After more than two years and litigation before two separate courts, the Clearfield County Solid Waste Management Plan is officially final. Waste Management Inc. dropped its pending appeal of the Department of Environmental Protection’s approval of Clearfield County’s Solid Waste Management Plan.
The County’s innovative approach to drafting its Plan to support its integrated waste management program drew objections from Waste Management Inc. on multiple grounds, with the underlying theme of the appeal being that the County was attempting to re-implement administrative fees to support recycling programs when such fees had been found violate Act 101 in a series of Commonwealth Court decisions in 2005.
In 2012, with its Solid Waste Management Plan due for revision under Pennsylvania’s Municipal Waste Planning, Recycling and Waste Reduction Act (Act 101), the County put out a Request for Proposal seeking 50 percent capacity for all of Clearfield County’s waste for the next 10 years, as well as an innovative approach to support and help sustain the County’s various waste programs, including not only Act 101 recycling, but other programs such as its illegal dumping enforcement program, tire, appliance and electronics recycling programs, and used oil and antifreeze recycling and disposal.
During the review of the eight proposals submitted, the County scored and ranked the proposals based on a variety of factors, such as the ability to provide more than 50 percent disposal capacity, compliance history, economic factors such as a “not to exceed” tipping fee charged to local haulers, and environmental soundness, which was scored based upon factors including support for the integrated waste programs.
The review resulted in the approval of all county waste being flow controlled to either the Greentree Landfill in Elk County, owned by Advanced Waste Disposal, or to the publicly-owned Wayne Township Landfill in Clinton County.
Greentree Landfill proposed a reduced fee charged to the County to pick up recyclables at the County’s drop-off locations, a savings of approximately $34,000 to the County, and an annual monetary contribution of $27,500 to support the County’s programs.
The Wayne Township landfill offered to pay the County $2.00 for every ton of Clearfield County waste disposed of at its Landfill, for an annual support sum of approximately $7,500. Clearfield County submitted its Plan to the Department under these terms, and the Department approved the Plan.
Waste Management appealed the Department’s approval of the Plan to the Environmental Hearing Board, a quasi-judicial administrative hearing board whose sole function is to review final actions of the Department.
After extensive discovery, covering everything from the makeup of the County’s Solid Waste Advisory Committee to the meaning of the term “not to exceed,” Waste Management filed two separate Motions for Summary Judgment.
They first alleged the RFP constituted an illegal solicitation of fees, and the second concerned the process the County used for scoring the RFP responses and choosing the flow control facilities.
Both motions essentially claimed that the County was in essence requiring that fees be paid to the County to support its recycling program, which would be contrary to the 2005 Commonwealth Court decisions.
The County argued that the support being offered was voluntary in nature, in that no one was required to propose and support whatsoever.
The Environmental Hearing Board denied both motions, and the matter moved to Commonwealth Court on the solicitation issue as an interlocutory appeal by permission. The matter was argued before the Court sitting en banc, and in an opinion authored by Judge Simpson, the Court affirmed the EHB’s decision and remanded the matter back to the EHB for trial.
The Court steered the parties away from the voluntary versus involuntary issue, and directed the parties to focus more on the language of Act 101 itself and whether the County appropriately described and estimated the “avoided costs” of waste processing and disposal in its Plan using the proposals submitted by Greentree and Wayne Township landfills.
The Court cautioned that, going forward, the “avoided costs” approach is clearer with respect to programmatic support and in-kind services as opposed to straight financial contributions.
Prior to trial, Waste Management withdrew its appeal of the Department’s approval of the County’s plan, making that approval administratively final and no longer subject to any kind of challenge in state court.
Other counties whose solid waste plans are coming up for renewal can learn valuable lessons from the litigation surrounding Clearfield’s plan with respect to drafting an RFP and the process for selecting an appropriate responder.
For more information, contact Paul Bruder, Chair of the Environmental and Natural Resources Practice at Rhoads & Sinon LLP in Harrisburg, by sending email to: pbruder@rhoads-sinon.com, or call 717-233-5731.
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