Request By:
Hon. Donald J. Blandford
Speaker of the House of Representatives
State Capitol
Frankfort, KY 40601
Opinion
Opinion By: Chris Gorman, Attorney General; Stan Cox, Assistant Attorney General Special Prosecutions Division
Re: Owensboro Municipal Utilities' Proposed Landfill
On January 16, 1992, you requested an opinion regarding a proposed landfill in the Maceo area of Daviess County. You explain that the Owensboro Municipal Utilities (OMU) has optioned 421 acres in the Maceo area for a landfill to dispose of gypsum and furnace ash which will come from exhaust scrubbers the utility plans to install to comply with the Federal Clean Air Act of 1990.
We have also received a written request from the Maceo Concerned Citizens Group dated January 17, 1992 regarding this same matter. The citizens group explains that the OMU has proposed to build and operate a 420 acre landfill near Maceo for fly ash, bottom ash and gypsum produced by Owensboro's Elmer Smith Power Plant. The citizens express potential environmental concerns and note that since the OMU board of directors is appointed by the Owensboro City Council, other Daviess County residents may have no direct input into OMU's decision to site the proposed landfill.
Both you and the citizens group ask us for clarification of KRS 100.324, which exempts municipally owned electric systems from local zoning laws in certain situations. Although you ask us other questions, some of which we answer in the course of this letter, your ultimate inquiry is: "What is the proper role of the local planning commission as would relate to its review of the proposed landfill? " The citizens group similarly asks for an opinion from us "as to whether the proposed OMU landfill facility to deposit fly ash, bottom ash and gypsum is indeed exempt from approval by the Owensboro-Daviess County Planning and Zoning Commission." It is our opinion, as explained herein, that the proposed landfill, with certain qualifications also set forth herein, is indeed exempt from local planning and zoning review, because the landfill is a facility incidental to a service facility of the utility. Accordingly, we do not believe the local planning commission has any role of review regarding the proposed landfill.
We begin by noting that the utility wastes which are destined for this proposed landfill are specifically defined as "special wastes" under KRS 224.50-760 (formerly KRS 224.868). Defining utility wastes as special wastes is significant for local control purposes because under KRS 109.041(4) "no county . . . shall regulate special wastes as defined in KRS 224.868 [with exceptions that do not apply to utility wastes]." As a preliminary matter, then, we must determine whether the Owensboro-Daviess County Planning and Zoning Commission is precluded by KRS 109.041(4) from exercising any review over landfills which accept special wastes such as utility wastes. We do not believe counties are precluded by KRS 109.041 from determining whether landfills should exist within their boundaries; or, assuming they would permit landfills within their boundaries, that they are precluded from saying these must only be within certain areas of the county. Accordingly, we believe that if KRS 109.041 were the only restriction on a county's power to review utility waste landfills, this statute alone would not prevent the Owensboro-Daviess County Planning and Zoning Commission from exercising review over the proposed facility.
The key word in KRS 109.041 is "regulate." We believe that KRS 109.041(4) is directed toward restricting the powers of a county otherwise to regulate special wastes under KRS 67.083, rather than toward planning and zoning issues.
The Natural Resources and Environmental Protection Cabinet is given specific authority to regulate special waste disposal facilities under KRS 224.50-760(1) (b), but this statute does not necessarily preempt the county from also regulating consistently in the same area under KRS 67.083(3) and (6), absent KRS 109.041(4). Absent KRS 109.041(4), a county arguably may have the power to determine how special wastes are transported, handled and disposed of at a special waste landfill, assuming the Cabinet has not spoken so specifically by regulation on the subject that such local enactments are preempted. "Regulate" in KRS 109.041 speaks to what is done with the wastes (i.e., handling, treatment, etc.) rather than to planning and zoning issues of where certain types of facilities might be located within a planning unit's jurisdiction. To summarize, while KRS 109.041(4) would prohibit the county from saying how special wastes may be handled, treated, etc., KRS 109.041 does not remove special waste disposal facilities from normal planning and zoning requirements.
