Bill Text: WV HB4505 | 2022 | Regular Session | Introduced
Bill Title: Abolishing the West Virginia Solid Waste Management Board
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2022-02-02 - To House Energy and Manufacturing [HB4505 Detail]
Download: West_Virginia-2022-HB4505-Introduced.html
WEST virginia legislature
2022 regular session
Introduced
House Bill 4505
By Delegate Hanshaw (Mr. Speaker)
By Request of the Executive
Introduced February 02, 2022; Referred to the Committee on Energy and Manufacturing then Government Organization]
A BILL to repeal §22C-3-22 of the Code of West Virginia, 1931, as amended; and to amend and reenact §22C-3-1, §22C-3-3, §22C-3-4, §22C-3-5, §22C-3-6, §22C-3-7, §22C-3-8, §22C-3-9, §22C-3-10, §22C-3-11, §22C-3-12, §22C-3-13, §22C-3-14, §22C-3-15, §22C-3-16, §22C-3-17, §22C-3-19, §22C-3-20, §22C-3-21, §22C-3-23, §22C-3-24, and §22C-3-26 of said code, all relating to abolishing the West Virginia Solid Waste Management Board and transferring its functions, rights, powers, and duties to the Department of Environmental Protection; declaring that the department is bound by actions previously taken by the Solid Waste Management Board; removing or repealing obsolete provisions relating to the former board; and correcting and revising citations to related sections of said code.
Be it enacted by the Legislature of West Virginia:
ARTICLE 3. SOLID
WASTE MANAGEMENT BOARD ADMINISTRATION OF SOLID WASTE MANAGEMENT.
§22C-3-1. Short title.
This article shall be known
and cited as the “Administration of Solid Waste Management Board Act.”
§22C-3-3. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(1) “Board” means the
solid waste management board provided for in section four of this article, the
duties, powers, responsibilities and functions of which are specified in this
article
(2) “Bond” or “solid waste disposal revenue bond” means a
revenue bond or note issued by the solid waste management board, previously
known as the West Virginia resource recovery--solid waste disposal authority
Department of Environmental Protection, to effect the intents and
purposes of this article.
(3) “Construction” includes reconstruction, enlargement,
improvement and providing furnishings or equipment for a solid waste disposal
project.
(4) “Cost” means, as applied to solid waste disposal
projects, the cost of their acquisition and construction; the cost of
acquisition of all land, rights-of-way, property, rights, easements, franchise
rights and interests required by the board Department of Environmental
Protection for such acquisition and construction; the cost of demolishing
or removing any buildings or structures on land so acquired, including the cost
of acquiring any land to which such buildings or structures may be moved; the
cost of diverting highways, interchange of highways and access roads to private
property, including the cost of land or easements therefor; the cost of all
machinery, furnishings and equipment; all financing charges and interest prior
to and during construction and for no more than eighteen months after
completion of construction; the cost of all engineering services and all
expenses of research and development with respect to solid waste facilities;
the cost of all legal services and expenses; the cost of all plans, specifications,
surveys and estimates of cost and revenues; all working capital and other
expenses necessary or incident to determining the feasibility or practicability
of acquiring or constructing any such project; all administrative expenses and
such other expenses as may be necessary or incident to the acquisition or
construction of the project; the financing of such acquisition or construction,
including the amount authorized in the resolution of the board Department
of Environmental Protection providing for the issuance of solid waste
disposal revenue bonds to be paid into any special funds from the proceeds of
such bonds; and the financing of the placing of any such project in operation.
Any obligation or expenses incurred by any governmental agency, with the
approval of the board Department of Environmental Protection, for
surveys, borings, preparation of plans and specifications and other engineering
services in connection with the acquisition or construction of a project are a
part of the cost of such project and shall be reimbursed out of the proceeds of
loans or solid waste disposal revenue bonds as authorized by the provisions of
this article.
(5) “Governmental agency” means the state government or
any agency, department, division or unit thereof; counties; municipalities;
watershed improvement districts; soil conservation districts; sanitary
districts; public service districts; drainage districts; regional governmental
authorities and any other governmental agency, entity, political subdivision,
public corporation or agency having the authority to acquire, construct or
operate solid waste facilities; the United States government or any agency,
department, division or unit thereof; and any agency, commission or authority
established pursuant to an interstate compact or agreement.
(6) “Industrial waste” means any solid waste substance
resulting from or incidental to any process of industry, manufacturing, trade
or business, or from or incidental to the development, processing or recovery
of any natural resource.
(7) “Owner” includes all persons, partnerships or
governmental agencies having any title or interest in any property rights,
easements and interests authorized to be acquired by this article.
(8) “Person” means any public or private corporation,
institution, association, firm or company organized or existing under the laws
of this or any other state or country; the United States or the State of West
Virginia; governmental agency; political subdivision; county commission;
municipality; industry; sanitary district; public service district; drainage district;
soil conservation district; solid waste disposal shed district; partnership;
trust; estate; individual; group of individuals acting individually or as a
group; or any other legal entity.
(9) “Pollution” means the discharge, release, escape or
deposit, directly or indirectly, of solid waste of whatever kind or character,
on lands or in waters in the state in an uncontrolled, unregulated or
unapproved manner.
(10) “Revenue” means any money or thing of value collected
by, or paid to, the solid waste management board Department of
Environmental Protection as rent, use fee, service charge or other charge
for use of, or in connection with, any solid waste disposal project, or as
principal of or interest, charges or other fees on loans, or any other collections
on loans made by the solid waste management board Department of
Environmental Protection to governmental agencies to finance, in whole or
in part, the acquisition or construction of any solid waste development project
or projects, or other money or property which is received and may be expended
for or pledged as revenues pursuant to this article.
