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County still not enforcing garbage ordinance

By Greg Bird
birdman@tmcvoice.com

Nearly a full year into a five-year contract McCreary County’s garbage service provider, Poff Carting, is once again asking for the Fiscal Court to enforce the garbage ordinance by submitting more names and addresses of households who have yet to subscribe for regular garbage service pick-up in some fashion.
This week Judge Executive Doug Stephens said representatives from Poff Carting reached out to him via e-mail with a list containing 126 new addresses that have been identified as not having signed up for garbage service, and requesting the Judge Executive’s Office send notification that they are in non-compliance with the ordinance.
In August, Poff Carting submitted a similar list of approximately 200 names and addresses that were non-compliant. Judge Stephens reviewed the list and sent letters to those households he identified as valid, and encouraging them to sign up for service or face possible prosecution.
Of that list, only about 66 households responded by registering to receive garbage service. Poff Carting’s latest correspondance also identified 134 of the original households on the list as still not in compliance.
It also appears the overall total of customers on garbage service is declining, rather than increasing as it should. Judge Stephens noted Poff Carting has reported losing more than 150 customers over recent weeks, with many of the individuals stating they no longer wished to pay for regular pick-up if the county was not going to enforce the ordinance.
Todd Hopper, President of Poff Carting confirmed the loss of customers and said the drop in participation rates has taken a financial toll on the company and the county’s inaction on enforcement could lead to even greater losses.
If the county does not live up to the terms of the contract, Poff Carting could potentially sue for breach of contract.
Hopper would not say whether the company is considering legal action to prompt enforcement, but did confirm he would be reaching out to the new administration set to take office in January in hopes of working out a solution.
“My concern is that Poff Carting acted in good faith when we submitted our bid prices based on the current ordinance and assurances that the ordinance would be enforced by the county or a county agent,” Hopper said. “The contract was reviewed and approved by the McCreary County Attorney, the County Judge Executive, and the county magistrates, who ultimately voted on the final contract language and agreements. As far as we are concerned, the contract spells out how Poff Carting and McCreary County are to conduct our business dealings along with what is expected from both parties.”
“Poff Carting is complying with the terms of the contract but McCreary County is not. This has been pointed out to Judge Stephens repeatedly in several emails over the past six months.”
“At this time, we are looking forward to working with the new Judge Executive and McCreary County Fiscal Court in January. We are hopeful they are a group of leaders who will work to do what is best for the community and will uphold the laws and ordinances of McCreary County.”
The Voice reached out to Judge-Executive- Elect Bevo Greene for his perspective on the issue. Greene said he hadn’t yet had a chance to examine the e-mail, but has plans to examine the contract and speak with Poff Carting.
The contract between Poff Carting and McCreary County signed last year contains language explicitly calling for every household and business in the county to participate in garbage collection.

Clause 18 of the contract states: “Consistent with KRS 109.310 and county ordinance 830.6, all owners and occupants of residential property in the county and all commercial business establishments shall be required to participate in the solid waste collection provided in this agreement. Participation is mandatory.”
The contract allows for Poff Carting to provide lists of non-participating households, or delinquent accounts, to the County Attorney and/or law enforcement, for possible legal action. It further states it would be the responsibility of the County to pursue those accounts to either encourage subscribing for collection, or prosecution.
The county ordinance calls for penalties of $10 per day, up to $500 for each conviction for non-compliance.
The ordinance also states the county may choose to employ a code enforcement officer to enforce the garbage ordinances, as well as other ordinances, such as the business license.
Judge Stephens proposed creating a code enforcement position at a Fiscal Court meeting earlier this year, but the proposal was met by strong resistance by Magistrates and did not come to a motion for a vote.
Without a Code Enforcement position, the burden of identifying and prosecuting violations falls upon the County Attorney and Sheriff’s offices to issue citations. To date, that apparently has yet to occur.
Without the county taking any action it is a possibility that Poff Carting could take legal action of their own if officials do not uphold their end of the contract.
When Poff Carting took over service from Scott Solid Waste in January there were reportedly only 2,900 customers signed up for service. Five months later that number had grown to 3,800, but it was still short of the minimum number needed for Poff Carting to pay a franchise fee to the county. That number is now declining.
According to the contract if 4,200 residential customers have signed up for service, Poff Carting would pay 5.5 percent of collections back to the county as a fee. If the subscribers grow beyond 5,200 that fee increases to 6.5 percent.
With the subscriber total below the threshold, the County has no additional revenue stream from solid waste to support other waste management programs, such as recycling and road cleanups.

While many citizens were upset at the “manditory” requirement in the ordinance, it is important to note that practice is commonplace across Kentucky…and actually has been in McCreary County since the early 1980’s. The last ordinance under which Scott Solid Waste operated contained clasues for penalties for non-compliance with the law, but was never enforced.
State law requires all counties to provide at least “universal” garbage collection – meaning the county must provide access to a disposal method, either with door-to-door collection or a central transfer facility. At least 22 counties and cities currently have “mandatory” collection, requiring all households to participate in the program.
State legistlators have looked at making collection mandatory in all counties, but the change in law has never been ratified.

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