California Attorney General Opinion No. 81-512

________________________________________________________________________ TO BE FILED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California GEORGE DEUKMEJIAN Attorney General : OPINION : No. 81-512 : of : AUGUST 12, 1981 : GEORGE DEUKMEJIAN : Attorney General : : Rodney O. Lilyquist : Deputy Attorney General : : THE HONORABLE JOHN B. CLAUSEN, COUNTY COUNSEL, CONTRA COSTA COUNTY, has requested an opinion on the following question: May costs incurred by a county in preparing and administering a solid waste management plan be recovered from facility operator fees collected pursuant w Government Code section 66796.20? CONCLUSION Costs incurred by a county in preparing and administering a solid waste management plan may not be recovered from facility operator fees collected pursuant to Government Code section 66796.20. 1 81-512 ANALYSIS The Legislature has enacted a comprehensive statutory scheme (Gov. Code §§ 66700–66796.84)1 for solid waste management throughout the state with the following: declared objectives: “to manage solid wastes in this state so as to protect the public health, safety, and well-being, to preserve the environment, and to provide for the maximum reutilization and conversion to other uses of the resources contained therein.” (§ 66702.) Under the legislative program, the primary responsibility for solid waste management and planning rests with local governments. (§ 66730.) A central requirement of the legislation is the adoption of a solid waste management plan by each county. Section 66780 states in part: “Each county, in cooperation with affected local jurisdictions, shall prepare, subject to the approval of the plan by a majority of the cities within the county which contain a majority of the population of the incorporated area of the county, a comprehensive, coordinated solid waste management plan, consistent with state policy and any appropriate regional or subregional solid waste management plan, for all waste disposal within the county and for all waste originating therein which is to be disposed of outside such county.” The various elements of the plan must assess current and future solid waste management problems faced by the county, identify existing quantities and estimate future quantities of solid wastes by geographic areas, specify criteria for safe and effective waste storage and removal, address all factors concerning collection and removal, address all factors concerning collection and removal, describe all public and privately owned solid waste facilities, delineate the resource recovery alternatives to disposal when selection and siting of a new solid waste facility is made, identify existing and planned programs for the control and clean up of litter, include a program for handling and disposing of hazardous wastes, discuss the feasibility of materials and energy recovery systems and promote the establishment of source separation programs. (Cal. Admin. Code, tit. 14, §§ 17129– 17135.)2 1All section references hereafter are to the Government Code unless otherwise specified. 2Regulations implementing the statutory scheme have been adopted pursuant to sections 66770, 66780, 66783, and 66790 by the State Solid Waste Management Board (hereafter “Board”) and are contained in title 14 of the California Administrative Code. They will be cited hereafter as “Regulations.” 2 81-512 Every three years the plan is reviewed and revised as necessary or appropriate. (§ 66780.5 subd. (b).) Areas addressed in the periodic reviews include: the adequacy of the data base, the consistency with state policies, economic changes, the implementation schedule, current and future administrative responsibilities, changes in funding sources, future facilities, and elements of the plan that were not successfully accomplished. (Reg. 17141.) The plan may also be amended pursuant to an elaborate approval process similar to that required for an adoption or revision of the plan. (Regs. 17155–17165.) As can be observed from the above description, preparation and administration of a solid waste management plan by a county requires considerable effort and expense. The question presented for analysis is whether such costs may be recovered from fees collected pursuant to section 66796.20. This provision of the statutory scheme states: “The enforcement agency may, upon a majority vote of its local governing body, prescribe, revise, and collect fees or other charges from each operator of a solid waste facility or from any person who conducts solid waste handling. Such fee or other charge shall be based upon either the weight, volume, or type of solid waste which is received or handled by any such operator or person or upon any other appropriate parameter or any combination of the foregoing commensurate with the cost of administering the program. The local governing body having rate-setting authority shall afford the private operator adequate compensation for additional costs incurred in this section through necessary rate adjustments if it is determined to be justified by the local governing body.” (Italics added.) We conclude that the fee collection authorization of section 66796.20 is applicable only to enforcement program costs and not to the general costs of preparing and administering the management plan. The various functions to be performed with regard to a solid waste management program are: public information, budgeting, planning, enforcement, and management and operation of the system. (Reg. 17136, subd. (b).) The enforcement function is separate and distinct from the plan preparation and administration provisions of the statutory scheme. The former is contained in the Z’berg-Kipiloff Solid Waste Control Act of 1976 (§§ 66795–66796.84; (see § 66795), while the latter are contained in the Nejedly-Z’berg-Dills Solid Waste Management and Resource Recovery Act of 1972. (§§ 66700–66794; see § 66700.) 