The statute which does remove utility waste disposal facilities from planning unit review is KRS 100.324 which in pertinent part provides:
(1) All other provisions of this chapter to the contrary notwithstanding public utilities operating under the jurisdiction of the public service commission or the department of vehicle regulation or federal power commission, any municipally owned electric system, and common carriers by rail shall not be required to receive the approval of the planning unit for the location or relocation of any of their service facilities. Service facilities include all facilities of such utilities and common carriers by rail other than office space, garage space, and warehouse space and include office space, garage space, and warehouse space when such space is incidental to a service facility. . . .
Under this statute the proposed utility waste landfill would be exempt from local zoning laws. This would exist under either of two rationales, which we consider below.
First, the statute could be literally construed to prohibit planning and zoning review over anything but office space, garage space and warehouse space which is not incidental to a service facility. All else would be service facilities exempt from planning unit review. Cf . Oldham County Planning and Zoning Commission v. Courier Communications Corp., Ky.App., 722 S.W.2d 904 (1987). At first glance, it might seem that such a literal reading would allow utilities to construct shopping malls, hazardous waste dumps, factories for manufacturing clothing, or any other number of facilities unrelated to the provision of electric power, without submitting to local zoning. We do not think, however, that the total statutory scheme exempts utilities from meaningful oversight of their activities.
Although exempt from planning and zoning, the utility is subject to jurisdiction in other forums to ensure that its operations relate primarily to the provision of electric power. The introductory language of KRS 100.324(1) indicates that it is public utilities "operating under the jurisdiction of the public service commission or the department of vehicle regulation or federal power commission" which are to receive the exemption from planning and zoning. When municipally owned electric systems were added to the exempt list by act of the General Assembly in 1984, this did not mean that such facilities were not also subject to restrictions on their operations. Without focusing on particular statutes, we direct your attention generally to KRS Chapter 96 as containing numerous provisions authorizing municipalities to own and operate electric utilities, which provisions also imply only the limited authority to engage in the provision of electric services rather than unrelated operations.
Alternatively, if KRS 100.324 were not read so literally as to deprive a planning unit of authority over all but office space, garage space and warehouse space not incidental to a service facility, the planning unit still would not have authority over the proposed landfill. Under this less literal reading of the statute, service facilities would be those facilities most integrally connected to the provision of electric power, while non-service facilities would be facilities not unique to the provision of electric power and therefore virtually indistinguishable from other facilities of the same type. At the extremes, the distinctions seem fairly clear: A physical power plant, transformers, relay systems and power lines are service facilities; office and parking space for a customer payment center are non-service facilities. Harder cases are presented by facilities such as refueling stations for utility service trucks or garage space associated with such vehicles. Under this less literal reading of KRS 100.324, we view the proposed Maceo landfill as presenting such a hard case.
We conclude, however, that under the facts as presented by you, the waste utility landfill would be a facility incidental to a service facility and therefore included within the definition of service facility for purposes of exemption from planning and zoning under KRS 100.324. The key determinant is that the landfill would be handling only scrubber wastes which are a by-product unique to the provision of electrical service. Scrubber wastes are incidental to the provision of electrical service in a way that office and cafeteria wastes, although produced by the employees of an electric utility, are not. Accordingly, we conclude that a facility designed to receive this scrubber waste is a facility incidental to the electric utility's service facilities and is exempt from planning and zoning review.
It should be clear from the above analysis that to obtain the exemption under this reading of KRS 100.324 the waste facility must accept only those by-products which are unique and incidental to the provision of electrical power. Under this reading of KRS 100.324, not all landfills OMU might choose to construct would be exempt from planning and zoning. Only those which accept waste by-products associated with the production of electric power would be exempt. As you describe it, the proposed Maceo landfill is to receive only utility scrubber waste.
In conclusion, by virtue of the broadly drawn exemption contained in KRS 100.324, utility waste landfills such as you describe are not subject to planning and zoning review.