Authority of County to Enact Solid Waste User and Availability Fees

August 24, 1993 Ms. Paula C. Bass Pender County Commissioner 5691 Penderlea Highway Watha, North Carolina 28471

Re: Advisory Opinion: Authority of County to enact Solid Waste user and availability fees;

G.S. §153A-292

Dear Ms. Bass:

At your request, we are writing to confirm our earlier telephone opinion that Pender County’s proposed ordinance regarding solid waste fees is not in conflict with the enabling statutes.

We have read your draft letter and discussed the ordinance with Pender County Attorney Dave Morison. In our opinion, the answer to both of your questions is "yes". Pender County, pursuant to the ordinance, may impose a solid waste availability fee on dwelling units and businesses located outside of municipalities who have contracted with private trash collectors. Pender County may impose a solid waste user fee on dwelling units and businesses located inside municipalities who do not contract with private trash collectors because Pender County is providing the full range of solid waste management services and facilities for these users; the municipality in which they are located provides no solid waste service or facility whatsoever.

The ordinance imposes the following fees:

(ii): An annual solid waste "availability fee" imposed on all dwellings and individual businesses outside of municipalities which do contract with recognized collection services.

"Recognized Collection Service" may be provided either by private individual contract or by municipalities within their jurisdictions. The "user fee" is proposed to be $90 per year. The "availability fee" is proposed to be $30 per year.

In addition, an existing ordinance prescribes a tipping fee for disposal of solid waste at the County landfill. Presumably, this fee is imposed on private and municipal solid waste haulers. The current fee is $54 per ton.

G.S. §153A-292(b) authorizes counties to impose two fees: a fee for the use of a disposal facility provided by the county and a fee for the availability of a disposal facility provided by the county. Said fees may not exceed the costs of providing and operating the facilities, but all costs incidental to the county’s handling and disposal of solid waste may be considered, including the costs of the methods of solid waste management specified in G.S. §130A-309.04(a), i.e., the costs of programs for solid waste source reduction, recycling and reuse, composting, incineration and landfill disposal.

The fee for use may be imposed only upon those who actually use the facility(ies). A county may not impose a fee for use of a facility upon a city located within the county, or a contractor or resident of said city unless the fee is based on a schedule that applies uniformly throughout the County. A fee for availability may be imposed on all improved property in the county that benefits from the availability of the facility. A county may not impose an availability fee on property whose solid waste is collected by a county, a city, or a private contractor for a fee if the fee imposed by a county, a city, or a private contractor for the collection of solid waste includes a charge for the availability and use of a disposal facility provided by the county.

According to Dave Morison, Pender County provides a county-wide system of solid waste recycling/convenience centers where solid waste is received for sorting and processing. Recyclable materials and special wastes are separated from the waste stream and handled accordingly. After further separation according to waste type, Pender County transfers solid waste suitable for landfill disposal from the recycling/convenience centers to the landfill provided by the County. Dwelling units and businesses which have no recognized collection services are subject to the $90 "user fee" for the use of the entire spectrum of solid waste management and disposal facilities provided by Pender County.

Dwelling units and businesses served by municipal collection services are not subject to county levy of user or availability fees because all solid waste management services are provided, either directly or by contract, through the municipalities. Municipal solid waste collection includes waste separation service and recycling programs. The municipalities then transport the separated waste to the County landfill, where they pay the per-ton tipping fee for disposal.

Dwelling units and businesses which are not located within areas served by municipal solid waste management programs and which privately contract with a recognized collection service are subject to the fee for the availability of solid waste management facilities other than the landfill disposal facility. The landfill tipping fee paid by the recognized collection service is a user fee which covers landfill disposal only. No fee for the availability of the other Pender County solid waste facilities is paid by the recognized collection service, and thus no availability fee is included in bills to its customers. Pender County, through its recycling/convenience centers, provides the only solid-waste sorting and recycling facilities available to these dwellings and businesses, which benefit from the availability of – and doubtless use – these facilities.

In summary, Pender County’s proposed ordinance imposing user and availability fees for solid waste management facilities is consistent with the requirements of G.S. §153A-292(b), so long as the fees do not exceed the costs of providing the facilities.

Nancy E. Scott Assistant Attorney General John R. McArthur Chief Counsel