Request By:
Mr. Bruce W. Singleton
Attorney at Law
117 North Main Street
Somerset, Kentucky 42501
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your problem relates to a garbage disposal district created prior to 1978. See KRS 109.190. In 1978 [Ch. 115], a solid waste act was enacted, and in section 15 of the act, several of the old garbage disposal district statutory sections were repealed. The solid waste act was passed to comply with the Federal Resource Conservation and Recovery Act of 1976 (P.L. 94-580).
In KRS 109.011(6), in stating the legislative intent of the Kentucky Solid Waste Act of 1978, it is written "That it is the intent of the General Assembly that the primary responsibility for adequate solid waste collection, management, disposal and resource recovery shall rest with the counties, or combination of cities and counties, etc. However, KRS 109.190 preserves the status of the old garbage disposal districts in existence when the 1978 bill was passed as an exception to the application of the new law.
In September, 1979, the Pulaski County Garbage District Board announced it would take bids for a landfill site. The board accepted the bid, and the preliminary stages for state approval were begun. The state geologists said it was a perfect place.
In December, 1979, the Pulaski Fiscal Court went on record as opposing the landfill site.
The question is whether Pulaski Fiscal Court has the authority under KRS 67.083 or KRS Chapter 109, as it now reads, to take any action concerning the landfill site? The answer is "no".
The matter of establishing a landfill and selecting a site is left to the sound discretion of the Garbage Disposal District Board. See the old KRS 109.040 [repealed by Acts 1978, Ch. 115, Sec. 15]. Of course the board, in taking action on this matter, will have to comply with any applicable provision of the Federal Resource Conservation and Recovery Act and with the state solid waste management plan and any applicable statutes. See P.L. 94-580.
KRS 109.190 provides that this chapter shall not apply to garbage and refuse districts established pursuant to KRS Chapter 109 at the time of enactment of this legislation unless such do not comply with the Federal Resource Conservation and Recovery Act and with the state solid waste management plan. Thus the repeal provisions of section 15 of the 1978 bill, which include KRS 109.040, are inconsistent with KRS 109.190, relating to continuing the preexisting garbage disposal districts. The continuance necessarily would mean by the strongest implication that the repealed statutes concerning the preexisting garbage disposal districts would not be effectively repealed to that extent. We are of the opinion that the repeal of certain statutory sections relating to garbage disposal districts in the 1978 Act [Ch. 115, Sec. 15] is inoperative as to those preexisting garbage disposal districts qualifying for a continuing status under KRS 109.190. The point is that the solid waste bill was designed to displace the old garbage disposal law except where the preexisting garbage disposal districts have continuing status under KRS 109.190. To that extent the repeal was a conditional repeal. See
Martin v. High Splint Coal Co., 268 Ky. 11, 103 S.W.2d 711 (1937). In that case the court held that where the legislative intent of the repealing clause was to merely displace the old law with new law, the repealing clause would be inoperative if the new law is unconstitutional. In other words, the repealing clause would be dependent upon the assumption of the new law's being constitutional. That principle applies to the 1978 Act [Ch. 115], since a reading of Sec. 14 [KRS 109.190] and Section 15 indicates that the complete repeal of the old statutes depends upon whether the new law fully applies. And where the status of the old garbage districts continues under KRS 109.190, the repeal is inoperative in such cases, and the old applicable law is operative.
In summary, assuming that the old garbage disposal district qualifies under KRS 109.190 for a continued status, the garbage disposal district board under KRS 109.040 has the exclusive authority to provide for the landfill and site in that district.
Even though the fiscal court has been given the authority to enact ordinances, issue regulations, levy taxes, issue bonds, appropriate funds and employ personnel in the performance of the function of public sanitation, garbage disposal service, and the exclusive management of solid wastes by ordinance or contract, this specific authority given a preexisting garbage removal district and its board under Chapter 109 will govern over the general powers of the fiscal court.