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                                                      PRINTER'S NO. 1700

THE GENERAL ASSEMBLY OF PENNSYLVANIA


HOUSE BILL

No. 1437 Session of 2001


        INTRODUCED BY S. H. SMITH, HERSHEY, SURRA, BARD, BASTIAN,
           BELARDI, CALTAGIRONE, CAPPELLI, CAWLEY, FAIRCHILD, FRANKEL,
           GRUCELA, HENNESSEY, HERMAN, HESS, LAUGHLIN, LEH, McILHATTAN,
           McNAUGHTON, PIPPY, PRESTON, ROHRER, ROSS, RUBLEY, SATHER,
           SAYLOR, SHANER, B. SMITH, SOLOBAY, STEIL, E. Z. TAYLOR,
           TRELLO AND YUDICHAK, APRIL 25, 2001

        REFERRED TO COMMITTEE ON ENVIRONMENTAL RESOURCES AND ENERGY,
           APRIL 25, 2001

                                     AN ACT

     1  Requiring host municipality agreements for certain municipal and
     2     residual waste facilities.

     3                         TABLE OF CONTENTS
     4  Section 1.  Short title.
     5  Section 2.  Legislative findings and declaration of policy.
     6  Section 3.  Definitions.
     7  Section 4.  Construction of act.
     8  Section 5.  Host municipality agreements.
     9  Section 6.  Enforcement.
    10  Section 7.  Civil penalties.
    11  Section 8.  Regulations.
    12  Section 9.  Severability.
    13  Section 10.  Repeals.
    14  Section 11.  Effective date.
    15     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 Solid Waste
     4  Host 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)  Improper solid waste practices create public health
     9     hazards, environmental pollution and nuisances and cause
    10     irreparable harm to the public health, safety and welfare.
    11         (2)  All aspects of solid waste management, particularly
    12     the disposition 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)  Communities in the areas located near and along the
    25     approach routes to commercial solid waste landfills and
    26     resource recovery facilities experience traffic problems,
    27     litter, odors, noise, dust and other nuisances resulting from
    28     the operation of the facilities and from the transportation
    29     of waste to the facilities.
    30         (6)  Commercial solid waste landfills tend to locate in
    20010H1437B1700                  - 2 -

     1     rural and sparsely populated areas.
     2     (b)  Purposes and goals.--The purposes and goals of this act
     3  are to:
     4         (1)  Enhance the protection of the public health, safety
     5     and welfare from the short-term and long-term dangers
     6     associated with the disposal of solid waste.
     7         (2)  Implement section 27 of Article I of the
     8     Constitution of Pennsylvania.
     9         (3)  Conserve the environment and the natural resources
    10     of this Commonwealth.
    11         (4)  Limit the magnitude of environmental problems in and
    12     around communities which host commercial solid waste
    13     landfills or resource recovery facilities.
    14         (5)  Provide for greater local input from affected
    15     residents and communities in the planning of commercial solid
    16     waste landfills and resource recovery facilities.
    17         (6)  Protect residents of the communities affected by
    18     commercial solid waste landfills and resource recovery
    19     facilities from unnecessary traffic problems, litter, odors,
    20     noise, dust and other nuisances which may result from the
    21     operation of the facilities and from the transportation of
    22     waste to the facilities.
    23  Section 3.  Definitions.
    24     (a)  General rule.--Unless specifically defined in this
    25  section, the terms in this act have the same meaning as provided
    26  in the act of July 7, 1980 (P.L.380, No.97), known as the Solid
    27  Waste Management Act, or the act of July 28, 1988 (P.L.556,
    28  No.101), known as the Municipal Waste Planning, Recycling and
    29  Waste Reduction Act, or regulations of the Department of
    30  Environmental Protection promulgated thereunder.
    20010H1437B1700                  - 3 -

