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Home My WebLink About01-1833 FX 'i'!i .. .... ... '. ..' y . NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA vs, : CIVIL ACTION - LAW : NO, 2001- I f33 : IN EQUITY HOPEWELL TOWNSHIP, Defendant NOTICE You have been sued in court If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court, your defenses or objections to the claims set forth against you, You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you, YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 II '~'.' :"" ' .. .. , .., f ..,.. " . NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA vs, : CIVIL ACTION - LAW HOPEWELL TOWNSHIP, Defendant : NO, 2001- Jf33 : IN EQUITY ~/~ COMPLAINT COUNT I 1, Plaintiff is North Newton Township, a township of the second class located in Cumberland County, with offices at 255 Ott Road, Shippensburg, PA 17257- 9513. 2, Defendant is Hopewell Township, a township of the second class located in Cumberland County, with offices at 257 Newburg Road, Newburg, PA 17240, 3, A landfill is located in both of the townships, The location is set forth in certain documents and surveys that are part of the records maintained by the Pennsylvania Department of Environmental Protection (DEP), Plaintiff incorporates the relevant portions of those documents herein, 4, Over the past several years the landfill had been in the process of expanding the operations in an application referred to as the "Newton Expansion", 5, Over those years the landfill had various owners and at the present time it is owned and operated by Waste Systems International, Inc" (WSI) with offices at 420 Bedford Street, Lexington MA 02420. 6, Plaintiff had requested a determination by DEP, as part of the expansion process, as to how the Host Municipality Benefit Fee (tipping fee) mandated by 53 P.S, Section 4000,1301 would be allocated between the townships, 7, Plaintiff has yet to receive a written response from DEP to its request Depending on the allocation determination by DEP the Plaintiff or Defendant may elect to proceed with litigation before the Environmental Hearing Board of Pennsylvania (EHB) and the appellate courts II -',.1" ... k . , . 8, If the DEP allocates the tipping fee as to the entire permitted area, despite the closure of the disposal areas in Hopewell Township, and that determination is upheld by litigation before the EHB and through the appeal process, then North Newton is entitled to a proportionate share of the tipping revenues received by Hopewell Township from July 1, 1998 when the Newton Expansion was permitted, 9, The Plaintiff believes that it is entitled to approximately half of the aforesaid tipping fees if the entire permitted area is considered and approximately eighty per cent if only the expansion area is considered, WHEREFORE, Plaintiff respectfully requests that the Court; A determine what the allocation amount is, based upon the final determination, and calculate the amount the Defendant should pay to Plaintiff from July 1,1998 to the time of hearing; and B, provide such other relief as is just and equitable, Respectfully submitted, O'BRIEN, BARIC & SCHERER By: ~~MV Robert L O'Brien, Esquire Attorney for Plaintiff LD, # 28351 17 West South Street Carlisle, Pennsylvania 17013 II < " - ... , . < . I verify that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S, S 4904, relating to unsworn falsification to authorities. ~t~~ Dated: 10\ Z/21..>YV I' II 6 ... NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNA. : vs. : CIVIL ACTION - LAW HOPEWELL TOWNSHIP, Defendant : NO. 2001 - 1833 : IN EQUITY DEFENDANT'S PRELIMINARY OBJECTION TO PLAINTIFF'S COMPLAINT Defendant, Hopewell Township, by its undersigned attorney, preliminarily objects to plaintiff's complaint pursuant to Pa. RC.P. 1028(a)(4) as follows; DEMURRER TO PLAINTIFF'S COMPLAINT 1. Plaintiff and defendant are both Pennsylvania townships of the second class. Plaintiff s complaint generally deals with matters concerning a landfill, portions of which are located in each of the townships, since a recent expansion of the landfill area across their common border from defendant township into plaintiff township. A copy of plaintiff s complaint is attached as Exhibit" A". 2. In paragraphs 6 to 8, plaintiffs complaint alleges that it has requested ofDEP a determination as to how the host municipality benefit fee (tipping fee) should be allocated between plaintiff and defendant, that it has not as yet received any written response from DEP to its request, and that, depending on how DEP does respond to plaintiffs request, defendant will be entitled to a share of tipping fee revenues already received by defendant since July 1, 1998. 3. Plaintiff is asking this Court to determine its rights in anticipation of an event (DEP's response to plaintiff's request for an allocation of host municipality benefit fees between plaintiff and defendant) which has not occurred, and which may never occur. 4. In the absence of any determination by DEP as requested by plaintiff, no actual or justiciable controversy and no cause of action exists or is imminent between the parties. 5. The courts of this Commonwealth do not possess judicial power to determine anticipatory causes of action or to decide cases that have not as yet arisen between parties 6. Plaintiff s complaint sets out a cause of action which is anticipatory and asks this Court to decide a case between the plaintiff and defendant which has not as yet arisen, - ~., "' - ~ .'~~ .. 7, Plaintiffs complaint alleges no facts as to why July 1, 1998, is the date after which plaintiff is entitled to a share of tipping fee revenues already received by defendant. 8. Plaintiffs complaint is based upon its claim to a proportionate share of the host municipality benefit fee (tipping fee) mandated by the Municipal Waste Planning, Recycling and Waste Reduction Act, 53 P.S. sections 4000.1301 - 4000.1305 (hereinafter, the "Act"), 9. The operator of the landfill which lies in portions of each of plaintiff township and defendant township is Waste Systems International, Inc. (hereinafter, "WSr'). 10, Section 4000,1301 of the Act imposes liability for payment of the host municipality benefit fee (tipping fee) upon the operator of the landfill, in this case, WSI. A copy of section 4000.1301 is attached as Exhibit "B". 11, Plaintiff has alleged no facts in its complaint which would justify transferring the liability for payment of the host municipality benefit fee (tipping fee) from WSI, the operator of the landfill, to defendant township. 12. No reason appears in the complaint why defendant should be liable to pay to plaintiff any portion of the host municipality benefit fee (tipping fee) to which plaintiff may eventually be entitled. 13, Plaintiff s complaint fails to state a claim upon which relief may be granted. WHEREFORE, defendant respectfully requests that this Court sustain defendant's preliminary objection by way of demurrer and dismiss plaintiff's complaint. Dated: ApriV3 ,2001 def, Attorney for Defendant, Hopew Township 701 East King Street Shippensburg, P A 17257 Telephone (717) 532-9476. ~ ,~,. , '.' ~.:-; ~. ~ .., ..~~ ~.,~ ~ _~~~ ,~........~ J , I .-'-'''-'.' ..- ~ (%0\:: . NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO, 2001- ff{'3 '> : IN EQUITY HOPEWEll TOWNSHIP, Ii Defendant Ii Ii II II il II ,-' 4: ,.' . COMPLAINT COUNT I I I i' I I I i i I I I 1, ' Plaintiff is North Newton Township, a township of the second class located in Cumberland County, with offices at 255 Ott Road, Shippensburg, PA 17257- 9513. 2, Defendant is Hopewell Township, a township of the second class located II in Cumberland County, with offices at 257 Newburg Road, Newburg, PA 17240. I' I! :! 3, A landfill is located in both of the townships, The location is set forth in II I: " certain documents and surveys that are part of the records maintained by the l! !i Pennsylvania Department of Environmental Protection (DEP). Plaintiff incorporates the " !' relevant portions of those documents herein. 4. Over the past several years the landfill had been in the process of i: i! expanding the operations in an application referred to as the "Newton Expansion". ij I' 5. Over those years the landfill had various owners and at the present time it I is owned and operated by Waste Systems International, lnc., (WSI) with offices at 420 I Ii Bedford Street, Lexington MA 02420, i: jj 6. Plaintiff had requested a determination by DEP, as part of the expansion ii II process, as to how the Host Municipality Benefit Fee (tipping fee) mandated by 53 P.S. I: I Section 4000,1301 would be allocated between the townships, I 7. Plaintiff has yet to receive a written response from DEP to its request. , Depending on the allocation determination by DEP the Plaintiff or Defendant may elect to proceed with litigation before the Environmental Hearing Board of Pennsylvania (EH6) and the appellate courts. Ii ,I l: " ,w..... J.I i 1 I 8. If the DEP allocates the tipping fee as to the entire permitted area, II despite the closure of the disposal areas in Hopewell Township, and that determination . is upheld by litigation before the EHB and through the appeal process, then North II Newton is entitled to a proportionate share of the tipping revenues received by II Hopewell Town.shipfrom July 1, 1998 when the Newton Expansion was permitted, ;' 9. The Plaintiff believes that it is entitled to approximately half of the , '~i.. .a. .~..ore. s.aid tiPPin~ f~es if the entir~ permitte.d area ,is considered and approximately "~\~i~(i;,~if,~..I9\'!tY. per cent If only the expansion area is conSidered. ! WHEREFORE, Plaintiff respectfully requests that the Court; I: A. determine what the allocation amount is, based upon the final 1/ II determination, and calculate the amount the Defendant should pay to Plaintiff from July ii .1,1998 to the time of hearing; and I' B. provide such other relief as is just and equitable. II 1\ Ii Respectfully submitted, I: ;' : O'BRIEN, BARIC & SCHERER !' !i i ~ 1; [! d n 1] Ii Ii ~ ! ii I ~ By: ~~M-V Robert L O'Brien, Esquire Attorney for Plaintiff 1.0. # 28351 17 West South Street Carlisle, Pennsylvania 17013 , II ", ." "-' " '-, ~'~o I I I I I I I , . -~ "~"'''~'.'~~. :~~~ i': : -' \.", i.i;: : " . :~ ; ( :" lr'"....,.''''"!.~;~~'~'~~.~n:ltl:7''.,,'~';- \ \ j! Ii 'I correct to the best of my knowledge, information and belief. I understand that false I I j \ I verify that the statements made in the foregoing Complaint are true and statements herein are made subject to the penalties of 18 Pa. e.s. ~ 4904, relating to unsworn falsifiClation to authorities. ,.. ," .- ~t~~ I I \ \ II II 'I Dated: lei Z/2C"lD I ,i Ii " " Ii :, " i! H " I! " if [, d II It , I I I , ! i , i , i , I , I I I , 1 , I ,: '~'J, ~ ,. .111\ '-"'''''iiiilll~ 53P~S~ f 4000.1301 CIPAL&QU.ASl..MUN..CORBS~ ". CHAPTER 13.H . M ICIPALlTYBENEFIT FEE.:;"'. " .. ,.' " . ',;, ,.,,""'1.-'" r., f 4000..1801. ]float municipali ,efit fee .' . ,. .(aillJl~tionr-There .la~po~a heiSt ~unjf:iP!lllQl~t ttleupon ~ Q~t4r of each mWlielpal waste Iand1m or reBO\IfCe recovery (aj:lUQI tbat hllS a valid penmt' on ~effflCtive dIite of.tbis ~ or receivea a new pennit Q1~UJll't rwll1tem.-lditiQnal capacity. from tile department UIlder . U1e .' Solid Ww !,Mlllll8OI>>.l!IltAllt1 ~., ~ eff~vedate ot thla act. The tfle sbaU be paid tQ tbebtjatmwlicipality.. J.t, ~e hOll~ municipality owns or operates the ~fjll ,or taeility,~et~~'llI>tbeim~.tor. waste geMratedwithin such municipality. It the J"ntlft11i or tacjlity .Is located within more than one.host municipality, the teesbaU be appQJ:tiOtiedamolllthem~rding to the~. ofthepemU~.lU'e&~ted ~ _bm~~~ty;';':" ,;:.':~;".:'" . (b)Amount.