Does Tennessee count construction and demolition waste as municipal solid waste for landfill fee purposes?

Subject

Opinion No. 12-97, Definition of Municipal Solid Waste, October 18, 2012

Plain-English summary

Representative Harrison asked whether the statutory definition of "municipal solid waste" (MSW) in Tenn. Code Ann. § 68-211-802(a)(10) includes "construction/demolition wastes" as defined in Tenn. Comp. R. & Regs. 0400-11-01-.01(2). The AG said yes.

Two reasons. First, the statutory definition of MSW is intentionally broad: "any garbage, refuse, industrial lunchroom or office waste, household waste, household hazardous waste, yard waste, and any other material resulting from the operation of residential, municipal, commercial or institutional establishments and from community activities." The statute excludes a short list (radioactive waste, hazardous waste, infectious waste, recyclables headed for reuse, and privately managed industrial waste). It does not exclude construction or demolition waste. Bricks, masonry, soil, rock, lumber, road spoils, rebar, and paving material from building work all fit comfortably within the plain meaning of "garbage" or "refuse" as used in the statute. The AG cited dictionary definitions (Webster's New Collegiate Dictionary) and the canon that statutes are read by their plain meaning (State v. White).

Second, the Tennessee Department of Environment and Conservation (TDEC) has historically interpreted MSW to include C&D waste. Agency interpretation of a statute the agency administers gets persuasive weight under Chevron U.S.A. and Nashville Mobilphone Co. v. Atkins.

The practical consequence: under § 68-211-835(a) and (d), MSW disposed of at a Class I landfill triggers a $0.90/ton state surcharge that the operator remits to the state treasury, on top of the operator's tipping fee. TDEC has historically applied that surcharge to C&D waste disposed of at Class I landfills, and the AG's reading confirms TDEC's practice.

The opinion also reproduces the four-class landfill classification framework in Tenn. Comp. R. & Regs. 0400-11-01-.01(3): Class I (sanitary landfills for general MSW and many other categories), Class II (industrial/manufacturing waste, may also serve as monofill for incinerator ash), Class III (farming, landscaping, land-clearing, C&D, tires, and similar approved wastes), Class IV (C&D, tires, and similar approved wastes). Different classes have different fee structures; only Class I triggers the MSW surcharge.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The two statutes at work

The Tennessee Solid Waste Disposal Act (TSWDA), Tenn. Code Ann. §§ 68-211-101 to -124, authorizes TDEC to supervise solid waste disposal, including permitting and operation of disposal facilities. § 68-211-111(a) and (d) establish the Solid Waste Disposal Control Board and give it rulemaking authority.

The Solid Waste Management Act of 1991 (SWMA), Tenn. Code Ann. §§ 68-211-801 to -874, lays out the statewide solid waste management program. § 68-211-802(a)(10) defines MSW.

The MSW definition and its exclusions

§ 68-211-802(a)(10) starts with sweeping language ("any garbage, refuse, . . . and any other material resulting from the operation of residential, municipal, commercial or institutional establishments and from community activities") and then carves out:

(A) Radioactive waste
(B) Hazardous waste as defined in § 68-212-104
(C) Infectious waste
(D) Materials being transported to a facility for reprocessing or reuse (excluding incineration or landfill placement)
(E) Industrial waste managed in a privately owned solid waste disposal system or resource recovery facility, where the generator owns the system

None of these exclusions reach C&D waste, so the AG read C&D waste to fall within the broad opening language.

The Board's regulatory definition of C&D waste

Tenn. Comp. R. & Regs. 0400-11-01-.01(2) defines "construction/demolition wastes" as "wastes, other than special wastes, resulting from construction, remodeling, repair and demolition of structures and from road building. Such wastes include but are not limited to bricks, concrete and other masonry materials, soil, rock and lumber, road spoils, rebar, paving material."

The four landfill classes

Tenn. Comp. R. & Regs. 0400-11-01-.01(3) lists the four disposal-facility classes:

• Class I (sanitary landfill, broad MSW intake)
• Class II (industrial/manufacturing waste, plus optional monofill for incinerator ash)
• Class III (farming, landscaping, land-clearing, C&D, tires, similar)
• Class IV (C&D, tires, similar)

C&D waste can lawfully go to a Class I, III, or IV facility. The disposal class determines the fee structure and which surcharges apply.

The surcharge mechanism

§ 68-211-835(a) and (d) authorize MSW landfill owners to charge tipping fees and require them to collect a $0.90/ton surcharge on MSW received at Class I facilities, remitted to the state treasury. If MSW is broadly defined to include C&D waste, then C&D waste disposed of at a Class I facility is subject to that surcharge. C&D waste disposed of at a Class III or IV facility is not.

