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Proposed Amendment 3941 to House Bill 1436
Note: Amendment 3941 is also included as a part of amendment A4014
H1436B2185A3941 DMS:DH 11/02/01 #90 A3941
AMENDMENTS TO HOUSE BILL NO. 1436
Sponsor: REPRESENTATIVE FEESE
Printer's No. 2185
1 Amend Title, page 1, line 2, by removing the semicolon after
2 "facilities" and inserting a period
3 Amend Bill, page 1, lines 2 through 10, by striking out "and
4 PROVIDING FOR A MORATORIUM; in line 2 and all of lines 3 through
5 10
6 Amend Table of Contents, page 2, lines 4 through 26, by
7 striking out all of said lines and inserting
8 Section 1. Short title.
9 Section 2. Legislative findings and declaration of policy.
10 Section 3. Definitions.
11 Section 4. Construction of act.
12 Section 5. Host municipality agreements.
13 Section 6. Enforcement.
14 Section 7. Civil penalties.
15 Section 8. Regulations.
16 Section 9. Severability.
17 Section 10. Repeals.
18 Section 11. Effective date.
19 Amend Bill, page 2, line 30; pages 3 through 44; lines 1
20 through 30; page 45, lines 1 through 24, by striking out all of
21 said lines on said pages and inserting
22 Section 1. Short title.
23 This act shall be known and may be cited as the Solid Waste
24 Host Municipality Agreement Act.
25 Section 2. Legislative findings and declaration of policy.
26 (a) Legislative findings.--The General Assembly hereby
27 determines, declares and finds that:
28 (1) Solid waste practices create public health hazards,
29 environmental pollution and nuisances and can cause
30 irreparable harm to the public health, safety and welfare.
31 (2) All aspects of solid waste management, particularly
32 the disposal of solid waste, pose a critical threat to the
33 health, safety and welfare of the residents of this
1 Commonwealth when solid waste is improperly managed.
2 (3) The Commonwealth is responsible for the protection
3 of the health, safety and welfare of its residents concerning
4 solid waste management.
5 (4) The construction and expansion of commercial solid
6 waste landfills and resource recovery facilities usually
7 consumes natural lands, thereby impinging upon wildlife
8 habitat and the public's use and enjoyment of the natural
9 resources, including air, water and natural scenic, historic
10 and esthetic values of the environment.
11 (5) Concentrated traffic in the vicinity of commercial
12 solid waste landfills and resource recovery facilities can
13 contribute to and cause substantial harm to this
14 Commonwealth's roadways and environment and to the health and
15 safety of the residents of this Commonwealth.
16 (6) Communities in the areas located near and along the
17 approach routes to commercial solid waste landfills and
18 resource recovery facilities experience traffic problems,
19 litter, odors, noise, dust and other nuisances that are
20 threats to public health and safety resulting from the
21 operation of the facilities and from the transportation of
22 waste to these facilities.
23 (b) Purposes and goals.--The purposes and goals of this act
24 are to:
25 (1) Provide municipalities across this Commonwealth with
26 the ability to control the disposal of solid waste in their
27 communities.
28 (2) Enhance the protection of the public health, safety
29 and welfare from the short-term and long-term dangers
30 associated with the disposal of solid waste.
31 (3) Implement section 27 of Article I of the
32 Constitution of Pennsylvania.
33 (4) Conserve the environment and the natural resources
34 of this Commonwealth.
35 (5) Limit the magnitude of environmental and
36 transportation problems in and around communities which host
37 commercial solid waste landfills or resource recovery
38 facilities.
39 (6) Provide for greater local input from affected
40 residents and communities in the planning of commercial solid
41 waste landfills and resource recovery facilities.
42 (7) Protect residents of the communities affected by
43 commercial solid waste landfills and resource recovery
44 facilities from unnecessary traffic problems, litter, odors,
45 noise, dust and other nuisances that are threats to public
46 health and safety which may result from the operation of the
47 facilities and from the transportation of waste to these
48 facilities.
