S JUD B ORG16
Senate Bill No. 568
(By Senators Wooton, Anderson, Dittmar and Schoonover)
____________
[Originating in the Committee on Judiciary;
reported February 22, 1996.]
_____________
A BILL to repeal sections one-c, one-h, and one-i, article two,
chapter twenty-four of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; to amend and reenact
sections one-a and twenty-five, article thirteen-a, chapter
sixteen of said code; to amend and reenact section twelve,
article eleven, chapter twenty of said code; to amend and
reenact section ten, article fifteen, chapter twenty-two of
said code; to amend and reenact section twelve, article
sixteen of said chapter twenty-two; to amend article three,
chapter twenty-two-c of said code by adding thereto a new
section, designated section six-a; to amend and reenact
sections twenty-six, twenty-seven and twenty-eight, article
four of said chapter twenty-two-c; to amend and reenact
sections one-b and three, article one, chapter twenty-four of
said code; and to amend and reenact sections one, one-b, one-
f, two, three and four-b, article two of said chapter twenty-
four, all relating to the jurisdiction, authority and duties of the public service commission; removing commercial solid
waste facilities from the general jurisdiction of the public
service commission except for rates; limiting the scope of
inquiry by the public service commission over rates for
disposal of solid waste; transferring certificate of need
provisions to the solid waste management board and limiting
the certificate of need requirements to new commercial solid
waste facilities; reorganizing the structure of the public
service commission to include a separate water and wastewater
division; including within the jurisdiction of the public
service commission rate-setting for certain municipal water
and wastewater systems; reducing time in which plans and
supporting information must be filed by a public service
district seeking a certificate of public convenience and
necessity; adjusting the compensation of the members of the
public service commission; deleting outdated and archaic
language; and revising code sections to comport with the
transfer of jurisdiction generally.
Be it enacted by the Legislature of West Virginia:
That sections one-c, one-h, and one-i, article two, chapter
twenty-four of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be repealed; that sections one-a and
twenty-five, article thirteen-a, chapter sixteen of said code be
amended and reenacted; that section twelve, article eleven, chapter
twenty of said code be amended and reenacted; that section ten,
article fifteen, chapter twenty-two of said code be amended and reenacted; that section twelve, article sixteen of said chapter
twenty-two be amended and reenacted; that article three, chapter
twenty-two-c, be amended, by adding thereto a new section,
designated section six-a; that sections twenty-six, twenty-seven
and twenty-eight, article four of said chapter twenty-two-c be
amended and reenacted; and that sections one-b and three, article
one, chapter twenty-four of said code be amended and reenacted; and
that sections one, one-b, one-f, three and four-b, article two of
said chapter twenty-four be amended and reenacted, all to read as
follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 13A. PUBLIC SERVICE DISTRICTS FOR WATER, SEWERAGE AND GAS
SERVICES.
§16-13A-1a. Jurisdiction of the public service commission
over
public service districts and wastewater systems.
(a) The jurisdiction of the public service commission relating
to public service districts shall be expanded to include the
following powers, and such powers shall be in addition to all other
powers of the public service commission set forth in this code:
(a) (1) To study, modify, approve, deny or amend the plans
created under section one-b of this article for consolidation or
merger of public service districts and their facilities, personnel
or administration;
(b) (2) To petition the appropriate circuit court for the
removal of a public service district board member or members
; and.
(c) To create by general order a separate division within the public service commission to provide assistance to public service
districts in technological, operational, financial and regulatory
matters.
(b)The public service district division created by general
order of the public service commission pursuant to the prior
enactment of this section is hereby continued as a separate
division within the public service commission, to be known as the
water and wastewater division. The water and wastewater division
shall provide assistance to water and wastewater systems in
technological, financial, rate-review and regulatory matters.
The water and wastewater division shall also provide
assistance to municipally owned and private water or sewer
facilities whose facilities are used for services similar to those
of public service properties and whose need for assistance is
similar to that of public service districts.
§16-13A-25. Borrowing and bond issuance; procedure.
Notwithstanding any other provisions of this article to the
contrary, a public service district shall not borrow money, enter
into contracts for the provision of engineering, design or
feasibility studies, issue or contract to issue revenue bonds or
exercise any of the powers conferred by the provisions of sections
thirteen, twenty or twenty-four of this article, without the prior
consent and approval of the public service commission. Unless the
properties to be constructed or acquired represent ordinary
extensions or repairs of existing systems in the usual course of
business, a public service district must first obtain a certificate of public convenience and necessity from the public service
commission in accordance with the provisions of chapter twenty-four
of this code, when a public service district is seeking to acquire
or construct public service property.
Sixty Thirty days prior to making formal application for said
certificate, the public service district shall prefile with the
public service commission its plans and supporting information for
said project and shall publish a Class II legal advertisement in a
newspaper or newspapers of general circulation in each city,
incorporated town or municipal corporation if available in the
district, which legal advertisement shall state:
(a) The amount of money to be borrowed, or the amount of
revenue bonds to be issued:
Provided, That if the amount is an
estimate, the notice may be stated in terms of an amount "not to
exceed" a specific amount;
(b) The interest rate and terms of the loan or bonds:
Provided, That if the interest rate is an estimate, the notice may
be stated in terms of a rate "not to exceed" a specific rate;
(c) The public service properties to be acquired or
constructed, and the cost of same;
(d) The anticipated rates which will be charged by the
district:
Provided, That if the rates are an estimate, the notice
may be stated in terms of rates "not to exceed" a specific rate;
and
(e) The date that the formal application for a certificate of
public convenience and necessity is to be filed with the public service commission. The public service commission may grant its
consent and approval for the certificate, or any other request for
approval under this section, subject to such terms and conditions
as may be necessary for the protection of the public interest,
pursuant to the provisions of chapter twenty-four of this code, or
may withhold such consent and approval for the protection of the
public interest.
