PRINTER'S NO. 406
No. 397 Session of 1999
INTRODUCED BY BOSCOLA, WAGNER, SCHWARTZ, COSTA, KASUNIC, O'PAKE,
STOUT AND SLOCUM, FEBRUARY 12, 1999
REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY,
FEBRUARY 12, 1999
AN ACT
1 Amending the act of July 28, 1988 (P.L.556, No.101), entitled
2 "An act providing for planning for the processing and
3 disposal of municipal waste; requiring counties to submit
4 plans for municipal waste management systems within their
5 boundaries; authorizing grants to counties and municipalities
6 for planning, resource recovery and recycling; imposing and
7 collecting fees; establishing certain rights for host
8 municipalities; requiring municipalities to implement
9 recycling programs; requiring Commonwealth agencies to
10 procure recycled materials; imposing duties; granting powers
11 to counties and municipalities; authorizing the Environmental
12 Quality Board to adopt regulations; authorizing the
13 Department of Environmental Resources to implement this act;
14 providing remedies; prescribing penalties; establishing a
15 fund; and making repeals," defining "affected municipality";
16 further providing for powers and duties of the Department of
17 Health and for host municipality benefit fee; authorizing an
18 affected municipality benefit fee; further providing for
19 unlawful conduct; and making editorial changes.
20 The General Assembly of the Commonwealth of Pennsylvania
21 hereby enacts as follows:
22 Section 1. The title of the act of July 28, 1988 (P.L.556,
23 No.101), known as the Municipal Waste Planning, Recycling and
24 Waste Reduction Act, is amended to read:
25 AN ACT
26 Providing for planning for the processing and disposal of
1 municipal waste; requiring counties to submit plans for
2 municipal waste management systems within their boundaries;
3 authorizing grants to counties and municipalities for
4 planning, resource recovery and recycling; imposing and
5 collecting fees; establishing certain rights for host
6 municipalities; requiring municipalities to implement
7 recycling programs; requiring Commonwealth agencies to
8 procure recycled materials; imposing duties; granting powers
9 to counties and municipalities; authorizing the Environmental
10 Quality Board to adopt regulations; authorizing the
11 Department of Environmental [Resources] Protection to
12 implement this act; providing remedies; prescribing
13 penalties; establishing a fund; and making repeals.
14 Section 2. The definitions of "department" and "secretary"
15 in section 103 of the act are amended and the section is amended
16 by adding a definition to read:
17 Section 103. Definitions.
18 The following words and phrases when used in this act shall
19 have the meanings given to them in this section unless the
20 context clearly indicates otherwise:
21 * * *
22 "Affected municipality." A municipality within one mile of
23 the proposed facility, that is on an approach route to a
24 facility regulated by this act or that is otherwise adversely
25 impacted by a facility.
26 * * *
27 "Department." The Department of Environmental [Resources]
28 Protection of the Commonwealth and its authorized
29 representatives.
30 * * *
19990S0397B0406 - 2 -
1 "Secretary." The Secretary of Environmental [Resources]
2 Protection of the Commonwealth.
3 * * *
4 Section 3. Section 510 of the act is amended by adding
5 subsections to read:
6 Section 510. Permit requirements.
7 * * *
8 (c) Community health risks study.--The department shall not
9 issue any approval or permit under this act or the Solid Waste
10 Management Act relating to the siting, operation or expansion of
11 a municipal waste landfill until a community health risks study
12 has been performed and submitted to the department. A community
13 health risks study shall be conducted at all existing facilities
14 by the department in conjunction with the Department of Health
15 and paid for by the applicant or operator within one year of the
16 effective date of this subsection. These studies shall be
17 considered by the department when reviewing new permit
18 applications, applications for permit renewals and permits for
19 the expansion of existing facilities. The study shall examine,
20 measure and report on the health risks to the residents of the
21 host municipalities and affected municipalities.
