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1986-00240-Ordinance No. 85-037 Recorded 12/31/1985VOL 70 FhuE III 86�002�i0 1"5 OEC 31 p BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DES %MW COUN?4-',%SEGON t , 31,E P . t g.� COUt�l yCI IJ o�l An Ordinance Relating To L Solid Waste Management Including Accumulation, Storage, Collection, Trans- portation, Disposal, and Recycling of Waste and Solid Waste; Franchising of Solid Waste Collection, Disposal And Recycling; Repealing Con- flicting Ordinances; Providing Penalties, Declaring An Emergency And Prescribing An Effective Date.* ORDINANCE NO. 85-037 THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: ARTICLE I. GENERAL PROVISIONS Section 1.01. SHORT TITLE. This ordinance shall be known as the "Solid Waste Management Ordinance". Section 1.02. INDEX. ARTICLE I. GENERAL PROVISIONS Section 1.01. Short Title pg. 1 Section 1.02. Index pg. 1 Section 2.01. Purpose and Policy pg. 4 Section 3.01. Authority pg. 5 Section 4.01. General Definitions pg. 5 Section 5.01. Administration pg- 8 Section 5.02. Persons and Practices Exempted pg. 8 ARTICLE II. SOLID WASTE ADVISORY COMMITTEE. Section 6.01. Solid Waste Advisory Committee pg. 10 1 - ORDINANCE NO. 85-037 y 4 i VOL 70 FACE 112 Section 6.02. Appointment of Solid Waste pg. 12 Section 8.02. Education, Promotion and Advisory Committee pg. 10 Section 6.03. Duties of Solid Waste Section 8.03. Recycling Report pg. Advisory Committee pg. 11 Section 6.04. Regional Solid Waste Committee pg. 11 ARTICLE III. REGULATION OF SOLID WASTE MANAGEMENT. DISPOSAL AND RECYCLING. Section 7.01. Regulation of Solid Waste 9.01. Persons, activities and Management pg. 11 ARTICLE IV. RECYCLING. Section 8.01. Opportunity to Recycle pg. 12 Section 8.02. Education, Promotion and Notification pg. 12 Section 8.03. Recycling Report pg. 12 Section 8.04. Prohibited Activities pg. 12 ARTICLE V. FRANCHISING OF SOLID WASTE COLLECTION, DISPOSAL AND RECYCLING. Section 9.01. Persons, activities and practices regulated pg. 12 Section 9.02. Applications for Franchises pg. 13 Section 9.03. Existing Collection, Disposal and Recycling Service Providers pg. 14 Section 9.04. Specific Collection Franchise Requirements pg. 14 Section 9.05. Specific Disposal Franchise Requirements pg. 15 Section 9.06. Expansion of Collection Franchise Service Area pg. 16 Section 9.07. Review of Applications for Franchises pg. 16 Section 9.08. Board action on Applications for Franchises pg. 17 Section 9.09. Types of Franchises pg. 18 Section 9.10. Appeal from Determination of Board on Franchise pg. 18 2 - ORDINANCE NO. 85-037 VOL 70 FAGS 110 Section 9.11. Franchise Terms and Renewals pg. 19 Section 9.12. Responsibilities of Franchisees pg. 19 Section 9.13. Enforcement and Corrective Action p4. 21 Section 9.14. Preventing Interruption of Service pg. 22 Section 9.15. Suspension, Modification, Revocation, or Refusal to Renew Franchise pg. 23 Section 9.16. Franchise Fees pg. 24 Section 9.17. Use of Franchise Fees pg. 25 Section 9.18. Transfer of Franchises pg. 25 ARTICLE VI. RATES FOR COLLECTION, RECYCLING AND DISPOSAL SERVICE. Section 10.01. Existing Rates pg. 25 Section 10.02. Rate Standards pg. 25 Section 10.03. Rate Adjustments pg. 26 Section 10.04. Rate Preferences Prohibited pg. 28 Section 10.05. Responsibility for Payment of Charges for Service pg. 28 Section 10.06. Franchisee Billings to Customers pg. 29 ARTICLE VII. REGIONAL COLLECTION AND DISPOSAL. Section 11.01. Agreements for Joint Franchising or Planning pg. 29 Section 11.02. Agreements for Allocation of Franchise Fees pg. 29 Section 11.03. Commercial Hauling and Self - Hauling Disposal Regulation and Fees pg. 29 ARTICLE VIII. SOLID WASTE NUISANCE ABATEMENT. Section 12.01. Creation of Nuisance by Accumulation or Unauthorized Disposal of Solid Waste pg. 29 3 - ORDINANCE NO. 85-037 VOL 70 FACE Section 12.02. Abatement of Solid Waste Nuisances pg. 30 Section 12.03. Civil Action to Abate Nuisances pg. 30 Section 12.04. Unauthorized Disposal pg. 31 Section 12.05. Transportation of Solid Waste pg. 31 ARTICLE IX. APPEALS, ENFORCEMENT AND PENALTIES. Section 13.01. Appeals from Decisions of the Board pg. 31 Section 13.02. Appeals from Decisions of the Administrator pg. 31 Section 13.03. Enforcement pg. 31 Section 13.04. Penalties pg. 32 ARTICLE X. CONSTRUCTION, REPEAL OF CONFLICTING ORDINANCES, AND EMERGENCY CLAUSE AND EFFECTIVE DATE. Section 14.01. Construction pg. 32 Section 14.02. Repeal of Conflicting Ordinances pg. 32 Section 14.03. Emergency Clause and Effective Date pg. 32 Section 2.01. PURPOSE AND POLICY. To protect the health, safety and welfare of the people of Deschutes County, to provide a coordinated solid waste management program, and to provide the opportunity to recycle, it is declared to be the policy of Des- chutes County to regulate solid waste management by: (1) Following the priorities on managing solid waste pro- vided in ORS 459.015(2), giving due consideration to economic and technical feasibility. (2) Providing for safe and sanitary accumulation, storage, collection, transportation and disposal of solid waste. (3) Prohibiting accumulation of waste or solid waste on private property in such manner as to create a public nuisance, a hazard to health or a condition of unsightliness, and to provide for the abatement of such conditions where found. (4) Providing the opportunity to recycle as part of the overall solid waste collection, transportation and disposal sys- tems, taking advantage, where possible, of coordinated area -wide 4 - ORDINANCE NO. 85-037 VOL 70 FAGE 115 service, promotion, education and marketing. (5) Developing a regional long-range plan to provide ade- quate disposal and recycling sites and facilities to meet future demands. (6) Providing for a coordinated county -wide solid waste management and recycling plan in cooperation with federal, state and local agencies responsible for the prevention, control or abatement of air, water and ground pollution and prevention of litter. (7) Providing for public input in solid waste management and recycling through the Solid Waste Advisory Committee. (8) Providing for a coordinated solid waste management and recycling plan with cities within Deschutes County and with other counties or cities should regional plans be developed. (9) Providing for cooperation and agreements between Des- chutes County and other counties involving joint or regional franchising of solid waste collection, disposal and recycling. (10) Providing minimum standards for location and operation of solid waste disposal and recycling sites to protect adjacent and nearby residents. (11) Providing for and encouraging research, studies, sur- veys and demonstration projects on developing more sanitary, efficient and economical solid waste management systems. (12) Encouraging utilization of the capabilities and ex- pertise of private industry in accomplishing the purposes of this ordinance. Section 3.01. AUTHORITY. This ordinance is adopted pur- suant to ORS Chapters 190, 203, and 459. Section 4.01. GENERAL DEFINITIONS. For the purpose of this ordinance, and where appropriate in the context, words used in the present tense include the future, the singular number includes the plural, the word "shall" is mandatory and not directory, and the term "this ordinance" shall be deemed to include all amendments hereafter made to this ordinance. (1) ADMINISTRATOR. The County Engineer, County Health Officer, County Sanitarian or other person designated by reso- lution of the Board to administer this ordinance, and the duly authorized deputy or assistant of such person. (2) BOARD. The Board of County Commissioners of Deschutes County. (3) COLLECTION FRANCHISE. A franchise to collect, trans- port, dispose of, deposit or store solid waste and recyclable 5 - ORDINANCE NO. 85-037 r i , I VOL iJ 0 materials. (4) COLLECTION VEHICLE. Any vehicle used to collect or transport solid waste and recyclable material. (5) COMMERCIAL HAULER. A collection franchisee whose principal business is the collection, transportation and disposal of solid waste and recyclable material. (6) COMMITTEE. The Solid Waste Advisory Committee. (7) COMPENSATION. Any type of consideration given for ser- vice, including, but not limited to, direct or indirect compen- sation by tenants, occupants, licensees or similar persons. (8) DEPOT. A permanent or temporary facility, container or box provided for persons to deposit totally source -separated materials for recycling or