(11) “Solid waste” means any garbage, paper, litter,
refuse, cans, bottles, waste processed for the express purpose of incineration,
sludge from a waste treatment plant, water supply treatment plant or air
pollution control facility, other discarded material, including offensive or
unsightly matter, solid, liquid, semisolid or contained liquid or gaseous
material resulting from industrial, commercial, mining or community activities
but does not include solid or dissolved material in sewage, or solid or
dissolved materials in irrigation return flows or industrial discharges which
are point sources and have permits under article five-a, chapter twenty of this
code, or source, special nuclear or byproduct material as defined by the Atomic
Energy Act of 1954, as amended, including any nuclear or byproduct material
considered by federal standards to be below regulatory concern, or a hazardous
waste either identified or listed under article five-e, chapter twenty of this
code, or refuse, slurry, overburden or other waste or material resulting from
coal-fired electric power or steam generation, the exploration, development,
production, storage and recovery of coal, oil and gas, and other mineral
resources placed or disposed of at a facility which is regulated under chapter
twenty-two, twenty-two-a or twenty-two-b of this code, so long as such
placement or disposal is in conformance with a permit issued pursuant to said chapters.
“Solid waste” does not include materials which are recycled by being used or
reused in an industrial process to make a product, as effective substitutes for
commercial products, or are returned to the original process as a substitute
for raw material feedstock.
(12) “Solid waste facility” means any system, facility,
land, contiguous land, improvements on land, structures or other appurtenances
or methods used for processing, recycling or disposing of solid waste,
including landfills, transfer stations, materials recovery facilities and other
such facilities not herein specified. Such facility is situated, for purposes
of this article, in the county where the majority of the spatial area of such
facility is located.
(13) “Solid waste disposal project” or “project” means any
solid waste facility, wastewater treatment plants, sewer treatment plants,
water and sewer systems and connecting pipelines the acquisition or
construction of which is authorized by the solid waste management board Department
of Environmental Protection or any acquisition or construction which is
financed, in whole or in part, from funds made available by grant or loan by,
or through, the board Department of Environmental Protection as
provided in this article, including all buildings and facilities which the board
Department of Environmental Protection deems necessary for the operation
of the project, together with all property, rights, easements and interests
which may be required for the operation of the project.
(14) “Solid waste disposal shed” or “shed” means a
geographical area which the solid waste management board Department
of Environmental Protection designates as provided in section eight of this
article for solid waste management.
(15) “Solid waste facility operator” means any person or
persons possessing or exercising operational, managerial or financial control
over a commercial solid waste facility, whether or not such person holds a
certificate of convenience and necessity or a permit for such facility.
§22C-3-4. Solid Abolition
of the solid waste management board; organization of board; appointment
and qualification of board members; their term of office, compensation and
expenses; director of board transfer of authority and responsibilities
to the Department of Environmental Protection.
The solid waste management
board is a governmental instrumentality of the state and a body corporate.
The exercise by the board of the powers conferred on it by this article and the
carrying out of its purposes and duties are essential governmental functions
and are for a public purpose hereby abolished. The Department of
Environmental Protection is charged with carrying out the requirements of this
article and assumes the rights and responsibilities formerly delegated to the solid
waste management board.
The board is composed of
seven members. The secretary of the Department of Health and Human Resources
and the director of the Division of Environmental Protection, or their
designees, are members ex officio of the board. The other five members of the
board are appointed by the Governor, by and with the advice and consent of the
Senate, for terms of one, two, three, four and five years, respectively. Two
appointees shall be persons having at least three years of professional
experience in solid waste management, civil engineering or regional planning
and three appointees shall be representatives of the general public. The
successor of each such appointed member shall be appointed for a term of five
years in the same manner the original appointments were made and so that the
representation on the board as set forth in this section is preserved, except
that any person appointed to fill a vacancy occurring prior to the expiration
of the term for which his or her predecessor was appointed shall be appointed
only for the remainder of such term. Each board member serves until the
appointment and qualification of his or her successor.
No more than three of
the appointed board members may at any one time be from the same congressional
district or belong to the same political party. No appointed board member may
be an officer or employee of the United States or this state. Appointed board
members may be reappointed to serve additional terms. All members of the board
shall be citizens of the state. Each appointed member of the board, before
entering upon his or her duties, shall comply with the requirements of article
one, chapter six of this code and give bond in the sum of $25,000. Appointed
members may be removed from the board only for the same causes as elective
state officers may be removed.
Annually the board shall
elect one of its appointed members as chair, another as vice chair and appoint
a secretary-treasurer, who need not be a member of the board. Four members of
the board are a quorum and the affirmative vote of four members is necessary
for any action taken by vote of the board. No vacancy in the membership of the
board impairs the rights of a quorum by such vote to exercise all the rights
and perform all the duties of the board. The person appointed as
secretary-treasurer shall give bond in the sum of $50,000. If a board member is
appointed as secretary-treasurer, he or she shall give bond in the sum of
$25,000 in addition to the bond required in the preceding paragraph.
The ex officio members
of the board shall not receive any compensation for serving as a board member.
Each of the five appointed members of the board shall be paid the same
compensation, and each member of the board shall be paid the expense
reimbursement, as is paid to members of the Legislature for their interim
duties as recommended by the citizens legislative compensation commission and
authorized by law for each day or portion thereof engaged in the discharge of
official duties. All such compensation and expenses incurred by board members
are payable solely from funds of the board or from funds appropriated for such
purpose by the Legislature and no liability or obligation shall be incurred by
the board beyond the extent to which moneys are available from funds of the
board or from such appropriation.
The board shall meet at least
four times annually and at any time upon the call of its chair or upon the
request in writing to the chair of four board members.
The board shall appoint
a director as its chief executive officer. The director shall have successfully
completed an undergraduate education and, in addition, shall have two years of
professional experience in solid waste management, civil engineering, public
administration or regional planning
§22C-3-5. Board to
designate and establish Designation and establishment of disposal
sheds; construction, maintenance, etc., of disposal projects; loan agreements;
compliance with federal and state law.
