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HomeMy WebLinkAboutOrd 822 Collection of Recyclable Materials 41111/ CITY OF PALM DESERT MEMORANDUM TO: HONORABLE MAYOR AND CITY COUNCIL FROM: LISA V. CONSTANDE ENVIRONMENTAL CONSERVATION MANAGER RE: RECYCLING ORDINANCE DATE: DECEMBER 12, 1996 RECOMMENDATION: NETING DATE i By minute motion: ❑ CONTINUED TO Waive further reading and pass to second reading. LA /SSED TO 2ND READING /� % 7 BACKGROUND: The California Integrated Waste Management Act of 1989 (the Act) authorizes cities to grant exclusive franchises for solid waste handling services. The City of Rancho Mirage contracted with Waste Management of the Desert (WMD) for the collection and disposal of residential and commercial waste within the City limits (the Agreement). The Agreement consisted of two parts, refuse collection and recycling collection. • Under refuse collection, WMD had the obligation and exclusive right to collect, receive, transport, segregate, recycle, and dispose of residential and commercial refuse of the type customarily deposited by res idents and businesses in n colle ction containers or areas for pickup and disposal. However, the Refuse Collection Agreement did not prohibit a person from transporting their own refuse to a legal dump site. • Under recycling collection, WMD had the obligation and exclusive right to collect and remove all specified materials that are segregated and placed in separate recycling containers at the curbside on public streets or adjacent to multifamily complexes or in bins at locations designed by commercial establishments. Subject to specified limitations, WMD was authorized to retain the revenue from the sale of recyclable materials. 4116 When it entered into the Agreement,the City of Rancho Mirage adopted an ordinance that provided "all garbage and rubbish accumulated in the City shall be collected,conveyed and disposed of by the City or by any person with whom the City has a contract for the collection, removal, and disposal of ashes, waste matter, garbage and rubbish." Except as otherwise provided in this Agreement,no person, other than the City or its contract agent, could collect, convey over any of the streets or alleys of the city, or dispose of any refuse accumulated in the city. Under this Agreement (exclusive franchise) with the City of Rancho Mirage,WMD established a citywide recycling program for: • single-family residences; • multi-family complexes; • commercial establishments. In May 1991,the City of Rancho Mirage and WMD sued a company entitled Palm Springs Recycling (PSR), alleging that, beginning in 1990,PSR"had been sending trucks into the City of Rancho Mirage on a regular basis to collect recyclable material from large commercial customers"in violation of the rights of Rancho Mirage and WMD under the Agreement and the Ordinance. Rancho Mirage and WMD further alleged that PSR refused to comply with demands made by Rancho Mirage that PSR cease collection activities. The complaint sought a preliminary and permanent injunction that would stop (prohibit) PSR from collecting recyclable materials within Rancho Mirage. The City of Rancho Mirage and Waste Management of the Desert (WMD) sought this injunction against PSR collecting recyclables because the city felt it had the right to enter into a contract with a single contractor for the exclusive collection of recyclables within its city limits. After several years in court,including two appeals,the Supreme Court of the State of California, on March 31, 1994, determined that a city does not have the legal right to enter into an exclusive franchise agreement for the collection of recyclables..In its decision entitled Waste Management of the Desert, Inc., et al., Palm Springs Recycling Center Inc., Plaintiffs and Respondents v. Defendant and Appellant, the Court made three main points: 1. ECONOMIC VALUE TO THE OWNER. The concept of market is defined in Union Pacific R.R. Co.V. State Board of Equalization (1989); "The worth of a thing,is the price it will bring." If the owner of a material can sell it,perhaps for the reason that it is recyclable,it has an economic value to its owner. The Act's very title,the California Integrated Waste Management Act of 1989, and its repeated references to "solid waste, solid waste handling, and the recycling of solid wastes" and the like, strongly indicate the Legislatures was concerned with just what it said—waste--and not with materials of economic value to their owner—recyclables. 2 11110 Basically,if an owner voluntarily disposes of property without receiving compensation or other consideration(s) in exchange-that is,throws it away-the obvious conclusion is that the property has no economic value to the owner. The concept of value is related in the manner in which the property is disposed. If an owner decides to recycle their property and/or receives compensation for their property, and it is the determination of the owner to contract for service, a city does not have the right to prohibit this free market exchange of materials and/or compensation. 2. VALUABLE MATERIALS NOT DISCARDED. The Act's definition of waste also reflects the traditional view that waste-at least for the purposes of its collection-is material that has been discarded by its owner. The Supreme Court of the State of California determined that recyclables were not subject to the Act and that the proper rule is this: If the owner of property disposes of it for compensation-in common parlance,sells it-it is not waste because it has not been discarded. The owner is not required under the act to transfer this property to the exclusive franchisee. But, consistent with the purpose of the Act, an owner cannot discard property as he sees fit. Discarding the property renders the property waste and subjects it to the Act. 3. THE OWNER'S RIGHT TO SELL RECYCLABLES. If the owner of recyclable materials discards them into the solid waste stream,they become solid waste subject to the Act, and an exclusive franchise would have the right to collect that waste in accordance with its franchise agreement. If,however,the owner disposes of recyclables for compensation-in common parlance, sells them-the recyclables are not discarded and do not become waste. IN CONCLUSION: The City of Palm Desert currently allows the exclusive collection of three recyclable materials. As a result,it does not comply with the Supreme Court's decision in Waste Management of the Desert v. Palm Springs Recycling. In order to comply with this decision,the City must amend Chapter 8.17 of the Palm Desert Municipal Code to permit the non-exclusive collection of recyclables. In return, Palm Springs Recycling will dismiss the lawsuit that it currently has pending against Palm Desert. work conducted byour Deputy CityAttorney,Chapter No. 8.17 has been revised withguidance and o ott , P P tY y Ms. Sandy Jacobson. Ms.Jacobson has been in contact with the legal counsel for PSR. WMD has reviewed and approved the revisions to the recycling ordinance. If the ordinance is amended,the pending litigation against the City will be dismissed. Revie and Concurred, • LISA V. CONSTANDE,MANAGER ON A. DIA ENVIRONMENTAL CONSERVATION CITY MANAGER 3