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08/14/1990 - Packet AGENDA UrIIZTY & FRANCHISE ADVISORY CCNAIITI'F.E TUESDAY, AU= 14, 1990 - 7:00 PM TIGARD CIVIC CENTER - TOM ERIL 91flNCE 10M 13125 SW HAIL BLVD. TIGARD, OR 1. CALL TO ORDER 2. ROLL CALL: MCREYNOIDS BAPREIT SULLIVAN IF&TIN JACOBS ViAL4i WOGEN 3. Approve Minutes 4. Cxanpactor ordinance discussion (information attached) 5. Third party haulers 6. Revised rate structure discussion 8. Other business 9. Adj ourrment TO ENSURE A QUORUM TO CONDUCT BUSINESS, PLEASE CALL LSZ NEWTON AT 639-4171, EXTENSION 308 IF YOU ARE UNABLE TO ATTEND. da/ut&f-a � � *DONNELL, RAMIS, ELLIOTT& CRO FELE COPY 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)2661149 KENNETH H.FOX (503)2224402 --- PHILLIP E.GRILLO FAX(503)243-2944 GARY M.GEORGEFF• REESE P.HASTINGS - ROBERT J.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 *Also Admitted to Pnaite MEMORANDUM in State of WaAinpm 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 f 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;" 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 P might ass muster as a "contractor" to come onto a construction g 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, usuallycarried on b a number of subcontractors. The debris the Y Y 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 Chanter 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. remodelinQ 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 the 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/1 f Peg\tigard\cleamup.mel 0'1INELL. RAMIS. ELLIOTT & CRO ATTORNEYS AT LAW 1727 N.W. HOYT STREET PORTLAND. OREGON 97209 1503! 222-4402 DATE July 10, 1990 'x TO Pat Riley, City Manager JULI .k V I-- ( jV V FROM Phil Grillo ' 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 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. I r Y n 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 Fox City of Tigard/General File PEG:dd 7/10/90 peg\tigard\90024-7.me1 OONNELL. RAMIS. ELLIOTT & CW ATTORNEYS AT LAW 1727 N.W. HOYT STREET PORTLAND. OREGON 97209 fk (503) 222-4402 DATE May 7, 1990 �0 To Coy Humphrey, Code Enforcement Officer FROM Phil Grillo, City Attorney's Office��'j l� RE City of Tictard - 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 _1, 1978, shall be only by permit issued by the City Administrator;" ORDINANCE NO. Page 1 i 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 separation prior to disposal and 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. " ORDINANCE NO. Page 4 i 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\tigard\compact.ord ORDINANCE NO. Page 5 OONNELL, RAMIS, ELLIOTT& CREJJ JEFF H.BACHRACH ATTORNEYS AT LAW CLACKAMAS COUNTY OFFICE CHARLES E.CORRIGAN• BALLOW&WRIGHT BUILDING W N.Grant.Suite 202 STEPHEN F.CREW 1727 N.W.Hoyt Strut Canby.Oregon 97013 KENNETH M.ELLIOTT Portland.Oregon 97209 (513)2661149 KENNETH H.FOX (503)2224402 - PHILLIP E GRILLO FAX(503)243-2944 GARY M.GEORGEFF• REESE P.HASTINGS ROBERT J.McGAUGHEY• WILLIAM A.MONAHAN PLEASE REPLY TO PORTLAND OFFICE Special Counsel MARK P O'DONNELL DENNIS M.PATERSON 111 TIMOTHY V.RAMIS SHEILA C.RIDGWAY• WILLIAM J.STALNAKER •AM Admitted w Pranioe ` 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 of my 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 Asso"iates A Professional Corporation Attorneys at Law s�.�Ei `D JUN 1 'i 1990 Diane Spies _1. 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 f MEMORANDUM DATE: May 9, 1990 TO: Gerry McReynolds, Chairman, utilityfit r 'se Committee, City of Tigard FROM. Phillip E. Grillo, City Attorney's Office,..�� RE: Recycling Question 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 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: "1. Provide service, offer to provide 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 340-60-015 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 PEG/1 f peg\tigard\stott.me1 l�lrl PRECISION INTE,RCONNECT MAY 7 1990 May 3, 1990 :aM,;s. 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. They provide computer 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 Diisse:ldorf Portland,OR 97224 ' EZ MBX 62982489 Orange Count i• To.C-_vo (503)620-9400 FAX.[503)620-7131 San Arancisco Wilmin;ton Michael E. Kohlhoff Theresa M. Welch • Arter.;eys at Law 9475 S. W. Wilsonville Rd.,Suite I P. O. Box 706 ' Mr. John Drew Wilsonville, Oregon 97070 Far West Fibers P.O. Boa: 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 material, namely cardboard products, and that I was instructed to enforce same. A reading of the exception in ORS 459.192 for the couunercial sale by a source separating generator of recyclable materials in the market place for fair market value, on its face, did not appear to prohibit the City of Wilsonville's '• enforcement of its franchise ordinance as to hauling recyclable i materials over the City's streets. f However, I have received a number of phone calls front 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 c ptian provision and not be in the public 's best interest. Therefore, I now am of the opinion that URS 492.192 supersedes the City's garbage franchise ordinance and Permits commercial sale of recyclable material which is separated by generator or the t and is purchased from or exchanged b th era e en Y generator for fair market value for recycling y g 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 appreciated. Thank you. Very truly yours, Michael E. Kohlhoff 14EK/lgc cc: � . 