09/18/1990 - Packet AGED
UTILITY & FRANCHISE ADVISORY COMNIITTEE
TUESDAY, SEPMwEII2 18, 1990 - 7:00 FM
TIGARD CIVIC CENTER - TOM IFIL Com'alaX E 1CM
13125 SW HALL BLVD.
TIGARD, OR
1. CALL TO ORDER
2. ROLL CALL: MCREYNOLDS BARRETT SULIZVAN IRWIN
JACOBS WAISH WOGEN
3. Approve Minutes
4. Compactor ordinance discussion (information attached)
5. Third party haulers
6. Revised rate structure discussion
8. Other business
9. Adj ourrmient
TO ENSURE A QUORUM TO CONDUCT BUSINESS, PLEASE CALL LIZ NEWTON AT 639-4171,
E=SION 308 IF YOU ARE UNABLE TO ATTEND.
da/ut&f-a
FILE COPY
&ONNELL, RAMIS, ELLIOTT& CREO
JEFF H.BACHRACH ATTORNEYS AT LAW CLACKAMAS COUNTY OFFICE
CHARLES E.CORRIGAN• BALLOW&WRIGHT BUILDING 181 N.Grant,Suite 202
STEPHEN F.CREW 1727 N W Hoyt Street Canby.Oregon 97013
KENNETH M.ELLIOTT Portland.Oregon 97209 (503)206-1149
KENNETH H.FOX (503)222-4402 -
PHILLIP E.GRILLO FAX(503)243-2944 GARY M.GEORGEFF•
REESE P.HASTINGS
ROBERT J.McGAUGHEY•
WILLIAM Ar MONAHAN
PLEASE REPLY TO PORTLAND OFFICE Special Counxl
MARK P.O'DONNELL
DENNIS M.PATERSON III
TIMOTHY V.RAMIS
SHEILA C.RIDGWAY•
WILLIAM J.STALNAKER
•Ako Admitted to Praaice MEMORANDUM
in'tae nt Wa h;npan
DATE: May 3, 1990
TO: Pat Riley, City Manager
Gerry McReynolds, Chairman of Utilities & Franchise
Committee
Coy Humphrey, Code Enforcement Officer
FROM: Phillip E. Grillo, City Attorney's Office
RE: Construction Cleanup Contractors/Franchise Issues
------------------------------------------------------
BACKGROUND
This matter has previously come to the attention of Coy Humphrey,
Tigard Code Enforcement Officer, from nonfranchised individuals
wishing to haul solid waste from construction sites. The city's
initial position was that the city's garbage franchise ordinance
did not allow non-franchise parties to -haul solid waste from
construction sites. A construction cleanup firm was subsequently
cited for hauling construction waste in violation of the ordinance.
Later, in February and again in March, 1990, this issue came before
the Utility and Franchise Committee. Enforcement of the previously
mentioned complaint was delayed until various.parties could present
their interpretations of the ordinance to the city for further
consideration. On March 16, 1990, Charles Hales of the
Metropolitan Homebuilders Association submitted materials to the
city. On April 23, 1990, Mary Ellen Page of Kell, Alterman &
Runstein submitted materials to the city on behalf of the
franchised haulers. This opinion considers the arguments. made by
these parties, the intent and language of the current ordinance,
and the realities of a construction process.
APPLICABLE CODE PROVISIONS
Section 11.04.040 grants exclusive franchises to various haulers
in order to provide solid waste service within certain areas of
the city. Subsection 11.04.040(d) (6) sets out the exception to the
Memorandum to Pat Riley, City Manager
Re: Construction Cleanup Contractors/Franchise Issues
May 3, 1990
Page 2
franchise ordinance which applies here. That section provides that
nothing in the franchise shall:
"Prohibit a contractor employed to demolish, construct,
or remodel a building or structure, including but not
limited to land clearing operations and construction
waste, from hauling waste created in connection with such
employment in equipment owned by the contractor and
.
operated by contractor's employees, n
It is also relevant to note that Section 11.04.020(a) sets out
various policy statements as a general guide for interpreting the
purposes of the ordinance.
ISSUE
Does Section 11.04.040(d) (6) prevent non-franchised cleanup
companies from hauling construction related waste from building
sites within the city?
ANSWER
Yes, unless the cleanup company can demonstrate to the city that:
1. The company is a "contractor" within the meaning of ORS
Chapter 701;
2. The "contractor" is more than a mere hauler of
construction waste. There must be a reasonable
connection between the hauler's services and some aspect
of either the demolition, construction or remodeling of
a building or a land-clearing operation;
3. The "contractor" hauls construction waste in equipment
owned by that contractor and operated by that
contractor's employees.
DISCUSSION
The so-called "construction waste exception" lends itself to a
variety of interpretations. On one hand, the exception can be read
'- in a restrictive manner that• only permits individual contractors
to cleanup the waste they themselves have generated. For instance,
framing contractors would be permitted to cleanup framing debris,
plumbing contractors would cleanup plumbing debris, and so on. On
the other hand, the ordinance can be read broadly to allow anyone
Memorandum to Pat Riley, City Manager
Re: Construction Cleanup Contractors/Franchise Issues
May 3 , 1990
Page 3
who might pass muster as a "contractor" to come onto a construction
site, cleanup the construction debris, and haul it away.
This opinion attempts to identify the rights and interests of the
various parties involved, to give effect to the entire ordinance,
and to acknowledge the realities of modern construction practices.
The franchise haulers have a right under the ordinance to a stable
rate base. The public has a right to reasonable rates and
consistent service. The building contractor and other businesses
have a right to pursue opportunities to innovate and add value to
their property within the confines of applicable law.
The reality of the construction process is that it does not
generate debris in discrete batches. Rather, the construction
process is characterized by a series of overlapping operations,
usually carried on by a number of subcontractors. The debris they
generate becomes mixed over time. It ,makes very little economic
or practical sense to. require each subcontractor to sort through
the debris and to only dispose of their own. material. In fact, if
this were the case, this exception would be impractical. If the
"construction waste exception" is to have any practical meaning
under the ordinance, it must allow a subcontractor to gather the
debris on the site, cleanup the property, and dispose of the
material using that contractor's equipment and employees. This
scenario is different than merely allowing 'a subcontractor to pick
up debris and haul it away. The former recognizes the reality of
the construction process and carries out the intent of the
ordinance, while the latter conflicts with the purpose of the
' ordinance.
The exception found at Section 11.04.040(d) (6) contains three
distinct clauses. I have separated those clauses into three
criteria described below. In order for a cleanup company to pass
muster under the "construction debris exception":
1. The company must be a "contractor" within the meaning of
ORS Chapter 701.
The code itself does not define the term "contractor. "
The dictionary decision does not provide any meaningful
guidance. However, ORS 701.005(2) provides an
appropriate definition that can be used by the city to
interpret its use of the term "contractor" in this
context:
Memorandum to Pat Riley, City Manager
Re: Construction Cleanup Contractors/Franchise Issues
May 3, 1990
Page 4
Contractor"' means a person who undertakes
or offers to undertake or submits a bid to
construct, alter, repair, and to, subtract
from, improve, move, wreck, or demolish, for
another, any building, highway, road,
railroad, excavation or other structure,
project, development or improvement attached
to real estate or to do any part thereof. "
Under this definition, so-called "cleanup companies" who
registered with the Building Board, may be considered
cleanup "contractors" for purposes of this ordinance.
The fact that these contractors are registered and
subject to regulation by the state, helps carry out the
intent of the ordinance, since these contractors are
subject to recourse if they do not perform in a reliable
and workmanlike manner.
