PA's "Right to Dump" Bills: House Bill 1436 and Senate Bill 814

These bills would override local ordinances and forces local governments to accept new or expanded landfills or incinerators. A community, once approached by a waste company (or anyone posing as such), is forced into a process that inevitably leads to a host municipality agreement. (As Rep. Bud George has stated: It isn't an "agreement" if you're powerless to say no.) These bills coerce communities into taking on major health and environmental problems that will affect them long after the waste facility sites are shut down. They threaten democracy on the core local levels.

These "Right to Dump" bills do nothing to stop the amount of garbage being imported into the state, nor do they adequately address environmental responsibilities of landfill owners, or waste reduction and recycling. The bills specifically state that the host municipality agreements may NOT address such critical issues such as water quality protection and monitoring, liners and leachate management or gas management. [This part has been amended out of the House version]

These bills goes so far as to say that funds may be taken OUT of Pennsylvania's recycling fund to partially pay for legal costs of municipalities trying to fight legal battles against waste management companies, which, if the legislation gets passed, they can never win anyway. These Right to Dump bills deny the rights of local citizens to decide if they want a landfill or incinerator in their community, and ultimately, deny their rights to clean air, water, and soil, and to protect their health.

On Monday (6/11), the House Bill (which had a very limited public hearing) was amended to be dramatically better, while the Senate Bill (which had NO public hearings) was amended to be even worse. An explanation of the amendments follows is below.

ACT NOW: Please contact your state senator and representative immediately. The Senate may be voting on this as early as the week of June 18th, 2001. You can find contact information for your state legislators at Project Vote-Smart. If you're not sure of who your legislator is, enter your zip code into Project Vote-Smart's site.

Amendments which have been made to improve HB 1436:

• Binding Arbitration Deleted, but Local Governments Still Can't Say NO: Binding arbitration has been deleted from the bill, but there is still a fair deal of language stating that a "host municipality agreement shall be executed by the owner or operator and the host municipality or municipalities" (p12-13). Also, Section 301.f.1. (p 20) still states: "The owner or operator of a commercial solid waste landfill or resource recovery facility shall provide written notice to each host municipality of its intent to develop a host municipality agreement pursuant to the requirements of this section. For a maximum period of 180 calendar days from the date of receipt of the written notice of intent to develop a host municipality agreement, the owner or operator of the commercial solid waste landfill or resource recovery facility and the host municipality or municipalities shall engage in good faith negotiations to arrive at a host municipality agreement."

• 2 Year Moratorium: establishes a two-year moratorium on all landfill permits to construct, operate or expand a landfill or incinerator. It also freezes permits requesting an increase in daily volume. Permit applications for any of such things (except incinerator expansions) would be returned and will not be reviewed during the 2 year moratorium.

  During and after the moratorium, the DEP shall monitor the remaining capacity of the state's landfills and incinerators (note: the concept of "remaining capacity" doesn't apply to incinerators since they can't "fill up").

  After the moratorium expires, the DEP will still not accept permit modification applications from existing waste facilities unless the facility's remaining capacity drops below 5 years. [Note: Does this mean that incinerators can't be expanded?] The amendment further requires that expansion permits needed to be for 10 years or less capacity.

  Exceptions to the moratorium include:

  • permit renewals or reissuances
  • permit modifications allowing facilities to accept additional types of industrial ("residual") wastes
  • operational modifications that don't affect capacity
  • expansions of facilities with under 5 years remaining capacity so that they can increase up to 10 years remaining capacity
  • emergency situations where the DEP must find in writing that the modification is necessary to prevent a public health or environmental emergency

• Construction & demolition (C&D) waste landfills are now covered by the bill.

• The language of "nuisances" has been changed to "threats to public health and safety" and the section banning mention of groundwater contamination and other safety issues from host municipality agreements has been deleted.

• Host municipality agreements would now be required to contain provisions allowing the agreements to be renegotiated if Congress places restrictions on out-of-state waste.

• The definition of host municipality is now expanded to include municipalities within 1/2 mile of the "footprint" of an existing or proposed facility.

• Language stating that the act should be "liberally" interpreted has been deleted.

• New host municipal agreements shall not last for more than 5 years.

• An existing host municipal agreement which was signed by a local public official who is a convicted felon shall be considered null and void (this is an amendment put in specially to deal with an Allegheny County landfill in Levdansky's district).

