January Ohio s Solid Waste Law: Twenty Years of Success Key Legislative Priorities

Transcription

1 January 2013 Ohio s Solid Waste Law: Twenty Years of Success Key Legislative Priorities

2 Ohio s Solid Waste Law: Twenty Years of Success Key Legislative Priorities January 2013 TABLE OF CONTENTS Section Page INTRODUCTION ISSUE 1 - FLOW CONTROL AND DESIGNATION ISSUE 2 - SOLID WASTE RULEMAKING ISSUE 3 SOLID WASTE FEES ISSUE 4 - SOLID WASTE DISTRICTS AND AUTHORITIES SUMMARY This SWANA mark used by permission. A reference to SWANA policy cannot necessarily be considered a SWANA endorsement or recommendation of the overall content and objective of this publication. i

3 Ohio s Solid Waste Law: Twenty Years of Success Key Legislative Priorities INTRODUCTION Trash or solid waste management is one of local government s most important functions. It is a critical service that protects the health, safety and welfare of all Ohio residents. Managing trash is a legitimate public sector responsibility and has been for more than a century. Protecting citizens from disease and ensuring that waste is managed in an appropriate and environmentally protective manner has been central to the role of our elected officials, public managers and solid waste professionals in both public and private sectors. Today, the role of public officials and managers (protecting health, safety and welfare) remains the same; at the same time the professional industry and technology is changing. As this industry continues to evolve, waste is more frequently becoming a commodity and used as a raw material to: fuel energy projects, turn waste materials into new products and beneficially reuse waste materials, while still being protective of the environment. The future includes many opportunities for economic development with solid waste materials. The role of local government in this process remains important and should continue well into the future. This booklet provides a background on solid waste management issues under evaluation by solid waste professionals in Ohio. This booklet also provides context to several of the major areas of law that were identified by the Ohio Environmental Protection Agency (Ohio EPA) in a process which outlined issues for consideration by the Ohio General Assembly in Specifically, the four main issues presented in this booklet are flow control, rulemaking, fees and solid waste districts/authorities formation. In addition to the four main issues, the County Commissioners Association of Ohio (CCAO) and the Organization of Solid Waste Districts of Ohio (OSWDO) developed thirty-two legislative priorities for consideration by the Ohio General Assembly. A list of these priorities is presented in the CCAO 2013 Legislative Priorities for Ohio Legislators. Why Did the General Assembly Pass Solid Waste Legislation in 1988? In the mid-to-late 1980 s, solid waste management became a media and environmental focus across the United States. Several factors drove this attention. In 1987, the infamous garbage barge (Mobro 4000) began a 6,000 mile journey along the east coast, Gulf of Mexico and Bahamas to find a port that would accept 3,000 tons of Islip, New York garbage. Although not impacting Ohio directly, the voyage of the Mobro brought significant attention to the issue of landfill capacity, interstate commerce and management of what is now called infectious waste. The Mobro story ended after numerous injunctions and court battles. The garbage was eventually incinerated in Brooklyn. 1

4 At approximately the same time the garbage barge was attracting attention, the Ohio Environmental Protection Agency (Ohio EPA) analyzed data from landfills located in Ohio, confirming significant quantities of solid waste were arriving from out-of-state. Records for 1987 (Ohio EPA, 1992 Facility Data Report) showed that receipts of out-of-state waste increased by more than 66% over the previous year. In 1988, out-of-state waste totaled 2.8 million tons and by 1989 it had increased to 3.7 million tons. Most of the out-of-state waste delivered to Ohio landfills during this period originated from New York, Pennsylvania and New Jersey as those states struggled with insufficient landfill capacity and other related solid waste management issues. At the same time that out-of-state waste poured into Ohio, landfill capacity for local solid waste disposal was limited. In the mid-1980 s, twenty Ohio counties with public landfills reported less than five years remaining capacity. Ohio s capacity to manage solid waste generated in Ohio was nearing a crisis level. For all these reasons, the General Assembly undertook a complete review of Ohio s solid waste management system. The outcome was a comprehensive overhaul to Ohio s existing solid waste law. Ohio House Bill 592 (HB 592), effective June 24, 1988, became the guide for the Ohio EPA, local health departments, county commissioners, cities, villages, townships and solid waste facility operators (public and private). HB 592 required: county government to form solid waste management districts as a first step to ensure and plan that solid waste (an important statewide public health and welfare issue) was managed at the local level with input and oversight from the public; solid waste management districts to ensure that solid waste collection and disposal, as well as recycling services, are available throughout the district and that resources are also available to prevent littering and remedy improper disposal activities. When collection, disposal and recycling services are not accessible or economically available, perhaps to a rural township, a remote village, or a cash-strapped city, it is the function of districts to see that services are provided - either by contracting with a private service or by providing it through a facility developed by the district. Solid waste districts were created to make sure everyone in Ohio has access to solid waste disposal and recycling; Ohio EPA to adopt new regulations that require Best Available Technology (BAT) to protect Ohio s groundwater resources near landfill operations. Regulations would include requirements for synthetic and clay liner systems, groundwater protection, siting restrictions for facilities and other environmental protections; owners and operators to submit disclosure statements to ensure that entities with persons with criminal records are not allowed to operate licensed or permitted solid waste facilities in Ohio; and 2

