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2003 SESSION


CHAPTER 101
An Act to amend and reenact §§ 10.1-1418.2, 10.1-1418.3, 10.1-1422.3, 58.1-641, and 58.1-642 of the Code of Virginia and to amend the Code of Virginia by adding sections numbered 10.1-1418.4 and 10.1-1418.5, relating to disposal of waste tires and imposition of a tire recycling fee; penalty.
[S 965]
Approved March 16, 2003

Be it enacted by the General Assembly of Virginia:

1. That §§ 10.1-1418.2, 10.1-1418.3, 10.1-1422.3, 58.1-641, and 58.1-642 of the Code of Virginia are amended and reenacted, and that the Code of Virginia is amended by adding sections numbered 10.1-1418.4 and 10.1-1418.5 as follows:

§ 10.1-1418.2. Improper disposal of tires; exemption; penalty.

A. It shall be unlawful for any person knowingly to store, dump, litter, dispose of, speculatively accumulate or otherwise place more than 100 waste tires on public or private property in the Commonwealth, without first having obtained a permit as required by § 10.1-1408.1. For the purposes of this section,:

"Convenience center" means a collection point for the temporary storage of waste tires provided for individuals who choose to transport waste tires generated on their own premises to an established centralized point, rather than directly to a disposal facility. To be classified as a convenience center, the collection point shall not receive waste tires from collection vehicles that have collected waste from more than one real property owner. A convenience center shall have a system of regularly scheduled collections and may be covered or uncovered.

"Speculatively accumulated waste tires" means any waste tires that are accumulated before being used, reused, or reclaimed or in anticipation of potential use, reuse, or reclamation. Waste tires are not being accumulated speculatively when they can be used, reused, or reclaimed; they have a feasible means of use, reuse, or reclamation available; and at least seventy-five 75 percent of the waste tires accumulated are being removed from the site annually.

B. It shall be unlawful for any person to store, dispose of, speculatively accumulate or otherwise place more than 100 waste tires on public or private property, without first having obtained a permit as required by § 10.1-1408.1 or in a manner inconsistent with any local ordinance. No person shall knowingly, or knowingly allow others to, store, dump, litter, dispose of, speculatively accumulate or otherwise place on his property more than 100 waste tires, without first having obtained a permit as required by § 10.1-1408.1.

C. Any person who knowingly violates any provision of this section shall be guilty of a Class 1 misdemeanor. However, any person who improperly disposes of, or knowingly allows to be improperly disposed of on his property, knowingly violates any provision of this section and such violation involves 500 or more waste tires shall be guilty of a Class 6 felony.

D. Salvage yards licensed by the Department of Motor Vehicles shall be exempt from this section, provided that they are holding fewer than 300 waste tires and that the waste tires do not pose a hazard or a nuisance or present a threat to human health and the environment.

E. As used in this section, the terms "store" and "otherwise place" shall not be construed as meaning the holding of fewer than 500 tires for bona fide uses related to the growing, harvesting or processing of agricultural or forest products.

F. The provisions of this section shall not apply to the (i) storage of less than 1,500 waste tires in a container at a convenience center or at a salvage yard licensed by the Department of Motor Vehicles, as long as the tires are not being speculatively accumulated, or (ii) storage of tires for recycling or for processing to use in manufacturing a new product, as long as the tires are not being speculatively accumulated.

G. The provisions of this section shall not apply to the storage of tires for recycling or for processing to use in manufacturing a new product, as long as the tires are not being speculatively accumulated.

H. Nothing in this section shall limit enforcement of the prohibitions against littering and the improper disposal of solid waste contained elsewhere in this chapter.

§ 10.1-1418.3. Liability for large waste tire pile fires; exclusions.

A. For the purposes of this section:

"Tire pile" means an unpermitted accumulation of more than 100 waste tires that: (i) is included in the survey of waste tire piles completed by the Department in 1993 and is estimated to contain greater than 50,000 tires or (ii) contains 50,000 or more tires that were placed on property with the consent of the property owner. Without limiting what constitutes consent, acceptance of compensation for the placement of tires on one's property shall be deemed to be consent.

