PRINTER'S NO. 190
No. 189 Session of 2003
INTRODUCED BY BOSCOLA, LAVALLE, COSTA, RAFFERTY, RHOADES, KITCHEN AND O'PAKE, FEBRUARY 5, 2003
REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY, FEBRUARY 5, 2003
AN ACT 1 Amending the act of July 28, 1988 (P.L.556, No.101), entitled 2 "An act providing for planning for the processing and 3 disposal of municipal waste; requiring counties to submit 4 plans for municipal waste management systems within their 5 boundaries; authorizing grants to counties and municipalities 6 for planning, resource recovery and recycling; imposing and 7 collecting fees; establishing certain rights for host 8 municipalities; requiring municipalities to implement 9 recycling programs; requiring Commonwealth agencies to 10 procure recycled materials; imposing duties; granting powers 11 to counties and municipalities; authorizing the Environmental 12 Quality Board to adopt regulations; authorizing the 13 Department of Environmental Resources to implement this act; 14 providing remedies; prescribing penalties; establishing a 15 fund; and making repeals," defining "affected municipality"; 16 further providing for powers and duties of the Department of 17 Health and for host municipality benefit fee; authorizing an 18 affected municipality benefit fee; further providing for 19 unlawful conduct; and making editorial changes. 20 The General Assembly of the Commonwealth of Pennsylvania 21 hereby enacts as follows: 22 Section 1. The title of the act of July 28, 1988 (P.L.556, 23 No.101), known as the Municipal Waste Planning, Recycling and 24 Waste Reduction Act, is amended to read: 25 AN ACT 26 Providing for planning for the processing and disposal of
1 municipal waste; requiring counties to submit plans for 2 municipal waste management systems within their boundaries; 3 authorizing grants to counties and municipalities for 4 planning, resource recovery and recycling; imposing and 5 collecting fees; establishing certain rights for host 6 municipalities; requiring municipalities to implement 7 recycling programs; requiring Commonwealth agencies to 8 procure recycled materials; imposing duties; granting powers 9 to counties and municipalities; authorizing the Environmental 10 Quality Board to adopt regulations; authorizing the 11 Department of Environmental [Resources] Protection to 12 implement this act; providing remedies; prescribing 13 penalties; establishing a fund; and making repeals. 14 Section 2. The definitions of "department" and "secretary" 15 in section 103 of the act are amended and the section is amended 16 by adding a definition to read: 17 Section 103. Definitions. 18 The following words and phrases when used in this act shall 19 have the meanings given to them in this section unless the 20 context clearly indicates otherwise: 21 * * * 22 "Affected municipality." A municipality within one mile of 23 the proposed facility, that is on an approach route to a 24 facility regulated by this act or that is otherwise adversely 25 impacted by a facility. 26 * * * 27 "Department." The Department of Environmental [Resources] 28 Protection of the Commonwealth and its authorized 29 representatives. 30 * * * 20030S0189B0190 - 2 -
1 "Secretary." The Secretary of Environmental [Resources] 2 Protection of the Commonwealth. 3 * * * 4 Section 3. Section 510 of the act is amended by adding 5 subsections to read: 6 Section 510. Permit requirements. 7 * * * 8 (c) Community health risks study.--The department shall not 9 issue any approval or permit under this act or the Solid Waste 10 Management Act relating to the siting, operation or expansion of 11 a municipal waste landfill until a community health risks study 12 has been performed and submitted to the department. A community 13 health risks study shall be conducted at all existing facilities 14 by the department in conjunction with the Department of Health 15 and paid for by the applicant or operator within one year of the 16 effective date of this subsection. The department shall consider 17 the study when reviewing new permit applications, applications 18 for permit renewals and permits for the expansion of existing 19 facilities. The study shall examine, measure and report on the 20 health risks to the residents of the host municipalities and 21 affected municipalities. 22 (d) Term of permits.-- 23 (1) Any permit issued pursuant to this act shall be 24 issued for a fixed term consistent with the approved 25 operation and design plans of the municipal waste landfill, 26 and shall not exceed ten years. No municipal waste may be 27 disposed of or processed at a municipal waste landfill after 28 the expiration of its permit term. Expiration of the permit 29 term does not limit the operator's responsibility for 30 complying with requirements under this act, the other 20030S0189B0190 - 3 -