reuse. (9) DISPOSAL. Accumulation, storage, collection, trans- portation and disposal of solid waste. (10) DISPOSAL FRANCHISE. A franchise to create or maintain a disposal site. (11) DISPOSAL SITE. Any land and facilities used for the disposal, handling or transfer of or resource recovery from solid waste, including, but not limited to, dumps, sludge lagoons and treatment facilities, landfills, sanitary landfills, compost- ing plants, transfer stations and incinerators. "Disposal site" does not include a landfill site which is subject to the permit requirements of ORS 468.740 or 481.345, or a site which is not used by the public either directly or through a service and which is used by the owner or person in control thereof to dispose of wood scrap, sawdust, bark, soil, rock, building demolition material or nonputrescible industrial waste products resulting from the process of manufacturing. (12) FRANCHISE. A license to provide service issued by the Board for a fee pursuant to this ordinance. (13) FRANCHISEE. A person to whom the Board has granted a franchise. (14) GENERATOR (OF SOLID WASTE). A person who possesses and controls an item or material immediately prior to and at the time it becomes waste or solid waste, or a person who last used an item or material and makes it available for recycling or reuse. (15) HAZARDOUS WASTE. Any waste: (a) defined as hazardous by or pursuant to ORS Chapter 459; or (b) that may, by itself or in combination with other materials, be radioactive, infectious, explosive, poisonous, caustic, toxic or otherwise dangerous or injurious to human, plant or animal life. 6 - ORDINANCE NO. 85-037 (16) INCINERATOR. A combustion device specifically designed for the reduction by burning of solid, semi-solid or liquid waste. (17) LANDFILL. A disposal site operated by means of com- pacting and covering solid waste at specific designated inter- vals, but not each operating day. (18) NON -COMMERICAL HAULER. A collection franchisee whose principal business is other than the collection, transportation and disposal of solid waste and recyclable material. (19) ON -ROUTE COLLECTION. Pick up of source -separated recyclable material from the generator at the place of generation. (20) PERSON. Means and includes individuals, corporations, associations, firms, partnerships and joint stock companies. (21) PUTRESCIBLE MATERIAL. Organic material that can decom- pose and may give rise to foul smelling, offensive products. (22) RECYCLE OR RECYCLING. Use of any process by which solid waste is transformed into new products in such a manner that the original material may lose its identity. (23) RECYCLABLE MATERIAL. Any material that can be collected and sold for recycling at a net cost equal to or less than the cost of collection and disposal of the same material. (24) REGULATIONS. Regulations promulgated by the Board pursuant to this ordinance. (25) RESOURCE RECOVERY. The process of obtaining useful material or energy resources from solid waste, including recy- cling and reuse. (26) REUSE. Return of material into the economic stream for use in the same kind of application as before without change in its identity. (27) RULES. Rules promulgated by state agencies pursuant to ORS Chapter 459. (28) SANITARY LANDFILL. A disposal site operated by means of compacting and covering solid waste at least once each oper- ating day. (29) SELF -HAULING. Transportation by a generator of such person's own waste, solid waste or recyclable material directly to a disposal or recycling site or depot. Self -hauling includes the transportation of solid waste or recyclable material which the generator produces as an incidental part of the generator's business, such as waste incidental to restaurants, janitorial 7 - ORDINANCE NO. 85-037 service, gardening or landscaping, Waste incidental to the generator's accumulated or stored waste of the clients. VOL 70 FADE 118 carpentry, rendering, etc. business does not include the generator's customers or (30) SERVICE. Collection, transportation, transfer, disposal or recycling of solid waste or recyclable material for compensation. "Service" does not include self -hauling. (31) SERVICE AREA. The geographical area or premises in which service, other than operation of a disposal site, is or has been provided. (32) SOLID WASTE. All putrescible and non-putrescible waste, whether in solid or liquid form, exept liquid -carried industrial waste or sewage or sewage sludge hauled as an in- cidental part of a septic tank or cesspool cleaning service, but including garbage, rubbish, ashes, paper, cardboard, sewage sludge, street refuse, industrial waste, swill, demolition and construction waste, abandoned vehicles or parts thereof, dis- carded home and industrial appliances, manure, vegetable or ani- mal solid and semi-solid waste, dead animals and other discarded solid material. (33) SOLID WASTE MANAGEMENT. Prevention or reduction of solid waste accumulation, including management of storage, col- lection, transportation, treatment, utilization, processing and final disposal or salvage, source -separation, recycling or reuse of and resource recovery from solid waste, and necessary facilities therefor. (34) TRANSFER STATION. A fixed or mobile facility normally used as an adjunct of a solid waste collection and disposal sys- tem or resource recovery system between a collection route and a disposal site. (35) WASTE. Useless, unwanted or discarded material. (36) WASTESHED. The geographic area within Deschutes County. Section 5.01. ADMINISTRATION. The Adminstrator, under the supervision of the Board and with the assistance of the Com- mittee, shall be responsible for the enforcement of this ordi- nance. In order to carry out the provisions of this ordinance, the Administrator shall enter or authorize personnel to enter on the premises of any person subject to this ordinance at reasonable times and in a reasonable manner to determine com- pliance with this ordinance, regulations and franchises promul- gated and issued pursuant thereto. Section 5.02. PERSONS AND PRACTICES EXEMPTED. (1) This ordinance shall not apply to: 8 - ORDINANCE NO. 85-037 vol. 70 = 1 f.9 (a) Areas lying within the limits of any incorporated municipality actively operating as such in the absence of a mutual agreement between the city and Deschutes County. (b) Federal or state agencies that collect, store, transport or dispose of waste or solid waste, or those persons who contract with such agencies to perform service, but only as to the terms for collection or disposal service under the contract. This exemption does not apply to disposal at a disposal site operated by a franchisee under this ordinance. (c) Auto dismantling pursuant to ORS 481.345 to 481.370. (d) The collection, transportation and reuse or re- cycling of totally source -separated materials by religious, charitable, benevolent or fraternal organizations for fundraising, or by any person when the source -separated materials are generated by the person and are purchased from or exchanged by the generator for fair market value for reuse or recycling. (e) The collection, transportation, deposit and disposal by the owner of residential property of solid waste or recyclable material generated by tenants or occupants of the property. For purposes of this subsection, "residential property" means real property or improvements, or both, in or upon which a person resides, and includes any structure used as a residence, either primary or secondary. (f) Any person or practice which is exempted by resolution of the Board. In determining whether to exempt a person or practice pursuant to this subsection, the Board shall consider the following factors: (i) 9 - ORDINANCE NO. 85-037 The impact of granting the exemption upon affected existing franchises; The impact of requiring the affected person to obtain a franchise; The impact of granting or denying the exemption on the quality of solid waste collection, transportation, deposit and disposal for the affected persons. VOL 70 FACT 120" (2) In addition to the exemptions in subsection (1) of this section, sections 12.01 to 12.04 of this ordinance shall not apply to: (a) Disposal sites franchised under provisions of this ordinance and in compliance with this ordinance. (b) Agricultural operations, growing or harvesting of crops and the raising of fowl or animals. ARTICLE II. SOLID WASTE ADVISORY COMMITTEE. Section 6.01. SOLID WASTE ADVISORY COMMITTEE. The Solid Waste Advisory Committee, created by Ordinance No. CG -4, as amended, is continued. The