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HomeMy WebLinkAbout1994-05-23 94-239 ORDINANCEl:1 COUNCIL ACTION Item No. 94-222 4 Date May 23, 1994 Item/Subject: Amending Chapter V, Article 1, Section 15 Of the Laws A Ordinances of the City of Bangor -- Solid waste Disposal Responsible Department: Legal See attached memorandum dated May 17, 1994. Department•i i Head Finance Director City Solicitor M°V mtroduced For NEW BUSINESS Passage R First Reading Referralda"ofo- Page I of 5 94-239 s AroipMI to Councilor Sullivan May 23. 1994 ' ° CITY OF BANGOR NNpp (TITLE.) anrlbi13A1SCrt ending Chapter v, Article 1 of the Laws k Ordinances of the City of Bangor -- Solid waste Disposal Be it ordaiud by the City Commit of W City ofBam;vn as fd(saa: THAT Chapter V, Article 1, Section 15, Subsection 15.4 of the Laws and Ordinances of the City of Bangor be amended to read as follows: "15.4 Plow Control. All acceptable solid waste generated within the City of Bangor shall be disposed of at she a licensed disposal facility, o at alternate disposal sites cr transfer stations approved by the City of Bangor. Peseke6es-Energy Neeevaey-sae}}}sy-}a_Brr}egseat by municipal residential curbside pickup, or by commercial haulers who are licensed as hereinafter provided.c The -Only xee@E#Ona-w#ll-Be-as}}eenaeg-Aaa}esa-a€-aeaeee@Eagle rese�-ex-a}seeease-d#egesa}_s}ses-ee-txane€er by-tsh#ees-teh-weyh.}All waste generated within the City Bangor shall be disposed of at facilities licensed for the disposal of such waste." Note: Deletions are streak -eat and additions are underlined. IN CITY COUNCIL May 23, 1994 First Reading Referred to Municipal Operations_ In City Co,mcil June 13 1994 Indefinitely Postponed C1ty Clerk 94-239 ORDINANCE TITLE,) encoding. Chapter v, Article 1 of the Leve 6 Ordinances of the City of Bangor - Solid Neste Disposal. ^ Aeagned to �/ I A , /i) 94-239 MEMORANDUM 5 May 17, 1994 T0: Bangor City Council FROM: Erik Stumpfel, City Solicitor RE: Solid Waste Plow Control Ordinance The Council may have noticed an article in this morning's Bangor Daily News reporting that the U.S. Supreme Court, in an opinion issued on Monday, has ruled that municipal "flow control' ordinances requiring disposal of municipal solid waste at particular disposal facilities are invalid as an unlawful interference with interstate commerce. The City of Bangor currently has a flow control provision in its solid waste ordinance, see copy attached (sec. 15.4), directing that all "acceptable waste" generated within the City be disposed of at the PERC facility in Orrington. Based on the SUN'S report of Monday's Supreme Court decision, it appears that section 15.4 of Bangor's ordinance is now unenforceable, as it pertains to commercial waste haulers and other private parties disposing of Bangor -generated solid waste. Therefore, 1 have drafted a revision to section 15.4 for first reading at the Council's next meeting on May 23, 1994. The flow control provision of Bangor's solid waste ordinance was adopted at a time when it appeared that such a provision was necessary to enable Bangor to meet minimum tonnage requirements Underu our tipping fee agreement with PERC. However, based on the current agreement with PERC and the current market situation, I anticipate that the Supreme Court's invalidation of municipal flow control ordinances will not have aserious negative impact on Bangor's coat of disposal of municipal solid waste, for the following reasons. 1. As part of the contract renegotiations between PERC and the charter communities' Municipal Review Committee in 1992-1993, conducted as part of the PERC-Refusnik settlement process, the minimum tonnage required to be delivered to PERC from all charter communities was reduced from 180,000 tons per year to 155,000 tons per year. This total may be met on a pooled basis among all charter communities. Individual charter communities incur financial liability for the shortfall in their assigned annual tonnage only if the total for all charter communities falls below 155,000 tons per year. The total tonnage delivered by all charter communities in calendar 1993 was 164,855 tons. 2. Under the 1993 revisions to the charter c unities' tipping fee agreement, PERC moat continue operations so long as the total tonnage delivered by all charter communities does not fall below 140,000 tons per year, provided the difference between tonnage actually delivered and 155,000 tons total is made up on a put -pay basis by the communities that fail to meet their individual delivery commitments. 