*1 [No. S029150. Mar. 1994.] DESERT, INC., al.,
WASTE THE MANAGEMENT OF et Plaintiffs and v. Respondents, CENTER, INC.,
PALM SPRINGS RECYCLING Defendant and Appellant.
Counsel Traver, &
Crandall Crandall Garvin Lynn D. and Lisa A. for Defendant Appellant. & Flanigan,
Flanigan Timothy Flanigan, H. Terrance W. Hanigan, Ropers, *4 Kohn, Kane, Majeski, & Bentley, Wagner Michael J. S. Brady, Susan Detert, Arnold, Ellenberg, Sedgwick, Moran & Sean H. Gallagher, Mattesich, Mattesich, & Livingston James M. Carol L. L. Livingston, Lisa Halko, Sutro, Solomon, Pillsbury, Madison & Kevin Fong, M. M. Sharon & Stone and Moore John Douglas Moore as Amici Curiae on behalf Defendant and Appellant. Harris, Zundel, Schlecht,
Jean Leonard J. Scott and Shevlin & Shoenberger Jon A. Shoenberger for Plaintiffs and Respondents. McNichols, Inderbitzen,
Hallgrimson, Levine, McCann & Harvey E. John T. Schreiber and Claudia J. Martin as Amici Curiae behalf of and Plaintiffs Respondents.
Shute, Shute, Jr., Mihaly & E. Clement Weinberger, Richard Taylor, S. Astor & Z. Phillips, Astor and John Harry K. Astor as Amici Curiae. Opinion
BAXTER, J. California Integrated Waste Act Management The of 1989 (the Act) authorizes to grant cities exclusive franchises for solid waste Code, 40059, handling (Pub. services. Resources (a)(2).) subd. § The ques tion is whether this authority extends so far prohibit as to the owner of recyclable materials from them selling other someone than exclusive franchisee. Whether the Legislature has authorized such franchises is solely a question of statutory construction.
holdWe the Act does not allow an exclusive franchise for collection of recyclables not discarded their owner. As we shall Act explain, the (Italics
authorizes exclusive franchises for “solid only handling.” added.) An that is item sold is not discarded and does not become thus “waste” subject exclusive franchise.
The franchise agreement plaintiffs exclusive this case between City Desert, Rancho and Mirage (City) Management (Waste Waste of the Inc. therefore Management) invalid and unenforceable to the extent the exclu- sive franchise to include that are not waste purports materials under the Act. trial court erred defendant Palm enjoining Springs Center, (Palm Recycling Inc. Springs Recycling) collecting recy- from such clable materials within limits. City
Facts The City contracted with Waste collection Management for the disposal (the residential commercial waste within limits Agreement). The Agreement of two “Refuse consists Collection parts, Agreement” and “Recycling Agreement.” Under the Refuse Collection Agreement, obligation has collect, receive, transport, segregate, recycle, and residential and dispose commercial refrise residents and type customarily deposited by busi- nesses collection containers or disposal. areas Refuse pickup Collection Agreement does not prohibit any person transporting *5 person’s own to refuse a site. legal dump
The Agreement that Recycling Waste has the obli- provides Management gation and exclusive to collect and remove all materials that specified are in segregated and placed at the separate recycling containers curbside on public adjacent multifamily streets or in bins complexes or at locations limitations, designated by commercial establishments. Subject to specified Waste Management authorized to retain the revenue from the sale of recyclable materials.
When it entered into the the Agreement, City ordinance No. adopted (Ordinance), 8.12.010 providing garbage and rubbish accumulated “[a]ll collected, in the city shall be and the or conveyed disposed by city by any collection, removal, person with the whom city has a contract for the and ashes, matter, disposal of and as garbage Except rubbish. otherwise in provided no chapter, other than the or its contract person, city agent, collect, shall over convey of the streets or any city, of the alleys dispose of any refuse accumulated in the city.” franchise,
Under its exclusive Waste a wide Management city established residences, recycling program single-family multifamily and complexes, commercial establishments.
In Recy- and Waste sued Palm May City Management Springs in “had been cling, Springs Recycling 1990 Palm alleging beginning material trucks into to collect sending City] regular recyclable basis [the from and rights City commercial customers” violation of of the large Ordinance, Waste and had re- Agreement under the and Management Recy- fused to with demands made that Palm comply City Springs cease those cling sought perma- activities. complaint preliminary relief injunctive nent Palm prohibiting Recycling collecting from Springs materials within City. Palm admitted it had trucks on a Springs Recycling City sent into regular basis collect recyclable materials from commercial customers and had continued to solicit new It customers within boundaries. City’s denied, however, in illegal engaging interfering plaintiffs’ activities or rights (1) under the Agreement, asserting as affirmative that: defenses had City acted excess of police power enacting its the Ordinance and (2) entering Agreement; into the Agreement illegal constituted an com- bination in restraint of trade under Business and Code section Professions (3) 16600 et the Ordinance seq.; Agreement, as construed plaintiffs, constituted an invalid of the taking of violation Fifth I, Amendment to United States Constitution and article section California Constitution.
Palm filed Springs Recycling also (1) cross-complaint against plaintiffs: essentially reasserting affirmative defenses set forth the answer to the (2) complaint; seeking an order from enjoining provid- ing recycling services to residents of the less than City cost and enjoining the Ordinance enforcing and the related Agreement they materials; recycling and the collection of recyclable requesting related affirmative relief.
