THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY BOSCOLA, FONTANA AND RAFFERTY, APRIL 23, 2009

REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY, APRIL 23, 2009  

AN ACT

Amending the act of July 28, 1988 (P.L.556, No.101), entitled

"An act providing for planning for the processing and

disposal of municipal waste; requiring counties to submit

plans for municipal waste management systems within their

boundaries; authorizing grants to counties and municipalities

for planning, resource recovery and recycling; imposing and

collecting fees; establishing certain rights for host

municipalities; requiring municipalities to implement

recycling programs; requiring Commonwealth agencies to

procure recycled materials; imposing duties; granting powers

to counties and municipalities; authorizing the Environmental

Quality Board to adopt regulations; authorizing the

Department of Environmental Resources to implement this act;

providing remedies; prescribing penalties; establishing a

fund; and making repeals," defining "affected municipality";

further providing for powers and duties of the Department of

Health and for host municipality benefit fee; authorizing an

affected municipality benefit fee; providing for effect of

multiple violations; and making editorial changes.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  The title of the act of July 28, 1988 (P.L.556,

No.101), known as the Municipal Waste Planning, Recycling and

Waste Reduction Act, is amended to read:

AN ACT

Providing for planning for the processing and disposal of

municipal waste; requiring counties to submit plans for

municipal waste management systems within their boundaries;

authorizing grants to counties and municipalities for

planning, resource recovery and recycling; imposing and

collecting fees; establishing certain rights for host

municipalities; requiring municipalities to implement

recycling programs; requiring Commonwealth agencies to

procure recycled materials; imposing duties; granting powers

to counties and municipalities; authorizing the Environmental

Quality Board to adopt regulations; authorizing the

Department of Environmental [Resources] Protection to

implement this act; providing remedies; prescribing

penalties; establishing a fund; and making repeals.

Section 2.  The definitions of "department" and "secretary"

in section 103 of the act are amended and the section is amended

by adding a definition to read:

Section 103.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

* * *

"Affected municipality."  A municipality within one mile of

the proposed facility, that is on an approach route to a

facility regulated by this act or that is otherwise adversely

impacted by a facility.

* * *

"Department."  The Department of Environmental [Resources]

Protection of the Commonwealth and its authorized

representatives.

* * *

"Secretary."  The Secretary of Environmental [Resources]

Protection of the Commonwealth.

* * *

Section 3.  Section 510 of the act is amended by adding

subsections to read:

Section 510.  Permit requirements.

* * *

(c)  Community health risks study.--The department may not

issue an approval or permit under this act or the Solid Waste

Management Act relating to the siting, operation or expansion of

a municipal waste landfill until a community health risks study

has been performed and submitted to the department. A community

health risks study shall be conducted at all existing facilities

by the department in conjunction with the Department of Health

and paid for by the applicant or operator within one year of the

effective date of this subsection. The department shall consider

the study when reviewing new permit applications, applications

for permit renewals and permits for the expansion of existing

facilities. The study shall examine, measure and report on the

health risks to the residents of the host municipalities and

affected municipalities.

(d)  Term of permits.--

(1)  A permit issued pursuant to this act shall be issued

for a fixed term consistent with the approved operation and

design plans of the municipal waste landfill, and may not

exceed ten years. No municipal waste may be disposed of or

processed at a municipal waste landfill after the expiration

of its permit term. Expiration of the permit term does not

limit the operator's responsibility for complying with

requirements under this act, the other environmental

protection acts, regulations thereunder or the terms or

conditions of the department's permit.

(2)  The department shall from time to time, but at

intervals not to exceed two years, review a permit issued

under this act. In its review, the department shall evaluate

the permit to determine whether it reflects currently

applicable operating requirements as well as current

technology and management practices. The department may

require modification, suspension or revocation of the permit

when necessary to carry out the purposes of this act or the

environmental protection acts.

Section 4.  Section 511(a) of the act is amended to read:

Section 511.  Site limitation.