1 environmental protection acts, regulations thereunder or the 2 terms or conditions of the department's permits. 3 (2) The department shall from time to time, but at 4 intervals not to exceed two years, review a permit issued 5 under this act. In its review, the department shall evaluate 6 the permit to determine whether it reflects currently 7 applicable operating requirements as well as current 8 technology and management practices. The department may 9 require modification, suspension or revocation of the permit 10 when necessary to carry out the purposes of this act or the 11 environmental protection laws of this Commonwealth. 12 Section 4. Section 511(a) of the act is amended to read: 13 Section 511. Site limitation. 14 (a) General rule.--The department shall not issue a permit 15 for, nor allow the operation of, a new municipal waste landfill, 16 a new commercial residual waste treatment facility or a new 17 resource recovery facility within 300 yards of any occupied 18 dwelling or a building which is owned by a school district or a 19 parochial school and used for instructional purposes, parks or 20 playgrounds existing prior to the date the department has 21 received an administratively complete application for a permit 22 for such facilities. This subsection shall not affect any 23 modification, extension, addition or renewal of existing 24 permitted facilities. 25 * * * 26 Section 5. The act is amended by adding a section to read: 27 Section 514. Public participation in expansion of existing 28 facilities. 29 (a) General rule.--Upon receiving an application to operate, 30 an application to modify a permit or an application to expand an 20030S0189B0190 - 4 -
1 existing municipal waste landfill, the department, in 2 conjunction with the county, the host municipality and any 3 affected municipality, shall conduct not fewer than three public 4 hearings for the purpose of receiving information on the permit 5 modification. At least 30 days prior to conducting such public 6 hearings, the department shall publish notice of the hearing in 7 a newspaper of general circulation in the host municipality and 8 affected municipalities. 9 (b) Places of public hearings.--Public hearings shall be 10 conducted in the following areas: 11 (1) One in the host municipality. 12 (2) One in at least one affected municipality. 13 (3) One in one other appropriate location in the county. 14 (c) Purpose of public hearings.--The public hearings shall 15 solicit information from members of the public and local 16 officials regarding: 17 (1) Odor control. 18 (2) Community health risks. 19 (3) Traffic patterns and traffic volume as a result of 20 increased waste hauling in the host municipality and affected 21 municipalities. 22 (4) Emergency planning and response mechanisms for the 23 host municipalities and affected municipalities. 24 (5) Infrastructure support for the host municipalities 25 and affected municipalities. 26 (d) Summary of hearings.--After a hearing, the department 27 shall prepare a summary of the written and oral comments 28 submitted at the hearings, the department's responses to the 29 comments and the reasons therefor. The department shall provide 30 copies of this summary to the governing bodies of the host 20030S0189B0190 - 5 -
1 municipalities, affected municipalities, any persons who 2 submitted comments and to other persons who request a copy. 3 (e) Construction with regulation or policy.--The public 4 hearings authorized by this section shall supplement but shall 5 not supersede the hearings and comment periods authorized by any 6 department regulation or policy. 7 Section 6. Section 1111(b) and (d) of the act are amended to 8 read: 9 Section 1111. Protection of capacity. 10 * * * 11 (b) Determination.--The permit condition shall be determined 12 in the following manner: 13 (1) The applicant shall notify the host county [and], 14 host municipality and any affected municipality upon filing 15 an application for permit pursuant to subsection (a). Within 16 60 days after receiving written notice from the applicant 17 that an application has been filed with the department, the 18 host county [and], host municipality and affected 19 municipality shall provide written notice to the applicant 20 and the department if it intends to negotiate with the 21 applicant. If the host county [and], host municipality and 22 affected municipality do not provide such notice and, if the 23 permit is issued, the permit condition shall state that no 24 waste capacity is reserved for the host county [and], host 25 municipality and affected municipality. The negotiation 26 period shall commence upon the date of receipt of the written 27 notice to the applicant from the host county and host 28 municipality and shall continue for 30 days. The issues to be 29 considered in negotiations shall include, but not be limited 30 to, the weight or volume of capacity reserved to a host 20030S0189B0190 - 6 -
