Senate Bill No. 602
(By Senators Wooton, Ball, Dittmar, Kessler,
Oliverio, Schoonover and Snyder)
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[Originating in the Committee on the Judiciary;
reported February 18, 1998.]
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A BILL to amend and reenact section five-a, article eleven, chapter
twenty of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact section eleven,
article fifteen, chapter twenty-two of said code; and to amend
and reenact section four, article sixteen of said chapter, all
relating generally to the collection and disbursement of
recycling and solid waste assessment fees; establishing
recycling assessment fee; providing for collection of the fee,
providing recordkeeping; providing for recycling fee in rate
approved by the public service commission for regulated motor
carriers; defining terms; providing for exemptions;
establishing procedures and administration of the funds;
providing for criminal penalties; providing for the dedication
of the proceeds; establishing a solid waste assessment fee;
providing for collection of the fee, providing for
recordkeeping; providing for solid waste assessment fee in
rate approved by the public service commission for regulated motor carriers; defining terms; providing for exemptions;
establishing procedures and administration of the funds;
providing for criminal penalties; providing for the dedication
of the proceeds; requiring solid waste management fees to be
used by and for the division of environmental protection; and
allowing the director the discretion to transfer up to fifty
cents per ton of the proceeds to the solid waste enforcement
fund.
Be it enacted by the Legislature of West Virginia:
That section five-a, article eleven, chapter twenty of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; that section eleven, article
fifteen, chapter twenty-two of said code be amended and reenacted;
and that section four, article sixteen of said chapter be amended
and reenacted, all to read as follows:
ARTICLE 11. WEST VIRGINIA RECYCLING PROGRAM.
§20-11-5a. Recycling assessment fee; regulated motor carriers;
dedication of proceeds; criminal penalties.
(a) Imposition.
-- Effective the first day of January, one
thousand nine hundred ninety-two, a recycling assessment fee is
hereby levied and imposed upon the disposal of solid waste at all
solid waste disposal facilities in this state, to be collected at
the rate of two dollars per ton or part thereof of solid waste.
The fee imposed by this section is in addition to all other fees
levied by law.
(b) Collection, return, payment and records.
-- The person
disposing of solid waste at the solid waste disposal facility shall
pay the fee imposed by this section, whether or not such person
owns the solid waste, and the fee shall be collected by the
operator of the solid waste facility who shall remit it to the tax
commissioner.
(1) The fee imposed by this section accrues at the time the
solid waste is delivered to the solid waste disposal facility.
(2) The operator shall remit the fee imposed by this section
to the tax commissioner on or before the fifteenth day of the month
next succeeding the month in which the fee accrued. Upon
remittance of the fee, the operator shall be required to file
returns on forms and in the manner as prescribed by the tax
commissioner.
(3) The operator shall account to the state for all fees
collected under this section and shall hold them in trust for the
state until they are remitted to the tax commissioner.
(4) If any operator fails to collect the fee imposed by this
section, he or she is personally liable for such amount as he or
she failed to collect, plus applicable additions to tax, penalties
and interest imposed by article ten, chapter eleven of this code.
(5) Whenever any operator fails to collect, truthfully account
for, remit the fee or file returns with the fee as required in this
section, the tax commissioner may serve written notice requiring
such operator to collect the fees which become collectible after service of such notice, to deposit such fees in a bank approved by
the tax commissioner, in a separate account, in trust for and
payable to the tax commissioner, and to keep the amount of such
fees in such account until remitted to the tax commissioner. Such
notice remains in effect until a notice of cancellation is served
on the operator or owner by the tax commissioner.
(6) Whenever the owner of a solid waste disposal facility
leases the solid waste facility to an operator, the operator is
primarily liable for collection and remittance of the fee imposed
by this section and the owner is secondarily liable for remittance
of the fee imposed by this section. However, if the operator
fails, in whole or in part, to discharge his or her obligations
under this section, the owner and the operator of the solid waste
facility are jointly and severally responsible and liable for
compliance with the provisions of this section.