B. For any tire pile that (i) is included in the survey of waste tire piles completed by the Department in 1993 or (ii) contains tires that were placed on property with the consent of the property owner, any person who owns or is legally responsible for such a tire pile that burns or is burned, and any person who owns or is legally responsible for the property where the tire pile is located, and any person who sets or causes to be set the fire which burns the tire pile shall be responsible for the damage caused by the fire and by any waste or chemical constituents released into the environment to any person who sustains damage from the fire or from any released wastes or chemical constituents. It shall not be necessary for the claimant to show that the damage was caused by negligence on the part of such owners, legally responsible persons or other person who set or caused to be set the fire which that burns the tires. Damages include, but are not limited to, the cost for any repair, replacement, remediation, or other appropriate action required as a result of the fire. This liability shall be in addition to, and not in lieu of, any other liability authorized by statute or regulation. Without limiting what constitutes consent, acceptance of compensation for the placement of tires on one's property shall be deemed to be consent.

C. Any person who sets or causes to be set the fire that burns the tire pile shall be responsible for the damage caused by the fire and by any waste or chemical constituents released into the environment to any person who sustains damage from the fire or from any released wastes or chemical constituents. It shall not be necessary for the claimant to show that the damage was caused by negligence on the part of such owners, legally responsible persons or other persons who set or caused to be set the fire that burns the tires. Damages shall include, but are not limited to, the cost for any repair, replacement, remediation, or other appropriate action required as a result of the fire. This liability shall be in addition to, and not in lieu of, any liability authorized by statute or regulation.

D. Any person who transfers waste tires for disposition and has taken all reasonable steps to ensure proper disposition of the waste tires shall not be held liable under the standard set forth in subsection B this section. Documentation that a person has taken all reasonable steps to ensure proper disposition of the waste tires may include, but is not limited to, utilization of the Waste Tire Certification developed by the Department and any equivalent manifest or tracking system.

§ 10.1-1418.4. Removal of waste tire piles; cost recovery; right of entry.

Notwithstanding any other provision, upon the failure of any owner or operator to remove or remediate a waste tire pile in accordance with an order issued pursuant to this chapter or § 10.1-1186, the Director may enter the property and remove the waste tires. The Director is authorized to recover from the owner of the site or the operator of the tire pile the actual and reasonable costs incurred to complete such removal or remediation. If a request for reimbursement is not paid within 30 days of the receipt of a written demand for reimbursement, the Director may refer the demand for reimbursement to the Attorney General for collection or may secure a lien in accordance with § 10.1-1418.5.

§ 10.1-1418.5. Lien for waste tire pile removal.

A. The Commonwealth shall have a lien, if perfected as hereinafter provided, on land subject to removal action under § 10.1-1418.4 for the amount of the actual and reasonable costs incurred to complete such removal action.

B. The Director shall perfect the lien given under the provisions of this section by filing, within six months after completion of the removal, in the clerk's office of the court of the county or city in which the land or any part of the land is situated, a statement consisting of (i) the name of the owner of record of the property sought to be charged, (ii) an itemized account of moneys expended for the removal work, and (iii) a brief description of the property to which the lien attaches.

C. It shall be the duty of the clerk of the court in whose office the statement described in subsection B is filed to record the statement in the deed books of the office and to index the statement in the general index of deeds in the name of the Commonwealth as well as the owner of the property, and shall show the type of such lien. From the time of such recording and indexing, all persons shall be deemed to have notice thereof.

D. Liens acquired under this section shall have priority as a lien second only to the lien of real estate taxes imposed upon the land.

