Is the IWMA’s proposed Styrofoam ban illegal?

Ray Beiring

By KAREN VELIE

While arguments rage over a proposed countywide ordinance to ban Styrofoam food containers, a retired San Luis Obispo County deputy county counsel contends the Integrated Waste Management Authority (IWMA) does not have authority to pass ordinances.

The California Constitution grants only cities and counties power to pass ordinances —  not joint powers authorities such as SLO County’s IWMA.

The California Government Code specifies rules regarding city and county ordinances. Title 1 of the Government Code list the authorities of joint powers authorities, which does not include the ability to pass ordinances.

John Daly, an attorney who worked in the county counsel’s officer for more than 30 years, said the IWMA is operating outside of its legal jurisdiction.

“It is a rogue agency,” Daly said. “The IWMA is not permitted to enact ordinances.”

The IWMA was formed in 1994 under a joint powers agreement between San Luis Obispo County and the cities of Arroyo Grande, Atascadero, Grover Beach, Morro Bay, Paso Robles, Pismo Beach, San Luis Obispo, and the Community Service Districts. The IWMA’s mission is to plan and implement regional solid waste and hazardous waste programs.

In addition to questions over the IWMA’s authority to pass ordinance, the IWMA Joint Powers Agreement does not permit the passage of any rules that take away the authority of its members.

“The authority is formed with the purpose and intent of facilitating the development of programs that provide economies of scale without interfering with individual agencies’ exercise of power within their own jurisdictions,” according to the joint powers agreement.

SLO County Supervisor Bruce Gibson asked the IWMA board to consider the Styrofoam ban because it was unlikely to be passed by the SLO County Board of Supervisors. In passing the plastic bag ban, former Grover Beach council member Karen Bright was the swing vote, even though the majority of the members of the Grover Beach City Council were opposed to the ban.

Since 2008, the IWMA has passed eight ordinances that could be contested.

For example, in 2008 the IWMA board passed an ordinance requiring all retailers who sell batteries to have a battery return program. Retailers were then billed by the IWMA for collection of the batteries by a private company owned by Charles Tenborg, with the IWMA then paying Tenborg’s company. This is just one of several ordinances that have financially benefited Tenborg.

IWMA legal counsel Ray Beiring has participated in the creation of the IWMA’s ordinances, which incorporate fines of up to $1,000 per day and six months in jail under Penal Code Section 853.6, which refers to violations of city and county ordinances. Beiring said SLO County Superior Court Judge James Crandall ruled the IWMA is permitted to enact ordinances.

“The authority of the IWMA to adopt ordinances was upheld by Judge Crandall in the Save the Plastic Bags v. IWMA case years ago,” Beiring wrote in an email this week.

Attorney Stephen L. Joseph, who worked on behalf of the Save the Plastic Bag Coalition, said the judge did not rule on the IWMA’s ability to enact ordinances, but over environmental impact report requirements.

“I did not address the IWMA’s authority to make ordinances,” Joseph said. “The judge’s ruling does not address the authority to make ordinances.”

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