Senate Bill No. 1007

(By Senators Kessler (Mr. President) and M. Hall,

By Request of the Executive)

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[Introduced March 14, 2014; referred to the Committee on the Judiciary.]

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A BILL to amend and reenact §22-15-8 and §22-15-11 of the Code of West Virginia, 1931, as amended, all relating to the disposal of drill cuttings and associated drilling waste generated from well sites at commercial solid waste facilities; allowing for the receipt of additional drilling waste at certain commercial solid waste facilities above the facility’s existing tonnage limit if certain conditions are met; recognizing the facility’s continuing obligation to receive municipal solid waste while exceeding its permitted tonnage caps; requiring radiation and leachate monitoring at all facilities receiving drill cuttings and drilling waste; establishing minimum requirements for the monitoring program; requiring the investigation and report by the Department of Environmental Protection to the Legislature on specified issues associated with the disposal of drill cuttings and drilling wastes at landfills; required scope of study; establishing deadlines; effective dates; creating a special revenue fund in the State Treasury; establishing an additional solid waste fee; and requiring the promulgation of emergency and legislative rules.

Be it enacted by the Legislature of West Virginia:

    That §22-15-8 and §22-15-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 15. SOLID WASTE MANAGEMENT ACT.

§22-15-8. Limit on the size of solid waste facilities; rulemaking.

    (a) On and after October 1, 1991, it is unlawful to operate any commercial solid waste facility that handles between ten thousand and thirty thousand tons of solid waste per month, except as provided in section nine of this article and sections twenty-six, twenty-seven and twenty-eight, articles four and four-a, chapter twenty-two-c of this code.

    (b) Except as provided in section nine of this article, the maximum quantity of solid waste which may lawfully be received or disposed of at any commercial solid waste facility is thirty thousand tons per month.

    (c) The director secretary shall, within the limits contained in this article, place a limit on the amount of solid waste received or disposed of per month in commercial solid waste facilities. The director secretary shall consider at a minimum the following criteria in determining a commercial solid waste facility’s monthly tonnage limit:

    (1) The proximity and potential impact of the solid waste facility upon groundwater, surface water and potable water;

    (2) The projected life and design capacity of the solid waste facility;

    (3) The available air space, lined acreage, equipment type and size, adequate personnel and wastewater treatment capabilities; and

    (4) Other factors related to the environmentally safe and efficient disposal of solid waste.

    (d) Within the limits established in this article, the director secretary shall determine the amount of sewage sludge which may be safely treated, stored, processed, composted, dumped or placed in a solid waste facility.

    (e) The director secretary shall promulgate emergency rules and propose for legislative promulgation legislative rules pursuant to the provisions of article three, chapter twenty-nine-a of this code to effectuate the requirements of this section. When developing the rules, the director secretary shall consider at a minimum the potential impact of the treatment, storage, processing, composting, dumping or placing sewage sludge at a solid waste facility:

    (1) On the groundwater, surface waters and potable waters in the area;

    (2) On the air quality in the area;

    (3) On the projected life and design capacity of the solid waste facility;

    (4) On the available air space, lined acreage, equipment type and size, personnel and wastewater treatment capabilities;

    (5) The facility's ability to adequately develop markets and market the product which results from the proper treatment of sewage sludge; and

    (6) Other factors related to the environmentally safe and efficient treatment, storage, processing, composting, dumping or placing of sewage sludge at a solid waste facility.

    (f) Sewage sludge disposed of at a landfill must contain at least twenty percent solid by weight. This requirement may be met by adding or blending sand, sawdust, lime, leaves, soil or other materials that have been approved by the director secretary prior to disposal. Alternative sewage sludge disposal methods can be utilized upon obtaining written approval from the director secretary. No facility may accept for land filling in any month sewage sludge in excess of twenty-five percent of the total tons of solid waste accepted at the facility for land filling in the preceding month.

    (g) Notwithstanding any other provision of this code to the contrary, a commercial solid waste facility that is not located in a county that is, in whole or in part, within a karst region as determined by the West Virginia Geologic and Economic Survey may lawfully receive drill cuttings and drilling waste generated from horizontal well sites above the monthly tonnage limits of the commercial solid waste facility under the following conditions and limitations:

    (1)(A) The drill cuttings and associated drilling waste are placed in a separate cell dedicated solely to the disposal of drill cuttings and drilling waste;

    (B) The separate cell dedicated to drill cuttings and associated drilling waste is constructed and maintained pursuant to the standards set out in this article and legislative rules promulgated thereunder; and

    (C) On or before March 8, 2014, the facility has either obtained a certificate of need, or amended certificate of need, or has a pending application for a certificate or amended certificate of need, authorizing such separate cell as may be required by the Public Service Commission in accordance with section one-c, article two, chapter twenty-four of this code.

    (2) The secretary may only allow those solid waste facilities that applied by December 31, 2013, for a permit modification to construct a separate cell for drill cuttings and associated drilling waste, to accept drill cuttings and associated drilling waste at its commercial solid waste facility without counting the deposited drill cuttings and associated drilling waste towards the landfill’s permitted monthly tonnage limits.

