Dear Honorable Lewis,
The Attorney General has received your request for an official opinion asking, in effect:
Once a Board of County Commissioners has created a solid waste management system pursuant to 63 O.S. 2257 (1985), does the County Board have the authority to control the location of disposal sites within the county which accept solid waste from an incorporated city or town within the county? Further, may the County Board control which site such a city or town may use?
The Oklahoma Solid Waste Management Act ("the Act"), 63 O.S. 2251 through 63 O.S. 2265 (1981), sets out the criteria for collection and disposal of solid waste in Oklahoma. Several statutory schemes are made available whereby a city, town or county may properly collect and dispose of solid waste generated within its boundaries.
63 O.S. 2257 of the Act authorizes a Board of County Commissioners ("County Board") to provide a solid waste management system to handle "solid wastes generated or existing within the boundaries of such county." 63 O.S. 2257 also authorizes a County Board to enter into an agreement or contractual arrangement whereby the County Board additionally assumes responsibility for solid waste generated within incorporated cities or towns whether within that county or other counties. The County Board is further authorized to enter into agreements with other parties including other counties, one or more towns or cities, governmental agencies, private persons, trusts, or any combination of the preceding whereby the other party or parties agree to provide a solid waste management system for the county or any portion of the county.
Simply stated, a County Board has three options for the collection and disposal of solid waste generated within its boundaries:
(1) assume total responsibility for handling solid waste generated or existing within that county; (2) assume responsibility for waste generated or existing within that county and also agree to be responsible for waste of certain incorporated cities and towns; or (3) agree to allow some third party or parties to assume responsibility for all or part of the county's waste.
The answer to your question is dependent, in part, upon which option a County Board has chosen.
63 O.S. 2257(e) of the Act gives a County Board the
"right to establish policies for the operation of a solid waste management system including hours of operation, character and kind of waste accepted at the disposal site, and such other rules as may be necessary for the safety of the operating personnel." (Emphasis added).
Thus, if a County Board has created a solid waste management system, it has authority to establish certain policies for the operation of a disposal site that is part of the solid waste management system.
The fact that the County Board's authority is limited to disposal sites that are part of the solid waste management system created by the county is emphasized by 63 O.S. 2256 (1981). That section authorizes all incorporated cities and towns, subject to approval by the State Department of Health, to provide a solid waste management system. They are also authorized to:
"establish policies for the operation of a solid wastes management system including hours of operation, character and kind of wastes accepted at the disposal site, and such other rules as may be necessary for the safety of the operating personnel." 63 O.S. 2256(f) (1981).
Clearly, incorporated cities and towns have authority to create their own solid waste management system, with the same controls over that system, independent of one which may have been created by the County Board.
The operation policies enumerated in 63 O.S. 2257(e) of the Act do not appear to include such considerations as the "location" or which disposal site an incorporated city or town may use. However, "such other rules as may be necessary for the safety of the operating personnel" might include location decisions if a particular location was considered to be unsafe for operating personnel. Whether a particular location is unsafe is a question of fact which cannot be answered as a matter of law. This section does not authorize the County Board to dictate which disposal site a city or town uses. "[C]ounties, cities and towns have no inherent power or authority, but possess, and can exercise, only those powers granted in express words or necessarily or fairly implied or incidental to the powers expressly granted." Shipp v. Southeastern OklahomaIndustries Auth., 498 P.2d 1395, 1398 (Okla. 1972).
Your question does not state whether the city or town in question has entered into an agreement or contractual arrangement with the County Board pursuant to 63 O.S. 2256 or 63 O.S. 2257 (1981) as amended, wherein the County Board has assumed responsibility for solid waste generated within that city or town. Assuming the city or town has entered into such an agreement, the County Board's authority to determine the location and which disposal site the city or town uses would be dependent upon the terms of the agreement and the solid waste management system.
If a particular city or town has not entered into such an agreement or contractual arrangement with the County Board, the County Board has no authority to control the location or determine which disposal site is utilized by the city or town except under the circumstances enumerated below.
Title 63 O.S. 2259 (1981) authorizes the Board of Health to adopt rules and regulations for:
"the transportation of solid waste and disposal sites including, but not limited to, the disposal site location, construction, operation, and maintenance of the disposal site or disposal process as necessary to implement the purposes and intent of this act." (Emphasis added).
63 O.S. 2260 authorizes the Department of Health:
"(4) To examine and approve plans and specifications for solid wastes disposal facilities and inspect construction and operation of solid wastes disposal sites and facilities.
"(5) To issue, continue in effect, revoke, modify or deny, under rules and regulations of the Board permits for the establishment, construction and the operation or maintenance of solid wastes disposal sites and facilities." (Emphasis added).
These sections authorize the State Board of Health to adopt rules regulating disposal site location and operation while the Department of Health is responsible for issuing permits. However, 63 O.S. 2260 of the Act also states the following:
"Notwithstanding the foregoing provisions of this section, any local governing body may by ordinance or resolution adopt standards for the location, design, construction, and maintenance of solid wastes disposal sites and facilities more restrictive than those adopted by the State Department of Health under the provisions of this act." (Emphasis added).
The County Board can therefore adopt location standards for disposal sites which are more restrictive than those adopted by the State Department of Health. By the adoption of such standards, the County Board has some control over the location of disposal sites within the county boundaries. This section does not confer any authority to the County Board to control which disposal site an incorporated city or town within the county may use.
It is, therefore, the official opinion of the Attorney General thatonce a Board of County Commissioners ("County Board") has created a solidwaste management system pursuant to 63 O.S. 2257 (1985), the County Boardhas, subject to rules and regulations promulgated by the Board ofHealth, authority to control the location of disposal sites within thecounty which accept solid waste from an incorporated city or town withinthe county if each of the following criteria are met: (1) the disposalsite is part of the solid waste management system created by the CountyBoard; (2) the city or town has entered into an agreement or contractualarrangement with the County Board whereby the County Board has assumedresponsibility for the city or town's waste, and (3) the agreementauthorizes the County Board to exercise such authority. The County Boardmay also control which disposal site the incorporated city or town usesif the same criteria are met. In lieu of the above, the County Board may not control which disposalsite an incorporated city or town within the county may use. The CountyBoard may, however, pursuant to 63 O.S. 2260 (1981), adopt standardswhich are more restrictive than those adopted by the State Department ofHealth for the location of a solid waste disposal site.
MICHAEL C. TURPEN, ATTORNEY GENERAL OF OKLAHOMA
SARA J. DRAKE, ASSISTANT ATTORNEY GENERAL CHIEF, PUBLIC PROTECTION DIVISION