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HomeMy WebLinkAboutAgenda - 06-23-2005-6bORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: June 23, 2005 Action Agenda Item No. to - b SUBJECT: Resolution Expressing Orange County's Position on One Legislative Item DEPARTMENT: County Manager County Attorney ATTACHMENT(S): Resolution with Exhibits PUBLIC HEARING: (Y /N) No INFORMATION CONTACT: John Link, ext. 2300 Geof Gledhill, County Attorney, 732 -2196 Tony Kleese, Carolina Farm Stewardship Association, (919) 542 -2402 TELEPHONE NUMBERS: Hillsborough Chapel Hill Durham Mebane 732 -8181 968 -4501 688 -7331 336- 227 -2031 PURPOSE: To consider approval of a resolution expressing Orange County's position on one legislative item, BACKGROUND: The BOCC held a public hearing on March 1, 2005 on potential items for inclusion in Orange County's legislative agenda package for the 2005 North Carolina General Assembly Session. After the public hearing, the Board reviewed and approved three resolutions (with associated materials) that requested Orange County's legislative delegation introduce certain bills and that expressed Orange County's positions on various legislative issues. It was noted at that time that the work of the Legislative Issues Task Force had been based on the current information available and that new issues may arise in the ensuing months necessitating additional BOCC review, The Board subsequently took action by resolution on two additional items in April 2005, and, in May, the Board authorized the Chair to send a letter to the North Carolina Association of County Commissioners regarding a forestry- related bill. On May 17, 2005, Tony Kleese, Executive Director of the Carolina Farm Stewardship Association, addressed the BOCC under "Matters Not on the Printed Agenda" and asked that the Board consider taking a position on House Bill 671 and Senate Bill 631, As introduced, these bills sought to preempt local government regulation of plants and plant pests by giving sole regulatory authority to the North Carolina Department of Agriculture. No action has occurred on Senate Bill 631, However, House Bill 671 has since been amended to only include plants and has been approved by the House, It is awaiting discussion in the Senate Agriculture, Environment, and Natural Resources Committee. As currently written, the bill would still prevent local governments from reviewing and /or enacting any regulations relative to plants. Approval of this bill would remove the ability of local governments to assess the potential impacts of plants, including the introduction of genetically modified crops, on organic farming, other agricultural and plant - growing activities, and public health concerns. The Board may wish to review and consider approval of the attached draft resolution expressing opposition to this bill. Mr. Kleese will appear at the meeting to address this item. After the BOCC reviews and considers approval of the attached resolution, it is suggested that the resolution be forwarded to Orange County's legislative delegation, leaders of the North Carolina General Assembly, the Governor, and the North Carolina Association of County Commissioners. FINANCIAL IMPACT: There is no financial impact associated with consideration of the resolution. RECOMMENDATION(S): The Manager recommends that the Board review the attached draft resolution, make changes as necessary, approve the resolution, and authorize the Clerk to forward the resolution to Orange County's legislative delegation, leaders of the General Assembly, the Governor, and the North Carolina Association of County Commissioners. NORTH CAROLINA 3 RESOLUTION REGARDING ORANGE COUNTY LEGISLATIVE MATTERS BE IT RESOLVED by the Board of County Commissioners of Orange County that the Board hereby requests the Senator and Representatives representing Orange County take the following position on legislation regarding the following matter: 1) Oppose House Bill 671 - Plant Regulation, a copy of the current version of which is attached at Exhibit A, and any successor versions or other similar bills (i.e. Companion Senate Bill 631), which seek to prevent towns, cities, and counties from adopting any regulations or ordinances concerning any kind of plant. This bill constitutes an effort to preempt local authority by removing the ability of local governments to assess the potential impacts of plants, including the introduction of genetically modified crops, on organic farming, other agricultural and plant - growing activities, and public health concerns, and gives sole authority to the North Carolina Department of Agriculture for the regulation of plants. (Information regarding this bill which was previously provided to the Board of Commissioners by the 3 Carolina Farm Stewardship Association is provided at Exhibit B); Upon motion of Commissioner , seconded by Commissioner the foregoing resolution was adopted this the day of , 2005. I, Donna Baker, Clerk to the Board of Commissioners for the County of Orange, North Carolina, DO HEREBY CERTIFY that the foregoing is a true copy of so much of the proceedings of said Board at a meeting held on 2005 as relates in any way to the adoption of the foregoing and that said proceedings are recorded in Minute Book No. of the minutes of said ROME WITNESS my hand and the seal of said County, this day of , 2005. Clerk to the Board of Commissioner 0 2 House Bill 671- Second Edition Page 1 of 1 �_ xL,,w A l GENERAL ASSEMBLY OF NORTH CAROLINA SESSION 2005 HOUSE BILL 671 Committee Substitute Favorable 5/2/05 Short Title: Plant Regulation. (Public) Sponsors: Referred to: March 16, 2005 AN ACT TO CLARIFY REGULATION OF PLANTS. The General Assembly of North Carolina enacts: SECTION 1. Chapter 106 of the General Statutes is amended by adding a new Article to read: "Article 36B. "RegU 1 ati on _o f. P l ants. §- 106- 423.10. Re - u-aho— —of p