    (3) No solid waste facility may exclude or refuse to take municipal solid waste in the quantity of, up to and including, its permitted tonnage limit while the facility is allowed to lawfully receive drill cuttings or drilling waste above its permitted tonnage limits.

    (h) Any solid waste facility taking drill cuttings and drilling waste must install radiation monitors by January 1, 2015. The secretary shall promulgate emergency and legislative rules to establish limits for unique toxins associated with drill cuttings and drilling waste including, but not limited to, heavy metals, petroleum-related chemicals (benzene, toluene, xylene, barium, chlorides, radium and radon) and establish the procedures the facility must follow if that limit is exceeded: Provided, That said rules shall establish and set forth a procedure to provide that any detected radiation readings above any established radiation limits will require that the solid waste landfill immediately cease accepting all affected drill cuttings and drilling waste until the secretary has inspected said landfill and certified pursuant to established rules and regulations that radiation levels have returned to below the established radiation limits. Any truck load of drill cuttings or drilling waste which exceeds the radiation reading limits shall not be allowed to enter the landfill until inspected and approved by the Department of Environmental Protection.

    (i) Except for facilities which meet the requirements of subdivision (1), subsection (g) of this section, the total amount of waste received at a commercial solid waste landfill that continues to mix said waste with its municipal solid waste may not exceed the total volume of its permitted capacity for that facility in any month, and the quantities of drill cuttings and drilling waste received at that facility shall be counted and applied toward the facility’s established tonnage cap.

    (j) On or before July 1, 2015, the secretary shall submit an investigation and report to the Joint Legislative Oversight Commission on Water Resources and the Legislature’s Joint Committee on Government and Finance which examines: (1) The hazardous characteristics of leachate collected from solid waste facilities receiving drill cuttings and drilling waste including, but not limited to, the presence of heavy metals, petroleum-related chemicals (benzene, toluene, xylene, etc.), barium, chlorides, radium and radon; (2) the potential negative impacts on the surface water or groundwater resources of this state associated with the collection, treatment and disposal of leachate from such landfills; (3) the technical and economic feasibility and benefits of establishing additional and/or separate disposal locations which are funded, constructed, owned and/or operated by the oil and gas industry; and (4) viable alternatives for the handling, treatment and disposal of drill cuttings, including the potential for processing, reusing and reapplying a portion of the collected drill cuttings as suitable fill material for roads, brownfield development or other projects, instead of disposing of all collected material into landfills.

    (k) The secretary shall submit any proposed contract for conducting the studies set forth in subsection (j) of this section for review and preapproval by the Legislature’s Joint Committee on Government and Finance.

§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 $1.75 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 secretary 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, inclusive, 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 secretary. The director secretary 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 $1 million 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 $250,000 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 secretary and the director secretary shall then cause no less than $50,000 nor more than $250,000 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 secretary and the director secretary shall then cause not less than $250,000 nor more than $500,000 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 secretary 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 secretary for administration, inspection, enforcement and permitting activities established pursuant to this article;

    (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 secretary 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.

    (j) The Gas Field Highway Repair and Horizontal Drilling Waste Study Fund is hereby created as a special revenue fund in the State Treasury to be administered by the West Virginia Division of Highways and to be expended only on the improvement, maintenance and repair of public roads of three lanes or less located in the watershed from which the revenue was received that are identified by the Commissioner of Highways as having been damaged by trucks and other traffic associated with horizontal well drilling sites or the disposal of waste generated by such sites, and that experience congestion caused, in whole or in part, by such trucks and traffic that interferes with the use of said roads by residents in the vicinity of such roads: Provided, That up to $750,000 from such fund shall be made available to the Department of Environmental Protection from the same fund to offset contracted costs incurred by the Department of Environmental Protection while undertaking the horizontal drilling waste disposal studies mandated by the provisions of subsection (j), section eight of this article. Any balance remaining in the special revenue account at the end of any fiscal year shall not revert to the General Revenue Fund but shall remain in the special revenue account and shall be used solely in a manner consistent with this section. The fund shall consist of the fee provided for in subsection (k) of this section.

    (k) Horizontal drilling waste assessment fee. -- An additional solid waste assessment fee is hereby imposed upon the disposal of drill cuttings and drilling waste generated by horizontal well sites in the amount of $1 per ton, which fee is in addition to all other fees and taxes levied by this section or otherwise and shall be added to and constitute part of any other fee charged by the operator or owner of the solid waste disposal facility: Provided, That the horizontal drilling waste assessment fee shall be collected and administered in the same manner as the solid waste assessment fee imposed by this section, but shall be imposed only upon the disposal of drill cuttings and drilling waste generated by horizontal well sites.

    NOTE: The purpose of this bill is to allow for the receipt of additional drill cuttings and drilling waste generated from well sites at certain commercial solid waste facilities above the facility’s existing tonnage limit if certain conditions are met. The bill requires radiation and leachate monitoring at all facilities receiving drill cuttings and drilling waste. The bill requires the Department of Environmental Protection to conduct and investigation and report to the Legislature on specified issues associated with the disposal of drill cuttings and drilling wastes at landfills. The bill also establishes an additional solid waste fee to be imposed on the disposal of drill cuttings and drilling waste generated by horizontal well sites.

    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.