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 asked the AG's office whether a proposed solid waste fee ordinance fit within G.S. § 153A-292(b). The proposal had three pieces. First, an annual $90 "user fee" charged on dwellings and businesses that did not have a recognized collection service, applying both in unincorporated areas and inside municipalities that lacked their own pickup. Second, an annual $30 "availability fee" charged on dwellings and businesses outside municipalities that did use a recognized collection service. Third, an existing $54-per-ton tipping fee paid at the county landfill itself, levied on private and municipal haulers when they brought waste to the disposal site.

Assistant AG Nancy E. Scott and Chief Counsel John R. McArthur wrote that the structure was permissible under § 153A-292(b), provided the fees did not exceed the county's actual costs of providing and operating its solid waste facilities. They walked through which categories of property could be charged which fee.

Dwellings and businesses inside municipalities that ran their own collection programs were off the hook for both county fees, because the municipalities were already delivering the full chain of waste handling, recycling, and transport to the landfill, and the municipalities themselves paid the per-ton tipping fee at the landfill. Charging those residents a separate county availability fee on top would be double-billing for the same disposal facility.

Dwellings and businesses outside municipal pickup areas that privately contracted with a recognized collection service paid the county availability fee. The reason: those properties still benefited from the availability of the recycling/convenience center network, even if their household waste itself went to a private hauler. The hauler paid the tipping fee at the landfill for actual disposal, but no one was paying for the recycling/convenience infrastructure unless the resident paid the availability fee.

Dwellings and businesses that had no recognized collection service at all paid the higher $90 user fee, because they were the ones actually using the county's recycling/convenience center network to drop off their own waste.

Two important limits anchored the analysis. First, the total of the user and availability fees could not exceed the costs of providing the facilities. The statute let the county count all costs incidental to handling and disposal, including the recycling, reuse, composting, incineration, and landfill costs identified in G.S. § 130A-309.04(a), but it could not be a profit center. Second, a county could not impose a user fee on a city or on a contractor or resident of a city unless the fee was based on a schedule applied uniformly throughout the county. The uniformity rule prevented selective fee structures targeting one municipality's residents.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The North Carolina solid waste statutes have been substantially restructured since 1993 and the cross-references in this opinion (G.S. § 153A-292, § 130A-309.04) have been amended multiple times.

Background and statutory framework

The 1989 Solid Waste Management Act gave North Carolina counties the primary responsibility for handling solid waste generated within their borders. To pay for that work, the General Assembly added G.S. § 153A-292(b), authorizing two distinct types of charges: a use fee tied to actual use of a county facility, and an availability fee tied to the property's eligibility to use the facility. Both fees were capped at cost recovery.

By 1993 most North Carolina counties were running hybrid systems. Municipalities collected waste from their residents and delivered it to a county landfill. Rural areas usually lacked municipal pickup, so counties operated recycling/convenience centers where residents could drop off household waste and recyclables. The funding question was how to allocate the cost of that two-tier system fairly.

The AG's analysis turned on the principle that a property should be charged once, not twice, for the same service. Where a municipal pickup program already included the landfill cost (because the city paid the tipping fee at the landfill on the waste it delivered), the county could not also levy an availability fee on those city residents. Where a private hauler was used and only paid the tipping fee, that fee covered landfill use only, not the recycling/convenience network, so the resident still had to pay the availability fee for the part of the system that benefited them.

The opinion did not address one open question: whether a county could charge separate fees in calendar years where it had no actual revenue shortfall in any single line item, so long as the total fees did not exceed the total system cost. The statute's "may not exceed the costs" language was read as a cap on the combined fees and combined costs, leaving the county flexibility in how it apportioned the burden among user and availability payers.

Common questions

Could the county set the user fee high enough to also pay for the landfill, on top of the tipping fee paid by haulers?

Only if the combined revenue did not exceed the county's combined costs. The statute capped total fees at the county's actual operating and capital costs across the whole solid waste system. So in principle a county could shift more of the burden onto user-fee payers, but it could not collect more than it spent.

Could Pender County exempt municipal residents from both fees just because they were in a city?

No, not on the basis of city residence alone. The statute required user fees imposed on city residents or contractors to be based on a schedule applied uniformly throughout the county. The reason this opinion let Pender exempt municipal residents was that those residents were already paying for the same disposal facility indirectly through their city's pickup contract, not because they lived inside the city.

What about dwellings in city limits where the city did not run a pickup program?

Those residents would owe the $90 user fee, the same as rural residents without recognized collection service, because their use of the county recycling/convenience network was the same.

Could the county sue a homeowner who refused to pay the availability fee while privately hauling all their own waste to an out-of-county facility?

The opinion did not directly address that, but the statutory logic was that the availability fee was earned by the county's continued operation of the facility, not by any particular trip the homeowner made. If a homeowner never set foot on a county facility but the county was ready to serve them, the fee was still owed under the statute.

Did the cost-recovery cap include capital costs of building new facilities?

Yes. The opinion described § 130A-309.04(a) costs as including "the costs of siting, constructing, operating and maintaining solid waste sorting, reduction and disposal facilities," which is broader than year-over-year operations.

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