22 (d) Term of permits.--Any permit issued pursuant to this act
23 shall be issued for a fixed term consistent with the approved
24 operation and design plans of the municipal waste landfill, and
25 shall not exceed ten years. No municipal waste may be disposed
26 of or processed at a municipal waste landfill after the
27 expiration of its permit term. Expiration of the permit term
28 does not limit the operator's responsibility for complying with
29 requirements under this act, the other environmental protection
30 acts, regulations thereunder or the terms or conditions of the
19990S0397B0406 - 3 -
1 deparment's permits. The department shall from time to time, but
2 at intervals not to exceed two years, review a permit issued
3 under this act. In its review, the department shall evaluate the
4 permit to determine whether it reflects currently applicable
5 operating requirements as well as current technology and
6 management practices. The department may require modification,
7 suspension or revocation of the permit when necessary to carry
8 out the purposes of this act or the environmental protection
9 laws of this Commonwealth.
10 Section 4. Section 511(a) of the act is amended to read:
11 Section 511. Site limitation.
12 (a) General rule.--The department shall not issue a permit
13 for, nor allow the operation of, a new municipal waste landfill,
14 a new commercial residual waste treatment facility or a new
15 resource recovery facility within 300 yards of any occupied
16 dwelling or a building which is owned by a school district or a
17 parochial school and used for instructional purposes, parks or
18 playgrounds existing prior to the date the department has
19 received an administratively complete application for a permit
20 for such facilities. This subsection shall not affect any
21 modification, extension, addition or renewal of existing
22 permitted facilities.
23 * * *
24 Section 5. The act is amended by adding a section to read:
25 Section 514. Public participation in expansion of existing
26 facilities.
27 (a) General rule.--Upon receiving an application to operate,
28 an application to modify a permit or an application to expand an
29 existing municipal waste landfill, the department, in
30 conjunction with the county, the host municipality and any
19990S0397B0406 - 4 -
1 affected municipality, shall conduct not fewer than three public
2 hearings for the purpose of receiving information on the permit
3 modification. At least 30 days prior to conducting such public
4 hearings, the department shall publish notice of the hearing in
5 a newspaper of general circulation in the host municipality and
6 affected municipalities.
7 (b) Places of public hearings.--Public hearings shall be
8 conducted in the following areas:
9 (1) One in the host municipality.
10 (2) One in at least one affected municipality.
11 (3) One in one other appropriate location in the county.
12 (c) Purpose of public hearings.--The public hearings shall
13 solicit information from members of the public and local
14 officials regarding:
15 (1) Odor control.
16 (2) Community health risks.
17 (3) Traffic patterns and traffic volume as a result of
18 increased waste hauling in the host municipality and affected
19 municipalities.
20 (4) Emergency planning and response mechanisms for the
21 host municipalities and affected municipalities.
22 (5) Infrastructure support for the host municipalities
23 and affected municipalities.
24 (d) Summary of hearings.--After a hearing, the department
25 shall prepare a summary of the written and oral comments
26 submitted at the hearings, the department's responses to the
27 comments and the reasons therefor. The department shall provide
28 copies of this summary to the governing bodies of the host
29 municipalities, affected municipalities, any persons who
30 submitted comments and to other persons who request a copy.
19990S0397B0406 - 5 -
1 (e) Construction with regulation or policy.--The public
2 hearings authorized by this section shall supplement but shall
3 not supersede the hearings and comment periods authorized by any
4 department regulation or policy.
