June 8, 1994

ATTORNEY GENERAL OPINION NO. 94- 75

Robert L. Eastman

Montgomery County Counselor

127 W. 8th

Coffeyville, KS 67337

Re:	Public Health -- Solid and Hazardous Waste; Solid Waste -- Ability of County to Require a City Within the County to Establish a Mandatory Trash Collection

Synopsis:	The Montgomery board of county commissioners is authorized to pass a resolution requiring the city of Coffeyville to establish a mandatory trash collection schedule. Cited herein: K.S.A. 12-2106; K.S.A. 1993 Supp. 19-101a; K.S.A. 65-3405; 65-3410.

*	*	*

Dear Mr. Eastman:

As Montgomery county counselor, you have requested our opinion as to whether Montgomery county has the power to require the city of Coffeyville to adopt a mandatory trash collection schedule.

It is our understanding that pursuant to K.S.A. 65-3405 the Montgomery county board of commissioners, in 1974, filed a solid waste plan which encompassed the city of Coffeyville, and which recommended that the city establish a mandatory trash pickup. However, the city has never established such a collection schedule and does not have any current plans to do so.

Prior to 1992, K.S.A. 65-3405 allowed a city to opt out of the county's solid waste plan if the city could prove there was a "workable plan" within the city. The city of Coffeyville, to the best of our knowledge did not ever take this option and did not proceed so as to opt out of the Montgomery county solid waste plan. Currently, the option to opt out of the plan no longer exists. The 1992 legislature specifically deleted this option. Numerous city and county entities gave testimony regarding 1992 house bill number 2801 which revised the state solid waste statutes. The conferees, including the League of Municipalities, testified that they supported a county or regional approach to handling the solid waste problem, especially since the bill contained language that allowed the county to delegate such responsibilities to a local entity if that was deemed an appropriate solution.

According to the facts as provided by you, the Montgomery county solid waste plan allowed for the city of Coffeyville to have individual residential collection of the solid waste. However, the plan did not state the frequency of such collection, or any other particulars. Therefore, the dispute involves whether the county can mandate to the city to have the residential solid waste collected at least once a week.

Pursuant to K.S.A. 65-3410 the Montgomery county board of commissioners adopted resolution number 85-151, section 2 of which states that in Montgomery county "all residential solid waste, other than bulky solid waste, shall be collected at least once weekly." Although the county's solid waste plan did not specifically set out a mandatory schedule for the collection of solid waste, the resolution which they were authorized to enact does regulate the collection. Therefore, since K.S.A. 65-3411 allows the county to enact an ordinance to assist them in carrying out its responsibilities, we are of the opinion that the county's resolution is proper and the city of Coffeyville must therefore enact an ordinance to insure that residential solid waste is collected at least once a week.

It has been argued by the city of Coffeyville that K.S.A. 12-2106 prohibits the county from instituting a mandatory trash pickup. The city is also concerned that the county's requirement of mandatory trash collection could mean that the city must contract with a private trash hauler. The city states that they have enacted an ordinance which prohibits the accumulation of garbage and trash and therefore have taken care of matters pursuant to K.S.A. 12-2106. K.S.A. 12-2106 states:

"Parties having no garbage or trash shall not be required to pay any service charge: Provided, The governing body may pass ordinances prohibiting the accumulation of garbage and trash other than as specified to the end that the city may be kept clean and sanitary, and may prohibit the owners of garbage and trash from transporting it along the streets or disposing of it in a manner causing a nuisance or in unsightly and unsanitary ways.

Montgomery county resolution number 85-151 allows the city of Coffeyville to contract with a private hauler if they deem that to be in the best interest of the city. However, such action is not mandated. What is being mandated is that the city enact an ordinance requiring its citizens to have their residential solid waste collected and disposed of once a week. This does not appear to conflict with K.S.A. 12-2106.

It has also been suggested that the mandatory once a week collection clause may interfere with the city's home rule power. It is our understanding that the county has not exercised any of their home rule powers pursuant to K.S.A. 1993 Supp. 19-101a, but has instead only exercised the powers authorized by K.S.A. 65-3410. Therefore, K.S.A. 1993 Supp. 19-101a(a)(5) does not apply and the county's action in enacting the resolution does is within their authority.

In conclusion, it is our opinion that the Montgomery board of county commissioners is authorized to pass a resolution mandating that the city of Coffeyville establish a mandate that residential trash be picked up at least once a week.

Very truly yours,

ROBERT T. STEPHAN

Attorney General of Kansas

Mary Jane Stattelman

Assistant Attorney General

RTS:JLM:MJS:jm