0 OREGON ADMIMSTRATIVE 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 ORS Chapter 268 and exercising solid waste 34040-005 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 froril the generator at the place Sat.Auth-ORS Ch.459 of generation. Hist:DEQ 26-1984.f.&cf.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 Director's 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 district.' 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 or group 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. includes: "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 collec- '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 or chemical 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 c f 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"service-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 pan of a transfer stations,resource recovery facilities,incinerators for business licensed under ORS 481.345. solid waste delivered by the public or by a solid waste 22)"Solid waste"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 cial. 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 mal 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) OREGON ADMINISTRATIVE 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- (S)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,collet- (6) To place,�rimary Pm ria on the provision of the tion, transportation, treatment, utilization, processing and opportunity to recycle to residential generators 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 overnment to develop programs ties. to provt e _ e�u>?orttmity to recycle whit cause on y m (24) "Source separate" means that the person who last mrmum dislocation of 1� 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 indust sources. common solid waste disposal system or designated by the Stat.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. Stat.Auth.:ORS Ch.459 Opportunity to Recycle Hist_-DEQ 26.1984•f.&eL 12-26-84 340-60-020 As used in these rules the opportunity to - recycle means at least: ('PPoli Statement (IXa)A place for receiving source separated recyclable olicy 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•WS through 340-60-085.the Environmental Quality collection at least once a month of source separated recycla- Commission adopted policy guidance—for tm�uon gut ante is a statement of the Com issto ' Intent and should be ble material from collection service customers within the used b all im Cement rs gUbese ritles and thl2gertunily to city's urban growth boundary or, where applicable. within ecvcl - l2&jjf2jjlativc session!. Copies of the the urban growth boundary established by a metropolitan --�_ nvironmental Quality Commission Po-57FG-Mance for the service district;or Opportunity tosaltAct is available from the Department of (b)An alternative method approved by the Department Environmental Quality.y.Hazardous and Solid Waste Division. 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. stat.Auth-ORS Ch.459 (2) Tc promote and support comprehensive local or Hist_DEQ 26-1984,f.&cf.12-26-84 regional government solid waste and recyclable material meaagement: 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 1s 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: (d) 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 Clatso P (e) To dispose of solid waste that cannot be reused, County; recycled, or from which energy cannot be recovered by (c)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 Curr, 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; 0j)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,f.&cf.12-26-84;DEQ 1-1986.f.&cf.2-12-86 (p)Jefferson 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)Non-ferrous scrap metal; County; (d)Used motor oil; (v)Malheur wasteshed is all of the area within Malheur (e)Corrugated cardboard and kraft paper. County; (f)Containerg lass• (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 ( grade office paper, Mill Cit and the urban growth Y boundary of the city gr - cit, of (i)Tin cans. Salem; (2) In addition to. the principal recyclable materials (x)Milton-Freewater wasteshed is all the area within the listed in section (1) 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 �Y 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(IXa)through(i)of (C)The city of Lake Oswego; this rule: (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)Clatsop wasteshed; (B)The city of Willamina; d Columbia wa steshed• (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-Fret water wasteshed: (dd) Tillamook wasteshed is all of the area within 6)Multnomah wasteshed; Tillamook County; (k)Polk wasteshed: (cc) Umatilla wasteshed is all of the area within (I)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) , 1 OREGON ADMINISTRATIVE RULES _ CHAPTER 340, DIVISION 60 — DEPARTMENT OF ENVIRONMENTAL QUALITY (5) In the