committee includes: (1) Seven members, consisting of: (a) One (1) member with an engineering or technical background. (b) One (1) member who is a franchisee under Section 9.03 of this ordinance or the franchisee's designated representative. (c) Five (5) lay members. (2) Committee advisors including the County Building Inspector, Sanitarian and Engineer or their representatives. Section 6.02. APPOINTMENT OF SOLID WASTE ADVISORY COMMITTEE. (1) Members, ex -officio members and advisors shall be ap- pointed by the Board. The Board may appoint additional persons to the Committee in these categories. The Board may appoint or approve designation of alternates to serve in the absence of persons appointed to the Committee. (2) Public employe members shall serve for the terms of their offices. Appointment of other persons as members shall be for staggered terms not to exceed four years. Members shall serve until their successors are appointed and qualified. Vacancies shall be filled by the Board for the balance of the unexpired terms. (3) The Board shall appoint one member as Chairperson and another as Vice -Chairperson, both of whom shall serve in that capacity at the pleasure of the Board. Five members of the Committee shall constitute a quorum for the transaction of business. The Committee shall meet at such times as deemed necessary or as called by the Board. The Chairperson or any 10 - ORDINANCE NO. 85-037 von 70 PAcF 121 three members of the Committee may call a special meeting with ten days' notice to other members of the Committee, provided, however, that members may waive such notice. Section 6.03. DUTIES OF SOLID WASTE ADVISORY COMMITTEE. In addition to other duties prescribed by this ordinance, the Com- mittee shall: (1) Make an annual report to the Board containing recom- mendations on development and implementation of a solid waste management plan and any necessary regulations or amendments to this ordinance. (2) In consultation with responsible public officials and with persons providing service: (a) Develop and periodically review a solid waste management plan including regional disposal and recycling sites and necessary disposal and re- cycling systems for review, adoption or modifi- cation by the Board. (b) Develop and recommend to the appropriate agency or the Board minimum standards for location and oper- ation of disposal and recycling sites including, but not limited to, protection of adjacent and nearby residents. (3) Perform such other duties as are directed by the Board or as the Committee may find necessary to effectively carry out the purposes of this ordinance. Section 6.04. REGIONAL SOLID WASTE COMMITTEE. The Board may appoint one or more members of the Committee to serve on any regional solid waste committee to advise the Board. ARTICLE III. REGULATION OF SOLID WASTE MANAGEMENT. Section 7.01. REGULATION OF SOLID WASTE MANAGEMENT. Upon its own motion or upon recommendation of the Committee, the Board may adopt reasonable and necessary regulations governing disposal and recycling sites or implementing this ordinance. Such regulations shall conform to ORS Chapter 459 and rules promulgated pursuant thereto. ARTICLE IV. RECYCLING. Section 8.01. OPPORTUNITY TO RECYCLE. All persons in the wasteshed shall have the opportunity to recycle, pursuant to ORS Chapter 459, as follows: (1) Landfills and Transfer Stations. All landfills and transfer stations open to the public for the disposal of solid waste shall provide a place for the deposit of recyclable mate - 11 - ORDINANCE NO. 85-037 VOL 70 FAGS 1.22Z rial, unless an alternative depot or site is approved by resolution of the Board. (2) Depots. In addition to recycling sites at landfills and transfer stations, the Board may approve the location and use of temporary or permanent depots for the deposit of recyclable material. (3) Recycling collection. All persons providing service, including non-commercial haulers, shall provide all of their service customers in the wasteshed within the urban growth boundaries of the Cities of Bend and Redmond with on -route collection of recyclable materials on at least a monthly basis. The Board, by resolution, may require such persons to provide on -route collection of recyclable materials more frequently than once a month and/or for persons who are not service customers. Section 8.02. EDUCATION, PROMOTION AND NOTIFICATION. The County, in cooperation with the cities in the wasteshed and franchisees, shall provide a program of education and promotion to encourage recycling within the wasteshed. Notice of the opportunity for recycling shall be provided by disposal and collection franchisees to persons utilizing the franchisees' services. Section 8.03. RECYCLING REPORT. The County, in cooperation with the cities in the wasteshed and franchisees, shall develop and submit a recycling report to the State Department of Environ- mental Quality. The report will describe how the opportunity to recycle is being provided to persons within the wasteshed. Section 8.04. PROHIBITED ACTIVITIES. No person shall: (1) Without permission of the owner or generator of recy- clable material, take recyclable material set out to be collected by a collection franchisee or other person providing service. (2) Remove recyclable material from a container, box, col- lection vehicle, depot or other receptacle for recyclable mate- rial without permission of the owner or person in control of the receptacle. (3) Mix source -separated recyclable material with solid waste in any vehicle, box, container or receptacle used in solid waste collection or disposal. (4) Place solid waste in any vehicle, box, container, depot or receptacle used for recyclable material. ARTICLE V. FRANCHISING OF SOLID WASTE COLLECTION, DISPOSAL AND RECYCLING. Section 9.01. PERSONS, ACTIVITIES AND PRACTICES REGULATED. Unless exempted under Section 5.02 of this ordinance, no person 12 - ORDINANCE NO. 85-037 i VEL 70 FAGS' 123 shall provide service except as authorized by a collection or dis- posal franchise issued pursuant to this article. Section 9.02. APPLICATIONS FOR FRANCHISES. (1) Application for a franchise shall be made on forms provided by the Administrator. The Administrator may require the filing of additional information necessary to determine com- pliance with this ordinance, ORS Chapter 459 and regulations and rules promulgated thereunder together with any other applicable laws or county ordinances. (2) The applicant for a collection or disposal franchise shall demonstrate to the Board's satisfaction that the applicant: (a) Has sufficient vehicles, equipment, land, facil- ities, personnel and financial resources to pro- vide the proposed service and to meet the stan- dards established by this ordinance, ORS Chap- ter 459 and regulations or rules promulgated there- under. (b) Has in force public liability insurance in the amount of not less than $100,000 per person and $300,000 per accident for bodily injury, and not less than $50,000 for property damage, which shall be evidenced by a certificate of insurance. Des- chutes County shall be a named co-insured on such policy. The policy and certificate shall provide that it may not be cancelled without 30 days' written notice to the Board. (c) Has sufficient experience in properly providing service of comparable quality and quantity to insure compliance with this ordinance, any regu- lations promulgated thereunder and any franchise issued to the applicant. If the applicant does not prove to the satisfaction of the Board that the applicant has sufficient experience, the Board may require the applicant to submit a corporate surety bond in an amount not to exceed $20,000, issued by a person or company authorized to do business in the State of Oregon, guaranteeing full and faithful performance by the applicant of the service and of all duties and obligations of a franchisee under this ordinance. If the applicant is applying for more than one franchise, the Board may permit the applicant to provide a single bond covering all such liabilities. For commercial haulers, the amount of the bond shall be determined by the Board based upon the applicant's actual or projected annual gross receipts. For non-commercial haulers, the amount 13 - ORDINANCE NO. 85-037 f y VOL 70 FACE 124 of the bond shall be set by the Board based upon the annual cost of collection service, as described in Section 9.16 of this Ordinance. The Board may waive the surety bond in the case of an applicant who is a non-commercial