# FILED
December 2, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF A

PPEALS OF TENN ESSEE AT JA CKSON COUNTY OF BENTON, ) ) Plaintiff/Appellant, ) Benton Chancery No. 8828 ) VS. ) Appeal No . 02A01-9802-CH- 00040 ) H & W ENVIRONMENTA L SERVICES, ) and WASTE MA

NAGEMENT, IN C. OF ) TENNESSEE, ) ) Defendants/Appellees. )
APPEAL FROM

THE CHANCE RY COURT O F BENTON CO UNTY AT CAMDEN, TENNESSEE THE HONORABLE WALTON WEST, CHANCELLOR

FRANK M. FLY Murfreesboro, Tennessee Attorney for Appellant EDWIN E. WALLIS, JR. MOSS, BENTON & WALLIS, PLLC Jackson, Tennessee Attorney for Appellee H & W Environment al Services, Inc. JOHN E. QUINN MANIER & H EROD Nashville, Tennessee Attorney for Appellee Waste Management, Inc.

AFFIRMED

ALAN E. HIGHERS, J.

CONCUR: DAVID R. FA

RMER, J. HOLLY KIRBY LI LLARD, J. Benton County appeals the trial court’s order

granting summary judgment to H & W2

Environmental Se rv ices , I nc . ( H& W) and Waste Management, Inc. of Tennessee(Waste Management) and denying summary j udgment to Benton County. For the reasons stated hereafter, we affirm the trial court’s grant of summary judgment.

I. Factual and Procedur al History

H&W is the owner of the West Camden San itary Landfi ll (the Landfill), which is a Class I mu nicipal solid waste disposal facility loc ated in Benton County, Tennessee that collectsmunicipal solid wast e from counties in middle Tenness ee and so uthern K entucky. Waste Management built and operates the Landfill pursuant to a contract with H&W. The waste that is

dispose d of at the

Landfi ll e ither is hauled directly to the Landfill or is transported to Waste Management’s transfer s tation in Nashville,Tennessee.

On December 21, 1992, the Ben t on County Commission v oted unanimously to approve a cont ract that had been proposed by H&W titled “Host Fee Agreement.” The contract was entered into on December 22, 1992 by Benton County th rough itscount y executive and by H&W. The Host Fe e Agreement essentially is a twenty year contract that commenced in August 1993 granting Benton County (along with the cities of Camden and Big Sandy pursuant to a later amendment) the right to dispose of “county was te material” at the Landfill. Section 2.02 of thecontract set the tipping fee to be charg ed for
the disposal of county wast e mate rial at no c harge for up to 75 tons of waste per day during the first ten years of the contract peri od and at $12.00 per ton for up to 75 tons of waste per day for years eleven through twenty of the contract period. The tipping fee to be charged for

the disposal of all county waste material in excess of 75 to ns per day during the entire contract period was set at H&W’s “gate rate.” Section 2 .02 of the contract also established that H&W would pay Benton C ounty one dollar for

each ton of out-of-county waste accepted at

the Landfill duringyears eleven throug h twenty of the contract pe riod. After establishingthe tipping fees for county waste m aterial and the one dollar surcha rge for out-of-county waste i n years eleven throug h twenty, the contract stated: 2.03 These ratesand the $1 per ton host fee to be paid to the3 County during years 11-20

of the Agreement

constitute all host fees and surcharges which shall be levied or assessed by the County or any solid wast

e district f ormed or joined by the County against [H&W] or the . . . Landfill as a re sult of the operationsof the . . . Landfill in Benton County ex cept as otherwise set out herei n. 2.04 These rates include the present s urcharge of $.85per ton imposed by the State of Tenne s see on the disposal of waste in sanitarylandfills. In the event this surch arge is increased or any fee, surcharge, duty, tax, or other charges of any nature is imposed by the federal gov ernme nt, any agency thereof, the State of Tennessee, any agency ther eof, or by any local governmental agencywhich is payable solely by reason of the nature of the operations c ond ucted by [H&W] and any other sales or service taxes

of general application to the operation of the . . . Landfill, [H&W] shall be entitled to an automatic increase in the County Waste MaterialTipping Fee. Such fee, surcharge, duty, tax or other c harge shall immediately be passed through to all County Waste Material disposers in the form of a Tipping Fee increase . .

. .

. . . . 8.02 This Agreement con stitutes the entire agreement and understanding between the parties hereto, andit shall not be considered modified, altered, cha nge d or amended in any respect unless in wr

iting and signed by the parties hereto.
On February 21, 1995, the Benton County Commission enacted Resolution No. 02- 21-23 (the Resolution), which provides:

A surcharge shall be i mpo sed on each ton or vol um e equivalent of municipal s olid waste receiv

ed . . . . The rate ofthe surcharge shall be set . . . and then reviewed periodicallyby the legislative body and adjust ed t o meet expenditures for which

it is imposed.

