Can a North Carolina county charge homeowners and businesses two separate annual solid waste fees, one for using the system and one for the system being available?

Plain-English summary

Pender County proposed two annual solid waste charges: a $90 use fee for dwellings and businesses without a recognized collection service, and a $30 availability fee for those outside municipalities that used a recognized collection service. The county also charged $54 per ton for waste delivered to its landfill. The AG concluded that the proposed ordinance fit G.S. § 153A-292(b), provided the fees did not exceed the costs of providing the facilities.

The statute allowed a county to charge for use of a disposal facility and for the availability of one. A use fee could be imposed only on those who actually used the facility. An availability fee could be imposed on improved property benefiting from the facility's availability. The opinion said the county could consider costs incidental to handling and disposal, including source reduction, recycling, reuse, composting, incineration, and landfill disposal.

For Pender County, properties without recognized collection service used its recycling and convenience centers and were subject to the proposed use fee. Properties served by municipal collection programs were not subject to either proposed county fee; their municipalities supplied waste management services and paid the county landfill tipping fee. Properties outside municipal service areas with private collection service were subject to the availability fee for county facilities other than the landfill. Their haulers' tipping fee covered landfill use, while their collection bills did not include an availability charge for the other county facilities.

The opinion also stated two limits. A county may not impose a use fee on a city, its contractor, or its resident unless the fee follows a schedule applied uniformly throughout the county. It may not charge an availability fee when the county, city, or private contractor's collection fee already includes a charge for availability and use of the county disposal facility. The opinion did not say the uniform-schedule rule forbids exemptions based solely on city residence.

Currency note

This opinion addressed Pender County's proposed fee schedule and the statutes in 1993. Check current statutory text and the services paid for by each charge before applying its analysis to another fee proposal.

Background and statutory framework

G.S. § 153A-292(b), as described in the opinion, authorized fees for use and for availability of county disposal facilities. The charges could not exceed the costs of providing and operating those facilities. The opinion applied that authority to Pender County's recycling and convenience centers, landfill, and the separate collection services used by different properties.

The proposed ordinance distinguished between properties with no recognized collection service, those served by municipal programs, and those using private collection outside municipal service areas. The AG assessed whether each group's other charges already covered the county facilities for which a new fee was proposed.

Common questions

Could Pender County charge a use fee to properties without collection service?

Yes, under the proposed ordinance. The opinion said those properties used the county's recycling and convenience centers and were subject to the $90 use fee, provided the ordinance stayed within the statutory cost limit.

Could the county charge an availability fee to properties using private collection?

For the properties described in the opinion, yes. They benefited from county facilities other than the landfill, and their private collection bill did not include an availability fee for those facilities.

What did the opinion say about properties served by municipal collection?

They were not subject to either proposed county fee. The municipalities provided waste management services and paid the tipping fee when delivering separated waste to the county landfill.

Does the countywide schedule rule control city-resident exemptions?

The rule quoted in the opinion controls imposition of a use fee on a city, its contractor, or its resident. The opinion did not say it independently prohibits an exemption based on city residence.

Did the opinion decide whether the county could collect a fee from someone who used an out-of-county facility?

No. It did not address out-of-county disposal or a suit to collect such a fee. It said an availability fee may be imposed on improved property that benefits from a facility's availability.

Citations

• N.C. Gen. Stat. § 153A-292(b) (county user and availability fees for solid waste disposal facilities)
• N.C. Gen. Stat. § 130A-309.04(a) (categories of solid waste management costs)

Source

• Landing page: https://ncdoj.gov/opinions/authority-of-county-to-enact-solid-waste-user-and-availability-fees/

Original opinion text

• (i)
• An annual solid waste "user fee" imposed to recover the costs of operating the recycling/convenience center system located throughout the rural county and to recover the costs of siting, constructing, operating and maintaining solid waste sorting, reduction and disposal facilities in the county. This fee shall be imposed on all dwelling units and individual businesses located in areas outside the incorporated areas of the county which do not have a Recognized Collection Service, and dwellings and individual businesses inside municipalities which do not have Recognized Collection Services.
• (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