BEFORE THE COUNTY COMMISSION OF [COUNTY NAME] COUNTY, WEST VIRGINIA
[PETITIONER / COMPANY NAME],
Petitioner,
v.
[NAME OF COUNTY] COUNTY SOLID WASTE AUTHORITY
AND THE COUNTY COMMISSION OF [COUNTY NAME] COUNTY,
Respondents.
PETITION FOR ADMINISTRATIVE REVIEW AND RECONSIDERATION OF UNLAWFUL SOLID WASTE ASSESSMENT FEE
Comes now the Petitioner, [Petitioner / Company Name], by and through undersigned counsel, and respectfully submits this Petition for Administrative Review and Reconsideration to challenge the local solid waste assessment fee schedule enacted under Respondent County Solid Waste Authority Resolution/Ordinance No. [Number] and ratified by the County Commission of [County Name] County.
In support of this Petition, Petitioner states as follows:
I. PARTIES AND INTEREST OF PETITIONER
Petitioner, [Petitioner / Company Name], is a [corporation / limited liability company / commercial motor carrier] authorized to do business in the State of West Virginia, maintaining its principal place of business at [Address, City, WV].
Petitioner regularly transports and disposes of municipal solid waste at [Name of Landfill / Transfer Station Facility], a state-approved commercial solid waste disposal facility operating within [County Name] County, West Virginia.
Respondent, [Name of County] County Solid Waste Authority (hereinafter "CSWA"), is a public corporate body organized pursuant to $W. Va. Code\ \S\ 22C-4-3$.
Respondent, County Commission of [County Name] County, is the governing body of [County Name] County, West Virginia, vested with statutory oversight over county fee assessments under Chapter 7 of the West Virginia Code.
II. STATEMENT OF FACTS
On or about [Date Fee Schedule Adopted], Respondent CSWA passed Resolution/Ordinance No. [Number], which purported to establish a local option solid waste assessment fee in the amount of $[Amount, e.g., 0.75] per ton on all solid waste disposed of at commercial facilities within [County Name] County, effective [Effective Date].
On or about [Date Commission Ratified], Respondent County Commission approved and ratified the $[Amount] per ton assessment fee schedule.
Since [Effective Date], Petitioner has been assessed and required to pay the $[Amount] per ton fee upon delivering solid waste to [Name of Facility], resulting in an illegal surcharge of $[Excess Amount, e.g., 0.25] per ton over the maximum rate permitted by West Virginia statute.
To date, Petitioner has paid approximately $[Total Amount Paid] under protest under the unlawful fee schedule.
III. STATUTORY FRAMEWORK AND LEGAL GROUNDS FOR REVIEW
A. The $[Amount] Per Ton Fee Explicitly Exceeds the Mandatory $0.50 Statutory Cap set by W. Va. Code § 7-5-22.
West Virginia Code § 7-5-22 explicitly governs and restricts the authority of county and regional solid waste authorities to levy local disposal assessment fees. The statute unequivocally establishes a hard statutory ceiling:
"Each county or regional solid waste authority is hereby authorized to levy a solid waste assessment fee... Provided, That the fee levied pursuant to this section shall not exceed fifty cents per ton or fraction thereof of solid waste..." ($W. Va. Code\ \S\ 7-5-22$, emphasis added).
Respondents possess no statutory authority, inherent or delegated, to enact an administrative assessment fee that exceeds this mandatory fifty-cent ($0.50) per ton ceiling.
An administrative agency or county instrumentality created by statute is strictly limited to the powers conferred upon it by the Legislature. Any rule, regulation, or fee schedule enacted by an agency that conflicts with or exceeds its statutory mandate is void ultra vires as a matter of law. See Appalachian Power Co. v. State Tax Dep't, 195 W. Va. 573, 466 S.E.2d 424 (1995).
B. Respondents Cannot Evade the Statutory Cap by Recharacterizing the Assessment Fee.
To the extent Respondents contend the assessment fee above $0.50 per ton is authorized under general county health or administrative powers under Chapter 7 or Chapter 22C, state law explicitly preempts local fee creation where the Legislature has occupied the specific statutory field and established an express fee limitation.
