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AGO 1976 No. 11 - May 26, 1976
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Slade Gorton | 1969-1980 | Attorney General of Washington

COUNTIES ‑- COLLECTION OF SOLID WASTE ‑- CONTRACTS ‑- STATE REGULATION OF COUNTY GARBAGE COLLECTION

(1) Under § 3, chapter 58, Laws of 1975-76, 2nd Ex.Sess., when a comprehensive solid waste plan adopted under RCW 70.95.080 incorporates the use of transfer stations, the transportation of solid waste between disposal sites in transfer trailers, but not in "drop box" detachable containers, is thereby exempt from regulation by the Washington utilities and transportation commission.

(2) Under § 3, chapter 58, Laws of 1975-76, 2nd Ex. Sess., a county in which a comprehensive solid waste plan has been adopted may contract for the hauling of solid waste between disposal sites in transfer trailers, but not in detachable containers, either by the normal bidding process or by negotiation with the qualified collection agency serving the area under the authority of chapter 81.77 RCW; contracts utilizing the use of detachable containers, however, must follow the normal bidding process where applicable.

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                                                                   May 26, 1976

Honorable Jeremy R. Randolph
Prosecuting Attorney
Lewis County Courthouse
Chehalis, Washington 98532

                                                                                                                 Cite as:  AGO 1976 No. 11

Dear Sir:

            By letter previously acknowledged you have requested the opinion of this office on two questions pertaining  [[Orig. Op. Page 2]] to transportation of solid waste under chapter 58, Laws of 1975-76, 2nd Ex. Sess.  (Substitute House Bill No. 721).  We have paraphrased your questions as follows:

            (1) Under § 3, chapter 58, Laws of 1975-76, 2nd Ex. Sess., when a comprehensive solid waste plan, as provided in RCW 70.95.080, incorporates the use of transfer stations, is the transportation of solid waste between disposal sites in "drop box" detachable containers thereby exempt from regulation by the Washington utilities and transportation commission?

            (2) Under § 3, chapter 58, Laws of 1975-76, 2nd Ex. Sess., may a county in which such a comprehensive solid waste plan as is referred to in question (1) has been adopted contract for the hauling of solid waste between disposal sites in detachable containers, as well as in transfer trailers, either by the normal bidding process or by negotiation with the qualified collection companies servicing the area under the authority of chapter 81.77 RCW?

            We answer both of your questions in the negative for the reasons stated in our analysis.

                                                                     ANALYSIS

            Section 3, chapter 58, Laws of 1975-76, 2nd Ex. Sess., provides as follows:

            "When a comprehensive solid waste plan, as provided in RCW 70.95.080, incorporates the use of transfer stations, such stations shall be considered part of the disposal site and as such, along with the transportation of solid wastes between disposal sites, shall be exempt from regulation by the Washington utilities and transportation commission as provided in chapter 81.77 RCW.

             [[Orig. Op. Page 3]]

            "Each county may enter into contracts for the hauling of trailers of solid wastes from these transfer stations to disposal sites and return either by (1) the normal bidding process, or (2) negotiation with the qualified collection company servicing the area under authority of chapter 81.77 RCW."

            Question (1):

            Your first question involves the proper interpretation of the initial paragraph of this 1976 law while your second deals with the scope and effect of the concluding paragraph thereof.

            In attempting to arrive at the legislative intention, we must be guided by certain rules of statutory construction.  It has been stated that in ascertaining the legislative purpose, consideration must be given to all the provisions of an act and a construction must be adopted which is reasonable and in furtherance of the manifest purpose of the legislation.  Roza Irrigation Dist. v. State, 80 Wn.2d 633, 497 P.2d 166 (1972); see, also,Greenwood v. State Bd. for Com. Col., 82 Wn.2d 667, 513 P.2d 57 (1973).  In accordance with this principle, we have given consideration to the above‑cited language of the first paragraph of § 3 in conjunction with the definition of "transfer station" as contained in § 1 of the subject 1976 enactment; i.e.,

            ". . . a staffed, fixed supplemental facility used by persons and route collection vehicles to deposit solid wastes into transfer trailers for transportation to a disposal site.  This does not include detachable containers."  (Emphasis supplied.)

