PRINTER'S NO. 1428
No. 1164 Session of 2007
INTRODUCED BY WANSACZ, SURRA, GOODMAN, GIBBONS, CURRY, EACHUS,
GERGELY, GRUCELA, KIRKLAND, KOTIK, McILHATTAN, M. O'BRIEN,
PETRONE, SWANGER, WALKO AND YOUNGBLOOD, APRIL 25, 2007
REFERRED TO COMMITTEE ON ENVIRONMENTAL RESOURCES AND ENERGY,
APRIL 25, 2007
AN ACT
1 Requiring host municipality agreements for certain municipal and
2 residual waste facilities; and providing for proximity to
3 State parks.
4 TABLE OF CONTENTS
5 Section 1. Short title.
6 Section 2. Legislative findings and declaration of policy.
7 Section 3. Definitions.
8 Section 4. Construction of act.
9 Section 5. Host municipality agreements.
10 Section 6. Proximity to State parks.
11 Section 7. Enforcement.
12 Section 8. Civil penalties.
13 Section 9. Regulations.
14 Section 10. Severability.
15 Section 11. Repeals.
16 Section 12. Effective date.
17 The General Assembly of the Commonwealth of Pennsylvania
1 hereby enacts as follows:
2 Section 1. Short title.
3 This act shall be known and may be cited as the Host
4 Municipality Agreement Act.
5 Section 2. Legislative findings and declaration of policy.
6 (a) Legislative findings.--The General Assembly hereby
7 determines, declares and finds that:
8 (1) Solid waste practices create public health hazards,
9 environmental pollution and nuisances and can cause
10 irreparable harm to the public health, safety and welfare.
11 (2) All aspects of solid waste management, particularly
12 the disposal of solid waste, pose a critical threat to the
13 health, safety and welfare of the residents of this
14 Commonwealth when solid waste is improperly managed.
15 (3) The Commonwealth is responsible for the protection
16 of the health, safety and welfare of its residents concerning
17 solid waste management.
18 (4) The construction and expansion of commercial solid
19 waste landfills and resource recovery facilities usually
20 consumes natural lands, thereby impinging upon wildlife
21 habitat and the public's use and enjoyment of the natural
22 resources, including air, water and natural scenic, historic
23 and esthetic values of the environment.
24 (5) Concentrated traffic in the vicinity of commercial
25 solid waste landfills and resource recovery facilities can
26 contribute to and cause substantial harm to this
27 Commonwealth's roadways and environment and to the health and
28 safety of the residents of this Commonwealth.
29 (6) Communities in the areas located near and along the
30 approach routes to commercial solid waste landfills and
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1 resource recovery facilities experience traffic problems,
2 litter, odors, noise, dust and other nuisances that are
3 threats to public health and safety resulting from the
4 operation of the facilities and from the transportation of
5 waste to these facilities.
6 (b) Purposes and goals.--The purposes and goals of this act
7 are to:
8 (1) Provide municipalities across this Commonwealth with
9 the ability to control the disposal of solid waste in their
10 communities.
11 (2) Enhance the protection of the public health, safety
12 and welfare from the short-term and long-term dangers
13 associated with the disposal of solid waste.
14 (3) Implement section 27 of Article I of the
15 Constitution of Pennsylvania.
16 (4) Conserve the environment and the natural resources
17 of this Commonwealth.
18 (5) Limit the magnitude of environmental and
19 transportation problems in and around communities which host
20 commercial solid waste landfills or resource recovery
21 facilities.
22 (6) Provide for greater local input from affected
23 residents and communities in the planning of commercial solid
24 waste landfills and resource recovery facilities.
25 (7) Protect residents of the communities affected by
26 commercial solid waste landfills and resource recovery
27 facilities from unnecessary traffic problems, litter, odors,
28 noise, dust and other nuisances that are threats to public
29 health and safety which may result from the operation of the
30 facilities and from the transportation of waste to these
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1 facilities.
