Request By:
Mr. William C. McGee
Okolona Area Merchants
and Business Association
Heritage Building
8311 Preston Highway
Louisville, Kentucky 40219
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Dale D. Brodkey, Assistant Attorney General
This letter is in response to your inquiry regarding solid waste disposal. Your question is whether Jefferson County, pursuant to KRS Chapter 109, can require solid waste haulers in Jefferson County to haul solid waste to a recycling center owned by the county.
The possible course of events is that Jefferson County will construct a solid waste disposal recovery plant which will generate steam from the burning of solid waste. In order to make this plant financially feasible, the county would need to require all haulers in Jefferson County to bring solid waste to the plant. These requirements would be mandated by means of ordinances passed by the fiscal court of the county. This could mean that private landfills would be closed and that the haulers might have to pay operator tipping fees at the county facility or might incur greater transporting expenses.
The first question is whether such a course of action by the county is authorized by Kentucky law. The relevant statute is KRS Chapter 109, Garbage and Refuse Disposal. Chapter 224 also authorizes the Department For Natural Resources and Environmental Protection to take actions relating to solid waste.
KRS Chapter 109, which was extensively amended in 1978, provides that primary responsibility for solid waste belongs to the Department For Natural Resources and Environmental Protection which has the primary authority to promulgate the necessary rules and regulations. KRS 109.021.
Section 109.022(1) states, "The department shall promulgate rules, regulations, guidelines and criteria for cities and counties in creating solid waste management areas and planning for the management and recovery of solid waste, consistent with the statewide plan." In addition, the Department has the power under KRS Chapter 224 to enforce rules and regulations with respect to the "proper disposal of waste." KRS 224.032(1).
It is the legislature's intent that responsibility for solid waste management be with counties. KRS 109.011(6) states, ". . . it is the intent of the general assembly of the Commonwealth of Kentucky that the primary responsibility for adequate solid waste collection, management, treatment, disposal and resource recovery shall rest with counties, or combinations of cities and counties, subject to rules, regulations, criteria and requirements promulgated by the department for natural resources and environmental protection . . . ." The statute sets up several alternative approaches for county development of solid waste management plans. Counties can act alone, or in conjunction with cities in the county, or several counties can act together, either as a solid waste management district or by contracting with each other. KRS 109.011(9).
The use of solid waste to generate energy is encouraged by the legislature. "Resource recovery" is defined as "any process by which components of solid waste are recovered for reuse or transformed into useful materials, products or energy. " KRS 109.012(7). "Solid waste management facilities" may include "steam and energy generating units." KRS 109.012(12). Furthermore, the legislature states that ". . . where solid waste does exist, it should be considered to the extent possible as a valuable resource, and be made use of wherever and whenever desirable and economically justifiable . . . ." KRS 109.011(7).
The authority for counties to act as "solid waste management areas" comes from several sources. The general assembly delegates authority in KRS Chapter 109: "In addition to all other powers enumerated in Chapter 67 and other sections of the Kentucky Revised Statutes, counties, acting by and through their fiscal courts, may plan, initiate, construct and maintain solid waste management facilities and promulgate rules and regulations with respect thereto in accordance with this chapter." KRS 109.041(7).
Counties have the authority to finance their solid waste management facilities, KRS 109.041(3), including charging a fee to haulers, KRS 109.041(6), and selling materials and energy recovered from solid waste, KRS 109.041(7).
In addition, the fiscal court has "the power to carry out governmental functions necessary for the operation of the county." KRS 67.083(3). In this respect, the court "may enact ordinances, issue regulations, levy taxes, issue bonds, appropriate funds and employ personnel in performance of the following public functions: . . . Exclusive management of solid waste by ordinance or contract or by both . . . ." KRS 67.083(3)(o).