5 districts to spend revenues in accordance with allowable uses defined in the Ohio Revised Code. Maintaining a system where the public has opportunities to influence decisions on cost, debt, facilities, new technology, operations, environmental protection and programming is one of those exercises in our democracy that is rare today. The system established by HB 592 in 1988 ensures the public not only has a voice, but can be directly involved in the waste management process impacting their well-being through the public representatives on the policy committee, technical advisory committees, public hearings, and their elected officials. Private sector businesses also have a voice in the public process through their policy committee representatives and public hearings. Has Ohio Government Achieved the Solid Waste Goals Set Out In the Original Law? Managing solid waste is a local issue and needs to be managed where the basic service is provided. The key elements establishing solid waste districts, requiring the districts to plan for future capacity with public oversight, and the requirement for 60% or 75% approval of the plan from municipalities and townships assured a countywide consensus that continues to work over twenty years later. Thus, the solid waste management system created by HB 592, including the tools for managing the flow of solid waste, adoption of rules and levying fees and rates for disposal at public sector facilities, must be approved by a substantial majority of the local governments that are impacted by the plan. Since the passage of HB 592 in 1988, local government has made significant progress on many of the concerns identified when the law was debated. Landfill capacity in most parts of Ohio is no longer a significant concern. Currently, Ohio has more than 30 years of remaining landfill capacity at publicly available landfills (Ohio EPA, 2011 Facility Data Report). Some of the specific solid waste management districts/authorities accomplishments include: creating an open, public and regional process for solid waste management planning; reducing Ohio's reliance on landfills by increasing waste reduction, recycling and composting activities statewide; implementing best available technology in the design, construction and operation of solid waste facilities that is protective of groundwater, public health and the environment; assuring that solid waste facility operators have no criminal backgrounds; creating and investing in a collection infrastructure to support the reclamation of recyclable materials, and supporting job creation statewide in the recycling industry; 3

6 developing community-wide recycling programs that are now accessible in municipalities and townships across the state; and creating numerous solid waste management programs providing service for hazardous materials, electronics, tires, and organic materials. Current Ohio law provides solid waste districts with tools such as flow control to ensure the solid waste marketplace operates efficiently and protects publicly funded and operated facilities. When creating this law in 1988, the General Assembly ensured that control of solid waste management remained a local issue. Although many of the tools used by Ohio government have been challenged in courts both locally and nationally, including the United States Supreme Court, the use of these tools has generally been upheld as reasonable and appropriate. As we enter the next era of solid waste management in Ohio, the focus should begin to shift more to the following: new technology using solid waste as a raw material for fuel and products; creating efficiencies in processing, collecting, programming and planning for the management of solid waste; building on the success of past public/private sector partnership opportunities; increasing environmental responsibility to manage solid waste materials for the highest and best use; and preparing plans for districts, political subdivisions, and institutions (universities, schools, hospitals, transportation facilities) that are focused on waste reduction, elimination of waste, treating waste as a commodity and returning this raw material to commerce and energy production. This booklet addresses the main issues currently under consideration for revising Ohio solid waste law, including: Issue 1 Flow Control and Designation; Issue 2 Solid Waste Rulemaking; Issue 3 Solid Waste Fees; and Issue 4 Solid Waste Districts and Authorities. A summary of the issues is included at the end of this booklet. 4