. . . . Revenue received

from the surcharge may only be expended forsolid waste

management purposes or for purposes related to off-setting cost impaired. Such revenue shall be segregated from the general fund and shall be used only for purposes for which they were

collected. Such surchar ge shall be collected by the operator of th e landfill prior

to authorizing

the disposal of the solid w aste at the landfill. Such surcharge shall be collected by such op erator from the disposer of the solid waste, and shall be re mitted to the county clerk as pr

ovided in this resolution. Thereafter, on April 18, 1995, representa ti ves from both H&W and Waste Management sent letters to the Benton County Executive, notifyi ng him that they viewed the resolution
as being unlawful and in v iolation of the Host Fee Agr eement and that they did not intend to comply with the Res olution’s requirement tha t the Landfill col lect the specified surcharge.4

B enton County filed a complaint see king a declaratory judgment resolving the validity and enforceability of the Resol ution. Subsequently, H&W and Waste Management moved forsummary judgment, initi ally asserting that the Resolution violates the Host Fee Agreement, and later asserting that the Resolution does not conform to the statutory language that authorizes the imposi tion of surcharges. Thereaf ter, Benton County also moved for summary judgment, initially asserting that Tennessee Code Annotated section 68-211-835(e) authorized Benton County to impose the surcharge se t forth i n the Resolution and that such a surcharge d id not violate the terms o f the Host Fee Agreement. (R. at 58-64.) Benton County also later asserted that Tennessee Code Annotated sections 68-211-835(f)and/or (g) authoriz ed Benton County to impose the s urcharge set forth in the Resolution. The trial court thereafter found, “the Resolution does not comply with statutory requi r ements authorizing a surc harge [and] the Resolution i s deemed unenforceable.” Therefore, it granted H&W’s and Waste Management’s motion for summary judgment and denied Benton County’s motion for summar y judgment. Benton County thereafter appealed the trial court’s disposition of the summary judgment motions.

On appeal, we are presented w ith the fo llowing specific i ssues that relate to the propriety of the trial court’s disposition of the summary judgment motion s: 1. Whether, pursuant to subse ction (e), (f), or (g) of Tennessee Code Annotated section 68-211-835, Benton County is authorized to impose the sur charge as set forth in the Resolution. 2. Whether imposition of the surcharge that is set forth in the Resolution w ould violate the terms of the Host Fee Agree ment. As the trial court’s deci sion r ested s olely on questions of law, our review is de novo with
no presumption of correctness for the trial court's findings. Cit yof Tullahoma v. Bedford Count y , 938 S.W.2d 408, 412 (Tenn. 1997); Union Carbide Corp. v . Huddleston , 854 S.W.2d 87, 91 (Ten n.1993).
II. Whether the Resolution is Authorized by §§ 68-211-835(e), (f), or (g)5

Tennessee Code Annotated title 68, chapter 211, part 8, which is referred to as the Sol id W aste Management Act of 1991, expr essly regulates, among other things, the imposition, collection, and use of fees and surc harges by

the state and local governments in relation to

municipal s

olid wast e. It also l imi ts the use of proceeds collected by local gov ernme nts. As the first issue present ed to us requires us to de termine whether the Resolution is authorized by section 68-211-835, we must adhere to principles of statutory construction. “Th e most basic principle of statutory construction i s t o

ascertain and give effect to the legislative intent without unduly restrictingor expanding a statute’s cover age beyond its intended scope.” Owens v. State , 908 S.W.2d 923, 926 (Tenn. 1995); State v. Sliger , 846 S.W.2d 262, 26 3 (Tenn. 1993). “When the words of

