legislature.
§22-19-4. Fee assessments; tonnage fees; due dates of
payments; interest on unpaid fees.
(a) Each generator of hazardous waste within this state
shall pay an annual fee based upon the amount of hazardous
waste generated as reported to the director by the generator
on a fee assessment form prescribed by the director submitted
pursuant to article eighteen of this chapter. The director
shall establish a fee schedule according to the following:
Full assessment for generated hazardous waste disposed or
treated off-site; ninety percent of the full assessment for
generated hazardous waste either treated or disposed on-site;
seventy-five percent of the full assessment for generated
hazardous waste treated off-site so that such waste is
rendered nonhazardous; and twenty-five percent of the full
assessment for generated hazardous waste treated on-site so
that such waste is rendered nonhazardous: Provided, That the
generator fee assessment does not apply to the following: (1)
Those wastes listed in paragraph (A), subdivision two, subsection (a), section six, article eighteen of this chapter;
(2) sludge from any publicly owned treatment works in the
state; (3) any discharge to waters of the state of hazardous
waste pursuant to a valid water pollution control permit
issued under federal or state law; (4) any hazardous wastes
beneficially used or reused or legitimately recycled or
reclaimed; (5) hazardous wastes which are created or retrieved
pursuant to an emergency or remedial action plan; (6)
hazardous wastes whose sole characteristic as a hazardous
waste is based on corrosivity and which are subjected to
on-site elementary neutralization in containers or tanks; (7)
fly ash waste, bottom ash waste, slag waste and flue gas
emission control waste generated primarily from the combustion
of coal or other fossil fuels; (8) solid waste from the
extraction, beneficiation, and processing of ores and
minerals, including coal, phosphate rock and overburden from
the mining of uranium ore; (9) cement kiln dust waste; (10)
drilling fluids, produced waters, and other wastes associated
with the exploration, development or production of crude oil,
natural gas, or geo-thermal energy; and (11) any other
material that is exempted or excluded from hazardous waste
regulation pursuant to the federal Resource Conservation and
Recovery Act and the rules promulgated thereunder, including,
but not limited to, the exemptions and exclusions set forth in 40 CFR 261.4 and 261.6, or the state hazardous waste
management act, article eighteen of this chapter, and the
rules promulgated thereunder.
(b) Each generator of hazardous waste within the state
subject to a fee assessment under subsection (a) of this
section shall pay a fee based on its annual tonnage of
generated hazardous waste. Any unexpended balance of such
collected fees shall not be transferred to the general revenue
fund, but shall remain in the fund. The director shall vary
the fees annually to a level necessary to produce a fund of at
least one million dollars at the beginning of each calendar
year, but in no event shall the fees established be set to
produce revenue exceeding five hundred thousand dollars in any
year. When the fund's unobligated balance exceeds one million
five hundred thousand dollars at the end of the calendar year,
generator assessments under this article shall cease until
such time as the fund's unobligated balance at the end of any
year is less than one million dollars Whenever the balance in
the fund is less than one million dollars, the director is
authorized to impose a fee assessment as provided in this
article, but in no event shall the fees established be set to
produce revenue exceeding five hundred thousand dollars in any
year.
(c) Generator fee assessments are due and payable to the division of environmental protection on the fifteenth day of
January of each year. Such payments shall be accompanied by
information in such form as the director may prescribe.
(d) If the fees or any portion thereof are not paid by
the date prescribed, interest accrues upon the unpaid amount
at the rate of ten percent per annum from the date due until
payment is actually made. Such interest payments shall be
deposited in the fund. If any generator fails to pay the fees
imposed before the first day of April one of the year in which
the they are due, there is imposed in addition to the fee and
interest determined to be owed a surcharge equivalent to the
total amount of the fee which shall also be collected and
deposited in the fund.
§22-19-5. Director's responsibilities; fee schedules;
authorized expenditures; other powers of director;
authorizing civil actions; assistance of attorney general or
prosecuting attorney.
(a) The director shall collect all fees assessed pursuant
to this article and administer the fund. The fee schedule
shall be published in the state register by the first day of
August of each year. Each generator who filed the fee
assessment form prescribed by the director shall be notified
and provided with a copy of the fee schedule by certified mail. In the event the fee schedule is not published by the
first day of August, the date prescribed for payment in
section four of this article shall be advanced by the same
number of days that the publication of the fee schedule is
delayed. The interest and surcharge provisions of section
four of this article shall be similarly advanced.
