HomeMy WebLinkAboutAgenda - 03-07-2013 - 7d1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: March 7, 2013
Action Agenda
Item No. 7 -d
SUBJECT: Proposal to Move Toward A Franchise to Privatize Curbside Solid Waste and
Recycling Services in Unincorporated Area of Orange County
DEPARTMENT: Solid Waste /Recycling PUBLIC HEARING: (Y /N) No
ATTACHMENT(S):
1) General Statutes 153A -136 Regulations
of Solid Waste
2) General Statutes 160A -327
Displacement of Private Solid Waste
Collection Services
INFORMATION CONTACT:
Frank Clifton, 245 -2300
Gayle Wilson, 968 -2885
John Roberts, 245 -2318
Michael Talbert, 245 -2308
PURPOSE: To discuss a proposal to move toward a county -wide franchise agreement that
would privatize curbside Solid Waste and Recycling Services in the unincorporated areas of
Orange County.
BACKGROUND: The Solid Waste Mission Statement is to operate public facilities receiving
and processing various types of Municipal Solid Waste and Construction and Demolition Waste
in such a way as to provide a high quality, reliable, cost effective environmental safe
containment of these wastes ensuring the protection of the environment, health and safety of
the citizens of Orange County.
The BOCC has authorized a major modernization /upgrade of the Walnut Grove Solid Waste
Convenience Center as a first step in eventual improvements to all five solid waste convenience
centers. These improvements conceive creating two centrally located District Centers (Walnut
Grove and Eubanks) which would have extended hours of operation and a wide range of
services to include Household Hazardous Waste, expanded salvage sheds, food waste /cooking
oil recycling and various other new and improved recycling opportunities. The other three
Neighborhood Centers would have slightly reduced hours of operation and more limited
services. All would utilize compaction for more efficient hauling and be paved for a more
sanitary and aesthetic resident experience with more user friendly and safer waste /recycling
receptacles.
The Orange County Municipal Solid Waste Landfill, located on Eubanks Road, will close on
June 30, 2013. The Construction and Demolition landfill will continue to operate for the next 17
to 18 years. White goods, scrap tires, scrap metal, mattresses, and yard waste will become part
of the recycling division beginning July 1, 2013. These significant changes in the operation of
the Solid Waste, and recent North Carolina court decisions limiting County authority, caused
Orange County to investigate curbside Solid Waste alternatives.
Curbside household solid waste collections in the unincorporated areas of the County are
provided by private haulers (without a franchise agreement). The Towns collect household solid
waste within their town limits. Curbside recycling, provided by the County, is limited to 13,730
households in the unincorporated area of the County. A rural curbside recycling fee is charged
to those households where recycling services are made available. An urban curbside recycling
fee is charged to Chapel Hill, Carrboro and Hillsborough residents by the County for urban
curbside recycling services.
North Carolina General Statute's 153A -136 (Attachment 1) Regulation of Solid Waste, gives
Counties the authority to grant a franchise for the exclusive right to collect or dispose of solid
waste within all or a defined portion of the county and prohibit others from collecting or
disposing of solid wastes in that area. The County is exploring a franchise agreement process
for the unincorporated areas of the County which would include the privatization of curbside
household solid waste and recycling. The County may by resolution permit a Solid Waste
Ordinance to be adopted by the Towns and applicable within the Town limits. The Towns may
negotiate a fee schedule that differs from the fees established by the County for privatized
curbside solid waste or recycling services.
North Carolina General Statute's 160A -327 (Attachment 2) provides that a unit of local
government may displace a private company that is providing collection services for household
solid waste or recovered material. The County will follow the procedure outlined in GS 160A-
327. The earliest possible date for the Board to hold a hearing to consider implementing
provisions of the statue is April 23, 2013.
