[1993/oagheade.htm]

OAG 93-67

October 12, 1993

Deanna Skees, Executive Director

Northern Kentucky Area Development District

7505 Sussex Drive

Florence, Kentucky 41042

Dear Ms. Skees:

This Office is in receipt of your letter requesting an official opinion interpreting Senate Bill 2, now codified in KRS Chapter 224, dealing with the power possessed by the governing body of a "solid waste management district."

As you have noted, Senate Bill 2, a comprehensive waste management law, was signed by Governor Wallace Wilkinson during a special legislative session in February, 1991. In reaction to this legislation, the counties of Boone, Campbell and Kenton formed a solid waste management partnership known as the Northern Kentucky Solid Waste Management Area (NKSWMA).

Before dealing with your specific questions, it is necessary to recognize the statutory authority used to create the Northern Kentucky Solid Waste Management Area. (Although referred to in your letter as the Northern Kentucky Solid Waste Management District, we note the official name is the Northern Kentucky Solid Waste Management Area.)

Some confusion in this regard is inevitable, since solid waste management is specifically dealt with in both KRS Chapter 224 (Environmental Protection, including Solid Waste Management) and KRS Chapter 109 (Local Solid Waste Management). Both of these chapters, as well as KRS Chapter 65.210 to 65.300 (Interlocal Agreements), encourage local governmental entities to act cooperatively.

We conclude that the Northern Kentucky Solid Waste Management Area is not governed by the provisions of KRS Chapter 109 because it is not a "waste management district"

as defined by KRS 109.012(13) (taxing district) or KRS 109.041(13) (non-taxing district). In order to become a KRS Chapter 109 waste management taxing district, the district must be created under the provisions of KRS 109.115 and KRS 65.182. The NKSWMA was not created under these provisions. Nor could the NKSWMA be a non-taxing solid waste district under KRS 109.041(13) since this would require the passage of an ordinance by each fiscal court for this purpose.

KRS Chapter 224 deals generally with solid waste management issues. Note that as used in KRS Chapter 224, any entity designated a "waste management district" must be created under KRS Chapter 109. KRS 224.01-010(32). KRS Chapter 224 does deal with the generation and submission of a solid waste management plan for a specific geographical area designated a "solid waste management area." KRS 224.01-010(40). The "governing body" of such an area is defined in KRS 224.01-010(46) as:

a county, a waste management district, an entity created pursuant to the Interlocal Cooperation Act, a taxing district created pursuant to the provisions of KRS 65.180 to 65.192, a special district created pursuant to the provisions of KRS 65.160 to 65.176, or counties acting under contract pursuant to KRS 109.082.

Powers and duties of the NKSWMA governing body, therefore, are to some extent affected by KRS Chapter 224, including the requirement that NKSWMA file a waste management plan in lieu of separate plans filed by each county. KRS Chapter 224, however, does not contain provisions for counties to create a separate entity, such as NKSWMA, based upon KRS Chapter 224 alone.

That authority is found in the Interlocal Cooperation Act, KRS 65.210 to 65.300, and the powers and duties of the NKSWMA governing body are regulated by that statute, although KRS 65.210 to 65.300 does not pertain to environmental protection or solid waste management.

In your letter you also state that in December, 1992, "the cities of Covington and Erlanger placed their collection systems up for bid and each city chose a waste hauling company for collection and disposal of their solid waste. Both waste hauling companies included, in their bids, the construction of separate materials recovery facilities, which, in compliance with Senate Bill 2, helps to obtain a 25% reduction goal of all waste entering landfills by 1997." You then note that the governing body believes that in order to effectively manage the waste entering landfills and to keep costs to a minimum, the needs of the NKSWMA would best be served by one centralized processing facility.

With this background, you then asked the following questions:

1. Does Senate Bill No. 2 give the local solid waste management area's governing body the power to review and/or approve applications for expansion and/or construction of both "disposal facilities" and "solid waste management facilities" for consistency with the local solid waste management plan? If it does not, can the local governing body give itself that authority by stating so in the local solid waste management plan?

The passage of Senate Bill 2 put into place major changes in Kentucky's solid waste disposal requirements. Under KRS 224.40-315, the governing body of a solid waste management area has the authority to determine, prior to the issuance of a permit by the Natural Resources and Environmental Protection Cabinet ("the Cabinet"), whether certain types of facilities to be located within the management area are consistent with the area's approved solid waste management plan.