5 Section 6. Section 1111(b) and (d) of the act are amended to
6 read:
7 Section 1111. Protection of capacity.
8 * * *
9 (b) Determination.--The permit condition shall be determined
10 in the following manner:
11 (1) The applicant shall notify the host county [and],
12 host municipality and any affected municipality upon filing
13 an application for permit pursuant to subsection (a). Within
14 60 days after receiving written notice from the applicant
15 that an application has been filed with the department, the
16 host county [and], host municipality and affected
17 municipality shall provide written notice to the applicant
18 and the department if it intends to negotiate with the
19 applicant. If the host county [and], host municipality and
20 affected municipality do not provide such notice and, if the
21 permit is issued, the permit condition shall state that no
22 waste capacity is reserved for the host county [and], host
23 municipality and affected municipality. The negotiation
24 period shall commence upon the date of receipt of the written
25 notice to the applicant from the host county and host
26 municipality and shall continue for 30 days. The issues to be
27 considered in negotiations shall include, but not be limited
28 to, the weight or volume of capacity reserved to a host
29 county [and], host municipality and affected municipality and
30 an increase in the average volume of waste up to the amount
19990S0397B0406 - 6 -
1 of capacity set aside for municipal waste generated within
2 the host county [and], host municipality and affected
3 municipality.
4 (2) If the host county [and], host municipality,
5 affected municipality and the applicant agree to a weight or
6 volume of waste capacity to be reserved for the host county
7 [and], host municipality and affected municipality, they
8 shall notify the department in writing.
9 (3) If the host county [and], host municipality,
10 affected municipality and the applicant have failed to reach
11 an agreement within the 30-day negotiation period, then
12 either party to the dispute, after written notice to the
13 other party containing specifications of the issue or issues
14 in dispute, may request the appointment of a board of
15 arbitration pursuant to paragraph (7). Such notice shall be
16 made in writing to the other party within five days of the
17 end of the negotiation period. In making the decision as to
18 the terms of the agreement, the board shall consider among
19 other things the availability of disposal alternatives to the
20 host county [and], host municipality and affected
21 municipality. Should the host county [and], host municipality
22 and affected municipality fail to request arbitration within
23 five days, then the permit condition shall state that no
24 waste capacity is reserved for the host county [and], host
25 municipality and affected municipality.
26 (4) If the county and municipality elect to negotiate
27 with the applicant pursuant to this section, any agreement or
28 arbitration award shall provide, unless the host county
29 [and], host municipality, affected municipality and applicant
30 agree otherwise, that the county and [municipality]
19990S0397B0406 - 7 -
1 municipalities shall utilize the capacity reserved in an
2 agreed-upon time frame.
3 (5) Should the applicant and the host county [and], host
4 municipality and affected municipality be unable to agree to
5 the terms of the agreement governing such utilization within
6 30 days of an agreement or an arbitration award as to the
7 weight or volume of waste capacity to be reserved in the
8 facility, either party can request the appointment of an
9 arbitration board pursuant to paragraph (7). In making the
10 decision as to the terms of the agreement for utilization,
11 the board shall consider, among other things, the weight or
12 volume of capacity reserved to a host county [and], host
13 municipality and affected municipality under any permit
14 issued pursuant to this section, an increase in the average
15 volume of waste in an amount up to the amount of capacity set
16 aside for municipal waste generated within the host county
17 [and], host municipality and affected municipality, the
18 financial viability of the facility and the terms, including
19 the rates per ton for disposal, of the contracts entered into
20 by the applicant for use of the facility by other than the
21 host county and host municipality.
22 (6) Except as provided in paragraph (1), the department
23 shall not issue any permit under this section unless it has
24 received written notice of an agreement between the applicant
25 and host county [and], host municipality and affected
26 municipality as to the weight or volume of capacity to be
27 reserved for the host county and host municipality as
28 provided in paragraph (2) or unless it has received written
29 notice that a Board of Arbitration appointed pursuant to
30 paragraph (7) has settled all issues in dispute between the
19990S0397B0406 - 8 -
1 host county [and], host municipality, the affected
2 municipality and the applicant. The department shall include
3 a permit condition reserving such capacity provided for in
4 such agreements or arbitration awards.