(7) If the operator or owner responsible for collecting the
fee imposed by this section is an association or corporation, the
officers thereof are liable, jointly and severally, for any default
on the part of the association or corporation, and payment of the
fee and any additions to tax, penalties and interest imposed by
article ten, chapter eleven of this code may be enforced against
them and against the association or corporation which they
represent.
(8) Each person disposing of solid waste at a solid waste
disposal facility and each person required to collect the fee imposed by this section shall keep complete and accurate records in
such form as the tax commissioner may require in accordance with
the rules of the tax commissioner.
(c) Regulated motor carriers.
-- The fee imposed by this
section is a necessary and reasonable cost for motor carriers of
solid waste subject to the jurisdiction of the public service
commission under chapter twenty-four-a of this code.
Notwithstanding any provision of law to the contrary, upon the
filing of a petition by an affected motor carrier, the public
service commission shall, within fourteen days, reflect the cost of
said fee in said motor carrier's rates for solid waste removal
service. In calculating the amount of said fee to said motor
carrier, the commission shall use the national average of pounds of
waste generated per person per day as determined by the United
States Environmental Protection Agency.
(d) Definitions.
-- For purposes of this section:
"Solid waste disposal facility" means any approved solid waste
facility or open dump in this state and includes a transfer station
when the solid waste collected at the transfer station is not
finally disposed of at a solid waste facility within this state
that collects the fee imposed by this section.
Nothing herein authorizes in any way the creation or operation
of or contribution to an open dump.
(e) Exemptions.
-- The following transactions are exempt from
the fee imposed by this section:
(1) Disposal of solid waste at a solid waste facility by the
person who owns, operates or leases the solid waste disposal
facility if it is used exclusively to dispose of waste originally
produced by such person in such person's regular business or
personal activities or by persons utilizing the facility on a
cost-sharing or nonprofit basis;
(2) Reuse or recycling of any solid waste; and
(3) Disposal of residential solid waste by an individual not
in the business of hauling or disposing of solid waste on such days
and times as designated by the director of the division of
environmental protection by rule as exempt from the fee imposed
pursuant to section eleven, article fifteen, chapter twenty-two of
this code.
(f) Procedure and administration.
-- Notwithstanding section
three, article ten, chapter eleven of this code, each and every
provision of the "West Virginia Tax Procedure and Administration
Act" set forth in article ten, chapter eleven of this code applies
to the fee imposed by this section with like effect as if said act
were applicable only to the fee imposed by this section and were
set forth in extenso herein.
(g) Criminal penalties.
-- Notwithstanding section two,
article nine, chapter eleven of this code, sections three through
seventeen, article nine, chapter eleven of this code apply to the
fee imposed by this section with like effect as if said sections
were the only fee imposed by this section and were set forth in extenso herein.
(h) Dedication of proceeds.
-- The proceeds of the fee
collected pursuant to this section shall be deposited by the tax
commissioner, at least monthly, in a special revenue account
designated as the "Recycling Assistance Fund" which is hereby
created. The director of the division of natural resources shall
allocate the proceeds of the said fund as follows:
(1) Fifty percent of the total proceeds shall be provided in
grants to assist municipalities, counties and other interested
parties in the planning and implementation of recycling programs,
public education programs, and recycling market procurement
efforts, established pursuant to this article. The director of the
division of natural resources shall promulgate rules, in accordance
with chapter twenty-nine-a of this code, containing application
procedures, guidelines for eligibility, reporting requirements and
other matters deemed appropriate;
(2) Twelve and one-half percent of the total proceeds shall be
expended for personal services and benefit expenses of full-time
salaried conservation officers;
(3) Twelve and one-half percent of the total proceeds shall be
transferred to the West Virginia development office, to be used in
assisting counties and municipalities in the design and
construction of wastewater treatment facilities;
(4) Twelve and one-half percent of the total proceeds shall be
transferred to the solid waste reclamation and environmental response fund, established pursuant to section eleven, article
fifteen, chapter twenty-two of this code, to be expended by the
division of environmental protection to assist in the funding of
the pollution prevention and open dumps program (PPOD) which
encourages recycling, reuse, waste reduction and clean-up
activities; and
(5) Twelve and one-half percent of the total proceeds shall be
deposited in the hazardous waste emergency response fund
established in article nineteen, chapter twenty-two of this code.