(a)  General rule.--The department shall not issue a permit

for, nor allow the operation of, a new municipal waste landfill,

a new commercial residual waste treatment facility or a new

resource recovery facility within 300 yards of any occupied

dwelling or a building which is owned by a school district or a

parochial school and used for instructional purposes, parks or

playgrounds existing prior to the date the department has

received an administratively complete application for a permit

for such facilities. This subsection shall not affect any

modification, extension, addition or renewal of existing

permitted facilities.

* * *

Section 5.  The act is amended by adding a section to read:

Section 514.  Public participation in expansion of existing

facilities.

(a)  General rule.--Upon receiving an application to operate,

an application to modify a permit or an application to expand an

existing municipal waste landfill, the department, in

conjunction with the county, the host municipality and any

affected municipality, shall conduct not fewer than three public

hearings for the purpose of receiving information on the permit

modification. At least 30 days prior to conducting such public

hearings, the department shall publish notice of the hearing in

a newspaper of general circulation in the host municipality and

affected municipalities.

(b)  Places of public hearings.--Public hearings shall be

conducted in the following areas:

(1)  One in the host municipality.

(2)  One in at least one affected municipality.

(3)  One in one other appropriate location in the county.

(c)  Purpose of public hearings.--The public hearings shall

solicit information from members of the public and local

officials regarding:

(1)  Odor control.

(2)  Community health risks.

(3)  Traffic patterns and traffic volume as a result of

increased waste hauling in the host municipality and affected

municipalities.

(4)  Emergency planning and response mechanisms for the

host municipalities and affected municipalities.

(5)  Infrastructure support for the host municipalities

and affected municipalities.

(d)  Summary of hearings.--After a hearing, the department

shall prepare a summary of the written and oral comments

submitted at the hearings, the department's responses to the

comments and the reasons therefor. The department shall provide

copies of this summary to the governing bodies of the host

municipalities, affected municipalities, any persons who

submitted comments and to other persons who request a copy.

(e)  Construction with regulation or policy.--The public

hearings authorized by this section shall supplement but shall

not supersede the hearings and comment periods authorized by any

department regulation or policy.

Section 6.  Section 1111(b) and (d) of the act are amended to

read:

Section 1111.  Protection of capacity.

* * *

(b)  Determination.--The permit condition shall be determined

in the following manner:

(1)  The applicant shall notify the host county [and], 

host municipality and any affected municipality upon filing

an application for permit pursuant to subsection (a). Within

60 days after receiving written notice from the applicant

that an application has been filed with the department, the

host county [and], host municipality and affected

municipality shall provide written notice to the applicant

and the department if it intends to negotiate with the

applicant. If the host county [and], host municipality and

affected municipality do not provide such notice and, if the

permit is issued, the permit condition shall state that no

waste capacity is reserved for the host county [and], host

municipality and affected municipality. The negotiation

period shall commence upon the date of receipt of the written

notice to the applicant from the host county and host

municipality and shall continue for 30 days. The issues to be

considered in negotiations shall include, but not be limited

to, the weight or volume of capacity reserved to a host

county [and], host municipality and affected municipality and

an increase in the average volume of waste up to the amount

of capacity set aside for municipal waste generated within

the host county [and], host municipality and affected

municipality.

(2)  If the host county [and], host municipality,

affected municipality and the applicant agree to a weight or

volume of waste capacity to be reserved for the host county

[and], host municipality and affected municipality, they

shall notify the department in writing.

(3)  If the host county [and], host municipality,

affected municipality and the applicant have failed to reach

an agreement within the 30-day negotiation period, then

either party to the dispute, after written notice to the

other party containing specifications of the issue or issues

in dispute, may request the appointment of a board of

arbitration pursuant to paragraph (7). Such notice shall be

made in writing to the other party within five days of the

end of the negotiation period. In making the decision as to

the terms of the agreement, the board shall consider among

other things the availability of disposal alternatives to the

host county [and], host municipality and affected

municipality. Should the host county [and], host municipality

and affected municipality fail to request arbitration within

five days, then the permit condition shall state that no

waste capacity is reserved for the host county [and], host

municipality and affected municipality.

