Request By:
Mr. Frank H. McCartney
Fleming County Attorney
Courthouse
Flemingsburg, Kentucky 41041
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Fiscal Court of Fleming County, which you represent, has a contract with some private individuals to furnish a landfill for the use of citizens of your county. The county pays the furnishers of the landfill a monthly charge, in order that county citizens may use that facility.
In order to continue this arrangement, the owners of the landfill have been required to obtain engineering services in an amount exceeding $20,000. The owners have requested that the fiscal court reimburse them a portion of the engineering fee. However, the county's contract has no provision for such situation or contingency. The fiscal court is considering paying a part of such engineering fee.
Your question reads:
"Specifically under the Home Rule Act, it would appear that they can incur and expend money for a landfill. But, can they expend it to a private individual for reimbursement of engineering cost?"
A fiscal court is empowered, under KRS 67.083(3)(o) and (r), to provide for exclusive management of solid wastes by ordinance or contract or by both, and to provide for garbage disposal service. A county garbage franchise under § 164, Kentucky Constitution, is not involved, since county facilities are not being leased or used.
Counties have the primary responsibility for the collection, management, treatment, disposal and resource recovery of solid waste. KRS 109.011(6). That responsibility is subject to standards set by regulations promulgated by the Natural Resources and Environmental Protection Cabinet. Under subsection (10) of that statute, a county has three alternative approaches to the development and implementation of solid waste management plans. With the approval of the N.R. & E.P. Cabinet, a single county may function as a solid waste management area as provided in KRS 109.072, or counties may elect to operate as a multi-county area pursuant to KRS 109.082, or counties may elect to operate as a waste management district.
A "sanitary landfill" is defined in KRS 109.012(8) as a facility for disposal of solid waste consistent with and pursuant to criteria published under Section 4004 of the Resource Conservation and Recovery Act of 1976, as amended, (P.L. 94-580). "Solid waste" is defined in KRS 109.012(9), as follows:
"(9) 'Solid waste' means any garbage, refuse, sludge and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining (excluding coal mining waste, coal mining by-products, refuse and overburden), and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under Section 402 of the Federal Water Pollution Control Act, as amended (86 Stat. 880), or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended (68 Stat. 923)."
Although Fleming County is not operating under one of the three options dealt with in KRS 109.011(10), the fiscal court has authority to contract for the described landfill services under KRS 67.083, as mentioned above. Cf. City of Radcliff v. Hardin County, Ky.App., 607 S.W.2d 132 (1980) 135.
Since the county is operating under the present contract for solid waste disposal, and since the present contract contains no reference to the county's participation in sharing certain engineering costs attendant upon the operation of the landfill by these private entrepreneurs, the county's sharing in such extra costs would be of a gratuitous nature. On that basis we doubt the fiscal court's authority to grant the extra financial aid at this point.
Should the contract come up for renewal, the fiscal court may contract for such garbage disposal services on a reasonable basis, which could consider engineer costs allocated to that project.
The gratuity suggested is apparently designed to benefit the private owners and operators of the landfill. Sections 3 and 171 of the Kentucky Constitution require that public money be spent only for a public purpose. The proposed grant would not be in consideration of public services. See Lexington v. Hager, Ky., 337 S.W.2d 27 (1960); and Nichols v. Henry, 301 Ky. 434, 191 S.W.2d 930 (1945). However, assuming that the engineering costs affect the present contract period, the fiscal court may validly renegotiate the contract for the purpose of the county's paying a portion of such cost, as an equitable matter, if the fiscal court so desires.