To accomplish the public
policy and purpose and to meet the responsibility of the state as set forth in
this article, the solid waste management board Department of
Environmental Protection shall designate and establish solid waste disposal
sheds and it may initiate, acquire, construct, maintain, repair and operate
solid waste disposal projects or cause the same to be operated pursuant to a
lease, sublease or agreement with any person or governmental agency; may make
loans and grants to persons and to governmental agencies for the acquisition or
construction of solid waste disposal projects by such persons and governmental agencies;
and may issue solid waste disposal revenue bonds of this state, payable solely
from revenues, to pay the cost of, or finance, in whole or in part, by loans to
governmental agencies, such projects. A solid waste disposal project shall not
be undertaken unless the board Department of Environmental Protection
determines that the project is consistent with federal law, with its solid
waste disposal shed plan, with the standards set by the State Environmental Quality
Board and the director cabinet secretary of the Division of
Environmental Protection for any waters of the state which may be affected
thereby, with the air quality standards set by the said director cabinet
secretary and with health standards set by the bureau of public health. Any
resolution of the board decision of the cabinet secretary
providing for acquiring or constructing such projects or for making a loan or
grant for such projects shall include a finding by the board Department
of Environmental Protection that such determinations have been made. A loan
agreement shall be entered into between the board and each governmental agency
to which a loan is made for the acquisition or construction of a solid waste
disposal project, which loan agreement shall include without limitation the following
provisions:
(1) The cost of such project, the amount of the loan, the terms of repayment of such loan and the security therefor, which may include, in addition to the pledge of all revenues from such project after a reasonable allowance for operation and maintenance expenses, a deed of trust or other appropriate security instrument creating a lien on such project;
(2) The specific purposes for which the proceeds of the loan shall be expended, the procedures as to the disbursement of loan proceeds and the duties and obligations imposed upon the governmental agency in regard to the construction or acquisition of the project;
(3) The agreement of the governmental agency to impose, collect, and, if required to repay the obligations of such governmental agency under the loan agreement, increase service charges from persons using said project, which service charges shall be pledged for the repayment of such loan together with all interest, fees and charges thereon and all other financial obligations of such governmental agency under the loan agreement;
(4) The agreement of the
governmental agency to comply with all applicable laws, rules and regulations
issued by the board Department of Environmental Protection or
other state, federal and local bodies in regard to the construction, operation,
maintenance and use of the project; and
(5) Such other provisions,
terms or conditions as the board Department of Environmental
Protection may reasonably require.
The board Department
of Environmental Protection shall comply with all of the provisions of
federal law and of §22-15-1 et seq. of this code
and any rules promulgated thereunder which pertain to solid waste collection
and disposal. Further, the Department of Environmental Protection is bound
by actions taken by the Solid Waste Management Board prior to the effective
date of this article.
§22C-3-6. Powers, duties
and responsibilities of board the Department of Environmental
Protection generally.
The solid waste management
board Department of Environmental Protection may exercise all powers
necessary or appropriate to carry out and effectuate its corporate the
purpose of this article. The board Department of Environmental
Protection may:
(1) Adopt, and from time to
time, amend and repeal bylaws necessary and proper for the regulation of its
affairs and the conduct of its business, and rules promulgated pursuant to
the provisions of chapter twenty-nine-a §29A-3-1 et seq. of this code,
to implement and make effective its powers and duties.
(2) Adopt an official
seal.
(3) Maintain a principal
office which shall be in Kanawha County, and, if necessary, regional suboffices
at locations properly designated or provided.
(4) (2) Sue and be sued in its own name and plead
and be impleaded in its own name, and particularly to enforce the obligations
and covenants made under §22C-3-10, §22C-3-11, and §22C-3-16 of this code. Any
actions against the board Department of Environmental Protection
pursuant to this article shall be brought in the circuit court of Kanawha
County.
(5) (3) Make loans and grants to persons and to
governmental agencies for the acquisition or construction of solid waste
disposal projects and adopt rules and procedures for making such loans and
grants.
(6) (4) Acquire, construct, reconstruct, enlarge,
improve, furnish, equip, maintain, repair, operate, lease, or rent to, or
contract for operation by a governmental agency or person, solid waste disposal
projects, and, in accordance with chapter twenty-nine-a §29A-3-1 et seq.
of this code, adopt rules for the use
of such projects.
(7) (5) Make available the use or services of any
solid waste disposal project to one or more persons, one or more governmental
agencies, or any combination thereof.
(8) (6) Issue solid waste disposal revenue bonds
and notes and solid waste disposal revenue refunding bonds of the state,
payable solely from revenues as provided in section ten of this article, unless
the bonds are refunded by refunding bond, for the purpose of paying all or any
part of the cost of acquiring, constructing, reconstructing, enlarging, improving,
furnishing, equipping, or repairing solid waste disposal projects, or making
loans to persons or to governmental agencies for the acquisition, design or
construction of solid waste disposal projects or parts thereof.
(9) (7) Acquire by gift or purchase, hold, and
dispose of real and personal property in the exercise of its powers and the
performance of its duties as set forth in this article.
(10) (8) Acquire in the name of the state, by
purchase or otherwise, on such terms and in such manner as it deems proper, or
by the exercise of the right of eminent domain in the manner provided in Chapter
54 of this code, such public or private lands, or parts thereof or rights
therein, rights-of-way, property, rights, easements and interests it deems
necessary for carrying out the provisions of this article, but excluding the
acquisition by the exercise of the right of eminent domain of any solid waste
facility operated under permits issued pursuant to the provisions of §22-15-1 et seq. of this code and owned by any person or governmental
agency. This article does not authorize the board Department of
Environmental Protection to take or disturb property or facilities
belonging to any public utility or to a common carrier, which property or
facilities are required for the proper and convenient operation of such public
utility or common carrier, unless provision is made for the restoration,
relocation or duplication of such property or facilities elsewhere at the sole
cost of the board Department of Environmental Protection.