lants. The Board of Agriculture shall have sole authority for the banning of plants as defined in G.S. 106- 202.12(7)_" SECTION 2. This act is effective when it becomes law. http: / /www.ncga.state.nc.us/ Sessions / 2005 /Bills/House/HTML/H67l v2.html 6/16/2005 Action Alert FY Arb4 S Take Action: Stop North Carolina from taking the Monsanto Pledge! Members of the North Carolina General Assembly have filed a flurry of bills created by biotech industry to prevent any local regulations that might restrict genetically modified crops. House Bill 671 [link here] and its counterpart Senate Bill 631 [link here] were recently introduced by the House and Senate Agriculture Committee Chairs, Rep, Dewey L. Hill, and Senator Charlie Albertson, with support from the NC Department of Agriculture. Senate Bill 681, sponsored by Senator David Hoyle (Dem.) and Torn Apodaca (Rep.), also proposes to prohibit local regulation of forestry and agricultural activities. HB 671 and SB 631 aim to prevent towns, counties or cities from passing any ordinance or resolution to regulate any kind of plant or plant pest, giving the NC Department of Agriculture sole authority to regulate plants in the state. While the bills aim squarely to prevent local restrictions of genetically- modified organisms (GMOs), the innocuous language never mentions genetic engineering. The ambiguous text generates additional concerns, because it would eliminate t local authority to restrict sales of invasive plants or noxious weeds. The bills represent little more than a pledge of allegiance from North Carolina's leaders to the ag- biotech industry, with little concern for local communities. The bills are not a home grown initiative, but part of a nationwide agribusiness effort. Similar bills, containing identical language, have cropped up in at least nine other states as part of an orchestrated campaign by industry to prevent citizen initiatives like those passed in three California counties last year that prohibited cultivation of genetically modified crops. While there are currently no organized campaigns for such bans in North Carolina, the bills side -step serious questions about the safety of GMOs and potential impacts on non -GMO and organic farmers, who currently have no protection from genetic "drift" and contamination from GMO crops. Don't let North Carolina cede local control to the Gene Giants — contact your legislators now to protect the rights of towns, counties and cities to regulate plants for the protection of the local economy and public health! Take Action: Concerned citizens need to take action immediately. HB671 is on the calendar for Monday, May 9`h. Urge your representatives in the NC General Assembly to to REJECT House Bill 671 and Senate Bill 631 — An Act to Amend the Plant Pest Law to Preempt Local Regulation of Plants and Plant Pests, and SB 681. Find your representative at: http: / /www.ncleg. net /GIS/ Representation /Who_Represents_Me /Who— Represents_Me.html Go here to read the text of preemption bills: HB 671: httn: / /www.nc2a.state.nc.us/ Sessions /2005/Bills /House /HTML/H67lv2.html SB 631: httn: / /www.ncaa.state.nc.us/ Sessions / 2005 /Sills /Senate/HTML /S631vl.html SB 681: htti): / /www.nega.state.ne.us/ Sessions / 2005 /Bills /Senate /HTML /S681vl.html Concerned citizens should also contact the NC Department of Agriculture, and the Bill's sponsors: Steve Troxler Commissioner, NC Department of Agriculture steve.troxler(a)ncmail.net Tel: 919 733 -7125 Rep. Dewey L. Hill, Chair, House Agriculture Committee NC General Assembly Deweyh @ncleg.net Tel: 919- 733 -5830 Senator Charles W, Albertson NC General Assembly Tel: (919) 733 -5705 Email: Charliea @ncleg.net For Further Information: For further information on the implications of preemption bills for organic farmers: Tony Meese, Executive Director Carolina Farm Stewardship Association Pittsboro, NC Tel: (919) 542 -2402 Email: ed@carolinafarmstewards.org On the implications of preemption bills for NC farm economy and sustainable agriculture: Scott Marlow and Michael Sligh RAFI -USA Pittsboro, NC Tel: 919 542 -1396 smarlow ,rafiusa.ora, msliah@rafiusa.org On the implications of preemption bills for forestry: Alyx Perry Coordinator, Southern Forests Network Asheville, NC Tel: 828 - 277 -9008 alyx@ a ,southernsustainableforests.org For general background information on Hope Shand and Kathy Jo Wetter ETC Group Carrboro, NC Tel: 919 960 -5223 hope@etc rg_oup.org, k'oo@etcgroup.org 0 biotechnology, GM crops and the implications of preemption bills: 6_C,� Additional Item for Discussion Under Section 6 — Resolutions or Proclamations Senate Bill 951— Public- Private Solid Waste Collection Summary Senate Bill 951 was written by and for the private solid waste collection industry and could have significant potential negative consequences for local governments who wish to initiate new collection programs or make changes or enhancements to existing services. The bill would require local governments to maneuver through an unnecessary assortment of notification and advertising obligations for local governments that would seem to constrain even casual and/or spontaneous discussion of local waste collection issues by governing boards. The bill would also require payment by local governments who "displace" private hauling companies, for an amount totaling up to 12 months of gross receipts for each company operating in the service area of any government program expansion, even if citizens wished to be serviced by their government program. The beneficiary of these "payoffs" would primarily be large national hauling companies. Senate Bill 951 could be particularly detrimental to local recycling and waste reduction efforts by increasing the costs of these programs with no discernable benefit for citizens, In fact, governing board discussions of waste and recycling collection issues would become burdensome