An anticipated timeline, if Orange County moves toward the Franchise of Curbside Solid Waste
and Recycling Services in Unincorporated Area of Orange County is:
• March 15, 2013 — Notice to existing private solid waste collection services of the April 23,
2013 meeting to discuss Franchise Agreement and displacement of private solid waste
collection services
• April 23, 2013 Public Hearing to discuss Franchise Agreement and displacement of
private solid waste collection services implementing the 15 month public notice
requirement
• April 23, 2013 — June 15, 2013 Create Request for Proposals (RFP) - Franchise
Agreement
• June 15, 2013 — August 15, 2013 RFP available for vendors to responses
• August 15, 2013 — September 30, 2013 Staff evaluation of proposals and negotiations
with vendors
• October 8, 2013 Work Session discussion of Franchise Agreement
• November 5, 2013 Public Hearing to consider Franchise Agreement
• November 19, 2013 Board Approval of Franchise Agreement
• July 1, 2014 — December 31, 2015 - Phased Implementation of Franchise Agreement
FINANCIAL IMPACT: There is no financial impact to the County in discussing this proposal to
move toward a county -wide franchise agreement for privatized curbside Solid Waste and
Recycling Services in the unincorporated areas of Orange County.
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RECOMMENDATION(S): The Manager recommends that the Board approve the scheduling of
a public hearing to discuss a proposal to move toward a county -wide Franchise agreement for
curbside Solid Waste and Recycling Services in the unincorporated areas of Orange County for
April 23, 2013 and direct staff to proceed with the various steps required in NC General
Statutes.
NOTE: There are several elements to this process that will require coordination with Town
governments, the existing recycling contractor, existing private waste collection in rural Orange
County and others. If the process ends in a decision to move forward to `privatize ` curbside
collection services, the existing fees charged by the County for these services will be eliminated
and residents will voluntarily participate in curbside solid waste and recycling services provided
by a private contractor on an individual fee basis established via the franchise agreement
process.
GS_153A -136
§ 153A -136. Regulation of solid wastes.
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(a) A county may by ordinance regulate the storage, collection, transportation, use, disposal, and
other disposition of solid wastes. Such an ordinance may:
(1) Regulate the activities of persons, firms, and corporations, both public and private.
(2) Require each person wishing to commercially collect or dispose of solid wastes to
secure a license from the county and prohibit any person from commercially
collecting or disposing of solid wastes without a license. A fee may be charged for a
license.
(3) Grant a franchise to one or more persons for the exclusive right to commercially
collect or dispose of solid wastes within all or a defined portion of the county and
prohibit any other person from commercially collecting or disposing of solid wastes
in that area. The board of commissioners may set the terms of any franchise, except
that no franchise may be granted for a period exceeding 30 years, nor may any
franchise by its terms impair the authority of the board of commissioners to regulate
fees as authorized by this section.
(4) Regulate the fees, if any, that may be charged by licensed or franchised persons for
collecting or disposing of solid wastes.
(5) Require the source separation of materials prior to collection of solid waste for
disposal.
(6) Require participation in a recycling program by requiring separation of designated
materials by the owner or occupant of the property prior to disposal. An owner of
recovered materials as defined by G.S. 130A- 290(a)(24) retains ownership of the
recovered materials until the owner conveys, sells, donates, or otherwise transfers the
recovered materials to a person, firm, company, corporation, or unit of local
government. A county may not require an owner to convey, sell, donate, or otherwise
transfer recovered materials to the county or its designee. If an owner places
recovered materials in receptacles or delivers recovered materials to specific
locations, receptacles, and facilities that are owned or operated by the county or its
designee, then ownership of these materials is transferred to the county or its
designee.
(6a) Regulate the illegal disposal of solid waste, including littering on public and private
property, provide for enforcement by civil penalties as well as other remedies, and
provide that such regulations may be enforced by county employees specially
appointed as environmental enforcement officers.
(7) Include any other proper matter.
(b) Any ordinance adopted pursuant to this section shall be consistent with and supplementary to
any rules adopted by the Commission for Public Health or the Department of Environment and Natural
Resources.
(c) The board of commissioners of a county shall consider alternative sites and socioeconomic
and demographic data and shall hold a public hearing prior to selecting or approving a site for a new
sanitary landfill that receives residential solid waste that is located within one mile of an existing
sanitary landfill within the State. The distance between an existing and a proposed site shall be
determined by measurement between the closest points on the outer boundary of each site. The
definitions set out in G.S. 130A -290 apply to this subsection. As used in this subsection:
(1) "Approving a site" refers to prior approval of a site under G.S. 130A- 294(a)(4).