49 Section 3. Definitions.
50 (a) General rule.--Unless specifically defined in this
51 section, the terms in this act have the same meaning as provided
52 in the act of July 7, 1980 (P.L.380, No.97), known as the Solid
53 Waste Management Act, or the act of July 28, 1988 (P.L.556,
54 No.101), known as the Municipal Waste Planning, Recycling and
55 Waste Reduction Act, or regulations of the Department of
56 Environmental Protection promulgated thereunder.
57 (b) Definitions.--As used in this section, the following
58 words and phrases shall have the meanings given to them in this
59 subsection:
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1 "Commercial solid waste landfill." A landfill permitted or
2 proposed for permitting under the act of July 7, 1980 (P.L.380,
3 No.97), known as the Solid Waste Management Act, for the
4 disposal of municipal waste, residual waste, construction and
5 demolition waste or mixed municipal and residual waste,
6 including mixed municipal or residual waste and construction and
7 demolition debris. The term does not include a captive residual
8 waste facility.
9 "Department." The Department of Environmental Protection of
10 the Commonwealth and its authorized representatives.
11 "Expansion modification." An application for permit
12 modification filed by an owner or operator of a commercial solid
13 waste landfill or resource recovery facility which requests an
14 expansion, either laterally or vertically, of a permit area.
15 "Host municipality." A municipality other than the county
16 which meets one of the following criteria:
17 (1) a commercial solid waste landfill or resource
18 recovery facility or any portion of a permit area is located
19 or proposed to be located within the municipality; or
20 (2) the municipality is located within one-half mile of
21 any portion of a permit area of a proposed or operating
22 commercial solid waste landfill or resource recovery
23 facility.
24 "Host municipality agreement." A written, legally binding
25 document or documents executed by authorized officials of each
26 host municipality and an owner or operator of a commercial solid
27 waste landfill or resource recovery facility.
28 "Municipal Waste Planning, Recycling and Waste Reduction
29 Act." The act of July 28, 1988 (P.L.556, No.101), known as the
30 Municipal Waste Planning, Recycling and Waste Reduction Act.
31 "Pennsylvania Municipalities Planning Code." The act of July
32 31, 1968 (P.L.805, No.247), known as the Pennsylvania
33 Municipalities Planning Code.
34 "Permit." A permit issued pursuant to the act of July 7,
35 1980 (P.L.380, No.97), known as the Solid Waste Management Act.
36 "Secretary." The Secretary of Environmental Protection of
37 the Commonwealth.
38 "Solid Waste Management Act." The act of July 7, 1980
39 (P.L.380, No.97), known as the Solid Waste Management Act.
40 "Volume modification." An application for permit
41 modification filed by an owner or operator of a commercial solid
42 waste landfill or resource recovery facility which requests an
43 increased in average or maximum daily waste volume.
44 Section 4. Construction of act.
45 (a) Liberal construction.--This act shall be liberally
46 construed so as best to achieve and effectuate the goals and
47 purposes of this act.
48 (b) Pari materia.--This act shall be construed in pari
49 materia with the Solid Waste Management Act, the Municipal Waste
50 Planning, Recycling and Waste Reduction Act and sections 1935-A
51 and 1936-A of the act of April 9, 1929 (P.L.177, No.175), known
52 as The Administrative Code of 1929.
53 Section 5. Host municipality agreements.
54 (a) General rule.--Each host municipality may enter into
55 negotiations for the development of a host municipality
56 agreement. If a host municipality agreement is developed, the
57 governing body of each host municipality shall vote to adopt or
58 reject the agreement.