a statute are plain and unambiguous, the assumption is ‘that the legislature int ended wh at it wrote and meant what it said.’ The pertinent language must be [applied]
‘ wi thout any forced or subtle construction extending its import.’” McClain v. Hen r y I. Siegel Co. , 834 S.W.2d 295, 296 (Tenn. 1992). Worley v. Weigels, Inc. , 919 S.W.2d 589, 59 3 (Tenn. 1996).
We begin our analysis with subsection (e) of section 68-211 -835, which provides: In order to enco urage regional use of soli d waste disposal facilitieso rincinerators, a county that is host to a solid w aste disposal facility or incinerator used by other counties in the sameregion formed pursuant to this part ma y impose a surcharge on municipal solid wast e received at any such solid waste disposal facility or incinerator by resol ution of its county legislati ve bodies in the region. The s urcharge sha l l be imposed on eac h ton or volume equivalent of municipal solid waste so received. The rev enue received by a county from the surcharge authorized by this subsection shall be expended for solid waste management purposes, or for purposes related to offsetting costs incurred and other i mpacts resulting from the c ount ybeing host to the solid w aste disposal facility or incinerator. If any municipality i n the host county incurs costs as a result of such a municipal s ol id waste facility or incinerator, then the county shall appro pria te funds derived from the surcharge revenue to the municipality which shall be used by the municipality to offset such costs. Tenn. Code Ann. § 68-211-835(e) (Supp. 1998) (emphasis add ed). Bas ed upon the emphasized text quoted above, w e find section 68-211-835(e) to be inapplicable to Benton County. The plain and unambiguous lang uage of subsecti on (e) limits the subsection’s scope and application to counties that host a solid waste dis posal facility whi ch is used by other counties i n the same municipal solid wa ste region formed pursuant to Tennes see6

Code Annotated title 68, chapter 211, part 8. Stated otherwise, the subsection applies only to multi-county solid w

aste regions, and not to single county waste regions, which may also be formed pursuant tosection 68-211-813(a)(1). In the case sub judice , no counties other than Benton County exist w ithin the same municipal soli d waste region. Therefore, the Landfill is not “used by other counties in the same region” and subsection ( e) does not authorize the surcharge set forth in the Reso lution. See City of Tullahoma v. Bedford County , 938 S.W.2d 408, 41 3 n.4 (Tenn. 1997).

Havi ng resolved whether s ubsection (e) provides any authorization for th e Resolution, we next turn our atte ntion to subsecti on (f) of section 68-211-835, which provides, in part:

In addition to any fee authoriz ed by title 5, andto any t ipping fee imposed by any local government u nde r this section, a count y, municipality or sol id waste authority is authorized to impose . . . [a] surcharge on eac h ton of municipal waste received at a solid waste disposal facility or in cinerato r for expenditurefor solid waste collecti on or disposal purposes consistent with this part . . . . Tenn. Code Ann. § 68-211-835(f)(1)(A) (emphasis a dded). While th e surcharge authoriz ed under subsection (f) is restr icted to use “for expenditu re fo r solid waste coll ection or d isposal purpose s,” Bento n County’s Resoluti on estab lishes th at the reve nue rece ive d from i ts surcharge is to be “expended for solid waste management purposes or fo r purposes related to off-setting cost i mpaired [sic].” Initial ly, we note that it appears that the language set fort h in t he Resolution was drafted par tially to mirror the language of subsect ion (e), which allows ex penditure for “solid was te management purposes, or for purposes related to offsetting c osts incurred and other impac ts resultingfrom the county being host to the solid waste disposal facility.” However, because subsection (e) does not authorize the Resolution’s surcharge, we must determine whether the Resolution’s langua ge (“waste management purposes, or for purposes related to of f-setting cost impaired”) comports with subsection (f)’s express limitation requiri ng the pro ceeds to be used “for solid waste collection or disposal purposes.”

We find tha t, while co llection and dispo sal activit ies are un doubted ly types of solid1. T hou g h th e te r m s “ m a n a g e m e n t ” a n d “ col l ecti o n or

d i s p o s a l ” ar e no t ex p r essly d efin e d w ith i n title 6 8 , ch a p t e r 211, part 8 , per tin e n t sta te r e g u l a tion s d efin e “ soli d w a ste d i spo s a l ” a s “ t h e pr ocess of p l a c i n g , con fin i n g , com p a cti n g or cov eri n g sol i d w a ste ex cept w h e n su c h sol i d w a ste is f or re u s e , rem o v a l , recl a m a t i o n , or s a l vage . ” Te n n . C o m p . R. & Re g s . 1200-1- 7-.01 (1997). 7 was t e management activities, the provision “was te management purposes, or for purpo ses related to off-setting cost impaired” is broader in scope tha n “collec tion or disposal purpo ses .” 1 This conclusion is based, in part, upon the legisla ture’s use of this differing terminology in subsections (e) and (f). “In construing a statute the Court must give effect to every word, phr

ase, clause, and sentence . . . to achieve the legislature’s intent.” State
v. Odum , 928 S.W.2d 18, 29 ( Tenn. 1996). C