Pride Disposal argues, through its counsel, that the
cleanup companies are not employed to demolish,
construct or remodel any building. Although, Pride does
not offer any analysis in support of its conclusion,
their point is well taken. However, the ordinance
itself speaks to this issue in the following clause:
2. The "contractor" must: be more than a mere hauler of .
construction waste. - There must be a reasonable
connection between the hauler's services and some aspect
of either the demolition, construction or remodeling of
a building or- a land-clearing operation.
The ordinance does not authorize subcontractors to
merely haul construction debris. In order to qualify
for the franchise exception, a cleanup . company . must
provide other services related to the construction
process. Examples of such "connections" to the
construction process include but are not limited to:
sweeping and vacuuming the wall cavities, and heating
vents after rough plumbing and electrical work; sweeping
floors, vacuuming carpets and performing a . final scrap-
out of the job site; and sweeping thee-garage, cleaning
the driveway and clearing landscaped areas. To the
extent a cleanup company is engaged in one or more of
the above-mentioned activities, it satisfies the
"connection" requirement in the ordinance.
Memorandum to Pat Riley, City Manager
Re: Construction Cleanup Contractors/Franchise Issues
May 3, 1990
Page 5
3 . The "contractor" must haul construction waste in
equipment owned by that contractor and operated by that
contractor's employees.
This requirement is self explanatory. I interpret the
clause to require a contractor to actually own their own
equipment and have it operated by one or more of their
own employees. A contractor that performs the services
mentioned above may not take advantage of this exception
if he later subcontracts the hauling of this debris to
another independent contractor.
SUMMARY
I have purposely provided you with an opinion that is perhaps more
encompassing than expected. In my opinion, this is the first of
many solid waste issues that the city will be facing in the coming
months. These issues inherently contain both legal and policy
questions. The franchise agreement now in place was adopted in
1979 with minor amendments in 1987. There have been major changes
in the state and federal law which impact the assumptions and
procedures set out in this ordinance.
For example, as of 1983 in Oregon, haulers are required to provide
curbside recycling opportunities. Today, many businesses are
considering the use of innovative recycling techniques and other
solid waste related processes that may not fit within our existing
franchise agreements. A considerable amount of effort went • into
' the preparation of this ordinance in 1979. However, changing
circumstances and the passage of time may require the city to re-
examine its policies.
I have one additional concern. My awareness of illegal dumping
practices causes me to question whether construction cleanup
companies actually dump their construction debris into authorized
landfills. If these cleanup companies operate on a tight margin,
they may attempt to avoid paying the tipping fee at authorized
landfills by disposing of the debris improperly. The city has a
duty to ensure that these wastes are disposed of in a lawful
manner. In that regard, I recommend that the city consider the
development of a permit system for cleanup contractors that would
` ensure that these wastes are disposed of properly. I would be
happy to prepare such an ordinance and resolution establishing
this procedure and setting permit fees if the city is so inclined.
Memorandum to Pat Riley, City Manager
Re: Construction Cleanup Contractors/Franchise Issues
May 3, 1990
Page 6
In my opinion, so-called "cleanup companies" cannot haul
construction related waste from the building sites unless they
demonstrate to the city that they can meet the three criteria
described in Section 11.04.040(d) (6) of the Tigard Municipal Code.
A permit process should be established to regulate the disposal
practices of cleanup companies that fall under this exception.
PEG/lf
pegW gard\cleanup.me1
O'*NELL. RAMPS. ELLIOTT & CR
ATTORNEYS AT LAW
1727 N.W. HOYT STREET
PORTLAND. OREGON 97209
1503) 222-4402
DATE July 10, 1990
TO Pat Riley, City Manager
Jill i W-u
FROM Phil Grillo �= u;• i
ii
RE Garbage Issues: Status -----------------------------
In May the Committee reviewed the Construction Cleanup Contractors
issue (see my May 3, memo enclosed) . Ken Fox attended that meeting
and I understand that the Committee was in general agreement with
my memo and wanted to pursue a permit system for construction
contractors. Cliff Scott was directed by the Committee to begin
developing a procedure for the permit system and to investigate the
o
logistics of registering dumpsters. At this point, I am not aware
if staff has prepared any draft materials in this regard.
Our office can certainly work with you to prepare draft ordinances
for your review. In the meantime, it is important to keep in mind
certain procedural matters:
1. This is a franchise question that has become an issue
because we cited a contractor for violation of the ordinance.
Mr. Mel Schlagel has been cited and his case needs to be
resolved. (See attached letter from attorney Diane Spies. )
2. The Committee should make a formal recommendation
to Council on the construction cleanup issue. only Council
can amend the franchise ordinance to allow a permit system.
Although it is not mandatory, Council may want to review City
Attorney's interpretation of the "construction contractor"
exception in the franchise ordinance.
Also, there are two other issues pending before the franchise
Committee that this office that office has worked on: 1) A
proposed Stationary Compactor Ordinance (attached) , and 2) an
opinion on the recycling question presented by Precision
Interconnect (attached) . No action has been taken on either of
these to my knowledge. Ken Fox is out of the office until
Thursday, but I will ask him to attend the Monday meeting with you
and Gerry McReynolds. If Ken is unable to attend, I will be happy
to join you. If you have any questions in the meantime, please
feel free to contact me.
Original Memo to: Pat Riley, City Manager
cc: Ken Fax
City of Tigard/General File
PEG:dd
7/10/90
peg\tigard1400024-7.me1
ONELL. RAMIS. ELLIOTT & CF&
ATTORNEYS AT LAW
1727 N.W. HOYT STREET
PORTLAND. OREGON 97209
t503I 222-dd02
DATE May 7 1.990
TO Coy Humphrey, Code Enforcement Officer
FROM Phil Grillo, City Attorney's Office-____,1
RE City of Tigard - Stationary Compactor Ordinance
-------------------------------------------------------
Enclosed is a draft ordinance regulating the use of stationary
solid waste compactors.
Please have staff review this draft ordinance. I would appreciate
it if we could discuss any comments or suggested changes by
Thursday, May 10. The committee will be discussing the draft
ordinance on Tuesday, May 15 and I would like to incorporate
staff's suggestions before it is mailed out to the committee
members.
Please give me a call if you have- any questions.
CITY OF TIGARD DRAFT
ORDINANCE NO. 90 -
AN ORDINANCE AMENDING SUBSECTION 11.04.040(d) (8) , REPEALING
SUBSECTIONS OF 11.04.100 AND ADDING SECTION 11.04.105 TO THE TIGARD
MUNICIPAL CODE TO PROVIDE FOR THE USE OF STATIONARY SOLID WASTE
COMPACTORS AND TO ENCOURAGE THE SOURCE SEPARATION OF MATERIAL PRIOR
TO COMPACTION.
WHEREAS, Chapter 11.04, Solid Waste Management, of the Tigard
Municipal Code does not currently provide for the use of stationary
solid waste compactors by multifamily residential, industrial or
commercial customers; and
WHEREAS, the City Council finds that use of stationary solid waste
compactors should be incorporated into the solid waste management
ordinance of the City, provided that the operators of the
compactors are regulated by the issuance of a permit and provided
that there is an opportunity for recycling prior to compaction; and
WHEREAS, the City Council finds that both recycling and compaction
of solid wastes will reduce the volume of solid waste produced in
the City and that this reduction in volume will help the City meet
statewide goals for the reduction in volume of solid wastes; now,
therefore:
THE CITY OF TIGARD ORDAINS AS FOLLOWS:
Section 1. _ Subsection 11.04.040(d) (8). of the Tigard Municipal
Code is amended to read as follows:
" (8) Prohibit [the operation of a fixed
location where] the ..generator, producer,
permittee, source or franchised collectors
of solid waste from bringing that waste to a
fixed location for transfer, disposal,
compaction, or resource recovery; provided,
however, that the establishment. or maintenance
of any such fixed location brought into being
after April .l, 1978, shall be only by permit
issued by the City Administrator;"
ORDINANCE NO.