~The tee la $I per toDcitweiBhed*,liQ~teor,.l~~ cubie 1arda of volume-meuured ~Iid waste for aI180lid Wl!lIte~ved ,at .1andfi!l or taeility. Anyamounta paid by an operator to 'a hOliltmuni!lipaUty'p~\I!Ulttoa preexisting ~t shall .serve as ,a credit against . the ' tee 'amOllJlfbnposed' by this.. section. . ' , . ' '. , ' " , . .' ~ " '1 . ; ~ ' ':': . ' ':.~ i ' . . (~) Municipl options.-Nothi,n'g in thla section 0; aeeti,olll802' 'ebIJ1 FeveJit, boat municlPll3ityfrom receiving a higher tee or receiving th4feem(ditfel!ll'it fann or'at different times than provided in thla section and sectionllW2; it the host municipality andtheo~tor((the municipal,waste 1andtiU or re&o1U-ce'reCov~facllityagree in writing." 'i' ...."<C'".". '., ,'. ". "". !O'. ' ' '.'C""'" , . '. . ,~'; , . " \ r-. j ; .-' (d) Supenede.";'The fee bnposed by thla section shall preempt and ~persede any tax imposed on each municipal waste landfill Oil' re&ollJ"Cll recOvery facility' .under the aCt of December 81, 1961i(P.L. 1267. No.lilll.lwown as The Lclea! Tax EJl&bIini~a..which lain 8Xll!lBB of the amount inlpo~ onorbl!fore Decembln-3l:,l~, ',:,'i'U '.. (e) CowlQ' options.-Nothing In this act shall prevent a host county f'romnegotiating a fee or tee in a different fonn; it the hoot county and the operator of the ;municipal .waste 1andtlll orreaollJ"Cll recovery agree In writing. 'Any county which bas negotiated .. fee as of the effective date of this actrnay. require :that the ifee': be: ContinUed. 1988, July 28. P.L.liIi6. No.l01, A 1301. etTectivein 60 days. ' ',""; ,;ji!\', U:i '135 P.s. f6018,10ht seq. .". .. .,;j 1,i.!:ill.W.; ;;';<.<0:' 'ISection4000.i302oftltistitle. ", 101:/>:;;,'; ;;;,>r.',A , 'Section 6901 et'seq. of this title. . . . ,',. ,;;:,;,;;",..,.! +:",'::,.' ,: ' I: ,;! ;~;jr~;;fi~ fi,n;~.;:' '1S.;~\ ~.' :,'1:/ .. t)'ni~. .d ~~tes'SuprelJle:~~,:!~,:;;i;:';:v~:":I";:';;~ ". , ,,', ~'" .., , :.' i' " ' ::., ,',f'. ,'.'. ' \., "" .~, J....' ,.',' ',I .." ,,;. . Soli(! waste disposal. disGriminalion in favor of "S.C!. 1677. $11,l,I~. '~, 1~1..~ .3~! pn local b~sec C" A CarbOne. Ine:. v. . remand 617 N.Y.sJd 482. 208 A,O.2d 612. , T'!)VII ofa~.N'Yn:IJ.s,N.Y.I994..114 ", "~I :""'!\'.: ;",'. .";e,<::,"'''1\.,,.'I, \..1 , ,,.:.'.. -;,; :j",.," ""::$.~, "..] AJIpo!1l~'ID..t . 3' . CoulnlctlollulhppJleatloll:z . ValldJIfot tu: ,Ii, .. Notes of Decisions ., ;:'" ':..,' i: ' ..,,\;": . .' '..' al of York, Ine:. v.J)epartment of'Environ~lal -" Resources, 615A.2d 824;:.150. Pa,Cmwllh,il01, ...r",Cmwlth.1992.,'" ~.'. t"<.i ~;;J_:,"'i,~J; r;.,' ";n';;~:',~ Fees imposed bY Mllni\:ipal W~ "lanning, " Reqdingand WlIite Rec111~ion"AC:l lirC'imposed on all solid' waste entering '11lIIdfill; iDc:llidillB WlISte transferredfJom one IlIIIcIfilI.lQ lIIlOtIter lIS part of volllnlal'y cleanup opcral/9'" :M~\'Il Trash Removal of York, Inc;v,Depaltltlenc'of , Environmental RCSOIlrecs, 6IS.~;l4 1i24,' J~ fa. Cmwlth. 101. Cmwllh.l992.., ,,>.. ,'0",' " '. '.',.Ii '.' I,. . '. '. [.,.. 3. AppotdolUlleat ,;. '. ;,'1 " . In allocating hoSl mllnicipality bencfl1.fee with respect 10 landfill located withiri two hOSl mllnjQ. ^ .-. . _~^l T't~ ., ;,1' , L VaUclIl)' of WI " - . Waste disposal tax WIIS not excessive even Ihousb it generated greater revenllC6 than that ' generated by boSI mllnicipality fee. Orand Cent. Sanilal'y Landfill, Inc, v. Township of Plainfield, S89 A.2d 767, t38 Pa.Cmwllh. 640, Cmwllh,t991. :z. Coostnactlon and application Thp. n""ni=\nmcnt of Environmental Resources i)l ,Rc OJ p~ ] ,till bo: Iml m~ mil f ':, j ~ mt cia: Ml: ( pal OPt Ian I1e< Iii ,tin ;,;.( ,~ ,,' ."":'r ( J ;.~.t "1" ;'( ,\l4lt P/tJ '1:, ( lnd dIU !~~ "J t~ (; ber. eat< :IS ~ ,(I ope acid JUe .add .;26i ,". (, mil.' .j'- I... . j i._,i I _~t, ./ SHERIFF'S RETURN - REGULAR ~O' 1// CASE NO: 2001-01833 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND NORTH NEWTON TOWNSHIP VS HOPEWELL TOWNSHIP BRIAN BARRICK , Sheriff or Deputy Sherirf of Cumberland County,pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon HOPEWELL TOWNSHIP the DEFENDANT , at 0013:05 HOURS, on the 2nd day of April , 2001 at 14 HOOVER DRIVE NEWBURG, PA 17240 by handing to LAVON BODEN (TWP. SECRETARY) a true and attested copy of COMPLAINT & NOTICE together with IN EQUITY and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 12.40 .00 10.00 .00 40.40 ~~.t"r~~ R. Thomas Kline ~ .;{'I ~ day of 04/03/2001 OlBRI::: BARRICK & SCH.'~.1 . ~Ifl[ ~ Deputy Sheriff Sworn and Subscribed to before me this ().I:l",,'JI :l6o I A. D. q~ < 14.Q.~, r thonotary .~ o!!!-'- ~ ~ "" . > ~ w.._ J ,,1'1 hO" "l~oI''li'l .... ~ ~l:' ,J .. .. ' ." NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW HOPEWELL TOWNSHIP, Defendant : NO. 2001- 18gg : IN EQUITY MOTION TO AMEND 1. Movant is Robert L. O'Brien, Esquire, attorney for the Plaintiff. 2. Respondent is Hopewell Township, the Defendant, by and through the Township Supervisors who are represented by Sally J. Winder, Esquire. 3. Subsequent to the filing of the Complaint in this matter, the Pennsylvania Department of Environmental Protection issued a determination that the Host Municipal Benefit Fee should be allocated 54% to Hopewell and 46% to North Newton. A copy of that communication is attached hereto, 4. North Newton Township is satisfied with the allocation determination as the figure had been worked out between the litigants with the assistance of the engineer for the townships. 5. Based on the monies received by Hopewell Township from the permit date of July 1, 1998, the Plaintiff has calculated its claim for damages as follows: A. 7/1/98 to 9/30/98- $43,659.74 with per diem interest of $6.24 from 4/20/01 to the date of payment. Said interest rate calculated at the legal rate as are all subsequent calculations. -"" ~. - l= L......._ 11'1 ~'"' .~, ~~ , . "'<4. .. ... . .' .. B. 10/1/98 to 12/31/98- $28,850.99 with per diem of $4.17 from 4/20/01 to date of payment. C. 1/1/99 to 3/31/99- $23,009.12 with per diem of $3.37 from 4/20/01 to date of payment. D. 4/1/99 to 6/30/99- $36,296.93 with per diem of $5.39 from 4/20/01 to date of payment. E. 7/1/99 to 9/30/99- $33,624 with per diem of $5.07 from 4/20/01 to date of payment. F. 10/1/99 to 12/31/99- $38,185.28 with per diem of $5.83 from 4/20/01 to date of payment. G. 1/1/00 to 3/31/00- $36,732.54 with per diem of $5.69 from 4/20/01 to date of payment. H. 4/1/00 to 6/30/00- $35,656.61 with per diem of $5.68 from 4/20/01 to date of payment. I. 7/1/00 to 9/30/00- $37,010.17 with per diem of $5.98 from 4/20/01 to date of payment. J. 10/1/00 to 12/31/00- $30,383.78 with per diem of $4,98 from 4/20/01 to date of payment. K. Payments received after 4/1/01 to the extent the payment represents North Newton Townships proportional share. jl!l..... -~" c.~' . '.... ," .1. I llL....~. .. ~". "~~ _ ll!iil:'::-4 . ... , .' .. Wherefore, Movant respectfully requests that the Plaintiff, North Newton Township, be granted leave of Court to file an amended Complaint in reference to the allocation as determined by DEP and the damages as established by the funds received in periodic payments by Hopewell Township. Respectfully submitted, O'BRIEN, BARIC & SCHERER < ~~ Robert L. O'Brien, Esquire Attorney for Plaintiff 1.0. # 28351 17 West South Street Carlisle, Pennsylvania 17013 By: clientlnntlamend.mot , . " ~ . L.J~~_. ~ L........"I~, ---,., ?R-03-01 TUE 04:09 PM Ho~th Newt.on TWP 7175325372 1'.02 ,.. , . Pe~nsylv.ania Department of Environm~l1tal Protection 909 tlnterton Avenue Harrisburg, l'ellnsylvania J7110 March 28, 2001 South central Regional Office (717) 705-4706 FAX (711.705-4930 Mr. Jim Stipe, General Manager Community Refuse Sen-ice, Inc, , 142 Vaughn Road Shippensburg, Pa 17257 'Dear Mr. Stipe: Re; Host Municipal Benefit Fell Permit No, 100945 Cumberland County l.andfill Hopewell and North Newton T oWllships There has been some confusion relative to the payment of host fees when landfills are located in multiple municipalities, Section 1'301 of Act 101, Tbe Municipal Waste Planning, Recycling, a.nd Waste Reduction Act. is clear about.this issue as it states: "If the landfill or facility is located within more than one host municipality, th~ fee shall be apportioned among them according to the percentage of the permitted area located in each municipality.>> Our understanding is that there is a 54/46% split in permitted area between Hopewell and North Newton Townships Iftbis ratio is incorrect, please ad"ise the Department. Both Townships should be paid accordingly. {fyou have any questions regarding this, please do not hesitate to contact us at the above number. Sincerely, 1.:'. UP;~ Don Korze~1;~i Facilities Specialist .. - Waste Management i r ., ''''\Tlrl;)f..;-' ~\ ~ 1,' '.:'. '. \ Jl ,1 ~:: .:.. " J. ~.,. 'I ~ ~ c~; ~oj:le~eU 1'~~\lip.::.-.:,. :. l ,....j...J:j"~"'"'1F'~ ' "..".~ ..."..~. 'a' '0 ..." ,,;, ...._,~, '...... . ..., ., P:, ,.. .,,1' Cumberland County Solid Waste Authority (TQIJI Imphong) . '.. t1 f\PP C ~ 2001 l.ii~:; -.;';~._;_.\ . -o4,~.....~."'a_.' hi tqu>l OWo<\U.lItty Emplov" www.dep.state.pa.us Prinle4 M Jlec>rINIp",., fjjb , "'" .. __'.H .-." . ~'~'~M ''''__'"'''k,,'_' , --"~~'bb:, PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and subnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter f= the next Argunent Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) Nom NRAJ.Jfvy, f"o(/l)nshif (Plaintiff) o C) ~ ""1:1(.;::' fT1i'l-: -/"T' ~~:': r:::c' ~ ~zo ~o ?c..: z :;t 3: :,__1" -" vs. l'..1 <--' c) -..:.9 "_--T~S " ~) __---1 -\,,::". :0 ~ f+or~NeJ;L /oWYl<;;h~f ~~;: C" .;;:- (Defendant) .;).00/ ~ 1~33 No. Civil 61",1[) 19 1. State matter to be argued (i.e.. plaintiff's llCtion for new trial. defendant's ~/~ 2;~~~;r~r' iz, Pf~/~hffs Cum~nk. <', ", f,- ,I " 2. Identify =unsel who will argue case: ., ~wC o'f3('/ell, fs;"". (a) f~;tiff: 17 VJ~st Souln St'. U . &//s/e, fA (70/3 (b) for defendant: StilI/; J. WirJ-t(, es'i. Address: 70 ( 0 E. ~ St. V Shl~b~ (JA 17d-f:7 3. I will notify all parties in writing within boio days that this case has been listed f= argunent. 4. Argl.Inent Court Date: 7/;).~ /0/ Dated: S' /;}.3 /0 I ~ -JW~ Att~ey = 1>efe.r.Ja,..,~ f/optA-vdL T[/J P , 6~ [,[ ,~ Jtl . . . NORm NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNA. vs. : CIVIL ACTION - LAW HOPEWELL TOWNSHIP, Defendant : NO. 2001 - 1833 : IN EQUITY ANSWER TO MOTION TO AMEND Comes now, the Defendant, Hopewell Township, by and through its Solicitor, Sally J. Winder, and does Answer the Motion to Amend as follows: 1-2. ParagIi3phs 1 and 2 of the Motion are admitted. 3. Denied. On the contrary, the letter of March 28,2001, from Don Korzeniewski, of the Department of Environmental Protection does not constitute a determination, or ruling, as to allocation of the host municipality benefit fee. It is a request for affirmation from the landfill operator that the fee is to be split according to the percentages stated in the letter. 4. Admitted in part and denied in part. It is admitted that North Newton Township is satisfied with a 54% to Hopewell Township, 46% to North Newton Township allocation of the host municipality benefit fee. Denied that this figure was "worked out between the litigants with the assistance of the engineer for the townships." On the contrary, calculations as to percentage of permitted acreage in each township were obtained from the survey plans submitted to the Department ofEnvrronmental Protection. The allocation percentages referred to by Plaintiff are merely area calculations. 