and discourage all but the most resolute local governments. The apparent intent of the bill is to impede /constrain local governments from getting into or remaining in the waste /recyclables collection business, even if local government services can be provided more efficiently. Displacement infers a private company "property right' to customers that acts as a "frrewall" between local governments and their own citizens. This bill does nothing to advance the cause of waste reduction, cost - efficiency, accountability or quality of service. ORANGE COUNTY BOARD OF COMMISSIONERS Resolution Opposing NC Senate Bill 951 — Public- Private Solid Waste Collection WHEREAS, County and municipal governments have been granted by the NC General Statutes the authority to enter into service contracts with the private sector; and, WHEREAS, County and municipal governments are responsible for delivery of basic services to their citizens; and, WHEREAS, County and municipal governments do enter into contracts with the private sector and also may choose to provide governmentally operated solid waste and recycling services, depending on local circumstances and priorities; and, WHEREAS, County and municipal governments continually strive to provide solid waste and recycling services in an efficient and cost - effective manner, consistent with local environmental ethics and service standards; and WHEREAS, Senate Bill 951 would make it difficult or in some cases cost - prohibitive for county and municipal governments with private hauling contracts, or even absent any existing contractual hauling arrangements, to investigate different methods of service delivery that would make these contracts or services more efficient and cost - effective, and which would have the effect of constraining local government provision of waste and recycling collections; and, WHEREAS, Senate Bill 951 rewards the private sector and penalizes County and municipal governments in their attempts to make changes in their solid waste service delivery that could have the potential to reduce the cost, improve the quality of service, or meet local waste reduction goals; NOW, THEREFORE BE IT RESOLVED that the Orange County Board of Commissioners is opposed to Senate Bill 951 as being unreasonable and unnecessary and urges members of the Orange County's legislative delegation as well as all members of the General Assembly to oppose any efforts to limit local governments' opportunities in their solid waste service delivery to reduce costs, improve the quality of service, and /or meet local waste reduction goals. This the 23`d day of June 2005. Moses Carey, Jr., Chair Orange County Board of Commissioners Senate Bill 951- Second Edition S AP . � 4-�- r_ kM „+Lc CS,v�_ 619105) GENERAL ASSEMBLY OF NORTH CAROLINA SESSION 2005 SENATE BILL 951 Judiciary I Committee Substitute Adopted 5/31/05 Short Title: Public - Private Solid Waste Collection. Sponsors: Referred to: March 24, 2005 Page 1 of 6 A BILL TO BE ENTITLED AN ACT TO REQUIRE A UNIT OF LOCAL GOVERNMENT THAT DISPLACES A PRIVATE COMPANY THAT IS PROVIDING COLLECTION SERVICES FOR SOLID WASTE OR RECOVERED MATERIALS TO GIVE NOTICE OF ITS INTENT TO DO SO AND TO PROVIDE COMPENSATION TO THE DISPLACED PRIVATE COMPANY. The General Assembly of North Carolina enacts: SECTION 1. G.S. 160A -37.3 and G.S. 160A -324 are repealed. SECTION 2. G.S. 160A -49.3 reads as rewritten: "§ 160A -49.3. Contract with private solid waste collection t-rri{sj firms. fa� eansideration in aeeardettee wi4t G.S. 169A 49(i) http://www,nega,state.nc.us/Sessions/2005/Bills/Senate/HTML/S95 l v2,html 6/23/2005 Senate Bill 951- Second Edition Page 2 of'6 4te FF d F 4te fft"ematiatt .....1:...attee to allow ti.,. sal i4 =fie 1 -r (a If the area to be annexed described in a resolution of intent passed under G.S. 160A -37(a) or G.S. 160A -49(a) or an act of the General Assembly, includes an area where a firm on the ninetieth day preceding the date of adoption of the resolution of intent in accordance with G.S. 160A -37(i) or i) or G.S. 160A -49(i) or -0), or the date of introduction in the House of Representatives or the Senate of the bill which became the act making the annexation, as applicable was providing solid waste collection services in the area to be annexed on the date of adoption of the resolution of intent or the introduction of the bill making the annexation and by reason of the annexation the firm's franchise with a county or arrangements with third parties for solid waste collection will be terminated, a firm that meets the requirements of subsection (al) of this section shall be entitled to choose one of the following options: (1) Contract with the city for a period of two years after the effective date of the annexation ordinance to allow the firm to provide collection services to the city in the area to be annexed for sums determined under subsection (d ) of this section. (2) Be paid by the city for the firm's economic loss with one -third of the economic loss to be paid within 30 days of the termination and the balance paid in five equal monthly installments during the next succeeding five months. Make other arrangements satisfactory to the firm. (al) To qualify for the options set forth in subsection U of this section a firm must have done one of the following: Subsequent to receiving notice of the annexation in accordance with subsection (b) of this section filed with the citv clerk at least 10 days prior to the public hearing a written request to contract with the city, to provided solid waste collection services containing a certification signed by an officer or owner of the firm that the firm serves at least 50 customers within the county at that time. ( Contacted the city clerk pursuant to public notice published by the city, the city clerk a written request to contract with the city to provide solid waste collection services The request must