7 ISSUE 1 - FLOW CONTROL AND DESIGNATION CCAO strongly supports keeping flow control as a necessary management tool for solid waste districts/authorities. What is Flow Control and Designation? Flow control is a power authorized by Ohio law that allows solid waste districts to designate, or direct, where solid wastes generated within or transported into the district or jurisdiction must be taken for disposal, transfer, resource recovery or recycling. The General Assembly required all solid waste districts and authorities to prepare solid waste plans. These plans must include a clear statement as to whether the Board of County Commissioners, Board of Directors for joint county solid waste districts, or authority trustees are authorized or precluded from establishing facility designations. A facility designated in a solid waste plan has the right to receive waste from that district. Specifically, the Policy Committee (membership set by statute) prepares the solid waste plan and determines facilities to be designated. In 1993, the General Assembly addressed flow control with amendments to Ohio s solid waste law that provided two new sections on designation. The first section (ORC ) concerned public facilities with outstanding debt and the second section (ORC ) concerned designation of public and private solid waste facilities, recycling facilities or activities where no public debt is outstanding. This second section allowed districts to continue designating public and private facilities. The General Assembly understood that the tool of flow control and designation was a significant exercise of local government authority. As a result, the new sections of the law made the designation of facilities subject to rigorous requirements for public notice and public input. The process of designation includes numerous public notices and mailings to the largest generators, newspaper advertisements, Board of Commissioner resolutions and public hearings. As with any component of the solid waste plan, designations must first be included by the Policy Committee and then be approved by at least 60% of the political subdivisions (including the largest municipality) and county commissioners. Solid waste facility designations have been authorized in the long-range solid waste management plans adopted by more than 25% of Ohio counties. Many Ohio solid waste districts have designated private-sector solid waste facilities to receive waste from the district. Figure 1 identifies the privately-owned designated solid waste facilities which have been designated in solid waste management plans. Why is Using Flow Control or Designation Important? Many states in the United States and Provinces in Canada provide local government with the authority to adopt flow control ordinances, regulations or procedures to ensure that municipal solid waste is delivered to specific disposal facilities. In simple terms, flow control protects the public health, safety and 5

8 welfare by ensuring solid waste is delivered to facilities that are required to include best available technology and are licensed and inspected by the state. Flow control has been an option for local government for many decades. Actually, flow control was specifically upheld as an exercise of local police power in Ohio in State ex rel. Moock v. Cincinnati (1929). In the majority of the cases across the United States, flow control has been used prudently and carefully to ensure that public sector and private sector interests in solid waste facilities are locally managed and investments of public dollars are protected. Figure 1 Privately-Owned Designated Solid Waste Facilities Flow control ensures that public facilities, that have authorized public funding for the construction and operation of facilities, receive sufficient quantities of solid waste and/or recyclable material to provide the revenue necessary to pay the debt back to lenders. Public facilities would have very limited options for obtaining financing and bond authority if there was not the assurance that the facility would have a revenue stream adequate to pay back the debt. Flow control is also about achieving sufficient economies of scale to support the operation of a facility at a reasonable cost to users. Flow control can be used as a means to obtain the best possible price for disposal by aggregating waste streams (for example, Miami County and Montgomery County combining their waste streams and directing it to a single facility in order to get the best price). In other situations, flow control enables border districts to obtain a sustainable stream of revenue for plan implementation based on designation agreements 6

