§ 160A-327. Displacement of private solid waste collection services. - North Carolina Statutes

§ 160A‑327. Displacement of private solid waste collection services.

(a)        A unit of localgovernment shall not displace a private company that is providing collectionservices for municipal solid waste or recovered materials, or both, except asprovided for in this section.

(b)        Before a localgovernment may displace a private company that is providing collection servicesfor municipal solid waste or recovered materials, or both, the unit of localgovernment shall publish notice of the first meeting where the proposed changein solid waste collection service will be discussed. Notice shall be publishedonce a week for at least four consecutive weeks in at least one newspaper ofgeneral circulation in the area in which the unit of local government and theproposed displacement area are located. The first public notice shall be givenno less than 30 days but no more than 60 days prior to the displacement issuebeing placed on the agenda for discussion or action at an official meeting ofthe governing body of the unit of local government. The notice shall specifythe date and place of the meeting, the geographic location in which solid wastecollection services are proposed to be changed, and the types of solid wastecollection services that may be affected. In addition, the unit of localgovernment shall send written notice by certified mail, return receiptrequested, to all companies that have filed notice with the unit of localgovernment clerk pursuant to the provisions of subsection (f) of this section.The unit of local government shall deposit notice in the U.S. mail at least 30days prior to the displacement issues being placed on the agenda for discussionor action at an official meeting of the governing body of the unit of localgovernment.

(c)        Following thepublic notice required by subsection (b) of this section, but in no event laterthan six months after the date of the first meeting pursuant to subsection (b)of this section, the unit of local government may proceed to take formal actionto displace a private company. The unit of local government or other public orprivate entity selected by the unit of local government may not commence theactual provision of these services for a period of 15 months from the date ofthe first publication of notice, unless the unit of local government providescompensation to the displaced private company as follows:

(1)        Subject tosubdivision (3) of this subsection, if the private company has providedcollection services in the displacement area prior to announcement of thedisplacement action, the unit of local government shall provide compensation tothe displaced private company in an amount equal to the total gross revenuesfor collection services provided in the displacement area for the six monthsprior to the first publication of notice required under subsection (b) of thissection.

(2)        Subject tosubdivision (3) of this subsection, if the displaced private company hasprovided collection services in the displacement area for less than six monthsprior to the first publication of notice required under subsection (b) of thissection, the unit of local government shall provide compensation to thedisplaced private company in an amount equal to the total gross revenues forthe period of time that the private company provided such services in thedisplacement area.

(3)        If the displacedprivate company purchased an existing operation of another private companyproviding such services, compensation shall be for six months based on themonthly average total gross revenues for three months the immediate precedingthe first publication of notice required under subsection (b) of this section.

(d)        If the localgovernment elects to provide compensation pursuant to subsection (c) of thissection, the amount due from the unit of local government to the displacedcompany shall be paid as follows: one‑third of the compensation to bepaid within 30 days of the displacement and the balance paid in six equalmonthly installments during the next succeeding six months.

(e)        If the unit of localgovernment fails to change the provision of solid waste services as describedin the notices required under subsection (b) of this section within six monthsof the date of the first meeting pursuant to subsection (b) of this section,the unit of local government shall not take action to displace withoutcomplying again with the provisions of subsection (b) of this section.

(f)         Notice of theprovision of solid waste collection service shall be filed with the unit oflocal government clerk of all cities and counties located in the privatecompany's collection area or within five miles thereof.

(g)        This section shallnot apply when a private company is displaced as the result of an annexationunder Article 4A of Chapter 160A of the General Statutes or an annexation by anact of the General Assembly. The provisions of G.S. 160A‑37.3, 160‑49.3,or 160A‑324 shall apply.

(h)        If a unit of localgovernment intends to provide compensation under subsection (c) of this sectionto a private company that has given notice under subsection (f) of thissection, the private company shall make available to the unit of localgovernment not later than 30 days following a written request of the unit oflocal government, sent by certified mail, return receipt requested, all informationin its possession or control, including operational, financial, and budgetaryinformation necessary for the unit of local government to determine if theprivate company qualifies for compensation. The private company forfeits itsrights under this section if it fails to make a good faith response within 30days following receipt of the written request for information from the unit oflocal government provided that the unit of local government's written requestso states by specific reference to this section.

(i)         Nothing in thissection shall affect the authority of a city or county to establish recyclingservice where recycling service is not currently being offered.

(j)         As used in thissection, the following terms mean:

(1)        Collection. – Thegathering of municipal solid waste, recovered materials, or recyclables fromresidential, commercial, industrial, governmental, or institutional customersand transporting it to a sanitary landfill or other disposal facility.Collection does not include transport from a transfer station or processingpoint to a disposal facility.

(2)        Displacement. – Anyformal action by a unit of local government that prohibits a private companyfrom providing all or a portion of the collection services for municipal solidwaste, recovered materials, or recyclables that the company is providing in theaffected area at least 90 days prior to the date of the first publication ofnotice required by subsection (b) of this section. Displacement also means anaction by a unit of local government to use an availability fee, nonoptionalfee, or taxes to fund competing collection services for municipal solid waste,recovered materials, or recyclables that the private company is providing inthe affected areas at least 90 days prior to the date of the first publicationof notice required under subsection (b) of this section is given. Displacementdoes not include any of the following actions:

a.         Failure to renew afranchise agreement or contract with a private company.

b.         Taking action that resultsin a change in solid waste collection services because the private company'soperations present an imminent and substantial threat to human health or safetyor are causing a substantial public nuisance.

c.         Taking action thatresults in a change in solid waste collection services because the privatecompany has materially breached its franchise agreement or the terms of acontract with the local government, or the company has notified the localgovernment that it no longer intends to honor the terms of the franchiseagreement or contract. Notice of breach must be delivered in writing, deliveredby certified mail to the firm in question with 30 days to cure the violation ofthe contract.

d.         Terminating anexisting contract or franchise in accordance with the provisions of thecontract or franchise agreement.

e.         Providing temporarycollection services under a declared state of emergency.

f.          Taking action thatresults in a change in solid waste collection services due to the existingproviders' felony conviction of a violation in the State of federal or Statelaw governing the solid waste collection or disposal.

g.         Contracting with aprivate company to continue its existing services or provide a different levelof service at a negotiated price on terms agreeable to the parties.

(3)        Municipal solidwaste. – As defined in G.S. 130A‑290(18a).

(4)        Unit of localgovernment. – A county, municipality, authority, or political subdivision thatis authorized by law to provide for collection of solid waste or recoveredmaterials, or both. (2006‑193, s. 4.)