contain a certification signed by an officer or owner of the firm that the firm serves at least 50 customers within the county at that time. Notices required under this subsection must be filed in accordance with subsection (a2) of this section. (a2) Notice of provision of'solid waste collection service shall be filed with the city clerk of all cities located in the firm's collection area or within five miles thereof. http: / /www.nega.state.nc.us/ Sessions/ 2005Bills /Senate/HTML /S95lv2.html 6/23/2005 Senate Bill 951- Second Edition Page 3 of 6 (b) b b • t4te ftrett to amtexe'. At least four weeks prior to the date of the informational meeting the city shall provide written notice of the resolution of intent to all fines serving the area to be annexed. The notice shall be sent to all firms that filed notice in accordance with subsection (a2 ) of this section by certified mail, return receipt requested, to the address provided by the firm under subsection a2) of this section. (c) The city may require that the contract contain: (1) A requirement that the mate -firm post a performance bond and maintain public liability insurance coverage; (2) A requirement that the mete -firm agree to service customers in the annexed area that were not served by that firm on the effective date of annexation; (3) A provision that divides the annexed area into service areas if there were more than one firm being contracted within the area, such that the entire area is served by the prieftfe firms, or by the city as to customers not served by the riyate- firms; (4) A provision that the city may serve customers not served by the firm on the effective date of annexation; (5) A provision that the contract can be cancelled in writing, delivered by certified mail to the frrnr in question with 30 days to cure €er- substantial violations of the contract, but no contract may be cancelled on these grounds unless the Local Government Commission finds that substantial violations have occurred, except that the city may suspend the contract for up to 30 days if it finds substantial violation of health laws; (6) Performance standards, not exceeding city 9fftftdttrd81, standards existing at the time of notice published pursuant to G.S. 160A -49(b) with provision that the contract may be cancelled for substantial violations of those standards, but no contract may be cancelled on those grounds unless the Local Government Commission finds that substantial violations have occurred; (7) A provision for monetary damages if there are violations of the contract or of performance standards. (d) If the services to be provided to the city by reason of the annexation are substantially the same as rendered under the franchise with the county or arrangements with the parties, the amount paid by the city shall be at least ninety percent (90 %) of the amount paid or required under the existing franchise or arrangements. If such services are required to be adjusted to conform to city standards or as a result of changes in the number of customers and as a result there are changes in disposal costs (including mileage and landfill charges), requirements for storage capacity (dumpsters and/or residential carts), and/or frequency of collection, the amount paid by the city for the service shall be increased or decreased to reflect the value of such adjusted services as if computed under the existing franchise or arrangements, In the event agreement cannot be reached between the city and the � -firm under this subsection, smelt the matters shall be determined by the Local Government Commission, tftade with 4te solid -ovaste ealleefiett Ft� tinder s4see+ian (ft) of +his seefiett ttpatt payment to 41e ieizfflinacivir http: / /www.ncga.state.ne,us/ Sessions / 2005 /Bills /Senate/HTML /S951 v2.html 6/23/2005 Senate Bill 951- Second Edition Page 4 of 6 lass" . (g) The prime -firm may, if it contends that no contract has been offered, appeal to the Local Government Commission within 30 days following passage of an annexation ordinance. The pri-vttte -firm may appeal to the Local Government Commission for an order staying the operation of the annexation ordinance pending the outcome of the review. The Commission may grant or deny the stay upon such terms as it deems proper. If the Local Government Commission finds that the city has not made an offer which complies with this section, it shall remand the ordinance to the municipal governing board for further proceedings, and the ordinance shall not become effective until the Local Government Commission finds that such an offer has been made. Either the pri�a+e -firm or the city may obtain judicial review in accordance with Chapter 150B of the General Statutes. (h) A firm which has given notice under subsection (a) of this section that it desires to contract, and any firm that the city believes is eligible to give such notice, shall make available to the city not later than 3430 business days following a written request of the city, sent by certified mail return receipt requested, all information in its possession or control, including but not limited to operational, financial and budgetary information, necessary for the city to determine if the firm qualifies for the benefits of this section and to determine the nature and scope of the potential contract and/or economic loss. The firm forfeits its rights under this section if it fails to make a good faith response within 4-930 business days following receipt of the written request for information from the city, provided that the city's written request so states by specific reference to this section. 