(2) "Existing sanitary landfill" means a sanitary landfill that is in operation or that has
been in operation within the five —year period immediately prior to the date on which
an application for a permit is submitted.
(3) "New sanitary landfill" means a sanitary landfill that includes areas not within the
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GS_153A -136
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legal description of an existing sanitary landfill as set out in the permit for the existing
sanitary landfill.
(4) "Socioeconomic and demographic data" means the most recent socioeconomic and
demographic data compiled by the United States Bureau of the Census and any
additional socioeconomic and demographic data submitted at the public hearing.
(d) As used in this section, "solid waste" means nonhazardous solid waste, that is, solid waste as
defined in G.S. 130A -290 but not including hazardous waste.
(e) A county that has planning jurisdiction over any portion of the site of a sanitary landfill may
employ a local government landfill liaison. No person who is responsible for any aspect of the
management or operation of the landfill may serve as a local government landfill liaison. A local
government landfill liaison shall have a right to enter public or private lands on which the landfill
facility is located at reasonable times to inspect the landfill operation in order to:
(1) Ensure that the facility meets all local requirements.
(2) Identify and notify the Department of suspected violations of applicable federal or
State laws, regulations, or rules.
(3) Identify and notify the Department of potentially hazardous conditions at the facility.
(f) Entry pursuant to subsection (e) of this section shall not constitute a trespass or taking of
property. (1955, c. 1050; 1957, cc. 120, 376; 1961, c. 40; c. 514, s. 1, cc. 711, 803; c.
806, s. 1; 1965, c. 452; 1967, cc. 34, 90; c. 183, s. 1; cc. 304, 339; c. 495, s. 4; 1969,
cc. 79, 155, 176; c. 234, s. 1; c. 452; c. 1003, s. 4; 1973, c. 476, s. 128; c. 822, S. 1;
1989 (Reg. Sess., 1990), c. 1009, s. 1; 1991 (Reg. Sess., 1992), c. 1013, s. 1; 1993, c.
165, s. 1; 1997 -443, s. 11A.123; 2001 -512
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160A -327. Displacement of private solid waste collection services.
(a) A unit of local government shall not displace a private company that is providing collection
services for municipal solid waste or recovered materials, or both, except as provided for in this section.
(b) Before a local government may displace a private company that is providing collection
services for municipal solid waste or recovered materials, or both, the unit of local government shall
publish notice of the first meeting where the proposed change in solid waste collection service will be
discussed. Notice shall be published once a week for at least four consecutive weeks in at least one
newspaper of general circulation in the area in which the unit of local government and the proposed
displacement area are located. The first public notice shall be given no less than 30 days but no more
than 60 days prior to the displacement issue being placed on the agenda for discussion or action at an
official meeting of the governing body of the unit of local government. The notice shall specify the date
and place of the meeting, the geographic location in which solid waste collection services are proposed
to be changed, and the types of solid waste collection services that may be affected. In addition, the unit
of local government shall send written notice by certified mail, return receipt requested, to all companies
that have filed notice with the unit of local government clerk pursuant to the provisions of subsection (f)
of this section. The unit of local government shall deposit notice in the U.S. mail at least 30 days prior to
the displacement issues being placed on the agenda for discussion or action at an official meeting of the
governing body of the unit of local government.
(c) Following the public notice required by subsection (b) of this section, but in no event later
than six months after the date of the first meeting pursuant to subsection (b) of this section, the unit of
local government may proceed to take formal action to displace a private company. The unit of local
government or other public or private entity selected by the unit of local government may not commence
the actual provision of these services for a period of 15 months from the date of the first publication of
notice, unless the unit of local government provides compensation to the displaced private company as
follows:
(1) Subject to subdivision (3) of this subsection, if the private company has provided
collection services in the displacement area prior to announcement of the
displacement action, the unit of local government shall provide compensation to the
displaced private company in an amount equal to the total gross revenues for
collection services provided in the displacement area for the six months prior to the
first publication of notice required under subsection (b) of this section.
