Memo Regarding Organized Collection - 1324647v1Kim JoDene Donat
Attorney DIRECT 612.341.9721
kdonat@bestlaw.com
Memorandum
DATE: May 21, 2011
TO: Allen Barnard
FROM: Kim Donat
REGARDING: Organized Collection
FILE NUMBER: 90-480568
Issue: Whether a City can pass an ordinance that requires that all residential
households (including multi-family complexes) and businesses have a weekly or monthly
contract for solid waste management.
The short answer to this question is “yes”. Under Minnesota law a city is obligated to ensure
that every residential household and business in the city has solid waste collection service,
but the statute is silent as to frequency of such services.1 A city has discretionary authority
to exempt a residential household or business in the city from the requirement of having solid
waste collection service if the household or business ensures that an environmentally sound
alternative is used. If the City would like to require service by ordinance it should also
consider whether it wants to develop a policy under which it would be willing to grant
waivers of the service requirement. Minnesota Statute section 115A.941 describes the City’s
obligation to require service as follows:
(a) Except as provided in paragraph (b),...any other town with a population of
5,000 or more shall ensure that every residential household2 and business in the
city or town has solid waste collection service. To comply with this section, a
city or town may organize collection, provide collection, or require by
ordinance that every household and business has a contract for collection
services. An ordinance adopted under this section must provide for
enforcement.
(b) A city or town described in paragraph (a) may exempt a residential
household or business in the city or town from the requirement to have solid
1 Minnesota Statutes §115A.941.
2 “Residential household” would include each household in multifamily complexes. Typically city code
provisions require that residents have a contract, which renters could evidence by coverage under the
Landlord’s contract and lease provisions.
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waste collection service if the household or business ensures that an
environmentally sound alternative is used.
While the City is required to ensure that all residential households and businesses have
service, cities have handled the question of frequency differently. Some cities require
weekly service by ordinance, others allow haulers to provide plans with less
frequency, and others under their discretionary authority to provide an “opt out” for an
environmentally sound alternative allow individuals to haul the garbage directly to a
local licensed solid waste facility, still others, again under their discretionary authority
allow for submission of an environmentally sound alternative plan.
As an example, if a house is unoccupied there is little need for waste disposal
since little to no waste would be produced on site. Some citizens will bristle at a
governmental requirement that an individual be forced to enter into a private weekly
service contract by ordinance where such services are not needed. While there are
legitimate public health reasons for a weekly pick-up requirement, cities can consider
the following additional options when drafting their service contract requirement
ordinance:
a. Ask licensed haulers to provide some minimum contract (based on monthly
or quarterly collection, for example);
b. Provide in the ordinance that residents may submit an environmentally
sound alternative waste plan as provided by statute, or
c. Provide in the ordinance that residents may obtain permission to haul the
waste to a local licensed solid waste facility (if any).
None of these options are required to be in the ordinance by statute statue. A
more straight forward and perfectly acceptable approach is to simply require that a
contract be in place and let the haulers (and the market) determine whether alternative
plans are profitable (for example, by offering plans providing temporary suspension of
service for snowbirds). If a property does not have a minimum contract or other
approved waste plan the City must provide for enforcement provisions in the
ordinance.
Issue: Whether the City can mandate that haulers make collections on the same
day?
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The short answer to this question is “yes”, so long as such policy is consistent with the
County’s solid waste policies. Under Minnesota law a licensing authority may impose
requirements that are consistent with the County’s solid waste policies as a condition
of receiving and maintaining a license.3 Both Eagan and Woodbury require licensed
haulers to pick up on a certain day designated by ordinance. (See Eagan and
Woodbury Ordinances and summary descriptions of open collection cities including
Eagan and Woodbury from the June 2009, MPCA report entitled, “Analysis of Waste
Collection Service Arrangements” attached).
Issue: Whether the City can mandate that a hauler include electronic recycling
service.
Video Display and Electronic Device Collection and Recycling Act. In 2007 the state
passed the Video Display and Electronic Device Collection and Recycling Act (the “Act”)
which applies to both organized and unorganized collection cities. Covered electronic
devices include computers, peripherals, fax machines, DVD players, video cassette recorders,
and video display devices that are sold to a household. Under the Act a city, county, or other
public agency may not require households to use public facilities to recycle their covered
electronic devices to the exclusion of other lawful programs available – however the statutes
is silent as to whether the City can require a hauler to provide electronic recycling services.
