AGO 1993-018.

• Case Date: September 03, 1993
• Court: Ohio

Ohio Attorney General Opinions 1993. AGO 1993-018. September 3, 1993OPINION NO. 1993-018The Honorable William R. Biddlestone Athens County Prosecuting Attorney Athens County Court House Athens, Ohio 45701 Dear Prosecutor Biddlestone: You have requested an opinion relating to the authority of a solid waste management district to provide within its solid waste management plan for the use of a portion of the moneys collected under R.C. 3734.57(B) to pay the costs of closure and post-closure care for a county-owned solid waste management facility. Your specific questions are as follows:

1. Assuming that Athens County remains a part of the joint district, in order to meet its obligations under Ohio Revised Code, Section 3734.02(A), and regulations adopted thereunder, requiring proper closure and post-closure care for solid waste disposal facilities, and in accordance with the schedule required by Ohio Revised Code, Section 3734.53(A)(12)(b), may the Board of County Commissioners request the board of directors to include as part of the joint district plan a description of and schedule for closure and post-closure activities required by the Ohio Environmental Protection Agency at an existing county-owned solid waste disposal facility, and use a portion of the fees collected pursuant to Ohio Revised Code, Section 3734.57(B), to implement those closure and post-closure activities?

2. Assuming that the county can successfully complete the process required under H.B. 723 to withdraw from the joint district and form its own single county district, can the county transfer its ownership of the existing solid waste disposal facility to the district, and include a description of and schedule for closure and post-closure activities at the landfill in its solid waste management plan, and use a portion of the fees collected pursuant to Ohio Revised Code, Section 3734.57(B) to implement those closure and post-closure activities?

Solid Waste Management Districts and Plans

Pursuant to R.C. 3734.52, the board of commissioners of each county must either establish and maintain a county solid waste management district or participate with other counties in establishing and maintaining a joint solid waste management district.(fn1) A county solid waste management district is managed by the board of commissioners of the county, and a joint solid waste management district is managed by its board of directors, consisting generally of the boards of county commissioners of the counties within the district. R.C. 343.01. Each county or joint solid waste management district has a solid waste management policy committee, consisting of representatives of the public and of various political subdivisions within the district. R.C. 3734.54. A county or joint solid waste management district is required to prepare, adopt, submit, and implement a solid waste management plan that complies with R.C. 3734.55. R.C. 3734.52(A), .54, .55. Each solid waste management plan must be reviewed and approved by the Director of Environmental Protection and must be ratified by specified numbers of the counties, municipal corporations, and townships included within the district. R.C. 3734.55; see, e.g., 1989 Op. Att'y Gen. No. 89-054 at 2-227. If the Director of Environmental Protection finds that a county or joint district has "materially failed" to implement its plan, the Director "shall issue an enforcement order" directing the board to comply with the implementation schedule in its plan "within a specified, reasonable time." R.C. 3734.55(E); see also R.C. 3734.13. Solid waste management plans must be amended and updated periodically. See R.C. 3734.56. For purposes of this opinion, any reference to a solid waste management plan includes also an amended plan. The solid waste management plan of a county or joint solid waste management district must "provide for, demonstrate, and certify the availability of and access to sufficient solid waste management facility capacity to meet the solid waste management needs of the district" for at least a ten-year period. R.C. 3734.53(A); see also 5 Ohio Admin. Code 3745-29-02. The plan must contain a number of items specified by statute, including an inventory of sources, composition, and quantities of solid wastes generated in the district; an inventory of existing facilities where solid wastes are being disposed of and an estimate of the remaining disposal capacity; projections of amounts of solid waste to be disposed of in the district in each of the years covered by the plan; an identification of additional facilities needed; and other projections that are necessary or appropriate to ascertain and meet the solid waste management needs of the district during the period covered by the plan. R.C. 3734.53(A). Each plan must contain a schedule for its implementation, including "[a] schedule for closure of existing solid waste facilities, expansion of existing facilities, and establishment of new facilities," R.C. 3734.53(A)(12)(b), and also the methods for financing the implementation of the plan and a demonstration of the availability of financial resources, R.C. 3734.53(A)(12)(d). In addition, the plan must establish the schedule of fees to be levied under R.C. 3734.57(B)(1)-(3) and provide for the allocation of moneys derived from R.C. 3734.57(B)(1)-(3) among the purposes enumerated in R.C. 3734.57(G)(1)-(9). R.C. 3734.53(B). The fee provisions are discussed below.

Allocation of Fees Levied Under R.C. 3734.57(B)(1)-(3)

R.C. 3734.57(B) authorizes the solid waste management policy committee of a county or joint solid waste management district to levy fees upon the disposal of solid wastes at a solid waste disposal facility located in the district. The fees are levied "[f]or...