In the event of disapproval, the reasons therefor shall be
assigned in writing by the commission.
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 11. WEST VIRGINIA RECYCLING PLAN.
§20-11-12. Recycling facilities exemption.
Recycling facilities, as defined in section two, article
fifteen of chapter twenty-two of this code, whose only function is
to accept free-of-charge, buy or transfer source separated material
or recycled material for resale or transfer for further processing
shall be exempt from the provisions of said article and
article
articles three and four of chapter twenty-two-c and
sections one-c
and section one-f, article two, chapter twenty-four of this code.
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 15. SOLID WASTE MANAGEMENT ACT.
§22-15-10. Prohibitions; permits required; priority of disposal.
(a) Open dumps are prohibited and it is unlawful for any
person to create, contribute to or operate an open dump or for any
landowner to allow an open dump to exist on the landowner's
property unless that open dump is under a compliance schedule approved by the director. Such compliance schedule shall contain
an enforceable sequence of actions leading to compliance and shall
not exceed two years. Open dumps operated prior to the first day
of April, one thousand nine hundred eighty-eight, by a landowner or
tenant for the disposal of solid waste generated by the landowner
or tenant at his or her residence or farm are not a violation of
this section if such open dump did not constitute a violation of
law on the first day of January, one thousand nine hundred eighty-
eight, and unauthorized dumps which were created by unknown persons
do not constitute a violation of this section:
Provided, That no
person shall contribute additional solid waste to any such dump
after the first day of April, one thousand nine hundred
eighty-eight, except that the owners of the land on which
unauthorized dumps have been or are being made are not liable for
such unauthorized dumping unless such landowners refuse to
cooperate with the division in stopping such unauthorized dumping.
(b) It is unlawful for any person, unless the person holds a
valid permit from the division to install, establish, construct,
modify, operate or abandon any solid waste facility. All approved
solid waste facilities shall be installed, established,
constructed, modified, operated or abandoned in accordance with
this article, plans, specifications, orders, instructions and rules
in effect.
(c) Any permit issued under this article shall be issued in
compliance with the requirements of this article, its rules and
article eleven of this chapter and the rules promulgated thereunder, so that only a single permit is required of a solid
waste facility under these two articles. Each permit issued under
this article shall have a fixed term not to exceed five years:
Provided, That the director may administratively extend a permit
beyond its five-year term if the approved solid waste facility is
in compliance with this article, its rules and article eleven of
this chapter and the rules promulgated thereunder:
Provided,
however, That such administrative extension may not be for more
than one year. Upon expiration of a permit, renewal permits may be
issued in compliance with rules promulgated by the director.
(d) For existing solid waste facilities which formerly held
division of health permits which expired by law and for which
complete permit applications for new permits pursuant to this
article were submitted as required by law, the division may enter
an administrative order to govern solid waste activities at such
facilities, which may include a compliance schedule, consistent
with the requirements of the division's solid waste management
rules, to be effective until final action is taken to issue or deny
a permit for such facility pursuant to this article, or until
further order of the division.
(e) No person may dispose in the state of any solid waste,
whether such waste originates in state or out of state, in a manner
which endangers the environment or the public health, safety or
welfare as determined by the director:
Provided, That the
carcasses of dead animals may be disposed of in any solid waste
facility or in any other manner as provided for in this code. Upon request by the director, the commissioner of the bureau of public
health shall provide technical advice concerning the disposal of
solid waste or carcasses of dead animals within the state.
(f) A commercial solid waste facility shall first ensure that
the disposal needs of the wasteshed in which it is located are met.
If one or more local solid waste authorities in the wasteshed in
which the facility is located determine that the present or future
disposal needs of the wasteshed are not being, or will not be, met
by the commercial solid waste facility, such authorities may apply
to the director to modify the applicable permit. The director, in
consultation with the solid waste management board, may then modify
the applicable permit in order to reduce the total monthly tonnage
of out of wasteshed waste the facility is permitted to accept by an
amount that shall not exceed the total monthly tonnage necessary to
ensure the disposal needs of the wasteshed in which the facility is
located.
(g) In addition to all the requirements of this article and
the rules promulgated hereunder, a permit to construct a new
commercial solid waste facility
or to expand the spatial area of an
existing facility, not otherwise allowed by an existing permit, may
not be issued unless
the public service commission the solid waste
management board has granted a certificate of need, as provided in
section
one-c, article two, chapter twenty-four six-a, article
three, chapter twenty-two-c of this code.
If the director approves
a permit or permit modification, the certificate of need shall
become a part of the permit and all conditions contained in the certificate of need shall be conditions of the permit and may be
enforced by the division in accordance with the provisions of this
article.
(h) The director shall promulgate legislative rules pursuant
to article three, chapter twenty-nine-a of this code which reflect
the purposes as set forth in this section.
ARTICLE 16. SOLID WASTE LANDFILL CLOSURE ASSISTANCE PROGRAM.
§22-16-12. Solid waste facility closure cost assistance fund;
closure extension; reporting requirements.
(a) The "closure cost assistance fund" is continued as a
special revenue account in the state treasury. The fund shall
operate as a special fund whereby all deposits and payments thereto
do not expire to the general revenue fund, but shall remain in such
account and be available for expenditure in the succeeding fiscal
year. Separate subaccounts may be established within the special
account for the purpose of identification of various revenue
resources and payment of specific obligations.
(b) Interest earned on any money in the fund shall be
deposited to the credit of the fund.
(c) The fund consists of the following:
(1) Moneys collected and deposited in the state treasury which
are specifically designated by acts of the Legislature for
inclusion in the fund, including moneys collected and deposited
into the fund pursuant to section four of this article;
(2) Contributions, grants and gifts from any source, both
public and private, which may be used by the director for any project or projects;
(3) Amounts repaid by permittees pursuant to section eighteen,
article fifteen of this chapter; and
(4) All interest earned on investments made by the state from
moneys deposited in this fund.
