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NO. 133. AN ACT RELATING TO THE TAX ON HAZARDOUS WASTE.

(H.591)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 32 V.S.A. chapter 237 is retitled as follows:

CHAPTER 237. TAX ON HAZARDOUS WASTE *[GENERATION]*

Sec. 2. 32 V.S.A. § 10102 is amended to read:

§ 10102. POWERS OF THE COMMISSIONER AND SECRETARY

(a) In addition to any other powers granted to the commissioner and the secretary in this chapter, they may:

(1) issue, amend, and repeal from time to time reasonable regulations to assist in the administration and enforcement of this chapter, provided however, that those rules may not in any way alter, abridge or condition the express terms of this chapter;

(2) for cause shown, waive, reduce or compromise any of the taxes, penalties, interest or other amounts provided in this chapter;

(3) delegate to any agent or employee under their supervision such powers as the commissioner or secretary may deem necessary to carry out efficiently the provisions of this chapter;

(4) require any person required to pay the tax imposed by this chapter to keep detailed records of the description, volume and destination of hazardous waste *[generated]* handled by such person and to furnish that information upon request to the commissioner or secretary; and

(5) require the attendance of, the giving of testimony by, and the production of any books and records of any person believed to be liable for the payment of tax or to have information pertinent to any matter under investigation by the commissioner or the secretary. The fees of witnesses required to attend any hearing shall be the same as those allowed witnesses appearing in the superior court but no fees shall be payable to a person charged with a tax liability under this chapter. Any superior or district judge may, upon application of the commissioner or the secretary, compel the attendance of witnesses, the giving of testimony, and the production of books and records before the commissioner or the secretary in the same manner, to the same extent, and subject to the same penalties asif before a superior or district court.

(b) For cause shown, the commissioner may authorize the secretary to calculate the tax liability of any *[generator]* person on a monthly or more frequent basis.

Sec. 3. 32 V.S.A. § 10103 is amended to read:

§ 10103. TAX IMPOSED; EXEMPTIONS

(a) Any *[generator of hazardous waste]* person initiating a shipment of hazardous waste in Vermont, who is required to file a manifest, or other similar report, pursuant to the Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6901 et seq.), as amended from time to time, *[or any similar report required by the secretary]* or under 10 V.S.A. chapter 159 and the rules adopted under that chapter, shall pay a tax based on the *[volume and destination]* quantity of hazardous waste required to be reported on such manifest or other report, as follows:

(1) hazardous waste destined to be *[reclaimed,]* recycled *[or recovered,]* for a beneficial purpose as defined by the secretary, except as specified in subdivision (a)(3) of this section, shall be taxed at the rate of 11 cents per gallon of liquid or 01.4 cents per pound of solid;

(2) hazardous waste destined for *[treatment other than that specified in subdivisions (a)(3) or (4) of this section]* any form of management other than recycling, except as specified in subdivision (a)(3) of this section, shall be taxed at the rate of *[22]* 23.6 cents per gallon of liquid or *[02.8]* 3.0 cents per pound of solid;

(3) hazardous waste destined for any form of management shall be taxed at the rate of 01.0 cent per pound, if all of the following apply:

(A) it is shipped from a storage or collection facility for which financial responsibility is required and maintained under section 6605 or 6606 of Title 10 or the rules adopted under those sections;

(B) it is not generated by the owner or operator of the storage or collection facility;

(C) it has not been previously taxed in Vermont; and

(D) it has not been held onsite for more than 180 days.

(b) The *[tax imposed by this section does not apply to]* following hazardous wastes are exempt from the tax imposed by subsections (a) and (e) of this section provided that the exemption is noted on a manifest or other report in the manner prescribed by the secretary:

(1) hazardous waste which is generated as a result of any action taken under section 1283 of Title 10 for which disbursements from the environmental contingency fund have been or will be made by the secretary;

(2) *[hazardous waste which meets applicable pretreatment standards or compliance schedules and is discharged to a public sewerage treatment works;]*

(3) hazardous waste which is destined for treatment in an onsite waste water treatment unit to produce a material which is not hazardous before entering a public sewer system or waters of the state, but the tax does apply to any residue of treatment which is a hazardous waste; *[or]*

(4) for any calendar quarter, hazardous waste generated by a person who generated an average of less than 220 pounds of hazardous waste per month per site or 2.2 pounds of acutely hazardous waste per month per site during that calendar quarter;

(5) hazardous waste generated by a facility onsite, which is recycled onsite; or

(6) hazardous waste which has been previously taxed in Vermont, provided:

(A) the person shipping the previously taxed waste has not held the waste for more than 180 days; and

(B) if the waste has been mixed, the resulting mixture does not change the applicable U.S. Department of Transportation shipping description from that which applied before the waste was mixed.

(c) The following persons are exempt from the tax imposed by subsections (a) and (e) of this section provided they meet the conditions of the exemption:

(1) A *[generator]* person who pays a tax on hazardous waste pursuant to this section shall not be further taxed for such hazardous waste, provided that such hazardous waste is stored or reshipped by the same person, without *[change or treatment,]* change in the *[container with respect to which the amount of the tax is determined]* applicable U.S. Department of Transportation shipping description. The *[generator]* person shall note *[reshipment]* the previously taxed hazardous waste on a manifest in *[such]* the manner *[as]* prescribed by the secretary *[deems necessary]*.