            In giving effect to this statutory definition we are led inexorably to the conclusion that the exemption contemplated by the legislature under § 3,supra, is quite narrow.  In that section the legislature stated that when a comprehensive solid waste plan incorporates the use of transfer stations, ". . . such stations shall be considered part of the disposal site and as such, along with the transportation of solid wastes between disposal sites, . . ." shall be exempt from regulation by the Washington utilities and transportation commission under chapter 81.77 RCW.  In the light of the  [[Orig. Op. Page 4]] definition of "transfer stations" in § 1, however, the quoted language of § 3 must be read as meaning only such facilities as are included in that definition along with transportation from those stations to a disposal siteby means of transfer trailers.  Apparently what the legislature envisioned was a centralized sanitary landfill or some other major disposal facility or facilities augmented by one or more satellite transfer stations involving the use of transfer trailers as distinguished from detachable containers.  Although the act does not purport to say that a detachable container operated by or on behalf of a county can never be characterized as a disposal site, the specific exemption here in question does not extend to all such sites but only to main disposal sites along with those satellite disposal sites coming within the definition of "transfer stations" which, in turn, as defined in § 1, incorporates transportation only by means of transfer trailers but not by detachable containers.

            In our view, this specific exclusion of detachable containers from the definition in § 1 removes any ambiguity in § 3 as to the intended scope of the exemption.  This being so, the statute itself furnishes a rule of construction which is not subject to further interpretation.  See,Seattle v. Ross, 54 Wn.2d 655, 344 P.2d 216 (1959).  We therefore conclude that transportation services involving the movement of detachable containers, as distinguished from transfer trailers, are not exempt from regulation by the Washington utilities and transportation commission under the provisions of chapter 81.77 RCW.  Accordingly, your first inquiry is answered in the negative.1/

             Question (2):

            Your second question presents a more challenging issue.  Section 3 of chapter 58,supra, contains two possibly  [[Orig. Op. Page 5]] discrete provisions.  The second paragraph of that section (here repeated for ease of reference) provides as follows:

            "Each county may enter into contracts for the hauling of trailers of solid wastes from these transfer stations to disposal sites and return either by (1) the normal bidding process, or (2) negotiation with the qualified collection company servicing the area under authority of chapter 81.77 RCW."

            Under the rule of statutory construction expressio unius est exclusio alterius (see, e.g.,State v. Sponburgh, 84 Wn.2d 203, 525 P.2d 238 (1974), and Knowles v. Holly, 82 Wn.2d 694, 513 P.2d 18 (1973)) an argument could be advanced that because the legislature has given each county the authority to contract for the movement of transfer trailers, contracting for the transportation of such waste by any other facility intended for solid waste disposal is thereby foreclosed.  More precisely, it could be asserted that the express authority to contract for the movement of transfer trailers excludes by necessary implication the authority to contract for the transportation of detachable containers.

            However, the rule of express mention and implied exclusion is but another rule of statutory construction by which the intention of the legislature is to be gleaned.  Swanson v. White, 83 Wn.2d 175, 517 P.2d 959 (1973).  It has been held that this rule should be applied only as a means of discovering the legislative intent and its application should not be permitted to defeat plainly indicated purposes of the legislature.  In re Estates of Donnelly, 81 Wn.2d 430, 502 P.2d 1163 (1972).  Therefore, consistent with the foregoing, and giving consideration to the obligations of counties and the general pattern of enabling legislation pertaining to county waste disposal procedures, we do not believe the above‑cited language was intended as a limitation on the authority of the counties to contract.

            It is well established that counties have such powers as have been granted to them, expressly or by necessary implication, by the constitution and statutes of this  [[Orig. Op. Page 6]] state.  State ex rel. Taylor v. Superior Court, 2 Wn.2d 575, 98 P.2d 985 (1940); State ex rel. King County v. Sup.Ct., 33 Wn.2d 76, 204 P.2d 514 (1949).  In fact, counties have an affirmative obligation under the laws of this state to provide for the disposal of solid wastes in their respective areas exclusive of incorporated areas.  The preservation of the public health is among the most important objects sought to be secured by governmental laws.  Article XI, § 11 of the Washington Constitution provides as follows:

            "Anycounty, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws."  (Emphasis supplied.)

