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COUNTY ADMINISTRATIVE FEE OVERVIEW David W. Buzzell on behalf of PENNSYLVANIA WASTE INDUSTRIES ASSOCIATION. PENNSYLVANIA SOLID WASTE ADVISORY COMMITTEE March 8, 2007 Harrisburg, PA. A Look Back at Act 101 page 2.

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Pennsylvania solid waste advisory committee march 8 2007 harrisburg pa

COUNTY ADMINISTRATIVE FEE

OVERVIEW

David W. Buzzell

on behalf of

PENNSYLVANIA WASTE INDUSTRIES ASSOCIATION

PENNSYLVANIA SOLID WASTE ADVISORY COMMITTEEMarch 8, 2007Harrisburg, PA


A look back at act 101 page 2
A Look Back at Act 101 page 2

The Municipal Waste Planning, Recycling and Waste Reduction Act (Act 101) of 1988

Waste Planning => Counties

Recycling and Waste Reduction => Municipalities

Host Facility Issues => Municipalities

Oversight, Administration, Studies and Recycling Market Development => DEP


Act 101 legal framework page 3
Act 101 - Legal Framework page 3

  • County Mandates

    • Develop and Implement Solid Waste Management Plans

  • Municipality Mandates

    • Assure proper waste collection, transportation and storage of MSW within borders

    • Implement program for source separation and collection for recyclables, if population is greater than 5,000 and 300 persons/square mile density


Act 101 legal framework page 4
Act 101 - Legal Framework page 4

  • Grants from Recycling Fee to pay for Mandates

    • Funds generated from $2 per ton Recycling Fee

      1998 to 2005 range: $47 to $55 million annually

  • County Mandates - 901 Grants (80% reimburse)

    • Develop and Implement Solid Waste Management Plans

  • Municipality Mandates - 902 Grants (90% reimburse)

    • Assure proper waste collection, transportation and storage of MSW within borders

    • Implement program for source separation and collection for recyclables, if population is greater than 5,000 and 300 persons/square mile density


Act 101 legal framework page 5
Act 101 – Legal Framework page 5

  • NO UNFUNDED MANDATES

  • Act 175 of 2002 – Recycling Program Plan is to make recycling programs under Act 101 financially self-sufficient or profitable.

  • Until self-sufficient, Counties should limit spending to available grant funds for elective recycling and supplemental solid waste projects.


Act 101 legal framework page 6
Act 101 – Legal Framework page 6

ADDITIONAL FUNDING AVAILABLE

  • Additional Rights (not duties) – Counties MAY:

    • Conduct P2 Education Programs

      => 901 Grants (per Act 190) (80% reimburse)

    • Accept delegation of municipal recycling program

      => 902 Grants (90% reimburse)

    • Establish County Recycling Coordinator

      => 903 Grants (50% reimburse)

    • Develop and Run a HHW Collection Program

      => Grants (per Act 155) (50% reimburse)

    • Conduct legitimate government functions

      => 904 Grants (recycling performance based)


Act 101 legal framework page 7
Act 101 – Legal Framework page 7

ADDITIONAL FUNDING AVAILABLE

  • Funds generated from $2 per ton Recycling Fee

    1998 to 2005 range: $47 to $55 million per year

    901 Grants (per Act 190) (80% reimburse)

    => $800,000 to $1,000,000 per year

    902 Grants (90% reimburse)

    => $33 million per year

    903 Grants (50% reimburse)

    => $1 million per year

    Grants (per Act 155) (50% reimburse)

    => $1 million per year

    904 Grants (recycling performance based)

    => $18 to $20 million per year


Act 101 legal framework page 8
Act 101 – Legal Framework page 8

  • 904 Grants (recycling performance based)

    • 904 Grant funds account for about $18 to $20 million per year (of the approximately $50 million per year provided by the $2/ton Recycling Fee)

    • 904 Grant funds are unrestricted funds

    • Counties received approx. $3.4 million in 904 Grants (2004)


Act 101 legal framework page 9
Act 101 – Legal Framework page 9

FUNDING AVAILABLE TO COUNTIES

  • Develop and implement Solid Waste Plans (only Act 101 mandated requirement imposed on Counties)

    • 901 Grants (80% reimburse)

      =>$800,000 to $1,000,000 per year

      => Counties also received an additional $3.4 million (approx.) in 904 Recycling Performance Grants (2004)


Act 101 legal framework page 10
Act 101 – Legal Framework page 10

  • NO UNFUNDED MANDATES

  • Act 175 of 2002 – Recycling Program Plan is to make recycling programs under Act 101 financially self-sufficient or profitable.