1 county [and], host municipality and affected municipality and 2 an increase in the average volume of waste up to the amount 3 of capacity set aside for municipal waste generated within 4 the host county [and], host municipality and affected 5 municipality. 6 (2) If the host county [and], host municipality, 7 affected municipality and the applicant agree to a weight or 8 volume of waste capacity to be reserved for the host county 9 [and], host municipality and affected municipality, they 10 shall notify the department in writing. 11 (3) If the host county [and], host municipality, 12 affected municipality and the applicant have failed to reach 13 an agreement within the 30-day negotiation period, then 14 either party to the dispute, after written notice to the 15 other party containing specifications of the issue or issues 16 in dispute, may request the appointment of a board of 17 arbitration pursuant to paragraph (7). Such notice shall be 18 made in writing to the other party within five days of the 19 end of the negotiation period. In making the decision as to 20 the terms of the agreement, the board shall consider among 21 other things the availability of disposal alternatives to the 22 host county [and], host municipality and affected 23 municipality. Should the host county [and], host municipality 24 and affected municipality fail to request arbitration within 25 five days, then the permit condition shall state that no 26 waste capacity is reserved for the host county [and], host 27 municipality and affected municipality. 28 (4) If the county and municipality elect to negotiate 29 with the applicant pursuant to this section, any agreement or 30 arbitration award shall provide, unless the host county 20030S0189B0190 - 7 -
1 [and], host municipality, affected municipality and applicant 2 agree otherwise, that the county and [municipality] 3 municipalities shall utilize the capacity reserved in an 4 agreed-upon time frame. 5 (5) Should the applicant and the host county [and], host 6 municipality and affected municipality be unable to agree to 7 the terms of the agreement governing such utilization within 8 30 days of an agreement or an arbitration award as to the 9 weight or volume of waste capacity to be reserved in the 10 facility, either party can request the appointment of an 11 arbitration board pursuant to paragraph (7). In making the 12 decision as to the terms of the agreement for utilization, 13 the board shall consider, among other things, the weight or 14 volume of capacity reserved to a host county [and], host 15 municipality and affected municipality under any permit 16 issued pursuant to this section, an increase in the average 17 volume of waste in an amount up to the amount of capacity set 18 aside for municipal waste generated within the host county 19 [and], host municipality and affected municipality, the 20 financial viability of the facility and the terms, including 21 the rates per ton for disposal, of the contracts entered into 22 by the applicant for use of the facility by other than the 23 host county and host municipality. 24 (6) Except as provided in paragraph (1), the department 25 shall not issue any permit under this section unless it has 26 received written notice of an agreement between the applicant 27 and host county [and], host municipality and affected 28 municipality as to the weight or volume of capacity to be 29 reserved for the host county and host municipality as 30 provided in paragraph (2) or unless it has received written 20030S0189B0190 - 8 -