(11) (9) Make and enter into all contracts and
agreements and execute all instruments necessary or incidental to the
performance of its duties and the execution of its powers pursuant to this
article. The Department of Environmental Protection shall follow its purchasing
rules contained in 60 CSR 10. When the cost under any such contract or
agreement, other than compensation for personal services, involves an
expenditure of more than $2,000, the board shall make a written contract with
the lowest responsible bidder after public notice published as a Class II legal
advertisement in compliance with the provisions of article three, chapter
fifty-nine of this code, the publication area for such publication to be the
county wherein the work is to be performed or which is affected by the
contract, which notice shall state the general character of the work and the
general character of the materials to be furnished, the place where plans and
specifications therefor may be examined and the time and place of receiving
bids. A contract or lease for the operation of a solid waste disposal project
constructed and owned by the board or an agreement for cooperation in the
acquisition or construction of a solid waste disposal project pursuant to
section sixteen of this article is not subject to the foregoing requirements
and the board may enter into such contract or lease or such agreement pursuant
to negotiation and upon such terms and conditions and for such period as it
finds to be reasonable and proper under the circumstances and in the best
interests of proper operation or of efficient acquisition or construction of
such project. The board may reject any and all bids. A bond with good and
sufficient surety, approved by the board, is required of all contractors in an
amount equal to at least fifty percent of the contract price, conditioned upon
the faithful performance of the contract
(12) (10) Employ managers, superintendents,
engineers, accountants, Auditors and other employees, and retain or contract
with consulting engineers, financial consultants, accounting experts,
architects, attorneys, and such other consultants and independent contractors
as are necessary in its judgment to carry out the provisions of this article,
and fix the compensation or fees thereof. All expenses thereof are payable
solely from the proceeds of solid waste disposal revenue bonds or notes issued
by the board Department of Environmental Protection, from
revenues and from funds appropriated for such purpose by the Legislature.
(13) (11) Receive and accept from any federal
agency, subject to the approval of the Governor, grants for or in aid of the
construction of any solid waste disposal project or for research and
development with respect to solid waste disposal projects and solid waste
disposal sheds and receive and accept from any source aid or contributions of
money, property, labor or other things of value, to be held, used and applied
only for the purposes for which such grants and contributions are made.
(14) (12) Engage in research and development with
respect to solid waste disposal projects and solid waste disposal sheds.
(15) (13) Purchase fire and extended coverage and
liability insurance for any solid waste disposal project, and for the
principal office and suboffices of the board, insurance protecting the board
and its officers and employees against liability, if any for damage to
property or injury to or death of persons arising from its operations and any
other insurance the board Department of Environmental Protection
may agree to provide under any resolution authorizing the issuance of solid
waste disposal revenue bonds.
(16) (14) Charge, alter, and collect rentals and
other charges for the use or services of any solid waste disposal project as
provided in this article, and charge and collect reasonable interest, fees, and
other charges in connection with the making and servicing of loans to
governmental agencies in furtherance of the purposes of this article.
(17) (15) Establish or increase reserves from
moneys received or to be received by the board Department of
Environmental Protection to secure or to pay the principal of and interest
on the bonds and notes issued by the board Department of
Environmental Protection pursuant to this article.
(18) (16) Do all acts necessary and proper to carry
out the powers expressly granted to the board Department of
Environmental Protection in this article.
§22C-3-7. Development of state solid waste management plan.
On or before the first
day of January, one thousand nine hundred ninety-three, the solid waste
management board Once every two
years beginning in 2023, the Department of Environmental Protection shall
prepare an overall state plan for the proper management of solid waste: Provided,
That such plan shall be consistent with the findings and purposes of §22C-4-1 et seq., §22-15-1 et
seq., and §22-15A-1 et seq. of
this code: Provided, however, That
such plan shall incorporate the county or regional plans developed pursuant to §22C-4-8
and §22C-4-24 of this code, as amended: Provided further, That such plan
shall be updated every two years following its initial preparation.
§22C-3-8. Power of board
the Department of Environmental Protection to collect service charges
and exercise other powers of governmental agencies in event of default; power
to require governmental agencies to enforce their rights.
In order to ensure that the
public purposes to be served by the board Department of Environmental
Protection may be properly carried out and in order to assure the timely
payment to the board Department of Environmental Protection of
all sums due and owing under loan agreements with governmental agencies, as
referred to in §22C-3-5 of this code, notwithstanding any provision to the
contrary elsewhere contained in this code, in event of any default by a
governmental agency under such a loan agreement, the board Department
of Environmental Protection has, and may, at its option, exercise the
following rights and remedies in addition to the rights and remedies conferred
by law or pursuant to said loan agreement:
(1) The board Department
of Environmental Protection may directly impose, in its own name and for
its own benefit, service charges determined by it to be necessary under the
circumstances upon all users of the solid waste disposal project to be acquired
or constructed pursuant to such loan agreement, and proceed directly to enforce
and collect such service charges, together with all necessary costs of such
enforcement and collection.
(2) The board Department
of Environmental Protection may exercise, in its own name or in the name of
and as agent for the governmental agency, all of the rights, authority, powers
and remedies of the governmental agency with respect to the solid waste
disposal project or which may be conferred upon the governmental agency by
statute, rule, regulation or judicial decision, including, without limitation,
all rights and remedies with respect to users of such solid waste disposal
project.
(3) The board Department
of Environmental Protection may, by civil action, mandamus or other
judicial or administrative proceeding, compel performance by such governmental
agency of all of the terms and conditions of such loan agreement including,
without limitation, the adjustment and increase of service charges as required
to repay the loan or otherwise satisfy the terms of such loan agreement, the
enforcement and collection of such service charges and the enforcement by such
governmental agency of all rights and remedies conferred by statute, rule,
regulation or judicial decision.
§22C-3-9. Development
and designation of solid waste disposal sheds by board Department of
Environmental Protection.
The board Department
of Environmental Protection shall maintain the division of the state into
geographical areas for solid waste management which shall be known as solid
waste disposal sheds. The board Department of Environmental
Protection may, from time to time, modify the boundaries of such sheds in a
manner consistent with the provisions of this section. Before it modifies the
sheds, the board Department of Environmental Protection shall
consult with the affected municipalities and county or regional solid waste
authorities and obtain and evaluate their opinions as to how many sheds there
should be and where their boundaries should be located. The board Department
of Environmental Protection shall then cause feasibility and cost studies
to be made in order for it to designate the solid waste disposal sheds within
each of which the most dependable, effective, efficient and economical solid
waste disposal projects may be established. The sheds shall not overlap and
shall cover the entire state.
The board Department
of Environmental Protection shall designate the sheds so that:
(1) The goal of providing solid waste collection and disposal service to each household, business and industry in the state can reasonably be achieved.