The and Waste City Management alleged affirmative defenses to the that the Ordinance and cross-complaint were Agreement authorized the by Act and that the Agreement and enforcement the Ordinance against of Palm were Springs Recycling within the City’s power. police The trial granted court a plaintiffs’ application injunction. for preliminary (cid:127) The judgment court entered for plaintiffs on their both and on complaint defendant’s cross-complaint, enjoining Palm from Springs Recycling placing bins or other within the the receptacles for City of purpose collecting recyclable materials and from collecting or removing recyclable materials (The within the City. did judgment not define the term specifically materials,”
“recyclable but context clear the term intended the makes was to the use of the same term in correspond the exclusive franchise contract. Palm not Springs Recycling suggested enjoined has the activities by judgment included the materials those that recycling other than Waste recycle Agreement.) must under the
The Court of The Appeal reversed court held Act does judgment. not authorize franchise City grant exclusive for the collection “recyclable removal of materials” that not been into separate have placed containers maintained or by City its authorized waste collector or are otherwise “discarded” The owner. court relied Public Code Resources section in this provision 41952’s that “[njothing chapter donate, sell, limits the or any person otherwise his dispose that, her materials.” court concluded until recyclable generator bins, materials them recyclable discards into the retains owner specified control over the materials’ free to have them collected disposition recycling enterprise of the owner’s choice. court further held the City’s from the police power, apart did not authorize the to restrict recycling services to the waste collection enterprise designated exclusively City.
Discussion The Act sets forth a comprehensive statewide for solid program Code, (Pub. (All waste management. Resources 40000 et further seq.) § noted.) section references are Public Resources Code unless otherwise No one that the disputes Act allows a agency local to award an exclusive (§ 40059, franchise for “solid handling” (a)(2), services. subd. italics added.) The question is whether a market its property value to owner— material—is example, “waste” within the of the Act scope its franchise provision. We conclude this is not it “waste” until This discarded. construction encompasses concepts— two value and in this discarding—that context must be considered in relation to one another.
1. Economic value to owner “The concept market value is most stated in perhaps clearly poetic ” that, axiom ‘The worth thing, (Union of a is the it will price bring.’ Pacific R.R. v. Equalization (1989) Co. State Bd. 49 Cal.3d 148 [260 *7 565, 267], 776 P.2d Cal.Rptr. quoting Bonbright, Valuation of Property (1st 1937) it, 15.) If ed. the owner of a can p. material sell for the perhaps it (i.e., reason that is it an recyclable, market) has value to economic its owner. Act of title, Integrated the California very
The Act’s handling,” “solid waste waste” references to “solid and its repeated was wastes,” Legislature indicate the like strongly and the of solid “recycling of eco with materials not what it said—waste—and just concerned waste” “solid definition of The Act’s own value to their owner. nomic have not been that recyclables that valuable view supports further “all putrescible is defined as waste. “Solid waste” discarded are not trash, wastes, solid, semisolid, including garbage, and liquid nonputrescible wastes, refuse, rubbish, ashes, and construction demolition industrial paper, thereof, wastes, and industrial discarded home vehicles and parts abandoned dewatered, treated, which is sludge fixed sewage chemically appliances, manure, and semisolid or animal solid vegetable hazardous wastes, (§ 40191, subd. wastes.” solid and semisolid and other discarded materials. the notion of valuable (a).) connotes hardly This definition dis something “waste” is understood commonly meaning The 1365, col. (Amer. Dict. p. Heritage carded “as worthless or useless.” 1; If sells 1989), 1.) col. the owner (2d ed. English p. 19 Oxford Dict. is, to be cannot be said value for it—the property his receives property—that not waste from in an sense and is thus worthless or useless economic if voluntarily disposes the owner Conversely, owner’s perspective. in ex consideration without or other receiving compensation property is, the property is that throws it obvious conclusion change—that away—the inis this sense value of value concept has no economic owner. of. disposed related to the manner which the 2. Valuable materials not discarded view that the traditional
The Act’s definition of waste also reflects has been material that waste—at least for of its collection—is purposes (a) solid waste as defines discarded its owner. Section subdivision discarded solid and of materials and “other being several enumerated types discarded’ (Italics added.) The modifier “other semisolid wastes.” restrictive statute, thereby meaning enumerated materials in the refers to all the plainly until it discarded. item is not waste definition of statutory relied on this heavily Court of also Appeal materials become solid “waste” in discarded waste concluding “only ” Plaintiffs object approach, under Act. subject ‘handling’ all could discard it the Act because owners contending would eviscerate render thereby fit and their and otherwise—as see they property—recyclable In matter. practical franchise a handling nullity an exclusive solid waste *8 486 words,
other the Court of to mean opinion might be read that a Appeal owner could decide he property unilaterally with whom will discard his (the If waste. three competing waste exclusive franchisee and two handlers curbside, others) their at the he placed respective owner’s could receptacles put his into whichever he Perhaps waste container chooses. Court of result, did intend Appeal not its read as opinion might suggesting but be and, so, as much if we believe result this would be inconsistent with the If, however, Act’s understood, intent. apparent discarded is concept being properly perceived easily this avoided. problem This to the returns us value. sold for concept of that is value—for Property example, under recyclable—is any “discarded” traditional understand ing (Amer. of the term. “Discard” means “to throw away.” Heritage 402, (2d 1982) 1.) Dict. ed. col. It with college p. synonymous is not with, broader term which “dispose,” means transfer or as part by giving “[t]o (Id., 407, homeowner, or selling.” 2.) col. A can p. example, dispose furniture, used clothing, or them or by selling automobiles discarding them, but either method of If he other. disposition necessarily precludes it; it, sells the he cannot and if he he discard discards cannot sell it. property, That “discard” connotes has away or been well throwing abandoning recog nized in dealing (American cases related waste and issues. Min. Con gress 1987) (D.C. v. U.S. E.P.A. Cir. 824 F.2d 1184 App.D.C. [263 197]; Reading (E.D. v. Philadelphia 1993) Co. Pa. 823 F.Supp. 1236-1237; (1990) v. Capozziello Carothers 215 A.2d Conn. 82 [574 1291]; Delaware Darling Corp. 1977) v. D.C. (App. District Columbia 596, 597; A.2d Ticonderoga County Farms v. Loudoun Va. 170 446, 449].) S.E.2d [409
The Court of did Appeal not reflect the distinction between opinion that, and selling discarding. will Assume Perhaps example illustrate. case, there is an exclusive franchise. A owner throws his property recyclables into and receptacle by the franchisee does so provided without He has his receiving compensation. plainly discarded property, it is thus waste under the he Act. Could instead throw the into the property No, bin of a without competing hauler receiving compensation? because without by disposing compensation, he has property receiving discarded the rendered property subject it waste that is thereby If, however, exclusive franchise. he is paid for the material the franchi see’s the owner competitor, has sold has not discarded thus it, so it has not become waste.
