Request By:
Hon. Kerry B. Harvey
Marshall County Attorney
Post Office Box 472
Benton, Kentucky 42025
Opinion
Opinion By: Chris Gorman, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of April 21, 1992, you ask whether the Marshall County Fiscal Court may impose a license fee not to exceed 2% per annum of gross receipts of LWD's incinerator operation. You indicate LWD's operation is not incidental to a broader manufacturing operation at the site of the incinerator.
As discussed below, while the Marshall County Fiscal Court cannot lawfully enact a license fee uniquely applicable to LWD, Inc., it may enact a license fee pursuant to KRS 68.178(1), generally applicable to off-site waste management facilities in Marshall County. LWD, Inc., would fall within the purview of such a fee.
LWD, Inc., as we understand it, is a firm which operates, in Marshall County, an incinerator for disposal of industrial wastes. The activities are not associated with a broader manufacturing operation at such site.
KRS 68.178 provides, in part that:
(1) The fiscal court of any county may license off site waste management facilities located within the county with the imposition of a license fee at a percentage rate not to exceed two percent (2%) per annum of the gross receipts of such a waste management facility owned or operated by self-employed individuals, partnerships, or corporations. The proceeds from the license fee shall be used to defray the general revenue requirements of the county where the facility is located. For purposes of assessing the licensing fee provided for in this section, off-site waste management shall consist of establishing and operating a facility whose principal purpose is treatment, storage, disposal, or a combination of these activities but shall not include those treatment, storage, or disposal activities which occur incidental to or which are not otherwise distinguishable from a broader manufacturing operation at the site of said operation.
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Based upon our understanding that LWD, Inc., operates, in Marshall County, a facility for the principal purpose of treatment or disposal of industrial waste, and that the activity at such facility is not incidental to a broader manufacturing operation there, in our view, the waste management facility of LWD, Inc., is an "off-site waste management facility," to which a properly enacted license fee pursuant to KRS 68.178(1) (above) would apply.
In order to guard against a claim of arbitrariness, a county ordinance imposing a license fee pursuant to KRS 68.178(1), must be drawn so as to address all off-site waste management facilities in the county, as distinguished from being expressly directed toward a single entity.
Imposition of an off-site waste management facility license fee appears to be clearly within a county's authority. KRS 67.083(2), KRS 68.178(1).