Can a Tennessee county or city charge a tipping fee on recycling facilities or on businesses that grind wood waste into mulch?

Subject

Opinion No. 13-81, Solid Waste Management Fees, October 22, 2013

Plain-English summary

Lt. Gov. Ron Ramsey asked two related questions about Tennessee local-government authority to charge fees on recycling and on grinding wood waste. The AG said no on both.

Question 1: Can a county or city impose a "tipping fee" or "waste generator fee" on recycling? No. Under the Solid Waste Management Act of 1991 (Tenn. Code Ann. § 68-211-835(a)), a county or municipality that owns a municipal solid waste disposal facility can impose a tipping fee on each ton of municipal solid waste received. But recycling is different. Tennessee law defines "recovered materials" as materials diverted or removed from the solid waste stream for sale, use, reuse, or recycling. The statute explicitly says "such recovered materials are not solid waste." A recovered materials processing facility "is not a solid waste processing facility." So no tipping fee can apply. Nor does Tennessee solid waste law authorize a separate "waste generator fee" on recycling. (Hazardous waste has its own generator fee under Tenn. Code Ann. § 68-212-110(a), but that's a different statute.) The statutory purpose of the Solid Waste Management Act is to promote recycling, not tax it. A tipping fee or generator fee on recycling would discourage the very behavior the Act was designed to encourage.

Question 2: Can a fee be imposed on grinding unpainted, unstained, and untreated wood into mulch? No. Tennessee's definition of "solid waste processing" at Tenn. Code Ann. § 68-211-103(10) says the term means "any process that modifies the characteristics or properties of solid waste, including but not limited to, treatment, incineration, composting, separation, grinding, shredding, and volume reduction; provided, that it does not include the grinding or shredding of landscaping or land clearing wastes or unpainted, unstained, and untreated wood into mulch or other useful products." The exclusion is explicit. Wood-to-mulch recycling is not "solid waste processing," so the tipping fee on solid waste processing doesn't apply.

The opinion noted that Tennessee's comprehensive solid waste statutes "regulate all aspects of solid waste management . . . they specifically limit the means of generating revenue, and they require that all revenue received by the state and local governments be used only for solid waste management purposes." City of Tullahoma v. Bedford County, 938 S.W.2d 408, 413 (Tenn. 1997). Local governments cannot create new fee categories not authorized by the statutes.

Currency note

This opinion was issued in 2013. 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.

Tennessee's solid waste statutes have been amended since 2013. Anyone considering imposing or challenging a local solid waste fee should consult current statute text and any later opinions from the AG or rulings from the Department of Environment and Conservation.

Background and statutory framework

The solid waste statutory framework. Tennessee has four overlapping statutes governing solid waste management:

• Solid Waste Disposal Act (Tenn. Code Ann. §§ 68-211-101 to -124).
• Solid Waste Planning and Recovery Act (Tenn. Code Ann. §§ 68-211-601 to -608).
• Solid Waste Management Act of 1991, "Part 8" (Tenn. Code Ann. §§ 68-211-801 to -874).
• Solid Waste Authority Act of 1991 (Tenn. Code Ann. §§ 68-211-901 to -925).

Tipping fee authority. Tenn. Code Ann. § 68-211-835(a) lets a county or municipality that owns a municipal solid waste disposal facility or incinerator impose a tipping fee per ton of municipal solid waste received. § 68-211-835(g) provides for a separate solid waste disposal fee.

Key definitions. Tenn. Code Ann. § 68-211-802(a)(13): "recovered materials" are diverted or removed from the solid waste stream and "are not solid waste." § 68-211-802(a)(14): a recovered materials processing facility is one engaged solely in storage, processing, resale, or reuse of recovered materials; it "is not a solid waste processing facility." § 68-211-802(a)(16): "recycling" means transforming recovered materials into new products.

Purpose clause. Tenn. Code Ann. § 68-211-803(a)-(c) establishes that the Solid Waste Management Act aims to create "a comprehensive, integrated, statewide program for solid waste management," to maximize utilization of resources contained in solid waste, to minimize disposal "through source reduction, reuse, composting, recycling and other methods," and to "promote markets for . . . goods from recovered materials and goods which are recyclable."

Solid waste processing exclusion. Tenn. Code Ann. § 68-211-103(10) explicitly excludes from "solid waste processing" the grinding or shredding of "landscaping or land clearing wastes or unpainted, unstained, and untreated wood into mulch or other useful products."