An relevant especially distinction between example selling Columbia, is found discarding Darling Corp. Delaware v. District of *9 596, and transported that purchased in which a company 380 A.2d supra, them for then sold and markets and stores grocery meat fat and bones from tallow, was margarine, and e.g., soup, products, into other processing was The question a license. waste without hauling solid charged case, defined in the statute the present the materials were waste. As whether traditional relied on the The court “discarded materials.” being waste as of, with, rid letting go getting “It ‘indicates dispensing of “discard.” meaning ” Third New Webster’s (Id., quoting useful.’ at immediately p. of as not concluded, in the chain “At no (1971).) point The then Internat. Dict. court ever discarded. they were and of these animal by-products sale purchase ato directly either stores by grocery The reflects that were sold they record as appellant. such large buyers or frozen for sale to few retail customers were they in New York where them to transported plants Appellant promptly were Since these materials into useful products. resold for other processing useful, have cannot be said to immediately they never thrown as not away omitted.) (Id., analysis The same constituted waste . . . .” fn. p. or otherwise useful in If an segregates recyclable obtains this case. owner them, do not become they materials and sells he has not discarded them waste. (a) are subdivision
The view that all items enumerated section discarded, is whether have been regardless they of their value and items enumerated. For further called into of the question by many types however, refer all the statute refers to This can example, “paper.” paper, of value or if the term is taken out of context and without consideration only A materials. the statute’s stated limitation that it to discarded applies only collection, a watercolor of elaborate a collector’s piece origami, autograph anyone seriously are each but we doubt would painting indisputably paper, it or it as contend such an item is waste and that its owner cannot sell keep obvious, intuitive, he sees to the contention fit. correct response would that the has discarded the be has value and that owner not property is, if he sells it. That has not become waste. property property can be The tension and the Court of plaintiffs Appeal between discarding. eliminated between selling distinction relying under the does not become waste Court of was correct Appeal property discarded, inadvertently) Act until but incorrect suggesting (perhaps he fit. Discarding governed owner can discard the sees which the owner the Act. and other methods of Selling disposition discarding are receives or the value materials donates Act is to and are not the Act. The subject to fundamental purpose The buying reduce the amount material stream. entering into the waste selling materials to that marketplace inapposite purpose because those materials remain circulation and do not enter into the waste stream. *10 rule If proper is this: the owner of of it for property disposes
compensation—in common sells it—it is not waste it has parlance, because not been discarded. The owner is not under the Act to required transfer But, property exclusive franchisee. consistent with purpose Act, an owner cannot discard he property as sees fit. Discarding property renders the waste and it property subjects to the Act.
3. The right recyclables owner’s to sell
If one accepts general that an owner has a proposition value, sell his property then becomes whether a different question rule should to a apply particular type defined as property—property recyclable materials the Recycling Agreement between the view, Waste Management. Under a rule plaintiffs’ should special apply recyclables light definitions of solid waste statutory handling recycling. We read these provisions differently. collection,
“Solid waste is handling” defined as “the transportation, stor- transfer, 40195, age, (§ or processing added.) solid wastes.” italics “Pro- is, turn, reduction, cessing” defined as “the conver- separation, recovery, sion, (§ of solid recycling added.) waste.” italics Put solid simply, If, above, waste handling includes recycling—of solid waste. as explained the owner does not discard his it does not become in the property, waste first Thus, instance. even if the might be viewed feasibly material, it is not necessarily recyclable waste. distinction is signifi- cant because only of waste included recycling is within the Act’s and, turn, definition of solid waste handling the provision allowing exclusive franchises.