0 As used in this section the following terms mean: W Economic loss. - A sum equal to 15 times the average gross monthly revenue service in the area annexed or to be annexed. Firm. - A private solid waste collection firm." SECTION 3. Part I of Article 16 of Chapter 160A of the General Statutes is amended by adding a new section to read: "§ 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 solid waste or recovered materials or both, except as provided for in this section. (b Prior to displacing a private company, the unit of local government shall rp ovide public notice of its intent to consider an action that will displace a private company by publishing notice of intent 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 30 days rip or to the displacement issues being Dlaced on the agenda for discussion or action at an official business meeting of the governing body of the unit of local government. The notice shall speci iv each area in which the local government proposes to change the solid waste collection services that would result in the displacement of' a private company. In addition, the unit of local government shall send written notice by certified mail, return receipt requested, to all companies http://www.ncga.state.nc,us/Sessions/2005/Bills/Senate/HTML/S95 l v2.html 6/23/2005 Senate Bill 951- Second Edition Page 5 of 6 that have filed notice with the unit of local government clerk pursuant to the provisions of subsection (g) of this section. The unit of local government shall deposit notice in the U.S. snail at least 30 days prior to the displacement issues being placed on the agenda for discussion or action at an official business meeting of f the governing body of the unit of local government. (cj Following the public notice required by subsection (1b) of the section, but in no event later than six months after the date of the first publication of the public notice pursuant to subsection (b) of this section, the unit of local government may proceed to take 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 18 months from the date of the vote by the governing body of the unit of local government awarding a contract or exclusive franchise to a private firm, or approving the final plan for the unit of local government to deliver solid waste collection services unless the unit of local government provides compensation to the displaced private company as follows: W 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 receipts for collection services provided in the displacement area for the 12 months prior to the initial public notice required under subsection (b ) of this section. M Subject to subdivision (3) of this subsection, if the displaced private comp has provided collection services in the displacement area for less than 12 months, the unit of local government shall provide compensation to the displacement area. ( If the displaced private companyurchased an existing operation of another private company providing such services, compensation shall be for 12 months based on the monthly average of the immediate preceding three month's total gross revenue. (d) The amount due from the unit of local government to the displaced company shall be paid as follows: one -third of the economic loss to be paid within 30 days of the displacement and the balance paid in five equal monthly installments duting the next succeeding five months. U 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 publication of public notice, the unit of local government shall not take action to displace without complying again with the provisions of subsection (b) of this section. (f As used in this section, the following terms mean: W Displacement. — Any action by a unit of local government that prohibits or has 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 solid waste, recovered materials, or recyclables that the Drivate comp an y is providing at the time that the first public notice required under subsection (b) http://www,ncga.state.nc.us/Sessions/2005/Bills/Senate/HTML/S95 l v2.html 6/23/2005 Senate Bill 951 - Second Edition Page 6 of 6 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 comnanv. b. Taking action against a private company because the private company's and safety or are causing a substantial public nuisance. C. Taking action against a private company because the private company has materially breached its franchise agreement or the terms of a contract with the local government. 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. Displacement does not include circumstances when the local government contracts with the private solid waste collection company to continue service for a period of two years following the action that would otherwise displace the company in accordance with G. S. 160A-49.3(a)(1), 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. (g) Notice of the provision of solid waste collection service shall be filed with the unit of local government clerk of all cities located in the private company's collection area or within five miles thereof. (h ) This section shall not apply when a private company is s displaced as the result of an annexation under Article 4A of Chapter 160A of the General Statutes or an annexation by of the General Assembly. The provisions of G.S. 160A -49.3 shall apply.. (;i� 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 (b) of this section the private company shall make available to the unit of local government not later than 30 business days following a written request of the unit of local govermnent, 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 the benefits of this section and to determine any potential compensation. The private company forfeits its rights under this section if it fails to make a good faith response within 30 business day 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." SECTION 4. This act becomes effective July 1, 2006, and applies to annexations initiated and all actions taken on or after that date. http://www.ncga.state.nc.us/Sessions/2005/Bills/Senate/HTML/S95 l v2.html 6/23/2005 Senate Bill 951 - A Local Government Perspective .June 20, 2005 We wish to offer a few