  • Until self-sufficient, Counties should limit spending to available grant funds for elective recycling and supplemental solid waste projects.


County administrative fee implied preemption cases page 11
COUNTY ADMINISTRATIVE FEE IMPLIED PREEMPTION CASES page 11

Counties have adopted plans and ordinances imposing a variety of different fees. The revenue generated from these fees have been used for a variety of purposes, includingsolid waste management and recycling and/or general fund purposes unrelated to recycling or solid waste management.


County administrative fees page 12
COUNTY ADMINISTRATIVE FEESpage 12

  • County Fees Imposed:

    • On County generated waste vs. all waste (host County)

    • On MSW vs. MSW & C/D vs. all wastes

    • For General fund vs. Special fund

    • By contract vs ordinance vs SW Plan vs license

    • Used by County for recycling, compost ops, HHW

    • Used by County for general fund uses


County administrative fees page 13
COUNTY ADMINISTRATIVE FEESpage 13

  • 1988 – No County Administrative Fees

  • 2005 – County Fees from $0.25 to $7/ton

  • Estimated County Fees (46 Counties)

    • Total (est.) - $8.5 million (excludes Host Fees to certain Counties paid per contracts)*

    • Range (approx.) $5,000 to $1,000,000

    • Average (approx) $185,000/County

      * The recent Commonwealth Court decisions do not impact Host

      Agreements or County fees derived from Host Agreements.


County administrative fee implied preemption cases page 14
COUNTY ADMINISTRATIVE FEE IMPLIED PREEMPTION CASES page 14

Several test cases were brought by industry challenging the legality of these County imposed administrative fees.

The PA Supreme Court has ruled that County fees are not authorized.


County administrative fee implied preemption cases page 15
COUNTY ADMINISTRATIVE FEEIMPLIED PREEMPTION CASES page 15

PIWHA and County of Lycoming v. County of Northumberland, et al., No. 02-01629, Lycoming County Court of Common Pleas (February 7, 2005)

  • Hauler challenge to County fees in five Northeast Pennsylvania Counties as preempted by Act 101 and ultra vires any enabling legislation. Lycoming County, pursuant to a contract with each of the five Counties, collected all Act 101 mandated fees plus the additional County-imposed administrative fees.

  • Administrative Fees of Northumberland, Union, Columbia and Montour Counties and the Snyder County SWMA preempted by Act 101 and related legislation.

  • Examination of Act 101 reveals a plan for recycling programs set out with such detail that the Court cannot help but find “an intention of the part of the legislature that it should not be supplemented by municipal bodies”.

  • Implication of the addition of § 1513 to Act 101 (DER to assist municipalities in making recycling programs financially self-sufficient) is that no funds other than those provided for by Act 101 are contemplated.


County administrative fee implied preemption cases page 16
COUNTY ADMINISTRATIVE FEEIMPLIED PREEMPTION CASES page 16

  • PIWHA and County of Lycoming v. County of Northumberland, et al., 500 C.D. 2005 (Pa. Cmwlth. 2005) (October 14, 2005, rehearing denied December 2, 2005)

    • Order of the Lycoming County Court of Common Pleas affirmed.

    • Court noted that the Pennsylvania legislature preempted municipal power to regulate the transportation, processing, treatment and disposal of solid waste through the Solid Waste Disposal Act. The legislature then enacted Act 101 to give counties the planning responsibility for the processing and disposal of solid waste generated within their boundaries.

    • The Court concluded that Act 101 provides extensive regulation as to waste and recycling, and Act 101 provides a comprehensive recycling plan that provides a specific funding source and does not provide any authority to raise revenue by other means.

    • Because Act 101 preempts municipal powers with respect to recycling programs, Counties may impose additional fees only if Act 101 expressly authorizes such fees.

    • Act 101 provides no such authority.