hauler or whose total landfill disposal fees do not exceed $100 per month. (3) Applicants shall specify the nature, type and extent of service to be provided, any solid waste or recyclable material that will not be accepted for collection, disposal, or recycling, and any special requirements for the handling of hazardous waste. Section 9.03. EXISTING COLLECTION, DISPOSAL AND RECYCLING SERVICE PROVIDERS. Persons providing collection, disposal or recycling service on the effective date of this ordinance, whether or not that service has been provided pursuant to a franchise or for direct compensation, and who are not exempted under Section 5.02 of this ordinance, shall file an application for an appropriate franchise together with any required infor- mation within 30 days after the effective date of this ordinance. Upon filing the application, such person may continue providing existing service until a final determination on the application is made by the Board or a court on appeal. Persons who meet the applicable qualifications of this article and who were providing collection, disposal or recycling service on the effective date of this ordinance shall be awarded a collection or disposal franchise for the area served on the effective date of this ordinance. Section 9.04. SPECIFIC COLLECTION FRANCHISE REQUIREMENTS. An applicant for a collection franchise or franchise renewal shall demonstrate to the satisfaction of the Board that the applicant: (1) Will use disposal sites and recycling depots authorized by the Board. (2) Will provide the opportunity to recycle as required by Section 8.01 of this ordinance and the terms of the franchise. (3) Is either: (a) Currently providing collection service in the service area for which the applicant applies on the effective date of this ordinance, whether or not pursuant to a franchise or for direct com- pensation, and has a majority of service customers in such service area, which shall be evidenced by a list of customers served and a map of the service area; or (b) Applying for a service area that: (i) has not been franchised to another person, (ii) has been 14 - ORDINANCE NO. 85-037 VOL 70 FAvE�� franchised to another person but is not being served by the franchisee after notice and a reasonable opportunity to do so, or (iii) is not being adequately served by a franchisee and has a substantial demand from service customers for a change in service to the area. (4) If applying for a collection franchise for all or a part of a service area franchised to another person pursuant to subsection (3) of this section, will have available on the first day of such proposed service collection vehicles, containers or other equipment equal to that presently used by the current franchisee in providing such service and that service would be equal to or better than existing service. Section 9.05. SPECIFIC DISPOSAL FRANCHISE REQUIREMENTS. (1) An applicant for a disposal franchise shall submit a duplicate of the information submitted to the Department of En- vironmental Quality on a disposal site under ORS Chapter 459 and rules promulgated thereunder. (2) An applicant for a disposal franchise shall demonstrate to the satisfaction of the Board that the applicant will provide a place for the deposit of recyclable material. (3) Each applicant for a disposal franchise shall supply a plan for rehabilitation and use of the disposal site after dis- posal has been terminated, and such use shall be a use permitted within the zone in which such land is located. Such plan shall be prepared at the scale of not less than one inch to 400 feet with topographical contours, an interval of which shall be not less than 25 feet. In the discretion of the Administrator or Board, the applicant may be required to furnish a map showing greater detail to determine compliance with this ordinance and standards established by the Board. Amended plans may be submitted for approval in the same manner as initial plans. (4) Where the land upon which a disposal site would be located is privately owned, the owner of the land and the fran- chise applicant shall, on forms furnished by the Administrator, jointly and severally agree to authorize, accept, and be re- sponsible or liable for the following: (a) The entry upon the subject premises by persons designated to administer this ordinance to determine compliance with this ordinance and the performance of the obligations of the franchisee and the landowner. (b) Proper establishment, maintenance and operation of the disposal site as required by this ordinance and applicable provisions of ORS Chapter 459, 15 - ORDINANCE NO. 85-037 1 va 70 PA,F 126 rules promulgated thereunder and other applicable laws or county ordinances. (c) Rehabilitation or restoration of the site upon termination of disposal under the land use plan submitted pursuant to subsection (2) of this sec- tion or any amendment thereto. (d) The entry upon the subject premises by persons designated by the Board to properly establish, maintain, operate, rehabilitate or restore the site where the landowner or franchisee does not comply with the agreement executed pursuant to this subsection after written notice and a reason- able opportunity to comply as provided in section 9.13 of this ordinance. (5) The Board may order the filing in the county deed re- cords of the agreements executed pursuant to this section as a recorded encumbrance on the real property to assure compliance with the conditions and agreements. Section 9.06. EXPANSION OF COLLECTION FRANCHISE AREA. A collection franchisee may apply to the Board to expand the service area covered by its existing franchise, and the Board may allow such expansion only if the following circumstances exist: (1) The proposed expansion of the franchisee's service area is the result of the development or placement of new residential units, such as dwellings, mobile homes, motel rooms, etc., and new collection service customers; (2) The proposed expansion of the franchisee's service area involves an area or premises immediately adjacent to the area or premises covered by the franchisee's existing franchise; and (3) The proposed expansion of the franchisee's service area involves an area or premises not within any other franchisee's service area. Section 9.07. REVIEW OF APPLICATIONS FOR FRANCHISES. (1) Administrator's Review. Applications shall be reviewed by the Administrator who shall make such investigation as the Adminstrator deems appropriate and who may request assistance of other persons as necessary. (2) Notice. Upon receipt of an application, the Admini- strator shall give notice to the holder of or applicant for another franchise for any part of the service area under consideration, or whose existing or proposed disposal site would likely be affected by the franchise application under consideration. 16 - ORDINANCE NO. 85-037 z ' VOL 70 PAGE 127 (3) Administrator's Recommendation. Unless the time is extended by the Board for good cause, the Administrator shall make a recommendation on the franchise to the Committee within 30 days after the application and any required supplemental infor- mation have been received. (4) Committee Action. The Committee: (a) Shall consider the application and the recom- mendation of the Administrator at the next regular meeting of the Committee or at a special meeting called for the purpose. (b) May require additional investigation to be made or information to be submitted. (c) May, after written notice to interested persons, call an informational public hearing to permit interested persons to testify orally or in writ- ing. (d) Shall, upon the basis of the application, any evidence or testimony submitted and the Admini- strator's recommendation, make a finding on the qualifications of the applicant and a finding on whether: (i) additional area should be included, (ii) additional services should be provided, (iii) additional equipment, facilities, land or per- sonnel should be provided, (iv) conditions should be imposed on collection, disposal, or recycling, and, (v) with respect to disposal sites, whether the site may be integrated with existing private or public sites and whether or not the site is an economically feasible disposal site. (e) Shall, upon the basis of its findings, transmit its recommendations to the Board to grant, deny, modify or attach appropriate conditions to the application and shall transmit to the Board such recommendations within 30 days from the date of the first meeting on the