(2) Any person who initiates a manifest to import hazardous waste into Vermont from a foreign country shall not be required to pay a tax under subsection (a) of this section, provided that this exemption is noted on the manifest in the manner prescribed by the secretary.

(d) The tax imposed by this chapter shall be deposited in the environmental contingency fund established under 10 V.S.A. § 1283 and the hazardous waste management assistance account of the waste management assistance fund established under 10 V.S.A. § 6618, as required by the secretary of natural resources under that section.

(e) Any facility required to obtain certification under 10 V.S.A. § 6606 and the rules adopted under that section, which recycles, treats or disposes of hazardous waste shall pay a tax based on the quantity of hazardous waste recycled, treated, or disposed of at the facility in a calendar quarter. Each facility shall report the quantity of hazardous waste recycled, treated, or disposed of in a calendar quarter no later than 30 days after the end of the quarter. The following tax rates shall apply:

(1) hazardous waste which is recycled shall be taxed at the rate of 11 cents per gallon of liquid or 01.4 cents per pound of solid;

(2) hazardous waste which is treated shall be taxed at the rate of 15.7 cents per gallon of liquid or 02.0 cents per pound of solid; and

(3) hazardous waste which is land disposed or land treated shall be taxed at the rate of 23.6 cents per gallon of liquid or 03.0 cents per pound of solid.

Sec. 4. 32 V.S.A. § 10104 is amended to read:

§ 10104. DUTIES OF SECRETARY AND COMMISSIONER

(a) On or before the last day of the month following each calendar quarter, the secretary shall calculate the amount of tax due under this chapter based on information required to be reported on a manifest or other report during that calendar quarter, and shall supply the commissioner with the name, address and amount of tax owed by each *[generator]* person required to pay tax for that quarter.

(b) If the secretary finds that any *[generator]* person has failed to report in full the description, volume or destination of hazardous waste required to be reported on a manifest or other report, the secretary may determine the *[generator's]* person's liability for the tax imposed by this chapter based on any information available and shall supply the commissioner with such information on or before the last day of the month following the calendar quarter in which such determination is made.

(c) Upon receipt of the information supplied by the secretary, the commissioner shall bill each *[generator]* person required to pay tax. The tax assessed under this chapter shall be payable upon receipt of a bill from the commissioner.

Sec. 5. 32 V.S.A. § 10105 is amended to read:

§ 10105. FAILURE TO PAY TAX; CRIMINAL PENALTIES

(a) Any *[generator]* person who fails to pay a tax liability imposed under this chapter within *[thirty]* 30 days after the date of billing by the commissioner shall be subject to and governed by the provisions of section 5875 of this title.

(b) Any *[generator]* person who willfully fails to pay a tax liability imposed under this chapter when due or to supply any information required by this chapter or who willfully makes, renders, signs, verifies or files any false or fraudulent manifest, report or information, shall be fined not more than $5,000.00 or be imprisoned not more than one year, or both.

Sec. 6. 32 V.S.A. § 10106(b) is amended to read:

(b) The commissioner may notify a taxpayer of a deficiency with respect to the payment of any tax liability imposed under this chapter or assess a penalty or interest withrespect thereto at any time within three years after the date that the taxpayer was originally required to file a manifest or other *[similar]* report; provided, however, that if a taxpayer fails to file a proper manifest or other report at the time prescribed for its filing, the notification or assessment may be made at any time before the end of three years after the taxpayer files such a manifest or other report; and if no manifest or report has been filed or if the deficiency is caused by reason of fraud or the willful intent of the taxpayer to defeat or evade a requirement of this chapter, the notification or assessment may be made at any time; and provided further that if the taxpayer and the commissioner agree, the notification or assessment may be made at any time before the date so agreed upon.

Sec. 7. 10 V.S.A. § 6618(a) is amended to read:

(a) There is hereby created in the state treasury a fund to be known as the waste management assistance fund, to be expended by the secretary of the agency of natural resources. The fund shall have two accounts: one for solid waste management assistance and one for hazardous waste management assistance. The hazardous waste management assistance account shall consist of *[any increase after January 1, 1990 in]* a percentage of the tax on *[generators of]* hazardous waste under the provisions of 32 V.S.A. chapter 237, *[whether the increase is in the rates of tax or the scope of activities covered by the tax,]* as established by the secretary, the toxics use reduction fees under subsection 6628(j) of this title, and appropriations of the general assembly. In no event shall the amount of the hazardous waste tax which is deposited to the hazardous waste management assistance account exceed 40 percent of the annual tax receipts. The solid waste management assistance account shall consist of the franchise tax on waste facilities assessed under the provisions of 32 V.S.A. chapter 151, subchapter 13, and appropriations of the general assembly. All balances in the fund accounts at the end of any fiscal year shall be carried forward and remain a part of the fund accounts. Interest earned by the fund shall be deposited into the appropriate fund account. Disbursements from the fund accounts shall be made by the state treasurer on warrants drawn by the commissioner of finance and management.

Approved: April 23, 1998