     1     (b)  Definitions.--As used in this section, the following
     2  words and phrases shall have the meanings given to them in this
     3  subsection:
     4     "Commercial solid waste landfill."  A landfill permitted or
     5  proposed for permitting under the act of July 7, 1980 (P.L.380,
     6  No.97), known as the Solid Waste Management Act, for the
     7  disposal of municipal waste, residual waste or mixed municipal
     8  and residual waste, including mixed municipal or residual waste
     9  and construction and demolition debris. The term does not
    10  include a landfill used for the exclusive disposal of
    11  construction and demolition waste or debris or a captive
    12  residual waste facility.
    13     "Department."  The Department of Environmental Protection of
    14  the Commonwealth and its authorized representatives.
    15     "Expansion modification."  An application for permit
    16  modification filed by an owner or operator of a commercial solid
    17  waste landfill or resource recovery facility which requests an
    18  expansion, either laterally or vertically, of a permit area.
    19     "Host municipality."  A municipality other than the county
    20  within which a commercial solid waste landfill or resource
    21  recovery facility or any portion of a permit area is located or
    22  is proposed to be located.
    23     "Host municipality agreement."  A written, legally binding
    24  document or documents executed by authorized officials of each
    25  host municipality and an owner or operator of a commercial solid
    26  waste landfill or resource recovery facility.
    27     "Municipal Waste Planning, Recycling and Waste Reduction
    28  Act."  The act of July 28, 1988 (P.L.556, No.101), known as the
    29  Municipal Waste Planning, Recycling and Waste Reduction Act.
    30     "Pennsylvania Municipalities Planning Code."  The act of July
    20010H1437B1700                  - 4 -

     1  31, 1968 (P.L.805, No.247), known as the Pennsylvania
     2  Municipalities Planning Code.
     3     "Permit."  A permit issued pursuant to the act of July 7,
     4  1980 (P.L.380, No.97), known as the Solid Waste Management Act.
     5     "Secretary."  The Secretary of Environmental Protection of
     6  the Commonwealth.
     7     "Solid Waste Management Act."  The act of July 7, 1980
     8  (P.L.380, No.97), known as the Solid Waste Management Act.
     9     "Volume modification."  An application for permit
    10  modification filed by an owner or operator of a commercial solid
    11  waste landfill or resource recovery facility which requests an
    12  increased in average or maximum daily waste volume.
    13  Section 4.  Construction of act.
    14     (a)  Liberal construction.--This act shall be liberally
    15  construed so as best to achieve and effectuate the goals and
    16  purposes of this act.
    17     (b)  Pari materia.--This act shall be construed in pari
    18  materia with the Solid Waste Management Act, the Municipal Waste
    19  Planning, Recycling and Waste Reduction Act and sections 1935-A
    20  and 1936-A of the act of April 9, 1929 (P.L.177, No.175), known
    21  as The Administrative Code of 1929.
    22  Section 5.  Host municipality agreements.
    23     (a)  Requirement for host municipality agreement.--
    24         (1)  A commercial solid waste landfill or resource
    25     recovery facility shall develop a new or supplemental host
    26     municipality agreement in accordance with this section as
    27     follows:
    28             (i)  For a commercial solid waste landfill or
    29         resource recovery facility for which a host municipality
    30         agreement was executed prior to or on the effective date
    20010H1437B1700                  - 5 -

     1         of this act, except as provided in subparagraphs (ii),
     2         (iii) and (iv), a new or supplemental host municipality
     3         agreement shall be:
     4                 (A)  executed by the owner or operator and the
     5             host municipality or municipalities on the date the
     6             existing host municipality agreement expires or five
     7             years after the effective date of this act, whichever
     8             occurs first; and
     9                 (B)  submitted to the department for approval
    10             within 30 days of execution.
    11             (ii)  For a commercial solid waste landfill or
    12         resource recovery facility for which:
    13                 (A)  no host municipality agreement has been
    14             executed as of the effective date of this act; or
    15                 (B)  a host municipality agreement was executed
    16             on or before the effective date of this act but which
    17             agreement expires within two years of the effective
    18             date of this act,
    19         a host municipality agreement shall be executed by the
    20         owner or operator and the host municipality or
    21         municipalities within two years of the effective date of
    22         this act and submitted to the department for approval
    23         within 30 days of execution. The owner or operator of
    24         such a facility shall provide notice to the host
    25         municipality or municipalities pursuant to subsection
    26         (f)(1) within 60 calendar days of the effective date of
    27         this act.
    28             (iii)  For any commercial solid waste landfill or
    29         resource recovery facility for which a permit under the
    30         Solid Waste Management Act, within 18 months prior to the
    20010H1437B1700                  - 6 -