5 (7) The board of arbitration shall be composed of three
6 persons, one appointed by the applicant, one appointed by the
7 host county and host municipality and a third member to be
8 agreed upon by the applicant and such host county and host
9 municipality. The members of the board representing the
10 applicant and the host county and host municipality shall be
11 named within five days from the date of the request for the
12 appointment of such board. If, after a period of ten days
13 from the date of the appointment of the two arbitrators
14 appointed by the host county and host municipality and the
15 applicant, the third arbitrator has not been selected by
16 them, then either arbitrator may request the American
17 Arbitration Association, or its successor in function, to
18 furnish a list of three members of said association who are
19 residents of Pennsylvania from which the third arbitrator
20 shall be selected. The arbitrator appointed by the applicant
21 shall eliminate one name from the list within five days after
22 publication of the list, following which the arbitrator
23 appointed by the host county and host municipality shall
24 eliminate one name from the list within five days thereafter.
25 The individual whose name remains on the list shall be the
26 third arbitrator and shall act as chairman of the board of
27 arbitration. The board of arbitration thus established shall
28 commence the arbitration proceedings within ten days after
29 the third arbitrator is selected and shall make its
30 determination within 30 days after the appointment of the
19990S0397B0406 - 9 -
1 third arbitrator.
2 * * *
3 (d) Consultation.--The host county shall consult with the
4 host municipality and any affected municipality as part of the
5 procedure set forth under this section.
6 * * *
7 Section 7. The heading of Chapter 13 of the act is amended
8 to read:
9 CHAPTER 13
10 [HOST MUNICIPALITY] BENEFIT [FEE] FEES
11 Section 8. Sections 1301, 1302, 1303, 1304, 1305 and 1510(f)
12 of the act are amended to read:
13 Section 1301. Host municipality and affected municipality
14 benefit fee.
15 (a) Imposition.--There is imposed a host municipality
16 benefit fee and an affected municipality benefit fee upon the
17 operator of each municipal waste landfill or resource recovery
18 facility that has a valid permit on the effective date of this
19 act or receives a new permit or permit that results in
20 additional capacity from the department under the Solid Waste
21 Management Act after the effective date of this act. The fee
22 shall be paid to the host municipality and affected
23 municipality. If the host municipality owns or operates the
24 landfill or facility, the fee shall not be imposed for waste
25 generated within such municipality. If the landfill or facility
26 is located within more than one host municipality, the fee shall
27 be apportioned among them according to the percentage of the
28 permitted area located in each municipality.
29 (b) Amount.--The host municipality fee is $1 per ton of
30 weighed solid waste or $1 per three cubic yards of volume-
19990S0397B0406 - 10 -
1 measured solid waste for all solid waste received at a landfill
2 or facility. The affected municipality fee is 50¢ per ton of
3 weighted solid waste or 50¢ per three cubic yards of volume-
4 measured solid waste for all solid waste received at a landfill
5 or facility. Any amounts paid by an operator to a host
6 municipality or affected municipality pursuant to a preexisting
7 agreement shall serve as a credit against the fee amount imposed
8 by this section.
9 (c) Municipal options.--Nothing in this section or section
10 1302 shall prevent a host municipality or affected municipality
11 from receiving a higher fee or receiving the fee in a different
12 form or at different times than provided in this section and
13 section 1302, if the host municipality or affected municipality
14 and the operator of the municipal waste landfill or resource
15 recovery facility agree in writing.
16 (d) Supersede.--The fee imposed by this section shall
17 preempt and supersede any tax imposed on each municipal waste
18 landfill or resource recovery facility under the act of December
19 31, 1965 (P.L.1257, No.511), known as The Local Tax Enabling
20 Act, which is in excess of the amount imposed on or before
21 December 31, 1987.
22 (e) County options.--Nothing in this act shall prevent a
23 host county from negotiating a fee or fee in a different form,
24 if the host county and the operator of the municipal waste
25 landfill or resource recovery agree in writing. Any county which
26 has negotiated a fee as of the effective date of this act may
27 require that the fee be continued.
28 Section 1302. Form and timing of host municipality benefit fee
29 payment.