Plaintiffs also to section point 40180’s definition of as “the “recycling” process of collecting, sorting, cleansing, treating, reconstituting materi- als that would otherwise become solid returning to economic new, reused, mainstream in the form of raw material for or reconstituted (Italics . . . .” products added.) are Perhaps plaintiffs relying primarily the word “material” and that all concluding recyclable materials are subject so, to an exclusive if franchise even do If they not become waste. we disagree. Section 40180’s reference to materials is merely acknowledg- that, matter, ment of the reality as a technological materials are capable however, being recycled. The provisions, that define solid handling waste waste,” refer of solid not to the of solid only “recycling added.) (§§ & If the statutes were worded materials. italics otherwise, the mere would something being recycled fact that capable franchise, render it to an the owner subject prohibiting thereby it. selling Moreover, only section 40180 is itself consistent with the view that to the Act. The subject section refers to “materials that would otherwise (§ become solid If added.) waste.” italics an owner discards property, But, sold, it enters into the if waste stream not if a material is it is recycled. not a material “that explained would otherwise become solid waste.” As above, Thus, it if becomes waste when discarded. an owner sells an only *11 item, stream, it does enter the solid waste the reduction of which is the fundamental of Act. purpose in injunction this case is directed at a commercial recycling
activity, but of view logic plaintiffs’ would extend to non inexorably well, drive, commercial for activity a school a example, youth newspaper containers, group’s gathering soda empty pop or donations to the clothing (Indeed, Salvation Army. even gifts from one individual to another would be suspect, for a example, gives who metal to a welded person scrap sculptor art.) The items collected such activities are often materials. recyclable however, in Nothing, or language legislative of the Act history suggests the Legislature intended to eliminate gifts to between charity gifts friends. sold, As with items that are gifts fairly cannot be said to have entered the Moreover, solid waste stream. gift like valuable a sale of such property, is a property, transfer of value and thus cannot be characterized as properly “discarding” under the Act. short,
In if the owner of recyclable materials discards them into the solid stream, waste they become solid subject waste and an exclusive franchisee would have the to collect that accordance with its If, however, franchise agreement. the owner disposes recyclables compensation—in common parlance, sells them—the are not recyclables discarded and do not become waste.
We therefore hold that the owner of undiscarded recyclables is not required to transfer them to the holder of an exclusive franchise under the Act. The Recycling Agreement between plaintiffs City Waste Manage- ment is unenforceable under the Act to the extent the franchise purports “waste,” include recyclable materials that have not become as we have construed the term. cream “to skim the seeking
Plaintiffs contend Palm Springs Recycling valu- commercially the more by collecting only business” cannot be eco- that a comprehensive recycling program able materials and recyclable that includes sustainable absent an exclusive franchise nomically First, that Palm suggests mark in two it respects. materials. This misses the value from Waste taking something is somehow Springs Recycling the to the owner of belongs Not so. “cream” Management. Second, Our to the Legislature. material. the contention is better addressed different, written, perhaps the Act as it is not on holding is based on be, broader, been, have enacted. may version that could or still award of City’s additional Finally, argument we address plaintiffs’ This was a valid exercise of police power. the exclusive franchise two, three, it seems to have perhaps is not but argument clearly presented, First, In light power. the focus of the state’s argument police aspects. the exclusive franchise our conclusion that the Act does not support case, the Act to could have framed constitutionally whether the state allow the franchise is beside point.
Second, assert, only cryptically passing, also albeit plaintiffs City’s power. a valid exercise of the own police the exclusive franchise is *12 under the exercised that City power Plaintiffs seem to suggest properly because, the Act as we have explained, Act. The fails argument necessarily recyclables. the franchise to extend to nondiscarded does not itself authorize Third, had the suggest City police power independent also plaintiffs the collection of undiscarded the Act to award an exclusive franchise for Appeal’s decide correctness of the Court of We decline to recyclables. Court, (Cal. 29.2(a).) rule The primary Rules of determination of issue. And, under the Act. has been the of the scope City’s power focus this court issue of important of the own raises question City’s police power the City might whether the Act has comprehensive preempted any power otherwise have had. need address Palm Springs
Under our construction of the we Recycling’s arguments. other
Disposition one modification. of the Court of with judgment Appeal is affirmed the City prohibiting The court directed the trial court to issue injunction with respect enforcing against Recycling from the Ordinance Palm Springs to or its City over materials have turned “recyclable not been [which] with the Court of in this This was consistent as discussed agent opinion.” it wishes. can discard them as recyclables view that the owner of Appeal’s narrower—that, are if the materials we have our view is As explained, “discarded,” term, are they subject as we have construed franchise. difference, of Appeal
To accommodate this of the Court judgment direc- with remand matter to the trial court with affirmed directions to writ of mandate favor tions to issue and/or permanent injunction enforcing defendant Palm from Springs Recycling prohibiting relief defend- Ordinance either criminal prosecution injunctive against collecting, ant for within the in the business of engaging City’s boundaries recyclable receiving, transporting, segregating, recycling, disposing Recycling materials that are Palm acquired compensation by Springs commercial establishments. Defendant shall recover its costs on appeal. Kennard, J.,
Lucas, J., Panelli, J.,* Cottle, J.,† C. concurred. GEORGE, J. dissent. respectfully I
In April City of Rancho entered into an exclusive Mirage Desert, (Waste franchise agreement Management Waste Inc. under which Management), Management agreed provide specified disposal recycling services to all of the residents and city’s entities, rates, return, commercial and the regulated agreed to city, only Waste such services within the provide city’s authorize thereafter, Center, (Palm boundaries. Shortly Palm Inc. Springs Recycling Springs Recycling), commercial competing recycling enterprise, began its sending trucks into the on a city regular basis to collect *13 customers, material from large commercial in Manage- violation of Waste ment’s under the In rights exclusive franchise the agreement. response, city court, and Waste Management sought relief the trial injunctive from which granted an injunction Palm in prohibiting Springs Recycling engaging recycling services within the boundaries of the City Mirage Rancho violation of the exclusive franchise agreement.