(i) Severability.
-- If any provision of this section or the
application thereof is for any reason adjudged by any court of
competent jurisdiction to be invalid, such judgment does not
affect, impair or invalidate the remainder of this section, but is
confined in its operation to the provision thereof directly
involved in the controversy in which such judgment is rendered, and
the applicability of such provision to other persons or
circumstances is not affected thereby.
(j) Effective date.
-- This section is effective on the first
day of January, one thousand nine hundred ninety-two.
ARTICLE 15. SOLID WASTE MANAGEMENT ACT.
§22-15-11. Solid waste assessment fee; penalties.
(a) Imposition.
-- A solid waste assessment fee is hereby
imposed upon the disposal of solid waste at any solid waste
disposal facility in this state in the amount of one dollar and
seventy-five cents per ton or part thereof of solid waste. The fee imposed by this section is in addition to all other fees and taxes
levied by law and shall be added to and constitute part of any
other fee charged by the operator or owner of the solid waste
disposal facility.
(b) Collection, return, payment and records.
-- The person
disposing of solid waste at the solid waste disposal facility shall
pay the fee imposed by this section, whether or not such person
owns the solid waste, and the fee shall be collected by the
operator of the solid waste facility who shall remit it to the tax
commissioner.
(1) The fee imposed by this section accrues at the time the
solid waste is delivered to the solid waste disposal facility.
(2) The operator shall remit the fee imposed by this section
to the tax commissioner on or before the fifteenth day of the month
next succeeding the month in which the fee accrued. Upon
remittance of the fee, the operator is required to file returns on
forms and in the manner as prescribed by the tax commissioner.
(3) The operator shall account to the state for all fees
collected under this section and shall hold them in trust for the
state until remitted to the tax commissioner.
(4) If any operator fails to collect the fee imposed by this
section, he or she is personally liable for such amount as he or
she failed to collect, plus applicable additions to tax, penalties
and interest imposed by article ten, chapter eleven of this code.
(5) Whenever any operator fails to collect, truthfully account for, remit the fee or file returns with the fee as required in this
section, the tax commissioner may serve written notice requiring
such operator to collect the fees which become collectible after
service of such notice, to deposit such fees in a bank approved by
the tax commissioner, in a separate account, in trust for and
payable to the tax commissioner, and to keep the amount of such
fees in such account until remitted to the tax commissioner. Such
notice remains in effect until a notice of cancellation is served
on the operator or owner by the tax commissioner.
(6) Whenever the owner of a solid waste disposal facility
leases the solid waste facility to an operator, the operator is
primarily liable for collection and remittance of the fee imposed
by this section and the owner is secondarily liable for remittance
of the fee imposed by this section. However, if the operator
fails, in whole or in part, to discharge his or her obligations
under this section, the owner and the operator of the solid waste
facility are jointly and severally responsible and liable for
compliance with the provisions of this section.
(7) If the operator or owner responsible for collecting the
fee imposed by this section is an association or corporation, the
officers thereof are liable, jointly and severally, for any default
on the part of the association or corporation, and payment of the
fee and any additions to tax, penalties and interest imposed by
article ten, chapter eleven of this code may be enforced against
them as against the association or corporation which they represent.
(8) Each person disposing of solid waste at a solid waste
disposal facility and each person required to collect the fee
imposed by this section shall keep complete and accurate records in
such form as the tax commissioner may require in accordance with
the rules of the tax commissioner.
(c) Regulated motor carriers.
-- The fee imposed by this
section and section twenty-two, article five, chapter seven of this
code is considered a necessary and reasonable cost for motor
carriers of solid waste subject to the jurisdiction of the public
service commission under chapter twenty-four-a of this code.
Notwithstanding any provision of law to the contrary, upon the
filing of a petition by an affected motor carrier, the public
service commission shall, within fourteen days, reflect the cost of
said fee in said motor carrier's rates for solid waste removal
service. In calculating the amount of said fee to said motor
carrier, the commission shall use the national average of pounds of
waste generated per person per day as determined by the United
States Environmental Protection Agency.