Your question arises because the four subsections of KRS 224.40-315 are not in harmony. KRS 224.40-315(1), (2) and (4) set out permitting requirements, including public notice and comment, for municipal solid waste disposal facilities. Only KRS 224.40-315(3) uses the term "municipal solid waste management facility" (emphasis added). Typically, solid waste management facilities would include a materials recovery facility or transfer station. Disposal facilities are generally recognized as facilities such as landfills. A municipal solid waste management facility is defined in KRS 224.01-010(41) as:

any facility for collection, storage, transportation, transfer, processing, treatment, or disposal of solid waste, whether such facility is associated with facilities generating such wastes or otherwise, but does not include a container located on property where solid waste is generated and which is used solely for the purpose of collection and temporary storage of that solid waste prior to off-site disposal, or a recovered material processing facility which is subject to regulation pursuant to the chapter for control of environmental impacts and to prevent any public nuisance.

This definition is broader than that of a disposal facility and, in fact, specifically includes disposal facilities. ("Solid waste disposal facility" is defined at KRS 224.01-010(15)).

It is our opinion that the legislature inadvertently wrote an error into KRS 224.40-315, since the four subsections are internally inconsistent. This probably occurred during the amendment process. See, 1991 First Extraordinary Session Senate Journal, pp. 88, 163-64. The practical effect of KRS 224.40-315, as it presently exists, appears to place siting procedures for management facilities on the same level as siting of disposal facilities, at least as far as requiring the Cabinet to explain its failure to adopt the local solid waste management area's recommendations. There is, however, nothing else in the statute supporting this view.

Although the question is a close one, we believe there is no practical way to reconcile the inconsistent sections of KRS 224.40-315. There is no provision in the statute for the local governing body to determine whether a "management facility" is consistent with the area plan, which would necessarily be required before KRS 224.40-315(3) would be applicable. In short, the inconsistency of this one word ("management") suddenly appearing in the place of "disposal" in subsection 3 is such that we feel the entire section applies to disposal facilities alone. There is simply no provision in caselaw or applicable provisions of the laws of statutory construction to permit the Office of the Attorney General to "read into" this statute a general application of the provisions of this section to management facilities.

Our conclusion, therefore, is that Senate Bill No. 2 did not give the local solid waste management area's governing body the authority to determine whether management facilities (which are not disposal facilities) are consistent with the local solid waste management plan. Nor can the local governing body give itself that authority. The governing body, of course, may take a position on the appropriateness of management facilities which are not disposal facilities, but doing so could not bind the Natural Resources and Environmental Protection Cabinet.

2. Does the governing body of the solid waste management district have the sole power to take action, or set policy, on issues before the district; or, do all actions of the governing body have to go separately before each member fiscal court for final approval?

The answer is set out in the terms of the interlocal agreement itself. The governing body is composed of the three county judge/executives and all members of all three fiscal courts. The agreement then states: "They will have the responsibility of making final decisions, based upon a [sic] majority votes, on all solid waste issues." Presumably "they", as used in this sentence, refers to all members of the governing body, acting as a group. This is the most logical reading of this part of the interlocal agreement. Nor is there anything in the Interlocal Cooperation Act which would require each fiscal court to "ratify" actions by the governing body. This is entirely a matter to be resolved based on the terms of the agreement itself.

3. What is the legal nature of the solid waste management district? Is the district a cooperative arrangement between three governments, or, a special district? Can the district incorporate? Can the district enter into contracts as a separate entity?

The Northern Kentucky Solid Waste Management Area is a cooperative arrangement between three units of government created under KRS 65.210 - 65.300. It can incorporate and enter into contracts as a separate entity, if permitted by the interlocal agreement itself. Three counties joining together pursuant to an interlocal agreement for the purpose of handling solid waste problems does not create a "special district" or a "waste management district" under KRS Chapter 109.

In your letter you note that the cities of Covington and Erlanger have entered into contracts with waste companies (including construction of separate materials recovery, or recycling, facilities), but the governing body of the NKSWMA would prefer, apparently, that all governmental units within the three counties would utilize one centralized processing facility. However, under the present interlocal agreement, these cities are not represented on the governing body. There is no provision in the Interlocal Cooperation Act which would allow an interlocal agreement to affect a governmental unit which is not a party to the Agreement.

We hope that this opinion has been responsive to your needs.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

JOHN S. GILLIG

ENVIRONMENTAL SPECIAL COUNSEL