Page 1
Section 2. Subsection 11.04.040(f) of the Tigard Municipal Code
is amended to read as follows:
" (f) Solid waste placed out for collection, whether
or not source-separated, belongs to the franchisee when
(so placed; or, where) placed out for collection. (by a
permittee, belongs to the permittee) If there is a
Permittee, solid waste placed out for collection belongs
to the permittee during the time the permittee is in
possession of that waste. '
Section 3. Section 11.04.100 of the Tigard Municipal Code is
hereby amended by repealing Subsection 11.04.100(1) (P) and
Subsection 11.04.100(3) and renumbering Section 11.04.100
accordingly.
Section 4. Subsection 11.04.100(2) of the Tigard Municipal Code
is amended to read as follows:
11 (2) [No stationary compactor or other container fbr
commercial . or industrial use shall exceed the safe-loading
design limit or operation of the collection vehicles provided
by the franchisee serving the area. ] Upon petition of a group
of customers reasonably requiring special service, the city
council may require the franchisee to provide vehicles capable
of handling specialized loads, including but not limited to
front-loading collection vehicles and drop-box vehicles and
systems."
Section 5. Chapter 11.04 of the Tigard Municipal Code is
amended by adding Section 11.04.105 to read as follows:
1111.04.105 Stationary Solid-Waste Compactors. To achieve the
purposes of this Chapter. and to encourage multifamily
residential, commercial and industrial waste compaction, to
make such compaction compatible with the equipment of
franchised haulers, and to comply with safety; health and
environmental requirements, permits for compactors shall be
issued by the City Administrator according to the following
procedures and criteria:
ORDINANCE NO.
Page 2
A. Definitions.
1. "Compactor" means a stationary or self-contained
powered machine which remains stationary when in
operation with operating controls designed to compact
solid waste into either a detachable or integral
container.
2. The term "compactor" as it is used in this
Chapter does not include a mechanical device located
within a residential, commercial or industrial structure,
which is used exclusively by the occupants or employees
of that structure.
3. The term "compactor" does not include any
mechanical device used by a -franchisee which is attached
to the franchisee's mobile collection vehicle.
B. Procedure.
1. Submit a permit application to the Community
Development Director, together with a fee of
2. Provide the following documentation along .with
the permit application:
(a) certificate of insurance in the amount of
(b) site plan which indicates (1) the location
of the compactor; (2) maneuvering
distances; (3) location of receptacles for
resource P
on se aratiprior to disposal and
P P
compaction;
(c) certificate of compatibility with
franchise hauler equipment which includes
a statement that the hauler has been
notified and has equipment which is
compatible;
(d) schedule of operation;
(e) maintenance bond in the amount of
3. The director shall process the permit as a Type
I decision.
ORDINANCE NO.
Page 3
C. Approval Criteria.
Applicant shall demonstrate that:
1. the compactor is compatible with the
franchisee's hauling equipment;
2. the proposed site plan provides adequate
maneuvering distances for the franchise hauler's
equipment and maintains adequate and safe access for all
other vehicles and pedestrians as required by local,
state or federal law;
3. to prevent injuries to users and collectors,
compactors shall comply with any applicable federal and
state health, safety and environmental regulations
including, but not limited to OAR 437-02-242;
4. adequate .opportunity for recycling has been
provided.
D. Conditions of Approval Authorized.
The director may approve the' permit subject to
reasonable conditions, related to the approval criteria.
E. Safety.
No stationary compactor or other container for
multifamily residential, commercial or industrial use
shall exceed the safe-loading design limit or operation
of the collection vehicles provided by the franchisee
serving the area.
F. Pre-Existing Compactors.
Any compactor regulated by this Chapter that was in
use on-site prior to the effective date of this ordinance
shall be permitted a -year amortization period after
which the owner/operator of that compactor shall comply
with this ordinance. "
f
ORDINANCE NO.
Page 4
Section 6. Severability. The sections of this ordinance are
severable. In the event any portion or provision is held to be
unenforceable or invalid by any court of competent jurisdiction,
the remainder of this ordinance shall remain in full force and
effect and shall in no way be affected or invalidated thereby.
PASSED AND APPROVED this day of , 1990.
Gerald R. Edwards, Mayor
ATTEST:
Catherine Wheatley, City Recorder
APPROVED AS TO FORM:
City Attorney
Date
mnd\6gard\ccmpact.ord
ORDINANCE NO.
Page 5
�ONNELL, RAMIS. ELL10-IT& CRE6
JEFF H.BACHRACH ATTORNEYS AT LAW CLACKAMAS COUNTY OFFICE
CHARLES E.CORRIGAN• BALLOW&WRIGHT BUILDING 181 N-Grant.Suite 202
STEPHEN F.CREW 1727 N.W.Hoyt Street Canby.Oregon 97013
KENNETH M.ELLIOTT Portland.Oregon 97209 (303)26iY1149
KENNETH H.FOX (503)222-"2 -
PHILLIP E.GRILLO FAX(503)243-2944 GARY M.GEORGEFF•
REESE P.HASTINGS ROBERTJ.McGAUGHEY•
WILLIAM A.MONAHAN PLEASE REPLY TO PORTLAND OFFICE Special Counsel
MARK P O'DONNELL
DENNIS M.PATERSON III
TIMOTHY V.RAMIS
SHEILA C.RIDGWAY•
WILLIAM J.STALNAKER
•Atn Admitted to Prance
in State of Washington
FACSIMILE TRANSMISSION COVER SHEET
DATE: May 7, 1990
TO: Coy Humphrey, Code Enforcement Officer
City of Tigard
FAX NO. : 684-7297 '
CLIENT NO. : 90024-11
. FROM: Phillip E. Grillo
O'DONNELL, RAMIS, ELLIOTT & CREW
ATTORNEYS AT LAW
1727 NW HOYT
PORTLAND, OREGON 97209
Our FAX No. : (503) 243-2944
COMMENTS
Copy v of m memorandum and ordinance re:
Stationary Compactor
6 PAGES TO FOLLOW EXCLUDING COVER SHEET.
IF YOU DO NOT RECEIVE ALL OF THE PAGES, PLEASE CALL THE
UNDERSIGNED AT (503) 222-4402 IMMEDIATELY. THANK YOU.
SIGNED: Lori Foster
Diane Spies and Ass0ates .
A Professional Corporation
Attorneys at Law
JUN 1 1 1990
Diane Spies
One Mount Jefferson Terrace
Lake Oswego, Oregon 97035
(503) 635-1336
June 6, 1990
Mr. Phillip_ E. Grillo
O 'DONNELL, RAMIS , ELLIOT & CREW
Attorneys at Law
1727 N.W. Hoyt Street
Portland, OR 97209
RE: Tigard
Cleanup Contractors/Franchise Issues
Dear Mr. Grillo:
This letter is to confirm our telephone coversation of this date
in* which you stated that the above-referenced matter is currently
in abeyance and there is nothing at this time on the calender.
Our client, Mel Schlagel, will continue to pursue the endeavors
he has been involved in in the Tigard area. His actions conform
to the ordinance in question.
• .Please contact our offices immediately, if anything develops in
this regards.