9 because the district is not able to collect generation fees from nearby out-ofstate landfills. Flow control also allows the operation of publicly owned transfer stations to obtain revenues required to pay for remediation and other legacy costs at old county landfills that were closed because of tougher regulations implemented under HB 592. It is not clear how counties could pay these legacy costs without flow control. Finally, there are also districts (such as Adams-Clermont and Wood) that use flow control as a mechanism to ensure a level playing field between in-state facilities and out-of-state facilities in the competition for waste streams. For example, in Wood County, the publicly-owned county landfill and the privately owned Evergreen Landfill pay governmental fees to Ohio EPA and the SWMD. These fees provide a cost advantage to Republic s Vienna Junction Landfill located just north of the Ohio/Michigan border. Therefore, Wood County uses flow control designation agreements to impose an equal SWMD fee of $2/ton on the disposal of Wood County waste at any designated facility, which forces Vienna Junction to pay the same amount of district fees as Evergreen and the County landfill. Thus, flow control is a device that enables districts to remove competitive disadvantages that favor out-of-state waste businesses over in-state waste businesses. Flow control also provides that: revenues collected for the operation of solid waste facilities provide services to local businesses, industry and the public; millions of dollars in revenues will be kept in the local Ohio economy and not transferred to other states; local governments can control the rate structure allowing for predictable budgeting for solid waste services and allowing private businesses to predict their disposal costs; and publicly-owned landfills and transfer stations can meet their capital and operational financial requirements. What Have the Courts Said About Flow Control? Solid waste districts that provide solid waste and recycling facilities and services are public utilities that are obligated to serve the public without discrimination and at a reasonable price (St. Marys v. Auglaize County Board of Commissioners, 115 Ohio St. 3d 387 (2007)). In contrast, privately owned facilities and services have no special obligations to the public, and may charge whatever they wish for their services (Rumpke Sanitary Landfill Inc. v. Colerain Twp. (2012)). 7

10 The Ohio Supreme Court unanimously stated in Rumpke Sanitary Landfill Inc. v. Colerain Township that: the lack of governmental regulation means that Rumpke determines to whom it provides its service and how or when that service is provided. The general public has no legal right to demand or receive Rumpke s services. Therefore, there is no assurance or guarantee that Rumpke will provide its services to the public indiscriminately and reasonably, nor is there anything preventing Rumpke from arbitrarily or unreasonably withdrawing its services. Rumpke could lawfully close its doors to the public. Furthermore, as a private company, Rumpke has the ability to set its own rates without any governmental oversight. Flow control (designation) is not just an issue in Ohio. The Solid Waste Association of North America (SWANA), a professional solid waste management organization with more than 8,000 solid waste professionals as members including both public (60 percent) and private sector organizations (40 percent), issued the following policy statement regarding flow control: SWANA recognizes flow control as an effective and legitimate instrument of integrated municipal solid waste management. To the extent it is allowed by law and after public discussion, including the consideration of economic, environmental and social impacts and input from residents, businesses and other interested parties, flow control can be implemented without unduly interfering with the free movement of municipal solid waste and recyclables across jurisdictional boundaries. The SWANA policy goes on to state: the general principal of free movement of solid waste necessarily has reasonable and appropriate limitations and among them, practices favoring the public sector in the realm of a traditional local government activity. Ohio s flow control statute meets this policy standard by providing public discussion, input from residents, businesses and interested parties, as well as a vote on the policy through the political subdivision representatives during the plan ratification process. The SWANA flow control policy acknowledges that the U.S. Supreme Court has made important decisions on flow control cases. SWANA policy incorporates the following statement from the majority opinion in the Court s ruling in Oneida Herkimer: 8

11 Laws that favor the government in such areas but treat every private business, whether in-state or out-of-state exactly the same do not discriminate against interstate commerce, Chief Justice Roberts wrote in the Oneida-Herkimer majority opinion. SWANA s policy concludes: Moreover, the public comment and participation called for in the flow control policy promotes an early stage benefits versus burdens analysis, which every flow control measure must withstand in any court challenge. Based on these considerations, SWANA is satisfied that its flow control policy is consistent with other SWANA policies and with U.S. Supreme Court decisions. Ohio s designation process provides for notification and allows private sector entities to determine whether they want to participate in the designation or flow control process. Private sector firms are treated equally and the playing field is level for all participants. The U.S. Supreme Court and other federal courts have upheld local flow control measures, including in Ohio (Maharg Inc. v. Van Wert Solid Waste Management District and United Haulers Association Inc. v. Oneida Herkimer Solid Waste Management Authority). The Process to Implement Flow Control in Ohio Requires a High Standard. Ohio s solid waste planning requirements include extensive public comment provisions, hearings and ratification procedures, giving public and private facility operators ample opportunities to comment on flow control measures. These public involvement measures were placed in the law by the General Assembly to ensure all interests are represented and provide opportunities to work with local solid waste districts before any designation or flow control decisions are finalized. More than 20 solid waste districts in Ohio have exercised the right to adopt flow control and designate facilities as illustrated in the map in Figure 2. 9