(d) The solid waste management board, upon written approval of
the director, has the authority to pledge all or such part of the
revenues paid into the closure cost assistance fund as may be
needed to meet the requirements of any revenue bond issue or issues
of the solid waste management board authorized by this article,
including the payment of principal of, interest and redemption
premium, if any, on such revenue bonds and the establishing and
maintaining of a reserve fund or funds for the payment of the
principal of, interest and redemption premium, if any, on such
revenue bond issue or issues when other moneys pledged may be
insufficient therefor. Any pledge of moneys in the closure cost
assistance fund for revenue bonds shall be a prior and superior
charge on such fund over the use of any of the moneys in such fund
to pay for the cost of any project on a cash basis. Expenditures
from the fund, other than for the retirement of revenue bonds, may
only be made in accordance with the provisions of this article.
(e) The amounts deposited in the fund may be expended only on
the cost of projects as provided for in sections three and fifteen
of this article, as provided in subsection (f) of this section and
for payment of bonds and notes issued pursuant to section five of
this article:
Provided, That no more than two percent of the annual deposits to such fund may be used for administrative
purposes.
(f) Notwithstanding any provision of this article, upon
request of the solid waste management board, and with the approval
of the projects by the director of the division of environmental
protection, the director may pledge and place into escrow accounts
up to an aggregate of two million dollars of the fund to satisfy
two years debt service requirement that permittees of
publicly-owned landfills and transfer stations are required to meet
in order to obtain loans. Pledges shall be made on a
project-by-project basis, may not exceed five hundred thousand
dollars for a project and shall be made available after loan
commitments are received. The director may pledge funds for a loan
only when the following conditions are met:
(1) The proceeds of the loan are used only to perform
construction of a transfer station or a composite liner system that
is required to meet the provisions of title forty-seven, series
thirty-eight, solid waste management rules;
(2) The permittee dedicates all yearly debt service revenue,
as determined by the public service commission, to meet the
repayment schedule of the loan, before it uses available revenue
for any other purpose; and
(3) That any funds pledged may only be paid to the lender if
the permittee is in default on the loan.
(g) Any landfills which were ordered to close by the
thirty-first day of December, one thousand nine hundred ninety-four, and which have been granted a certificate of need
pursuant to the provisions of subsection (b), section one- c,
article two, chapter twenty-four of this code or section one- i of
said article are hereby granted a closure extension until the first
day of January, one thousand nine hundred ninety-six: Provided,
That no landfill which closed on or before the thirtieth day of
September, one thousand nine hundred ninety-four, shall be eligible
for such an extension.
(h) (g) The department of environmental protection is required
to file, by the first day of January of each ensuing year, an
annual report with the joint committee on government and finance
providing details on the manner in which the landfill closure
assistance funds were expended for the prior fiscal year.
CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS, AUTHORITIES,
COMMISSIONS AND COMPACTS.
ARTICLE 3. SOLID WASTE MANAGEMENT BOARD.
§22C-3-6a. Certificate of need required for siting certain new
commercial solid waste facilities.
(a) Any person seeking to site a new commercial solid waste
disposal facility, transfer station, mixed waste processing
facility, or sludge processing facility within this state after the
effective of this section shall first apply to the solid waste
management board for a certificate of need in accordance with the
criteria set forth in this section. The board shall grant or deny
a certificate of need within ninety days from the filing of a
complete application by the applicant. A certificate of need shall state whether there exists a need for such a solid waste
facility to be located within this state and may not include
conditions, exclusions or additional requirements.
(b) For purposes of subsection (a) of this section, a complete
application consists of the following and notwithstanding any other
provision of this chapter to the contrary, such information
contained in the application provided by the applicant is not
confidential and is subject to disclosure pursuant to the
provisions of chapter twenty-nine-b of this code:
(1) The names of the owners or operators of the facility
including any officer, director, manager, person owning five
percent or more interest or other person conducting or managing the
affairs of the applicant or of the proposed facility;
(2) The proposed or existing location of the facility;
(3) A description of the geographic area to be served by the
facility;
(4) The anticipated total number of citizens to be served by
the facility;
(5) The average monthly tonnage of solid waste to be disposed
of by the facility;
(6) The total monthly tonnage of solid waste for which the
facility is seeking a permit from the division of environmental
protection; and
(7) The anticipated lifespan and closure date of the facility.
(c) In considering whether to grant a certificate of need the
board shall consider the following factors:
(1) The total tonnage of solid waste generated within the
county;
(2) The total tonnage of solid waste generated within the
wasteshed;
(3) The current capacity and lifespan of other like kind solid
waste facilities located within the county, if any;
(4) The current capacity and lifespan of other like kind solid
waste facilities located within the wasteshed, if any;
(5) The current capacity and lifespan of other like kind solid
waste facilities located within this state or within a fifty-mile
radius of the proposed site;
(6) The lifespan of the proposed facility; and
(7) The cost of transporting solid waste from the points of
generation within the county or wasteshed and the disposal
facility.
(d) The board may not consider or make inquiry into the
following:
(1) Environmental conditions of existing facilities;
(2) Ongoing or unresolved enforcement proceedings under the
auspices of the division of environmental protection or pending in
any state or federal court or the fitness of the owners or
operators of existing facilities;
(3) The appropriateness of the location of the facility with
respect to the inquiries attendant to county or regional solid
waste authority certificate of site approval pursuant to the
jurisdiction of the authorities set forth in article four, chapter twenty-two-c of this code; or
(4) Any matter within the jurisdiction of the division of
environmental protection.
(e) Upon the decision of the board to grant or deny a
certificate of need, the board shall immediately notify the public
service commission and the division of environmental protection.
(f) Any party aggrieved by a decision of the board granting
or denying a certificate of need may obtain judicial review thereof
by appealing the decision of the board to the circuit court of
Kanawha County or the circuit court of the county in which the
proposed facility is to be located in the manner prescribed in
chapter twenty-nine-a of this code.