Agency deference

The AG relied on the persuasive-weight principle for agency interpretations of the statutes they administer (Chevron U.S.A.; Nashville Mobilphone Co. v. Atkins). TDEC had been treating C&D waste at Class I facilities as MSW for surcharge purposes, and the AG saw no reason to disturb that reading.

Common questions

Does this mean every truck of broken concrete pays the surcharge?
Only if it goes to a Class I facility. C&D waste disposed at a Class III or IV facility does not trigger the $0.90/ton MSW surcharge. Operators choosing where to dispose of C&D waste have a fee incentive to use Class III or IV when available and appropriate.

Why is C&D waste eligible for both general (Class I) and dedicated (Class IV) landfills?
Class I landfills are designed and permitted to accept a broad range of wastes, including MSW and C&D. Class III and IV facilities have simpler designs intended for relatively inert wastes (C&D, tires, land-clearing waste). Different waste streams can lawfully go to multiple classes, but engineering and price often dictate the actual choice.

Could a contractor avoid the surcharge by labeling its load as something other than MSW?
No. Under the AG's reading, the statutory definition is broad and the surcharge follows the facility class, not the label. The economic answer is to choose a Class III or IV facility for clean C&D loads where available.

Did this opinion change the law, or confirm existing practice?
It confirmed existing TDEC practice. TDEC had historically read MSW to include C&D waste and had applied the surcharge accordingly. The opinion gives that reading formal AG endorsement.

Citations

Statutes and regulations:

• Tenn. Code Ann. §§ 68-211-101 to -124 (Tennessee Solid Waste Disposal Act)
• Tenn. Code Ann. § 68-211-102 (TDEC supervision)
• Tenn. Code Ann. §§ 68-211-105 to -107 (permitting and facility operation)
• Tenn. Code Ann. § 68-211-111(a), (d) (Board authority and rulemaking)
• Tenn. Code Ann. §§ 68-211-801 to -874 (Solid Waste Management Act of 1991)
• Tenn. Code Ann. § 68-211-802(a)(10) (MSW definition)
• Tenn. Code Ann. § 68-211-803 (statewide program)
• Tenn. Code Ann. § 68-211-835(a), (d) (tipping fee and Class I surcharge)
• Tenn. Code Ann. § 68-212-104 (hazardous waste definition cross-reference)
• Tenn. Comp. R. & Regs. 0400-11-01-.01(2) (C&D waste definition)
• Tenn. Comp. R. & Regs. 0400-11-01-.01(3) (landfill class definitions)

Cases:

• Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984)
• Nashville Mobilphone Co., Inc. v. Atkins, 536 S.W.2d 335 (Tenn. 1976)
• State v. Edmondson, 231 S.W.3d 925 (Tenn. 2007)
• State v. Clark, 355 S.W.3d 590 (Tenn. Crim. App. 2011)
• State v. White, 362 S.W.3d 503 (Tenn. 2004)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-097.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

October 18, 2012

Opinion No. 12-97

Definition of Municipal Solid Waste

QUESTION

Does the definition of "municipal solid waste" in Tenn. Code Ann. § 68-211-802(a)(10) include "construction/demolition wastes" as defined by Tenn. Comp. R. & Regs. 0400-11-01-.01(2)?

OPINION

Yes.

ANALYSIS

The Solid Waste Management Act of 1991 (SWMA), codified at Tenn. Code Ann. §§ 68-211-801 to -874, is designed to provide a comprehensive and integrated statewide program for solid waste management. Tenn. Code Ann. § 68-211-803. The Tennessee Solid Waste Disposal Act (TSWDA), codified at Tenn. Code Ann. §§ 68-211-101 to -124, authorizes the Tennessee Department of Environment and Conservation (TDEC) to supervise and control all aspects of solid waste disposal, including the permitting, operation, and maintenance of solid waste disposal facilities or landfills. See Tenn. Code Ann. §§ 68-211-102 and -105 to -107. In addition the TSWDA establishes the Solid Waste Disposal Control Board which is authorized, among other things, to promulgate rules and regulations to ensure the proper administration of the TSWDA. Tenn. Code Ann. § 68-211-111(a) & (d).

This opinion request concerns the breadth of the definition of "municipal solid waste" found in Tenn. Code Ann. § 68-211-802(a)(10) of the SWMA, which provides as follows:

'Municipal solid waste' means any garbage, refuse, industrial lunchroom or office waste, household waste, household hazardous waste, yard waste, and any other material resulting from the operation of residential, municipal, commercial or institutional establishments and from community activities; provided that 'municipal solid waste' does not include the following:

(A) Radioactive waste;
(B) Hazardous waste as defined in § 68-212-104;
(C) Infectious waste;
(D) Materials that are being transported to a facility for reprocessing or reuse; provided further, that reprocessing or reuse does not include incineration or placement in a landfill; and
(E) Industrial waste which may include office, domestic or cafeteria waste, managed in a privately owned solid waste disposal system or resource recovery facility, if such waste is generated solely by the owner of the solid waste disposal system or resource recovery facility.