(d) Definition of solid waste disposal facility.
-- For
purposes of this section, the term "solid waste disposal facility"
means any approved solid waste facility or open dump in this state,
and includes a transfer station when the solid waste collected at
the transfer station is not finally disposed of at a solid waste
disposal facility within this state that collects the fee imposed by this section. Nothing herein authorizes in any way the creation
or operation of or contribution to an open dump.
(e) Exemptions.
-- The following transactions are exempt from
the fee imposed by this section:
(1) Disposal of solid waste at a solid waste disposal facility
by the person who owns, operates or leases the solid waste disposal
facility if the facility is used exclusively to dispose of waste
originally produced by such person in such person's regular
business or personal activities or by persons utilizing the
facility on a cost-sharing or nonprofit basis;
(2) Reuse or recycling of any solid waste;
(3) Disposal of residential solid waste by an individual not
in the business of hauling or disposing of solid waste on such days
and times as designated by the director is exempt from the solid
waste assessment fee; and
(4) Disposal of solid waste at a solid waste disposal facility
by a commercial recycler which disposes of thirty percent or less
of the total waste it processes for recycling. In order to qualify
for this exemption each commercial recycler must keep accurate
records of incoming and outgoing waste by weight. Such records
must be made available to the appropriate inspectors from the
division, upon request.
(f) Procedure and administration.
-- Notwithstanding section
three, article ten, chapter eleven of this code, each and every
provision of the "West Virginia Tax Procedure and Administration Act" set forth in article ten, chapter eleven of this code shall
apply to the fee imposed by this section with like effect as if
said act were applicable only to the fee imposed by this section
and were set forth in extenso herein.
(g) Criminal penalties.
-- Notwithstanding section two,
article nine, chapter eleven of this code, sections three through
seventeen, article nine, chapter eleven of this code shall apply to
the fee imposed by this section with like effect as if said
sections were applicable only to the fee imposed by this section
and were set forth in extenso herein.
(h) Dedication of proceeds.
-- The net proceeds of the fee
collected by the tax commissioner pursuant to this section shall be
deposited at least monthly in an account designated by the
director. The director shall allocate twenty-five cents for each
ton of solid waste disposed of in this state upon which the fee
imposed by this section is collected and shall deposit the total
amount so allocated into the "Solid Waste Reclamation and
Environmental Response Fund" to be expended for the purposes
hereinafter specified. The first one million dollars of the net
proceeds of the fee imposed by this section collected in each
fiscal year shall be deposited in the "Solid Waste Enforcement
Fund" and expended for the purposes hereinafter specified. The
next two hundred fifty thousand dollars of the net proceeds of the
fee imposed by this section collected in each fiscal year shall be
deposited in the "Solid Waste Management Board Reserve Fund", and expended for the purposes hereinafter specified: Provided,
That in
any year in which the water development authority determines that
the solid waste management board reserve fund is adequate to defer
any contingent liability of the fund, the water development
authority shall so certify to the director and the director shall
then cause no less than fifty thousand dollars nor more than two
hundred fifty thousand dollars to be deposited to the fund:
Provided, however,
That in any year in which the water development
authority determines that the solid waste management board reserve
fund is inadequate to defer any contingent liability of the fund,
the water development authority shall so certify to the director
and the director shall then cause not less than two hundred fifty
thousand dollars nor more than five hundred thousand dollars to be
deposited in the fund: Provided further,
That if a facility owned
or operated by the state of West Virginia is denied site approval
by a county or regional solid waste authority, and if such denial
contributes, in whole or in part, to a default, or drawing upon a
reserve fund, on any indebtedness issued or approved by the solid
waste management board, then in that event the solid waste
management board or its fiscal agent may withhold all or any part
of any funds which would otherwise be directed to such county or
regional authority and shall deposit such withheld funds in the
appropriate reserve fund. The director shall allocate the
remainder, if any, of said net proceeds among the following three
special revenue accounts for the purpose of maintaining a reasonable balance in each special revenue account, which are
hereby continued in the state treasury:
(1) The "Solid Waste Enforcement Fund" which shall be expended
by the director for administration, inspection, enforcement and
permitting activities established pursuant to this article:
Provided, That no funds from this account shall be used for any
purpose other than solid waste management activities by and within
the division of environmental protection;
(2) The "Solid Waste Management Board Reserve Fund" which
shall be exclusively dedicated to providing a reserve fund for the
issuance and security of solid waste disposal revenue bonds issued
by the solid waste management board pursuant to article three,
chapter twenty-two-c of this code;
(3) The "Solid Waste Reclamation and Environmental Response
Fund" which may be expended by the director for the purposes of
reclamation, cleanup and remedial actions intended to minimize or
mitigate damage to the environment, natural resources, public water
supplies, water resources and the public health, safety and welfare
which may result from open dumps or solid waste not disposed of in
a proper or lawful manner.