Sincer
Diane Spies
MEMORANDUM
DATE: May 9, 1990
TO: Gerry McReynolds, Chairman, Utility r J.
'se
Committee, City of Tigard
FROM: Phillip E. Grillo, City Attorney's Office.���
RE: Recycling Ouestion by Precision Interconnect
------------------------------------------------------
At the direction of the City Manager, Pat Riley, I am forwarding
to you my preliminary analysis of Precision Interconnect's request
to use a nonfranchised contractor for recycling their office paper.
A copy of Precision Interconnect's correspondence to me is
attached.
Precision Interconnect presents a question that is difficult to
resolve under the existing City of Tigard garbage franchise
ordinance. Our ordinance was developed in 1979 with minor
subsequent additions. ORS Chapter 459, relating to recycling, was
substantially amended by Senate Bill 405 in the 1983 legislative
session. Subsequently, the Environmental Quality Commission
promulgated rules at OAR 34-60-005 et seq, implementing .,the
policies ,behind SB 405. While our local ordinance does not
conflict with state law, existing state statutes and rules are in
many. ways more developed than the policies and procedures that
exist in our local ordinance. For this reason, third party
recycling, especially in commercial and industrial settings,
presents important policy questions for the city.
In this memorandum, I will attempt to provide you with legal
guidance on the provisions of the - state and local law that apply.
However, this guidance should not ,be construed as a legal opinion
or response to Precision Interconnect's question regarding
recycling under the ordinance. This memorandum is designed only
to provide guidance to the city as it attempts to resolve the
competing policy concerns involved.
The legal question presented by Precision Interconnect in its May
3 letter is as follows: Can a commercial franchise customer divert
office paper waste to a third party recycler before that material
is "placed out for collection?"
Under the ordinance, the definition of the term "waste" includes
"any material that is no longer wanted by or is no longer
usable by the generator which is to be disposed of or to
be resource-recovered by another person. The fact that
materials, which would otherwise come within the
definition of "waste" may from time to time have value
and thus be resource-recovered, does not remove them from
i
Memorandum to Gerry McReynolds
Re: Recycling by Precision Interconnect
May 9, 1990
Page 2
this definition. Source separated wastes are "wastes"
within this subsection. " TMC 11.04.030(j) (1)
A competing provision in the ordinance appears to indicate that
"waste" is not regulated under the franchise unless and until it
is "placed out for collection" by the generator. See
11.04.040(12) (f) . The term "placed out for collection" is not
defined in the ordinance, and could be subject to a variety of
interpretations.
The central portions of the city's ordinance state that no person
shall:
"l. Provide service, offer toprovide service or advertise
for the performance of service without having obtained
a franchise from the City of Tigard;
2. Accumulate, store, collect, transport, dispose of or
resource-recover solid waste except in compliance with
this chapter, other city ordinances, Chapter 459, Oregon
Revised Statutes, dealing with solid waste management and
regulations and amendments promulgated under any of the
foregoing." (Emphasis added.)
Finally, the first exception to the franchise rules noted above is
that nothing in the franchise shall:
"prohibit any person from transporting, disposing,
resource-recovering waste produced by himself so long as
he complies with this chapter, other city•ordinances, and
Chapter 459 of Oregon Revised Statutes, dealing with
solid waste management, and regulations promulgated under
any of the foregoing." TMC 11.04.040(d) (1) .
In my opinion, the above-mentioned provisions, when read together
are ambiguous in relation to the recycling question presented here.
By themselves, these ordinance provisions do not resolve the
question. A conservative reading of the ordinance would prohibit
any third party recycling within the city unless such recycling
happens through the existing franchise haulers. A liberal reading
of the ordinance would allow third party recyclers to collect
recyclable material before it is "placed out for collection. "
Given this ambiguity, my advice to the city is to look to the
relevant provisions of state law. The ordinance itself is designed
to fulfill the resource-recovery goals established by the
Memorandum to Gerry McReynolds
Re: Recycling by Precision Interconnect
May 9, 1990
Page 3
Environmental Quality Commission in ORS Chapter 459 and the
administrative rules that flow from it. See OAR 340-50-015 et seq.
(attached. ) The Oregon Administrative Rules place primary emphasis
on the regulation of residential markets. It is the policy of the
Environmental Quality Commission to encourage local governments to
provide for minimum dislocation of commercial and industrial
recycling efforts.
Because of the statewide policy to encourage commercial and
industrial recycling efforts, state law seems to favor a liberal
reading of the ordinance, to permit commercial users to continue
with their recycling programs.
In offering this guidance, I recognize that a liberal
interpretation of the ordinance in this case will have some effect
on the revenue available to the franchised hauler in the area. The
extent of this impact and its potential to impact rates citywide
is unknown at this time. Ultimately, this information will be
.important as the city re-examines its policy on recycling. To
reiterate, there are a number of reasonable interpretations of this
ordinance with regard to recycling. In my opinion, however, state
law .and state policy seem to favor a broad reading of the ordinance
to permit commercial and industrial recycling even though it may
impact the franchised hauler. This reading is consistent with a
December 5, 1989 opinion by Mr. Michael E. Kohlhoff, City Attorney
for the City of Wilsonville. A copy of Mr. Kohlhoff's opinion is
attached.
cc: Pat Riley, City Manager, City of Tigard
Cliff Scott, City of Tigard
Coy Humphrey, Code Enforcement Officer, City of Tigard
Joseph Richter, Precision Interconnect
PEGJlf
peg\tigard\stott.mel
• 1
111;7
PAO
PRECISION
llrliC:\t�V ',
MAY 7 1990
May 3, 1990 ovc�r�� Ga4s.
Phil Grillo
City Attorney
1727 NW Hoyt Ave.
Portland, OR 97209
Dear Phil ,
Precision Interconnect plans to start a program to recycle office
paper. Presently, our office paper enters the landfill waste.
That waste is hauled by Pride Disposal who have a franchise with
city of Tigard.
We have chosen to sell our scrap office paper to Sunmark Data.
Sunmark is not in the recycle business. The provide computer
Y Y P P
forms and 'copy. paper. As an added service, they buy back our
used paper.
Pride Disposal does not provide office containers or pay for the
recycled paper. Will our plan violate the Tigard solid waste
ordinance if we use Sunmark?
Sincerely,
Joseph A. Richter
16640 S.W.72nd Avenue Telex:36-0963 Boston Diisscldorf
Portland,OR 97224 ' EZ MB11 62982489 Orange Count• Tokio
(503)620-9400 r FAX.(503)620-7131 San Ae ncisrn
14'ilmin,lon
F. MM�i'C'4hael E. Koh1hoff
Theresa M. Welch
Atten;eys at Law
9475 S. W_ Wilsonville Rd.,Suite I Mr. John Dr'ew
P. 0. Box 706
Wilsonville,Oregon 97070 Far West Fibers
P.O. Box 503
Beaverton, OR 97075
December 5, 1989
Dear
Recently, I wrote to you to advise that the City Of
'Wilsonville garbage franchise was being violated through the
collection and hauling away of certain recyclable materiale
namely cardboard products, and that I was instructed to enforce
same.
A reading of the exception in ORS 459.192 for the
coituaercial sale by a source separating generator of recyclable
materials in the market place for fair market valuet on its
face, did not appear to prohibit the city of Wilsonville's
enforcement' of its franchise ordinance as to hauling recyclable
materials over the City's streets. .
However, I have received a number of phone calls from
persons closely involved in the adoption of Senate Bill 405,
including the aforementioned exception, who have in a
professional and cordial manner provided me with information
concerning the legislative background of Senate Bill 405 and
the intent of- the exception provision.