The majority overturns the trial court the injunction, concluding of Rancho Mirage lacked to enter an authority into exclusive franchise *Retired Supreme sitting assignment Associate Justice of the Court Chairper under the son of the Judicial Council. Justice, District, †Presiding Appeal, Acting Court of Appellate assigned by Sixth the Chairperson of the Judicial Council. services, agreement insofar as that limited the agreement of competing recycling companies purchase designated recy- and collect that, clable materials within city limits. Although majority acknowledges Act), under (the the California Integrated Waste Act of 1989 the Legislature explicitly has authorized to enter exclu- municipalities into services,” sive agreements franchise for “solid waste handling majority concludes that the municipality’s authority legislation under this does extend to “recyclable material” that has a market value and that the owner wishes to sell to a commercial other than the entity exclusive franchisee. I I
As shall believe the explain, of the relevant majority’s interpretation frustrate, further, is incorrect and legislation clearly will rather than of the Act important purposes a by excluding significant proportion recyclable material from its A operation. glaring omission of the is majority its failure to the fundamental acknowledge legislative objectives policies legislation—the promotion “integrated waste management”— and the various components designed Act these accomplish policies whole, and objectives. scheme a I it Construing statutory believe clear that the Act authorizes the exclusive franchise at issue agreement case, and that the trial court did not err in the commercial enjoining activities of Palm Springs Recycling that violated the agreement, including the purchase and collection of materials that would have been past waste, discarded as but that now have some market value their because of recycling potential.
I The Act comprises comprehensive management for solid waste program state, throughout concern that reflecting legislative ever-increasing amounts of combined with disposable diminishing waste disposal capacity, pose a threat of crisis proportion to environment and the public welfare, health and need” presenting “urgent “aggressive for an new Code, 40000; integrated (Pub. waste management program.” Resources see § Assem. Natural Resources Com. Integrated Management: Put- Rep., Lid Overload ting Garbage i. State solid waste p. [“Current management policy becoming ineffective Cali- increasingly managing fornia’s solid waste and is potentially harmful to health and public Assembly Report].)1 environment.”] [hereafter Under the the responsibility for solid waste is shared management (§ 40001), state and local governments with solid waste ser- handling *14 vices to be one or the provided by any combination of the local following: scheme, incorporates 1The Act part provisions predecessor statutory in substantial the of its 1972, the Waste Management Recovery formerly Solid and Resource Act of contained in the Code, Code, Code, Government Safety the Health and and the Revenue and Taxation
493 itself, enterprise waste collection local or a private another entity entity, in the predecessor A 40058). of the not contained (§ component major scheme, diversion waste mandatory is the substantial solid statutory disposal in part provides section 41780. That section requirements imposed counties, reduction, and composting recycling, cities and solid waste through activities, from landfill ... 25 all solid waste percent “shall divert 1, 1, 2000.” by January all waste percent 1995” and “50 solid January 41780, (2).) (§ (a)(1) & subd. cities to Act requires meet requirements,
To these waste diversion for providing and waste integrated management plans develop implement reduction, maximum extent and reuse of solid recycling, 40900, 40052, feasible, (§§ and an efficient cost-effective manner. 41000.) recycling reduction and Such must include “source plan local 40901, (§§ 41000), “recycling” in turn incorporate element” which must (§ 41003.) must include a component. recycling component meth the recycling and that demonstrate program implementation schedule ods, in reduction composting components, combination with source and Act. of the provisions repealed concurrently adoption of which were recodified or 1989, 1095, 3810.) (Stats. ch. p. reflects, however, by the many policies developed The Act also and concepts Agency), (an Municipal Solid Waste Task Force arm of the Environmental Protection federal management crisis. The report as set forth the task force’s on the national waste 1988, to United report explains part: introduction the task force’s “From 1960 [the year, pounds and generated every tonnage per person, waste both in total and in more States] addition, places our waste projected running put this trend is to continue. we are out of In are be sited and closing because old are and new landfills and combustors able to landfills few are and the potential built. There concerns about threats to human health environment ash, emissions, leachate, This and litter . . . . . combustor emissions and from landfill . . H] ‘integrated management’ municipal to solve solid report using systems recommends waste local, (Final generation management problems regional, waste at the and levels.” national Force, Rep. Municipal Solid Waste United States Environmental Protection Task 1989) 1-2.) Agency, (Feb. pp. Agenda Solid Waste Dilemma: for Action An further Code otherwise statutory All references are to the Public Resources unless reduction indicated. life of composting) human health and the energy, hierarchy Dilemma: tally “[a] 2In its Recycling following key safe land products and slow the report, element of (including An adopted disposal, Agenda cited at footnote in order to reduce the volume and composting. preferred management reuse) in section integrated environment, depletion at the discretion of the to first Action, waste [J] 1, ante, waste practices of nonrenewable natural resources.” (3) Environmentally decrease management supra, divert waste from landfills providing management in order Municipal the volume and p. city option part italics in toxicity is priority: Solid county.” safe that local to further transformation and environmen hierarchy, Waste Task Force observes toxicity of waste. [1] (§ agencies original.) reduce (1) combustors, Source reduction. Recycling which increase the (The subd. potential shall This favors source Solid (a).) “[p]romote (including suggested conserve risks useful [*I]
494 which the will city a sufficient amount of solid waste of disposed reduce city order to with the section comply diversion requirements (§ 41070.) 41780. Failure to a com timely submit these plan incorporating or failure ponents, to and meet implement plan require the diversion deadlines, $10,000 subject city penalties up per day. ments and will a to to (§§ 41813,41850.) of an requirement waste to integrated management plan corresponds
the recommendation of the Assembly manage- that California waste Report ment “be revised to to place greater emphasis a multi-faceted approach solving the State’s woes” waste garbage through integrated management in which program, mandatory recycling measures be into may incorporated i.,1-2, (Assem. overall waste planning process. supra, solid at Rep., pp. 53-60.)