     1         effective date of this act:
     2                 (A)  has expired;
     3                 (B)  has expired but has been extended beyond its
     4             expiration date; or
     5                 (C)  has expired but has been reinstated; and
     6         for which a host municipality agreement was executed
     7         prior to the effective date of this act, a new or
     8         supplemental host municipality agreement shall be
     9         executed by the owner or operator and the host
    10         municipality or municipalities within two years of the
    11         effective date of this act and submitted to the
    12         department for approval within 30 days of execution. The
    13         owner or operator of such a facility shall provide notice
    14         to the host municipality or municipalities pursuant to
    15         subsection (f)(1) within 60 calendar days of the
    16         effective date of this act. Notwithstanding the
    17         provisions of subsection (b)(3), for any such facility,
    18         no permit or permit modification shall be issued by the
    19         department until a new or supplemental agreement has been
    20         executed in compliance with this section by the owner or
    21         operator and each host municipality, whether the
    22         application for such permit or permit modification was
    23         submitted on, before or after the effective date of this
    24         act.
    25             (iv)  For any commercial solid waste landfill or
    26         resource recovery facility for which a host municipality
    27         agreement was executed prior to or on the effective date
    28         of this act but which has not begun to accept solid waste
    29         as of the effective date of this act, a new or
    30         supplemental host municipality agreement shall be
    20010H1437B1700                  - 7 -

     1         executed by the owner or operator and the host
     2         municipality or municipalities within two years of the
     3         effective date of this act and submitted to the
     4         department for approval within 30 days of execution. The
     5         owner or operator of such a facility shall provide notice
     6         to the host municipality or municipalities pursuant to
     7         subsection (f)(1) within 60 calendar days of the
     8         effective date of this act.
     9         (2)  A new or supplemental host municipality agreement
    10     for each host municipality shall be executed in accordance
    11     with this section and submitted to the department for
    12     approval for any expansion modification or volume
    13     modification filed by an owner or operator of a commercial
    14     solid waste landfill or resource recovery facility after the
    15     effective date of this act unless the existing host
    16     municipality agreement contemplates and addresses the subject
    17     of the modification.
    18         (3)  A host municipality agreement shall be executed in
    19     accordance with this section by an owner or operator and the
    20     host municipality or municipalities and shall be submitted to
    21     the department for approval for any new commercial solid
    22     waste landfill or resource recovery facility.
    23     (b)  Relationship to permit applications.--
    24         (1)  An application for a permit, volume modification or
    25     expansion modification for a commercial solid waste landfill
    26     or resource recovery facility which is submitted to the
    27     department for review after the effective date of this act
    28     shall only be accepted as administratively complete under
    29     section 512(a) of the Municipal Waste Planning, Recycling and
    30     Waste Reduction Act and the regulations promulgated
    20010H1437B1700                  - 8 -

     1     thereunder if it includes written evidence that the applicant
     2     is in compliance with the requirements of this section. Such
     3     written evidence shall be contained as part of the
     4     application and shall include evidence that a host
     5     municipality agreement that complies with this section is in
     6     effect or proof of written notice to the host municipality or
     7     municipalities pursuant to subsection (f)(1).
     8         (2)  The department's processing and review of a permit
     9     application shall proceed concurrently with the period of
    10     negotiation, mediation and arbitration of the host
    11     municipality agreement. Negotiation, mediation and
    12     arbitration of a host municipality agreement also may proceed
    13     prior to the submission of a permit or major permit
    14     modification application to the department.
    15         (3)  An application for a permit, volume modification or
    16     expansion modification for a commercial solid waste landfill
    17     or resource recovery facility which is submitted to the
    18     department for review after the effective date of this act
    19     shall be issued by the department only if a host municipality
    20     agreement that complies with this section has been executed
    21     by the applicant and each host municipality. For any
    22     application which was submitted to the department on or
    23     before the effective date of this act, the department shall
    24     not withhold issuance of the permit or permit modification
    25     provided the applicant executed a host municipality agreement
    26     prior to the effective date of this act or the applicant
    27     provided notice to the host municipality or municipalities
    28     pursuant to subsection (f)(1) and is proceeding with the
    29     requirements of this section to execute a host municipality
    30     agreement.
    20010H1437B1700                  - 9 -