(g) As of the effective date of this section, existing
certificates of need shall be void except for the continued
application of disposal rates that are not inconsistent with the
provisions of section one-f, article two, chapter twenty-four of
this code. All matters of certificates of need pending before the
public service commission shall be dismissed unless those matters
include a request by the commercial solid waste facility for a
change in disposal rates.
ARTICLE 4. COUNTY AND REGIONAL SOLID WASTE AUTHORITIES.
§22C-4-26. Approval of new Class A facilities by solid waste
authorities and county commissions, and referendum.
(a) Except as provided below with respect to Class B
facilities, from and after the tenth day of March, one thousand
nine hundred ninety, in order to obtain approval to operate a new Class A facility, an applicant shall:
(1) File an application for a certificate of need with, and
obtain approval from, the public service commission in the manner
specified in section one-c, article two, chapter twenty-four of
this code and in section thirteen, article fifteen, chapter
twenty-two of this code;
(2)(1) File an application for a certificate of site approval
with, and obtain approval from, the county or regional solid waste
authority for the county or counties in which the facility is
proposed. Such application shall be submitted on forms prescribed
by the solid waste management board. The county or regional solid
waste authority shall act on such application and either grant or
deny it within thirty days after the application is determined by
the county or regional solid waste authority to be filed in a
completed manner; and
(3) (2) File an application for approval of operation as a
Class A facility with, and obtain approval from, the county
commission for each county in which the facility would be located.
Each county commission shall act on such application and either
grant or deny it within thirty days after the application is
determined by the county commission to be filed in a completed
manner. The county commission shall hold at least one public
hearing and shall solicit public comment prior to acting on the
application. The county commission shall provide notice of such
public hearing with publication of a Class II legal advertisement
in a qualified newspaper serving the county where the proposed site is situated.
(b) If applications are approved pursuant to subdivisions
(1),
(2) and (3) (1) and (2), subsection (a) of this section, each
county commission shall order that a referendum be placed upon the
ballot not less than fifty-six days before the next primary,
general or other countywide election.
(1) Such referendum is to determine whether it is the will of
the voters of the county that a Class A facility be located in the
county. Any such election shall be held at the voting precincts
established for holding primary or general elections. All of the
provisions of the general election laws, when not in conflict with
the provisions of this article, apply to voting and elections
hereunder, insofar as practicable.
(2) The ballot, or the ballot labels where voting machines are
used, shall have printed thereon substantially the following:
"Shall a solid waste facility handling of between ten and
thirty thousand tons of solid waste per month be located within
_____________________ County, West Virginia?
( )For the facility
( )Against the facility
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question is
against the siting of a Class A facility within the county, then
the county commission, the county or regional solid waste authority
and the division of environmental protection shall not proceed any
further with the application. If a majority of the legal votes cast upon the question is for siting a Class A facility within the
county, then the application process as set forth in this article
and article fifteen, chapter twenty-two of this code may proceed:
Provided, That such vote is not binding on and does not require the
division of environmental protection to issue a permit. If the
majority of the legal votes cast is against the question, the
question may be submitted to a vote at any subsequent election in
the manner herein specified:
Provided, however, That the question
may not be resubmitted to a vote until two years after the date of
the previous referendum.
(c) After the tenth day of March, one thousand nine hundred
ninety, the public referendum established in this section is
mandatory for every new Class A facility applicant which will
accept between ten and thirty thousand tons of solid waste per
month. A new Class A facility applicant means any applicant for a
state solid waste permit for a Class A facility who has not prior
to the tenth day of March, one thousand nine hundred ninety,
obtained a certificate of site approval for a Class A facility from
the county or regional solid waste authority to establish,
construct or operate a Class A facility, and also means any
applicant for a state solid waste permit for a Class A facility if
a legal challenge to the issuance of a certificate of site approval
by the county or regional solid waste authority or the county
commission approval for the proposed Class A facility was pending
in any state or federal court as of the first day of September, one
thousand nine hundred ninety-one.
§22C-4-27. Approval of conversion from Class B facility to Class
A facility
.
(a) From and after the eighteenth day of October, one thousand
nine hundred ninety-one, in order to obtain approval to operate as
a Class A facility at a site previously permitted to operate as a
Class B facility, an applicant shall:
(1) File an application for a certificate of need with, and
obtain approval from, the public service commission in the manner
specified in section one-c, article two, chapter twenty-four, and
in section thirteen, article fifteen, chapter twenty-two of this
code;
(2)(1) File an application for a certificate of site approval
with, and obtain approval from, the county or regional solid waste
authority for the county or counties in which the facility is
located or proposed. Such application shall be submitted on forms
prescribed by the solid waste management board. The county or
regional solid waste authority shall act on such application and
either grant or deny it within thirty days after the application is
determined by the county or regional solid waste authority to be
filed in a completed manner; and
(3) (2) File an application for approval of operation as a
Class A facility with, and obtain approval from, the county
commission for each county in which the facility is or would be
located. Each county commission shall act on such application and
either grant or deny it within thirty days after the application is
determined by the county commission to be filed in a completed manner. The county commission shall hold at least one public
hearing and shall solicit public comment prior to acting on the
application. The county commission shall provide notice of such
public hearing with publication of a Class II legal advertisement
in a qualified newspaper serving the county where the proposed site
is situated.
(b) If applications are approved pursuant to subdivisions
(1),
(2) and (3) (1) and (2), subsection (a) of this section, the county
or regional solid waste authority shall publish a Class II legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, in a newspaper of general
circulation in the counties wherein the solid waste facility is
located. Upon the written petition of registered voters residing
in the county equal to not less than fifteen percent of the number
of votes cast within the county for governor at the preceding
gubernatorial election, which petition shall be filed with the
county commission within sixty days after the last date of
publication of the notice provided in this section, the county
commission shall, upon verification of the required number of
signatures on the petition, and not less than fifty-six days before
the election, order a referendum be placed upon the ballot. Any
referendum conducted pursuant to this section shall be held at the
next primary, general or other countywide election.