(b) The director is authorized to enter into agreements
and contracts and to expend the moneys in the fund for the
following purposes:
(1) Responding to hazardous waste emergencies and
releases of hazardous substances when, based on readily
available information, the director determines that immediate
action may prevent or mitigate significant risk of harm to
human health, safety or the environment from hazardous wastes
or releases of hazardous substances in situations for which no
federal funds are immediately available for such response
cleanup or containment: Provided, That the director shall
apply for and diligently pursue available federal funds for
such emergencies at the earliest possible time; Provided,
however, That funds shall not be expended under this
subsection to cleanup or contain off-site releases of
hazardous waste which are classified as such only as a result
of such releases
(2) Reimbursing any person for reasonable cleanup costs
incurred with the authorization of the director in responding
to a hazardous waste emergency or release of hazardous
substances pursuant to authorization of the director;
(3) Financing the nonfederal share of the cleanup and
site reclamation activities pursuant to the federal
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986 as well as future operation
and maintenance costs for these sites; and
(4) Financing any and all preparations necessary for
responding to hazardous waste and hazardous substance
activities and emergencies within the state, including, but
not limited to, the purchase or lease of hazardous waste
emergency response equipment.: Provided, That after the
fifteenth day of January, one thousand nine hundred
eighty-seven, no funds shall be expended under this
subdivision unless the fund is greater than one million
dollars and any expenditure will not reduce the fund below one
million dollars.
(c) Prior to making expenditures from the fund pursuant
to subdivision (1), (2) or (3), subsection (b) of this
section, the director will make reasonable efforts to secure agreements to pay the costs of cleanup and remedial actions
from owners or operators of sites or other responsible
persons.
(d) The director is authorized to promulgate and revise
rules in compliance with chapter twenty-nine-a of this code to
implement and effectuate the powers, duties and
responsibilities vested in him or her under this article.
Prior to the assessment of any fees under this article, the
director shall promulgate rules which account for the mixture
of hazardous and nonhazardous constituents in the hazardous
waste which is generated. The director shall may not assess
a fee on the nonhazardous portion, including, but not limited
to, the weight of water.
(e) The director is authorized to recover through civil
action or cooperative agreements with responsible persons the
full amount of any funds expended for purposes enumerated in
subdivision (1), (2) or (3), subsection (b) of this section.
All moneys expended from the fund which are so recovered shall
be deposited in the fund. Any civil action instituted
pursuant to this subsection may be brought in either Kanawha
County or the county in which the hazardous waste emergency
occurs or the county in which remedial action is taken.
(f) The director is authorized to institute a civil
action against any generator for failure to pay any fee assessed pursuant to this article. Any action instituted
against a generator pursuant to this subsection may be brought
in either Kanawha County or the county in which the generator
does business. The generator shall pay all attorney fees and
costs of such action if the director prevails.
(g) Upon request by the director, the attorney general or
prosecuting attorney for the county in which an action was
brought shall assist the director in any civil action
instituted pursuant to this section and any proceedings
relating thereto.
(h) The director is authorized to enter into contracts or
cooperative agreements with the federal government to secure
to the state the benefits of funding for action taken pursuant
to the requirements of the federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980 as amended by
the Superfund Amendments and Reauthorization Act of 1986.
(i) The director is authorized to accept gifts,
donations, contributions, bequests or devises of money,
security or property for deposit in the fund.
(j) The director is authorized to invest the fund to earn
a reasonable rate of return on the unexpended balance.
§22-19-6. State hazardous waste contingency plan.
The director shall promulgate rules in compliance with chapter twenty-nine-a of this code, establishing a state
hazardous waste contingency plan which shall set forth
procedures and standards for responding to hazardous waste
emergencies, releases of hazardous substances, for conducting
remedial cleanup and maintenance of hazardous waste sites and
for making expenditures from the fund after the date of
promulgation of the plan. The plan shall include:
(a) Methods for discovering, reporting and investigating
sites at which hazardous waste or hazardous substances may
present significant risk of harm to the public health and
safety or to the environment;
(b) Methods and criteria for establishing priority
responses and for determining the appropriate extent of
cleanup, containment and other measures authorized by this
article;
(c) Appropriate roles for governmental, interstate and
nongovernmental entities in effectuating the plan;
(d) Methods for identifying, procuring, maintaining and
storing hazardous waste response equipment and supplies; and
(e) Methods to identify the most appropriate and
cost-effective emergency and remedial actions in view of the
relative risk or danger presented by each case or event.
§22-19-6. State hazardous waste contingency plan.
The director shall promulgate rules in compliance with
chapter twenty-nine-a of this code, establishing a state
hazardous waste contingency plan which shall set forth
procedures and standards for responding to hazardous waste
emergencies, releases of hazardous substances for conducting
remedial cleanup and maintenance of hazardous waste sites and
for making expenditures from the fund after the date of
promulgation of the plan. The plan shall include:
(a) Methods for discovering, reporting and investigating
sites at which hazardous waste or hazardous substances
may
present significant risk of harm to the public health and
safety or to the environment;
(b) Methods and criteria for establishing priority
responses and for determining the appropriate extent of
cleanup, containment and other measures authorized by this
article;
(c) Appropriate roles for governmental, interstate and
nongovernmental entities in effectuating the plan;
(d) Methods for identifying, procuring, maintaining, and
storing hazardous waste response equipment and supplies; and
(e) Methods to identify the most appropriate and cost- effective emergency and remedial actions in view of the
relative risk or danger presented by each case or event.
NOTE: The purpose of this bill is to provide funding for
the office of waste management, division of environmental
protection, and to provide funding for the hazardous waste
emergency fund.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.