     1     (c)  Public notice and public involvement requirements.--
     2         (1)  Within 30 calendar days from the date of receipt of
     3     a written notice of intent to develop a host municipality
     4     agreement pursuant to subsection (f)(1), each host
     5     municipality shall publish notice that discussions for
     6     developing a host municipality agreement with the commercial
     7     solid waste landfill or resource recovery facility have
     8     begun. The notice also shall describe the public involvement
     9     process that the host municipality will use to develop the
    10     agreement. The notice shall be published once a week for
    11     three consecutive weeks in a newspaper of general circulation
    12     in the area where the facility or proposed facility is
    13     located. The public involvement process shall include the
    14     following:
    15             (i)  A special public hearing at which a draft
    16         agreement is presented to the public and at which the
    17         public is provided an opportunity to provide oral and
    18         written testimony. The hearing shall be scheduled by the
    19         host municipality with a minimum of 30 calendar days'
    20         public notice prior to the hearing date. A public comment
    21         period of no less than 30 calendar days shall be provided
    22         after the public hearing to accept written comments on
    23         the draft agreement.
    24             (ii)  A special public meeting at which revisions to
    25         the draft agreement are presented to the public by the
    26         municipality, including changes to the draft agreement
    27         that were adopted after the public hearing and public
    28         comment period. The public shall be provided a reasonable
    29         opportunity to ask questions to the host municipality on
    30         the host municipality agreement and to provide public
    20010H1437B1700                 - 10 -

     1         comment. The meeting shall be scheduled by the host
     2         municipality with a minimum of 30 calendar days' public
     3         notice prior to the meeting date.
     4             (iii)  The host municipality shall publish the
     5         decision on adopting or rejecting the final agreement
     6         within 30 calendar days of acting.
     7         (2)  The public involvement process may contain
     8     additional public notice in a manner determined by the
     9     municipality to best inform the residents of the host
    10     municipality.
    11     (d)  Contents of agreement.--
    12         (1)  A host municipality agreement agreed to and executed
    13     by the parties pursuant to the negotiation and mediation
    14     process shall address the following:
    15             (i)  The nature of the proposed facility.
    16             (ii)  The site of the proposed facility or expansion
    17         of the existing facility.
    18             (iii)  Measures to alleviate local issues, such as
    19         haul routes, traffic problems, litter, odors, noise, dust
    20         and any other nuisances that might result from the
    21         operation of the facility. Such local issues shall be
    22         identified by the host municipality during negotiation of
    23         the host municipality agreement.
    24             (iv)  The host benefit fee to be paid by the owner or
    25         operator of the facility to the host municipality, which
    26         fee shall not be less than the statutory minimum fee
    27         established under the Municipal Waste Planning, Recycling
    28         and Waste Reduction Act and any other financial and in-
    29         kind contributions.
    30             (v)  The maximum and daily average waste volume to be
    20010H1437B1700                 - 11 -

     1         received at the facility.
     2             (vi)  The days and hours of operation of the
     3         facility.
     4             (vii)  The availability of capacity at the facility
     5         for the disposal of solid waste generated within the host
     6         municipality.
     7             (viii)  Activities to promote recycling, waste
     8         reduction and the proper management and disposal of solid
     9         waste generated within the host municipality.
    10             (ix)  The process for resolution in a cooperative and
    11         nonbinding manner of complaints and other grievances
    12         concerning the construction and operation of the
    13         facility.
    14             (x)  Provision for access to the facility and its
    15         records by the host municipality inspector.
    16         (2)  A host municipality agreement agreed to and executed
    17     by the parties pursuant to the negotiation and mediation
    18     process may address the following:
    19             (i)  The geographic origin of solid waste disposed at
    20         the facility and the amount of solid waste accepted for
    21         disposal based upon the geographic origin of the solid
    22         waste.
    23             (ii)  Any applicable zoning or land development
    24         requirements or approvals pursuant to the provisions of
    25         the Municipalities Planning Code and implementing
    26         ordinances.
    27             (iii)  Any other terms or conditions to which the
    28         parties agree should be included in the agreement.
    29         (3)  The host municipality agreement may not address the
    30     specifications or requirements for cover and revegetation,
    20010H1437B1700                 - 12 -