(1) Such referendum is to determine whether it is the will of
the voters of the county that the Class B facility be converted to
a Class A facility. Any election at which such question of locating a solid waste facility is voted upon shall be held at the
voting precincts established for holding primary or general
elections. All of the provisions of the general election laws,
when not in conflict with the provisions of this article, apply to
voting and elections hereunder, insofar as practicable. The
secretary of state shall prescribe the form of the petition which
shall include the printed name, address and date of birth of each
person whose signature appears on the petition.
(2) The ballot, or the ballot labels where voting machines are
used, shall have printed thereon substantially the following:
"Shall the _________________ solid waste facility, located
within _________________ County, West Virginia, be permitted to
handle between ten and thirty thousand tons of solid waste per
month?
( )For the facility
( )Against the facility
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question is
against the facility, then the county commission, the county or
regional solid waste authority and the division of environmental
protection shall not proceed any further with the application. If
a majority of the legal votes cast upon the question be for the
facility, then the application process as set forth in this article
and article fifteen, chapter twenty-two of this code may proceed:
Provided, That such vote is not binding on nor does it require the
division of environmental protection to modify the permit. If the majority of the legal votes cast is against the question, the
question may be submitted to a vote at any subsequent election in
the manner herein specified:
Provided, however, That the question
may not be resubmitted to a vote until two years after the date of
the previous referendum.
§22C-4-28. Approval of increase in maximum allowable monthly
tonnage of Class A facilities.
(a) From and after the eighteenth day of October, one thousand
nine hundred ninety-one, in order to increase the maximum allowable
monthly tonnage handled at a Class A facility by an aggregate
amount of more than ten percent of the facility's permit tonnage
limitation within a two-year period, the permittee shall:
(1) File an application for approval with, and obtain approval
from, the county or regional solid waste authority for the county
or counties in which the facility is located. Such application
shall be a modification of the Class A facility's certificate of
site approval. The county or regional solid waste authority shall
act upon such application and either grant or deny it within thirty
days after the application is determined by the county or regional
solid waste authority to be filed in a completed manner;
(2) File an application for approval with, and obtain approval
from, the public service commission to modify the certificate of
need in the manner set forth in section one-c, article two, chapter
twenty-four of this code; and
(3) (2) File an application for a major permit modification
with the division of environmental protection.
(b) If applications are approved pursuant to
subdivisions (1)
and (2) subdivision (1), subsection (a) of this section and an
application has been filed pursuant to subdivision
(3) (2),
subsection (a) of this section, the county or regional solid waste
authority shall publish a Class II legal advertisement in
compliance with the provisions of article three, chapter fifty-nine
of this code, in a newspaper of general circulation in the counties
wherein the solid waste facility is located. Upon the written
petition of registered voters residing in the county equal to not
less than fifteen percent of the number of votes cast within the
county for governor at the preceding gubernatorial election, which
petition shall be filed with the county commission within sixty
days after the last date of publication of the notice provided in
this section, the county commission shall, upon verification of the
required number of signatures on the petition, and not less than
fifty-six days before the election, order a referendum be placed
upon the ballot. Any referendum conducted pursuant to this section
shall be held at the next primary, general or other countywide
election.
(1) Such referendum is to determine whether it is the will of
the voters of the county that the Class A facility applicant be
permitted to increase the maximum tonnage allowed to be handled at
the facility not to exceed thirty thousand tons per month. Any
election at which such question is voted upon shall be held at the
voting precincts established for holding primary or general
elections. All of the provisions of the general election laws, when not in conflict with the provisions of this article, apply to
voting and elections hereunder, insofar as practicable. The
secretary of state shall prescribe the form of the petition which
shall include the printed name, address and date of birth of each
person whose signature appears on the petition.
(2) The ballot, or the ballot labels where voting machines are
used, shall have printed thereon substantially the following:
"Shall the _____________ solid waste facility located within
_____________ County, West Virginia, be allowed to handle a maximum
of _____________ solid waste per month?
( )For the increase in maximum allowable tonnage
( )Against the increase in maximum allowable tonnage
(Place a cross mark in the square opposite your choice.)"
(3) If a majority of the legal votes cast upon the question is
against allowing the Class A facility to increase the maximum
tonnage of solid waste allowed to be handled per month at the
facility, then the division of environmental protection shall not
proceed to modify the Class A facility permit to increase the
maximum allowable tonnage. If a majority of the legal votes cast
upon the question is for allowing the Class A facility to increase
the maximum tonnage of solid waste allowed to be handled per month
at such facility, then the application process as set forth in this
article and article fifteen, chapter twenty-two of this code may
proceed:
Provided, That such vote is not binding on nor does it
require the county or regional solid waste authority or the
division of environmental protection to approve an application to modify the permit. If the majority of the legal votes cast is
against the question, that does not prevent the question from again
being submitted to a vote at any subsequent election in the manner
provided for in this section:
Provided, however, That an applicant
may not resubmit the question for a vote prior to a period of two
years from the date of the previous referendum herein described.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 1. GENERAL PROVISIONS.
§24-1-1b. Supplemental rule for reorganization.
The public service commission shall, by general order, create
a division within its staff which shall provide legal, engineering,
financial and accounting advice and assistance to public service
districts in operational, financial and regulatory matters, and may
perform or participate in the studies required under section one-b,
article thirteen-a, chapter sixteen of this code.
The public service district division created by general order
of the public service commission pursuant to the prior enactment of
this section is hereby continued as a separate division within the
public service commission, to be known as the water and wastewater
division. The water and wastewater division shall provide
assistance to water and wastewater systems in technological,
financial, rate-review and regulatory matters.
