County not ‘bound’ by attorney general’s opinion on trash districts, Scott says

Lembke’s bill to repeal trash districts subject of House committee hearing

By BURKE WASSON

While the Missouri Attorney General’s Office is of the opinion that St. Louis County must issue a two-year notice to waste haulers before establishing trash districts in unincorporated areas, county officials believe otherwise.

County spokesman Mac Scott said despite the opinion issued last week by the Attorney General’s Office, county officials are not convinced that they are “bound” to it as no court has issued a determination.

“Nothing in this opinion suggests that St. Louis County is bound by these restrictions,” Scott said. “We agree that we are a charter county and we are moving ahead with our solid-waste plan.”

The county already has taken bids for one of eight trash districts planned to be established in July as a “pilot district” in the 2nd County Council District represented by council Chair Kathleen Burkett, D-Overland, who has been a vocal proponent of trash districts. As for the seven remaining trash districts, Scott said county officials will seek bids for those in May.

The Attorney General’s Office issued an opinion April 7 concluding that because of a statute approved last year by the Legislature that requires a two-year notice to waste haulers before trash districts can be implemented, St. Louis County must follow suit before it proceeds with plans to establish eight trash districts in unincorporated areas.

With the backing of Senate President Pro Tem Michael Gibbons, R-Kirkwood, three state representatives from south county asked Attorney General Jay Nixon in February to determine the legality of the trash districts’ establishment.

Rep. Jim Lembke, R-Lemay, Rep. Walt Bivins, R-Oak-ville, Rep. Jim Avery, R-Crestwood, and Gibbons say that Section 260.247(2) of the Missouri Revised Statutes prevents the county from establishing trash districts in 2008.

The statute states: “A city or political subdivision shall not commence solid-waste collection in such area for at least two years from the effective date of the annexation or at least two years from the effective date of the notice that the city or political subdivision intends to enter into the business of solid-waste collection or to expand existing solid-waste collection services into the area, unless the city or political subdivision contracts with the private entity or entities to continue such services for that period.

“If for any reason the city or political subdivision does not exercise its option to provide for or contract for the provision of services within an affected area within three years from the effective date of the notice, then the city or political subdivision shall renotify …”

The opinion issued last week by Paul C. Wilson, the Attorney General’s Office’s deputy chief of staff for litigation, said that the law applies to St. Louis County.

“Based upon the facts submitted in your request, and those we have gathered independently, it appears that the General Assembly’s 2007 amendment to the two-year notice provision of (Section) 260.247, which extended that requirement to all ‘political subdivisions,’ does apply to the activities now being pursued by the county,” the opinion states.

The opinion concludes: “On the basis of the facts presented to us, as set forth above, we conclude that, with the adoption of Ordinances 607.1300 and 607.1310, St. Louis County has decided to ‘enter into’ solid-waste collection services for purposes of Section 260.247. Therefore, the two-year notice requirement imposed by Section 260.247 — as amended by the General Assembly in 2007 — extends to the activities now being contemplated by St. Louis County under Ordinance 607.1310.”

As planned, eight trash districts would be established in unincorporated areas and the County Council would award one bid to a trash hauler per district. County officials contend that having one hauler per district would result in a more uniform brand of service and lower prices

But some waste haulers and residents, mostly in south county, have criticized the move because county officials also have stated that districts likely would force some small haulers out of business due to a lack of competition.

The Missouri House Committee on Energy and Environment last week conducted a hearing on a bill introduced by Lembke that would repeal the trash districts. At that hearing, he said while he believes the county has tried to accomplish “laudable goals” through trash districting, its method of implementation ultimately would damage trash haulers, who could go out of business if not awarded a bid, and residents.

“Although on the surface, this monopoly plan seems to have laudable goals, such as decreasing truck traffic on our streets and increasing the participation in recycling, as this thing has evolved since its ill-conceived inception, there has been an outcry from the public in our county of people that do not want to participate in this program,” he said. “… Because of that outcry, there have been many changes that have come to light as far as how this plan will be implemented. One of those changes was the ability for different citizens to actually opt out of the program in its current form. The problem that we have here is it actually establishes different classes of taxpayers. If you are so fortunate that you live in a subdivision that has an active board of trustees, then there was a time frame put forth to where that board of trustees could vote on behalf of those people that live in their subdivision and opt out of the program. Yet if you were right down the street … you don’t have an opportunity to opt out of that program …

“The idea of the county government getting into the trash-hauling business by establishing districts and letting contracts I would think is creating more government. What I’m trying to do here with a very simple bill is to stop them from creating more government when people are more than capable of going into contract with a private hauler and that’s the way they’d like to keep it.”

Rep. Jason Holsman, D-Kansas City, said that although he believes Lembke’s bill has merit, he wonders if its approval would set a precedent of the Legislature overriding the power of county governments.

“We certainly wouldn’t want any constrictions on having a free market for going after work,” Holsman said. “But what I’m concerned about is … the precedent we might be setting here. What if the residents don’t like the way water is being handled and they come to us? I’m just concerned that if we start opening the door for the state to get involved in the county’s business, where does it end? This is a good example of when it can help. But what about the next example? If we set a precedent today that says the state can usurp the county’s power or the authority to make laws for their citizens, then what’s the next issue that’s going to come up that we’re going to do the same thing? And I’m going to have somebody sitting in front of me saying ‘You did it when the trash service needed it. Now why aren’t you doing it when we’re having X problem?’ …”