APPROVED Approved 8/24/99
May 26, 1999
REGULAR MEETING - BOARD OF COUNTY COMMISSIONERS
Harris Hall - Main Floor - 1:30 p.m.
Commissioner Bobby Green, Sr., presided with Commissioners Bill Dwyer, Anna Morrison, Peter Sorenson and Cindy Weeldreyer present. County Administrator Bill Van Vactor, County Counsel Teresa Wilson and Recording Secretary Melissa Zimmer were also present.
14. COMMISSIONERS' ANNOUNCEMENTS
Green announced that it was Peter Sorensons birthday.
15. PUBLIC HEARINGS
a. SECOND READING AND PUBLIC HEARING Ordinance No. 1-99 Amending Chapter 9 of Lane Code to Add Provisions for a Solid Waste System Benefit Fee, Remove Criminal Penalties, and Adopting a Severability Clause (L.C. 9.005-9.070, 9.995)
Ken Sandusky, Waste Management, reported that at the end of March, staff presented a case for an ordinance that would establish a system benefit charge (SBC). He added it would accomplish covering the cost of non-disposal related programs that benefit county residents (recycling efforts, special waste, household hazardous waste efforts and the network of transfer stations.) He said by assessing the fee on waste, the programs of community benefit would be paid for by those who use them. He added that the(SBC) diversifies the revenue base by reducing the dependence on waste being delivered to disposal sites as the sole source of revenue. He said when the Board reviewed the issue in March, they heard from staff, waste haulers, Material Recovery Facility (MRF) operators, the Resource Recovery Advisory Committee, consultants and landfill partners. He said the result of all the testimony and consideration of the issues was that the Board unanimously directed Waste Management to go forward with the preparation of the ordinance. He reported that nothing had changed since they had the discussion. He said given the stability the SBC would provide, he urged the Board to adopt Ordinance 1-99.
Green asked if Sandusky had received any correspondence that would substantively change the deliberations.
Sandusky responded that nothing had changed, that on May 5, the first reading, he provided the Board with written information on adjustments to the calculations in the system benefit fee, but nothing other than that.
Commissioner Green opened up the Public Hearing.
Dresden Skees, 5410 Austin Way, Eugene. She said she was an environmental engineer and a representative from Eugene to Lane Countys Resource Recovery Advisory Committee. She said the current system of funding waste through disposal fees assessed at Short Mountain allows for loopholes and makes all programs dependent on consumption and waste. She added the current system puts the County in the position of being dependent on the business decisions of a few large waste haulers. She said her committee unanimously supports the staff recommendation of implementing a system benefit charge and franchising as it is a critical first step to moving the Countys waste management program towards sustainability and financial security. She said the Lane County Resource Recovery Citizen Advisory Committee urged the Board to implement the changes for sustainability and logical reasons.
Mike Farthing, stated his firm represented Siuslaw Disposal that is owned by Waste Connections, Inc., the primary exclusive commercial hauler in the greater Western Lane County area. He said the ordinance is a countywide tax that is a blunderbuss approach to effecting changes in business practices and it intends to make Siuslaw and other commercial haulers in their situation to bring their solid waste to a Lane County facility.
Dwyer questioned how it could be a tax when most of the rates are already in the cost of doing business and many haulers are collecting it. He also asked why Lane County should allow someone to bypass Lane Countys facilities that provides other services throughout Lane County just to maximize profit.
Farthing responded with regard to the fee, it is part of the fee with Siuslaw. He explained in Western Lane County there are two solid waste transfer stations, Siuslaw and the Florence transfer station. He said that both are open to the public on different days for general public recycling activities. He added Siuslaw did its own recycling which is done at curbside and ends at the recycling station and they are charging for the services but they do them more efficiently than the County. He said if the tax is enacted, Siuslaw would close its public recycling area but keep its own recycling activities going because the County wont accept the commercial haulers recycling. He added the County will be taxing Siuslaw to provide a service and they will be paying that tax for the service, but it wont be offered at the transfer station. He said it was a tax for services provided, in addition to what Siuslaw already provides.
Sorenson asked Farthing for the issue of legal impediment to Lane County in enacting an ordinance that would implement a systems development charge.
Farthing stated they didnt have any theory yet. He questioned the Boards authority to enact the tax fee charge in the setting under ORS. Chapter 459, the DEQ authority over solid waste and whether it flows out of home rule.