(2) The total cost of solid waste collection and disposal and the cost of solid waste collection and disposal within each shed and per person can be kept as low as possible.
(3) Solid waste collection and disposal service, facilities and projects can be integrated in the most feasible, dependable, effective, efficient and economical manner.
(4) No county is located in
more than one shed: Provided, That the board Department of
Environmental Protection may divide a county among two or more sheds upon
request of the appropriate county or regional solid waste authority.
The board Department
of Environmental Protection, in modifying the boundaries of solid waste
disposal sheds, is exempt from the provisions of Chapter 29A of this code.
§22C-3-10. Board The
Department of Environmental Protection empowered to issue solid waste
disposal revenue bonds, renewal notes and refunding bonds; requirements and
manner of such issuance.
The board Department
of Environmental Protection is hereby empowered to issue, from time to
time, solid waste disposal revenue bonds and notes of the state in such
principal amounts as the board Department of Environmental Protection
deems necessary to pay the cost of or finance, in whole or in part, by loans to
governmental agencies, one or more solid waste development projects, but the
aggregate amount of all issues of bonds and notes outstanding at one time for
all projects authorized hereunder shall not exceed that amount capable of being
serviced by revenues received from such projects, and shall not exceed in the
aggregate the sum of $100 million: Provided, That up to $25 million may
be issued for projects located or to be located in areas which lack adequate
sewer or water service and the area is in need of such services to comply with
federal requirements.
The board Department
of Environmental Protection may, from time to time, issue renewal notes,
issue bonds to pay such notes and whenever it deems refunding expedient, refund
any bonds by the issuance of solid waste disposal revenue refunding bonds of
the state. Except as may otherwise be expressly provided in this article or by
the board Department of Environmental Protection, every issue of
its bonds or notes are obligations of the board Department of
Environmental Protection payable out of the revenues and reserves created
for such purposes by the board Department of Environmental Protection,
which are pledged for such payment, without preference or priority of the first
bonds issued, subject only to any agreements with the holders of particular
bonds or notes pledging any particular revenues. Such pledge is valid and
binding from the time the pledge is made and the revenue so pledged and
thereafter received by the board Department of Environmental Protection
is immediately subject to the lien of such pledge without any physical delivery
thereof or further act and the lien of any such pledge is valid and binding as
against all parties having claims of any kind in tort, contract or otherwise
against the board Department of Environmental Protection
irrespective of whether such parties have notice thereof. All such bonds and
notes shall have all the qualities of negotiable instruments.
The bonds and notes shall
be authorized by resolution of the board Department of Environmental
Protection, bear such dates and mature at such times, in the case of any
such note or any renewals thereof not exceeding five years from the date of
issue of such original note, and in the case of any such bond not exceeding 50
years from the date of issue, as such resolution may provide. The bonds and
notes shall bear interest at such rate, be in such denominations, be in such
form, either coupon or registered, carry such registration privileges, be
payable in such medium of payment, at such place and be subject to such terms
of redemption as the board Department of Environmental Protection
may authorize. The board Department of Environmental Protection
may sell such bonds and notes at public or private sale, at the price the board
Department of Environmental Protection determines. The bonds and notes
shall be executed by the chair and vice chair of the board cabinet
secretary of the Department of Environmental Protection, both of whom
who may use facsimile or digital signatures. The official seal
of the board or a facsimile thereof shall be affixed thereto or printed thereon
and attested, manually or by facsimile signature, by the secretary-treasurer of
the board, and any coupons attached thereto shall bear the signature or
facsimile signature of the chair of the board. In case any officer whose
signature, or a facsimile of whose signature, appears on any bonds, notes or
coupons ceases to be such officer before delivery of such bonds or notes, such
signature or facsimile is nevertheless sufficient for all purposes the same as
if he or she had remained in office until such delivery and, in case the seal
of the board has been changed after a facsimile has been imprinted on such
bonds or notes, such facsimile seal will continue to be sufficient for all
purposes
Any resolution decision
by the cabinet secretary authorizing any bonds or notes or any issue
thereof may contain provisions (subject to such agreements with bondholders or
noteholders as may then exist, which provisions shall be a part of the contract
with the holders thereof) as to pledging all or any part of the revenues of the
board Department of Environmental Protection to secure the
payment of the bonds or notes or of any issue thereof; the use and disposition
of revenues of the board Department of Environmental Protection;
a covenant to fix, alter and collect rentals, fees, service charges and other
charges so that pledged revenues will be sufficient to pay the costs of
operation, maintenance and repairs, pay principal of and interest on bonds or
notes secured by the pledge of such revenues and provide such reserves as may
be required by the applicable resolution; the setting aside of reserve funds,
sinking funds, or replacement and improvement funds and the regulation and
disposition thereof; the crediting of the proceeds of the sale of bonds or
notes to and among the funds referred to or provided for in the resolution
authorizing the issuance of the bonds or notes; the use, lease, sale or other
disposition of any solid waste disposal project or any other assets of the board
Department of Environmental Protection; limitations on the purpose to
which the proceeds of sale of bonds or notes may be applied and pledging such
proceeds to secure the payment of the bonds or notes or of any issue thereof;
agreement of the board Department of Environmental Protection to
do all things necessary for the authorization, issuance and sale of bonds in
such amounts as may be necessary for the timely retirement of notes issued in
anticipation of the issuance of bonds; limitations on the issuance of
additional bonds or notes; the terms upon which additional bonds or notes may
be issued and secured; the refunding of outstanding bonds or notes; the
procedure, if any, by which the terms of any contract with bondholders or
noteholders may be amended or abrogated, the holders of which must consent
thereto, and the manner in which such consent may be given; limitations on the
amount of moneys to be expended by the board Department of
Environmental Protection for operating, administrative or other expenses of
the board Department of Environmental Protection; and any other
matters, of like or different character, which in any way affect the security
or protection of the bonds or notes.