- . I am now in receipt of written support of that 'legislative
intent which leads -me to the conclusion that enforcement of the
City's hauling prohibitions would circumvent the legislative
intent of the exception provision and not be in the public's
best interest. Therefore, I now am of the opinion that ORS
492.192 supersedes the City's garbage franchise ordinance and
permits commercial sale of recyclable material which is
separated by the generator and is purchased from or exchanged
by the generator for fair market value for recycling or reuse,
inclusive of the purchaser hauling the purchased material.
Consistent with the above, the City will not proceed with
the previously noticed enforcement. , The cooperation received
in resolving this issue by those noticed by the City is
abpreciated. Thank you.
Very truly yours,
Michael E. Koh1hoff
MEK/I gc
cc:
OREGON ADMINISTRATIVE RULES
CHAPTER 340, DIVISION 60 — DEPARTMENT OF ENVIRONMENTAL QUALITY
DIVISION 60 (11)"Generator"means a person who last uses a mate-
rial and makes it available for disposal or recycling.
(12)"land disposal site"means a disposal site in which
RECYCLING AND WASTE REDUCTION the method of disposing of solid waste is by landfill,dump.
pit,pond or lagoon.
(13) "Metropolitan service district" means a district
Purpose organized under QRS Chapter 268 and exercising solid waste
340-60-005 The purpose of these rules is to prescribe authority granted to such district under ORS Chapters 268
requirements, limitations and procedures for planning, and 459.
development and operation of waste reduction and recycling 114) "On-route collection" means pick up of source
programs and for providing the opportunity to recycle. separated recyclable material fronl the generator at the place
Stat.Auth:ORS Ch.459 of generation.
Hist:DEQ 26-1984.f.&ct 12-26-84 (15) "Opportunity to recycle" means those activities
described in OAR 340-60-020.
(16)"Permit"means a document issued by the Depart-
Definitions ment,bearing the signature of the Director or the Directors
340-60-010 As used in these rules unless otherwise authorized representative which by its conditions may
specified: authorize the permittee to construct,install,modify or oper-
(1)"Affected person"means a.person or entity involved ate a disposal site in accordance with specified limitations.
in the solid waste collection service process including but not (17) "Person" means the state or a public or private
limited to a recycling collection service.disposal site permit- corporation, local government unit, public agency. indi-
tee or owner,city,county and metropolitan service districL' vidual, partnership, association, firm, trust, estate or any
For the purposes of these rules"Affected person"also means other legal entity.
a person involved in operation of a place to which persons (18) "Principal recyclable. material" means material
not residing on or occupying the property may deliver source which is a recyclable material at some place where the
separated recyclable material. opportunity to recycle is required in a wasteshed and is
(2) "Area of the state" means any city or county or identified by the Commission in OAR 340-60-030.
combination or.portion thereof or other geographical area of (19)"Recyclable material"means any material orgroup
the state as may be designated by the Commission. of materials that can be collected and sold for recycling at a
(3)"Collection franchise"means a franchise.certificate, net cost equal to or less than the cost of collection and
contract or license issued by a city or county authorizing a disposal of the same material.
person to provide collection service. (20)"Resource recovery" means the process of obtain-
(4) "Collection service" means a service that provides ing useful material or energy resources from solid waste and
for collection of solid waste or recyclable material or both. includ=
"Collection service"of recyclable materials does not include (a)"Energy recovery",which means recovery in which
a place to which persons not residing on or occupying the all or a part of the solid waste materials are processed to
property may deliver source separated recyclable material. utilize the heat content,or other forms of energy.of or from
(5)"Collector" means the person who provides codec- the material;
tion service. (b),"Material recovery". which means any process of
(6) "Commission" means the Environmental Quality obtaining from solid waste,by presegregation or otherwise.
Commission. materials which still have useful physical orchemical proper-
(7) "Department" means the Department of Environ- ties after serving a specific purpose and can. therefore. be
mental Quality. reused or recycled for the same or other purpose;
(8"Depot"means a place for receiving source separated (c)"Recycling",which means any process by which solid
recyclable material. waste materials are transformed into new products in such a
(9)"Director"means the Director of the Department of manner that the original products may lose their identity.
Environmental Quality. (d) "Reuse", which means the return of a commodity
(10)"Disposal site means land and facilities used for into the economic stream for use in the same kind of
the disposal, handling or transfer of or resource recovery application as before without change in its identity.
from solid wastes. including. but not limited to dumps. (21)"Solid waste collection service"or"ser%ice"means
landfills.sludge lagoons.sludge treatment facilities,disposal the collection, transportation or disposal of or resource
sites for septic tank pumping or cesspool cleaning service, recovery from solid wastes but does not include that part of a
transfer stations,resource recovery facitities,incinerators for business licensed under ORS 481.345.
solid waste delivered by the public or by a solid waste 22)"Solid wasie"means all putrescible and nonputresci-
collection service,composting plants and land and facilities ble wastes, including but not limited to garbage, rubbish.
previously used for solid waste disposal at a land disposal refuse, ashes, waste paper and cardboard; sewage sludge.
site: but the term does not include a facility subject to the septic tank and cesspool pumpings or other sludge.commer-
permit requirements of ORS 468.740;a landfill site which is tial. industrial, demolition and construction wastes: dis-
used by the owner or person in control of the premises to carded or abandoned vehicles or parts thereof: discarded
dispose of soil. rock concrete or other similar nondecom- home and industrial appliances; manure, vegetable or ani-
posable material.unless the site is used by the public either mat solid and semisolid wastes, dead animals and other
directly or through a solid waste collection service;or a site wastes:but the term does not include:
licensed pursuant to ORS 481.345. (a)Hazardous wastes as defined in ORS 459.410-
I - Div. 60 (November. 1986)
OEGON ADNIINISTRATIVE RULES •
CHAPTER 340, DIVISION 60 - DEPARTMENT OF ENVIRONMENTAL QUALITY
(b) Materials used for fertilizer or for other productive (4)To retain primary responsibility for management of
purposes or which are salvageable as such materials are used adequate solid waste programs with local government units.
on land in agricultural operations and the growing or har- (5)To encourage maximum participation of all affected
vesting of crops and the raising of fowls or animals. persons and generators in the planning and development of
(23) "Solid waste management" means prevention or required recycling programs.
reduction of solid waste; management of the storage,collec- (6) To place 2rimas3L,gzjdseal$ on the provision of the
tion, transportation, treatment, utilization, processing and opportunity to recycle to residential vrneratots of source
final disposal of solid waste;or resource recovery from solid separated recyclable materials.
waste;and facilities necessary or convenient to such activi- (7)To encourage local_government to develop programs
ties. to pro-vide _thi otmortunity to recycle whiccause only
(24) "Source separate" means that the person who last minimum dislocation of
uses recyclable material separates the recyclable material (a) Recycling efforts,especially the activities of charita-
from solid waste. ble,fraternal,and civic groups;and
(25)"Waste"means useless or discarded materials. (b) Existing recycling collection from commercial and
(26) "Wasteshed" means an area of the state having a industrial source&
common solid waste disposal system or designated by the SEAL Auth-ORS Ch.459
commission as an appropriate area of the state within which Hist_DEQ 26-1984,f.&cf.12-26-84
to develop a common recycling program.