2 Section 3. Definitions.
3 (a) General rule.--Unless specifically defined in this
4 section, the terms in this act have the same meaning as provided
5 in the act of July 7, 1980 (P.L.380, No.97), known as the Solid
6 Waste Management Act, or the act of July 28, 1988 (P.L.556,
7 No.101), known as the Municipal Waste Planning, Recycling and
8 Waste Reduction Act, or regulations of the Department of
9 Environmental Protection promulgated thereunder.
10 (b) Definitions.--As used in this section, the following
11 words and phrases shall have the meanings given to them in this
12 subsection:
13 "Commercial solid waste landfill." A landfill permitted or
14 proposed for permitting under the act of July 7, 1980 (P.L.380,
15 No.97), known as the Solid Waste Management Act, for the
16 disposal of municipal waste, residual waste, construction and
17 demolition waste or mixed municipal and residual waste,
18 including mixed municipal or residual waste and construction and
19 demolition debris. The term does not include a captive residual
20 waste facility.
21 "Department." The Department of Environmental Protection of
22 the Commonwealth and its authorized representatives.
23 "Expansion modification." An application for permit
24 modification filed by an owner or operator of a commercial solid
25 waste landfill or resource recovery facility which requests an
26 expansion, either laterally or vertically, of a permit area.
27 "Host municipality." A municipality other than the county
28 which meets one of the following criteria:
29 (1) a commercial solid waste landfill or resource
30 recovery facility or any portion of a permit area is located
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1 or proposed to be located within the municipality; or
2 (2) the municipality is located within one mile of the
3 footprint of a permit area of a proposed or operating
4 commercial solid waste landfill or resource recovery
5 facility.
6 "Host municipality agreement." A written, legally binding
7 document or documents executed by authorized officials of each
8 host municipality and an owner or operator of a commercial solid
9 waste landfill or resource recovery facility.
10 "Municipal Waste Planning, Recycling and Waste Reduction
11 Act." The act of July 28, 1988 (P.L.556, No.101), known as the
12 Municipal Waste Planning, Recycling and Waste Reduction Act.
13 "Permit." A permit issued pursuant to the act of July 7,
14 1980 (P.L.380, No.97), known as the Solid Waste Management Act.
15 "Solid Waste Management Act." The act of July 7, 1980
16 (P.L.380, No.97), known as the Solid Waste Management Act.
17 "Volume modification." An application for permit
18 modification filed by an owner or operator of a commercial solid
19 waste landfill or resource recovery facility which requests an
20 increased in average or maximum daily waste volume.
21 Section 4. Construction of act.
22 (a) Liberal construction.--This act shall be liberally
23 construed so as best to achieve and effectuate the goals and
24 purposes of this act.
25 (b) Pari materia.--This act shall be construed in pari
26 materia with the Solid Waste Management Act, the Municipal Waste
27 Planning, Recycling and Waste Reduction Act and sections 1935-A
28 and 1936-A of the act of April 9, 1929 (P.L.177, No.175), known
29 as The Administrative Code of 1929.
30 Section 5. Host municipality agreements.
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1 (a) General rule.--Each host municipality may enter into
2 negotiations for the development of a host municipality
3 agreement. If a host municipality agreement is developed, the
4 governing body of each host municipality shall vote to adopt or
5 reject the agreement.
6 (b) Public notice and public involvement requirements.--
7 (1) If negotiations are entered into, each host
8 municipality shall publish notice that discussions for
9 developing a host municipality agreement with the commercial
10 solid waste landfill or resource recovery facility have
11 begun. The notice also shall describe the public involvement
12 process that the host municipality will use to develop the
13 agreement. The notice shall be published once a week for
14 three consecutive weeks in a newspaper of general circulation
15 in the municipality where the facility or proposed facility
16 is located. The public involvement process shall, at a
17 minimum, include the following:
18 (i) The host municipality shall hold a special
19 public hearing at which a proposed host municipality
20 agreement is presented to the public and at which the
21 public is provided an opportunity to provide oral and
22 written testimony. Notice of the hearing shall be
23 published in a newspaper of general circulation in the
24 municipality not less than ten days nor more than 30 days
25 prior to the hearing. A public comment period of no less
26 than 30 calendar days shall be provided after the public
27 hearing to accept written comments on the proposed host
28 municipality agreement.