§24-1-3. Commission continued; membership; chairman; compensation.
(a) The public service commission of West Virginia, heretofore
established, is continued and directed as provided by this chapter,
chapter twenty-four-a and chapter twenty-four-b of this code. After having conducted a performance audit through its joint
committee on government operations, pursuant to section nine,
article ten, chapter four of this code, the Legislature hereby
finds and declares that the public service commission should be
continued and reestablished. Accordingly, notwithstanding the
provisions of section four of said article, the public service
commission shall continue to exist until the first day of July, one
thousand nine hundred ninety-nine. The public service commission
may sue and be sued by that name. Such public service commission
shall consist of three members who shall be appointed by the
governor with the advice and consent of the Senate. The
commissioners shall be citizens and residents of this state and at
least one of them shall be duly licensed to practice law in West
Virginia, of not less than ten years' actual experience at the bar.
No more than two of said commissioners shall be members of the same
political party. Each commissioner shall, before entering upon the
duties of his office, take and subscribe to the oath provided by
section five, article IV of the constitution of this state, which
oath shall be filed in the office of the secretary of state. The
governor shall designate one of the commissioners to serve as
chairman at the governor's will and pleasure. The chairman shall
be the chief administrative officer of the commission. The
governor may remove any commissioner only for incompetency, neglect
of duty, gross immorality, malfeasance in office or violation of
subsection (c) of this section.
(b) The unexpired term of members of the public service commission at the time this subsection becomes effective are
continued through the thirtieth day of June, one thousand nine
hundred seventy-nine. In accordance with the provisions of
subsection (a) of this section, the governor shall appoint three
commissioners, one for a term of two years, one for a term of four
years and one for a term of six years, all the terms beginning on
the first day of July, one thousand nine hundred seventy-nine. All
future appointments are for terms of six years, except that an
appointment to fill a vacancy is for the unexpired term only. The
commissioners whose terms are terminated by the provisions of this
subsection are eligible for reappointment.
(c) No person while in the employ of, or holding any official
relation to, any public utility subject to the provisions of this
chapter, or holding any stocks or bonds thereof, or who is
pecuniarily interested therein, may serve as a member of the
commission or as an employee thereof. Nor may any such
commissioner be a candidate for or hold public office, or be a
member of any political committee, while acting as such
commissioner; nor may any commissioner or employee of said
commission receive any pass, free transportation or other thing of
value, either directly or indirectly, from any public utility or
motor carrier subject to the provisions of this chapter. In case
any of the commissioners becomes a candidate for any public office
or a member of any political committee, the governor shall remove
him from office and shall appoint a new commissioner to fill the
vacancy created.
(d) Effective the first day of November, one thousand nine
hundred ninety-one, and in light of the assignment of new,
substantial additional duties embracing new areas and fields of
activity under certain legislative enactments, each commissioner
shall receive an annual salary of sixty thousand dollars to be paid
in monthly installments from the special funds in such amounts as
follows:
(1) From the public service commission fund collected under
the provisions of section six, article three of this chapter,
forty-eight thousand dollars;
(2) From the public service commission motor carrier fund
collected under the provisions of section six, article six, chapter
twenty-four-a of this code, ten thousand dollars; and
(3) From the public service commission gas pipeline safety
fund collected under the provisions of section three, article five,
chapter twenty-four-b of this code, two thousand dollars.
In addition to this salary provided for all commissioners, the
chairman of the commission shall receive five thousand dollars per
annum to be paid in monthly installments from the public service
commission fund collected under the provisions of section six,
article three of this chapter on and after the first day of
January, one thousand nine hundred ninety-two.
(h) Effective the first day of January, one thousand nine
hundred ninety-six, and in light of the assignment of new,
substantial additional duties embracing new areas and fields of
activity under certain legislative enactments, each commissioner shall receive a salary of seventy thousand dollars a year to be
paid in monthly installments from the special funds in such amounts
as follows:
(1) From the public service commission fund collected under
the provisions of section six, article three of this chapter,
fifty-six thousand dollars;
(2) From the public service commission motor carrier fund
collected under the provisions of section six, article six, chapter
twenty-four-a of this code, eleven thousand seven hundred dollars;
and
(3) From the public service commission gas pipeline safety
fund collected under the provisions of section three, article five,
chapter twenty-four-b of this code, two thousand three hundred
dollars.
In addition to this salary provided for all commissioners, the
chairman of the commission shall receive five thousand dollars a
year to be paid in monthly installments from the public service
commission fund collected under the provisions of section six,
article three of this chapter, on and after the first day of
January, one thousand nine hundred ninety-six.
ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.
§24-2-1. Jurisdiction of commission; waiver of jurisdiction.
The jurisdiction of the commission shall extend to all public
utilities in this state, and shall include any utility engaged in
any of the following public services: Common carriage of
passengers or goods, whether by air, railroad, street railroad, motor or otherwise, by express or otherwise, by land, water or air,
whether wholly or partly by land, water or air; transportation of
oil, gas or water by pipeline; transportation of coal and its
derivatives and all mixtures and combinations thereof with other
substances by pipeline; sleeping car or parlor car services;
transmission of messages by telephone, telegraph or radio;
generation and transmission of electrical energy by hydroelectric
or other utilities for service to the public, whether directly or
through a distributing utility supplying water, gas or electricity,
by municipalities or others; sewer systems servicing twenty-five or
more persons or firms other than the owner of the sewer systems;
any public service district created under the provisions of article
thirteen-a chapter sixteen of this code; toll bridges, wharves,
ferries;
solid waste facilities; and any other public service:
Provided, That natural gas producers who provide natural gas
service to not more than twenty-five residential customers are
exempt from the jurisdiction of the commission with regard to the
provisions of such residential service:
Provided, however, That
upon request of any of the customers of such natural gas
producers, the commission may, upon good cause being shown,
exercise such authority as the commission may deem appropriate
over the operation, rates and charges of such producer and for such
length of time as the commission may consider to be proper:
Provided further, That the jurisdiction the commission may exercise
over the rates and charges of municipally operated public
utilities is limited to that authority granted the commission in section four-b of this article: And provided further, That the
decision-making authority granted to the commission in sections
four and four-a of this article shall, in respect to an application
filed by a public service district, be delegated to a single
hearing examiner appointed from the commission staff, which hearing
examiner shall be authorized to carry out all decision making
duties assigned to the commission by said sections, and to issue
orders having the full force and effect of orders of the
commission.