application. Section 9.08. BOARD ACTION ON APPLICATIONS FOR FRANCHISES. (1) Order on Application. The Board shall, upon the basis of the application, the Adminstrator's recommendation, the Committee's recommendation and such other information as is before the Board, affirm, deny or modify the findings of the Committee and make an order granting, denying or modifying the application or attaching conditions thereto. (2) Additional Investigation. The Board may require additional investigation by the Administrator or the Committee if 17 - ORDINANCE NO. 85-037 70 PAGE 127 it finds that there is insufficient information on which to base its action. (3) Emergency Order. The Board shall not make an order adverse to the applicant, or to the holder of or applicant for another affected franchise, effective less than 30 days after the date of such order and shall notify such persons in writing of the order. The Board may suspend operation of this subsection and enter an emergency order if it finds that there is an immediate and serious danger to the public or that a health hazard or public nuisance would be created by a delay. Section 9.09. TYPES OF FRANCHISES. (1) Joint Franchise. If, upon recommendation of the Com- mittee, the Board finds that the applicant for a collection franchise cannot provide complete service to a single customer, a group or type of customers, or for a particular type or unusually large quantity of recyclable material or solid waste, it may issue a franchise for joint service with another person who can provide supplemental service. (2) Exclusive Franchise. Where the Board finds that the applicant is able to provide complete and adequate service of all types within the defined service area, it shall issue an exclusive franchise for that area to the applicant. (3) Temporary Franchise. Upon recommendation of the Ad- ministrator and a finding by the Board that the need for service justifies action before a complete investigation and final deter- mination can be made, the Board may order the Administrator to issue a temporary franchise, valid for a stated period not to exceed six months, entitling a person to serve a defined service area or customers for that period. (4) Subcontract. The Administrator may permit the franchisee to subcontract for recycling service with another person if the Administrator finds that the quality and extent of service would not be jeopardized. The Administrator may require the filing of additional information, and may request the recom- mendation of the Committee on the subcontract. If the franchisee enters into a subcontract pursuant to this section, the fran- chisee remains responsible for the performance of the require- ments of the franchise. Section 9.10. APPEAL FROM DETERMINATION OF BOARD ON FRANCHISE. (1) Notice of Appeal. An applicant for a franchise or other affected franchisees or franchise applicants may appeal an adverse order of the Board by filing written notice of appeal with the Board within 30 days of the date of the order. 18 - ORDINANCE NO. 85-037 (2 ) Effect of entered, the filing of the order until a appeal. VOL 70 FAGE12k Notice. Unless an emergency order has been of notice of appeal shall suspend operation final determination by the Board on the (3) Public Hearing. The person appealing may request a public hearing on the appeal. The Board, upon its own motion or upon request, may set a public hearing to consider the appeal not more than 30 days from the date of the notice of appeal. (4) Board Action. Board action on the appeal shall be taken in the same manner as on a franchise application. The determination of the Board on appeal shall be final. (5) Restriction on Reapplication. If the Board makes a final order rejecting all or part of the application for a fran- chise, the applicant may not submit another application contain- ing all or a portion of the same service area or same disposal site for a period of six months unless this provision is waived by the Board upon a finding that the public interest requires reconsideration within a shorter period of time. Section 9.11. FRANCHISE TERMS AND RENEWALS. (1) Collection Franchises. Unless the Board finds that a longer or shorter term is required in the public interest, the term of collection franchises shall be a continuing seven year term. On January 1 of each year, the franchise will be renewed for one year, unless the Board notifies the franchisee at least 30 days in advance of its intent not to renew the franchise. Upon notice of intent not to renew, the term of the franchise will be six years from the date of notice of termination. Nothing in this section restricts the Board from suspending, modifying, revoking or refusing to renew a franchise pursuant to Section 9.15 of this ordinance. (2) Disposal Franchise. The term of disposal franchises shall be determined by the Board with the recommendation of the Committee based upon site longevity, population to be served and probable use after reclamation. Section 9.12. RESPONSIBILITIES OF FRANCHISEES. (1) Required Services. Franchisees shall furnish all ser- vice authorized and required by the franchise and this ordinance, at rates established by the Board, for the term of the franchise. (2) Discontinuance of Service. Except as provided in sub- section (4) of this section, no franchisee shall voluntarily discontinue service to any of the service area or at a disposal site unless and until the franchisee has: (a) Given 90 days' written notice to affected cus- tomers in the service area; 19 - ORDINANCE NO. 85-037 VOL 70 FAGE13n (b) Posted 90 days' notice at the disposal site or sites; (c) Given 90 days' written notice to the Admini- strator; and (d) Obtained approval of the Board. (3) Complaints, Records and Audit. Franchisees shall: (a) Respond in writing to any written complaint on service and report any unresolved complaint in writing to the Administrator. (b) Keep accurate books and records which shall be available during regular business hours for in- spection and review by a qualified person desig- nated by the Administrator. Records shall be generated and maintained according to normal accounting practices. (c) Obtain an audit of the franchisee's books, at the franchisee's expense, if directed to do so by the Board in connection with a franchise application, an application for a rate adjustment, or the determination and collection of a franchise fee. (4) Exceptions. Subsection (2) of this section shall not apply to termination of service due to: (a) Damage, destruction or failure of equipment due to an act of God; (b) Adverse weather which makes service impossible; (c) Change, restriction or termination of service when required by any public agency, public body or court having jurisdiction; (d) Customer refusal to pay for service in accordance with rates established pursuant to this ordinance. However collection franchisees may not discontinue service under this paragraph without seven days' prior written notice to the customer and to the Administrator. Where service is terminated to a customer for refusal to pay for service, the franchisee may require a reasonable deposit to guarantee payment for future services before reinstating such service. (e) Transfer of franchises pursuant to Section 9.18 of this ordinance. 