Fritz Batson, 2154 Elk Horn, Eugene, reported from his perspective that there were legal impediments to adopting this charge. He said the primary legal impediment relates to flow control by the impact of local haulers taking their waste to Benton County. He said this charge is being adopted to stop that flow of waste out of Lane County across a county line and potentially state lines. He added in the situation the way waste disposal is being handled that it is not local, there are large companies crossing state boundaries looking to find the most efficient economical ways of disposing of waste in an attempt to keep waste from flowing outside the jurisdiction. He stated the result had been numerous lawsuits, striking down flow control approaches. He said interstate commerce cannot be burdened by imposing this sort of tax. He said the result had been an attempt to prevent Siuslaw from using its transfer facility in Florence to take waste out of the jurisdiction. He added the net result is subsidization of the local county transfer facilities in rural locations so they could compete with private operations and to force an out of jurisdiction entity to stop taking its waste out of the jurisdiction. He said the charge affects his client in such a way that they would be forced to challenge this SBC as being unconstitutional and requests that Lane County not adopt this waste flow control measure.
Green stated that the Board was not attempting by considering this to put anyone out of business. He said the message is if waste is taken out of the County, the haulers will have to pay.
Dwyer stated it was a stretch discussing interstate commerce as this had nothing to do with interstate commerce. He said that the haulers are already collecting the money and are not passing the savings on to their rate payers. He said the Board has a responsibility not to maximize profit but to close the landfills, meet the environmental standards that the state and federal government put on, provide other benefits and give the people in Lane County the opportunity to get rid of toxic materials.
Julie Daniel, 2875 Harris Street, stated she was the general manager of BRING Recycling and sits on the Resource Recovery Advisory Committee. She said braking up the tip fee into two components makes sense as a short term solution to fund the programs. She said she supported that as Lane County has one of the most comprehensive recycling programs in the state and citizens support recycling. She stated that as a recycler she was concerned that the fees leaving the County have not been returned to local residents in the form of lesser garbage fees.
Lewis Rucker, 1755 31st St. Eugene, Waste Connections, stated he wanted to talk about the fairness of the SBC. He said it was an unfair taxation on few haulers that have been taking their waste to other landfills. He said in the Florence area they are still the cheapest price and their rates reflect it. He added in the outlying areas around Eugene and Springfield, their rates are cheaper than downtown Eugene and their rates reflect the savings to the customers.
Green noted that having the lowest rate doesn't mean that they are not making a profit. He asked how the savings were being realized by taking the waste to Benton County for the customer.
Rucker responded that the true cost of service is reflected in some hauler's rates because it is a cheaper landfill.
Morrison noted that her garbage rates were not reduced and wanted to know what happened to the difference that was not passed onto her as a consumer.
Rucker responded that some of the money went into fuel costs.
Weeldreyer commented on the two meetings she had with waste management division staff and haulers. She said she heard the majority say with regard to the SBC, if there was some fair and equitable way of having a targeted recycling rate by which local haulers could recycle at the same level as MRFs, getting the post MRF rate, that they would support a SBC if the system was equitable to that degree.
Rucker stated he had not seen anything that was fair and equitable.
There being no one further signed up to speak, Commissioner Green closed the Public Hearing.
Green asked about the violation of a commerce clause in the Constitution.
Stephen Vorhes, Assistant County Counsel stated he hadn't had a chance to go through the new information that was presented. He said he reverted back to the research he did in advance of presenting this and the Board had a copy of the opinion in the materials that were delivered during the deliberation of March 31. He said there is case law that supports this approach. He said the issue of where the waste is disposed of is left up to the hauler to decide, whether they take the solid waste outside or inside the county. He added there is no fee for out of state waste or a fee on waste that may be taken out of state to be disposed of.
Dwyer stated he was not convinced by the arguments and if the companies want to waste their money on a lawsuit, their profit margin would be impacted greater than the fees.
Green commented that they are only charging for garbage that is going out of Lane County. He said there may be ramifications, but he is convinced that the action that he is prepared to take is in the best interest of his constituents and Lane County.
MOTION: to approve Ordinance No. 1-99.
Sorenson MOVED, Morrison SECONDED.
Dwyer stated he concurred with Green that the haulers are free to do what they want to do.
Sorenson stated he made the motion to make it clear that they are passing the ordinance, collecting a systems benefit charge to assist Lane County, by funding a recycling program, hazardous waste program and the administration of solid waste. He added it is in the public interest to do this. He said they are not singling out a company and this will have no impact on interstate commerce.
Vorhes noted the ordinance includes a provision that specifies an adoption of a fee but no fee will become effective until at least 90 days after the ordinance becomes adopted.
Green clarified that the action today is to amend the chapter of Lane Code that would deal with the fee structure.
Vorhes responded it sets up the process, the parameters, the specifics and the actual calculation of the fee and the Lane Manual provision will come to the Board later as the process for adopting the fee.
ROLL CALL VOTE: 5-0.
16. OTHER BUSINESS
There being no further business, Commissioner Green recessed the meeting into Executive Session at 2:30 p.m.
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