January 27, 1999
Ms. Patti Cronin, Executive Director
Waste Facility Siting Board
201 West Washington Avenue
Madison, WI 53702
RE: Superior Emerald Park Landfill, Inc., Petition for Arbitration
Dear Ms. Cronin:
Waukesha County Environmental Action League (WEAL) is interested in all aspects of siting for the Emerald Park Landfill. I serve as Waste Issues Representative for WEAL and have regularly attended Superior Emerald Park Landfill Siting Committee meetings since March of 1997.
WEAL has a significant membership living within close proximity of the Emerald Park Landfill and we have been actively involved with the Local Approval Process and with the Landfill Licensing Process. In addition, WEAL is a party on the pending Contested Case Hearing.
Superior's Petition for Arbitration raises a number of Environmental Justice issues for our membership. We believe the Petition is without foundation, and if approved, could rob the citizens living near the landfill of their right to fully participate in the local siting process.
During open sessions of Siting Committee meetings citizens are given an opportunity to make suggestions and ask questions regarding various aspects of ongoing negotiations. I have raised issues and offered a number of recommendations on behalf of WEAL during many of the meetings. Arbitration would cease public participation and ultimately the agreement would not include those who are affected most.
WEAL believes the Petition for Arbitration to be unwarranted and asks the WFSB to deny the request and let negotiations with the Local Siting Committee continue.
WEAL has reviewed a number of documents associated with the arbitration request. A substantial amount of directly conflicting information represented as "fact" exists. Because there is so much contradictory information, WEAL fully supports the Local Committee's request for depositions and sworn testimony during the WFSB proceeding to be held on February 3, 1999.
WEAL additionally, supports the issuance of sanctions against any party/parties who have knowingly misrepresented any facts associated with siting negotiations.
Waste Issues Representative, WEAL
October 14, 1999
Ms. Patti Cronin
State of Wisconsin Waste Facility Siting Board
201 West Washington Avenue
Madison, WI 53702-0001
RE: Negotiation-Arbitration Feedback for Superior Emerald Park Landfill, Inc.
Dear Ms. Cronin:
As Waste Issues Representative for the Waukesha County Environmental Action League (WEAL) I have been involved in the Superior Emerald Park Landfill, Inc. siting process since March of 1997.
I attended one session of the Arbitration Hearing in Muskego. The proceeding appeared to be unbiased and fair. My comments will focus on events and issues leading up to the Arbitration Hearing and why Chapter 289 does not address the types of issues faced by communities today when dealing with landfill proposals.
Waste Industry Advantage over Local Communities
Mergers and acquisitions within the waste industry have changed the landscape of waste disposal. Waste disposal is no longer a matter of localities dealing waste generated within their boundaries, but rather megafills and massive amounts of trash. With vast amounts of money at stake, the waste industry has a clear advantage.
Chapter 289 is fundamentally flawed with numerous loopholes the waste industry takes advantage of. For instance, other states have incorporated parameters giving those most affected a more equal standing with the disposal firm. I do not believe any state allows a community to arbitrarily just say "no" but under very specific conditions there is the ability to deny a proposal. In contrast, Wisconsin law does not allow denial by communities under any circumstances, forcing affected municipalities to negotiate under a law that is antiquated.
Additionally, some component of need should be addressed at the local level. Under Chapter 289 the only way to confront the issue of need is through the Contested Case Hearing process and this proceeding is often used as a leverage mechanism to secure a better local agreement.
Landfill Design Capacity Meaningless
Chapter 289.29(d) offers municipalities a false sense of security giving the impression a feasibility report for a new disposal facility will not be approved by the DNR unless disposal capacity exceeds 10 years. However, the waste company can set expectations having no intention of compliance. As we have seen with Emerald Park, the ten-year timeframe was irrelevant.
Because the waste company prepares projections, there should be language within Chapter 289 to set volume limitations based on the Feasibility Report. Local agreements would not be based on artificial calculations and would more accurately reflect realistic community expectations.