20 - ORDINANCE NO. 85-037 VOL 70 FAGE 131 (f) A finding by the Adminstrator that service at the particular location would jeopardize the safety of the driver of a collection vehicle or of the motoring public, that the customer has not pro- vided reasonable access to the pickup point for the containers storing solid waste or recyclable materials without hazard or risk to the person providing service, or that weather conditions prevent service to the particular customer. Section 9.13. ENFORCEMENT AND CORRECTIVE ACTION. In addi- tion to the remedy provided in Section 9.15 and penalties pro- vided elsewhere in this ordinance, the following action may be taken: (1) Investigation. The Administrator, upon reasonable cause, may make an investigation to determine if there has been a violation of this ordinance, ORS Chapter 459 or rules or regu- lations promulgated thereunder, or the franchise. (2) Notice of Violation. If, in the judgment of the Ad- ministrator based upon investigation, there is sufficient evidence to constitute a violation, the Administrator shall notify the alleged violator, in writing, of the alleged violation and what steps must be taken to cure the violation and to follow the requirements set forth in the notice. The Administrator shall send a copy of the notice to the Committee and may forward a copy to the Board. (3) Response. The alleged violator shall provide a written response to the notice within 10 days of receipt. The response shall indicate whether the alleged violator agrees that there has been a violation and whether, when and how corrective action will be taken. (4) Committee Recommendations. If it appears that the alleged violator is unable or refuses to cure the violation, the Committee shall make a recommendation to the Board concerning appropriate action. If the alleged violator is a franchisee, the committee may recommend that the franchise be suspended, modified or revoked or that it not be renewed, or that any conditions the Committee deems appropriate be imposed. (5) Disposal Site Compliance Order. In the event that the landowner or franchisee under a disposal franchise does not com- ply with agreements executed pursuant to Section 9.05 of this ordinance within a reasonable time after written notice to com- ply, the Board may institute proceedings under subsection (6) of this section to enforce compliance. "Reasonable time" within this subsection shall be the time determined by the Board to be reasonable on the basis of the health, safety, and welfare of the people of Deschutes County and of the area, giving due consid- eration to the following factors: 21 - ORDINANCE NO. 85-037 VOL /� PAGE 13 (a) The nature of the deficiency. (b) Conditions created by the deficiency. (c) Hazards to health or safety. (d) Creation of a condition of unsightliness. (e) Creation of a public or private nuisance. �f) Whether there is a satisfactory alternative practice, procedure or operation. (6) County Corrective Action. Upon failure of the land- owner or franchisee to comply with the Board's compliance order within the time specified therein, the Board shall give 30 days' written notice to the landowner or franchisee, or both, at their last known addresses, that the County will carry out the neces- sary corrective action at the landowner's or franchisee's ex- pense. The Board may shorten the notice period to 24 hours if the Board finds that there is an immediate and serious danger to the public through creation of a health hazard or a public or private nuisance. (7) Public Hearing. After notice, the Board shall hold a public hearing at which all interested persons shall have the right to be heard. After the public hearing and on the basis thereof, the Board shall have the power to order appropriate county agencies to correct the deficiencies in the establishment, maintenance or operation of the site, or to make required rehab- ilitation or restoration. (8) Costs of Corrective Action; Liens. If the cost incur- red by the County in carrying out subsections (6) and (7) of this section is not paid by the affected landowner or franchisee, the Board may order appropriate action to be taken to impose a lien upon the subject property. Section 9.14. PREVENTING INTERRUPTION OF SERVICE. (1) Notice; Hearing; Corrective Action. Whenever the Board finds that a franchisee's interruption or threatened interruption of service would result in creation of a health hazard or a pub- lic or private nuisance, the Board shall, after reasonable writ- ten notice to the franchisee and the opportunity for a public hearing if the franchisee requests such hearing, have the right to authorize another franchisee or other qualified person to provide service, or to use and operate the land, facilities or equipment of the franchisee who has interrupted or threatened to interrupt service, to provide service so long as such interrup- tion continues. (2) Return of Property. Upon abatement of the actual or threatened interruption, the County or other person shall return 22 - ORDINANCE NO. 85-037 VOL 70 FACE 133 all of the franchisee's property in the same condition as when taken, less reasonable wear, tear and use. All receipts shall be returned to the franchisee, less costs of performing the service during takeover and costs of abatement. Section 9.15. SUSPENSION, MODIFICATION, REVOCATION OR REFUSAL TO RENEW FRANCHISE. (1) Grounds. Upon recommendation of the Committee or on the Board's own motion, the Board may suspend, modify, revoke or refuse to renew a franchise upon finding that the franchisee has: (a) Wilfully violated this ordinance or ORS Chapter 459 or rules or regulations promulgated there- under; (b) Made a material misrepresentation in any written documents required to be submitted by the franchisee; (c) Wilfully refused to provide service required by this ordinance or the franchise, or to take any corrective action required under Section 9.13 after written notification and a reasonable op- portunity to do so; or (d) Misrepresented the gross receipts from the fran- chise service area or disposal site, or the average occupancy within the service area, if such reports are required to be submitted by this ordinance or by order of the Board. (3) Effective Date; Emergency Order. If the Board, by order, suspends, modifies, revokes or refuses to renew a fran- chise, the action shall not become effective until 30 days after the date of the order unless the Board finds that the order should take effect earlier to prevent a serious and immediate danger to the public health or a public nuisance. (4) Public Hearing. The affected franchisee may request a public hearing before the Board on the order by filing a written request for such hearing with the Board within 30 days after the date of the order. Upon filing the request, the Board shall set a time and place for a public hearing. Unless the Board makes the finding described in subsection (2) of this section, the Board's action shall not take effect until after the public hearing. The franchisee and other interested persons or affected public agencies or bodies may submit oral or written evidence to the Board relevant to the Board's order. (5) Final Order. The Board shall, following the public hearing and within 30 days thereafter, affirm, amend or rescind its prior order. Subject to court appeal as provided in this ordinance, the determination of the Board is final. 23 - ORDINANCE NO. 85-037 Section 9.16. FRANCHISE FEES. (1) Collection Franchise Fee. (a) Commercial Haulers. An annual franchise fee of 3% of the gross receipts from providing service to the franchise service area shall be paid to the Ad- ministrator on the 30th day of January of each year, accompanied by a sworn and verified state- ment of such gross receipts. Each commercial hauler collection franchisee shall maintain suffi- cient books and records to accurately reflect the gross receipts from the service area and shall make such books and records available at reason- able times and places for audit by authorized personnel of Deschutes County. The Administrator may specify reasonable requirements for keeping such books and records. The Board may require an audit of the franchiee's books, at the fran- chisee's expense, to determine the accurancy of the franchisee's statement of gross receipts. (b) (i) The annual franchise fee for non -commerical haulers shall be 3% of the total annual cost of collection service to all of the customers in the service area. The "total annual cost of collec- tion service" shall be the product of the number of service customers multiplied by the minimum monthly rate per customer which would be charged by the commerical hauler franchisee serving the surrounding or adjacent area, multiplied by twelve (12). The fee shall be paid to the Administrator on the 30th day of January of each year. (ii) In the case of non-commercial haulers, such as hotel and motel managers, who may not serve the same number of customers each month, the number of service customers to be used in the computation of the annual franchise fee shall be the average number of occupants of the affected residential or rental units for the previous calendar year. Average occupancy shall be determined by County transient room tax returns, monthly rental re- ceipts, or other similar records maintained by the franchisee or the County. Each non-commercial hauler collection franchisee shall maintain suffi- cient books and records to accurately reflect average occupancy in the service area and shall make such books and records available at reason- able times and places for audit by authorized personnel of Deschutes County. The Administrator may specify reasonable requirement for keeping such books. The Board