Because $W. Va. Code\ \S\ 7-5-22$ specifically addresses county solid waste disposal assessment fees, its express $0.50 per ton cap controls over any general administrative powers under the doctrine of specific statutory precedence.
IV. PRAYER FOR RELIEF
WHEREFORE, Petitioner respectfully requests that Respondents grant administrative review and enter an Order:
RESCINDING AND REVISED Resolution/Ordinance No. [Number] to reduce the local solid waste assessment fee to an amount not to exceed the statutory ceiling of $0.50 per ton pursuant to $W. Va. Code\ \S\ 7-5-22$;
CEASING AND DESISTING the collection or enforcement of any assessment fee portion in excess of $0.50 per ton against Petitioner and other facility users;
ISSUING A REFUND OR CREDIT to Petitioner for all assessment fees collected in excess of $0.50 per ton since [Effective Date]; and
Granting such other administrative or procedural relief as justice and equity require.
Respectfully submitted,
[PETITIONER / COMPANY NAME]
By Counsel
[Counsel Name, Esq.] (WV State Bar No. [#####])
[Law Firm Name]
[Street Address]
[City, State, Zip Code]
[Phone Number]
[Email Address]
VERIFICATION
STATE OF WEST VIRGINIA,
COUNTY OF [COUNTY NAME], TO-WIT:
I, [Representative Name], after being first duly sworn, depose and state that I am the [Title/Position] of [Petitioner / Company Name]; that I am authorized to execute this Verification on its behalf; that I have read the foregoing Petition for Administrative Review; and that the factual allegations contained therein are true and accurate to the best of my knowledge, information, and belief.
[Representative Name]
Taken, subscribed, and sworn to before me this _____ day of __________________, 2026.
My Commission expires: ________________________.
Notary Public
CERTIFICATE OF SERVICE
I hereby certify that on this _____ day of __________________, 2026, a true and correct copy of the foregoing Petition for Administrative Review was served via certified U.S. Mail, return receipt requested, upon Respondents at the following addresses:
[Name of County] County Solid Waste Authority
Attn: Board President
[Address]
[City, WV Zip Code]
County Commission of [County Name] County
Attn: County Clerk / President
[County Courthouse Address]
[City, WV Zip Code]
[Counsel Name, Esq.]
-------------------------------------------
LEGAL MEMORANDUM
TO: Senior Legal Counsel
FROM: Regulatory & Municipal Law Practice Group
DATE: July 31, 2026
SUBJECT: Comprehensive Legal Analysis: Local Option Solid Waste Assessment Fees ($W. Va. Code\ \S\ 7-5-22$) vs. County Mandatory Collection Fees
I. EXECUTIVE SUMMARY
Under West Virginia statutory law, local government bodies and County Solid Waste Authorities (CSWAs) possess two distinct financial mechanisms to fund waste management and environmental programs:
County Local Option Assessment Fees ($W. Va. Code\ \S\ 7-5-22$): A facility-level per-ton assessment (capped at $0.50/ton) levied on waste disposed of at landfills or transfer stations within the county.
County Mandatory Service Fees ($W. Va. Code\ \S\ 7-1-3jj$ & $\S\ 22C-4-23$): A user/occupant fee charged directly to residential households or commercial entities for mandatory waste collection services.
Conflating these two distinct funding instruments is a frequent source of procedural and administrative error in local government practice. This memorandum analyzes the statutory authority, collection mechanics, Public Service Commission (PSC) interplay, and legal defenses associated with both fee structures.
II. COUNTY LOCAL OPTION ASSESSMENT FEES ($W. Va. Code\ \S\ 7-5-22$)
A. Statutory Authority & Cap
Under West Virginia Code § 7-5-22, each county or regional solid waste authority is authorized to impose a local solid waste assessment fee upon the disposal of solid waste at any facility within its county or region.
Statutory Rate Cap: The fee may not exceed $0.50 per ton (or fraction thereof) of solid waste disposed.
Collection Point: The fee accrues at the time of delivery to a solid waste disposal facility (landfill or transfer station) and is collected by the facility operator from the party delivering the waste.
B. Permissible Uses of Revenue
Proceeds collected under § 7-5-22 do not enter the general county fund. By statute, funds are strictly restricted and must be applied toward:
Reasonable administrative expenses of the local or regional solid waste authority (including necessary expenses of board members).