59 (b) Public notice and public involvement requirements.--
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1 (1) If negotiations are entered into, each host
2 municipality shall publish notice that discussions for
3 developing a host municipality agreement with the commercial
4 solid waste landfill or resource recovery facility have
5 begun. The notice also shall describe the public involvement
6 process that the host municipality will use to develop the
7 agreement. The notice shall be published once a week for
8 three consecutive weeks in a newspaper of general circulation
9 in the municipality where the facility or proposed facility
10 is located. The public involvement process shall, at a
11 minimum, include the following:
12 (i) The host municipality shall hold a special
13 public hearing at which a proposed host municipality
14 agreement is presented to the public and at which the
15 public is provided an opportunity to provide oral and
16 written testimony. Notice of the hearing shall be
17 published in a newspaper of general circulation in the
18 municipality not less than ten days nor more than 30 days
19 prior to the hearing. A public comment period of no less
20 than 30 calendar days shall be provided after the public
21 hearing to accept written comments on the proposed host
22 municipality agreement.
23 (ii) The host municipality shall hold a special
24 public meeting at which revisions to the proposed host
25 municipality agreement are presented to the public by the
26 municipality, including changes to the proposed host
27 municipality agreement that were adopted after the public
28 hearing and public comment period. The public shall be
29 provided a reasonable opportunity to ask questions to the
30 host municipality on the host municipality agreement and
31 to provide public comment. Notice of the hearing shall be
32 published in a newspaper of general circulation in the
33 municipality not less than ten days nor more than 30 days
34 prior to the hearing.
35 (iii) The host municipality shall publish the
36 decision on adopting or rejecting the final agreement
37 within 30 calendar days of acting.
38 (2) The public involvement process may contain
39 additional public notice and involvement in a manner
40 determined by the municipality.
41 (c) Contents of agreement.--
42 (1) A host municipality agreement agreed to and executed
43 by the parties shall address the following:
44 (i) The nature of the proposed facility.
45 (ii) The site of the proposed facility or expansion
46 of the existing facility.
47 (iii) Measures to alleviate local issues, such as
48 haul routes, traffic problems, litter, odors, noise, dust
49 and any other nuisances that might result from the
50 operation of the facility. Such local issues shall be
51 identified by the host municipality.
52 (iv) The host benefit fee to be paid by the owner or
53 operator of the facility to the host municipality, which
54 fee shall not be less than the statutory minimum fee
55 established under the Municipal Waste Planning, Recycling
56 and Waste Reduction Act and any other financial and in-
57 kind contributions.
58 (v) The maximum and daily average waste volume to be
59 received at the facility.
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1 (vi) The days and hours of operation of the
2 facility.
3 (vii) The availability of capacity at the facility
4 for the disposal of solid waste generated within the host
5 municipality.
6 (viii) Activities to promote recycling, waste
7 reduction and the proper management and disposal of solid
8 waste generated within the host municipality.
9 (ix) The process for resolution in a cooperative and
10 nonbinding manner of complaints and other grievances
11 concerning the construction and operation of the
12 facility.
13 (x) Provision for access to the facility and its
14 records by the host municipality inspector.
15 (xi) A statement that if Congress enacts a law that
16 places restrictions on out-of-State waste, the host
17 municipality may renegotiate its host municipality
18 agreement in regard to out-of-State waste.
19 (2) A host municipality agreement agreed to and executed
20 by the parties may address any other terms or conditions to
21 which the parties agree should be included in the agreement.
22 (d) Requirement for host municipality agreement.--
23 (1) The department shall revoke the permit of any
24 currently permitted commercial solid waste landfill or
25 resource recovery facility that does not execute a host
26 municipality agreement in accordance with the schedule
27 established in this section.
28 (2) For a commercial solid waste landfill or resource
29 recovery facility for which a host municipality agreement was
30 executed prior to or on the effective date of this act,
31 except as provided in paragraphs (2), (3) and (4), a new host
32 municipality agreement shall be:
33 (i) executed by the owner or operator and the host
34 municipality or municipalities on the date the existing
35 host municipality agreement expires or five years after
36 the effective date of this act, whichever occurs first;
37 and
38 (ii) submitted to the department for review within
39 30 days of execution.
