CLEARFIELD – After more than two years of litigation, Waste Management has pulled the plug on its appeal of the state Department of Environmental Protection’s (DEP) approval of the revised Clearfield County solid waste management plan.
On Aug. 7, the Environmental Hearing Board accepted Waste Management’s withdrawal of the appeal. It also cancelled the trial scheduled to be heard Sept. 29 on the matter, said Solicitor Kim Kesner during Tuesday’s regular Clearfield County Commissioners’ meeting.
Approximately two years ago, Waste Management filed an appeal of the DEP’s approval of the county’s revised 10-year solid waste management plan. Waste Management objected to the county’s “innovative” approach to support integrated waste management programs, said Kesner.
In 2012 Clearfield County was required to revise its solid waste management plan and requested proposals. The county requested 50 percent capacity for all of its waste for the next 10 years, according to the commissioners.
The commissioners said they also requested that the submitted proposals contain an innovative approach to help support and sustain the county’s waste programs, such as recycling, illegal dumping enforcement, tire, appliance and electronics recycling and used oil and antifreeze recycling and disposal.
During the review, the commissioners scored and ranked eight proposals. When their review was completed the commissioners approved that all county waste be taken to either Veolia Greentree landfill in Elk County, now owned by Advanced Waste Disposal, or the Wayne Township landfill in Clinton County.
So far as the “innovative approach,” Advanced Waste Disposal proposed a reduced fee charged to the county to pick up recyclables at its drop-off locations, a savings of approximately $34,000, as well as an annual voluntary contribution of $27,500 to support the county’s programs, according to the commissioners.
In addition, the Wayne Township landfill offered to pay the county $2 for every ton of Clearfield County waste disposed of there and for an annual support of approximately $7,500. “Clearfield County submitted its plan to the department (DEP) under these terms, and the department approved the plan,” said the commissioners.
The commissioners said that approximately two years ago, Waste Management appealed the DEP’s approval of the county’s revised solid waste management plan to the Environmental Hearing Board. Then after extensive discovery, they said that Waste Management proceeded to file two, separate motions for summary judgment.
According to the commissioners, the first one alleged the request for proposals constituted an illegal solicitation of fees. The second involved the process by which the county used for scoring the proposals and selecting flow control facilities. “Both motions essentially claimed that the county was requiring that fees be paid to the county to support its recycling program, which would be contrary to the 2005 Commonwealth Court decisions,” said the commissioners.
“The Environmental Hearing Board denied both motions, and the matter moved to Commonwealth Court. The court affirmed the Environmental Hearing Board’s decision and remanded the matter back to the board for trial.”
The commissioners said county officials had been preparing testimony for trial to support the DEP’s decision to approve the revision to its 10-year solid waste management plan.
“However, the county has been notified of a dismissal order, approving the request by Waste Management Inc. to discontinue and end the appeal. This action now makes the approval administratively final and no longer subject to any kind of challenge in state court,” said the commissioners.
Kesner said Clearfield County’s victory over Waste Management wasn’t “some minor thing.” He wanted the public to understand the significance of this victory in full context.
According to him, Act 101 was enacted in 1988 and required counties to formulate solid waste disposal plans for the first time. These plans were to be submitted to the DEP for final approval and to be revised every 10 years. Also, he said Act 101 required counties to pursue recycling and waste reduction programs.
However, Pennsylvania legislature has left counties struggling to comply with what Act 101 compels them to do, and legislature hasn’t been willing to belly up to the bar and fill the void. During the past 10 years, Clearfield County’s recycling programs have faced an impending deficit. “That’s been the problem statewide,” said Kesner.
The other problem, Kesner said, is that Pennsylvania has excess landfill capacity. He said this has made it even harder on recycling programs, as it’s cheaper to put garbage in a landfill. He called attention to the fact that Pennsylvania has seen an influx in out-of-state waste. In 2014, Kesner said that 6 million tons of New York and New Jersey waste was disposed of in Pennsylvania.
Kesner said the commissioners must be commended for two successes. He said they successfully opposed PA Waste’s permit for a new landfill and developed an innovative approach by asking the waste disposal industry to voluntarily offer support to Clearfield County’s recycling and waste reduction programs.
The more than two years of litigation with Waste Management was costly for the county, as was it to fight PA Waste on the landfill permit, said Kesner. He said people may ask why the commissioners didn’t take that money and use it for their recycling and waste reduction programs.
“The reason is there’s a much bigger picture here,” he said. “That would have only put a Band-Aid over a wound. It would neither be doing anything to stem the influx of out-of-state waste nor placing any obligation on disposal as a disincentive to put waste in landfills rather than to recycle.”
Commissioner Mark B. McCracken said the county’s special counsel, Paul Bruder, commented to him that Clearfield County’s approach to sustaining its recycling and waste reduction program will serve as a model for other counties in Pennsylvania. “It’s not often that you get to be the lead county,” he said.
Solid Waste Authority Director Jodi Brennan said that she has received at least 10 e-mails from peers across the state. She said they have been thanking Clearfield County for showing leadership and providing a model for how other counties can try to save their recycling and waste reduction programs.