5. Denied. On the contrary, the permit date was not July 1, 1998. As to the calculations of damages, Plaintiffhas not set forth any legal basis or theory for finding that Respondent Hopewell Township is liable for damages in any amount, or that I_~ i 'I ~ i;L ~-~ ---~'-"""', Hopewell Township has any duty or obligation for payment of monies to North Newton Township. Further, Movant North Newton Township has set forth no basis for its claim of interest at the legal rate. WHEREFORE, North Newton Township should not be granted leave to file an Amended Complaint in the form set forth in its Motion to Amend. Respectfully submitted, Sally J. Wi der, Esquire Attorney for Defendant 701 East King Street Shippensburg, P A 17257 ~,._~~ .~ l J _ I~~"", I 'I - '->.8- . VERIFICATION I verify that the statements made in this answer to motion are true and correct to the best of my personal knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa C.S. Section 4904, relating to unsworn falsification to authorities. Date: 7//1 oj I ~t' JiJ!.~ , NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW HOPEWELL TOWNSHIP, Defendant : NO. 2001-1833 : IN EQUITY NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or qy an attorney and filing in writing with the court, your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. , i :~ " i,: " I'; ii 1-' , i' ~ i YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 17013 (717) 249-3166 - '; , NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW HOPEWELL TOWNSHIP, Defendant : NO. 2001-1833 : IN EQUITY FIRST AMENDED COMPLAINT 1. Plaintiff is North Newton Township, a township of the second class located in Cumberland County, with offices at 255 Ott Road, Shippensburg, PA 17257- 9513, 2. Defendant is Hopewell Township, a township of the second class located in Cumberland County, with offices at 257 Newburg Road, Newburg, PA 17240, 3. A landfill is located in both of the townships, The location is set forth in certain documents and surveys that are part of the records maintained by the Pennsylvania Department of Environmental Protection (DEP). Plaintiff incorporates the relevant portions of those documents herein, 4. Over the past several years the landfill had been in the process of expanding the operations in an application referred to as the "Newton Expansion". 5. Over those years the landfill had various owners and at the present time it is owned and operated by Waste Systems International, Inc" (WSI) with offices at 420 Bedford Street, Lexington MA 02420. 6. Plaintiff had requested a determination by DEP, as part of the expansion process, as to how the Host Municipality Benefit Fee (tipping fee) mandated by 53 P.S. Section 4000.1301 would be allocated between the townships. 7, The permit process is lengthy and the landfill changed ownership several times during the permitting process. At one point and time the state put a moratorium on landfill permits and subsequent to the lifting of that moratorium the permits that were ~~""_ _ ~,. _~'O_, __ ~ ,-",.,-., c.,.,!, ,.. "'n_' -'",., ,1-",;",*-,,--,,'" i"-' '-i,. ;;,.,.-;1-", -,,-', ,.:1 I ;~-""""'> ,; """.1__ ,;;,,,,.~,'_ "0," .",',_- _-';.." ~..,o"--' __ < ,. ~._ _= '. _~ / in the pipeline were moved forward. Finally on July 31, 1998 the Newton expansion permit was granted to the landfill owner. 8, In the process of anticipating the grant of the permit, North Newton Township contacted DEP by letters and by telephone calls requesting their assistance in determining the allocation between the townships of the $1.00 municipal host fee required for each ton of waste deposited. Despite these requests, the matter was ignored by DEP and the landfill owner continued to pay the $1,00 per ton host municipal fee solely to Hopewell Township, 9, The Defendant never requested that the DEP issue a determination in reference to the division of the municipal host fee. 10. Subsequent to the filing of the Complaint in this matter, the Pennsylvania Department of Environmental Protection issued a determination that the Host Municipal Benefit Fee should be allocated 54% to Hopewell and 46% to North Newton. A copy of that communication is attached hereto. 11, A concern in identifying this allocation was the actual location of the dividing line of the townships, Both townships shared the same engineering firm as their consultant and requested that the engineers conduct an investigation and make recommendations in reference to the location of the dividing line and the percentage allocation of the permitted area in each township. 12. As early as 1996 the supervisors of the Townships began a series of meetings in consideration of the pending permit In August 1996, Governor Ridge issued an executive order halting DEP's review of all expansion applications, Governor Ridge noted the importance of the local government involvement in the permitting process, 13. In 1997 the Townships, in conjunction with the Solid Waste Authority of Cumberland County, commissioned Gannett Fleming, Inc" to conduct an independent engineering review of the expansion permit In August 1997, a written report was submitted to the Townships, 14. The Townships continued to be advised and participated in the application process which culminated in the grant of the expansion permit on July 31, ~.~ > -'~"-'''-' ,--~"~,,>c,''; ,~, - '~__"_, _-_,"J,.-l._,',, _'_ ."__,,.;...,~'_ ~._- ;>1,." ,I, " .,'. -J.L,,,,_; '~, 'J'~r~~" ".-' "..-;;,.{,;'-,;;,;-~,,;-.:..'._'- '~ );;1 I i I I I , 1998. From that date until April 2001, the Defendant received all of the host municipal fee, 15. Based on the monies received by Hopewell Township from the permit date of July 31, 1998, the Plaintiff has calculated its claim for damages as follows: A. 7/31/98 to 9/30/98- $33,416,92 with per diem interest of $4,78 from 4/20/01 to the date of payment Said interest rate calculated at the legal rate as are all subsequent calculations, B, 10/1/98 to 12/31/98- $28,850,99 with per diem of $4,17 from 4/20/01 to date of payment C. 1/1/99 to 3/31/99- $23,009.12 with per diem of $3.37 from 4/20/01 to date of payment D. 4/1/99 to 6/30/99- $36,296.93 with per diem of $5.39 from 4/20/01 to date of payment E, 711/99 to 9/30/99- $33,624 with per diem of $5.07 from 4/20/01 to date of payment F. 10/1/99 to 12/31/99- $38,185.28 with per diem of $5.83 from 4/20/01 to date of payment G. 1/1/00 to 3/31/00- $36,732,54 with per diem of $5,69 from 4/20/01 to date of payment H. 4/1/00 to 6/30/00- $35,656.61 with per diem of $5.68 from 4/20/01 to date of payment I. 7/1/00 to 9/30/00- $37,010.17 with per diem of $5.98 from 4/20/01 to date of payment J, 10/1/00 to 12/31/00- $30,383.78 with per diem of $4.98 from 4/20/01 to date of payment K. Payments received after 4/1/01 to the extent the payment represents North Newton Townships proportional share. TOTAL: $333,166.34 with per diem from April 20, 2001 at $50,94 _ .--- - . "'~ -'" "=- ' :'" 1 ._;'-.;:, -,- I~ r.C' -I,'" ,I 'L.c'~;'~' ,._if' ,:'. i'.-,"",",-:.:,/>,;;.:,'"ci~,,, '! / -' COUNT I BREACH OF FIDUCIARY DUTY 16. The Plaintiff incorporates paragraphs 1 thru 15 herein, 17, At all times relevant hereto the Defendant stood in a fiduciary capacity to the Plaintiff. The statutory authority of Pennsylvania states the following: 53 P.S, S 4000.1303, Collection and Enforcement of fee. Constructive Trust: All host municipality benefit fees collected by an operator and held by such operator prior to payment to the host municipality shall constitute a trust fund for the host municipality, and such trust shall be enforceable against such operator, its representatives and any person receiving any part of such fund without consideration or with knowledge that the operator is committing a breach of the trust..., (emphasis added) 18. The parties had thirty days from the DEP determination of March 28, 2001, in reference to the allocation of the host municipal benefit fee, within which to appeal the determination. Neither party has appealed, 19. The Defendant, in a deposition taken of it's supervisors, on June 27, 2001, stated that it was satisfied with the allocation as determined by DEP, 18. Despite repeated requests from the Plaintiff to the Defendant to deliver the monies it has received and to which the Plaintiff is legally entitled, the Defendant has refused to do so. 19. The failure of the Defendant to pay over the sum due to the Plaintiff and to which it is legally entitled, in conjunction with the Defendant's statutory fiduciary obligations, constitutes outrageous conduct and is in reckless indifference of the Plaintiff's rights and the Defendant's obligations, - ,.. '" >~ r~ "~ _<""'" , ,_ < ^ .-,;' ^ _"J',,- ""1_, -->, .1 '" _~ .m,,', ,I..,' ,-,:.',--1--il. ,_" "'''--:'' ,. '..''',~>> '"," """,","i, J WHEREFORE, Plaintiff respectfully requests that the Court; A. Order and direct that the Defendant pay the sum of $333,166.34 and per diem at the legal rate of $50.94; and 8, Order and direct the Defendant to pay Plaintiff's attorney's fees and costs; and C. Order and direct the Defendant to pay punitive damages to the Plaintiff for its conduct; and D. Provide such other relief as is just and equitable, COUNT II ACTION FOR MONEY HAD AND RECEIVED 20, The Plaintiff incorporates paragraphs 1 thru 19 herein. 21, The Defendant, non-tortiously and without actual notice of the exact amount due the Plaintiff, albeit with notice that the Plaintiff had a valid and enforceable claim for some portion of the proceeds, received host municipal benefit fee payments from the landfill. 22, The Defendant gave no consideration for the receipt of the Plaintiff's funds. 23. Despite demand for payment of the funds received, the Defendant has refused to pay the money had and received. WHEREFORE, Plaintiff respectfully requests that the Court; A. Order and direct that the Defendant pay the sum of $333,166,34 and per diem at the legal rate of $50,94; and ,,"'"_c, ',",1."< .~'.". r.';;, '. _, i ,~ ., -,A" _' L,.I,;:.",__..~,,,,.~..,.., 'c"_I'",.,.;..;!:;"I.:.',. '_,'. '''''' '_~:'~~',.L~,f--..;-c'_,~.,:~",. ' -:1 ;j , , ! , 1 i I ! i , I I , ;1 ;1 " " B. and costs; and Order and direct the Defendant to pay Plaintiff's attorney's fees C, Order and direct the Defendant to pay punitive damages to the Plaintiff for its conduct; and D. Provide such other relief as is just and equitable. Respectfully submitted, O'BRIEN, BARIC & SCHERER BY:~~ Robert L. O'Brien, Esquire Attorney for Plaintiff 1.0, # 28351 17 West South Street Carlisle, Pennsylvania 17013 ,.1 :.i " ., rob/nnUamend.com '! ,I 'I :1 \1! ''''''' , " , ~ 1 , , .~, 1- "',1_ ~-- '-," ,. .. . . I verify that the statements made in the foregoing First Amended Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~ 4904, relating to unsworn falsification to authorities. 1~ -:;;H2 DmsO.~ , ~~,' c-I ".......1 ',LL ~'-" " Pennsyl~allia Department of Environmental Protecti01'l '0' llmertoll Avenue Barrlsbu"ll. Pennsylvania )7110 March 28, 'lOOt SouthteUlral Regiona' Offiee (717) 705-4706 FAX (717-705-4930 Mr. Jim Stipe, General Manager Community l\el'usc Senice, Inc, . 142 Vaughn Road Shippetlsburg, Pa 17251 ''Dear Mr. Stipe: Re: Host Municipal Benefit Fee Pemlit No. 100945 Cumberland County Landfill Hopewell and North Newton Townships There has been some confusion relative to the payment of host fees when landtilIs are located in multiple muniCipalities. Section t3010f Act 101, Tile Municipal Waste Planning, Recycling, and Waste Reduction A~. is clear about:tlUs issue as it states: "lfthe landfill or facility is located within more than one host municjpal~ the ~ shall be apportioned among them according to the percentage of the permitted area locatedin'eacb m.unicipality." Out understanding is that there is a 54/46% split in penniited area between Hopewell and North Newton Townships If this ratio is incorreCt, please ad"ise the Department. Both Townships should be paid accordingly. If you have any questions regarding this, please do not hesitate to contact us at the above number. Sincerely, " ; . ' . , ..,~ ~ : " t?!:~ Facilities Specialist " -. .. .'