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                                                      PRINTER'S NO. 1202

THE GENERAL ASSEMBLY OF PENNSYLVANIA


SENATE BILL

No. 911 Session of 2005


        INTRODUCED BY BOSCOLA, FONTANA, RHOADES, O'PAKE AND RAFFERTY,
           OCTOBER 11, 2005

        REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY, OCTOBER 11, 2005


                                     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     * * *
    20050S0911B1202                  - 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 may not
     9  issue an 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)  A permit issued pursuant to this act shall be issued
    24     for a fixed term consistent with the approved operation and
    25     design plans of the municipal waste landfill, and may not
    26     exceed ten years. No municipal waste may be disposed of or
    27     processed at a municipal waste landfill after the expiration
    28     of its permit term. Expiration of the permit term does not
    29     limit the operator's responsibility for complying with
    30     requirements under this act, the other environmental
    20050S0911B1202                  - 3 -     

     1     protection acts, regulations thereunder or the terms or
     2     conditions of the department's permit.
     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 acts.
    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
    20050S0911B1202                  - 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
    20050S0911B1202                  - 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
    20050S0911B1202                  - 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
    20050S0911B1202                  - 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
    20050S0911B1202                  - 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
    20050S0911B1202                  - 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.
    20050S0911B1202                 - 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
    20050S0911B1202                 - 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.
    20050S0911B1202                 - 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
    20050S0911B1202                 - 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
    20050S0911B1202                 - 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     * * *
    20050S0911B1202                 - 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 a violation 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
    20050S0911B1202                 - 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 section.
     9     Section 12.  This act shall take effect in 60 days.














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