comments, questions, and suggestions regarding SB -951, Public- Private Solid Waste Collection. This bill has already been adopted by the State Senate and has been referred to the House Commerce Committee, which is poised to address the bill very soon. The bill is a focus of increasing concern among local government's, as they are becoming more aware of the potential consequences should it become law. Many fine waste management companies operate in North Carolina, providing valuable waste and recyclables collection services throughout the state. These contributions to overall waste management cannot be ignored or underestimated.. Many local governments, based on their own rationale and situations, do not wish to provide governmental operated waste or recycling collection services and rely solely on private waste companies. Others wish to provide comprehensive government operated services. Most governments operate in a zone between these extremes, offering some level of services (usually residential) in conjunction with varying arrays of private hauler services. This is policymaking flexibility that governments need and should have in assessing local waste and recycling service levels. Whether and how these services are provided should be left to the citizens and their elected officials. Private hauling companies should not be acting as gatekeepers or otherwise interfering with how local governments' address waste /recycling collection issues. Private waste companies should and do have a role for substantive input into local waste management issues, just as any other citizen or business. However, local governments certainly should not be paying private hauling companies for the privilege of serving their own citizens.. The notification provisions of Section 3 will be particularly onerous for local governments. The bill requires a public notice of an "intent to consider" be provided that includes advertisement in local newspapers, a declaration at an official business meeting of the local government and written notice to all waste companies. We advise that this is unreasonable and almost certain to be frequently and unintentionally violated. In various local government work sessions and meetings issues regularly arise that are not on an agenda. Issues are often discussed intermittently (off and on) over a long period of time, meaning months and even years. Additionally, issues are referred to task forces' and advisory boards who return periodically for discussion and to receive additional guidance from the governing board. This is to say that many issues are subject to stops and starts in the real world of public discourse. This is the way many local government public bodies operate, with no intention to stifle or otherwise avoid public input. This bill constrains this free flowing public discourse by subjecting local governments to potentially endless cycles of notification and providing opportunities for inadvertent notification mistakes. It assumes that topics are addressed in an orderly and systematic fashion over a limited period of time. With few exceptions, local issues are not addressed in this manner. We have also discovered that no one seems to know what the potential financial impact on local governments might be; there was no financial note attached to the bill. Perhaps the private haulers have estimated the potential revenue they'll receive should the bill be adopted, but to our knowledge the supporters of this legislation haven't openly discussed the potential financial impact on local governments. One preliminary analysis of the potential financial impact conducted by the Albemarle Regional Solid Waste Authority indicates an impact of perhaps $938,000, depending on the specific service expansion taken by the authority.. "Phis bill is a creation of the private hauling industry. As best as we can determine, its unfortunate consequence, or some say its intention, will be to impede /constrain counties and cities from initiating, expanding or changing the manner in which waste or recyclables are collected. Some local government solid waste professionals believe the bill's real long -term intention is to reduce or eliminate local government collection services that presently sometimes compete with private hauling companies. While the bill's sponsor indicates the primary intent of the bill is to resolve an alleged problem/loophole related to annexation law, the original bill did not even contain the present Section 2 relating to the provision of waste collection services in annexed areas; this was only added in the second edition of the bill. Senate Bill 951 appears to have been prepared to protect private waste hauling companies from local governments performing waste collection services, whether these services can be provided more efficiently, comprehensively, or with regard to significantly higher likelihood of'meeting local waste reduction objectives. Local governments, unlike private haulers, do not typically have the option of'picking and choosing clients, avoiding those customers whose particular situation may make these services less profitable, and seek to provide services to all citizens more uniformly. For instance, private haulers do not typically provide recycling services, with the possible occasional exception of cardboard (in thriving market times) and some niche materials, unless they are contracted directly by a specific residence/business or unless the local government pays for (subsidizes) the service. Local governments, in order to insure that recyclable or waste collections are most effectively /efficiently /consistently provided, or desire that their local mandatory recycling ordinances are not ignored/circumvented, occasionally decide to expand or get into the business, Private haulers, understandably, will provide collection services only if there is a profit potential, however, local governments