12 Figure 2 Ohio Districts/Authorities That Implemented Flow Control Finally, the private sector has stated their concerns about flow control and designation. However, in many cases, the private sector enjoys the advantages of being a designated facility in many of the plans adopted by districts in Ohio. There are districts that have designated private sector facilities to receive all of the district s solid waste. There are also private sector facilities that have requested designated status in which case they would have received a competitive advantage in the marketplace over other facilities. Again, the General Assembly determined that designation and the competitive market place requires balance and the decision to designate is based on many local factors. The local policy committees established in Ohio law must weigh the advantages and disadvantages of designating a facility. This process recognizes the fact that garbage collection and disposal is a core function of local government in the United States. The General Assembly has concluded that local government in Ohio plays a vital role in waste management. Flow control and designation are tools in the solid waste management tool box. The decisions regarding flow control and designation are determined through public decision-making and a transparent public process at the local level. 10

13 ISSUE 2 - SOLID WASTE RULEMAKING CCAO strongly supports preserving the rule-making authority for solid waste districts/authorities. The General Assembly crafted Ohio law to provide solid waste districts and authorities with specific rule-making authority. What Types of Rules Can Ohio Solid Waste Districts and Authorities Adopt and Enforce? There are four categories of rules that the Board of County Commissioners of a county district, Board of Directors of a joint district or Board of Trustees of an authority may adopt, publish, and enforce. These include rules to: (1) manage, prohibit or limit the waste stream; (2) maintain and protect collection and other facilities and their operation; (3) implement inspection programs for waste generated outside the state; and (4) exempt owners and operators from township zoning when the zoning was adopted within two years prior to the filing of an application. Additional information regarding the statutory specifications for each of these four categories of rules follows: (1) Rules to manage, prohibit or limit the waste stream. A solid waste district/authority can adopt rules prohibiting or limiting the receipt of solid wastes generated outside the district/authority (or outside a service area prescribed in the solid waste management plan) at facilities located within the district. However, rules may not be adopted with respect to private sector solid waste disposal facilities located within the district unless: (a) the district/authority submits an application to the Director of Ohio EPA that demonstrates there is insufficient capacity to dispose of all solid wastes that are generated within the district/authority at facilities located within the district; and (b) the Director approves the application. (2) Rules to maintain and protect collection and other facilities and their operation. A solid waste district/authority can adopt rules governing the maintenance, protection, and use of solid waste collection or other solid waste facilities located within its district. The rules adopted under this section shall not establish design standards for solid waste facilities and shall be consistent with the solid waste provisions of Chapter The rules adopted under division (G)(2) of this section may prohibit any person, municipal corporation, township, or other political subdivision from constructing, enlarging, or modifying any solid waste facility until general plans and specifications for the proposed improvement have been submitted to and approved by the Board of County Commissioners or Board of Directors as complying with the solid waste management plan or amended plan of the district. 11

14 (3) Rules to implement inspection programs for waste generated outside the state. A solid waste district/authority can adopt rules governing the development and implementation of a program for the inspection of solid wastes generated outside the boundaries of this state that are disposed of at solid waste facilities included in the district s solid waste management plan or amended plan. A Board of County Commissioners or Board of Directors or Board of Trustees or its authorized representative may enter upon the premises of any solid waste facility included in the solid waste management plan or amended plan for the purpose of conducting the inspections. (4) Rules to exempt owners and operators from township zoning when the zoning was adopted within two years prior to the filing of an application. A solid waste district/authority can adopt rules exempting the owner or operator of any existing or proposed solid waste facility provided for in the plan or amended plan from compliance with any amendment to a township zoning resolution or to a county rural zoning resolution that rezoned or redistricted the parcel or parcels upon which the facility is to be constructed or modified and that became effective within two years prior to the filing of an application for a permit. Which Ohio Solid Waste Districts/Authorities Have Adopted Rules? Many districts/authorities have adopted rules allowed under Ohio law in their solid waste management plans. Figure 3 presents Ohio solid waste districts and authorities that adopted one or more rules. In 2011, Ohio landfills managed 23.5 million tons of solid waste. Publicly available landfills in Ohio have an average remaining lifespan of more than 30 years and collectively have more than 600 million cubic yards of remaining gross volume. 12