In the event that the sum
of all reserves pledged to the payment of such bonds or notes is less than the
minimum reserve requirements established in any resolution or resolutions
authorizing the issuance of such bonds or notes, the chair of the board cabinet
secretary shall certify, on or before December 1, of each year, the amount
of such deficiency to the Governor of the state, for inclusion, if the Governor
shall so elect, of the amount of such deficiency in the budget to be submitted
to the next session of the Legislature for appropriation to the board Department
of Environmental Protection to be pledged for payment of such bonds or
notes: Provided, That the Legislature is not required to make any
appropriation so requested, and the amount of such deficiencies is not a debt
or liability of the state.
Neither the members of
the board cabinet secretary nor any person executing the bonds or
notes are liable personally on the bonds or notes or are subject to any
personal liability or accountability by reason of the issuance thereof.
§22C-3-11. Establishment of reserve funds, replacement and improvement funds and sinking funds; fiscal agent; purposes for use of bond proceeds; application of surplus.
(a) Before issuing any
revenue bonds in accordance with the provisions of this article, the board
Department of Environmental Protection shall consult with and be advised
by the water development authority as to the feasibility and necessity of the
proposed issuance of revenue bonds. Such consultation shall include, but not be
limited to, the following subjects:
(1) The relationship of the proposed issuance of revenue bonds to the statutory debt limitation provided for in section ten of this article;
(2) The degree to which the proceeds will be used for capital improvements in the form of real or personal property;
(3) The extent to which the proposed use of proceeds coincides with the purposes of this article;
(4) A weighing of the public benefit to be derived from the issuance as opposed to any private gain; and
(5) The sufficiency of
projected revenues available to the board Department of Environmental
Protection to pay the interest on indebtedness as it falls due, to
constitute a sinking fund for the payment thereof at maturity, or to discharge
the principal within a prescribed period of time.
(b) Prior to issuing
revenue bonds under the provisions of this article, the board Department
of Environmental Protection shall enter into agreements satisfactory to the
water development authority with regard to the selection of all consultants,
advisors and other experts to be employed in connection with the issuance of
such bonds and the fees and expenses to be charged by such persons, and to
establish any necessary reserve funds and replacement and improvement funds,
all such funds to be administered by the water development authority, and, so
long as any such bonds remain outstanding, to establish and maintain a sinking
fund or funds to retire such bonds and pay the interest thereon as the same may
become due. The amounts in any such sinking fund, as and when so set apart by
the board Department of Environmental Protection, shall be
remitted to the water development authority at least 30 days previous to the
time interest or principal payments become due, to be retained and paid out by
the water development authority, as agent for the board Department of
Environmental Protection, in a manner consistent with the provisions of
this article and with the resolution pursuant to which the bonds have been
issued. The water development authority shall act as fiscal agent for the
administration of any sinking fund and reserve fund established under each
resolution authorizing the issuance of revenue bonds pursuant to the provisions
of this article, and shall invest all funds not required for immediate
disbursement in the same manner as funds are invested pursuant to the
provisions of §22C-1-15 of this code.
(c) Notwithstanding any other provision of this article to the contrary, no revenue bonds shall be issued, nor the proceeds thereof expended or distributed, pursuant to the provisions of this article, without the prior approval of the water development authority. Upon such approval, the proceeds of revenue bonds shall be used solely for the following purposes:
(1) To pay the cost of acquiring, constructing, reconstructing, enlarging, improving, furnishing, equipping, or repairing solid waste disposal projects;
(2) To make loans to persons or to governmental agencies for the acquisition, design, and construction of solid waste disposal projects, taking such collateral security for any such loans as may be approved by the water development authority; and
(3) To pay the costs and expenses incidental to or necessary for the issuance of such bonds.
(d) If the proceeds of
revenue bonds issued for any solid waste disposal project exceed the cost
thereof, the surplus shall be paid into the fund herein provided for the
payment of principal and interest upon such bonds. Such fund may be used by the
fiscal agent for the purchase or redemption of any of the outstanding bonds
payable from such fund at the market price, but not at a price exceeding the
price at which any of such bonds is in the same year redeemable, as fixed by
the board Department of Environmental Protection in its said
resolution, and all bonds redeemed or purchased shall forthwith be canceled,
and shall not again be issued.
§22C-3-12. Legal remedies of bondholders.
Any holder of solid waste
disposal revenue bonds issued under the authority of this article or any of the
coupons appertaining thereto, except to the extent the rights given by this
article may be restricted by the applicable resolution, may by civil action,
mandamus or other proceeding, protect and enforce any rights granted under the
laws of this state or granted under this article, by the resolution authorizing
the issuance of such bonds, and may enforce and compel the performance of all
duties required by this article, or by the resolution, to be performed by the board
Department of Environmental Protection or any officer or employee
thereof, including the fixing, charging and collecting of sufficient rentals,
fees, service charges or other charges.
§22C-3-13. Bonds and notes not debt of state, county, municipality or of any political subdivision; expenses incurred pursuant to article.
Solid waste disposal revenue bonds and notes and solid waste disposal revenue refunding bonds issued under authority of this article and any coupons in connection therewith are not a debt or a pledge of the faith and credit or taxing power of this state or of any county, municipality, or any other political subdivision of this state, and the holders or owners thereof have no right to have taxes levied by the Legislature or taxing authority of any county, municipality, or any other political subdivision of this state for the payment of the principal thereof or interest thereon, but such bonds and notes are payable solely from the revenues and funds pledged for their payment as authorized by this article unless the notes are issued in anticipation of the issuance of bonds or the bonds are refunded by refunding bonds issued under authority of this article, which bonds or refunding bonds are payable solely from revenues and funds pledged for their payment as authorized by this article. All such bonds and notes shall contain on the face thereof a statement to the effect that the bonds or notes, as to both principal and interest, are not debts of the state or any county, municipality, or political subdivision thereof, but are payable solely from revenues and funds pledged for their payment.
All expenses incurred in
carrying out the provisions of this article are payable solely from funds
provided under authority of this article. This article does not authorize the board
Department of Environmental Protection to incur indebtedness or
liability on behalf of or payable by the state or any county, municipality, or
political subdivision thereof.
§22C-3-14. Use of funds,
properties, etc., by board Department of Environmental Protection;
restrictions thereon.