Sat.Auth;ORS Ch.459 Opportunity to Recycle
Hist_DEQ 264984,E&ef,12-26-84 340-60-020 As used in these rules the opportunity to
recycle means at least:
(lxa)A place for receiving source separated recyclable
Policy Statement material located either at a disposal site or at another
340-60-015 location more convenient to the population being served
NOTE: Concurrent with the adoption of the Recycling Rules and, if a city has a population of 4,000 or more. on-route
OAR 340-60.005 through 340.60-085.the Environmrnta�wti collection at least once a month of source separated recycla-
Commission adopted policy guidance or imp tcmenuuhouon.This ble material from collection service customers within the
gut ancc u a statement ofthe e Commissto ' mtrnt and should be
used by all imolementorso these rules and the portuntty to city's urban growth boundary or, where applicable. within
`Retmwi - nye session!. Copses o the the urban growth boundary established by a metropolitan --�
vironmental Quality Commission Policy w nce for the service district;or
Opportunity to Recycle Act is available from the Department of
Environmental Quality.Hazardous and Solid Waste Division. (b)An alternative method approved by the Department
Whereas inadequate solid waste collection, storage, which complies with OAR 340-60-035.
transportation.recycling and disposal practices waste energy (2)The"opportunity to recycle"defined in section(1)of
and naturil resources and cause nuisance conditions,poten- this rule also includes a public education and promotion
tial hazards to public health and pollution of air,water and program that:
land environment,it is hereby declared to be the policy of the (a) Gives notice to each person of the opportunity to
Commission: recycle;and
(1)To require effective and efficient waste reduction and (b)Encourages source separation of recyclable material.
recycling service to both rural and urban areas. Sat.Auth:ORS Ch.459
(2) To promote and support comprehensive local or
Hist_DEQ 26.1984.f.&cf 12-26-84
regional government solid waste and recyclable material
management: Wasteshed Designation
(a) Utilizing progressive waste reduction and recycling 340-60-025 (1) The following areas are designated
techniques; wastesheds within the state of Oregon:
(b) Emphasizing recovery and reuse of solid waste;and (a) Baker wasteshed is all of the area within Baker
(c)Providing the opportunity to recycle to every person County.
is Oregon through best practicable methods. (b)Benton and Linn wasteshed is all of the area within
(3)To establish a comprehensive statewide program of Linn and Benton Counties excluding the area within:
solid waste management which will. after consideration of (A)The city of Gates,
technical and economic feasibility, establish the following (B)The city of Idanha,
priority in methods of managing solid waste: (C)The city of Mill City,
(a)First,to reduce the amount of solid waste generated; (c) Clackamas wasteshed is all of the area within
(b)Second,to reuse material for the purpose for which it Clackamas County and all of the area within the cities of
was originally intended; Lake Oswego, Wilsonville, and Rivergrove excluding the
(c).Third.to recycle material which cannot be reused; area within:
(dj Fourth, to recover energy from solid waste that (A)The city of Portland;
cannot be reused or recycled so long as the energy recovery (B)The city of Tualatin;
facility preserves the quality of air,water and land resources; (C)The city of West Linn.
and (d) Clatsop wasteshed is all of the area within Clatsop
(e) To dispose of solid waste that cannot be reused, County-,
recycled. or from which energy cannot be recovered by (e)Columbia wasteshed is all of the area within Colum-
landfilling or other methods approved by the Department. bia County:
(November. 1986) 2 - Div 60
OREGON ADMINISTRATIVE RULES
CHAPTER 340, DIVISION 60 - DEPARTMENT OF ENVIRONMENTAL QUALITY
(f)Coos wasteshed is all of the area within Coos County; (hh)Wasco wasteshed is all of the area in Wasco County:
(g) Crook wasteshed is all of the area within Crook (ii) Washington wasteshed is all of the area in Wash-
County; ington County and all of the area in the city of Tualatin
(h) Curry wasteshed is all of the area within Cum excluding the area within:
County; (A)The city of Portland,
(i) Deschutes wasteshed is all of the area within Des- (B)The city of Lake Oswego,
chutes County; (C)The city of Wilsonville,
6) Douglas wasteshed is all of the area within Douglas (D)The city of Rivergrove;
County; (jj)West Linn wasteshed is all of the area within the city
(k) Gilliam wasteshed is all of the area within Gilliam of West Linn;
County; (kk)Wheeler wasteshed is all of the area within Wheeler
(1) Grant wasteshed is all of the area within Grant County;
County; (11)Yamhill wasteshed is all of the area within Yamhill
(m) Harney wasteshed is all of the area within Harney Countv and all of the area within the city of Willamina.
County; (2)Any affected person may appeal to the Commission
(n)Hood River wasteshed is all of the area within Hood for the inclusion of all or part of a city, county, or local
River County, government unit in a wasteshed.
(o)Jackson wasteshed is all of the area within Jackson Stat.Auth:ORS Ch.459
County: Hist.:DEQ 26-1984.E&CE 12-26.84:DEQ 1-1986.f.&ef.2-12-86
(p)Jcfl'erson wasteshed is all of the area within Jefferson
County;
(q) Josephine wasteshed is all of the area within Principal Recyclable Material
Josephine County; 340-60-030 (1) The following are identified as the
(r)Klamath wasteshed is all of the area within Klamath principal recyclable materials in the wastesheds as described
County, in sections(4)through(8)of this rule:
(s)Lake wasteshed is all of the area,within Lake County; (a)Newspaper,
(t)Lane wasteshed is all of the area within Lane County; (b)Ferrous scrap metal;
(u) Lincoln wasteshed is all of the area within Lincoln (c)Nan-ferrous scrap metal;
County; (d)Used motor oil;
(y)Malheur wasteshed is all of the area within Malheur (e)Corrugated cardboard and kraft paper.
County, (f)Container glass;
(w) Marion wasteshed is all of the area within Marion (g)Aluminum;
County and all of the area,within the cities of Gates,Idanha, (h)Hi-gradc office-paper, .
Mill City and the urban growth boundary of the city of (i)Tin cans.
Salem; (2) In addition to,the principal recyclable materials
(x)Milian-Freewater wasteshed is all the area within the listed in section (L) of this rule, other'materials may be
urban growth boundary of the city of Milton-Freewater, recyclable materials at specific locations where the oppor-
(y) Morrow wasteshed is all of the area within Morrow tunity to recycle is required.
County; (3) The statutory definition of "recyclable material-
(z) Multnomah wasteshed is all the area within (ORS 459.005(15)) determines whether a material is a
Multnomah County excluding the area within: recyclable material at a specific location where the oppor-
(A)The city of Maywood Park, tunity to recycle is required.
(B)The city of Portland and that area within the city of (4)In the following wastesheds,the principal recyclable
Portland's urban service boundary, materials are those listed in subsections(lXa)through(i)of
(C)The city of Lake Oswego; this ruk:
(aa) Polk wasteshed is all the area within Polk County (a)Benton and Linn wasteshed:
excluding area within: (b)Clackamas wasteshed;
(A)The urban growth boundary of the city of Salem, (c)Ciatsop wasteshed;
(B)The city of Willamina; (d)Columbia wasteshed:
(bb)Portland wasteshed is all of the area within the city (e)Hood River wasteshed;
of Maywood Park,the city of Portland,and that area within (f)Lane wasteshed:
the city of Portland's urban service boundary, (g)Lincoln wasteshed;
(cc) Sherman wasteshed is all of the area within Sher- (h)Marion wasteshed;
man County, (i)Milton-Freewater wasteshed:
(dd) Tillamook wasteshed is all of the area within (j}Multnomah wasteshed;
Tillamook County; (k)Polk wasteshed:
(cc) Umatilla wasteshed is all of the area within (1)Portland wasteshed;
Umatilla County excluding the area within:the urban growth (m)Umatilla wasteshed;
boundary of the city of Milton-Freewater, (n)Union wasteshed;
(fl) Union wasteshed is all of the area within Union (o)Wasco wasteshed;
County; (p)Washington wasteshed;
(gg)Wallowa wasteshed is all of the area within Wallowa (q)West Linn wasteshed;
County; (r)Yamhill wasteshed.