1 notice that a Board of Arbitration appointed pursuant to 2 paragraph (7) has settled all issues in dispute between the 3 host county [and], host municipality, the affected 4 municipality and the applicant. The department shall include 5 a permit condition reserving such capacity provided for in 6 such agreements or arbitration awards. 7 (7) The board of arbitration shall be composed of three 8 persons, one appointed by the applicant, one appointed by the 9 host county and host municipality and a third member to be 10 agreed upon by the applicant and such host county and host 11 municipality. The members of the board representing the 12 applicant and the host county and host municipality shall be 13 named within five days from the date of the request for the 14 appointment of such board. If, after a period of ten days 15 from the date of the appointment of the two arbitrators 16 appointed by the host county and host municipality and the 17 applicant, the third arbitrator has not been selected by 18 them, then either arbitrator may request the American 19 Arbitration Association, or its successor in function, to 20 furnish a list of three members of said association who are 21 residents of Pennsylvania from which the third arbitrator 22 shall be selected. The arbitrator appointed by the applicant 23 shall eliminate one name from the list within five days after 24 publication of the list, following which the arbitrator 25 appointed by the host county and host municipality shall 26 eliminate one name from the list within five days thereafter. 27 The individual whose name remains on the list shall be the 28 third arbitrator and shall act as chairman of the board of 29 arbitration. The board of arbitration thus established shall 30 commence the arbitration proceedings within ten days after 20030S0189B0190 - 9 -
1 the third arbitrator is selected and shall make its 2 determination within 30 days after the appointment of the 3 third arbitrator. 4 * * * 5 (d) Consultation.--The host county shall consult with the 6 host municipality and any affected municipality as part of the 7 procedure set forth under this section. 8 * * * 9 Section 7. The heading of Chapter 13 of the act is amended 10 to read: 11 CHAPTER 13 12 [HOST MUNICIPALITY] BENEFIT [FEE] FEES 13 Section 8. Sections 1301, 1302, 1303, 1304, 1305 and 1510(f) 14 of the act are amended to read: 15 Section 1301. Host municipality and affected municipality 16 benefit fee. 17 (a) Imposition.--There is imposed a host municipality 18 benefit fee and an affected municipality benefit fee upon the 19 operator of each municipal waste landfill or resource recovery 20 facility that has a valid permit on the effective date of this 21 act or receives a new permit or permit that results in 22 additional capacity from the department under the Solid Waste 23 Management Act after the effective date of this act. The fee 24 shall be paid to the host municipality and affected 25 municipality. If the host municipality owns or operates the 26 landfill or facility, the fee shall not be imposed for waste 27 generated within such municipality. If the landfill or facility 28 is located within more than one host municipality, the fee shall 29 be apportioned among them according to the percentage of the 30 permitted area located in each municipality. 20030S0189B0190 - 10 -
1 (b) Amount.--The host municipality fee is $1 per ton of 2 weighed solid waste or $1 per three cubic yards of volume- 3 measured solid waste for all solid waste received at a landfill 4 or facility. The affected municipality fee is 50¢ per ton of 5 weighted solid waste or 50¢ per three cubic yards of volume- 6 measured solid waste for all solid waste received at a landfill 7 or facility. Any amounts paid by an operator to a host 8 municipality or affected municipality pursuant to a preexisting 9 agreement shall serve as a credit against the fee amount imposed 10 by this section. 11 (c) Municipal options.--Nothing in this section or section 12 1302 shall prevent a host municipality or affected municipality 13 from receiving a higher fee or receiving the fee in a different 14 form or at different times than provided in this section and 15 section 1302, if the host municipality or affected municipality 16 and the operator of the municipal waste landfill or resource 17 recovery facility agree in writing. 18 (d) Supersede.--The fee imposed by this section shall 19 preempt and supersede any tax imposed on each municipal waste 20 landfill or resource recovery facility under the act of December 21 31, 1965 (P.L.1257, No.511), known as The Local Tax Enabling 22 Act, which is in excess of the amount imposed on or before 23 December 31, 1987. 24 (e) County options.--Nothing in this act shall prevent a 25 host county from negotiating a fee or fee in a different form, 26 if the host county and the operator of the municipal waste 27 landfill or resource recovery agree in writing. Any county which 28 has negotiated a fee as of the effective date of this act may 29 require that the fee be continued. 30 Section 1302. Form and timing of host municipality benefit fee 20030S0189B0190 - 11 -