    • Petition for Allowance of Appeal denied by the PA Supreme Court.


County administrative fee implied preemption cases page 17
COUNTY ADMINISTRATIVE FEE IMPLIED PREEMPTION CASES page 17

  • PWIA and PIWHA v. County of Lehigh,No. 1298 C.D. 2004 (Pa. Cmwlth. 2005) (December 14, 2005)

    • Industry, in relevant part, challenged the County’s administrative fees as ultra vires enabling legislation and preempted by Acts 97 and 101.

    • Administrative fee imposed on waste haulers via solid waste management plan, County ordinance and regulation. The Lehigh County Court of Common Pleas upheld the County’s administrative fees.

    • Commonwealth Court reversed.

    • Commonwealth Court noted that it recently decided [in County of Northumberland] that Act 101 preempts a municipal authority from imposing its own administrative fee on waste haulers to help fund recycling programs. In addition, the legislature did not intend Act 101’s comprehensive recycling program to be supplemented by municipal bodies.

    • Citing County of Northumberland, the Courtheld Lehigh County’s administrative fees preempted by Act 101.

    • Petition for Allowance of Appeal pending before the PA Supreme Court.


Fees from waste disposal page 18
Fees from Waste Disposalpage 18

  • From 1988 to 2002

    • Recycling Fee $2/ton

    • Host Municipal Benefit Fee $1/ton (minimum)

    • Site Specific Post Closure Fee $0.25/ton

      $3.25/ton

  • From 2002 to 2007

    • Recycling Fee $2/ton

    • Host Municipal Benefit Fee $1/ton (minimum)

    • Environmental Stewardship $0.25/ton

    • Environmental Stewardship $4/ton

      $7.25/ton


Fees from waste disposal page 19
Fees from Waste Disposalpage 19

  • From 1988 to 2002

    • Recycling Fee $2/ton $51 million*

    • Host Municipal Benefit Fee $1/ton (min.) $25.6 million*

    • Site Specific Post Closure Fee $0.25/ton $ 6.4 million*

      $3.25/ton$83 million*

  • From 2002 to 2007

    • Recycling Fee $2/ton $49 million**

    • Host Municipal Benefit Fee $1/ton (min.) $24.5 million**

    • Environmental Stewardship $0.25/ton $ 6.1 million**

    • Environmental Stewardship $4/ton $98 million**

      $7.25/ton$178 million*** Est. based on 2002 tonnage ** Est. based on 2005 tonnage


Act 101 legal framework page 20
Act 101 – Legal Framework page 20

  • NO UNFUNDED MANDATES

  • Act 175 of 2002 – Recycling Program Plan is to make recycling programs under Act 101 financially self-sufficient or profitable.

  • Until self-sufficient, Counties should limit spending to available grants funds for elective recycling and supplemental solid waste projects.


Funds available to counties page 21
Funds Available to Countiespage 21

Solid Waste Planning – 901 Grants (Act 101)

Recycling Programs – 902 Grants (Act 101)

County Recycling Coordinator – 903 Grants (Act 101)

Recycling Performance Based – 904 Grants (Act 101)

Household Hazardous Waste – Grants (Act 155)

Public Pollution Prev. Education – 901 Grants (Act 190)

Environmental Remediation – Growing Greener Grants

Watershed Assess/Restore – Growing Greener Grants

(See http://www.dep.state.pa.us/grantscenter/GrantAndLoanPrograms.asp)


Act 101 legal framework page 22
Act 101 – Legal Framework page 22

  • NO UNFUNDED MANDATES

  • Act 175 of 2002 – Recycling Program Plan is to make recycling programs under Act 101 financially self-sufficient or profitable.

  • Until self-sufficient, Counties should limit spending to use of available grant funds for elective recycling and supplemental solid waste projects.


Pennsylvania solid waste advisory committee march 8 2007 harrisburg pa

Berwyn Office

1000 Westlakes Drive

Suite 300

Berwyn, PA 19312

610-993-2200

610-993-8585 (fax)

www.dbr.com

Offices also in Washington, DC; Florham Park, NJ;

Princeton, NJ; Philadelphia, PA; and New York, NY

David W. Buzzell, Esquire

610-789-1847 David.Buzzell@dbr.com