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Bill 3317

COMMITTEE REPORT

May 26, 1999

H. 3317

Introduced by Reps. Sharpe, Davenport, Witherspoon, R. Smith, Limehouse and Altman

S. Printed 5/26/99--H.

Read the first time January 20, 1999.

To whom was referred a Bill (H. 3317), to amend the Code of Laws of South Carolina, 1976, by adding Section 44-96-85 so as to establish requirements that apply to the displacement of a private company, etc., respectfully

That they have duly and carefully considered the same, and recommend that the same do pass with amendment:

Amend the bill, as and if amended, by striking all after the enacting words and inserting:

/SECTION 1. Chapter 96, Title 44 of the 1976 Code is amended by adding:

"Section 44-96-85. (A) For purposes of this section:

(1) 'Displace' means any action by a local government which prohibits or has the effect of prohibiting a private company from providing all or a portion of the collection services for solid waste or recovered materials or both which the company is providing at the time of final approval of the action which would displace the private company. Provided, the term 'displace' does not include:

(a) situations where a local government, at the end of a franchise agreement or contract with a private company, does not renew the franchise agreement or contract and, following a competitive procurement process, either awards the contract to another private company or public entity or decides to provide such collection services itself; or

(b) situations where action is taken against a private company because the company's operations present an imminent and substantial threat to human health and safety or are causing a substantial public nuisance.

(2) 'Local government' means a county, municipality, authority, or political subdivision which is authorized by law to provide for collection of solid waste or recovered materials or both.

(B) Notwithstanding any other provision of law, a local government must not displace a private company providing collection services for solid waste or recovered materials or both unless the local government complies with the requirements of subsections (C) and (D) of this section.

(C) Prior to displacing a private company, the local government must provide public notice of the intent to take an action which will displace a private company by publishing notice of such intent in at least one newspaper of general circulation in the area in which the local government and the proposed displacement area are located thirty days prior to the first vote by the governing body of the local government on approval of the action to displace a private company. The notice shall specify the area or areas in which a private company will be displaced.

(D) Following the public notice required by subsection (C) of this section, but in no event longer than six months after the public notice pursuant to subsection (C), the local government may proceed to take measures necessary to provide collection services for solid waste or recovered materials or both; provided, however, that the local government or other public or private entity selected by the local government may not commence the actual provision of these services unless the local government provides a one-year notice which shall run from the date of final approval of the action which would displace a private company, except that if the private company ceases to provide these services, this notice period terminates and the local government may proceed to provide these services itself or through another public or private entity.

(E) Notwithstanding any other provision of law, if a local government violates a one-year notice period provided for in subsection (D) of this section, the aggrieved private company may bring an action in circuit court for injunctive relief or monetary damages or both. If the court determines that subsection (D) has been violated by the local government, the court may award the private company bringing the action under this section reasonable attorney's fees and costs.

(F) This section does not apply to actions taken by a local government pursuant to a contract or franchise between that local government and a private company providing collection services under the contract or franchise. This section further does not apply to the transport of solid waste or recovered materials or both from a transfer station or convenience center owned or operated by a local government."

SECTION 2. This act takes effect upon approval by the Governor./

Renumber sections to conform.

Amend totals and title to conform.

CHARLES R. SHARPE, for Committee.

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 44-96-85 SO AS TO ESTABLISH REQUIREMENTS THAT APPLY TO THE DISPLACEMENT OF A PRIVATE COMPANY PROVIDING COLLECTION SERVICES FOR SOLID WASTE OR RECOVERED MATERIALS OR BOTH.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. The 1976 Code is amended by adding:

"Section 44-96-85. (A) For purposes of this section:

(1) 'Displace' means any action by a local government which prohibits or has the effect of prohibiting a private company from providing all or a portion of the collection services for solid waste or recovered materials or both which the company is providing at the time the decision to displace is made. The term 'displace' does not include the following:

(a) situations where a local government, at the end of a franchise agreement or contract with a private company, does not renew the franchise agreement or contract and, following a competitive procurement process, either awards the contract to another private company or public entity or decides to provide such collection services itself;

(b) situations where action is taken against a private company because the company's operations present an imminent and substantial threat to human health and safety or are causing a substantial public nuisance;

(c) situations where action is taken against a private company because the company has materially breached its franchise agreement or contract with the local government; or

(d) situations where a private company refuses to continue operations under the terms and conditions of its existing franchise agreement or contract during the remaining term of that franchise agreement or contract.

(2) 'Local government' means a county, municipality, authority, or political subdivision which is authorized by law to provide for collection of solid waste or recovered materials or both.

(B) Notwithstanding any other provision of law, a local government must not displace a private company providing collection services for solid waste or recovered materials or both within that local government unless the local government complies with the requirements of subsections (C) and (D) of this section.

(C) Prior to displacing a private company, the local government must:

(1) hold at least one public hearing seeking comment on the advisability of the local government providing these services itself or providing these services through another public or private entity;

(2) provide at least forty-five days written notice of the hearing, delivered by first class mail, to all private companies which provide collection services for solid waste or recovered materials or both either within the local government or within the proposed displacement area; and

(3) provide public notice of the hearing by publishing notice of the time and place of the hearing in at least one newspaper of general circulation in the area in which the local government and the proposed displacement area are located not less than fifteen days prior to the date of the hearing.

(D) Following the public hearing required by subsection (C) of this section, but in no event longer than one year after the public hearing, the local government may proceed to take measures necessary to provide collection services for solid waste or recovered materials or both; provided, however, that the local government or other public or private entity selected by the local government may not commence the actual provision of these services unless:

(1) the local government provides five years notice or, if there is a franchise agreement or contract between the private company and the local government, the local government provides notice equal to the remaining term of that franchise agreement or contract to the private company before the local government displaces the private company, except that if the private company ceases to provide these services, this notice period terminates and the local government may proceed to provide these services itself or through another public or private entity; or

(2) the local government provides compensation to the displaced private company in an amount equal to the previous twenty-four months gross receipts for collection services provided in the displacement area. If the local government elects to provide compensation, it must pay the displaced private company in full within sixty days of the displacement or, if the displacement occurs in phases, within sixty days of the initial phase of the displacement."

SECTION 2. This act takes effect upon approval by the Governor.

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