\'l'~li'T\('I';)(.;-1 W 10'.' :t.: .".T!, I!' asteManagement ,',; .',,,,,, ',.1 ...,,, ,'~ , , q), ~QDew.eU 1'Q~\uP':"'-7'- ", I '~'*. ..,,/it....;...;..;,.... " .".,~ ,,::;'..._,_..., :w :t:'!YR!"!.-P::., '..I' Cumberland County Solid Waste Authority (Tom ImphoDg) .:. . . ',. ~ ! f\PP fl ~ 2001 ..~;" .",' ::~:"'., U, ~...V"--~'~ ., ......~ . .., ,~". ..... ~.... ....,. . "" EQu>I Ol>P"rlun;1y Emplov<< www.dep.state.pa.us Prinlt4cn 1lccwW_ ~ , i;';~ ...._~liIlliJ1~illil~WltiMi_1'!b""r--""lr~illi'~1~~~"'~ '~,' ~...~ . ,,,.il-,,,tIJJIIJ 1 urn ~~,~"=.".d~~~'~'. __ ".."~u '"<~". H .~ ~''''''''J ' ' c.:-"-'uO~l!ilr .." o c: .'01:';:-' S21~r -;0'\- (i,' ,,~ , ~' ,,- -:;: e~~,. .- ~:':CJ P'C:: 2: ~,,' -< ~-"> -'~iliIB" ~:.' C~) "\\ ,""'. ',:~") r-"..) 0'.1 ':-Cl :C) N ;,):-n ::;;.:: ~n :OJ (P ~ ~ ~ o~'.; \. !~ ,.. ..~ -,'" ,,-- ~ '[h - ~~, PRAECIPE FOR LISTING CASE FOR ARGUMENT (MUst be typeIo1ritten and suhnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argm\ent Court. CAPTION OF CASE (entire caption must be stated in full) NORTH NEWTON TOWNSHIP, ( Plaintiff) VB. HOPEWELL TOWNSHIP, ( Defendant) No. 01833 ll9 2001 Civil Term 1. State matter to be argued (Le., plairltiff's rrotionfor new triaL defendant's danu=er to ccrnplaint. etc.): Plaintiff's Motion To Amend 2. Identify counsel who will argue case: (b) for defendant: Address: Robert L. O'Brien, Esquire O'Brien, Baric & Scherer 17 West South Street Carlisle, Pennsylvania 17013 Sally J. Winder, Esquire 701 East King Street Shippensburg, Pennsylvania 17257 (a) for plaintiff: Address: 3. I will notify all parties in writing within two days that this case has been listed for argunent. 4. Argunent Court Date: July 25, 2001 ooted: June 28, 2001 R)6~ Attorney for plaintiff :t~'f~;;it\,;;i,,j;';'>'II-,,",."J&-i>''''",,i,,.1''','.iJ'~1!'''l...,.;:J'<<<'!i,,,;!;.~1b.~h-.ii:.;;'~;;;'i", ,"'.!" ,'~"~,~", :"'~''''i""t''l~t,Jj~;iII'liiti~~I~ ~-- [., !!1-4J~UHlL.~.';:; ~:...jJ~J,.l~.lJlJJ~:j~JFJ;fL,^", ","".""_~L"'__'>1.",li:!-"_">,,,,, " '~.",'_~~~_ ~-', ~" -~i_"r~'''''''''-''''''''"'''' ,. ("', C "TJ tJ; []Jet- =":? F~' roC;;:.: "" ;::.]2:" rC'- ~'"" J> ~_ 2~"'l _' ':f;C c: :2:: -'.j -<; 1 ~~ ~~ ,~..."".,""-'-'lI~""'" ~" ;'-,,) C:;::, -~!.:' . , ,::';-' ::;:, '..., , , =: -;"-' E* .-"'.. - , ,--.' "'",,",-- ~,Y' -~.~-~ ~- "' ~'--- ,,- '....\:i NORTH NEWTON TOWNSHIP, PLAINTIFF : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. HOPEWELL TOWNSHIP, DEFENDANT 01-1833 EQUITY BEFORE BAYLEY. J. AND OLER. JR.. J. ORDER OF COURT AND NOW, this ~ day of July, 2001, IT IS ORDERED: (1) The preliminary objections of defendant to plaintiffs complaint, ARE DISMISSED. (2) Plaintiffs motion to amend its complaint, IS GRANTED. Robert O'Brien, Esquire For Plaintiff :saa .~ -~~ \'~.' ~() vYt- Sally Winder, Esquire For Defendant - Jll I,', J ljl ~- ~ ' ~~"" . ; NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYL VANIA vs. : CIVIL ACTION HOPEWELL TOWNSHIP, Dell'endant : NO. 2001-1833 : IN EQUITY DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S FIRST AMENDED COMPLAINT Defendant Hopewell Township, by its undersigned counsel, preliminarily objects to plaintiff's :first amended complaint as follows: PRELIMINARY OBJECTION RAISING FAILURE TO CONFORM TO PA. R.C.P.I019 1. Plaintiff has filed a complaint against the defendant in this matter, alleging, inter alia, damages as the result of defendant's wrongful retention of plaintiff's share of the host municipality benefit fee paid by a landfill located within the boundaries of both plaintiff and defendant. 2. Plaintiff has further alleged that damages are due and payable since July 31, 1998, the date on which DEP issued or granted a permit to the landfill for expansion into plaintiff municipality. 3. The claim of plaintiff is based upon a writing, i.e., the DEP permit allegedly issued or granted on July 31, 1998. 4. Pa R.c.P. 10 19(h) required that, where any claim is based on a writing, the pleader shall attach a copy of the writing or the material part thereof, if the writing is accessible to the pleader. 5. Plaintiff's:first amended complaint does not have attached to it a copy of the DEP permit, nor does it contain any averment that such writing is not accessible to it. 6. Under Pa. R.C.P. 1028(a)(2), a party may preliminarily object by way ofa motion to strike off a pleading because of lack of conformity to rule of court. 7. The first amended complaint is defective under Rule l019(h). 1 . , . . _ J d. "-~r - I-I I 8. The first amended complaint being defective, it must be stricken. WHEREFORE, defendant respectfully requests that plaintiff's first amended complaint be stricken. DEMURRER TO PARAGRAPH 19 AND CLAIM FOR RELIEF IN COUNTS I AND II REQUESTING PUNITIVE DAMAGES I. Defendant is a Pennsylvania municipality, a township of the second class. 2. Plaintiff's first amended complaint, in paragraph 19, avers as follows: 19. The failure of the Defendant to pay over the sum due to the Plaintiff and to which it is legally entitled, in conjunction with the Defendant's statutory fiduciary obligations, constitutes outrageous conduct and is in reckless indifference of the Plaintiff's rights and the Defendant's obligations. 3. In the prayer for relief in both Count I and Count II, plaintiff requests punitive damages be awarded to it and against the defendant. 4. Under Pennsylvania law, punitive or exemplary damages against the state or any municipality thereof are void as against public policy, and cannot be awarded. 5. As such, plaintiff's paragraph 19 of the first amended complaint, and its prayers for relief requesting punitive damages, are legally insufficient and should be dismissed. WHEREFORE, plaintiff respectfully requests that this Court sustain defendant's preliminary objection by way of demurrer and dismiss paragraph 19 and the two punitive damages prayers for relief in plaintiff's first amended complaint. ~TDEMURRERTOCOUNTIANDCOUNTII OF PLAINTIFF'S FIRST AMENDED COMPLAINT 1. Plaintiff's first amended complaint alleges that defendant is liable to plaintiff for 46% of the total host municipality benefit fee paid by the landfill from July 31, 1998, through April 20,200 1. 2. In support of its claim, plaintiff attached to its first amended complaint a letter, dated March 28,2001, from DEP to the landfill, stating, inter alia, 2 "I i ,',' "',~'~ ,~' ;;."< l I ~ l'l , ,-^ ~ """ "j~);\, "Our understanding is that there is a 54/46% split in permitted area between Hopewell and North Newton Townships. If this ratio is incorrect. please advise the Department. Both Townships should he naid accordingly. " (Emphasis supplied) A copy of the letter is attached hereto as Exhibit "A". 3. The foregoing letter from DEP to the landfill, dated March 28,2001, constitutes an official act of an agency of the Commonwealth of Pennsylvania 4. Under ordinary circumstances, official acts of Commonwealth agencies have prospective force. 5. There is nothing contained in the letter from DEP to the land.fill. dated March 28, 200 I, nor are there any averments in the first amended complaint, to show that the percentage split stated in the letter should be applied retroactively. 6. As such, plaintiff s first amended complaint is legally insufficient and should be dismissed. WHEREFORE, defendant respectfully requests that this Court sustain defendant's preliminary objection by way of demurrer and dismiss plaintiff s first amended complaint. SECOND DEMURRER TO COUNT I AND COUNT II OF PLAINTIFF'S FIRST AMENDED COMPLAINT I. Plaintiff s first amended complaint alleges that defendant is liable to plaintiff for a percentage of the total host municipality benefit fee paid by the land.fill since July 31,1998. 2. In support of its claim, plaintiff alleges that defendant stood in a fiduciary capacity to the plaintiff, under the statutory authority of 53 P.S. section 4000.1303, which states that all host municipality benefit fees shall constitute a constructive trust for the host municipality, which may be enforceable against any person receiving any part of said fund without consideration or with knowledge that the operator is committing a breach of the trust. 3. Plaintiff quotes a portion of the statutory section, but left out the important last sentence which states: , .) 1 ~ _ ~"I '.1 . I 1iinllli1Wll'~---~'~,-' "However, any person receiving payment of lawful obligation of the operator from such fund shall be presumed to have received the same in good faith and without any knowledge of the breach of trust. " Portion of 53 P.S. section 4003.1303 4. A host municipality, by its very existence as such, supplies the requisite consideration for receipt of the host municipality benefit fee. 5. Plaintiff has alleged no facts which demonstrate that defendant had knowledge that the landfill operator was committing a breach of the constructive trust when it paid the host municipality fee to defendant. 6, Plaintiffhas alleged no facts in its first amended complaint to overcome the statutory presumption that defendant received the entire host municipality benefit fee in good fuith and without knowledge of any breach of trust. 7. As such, plaintiff s first amended complaint is legally insufficient and should be dismissed. WHEREFORE, defendant respectfully requests that this Court sustain defendant preliminary objection by way of demurrer and dismiss plaintiffs first amended complaint. Dated: September.l- t ,2001 S y J. Win r,Attomey for Defendant Hopewell Township 701 East King Street Shippensburg, PA 17257 telephone (717) 532-9476 4 ." c__ , "I ,'_~i. . R ~.. (lUf C.WL.LL I UWI'l.:>rllf 1v..1'''+L001J1'.:! hrK_ 11J \,)1 .- ; 11 r.u. IJIJL r. 0 i D^lft.~L.t'-t....,n;:..... ~n."'U"+"","""''' _, C;:ft.Lf~"^-___~+"".l D..^..~:__ _ r "-:::'';T.V~:H~ l,.#""'F~:;'Hi~fH,. Vi ;"::;-HVifHi....H,.t..:.: I n".'.~......iV" 909 Ebn~tlOd Avenue "f.i!!"!"!~~"-!!!'g:;. ]}~!!!!SyIV~iii~ 17113 ft.AII.r,.i., "';.. ''')i'it'it ...-"""',....~, =-".j ""'''''Of". S9Ulil.l:eotrlli Recionai Olliff! \. j i; j "iv;;.-ii\iO i'AX (JU-705-4930 M1", jtm Sttre:. ('ifmp.cai ~..r C~~m-..-an!~~~ R~.Jte ~~~i !~- , A'.... "__--*-_ 'n __..i. ..~"" T'""i;iiM...~ ..... . - --,- ~U1jijiiiiiOiii.ii 8, r a i i.j i Re: Hosi MUIDClpai .Bcnciit .i'ee Permit No. iOii'i4~ Cumberiand Coumv Landliii Hopewell ar.d 'Ntirth NB\Y'ton TQwr..ships ~t-...~.. M{ ~iinn' - -- -.-* ---..-. ~'-___ '--__L-___ ____ __.----C._~__ __'-_~__ ~_ ....L_ ___.__......... ...c....~.......~_..._~..---.._.;i.C..l.i_ _l_--..4-"'-~ .i.i#'w;w;Jii;jp UWii oniiiiw -.,vWt.iwi.iii ;iWii;i.U.V- i.....- "i,;w jJiioY.i..i.iW"Hi. v.. iiV~. ,;,'ijj.w Wi.;;;;.i .....i......- .....w .;,;............... uluhiple if&ucaiQjHi.lities. Section HOI of Act 101, Tbe Municipai Waste Pianning, R.ecyciing, and Waste Reduction Ad, is deaf lIilout.'his issue as it st.ates' "If the iandfiii or faciiitY is iocated within more than one "ost municio. alit~, ~ fee tJ.al.1 be llf\~()r""nlod. am",,!? them =rdi1"o!; tu the percelltagll of tile !)CCmitted , -- - .- .....iP-II llW".atPil..hi '..,..h nutnit-.i-nalii-v n Onr' IIntlitor"chlllutinu i""- th'-t il1.:i!i'"flIr ilit it. '\41460"",- snljj in oiil:r:'mit'r....d _. _ _ _.. ____ _ ___ ~_~.. _n_u. ~.. ~_".~. .. __ _u__. ~._. '_U'';;;;: __ u._~ n___ _ _.. _ _ .. _ _ . . _.___ ___... _______ __ __ ~"~ w^_....u a.~ lo.I..........h. loJ..",*^", T",,,~u~...''"'r t';th'r. "'Joftt"L;,t! ~'ft.(lo^_O('it ~.oaeA .d,",~iC!_.ho ~.:...-~ ;'.V; "'''';.'o;.