OAG 94-35

May 17, 1994

Mr. Kenneth A. Phillips

109 District Coordinator, McCreary County 109 Solid Waste Management District

P. O. Box 940

Whitley City, Kentucky 42653

Dear Mr. Phillips:

This is in response to your letter of March 15, 1994, requesting an opinion of the Attorney General on the legal authority of the McCreary County 109 Solid Waste Management District to require participation of all county residents and businesses in the financing and operation of this district. Stated another way, your inquiry more generally concerns the power of any solid waste management district to require participation by all waste-producing entities within a county without specific authorization by fiscal court.

There are several avenues open to counties which wish to establish (or have established) waste management districts. Under KRS 109.041(13) "a fiscal court may, by ordinance, create a solid waste district to exercise the powers of the county pursuant to this chapter, except that a district created for this purpose shall not levy or collect ad valorem property taxes." Under KRS 109.115(1) waste management districts created in accordance with the procedures of KRS 65.182 (waste management districts which have taxing authority) may be created, and such districts "shall have all powers and authority set forth in KRS 109.041." We read KRS 109.041(13) and KRS 109.115(1) as setting forth alternative methods of creating a waste management district. Except for the power to levy or collect ad valorem property taxes, which is denied a waste management district created by fiscal court ordinance, all three types of waste management districts exercise the full range of powers granted counties under KRS 109.041.

KRS Chapter 109 very specifically and strongly delegates to the counties the primary responsibility "for adequate solid waste collection, management, treatment, disposal, and resource recovery . . . ." KRS 109.011(6). In recognition of the fact that modern waste management is a complicated, expensive, and time-consuming responsibility, the Kentucky General Assembly has provided in KRS Chapter 109 for counties to create waste management districts to oversee these activities. When such a district is created, whether consisting of one county or several counties, the board of directors of the district acts on behalf of the fiscal court(s) and may exercise all powers that are permitted by statute. Powers permitted by statute include levying taxes or service charges (KRS 109.056), acquiring or condemning property (KRS 109.150 - .160), building, acquiring and operating solid waste management facilities (KRS 109.041) and otherwise carrying out the functions, duties and responsibilities of the county in this area. Moreover, the General Assembly has explicitly authorized solid waste management boards in KRS 109.120 to:

adopt such rules and regulations as are necessary to carry out the purposes for which the waste management district was created and necessary for the adequate management of solid waste in a manner adequate to protect the public health and consistent with such rules and regulations as may be promulgated by the department.

Assuming the McCreary County 109 Solid Waste Management District is a properly constituted waste management district, we believe its board of directors possesses the power to require 100% participation on its own initiative.

Taking all these statutes together, we think it is clear the legislature has authorized properly created and constituted solid waste management districts to impose uniform participation on all waste-producing entities in the county without requiring additional action on the part of the fiscal court. The board of directors is free to choose those means which it considers necessary to fulfill its responsibilities, as long as the means chosen are consistent with the applicable statutes, regulations of the Natural Resources and Environmental Protection Cabinet, and any other regulations which may be applicable.

It is also our opinion, based upon the text of McCreary County Ordinance No. 830.3 (which you have provided us and which we assume to be still in effect), that the McCreary County 109 Solid Waste Management District has this authority. The stated purpose of the ordinance is to ensure "the effective collection and disposal of all garbage and refuse" in McCreary County, and this is to be accomplished by providing "for the collection of all residential and commercial waste in McCreary County by means of a house-to-house collection franchise and/or acceptance at the county's solid waste transfer station." (Emphasis added.) The McCreary County 109 Solid Waste Management District requirement for 100% participation by all households and commercial businesses within the county is clearly within the authority given to it by ordinance 830.3. Even if the language of the ordinance itself were not compelling, a solid waste management district created pursuant to KRS 109.041(13) may choose such an approach. Since the option of requiring 100% participation is available to the fiscal court itself, it is equally available to an authorized entity created by fiscal court to be responsible for the management of solid waste within the county.

We hope this opinion is of assistance to you.