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KLC opinion favors Radcliff in waste plan

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League: County cannot control trash from second-class cities

By Marty Finley

At Radcliff’s request, the Kentucky League of Cities released an opinion this week arguing county government cannot take control of a first- or second-class city’s solid waste management system without the city’s consent, based on exemptions written into Kentucky State Law.

James D. Chaney, chief governmental affairs officer for KLC, in the opinion said a first- or second-class city has the authority under state law to take “sole responsibility” for developing its portion of a county solid waste management plan unless the city cedes its portion to the county.

Radcliff city government sought the legal opinion after being granted a two-month extension of the deadline for the Energy and Environment Cabinet on Hardin County’s solid waste management plan. Mayor J.J. Duvall asked for the extension, which ends Dec. 3, while the city sought clarification on its obligations for participating in the plan.

The plan is a five-year outline of the county’s waste system that reviews strengths, weaknesses and action plans on aspects such as collection and disposal.

“KRS 224.43-345 sets forth the requirements for contents of a solid waste management plan, and seems to clearly envision disposal as part of waste management,” Chaney states in the opinion. “The statute requires the plan to include statistics, goals and solutions for waste generation, collection and disposal, including specific information relating to municipal solid waste disposal facilities and management facilities. Thus it seems a second-class city would need to include disposal as part of its portion of the plan. Given that second-class cities are granted this authority, the county would not be able to mandate particular aspects of collection and disposal planning without the city’s consent.”

The letter by KLC is only an opinion and is not legally binding.

Duvall said the opinion shows the city was working by the letter of the law in its refusal to rubber stamp a plan lawmakers have personal reservations about.

Hardin County Judge-Executive Harry Berry has said Radcliff’s refusal to opt into the county’s solid waste plan appeared to be “spiteful” because of Hardin Fiscal Court’s refusal to assign the city a county recycling trailer. He also has described Radcliff’s delay as “retaliation” in a letter to the state because the city was opposed to a county ordinance mandating all trash generated within the county be transferred to Pearl Hollow Landfill.

Duvall described these depictions as inaccurate because the county failed to recognize the city’s viable role in development of the plan.

Asked about the city’s next course of action, Duvall said he has no desire to withhold trash from Pearl Hollow Landfill but a partnership must be a “two-way street” with the county recognizing Radcliff’s stake in the development of any solid waste plan.

Tim McNally of Waste Management, Radcliff’s franchisee waste hauler, said in an email the city provides around 12,000 tons of waste to the landfill each year, which Duvall said equates to about $350,000.

“I don’t want to pull $350,000 out of the landfill,” he said. “That’s not my goal.”

But he said the landfill already is running a deficit of more than a half-million dollars and the county’s decision is placing a “double burden” on residents because of the existing shortfall and the city’s inability to seek savings on tipping fees and trash rates at a different landfill.

Waste Management indicated the city could produce a savings of more than $100,000 annually by transferring its waste to Outer Loop Landfill in Jefferson County.

Berrymaintains the county is obligated to pay an annual debt service on the landfill of more than $1 million and the loss of Radcliff’s revenue disproportionately would shift the burden onto other county taxpayers.

Duvall also said he opposed the city’s inclusion in the plan because it included aspects he found troubling.

For example, the county appoints an advisory committee to review the plan, and Duvall said previous five-year plans have featured a representative of Radcliff government. However, Duvall said the latest advisory committee featured a citizen of Radcliff who has had no direct contact with city officials. But Berry said the advisory committee was created as a resident body and is not geared toward singling out municipalities.

Berryalso argued Duvall and Radcliff City Council had ample time to address grievances with the county and present its own portion of a plan but failed to do so in the allotted time. Berry said a public notification was placed at Radcliff City Hall for weeks during the plan’s public comment period but he never heard directly from Duvall or any Radcliff officials.

“If I have a problem with the state, the governor doesn’t call me,” Berry said.

Duvall and City Clerk Ashley Russo confirmed the notification was available at City Hall. Duvall also said he has not spoken with Berry about the plan directly, but Russo has had discussions with Hardin County Solid Waste Coordinator Bob Hall and City Attorney Mike Pike has consulted with Hardin County Attorney Jenny Oldham.

Berrydeclined to comment directly on the KLC opinion because he had not read the letter and because Oldham had not reviewed it, but he said KLC has no more legal authority than “someone walking down the street.”

Berryalso said the exemptions addressed in the opinion refer to the solid waste management plan, but none of those exemptions overrule the county’s ordinance mandating trash be taken to Pearl Hollow.

KRS 224.43-340 (4) states the city’s portion of the plan should be incorporated into the county’s plan prior to submission to the cabinet and should be “reasonably consistent with the plan developed by the county.”

Berryargued the city’s portion could not indicate the use of an alternative landfill because the county’s plan focuses so heavily on disposal of waste at the county landfill.

Duvall said the city is working on its portion of the plan and is confident it will receive a second state extension if needed as long as the state knows a plan is in development.

Duvall also hopes the city and county can sit down soon and hash out differences without legal implications.

“You can’t have two bulls in a pen,” he said of the ongoing argument.

Marty Finley can be reached at (270) 505-1762 or mfinley@thenewsenterprise.com.