In
Fiscal Court of Jefferson County v. City of Louisville, 559 S.W.2d. 478 (Ky. 1977), the Kentucky Supreme Court held that the "Home Rule" act, KRS Chapter 67, was unconsitutional as it was then written, because the general assembly had made an "overly broad delegation" of its powers, contrary to the provisions of the Kentucky Constitution. When the legislature amended the Act in 1978, it specifically listed what powers were delegated to the fiscal court. The Attorney General's Office in OAG 78-550 was of the opinion that the specific authorizations now in KRS 67.083 are constitutional. As with the mandatory motor vehicle emission inspection/maintenance program dealt with in the opinion, the establishment of solid waste management facilities "constitute[s] specific delegations of police powers as [they] relate to public health and safety." OAG 78-550.
Thus, Jefferson County does have the authority to construct a solid waste recovery facility which will generate energy from the burning of solid waste. In conjunction with this, the county also has the authority to promulgate the necessary rules and regulations as long as they are consistent with the rules and regulations of the Department For Natural Resources and Environmental Protection.
Currently, Jefferson County has not passed any ordinances establishing a county-wide waste recovery plant. In order to make such a facility economically feasible, the county may wish to require that all solid waste in the county be transported there. The question of whether a specific ordinance is unconstitutional or has another legal infirmity must wait until the ordinance is actually passed.
However, at this time we may address the issue of whether the county has the constitutional right to enact a mandatory use ordinance pursuant to statute. This turns on the extent to which the county's police power applies. The police power extends to legislation which "bears a real and substantial relation to the public health, safety, morality or some other phase of the general welfare." Department For Natural Resources and Environmental Protection v. No. 8 Limited of Virginia, 528 S.W.2d 684 (Ky. 1975), at 686. The specific application of the police power must be reasonable and appropriate for accomplishing the particular legitimate goal. 16 Am. Jur. 2d., Constitutional Law, 277, 279. In addition, Kentucky courts have stated that the police power "is as broad and comprehensive as the demands of society make necessary. It must keep pace with the changing concepts of public welfare."
Stephens v. Bonding Assoc. of Kentucky, 538 S.W.2d 580 (Ky. 1976), at 583;
Jasper v. Commonwealth, 375 S.W.2d. 709 (Ky. 1964), at 711.
The collection and disposal of solid waste is an aspect of the police power. This is specifically recognized in KRS 109.011(6); plans for the collection, management, treatment and disposal of solid waste by counties are "for the purpose of effectuating the safe and sanitary management, use and handling of solid waste, the protection of the health, welfare and safety of the citizens and inhabitants of the Commonwealth. . . ."
The effect of a mandatory use ordinance is that the haulers of solid waste in the county will be required to take their waste to the proposed recovery facility. Such a plant will provide sanitary collection and disposal of solid waste, operations already included under the police power. In addition, it will provide a means of utilizing solid waste to create energy, a goal to be encouraged in this period of experimentation with new energy sources. For example, the Federal government is promoting resource recovery, which includes energy recovered from solid waste, in the Resource Conservation and Recovery Act of 1976, P.L. 94-580.
The specific effects of a mandatory use ordinance on haulers of solid waste and on landfill operators will depend on how such an ordinance is drafted. The means by which the ordinance seeks to ensure the successful operation of the recovery facility must be reasonable and appropriately geared to its goals. Any deleterious effects on existing businesses in the ordinance do not automatically invalidate it. "The right to conduct a business is subordinate to the police power of the state reasonably exercised in the public interest."
Jasper v. Commonwealth, supra, at 711. The Kentucky Supreme Court has upheld laws which have abolished a particular business, as a part of the police power and not as a taking.
Stephens v. Bonding Assoc. of Kentucky, supra, (bail bonds).
In conclusion, Jefferson County does have the authority to construct a solid waste recovery facility and to require solid waste haulers in the county to transport solid wastes to this plant. The fiscal court will need to pass ordinances establishing such programs. In order to avoid constitutional difficulties, the ordinances must be carefully drafted. But in a general sense, such programs come within the county's police power and have been properly delegated by the General Assembly.