29 (ii) The host municipality shall hold a special
30 public meeting at which revisions to the proposed host
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1 municipality agreement are presented to the public by the
2 municipality, including changes to the proposed host
3 municipality agreement that were adopted after the public
4 hearing and public comment period. The public shall be
5 provided a reasonable opportunity to ask questions to the
6 host municipality on the host municipality agreement and
7 to provide public comment. Notice of the hearing shall be
8 published in a newspaper of general circulation in the
9 municipality not less than ten days nor more than 30 days
10 prior to the hearing.
11 (iii) The host municipality shall publish the
12 decision on adopting or rejecting the final agreement
13 within 30 calendar days of acting.
14 (2) The public involvement process may contain
15 additional public notice and involvement in a manner
16 determined by the municipality.
17 (c) Contents of agreement.--
18 (1) A host municipality agreement agreed to and executed
19 by the parties shall address the following:
20 (i) The nature of the proposed facility.
21 (ii) The site of the proposed facility or expansion
22 of the existing facility.
23 (iii) Measures to alleviate local issues, such as
24 haul routes, traffic problems, litter, odors, noise, dust
25 and any other nuisances that might result from the
26 operation of the facility. Such local issues shall be
27 identified by the host municipality.
28 (iv) The host benefit fee to be paid by the owner or
29 operator of the facility to the host municipality, which
30 fee shall not be less than the statutory minimum fee
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1 established under the Municipal Waste Planning, Recycling
2 and Waste Reduction Act and any other financial and in-
3 kind contributions.
4 (v) The maximum and daily average waste volume to be
5 received at the facility.
6 (vi) The days and hours of operation of the
7 facility.
8 (vii) The availability of capacity at the facility
9 for the disposal of solid waste generated within the host
10 municipality.
11 (viii) Activities to promote recycling, waste
12 reduction and the proper management and disposal of solid
13 waste generated within the host municipality.
14 (ix) The process for resolution in a cooperative and
15 nonbinding manner of complaints and other grievances
16 concerning the construction and operation of the
17 facility.
18 (x) Provision for access to the facility and its
19 records by the host municipality inspector.
20 (xi) A statement that if Congress enacts a law that
21 places restrictions on out-of-State waste, the host
22 municipality may renegotiate its host municipality
23 agreement in regard to out-of-State waste.
24 (2) A host municipality agreement agreed to and executed
25 by the parties may address any other terms or conditions to
26 which the parties agree should be included in the agreement.
27 (d) Requirement for host municipality agreement.--
28 (1) The department shall revoke the permit of any
29 currently permitted commercial solid waste landfill or
30 resource recovery facility that does not execute a host
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1 municipality agreement in accordance with the schedule
2 established in this section.
3 (2) For a commercial solid waste landfill or resource
4 recovery facility for which a host municipality agreement was
5 executed prior to or on the effective date of this act,
6 except as provided in paragraphs (3) and (4), a new host
7 municipality agreement shall be:
8 (i) executed by the owner or operator and the host
9 municipality or municipalities on the date the existing
10 host municipality agreement expires or five years after
11 the effective date of this act, whichever occurs first;
12 and
13 (ii) submitted to the department for review within
14 30 days of execution.
15 (3) For a commercial solid waste landfill or resource
16 recovery facility for which:
17 (i) no host municipality agreement has been executed
18 as of the effective date of this act; or
19 (ii) a host municipality agreement was executed on
20 or before the effective date of this act but which
21 agreement expires within two years of the effective date
22 of this act,
23 a host municipality agreement shall be executed by the owner
24 or operator and the host municipality or municipalities
25 within two years of the effective date of this act and
26 submitted to the department for review within 30 days of
27 execution.