All moneys, properties and
assets acquired by the board Department of Environmental Protection,
whether as proceeds from the sale of solid waste disposal revenue bonds or as
revenues or otherwise, shall be held by it in trust for the purposes of
carrying out its powers and duties, and shall be used and reused in accordance
with the purposes and provisions of this article. Such moneys shall at no time
be commingled with other public funds. Such moneys, except as otherwise
provided in any resolution authorizing the issuance of solid waste disposal
revenue bonds or except when invested, shall be kept in appropriate
depositories and secured as provided and required by law. The resolution
authorizing the issuance of such bonds of any issue shall provide that any officer
to whom such moneys are paid shall act as trustee of such moneys and hold and
apply them for the purposes hereof, subject to the conditions this article and
such resolution provide.
§22C-3-15. Audit of
funds disbursed by the board Department of Environmental Protection
and recipients thereof.
Beginning in the fiscal
year ending June 30, 1992 2023, and every second fiscal year
thereafter, the Legislature shall cause to be performed a post audit and a
performance audit for the intervening two-year period of the recipients of any
grant or loan provided by the solid waste management board Department
of Environmental Protection pursuant to this article. The audit shall cover
the disbursement of such loans or grants provided pursuant to §22C-4-30 of this
code, the use of such loans or grants by the recipient as well as all other
appropriate subject matter.
§22C-3-16. Rentals,
fees, service charges and other revenues from solid waste disposal projects;
contracts and leases of board Department of Environmental Protection;
cooperation of other governmental agencies; bonds of such agencies.
This section applies to any
solid waste disposal project or projects which are owned, in whole or in part,
by the board Department of Environmental Protection.
The board
Department of Environmental Protection may charge, alter and collect
rentals, fees, service charges or other charges for the use or services of any
solid waste disposal project, and contract in the manner provided by this
section with one or more persons, one or more governmental agencies, or any
combination thereof, desiring the use or services thereof, and fix the terms,
conditions, rentals, fees, service charges or other charges for such use or
services. Such rentals, fees, service charges or other charges are not subject
to supervision or regulation by any other authority, department, commission,
board, bureau, or agency of the state, and such contract may provide for
acquisition by such person or governmental agency of all or any part of such
solid waste disposal project for such consideration payable over the period of
the contract or otherwise as the board Department of Environmental
Protection in its sole discretion determines to be appropriate, but subject
to the provisions of any resolution authorizing the issuance of solid waste
disposal revenue bonds or notes or solid waste disposal revenue refunding bonds
of the board Department of Environmental Protection. Any
governmental agency which has power to construct, operate, and maintain solid
waste disposal facilities may enter into a contract or lease with the board
Department of Environmental Protection whereby the use or services of
any solid waste disposal project of the board Department of
Environmental Protection will be made available to such governmental agency
and pay for such use or services such rentals, fees, service charges, or other
charges as may be agreed to by such governmental agency and the board
Department of Environmental Protection.
Any governmental agency or
agencies or combination thereof may cooperate with the board Department
of Environmental Protection in the acquisition or construction of a solid
waste disposal project and shall enter into such agreements with the board
Department of Environmental Protection as are necessary, with a view to
effective cooperative action and safeguarding of the respective interests of
the parties thereto, which agreements shall provide for such contributions by
the parties thereto in such proportion as may be agreed upon and such other
terms as may be mutually satisfactory to the parties, including, without
limitation, the authorization of the construction of the project by one of the
parties acting as agent for all of the parties and the ownership and control of
the project by the board Department of Environmental Protection
to the extent necessary or appropriate for purposes of the issuance of solid
waste disposal revenue bonds by the board Department of Environmental
Protection. Any governmental agency may provide such contribution as is
required under such agreements by the appropriation of money or, if authorized
by a favorable vote of the electors to issue bonds or notes or levy taxes or
assessments and issue notes or bonds in anticipation of the collection thereof,
by the issuance of bonds or notes or by the levying of taxes or assessments and
the issuance of bonds or notes in anticipation of the collection thereof, and
by the payment of such appropriated money or the proceeds of such bonds or
notes to the board Department of Environmental Protection
pursuant to such agreements.
Any governmental agency,
pursuant to a favorable vote of the electors in an election held for the
purpose of issuing bonds to provide funds to acquire, construct or equip, or
provide real estate and interests in real estate for a solid waste disposal project,
whether or not the governmental agency at the time of such election had the board
Department of Environmental Protection to pay the proceeds from such
bonds or notes issued in anticipation thereof to the board Department
of Environmental Protection as provided in this section, may issue such
bonds or notes in anticipation of the issuance thereof and pay the proceeds
thereof to the board Department of Environmental Protection in
accordance with an agreement between such governmental agency and the board
Department of Environmental Protection: Provided, That the
legislative board of the governmental agency finds and determines that the
solid waste disposal project to be acquired or constructed by the board Department
of Environmental Protection in cooperation with such governmental agency
will serve the same public purpose and meet substantially the same public need
as the project otherwise proposed to be acquired or constructed by the
governmental agency with the proceeds of such bonds or notes.
§22C-3-17. Maintenance,
operation and repair of projects; repair of damaged property; reports by board
Department of Environmental Protection to Governor and Legislature.
Each solid waste
development project, when constructed and placed in operation, shall be
maintained and kept in good condition and repair by the board Department
of Environmental Protection or if owned by a governmental agency, by such
governmental agency, or the board Department of Environmental
Protection or such governmental agency shall cause the same to be
maintained and kept in good condition and repair. Each such project owned by
the board Department of Environmental Protection shall be
operated by such operating employees as the board Department of
Environmental Protection employs or pursuant to a contract or lease with a
governmental agency or person. All public or private property damaged or
destroyed in carrying out the provisions of this article and in the exercise of
the powers granted hereunder with regard to any project shall be restored or
repaired and placed in its original condition, as nearly as practicable, or
adequate compensation made therefor out of funds provided in accordance with
the provisions of this article.
As soon as possible after
the close of each fiscal year, the board Department of Environmental
Protection shall make an annual report of its activities for the preceding
fiscal year to the Governor and the Legislature. Each such report shall set
forth a complete operating and financial statement covering the board's Department
of Environmental Protection’s operations undertaken pursuant to this
article during the preceding fiscal year. The board Department of
Environmental Protection shall cause an audit of its books and accounts to
be made at least once each fiscal year by certified public accountants and the
cost thereof may be treated as a part of the cost of construction or of
operation of its projects. A report of the audit shall be submitted to the
Governor and the Legislature.
