Bill Text: PA SB825 | 2011-2012 | Regular Session | Introduced

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Bill Title: Defining "affected municipality"; further providing for permit requirements, for powers and duties of the Department of Health and for site limitation; providing for public participation in expansion of existing facilities; further providing for protection of capacity and for host municipality benefit fee; authorizing an affected municipality benefit fee; providing for effect of multiple violations; and making editorial changes.

Spectrum: Slight Partisan Bill (Democrat 3-1)

Status: (Introduced - Dead) 2011-03-14 - Referred to ENVIRONMENTAL RESOURCES AND ENERGY [SB825 Detail]

Download: Pennsylvania-2011-SB825-Introduced.html

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PRINTER'S NO. 843
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No. 825 Session of2011
INTRODUCED BY BOSCOLA, RAFFERTY, FONTANA AND FERLO, MARCH 14, 2011
REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY, MARCH 14, 2011
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 permit requirements, for powers and
duties of the Department of Health and for site limitation;
providing for public participation in expansion of existing
facilities; further providing for protection of capacity 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.
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* * *
"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
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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,
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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
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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
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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
20110SB0825PN0843 - 7 -
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
20110SB0825PN0843 - 8 -
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
20110SB0825PN0843 - 9 -
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. Chapter 13 heading and sections 1301, 1302, 1303,
1304, 1305 and 1510(f) of the act are amended to read:
CHAPTER 13
[HOST MUNICIPALITY] BENEFIT [FEE] FEES
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
20110SB0825PN0843 - 10 -
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.
20110SB0825PN0843 - 11 -
(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
20110SB0825PN0843 - 12 -
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
20110SB0825PN0843 - 13 -
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
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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
20110SB0825PN0843 - 15 -
[Resources] Protection shall enforce this section.
Section 8. 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 9. 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
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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 10. 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 11. This act shall take effect in 60 days.
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