40 (3) For a commercial solid waste landfill or resource
41 recovery facility for which:
42 (i) no host municipality agreement has been executed
43 as of the effective date of this act; or
44 (ii) a host municipality agreement was executed on
45 or before the effective date of this act but which
46 agreement expires within two years of the effective date
47 of this act,
48 a host municipality agreement shall be executed by the owner
49 or operator and the host municipality or municipalities
50 within two years of the effective date of this act and
51 submitted to the department for review within 30 days of
52 execution.
53 (4) For any commercial solid waste landfill or resource
54 recovery facility for which a host municipality agreement was
55 executed prior to or on the effective date of this act but
56 which has not begun to accept solid waste as of the effective
57 date of this act, a new host municipality agreement shall be
58 executed by the owner or operator and the host municipality
59 or municipalities within two years of the effective date of
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1 this act and submitted to the department for approval within
2 30 days of execution.
3 (5) A new host municipality agreement for each host
4 municipality shall be executed in accordance with this
5 section and submitted to the department for review for any
6 expansion modification or volume modification filed by an
7 owner or operator of a commercial solid waste landfill or
8 resource recovery facility after the effective date of this
9 act.
10 (6) A host municipality agreement shall be executed in
11 accordance with this section by an owner or operator and the
12 host municipality or municipalities and shall be submitted to
13 the department for review for any new commercial solid waste
14 landfill or resource recovery facility.
15 (e) Relationship to permit applications.--
16 (1) An application for a permit, volume modification or
17 expansion modification for a commercial solid waste landfill
18 or resource recovery facility which is submitted to the
19 department for review after the effective date of this act
20 shall only be accepted as administratively complete under
21 section 512(a) of the Municipal Waste Planning, Recycling and
22 Waste Reduction Act and the regulations promulgated
23 thereunder if it includes written evidence that a host
24 municipality agreement complies with the requirements of this
25 section and has been executed by the applicant and each host
26 municipality. Such written evidence shall be contained as
27 part of the application.
28 (2) An application for a permit, volume modification or
29 expansion modification for a commercial solid waste landfill
30 or resource recovery facility which is submitted to the
31 department for review on, before or after the effective date
32 of this act shall be issued by the department only if a host
33 municipality agreement that complies with this section has
34 been executed by the applicant and each host municipality.
35 The department shall not issue the permit or permit
36 modification until an executed host municipality agreement
37 has been submitted to the department.
38 (f) Department review of host municipality agreements.--
39 (1) For all host municipality agreements submitted to
40 the department for review under this section, the department
41 shall review each executed host municipality agreement to
42 ensure that the agreement addresses the requirements of
43 subsection (c)(1) and also to ensure that there has been
44 compliance with the public notice and public comment
45 requirements of subsection (b).
46 (2) The department shall review the terms and conditions
47 of the host municipality agreement that address subsection
48 (c)(1)(iii), (v), (vi), (vii) and (viii) to ensure the terms
49 and conditions of the host municipality agreement are not in
50 conflict with the terms and conditions of the existing or
51 proposed permit and applicable regulations. Where the
52 department determines there is a conflict between the terms
53 and conditions of the host municipality agreement and the
54 terms and conditions of the regulations or existing or
55 proposed permit, the more stringent or restrictive
56 requirement or condition as determined by the department
57 shall apply. In making its determination, the department
58 shall consider any comments submitted by any affected or
59 potentially affected party. The department shall modify the
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1 permit to incorporate any such term or condition, including
2 any term or condition that is not addressed in the proposed
3 or existing permit.
4 (g) Enforcement of host municipality agreement.--
5 (1) The terms of a host municipality agreement shall be
6 enforceable by the parties to the agreement. The courts of
7 common pleas are hereby given jurisdiction over disputes
8 between the host municipality and the facility owner or
9 operator regarding the enforcement of a host municipality
10 agreement.
