West Virginia Code of State Rules › Agency 47 - Water Resources, Division Of Water And Waste Management › Title 47 - LEGISLATIVE RULE DEPARTMENT OF ENVIRONMENTAL PROTECTION DIVISION OF WATER RESOURCES › Series 47-40B - Hazardous Waste Emergency Response Fund Regulations Interpretive Rules Concerning Fee Assessment › Section 47-40B-5 - Interest Accrual And Surcharge Imposition

Current through Register Vol. XLI, No. 28, July 12, 2024
5.1. Provision interpreted: West Virginia
				Code§ 20-5G-4(d).
Section 4(d) of the HWERF contains specific provisions
				  concerning accrual of interest and imposition of surcharges in cases where the
				  payment of an assessed fee is overdue. If a fee assessed upon a generator has
				  not been paid in full by the due date, interest accrues upon the unpaid amount
				  until full payment is made. In addition, if a generator fails to pay the fee
				  assessment in full within seventy-five (75) days of the prescribed date
				  established under Section 5.2.1 of Series 40A, that generator must also pay a
				  surcharge equivalent to the total amount of the fee assessed.
5.2. Issues interpreted.
5.2.1. Ability to establish a payment
				schedule.
The Department believes that the establishment of payment
				  schedules is possible under the provisions of Section 4(d) of the Act. Payments
				  are due on the prescribed date established under Section 5.2.1 of Series 40A. A
				  generator unable to make full payment by this date may request, in writing,
				  that a payment schedule be approved by the Department which provides for full
				  payment of the fee and all interest accrued within a specified period of time.
				  The Department will not allow such schedules to exceed one hundred and eighty
				  (180) days beyond the original due date. An approved payment schedule will be
				  an agreement signed by the director and the generator and does not constitute a
				  waiver from the imposition of a surcharge as required by the Act and
				  interpreted in Section 5.2.3 of these regulations.
5.2.2. Interest accrual.
Under Section 4(d) of the HWERF, if a fee assessed upon a
				  generator has not been paid by the prescribed date, "interest shall accrue upon
				  the unpaid amount at the rate of ten percent (10%) per annum from the date due
				  until payment is actually made". The Department interprets this provision to
				  mean that interest on unpaid fees, or portions thereof, should accrue starting
				  the day after the payment due date and continue until the full fee assessment,
				  excluding any surcharge, is paid. Interest will be calculated only on the fee
				  assessed, excluding any surcharge or accrued interest. Interest will accrue
				  monthly as simple interest at a rate of 0.8333...percent on the unpaid balance
				  of the fee. This monthly rate is equivalent to the ten percent (10%) per annum
				  rate imposed under the Act.
Interest accrual is required by law to be applied to any
				  unpaid balance of the fee assessed and may not be waived by the Department due
				  to a "good faith" partial payment or any other reason. Partial payments will be
				  applied to the retirement of the fee principal first to minimize the amount of
				  interest accrued. Once the fee amount has been paid, interest accrual will
				  cease.
5.2.3. Surcharge
				imposition.
Section 4(d) of the Act provides for the automatic imposition
				  of a surcharge equivalent to the total amount of the fee assessed if that fee
				  is not paid within seventy-five (75) days of the prescribed date established
				  under Section 5.2.1 of Series 40A. Rules, Series 40A. The Department believes
				  that this provision does not provide the Department with the discretion to
				  waive surcharge imposition or extend its payment. The surcharge is intended to
				  be an incentive for timely fee payment as well as a penalty for late
				  payment.