Cities, counties, and other public agencies, including those awarded co ntracts by the
agency under Minn. Stat. section 115A.1314, subd. 2, are encouraged to work with
manufacturers to assist them in meeting their recycling obligations under the Act. Nothing in
Minn. Stat. sections 115A.1310 to 115A.1330 prohibits or restricts the operation of any
program recycling covered electronic devises in addition to those provided by the
manufacturer or prohibits or restricts any person from receiving, collecting, transporting, or
recycling covered electronic devises provided that those persons are registered under Minn.
Stat. section 115A.1312. It should be noted that the state contact for the state electronics
recycling program was aware of only one City (Minneapolis), which has curb side electronics
recycling. The Act does not directly address whether a city can mandate electronics recycling
as a condition to issuing a license, but not all solid waste haulers are necessarily registered to
haul recyclable electronics. The Act neither expressly requires all haulers to haul recyclable
electronics, nor does the Act expressly authorize cities to require electronic recycling;
therefore one must analyze the organized collection statute to determine whether such a
requirement would be allowed outside of the organized collection process.
3 Minnesota Statutes §115A.93.
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Organized Collection Cities. Golden Valley has open solid waste collection and
recycling is provided by the City. As discussed in my May 18, 2010 memorandum to the
City, current case law interpreting Minn. Stat. section 115A.94, subd. 4, requires cities to
comply with the 180-day notice period and public hearing requirements before making
changes to an existing system of solid waste collection.4 In this case, requiring electronics
recycling by the City’s solid waste haulers would be a change that appears to be governed by
the organized collection process because electronics are not standard recyclable materials and
are considered solid waste.
Is a mandate to require such service possible? Yes, but the City would need to go
through the 180-day notice period and the public hearing requirements. According to the
June 2009 report on Analysis of Waste Collection Service Agreements, an organized system
of collection has not been implemented since the 180-day notice period was made law.
Please note however, if the City and all the impacted haulers agree – the change can be made
without going through the notice and hearing process.5
Presumably all haulers would agree to such a change if they all felt such collection fit
within their business model, indeed one would assume that market forces would result in this
so long as such an option was economically advantageous for the hauler. However, not all
solid waste haulers are registered to haul recyclable electronics, and therefore this
requirement might add costs to the hauler which the hauler has deemed to outweigh their
client’s demand for such service.
In an analogous situation Edina and Plymouth both sought to add open source organics as
a recycling service. Both cities ultimately decided not to pursue the option because they
would need to go through the organized collection requirements. I believe the electronics
recycling and the open source organics issues are similar because (i) neither product is
considered a “recyclable material” under the terms of the statute, and (ii) all these cities,
while having open mixed solid waste systems have organized recycling. The explanation of
the Edina, Plymouth issue is described in more detail below:
The cities of Plymouth and Edina both currently have organized residential
recycling collection services. They also both have recently initiated recycling
purchasing processes to procure additional and new services for residential
curbside recycling collection. In each case, a curbside recycling RFP was
4 Minnesota Pollution Control Agency, Analysis of Waste Collection Service Arrangements, 28-29 (June 2009).
5 Minnesota Statute §115A.94 subd. 4(g).
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developed by City staff, with review and approval by a contract legal counsel.
This legal opinion stated that the Cities must still follow the Organized
Collection statute in M.S. 115A.94 if they wanted to include source separated
organics (SSO) as a new service to the recycling contracts. This legal opinion
stated that following the Organized Collection statute is required despite the
amendment to the definition of mixed municipal solid waste in the 2008
Regular Session of the Minnesota Legislature (Chapter 357 – S.F. No. 3056,
sections 32 and 33) and the addition of the new term “source-separated
compostable materials”. This municipal legal opinion held that the definit ions
of “solid waste” and “recyclable materials” was not changed with the
Organized Collection statute (115A.94) and therefore such expansion of the
scope of curbside recycling services should trigger the Organized Collection
process (as per 115A.94). In both cases, the cities of Plymouth and Edina
elected not to include SSO collection and composting in the scope of services.
Based on this comparison and the limited definition of “recyclable material” in the
statute, it appears that the City would need to go through the Organized Collection
process in order to offer electronics recycling.
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