28 (4) For any commercial solid waste landfill or resource
29 recovery facility for which a host municipality agreement was
30 executed prior to or on the effective date of this act but
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1 which has not begun to accept solid waste as of the effective
2 date of this act, a new host municipality agreement shall be
3 executed by the owner or operator and the host municipality
4 or municipalities within two years of the effective date of
5 this act and submitted to the department for approval within
6 30 days of execution.
7 (5) A new host municipality agreement for each host
8 municipality shall be executed in accordance with this
9 section and submitted to the department for review for any
10 expansion modification or volume modification filed by an
11 owner or operator of a commercial solid waste landfill or
12 resource recovery facility after the effective date of this
13 act.
14 (6) A host municipality agreement shall be executed in
15 accordance with this section by an owner or operator and the
16 host municipality or municipalities and shall be submitted to
17 the department for review for any new commercial solid waste
18 landfill or resource recovery facility.
19 (e) Relationship to permit applications.--
20 (1) An application for a permit, volume modification or
21 expansion modification for a commercial solid waste landfill
22 or resource recovery facility which is submitted to the
23 department for review after the effective date of this act
24 shall only be accepted as administratively complete under
25 section 512(a) of the Municipal Waste Planning, Recycling and
26 Waste Reduction Act and the regulations promulgated
27 thereunder if it includes written evidence that a host
28 municipality agreement complies with the requirements of this
29 section and has been executed by the applicant and each host
30 municipality. Such written evidence shall be contained as
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1 part of the application.
2 (2) An application for a permit, volume modification or
3 expansion modification for a commercial solid waste landfill
4 or resource recovery facility which is submitted to the
5 department for review on, before or after the effective date
6 of this act shall be issued by the department only if a host
7 municipality agreement that complies with this section has
8 been executed by the applicant and each host municipality.
9 The department shall not issue the permit or permit
10 modification until an executed host municipality agreement
11 has been submitted to the department.
12 (f) Department review of host municipality agreements.--
13 (1) For all host municipality agreements submitted to
14 the department for review under this section, the department
15 shall review each executed host municipality agreement to
16 ensure that the agreement addresses the requirements of
17 subsection (c)(1) and also to ensure that there has been
18 compliance with the public notice and public comment
19 requirements of subsection (b).
20 (2) The department shall review the terms and conditions
21 of the host municipality agreement that address subsection
22 (c)(1)(iii), (v), (vi), (vii) and (viii) to ensure the terms
23 and conditions of the host municipality agreement are not in
24 conflict with the terms and conditions of the existing or
25 proposed permit and applicable regulations. Where the
26 department determines there is a conflict between the terms
27 and conditions of the host municipality agreement and the
28 terms and conditions of the regulations or existing or
29 proposed permit, the more stringent or restrictive
30 requirement or condition as determined by the department
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1 shall apply. In making its determination, the department
2 shall consider any comments submitted by any affected or
3 potentially affected party. The department shall modify the
4 permit to incorporate any such term or condition, including
5 any term or condition that is not addressed in the proposed
6 or existing permit.
7 (g) Enforcement of host municipality agreement.--
8 (1) The terms of a host municipality agreement shall be
9 enforceable by the parties to the agreement. The courts of
10 common pleas are hereby given jurisdiction over disputes
11 between the host municipality and the facility owner or
12 operator regarding the enforcement of a host municipality
13 agreement.
14 (2) A host municipality which is successful in an action
15 brought under this subsection to enforce an agreement
16 involving a facility owner or operator shall be awarded
17 reasonable attorney fees and costs of litigation.