(i) Findings.
-- In addition to the purposes and legislative
findings set forth in section one of this article, the Legislature
finds as follows:
(1) In-state and out-of-state locations producing solid waste
should bear the responsibility of disposing of said solid waste or compensate other localities for costs associated with accepting
such solid waste;
(2) The costs of maintaining and policing the streets and
highways of the state and its communities are increased by long
distance transportation of large volumes of solid waste; and
(3) Local approved solid waste facilities are being
prematurely depleted by solid waste originating from other
locations.
ARTICLE 16. SOLID WASTE LANDFILL CLOSURE ASSISTANCE PROGRAM.
§22-16-4. Solid waste assessment fee; penalties.
(a) Imposition.
-- A solid waste assessment fee is hereby
levied and imposed upon the disposal of solid waste at any solid
waste disposal facility in this state in the amount of three
dollars and fifty cents per ton or like ratio on any part thereof
of solid waste, except as provided in subsection (e) of this
section: Provided,
That any solid waste disposal facility may
deduct from this assessment fee an amount, not to exceed the fee,
equal to the amount that such facility is required by the public
service commission to set aside for the purpose of closure of that
portion of the facility required to close by article fifteen of
this chapter. The fee imposed by this section is in addition to
all other fees and taxes levied by law and shall be added to and
constitute part of any other fee charged by the operator or owner
of the solid waste disposal facility.
(b) Collection, return, payment and records.
-- The person
disposing of solid waste at the solid waste disposal facility shall
pay the fee imposed by this section, whether or not such person
owns the solid waste, and the fee shall be collected by the
operator of the solid waste facility who shall remit it to the tax
commissioner.
(1) The fee imposed by this section accrues at the time the
solid waste is delivered to the solid waste disposal facility.
(2) The operator shall remit the fee imposed by this section
to the tax commissioner on or before the fifteenth day of the month
next succeeding the month in which the fee accrued. Upon
remittance of the fee, the operator shall file returns on forms and
in the manner prescribed by the tax commissioner.
(3) The operator shall account to the state for all fees
collected under this section and shall hold them in trust for the
state until they are remitted to the tax commissioner.
(4) If any operator fails to collect the fee imposed by this
section, he or she is personally liable for such amount as he or
she failed to collect, plus applicable additions to tax, penalties
and interest imposed by article ten, chapter eleven of this code.
(5) Whenever any operator fails to collect, truthfully account
for, remit the fee or file returns with the fee as required in this
section, the tax commissioner may serve written notice requiring
such operator to collect the fees which become collectible after
service of such notice, to deposit such fees in a bank approved by the tax commissioner, in a separate account, in trust for and
payable to the tax commissioner, and to keep the amount of such
fees in such account until remitted to the tax commissioner. Such
notice shall remain in effect until a notice of cancellation is
served on the operator or owner by the tax commissioner.
(6) Whenever the owner of a solid waste disposal facility
leases the solid waste facility to an operator, the operator is
primarily liable for collection and remittance of the fee imposed
by this section and the owner is secondarily liable for remittance
of the fee imposed by this section. However, if the operator
fails, in whole or in part, to discharge his or her obligations
under this section, the owner and the operator of the solid waste
facility are jointly and severally responsible and liable for
compliance with the provisions of this section.