15 Figure 3 Districts/Authorities that Adopted One or More Rule Why Are Rules Important to Solid Waste Districts/Authorities? Many districts/authorities that operate facilities have adopted rules governing the maintenance, protection, and use of solid waste collection or other solid waste facilities located within its district. For example, districts/authorities that operate public transfer facilities, collection programs and landfills have adopted rules under this provision of law. A few of the rule titles are presented below: Daily Operation Delivery of Solid Waste to Designated Facilities Waiver from Designation Acceptable Waste Delivery of Source Separated Recyclables to Designated Facilities Prohibition on Combining Source Separated Recyclable Materials with Other Solid Waste 13

16 Prohibition on Disposal of Source Separated Solid Waste Recyclable Material Delivery of White Goods Prohibition on the Disposal of Hazardous and Similar Material Unacceptable Waste Rule Construction, Modification and Improvements to Solid Waste Facilities Compliance of Improvements with District Solid Waste Management Plan Maximum Feasible Utilization Hours of Operation Facility Outage Record Keeping Billing and Collection Hauler Responsibility Requirement for Submission and Approval of Plans for the Construction of Solid Waste Facilities Annual Reports to be Submitted by Facility Owners and Operators, and Commercial Haulers Disposal of Separated Unacceptable Yard Waste Prohibition Against Tampering or Damaging Facilities Penalties for Violating Rules Enforcement The rules adopted by solid waste districts/authorities are presented to the public and adopted by the Commissioners, Board of Directors or Board of Trustees in public meetings or hearings. This process allows the public (including the private solid waste industry) an opportunity to comment and offer suggestions for changes. In some cases, the private sector is represented on the policy committees that establish or authorize the rules for the plan. The rules are important tools to allow public facilities to operate efficiently, safely and within the rules of the Ohio Environmental Protection Agency. The rules provide the districts/authorities that have debt an ability to assure the financial community that revenues will be adequate to pay back bonds and notes. In addition, the entire solid waste district/authority program is built around the development of a solid waste management plan that is ratified and approved by political subdivisions and their representatives. Solid waste plans 14

17 provide districts with the authorization to adopt rules. Any district/authority where the public determines it is not in their best interest to authorize regulations for the local control of solid waste may make that decision and prepare a plan under Ohio law that precludes rule making. Solid waste districts/authorities need rulemaking authority, because unlike cities and villages, districts/authorities do not have inherent police power authority under the Ohio Constitution. If a district needs to regulate the maintenance, protection and use of a facility (for example, to prohibit depositing a specified waste material at the county landfill) there needs to be statutory authority that empowers the district to adopt and enforce such a rule. Districts cannot effectively operate facilities, implement their plans, and carry out their mission to provide safe and sanitary solid waste management capacity unless they possess some basic police powers under Ohio statutes. Twenty-four years ago, the General Assembly had the wisdom to provide local government with tools to effectively operate their solid waste management program. Districts/Authorities cannot adopt rules without the approval of local government. The safeguards for indiscriminate use of these rules are in place and have been shown to be effective in governing the use, maintenance and protection of solid waste facilities. Ohio s 52 solid waste districts and authorities reported recycling 3.4 million tons of materials from the residential and commercial sector and 8.9 million tons from industries. A total 12.4 million tons of valuable materials were diverted from landfills in

18 ISSUE 3 - SOLID WASTE FEES CCAO recommends that the fee structures remain unchanged and that funding decisions are made at the local level. Solid waste districts/authorities have the ability to collect revenues through several mechanisms allowed under Ohio law. Among them, they include: tier fees (collection of fees on the disposal of solid waste); generation fees (collection of fees on the generation of solid waste); rates and charges (collection of fees at solid waste facilities or property tax for services provided to district residents and businesses); contract fees (collection of fees paid by private and public waste haulers on waste generated in a solid waste district); and special disposal fees (to fund solid waste management plans for districts without landfills). Ohio law directs the use of fees collected by solid waste districts. The uses for the fees may include: development of solid waste management plans; special waste collection programs; waste diversion programs; recycling infrastructure; solid waste and environmental education programs; grants and revolving loan programs; and other uses specified in Ohio law. Fees on Disposal Solid waste districts/authorities may collect disposal fees on wastes received at a disposal facility located in the district. The fees levied must be less than $1.00 and no more than $2.00 per ton for waste disposed from in-district generators. The fees for out-of-district waste being disposed at an in-district disposal facility must be no less than $2.00 and no more than $4.00 per ton. Fees for out-of-state waste must be the same as the fees for in-district waste. The General Assembly modified the fees for out-of-state waste when it was determined that charging for out-of-state disposal at a higher rate than in-district waste was a violation of the Commerce Clause in the U.S. Constitution. The original law was modified to ensure Ohio s law met the Commerce Clause requirement. 16