Outside Meetings with Landfill Developer
Chapter 289.33(7) clearly indicates responsibility for negotiations is through a local committee. As far as I am aware, there have been no sanctions issued by the WFSB regarding meetings between representatives of the City of Muskego and representatives of the Superior Emerald Park Landfill, Inc. Chapter 289 needs to be revised to clearly address this type of activity.
On several occasions, select members of the Siting Committee met with representatives of landfill without meetings being open to the public. Meetings of this nature are not allowed in Illinois. The Illinois Pollution Control Board has denied siting which was approved by local communities because of improper contact between those approving the project and the developer (Havana Illinois decision 5/94). Wisconsin Law should not allow "outside" meetings between Committee members and the developer.
Early on, Siting Committee meetings were informative, however, as time went on numerous meetings were held in closed session. While closed session meetings are sometimes appropriate numerous meetings of this nature do not allow for an informed public. Additionally, the Siting Committee did not meet for several months due to the Contested Case Hearing.
Contested Case Hearing Participation
Several municipalities along with WEAL filed for a Contested Case Hearing. The Siting Committee did not file for a Contested Case Hearing.
WEAL and the City of Muskego were the only parties with legal representation at the hearing. The hearing was not attended by anyone representing Muskego, Siting Committee Members or anyone else. WEAL members and our petitioners living near the landfill were the only individuals who attended hearing sessions.
Interim Construction Agreement Approval Process
WEAL opposed the Interim Construction Agreement (ICA), particularly language approving clay extraction within the footprint of the proposed expansion prior to a decision on the Contested Case Hearing. WEAL also voiced concerns about potential constitutional challenges from Superior regarding higher fees for out-of-state waste.
The ICA was used as a leverage mechanism by Musekgo to negotiate a better deal in return for withdrawing from the Contested Case Hearing. Days prior to the April 1st deadline for filing Contested Case Hearing briefs, Muskego requested, and received, an extension to April 14th. The ICA was scheduled to go before the Muskego Common Council on April 13th.
The Siting Committee met on April 8th; Attorney Hudec was not present. Several members of the public objected, however the Committee approved the ICA late in the evening, after a prolonged closed session, despite the fact that Superior and the Committee were working from different drafts
On April 13th the Muskego Common Council approved the ICA. On April 14th instead of submitting a brief, Muskego?s attorneys filed a one-paragraph statement withdrawing from the Contested Case Hearing.
Interim Construction Agreement Not Protected Within Chapter 289
In August, Muskego filed various petitions with the DNR to re-open the Contested Case Hearing based on issues related to the ICA. The DNR denied all requests in September. One of denial explanation stated the "statutes do not accord the right to another contested case hearing before the Department to resolve contractual issues between SEPLI and the City. This proceeding is not the proper forum in with to adjudicate those issues."
On September 1st the WFSB decision on the Arbitration process also cited an absence of authority to arbitrate a breach of contract regarding the ICA.
Since the WFSB and the DNR have no jurisdiction in resolving disputes relating to ICA?s, we must question why this arrangement was so aggressively pursued.
Interim Construction Agreement Ramifications Continue
In July, Attorneys for Muskego filed a Complaint in Waukesha County Circuit Court relating to the ICA. A default judgement against Superior was issued in September. The dispute continues with a hearing planned for October 20th regarding Superior?s motion to vacate the decision.
On September 14, 1999 Superior attorney?s filed a Notice of Claim with the City of Muskego.
Waukesha County, Racine County, the City of Franklin, and the Town of Norway were included within the document. If Muskego does not respond within 120 days, Superior has the option to file a lawsuit.
Summary of Issues
Because Chapter 289 allows the Landfill Licensing Process (DNR) and the Local Agreement Process (WFSB) to proceed concurrently, numerous issues impact both proceedings. Resolution of issues often pits one proceeding against the other. We have seen the ICA used to influence the Contested Case Hearing, and the Final Agreement without the DNR or the WFSB having authority to intervene. We have also seen how the ICA has created numerous complaints and lawsuits.
The issues associated with the Superior Emerald Park Landfill should serve, as an example of how Wisconsin?s Siting Laws are in need of revision.