-";,;! ;~'r\l";~'U ~~;;.; .I ~".':;" .' "'...."',.;....= ,....."'~/"r.-- ..' ;".'.' .''l-l!;'~' .... ;.."...... ."""'.~I r.....;......' n~- - .,..... ;,....... "'___.-.--.-.. U_...L. 'T'_____L.:__ ...L._._'~ L_ __:...1 ____~:_._._. .i"W_ji.....ii.;..;,iio. ~VN.i .i.wWii..';'Uji';; ."m,,;....;;,.; VV Y"~"'"' ;;;...",o.:i._ii.i5_j''' '- -, -,- If you have. any q.ueSiJ,r-ln~ fi~f(ling illl~ plcaie do llOi I1Lcsil8le to OOili.8Ct US at ihe i\bQvc ilUfiWer. Sincerely, - ........-, - V-" ~ ~.L , f./ ,,;. /I#.--~/- .,-_...~ _ ._ . . :f'~. - -- villi j\"Qaew.....iKi i'aClilties SpectlIitsl Waste Managemc:nl ~ CC; Hopewell. 'fawnship. . NnrthN......_ T~ip C"_am~~!!d CQI"!!!!,! ~!id W,u~t~ AJ.!!h~f!t'! (1.'~~n !~!]hl)-~!!) Of .,.. '.' .. -, ^"EqoaJOppotlv.,'l'~ www.dep.state.:r.t.us .'n ~""~df'-_lllf) E ~ N Ilbl ,- I "/\ I r } ,,,,,",,,=J J-- ; I I,~ 1 lL_ CERTIFICATE OF SERVICE I, Sally J. Winder, certify that on this date, I served a true and correct copy of the foregoing Preliminary Objections to First Amended Complaint upon the following counsel of record, by depositing the same in the United States mail, postage prepaid, addressed as follows: ROBERT L. O'BRIEN, ESQUIRE O'BRIEN, BARIC & SCHERER 12 WEST SOUTH STREET CARLISLE PA 17013 Dated: September 'd.-l ,2001 s~r W~ "-,0. ~~o<, ,'I PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and subnitted in dupJ,icate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: 1,1 ~" <- ,- Please list the within matter f= the next Argunent Court. - ~ ^ .._,,~~. '"::> -----------------------------------~--------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) NORTH NEWTON TOWNSHIP, (Plaintiff) vs. HOPEWELL TOWNSHIP, ( Defendant) No.2001-1833 Civil o c s: -00" rnrr- z:r :z: ,- (j);;;C -<L_ ~c ;>C' ;;;6 J>'c Z ::< C.J \"'-> (- .:::.... Z ~?1 -:-\ ~'0J ~::: '..".~ ....:,(_J:;. -0 ."'-1'''\ ,", -" 1!)f.~ -, -!?' ~ xjl -,,~ tf? w 1. State matter to be argued (Le., plaintiff's rrvtion for new triaL defendant's demu.J:Ter to canplaint, etc.): DEFENDANT'S PRELIMINARY OBJECTIONS 2. Identify counsel who will argue case: (a) for plaintiff: ROBERT L. O'BRIEN, ESQUIRE ~s: O'BREEN, BARIC & SCHERER 17 WEST SOUTH STREET CARLISLE, PA 17013 (b) for defendant: SALLY J. WINDER, ESQUIRE ~s: 701 EAST KING STREET SHIPPENSBURG, P~N17257 3. I will notify all parties in writing within bio days that this case has been listed for argurent. 4. Argument Court Date: ceted: January 7, 2002 --~~ Attorney f= Plaintiff ~. " " ~-, "1!;il!1--^,J,\ 11. North Newton Township : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v Hopewell Township : NO. 01-1833 CIVIL TERM ORDER OF COURT AND NOW, February 13, 2002, by agreement of counsel, the above-captioned matter is continued from the February 13, 2002 Argument Court list. Counsel is directed to relist the case when ready. By the Court, ~rt L. O'Brien, Esquire For the Plaintiff fiallY J. Winder, Esquire For the Defendant 'J t',.,. .1 {T);JJ ():;..N.O~ L PIr Court Administrator Id ,!r,~fiO~"i&1i\l!il~",ai,""'J};,,i_'J,h;''';'!'")''H<,..;d,mj,~''>it_liI.\~,~K,;,~_"'''''''iJ,;"".",",,,_,,t,,'''~:,"",,r:H;,,,,,,,wn,;!!ll;~~OliOWOO~~~~~~l!liiIllI Ll~ ~:: c'J ':~~~0 - ~\ -"- . ,~' ~~:: ":::1 -~~; dJ~E :5 <.) ('-j "---' 4 it ,c. \' . -% ......~.,; t. . .V', . , '~ "~ i','" .,: \ -\ .' .-{ -hied )') ProHo(\(l+c,jV hb l);j. 'J oO,? ~l1!!l ~~" ,.""~_k_~," '. ~,,~. '""""",^"_'_I""'!,'i..,,I~ .. _ . ",",~_.t"-",\,".,, ".'''i' _"_~'~ 'W-'., "' ,-~," '-'" .. -"-~ , - . ~~~, Ii: ~ . "c~ _ "-I," --'I -. """1- , '> -,- '--- ..~'_ "-'__I<;l,_,o.t." ~",.__" ':/:- PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sul:mitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter far the next Arg\IIIen.t Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) NORTH NEWTON TOWNSHIP, (Plaintiff) vs. HOPEWELL TOWNSHIP, ( Defendant) No. 01-1833 Civil Term 2Q)9x 1. State matter to be argued (Le.. plaintiff's !lOtion for new trial, defendant's danurrer to canplaint. etc.): Defendants Preliminary Objections 2. Identify counsel who will argue case: (a) far plaintiff: l\ddress: Robert L. O'Brien, Esquire 17 West South Street Carlisle, PA 17013 (b) for defendant: J\ddress: Sally J. Winder, Esquire 701 East King Street Shippensburg, PA 17257 3. I will notify all parties in writing within two days that this case has been listed for argunent. 4. Argunent Court Date: May 22, 2002 \2:~ Dated: April 3, 2002 Attorney far Plaintiff ~~llll:lilli&llli\mmi!fllll',irt:f.Jl';~~t-$l~1~~...:'!l<''''10if,y.''''H~.,,:';''''1'';;'';",-''Jl-_;~Ztt"'iiJf;,),;~~.,~~ t:;I,i~fr;":,;,'>f "~(.::;;: ~,~~M;~,;~,~!,,b;';,~~"X~1;~t},'!-I~E!f~~ J!fL~;~,:,'~~;~,:J'", ,<~\,,~"'_: ,'-;;'<",~;', \'",,' <<ii',,"," ,,"" ,~ "H~ lllill ,~ -. illillIIIilIill/1l1l;l_iliiIiiiilu~\'IJM ," -- ~'- ~ ~ /0 I <"P 2 z -uCP rnn1 z_::o m> ::::<.~ \2C/ ~8 :Pc:. ~ ,"-" "'-. ~ -'- ~ -..; :r:-r1 ~';~,\3 ~~ 1- '..,.....,C) :2::}; ''':)0 .'-r>r"(\ 0' :::..1 ~ :.<:: g T~ fl\\ . L-', . -~ i" 'I '" "..-, --"""~"'~-~'" " NORTH NEWTON TOWNSHIP, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-1833 CIVIL CIVIL ACTION - LAW , E!u~ HOPEWELL TOWNSHIP, Defendant CIVIL ACTION - LAW IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO FIRST AMENDED COMPLAINT OF PLAINTIFF BEFORE BAYLEY. 1. ORDER AND NOW, this 19th day of June, 2002, IT IS ORDERED: 1. Plaintiff's claim for punitive damages IS DISMISSED. II. All other preliminary objections of defendant to the First Amended Complaint of Plaintiff, ARE DENIED. Robert L. O'Brien, Esquire For the Plaintiff Sally 1. Winder, Esquire For the Defendant ~~ 6.260.:2/ c+~ :rlm r II ~. !~:i!l;NiLDiJiZ>;ji.)...il.jMiI/ji;mililj}m~~j~~Wj;l-",",~;,w.,,,,,j""!MiH;U<fil:li;I!>;t,-..,mmli~lIli - ".' '" ;,,-';;;.-MR.-)'f~r;'"<,,~,1!)}:\~~IM_UrJiJ'~~,(I'~;.-;Ji:'I<w,;,;A ,;-"~,,,-;'>F}').-: .i~~k.-;)ltk!l ;rJ" """0..' "~" <-1' ,-' , ;" , 1f1"[\;\~1}8NN3d JJ.Nn08 (" i'f'i':i=!8V'J/IJ 20 ;'I,',ld ~ b I Nnr 20 AtJV10i'J(>i j (i'..- : " . ~)' '''; '; ~~~~"':';~~',.._:?"'1..!. .:10 : cA:bv-\J~ iic! ..',',- < . -~,' " _Ii; , , , J'I L"'_~_" ~~~,*-;'" JUL 1 5 ZOOZ r' PRAECIPE FOR LISTING CASE FOR TRIAL TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the following case: for JURY trial at the next term of civil court. X) for trial without a jury. North Newton Township Plaintiff (X ( ( civil Action - Equity Appeal From Arbitration v. (other) Hopewell Township Defendant The trial list will be called on 8/13/02 and Trials commence on 9/9/02 Pretrials will be held on 8/21/02 (Briefs are due 5 days before pretrials) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) Civil/ Equitv ~OO~ ,', s: " Indicate the attorney who will try case for the party~~ ~lei~::trhis praecipe: Robert L. 0' Brien. Esquire Zc ,.- V,Jd:,'::, h ~ _-)!::.rJ -<.2: 'v -c,'T' r::c ' ~t)' ;;; .;?~~ ='::l ",2('') ..J--'"c '>? an1 ~ 0 ~ -< No. 1833 Indicate trial counsel for other parties if known: Sally J. Winder. Esauire This case is ready for trial. Signed: ,- c::! ~ 1 .J It . Print Name: Robert L. O'Brien Date:~ Attorney For: Plaintiff '" ...~ '""" ~. -, , ,.'< -':i PRAECIPE FOR LISTING CASE FOR TRIAL TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the following case: for JURY trial at the next term of civil court. X) for trial without a jury. --------------------------------------------------------------------- North Newton Township Plaintiff (X ( ( civil Action - Equity Appeal From Arbitration v. (other) Hopewell Township Defendant The trial list will be called on 8/13/02 and Trials commence on 9/9/02 Pretrials will be held on 8/21/02 (Briefs are due 5 days before pretrials) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. 1833 Civil/ Equity 2001 Indicate the attorney who will try case for the party who files this praecipe: Robert L. O'Brien. Esquire Indicate trial counsel for other parties if known: Sally J. Winder. Esauire This case is ready for trial. \ K~~ Signed: Print Name: Robert L. O'Brien Date: 7/ rz..l a ~ Attorney For: Plaintiff ... ',~4_1i~~illfM~!!J!..'lll!j:,'k"";"o-'k,\!ti~t};/>;>l'IJ'!I~!\Ii_wAi~!ti~,"Y.;d_;;'1(3::"i\,;~""",,"-i;1b:~""!,I',"Jo!,~~.w;;r,,~~lIi~~~_i-__ '~"Q: ~~~~" ~~ n~~~\~;~t'"l~~!U,,:l~':?!t,.JV:~,,~I,;~~tj~'J~ll~;,\~:~~tt:~~:;;i;,)(,J",~~~~)",;~>€,r~~",-~",~",. <' "~,," ~,"'_ ~" ~=~ ~~ """"""'" .1IiIi~Wlllll"-'. ~'liih.. (") 0 0 c: N S. " '"UIJ:J L. --I mn <= -.- Z:r.~ r- ~f;;:O Z,,- "'t~ Tlm ~~1: 1'>) 86 ~Ci :.;? )S: ,~_ "rii 7'~J ::')'1 -=() ~ _zO );.c: (srn -7 c-1 '- =< :::> s:; -< ~5p \(u ~.". ~ 18i - - "I I, _ L 1.1 . . ---'~-".--'~\ .' " ~ NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS, : CIVIL ACTION HOPEWELL TOWNSlElIP, : NO. 2001-1833 Defendant : IN EQUITY NOTICE TO PLEAD TO: North Newton Township YOU ARE HEREBY NOTIFIED TO PLEAD to the within New Matter within twenty (20) days after service thereof. If you do not, a judgment of Non Pros will be entered against you. Sally J. der, Attorney for Defendant, Hopewell Township 997!!- Molly Pitcher Highway Shippensburg,PAl7257 telephone: (717) 532-9476 -, "' 'L ."..,,' 1 i.!:ik; , NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF Plaintiff: CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION HOPEWELL TOWNSHIP, : NO. 2001 - 1833 Defendant : IN EQUITY DEFENDANT'S ANSWER AND NEW MATTER TO FIRST AMENDED COMPLAINT COMES NOW, the defendant, Hopewell Township, by and through its undersigned counsel, and answers the first amended complaint of plaintiff, North Newton Township, as follows: 1. Admitted. 2. Admitted. 3. Admitted in part and denied in part. Defendant admits the averment that a landfill is located in both townships. As to the remaining averments, after reasonable investigation, defendant lacks knowledge and information sufficient to form a belief as to their truth, and the same are therefore denied. 4. Admitted. 5. Admitted. 6.. Denied, as, after reasonable investigation, defendant lacks knowledge and information sufficient to form a belief as to the truth ofthe averments of paragraph 6. 7. A~tted. 8. Denied, as, after reasonable investigation, defendant lacks knowledge and information sufficient to form a belief as to the truth of the averments of paragraph 8. 9. Denied as stated. To the contrary, defendant was at all times aware that division of the host municipality benefit fee between itself and plaintiff would begin upon written approval by DEP of the permittee's certification of proper site construction of the J'III " I ,_ J! ,'~,' ""'~,_ ~ .}_ I landfill expansion. When DEP gave that written approval in March, 2001, defendant agreed that, henceforth, the host municipality benefit fee should be divided between itself and plaintiff. Since that written approval in March, 2001, the host municipality benefit has in fact been divided between defendant and plaintiff. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted. 15. Denied. To the contrary, plaintiff was not entitled to receive any portion ofthe host municipa1ity benefit fee before DEP written approval ofthe permittee's certification of proper site construction, which approval was received by the permittee in March, 2001. Beginning Apri11, 2001, plaintiff was entitled to receive a proportionate share of the host municipality benefit fee, and, since that date, plaintiffhas received the appropriate proportionate share of the host municipa1ity benefit fee. COUNTl BREACH OF FIDUCIARY DUTY 16. Responses 1 through 15 above are incorporated as though set forth in their entirety. 17. Denied. To the contrary, the statutory authority quoted in paragraph 17 is in no way applicable to defendant. Defendant did not, does not, and will not, stand in a fiduciary capacity to plaintiff with respect to any host municipa1ity benefit fees received by defendant. All host municipa1ity benefit fees received by defendant were fees to which defendant was legally entitled under applicable law and regulatious. 