NOVEMBER 2008

Pennsylvania given ok to restrict waste removal

In what is being viewed as a major victory for Pennsylvania local and county governments, a Federal Appeals Court has ruled that Lebanon County and its affiliated Greater Lebanon Refuse Authority (GLRA) did not act improperly when they required a private municipal trash hauler to use the county’s landfill even though there were cheaper disposal alternatives outside the county.

James J. Kutz, a partner in the Harrisburg Office of Philadelphia-based law firm Post & Schell, P.C., which defended the GLRA in the complaint brought against it by hauler Lebanon Farms Disposal, Inc., said the ruling reverses the July 2006 U.S. District Court decision that found the county’s comprehensive solid waste plan unconstitutional because it discriminated against interstate commerce.

“The Appeals Court decision constitutes a clear change in Third Circuit precedent,” commented Kutz. “Counties can now require that all waste generated within the county be disposed of at their municipal landfill. Previously, counties were prohibited from imposing such a restriction absent compelling circumstances.” Kutz added, “The ruling gives the Commonwealth and its counties a new, reasonable option with which to finance, monitor and enforce environmentally-sound waste disposal practices without running afoul of the federal Commerce Clause.” He noted that the Appeals Court remanded the matter to the lower court.

In 2003 Lebanon Farms was fined by the GLRA for violating Lebanon County’s disposal regulations by transporting refuse to a landfill in Schuylkill County, Pennsylvania. The hauler argued that it was unlawful under the Commerce Clause for the county to require it to use the county-owned landfill in North Lebanon Township.

Kutz said the Appeals court relied heavily on the 2007 U.S. Supreme Court ruling in a New York case, United Haulers Association Inc. vs. Oneida-Herkimer Solid Waste Management Authority, to support its opinion that the county and refuse authority acted properly and did not discriminate against the hauler.

In Pennsylvania, local governments are required under Act 101 (Management Waste Planning, Recycling and Waste Reduction Act), to develop and adopt solid waste flow plans and update them every 10 years. Lebanon County’s 10-year plan was last revised for the period 2001-2010 and it designated the county-owned facility as the exclusive site for municipal trash disposal in Lebanon County.