11 (2) A host municipality which is successful in an action
12 brought under this subsection to enforce an agreement
13 involving a facility owner or operator shall be awarded
14 reasonable attorney fees and costs of litigation.
15 (h) Reimbursement of host municipality costs.--At the
16 request of a host municipality, the department shall reimburse
17 the host municipality for costs incurred in negotiating a host
18 municipality agreement under this section. Costs covered shall
19 be limited to costs incurred for professional fees for lawyers,
20 engineers and other professionals used in the efforts to reach
21 an agreement. Any reimbursement shall be provided from funds in
22 the recycling fund established by section 706 of the Municipal
23 Waste Planning, Recycling and Waste Reduction Act or in the
24 Solid Waste Abatement Fund established under section 701 of the
25 Solid Waste Management Act, upon approval by the Governor.
26 Reimbursement shall not exceed $50,000 for each host
27 municipality agreement. The combined total reimbursement from
28 the two funds shall not exceed $750,000 annually or $2,500,000
29 over a five-year period from the effective date of this act.
30 (i) Relationship to other laws.--
31 (1) To the extent the terms of a host municipality
32 agreement differ from any existing ordinance adopted pursuant
33 to section 304(b) of the Municipal Waste Planning, Recycling
34 and Waste Reduction Act and concerning:
35 (i) the hours and days during which vehicles may
36 deliver waste to the commercial solid waste facility or
37 resource recovery facility; or
38 (ii) the routing of traffic to and from the
39 commercial solid waste landfill or resource recovery
40 facility,
41 the host municipality shall amend the ordinance to comply
42 with the agreement within 90 days of the adoption of the host
43 municipality agreement.
44 (2) Host municipality agreements shall be executed by
45 the parties in the manner provided for in this act and shall
46 not be subject to competitive bidding or other competitive
47 procurement requirements.
48 (3) The provisions of section 1305 of the Municipal
49 Waste Planning, Recycling and Waste Reduction Act shall be
50 applicable to any host benefit fee set forth in any host
51 municipality agreement executed pursuant to this act.
52 (4) Except as required by this section, the discussions
53 for developing a host municipality agreement shall not be
54 subject to the requirements of 65 Pa.C.S. Ch. 7 (relating to
55 open meetings).
56 Section 6. Enforcement.
57 (a) Orders.--
58 (1) The department may issue orders to persons and
59 municipalities as it deems necessary to aid in the
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1 enforcement of this act. An order issued under this act shall
2 take effect upon notice unless the order specifies otherwise.
3 (2) An appeal to the Environmental Hearing Board shall
4 not act as a supersedeas.
5 (3) The power of the department to issue an order under
6 this act is in addition to any other remedy which may be
7 afforded to the department pursuant to this act or any other
8 act.
9 (b) Duty to comply with orders of department.--It shall be
10 the duty of any person and municipality to proceed diligently to
11 comply with any order issued pursuant to this section. If the
12 person or municipality fails to proceed diligently or fails to
13 comply with the order within the time, if any, as may be
14 specified, the person or municipality shall be guilty of
15 contempt and shall be punished by the court in an appropriate
16 manner and, for this purpose, application may be made by the
17 department to the court.
18 Section 7. Civil penalties.
19 (a) Authority.--
20 (1) In addition to proceeding under any other remedy
21 available at law or in equity for a violation of any
22 provision of this act, any rule or regulation of the
23 department or order of the department, the department may
24 assess a civil penalty upon a person for the violation. The
25 penalty may be assessed whether or not the violation was
26 willful or negligent.
27 (2) In determining the amount of the penalty, the
28 department shall consider the willfulness of the violation,
29 damage to air, water, land or other natural resources of this
30 Commonwealth or their uses, cost or restoration and
31 abatement, savings resulting to the person in consequence of
32 the violation and other relevant factors.
33 (3) The maximum civil penalty that may be assessed
34 pursuant to this section is $25,000 per offense. Each
35 violation for each separate day and each violation of any
36 provision of this act, any rule or regulation under this act,
37 any order of the department or any term or condition of a
38 permit or permits shall constitute a separate and distinct
39 offense under this section.