following wastesheds, the principal recyclablero ose to the Department P P p rtment an alternative method for materials are those listed in subsection(1)(a) through (g)of providing the opportunity to recycle.All proposals for alter- this rule. native methods shall be submitted to the Department for (a)Baker wasteshed; approval of adequacy q y prior to implementation as part of the (b)Crook wasteshed; opportunity to recycle. Each submittal shall include a (c)Jefferson wasteshed; description of the proposed alternative method and a discus- (d) Klamath wasteshed; sion of the reason for using this method rather than the (e)Tillamook wasteshed. general method set forth in OAR 340-60-020(1)(a). (6) In the following wastesheds,the principal recyclable (2)The Department will review these proposals as they materials are those listed in subsection(1)(a)through (h)of are received. Each proposed alternative method will be this rule: (a)Coos wasteshed; approved,•approved with conditions, or rejected based on (b)Deschutes wasteshed; consideration of the following criteria: (c) Douglas wasteshed; (a)The alternative will increase recycling opportunities at least to the level anticipated from the general method set (d)Jackson wasteshed; forth in OAR 340-60-020 forrovidin the (e)Josephine wasteshed. P g opportunity to recycle; (7)In the following wastesheds,the principal recyclable (b) The conditions and factors which make the alter- materials are those listed in subsection (I xa) through (e)of native method necessary; this rule: (c)The alternative method is convenient to the ole (a)Curry wasteshed; P using or receiving the service; (b)Grant wasteshed; (d)The alternative method is as effective in recovering (c)Harney wasteshed; g recyclable materials from solid waste as the general method (d)Lake wasteshed; rov set forth in OAR 340-60-020 for providing the (e)Malheur wasteshed; P g opportunity to recycle. (f)Morrow wasteshed; (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 wastesheds,the principal recyclable providing on-route collection as part of the opportunity to materials are those listed in subsection(1)(a)through (d)of recycle for low density population area within the urban this rule: (a)Gilliam wasteshed; growth boundaries of a city with a population over 4,000 or, (b)Sherman wasteshed; where applicable, the urban growth boundaries established (c)Wheeler wasteshed. by a metropolitan district- (9)(a) The opportunity to recycle shall be provided for Stat.Auth--ORS Ch.459 each of the principal recyclable materials listed in sections(4) Hist:DEQ 26-1984,E&ef.12-26-84 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; 1`ducation,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 ment,demonstrates does not meet the definition of recycla- and promotion program that provides: ble material for the specific location where the opportunity to (a)A written or more effective notice or combination of recycle is required. 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 wasteshed 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) An affected Y person may request the commission service district shall include: modify the list of principal recyclable material identified by (t)Reasons why people should recycle-and the Commission or may request a variance under ORS (ii)The 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 SUL Auth:ORS Ch.459 (iv)A listing of depots for recyclable material at loca- Hist_DEQ 26-1984,E&eE 12-2644;DEQ 1-1986.L&cE 2-12-86 tions designated as more convenient to theublic being 8 served includingthe 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 340-60-035 (1)Any affected person in a wasteshed may to call for all such information about depot locations. (November, 1986) 4 - Div. 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 are 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 all collected or received; disposal sites serving the area, including the materials (c) Proposed and approved pproved alternative methods for the accepted and hours of operation;and opportunity to recycle which are t (iii)A listing of depots for recyclable materials at loca- o be used in the wasteshed tiand justification for the alternative ons designated as the more convenient to the public being method; served, including what materials are accepted and hours cf a operation;or nProposed methods for providing the public educa- tion an d promotion program;and (iv) Instead of paragraphs(ii)and(iii)a phone number (e) Other information necessary to describe the pro- to call for all such information about depot locations and posed programs for providing the opportunity to recycle. collection service. (3) The recycling report shall include attachments (b) A written reminder, a more effective notice or including but not limited to the following materials related to combination of both about the on-route recycling collection the opportunity to recycle: program that is reasonably designed to reach all solid waste (a)Copies of materials that are being used in the waste- collection service customers every six(6)months. shed as part of education and promotion: (c)Written information to be distributed to disposal site (b) A