E. Any party having an interest in the real property against which a lien has been filed may, within 60 days of such filing, petition the court of equity having jurisdiction wherein the property or some portion of the property is located to hold a hearing to review the amount of the lien. After reasonable notice to the Director, the court shall hold a hearing to determine whether such costs were reasonable. If the court determines that such charges were excessive, it shall determine the proper amount and order that the lien and the record be amended to show the new amount.

F. Liens acquired under this article shall be satisfied to the extent of the value of the consideration received at the time of transfer of ownership. Any unsatisfied portion shall remain as a lien on the property and shall be satisfied in accordance with this section. The proceeds from any lien shall be deposited in the Waste Tire Trust Fund established pursuant to § 10.1-1422.3. If an owner fails to satisfy a lien as provided herein, the Director may proceed to enforce the lien by a bill filed in the court of equity having jurisdiction wherein the property or some portion of the property is located.

§ 10.1-1422.3. Waste Tire Trust Fund established; use of moneys; purpose of Fund.

A. All moneys collected pursuant to § 58.1-642, minus the necessary expenses of the Department of Taxation for the administration of this tax tire recycling fee as certified by the Tax Commissioner, shall be paid into the treasury and credited to a special nonreverting fund known as the Waste Tire Trust Fund, which is hereby established. Any moneys remaining in the Fund shall not revert to the general fund but shall remain in the Fund. Interest earned on such moneys shall remain in the Fund and be credited to it. The Department of Waste Management is authorized and empowered to release moneys from the Fund, on warrants issued by the State Comptroller, for the purposes enumerated in this section, or any regulations adopted thereunder.

B. Moneys from the Fund shall be expended to:

1. Pay the costs of implementing the waste tire plan authorized by § 10.1-1422.1, as well as the costs of any programs created by the Department pursuant to such a plan; and

2. Provide partial reimbursement to persons for the costs of using waste tires or chips or similar materials; and

3. Pay the costs to remove waste tire piles from property pursuant to § 10.1-1418.4, to the extent funds are available from the increased revenues generated by the increased tire recycling fee collected beginning July 1, 2003, and ending July 1, 2006, in accordance with § 58.1-641.

C. Reimbursements under § 10.1-1422.4 shall not be made until regulations establishing reimbursement procedures have become effective.

§ 58.1-641. Imposition of tire recycling fee.

There is hereby levied and imposed upon every retailer of tires in the Commonwealth, in addition to all other taxes and fees of every kind now imposed by law, a tax tire recycling fee of fifty cents $.50 for each new tire sold by such retailer ending July 1, 2003. Beginning July 1, 2003, and ending July 1, 2006, such fee shall be levied and imposed at a rate of $1.00 for each new tire sold by a retailer. Beginning July 1, 2006, the fee shall be levied and imposed at a rate of $.50 for each new tire sold by a retailer.

§ 58.1-642. Collection of tire recycling fee; deductions; exemptions.

A. The tire tax recycling fee levied under this chapter shall be collected by the Tax Commissioner in the same manner as is the retail sales and use tax, pursuant to Chapter 6 (§ 58.1-600 et seq.) of this title.

B. The tax fee imposed under § 58.1-641 shall not apply to new tires for:

1. Any device moved exclusively by human power;

2. Any device used exclusively upon stationary rails or tracks; or

3. Any device used exclusively for farming purposes, except a farm truck.

C. For the purpose of compensating a retailer of tires for accounting for and remitting the tax fee levied by this chapter, such retailer shall be allowed five percent of the amount of tax fee due and accounted for in the form of a deduction in submitting his return and paying the amount due by him if the amount due was not delinquent at the time of payment.

2. That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 for periods of imprisonment in state adult correctional facilities and is $0 for periods of commitment to the custody of the Department of Juvenile Justice.

3. That the revenue generated by this act shall be used solely for the removal and recycling of tires from waste tire piles. The Department of Environmental Quality shall report by December 1 of each year to the Chairmen of the Senate Committee on Agriculture, Conservation and Natural Resources and the House Committee on Agriculture, Chesapeake and Natural Resources on the use of these funds and the progress in cleaning up tire piles.