(4)  If the county and municipality elect to negotiate

with the applicant pursuant to this section, any agreement or

arbitration award shall provide, unless the host county

[and], host municipality, affected municipality and applicant

agree otherwise, that the county and [municipality]

municipalities shall utilize the capacity reserved in an

agreed-upon time frame.

(5)  Should the applicant and the host county [and], host

municipality and affected municipality be unable to agree to

the terms of the agreement governing such utilization within

30 days of an agreement or an arbitration award as to the

weight or volume of waste capacity to be reserved in the

facility, either party can request the appointment of an

arbitration board pursuant to paragraph (7). In making the

decision as to the terms of the agreement for utilization,

the board shall consider, among other things, the weight or

volume of capacity reserved to a host county [and], host

municipality and affected municipality under any permit

issued pursuant to this section, an increase in the average

volume of waste in an amount up to the amount of capacity set

aside for municipal waste generated within the host county

[and], host municipality and affected municipality, the

financial viability of the facility and the terms, including

the rates per ton for disposal, of the contracts entered into

by the applicant for use of the facility by other than the

host county and host municipality.

(6)  Except as provided in paragraph (1), the department

shall not issue any permit under this section unless it has

received written notice of an agreement between the applicant

and host county [and], host municipality and affected

municipality as to the weight or volume of capacity to be

reserved for the host county and host municipality as

provided in paragraph (2) or unless it has received written

notice that a Board of Arbitration appointed pursuant to

paragraph (7) has settled all issues in dispute between the

host county [and], host municipality, the affected

municipality and the applicant. The department shall include

a permit condition reserving such capacity provided for in

such agreements or arbitration awards.

(7)  The board of arbitration shall be composed of three

persons, one appointed by the applicant, one appointed by the

host county and host municipality and a third member to be

agreed upon by the applicant and such host county and host

municipality. The members of the board representing the

applicant and the host county and host municipality shall be

named within five days from the date of the request for the

appointment of such board. If, after a period of ten days

from the date of the appointment of the two arbitrators

appointed by the host county and host municipality and the

applicant, the third arbitrator has not been selected by

them, then either arbitrator may request the American

Arbitration Association, or its successor in function, to

furnish a list of three members of said association who are

residents of Pennsylvania from which the third arbitrator

shall be selected. The arbitrator appointed by the applicant

shall eliminate one name from the list within five days after

publication of the list, following which the arbitrator

appointed by the host county and host municipality shall

eliminate one name from the list within five days thereafter.

The individual whose name remains on the list shall be the

third arbitrator and shall act as chairman of the board of

arbitration. The board of arbitration thus established shall

commence the arbitration proceedings within ten days after

the third arbitrator is selected and shall make its

determination within 30 days after the appointment of the

third arbitrator.

* * *

(d)  Consultation.--The host county shall consult with the

host municipality and any affected municipality as part of the

procedure set forth under this section.

* * *

Section 7.  The heading of Chapter 13 of the act is amended

to read:

CHAPTER 13

[HOST MUNICIPALITY] BENEFIT [FEE] FEES

Section 8.  Sections 1301, 1302, 1303, 1304, 1305 and 1510(f)

of the act are amended to read:

Section 1301.  Host municipality and affected municipality

benefit fee.

(a)  Imposition.--There is imposed a host municipality

benefit fee and an affected municipality benefit fee upon the

operator of each municipal waste landfill or resource recovery

facility that has a valid permit on the effective date of this

act or receives a new permit or permit that results in

additional capacity from the department under the Solid Waste

Management Act after the effective date of this act. The fee

shall be paid to the host municipality and affected

municipality. If the host municipality owns or operates the

landfill or facility, the fee shall not be imposed for waste

generated within such municipality. If the landfill or facility

is located within more than one host municipality, the fee shall

be apportioned among them according to the percentage of the

permitted area located in each municipality.

(b)  Amount.--The host municipality fee is $1 per ton of

weighed solid waste or $1 per three cubic yards of volume-

measured solid waste for all solid waste received at a landfill

or facility. The affected municipality fee is 50¢ per ton of

weighted solid waste or 50¢ per three cubic yards of volume-

measured solid waste for all solid waste received at a landfill

or facility. Any amounts paid by an operator to a host

municipality or affected municipality pursuant to a preexisting

agreement shall serve as a credit against the fee amount imposed

by this section.

