Request By:
Teddye P. Chappell, Esq.
2201-1/2 Cumberland Avenue
Box 398
Middlesboro, Kentucky 40965
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning a garbage disposal district. You state that the Bell County Refuse and Disposal District, formed in 1971 pursuant to KRS Chapter 109, is considering forming a nonprofit corporation under the provisions of KRS 273.161 to 273.390 in order to apply for the financing of a resource recovery incinerator with the Pollution Abatement Authority (KRS 224A.260).
Your specific question is whether a garbage disposal district created pursuant to KRS Chapter 109 is considered a "governmental agency" under KRS 58.180 and thus able to form a nonprofit corporation.
KRS 58.180(2) provides in part that any governmental agency may create a nonprofit corporation to act as the agency and instrumentality and the constituted authority of such governmental agency in the acquisition and financing of any public project which may be undertaken by the governmental agency pursuant to Kentucky law and thus accomplish a public purpose of the governmental agency.
The term "governmental agency" is defined in KRS 58.180(1)(b) as follows:
"As used herein, the term 'governmental agency' shall mean any division of the Commonwealth which is a municipal corporation and political subdivision of the Commonwealth of Kentucky, or to which has been delegated the right to exercise part of the sovereign power of the Commonwealth."
In OAG 73-813, copy enclosed, a question was raised as to whether a garbage and refuse disposal district, organized pursuant to KRS Chapter 109, is a public agency. After analyzing the provisions of KRS Chapter 109, we concluded that a garbage and refuse disposal district is a public or governmental agency. It was noted that the district is governed by a board of directors, each of whom is required to take an oath that he will faithfully perform the duties of his office. The directors serve for a definite term; they are required to undertake and prepare plans for the operation of the district; they have the power to condemn land; they can issue revenue bonds and levy a tax. Furthermore, for the purpose of acquiring, creating and maintaining a collection system and disposal method, any district may, pursuant to KRS Chapter 58, borrow money and issue revenue bonds.
It was also noted in OAG 73-813 that other jurisdictions have recognized the public or governmental nature of garbage collection and disposal operations.
KRS Chapter 109 was substantially amended in 1978 but KRS 109.190 provides:
"This chapter shall not apply to garbage and refuse districts established pursuant to KRS Chapter 109 at the time of enactment of this legislation unless such do not comply with the federal resource conservation and recovery act and with the state solid waste management plan."
In OAG 80-172, copy enclosed, we dealt with the effect of the 1978 amendments to KRS Chapter 109 on those districts created prior to the amendments. We said that the repeal of certain sections relating to garbage disposal districts is inoperative as to those preexisting garbage disposal districts qualifying for a continuing status under KRS 109.190. The complete repeal of the old statutes depends upon whether the new law fully applies. Thus, where the status of the old garbage disposal district continues under KRS 109.190, the repeal is inoperative in such cases and the old applicable law is operative.
In conclusion, it is our opinion that a garbage disposal district organized and functioning pursuant to KRS Chapter 109 is considered a public or governmental agency. Such a garbage disposal district is a public or governmental agency pursuant to the provisions of KRS 58.180(1)(b) as it is exercising governmental functions.