Comprehensive regulatory scheme. City of Tullahoma v. Bedford County, 938 S.W.2d 408, 413 (Tenn. 1997), held that the solid waste statutes regulate all aspects of solid waste management, control private and public facilities, mandate uniformity, "specifically limit the means of generating revenue," and require revenue to be used only for solid waste management purposes.

Common questions

Can a county charge a recycling facility for permitting or business registration?

The opinion specifically addressed tipping fees and waste generator fees on the recycling activity itself, not general business license fees. Most Tennessee local governments can charge ordinary business licensure fees on recycling facilities just like any other business. But fees tied to the volume or generation of recovered materials are off-limits.

What about a county that owns the recycling facility?

If the county owns the facility, the question changes from "fee imposed on recycling" to "internal cost recovery for county operations." Counties may set fees for services they provide. But the AG opinion was about regulatory authority over recycling generally, not about county-owned operations.

Are there any fees that could apply to recycling under Tennessee law?

The hazardous waste statute (Tenn. Code Ann. § 68-212-110(a)) has its own generator fee, but only for hazardous waste. Tennessee state-level fees on solid waste disposal exist, but they don't reach recycling. Counties wanting to fund recycling programs typically have to use general fund or solid waste fund dollars from other sources.

Why is the wood-to-mulch exclusion in the statute?

Wood-to-mulch is a quintessential recycling activity. The legislature explicitly excluded it from the definition of "solid waste processing" to prevent it from being regulated and fee-burdened like a disposal facility. This reflects the Act's policy of encouraging beneficial reuse of materials.

Could the General Assembly authorize a recycling fee in the future?

Yes. The General Assembly has plenary authority over taxation and fees. It could amend the Solid Waste Management Act to authorize recycling fees. Local governments could not do this unilaterally, but the General Assembly could.

Citations

Tenn. Code Ann. §§ 68-211-101 to -124, 68-211-103(10), 68-211-102(8)-(10), 68-211-601 to -608, 68-211-801 to -874, 68-211-802(a)(13), 68-211-802(a)(14), 68-211-802(a)(16), 68-211-803(a), 68-211-803(b), 68-211-803(c), 68-211-835, 68-211-835(a), 68-211-835(g), 68-211-901 to -925, 68-212-110(a). Cases: City of Tullahoma v. Bedford County, 938 S.W.2d 408 (Tenn. 1997).

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-081.pdf

Original opinion text

October 22, 2013

Opinion No. 13-81

Solid Waste Management Fees

QUESTIONS

1. Because a recovered materials processing facility is not a solid waste processing facility pursuant to Tenn. Code Ann. § 68-211-802(a)(14), does a county or municipality have the authority to impose a "tipping fee" or "waste generator fee" on recycling processes?

2. Would an ordinance imposing a fee on the grinding or shredding of unpainted, unstained, and untreated wood into mulch or other useful products be consistent with the definition of "solid waste processing" under Tenn. Code Ann. § 68-211-103(10)?

OPINIONS

1. No. A county or municipality does not have the authority under the Solid Waste Management Act of 1991, codified at Tenn. Code Ann. §§ 68-211-801 to -874, to impose a tipping fee or solid waste disposal fee on recycling processes because the tipping fee and solid waste disposal fee are intended only for solid waste disposed at a facility.

2. No. The Solid Waste Disposal Act, codified at Tenn. Code Ann. §§ 68-211-101 to -124, does not authorize a fee for the grinding or shredding of unpainted, unstained, and untreated products, and therefore a fee on such activities would be inconsistent with that Act.

ANALYSIS

1. The General Assembly has enacted comprehensive legislation regarding the control of solid waste, including the Solid Waste Disposal Act, Tenn. Code Ann. §§ 68-211-101 to -124; the Solid Waste Planning and Recovery Act, Tenn. Code Ann. §§ 68-211-601 to -608; the Solid Waste Management Act of 1991, Tenn. Code Ann. §§ 68-211-801 to -874; and the Solid Waste Authority Act of 1991, Tenn. Code Ann. §§ 68-211-901 to -925. "These statutes regulate all aspects of solid waste management, they control facilities operated by private persons and public agencies, they mandate uniformity, they specifically limit the means of generating revenue, and they require that all revenue received by the state and local governments be used only for solid waste management purposes." City of Tullahoma v. Bedford County, 938 S.W.2d 408, 413 (Tenn. 1997).