§22C-3-19. Exemption from taxation.
The board Department
of Environmental Protection is not required to pay any taxes or assessments
upon any solid waste disposal project or upon any property acquired or used by
the board Department of Environmental Protection or upon the
income therefrom. Bonds and notes issued by the board Department of
Environmental Protection and all interest and income thereon are exempt
from all taxation by this state, or any county, municipality, political
subdivision, or agency thereof, except inheritance taxes.
§22C-3-20. Governmental agencies authorized to convey property.
All governmental agencies,
notwithstanding any provision of law to the contrary, may lease, lend, grant or
convey to the board Department of Environmental Protection, at
its request, upon such terms as the proper authorities of such governmental
agencies deem reasonable and fair and without the necessity for an
advertisement, auction, order of court, or other action or formality, other
than the regular and formal action of the governmental agency concerned, any
real property or interests therein, including improvements thereto or personal
property which is necessary or convenient to the effectuation of the authorized
purposes of the board Department of Environmental Protection,
including public roads and other real property or interests therein, including
improvements thereto or personal property already devoted to public use.
§22C-3-21. Financial interest in contracts, projects, etc., prohibited; gratuities prohibited; penalty.
No officer, member or
employee of the board Department of Environmental Protection may
be financially interested, directly or indirectly, in any contract of any
person with the board Department of Environmental Protection, or
in the sale of any property, real or personal, to or by the board Department
of Environmental Protection. This section does not apply to contracts or
purchases of property, real or personal, between the board Department
of Environmental Protection and any governmental agency.
No officer, member, or
employee of the board Department of Environmental Protection may
have or acquire any financial interest, either direct or indirect, in any
project or activity of the board undertaken by the Department
of Environmental Protection pursuant to this article or in any services or
material to be used or furnished in connection with any project or activity of
the board Department of Environmental Protection undertaken pursuant
to this article. If an officer, member or employee of the board
Department of Environmental Protection has any such interest at the time
he or she becomes an officer, member or employee of the board Department
of Environmental Protection, he or she shall disclose and divest himself or
herself of it. Failure to do so is cause for dismissal from the position he or
she holds with the authority Department of Environmental Protection.
This section does not
apply in instances where a member of the board who is a contract solid waste
hauler either seeks or has a financial interest, direct or indirect, in any
project or activity of the board or in any services or material to be used or
furnished in connection with any project or activity of the board: Provided,
That member shall fully disclose orally and in writing to the board the nature
and extent of any interest, prior to any vote by the board which involves his
or her interest, withdraw from any deliberation or discussion by the board of
matters involving his or her interest, and refrain from voting on any matter
which directly or indirectly affects him or her
No officer, member or
employee of the board Department of Environmental Protection may
accept a gratuity from any person doing business with the board Department
of Environmental Protection or from any person for the purpose of gaining
favor with the board Department of Environmental Protection.
Any officer, member or
employee of the board who has any financial interest prohibited by this section
or who fails to comply with its provisions is guilty of a misdemeanor, and,
upon conviction thereof, shall be fined not more than $1,000, or imprisoned in
the county jail not more than one year, or both fined and imprisoned
§22C-3-22. Conduct of proceedings of board.
[Repealed.]
§22C-3-23. Regulation of solid waste collectors and haulers to continue under Public Service Commission; bringing about their compliance with solid waste disposal shed plan and solid waste disposal projects; giving testimony at commission hearings.
Solid waste collectors and
haulers who are “common carriers by motor vehicle,” as defined in §24A-1-2 of
this code, shall continue to be regulated by the Public Service Commission in
accordance with the provisions of Chapter 24a and rules promulgated thereunder.
Nothing in this article gives the board Department of Environmental
any power or right to regulate such solid waste collectors and haulers in any
manner, but the Public Service Commission, when it issues a new certificate of
convenience and necessity, or when it alters or adjusts the provisions of any
existing certificate of convenience and necessity, or when it approves the
assignment or transfer of any certificate of convenience and necessity, shall
consult with the board Department of Environmental regarding what
action it could take which would most likely further the implementation of the board's
Department of Environmental Protection’s solid waste disposal shed plan
and solid waste disposal projects and shall take any reasonable action that
will lead to or bring about compliance of such waste collectors and haulers with
such plan and projects.
At any hearing conducted by
the Public Service Commission pertaining to solid waste collectors and haulers
on any of these matters, any member of the board, the director or an
employee of the board designated by the director the Department of
Environmental Protection may appear before the commission and present
evidence.
§22C-3-24. Cooperation
of board Department of Environmental Protection and enforcement
agencies in collecting and disposing of abandoned household appliances and motor
vehicles, etc.
The provisions of this
article are complementary to those contained in article twenty-four, chapter
fifteen-a §17-24A-1 et
seq. of this code and do not alter or diminish the
authority of any enforcement agency, as defined in section two thereof §17-24A-1
et seq. of this code, to collect and dispose of abandoned household
appliances and motor vehicles, inoperative household appliances and junked
motor vehicles and parts thereof, including tires. The board Department
of Environmental Protection and such enforcement agencies shall cooperate
fully with each other in collecting and disposing of such solid waste.
§22C-3-26. Supersedure over county and regional solid waste authorities.
For purposes of exercising
the authority provided under §22C-4-9a of this code, the board cabinet
secretary of the Department of Environmental Protection may by
resolution supersede and exercise, in part or whole, the powers granted to
only county or regional solid waste authorities that operate solid waste
facilities as provided in Chapter 7, Chapter 22, Chapter 22C, and Chapter 24 of
this code. Actions of the board cabinet secretary supersede those
powers granted to only county or regional solid waste authorities that operate
solid waste facilities.
NOTE: The purpose of this bill is to abolish the West Virginia Solid Waste Management Board and, to create greater efficiencies, transfer its rights and responsibilities to the West Virginia Department of Environmental Protection Division of Water and Waste Management.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.