19 Figure In-District and Out-of-State Disposal Fees by Ohio District/Authority 17

20 Figure Out-of-District Disposal Fees by Ohio District/Authority Fees on Generation Districts/Authorities may levy a fee on the generation of solid waste. The generation fee is charged on every ton of solid waste that district residents, businesses, and industries generate. If the waste is delivered to facilities outside the district/authority, that facility must collect the fee for the levying district/authority. Districts/Authorities must ratify the fees in accordance with the same procedures to approve a plan. A district/authority that requests a generation fee of greater than $5.00 per ton must ratify and obtain a 75% approval from political subdivisions in the district/authority. Districts/Authorities must spend generation fee revenue in accordance with the allowable uses defined in the Ohio Revised Code. 18

21 Figure Per Ton Generation Fees by Ohio Solid Waste Management District/Authority Rates and Charges Districts/Authorities may fix reasonable rates or charges to be paid by every person, municipal corporation or township that owns premises to which solid waste collection, storage transfer, disposal, recycling, processing or resource recovery service is provided. Contract Fees Several districts have established contract fees with private sector disposal facilities. The contracts assign a cost per ton which is remitted to the district/ authority. 19

22 Contract fees include: designation contract fees; waiver fees; joint use agreement fees; surcharges on out-of-state waste; and other types of fee contracts. Figure Contract Fees by Ohio Solid Waste Management District/Authority 20

23 Disposal Fee Where District Has No Facilities and Enters Joint Use Agreement Ohio law allows districts that have no disposal facilities to enter into an agreement with another district to collect fees for the district without the facility. The generating district can use the fees for any of the allowable uses identified in Ohio solid waste law. Disposal Fee to Fund Solid Waste Management Plan Districts/Authorities may charge a fee of $.50 per ton to fund the development of the solid waste management plan. Very few districts use this fee. Obtaining Approval Ohio law provides solid waste districts with several options to generate revenues to operate facilities and programs. The General Assembly also included several checks and balances in the law to ensure the public is informed and that significant generation fee increases (greater than $5.00 per ton) are subject to higher approval rates. The disposal fee ratification process requires public input and can be accomplished through adoption of the solid waste plan or a separate ratification process, which is shown below: The resolution seeking the fee is published in the local newspaper. The notice is mailed to the political subdivisions and the fifty largest solid waste generators in the district. There is a public hearing. The political subdivisions and the county commissioners must ratify. If the fee increase/decrease is included in the solid waste plan, the ratification process includes a 30 day comment period. The generation fee ratification process follows the ratification process for the disposal fee. The process to change rates and charges include the following: Host a public meeting to present proposed rates and charges. Hold at least three public hearings. Post a notice in the newspaper once each week for three consecutive weeks. The notice must include dates, times and locations for the hearings. 21

24 Solid waste districts/authorities have benefitted from the numerous funding mechanisms Ohio law provides. These mechanisms have provided funding for programs and solid waste facilities that protect the health, safety and general welfare of Ohioans. Funding has allowed local government to make decisions on providing facilities and programming that benefit their communities. Many of these programs assist with the protection of land and water from toxic materials and reduce the opportunity for fires and diseases from open dumping of tires and solid waste. Programs providing citizens with opportunities to return commodities through recycling to a useable product are a direct result of Ohio s solid waste law and the funding tied to generation and disposal. Ohio solid waste districts/authorities are quite diverse with respect to geographic location, population and available resources. But regardless of the differences among districts, all funding decisions are made locally by policy committees that include local elected officials and are endorsed by a super majority of political jurisdictions. The General Assembly that crafted Ohio law recognized that an urban district with a high population density would have different service needs and funding requirements from a rural district in southeastern or northwestern Ohio. The Ohio Revised Code provides districts and authorities with rule making authority to ensure public facilities operate efficiently and safely. 22