I would greatly appreciate an opportunity to participate in any type of forum to review and revise Chapter 289.
Thank you for this opportunity to present comments on behalf of WEAL.
Waste Issues Representative
Waukesha County Environmental Action League (WEAL)
Waukesha County Environmental Action League
Protecting Waukesha county's Natural Resources Since 1978
To: Members of the Superior Emerald Park Landfill, Inc. Siting Committee
From: Charlene Lemoine, Waste Issues Representative 414-574-7568
Waukesha County Environmental Action League (WEAL)
RE: ACCEPTANCE OF OUT-OF-STATE WASTE
The proposed Interim Construction Agreement you will be voting on during the April 8, 1999 meeting contains language on page 6 (7) that incorporates the proposed Draft Negotiated Agreement as Exhibit 2. The proposed agreement allows Exhibit 2 to be a basis for any agreement negotiated between SELPI (Superior Services) and the Siting Committee.
WEAL asks the Siting Committee to carefully consider ALL the implications of adding language to the agreement which specifically authorizes the acceptance of out-of-state waste. Permission to accept out-of-state waste in the host community agreement will ultimately have widespread ramifications for the City of Muskego, Waukesha County, and the State of Wisconsin. Because your decision on this issue is important and could affect the entire state, this communication is being sent to a number of interested parties and individuals.
In order for you to make an informed decision on this issue I am outlining a number of key elements for your consideration.
Interstate Commerce Clause of the United States Constitution
The Waste Industry has effectively used the Interstate Commerce Clause to import waste across state lines.
Waste Management has led the industry in effectively challenging any and all attempts to restrict the importation of out-of-state waste.
You may not be able to say "No" to out-of-state waste under the Interstate Commerce Clause now, but is it in the best interest of the residents of Muskego and Waukesha County to say "yes" to out-of-state waste by specifically authorizing disposal at Emerald Park in the local agreement?
Imposing a Higher Surcharge for Out-Of-State Waste
Numerous attempts by local communities and/or states to impose higher fees for out-of-state waste have been ruled unconstitutional by the courts. The most significant case involved the State of Alabama and Chemical Waste Management (subsidiary of Waste Management) in June 1992.The United States Supreme Court voted by 8-1 to strike down Alabama?s out-of-state waste fee. This case is often cited by the waste industry when higher fees for out-of-state waste are being looked at by host communities or states.
The proposed clause allowing for acceptance of out-of-state waste in the Proposed Agreement sets a higher payment (surcharge) for out-of-state waste.
Why Would A Waste Company Accept a Surcharge?
Waste Management has a nearly identical clause in their recent agreement for the expansion at the Metro Landfill in Franklin.
The original agreements for Metro and for Emerald Park did not include any language to specifically allow for the importation of out-of-state waste. Why is this clause being introduced now?
The waste companies appear to be willing to accept paying higher reimbursements and not crying interstate commerce violations in return for host community agreements clearly giving permission to dispose of out-of-state waste. This clause alone could be worth millions of dollars to the waste company in the future. This clause could cause an influx of out-of-state waste than cannot be stopped under ANY circumstances.
Proposed Congressional Legislation Is Gaining Significant National Attention and Support
On March 18, 1999 Rep. Greenwood of Pennsylvania introduced H.R. 1190 "Solid Waste Interstate Transportation and Local Authority Act of 1999" in the House of Representatives.
Rep. Gerald Kleczka, Rep. Thomas Barrett, Rep. Tammy Baldwin, and Rep. Mark Green of Wisconsin are cosponsors. On March 18, 1999 H.R.1190 had 48 cosponsors, the Bill now has 61. From Massachusetts to Arizona, and from Texas to Minnesota members of the House of Representatives are joining together to stop the unwanted importation of out-of-state waste.
H.R. 1190 has the greatest widespread bipartisan of any legislation of this nature. The time is clearly coming for states and local communities to have control over out-of-state waste.