II Long before the of the it was well adoption established that and control of regulation waste collection and constituted a disposal proper exercise of municipal reserved to local police power governments. state and (See City 144 Spadys Disposal (1983) Camarillo v. Cal.App.3d Service 1027, 22]; (1956) 1030 v. Cal.Rptr. Superior Court 146 [193 Matula 871]; Cal.App.2d (1952) 99-101 P.2d Davis v. Santa Ana 108 [303 Code, 4250; 656]; Cal.App.2d 669 P.2d see also & Health Saf. former [239 § Code, Furthermore, Gov. (b).) former subd. nearly century, § for a California courts explicitly have affirmed the of cities and coun- authority ties, in the exercise their police control waste collection power, disposal by means deemed public most effective for the health safety, including exclusive waste collection and granting disposal to one privileges or more private enterprises.
Thus,
955],
(1905)
In re
495 constitutional provision was authorized state by of San Francisco County the public method of protecting the “most determination of appropriate local found refuse and other materials garbage, in the of disposal health matter of L.Ed. 325 (1905) v. 199 U.S. Michigan [50 Gardner premises”]; on private 212, 106].) 26 S.Ct. 328, Zhizhuzza, have supra, in In re 147 Cal. articulated principles rendered decisions subsequent reiterated and affirmed repeatedly
been Disposal v. (See Spadys Camarillo City decade. through present of Service, at to restrict supra, 144 1030-1032 Cal.App.3d. [decision pp. “falls than one company of to no more disposal permits issuance waste of and affirmatively expressed policy within the articulated clearly Rentals, state”]; Inc. City v. Waste & Debris Box Santa Rosa Industrial of 1132, 737]; By- (1985) 1135 Universal Cal.Rptr. 168 Cal.App.3d [214 Products, 149, 145, 1 fn. City Cal.App.3d Inc. Modesto 43 [117 v. Court, 525]; Superior supra, pp. 146 Cal.Rptr. Cal.App.2d Matula v. 99-101; Akron, (6th Cir. Hybud Equipment Corp. City see v. Ohio also 1981) hundreds cases 654 F.2d literally reported 1192 [“Courts to and control governments monopolize have of local upheld authority among garbage restraining local collection or eliminating competition collectors.”].) private exclusive
Cities other local entities that to an rely have opted upon franchise for all their local tradi- handling waste services within boundaries have action tionally such on the explained ground competition solid waste and encour- handling industry may necessary regulation impede age cost-cutting devices that Such entities pose public threat health. have that the waste han- apparently concluded exclusive designation dling enterprise an efficacious to ensure all persons method rates, businesses within will be at reasonable community regardless served circumstances, of their minimize the and disruption individual and to noise (See of collection. Santa & Debris Box Rosa v. Industrial Waste Rentals, Inc., 1132, 1134-1135.) supra, Cal.App.3d
Ill deter- entities are in the best to Recognizing that local generally position mine the health and preferable safety problems means of addressing Act that local posed handling disposal contemplates utilize exclusive solid waste agencies may handling franchises private of the Act. Section enterprises purposes requirements implement (a), local entities determine all expressly subdivision authorizes concern, of solid aspects including waste of local whether “solid handling handling services” are be provided means of franchise (§ (a).) contract. subd. *17 40059, (a), Definitions the governing construction of section subdivision in are set forth various of Act. is provisions handling” the “Solid waste collection, transfer, defined as “the transportation, storage, or of processing reduction, (§ 40195.) solid wastes.” “Processing” is defined as “the separa- tion, conversion, (§ recovery, recycling or of solid waste.” italics added.) collecting, defined as “the of cleans- “Recycling” process sorting, and ing, treating, materials would otherwise become solid reconstituting waste, and them returning to the economic mainstream in the form rawof reused, new, material for (§ 40180.) or reconstituted The products.” phrase from “segregated “binding other waste material” is defined as including recyclable material separately other waste and the “physi- material” of cal from ” separation recyclable (§ material other waste material of from (a), (b), added.) subds. italics
Thus, definitions, these light (a), under subdivision section city may grant exclusively to a solid waste handling enterprise right “collection, transfer, storage, of solid transportation, wastes.” processing Because “processing” of solid wastes includes the “recycling of solid waste,” which in turn includes . . . materials would other- “collecting become wise solid . . .” the city Act authorizes a to grant exclusive franchise to a single private to recycling enterprise limits, commercial provide services within city including collection and removal of recyclable materials identified in specifically agreement. franchise of, public benefits and municipal by, served an exclusive purposes
franchise for recycling services are demonstrated the exclusive franchise agreement case present between Rancho and Waste Mirage Management. Under this agreement, city, no additional cost Waste Management is (as to collect and all required remove recyclable materials therein) and defined specified that are segregated placed separate recycling containers at the adjacent curbside streets or to multi- public or in family complexes, bins at a location designated commercial estab- lishments. Waste Management also is required distribute provide residences, establishments, containers to all and bins to all commercial assist must homeowners in the curbside participating recycling program. As compensation recycling services at cost to providing no additional residents, retain a portion and its Waste is authorized to city Management the revenues materials.3 generated recyclable sale further that Waste shall agreement Management develop provides and inform the commu- public-awareness implement program promote of the benefits of nity recycling. Finally, required (to the city) monthly tonnage submit of the total reports materials, well materials recovered and sold and the market of such as prices effective- status to facilitate an assessment of the yearly reports designed ness of all aspects of program.