25 ISSUE 4 - SOLID WASTE DISTRICTS AND AUTHORITIES CCAO strongly urges the General Assembly to leave the formation and joining of districts up to local decision-makers. There are 52 solid waste districts and authorities in Ohio. Each district/authority was formed in accordance with the Ohio solid waste law. Counties took the new law seriously. They have operated these districts to ensure the safe and sanitary management of solid waste. Ohio law authorized these districts to acquire by purchase or lease, construct, improve, enlarge, replace, maintain and operate such solid waste collection systems within their respective districts and such solid waste facilities within or outside their respective districts as are necessary for protection of the public health. At the time the solid waste law passed in 1988, the General Assembly sought to ensure that Ohioans were protected from inadequately operated facilities and provided with sufficient access to solid waste management services. Figure 8 Ohio s Solid Waste Management Districts/Authorities 23

26 Immediately after the solid waste law went into effect, counties organized into both joint and single county solid waste districts. Regional authorities were formed in accordance with section Joint districts formed generally in areas where there was sparse population. The districts began to develop their solid waste plans to ensure capacity and develop recycling programs to meet the goals of the state. Some districts began to build facilities to process and recycle waste. Other districts began programs to sponsor open-dump cleanups and household hazardous waste collections not provided by the private sector. Many districts continued operating their county-owned transfer and disposal facilities. Each district evaluated their needs and determined whether they were going to be self-sufficient in managing their waste or needed to use facilities outside their district for solid waste management. Again, these were local decisions made by local decision-makers. Districts continue to achieve the following state goals: develop programs to divert waste from landfill disposal; develop programs to increase the use of solid waste as a commodity at sustainable facilities; provide recycling infrastructure; provide technical assistance to Ohio businesses; and develop markets for diverted materials. Solid waste districts/authorities that continue to meet the mandates of the state and Ohio solid waste law should not be forced to combine with other districts where their interests and philosophy may be different. Rural Ohio solid waste management needs differ greatly from urban counties such as Cuyahoga, Franklin, Hamilton, Lucas, Mahoning, Montgomery, Summit and Stark. The Ohio General Assembly should consider encouraging districts to work together and perhaps join together through financial and other incentives. Opportunities for economic development, job creation and using waste and other materials as a raw material should be a focus considered when developing revisions to the solid waste law. Economic and financial management should drive the decisionmaking process. Keeping funding decisions local is the best option for Ohioans! 24

27 SUMMARY The four main issues of flow control, rules, fees and district formation are the key building blocks for the local management of solid waste and protection of public health. Solid waste would be difficult to manage if the public and local decision-makers are not a direct part of the planning, management, and in many cases owners and operators of the system. The public sector is needed to ensure a competitive system is maintained. If left unchecked without rules and government participation, the public health and economic conditions in the local marketplace for solid waste management could be impacted. Districts ensure accessibility of solid waste management, recycling and resource recovery services at reasonable prices throughout the State. Whether solid waste collection and disposal services are provided by the government or the private sector, it is a necessary service that has the attributes of a basic utility that must be accessible and affordable to the general public. You only have to look at developing countries to gain a sense of high respect for everyone that works in the solid waste industry. Changes enacted by HB 592 and other subsequent bills have protected Ohioans health, safety and general welfare. Many of the old landfills or open dumps have been cleaned up. Tire piles with millions of tires have been properly recycled, avoiding mosquito breeding grounds and potential tire fires that contaminate the land and ground water. Programs operated by districts for electronics recycling and household hazardous waste properly recycle and reuse toxic materials. The past twenty-four years have established a strong infrastructure for solid waste facilities and programs in Ohio. This success is directly attributable to the General Assembly and the crafting of a law that provided the private sector with opportunities to grow their business and compete for the waste. We have seen a changing market place over the last five years. The economic downturn has led solid waste facilities and companies to be more competitive to obtain volumes of waste. New technologies that manage waste disposal alternatives are emerging that should emphasize efficiency and using waste as a raw material to create new products or energy. The critical question is not what public sector authority should be removed from Ohio law. The question is how can we improve upon the existing law to provide everyone opportunities to be more effective and efficient while also protecting the public s interest in health, safety and welfare. The current law ensures the public has a say in all aspects of solid waste management in Ohio and they have a voice when determining how much they are willing to pay for it. These are all important factors in our pursuit to ensure a more efficient solid waste management system. 25

28 Local solid waste district contact information: This publication was prepared by the County Commissioners Association of Ohio.