(c)  Municipal options.--Nothing in this section or section

1302 shall prevent a host municipality or affected municipality 

from receiving a higher fee or receiving the fee in a different

form or at different times than provided in this section and

section 1302, if the host municipality or affected municipality 

and the operator of the municipal waste landfill or resource

recovery facility agree in writing.

(d)  Supersede.--The fee imposed by this section shall

preempt and supersede any tax imposed on each municipal waste

landfill or resource recovery facility under the act of December

31, 1965 (P.L.1257, No.511), known as The Local Tax Enabling

Act, which is in excess of the amount imposed on or before

December 31, 1987.

(e)  County options.--Nothing in this act shall prevent a

host county from negotiating a fee or fee in a different form,

if the host county and the operator of the municipal waste

landfill or resource recovery agree in writing. Any county which

has negotiated a fee as of the effective date of this act may

require that the fee be continued.

Section 1302.  Form and timing of host municipality benefit fee

payment.

(a)  Quarterly payment.--Each operator subject to section

1301 shall make the host municipality benefit fee payment and

the affected municipality benefit fee payment quarterly. The fee

shall be paid on or before the 20th day of April, July, October

and January for the three months ending the last day of March,

June, September and December.

(b)  Quarterly reports.--Each host municipality benefit fee

payment and affected municipality benefit fee payment shall be

accompanied by a form prepared and furnished by the department

and completed by the operator. The form shall state the weight

or volume of solid waste received by the landfill or facility

during the payment period and provide any other information

deemed necessary by the department to carry out the purposes of

this act. The form shall be signed by the operator. A copy of

the form shall be sent to the department at the same time that

the fee and form are sent to the host municipality and affected

municipality.

(c)  Timeliness of payment.--An operator shall be deemed to

have made a timely payment of the host municipality benefit fee

if all of the following are met:

(1)  The enclosed payment is for the full amount owed

pursuant to this section, and no further host municipality or

affected municipality action is required for collection.

(2)  The payment is accompanied by the required form and

such form is complete and accurate.

(3)  The letter transmitting the payment that is received

by the host municipality and affected municipality is

postmarked by the United States Postal Service on or prior to

the final day on which the payment is to be received.

(d)  Discount.--Any operator that makes a timely payment of

the host municipality benefit fee and the affected municipality

benefit fee as provided in this section shall be entitled to

credit and apply against the fee payable by him a discount of 1%

of the amount of the fee collected by him.

(e)  Alternative proof.--For purposes of this section,

presentation of a receipt indicating that the payment was mailed

by registered or certified mail on or before the due date shall

be evidence of timely payment.

Section 1303.  Collection and enforcement of fee.

(a)  Interest.--If an operator fails to make a timely payment

of the host municipality benefit fee or the affected

municipality benefit fee, the operator shall pay interest on the

unpaid amount due at the rate established pursuant to section

806 of the act of April 9, 1929 (P.L.343, No.176), known as The

Fiscal Code, from the last day for timely payment to the date

paid.

(b)  Additional penalty.--In addition to the interest

provided in subsection (a), if an operator fails to make timely

payment of the host municipality benefit fee or the affected

municipality benefit fee, there shall be added to the amount of

fee actually due 5% of the amount of such fee, if the failure to

file a timely payment is for not more than one month, with an

additional 5% for each additional month, or fraction thereof,

during which such failure continues, not exceeding 25% in the

aggregate.

(c)  Assessment notices.--If the host municipality determines

that any operator of a municipal waste landfill or resource

recovery facility has not made a timely payment of the host

municipality benefit fee or the affected municipality benefit

fee, it will send a written notice for the amount of the

deficiency to such operator within 30 days from the date of

determining such deficiency. When the operator has not provided

a complete and accurate statement of the weight or volume of

solid waste received at the landfill or facility for the payment

period, the host municipality may estimate the weight or volume

in its deficiency notice.