ourts shoul d presume

that “the legislature used each word in a statute purposely and the use of these words convey ed some intent and had a meaning and purpose.” Tidwell v. Serv omation-Willoughby Co. , 483 S.W.2d 98, 100 (Tenn. 1972). C ourts must further “construe a statute so that no part wi ll be inoperative, superfluous, void, or ins ignificant . . . and further . . . give effect to every word, phrase, clause and sentence” of a statute. General Care Corp. V. Olsen , 707 S.W.2d 642, 646 (Tenn. 1986). Though we find it unnecessary in this case to judiciallydefine “collection
or disposal purposes,” as us ed in subsection (f), we presume that the differing terms used in subsection (e) and the additi onal language (whic h is reflected and u sed i n the Resolution), had independent meaning and purpose and w as not superfluous or insignificant. We therefore conclude that the Resolution, whic h refl ects subsection (e)’s termino logy, does not c omport with subsection ( f)’s express limitati on requiring the procee ds to be used “for solid was te collection or disposal purposes.” Accordi ngly , subsection (f) does not authorize the Resolution, as writ ten . However, assuming the imposition of the Resolution’s surchar ge does not otherwise v iolate the Host Fee Agreement, which we address below, we note that the t rial court corr ectly observed that Benton County could simply enact a new resolution where the revenue would be use d “for solid waste collecti on or disposal purposes.”
Lastly, we turn our att ention to subsection (g) of section 68-211-835, which provides,8

in part: In addition to any power authorized by ti tle 5 , a count y,

municipality

or solid waste authority is a u thorized to impose and collect a solid waste disposal fee. Funds generated from such fees may only be used to es tab lish and maintain solid waste collection and disposal s ervices , including, but not limited to, convenience centers. . . . . The amount o f the fee shall bear a reasonable relations hip to the cost of providing the solid waste disposal serv ices

. Tenn. Code Ann. § 68-211-8 35(g) (emphasis a dded). W e find that su bsection (g) does not authorize the imposition of a surcharge on services provi ded by a private entity. Both the fees and the su rcharges established by section 68-211-835 are “fees” in the sense that they are imposed for the purpose of either “regulating a speci

fic ac t ivity or defrayi ng the cost of providing a service or benefit to the party paying the fee.” See City of Tullahoma
v. Bedford County , 938 S.W.2d 408, 412 (Tenn. 1997). However, the tw o terms, as used in section 68-211-835, have di ffering meanings when read i n context with other plain and unambiguous l anguage set forth in the statute. As used in the statute, the term “surcharge”

pertains to instances w here either the county or a private entity i s providing the service upon which the feeis based, whereas the ter m “fee” pertains to charges imposed that are at least partly i ntended to defray the county’s own direct costs from provi ding the service or

benefit upon which the fee is based . For example, subsecti on (a)’s authorizati on to impose a tippi ng fee on ly a pplies if the county owns the waste disposal facility and is providingthe services upon w hich the fee is based. City of Tullahoma , 938 S.W.2d at 413 n.4. Likewise, s ubsectio n (g)’s aut horizatio n to impo se a solid wa ste dispo sal fee only applies for the county “to establish and maintain solid waste colle ction a nd disposal services.”

In fact, subsection (g) further requires, “[t]h e amount o f t he fee shall bear a reasonable relati on ship to the cost of providing the solid waste disposal services.” Therefore, because subsection (g) clearly contemplates a fee based on services provi ded bya county and not for serv ices providedby

a private entity, and because Benton County’s Resolution promulgates a “fee” for serv ices provi ded by H&W and Waste Management, subsection (g) does not authorize the surcharg e set forth in the Resolution.

In summary, we find that Tennessee Code Annotated section 69-211-835 does not authorize the surcharge set forth in Benton County’s Resoluti on, as it is written. Therefore,9

the trial court properly granted H&W’s and W aste Management’s motion for summary jud gment and properly denied Benton County’s motion for summary judgment o n this basis.
III. Whether the Resolution violates the Host Fee Agreement

Our state Constitution establi shes "[t]hat no retros pective law, or law impai ring the obligations

of contracts, shall be

made." Tenn. Const. art. I § 20. “Retrospective laws are laws that ‘take away or impair vestedrights acquired under existing laws

or create a new obligation, impose a new duty, or attach a new disability in re spect of t ransactions or considerations

already passed.’" Owens v. Truckstops of America , 915 S.W.2d 420 (Tenn. 1996) (quoting Morris v. Gross , 572 S.W.2d 902, 907 (Tenn.1978)). Furthermore, the Solid Waste Manageme nt Act of 1991, up on which Be nton Cou nty asserts authorizes the Resolution, expressly states,“[a] region or soli d waste authority may not impair the obligations

of contr acts ent ered int o before the date o

f approv al of th e region’s plan in violation of the Tennessee Constitution, arti cle I, § 20.” Tenn. Code Ann . § 6 8-211- 815(b)(4) (1996). In this case, the Host Fee Agreement was entered into before the date of approval of Benton County’s waste region plan. Therefore, because H&W’s contractual rightsunder the Host Fee Agreement were already ves ted, the Resolution is invalid if it violates H&W’s rights or Bento n County’s obligati ons under the Host Fee agreement.