may require an audit of the non -commerical hauler's books, at the hauler's 24 - ORDINANCE NO. 85-037 VOL 70 PAGE 135 expense, to determine the hauler's average occupancy. (2) Disposal Franchise Fee. An annual fee of $25.00 shall be paid to the Administrator on the 30th day of January of each year. Section 9.17. USE OF FRANCHISE FEES. Fees collected pursuant to Section 9.16 of this ordinance shall be paid into the General Fund. The committee may make recommen- dations to the Board on a budget for the use of such funds to carry out the provisions of this ordinance. Section 9.18. TRANSFER OF FRANCHISES. (1) Board Approval. No franchise or any interest therein may be transferred or pledged as security without prior written notice to and approval by the Board. (2) Application for Approval. A franchisee may apply to the Board for approval to transfer or pledge the franchise. (3) Transfer. Upon recommendation of the Committee, the Board may approve a transfer if it finds that the transferor has no outstanding obligations to the County and the transferee meets all applicable requirements for a franchise. The Board shall approve or disapprove any application for transfer of a franchise within 30 days of receipt of notice by the Board. The Board may extend this time if it finds that there is a substantial question of public health or safety involved which requires additional time for investigation and decision. (4) Pledge as Security. Upon recommendation of the Com- mittee, the Board may permit a franchise to be pledged as secu- rity, but only for the purchase of land, equipment or facilities needed to provide service, or to finance purchase of a business providing service under this ordinance, and only if the fran- chisee demonstrates to the Board's satisfaction that such pledge will not adversely affect the franchisee's ability to carry out the provisions of its franchise and this ordinance. The Board may attach whatever conditions it deems appropriate to guarantee maintenance of service. ARTICLE VI. RATES FOR COLLECTION AND DISPOSAL SERVICE. Section 10.01. EXISTING RATES. Rates adopted by the Board prior to the effective date of this ordinance shall remain in effect until changed pursuant to this ordinance. Section 10.02. RATE STANDARDS. (1) The Board shall: 25 - ORDINANCE NO. 85-037 It , t x *' r ' VOL 70 PAGE 136 (a) Approve and establish reasonable and adequate rates for collection and disposal franchises. (b) Establish collection rates which are uniform either throughout the county or within zones, based upon the length of haul to disposal sites or depots, concentration of customers, and other factors which may, in the opinion of the Board, justify establishment of rate differentials. The Board may establish rates which are lower for customers who source -separate recyclable material than the rates for customers who do not source - separate. Collection rates for non-commercial hauler collection franchisees shall be the same as the rate charged by the commercial hauler collec- tion franchisee serving the surrounding or adjacent service area. (c) Establish rates for disposal sites that are uni- form throughout the county, or different rates for each site or class of sites. (d) Adjust rates pursuant to Section 10.03 of this ordinance. (e) Establish an interim rate when necessary until the Board makes a final determination on the rate for that type of service. Section 10.03. RATE ADJUSTMENTS. (1) Application for Rate Adjustment. When a franchisee proposes to adjust one or more rates, the franchisee shall make an application for rate adjustment on forms provided by the Ad- ministrator. The application shall include all supporting in- formation justifying the proposed rate adjustment, and any other information requested by the Administrator. (2) Administrator's Review? Review of Franchisee's Books. Upon receiving an application for a rate adjustment, the Ad- ministrator shall review the application and supporting in- formation, shall designate a qualified person confidentially to review the books and records of the franchisee applicant, and shall forward the application and supporting information to the Committee. (3) Committee Review. Upon receiving the application for rate adjustment, the Committee shall review the application and supporting information, may hold an informational public hearing on the proposed rate adjustment, and shall make a recommendation to the Board regarding the proposal. (4) Upon receiving the Committee's recommendation, the Board may hold a public hearing on the proposed rate adjustment, 26 - ORDINANCE NO. 85-037 VOL 70 PAGE 13 7 shall review the application and the Committee's recommendation, and shall make a final determination granting, denying or modifying the application for rate adjustment. (5) In determining whether to grant, deny or modify an application for a rate adjustment, the Board may consider rates charged by other persons performing the same or similar service in the same or other areas, and shall give due consideration to the following factors: (a) Changes in the cost of operation. (b) Current and projected revenues and expenses. (c) The investment in facilities and equipment. (d) The services of management. (e) Local wage scales. (f) The concentration of customers in the area served. (g) Methods of storage, collection, transportation, disposal, salvage, recycling or reuse. (h) Net cost of providing the opportunity to recycle, including the avoided cost of solid waste dipsosal by recycling, education, promotion and notice related to recycling. (i) Whether the franchisee provides incentives to customers to source -separate recyclable material. (j) A reasonable return to the franchisee. (k) The length of haul to disposal facilities or depots. (1) The cost of disposal. (m) The use of transfer stations or transfer systems and the added costs. (n) The cost of alternate methods of disposal. (o) The future service demands of the service area or disposal site which must be anticipated in equip- ment, facilities, personnel or land. (p) Extra charges for special pickups or pickups on days where service is not normally provided on a collection route. 27 - ORDINANCE NO. 85-037 VOL 70 PAGE 138 (q) Extra charges where the type or character of waste or solid waste, including but not limited to wastes with peculiarly offensive odors, requires special handling or service. (r) Extra charges for providing janitorial services on the premises where service is provided. (s) In addition, with respect to disposal sites, the type of site, whether the site is open to the public and the hours of operation, type of waste disposed of and method of disposal. (t) Cost of compliance with laws, ordinances, regu- lations and rules of public agencies or bodies having jurisdiction. (u) Other factors which may, in the opinion of the Committee and the Board, necessarily affect the rates to be charged. Section 10.04. RATE PREFERENCES PROHIBITED. (1) No franchisee subject to rate regulation by this ordi- nance shall give any rate preference to any person, locality or type of solid waste stored, collected, transported or disposed. (2) Nothing in this section is intended to prevent: (a) The reasonable establishment of uniform classes of rates based upon the type of waste collected, transported, disposed of, reused, recycled or recovered7 the number, type and location of customers served; or upon other factors, as long as such rates are reasonably based upon costs of the particular service and are approved by the Board in the same manner as other rates. (b) The reduction in rates charged to persons who source -separate recyclable material. However, the rate charged to a person who recycles shall not be greater than that charged to a person who does not source -separate materials for recycling. (c) Any franchisee from volunteering service at re- duced or no cost for a charitable, community, civic or benevolent purpose. Section 10.05. RESPONSIBILITY FOR PAYMENT OF CHARGES FOR SERVICE. Any person who receives service shall be responsible for payment for such service. The landlord of any premises shall be responsible for payment for service provided to that premises if the tenant does not pay for the service. 