1 payment. 2 (a) Quarterly payment.--Each operator subject to section 3 1301 shall make the host municipality benefit fee payment and 4 the affected municipality benefit fee payment quarterly. The fee 5 shall be paid on or before the 20th day of April, July, October 6 and January for the three months ending the last day of March, 7 June, September and December. 8 (b) Quarterly reports.--Each host municipality benefit fee 9 payment and affected municipality benefit fee payment shall be 10 accompanied by a form prepared and furnished by the department 11 and completed by the operator. The form shall state the weight 12 or volume of solid waste received by the landfill or facility 13 during the payment period and provide any other information 14 deemed necessary by the department to carry out the purposes of 15 this act. The form shall be signed by the operator. A copy of 16 the form shall be sent to the department at the same time that 17 the fee and form are sent to the host municipality and affected 18 municipality. 19 (c) Timeliness of payment.--An operator shall be deemed to 20 have made a timely payment of the host municipality benefit fee 21 if all of the following are met: 22 (1) The enclosed payment is for the full amount owed 23 pursuant to this section, and no further host municipality or 24 affected municipality action is required for collection. 25 (2) The payment is accompanied by the required form and 26 such form is complete and accurate. 27 (3) The letter transmitting the payment that is received 28 by the host municipality and affected municipality is 29 postmarked by the United States Postal Service on or prior to 30 the final day on which the payment is to be received. 20030S0189B0190 - 12 -
1 (d) Discount.--Any operator that makes a timely payment of 2 the host municipality benefit fee and the affected municipality 3 benefit fee as provided in this section shall be entitled to 4 credit and apply against the fee payable by him a discount of 1% 5 of the amount of the fee collected by him. 6 (e) Alternative proof.--For purposes of this section, 7 presentation of a receipt indicating that the payment was mailed 8 by registered or certified mail on or before the due date shall 9 be evidence of timely payment. 10 Section 1303. Collection and enforcement of fee. 11 (a) Interest.--If an operator fails to make a timely payment 12 of the host municipality benefit fee or the affected 13 municipality benefit fee, the operator shall pay interest on the 14 unpaid amount due at the rate established pursuant to section 15 806 of the act of April 9, 1929 (P.L.343, No.176), known as The 16 Fiscal Code, from the last day for timely payment to the date 17 paid. 18 (b) Additional penalty.--In addition to the interest 19 provided in subsection (a), if an operator fails to make timely 20 payment of the host municipality benefit fee or the affected 21 municipality benefit fee, there shall be added to the amount of 22 fee actually due 5% of the amount of such fee, if the failure to 23 file a timely payment is for not more than one month, with an 24 additional 5% for each additional month, or fraction thereof, 25 during which such failure continues, not exceeding 25% in the 26 aggregate. 27 (c) Assessment notices.--If the host municipality determines 28 that any operator of a municipal waste landfill or resource 29 recovery facility has not made a timely payment of the host 30 municipality benefit fee or the affected municipality benefit 20030S0189B0190 - 13 -
1 fee, it will send a written notice for the amount of the 2 deficiency to such operator within 30 days from the date of 3 determining such deficiency. When the operator has not provided 4 a complete and accurate statement of the weight or volume of 5 solid waste received at the landfill or facility for the payment 6 period, the host municipality may estimate the weight or volume 7 in its deficiency notice. 8 (d) Constructive trust.--All host municipality benefit fees 9 or affected municipality benefit fees collected by an operator 10 and held by such operator prior to payment to the host 11 municipality or affected municipality shall constitute a trust 12 fund for the host municipality and the affected municipality, 13 and such trust shall be enforceable against such operator, its 14 representatives and any person receiving any part of such fund 15 without consideration or with knowledge that the operator is 16 committing a breach of the trust. However, any person receiving 17 payment of lawful obligation of the operator from such fund 18 shall be presumed to have received the same in good faith and 19 without any knowledge of the breach of trust. 20 (e) Manner of collection.--The amount due and owing under 21 section 1301 shall be collectible by the host municipality or 22 the affected municipality in the manner provided in section 23 1709. 24 (f) Remedies cumulative.--The remedies provided to host 25 municipalities or the affected municipalities in this section 26 are in addition to any other remedies provided at law or in 27 equity. 28 Section 1304. Records. 29 Each operator that is required to pay the host municipality 30 benefit fee or the affected municipality benefit fee shall keep 20030S0189B0190 - 14 -