may choose to provide these services in down as well as up market times because of a local environmental ethic and corresponding local ordinances /policies. Local governments are also under a certain level of obligation to try to meet the State's statutory waste reduction goals of 25% and 40 %. They should be allowed to do so, based on their own local circumstances. Recycling programs are already prohibitively expensive without adding unrelated additional expenses.. Senate Bill 951 could be particularly detrimental to local recycling and waste reduction efforts.. The Division of Pollution Prevention and Environmental Assistance has recently determined that the main factor holding back the expansion of recycling businesses in North Carolina is access to supplies of'collected materials. This bill would provide a chilling impact on expansion of recycling collection programs if local governments had to first pay -off hauling companies active in their regions before modernizing or expanding local programs. Publicly funded recycling collection programs must remain flexible in order to expand recycling opportunities, increase public participation, and respond to changing recycling markets. Public recycling programs will be hard- pressed to lower program operating costs per ton and give citizens value for their taxes and fees if'significant portions of funds are diverted to private haulers for no discernable public benefit. This bill could not only result in a stifling of programs that are needed to increase the quantities of collected materials, but would inhibit local government actions that would generate these additional materials,. It is a fact that local governments utilize non - optional fees and taxes to fund waste /recyclable collection services (and numerous other types of'services). SB -951's definition of "displacement" seems to indicate that local governments should be penalized for utilizing these lawful funding sources with regard to the provision of waste services. However, the private sector haulers seem to have no problem when these same government revenues are used to pay them for hauling contracts and related services. They eagerly accept them. It is absurd to even suggest that governments should somehow be punished for using these revenues to fund their own programs. The actual notion of displacement should be an affront to citizens who receive services and to local governments who are or someday may wish to provide these services. Displacement infers a "property right" for a hauler and their customers with regards to local government that does not exist with regard to other private haulers. In fact, I believe most citizens who receive private hauler services would be quite surprised find that they are "owned" by a hauling company and that their local government would have to pay to serve them. Additionally, if a hauling company "owns a customer ", why then wouldn't that "ownership" also extend to another private hauling company? Plainly put, if another private company takes (displaces), for what ever reason, a customer from the current private hauling company there is no displacement, thus no compensatory obligation. If the local government takes (displaces) a customer, there would be an apparent taking subject to compensation. Additionally, if a private company takes a customer currently served by a local government, there is likewise no taking (displacement) This seems inconsistent as well as unfair and seems to refute the displacement theory altogether. Is there a displacement if a customer of a private hauler voluntarily changes their service to a local government collection program? This is not clear in the bill. What does "has the effect of prohibiting a private company from providing all or a portion of the collections services ....." mean? Will this bill result in a series of protracted litigation to determine what displacement is or is not? Who will pay for this litigation? Is compensation required for local government "displacement" when a single service such as cardboard collection is provided by a private hauler and is displaced by a local government provided comprehensive collection service that includes in addition to cardboard, mixed paper, bottles, cans, newspaper, food waste, etc.? Costs for providing recycling services are significant enough already and if pay-off s to private haulers are included it will likely make it even more difficult for local governments to initiate new waste reduction programs and meet reduction goals. Enforcement of local waste reduction related ordinances could also be harmed by this bill. Presently, local mandatory recycling ordinances are often ignored or systematically evaded by some private waste collectors in order to minimize costs and inconvenience for the potential customer. In fact, some private hauling companies even market their services to recipients of local government collection services as a way for the customer to avoid local penalties or additional expenses related to compliance, such as eliminating a second container for cardboard by advising they put all material in the single garbage dumpster. A local government option to initiate waste services to preclude this widespread circumvention would be made improbable with this bill. Would the private haulers agree to a bill revision stating that displacement does not occur unless the hauler can demonstrate that they are in substantial compliance with local waste reduction ordinances? The bill doesn't seem to indicate how "displacement" of a residential customer would be determined. It is my experience that most residential customers of private hauling companies do not require or involve a contract. The garbage service I receive at my home from a private company is an example. I have no contract and can call my private hauling company at anytime to change or cancel service. Many citizens