3 - Div. 60 - (November. 1986)
RECON ADMINISTRATIVE RULES -
CHAPTER 340, DIVISION 60 - DEPARTMENT OF ENVIRONMENTAL QUALITY
(5)In the following wastcshcds, the principal recyclable propose to the Department an alternative method for
materials are those listed in subsection(1)(a)through (g)of providing the opportunity to recycle.All proposals for altcr-
this rule: native methods shall be submitted to the Department for
(a)Baker wasteshed; approval of adequacy prior to implementation as part of the
(b)Crook wasteshed; opportunity to recycle. Each submittal shall include a
(c)Jefferson wastcshed; description of the proposed alternative method and a discus-
(d)Klamath wastcshed; sion of the reason for using this method rather than the
(e)Tillamook wastcshed. general method set forth in OAR 340-60-020(1)(a).
(6)In the following wastcshcds,the principal recyclable (2)The Department will review these proposals as they
materials arc those listed in subsection(l)(a)through(h)of arc received. Each proposed alternative method will be
this rule: approvcd,•approvcd with conditions, or rejected based on
(a)Coos wasteshed; consideration of the following criteria:
(b)Deschutes wastcshcd; (a)The alternative will increase recycling opportunities
(c)Douglas wastcshed; at least to the level anticipated from the general method set
(d)Jackson wasteshed; forth in OAR 340-60-020 for providing the opportunity to
(e)Josephine wastcshcd- recycle;
(7)In the following wastcshcds,the principal recyclable (b) The conditions and factors which make the alter-
materials arc those listed in subsection(i)(a)through(e)of native method necessary;
this rule: (c)The alternative method.is convenient to the people
(a)Curry wastcshcd; using or receiving the service;
(b)Grant wastcshcd; _ (d)The alternative method is as effective in recovering
(c)Harney wastcshcd; recyclable materials from solid waste as the general method
(d)Lake wastcshcd; set forth in OAR 340-60-020 for providing the opportunity to
(e)Malheur wastcshcd; recycle.
(f)Morrow wastcshcd; (3)The affected persons in a wasteshed.may propose as
(g)Wallowa wasteshed, provided in section(1)of this rule an alternative method to
(8)In the following wastcshcds,the principal recyclable providing on-route collection as part of the opportunity to
materials arc those listed in subsection(Ixa)through(d)of recycle for low density population area within the urban
this rule growth boundaries of a city with a population over 4.000 or.
(a)Gilliam wasteshed; where applicable, the urban growth boundaries established
(b)Sherman wasteshed; by a metropolitan district.
(c)Wheeler wasteshed
EQ D
(9)(a)The opportunity to recycle shall be provided for stat, ORS Ch-4s9
Hist.:DEQ 26-19$4,E&eE 12-26-84
each of the principal recyclable materials listed in sections(4)
through(8)of this rule and for other materials which meet
the statutory definition of recyclable material at specific
locations where the opportunity to recycle is required; Education,Promotion and Notification
(b) The opportunity to recycle is not required for any 340-60-040 (1) Affected persons in each wasteshed
material which a recycling report,approved by the Depart- shall design,commit resources and implement an education
meat,demonstrates does not meet the definition of rccycla- and promotion program that provides:
ble material for the specific location where the opportunity to (a)A vaitten or more effective notice or combination of
recycle is mquircd. both that is reasonably designed to reach each person who
(10)Between the time of the identification of the prin- generates recyclable materials in the.wasteshed, and that
cipal recyclable materials in these rules and the submittal of clearly explains why people should recycle. the recyling
the recycling reports,the Department will work with affected opportunities available to the recipient, the materials that
persons in every wasteshed to assist in identifying materials can be recycled and the proper preparation of those mate-
contained on the principal recyclable material list which do rials:
not meet the statutory definition of recyclable material at (A)The notice used for persons within the urban growth
some locations in the wastcshed where the opportunity to boundaries of cities with more than 4.000 people or within
recycle is required. the urban growth boundary established by a metropolitan
(11) Any affected person may request the commission service district shall include.
modify the list of principal recyclable material identified by (i)Reasons why people should recycle;and
the Commission or may request a variance under ORS (ii)"Ile name,address and phone number of the person
459.185. providing on-route collection;and
(12)The Department will at least annually review the (iii) A listing of depots for recyclable materials at all
principal recyclable material lists and will submit any pro- disposal sites serving the area, including the materials
posed changes to the Commission, accepted and hours of operation;and
Stat.Auth_ORS Ch,459 (iv)A listing of depots for recyclable material at loca-
Hist_DEQ 26-1984,E&cf.12-2644;DEQ 1-1986.E&cf.2-12-86 tions designated as more convenient to the public being
served,including the materials accepted and hours of opera-
Acceptable, Alternative Methods for Providing the Oppor- tion;or
tunity to Recycle (v)Instead of paragraphs(iii)and(iv)a phone number
340-613-035 (1)Any affected person in a wasteshed may to call for all such information about depot locations.
(November, 1986) 4 - Dir. 60
OREGON ADMINISTRATIVE RULES
CHAPTER 340, DIVISION 60 - DEPARTMENT OF ENVIRONMENTAL QUALITY
(B) The notice used for persons not within the urban
(a)The materials which arc recyclable at each disposal
growth boundary of cities with more than 4,000 people cr site and within the urban growth boundary of each city of
within the urban growth boundary established by a metro- 4,000 or more population or within the urban growth bound-
politan service district,shall include: ary established by a metropolitan service district:
(i) Reason why people should recycle;and (b) The manner in which recyclable material is to be
(ii) A listing of depots for recyclable materials at ail collected or received;
disposal sites serving the area, including the materials (c)Proposed and approved alternative methods for the
accepted and hours of operation;and opportunity to recycle which are to be used in the wasteshed
(iii)A listing of depots for recyclable materials at Iota- and justification for the alternative method;
tions designated as the more convenient to the public being (d) Proposed methods for providing the public educa-
served, including what materials are accepted and hours of tion and promotion program;and
operation;or (c) Other information necessary to describe the pro-
(iv)Instead of paragraphs(ii)and(iii)a phone number posed programs for providing the opportunity to recycle.
to call for all such information about depot locations and (3) The recycling report shall include attachments
collection service. including but not limited to the following materials related to
(b) A written reminder, a more effective notice or the opportunity to recycle:
combination of both about the on-route recycling collection (a)Copies of materials that are being used in the waste-
program that is reasonably designed to teach all solid waste shed as part of education and promotion:
collection service customers tvcry six(6)months.
(c)Written information to be distributed to disposal site {b) A copy of any city or county collection service
users at alb disposal sites with attendants and where it is franchise including rates under the franchise:and �
otherwise practical: (c)Other attachments which demonstrate the proposed
(A)This written material shall include: programs for providing the opportunity to recycle.