     1     storm water management, water quality protection and
     2     monitoring, liners and leachate management or gas management.
     3     (e)  Department review of host municipality agreements.--
     4         (1)  For all host municipality agreements submitted to
     5     the department for approval under this section, the
     6     department shall review each executed host municipality
     7     agreement to ensure that the agreement addresses the
     8     requirements of subsection (d)(1) or that an agreement has
     9     been executed as a result of binding arbitration pursuant to
    10     subsection (f)(7), whichever is applicable, and also to
    11     ensure that there has been compliance with the public notice
    12     and public comment requirements of subsection (c).
    13         (2)  The department shall review the terms and conditions
    14     of the host municipality agreement that address subsection
    15     (d)(1)(iii), (v), (vi), (vii) and (viii) to ensure the terms
    16     and conditions of the host municipality agreement are not in
    17     conflict with the terms and conditions of the existing or
    18     proposed permit and applicable regulations. Where the
    19     department determines there is a conflict between the terms
    20     and conditions of the host municipality agreement and the
    21     terms and conditions of the regulations or existing or
    22     proposed permit, the more stringent or restrictive
    23     requirement or condition shall apply. The department shall
    24     modify the permit to incorporate any such term or condition,
    25     including any term or condition that is not addressed in the
    26     proposed or existing permit.
    27     (f)  Process for negotiation and dispute resolution.--
    28         (1)  The owner or operator of a commercial solid waste
    29     landfill or resource recovery facility shall provide written
    30     notice to each host municipality of its intent to develop a
    20010H1437B1700                 - 13 -

     1     host municipality agreement pursuant to the requirements of
     2     this section. For a maximum period of 180 calendar days from
     3     the date of receipt of the written notice of intent to
     4     develop a host municipality agreement, the owner or operator
     5     of the commercial solid waste landfill or resource recovery
     6     facility and the host municipality or municipalities shall
     7     engage in good faith negotiations to arrive at a host
     8     municipality agreement.
     9         (2)  (i)  If the parties are unable to reach an agreement
    10         on all of the required terms and provisions of a host
    11         municipality agreement, the parties shall engage in good
    12         faith mediation, with a neutral mediator to be mutually
    13         agreed upon and selected by the parties, for a period of
    14         no more than 90 calendar days from the end of the
    15         negotiation period with regard to the terms and
    16         provisions on which an agreement cannot be reached.
    17             (ii)  The mediator shall act as a facilitator and
    18         shall not have the ability or authority to legally bind
    19         either party.
    20             (iii)  The costs of the mediator shall be borne
    21         equally by the parties. If the parties cannot agree upon
    22         a mediator within 20 calendar days after the expiration
    23         of the negotiation period, the mediation period shall
    24         immediately terminate.
    25         (3)  If a host municipality agreement is not executed
    26     within the combined negotiation period and mediation period,
    27     then the parties shall set forth in writing to each other,
    28     within 20 calendar days of the expiration or termination of
    29     the mediation period, the issues, terms and provisions on
    30     which agreement has been reached and the issues, terms and
    20010H1437B1700                 - 14 -

     1     provisions that remain in dispute, and the disputed issues
     2     shall be submitted for binding arbitration.
     3         (4)  The arbitration shall be heard by an arbitration
     4     board to consist of three persons: one appointed by the
     5     municipality, one appointed by the owner or operator of the
     6     facility and one to be agreed upon by the municipality and
     7     the owner or operator of the facility. The arbitration board
     8     members selected individually by the municipality and the
     9     owner or operator shall be named within 30 calendar days from
    10     the date of the parties' exchange of written statements of
    11     issues in dispute. The remaining arbitrator shall be mutually
    12     selected by the parties within 15 calendar days after the
    13     appointment of the two arbitrators by the municipality and
    14     the owner or operator.
    15         (5)  If the third arbitrator cannot be agreed upon by the
    16     parties within the prescribed time period, then the selected
    17     arbitrators shall request the American Arbitration
    18     Association or any successor in function to furnish a list of
    19     three members of said association who are residents of this
    20     Commonwealth from which the third arbitrator shall be
    21     selected by the selected arbitrators. The arbitrator
    22     appointed by the owner or operator shall eliminate one of the
    23     three suggested arbitrators within ten calendar days of
    24     receipt of the recommendations and, thereafter, the
    25     arbitrator appointed by the municipality shall eliminate one
    26     of the three suggested arbitrators within ten calendar days
    27     thereafter. The individual whose name remains on the list
    28     shall be the third arbitrator and shall act as the chairman
    29     of the board of arbitration.
    30         (6)  The board of arbitration shall commence arbitration
    20010H1437B1700                 - 15 -