• Host municipalities shall be awarded legal fees if they win in an action regarding the Host municipal agreement.

• Traffic impact studies would now be required for all existing and proposed solid waste disposal facilities, not just those within 15 miles of a 4-lane highway.

• Waste facilities must keep records on the names and addresses of haulers who bring waste to their facilities along with such information that they are already required to collect with each shipment, such as waste source, type and weight or volume.

• A $10/ton state tipping fee would be imposed and could fluctuate (in $10/ton increments) based on the total volume of waste disposed of in the state. If the amount of waste dumped in PA stays below the current amount being dumped over a 6 month period (about 12 million tons - half of which is from out-of-state), then the fee could be dropped by $10/ton. If the amount of waste dumped in PA exceeds the current dumping levels of about 12 million tons in half a year, then the fee could be raised by $10/ton. Changes in this fee would be up to the discretion of DEP and could grow as high as $70/ton. The tipping fees would be charged to the waste facility operators.

  NOTE: Should anyone argue that this fee would be an unfair burden on waste facility operators, trash customers or anyone else, PLEASE point out that it's up to the PA waste industry as a whole to decide whether there will even be a fee, since they have the option to avoid taking more waste than they already accept. If they stay just below current dumping levels, the fee could be rolled back to ZERO within 6 months.

  Waste haulers may pass the increased costs along to their customers in surcharges equivalent to the amount of the Municipal Enhancement Consideration Fee.

  The fee must is to be spent on the following:

  At least:
  10% on Fire & Emergency
  10% on Libraries
  10% on Recycling Development
  10% on Early Childhood Tuition Grants
  10% on Keystone Opportunity Zone Development (a.k.a. corporate welfare)
  10% on Agricultural and Mining Related Grants to Local Watersheds
  10% on Local Department of Transportation Hazardous Material Elimination
  10% on Grants for Municipal Improvements as approved by the Governor
  10% on a Weed & Seed Program

  Up to 3% can be used on collecting and enforcing the fee.

Bad Amendments to HB 1436 and SB 814:

• The requirement for a transporter compliance study and report (one of the best parts of the bill) has been deleted. [This amendment appeared only in HB 1436.]

• Recycling Fund to be destroyed: 16th years after the Municipal Enhancement Consideration Fee becomes effective, all money left gets transferred to the Solid Waste Abatement Fund (some 10% of this fee is to go to recycling). In the 19th year, all left-over money in the Recycling Fund gets transferred to the Solid Waste Abatement Fund as well. [This amendment appeared only in HB 1436.]

• DEP shall (used to be "may") reimburse host municipalities for legal costs incurred in try to fight off waste companies in legal battles which they're not allowed to win, anyway in the course of developing a host municipal agreement. This would also raid the Recycling Fund for these purposes.

• Secret negotiations: Negotiations between the host municipality and the waste company would not be subject to state's Open Meetings Law (a.k.a. the Sunshine Act)

• Public notice of host municipality agreement process was cut back from 3 notices to 1 and the notice went from at least 30 days in advance to between 10 and 30 days in advance. (Section 301.c.1)

• Local ordinances are still overridden, but only to the extent that any language in the Host Municipal Agreement contradicts existing local ordinances. The host municipality would be required to reword their existing ordinance within 90 days. [As long as the "agreements" aren't optional, this constitutes pre-emption of local governments and flies in the face of local control and democracy.]

• When there is a conflict between the Host Municipal Agreement and the regulations that DEP must enforce for the permitting of waste facilities, the DEP would now be empowered to determine which is stricter or more restrictive. In this process, DEP is to consider public comment by any potentially affected party. Knowing DEP and the waste industry, this could be construed to allow DEP to listen to industry comments arguing creative definitions of "stricter" which might subvert state laws and regulations.

• Several minor changes have been made to transportation section of the Senate Bill. One of the most significant changes is one that makes it optional for DEP to require annual registration fees for haulers. [These amendments appeared only in SB 814.]

• Civil penalties would no longer apply to enforcement of provisions of Host Municipal Agreements. [This amendment appeared only in SB 814.]

• Arbitrated Host Municipal Agreements would last 10 years. [This amendment appeared only in SB 814.]

Last modified: 30 July 2001

http://www.actionpa.org/waste/pawastebill.html