Under the Solid Waste Management Act of 1991 (hereinafter "Part 8"), fees can be imposed pursuant to Tenn. Code Ann. § 68-211-835. A county or municipality that owns a municipal solid waste disposal facility or incinerator may impose a tipping fee upon each ton of municipal solid waste or its volume equivalent received at the facility. Tenn. Code Ann. § 68-211-835(a). The tipping fee is imposed only on disposal facilities.

Recycling necessarily involves recovered materials, not the disposal of solid waste as defined by Tennessee law. See Tenn. Code Ann. § 68-211-802(a)(16) (defining "recycling" as "the process by which recovered materials are transformed into new products, including the collection, separation, processing and reuse of recovered materials either directly or as raw materials for the manufacture of new products."). Recovered materials are defined as "those materials which have been diverted or removed from the solid waste stream for sale, use, reuse or recycling, whether or not requiring subsequent separation processing," and "[s]uch recovered materials are not solid waste." Tenn. Code Ann. § 68-211-802(a)(13). A recovered materials processing facility is "a facility engaged solely in the storage, processing and resale or reuse of recovered materials." Tenn. Code Ann. § 68-211-802(a)(14). It is not a solid waste processing facility. Id. Furthermore, because recovered materials are not solid waste, a recovered materials processing facility is also not a solid waste disposal facility. Compare Tenn. Code Ann. §§ 68-211-102(8)–(10) (defining "solid waste," "solid disposal," and "solid waste processing,") with Tenn. Code Ann. § 68-211-802(a)(14) (stating a "recovered materials processing facility is not a solid waste processing facility"). Therefore, a county or municipality cannot impose a tipping fee on a recovered materials processing facility. It necessarily follows that a county or municipality cannot impose such a fee on recycling processes.

Nor does Part 8 provide for a "waste generator fee." The Tennessee Hazardous Waste Management Act of 1977 provides for a fee for hazardous waste generators under Tenn. Code Ann. § 68-212-110(a), but the present inquiry concerns solid waste. Part 8 does provide for a solid waste disposal fee under Tenn. Code Ann. § 68-211-835(g) and for various surcharges throughout the statute. However, in these instances, the fees and surcharges are for the disposal of solid waste. Again, "[r]ecovered materials are not solid waste." Tenn. Code Ann. § 68-211-802(a)(13). Thus, Tenn. Code Ann. § 68-211-835 does not authorize counties and municipalities to impose a fee or surcharge on the generation of recovered materials, which would include recycling processes. Furthermore, such a fee or surcharge would be inconsistent with Part 8.

Finally, Part 8 is intended to establish "a comprehensive, integrated, statewide program for solid waste management . . . [and] to the extent feasible and practicable, make[ ] maximum utilization of the resources contained in solid waste." Tenn. Code Ann. § 68-211-803(a). Part 8 also is intended to minimize "through source reduction, reuse, composting, recycling and other methods" the amount of solid waste disposed and to "promote markets for . . . goods from recovered materials and goods which are recyclable." Tenn. Code Ann. § 68-211-803(b) and (c). A tipping fee or generator fee on recycling processes could discourage such recycling efforts and would be inconsistent with the Part 8 purposes to promote recycling.

2. Under the Tennessee Solid Waste Disposal Act, the definition of "solid waste processing" provides for "any process that modifies the characteristics or properties of solid waste, including but not limited to, treatment, incineration, composting, separation, grinding, shredding, and volume reduction; provided, that it does not include the grinding or shredding of landscaping or land clearing wastes or unpainted, unstained, and untreated wood into mulch or other useful products." Tenn. Code Ann. § 68-211-103(10).

The activity in question (recycling wood waste into mulch or other useful products) is specifically excluded from this definition. This type of recycling activity is not "solid waste processing." This is consistent with the language noted above from Tenn. Code Ann. § 68-211-802(a)(14) that a "recovered materials processing facility is not a solid waste processing facility." Thus, imposing a fee under Tenn. Code Ann. § 68-211-835(a) for the grinding or shredding of unpainted, unstained, and untreated products would be inconsistent with the definition of "solid waste processing" under Tenn. Code Ann. § 68-211-103(10) and with Part 8.

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

SOHNIA W. HONG
Senior Counsel

Requested by:

The Honorable Ron Ramsey
Lieutenant Governor and Speaker of the Senate
One Legislative Plaza
Nashville, Tennessee 37243