[1994/oagheade.htm]

OAG 94-43

June 13, 1994

Hon. G. Sidnor Broderson

Simpson County Attorney

P. O. Box 474

205 West Kentucky Avenue

Franklin, Kentucky 42134

Dear Mr. Broderson:

You have written the Office of the Attorney General to request an opinion regarding the scope of authority of the Simpson County Solid Waste District.

Triple M Land Farms, Inc., a Kentucky corporation, has obtained a permit from the Natural Resources and Environmental Protection Cabinet to conduct a "land farming" operation in Simpson County. Under this permit the company is allowed to spread petroleum contaminated soils upon the surface of land in 6" layers which are then treated through a process of bioremediation combined with aeration, causing biodegradation of the petroleum based contaminants. The treated soil is then recovered and used as fill in construction projects. The permit provides that its issuance "does not relieve the permittee from the responsibility of obtaining any other permits, licenses, or approvals required by . . . local agencies."

On July 24, 1990, the County of Simpson passed an ordinance creating a nontaxing solid waste district pursuant to KRS 109.041(13) and KRS 67.083(3). Subsequently, the Board of Directors of the District promulgated and adopted regulations applicable to the handling and disposal of solid waste in Simpson County. The County of Simpson, acting through its fiscal court, approved and adopted these regulations by an ordinance passed on August 6, 1991, a copy of which you have sent to us.

With this background, you have asked this Office two questions. The first question is:

1. Does the Simpson County Solid Waste District have authority to regulate research, development and demonstration facilities permitted by the Division of Waste Management?

The answer to your first question is yes. Initially, it may be noted that a fiscal court has only a limited authority and may exercise only those powers that the state legislature has expressly or by necessary implication conferred upon it. Burns v. Moore, 307 Ky. 167, 209 S.W.2d 735 (1948). Broad authority is specifically conferred upon the counties though the "Home Rule" statute, KRS 67.083. See Fiscal Court v. City of Louisville, Ky, 559 S.W.2d 478 (1977). The opinion of the court in Fiscal Court v. City of Louisville limits the breadth of delegated authority under the "Home Rule" statute. The Court wrote, at page 482:

The metallic thread which history and tradition weave through the warp and woof of our Constitution is that while the General Assembly may grant governmental powers to counties it must do so with the precision of a rifle shot and not with the casualness of a shotgun blast. The thoughtful, purposeful and deliberate delegation of a known power is required of the General Assembly.

In response to Fiscal Court v. City of Louisville, the General Assembly reenacted KRS 67.083 in its present form, which specifically enumerates the powers that are delegated. KRS 67.083(3)(a)-(y). Of importance to the question you have posed is the following language of that statute:

(3) The fiscal court shall have the power to carry out governmental functions necessary for the operation of the county. Except as otherwise provided by statute or the Kentucky Constitution, the fiscal court of any county may enact ordinances, issue regulations, levy taxes, issue bonds, appropriate funds and employ personnel in performance of the following public functions:

* * *

(h) Conservation, preservation and enhancement of natural resources including soils, water, air, vegetation and wildlife;

* * *

(o) Exclusive management of solid wastes by ordinance or contract or by both and disposition of abandoned vehicles[.]

The specific delegation of authority in these subsections now constitutionally establishes the broad powers of the counties to deal with solid waste, as well as the conservation, preservation and enhancement of the natural resources of the county.

The common thread running throughout KRS Chapter 109 is that the primary responsibility for the management of solid waste -- including solid waste treatment -- rests with the counties and their authorized legal entities, the solid waste management districts. See KRS 109.011(6) and KRS 109.041(13).

It is our opinion that the Kentucky General Assembly has delegated to the counties, and through them, to such special districts as are created, broad authority to regulate all aspects of solid waste management and disposal. This authority may be exercised cooperatively by both a county and a special district, which is what occurred when the fiscal court adopted the rules and regulations of the solid waste management district as an ordinance. KRS 67.083(8)(a). However, any regulation or ordinance must not be arbitrary and must also be consistent with state statutes and regulations upon the subject. As stated in KRS 67.083(6):

If a county is authorized to regulate an area which the state also regulates, the county government may regulate the area only by enacting ordinances which are consistent with state law or administrative regulation:

* * *

(b) If the state statute or administrative regulation prescribes a minimal standard of conduct, a county ordinance is consistent if it establishes a standard which is the same as or more stringent than the state standard.

The regulations of the Simpson County Solid Waste Management District, adopted as an ordinance by the Simpson Fiscal Court (hereinafter "Regulations"), were "promulgated pursuant to KRS 67.083(o) and KRS [Chapter] 109." Regulations, 1.30. No definition of solid waste is provided in KRS 67.083(o), but "solid waste" is defined in KRS 109.012(9) and in the Regulations, 4.00(50)(a). [1] In our opinion, these definitions, which include "any garbage, refuse, sludge and other discarded material," are broad enough to cover both those parts of solid waste which can be treated or recycled and those which cannot. Therefore, we conclude that the petroleum contaminated soils which are treated by Triple M Land Farms, Inc. are solid wastes within the meaning of both the definition in KRS Chapter 109 and in the Simpson County Solid Waste District Regulations. [2]

You have provided a copy of the ordinance which was enacted August 6, 1991. In reading over the ordinance, there is some question as to which parts of the ordinance, as presently written, would apply to this facility. This issue, however, is secondary to that posed by your question, which is the power to

The second question is:

2. Does the Simpson County Solid Waste Management District, by way of its regulations as adopted by the Simpson County Fiscal Court, have the authority to impose misdemeanor penalties upon those who violate the provisions of the regulations?

It is our opinion that the ordinance provision regulating solid waste is legal under the broad police powers of fiscal court. The fiscal court in such an ordinance may prescribe reasonable penalties for a violation of ordinance provisions. KRS 67.083(7) explicitly recognizes that ordinances may provide penalties for their violation.

We hope that this letter has been of assistance to you.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

John S. Gillig

Assistant Attorney General


Footnotes

[1] We note that the Regulations also define a "landfarming facility" as a "facility for land application of sludges or other residual waste by any method for the purposes of disposal" (emphasis added). Regulations, 4.00(13)(e). Although called a "landfarm," this definition does not apply to Triple M Landfarms, Inc. because they are not a disposal facility -- the soil deposited on the land is sent to another site for final disposition as construction fill.

[2] It is assumed that the petroleum contaminated wastes are not "hazardous wastes" as regulated by KRS 224 Subchapter 46 or "special wastes" as defined by KRS 224.50-760, and accompanying regulations. See KRS 109.041(4) (prohibiting local regulation of most special wastes).enact an ordinance regulating this type of facility, not whether this particular ordinance applies. We therefore defer consideration of the application of the existing ordinance to this facility, or whether the provisions of the present ordinance, if applicable, are more stringent than any applicable state standard.