18 (h) Reimbursement of host municipality costs.--At the
19 request of a host municipality, the department shall reimburse
20 the host municipality for costs incurred in negotiating a host
21 municipality agreement under this section. Costs covered shall
22 be limited to costs incurred for professional fees for lawyers,
23 engineers and other professionals used in the efforts to reach
24 an agreement. Any reimbursement shall be provided from funds in
25 the recycling fund established by section 706 of the Municipal
26 Waste Planning, Recycling and Waste Reduction Act or in the
27 Solid Waste Abatement Fund established under section 701 of the
28 Solid Waste Management Act, upon approval by the Governor.
29 Reimbursement shall not exceed $50,000 for each host
30 municipality agreement. The combined total reimbursement from
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1 the two funds shall not exceed $750,000 annually or $2,500,000
2 over a five-year period from the effective date of this act.
3 (i) Relationship to other laws.--
4 (1) To the extent the terms of a host municipality
5 agreement differ from any existing ordinance adopted pursuant
6 to section 304(b) of the Municipal Waste Planning, Recycling
7 and Waste Reduction Act and concerning:
8 (i) the hours and days during which vehicles may
9 deliver waste to the commercial solid waste facility or
10 resource recovery facility; or
11 (ii) the routing of traffic to and from the
12 commercial solid waste landfill or resource recovery
13 facility,
14 the host municipality shall amend the ordinance to comply
15 with the agreement within 90 days of the adoption of the host
16 municipality agreement.
17 (2) Host municipality agreements shall be executed by
18 the parties in the manner provided for in this act and shall
19 not be subject to competitive bidding or other competitive
20 procurement requirements.
21 (3) The provisions of section 1305 of the Municipal
22 Waste Planning, Recycling and Waste Reduction Act shall be
23 applicable to any host benefit fee set forth in any host
24 municipality agreement executed pursuant to this act.
25 (4) Except as required by this section, the discussions
26 for developing a host municipality agreement shall not be
27 subject to the requirements of 65 Pa.C.S. Ch. 7 (relating to
28 open meetings).
29 Section 6. Proximity to State parks.
30 No new municipal waste or residual waste landfill or resource
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1 recovery facility may be permitted to operate within 2,500 feet
2 of a Pennsylvania State park.
3 Section 7. Enforcement.
4 (a) Orders.--
5 (1) The department may issue orders to persons and
6 municipalities as it deems necessary to aid in the
7 enforcement of this act. An order issued under this act shall
8 take effect upon notice unless the order specifies otherwise.
9 (2) An appeal to the Environmental Hearing Board shall
10 not act as a supersedeas.
11 (3) The power of the department to issue an order under
12 this act is in addition to any other remedy which may be
13 afforded to the department pursuant to this act or any other
14 act.
15 (b) Duty to comply with orders of department.--It shall be
16 the duty of any person and municipality to proceed diligently to
17 comply with any order issued pursuant to this section. If the
18 person or municipality fails to proceed diligently or fails to
19 comply with the order within the time, if any, as may be
20 specified, the person or municipality shall be guilty of
21 contempt and shall be punished by the court in an appropriate
22 manner and, for this purpose, application may be made by the
23 department to the court.
24 Section 8. Civil penalties.
25 (a) Authority.--
26 (1) In addition to proceeding under any other remedy
27 available at law or in equity for a violation of any
28 provision of this act, any rule or regulation of the
29 department or order of the department, the department may
30 assess a civil penalty upon a person for the violation. The
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1 penalty may be assessed whether or not the violation was
2 willful or negligent.
3 (2) In determining the amount of the penalty, the
4 department shall consider the willfulness of the violation,
5 damage to air, water, land or other natural resources of this
6 Commonwealth or their uses, cost or restoration and
7 abatement, savings resulting to the person in consequence of
8 the violation and other relevant factors.
9 (3) The maximum civil penalty that may be assessed
10 pursuant to this section is $25,000 per offense. Each
11 violation for each separate day and each violation of any
12 provision of this act, any rule or regulation under this act,
13 any order of the department or any term or condition of a
14 permit or permits shall constitute a separate and distinct
15 offense under this section.