18. Admitted. 19. Admitted. -2- .- ,,~~.>~--^'~---. - -~ " ,- -~--<';; 18. (plaintiffhas incorrectly numbered this paragraph of its first amended complaint--~defendant will keep the incorrect numbering in its response). Denied. To the contrary, plaintiff was not and is not entitled to any portion of the host municipality benefit fees received by defendant, and defendant was not and is not under any legal obligation to deliver any portion of its host municipality benefit fees to plaintiff. 19. (plaintiff continues to follow an incorrect paragraph numbering-~~defendant will keep this incorrect numbering in its response.) This particular paragraph ofthe first amended complaint formed the basis of plaintiff's claim for an award of punitive damages. By Order of Court dated June 19,2001, the contents of which are hereby incorporated, plaintiff's claim for punitive damages was DISMISSED. Defendant is therefore not required to respond to the averments ofthis paragraph 19. To the extent that a response may be required"defendant denies the averments of this paragraph. To the contrary, defendant had no legal obligation to pay over any portion of the host municipality benefit fees to plaintiff. Plaintiffhad no legal right to any portion of the host municipality benefit fees received by defendant. COUNT II ACTION FOR MONEY HAD AND RECEIVED 20. (plaintiff has now returned to the correct numbering sequence ofparagraphs). Responses I through 19 (including the responses numbered 18 and 19 to the incorrect numbering sequence of plaintift) above are incorporated as though set forth in their entirety. 21. Denied. To the contrary, defendant received from the landfill no monies which belonged to the plaintiff. 22. Denied. To the contrary, defendant received no funds which were plaintiff's. Defendant gave the appropriate legal consideration under law and regulations for all of the host municipality benefit fees received by it. .3- - '- ~, l' - --L - I , '-~-'""--I -6,! 31. Plaintiff knew, or reasonably should have known, that its entitlement to any portion of the host municipality benefit fee would only be triggered by the DEP written approval of the certification of proper site construction of the Newton Expansion. 32. No construction of any landfill facility within plaintiffs borders ever began until after grant of the permit modification on July 31, 1998, and approval of certification of completion of the proper site construction within plaintiffs borders was not received until March, 2001. 33. If defendant received any host municipality benefit fees to which plaintiff was entitled, defendant had no knowledge at the time it received them that it was committing a breach of trust. 34. Plaintiff has stated no claim against defendant upon which relief may be granted. WHEREFORE, defendant Hopewell Township respectfully requests that judgment be entered in its favor and lIgainst plaintiff North Newton Township on both counts of the first amended complaint. J()}~ inder, Attorney for Defendant, Hopewe Township 9974 Molly Pitcher Highway Shippensburg, P A 17257 telephone (717) 532-9476 -5- .-.1 --i.,L VERIFICATION '_, .t-,-. ~. , , '-~ ~,;- I am chairman of the Hopewell Township Board of Supervisors. I verify that the facts set forth in the foregoing Answer and New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. section 4904, relating to unsworn fi 'D4tC ~ ~ - 9-6~ tI:i~;Iif,l~"""OO!lt,1,:!l[i~"-''-l&'"'''!l!MiH~~'j,];jill;1l.W~!"uel'''''M':'i.'''''h_i;,,;..c~ i.:lJ._:!iii - 1!( ':-_-~jlUidir ,_HI [JIUI ~~JL ,1f[Ul", _~ ~._ "">'"""" ;,i-!~l,t.mJ~~~~~~_~ =~ .~, ~_^"___""~~^""",,_..,.. "'e-,'~_" .~=,.-,= '~~~_'_ ~_ .~"-'"""""'''IIiM~ Il!L~ ~;. 0 C1 0 C ''0 -Tl ..,., Fti c_ --, n"'l c:: ---r L:: j""- - ;c: .~ L_ e. .~.., c,? .,0 v r:: " G} .r~" "~~\ '-' \.) :p- ~. \'\j '-' .. (- n ~ ,~" ....... _L <, I "~ ." ~~~:, , NORTH NEWTON TOWNSHIP. : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION - LAW : NO. 2001- l 'i '.S~ : IN EQUITY HOPEWELL TOWNSHIP, . Defendant RESPONSE TO NEW MATTER 24. All allegations in the Amended Complaint are incorporated in the following responses. 25. Attached hereto. and incorporated herein is the permit document issued by DEP on July 31. 1998. After investigation the Plaintiff believes that the Defendant is referencing condition 10 on page 8 of the permit. This certification is part of the process as each disposal cell is constructed. essentially a final inspection approval, required as part of the permit and one of twenty-eight areas addressed in the permit. The Plaintiffs right to receive the host benefit fee is controlled by the language of the acts relating to the disposal of wastes. 35 Pa. C.SA Sec. 6018.503 provides: " Upon approval of the application the department shall issue a permit for the operation of a solid waste storage, treatment, processing or disposal facility or area..." Once the permit is granted the Host Municipality Benefit Fee, 53 Pa. C.SA Sec. 4000.1301 mandates: (a) Imposition-- There is imposed a host municipality benefit fee upon the operator of """"~ ~ ".0" ." ~ " J' .......~~-~-i~ '" '-lillMmi1-" each municipal waste landfill or resource recovery facility that has a valid permit on the effective date of this act or receives a new permit or permit that results in additional capacity from the department under the Solid Waste Management Act after the effective date of this act. The fee shall be paid the host municipality. If the host municipality owns or operates the landfill or facility, the fee shall not be imposed for waste generated within said municipality. If the landfill or facility is located in more than one host municipality, the fee shall be apportioned among them according to the percentage of permitted area located in each municipality. (Emphasis added) (b) Amount-- The fee is $1 per ton of weighed solid waste or $1 per three cubic yards of volume-measured solid waste for all solid waste received at a landfill or facility." 26. The DEP issued its approval of the construction of a disposal pad designated as " Newton Expansion- Pad N-1 " in March, 2001. The averments in response 25 are incorporated herein. 27. No waste could be placed in Pad N-1 until such time as the inspection and certification by DEP was given, much as no waste could be disposed of in subsequently constructed pads regardless of the location in Hopewell or North Newton. 28. Plaintiff incorporates the averments in response 25 herein and reiterates that the right to the benefit fee initiated effective July 31, 1998. 29. The Plaintiff believes that a portion of a prior disposal area may have included land in North Newton Township. 30. The Plaintiff never understood the Defendant would go to the lengths it has to refuse to pay the funds due to Plaintiff and which were received in trust by the Defendant. 31. The Plaintiff incorporates it's responses in paragraphs 24 through 30 herein. 32. Landfill activities were conducted in North Newton Township prior to and subsequent to the July 31, 1998 permit date. "ioi!It^~ ~ . . ...... ~ I ~ "'~,~ "Iiitf"t~ 33. The Plaintiff incorporate it's responses in paragraphs 24 through 32 herein. 32. The Plaintiff incorporates it's responses in paragraphs 24 through 33 herein. Wherefore, Plaintiff demands judgment against the Defendant. interest and costs. O'BRIEN, BARIC & SCHERER BY: KtJ~~ Robert L. O'Brien, Esquire 1.0.#28351 17 West South Street Carlisle, Pennsylvania 17013 717-249-6873 rob/clients/NNTlresponse.new "~~- - ,~ ~" '""'~... 'm'if Illiltff)' I verify that the statements made in the foregoing Response To New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. S 4904, relating to unsworn falsification to authorities. Dated:~ .1 " < , " ~~",L "" '-,I~" -~' '-W:";"" '~--L'~i ..l!9.. Pennsylvania Department of Environmental Protection' .'PLEASE NOTE OUR NEW ADDRESS & PHONE NuMBERS,- 909 Elmerton Avenue .-.... Harrisburg, P A 17110-8200 Southcentral Regional Office Mr. Michael Grove, President ~ Community Refuse Services, Inc tla Cumberland County Landfill 142 Vaughn Road .''7~!O Shippensburg, PA 17257 ....m... JlJL 3 1 1338 717-705-4706 FAX -717-705-4930 Re: Major Permit Modification Newton Expansion Municipal Waste Landfill Cumberland County Landfill Permit No. 100945 Hopewell & North Newton Twps., Cumberland County ;)c:lr !VI~. i;fl)';e: I am pleased to enclose a permit modification approving the construction and operation of the Newton Expansion Municipal Waste Landfill. It is issued in accordance with the PelU1sylvania Solid Waste Management Act, Act 97, as amended. Compliance with the limitations and stipulations that have been set forth in your pennit is mandatory. You have the right to appeal any limitation or stipulation as stated on your permit. Any person aggrieved by this action may appeal, pursuant to Section 4 of the Environmental Hearing Board Act, 35 P.S. Section 7514, and the Administrative Agency Law, 2 Pa. C.S. Chapter SA, lO the Environmental Hearing Board, Second Floor, Rachel Carson State Office Building, 400 Market Street, P.O. Box 8457, Harrisburg, PA 17105-8457,717-787-3483. TDD users may contact the Board throtrgh the PelU1sylvania Relay Service, 800-654-5984. Appeals rnust be filed with the Environmental Hearing Board within 30 days of receipt of written notice of this action unless the appropriate statute provides a different time period. Copies of the appeal form and the Board's rules of practice and procedure may be obtained from the Board. The appeal form and the Board's rules of practice and procedure are also available in braille or on audiotape from the Secretary to the Board.at 717-787-3483. This paragraph does not, in and of itself, create any right of appeal beyond that permitted by applicable statutes and decisional law. If you have any questions concerning the enclosed permit PelU1sylvania Solid Waste Management Act, please call me at '~~~~r,~ Francis P. Fair Program Manager ~. Waste Management Program dJor the requirements set forth by the above number. Enclosure j cc: Hopewell Township North Newton Township Cumberland County Planning Commission Martin & Martin, Inc. Tom Imphong, Cumberland County Solid Waste Authority \,, i\;,..II, )PPllrl\JllltyAuirm<1h"" :\111I)t' llnplu\"'r hllp ,'............_.:..1' .1.\It' jl.l II" . . Io'rullt.(j "" ;:.'\.....:!c.'tJ !7JP'-' --:;......:. ~"" . , li-" J-,_II<. 1-,,~,-_"1h" ,,~"-~ . "'~'o T-'- COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION WASTE MANAGEMENT PROGRAM SOUTHCENTRAL REGION FORM NO. 13-A MODIFICATION TO SOLID WASTE DISPOSAL AND/OR PROCESSING PERMIT Under the provisions of Act 97, the Solid Waste Management Act of July 7, 1980, as amended, Solid Waste Permit Number 100945, issued on November 21, 1990 (repennitted) to: -.