1 daily records of all deliveries of solid waste to the landfill 2 or facility, as required by the host municipality, including, 3 but not limited to, the name and address of the hauler, the 4 source of the waste, the kind of waste received and the weight 5 or volume of the waste. Such records shall be maintained in 6 Pennsylvania by the operator for no less than five years and 7 shall be made available to the host municipality for inspection 8 upon request. 9 Section 1305. Surcharge. 10 The provisions of any law to the contrary notwithstanding, 11 the operator of any municipal waste landfill or resource 12 recovery facility subject to section 1301 may collect the host 13 municipality benefit fee and the affected municipality benefit 14 fee as a surcharge on any fee schedule established pursuant to 15 law, ordinance, resolution or contract for solid waste disposal 16 or processing operations at the landfill or facility. In 17 addition, any person who collects or transports solid waste 18 subject to the host municipality benefit fee and the affected 19 municipality benefit fee to a municipal waste landfill or 20 resource recovery facility subject to section 1301 may impose a 21 surcharge on any fee schedule established pursuant to law, 22 ordinance, resolution or contract for the collection or 23 transportation of solid waste to the landfill or facility. The 24 surcharge shall be equal to the increase in processing or 25 disposal fees at the landfill or facility attributable to the 26 host municipality benefit fee. However, interest and penalties 27 on the fee under section 1303(a) and (b) may not be collected as 28 a surcharge. 29 Section 1510. Lead acid batteries. 30 * * * 20030S0189B0190 - 15 -
1 (f) Enforcement.--The Department of Environmental 2 [Resources] Protection shall enforce this section. 3 Section 9. The act is amended by adding a section to read: 4 Section 1716. Multiple violations. 5 (a) General rule.--Any operator of a municipal waste 6 landfill that is found to have engaged in a significant 7 violation of the provisions of this act or the Solid Waste 8 Management Act on three separate occasions within a five-year 9 period shall not be granted any new permit, permit expansion or 10 permit modification by the department for a period of five 11 years. Prior to the adjudication of a third violation, the 12 department shall notify the operator of its intention to proceed 13 pursuant to this section before the Environmental Hearing Board. 14 (b) Notice.--No action may be commenced under this section 15 prior to 60 days after the department has given notice of the 16 third violation to the host municipality, to any affected 17 municipality and to any alleged violator of this act, of any 18 other environmental protection act or of the regulations or 19 orders of the department which have allegedly been violated. 20 (c) Definition.--As used in this section, the term 21 "significant violation" means violations that may harm or 22 threaten to seriously harm the environment, harm or threaten to 23 seriously harm public health or safety, or interfere with or 24 jeopardize the integrity of the monitoring system used by an 25 agency. 26 Section 10. Section 1901 of the act is amended to read: 27 Section 1901. Report to General Assembly. 28 The Secretary of Environmental [Resources] Protection shall 29 prepare a report to the General Assembly concerning the 30 implementation of this act and the success of county and 20030S0189B0190 - 16 -
1 municipal recycling programs. This report shall be transmitted 2 to the General Assembly no later than April 1, 1991, and shall 3 be revised, and modified if necessary, at least once every three 4 years thereafter. 5 Section 11. The amendment of sections 1111(b) and (d), 1301, 6 1302, 1303, 1304 and 1305 of the act shall only be applicable to 7 the siting of new municipal waste landfills which are issued 8 permits for operation after the effective date of this act. 9 Section 12. This act shall take effect in 60 days. A7L27JS/20030S0189B0190 - 17 -