copy of any city or county collection service users at all 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 why people should recycle;and (4xa)The cities and counties and other affected persons (ii)A list of materials that can be recycled;and in each wasteshed should before July 1,1985: (iii) Instruction for the proper preparation of recyclable (A)Jointly identify a person as representative for that materials: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" shall be prominently displayed. The sign shall (b)Thecities and counties and other affected persons in indicate the materials accepted and hours of operation. a wasteshed shall gather information from the affected per- (d) Recycling information (written materials, displays sons in the wasteshed and compile that information into the and/or presentations)to community groups and the general recycling report. public. (5)(a)Prior to submittingthe recvli n g report.1t shall be (2)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- ment. 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 wasteshed to be the official contact between the persor..s 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.Autha ORS Ch.459 recyclable material for the wasteshed• as specified in OAR Hist.:DEQ 26-1984.c&cE 12-2644 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 submitte3 (B) Other materials which are recyclable material at to the Department not later than July 1, 1986 on forn•s specific locations where the opportunity to recycle is supplied by the Department. required. (2) The recycling report shall include the following (b) Have an effective public education and promotion information: program which meets the requirements of OAR 3.30-60-0.30. 5 - Div. 60 (November. 1986) �REGON ADMINISTRATIVE RULES • CHAPTER 340, DIVISION 60 — DEPARTMENT OF ENVIRONMENTAL QUALITY Stat.Auth.:ORS Ch.459 Exemption .r Hist DEQ 26-1984,f.&cf. 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 340-00-050 (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 26-1984,E&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. Stat.Auth_ORS Ch.459 (3) Local government may designate classes of residen- Histz DEQ 26-1984,f.&cf.12-26-84 tial dwellings-to which specific types or levels of collection service is to be provided. Sat.Auths ORS Ch.459 Reasonable Specifications for Recyclable Materials Hist.:DEQ 26-1984.E&of 12-26-84 340-60-075 No person providing the opportunity to recycle shall be required to collect or receive source separated Recyclable Material recyclable material which has not been correctly prepared to 340-60-055 In determining what materials are recycla- reasonable specifications which are related to marketing, ble materials: transportation or storage requirements and which have been (1) The cost of collection and sale of a recyclable publicized as part of an education and promotion program. material shall be calculated by considering the collector's StaL Auth.:ORS Ch.459 costs from the time the material is source separated and Hist.:DEQ 26.1984,f.&cf.12-26-84 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. (b Any measurable savings to the collector resulting ORS 459.195, no person shall dispose of source separated from making a material available for recycling ofct o recyclable material which has been collected or received 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 StaL Auth.:ORS Ch.459 collection and disposal. Costs shall includefees charged, Hist:DEQ 26.1984,f.&of 12-26-84 taxes leoied or subsidyto collect and t o dispose of solid waste.Costs shall also include but are 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. (ns The amount and value of any source separated opportunity to recycle. a city or county shall first give due material that is collected or received as art source a consideration to any person lawfully providing recycling or P 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 definition and the person has not discontinued the of recyclable material. service for a period stat Auth;ORS Ch.459 of 90 days or more between lune 1, 1983,and the date the Hist:DEQ 26.1984,f.&ef.12-26-84 city or county makes the determination. (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- convcnient location for the collection f _ o recyclable materials b A timely ( ) y written notice announcing that the city or as part of providing the opportunity recycle PPo y to ecy shall provide count intends to franchise Y- 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(6)(c) to due consideration where accepted and hours of operation. such persons are known to the city or county or where such SUL Auth:ORS Ch.459 person has filed a timely written request for such notices with Histo DEQ 26-1984,f.&cf.12-26-84 the city or county; (November, 1986) 6 - Div. 60 . OREGON ADAUNIS TRATIVE RULES CHAPTER 340, DIVISION 60 — DEPARTMENT OF ENVIRONMENTAL QUALITY O t.Auth.:ORS Ch.459 (C)An opportunity for public comment on the proposed Sta franchise;and (d)Consideration of,and response to,a timely applica- Hist--DEQ 26-1984.f.&cf.12-26-84 tion for a recycling collection franchise from a person entitled to"due consideration"and response. 7 - Div. 60 (November. 1986)