     1     proceedings within 60 calendar days after the date of
     2     appointment of the final board member and shall conclude the
     3     arbitration proceedings within 120 calendar days after the
     4     date the third arbitrator is selected. The board of
     5     arbitrators shall render its determination on all issues
     6     before it within 30 calendar days after the conclusion of the
     7     arbitration proceedings.
     8         (7)  The determination of the board of arbitration shall
     9     be final and binding on the parties and, together with the
    10     issues, terms and provisions mutually agreed to by the
    11     parties during the exchange of mutual statements, shall
    12     constitute the host municipality agreement, and each party
    13     shall execute the agreement.
    14         (8)  The final determination of the board of arbitration
    15     may be appealed only in accordance with and subject to 42
    16     Pa.C.S. §§ 7314 (relating to vacating award by court) and
    17     7315 (relating to modification or correction of award by
    18     court).
    19         (9)  Each party shall bear the costs of the arbitrator
    20     selected by that party and the costs of presenting the
    21     party's position to the board of arbitration. The parties
    22     shall bear equally the costs of the third arbitrator and all
    23     other costs of arbitration.
    24         (10)  In reaching its decision, the board of arbitration
    25     shall consider the following factors:
    26             (i)  The effect of the commercial solid waste
    27         landfill or resource recovery facility on surrounding
    28         land uses and the community.
    29             (ii)  The effect of the commercial solid waste
    30         landfill or resource recovery facility traffic on use and
    20010H1437B1700                 - 16 -

     1         safety of local roads and the existence of alternative
     2         routes to the landfill.
     3             (iii)  Measures to be taken by the commercial solid
     4         waste landfill or resource recovery facility to mitigate
     5         its effects on surrounding uses and the community and, in
     6         the case of existing facilities, any past mitigation
     7         measures.
     8             (iv)  Needs of the host municipality for commercial
     9         solid waste landfill or resource recovery facility
    10         capacity, the cost to the landfill to reserve capacity,
    11         the nature of local waste and limitations on the ability
    12         of the landfill to accept that waste.
    13             (v)  The extent to which the issues raised by the
    14         host municipality are addressed by existing regulations
    15         or guidance of the department, other applicable law or
    16         the conditions of a permit, if any.
    17             (vi)  The burden on the owner or operator to
    18         administer any matter requested by the host municipality,
    19         including the burden of undertaking activities to promote
    20         recycling, waste reduction and waste management in the
    21         host municipality.
    22         (11)  Only the following components of the host
    23     municipality agreement shall be subject to determination by
    24     the board of arbitration:
    25             (i)  Measures to alleviate local issues such as haul
    26         routes, traffic problems, litter, odors, noise, dust and
    27         any other nuisances that might result from the operation
    28         of the facility.
    29             (ii)  The host benefit fee to be paid by the owner or
    30         operator of the facility to the host municipality. The
    20010H1437B1700                 - 17 -