(2) Subject to subdivision (3) of this subsection, if the displaced private company has
provided collection services in the displacement area for less than six months prior to
the first publication of notice required under subsection (b) of this section, the unit of
local government shall provide compensation to the displaced private company in an
amount equal to the total gross revenues for the period of time that the private
company provided such services in the displacement area.
(3) If the displaced private company purchased an existing operation of another private
company providing such services, compensation shall be for six months based on the
monthly average total gross revenues for three months the immediate preceding the
first publication of notice required under subsection (b) of this section.
(d) If the local government elects to provide compensation pursuant to subsection (c) of this
section, the amount due from the unit of local government to the displaced company shall be paid as
follows: one -third of the compensation to be paid within 30 days of the displacement and the balance
paid in six equal monthly installments during the next succeeding six months.
(e) If the unit of local government fails to change the provision of solid waste services as
described in the notices required under subsection (b) of this section within six months of the date of the
first meeting pursuant to subsection (b) of this section, the unit of local government shall not take action
to displace without complying again with the provisions of subsection (b) of this section.
(f) Notice of the provision of solid waste collection service shall be filed with the unit of local
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government clerk of all cities and counties located in the private company's collection area or within
five miles thereof.
(g) This section shall not apply when a private company is displaced as the result of an
annexation under Article 4A of Chapter 160A of the General Statutes or an annexation by an act of the
General Assembly. The provisions of G.S. 160A -37.3, 160 -49.3, or 160A -324 shall apply.
(h) If a unit of local government intends to provide compensation under subsection (c) of this
section to a private company that has given notice under subsection (f) of this section, the private
company shall make available to the unit of local government not later than 30 days following a written
request of the unit of local government, sent by certified mail, return receipt requested, all information in
its possession or control, including operational, financial, and budgetary information necessary for the
unit of local government to determine if the private company qualifies for compensation. The private
company forfeits its rights under this section if it fails to make a good faith response within 30 days
following receipt of the written request for information from the unit of local government provided that
the unit of local government's written request so states by specific reference to this section.
(i) Nothing in this section shall affect the authority of a city or county to establish recycling
service where recycling service is not currently being offered.
(j) As used in this section, the following terms mean:
(1) Collection. - The gathering of municipal solid waste, recovered materials, or
recyclables from residential, commercial, industrial, governmental, or institutional
customers and transporting it to a sanitary landfill or other disposal facility.
Collection does not include transport from a transfer station or processing point to a
disposal facility.
(2) Displacement. - Any formal action by a unit of local government that prohibits a
private company from providing all or a portion of the collection services for
municipal solid waste, recovered materials, or recyclables that the company is
providing in the affected area at least 90 days prior to the date of the first publication
of notice required by subsection (b) of this section. Displacement also means an
action by a unit of local government to use an availability fee, nonoptional fee, or
taxes to fund competing collection services for municipal solid waste, recovered
materials, or recyclables that the private company is providing in the affected areas at
least 90 days prior to the date of the first publication of notice required under
subsection (b) of this section is given. Displacement does not include any of the
following actions:
a. Failure to renew a franchise agreement or contract with a private company.
b. Taking action that results in a change in solid waste collection services
because the private company's operations present an imminent and substantial
threat to human health or safety or are causing a substantial public nuisance.
C. Taking action that results in a change in solid waste collection services
because the private company has materially breached its franchise agreement
or the terms of a contract with the local government, or the company has
notified the local government that it no longer intends to honor the terms of
the franchise agreement or contract. Notice of breach must be delivered in
writing, delivered by certified mail to the firm in question with 30 days to cure
the violation of the contract.
d. Terminating an existing contract or franchise in accordance with the
provisions of the contract or franchise agreement.
e. Providing temporary collection services under a declared state of emergency.
f. Taking action that results in a change in solid waste collection services due to
the existing providers' felony conviction of a violation in the State of federal
or State law governing the solid waste collection or disposal.
g. Contracting with a private company to continue its existing services or
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provide a different level of service at a negotiated price on terms agreeable to the
parties.
(3) Municipal solid waste. - As defined in G.S. 130A- 290(18a).
(4) Unit of local government - A county, municipality, authority, or political
subdivision that is authorized by law to provide for collection of solid waste or
recovered materials, or both. (2006 -193, s. 4.)
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