Special Highway Committee
May 5, 2004
8:30 a.m.
Draft Minutes
Members present were: Paul Allen, Chairman; Merwin Armstrong; John Steger, Vice Chairman; Scott Elston; Scott Steve, Chairman of the Legislature;
Others present were: Ann Homer; Joe Eggleston; Don Chambers; Judy Drabicki; Mike Cahill; Scott Schrader, Nicole (Cortland Standard)
Mr. Allen called the meeting to order at 8:40 a.m. He thanked the guests, Ms. Drabicki and Mr. Cahill, for coming to speak to us. They are experts in the field. We have not talked about flow control much in committee; individually, we have visited about it. We just authorized approximately $2,000,000 to rebuild the Recycling Center. We are doing work on the landfill. There is much capital work being done and being planned and we need to work to protect the taxpayers and the County.
Mr. Cahill indicated that he and Ms. Drabicki had been working with Oneida/Herkimer for many years. Ms. Drabicki explained that she has been working for years in environmental issues, specializing in solid waste issues. Ms. Drabicki gave some more of her background. She has been working with many entities on flow control. Mr. Cahill explained this is an old idea and was common before 1994. In 1994, there was a Supreme Court case that affected the use of flow control as a tool by waste managers. Recently, the tide seems to be turning back to flow control. Many municipalities around the state are looking to use flow control again. Madison County has put in a flow control system, which has worked well. Onondaga has adopted some legislation, which they haven’t had to put in force yet. Franklin and Dutchess are looking at this as well. You run the system based on the fees that you charge at the gate at the landfill. Two issues you should be ready for: 1) however you set it up make certain it doesn’t run foul of the Constitution and be ready for a lawsuit should someone not like it and want to challenge it; 2) is it efficient, can you enforce it, can you wish cases against people who violate it. It is a tool that if employed well and you stick to it, can take the budget fight/problem away. It opens the door for doing other things. You can plan on some improvements because you will have finances you wouldn’t otherwise have. Ms. Drabicki explained that if you adopt it, you must have the infrastructure to support it. You need at least one part-time officer to enforce it, depending on how the law is written. They need to be able to track it, trace it, prove waste is going out of the county, and ticket for it. In Madison County, Ms. Drabicki does the enforcement – she brings the action against the haulers. This is agreeable because their County Attorney is too strapped. There are different mechanisms for keeping it in. You only have to do a few cases, especially if you only have a few haulers. The word gets out that you are serious about it. Mr. Cahill is a specialist in writing the law and then you have to have strict enforcement, which is what we can provide for you.
Mr. Schrader asked for an update on the case with United Haulers. Mr. Cahill indicated it started in 1995 – 6 local haulers brought the lawsuit. The court didn’t address it until 2000. Judge Pooler said the law is unconstitutional. The 2nd Circuit overturned that decision but sent it back to the District Court for discovery on both sides and applied the more lenient balancing test. Where it stands right now, is that the plaintiffs have opportunity to object to report, which they have done. The District Court will now issue a final decision. Based on the judge’s past history, Mr. Cahill believes he will uphold the decision in favor of the municipality. He is sure if that is the case, the plaintiff will take it to the 2nd Circuit. The original 6 haulers are no longer part of the case, but it is being handled by the national group for Solid Waste Management.
No attempt has been made to sue either Onondaga or Madison. It may be easier to get it through it and worry about enforcing it. You do need to be aware that there is a large group of lobbyists who don’t like flow control. That’s where we are; the decision should come done within the month.
Mr. Schrader asked for more detail on the Pike test. Mr. Cahill said the questions are: 1) are you regulating commerce – if you pass a law that says you must use landfill, then you are regulating commerce; 2) is it intentionally designed to favor someone locally that you don’t give to someone out of state; will you be charging higher tipping fees for out of state haulers; will you not accept bids from out of state haulers. If this is true, the judge will say you are violating interstate commerce. The only way around that is if this is the ONLY way it can get done what needs to be done. If the Court looks at the law and says it regulates even-handedly, the law should stand unless there is an incidental burden that outweighs the benefit of the law. The Court has said that you must find someone out of state who you have treated differently than someone who is in state. If you are "equally bad and equally harsh" it is not a commerce law problem. If the Pike test is applied, the local laws will usually stand as long as you can articulate public purpose. In your public purpose, the legislative intent must be clear on why you are doing what you are doing, including the benefits the law is intended to bring to the committee.
Mr. Schrader asked if the need for more funding was enough of a reason for the law to stand. Mr. Cahill indicated that this may not be strong enough for a law to stand – you need to have more detail in addition to raising revenue. This is an arguable point. Mr. Cahill said the 2nd Circuit has gone beyond the United Haulers and is very clear that the first thing you look at is the impact on interstate commerce. If there is no negative effect, the Court doesn’t even look at the benefits. Mr. Cahill recommends that if we go this way, the local law be written to emphasize more than a financial/revenue raising purpose for the law.
Mr. Schrader said that since our permit restricts us to handling solid waste generated within the County only, would that be in our favor for the local law? Ms. Drabicki indicated that no – because the municipality sets the hauling area, not DEC, this wouldn’t be a strong reason. However, it assists in showing the good faith of keeping the waste within the County.
Mr. Cahill indicated that we must look around and see how our system fits in with those around us. How will it impact those around. Be careful to show that you are being fair to the private sector.
Mr. Schrader asked if the definition of solid waste includes recyclables? Mr. Cahill indicated that it does and recyclables are even easier to justify with flow control because they require such special handling. Flow control pulls all the solid waste issues under one umbrella and one financing system. Mr. Cahill said the question is where are you going to send it? Is your facility public? Try to keep disposal of end product fair – let everyone quote who wants to quote.