Refuse cleanup and illegal dump remediation programs.
Local litter control initiatives and recycling programs.
Other locally important solid waste management programs deemed necessary to fulfill authority duties.
C. Interplay with State Assessment Fees (§ 22-15-11)
The local option fee under § 7-5-22 operates alongside the state solid waste assessment fee under $W. Va. Code\ \S\ 22-15-11$.
State law imposes a base assessment of $1.75 per ton plus an additional state surcharge reaching $1.00 per ton.
The State Treasurer remits 25% of the additional state surcharge equally among all CSWAs and 75% on a per-capita basis.
The § 7-5-22 local assessment fee is in addition to these state distributions.
III. COUNTY MANDATORY SERVICE FEES ($W. Va. Code\ \S\ 7-1-3jj$ & $\S\ 22C-4-23$)
Unlike a per-ton facility assessment, mandatory garbage collection fees are recurring charges imposed directly on property occupiers or owners.
A. Dual Statutory Enabling Framework
County Commission Authority ($W. Va. Code\ \S\ 7-1-3jj$): Authorizes county commissions to enact ordinances establishing mandatory solid waste collection programs and setting reasonable, uniform service fees across unincorporated county areas.
CSWA Rulemaking Authority ($W. Va. Code\ \S\ 22C-4-23$): Permits solid waste authorities to issue rules regulating waste streams and requiring property occupants to utilize authorized collection carriers.
B. The Statutory Self-Haul Exemption ($W. Va. Code\ \S\ 22C-4-10$)
Any local ordinance or CSWA rule imposing mandatory collection fees must recognize the statutory opt-out provision under $W. Va. Code\ \S\ 22C-4-10$:
Residents and business owners cannot be forced to pay mandatory collection fees if they prove lawful self-hauling and disposal at an approved landfill/transfer station at least once every 30 days.
Attempting to assess or collect mandatory monthly service fees against a property owner who presents valid 30-day disposal receipts violates state law.
C. Collection & Lien Enforcement
Civil Delinquency: Unpaid mandatory service fees are subject to civil suit in Magistrate Court, accompanied by a statutory civil administrative penalty of $150 per year under $W. Va. Code\ \S\ 22C-4-10$.
Municipal/County Liens: Where authorized by local ordinance, unpaid municipal or county collection fees become a statutory lien against the real property receiving service upon proper recording with the County Clerk.
IV. STATUTORY COMPARISON MATRIX
| Feature | Local Option Assessment Fee (W.Va.Code § 7−5−22) | Mandatory Collection Service Fee (W.Va.Code § 7−1−3jj / § 22C−4−23) | State Assessment Surcharge (W.Va.Code § 22−15−11) |
| Tax Base / Unit | Per-ton disposed at landfill | Per-household or per-business fixed monthly/annual rate | Per-ton disposed at landfill ($1.75 base + $1.00 surcharge) |
| Maximum Rate | $0.50 per ton max | Subject to PSC tariffs or county commission reasonableness | $2.75 per ton total state assessment |
| Primary Payor | Waste haulers / facility users at scale | Property occupants / residential subscribers | Waste haulers / facility users at scale |
| Collection Point | Landfill weigh station | Direct billing / utility invoice | Landfill weigh station (remitted to State Tax Comm'r) |
| Self-Haul Opt-Out? | No (applies to all waste dumped) | Yes (30-day receipt rule under § 22C-4-10) | No (applies to all waste dumped) |
V. PUBLIC SERVICE COMMISSION (PSC) INTERPLAY & LITIGATION RISKS
A. Pass-Through Rates for PSC-Regulated Motor Carriers
Commercial solid waste collectors operate under Certificates of Convenience and Necessity granted by the West Virginia Public Service Commission (Chapter 24A).
Under $W. Va. Code\ \S\ 22-15-11(c)$, both state assessment fees and local § 7-5-22 county assessment fees are recognized by law as necessary and reasonable operating costs for motor carriers.
Carriers are legally entitled to pass these per-ton assessment fees directly through to end-use customers via PSC-approved tariff surcharge filings.
