The Honorable Brad Butler, Prosecuting Attorney 19th Judicial District Benton County Courthouse 100 Northeast "A" Bentonville, Arkansas 72712
Dear Mr. Butler:
This opinion is being issued in response to your recent questions regarding the Four County Regional Solid Waste Management District of which Benton County is a member. You indicate that the Four County Regional Solid Waste Management District has amended its regional solid waste management plan so as to require each county in the system to provide solid waste collection service, for a fee, to all citizens, including those in unincorporated areas.
Regarding the Four County Regional Solid Waste Management District's plan, you have presented the following questions:
(1) Is Benton County required to comply with the Regional Solid Waste Management Plan (as amended) of the Four County Regional Solid Waste Management District?
(2) Must Benton County require that all households or residents of the unincorporated areas of Benton County have and pay for a mandatory pick-up of household solid waste?
(3) If the answer to Question 2 is affirmative, must the county submit this system for bidding?
RESPONSE
Question 1 — Is Benton County required to comply with the Regional SolidWaste Management Plan (as amended) of the Four County Regional SolidWaste Management District?
It is my opinion that Benton County is required to comply with the Regional Solid Waste Management Plan (as amended) of the Four County Regional Solid Waste Management District.
The Arkansas Department of Pollution Control and Ecology, pursuant to the authority granted in A.C.A. § 8-6-207(5), has enacted Section 22.202 of Regulation 22 of the Arkansas Solid Waste Management Code, which states:
(a) Compliance With Solid Waste Management Plan — The solid waste management system of each municipality and county shall be in compliance with the solid waste management plan of the regional solid waste management district within which the local government entity is located.
Arkansas Solid Waste Management Code, Regulation 22, Section 22.202(a).
Compliance with the above-quoted regulation is mandatory, given the fact that the Department of Pollution Control and Ecology is statutorily empowered to enforce its regulations, A.C.A. § 8-6-207, and given the fact that failure to comply with the Department's regulations can not only give rise to civil penalties, A.C.A. § 8-6-204(b), but also constitutes a criminal violation. A.C.A. § 8-6-204(a).
In addition, the Arkansas Solid Waste Management Act sets forth two provisions that require that local solid waste management systems (i.e., county and municipal solid waste management systems) be "consistent with" and "in accordance with" the requirements promulgated by the regional boards. See A.C.A. § 8-6-209(4) and A.C.A. § 8-6-212(e).
Upon the basis of these authorities, I conclude that Benton County is required to comply with the Regional Solid Waste Management Plan (as amended) of the Four County Regional Solid Waste Management District.
Question 2 — Must Benton County require that all households or residentsof the unincorporated areas of Benton County have and pay for a mandatorypick-up of household solid waste?
Given the fact that the Four County Regional Solid Waste Management District has required that each county in the system implement mandatory solid waste collection service for a fee in unincorporated areas, it is my opinion, for the reasons stated in response to Question 1, that Benton County must require that all households and residents of the unincorporated areas of Benton County have and pay for solid waste collection.
Each county is required by law to provide a solid waste management system to all incorporated areas within the county. A.C.A. § 8-6-212(a)(1) states:
Each county of the state is authorized to provide, and shall provide, a solid waste management system adequate to collect and dispose of all solid wastes generated or existing within the boundaries of the county and outside the corporate limits of any municipality in the county.
A.C.A. § 8-6-212(a)(1).
In areas that have formed regional solid waste management districts, the primary responsibility for seeing that such a system is provided is placed upon the regional district's board. A.C.A. § 8-6-710(a)(1). Although the counties continue to bear the responsibility of actually providing the system until such time as the district determines in writing that it is able to do so, A.C.A. § 8-6-710(a)(2), the district board may, pursuant to its primary responsibility of seeing that the service is provided, require the counties to provide the system and dictate the manner (i.e., the specific type of service) by which the system is provided. If the district board does so, as has the Four County Regional Solid Waste Management District of which Benton County is a member, the county's system must comply with the district board's requirements. See Arkansas Solid Waste Code, Regulation 22, Section 22.202(a). A failure of the county to comply with the district board's requirements would constitute a violation of state law. A.C.A. § 8-6-204; A.C.A. § 8-6-209(4); A.C.A. § 8-6-212(e).
With regard to the charging of a fee for the service, it should be noted that both the district and the counties are empowered to levy and collect fees for making the service available. See A.C.A. § 8-6-714; A.C.A. §8-6-710(b). These provisions reflect the legislature's intent that the service not be provided free of charge.
Upon the basis of the foregoing, I must conclude that regional solid waste management districts can require that their member counties provide solid waste collection service, for a fee, to residents of the unincorporated areas of the county.
Question 3 — If the answer to Question 2 is affirmative, must the countysubmit this system for bidding?
It is my opinion that if the collection service is to be provided pursuant to a contract that is entered into by the county rather than by the regional solid waste district,1 the county must obtain bids for any such contract that is priced in excess of $10,000.00, as required by the county purchasing laws, subject to the regional board's powers under the provisions of A.C.A. § 8-6-712.
In A.C.A. § 8-6-712, the legislature gave regional solid waste management district boards significant control over the provision of solid waste management services. For example, among other powers, regional boards can prohibit the collection of solid waste by persons not properly licensed by the district, A.C.A. § 8-6-712(a)(2), and can designate the project to which solid waste is delivered for disposal, treatment, or other handling. A.C.A. § 8-6-712(a)(1).
However, if the county, rather than the regional district, is to enter into the contract for collection service, it must, within the parameters of these powers of the board, nevertheless comply with county purchasing procedures as set forth in A.C.A. § 14-22-101 et seq. These statutes require that counties obtain bids for purchases of "commodities" the estimated purchase price of which will equal or exceed $10,000.00. A.C.A. § 14-22-102; A.C.A. § 14-22-104(1). The term "commodities" as used in this statute is defined to include "services other than personal services." A.C.A. § 14-22-101(2). Solid waste collection is clearly a service within the meaning of this statute. I therefore conclude that if the contract for solid waste collection service is estimated to exceed $10,000.00, the county must obtain bids for such contracts, but must also comply with any direction of the regional solid waste management board that is given pursuant to A.C.A. § 8-6-712.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Suzanne Antley.
Sincerely,
WINSTON BRYANT Attorney General
WB:SBA/cyh
1 If the contract is to be entered into by the regional solid waste district, rather than by the county, the district must comply with the bidding requirements of the state procurement laws, set forth in A.C.A. § 19-11-201 et seq. See Op. Att'y Gen. No. 91-442.