Paul Allen asked what would happen if we don’t enact flow control and have an erosion of the traffic to our landfill to another facility and there was an accident 20 years down the road involving an environmental disaster, would the facility to which the material was hauled be able to sue the counties who have hauled to the facility. Ms. Drabicki explained that she just finished a case similar to this, and yes, the County could be held liable if they were found to contribute to the environmental disaster.
Ms. Drabicki asked what the tonnage would be if we had all of it. Don Chambers responded between 27,000 and 28,000 ton per year.
Mr. Steve is of the opinion that if we have flow control and an aggressive recycling program, we could extend the cell life of our landfill.
Mr. Schrader asked the impact if we implement flow control on January 1 – there are municipalities that have long-term contracts with haulers with the assumption that that solid waste would go out of County. What impact does our law have on those contracts? Mr. Cahill indicated that the contract would probably stand – it depends on how the contract is written – if the municipality has the authority to generate where the waste is hauled to – but his suspicion is that the contracts would be valid. They could negotiate a change but the hauler would still be able to take it out of county if the hauler is bearing the cost of disposal. If the municipality is bearing the cost of disposal, the case might be different. Ms. Drabicki indicated that in Madison County, they offered the municipalities to work together with the County; the municipalities there changed their contracts if they could. They phased in the law and it didn’t seem to have any negative impact.
Mr. Steve indicated that one of the items that was discussed is that if we made it economically beneficial to the municipalities, it would be better received. There might be a chance of reducing tipping fees – and that should be part of the goal.
Ms. Drabicki asked if we had a Recycling Coordinator. Mr. Steve explained that we used to, but it was eliminated in the budget process. Ms. Drabicki explained that no one has applied for the Recycling Coordinator grant since 2000 or 2001 and they are begging for applicants, so please consider that. Madison, Fulton, Oneida/Herkimer all use a particular system – and you should model them. Ms. Drabicki said she could provide the website for the Recycling Coordinator money and we should think about taking advantage of that. Ms. Drabicki indicated that in a college community, it should be hard to get the kids on board.
Mr. Schrader asked if there are other, less challengeable alternatives to flow control. Mr. Cahill said you can collect it directly and then you can take it where you want and you charge the people on the tax bill – or set up a special Solid Waste District. You could set up a District without directly collecting it and charge the property owner for disposal and the waste collector could deliver it to the landfill for free. You could also put it all on the value of the property. Those are the things that take a lot more administrative work up front. Mr. Steve indicated that we can’t afford to do it based on property; we are pushing our limit and we can’t afford to do that. Mr. Cahill said that is usually what stands in the way of adopting that type of system. Mr. Steve indicated that we have considered volume discounts.
Ms. Drabicki asked how much of the tonnage we are loosing annually. Mr. Chambers indicated that we are losing between 3,000 and 5,000 tons per year.
Mr. Steger asked how much Madison County was able to reduce its tipping fee with this system. Ms. Drabicki indicated that it dropped about $30 to $40 per ton with the implementation of flow control and combination with other initiatives. They didn’t drop the fees the first year, but they went from a deficit operation to a money-realizing operation. Madison made certain that they communicated to municipalities and haulers that the flow control would be enforcement and would be enforced across the board. Ms. Drabicki indicated that it is important to get everyone on board right up front.
Mr. Steve indicated that we need to remember that we don’t have anything budgeted now for buying more property or building a new cell beyond the 30-year life. Mr. Allen indicated that we also need to update the equipment at the landfill.
Mr. Steger asked about Madison County’s tonnage per year with 35 haulers. Mr. Cahill indicated that it is about 40,000 and it increased to low 50,000’s with flow control. Mr. Cahill indicated that they got about 25% back in the first year.
Mr. Cahill will send us the expert reports from Oneida/Herkimer for review.
Mr. Allen for our county and establishing a new local law – in looking at past local laws that have been put through the Legislature, we discovered one that wasn’t filed, but there is enough of a messiness that we would enact one local law that would rescind all the previous laws and start fresh. Mr. Allen asked what the cost would be for the presenters to prepare the local law. Mr. Cahill indicated that to set it up, they would have to have some further talks to discuss more of the nitty gritty – such as who would provide enforcement and how – assuming we had those things, it would not be a terribly lengthy process to draft a law. Ms. Drabicki indicated that she is in the process of working with Madison County on some amendments to their local law from lessons learned. It would behoove us to follow that. Mr. Cahill is the expert on drafting the local laws, but Ms. Drabicki indicated that she would like to be involved in the process because there are some presumptions she would like built in to the law.
Ms. Drabicki indicated that if this is going to work, we will need to require numbering and labeling of all containers in the County.
Mr. Cahill indicated he will send a "not to exceed" proposal for the cost of preparing this. He will base it on what was done with Madison. The amount of meeting time will affect the cost.
Mr. Chambers asked if there is anything in Madison County regarding labeling trash such as the City of Cortland uses now. Ms. Drabicki indicated that she is not aware of them using any such system.
Mr. Cornell said as the former chairman of the Solid Waste Committee, he has been in contact with some of the major haulers in the past, and he feels the most important part of adopting such a system is to communicate directly with haulers up front and not have them read it in the newspaper.
Ms. Drabicki said the extension education with the haulers is absolutely crucial to making such a system work. You will still experience some problems, but not nearly as many, if you educate and work with the haulers up front. The compliant haulers will start turning in the non-compliant haulers.
Mr. Allen asked what the worst case cost for drafting the legislation would be. Mr. Cahill can’t imagine it would be $20,000, but he doesn’t feel comfortable giving a quotation at this point.
Mr. Schrader will get a proposal from Mr. Cahill so the committee can discuss it further.
The meeting adjourned at 9:50 a.m.