- Community Refuse Service, Inc. RD 1, Box 430 Shippensburg, P A 17257 Hopewell and North Newton Townships Cumberland County is hereby modified as follows: This permit modification is issued for the construction and operation of the Newton Expansion Municipal Waste Landfill (Newton Expansion). This pennit modification is issued based on the following submissions: I. The original Phase I permit application prepared by Martin and Martin, Inc., received by the Department November 25, 1992 and consisting of the following: Form A - Application for Municipal Waste Permit Forin B - Professional Certification . Form Cl - Compliance History Certification Form D - Exclusionary Area Criteria / Environmental Assessment Process for Municipal Waste Mariagement Facilities This modification shall be attached to the existing Solid Waste Pennit described above and shall become a part thereof effective on Jul 31, 199 . This pennit modification extends the expiration date of the permillo Ju1 0 200 -, ~ NTAL PROTECTION . Page I of 10 h I l <. I j - f d' , 1 .; "." -, - " ,_, -~, _ -" ~:';' 'Community Refuse Services, Inc. Cumberland County Landfill Hopewell and North Newton Townships Cumberland County Permit No. 100945 Page 2 Form D Drawings: o 100 Year Floodplain Map o Copy U.S. Fish & Wildlife Service National Wetlands Inventory Map of the Project Area. o Copy of USDA Soil Conservation Service Soils Map of the Project Area o Wetland Areas - Sheet 1 of I o Visual Analysis Profile Locations o Visual Analysis Line of Sight Profiles (Revised November 1997) Form E - Contractual Consent of Landowner Form I - Facility Plan . Form 2 - Map Requirements - Phase I, Municipal Waste and ConstructionlDemolition Waste Landfills Form 6 - Geologic Infomlation - Phase I Form 7 - Hydrogeologic Information - Phase I Form 8 - Municipal Waste Landfills Initial Ground Water Background Analysis - Phase 1 Form II - Mineral Deposits Information - Phase I Form 12 - Alternative Water Supply - Phase I Form 13 - Soils Information - Phase I Phas~ I Drawings: Drawing Number Title N-I09-1 N-I09-2 N-IIOA N-IIOB N-IIOC N-IIOD Site Area Map Base Map (1 "=300') (Revised November 1997) Facility Map (1 "=300') (Revised November 1997) Facility Map (1 "=200') (Revised November 1997) Form 6 Base Map (Revised 11112/97) Geologic Map (Revised 11112/97) Geologic Cross-Section A-A' & B-B' Geologic Cross-Section C-C' (Revised 7/26/96) Water Table Map for Regional Aquifer March 27, 1992 Static Water Elevations (Revised 11112/97) . Composite High Water Table Map for Regional Aquifer (Revised 11/12/97) Flow Nets E-E' & F-F' Flow Nets G-G' & H-H' {Revised 7/26/96")'" Surface Water Map (Revised 7/26/96) Surface Water Map (Revised 7/26/96) Surface Water Map (Revised 7/26/96) Surface Water Map (Revised 7/26/96) N-IOl N-I02 N-I03-1 N-t03-2 N-I04 N-I05 N-I06-1 N-I06-2 N-I07 N-I08 , ~ , I-I J 11 - "'., '1&..'""",,,,"" ,," .' , Co.mmunity Refuse Services, Inc. Cumberland County Landfill Hopewell and North Newton Townships Cumberland County Permit No. 100945 Page 3 _ N-1l2 N-1l3 N-114-1 N-1l4-2 N-114-3 N-1l4-4 N-llSA N-llSB N-115C N-115D Background and Proposed Permanent Surface and Ground Water Quality Characterization Map (Revised 11112197) Soil Test Pit and Cross-Sections Locations Map (Revised 11112197) Soil Series Map (Revised November 1997) Soil Cross-Sections A-A', B-B', C-C', D-D', E-E' Soil Cross-Sections F-F', G-G', H-H', 1-1', J-J' Soil Cross-Sections K-K', L-L', M-M', N-N' Soil Cross-Sections 0-0', P-P', Q-Q', R-R', S-S', T-T Private Water Supplies Map (Revised 7/26/96) Private Water Supplies Map (Revised 7/26/96) Private Water Supplies Map (Revised 7/26/96) Private Water Supplies Map (Revised 7/26/96) N-Ill 2. Thl;. original Phase II permit application prepared by Martin and Martin, Inc., received by the Department December 18, 1992, and consisting of the following: Form 3 - Map Requirements - Phase II Municipal Waste and ConstructionlDemolition Waste Landfills Form 14 - Operation Plan - Phase II Form 15 - Air Resources Protection Form 16 - Revegetation Form 17 - Erosion and Sedimentation Controls Form 18 - Water Quality Monitoring System - Phase II Form 19 - Municipal Waste Landfills Quarterly, Water Quality Analysis Form 23 - Soils Information Form 24 - Liner System - Phase II Form 25 - Leachate Management - Phase II Form 26 - Gas Management Form 27 - Contingency Plan For Emergency Procedures Form 28 - Closure Foqn 38 - Request For Equivalency Review - Geonet Detection Zone Form 38 - Request For Equivalency Review- Protective Cover (AASHTO #8 stonel16 oz geotextile) Form 38 - Request For Equivalency Review- Foam As Daily Cover Phase II Drawings: Sheet No. LF-I LF-2 LF-3 LF-4 LF-5 Title Existing Site ConditionslFacility Map (Rev1$ed February 1998) Water Table Contours (with existing grade) (Revised July 1996) Water Table Contours (with excavation contours) (Revised July 1996) Excavation Grade (with existing contours) (Revised July 1996) Excavation Grade (without existing contours) (Revised July 1996) " . . ., ., , J I:l C i III ~~ _< ,~.J ,>"_'cl-.....'--i\, ~-;, ,;", "',' "iii~,' . Conununity Refuse Services, Inc. Cumberland County Landfill Hopewell and North Newton Townships Cumberland County Pennit No. 100945 Page 4 -LF-6 LF-7 LF-8 LF-9 LF-I0 LF-ll LF-12' LF-13 LF-14 LF-15 LF-16 LF-17 LF-18 LF-19 LF-20 LF-21 U-22 LF-23 LF-24 LF-25 LF-26 LF-27 LF~28 LF-29 LM-I LM-2 LM-3 LM-4 ES-I ES-2 ES-3 ES-4 ES-5 ES-6 ES-7 Witness Lines (Revised July 1996) Leachate Collection Lines (Revised April 1998) Final Contour Plan (with existing contours) Final Contour Plan (without existing contours) (Revised July 1996) Pad N-l Development Plan (Revised July 1996) Pad N-2 Development Plan (Revised July 1996) Pad N-3 Development Plan (Revised July 1996) Pad N-4Development Plan (Revised July 1996) Pad N-5 Development Plan (Revised July 1996) Pad N-6 Development Plan (Revised July 1996) Pad N-7 Development Plan (Revised July 1996) Sections A-A, B-B (Revised July 1996) Sections C-C, D-D (Revised July 1996) Sections E-E, F-F (Revised July 1996) Sections G-G, H-H (Revised July 1996) Sections I-I, J-J (Revised July 1996) Sections K-K, L-L (Revised July 1996) Access Road Plan & Profile Landfill Construction Details (Revised November 1997) Gas Vents/Capping Details Schedule of Activities/Landfill Construction Details (Revised July 1996) Conceptual Closure/Landfill Development Plan Conceptual ClosurelLandfill Development Plan Soil Borrow Are Grading Plan (Revised July 1996) Leachate CollectionlDetection Sump Plan (Revised April 1998) Sump Cross-Sections A-A and D-D (Revised April 1998) Sump Cross-Sections B-B and C-C Leachate CollectionlDetection System Pump House Details (Revised April 1998) Existing Site Conditions/SCS Soil Classification Map (Revised November 1997) Soil Erosion & Sedimentation Control Plan Soil Borrow Area Grading Plan (Revised November 1997) Pad Development Schematic Interceptor Channel Sections & Profiles Sedimentation BasinfE & S Details E & S Details 3. Letter dated July 12, 1995 from Bucek & Associates, Inc. to. Mr. Mark Embeck of the Depart- ment. The letter was received July 19, 1995 and contains infodnation on the installation of two stream flow measuring devices. -- l I ','1 , 0' '" '~ ".' ~~ ," ;-"j;,i{, . . .. . .CommJlllity Refuse Services, Inc. Cumberland County Landfill Hopewell and North Newton Townships Cumberland County Permit No. 100945 Page 5 4. Letter dated October 12, 1995, from Bucek & Associates, Inc., to Mr. Mark Embeck of the Department. The letter was received October 16, 1995, and contained information relative to stream flow monitoring of the Middle Tributary to the Conodoguinet Creek (as designated on Surface Water Map Drawing N-II0C). 5. Response document to the Department's May 2, 1996 review letter, prepared by Martin and Martin, Inc. and received by the Department July 30, 1996. The response document included the following attachments and !Idditional information: o A response document prepared by Bucek & Associates, Inc. dated July 28,1996 and received by the Department July 30, 1996. o Form D - Exclusionary Area CriterialEnvironmental Assessment Process For Municipal Waste Management Facilities. o Additional information for Form 6. o Additional information for Form 7 o .Additional information for Form 8 o Form G (.-\) - Air Resources Protection Dust Emissions Estimate And Control Plan. o Revised information for Form 14, Form 16, Form 25, Form 27 and Form 28. o Revised Bonding Worksheets. o Revised Drawings (the drawings and sheets that have been revised are noted on the list above). 6. Completed Form O(B) - Air Resources Protection NMOC Emissions Estimate and Control Plan. Form O(B) was prepared Martin and Martin, Inc., and received by the Department August 13, 1996. 7. Additional information submitted by Martin and Martin, Inc., received by the Department September 16, 1996, containing a Traffic Impact Study prepared by Orove Miller Engineering, Inc.- 8. Additional information submitted by Martin and Martin, Inc:-e,nd received by the Department February 28, 1997. The additional information consisted of the Slope Stability Analysis and a copy of Air Plan Approval Application. Included in the Air Plan Approval Application is Sheet No. I, AQ-I - Existing Site ConditionslFacility Map (Revised Novembe.r 1997). -""""""~" "- .-~ . . .. ~L..k. ,__,~ 1 il~__~ -.," ,,","-'> .",,, '<<-'-'---!ii; . . ComIllunity Refuse Services, Inc. Cumberland County Landfill Hopewell and North Newton Townships Cumberland County Permit No. 100945 Page 6 9. A copy of the proof of notification to contiguous landowners and host municipalities received by the Department April 7, 1997. 10. Update to the Traffic Impact Study dated July 21, 1997, prepared by Grove Miller Engineering, Inc. The update included additional information required by the revised Form D. II. Revised Form 0 submitted by Martin and Martin, Inc., received by the Department August 4, 1997. The revised included a revised Attachment D-I A, a revised Attachment D-14: Traffic, a revised Attachment D-16: Economic and Social Considerations, Attachment 0-17 and Attachment 0-18. 12. Response to the Independent Engineering Review of the Community Refuse Service, Inc. proposed Newton Expansion. The response was prepared by Martin Wld Martin, Inc. and received by the Department November 13, 1997. Included in the document are revisions, additional information and responses to comments on the Independent Engineering Review. 13. A letter from Martin and Martin, Inc., received by the Department November 25,1997, including a copy of correspondence from the Pennsylvania Historical and Museum Commission dated :"ovember 14,1997. 14. A.dditional infonnation received by the Department January 8, 1998, from Martin and Martin, Inc._ The additional information included a completed Form 46, Form B with original signatures, and Form E, resigned and notarized, including the Form E map. 15. A response letter dated January 2, 1998 from Martin and Martin, Inc., received by the Department January 8, 1998, consisting of responses to the review letter from North Newton Township dated Decernber 3,1997. 16. Additional information submitted by Martin and Martin, Inc. and received by the Department March 3, 1998. The information included proof of notification, Airport Location Map, copies of correspondence relating to the bog turtle, revised Form G(A), a revision to Form I narrative and a revised Sheet No. LF-l. 17. Additional information submitted by fax April 17, 1998, from Martin and Martin, Inc. The information contained a listing of benefits related to operation of the Cumberland County Landfill. Hard copy of this letter was received by the Department April 20, 1998. 18. Revjsed drawings submitted by Martin and Martin, Inc. iibd received by the Department April 24, 1998. The drawings were revised to show changes which provide for dual leachate slope risers and pumps from the sumps on the Newton Expansion. The modified drawings were LF-7, LM-I, LM-2, and LM-4. """'_.ll. ,- , . , ~" ""' .. . Comrl\.unity Refuse Services, Inc. 'Cwnbl:rland County Landfill Hopewell and North Newton Townships Cwnberland County Permit No. 100945 Page 7 19. A letter to the Department dated April 27, 1998 from Ms. Sally J. Winder, Solicitor for Hopewell Township Board of Supervisors, concerning the Newton Expansion. This letter expressed concerns with landfill truck traffic and requested permit conditions to address those concerns. 