(i)Reasons whypeople should recycle;and (4)(a)The cities and counties and other affected persons
(ii)A list of materials that can be recycled;and in each wasteshed should before JuIy 1,1485:
(iii)Instruction for the proper preparation of recyclable (A)Jointly identify a person as representative for that
matcriaIs;and wasteshed to act as a contact between the affected persons in
(iv)A list of the recycling opportunities available at the that wasteshed and the Department in matters relating to the
disposal site or designated"more convenient location% recycling report:
(B) At sites without attendants. a sign indicating the (B)Inform the Department of the choice of a represen-
availability of recycling at the site or at the"more convenient tative.
location" shalt be prominently displayed. The sign shall (b)The.cities and counties and other affected persons in
indicate the materials accepted and hours of operation. a Meshed shall gather information from the affected per-
(d) Recycling information (written materials, displa)s sons in the wasteshed and compile that information into the
and/or presentations)to community groups and the general recycling report.
public. (5Xa)Prior to submitting the recyling report.it shalt be
(_)The affected persons in the wasteshed shall identify a made available-to all cities and counties and other affected
.
procedure for citizen involvement in the development and persons in the wasteshed for review.
implementation of the wasteshed's education and promotion . - (b)The recycling report shall include a certification from-
program. each county and city with a population of over 4.000 that it
(3)The affected persons in each wasteshed shall provide has reviewed the report.
notification and education materials to local media and (c) The recycling report shall be made available for
other groups that maintain regular contact with the public, public review and comment prior to submittal to the Depart-
including local newspapers, local television and radio stet- mens. Any public comments shall be submitted to the
tions,community groups,neighborhood associations: Department with the report.
(4)Affected persons in each wasteshed should identify a (6)The Department shall review the recycling report to
person as the education and promotion representative for determine whether the opportunity to recycle will be pro-
that wastcshed to be the official contact between the persons vided to all persons in the wasteshed,The Department shall
in that wasteshed and the Department in matters relating to approve the recycling report if it determines that the waste-
recycling education and promotion. shed will:
(5) Information about the education and promotion (a) Provide the opportunity to recycle. as defined in
program shall be included in the Recycling Report as out- OAR 340.60-020,for
lined in OAR 340-60-045(2). (A) Each material identified on the list of principal
Stat.Audi-ORS Ck 459 recyclable material for the wasteshed. as specified in OAR
Hist_DEQ 26-1984.C&cf.r_'-26-84 340-60-030.or has demonstrated that at a specific location in
the wasteshed a material on the list of the principal recyclable
material is not a recyclable material for that specific location:
Standards for Recycling Reports and
340-60-045 (1)The recycling report shall be submitted (B) Other materials which are recyclable material at
to the Department not later than July 1, 1986 on forrrs specific locations where the opportunity to recycle is
supplied by the Department. required.
(2) The recycling report shalt include the following (b) Have an effective public education and promotion
information: program which meets the requirements of OAR,340-60-0.10.
5 - Div. 60 (Noyembcr. 19861
RECON ADMINISTRATIVE RULES
CHAPTER 340, DIVISIP60 — DEPARTMENT OF ENVIRONMENTAL QUALITY
Stat.Auth'ORS Ch.459 Exemption
His(—DEQ 26-1983,f.&cr.12-26-84 340-60-065 Any disposal site that does not receive
source separated recyclable material or solid waste contain-
Fair Market Value Exemption ing recyclable material is not required to provide a place for
340-60-050 (1) To qualify for exemption under ORS collecting source separated recyclable material.
459.192 a source separated recyclable material must be: Stat.Auth-ORS Ch.459
(a)Source separated by the generator,and Hist-DEQ 26- 984.f.&cf.12-26-84
(b) Purchased from or exchanged by the generator for
fair market value for recycling or reuse-
(2) If, as part of the opportunity to recycle, a city or Small Rural Sites
county requires by franchise that residential collection serv- 340-69-070 Any disposal site from which marketing of
ice of recyclable material be provided and identifies a group recyclable material is impracticable due to the amount or
of two or more materials as the recyclable material for which type of recyclable material received or geographic location
the residential collection service must be provided,then: shall provide information to the users of the disposal site
(a) "Fair market value" of any material within the about the opportunity to recycle at another location serving
identified group shall include the provision of collection the wasteshed.Such information shall include the location of
service for all the material in the identified group;and the recycling opportunity, what recyclable materials are
(b)"Recyclable material"means the group identified by accepted,and hours of operation.
the city or county. StaL Auth-:ORS Ch.459
(3) Local government may designate classes of residen- Hist.:DEQ 26-1984,f.&c£12-26-84
tial dwellings-to which specific types or levels of collection
service is to be provided.
sac Aute-ORS Ch.459 Reasonable Specifications for Recyclable Materials
Hist.:DEQ 26-1984.C&ef.12-26-84 340-60-075 No person providing the opportunity to
recycle shall be required to collect or receive source separated
recyclable material which has not been correctly prepared to
Recyclable Material reasonable specifications which arc related to marketing.
340-60-055 In determining what materials arc recycla- transportation or storage requirements and which have been
ble materials: publicized as part of an education and promotion program.
(1) The cost of collection and sale of a recyclable
material shall be calculated by considering the collectors Stas. ORS Ch.459
costs from the time the material is source separated and HtsL DEQ
26 1984.£&et t2-26 84
leaves the use of the generator until it is first sold or
transferred to the person who recycles it. All costs and Prohibition
savings associated with collection of a recyclable material 340.60-080 In addition to the provisions set forth in
shall be considered in the calculation. ORS 459.195, no person shall dispose of source separated
(2) Any measurable savings to the collector resulting recyclable material which has been collected or received
from making a material available for recycling as opposed to from the generator by any method other than reuse or
disposal shall be considered the same as income from sale. recycling.
(3) The cost of collection and disposal of material as
solid waste shall be calculated by using the total costs of S Aute_Otis Ch-459
collection and disposal. Costs shall include fees charged, HisGz DEQ 26•(9$4.f.&ef,t?-26-$4
taxes levied or subsidy to collect and to dispose of solid
waste-Costs shall also include but arc not limited to the costs Due Consideration
to comply with applicable statutes,rules,permit conditions 340-60-085 (1) In determining who shall provide the
and insurance requirements. opportunity to recycle,a city or county shall first give due
(4) The amount and value of any source separated consideration to any person lawfully providing recycling or
material that is collected or received as part of a recycling collection service on June 1. 1983,if the person continues to
requirement of a permit or a city or county franchise may be provide the service until the date the determination is made
used in determining whether remaining material meets the and the person has not discontinued the service for a period
definition of recyclable material. of 90 days or more between June 1, 1983,and the date the
SaL Aute.:ORS Ch.459 city or county makes the&termination.
Hist.:DEQ 26.1984.£&e£12-26-$4
(2)"Due consideration"includes at a minimum:
(a)A general notice announcing that the city or county
More Convenient Location intends to franchise recycling collection service and describ-
340-60-060 Any disposal site that identifies a more ing the requirements for the franchise;
convenient location for the collection of recyclable materials (b)A timely written notice announcing that the city or
as part of providing the opportunity to recycle shall provide county intends to franchise recycling collection service and
information to users of the disposal site about the location of describing the requirements for the franchise sent to persons
the recycling collection site, what recyclable materials are entitled by ORS 459.200(6xc) to due consideration where
accepted and hours of operation. such persons are known to the city or county or where such
SaL Aute--ORS Ch.459 person has filed a timely written request for such notices with
Hist_DEQ 26.1984.£&cE 12-2644 the city or county;
(November. 1986) 6 - Div. 60
' OREGON ADDQNTSTRATIVE RULES
CHAPTER 340, DIVISION 60 — DEPARTMENT OF ENVIRONMENTAL QUALITY
(c)An opportunity for public comment on the proposed StaL Aath:ORS Ch.459
franchise;and
(d)Consideration of,and response to,a timely applica-
tion for a recycling collection franchise from a person
entitled to"due consideration"and response.
i
i
7 - Div. 60 (November. 14$6)