Thus, the exclusive franchise enables and Waste requires Management the provide comprehensive recycling program throughout city, offering establishments, all and recycling city services to residents and commercial their in fran- promoting participation recycling program. chise facilitates the coordination city’s recycling services supervision limits, within with a its city provides city meeting method of helpful Act; reasons, under the obligations other Waste will be among Management motivated strongly to ensure that the meets its waste diversion and city under the in reporting requirements likely that failure to do so would mean a loss of franchise rights.
The exclusive nature of the Waste under the rights Management accorded agreement provides entity with economic incentive to render the fore- benefits, services going which it would not have under a nonexclusive As arrangement. Waste of its explained by Management support applica- tion for their preliminary injunction, commercial customers that collect recyclable materials bins far large generate amounts of greater recyclable reason, material and can be serviced much more For this accord- efficiently. ing to Waste Management, commercial customers “are the key economic viability of the revenue must be recycling program. Enough realized from the sale of material the few recyclable generated by large commercial customers to cover the servicing cost of all customers for program ultimately succeed.” 3Waste Management is authorized to recyclable retain the revenue from the sale of
materials, (1) except multifamily recycling programs event the curbside and become “self-sufficient,” basis, Management Waste city, equal any shall share with the on an revenue cost, generated by these programs Management required in excess of their and Waste credit to percentage (depending upon type recyclable each commercial customer a fixed involved) Management material of the revenue of recyclable received Waste from the sale materials from that collected customer.
The record indicates Palm seeks to collect Springs Recycling only materials, most desirable commercially glass such as and card- board, and to collect such materials commercial only large establish- ments. Palm Springs Recycling recycla- has demonstrated no interest generated ble materials As enterprises. residences small commercial characterized Waste Palm “to Management, seeks Springs Recycling business,” skim off cream of the recycling “the less leaving profitable and unprofitable recycling business to which it is Management] [Waste that, bound to contractually maintains absent accept.” enforcement of its exclusive franchise rights, comprehensive program not viable. economically
IV concedes the Act majority authorizes exclusive franchises for solid asserts, however, waste handling services. The majority that “solid waste” as defined (a), under section subdivision of the Act does not include materials sold by the owner for if sold the materials have recycling, because not been “discarded” within the meaning of definition of “solid statutory *19 reasons, waste.” For similar also maintains that if an owner of majority is able to sell that property for such property recycling purposes, disposition of the property does not fall within the “solid category handling” of waste that be covered may by exclusive franchise.
I with the agree that the exclusive majority solid waste collection and recycling of an rights exclusive franchisee such as Waste do not arise until the owner of the nonrecyclable material discards that material for collection aby waste service or a commercial handling recycling thus enterprise, rendering this material a of the solid waste part Thus, stream. the concern of the that majority enforcement of an exclusive franchise for commercial services interfere with a recycling Boy would drive, Scout paper or some other civic or charitable is unfounded. operation, When, however, an owner chooses to of material that dispose previously would have been of as disposed to a by transferring commercial I recycling believe it is that the enterprise, clear material has Act, been “discarded” meaning within the and that the exclusive of franchisee has the perform those collection services. conclusion,
The majority’s excluding from the ambit of the exclusive franchise arrangement authorized by the Act all material that a property owner chooses to sell for either recycling purposes, supported fundamental or the the Act. As stated statutory language previ- of purpose integrat- encourage require of the Act is to ously, primary objective waste ed4 waste as the management, preferred solid promoting Act over landfill To management option accomplish goal, disposal. establishes, significant as one of its for major components, requirements As in the at landfills. reductions amount of the solid waste of disposed stated, (a), that cities part, section subdivision provides, counties “shall divert 25 all waste from landfill” percent by January of solid 1, 1995, activities,” of . . and “shall divert 50 through “recycling percent . 1, 2000, all solid waste” . . . activities.” by January through “recycling “(a) Act in section ... for the of specifically provides purpose the base of solid waste which diversion determining requirements rate calculated, shall be waste’ The amount solid ‘solid includes . . . of H] within generated jurisdiction, a local agency’s types quantities of which were at January as of disposed permitted disposal facility that, 1990.” This clear if provision makes a material is of a type quantity 1, 1990, that was disposed as of permitted disposal facility January the recycling of that material would be considered solid waste part stream the Act. regulated by of the statute Nothing language suggests that solid waste diverted from landfill and thus through recycling, disposal Act, regulated includes material that has no value to the owner or only Instead, has not been sold the owner the clear recycling purposes. whole, implication of the statutory as a language interpreted that the “solid waste stream” includes material sold for recycling purposes where, but for the the material otherwise would availability recycling, have been disposed of as landfill.