H.R. 1190 (and every bill that I have followed over the years) offers an exemption for existing host community agreements, which specifically authorize the owner or operator to accept, at the landfill or incinerator, out-of-state municipal solid waste.
H.R. 1190 also puts a freeze on out-of-state waste to 1995 levels. Emerald Park and Metro did not import ANY out-of-state waste in 1995..
For Years the Waste Industry Has Prepared for Legislation Restricting Out-of-State Waste
On March 23, 1995 Robert Eisenbud, Director of Legislative Affairs for Waste Management addressed the Subcommittee on Commerce Trade, and Hazardous Materials, Committee on Commerce, U.S. House of Representatives. (Document available upon request)
In regard to potential legislation allowing states and local communities to restrict the flow of out-of-state waste, Mr. Eisenbud had this to say on behalf of Waste Management:
"Let me stress that we are not "just saying ?No?" to any and all proposed legislation. We would not object to legislation that establishes new rules for receipt of out-of-state waste by facilities that have not previously received, entered binding contracts to receive, or gained authorization from a State or local government to receive such waste.
The Waste Management proposal goes on to state that the legislation should be "grandfathered" for facilities that, before enactment, entered into a Host Community Agreement (HCA) or obtained a permit from the State or authorizing receipt of out-of-state MSW."
Residents of Muskego, Waukesha County, and Across the State of Wisconsin Do NOT Want Out-of-State Waste
On 10/8/97 WEAL mailed petitions with more than eleven hundred signatures opposing out-of-state waste to Governor Thompson. Additionally, WEAL has received financial support for our legal fees associated with the Contested Case Hearing on the proposed Emerald Park Expansion from residents in Muskego and all over Waukesha County. Financial contributors have told us loud and clear they do not want Wisconsin to become the dumping ground for out-of-state waste.
From attending numerous Landfill Siting Committee meetings, I believe the Committee does not wish to have out-of-state waste disposed of at Emerald Park. Because you cannot stop out-of-state waste under the Interstate Commerce Clause, there appears to be a sentiment that "if we have to take it (out-of-state waste) at least we will get increased payments."
WEAL is asking that you consider all the potential ramifications of including a clause specifically allowing Superior to import out-of-state waste. Please ask yourselves the following questions:
1. Why would Superior or Waste Management or any waste company agree to pay higher payments for out-of-state waste to a host community when they could quickly and inexpensively litigate this charge and win?
2. Why at a time when the general public across the nation is fed up with being dumped on, is language of this nature appearing in so many newly negotiated agreements for expansions when the language was not included on agreements for the initial agreements?
3. Do you believe as Waste Management did in 1995, that some form of waste restriction legislation is sure to be enacted in the future?
4. Is there any possibility whatsoever that legislation such as H.R. 1190 or one of the other Bills now before Congress could be enacted into law in the future?
5. How will you as a Siting Committee member explain to your constituents why, after weighing all the facts. you decided to include a clause authorizing the acceptance out-of-state waste?
WEAL is asking you to strike the clause from the proposed agreement. WEAL strongly believes that it is not in the best interest of Muskego, Waukesha County or the State of Wisconsin to have such a clause within the contract.
WEAL is particularly concerned because the initial Feasibility Report of 12/96 submitted to the DNR by SEPLI had included a plan to import waste from six counties in Illinois that include and surround Chicago. Although the original plan has been scaled back and the Service Area revised, SEPLI is not bound by the present Service Area and can still carry out a plan to import unrecycled Illinois garbage to Emerald Park.
WEAL does not believe any amount of money (dump dollars $$$$$) justifies the addition of a clause within the proposed agreement to grant approval for out-of-state waste. We hope you agree.
Thank you for the opportunity to relate WEAL?s concerns regarding the out-of-state waste clause as proposed.
CC: Rep. Gerald Kleczka
Waukesha Solid Waste Management Board
Rep. Thomas Barrett
Mayor David DeAngelis, Muskego
Rep. Tammy Baldwin
Muskego City Council
Rep. Mark Green
Waukesha County Executive Daniel Finley
Governor Tommy Thompson
Waukesha County Board Members
January 2003 Edition