change companies often, How will these "displacements" be determined for purposes of compensation? Some commercial customers who wish to change services also have notification periods regarding service cancellation (if they have them at all), however in all cases those periods are less than those proposed in the bill to apply to local governments. It is our opinion that creating a private waste hauling company entitlement is not necessary and will in fact be counterproductive to local government and general public interests. Local governments do not need additional financial burdens regarding solid waste management. North Carolina's waste /recycling collection component is not broken in a way that this bill will fix. To the contrary, this bill will make waste /recycling collection more expensive, complicated, and less likely to achieve meaningful waste reduction. We urge you to oppose SB -951 by calling your Representatives now. Unfortunately the Senate has already adopted the bill. Local governments need the ability to assert some level of influence and control over the provision of'solid waste /waste reduction services rather than to have arbitrary encumbrances, unworkable notification procedures, and financial impediments placed upon them that do nothing to enhance the quality or quantity of services for citizens. Our conclusion is that this legislation is unnecessary, imbalanced, potentially expensive, and an impediment to the provision of waste services for local governments. Large private hauling companies will be the principle beneficiary of this legislation at the expense of local governments (citizens). The bill seems to be a solution in search of 'a problem. While the private sector waste management companies play an important role in the collection and disposal of North Carolina's waste, this bill would give them significant benefits without a corresponding additional responsibilities. Historically, the private sector waste industry has provided a supplementary and/or complementary role to local governments. The responsibility for public health and safety, planning, meeting waste reduction goals, and general local waste management policy would continue to reside with local governments. M MOSES CAREY JR., CHAIR ORANGE COUNTY BOARD OF COMMISSIONERS VVALER /EP. FOUSHIEE CHAIR POST OFFICE BOX 81 81 AucE M. GORDON 200 SOUTH CAMERON STREET STEPHEN H HAUCIOPS HILLSBOROUGH, NORTH CAROLINA 27278 June 24, 2005 Representative Bill Faison N.C. House of Representatives P.O. Box 168 Cedar Grove, N.C. 27231 Representative .Joe Hackney N.C. House of Representatives 104 Carolina Forest Road Chapel Hill, N.C. 27516 Dear Legislative Delegation, Representative Verla Insko N.C. House of Representatives 610 Surry Road Chapel Hill, N.C. 27514 Senator Ellie Kinnaird N.C. State Senate 207 W. Poplar Avenue Carrboro, N.C. 27510 The Orange County Board of Commissioners, at its June 23, 2005 regular board meeting, adopted the attached resolution stating that the Board of Commissioners opposes N.C. Senate Bill 951- Public — Private Solid Waste Collection. Please consider the information in this resolution and if you have any questions, please call Moses Carey, Jr,, Chair of the Board of County Commissioners, at (919) 929 -8513. Thank you. Sincerely, Donnna S k a B ker , CMC Clerk to the Board CC: The Honorable Michael Easley, Governor www.co.oranoe.nc.us Protecting and preserving — People, Resources, Quality of Life Orange County, North Carolina — You Count! (919) 245 -2130 • FAX (919) 644 -0246 ORANGE COUNTY BOARD OF COMMISSIONERS Resolution Opposing NC Senate Bill 951 — Public- Private Solid Waste Collection WHEREAS, County and municipal governments have been granted by the NC General Statutes the authority to enter into service contracts with the private sector; and, WHEREAS, County and municipal governments are responsible for delivery of basic services to their citizens; and, WHEREAS, County and municipal governments do enter into contracts with the private sector and also may choose to provide governmentally operated solid waste and recycling services, depending on local circumstances and priorities; and, WHEREAS, County and municipal governments continually strive to provide solid waste and recycling services in an efficient and cost - effective manner, consistent with local environmental ethics and service standards; and WHEREAS, Senate Bill 951 would make it difficult or in some cases cost - prohibitive for county and municipal governments with private hauling contracts, or even absent any existing contractual hauling arrangements, to investigate different methods of service delivery that would make these contracts or services more efficient and cost - effective, and which would have the effect of constraining local government provision of waste and recycling collections; and, WHEREAS, Senate Bill 951 rewards the private sector and penalizes County and municipal governments in their attempts to make changes in their solid waste service delivery that could have the potential to reduce the cost, improve the quality of service, or meet local waste reduction goals; NOW, THEREFORE BE IT RESOLVED that the Orange County Board of Commissioners is opposed to Senate Bill 951 as being unreasonable and unnecessary and urges members of the Orange County's legislative delegation as well as all members of the General Assembly to oppose any efforts to limit local governments' opportunities in their solid waste service delivery to reduce costs, improve the quality of service, and /or meet local waste reduction goals. BE IT FURTHER RESOLVED that if Senate Bill 951 or other legislation having similar impacts is adopted by the General Assembly, the Orange County Board of Commissioners urges Governor Michael F. Easley to veto this legislation. This the 23`d day of June 2005. Co� &r Moses Carey, Jr., Chair Orange County Board of Commissioners