As set forth earlier, secti on 2.02 of the Host Fee Agreement establ ished tipping fee rates for the disposal of county waste material and established a one dollar sur charge for each ton of out-of-county waste ac cepted at the Landfill during y ears eleven through twenty of the contract period. Section 2.03 thereafter establis hed that the rates and surcharge set fo rt h in section 2.02 “constitut e all host fees and surcharg es which shall be lev ied or assessed by [Benton] County or a ny solid waste dis trict f or med or joined by [Benton] County against [H&W] or the . . . Landfill as a result of the operationsof the . . . Landfill in Benton County except as otherwise set out

herein.” The Resolution, how ever, sets forth
an additional surcharge for disposing of each ton of municipal solid waste. H&W and2. Benton County further argued that section 2. 04 of the Host Fee Agreement authori zed the i mposition of additi onal surcharges, t hough we find no suppor t for t his content ion based upon the plai n and unambiguous language of sect ion 2.04. 10 Waste M anagement assert that the Resol ution violates section 2.03 of the Host Fe e Agreementb ecause i t is being levied against H&W. In the trial court, Benton C ounty argued that the surcharge, as set forth in the Resolution, is not lev ied or assessed against H&W or the Landfill, but is, instead, levied and asses sed only against “the disposer of the solid waste” because it is to be collected by Waste Management from the disposer of the solid waste. 2

While it is true that

summary judgment is g enerally proper when the basic material f acts are not in dispute, summary judgment is not proper w here different conclusions or inferences could be d rawn from those basic facts. Byrd v. Hall , 847 S.W.2d 208, 211, 212 (Tenn. 1993); Blue Diamond Coal Co. V. Holland-America Ins. Co

. , 671 S.W.2d 829, 834 (Tenn. 1984); Prescott

v. Adams , 627 S.W.2d 134, 138-39 (Tenn. App. 1981). If there is any doubt as to the conclusions to be drawn from a material fact,the motion must be denied because all justifiable inferences are to be drawn in the nonmo vant’s favor. Byrd , 847 S.W.2d at 211, 212. Moreover, while plain and un ambig uo us terms of a written contract are construed as a matter of law, a trie r of fact may be called upon to resol ve the intentof the parties with respect to terms that are not plai n and unambiguous

. F orde v. Fisk Univ. , 661 S.W.2d 883, 88 6 (Tenn. App. 1983).

It would be reasonable to conc lude that a surcharge col lected b y W aste Managem ent from the disposer of solid w aste does not violate the H ost Fee Agreement by concluding

that such a surcharge is, at least in form, imposed against the di sposer and is not imposed against H&W or the Landfill. H owever, a reasonable fact-finder could also conclude that such a surcharge is imposed against the disposer and H&W because such
a surcharge would not simply affect the disposer, but would impose a cost on H&W ’s business, regardless o

f whether

the surcharge was c

ollected from the disposer of waste separate from the Landfill’s tipping fees or was subsequently collected from the Landfill’s
revenues. If the surcharge was collected f rom the disposer of waste suc h that it was11

acc ounted for separate from the Landfill’s tipping fe es, the surcharge would initially increase th e total cost imposed upon disposers of waste (the consumers of services), which would create

an indirect cost to the Landfil l by affecting the total q uantity of services provided by the Landfill o r prices (aside fro m the surcharge) t hat the Landf ill could charge fordisposal of out-of-county waste material or county w

aste material in excess of 75 tons per day. Therefore, we find that the provision “levied . . . against [H&W] or the . . . Landfill” is not plain and unambiguous and that,absent undisputed proof regarding the intent of

the parties as to this provision , the trier of fact must be called upon to determine such intent. Accordin gly, summary judgment for either party on this gr ound would not have been prope r. As such, this issue provides further grounds to affirm the trial court’s denia l o f summary judgment to Benton County, though it does not provide a sep arate ground to support the trial court’ s grant of summary judgment to H&W and Waste Management.

IV. Conclusion

Based upon the for egoing, we affirm the trial court’s disposition of the parties’ summary judgment motions. C osts of this appeal are taxed to Benton County, for which executio n may issue if neces sary.

HIGHERS, J.12

CONCUR:

FARMER, J.

LILLARD, J.