(d)  Constructive trust.--All host municipality benefit fees

or affected municipality benefit fees collected by an operator

and held by such operator prior to payment to the host

municipality or affected municipality shall constitute a trust

fund for the host municipality and the affected municipality,

and such trust shall be enforceable against such operator, its

representatives and any person receiving any part of such fund

without consideration or with knowledge that the operator is

committing a breach of the trust. However, any person receiving

payment of lawful obligation of the operator from such fund

shall be presumed to have received the same in good faith and

without any knowledge of the breach of trust.

(e)  Manner of collection.--The amount due and owing under

section 1301 shall be collectible by the host municipality or

the affected municipality in the manner provided in section

1709.

(f)  Remedies cumulative.--The remedies provided to host

municipalities or the affected municipalities in this section

are in addition to any other remedies provided at law or in

equity.

Section 1304.  Records.

Each operator that is required to pay the host municipality

benefit fee or the affected municipality benefit fee shall keep

daily records of all deliveries of solid waste to the landfill

or facility, as required by the host municipality, including,

but not limited to, the name and address of the hauler, the

source of the waste, the kind of waste received and the weight

or volume of the waste. Such records shall be maintained in

Pennsylvania by the operator for no less than five years and

shall be made available to the host municipality for inspection

upon request.

Section 1305.  Surcharge.

The provisions of any law to the contrary notwithstanding,

the operator of any municipal waste landfill or resource

recovery facility subject to section 1301 may collect the host

municipality benefit fee and the affected municipality benefit

fee as a surcharge on any fee schedule established pursuant to

law, ordinance, resolution or contract for solid waste disposal

or processing operations at the landfill or facility. In

addition, any person who collects or transports solid waste

subject to the host municipality benefit fee and the affected

municipality benefit fee to a municipal waste landfill or

resource recovery facility subject to section 1301 may impose a

surcharge on any fee schedule established pursuant to law,

ordinance, resolution or contract for the collection or

transportation of solid waste to the landfill or facility. The

surcharge shall be equal to the increase in processing or

disposal fees at the landfill or facility attributable to the

host municipality benefit fee. However, interest and penalties

on the fee under section 1303(a) and (b) may not be collected as

a surcharge.

Section 1510.  Lead acid batteries.

* * *

(f)  Enforcement.--The Department of Environmental

[Resources] Protection shall enforce this section.

Section 9.  The act is amended by adding a section to read:

Section 1716.  Multiple violations.

(a)  General rule.--Any operator of a municipal waste

landfill that is found to have engaged in a significant

violation of the provisions of this act or the Solid Waste

Management Act on three separate occasions within a five-year

period shall not be granted any new permit, permit expansion or

permit modification by the department for a period of five

years. Prior to the adjudication of a third violation, the

department shall notify the operator of its intention to proceed

pursuant to this section before the Environmental Hearing Board.

(b)  Notice.--No action may be commenced under this section

prior to 60 days after the department has given notice of the

third violation to the host municipality, to any affected

municipality and to any alleged violator of this act, of any

other environmental protection act or of the regulations or

orders of the department which have allegedly been violated.

(c)  Definition.--As used in this section, the term

"significant violation" means a violation that may harm or

threaten to seriously harm the environment, harm or threaten to

seriously harm public health or safety, or interfere with or

jeopardize the integrity of the monitoring system used by an

agency.

Section 10.  Section 1901 of the act is amended to read:

Section 1901.  Report to General Assembly.

The Secretary of Environmental [Resources] Protection shall

prepare a report to the General Assembly concerning the

implementation of this act and the success of county and

municipal recycling programs. This report shall be transmitted

to the General Assembly no later than April 1, 1991, and shall

be revised, and modified if necessary, at least once every three

years thereafter.

Section 11.  The amendment of sections 1111(b) and (d), 1301,

1302, 1303, 1304 and 1305 of the act shall only be applicable to

the siting of new municipal waste landfills which are issued

permits for operation after the effective date of this section.

Section 12.  This act shall take effect in 60 days.