            In order to implement the performance of their constitutional responsibilities in this area, counties are empowered by chapter 70.95 RCW to adopt comprehensive solid waste plans.  Indeed, this authority is recognized within the four corners of chapter 58,supra.  Section 2 of that act states that:

            ". . .  Each county may designatedisposal sites for all solid waste collected in the unincorporated areas pursuant to the provisions of a comprehensive solid waste plan adopted pursuant to chapter 70.95 RCW: . . .  (Emphasis supplied.)

            Section 4, relating to the ownership of solid wastes, then provides in essence that ownership of solid wastes remains in the original owner until such wastes arrive at the disposal siteor transfer station or detachable container, each of which must be treated as a term describing disposal facilities in which materials to be discarded may be deposited.  In connection with comprehensive planning, we do not perceive the term "disposal site" as employed either in chapter 70.95 RCW or in chapter 58, Laws of 1975-76, 2nd Ex. Sess.,supra, to be a limitation on the type of disposal facility a county may choose to make available to the public.  In our view the term therefore includes sanitary landfills and any other dump facilities constructed and maintained in accordance with environmental and such other requirements as are applicable.

             [[Orig. Op. Page 7]]

            Included within that terminology would be satellite facilities such as transfer stations and/or detachable containers.  Obviously, the contents of transfer stations or detachable containers require transportation from time to time to some main disposal or resource recovery site and the return of such equipment to its prior location.  In answering your first question we have previously noted that the transportation of solid waste intransfer trailers (but not drop boxes) between transfer stations and main disposal sites is exempt from regulation by the utilities and transportation commission under chapter 81.77 RCW.  This exemption, however, was not intended as a diminution of the constitutional responsibility of counties to provide for the disposal of solid waste or as a restraint on the options open to them as to the best method of accomplishing that objective.  On the contrary, with respect to the management of solid waste, a county is at liberty to perform its obligation in any fashion that is not prohibited by law.  It is clear that the placement of detachable "drop box" containers for the handling and disposal of these materials is not prohibited by law.  Moreover, by RCW 36.01.010 the several counties are empowered to make such contracts as may be necessary to their corporate or administrative powers.  Since counties have the authority to place and move detachable containers it necessarily follows that they also have the authority to enter into proper contracts for the placement and movement of these disposal facilities.

            This, however, does not mean that such contracts, like those involving the use of transfer trailers, are exempt from statutory bidding requirements.  While the second paragraph of § 3, chapter 58, supra, is not to be construed as a limitation on the authority of a county to contract it does serve to broaden the methods by which counties may make such contracts only with respect to the use of transfer trailers.  Counties are no longer required to comply with the directive of RCW 36.32.250 by calling for bids in the movement of these disposal facilities but are expressly given the alternative, in furtherance of the exemption provided for by the first paragraph of this statute, of negotiating a special contract with any carrier otherwise authorized to perform garbage and refuse collection services within the territory involved.

             [[Orig. Op. Page 8]]

            On the other hand, movement of detachable containers between disposal sites has not been exempted from the requirements of chapter 81.77 RCW.  In the event a county wishes to enter into a special contract for this service the normal processes required under RCW 36.32.250 will therefore continue to apply ‑ as will the obligation of the successful bidder to acquire an appropriate certificate of authority from the utilities and transportation commission pursuant to RCW 81.77.040.

            Relating this specifically to your second question, it is therefore our opinion that in contracting for the movement of detachable containers under a comprehensive solid waste management plan a county must follow prescribed bid procedures unless the contemplated contract would otherwise be excluded from bidding requirements under RCW 36.52.250.  Likewise, the county's contractor will be required to have or secure operating authority from the utilities and transportation commission for the movement of these containers under standards enunciated in chapter 81.77 RCW.2/

             We trust the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


JAMES R. CUNNINGHAM
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Not within the scope of your present inquiry is the question of whether the movement of transfer trailers is exempt from the requirements of chapter 81.80 RCW as well as chapter 81.77 RCW.  Consequently, we express no opinion on that question but conclude only that the movement of detachable containers is subject to regulation under chapter 81.77 RCW.

2/One additional observation is perhaps appropriate.  Nothing herein should be construed as impairing the right of a county to place detachable containers and provide for their transportation needs by subscribing to services offered by certified common carriers of garbage and/or refuse commodities at such rates as may be applicable under tariffs filed by garbage and refuse collection companies with the Washington utilities and transportation commission.

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