3 81-512 The enforcement provisions are the responsibility of a designated local governmental agency or the Board if no local designation is made. (§ 66714.3.) Section 66796 provides: “On or before July 1, 1977, there shall be designated within each county an enforcement agency to carry out the provisions of this chapter. If an agency is not designated by July 1, 1977, the board, in addition to its other powers, shall be the enforcement agency within the county failing to make the designation. “(a) The designation of the enforcement agency shall be made by any of the following procedures: “(1) The board of supervisors of the county may designate the enforcement agency subject to the approval by a majority of the cities within the county which contain a majority of the population of the incorporated area of the county; or “(2) The county and the cities within the county may enter into a joint exercise of powers agreement pursuant to section 6500 of the Government Code for the purpose of establishing an enforcement agency; or “(3) The county and each city within the county may designate an enforcement agency to carry out the provisions of this chapter. In the case of a city and county, the city and county shall designate the enforcement agency. “(b) If no enforcement agency is designated and the board becomes the enforcement agency, nothing in this chapter shall prevent a designation of an enforcement agency under subdivision (a) of this section at a later date. “(c) A designation made pursuant to this section may be withdrawn in the same manner in which it was made. “(d) No local governmental department or agency which is the operating unit for a solid waste handling or disposal operation shall be the enforcement agency for the type of solid waste handling or disposal operation it conducts. A conditional waiver to this requirement may be granted by the board upon submission of details by the local entity requesting such waiver. The board may review annually effects or impacts of the waiver.” 4 81-512 Most of the responsibilities of an enforcement agency are contained in section 66796.10, which states: “The enforcement agency, within its jurisdiction, shall: “(a) Enforce all provisions of this chapter and the regulations adopted thereunder, and under Section 66770 pertaining to the minimum standards for solid waste handling and disposal for the protection of air, water, and land from pollution and nuisance, and for the protection of the public health. “(b) Coordinate action in solid waste handling and disposal with other federal, state and local agencies and private persons. “(c) Request enforcement by appropriate federal, state, and local agencies of their respective laws governing solid waste storage, handling, and disposal. “(d) File with the board, upon its request, information the board deems necessary. “(e) Develop, implement, and maintain inspection, enforcement, and training programs. “(f) Adopt an enforcement program consisting of regulations necessary to implement the provisions of this chapter and the standards adopted pursuant thereto, and to establish specific local standards for solid waste handling and disposal subject to approval by a majority vote of its local governing body; provided, however, that any such regulation shall be consistent with the provisions of this title and all regulations adopted by the board. The enforcement program shall also include a description of the locally adopted procedures for carrying out the permit and inspection program pursuant to Article 2 (commencing with Section 66796.30). “(g) Keep and maintain records of its inspection, enforcement, training, and regulatory programs and of any other official action in accordance with regulations adopted by the board. “(h) Consult with the appropriate local health agency concerning all actions which involve health standards. Such consultation shall include affording the health agency adequate notice and opportunity to conduct and 5 81-512 report such evaluation as it reasonably deems appropriate.” These duties constitute the “enforcement program” distinct from the solid waste management program as a whole. Section 66714.4 states: “ ‘Enforcement program means the regulations and procedures adopted by the enforcement agency pursuant to Section 66796.10.” Returning to the statute requiring our interpretation, we note that section 66796.20 specifies that the fees collected must be “commensurate with the cost of administering the program.” (Italics added.) Does this limitation refer to something more than the enforcement program? In answering this question, we are guided by several well-established principles of statutory construction. The fundamental rule is to “ascertain the intent of the Legislature so as to effectuate the purpose of the law.” (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal. 3d 692, 698.) “Whenever reasonable, interpretations which produce internal harmony, avoid redundancy, and accord significance to every word and phrase are preferred.” (Pacific Legal Foundation v. Employment Ins. Appeals Bd. (1981) 29 Cal. 3d 101, 114.) Applying these rules, we find several factors that suggest the “commensurate with the cost of administering the program” language of section 66796.20 refers only to the enforcement program of the statutory scheme. First, section 66796.20 is part of chapter 3 which expressly governs the enforcement program. (See Stats. 1976, ch. 1309, § 15) The only program defined by the Legislature is the enforcement program (§ 667 14.4); no other program is given special designation, and no other type of program is the focus of article 1 of chapter 3 (§ 66795– 66796.2 1). It is thus reasonable to assume in such context that the “program” mentioned in section 66796.20 refers to the enforcement program. Second, section 66796.20 was added to the statutory scheme (Stats. 1976, ch. 1309, § 15) several years after the provision concerning the preparation and administration of the management plan. (Stats. 1972, ch. 342, § 1.) If the Legislature had intended for the fees to cover the costs of administering the plan, it could easily have incorporated the fee collection authorization in the original statutory enactment or at least by amendment placed the statute in the general statutory provisions dealing with the preparation and administration of the plan. Consequently, both the timing and placement of section 66796.20 suggest that the “program” limitation contained therein refers only to the enforcement program. 6 81-512 Third, and most significantly, collection of the fees under section 66796.20 is made by the “enforcement agency,” an entity that may not have any responsibility for the preparation and administration of the management plan.3 If the fees were intended to cover the expenses of other governmental bodies and not limited to enforcement costs, the Legislature would undoubtedly have made some provision for distributing the proceeds accordingly. Hence, the lack of a fee splitting arrangement supports a determination that section 66796.20 refers only to enforcement costs. Based on these several factors, we believe that the “commensurate with the cost of administering the program” language contained in section 66796.20 refers only to the costs of the enforcement agency in carrying out its statutory duties. We therefore conclude that the costs incurred by a county in preparing and administering a solid waste management plan pursuant to section 66780 may not be recovered from the facility operator fees collected under section 66796.20. ***** 3Where the Board is the enforcement agency, it may charge reasonable fees to the local governing body to recover operation costs.” (§ 66796.15.) 7 81-512