30 (a) Quarterly payment.--Each operator subject to section
19990S0397B0406 - 11 -
1 1301 shall make the host municipality benefit fee payment and
2 the affected municipality benefit fee payment quarterly. The fee
3 shall be paid on or before the 20th day of April, July, October
4 and January for the three months ending the last day of March,
5 June, September and December.
6 (b) Quarterly reports.--Each host municipality benefit fee
7 payment and affected municipality benefit fee payment shall be
8 accompanied by a form prepared and furnished by the department
9 and completed by the operator. The form shall state the weight
10 or volume of solid waste received by the landfill or facility
11 during the payment period and provide any other information
12 deemed necessary by the department to carry out the purposes of
13 this act. The form shall be signed by the operator. A copy of
14 the form shall be sent to the department at the same time that
15 the fee and form are sent to the host municipality and affected
16 municipality.
17 (c) Timeliness of payment.--An operator shall be deemed to
18 have made a timely payment of the host municipality benefit fee
19 if all of the following are met:
20 (1) The enclosed payment is for the full amount owed
21 pursuant to this section, and no further host municipality or
22 affected municipality action is required for collection.
23 (2) The payment is accompanied by the required form and
24 such form is complete and accurate.
25 (3) The letter transmitting the payment that is received
26 by the host municipality and affected municipality is
27 postmarked by the United States Postal Service on or prior to
28 the final day on which the payment is to be received.
29 (d) Discount.--Any operator that makes a timely payment of
30 the host municipality benefit fee and the affected municipality
19990S0397B0406 - 12 -
1 benefit fee as provided in this section shall be entitled to
2 credit and apply against the fee payable by him a discount of 1%
3 of the amount of the fee collected by him.
4 (e) Alternative proof.--For purposes of this section,
5 presentation of a receipt indicating that the payment was mailed
6 by registered or certified mail on or before the due date shall
7 be evidence of timely payment.
8 Section 1303. Collection and enforcement of fee.
9 (a) Interest.--If an operator fails to make a timely payment
10 of the host municipality benefit fee or the affected
11 municipality benefit fee, the operator shall pay interest on the
12 unpaid amount due at the rate established pursuant to section
13 806 of the act of April 9, 1929 (P.L.343, No.176), known as The
14 Fiscal Code, from the last day for timely payment to the date
15 paid.
16 (b) Additional penalty.--In addition to the interest
17 provided in subsection (a), if an operator fails to make timely
18 payment of the host municipality benefit fee or the affected
19 municipality benefit fee, there shall be added to the amount of
20 fee actually due 5% of the amount of such fee, if the failure to
21 file a timely payment is for not more than one month, with an
22 additional 5% for each additional month, or fraction thereof,
23 during which such failure continues, not exceeding 25% in the
24 aggregate.
25 (c) Assessment notices.--If the host municipality determines
26 that any operator of a municipal waste landfill or resource
27 recovery facility has not made a timely payment of the host
28 municipality benefit fee or the affected municipality benefit
29 fee, it will send a written notice for the amount of the
30 deficiency to such operator within 30 days from the date of
19990S0397B0406 - 13 -
1 determining such deficiency. When the operator has not provided
2 a complete and accurate statement of the weight or volume of
3 solid waste received at the landfill or facility for the payment
4 period, the host municipality may estimate the weight or volume
5 in its deficiency notice.
6 (d) Constructive trust.--All host municipality benefit fees
7 or affected municipality benefit fees collected by an operator
8 and held by such operator prior to payment to the host
9 municipality or affected municipality shall constitute a trust
10 fund for the host municipality and the affected municipality,
11 and such trust shall be enforceable against such operator, its
12 representatives and any person receiving any part of such fund
13 without consideration or with knowledge that the operator is
14 committing a breach of the trust. However, any person receiving
15 payment of lawful obligation of the operator from such fund
16 shall be presumed to have received the same in good faith and
17 without any knowledge of the breach of trust.