Moreover, one the Act is to more primary purposes encourage efficient methods of recycling, as well as the creation of markets for *20 recycled (i.e., materials to make recyclable commercially materials more marketable). In of this it the light objective, would be anomalous to interpret Act as a excluding particular recyclable material from a city’s integrated because, waste management program simply through technology encouraged Act, the the recycling process for that material has become particular Indeed, viable. it economically well be for to may impossible municipalities further the Act’s objectives meet the Act’s substantial waste- very if, diversion requirements as newer and efficient recycling more processes created, are developed additional markets are cannot municipalities count, as the of solid part quantum of waste-diversion satisfying that, requirements, those materials because of their have recyclable potential, achieved some commercial value to the if Correspondingly, recycla- owner. ble material sold by its owner for cannot be counted recycling purposes
4See footnote ante.
500 under section 41780 as waste diverted from through recycling, disposal have municipalities may little incentive to either new forms of encourage or markets recycling, recyclable for materials.
Furthermore, value, if the material recycling of that has commercial owner, that be sold may handling regulated is not of solid waste part Act, by exclusive franchises for services specified recycling frequently franchisee, no may longer be viable for the economically thereby a effectuate diminishing municipality’s to a ability comprehensive citywide such recycling program as that under the provided by exclusive franchise at issue. Under the of agreement majority’s interpretation would have no to municipality authority prevent competing commercial such as recycling enterprise Recycling Palm Springs business, off the cream” “skimming of leaving many residents municipality’s without an viable economically recycling program.5 Finally, courts have long rejected the notion that the owner of waste material some market value has an in that material to having interest superior the police (See to health and power protect public safety. California Works, 306; Company Reduction v. Sanitary supra, Reduction U.S. 199 325; Gardner v. Michigan, supra, In re Pedrosian 124 (1932) U.S. 199 389]; Ex parte Santos (1928) 692 P.2d P. Cal.App. 88 691 Cal.App. [13 [264 281].) More Hybud Equipment Corp. recently, Sixth Circuit v. of Akron, Ohio, supra, 654 F.2d reached in the a similar conclusion case, context of In recycling. the Court ordinance Appeals upheld 5Although majority does rely upon support holding, section of its 41952 Appeal provision Court of construed authorizing recyclable as owners materials materials, contract recycling enterprise with a of their choice for the collection of these notwithstanding the granted by governing entity. existence of an exclusive franchise the local Appeal I conclude the Court of scope appears misconstrued the of section That statute 41952. chapter part (§ 2 of seq.), 9 division 30 of the Public Resources Code et entitled 41950 actions, “Unlawful Acts.” provisions chapter proscribe, among the unauthor 9 other ized recyclable removal of materials from receptacles maintained for their collection. This provision upon by relied the Court Appeal chapter proscribing clarifies that “unlawful acts,” (1) does not in and require recyclable dispose the owner of of them materials of itself (2) receptacles, subject in curbside recyclable penalties the owner of such materials to civil previously placed retrieval of an item receptacle, in its own otherwise restrict the owner’s ability dispose to sell or of such materials. terms, however, By express its pertains solely chapter Although nothing section 9. owner, above, chapter restricts disposal explained materials *21 (a), section part chapter subdivision contained in a different and of the does city regulate authorize a to recycling city by commercial services within limits exclusive franchise, thereby to restrict the disposal recyclable manner of collection and of material context, by language, commercial entities. In view of its section purpose, cannot reasonably (to interpreted repealing entity be the of a enter into authority local exclusive franchises) explicitly (a). conferred by section subdivision City’s of Akron that all solid waste be delivered to the requiring had to the claim material energy” facility. Rejecting recyclable
“waste that relating become more modem times and the older case law valuable that longer no was municipal power regulate to to waste therefore police held: “The are are not applicable, They court old cases not anachronisms. of these distinguishable grounds. solid waste any disposal problem (Id., as serious for cities as in the more serious.” today perhaps p. past, 1193.)
V of the Act a an provisions authorizing municipality to establish material, if the is of for even material recycling franchise that has a market value because of for do not type recycling, its potential permit a to owner of it municipality require of such property dispose the exclusive franchisee through just without receiving compensation owners, such material. The just compensation rights property however, case, is not an presented issue no by because owner is property Instead, a to this party action. issue sole before us whether a competing recycling company possesses to in violation of an exclusive operate agreement (for franchise services) recycling authorized state law. Moreover, it is any to note that important exclusive franchise for will handling services to impinge some extent upon economic interests value, owners. Even when dealing having with waste no market exclusive franchise for its collection some disposal may require residents pay rates for waste than handling services these higher particular residents might have able been to negotiate other private enterprise than however, the exclusive franchisee. As discussed previously, cases past repeatedly have affirmed the to enter exclu- authority into municipalities sive franchises that limit the authority individual residents dispose their because of general societal benefits afforded an exclusive franchise—for the assurance that example, all within persons businesses rates, will community be served at reasonable without regard their circumstances, individual and the reduction of the burden of municipality’s supervising the delivery safe of these services.
VI reasons, For the I foregoing believe that the grant of an exclusive city’s franchise Waste Management for handling solid waste services within city limits, including services described in the exclusive franchise Therefore, agreement, was authorized the Act. I would reverse *22 judgment of the Court of and remand Appeal the case to that court with directions to affirm the judgment entered the trial court.
Mosk, J., concurred.