(7) If the operator or owner responsible for collecting the
fee imposed by this section is an association or corporation, the
officers thereof are liable, jointly and severally, for any default
on the part of the association or corporation, and payment of the
fee and any additions to tax, penalties and interest imposed by
article ten, chapter eleven of this code may be enforced against
them as against the association or corporation which they
represent.
(8) Each person disposing of solid waste at a solid waste
disposal facility and each person required to collect the fee
imposed by this section shall keep complete and accurate records in such form as the tax commissioner may require in accordance with
the rules of the tax commissioner.
(c) Regulated motor carriers.
-- The fee imposed by this
section is a necessary and reasonable cost for motor carriers of
solid waste subject to the jurisdiction of the public service
commission under chapter twenty-four-a of this code.
Notwithstanding any provision of law to the contrary, upon the
filing of a petition by an affected motor carrier, the public
service commission shall, within fourteen days, reflect the cost of
said fee in said motor carrier's rates for solid waste removal
service. In calculating the amount of said fee to said motor
carrier, the commission shall use the national average of pounds of
waste generated per person per day as determined by the United
States Environmental Protection Agency.
(d) Definitions.
-- For purposes of this section, the term
"solid waste disposal facility" means any approved solid waste
facility or open dump in this state, and includes a transfer
station when the solid waste collected at the transfer station is
not finally disposed of at a solid waste facility within this state
that collects the fee imposed by this section. Nothing in this
section authorizes in any way the creation or operation of or
contribution to an open dump.
(e) Exemptions.
-- The following transactions are exempt from
the fee imposed by this section:
(1) Disposal of solid waste at a solid waste disposal facility by the person who owns, operates or leases the solid waste disposal
facility if the facility is used exclusively to dispose of waste
originally produced by such person in such person's regular
business or personal activities or by persons utilizing the
facility on a cost-sharing or nonprofit basis;
(2) Reuse or recycling of any solid waste;
(3) Disposal of residential solid waste by an individual not
in the business of hauling or disposing of solid waste on such days
and times as designated by the director as exempt from the solid
waste assessment fee; and
(4) Disposal of solid waste at a solid waste disposal facility
by a commercial recycler which disposes of thirty percent or less
of the total waste it processes for recycling. In order to qualify
for this exemption each commercial recycler must keep accurate
records of incoming and outgoing waste by weight. Such records
must be made available to the appropriate inspectors from the
division, upon request.
(f) Procedure and administration.
-- Notwithstanding section
three, article ten, chapter eleven of this code, each and every
provision of the "West Virginia Tax Procedure and Administration
Act" set forth in article ten, chapter eleven of this code applies
to the fee imposed by this section with like effect as if said act
were applicable only to the fee imposed by this section and were
set forth in extenso herein.
(g) Criminal penalties.
-- Notwithstanding section two, article nine, chapter eleven of this code, sections three through
seventeen, article nine, chapter eleven of this code apply to the
fee imposed by this section with like effect as if said sections
were applicable only to the fee imposed by this section and were
set forth in extenso herein.
(h) Dedication of proceeds.
-- (1) The proceeds of the fee
collected pursuant to this section shall be deposited in the
closure cost assistance fund established pursuant to section twelve
of this article: Provided, That the director may transfer up to
fifty cents for each ton of solid waste disposed of in this state
upon which the fee imposed by this section is collected on or after
the first day of July, one thousand nine hundred ninety-eight
to
the solid waste enforcement fund established pursuant to section
eleven, article fifteen of this chapter.
(2) Fifty percent of the proceeds of the fee collected
pursuant to this article in excess of thirty thousand tons per
month from any landfill which is permitted to accept in excess of
thirty thousand tons per month pursuant to section nine, article
fifteen of this chapter shall be remitted, at least monthly, to the
county commission in the county in which the landfill is located.
The remainder of the proceeds of the fee collected pursuant to this
section shall be deposited in the closure cost assistance fund
established pursuant to section twelve of this article.
NOTE: The purpose of this bill is to transfer fifty cents of
the per ton fee collected for recycling grants to the solid waste enforcement fund and to allow the director of DEP to transfer fifty
cents per ton fee landfill closure assistance on an as needed basis
to the solid waste enforcement fund.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.