The commission may, upon application, waive its jurisdiction
and allow a utility operating in an adjoining state to provide
service in West Virginia when:
(1) An area of West Virginia cannot be practicably and
economically served by a utility licensed to operate within the
state of West Virginia;
(2) Said area can be provided with utility service by a
utility which operates in a state adjoining West Virginia;
(3) The utility operating in the adjoining state is regulated
by a regulatory agency or commission of the adjoining state; and
(4) The number of customers to be served is not substantial.
The rates the out-of-state utility charges West Virginia
customers shall be the same as the rate the utility is duly
authorized to charge in the adjoining jurisdiction. The
commission, in the case of any such utility, may revoke its waiver
of jurisdiction for good cause.
§24-2-1b. Additional jurisdiction of commission.
(a) Effective the first day of July, one thousand nine hundred
eighty-eight, in addition to all other powers and duties of the
commission as defined in this article, the commission
, to the
extent provided in section one-f of this article, shall establish,
prescribe and enforce rates and fees charged by commercial solid
waste facilities, as defined in section two, article fifteen,
chapter twenty-two of this code, that are owned or under the direct
control of persons or entities who are regulated under section
five, article two, chapter twenty-four-a of this code. The
commission shall establish, prescribe and enforce rules providing
for the safe transportation of solid waste in the state.
(b) The public service commission shall study the feasibility of
incorporating and adopting guidelines for solid waste collection
fees that are based upon the volume of solid waste generated by any
person. This report shall be submitted to the governor and the
members of the Legislature on or before the first day of January,
one thousand nine hundred ninety-three.
§24-2-1f. Jurisdiction of commission over solid waste facilities.
(a) Effective the first day of July, one thousand nine hundred
eighty-nine, in addition to all other powers and duties of the
commission as defined in this article, the The commission shall
establish, prescribe and enforce rates and fees charged by
commercial solid waste facilities, as defined in subsection (b),
section two, article four, chapter twenty-two-c of this code
,
except for rates and fees pertaining to the disposal of wastes
other than municipal solid waste and except for rates and fees established under contracts negotiated and entered into between
commercial solid waste facilities and municipalities, haulers of
solid waste, commercial or individual customers, or other persons
or entities choosing to enter into such contracts.
(b) In exercising its jurisdiction under subsection (a) of
this section, the commission may not employ future test periods or
other mechanisms which result in the basing of rates on forecasts,
projections, or assumptions rather than on historical data adjusted
for known and measurable changes. Rates shall be set to allow the
recovery of a fair and reasonable net rate of return on capital
and/or revenue consistent with similar national industry rates of
return. This section shall not be construed to require
reconsideration of existing approved rates for solid waste
facilities.
§24-2-3. General power of commission with respect to rates.
The commission shall have power to enforce, originate,
establish, change and promulgate tariffs, rates, joint rates, tolls
and schedules for all public utilities:
Provided, That the
commission may exercise such rate authority over municipal
utilities
, other than the water or wastewater systems of Class III
cities and Class IV towns or villages, only under the circumstances
set forth in section four-b of this article. And whenever the
commission shall, after hearing, find any existing rates, tolls,
tariffs, joint rates or schedules unjust, unreasonable,
insufficient or unjustly discriminatory or otherwise in violation
of any of the provisions of this chapter, the commission shall by an order fix reasonable rates, joint rates, tariffs, tolls or
schedules to be followed in the future in lieu of those found to be
unjust, unreasonable, insufficient or unjustly discriminatory or
otherwise in violation of any provisions of law, and the said
commission, in fixing the rate of any railroad company, may fix a
fair, reasonable and just rate to be charged on any branch line
thereof, independent of the rate charged on the main line of such
railroad.
In determining just and reasonable rates, the commission may
audit and investigate management practices and policies, or have
performed an audit and investigation of such practices and
policies, in order to determine whether the utility is operating
with efficiency and is utilizing sound management practices. The
commission shall adopt rules and regulations setting forth the
scope, frequency and application of such audits and investigations
to the various utilities subject to its jurisdiction. The
commission may include the cost of conducting the management audit
in the cost of service of the utility.
In determining just and reasonable rates, the commission shall
investigate and review transactions between utilities and
affiliates. The commission shall limit the total return of the
utility to a level which, when considered with the level of profit
or return the affiliate earns on transactions with the utility, is
just and reasonable.
§24-2-4b. Procedures for changing rates of electric and natural
gas cooperatives, local exchange services of telephone cooperatives and municipally operated public utilities.
(a) The rates and charges of electric cooperatives, natural
gas cooperatives and municipally operated public utilities, except
for municipally operated commercial solid waste facilities as
defined in section two, article fifteen, chapter twenty-two of this
code,
and except for water and wastewater systems of Class III
cities and Class IV towns or villages, and the rates and charges
for local exchange services provided by telephone cooperatives are
not subject to the rate approval provisions of section four or
four-a of this article, but are subject to the limited rate
provisions of this section.