28 - ORDINANCE NO. 85-037 ��- %n Ut. i.19, �f V r­ � Section 10.06. FRANCHISEE BILLINGS TO CUSTOMERS. Billings to customers of collection and disposal franchisees shall be based upon the rates adopted pursuant to this ordinance. If the billing is itemized, each item shall accurately reflect the documented actual rate or cost for that item. The Administrator may inspect the franchisee's books to determine the accuracy of itemized billings. ARTICLE VII. REGIONAL COLLECTION AND DISPOSAL. Section 11.01. AGREEMENTS FOR JOINT FRANCHISING OR PLANNING. The Board may enter into agreements with any city or county for joint or regional franchising of collection, recycling or dis- posal service or planning for regional solid waste management. Section 11.02. AGREEMENTS FOR ALLOCATION OF FRANCHISE FEES. The Board may enter into agreements with any city or county pro- viding for the allocation of franchise fees where franchise ser- vice areas cross city or county boundaries. Section 11.03. COMMERCIAL HAULING AND SELF -HAULING DISPOSAL REGULATION AND FEES. The Board may require any franchisee or other person to apply to the Public Works Department for a permit before hauling and placing any solid waste in any landfill or sanitary landfill in Deschutes County. Upon recommendation of the Committee, the Board may adopt or modify landfill disposal fees. ARTICLE VIII. SOLID WASTE NUISANCE ABATEMENT. Section 12.01. CREATION OF NUISANCE BY ACCUMULATION OR UNAUTHORIZED DISPOSAL OF SOLID WASTE. (1) Solid Waste Accumulation. Except as otherwise author- ized under this ordinance, no person shall store, collect, main- tain or display on private property, waste or solid waste that is offensive or hazardous to the health and safety of the public or which creates offensive odors or a condition of unsightliness. Storage, collection, maintenance or display of waste or solid waste in violation of this section is declared to be a public nuisance which may be abated as provided in section 12.02 of this ordinance. (2) Unauthorized Disposal. Except as provided in Section 5.02 of this ordinance and in the definition of "Disposal Site" in Section 4.01 of this ordinance, no person shall use or permit to be used any land within the County as a public or private disposal site without approval of the Board. The disposal of waste or solid waste in or upon such land is declared to be a public nuisance which may be abated as provided in Section 12.02 of this ordinance. 29 - ORDINANCE NO. 85-037 r r, VOL 70 PAGE 140 Section 12.02. ABATEMENT OF SOLID WASTE NUISANCES. (1) Investigation. The Administrator, with or without a written and signed complaint of any person, public agency or public body, may investigate to determine whether a nuisance exists under section 12.01 of this ordinance. The Administrator may reqest the assistance of the Deschutes County Sheriff for the purpose of conducting an investigation. (2) Notice of Violation. After investigation, if the Ad- ministrator finds reasonable cause to believe a nuisance exists, the Administrator shall give written notice thereof to the Board and to the alleged violator as provided in subsection (3) of this section. (3) Show Cause. The Board may order that a notice be is- sued and served upon the owner, tenant, occupant or person in possession of the property or premises where the nuisance is alleged to exist, describing the alleged nuisance and requiring such person or persons to appear before the Board at the time and place stated in the notice to show cause why a nuisance should not be declared to exist. Unless the Board finds that there is an immediate and serious hazard to the health or safety of the public, the time set for the hearing shall not be less than 15 nor more than 40 days from the date of notice. (4) Public Hearing. At the time and place described in the notice, the Board shall conduct a public hearing on the existence of the alleged nuisance. The Administrator shall report the findings from the investigation, and may submit evidence and the testimony of witnesses. The persons served with notice shall be permitted to cross-examine the Administrator or the Administra- tor's witnesses and may present evidence and call witnesses. Any interested person, public agency or public body who requests the opportunity shall be heard, subject to the right of the persons served with notice to cross-examine. (5) Declaration of Nuisance. If the Board finds from the record at the public hearing that a nuisance exists, it shall declare the existence of a nuisance. (6) Order of Abatement. If a nuisance is declared, the Board may order all responsible persons who were notified to abate the nuisance within a reasonable time set by the Board. Section 12.03. CIVIL ACTION TO ABATE NUISANCES. (1) If a nuisance is declared to exist under Section 12.02 of this ordinance and is not abated by the responsible persons, the Board may: (a) Order a civil action to be brought in the name of the County for its abatement. 30 - ORDINANCE NO. 85-037 VOL 70 FADE 141 (b) Where a writ of abatement from an appropriate court is obtained, remove from the subject prop- erty or premises the waste or solid waste found to be the cause of such nuisance. The cost of such collection shall be paid by the person or persons found by the Board and the Court to be responsible for the creation or maintenance of the nuisance and shall be a lien upon said property or premises until paid. The County or its agents shall not be liable for any trespass to, or conversion of, any real or personal property reasonably required in removing said waste or solid waste. (2) The provisions of this section are in addition to and not in lieu of the penalties provided in section 13.04 of this ordinance. Section 12.04. UNAUTHORIZED DISPOSAL. No person shall dis- pose of solid waste on or in any property or premises subject to this ordinance of which such person is not the owner, occupant or person entitled to possession, or which is not a disposal site approved by the Board. Section 12.05. TRANSPORTATION OF SOLID WASTE. No person shall transport waste or solid waste in or on a motor vehicle or trailer upon a public road unless such waste or solid waste is: (1) Covered on the sides, top and bottom with a cover se- cured to the vehicle or trailer; or (2) Securely tied to the vehicle or trailer in such a way that such waste or solid waste is unlikely to sift, leak or other- wise escape therefrom. ARTICLE IX. APPEALS, ENFORCEMENT AND PENALTIES. Section 13.01. APPEALS FROM DECISIONS OF THE BOARD. All decisions of the Board under this ordinance shall be reviewable by the Circuit Court of the State of Oregon for the County of Deschutes. Section 13.02. APPEALS FROM DECISIONS OF THE ADMINISTRATOR. The Board, upon its own motion or upon the request of an inter- ested person or affected public agency or public body, may review the decisions of the Administrator made pursuant to this ordin- ance and may uphold, modify, rescind or leave standing the decision of the Administrator. The Board may hold a public hearing with notice to interested persons, public agencies or public bodies to review a decision of the Administrator. Section 13.03. ENFORCEMENT. Board to enforce this ordinance. 31 - ORDINANCE NO. 85-037 It shall be the duty of the Section 13.04. PENALTIES. VOL ?Q FACE 142 (1) Any violation of sections 8.04, 9.01, 10.01, 12.01, 12.04 or 12.05 of this ordinance shall be deemed to be a mis- demeanor and shall be punishable upon conviction by a fine of not more than $500 or by imprisonment in the County jail for not more than six months, or both. (2) Each day a violation described in subsection (1) of this section continues constitutes a separate offense. ARTICLE X. CONSTRUCTION, REPEAL OF CONFLICTING ORDINANCES, EFFECTIVE DATE AND EMERGENCY CLAUSE. Section 14.01. CONSTRUCTION. (1) Titles. The titles in this ordinance are not a part of the contents or provisions of this ordinance, but are solely for purposes of reference. (2) Severability. Any finding by any court of competent jurisdiction that any portion of this ordinance is unconsti- tutional or invalid shall not invalidate any other portion of this ordinance. Section 14.02. REPEAL OF CONFLICTING ORDINANCES. Ordinance CG -4 and all amendments thereto, and any portions of any other ordinance previously enacted by the County which are inconsistent with the provisions of this ordinance, are hereby repealed. Section 14.03. EMERGENCY CLAUSE AND EFFECTIVE DATE. This ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this ordinance takes jefffect on January 1, 1986. tk DATED this /0 d y of �'✓1985. ATTEST: Recording Secretary 32 - ORDINANCE NO. 85-037 I OF COUNTY COMMISSIONERS CHUTES C NTY, OREGON LAURLYDICE AX TUTTL , Chairman LOIS BRISTOV RNANTE, Commissioner LIN, Commissioner