B. Administrative & Constitutional Vulnerabilities
Unlawful Exceedance of the $0.50/Ton Statutory Cap:
If a county or CSWA attempts to raise its § 7-5-22 local assessment fee above $0.50 per ton without explicit statutory amendment by the Legislature, the excess fee is illegal and subject to immediate injunctive relief and refund orders.
Revenue Diversion to General County Operations:
Funds raised under § 7-5-22 are legally earmarked exclusively for solid waste administration, litter control, and recycling. Siphoning these assessment proceeds into general county courthouse maintenance, law enforcement budgets, or non-waste infrastructure constitutes an illegal conversion of statutory trust funds.
Preemption of PSC Tariff Authority:
If a county commission attempts to fix curbside collection rates under § 7-1-3jj in an area serviced by a PSC-certificated motor carrier without coordinating with the PSC, the ordinance impermissibly conflicts with Chapter 24A state preemption.
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LEGAL MEMORANDUM
TO: Senior Legal Counsel
FROM: Regulatory & Municipal Law Practice Group
DATE: July 31, 2026
SUBJECT: Comprehensive Legal Analysis: Enforcement Procedures and Defenses Under West Virginia Mandatory Solid Waste Disposal Law ($W. Va. Code\ \S\ 22C-4-10$)
I. EXECUTIVE SUMMARY
West Virginia Code § 22C-4-10 establishes a statutory duty for all occupants of residences and operators of business establishments within the state to ensure lawful solid waste disposal. The statute sets forth a dual track of enforcement: civil administrative assessments (including unpaid fee recovery and statutory penalties) and criminal misdemeanor prosecution.
This memorandum outlines the procedural mechanics of state and local enforcement, analyzes the dual penalty structure, and examines substantive, procedural, and constitutional defenses available to respondents and criminal defendants.
II. STATUTORY MANDATE & REQUIREMENTS
Under $W. Va. Code\ \S\ 22C-4-10(a)$, every person occupying a residential dwelling or operating a business establishment in West Virginia must satisfy one of two statutory compliance options:
Mandatory Service Option: Subscribe to, utilize, and pay the established fees for an authorized solid waste collection service (typically a PSC-certified motor carrier or municipal service).
Self-Haul / Proof Option: Provide proper proof of lawful solid waste disposal at an approved facility (landfill or transfer station) or in another lawful manner at least once every 30 days.
The Department of Environmental Protection (DEP) Secretary is statutorily tasked with promulgating administrative rules regarding acceptable methods of supplying required proof.
III. ENFORCEMENT PROCEDURES & PENALTY DUALITY
Enforcing entities—including County Solid Waste Authorities (CSWAs), county commissions, municipal code enforcement officers, and local law enforcement—utilize two distinct enforcement mechanisms under the statute:
┌──────────────────────────────────────────────┐
│ W. Va. Code § 22C-4-10 Enforcement Tracks │
└──────────────────────┬───────────────────────┘
│
┌──────────────────────────────┴──────────────────────────────┐
▼ ▼
┌───────────────────────────┐ ┌───────────────────────────┐
│ Civil Administrative │ │ Criminal Misdemeanor │
└─────────────┬─────────────┘ └─────────────┬─────────────┘
│ │
• Unpaid Back Service Fees • Magistrate Court Prosecution
• Statutory $150/Year Assessment • Criminal Fine: $50–$1,000
• Municipal/County Liens • 10–40 Hours Community Service
A. Civil Administrative & Financial Enforcement
Assessment Authority: County solid waste authorities or authorized collection entities may assess civil penalties against property occupiers who fail to subscribe to service or provide proof of independent disposal.
Statutory Civil Penalty: $150 per year assessed directly against the individual/entity not receiving collection services, in addition to all accumulated unpaid service fees.
Collection Mechanisms: Unpaid fees and civil assessments may be pursued via civil action in magistrate or circuit court, or reduced to municipal/county service liens against the subject real property depending on local enabling ordinances.
B. Criminal Misdemeanor Prosecution
Offense Defined: Failing to lawfully dispose of solid waste or failing to present adequate proof of lawful monthly disposal constitutes a misdemeanor criminal offense.
Jurisdiction: Prosecuted in Magistrate Court (or Municipal Court where local ordinances incorporate state code provisions) via criminal citation or complaint issued by law enforcement or solid waste enforcement officers.