     1         fee determined by the board of arbitration shall not be
     2         less than the statutory minimum fee established under the
     3         Municipal Waste Planning, Recycling and Waste Reduction
     4         Act and shall not exceed 125% of the average fee paid by
     5         similar facilities within the same geographical region,
     6         taking into consideration the size and nature of the
     7         facility. For purposes of this subparagraph, the term
     8         "same geographical region" means the area defined by a
     9         circle drawn around the facility in question with a
    10         radius of 75 miles.
    11             (iii)  The days and hours of operation of the
    12         facility.
    13             (iv)  The availability of capacity at the facility
    14         for the disposal of solid waste generated within the host
    15         municipality.
    16             (v)  Activities to promote recycling, waste reduction
    17         and the proper management and disposal of solid waste
    18         within the host municipality.
    19             (vi)  The process for resolution in a cooperative and
    20         nonbinding manner of complaints and other grievances
    21         concerning the construction and operation of the
    22         facility.
    23         (12)  The parties at any time during the negotiation or
    24     mediation periods may by mutual written consent agree to
    25     terminate negotiations and proceed directly to arbitration.
    26     (g)  Enforcement.--The terms of a host municipality agreement
    27  shall be enforceable by the parties to the agreement. The courts
    28  of common pleas are hereby given jurisdiction over disputes
    29  between the host municipality and the facility owner or operator
    30  regarding the implementation or enforcement of a host
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     1  municipality agreement.
     2     (h)  Reimbursement of host municipality costs.--At the
     3  request of a host municipality, the department may reimburse the
     4  host municipality for costs incurred in negotiating, mediating
     5  and arbitrating a host municipality agreement under this
     6  section. Costs covered shall be limited to costs incurred for
     7  professional fees for lawyers, mediators, arbitrators, engineers
     8  and other professionals used in the efforts to reach an
     9  agreement. Any reimbursement shall be provided from funds in the
    10  recycling fund established by section 706 of the Municipal Waste
    11  Planning, Recycling and Waste Reduction Act or in the Solid
    12  Waste Abatement Fund established under section 701 of the Solid
    13  Waste Management Act, upon approval by the Governor.
    14  Reimbursement shall not exceed $50,000 for each host
    15  municipality agreement. The combined total reimbursement from
    16  the two funds shall not exceed $750,000 annually or $2,500,000
    17  over a five-year period from the effective date of this act.
    18     (i)  Relationship to other laws.--
    19         (1)  The terms of a host municipality agreement shall
    20     supersede and replace any existing ordinance adopted pursuant
    21     to section 304(b) of the Municipal Waste Planning, Recycling
    22     and Waste Reduction Act and concerning:
    23             (i)  the hours and days during which vehicles may
    24         deliver waste to the commercial solid waste facility or
    25         resource recovery facility; or
    26             (ii)  the routing of traffic to and from the
    27         commercial solid waste landfill or resource recovery
    28         facility,
    29     to the extent the ordinance is inconsistent or in conflict
    30     with the terms of the host municipality agreement.
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     1         (2)  Host municipality agreements shall be executed by
     2     the parties in the manner provided for in this act and shall
     3     not be subject to competitive bidding or other competitive
     4     procurement requirements.
     5         (3)  The provisions of section 1305 of the Municipal
     6     Waste Planning, Recycling and Waste Reduction Act shall be
     7     applicable to any host benefit fee set forth in any host
     8     municipality agreement executed pursuant to this act. and
     9     enforcing this section.
    10  Section 6.  Enforcement.
    11     (a)  Orders.--
    12         (1)  The department may issue orders to persons and
    13     municipalities as it deems necessary to aid in the
    14     enforcement of this act. These orders may include, but shall
    15     not be limited to, orders to enforce the terms of a host
    16     municipality agreement, orders modifying, suspending or
    17     revoking written authorizations and orders requiring persons
    18     and municipalities to cease unlawful activities or operations
    19     of a commercial solid waste landfill or resource recovery
    20     facility or transportation vehicle which in the course of its
    21     operation is in violation of any provision of this act, any
    22     rule or regulation of the department or any terms and
    23     conditions of a written authorization issued under this act,
    24     a host municipality agreement or a permit. An order issued
    25     under this act shall take effect upon notice unless the order
    26     specifies otherwise.
    27         (2)  An appeal to the Environmental Hearing Board shall
    28     not act as a supersedeas.
    29         (3)  The power of the department to issue an order under
    30     this act is in addition to any other remedy which may be
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     1     afforded to the department pursuant to this act or any other
     2     act.
     3     (b)  Duty to comply with orders of department.--It shall be
     4  the duty of any person and municipality to proceed diligently to
     5  comply with any order issued pursuant to this section. If the
     6  person or municipality fails to proceed diligently or fails to
     7  comply with the order within the time, if any, as may be
     8  specified, the person or municipality shall be guilty of
     9  contempt and shall be punished by the court in an appropriate
    10  manner and, for this purpose, application may be made by the
    11  department to the court.
    12  Section 7.  Civil penalties.
    13     (a)  Authority.--
    14         (1)  In addition to proceeding under any other remedy
    15     available at law or in equity for a violation of any
    16     provision of this act, any provision of a host municipality
    17     agreement, any rule or regulation of the department or order
    18     of the department or any term or condition of any written
    19     authorization issued by the department, the department may
    20     assess a civil penalty upon a person for the violation. The
    21     penalty may be assessed whether or not the violation was
    22     willful or negligent.
    23         (2)  In determining the amount of the penalty, the
    24     department shall consider the willfulness of the violation,
    25     damage to air, water, land or other natural resources of this
    26     Commonwealth or their uses, cost or restoration and
    27     abatement, savings resulting to the person in consequence of
    28     the violation and other relevant factors.
    29         (3)  The maximum civil penalty that may be assessed
    30     pursuant to this section is $25,000 per offense. Each
    20010H1437B1700                 - 21 -