94-239 3. Bangor is obligated to deliver 27,000 tons of acceptable waste per year to PERC. In 1993, we delivered, or had credited to our account, a total of 29,634 tons. Of this total, 8,500 tons was delivered directly by the City from residential curbside pickups. The 21,000+ ton balance was delivered by commercial waste haulers subject to the current (and now invalid) flowcontrol requirement. Based on 1993 figures, therefore, it would require a 12.58 defection of Bangor's comerclal waste haulers to other disposal options before Bangor would fail to meet its contractual obligations to PERC. 4. PBRC enjoys a substantial price advantage over nearly every other option for solid waste disposal in northern and central Maine, except for the few licensed landfills currently remaining in operation. The Supreme Court's invalidation of municipal flow control ordinances i unlikely toa t exodus of private commercial waste haulers from PERC, and may draw additional non -charter business from formerly restricted waste hauling operations in southern Maine. Ultimately, this may result in an crease in emulative performance credits accruing after April 1, 1991, 506 of which will become payable to the charter communities after March 31, 1995, if we elect to continue the current tipping fee agreement in force. Previous Supreme Court decisions have held that solid waste is an article in interstate commerce, under the commerce Clause. The current decision appears to be an extension of these earlier holdings. Local flow control ordinances, by preventing locally generated waste from entering the stream of commerce, nstitute an unlawful infringement o interstate commerce under u current law. However, because the c clause grants Congress plenary power c to regulate c commerce the several states, Congress has the ability to reverse themSupreme Court's recent decision by legislation which could, for example, declare that municipal solid este is not an article of c and i subject to regulation by States and municipalities undertheirpolice power. To the extent that Bangor or the MRC might wish to reinstate legal flow control requirements, it would be appropriate to contact our congressional delegation with a request to propose a legislative solution in this area. Rest. Solicitor Bruce Shibles has already placed a call to Senator Cohen's office to discuss a legislative option. In the interim, if the City elects to provide for its own solid waste disposal by private contract, we should make sure that any such contract specifies that all acceptable solid waste subject to the contract continue to be delivered to PERC. Delivering or requiring delivery of Bangor's municipal waste to PERC where the City is the direct provider of disposal services (by contract o Otherwise) would not constitute an invalid flow control arrangement under yesterday's Supreme Court decision. C.S. R.S. pc: Edward Barrett Jim Ring Arthur Stockus Bob Farrar Bruce Shibles David Pellegrino Don Meagher, MRC 94-339 Ch. V: Art. 1 Sec. 15(15.4) - 15.8 15.4 Plow Control. All acceptable solid waste generated within the City of Bangor shall be disposed of at the Penobscot Energy recovery Facility in Orrington, by municipal residential curbside pickup, or by commercial haulers who are licensed as hereinafter provided. Theonly exceptions will be unlicensed haulers of unacceptable waste, or alternate disposal sites or transfer stations which may be designated from time to time by the City. 15.5 Licensing. All c rcial haulers must obtain a annual license from the office of the Bangor City Engineer. The license for the first year shall end on June 30. 1988, and on the thirtieth (30th) day of Juneof each year thereafter. The City Engineer shall devise an application form which shall be approved by the City Council Public works Committee prior to its use. Each application must be accompanied by a list of the current license plate numbers of alltrucks owned by him which are to be used to haul w tthe PERC facility. The list shall be kept up to date, and changesmust be reported immediately t the City Engineer's Office. trucks with unregistered plates will not be permitted access to the PERC facility. Only vehicles which are in good operating condition. which have their loads enclosed within atainer or ored securely, and r which a capable of discharging their loads on the PERC facility tipping room floor by mechanical means will be licensed. All licenses ate non-transferrable. 15.6 Pees. The City Council shall establish annual fees for the licensing of commercial haulers, which shall include a basic fee and an additional fee for each vehicle to be licensed. Unlicensed haulers shall obtain a decal from the City Treasurer's office, requiring proof of residency, and shall be required to pay any fees for disposal which may be established by the City Council. I5.7 Credit for Tonnage. It shall be the responsibility of the comial hauler to insure that the City of Bangor Is given credit bysPERC .for all acceptable waste collected within the City of Bangor and delivered to the PERC facility by him. Acceptable solid waste collected by a commercial hamlet within the City of Bangor shall not be cc -mingled in a vehicle with any other solid waste collected In anyother municipality. 15.8 Responsibilities of the Hauler. The commercial hauler shall be held fully responsible for the presence of unacceptable waste in the loads delivered by him to the PERC facility. In theve ent that the commercial hauler disposes of any unacceptable w the PERC facility, said este shall be immediately removed from said PERC facility by the hauler at the hauler's expense, r by the City or Its agents, with double the cast of removal and disposal to be billed to the hauler. The hauler shall be fully responsible for the handling of waste between its source e In Bangor and the PERC facility in Orrington, and shall save the City of Bangor harmless from any or all claims of injury or damage resulting from his hauling operations.