18 (e) Manner of collection.--The amount due and owing under
19 section 1301 shall be collectible by the host municipality or
20 the affected municipality in the manner provided in section
21 1709.
22 (f) Remedies cumulative.--The remedies provided to host
23 municipalities or the affected municipalities in this section
24 are in addition to any other remedies provided at law or in
25 equity.
26 Section 1304. Records.
27 Each operator that is required to pay the host municipality
28 benefit fee or the affected municipality benefit fee shall keep
29 daily records of all deliveries of solid waste to the landfill
30 or facility, as required by the host municipality, including,
19990S0397B0406 - 14 -
1 but not limited to, the name and address of the hauler, the
2 source of the waste, the kind of waste received and the weight
3 or volume of the waste. Such records shall be maintained in
4 Pennsylvania by the operator for no less than five years and
5 shall be made available to the host municipality for inspection
6 upon request.
7 Section 1305. Surcharge.
8 The provisions of any law to the contrary notwithstanding,
9 the operator of any municipal waste landfill or resource
10 recovery facility subject to section 1301 may collect the host
11 municipality benefit fee and the affected municipality benefit
12 fee as a surcharge on any fee schedule established pursuant to
13 law, ordinance, resolution or contract for solid waste disposal
14 or processing operations at the landfill or facility. In
15 addition, any person who collects or transports solid waste
16 subject to the host municipality benefit fee and the affected
17 municipality benefit fee to a municipal waste landfill or
18 resource recovery facility subject to section 1301 may impose a
19 surcharge on any fee schedule established pursuant to law,
20 ordinance, resolution or contract for the collection or
21 transportation of solid waste to the landfill or facility. The
22 surcharge shall be equal to the increase in processing or
23 disposal fees at the landfill or facility attributable to the
24 host municipality benefit fee. However, interest and penalties
25 on the fee under section 1303(a) and (b) may not be collected as
26 a surcharge.
27 Section 1510. Lead acid batteries.
28 * * *
29 (f) Enforcement.--The Department of Environmental
30 [Resources] Protection shall enforce this section.
19990S0397B0406 - 15 -
1 Section 9. The act is amended by adding a section to read:
2 Section 1716. Multiple violations.
3 (a) General rule.--Any operator of a municipal waste
4 landfill found to have engaged in a significant violation of the
5 provisions of this act or the Solid Waste Management Act on
6 three separate occasions within a five-year period shall not be
7 granted any new permit, permit expansion or permit modification
8 by the department for a period of five years. Prior to the
9 adjudication of a third violation, the department shall notify
10 the operator of its intention to proceed pursuant to this
11 section before the Environmental Hearing Board.
12 (b) Notice.--No action may be commenced under this section
13 prior to 60 days after the department has given notice of the
14 third violation to the host municipality, to any affected
15 municipality and to any alleged violator of this act, of any
16 other environmental protection act or of the regulations or
17 orders of the department which have allegedly been violated.
18 (c) Definition.--As used in this section, the term
19 "significant violation" means violations that may harm or
20 threaten to seriously harm the environment, harm or threaten to
21 seriously harm public health or safety, or interfere with or
22 jeopardize the integrity of the monitoring system used by an
23 agency.
24 Section 10. Section 1901 of the act is amended to read:
25 Section 1901. Report to General Assembly.
26 The Secretary of Environmental [Resources] Protection shall
27 prepare a report to the General Assembly concerning the
28 implementation of this act and the success of county and
29 municipal recycling programs. This report shall be transmitted
30 to the General Assembly no later than April 1, 1991, and shall
19990S0397B0406 - 16 -
1 be revised, and modified if necessary, at least once every three
2 years thereafter.
3 Section 11. The amendment of sections 1111(b) and (d), 1301,
4 1302, 1303, 1304 and 1305 of the act shall only be applicable to
5 the siting of new municipal waste landfills which are issued
6 permits for operation after the effective date of this act.
7 Section 12. This act shall take effect in 60 days.
A14L27SFL/19990S0397B0406 - 17 -