     1     violation for each separate day and each violation of any
     2     provision of this act, any rule or regulation under this act,
     3     any order of the department or any term or condition of a
     4     permit or permits shall constitute a separate and distinct
     5     offense under this section.
     6     (b)  Procedure.--
     7         (1)  When the department proposes to assess a civil
     8     penalty, it shall inform the person of the proposed amount of
     9     the penalty. The person charged with the penalty shall then
    10     have 30 calendar days to pay the proposed penalty in full or,
    11     if the person wishes to contest the amount of the penalty or
    12     the fact of the violation to the extent not already
    13     established, the person shall forward the proposed amount of
    14     the penalty to the Environmental Hearing Board within the 30-
    15     calendar day period for placement in an escrow account with
    16     the State Treasurer or any Commonwealth bank or post an
    17     appeal bond to the hearing board within 30 calendar days in
    18     the amount of the proposed penalty if the bond is executed by
    19     a surety licensed to do business in this Commonwealth and is
    20     satisfactory to the department.
    21         (2)  If through administrative or final judicial review
    22     of the proposed penalty it is determined that no violation
    23     occurred or that the amount of the penalty shall be reduced,
    24     the hearing board shall within 30 calendar days remit the
    25     appropriate amount to the person with any interest
    26     accumulated by the escrow deposit.
    27         (3)  Failure to forward the money or the appeal bond at
    28     the time of the appeal shall result in a waiver of all legal
    29     rights to contest the violation or the amount of the civil
    30     penalty unless the appellant alleges financial inability to
    20010H1437B1700                 - 22 -

     1     prepay the penalty or to post the appeal bond. The hearing
     2     board shall conduct a hearing to consider the appellant's
     3     alleged inability to pay within 30 calendar days of the date
     4     of the appeal.
     5         (4)  The hearing board may waive the requirement to
     6     prepay the civil penalty or to post an appeal bond if the
     7     appellant demonstrates and the hearing board finds that the
     8     appellant is financially unable to pay. The hearing board
     9     shall issue an order within 30 calendar days of the date of
    10     the hearing to consider the appellant's alleged inability to
    11     pay.
    12         (5)  The amount assessed after administrative hearing or
    13     after waiver of administrative hearing shall be payable to
    14     the Commonwealth and shall be collectible in any manner
    15     provided by law for the collection of debts, including the
    16     collection of interest at the legal rate, which shall run
    17     from the date of assessment of the penalty.
    18         (6)  If any person liable to pay a penalty neglects or
    19     refuses to pay the same after demand, the amount, together
    20     with interest and any costs that may accrue, shall constitute
    21     a debt of the person, as may be appropriate, to the Solid
    22     Waste Abatement Fund. The debt shall constitute a lien on all
    23     property owned by the person when a notice of lien
    24     incorporating a description of the property of the person
    25     subject to the action is filed with the prothonotary of the
    26     court of common pleas where the property is located.
    27         (7)  The prothonotary shall promptly enter upon the civil
    28     judgment or order docket, at no cost to the department, the
    29     name and address of the person, as may be appropriate, and
    30     the amount of the lien as set forth in the notice of lien.
    20010H1437B1700                 - 23 -

     1     Upon entry by the prothonotary, the lien shall attach to the
     2     revenues and all real and personal property of the person,
     3     whether or not the person is solvent.
     4         (8)  The notice of lien, filed pursuant to this
     5     subsection, which affects the property of the person shall
     6     create a lien with priority over all subsequent claims or
     7     liens which are filed against the person, but it shall not
     8     affect any valid lien, right or interest in the property
     9     filed in accordance with established procedure prior to the
    10     filing of a notice of lien under this subsection.
    11  Section 8.  Regulations.
    12     The Environmental Quality Board shall have the power and its
    13  duty shall be to adopt the regulations of the department to
    14  accomplish the purposes and to carry out the provisions of this
    15  act.
    16  Section 9.  Severability.
    17     The provisions of this act are severable. If any provision of
    18  this act or its application to any person or circumstance is
    19  held invalid, the invalidity shall not affect other provisions
    20  or applications of this act which can be given effect without
    21  the invalid provision or application.
    22  Section 10.  Repeals.
    23     All acts and parts of acts are repealed insofar as they are
    24  inconsistent with this act.
    25  Section 11.  Effective date.
    26     This act shall take effect immediately.



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