40 (b) Procedure.--
41 (1) When the department proposes to assess a civil
42 penalty, it shall inform the person of the proposed amount of
43 the penalty. The person charged with the penalty shall then
44 have 30 calendar days to pay the proposed penalty in full or,
45 if the person wishes to contest the amount of the penalty or
46 the fact of the violation to the extent not already
47 established, the person shall forward the proposed amount of
48 the penalty to the Environmental Hearing Board within the 30-
49 calendar day period for placement in an escrow account with
50 the State Treasurer or any Commonwealth bank or post an
51 appeal bond to the hearing board within 30 calendar days in
52 the amount of the proposed penalty if the bond is executed by
53 a surety licensed to do business in this Commonwealth and is
54 satisfactory to the department.
55 (2) If through administrative or final judicial review
56 of the proposed penalty it is determined that no violation
57 occurred or that the amount of the penalty shall be reduced,
58 the hearing board shall within 30 calendar days remit the
59 appropriate amount to the person with any interest
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1 accumulated by the escrow deposit.
2 (3) Failure to forward the money or the appeal bond at
3 the time of the appeal shall result in a waiver of all legal
4 rights to contest the violation or the amount of the civil
5 penalty unless the appellant alleges financial inability to
6 prepay the penalty or to post the appeal bond. The hearing
7 board shall conduct a hearing to consider the appellant's
8 alleged inability to pay within 30 calendar days of the date
9 of the appeal.
10 (4) The hearing board may waive the requirement to
11 prepay the civil penalty or to post an appeal bond if the
12 appellant demonstrates and the hearing board finds that the
13 appellant is financially unable to pay. The hearing board
14 shall issue an order within 30 calendar days of the date of
15 the hearing to consider the appellant's alleged inability to
16 pay.
17 (5) The amount assessed after administrative hearing or
18 after waiver of administrative hearing shall be payable to
19 the Commonwealth and shall be collectible in any manner
20 provided by law for the collection of debts, including the
21 collection of interest at the legal rate, which shall run
22 from the date of assessment of the penalty.
23 (6) If any person liable to pay a penalty neglects or
24 refuses to pay the same after demand, the amount, together
25 with interest and any costs that may accrue, shall constitute
26 a debt of the person, as may be appropriate, to the Solid
27 Waste Abatement Fund. The debt shall constitute a lien on all
28 property owned by the person when a notice of lien
29 incorporating a description of the property of the person
30 subject to the action is filed with the prothonotary of the
31 court of common pleas where the property is located.
32 (7) The prothonotary shall promptly enter upon the civil
33 judgment or order docket, at no cost to the department, the
34 name and address of the person, as may be appropriate, and
35 the amount of the lien as set forth in the notice of lien.
36 Upon entry by the prothonotary, the lien shall attach to the
37 revenues and all real and personal property of the person,
38 whether or not the person is solvent.
39 (8) The notice of lien, filed pursuant to this
40 subsection, which affects the property of the person shall
41 create a lien with priority over all subsequent claims or
42 liens which are filed against the person, but it shall not
43 affect any valid lien, right or interest in the property
44 filed in accordance with established procedure prior to the
45 filing of a notice of lien under this subsection.
46 Section 8. Regulations.
47 The Environmental Quality Board shall have the power and its
48 duty shall be to adopt the regulations of the department to
49 accomplish the purposes and to carry out the provisions of this
50 act.
51 Section 9. Severability.
52 The provisions of this act are severable. If any provision of
53 this act or its application to any person or circumstance is
54 held invalid, the invalidity shall not affect other provisions
55 or applications of this act which can be given effect without
56 the invalid provision or application.
57 Section 10. Repeals.
58 All acts and parts of acts are repealed insofar as they are
59 inconsistent with this act.
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1 Section 11. Effective date.
2 This act shall take effect immediately.
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