(b) All rates and charges set by electric cooperatives,
natural gas cooperatives and municipally operated public utilities
,
except for water and wastewater systems of Class III cities and
Class IV towns or villages, and all rates and charges for local
exchange services set by telephone cooperatives shall be just,
reasonable, applied without unjust discrimination or preference and
based primarily on the costs of providing these services. Such
rates and charges shall be adopted by the electric, natural gas or
telephone cooperative's governing board and in the case of the
municipally operated public utility
, except for water or wastewater
systems of Class III cities and Class IV towns or villages, by
municipal ordinance to be effective not sooner than forty-five days
after adoption:
Provided, That notice of intent to effect a rate
change shall be specified on the monthly billing statement of the
customers of such utility for the month next preceding the month in which the rate change is to become effective or the utility shall
give its customers, and in the case of a cooperative, its
customers, members and stockholders, such other reasonable notices
as will allow filing of timely objections to such rate change.
Such rates and charges shall be filed with the commission together
with such information showing the basis of such rates and charges
and such other information as the commission considers necessary.
Any change in such rates and charges with updated information shall
be filed with the commission. If a petition, as set out in
subdivision (1), (2) or (3), subsection (c) of this section, is
received and the electric cooperative, natural gas cooperative,
telephone cooperative or municipality
, other than a Class III city
or Class IV towns or villages operating a water or wastewater
system, has failed to file with the commission such rates and
charges with such information showing the basis of rates and
charges and such other information as the commission considers
necessary, the suspension period limitation of one hundred twenty
days and the one hundred day period limitation for issuance of an
order by a hearing examiner, as contained in subsections (d) and
(e) of this section, is tolled until the necessary information is
filed. The electric cooperative, natural gas cooperative,
telephone cooperative or municipality
, other than a Class III city
or Class IV towns or villages operating a water or wastewater
system, shall set the date when any new rate or charge is to go
into effect.
(c) The commission shall review and approve or modify such rates upon the filing of a petition within thirty days of the
adoption of the ordinance or resolution changing said rates or
charges by:
(1) Any customer aggrieved by the changed rates or charges who
presents to the commission a petition signed by not less than
twenty-five percent of the customers served by such municipally
operated public utility,
other than a water or wastewater system
operated by a Class III city or Class IV town or village, or
twenty-five percent of the membership of the electric, natural gas
or telephone cooperative residing within the state; or
(2) Any customer who is served by a municipally operated
public utility
, other than a water or wastewater system of a Class
III city or Class IV town or village, and who resides outside the
corporate limits and who is affected by the change in said rates or
charges and who presents to the commission a petition alleging
discrimination between customers within and without the municipal
boundaries. Said petition shall be accompanied by evidence of
discrimination; or
(3) Any customer or group of customers who are affected by
said change in rates who reside within the municipal boundaries and
who present a petition to the commission alleging discrimination
between said customer or group of customers and other customers of
the municipal utility. Said petition shall be accompanied by
evidence of discrimination.
(d) (1) The filing of a petition with the commission signed by
not less than twenty-five percent of the customers served by the municipally operated public utility,
other than a water or
wastewater system of a Class III city or Class IV town or village,
or twenty-five percent of the membership of the electric, natural
gas or telephone cooperative residing within the state, under
subdivision (1), subsection (c) of this section, shall suspend the
adoption of the rate change contained in the ordinance or
resolution for a period of one hundred twenty days from the date
said rates or charges would otherwise go into effect, or until an
order is issued as provided herein.
(2) Upon sufficient showing of discrimination by customers
outside the municipal boundaries, or a customer or a group of
customers within the municipal boundaries, under a petition filed
under subdivision (2) or (3), subsection (c) of this section, the
commission shall suspend the adoption of the rate change contained
in the ordinance for a period of one hundred twenty days from the
date said rates or charges would otherwise go into effect or until
an order is issued as provided herein.
(e) The commission shall forthwith appoint a hearing examiner
from its staff to review the grievances raised by the petitioners.
Said hearing examiner shall conduct a public hearing, and shall
within one hundred days from the date the said rates or charges
would otherwise go into effect, unless otherwise tolled as provided
in subsection (b) of this section, issue an order approving,
disapproving or modifying, in whole or in part, the rates or
charges imposed by the electric, natural gas or telephone
cooperative or by the municipally operated public utility
, other than a water or wastewater system operated by a Class III city or
Class IV municipality, pursuant to this section.
(f) Upon receipt of a petition for review of the rates under
the provisions of subsection (c) of this section, the commission
may exercise the power granted to it under the provisions of
section three of this article. The commission may determine the
method by which such rates are reviewed and may grant and conduct
a de novo hearing on the matter if the customer, electric, natural
gas or telephone cooperative or municipality
, other than a water or
wastewater system operated by a Class III city or Class IV town or
village, requests such a hearing.
(g) The commission may, upon petition by a municipality
, other
than a Class III city or Class IV town or village operating a
water or wastewater systems, or electric, natural gas or telephone
cooperative, allow an interim or emergency rate to take effect,
subject to future modification, if it is determined that such
interim or emergency rate is necessary to protect the municipality
from financial hardship and if that financial hardship is
attributable solely to the purchase of the utility commodity sold.
In such cases, the commission may waive the forty-five-day waiting
period provided for in subsection (b) of this section and the one
hundred twenty-day suspension period provided for in subsection (d)
of this section.
(h) Notwithstanding any other provision, the commission has no
authority or responsibility with regard to the regulation of rates,
income, services or contracts by municipally operated public utilities
, other than water and wastewater systems operated by
Class III cities and Class IV towns or villages, for services which
are transmitted and sold outside of the state of West Virginia.
NOTE: The purpose of this bill is to include Class III cities
and Class IV towns and villages within the Public Service
Commission jurisdiction for purposes of regulation of water and
wastewater systems and to transfer the jurisdiction of the Public
Service Commission over Certificates of Need for commercial solid
waste facilities to the Solid Waste Management Board. The bill
also makes an adjustment to the salaries of the members of the
Public Service Commission.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added. Section six-a, article three, chapter twenty-two-c is new
and therefore strike-throughs and underlines have been omitted.
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