Penalties Upon Conviction:
Criminal fine of $50 to $1,000.
Mandatory community service of 10 to 40 hours (typically litter cleanup).
Or both a criminal fine and community service.
IV. PROCEDURAL & SUBSTANTIVE DEFENSES
Defendants or respondents facing enforcement actions under § 22C-4-10 have several legal defenses available depending on whether the action is civil or criminal.
A. Substantive & Evidentiary Defenses
Sufficiency of Self-Haul Receipts (The 30-Day Rule):
Defense: The respondent produced valid disposal receipts or weight tickets from a state-approved landfill, transfer station, or recycling facility covering the relevant statutory periods.
Standard: The statute requires proof of disposal at least once within every 30-day period. Showing receipts dated within 30-day increments creates a complete statutory defense against both civil assessments and criminal charges.
Occupancy Status / Lack of Waste Generation:
Defense: The individual or business did not "occupy" the property or operate an active business establishment during the charged period (e.g., vacant land, abandoned structure, seasonal vacancy).
Burden: $W. Va. Code\ \S\ 22C-4-10(a)$ specifically limits its mandate to persons occupying a residence or operating a business establishment. Demonstrating non-occupancy or structural uninhabitability defeats the applicability of the statute.
Lawful On-Site / Alternative Agricultural Disposal:
Defense: Lawful management under agricultural exemptions or DEP-approved composting/recycling methods. Certain bona fide agricultural activities disposal practices carry explicit statutory or administrative exemptions under general WV DEP environmental regulations ($W. Va. Code\ \text{Ch.}\ 22-15$).
B. Procedural & Constitutional Defenses
Due Process & Notice Deficiencies:
Defense: Failure of the enforcing authority to provide adequate administrative notice, itemized fee billing, or a pre-penalty opportunity to submit proof of disposal.
Application: In civil penalty enforcement, administrative due process requires clear notice of alleged delinquency and a reasonable window to present self-haul receipts prior to levying annual $150 assessments.
Statute of Limitations (Criminal vs. Civil):
Criminal Misdemeanor: Subject to West Virginia's 1-year statute of limitations for misdemeanor prosecutions ($W. Va. Code\ \S\ 61-11-9$). Offenses alleged to have occurred more than 12 months prior to the filing of the citation/complaint are time-barred.
Civil Action: Subject to civil statutory limitations governing contractual or statutory liabilities ($W. Va. Code\ \S\ 55-2-6$ / $\S\ 55-2-12$).
Burden of Proof (Criminal Proceedings):
Defense: In a criminal prosecution, the state/prosecution must prove every element beyond a reasonable doubt, including the negative assertion that the defendant did not dispose of waste or provide proof.
Tactical Note: While the statute creates a record-keeping requirement for self-haulers, criminal due process prevents shifting the ultimate burden of proof regarding illegal dumping onto the criminal defendant.
V. PRACTICAL RECOMMENDATIONS FOR COUNSEL
STEPS TO DEFEND A § 22C-4-10 ENFORCEMENT ACTION
┌──────────────────────┐ ┌──────────────────────┐ ┌──────────────────────┐
│ 1. AUDIT RECEIPTS │───►│ 2. VERIFY OCCUPANCY │───►│ 3. CHALLENGE NOTICE │
│ Collect weigh slips │ │ Establish dates of │ │ Verify 30-day notice │
│ & landfill receipts │ │ vacancy/non-use │ │ & procedural due process│
└──────────────────────┘ └──────────────────────┘ └──────────────────────┘
Audit Landfill / Transfer Station Slips Immediately: Counsel representing property owners should immediately compile all commercial landfill weigh slips, transfer station receipts, or recycling logs. Receipts need not match weekly curbside volumes; they need only demonstrate lawful disposal once per 30-day window.
Establish Property Vacancy: For real estate owners facing assessments on vacant rentals or undeveloped tracts, obtain utility records (electric/water usage) showing zero consumption to disprove statutory "occupancy".
Challenge Dual-Penalty Overreach: If an authority attempts to levy civil $150 annual penalties while simultaneously pursuing criminal misdemeanor charges for the same historical time period, challenge the duplicative enforcement on procedural due process and statutory construction grounds.
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