The term "construction/demolition wastes" is defined separately in the regulations promulgated by the Solid Waste Disposal Control Board. Tenn. Comp. R & Reg. 0400-11-01-.01(2) defines "construction/demolition wastes" as

wastes, other than special wastes, resulting from construction, remodeling, repair and demolition of structures and from road building. Such wastes include but are not limited to bricks, concrete and other masonry materials, soil, rock and lumber, road spoils, rebar, paving material.

The language in the initial clause of the statutory definition of "municipal solid waste" is quite broad insofar as it includes, among other things, any "garbage" or "refuse." These two terms are not defined in either the SWMA or the regulations. In such cases courts will resort to dictionary definitions to determine the meaning of a word. State v. Edmondson, 231 S.W.3d 925, 928 (Tenn. 2007); State v. Clark, 355 S.W.3d 590, 593 (Tenn. Crim. App. 2011). The term "garbage" is generally defined as "unwanted or useless material," and "refuse" is generally defined as "the worthless or useless part of something." Webster's New Collegiate Dictionary 469, 965 (1981). Thus, the words "garbage" and "refuse" as used within the statute would encompass waste derived from the demolition of a building or the construction of a building. See also State v. White, 362 S.W.3d 503, 507 (Tenn. 2004) (stating general rule of statutory construction that courts will apply the plain meaning of words used in a statute in their normal and accepted use, "without a forced interpretation that would limit or expand the statute's application").

Moreover, this Office has been advised by TDEC that its Division of Solid Waste Management has historically interpreted the statutory definition of "municipal solid waste" in the SWMA to include construction and demolition waste. The delineation of categories of waste is important to the solid waste management program established by SWMA and TSWDA because the category will govern at what type of facility waste can be disposed. See Tenn. Comp R. & Reg. 0400-11-01-.01(3). The regulations promulgated by the Solid Waste Disposal Control Board contain four classifications of disposal facilities and delineate specific requirements for each class. Tenn. Comp. R. & Reg. 0400-11-.01(3) provides:

Classification of Disposal Facilities

(a) Class I Disposal Facility refers to a sanitary landfill which serves a municipal, institutional, and/or rural population and is used or to be used for disposal of domestic wastes, commercial wastes, institutional wastes, municipal solid wastes, bulky wastes, landscaping and land clearing wastes, industrial wastes, construction/demolition wastes, farming wastes, shredded automotive tires, dead animals, and special wastes.

(b) Class II Disposal Facility refers to a landfill which receives waste which is generated by one or more industrial or manufacturing plants and is used or to be used for the disposal of solid waste generated by such plants, which may include industrial wastes, commercial wastes, institutional wastes, farming wastes, bulky wastes, landscaping and land clearing wastes, construction/demolition wastes, and shredded automotive tires. Additionally a Class II disposal facility may also serve as a monofill for ash disposal from the incineration of municipal solid waste.

(c) Class III Disposal Facility refers to a landfill which is used or to be used for the disposal of farming wastes, landscaping and land clearing wastes, demolition/construction waste, shredded automotive tires, and/or certain wastes having similar characteristics and approved in writing by the Department.

(d) Class IV Disposal Facility refers to a landfill which is used or to be used for the disposal of demolition/construction wastes, shredded automotive tires, and certain wastes having similar characteristics and approved in writing by the Department.

Each classified facility is subject to different fee charges for persons utilizing the facility. The provisions of the SWMA authorize the owners of municipal solid waste disposal facilities to impose tipping fees upon each ton of municipal solid waste received at the facility and also require them to impose a surcharge of ninety cents on each ton of municipal solid waste received at a Class I disposal facility, which is then remitted to the state treasury. Tenn. Code Ann. §§ 68-211-835(a) and (d). Thus, the fee structure for disposal of municipal solid waste is higher than that for other types of waste. TDEC has advised this Office that TDEC has historically interpreted the SWMA and the Board's regulations to impose the surcharge under Tenn. Code Ann. § 68-211-835(d) on construction and demolition waste when it is disposed of at a Class I facility.

In sum, the expansive definition of "municipal solid waste" found in Tenn. Code Ann. § 68-211-802(a)(10) of the SWMA would include "construction/demolition waste." This interpretation of the term "municipal solid waste" is reinforced by SWMA's long-standing inclusion of "construction/demolition waste" within the broader term of "municipal solid waste," given that under both Tennessee and federal law the construction of a statute by the agency charged with the enforcement or administration of that statute is afforded persuasive weight by the courts. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984); Nashville Mobilphone Co., Inc. v. Atkins, 536 S.W.2d 335, 340 (Tenn. 1976).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

ELIZABETH P. McCARTER
Senior Counsel

Requested by:
The Honorable Mike Harrison
State Representative
206-A War Memorial Building
Nashville, Tennessee 37243