16 (b) Procedure.--
17 (1) When the department proposes to assess a civil
18 penalty, it shall inform the person of the proposed amount of
19 the penalty. The person charged with the penalty shall then
20 have 30 calendar days to pay the proposed penalty in full or,
21 if the person wishes to contest the amount of the penalty or
22 the fact of the violation to the extent not already
23 established, the person shall forward the proposed amount of
24 the penalty to the Environmental Hearing Board within the 30-
25 calendar day period for placement in an escrow account with
26 the State Treasurer or any Commonwealth bank or post an
27 appeal bond to the hearing board within 30 calendar days in
28 the amount of the proposed penalty if the bond is executed by
29 a surety licensed to do business in this Commonwealth and is
30 satisfactory to the department.
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1 (2) If through administrative or final judicial review
2 of the proposed penalty it is determined that no violation
3 occurred or that the amount of the penalty shall be reduced,
4 the hearing board shall within 30 calendar days remit the
5 appropriate amount to the person with any interest
6 accumulated by the escrow deposit.
7 (3) Failure to forward the money or the appeal bond at
8 the time of the appeal shall result in a waiver of all legal
9 rights to contest the violation or the amount of the civil
10 penalty unless the appellant alleges financial inability to
11 prepay the penalty or to post the appeal bond. The hearing
12 board shall conduct a hearing to consider the appellant's
13 alleged inability to pay within 30 calendar days of the date
14 of the appeal.
15 (4) The hearing board may waive the requirement to
16 prepay the civil penalty or to post an appeal bond if the
17 appellant demonstrates and the hearing board finds that the
18 appellant is financially unable to pay. The hearing board
19 shall issue an order within 30 calendar days of the date of
20 the hearing to consider the appellant's alleged inability to
21 pay.
22 (5) The amount assessed after administrative hearing or
23 after waiver of administrative hearing shall be payable to
24 the Commonwealth and shall be collectible in any manner
25 provided by law for the collection of debts, including the
26 collection of interest at the legal rate, which shall run
27 from the date of assessment of the penalty.
28 (6) If any person liable to pay a penalty neglects or
29 refuses to pay the same after demand, the amount, together
30 with interest and any costs that may accrue, shall constitute
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1 a debt of the person, as may be appropriate, to the Solid
2 Waste Abatement Fund. The debt shall constitute a lien on all
3 property owned by the person when a notice of lien
4 incorporating a description of the property of the person
5 subject to the action is filed with the prothonotary of the
6 court of common pleas where the property is located.
7 (7) The prothonotary shall promptly enter upon the civil
8 judgment or order docket, at no cost to the department, the
9 name and address of the person, as may be appropriate, and
10 the amount of the lien as set forth in the notice of lien.
11 Upon entry by the prothonotary, the lien shall attach to the
12 revenues and all real and personal property of the person,
13 whether or not the person is solvent.
14 (8) The notice of lien, filed pursuant to this
15 subsection, which affects the property of the person shall
16 create a lien with priority over all subsequent claims or
17 liens which are filed against the person, but it shall not
18 affect any valid lien, right or interest in the property
19 filed in accordance with established procedure prior to the
20 filing of a notice of lien under this subsection.
21 Section 9. Regulations.
22 The Environmental Quality Board shall have the power and its
23 duty shall be to adopt the regulations of the department to
24 accomplish the purposes and to carry out the provisions of this
25 act.
26 Section 10. Severability.
27 The provisions of this act are severable. If any provision of
28 this act or its application to any person or circumstance is
29 held invalid, the invalidity shall not affect other provisions
30 or applications of this act which can be given effect without
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1 the invalid provision or application.
2 Section 11. Repeals.
3 All acts and parts of acts are repealed insofar as they are
4 inconsistent with this act.
5 Section 12. Effective date.
6 This act shall take effect immediately.
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