20. A letter to the Department dated May 5, 1998 from North Newton Township Board of Supervisors expressing their agreement with the altemative routing of truck traffic from the Cwnberland County Landfill borrow area into the North Newton Expansion area. These routes are outlined in the attached letter of April 12, 1998 from Community Refuse Services, Inc. 21. Adaitional information received from Martin and Martin, Inc. containing pages from EP A docu- ment EPA/600/R-95/051 titled RCRA Subtitle D (258) Seismic Design Guidance for Municioal Solid Waste Landfill Facilities. This docwnent was received by fax July 16, 1998 and hard copy received July 22, 1998. PERMIT CONDITIONS: 1. No more than 1,500 tons of solid waste may be received at this facility for disposal on any single operating day. This figure represents the maximum daily volwne of the facility, pursuant to Section 1112 of Act 101, Municipal Waste Planning, Recycling and Waste Reduction Act, 53 P.S. Section 4000.112, which section also provides that a mandatory civil penalty of $100 per ton applies to any excess volume received for disposal at this facility for any reason. 2. No more than 1,000 tons of solid waste may be received at this facility for disposal, on an average daily volume basis over the standard calendar year quarter. This figure represents the average daily volume of the facility, pursuant to Section 1112 of the Municipal Waste Planning, ReC?'cling and Waste Reduction Act, 53 P.S. Section 4000.1112, and has been set after consideration of weather, seasonal variations, community clean-up days and other factors. Section 1112 provides that a mandatory civil penalty of$100 per ton applies to any excess waste received for disposal at this facility for any reason. Any penalty shall be calculated by the Department after determining the total tonnage of solid waste received for disposal at this facility during the calendar year quarter, divided by the number of permitted operating days that the facility is permitted to accept waste for disposal during that quarter. 3. The permittee shall contact Cumberland Geotechnical Consultants, Inc. or a similarly qualified geotechnical consultant to review and evaluate the selection of all geosynthetic and soil materials proposed for use in the landfill construction. The evaluation shall be made to ensure the accep- tability and conformance of all materials with the analysis presented in the Report On Stability Analyses For Newton Expansion Area Cumberland County Lapdfill, dated January 1997. " 4. Prior to the beginning of construction of the subbase for the liner, Community Refuse Services, Inc., their consultants, engineers, QA/QC personnel and any other persons who will be involved in aoy aspects of the QA/QC activities at the site must attend a pre-construction meeting with the Department. -,- 'U'~'. "~ ,~'~'"~' lli" .: . Community Refuse Services, Inc. . CumGerland County Landfill Hopewell and North Newton Townships Cumberland County Pennit No. 100945 Page 8 5. Within 60 days of pennit issuance a bond in an amount approved by the Department must be submitted to the Department. 6. The horizontal grid control system shall be controlled and tied to a permanent physical marker or object located on site. The vertical control shall be tied to an elevation established for the pennanent marker. The pennanent marker must be established prior to construction and must be indicated on the as-built engineering drawings and annual topographical surveys submitted to the Department. 7. The pennittee shall implement mitigation measures proposed in the pennit application to minimize the visual effect of the landfill between the Conodoguinet Creek and the Newton Expansion. 8. Notice of commencement of construction accompanied by a general schedule must be submitted to the Department 90 days prior to the initiation of any construction of any pad. 9. The pennittee must receive approval from the Department before elimination of the use of geo- textile beneath the secondary liner. A field detennination must be made by the Department to determine if geotextile use can be eliminated. Community Refuse Services, Inc. will provide the Department with at least 48 hours notice for all required field determinations. 10. Before waste can be placed in each phase of the landfill, certification of proper site construction in accordance with the approved plans and specifications and conditions of this pennit must be submitted by a registered professional engineer and approved by the Department. 11. The additional leachate pumps must be installed in the leachate collection system as detailed in correspondence from Martin and Martin, Inc. received April 24, 1998. The installation of the pumps shall be consistent with revised Drawings LF-7, LM-I, LM-2 and LM-4. 12. If flow is detected in the leachate detection zone, it must be piped into the leachate collection system. 13. The wells proposed for this expansion, and shown on Drawing N-Il1 (Revised November 1997) are approved as part of this pennit modification. . 14. Proposed monitoring wells must be installed and sampled so that two quarters of analytical data will be submitted to the Department prior to waste disposal on.!l,lined cell. . , 15. Fonn 18 - Water Quality Monitoring System ~ Phase II, shall be prepared and submitted to the Department within 60 days of the completion of drilling activity for each component of the approved monitoring system. -" ~ .," ~ . I I - .. '.' ,. ';'.a~= .-- . ,,_.,'," _ F ,~, ".~. = , .'''''-'~~ .. .^ '- Community Refuse Services, Inc. Cumberland County Landfill Hopewell and North Newton Townships Cumberland County Permit No. 100945 Page ~ 16. A site-specific groundwater Sampling and Analysis plan [consistent with ~ 273.152(b)] shall be prepared and submitted to the Department with the required Fonn 18 - Water Quality Monitoring System - Phase II. 17. A paper copy and a paperless (electronic) copy of the quarterly groundwater monitoring results should be submitted to the DEP, Southcentral Regional Office, within 60 days of completion of each sampling event. The paperless copy should be prepared in a fonnat to be specified by the Department. The paperless copy is not required until the Department specifies a fonnat 18. Community Refuse Services, Inc. shall maintain a 300-foot setback, as shown on Drawing LF-l (revised February 1998), from the area identified as possible habitat for the bog turtle Clemmys muhlenbergii. If it is detennined by the Department that the bog turtle does not exist in the wetland area adjacent to Oakville Road, then the permittee may operate within the 300-foot setback. 19. The approach routes, as designated in the July 21, 1997 letter from Grove Miller Engineering, Inc. to Martin and Martin, Inc., are approved and must be posted at both the entrance and exit of the facility. Community Refuse Services, Inc. will ask all waste haulers to sign a statement that they will make every effort to use the approved routes. The landfill will give all truck drivers a handout showing the routes waste trucks should travel when coming to or leaving the landfill. 20. Hopewell and North Nev,10n Townships have expressed concerns about truck traffic associated with the Cumberland County Landfill Newton Expansion. The Townships have expressed a desire to have warning signs erected to alert drivers of potentially slow moving landfill traffic. Cumberland Courity Landfill will pay for the instaiIation and operation of signs as approved by PennDOT. It is understood that the Townships will need to request and obtain approval from PennDOT for the erection of any warning signs located in their Township. 21. Community Refuse Services, Inc. shall install warning signs and flashing warning lights on the rear of licensed vehicles used for soil transportation between the approved soil borrow area and the Newton Expansion. In addition, the pennittee shall request that all drivers utilize four way flashers during their travel along the public roadway between the landfill and the soil borrow area. 22. Community Refuse Services, Inc. will design alternative truck routes from the borrow area into the Newton Expansion as indicated in correspondence to the Supervisors of North Newton Township dated April 21, 1998. Community Refuse Services, Inc. will submit the alternative routing plan(s) to all appropriate agencies for approval. " .,~ --'. The plan for gas well location at the Newton Expansion is approved with the understanding that the number of wells may need to be increased and the locations adjusted to address gas generation conditions within the landfill. In addition, gas collection system locations may need to be adjusted to address off-site odors during active cell operations. -, ." , , , '~~I,. ~~ '-,',c-',"" ',' 'h_'." _ ',_'",,, ? .~ . ... C;:omml.lIlity Refuse Services, Inc. 'Cumberland County Landfill 'Hopewell and North Newton Townships Cumberland County Permit No. 100945 Page 10 24. Within 90 days of issuance of this permit, the permittee must submit to the Department one complete copy of the permit application, including all insertions and revisions. 25. Any final operation, design or other plan developed subsequent to permit issuance which exhibits changes in the structures, locations, specifications, control measures or other changes of sub- stance shall be submitted to the Department for subsequent permit action. Any deviation of plans herein approved shall not be implemented before first obtaining a permit amendment or written approval from the Department. 26. Approval of any plans or facilities herein refers to functional design, but does not guarantee stability or operational efficiency. Failure of the measures and facilities herein approved to perform as intended, or as designed, or in compliance with the applicable Rules and Regulations of the Department, for any reason, shall be grounds for the revocation or suspensivn of thi~ permit. Failure of the Permittee to comply with the terms of the permit or conditions, or failure of the Permittee to construct or operate the proposed facilities in conformity with the approved plans shall be grounds for the revocation or suspension of this permit. 27. As a condition of this permit, and of the permittee's authority to conduct the activities authorized by this permit, the permittee hereby authorizes and consents to allow authorized employees or agents of the Department, without advance notice or a search warrant, upon presentation of appropriate credentials, and without delay, to have access to and to inspect all areas on which solid waste management activities are being or will be conducted. The authorization and consent shall include consent to collect samples of waste, water or gases, to take photographs, to perform measurements, surveys and other tests, to inspect any monitoring equipment, to inspect the methods of operation, and to inspect and/or copy documents, books or papers required by the Department to be maintained. This permit condition is referenced in accordance with Sections 608 and 610(7) of the Solid Waste Management Act, 35 P.S. Sections 6018.608 and 6018.610(7). This condition in no way limits any other powers granted under the Solid Waste Management Act. 28. Nothing herein shall be construed to supersede, amend or authorize violation of the provisions of any valid and applicable local law, ordinance, or regulation, provided that said local law, ordinance or regulation is not preempted by the Pennsylvania Solid Waste Management Act, the Act of July 7,1980, Act 97, 35 P.S. 6018.101, et~. . ". '. l'IIllj~ll ~~3\;lllililill~~~I,b~;!Ji,li,,,,~alliW,,"i~,;t~ij:;-~O;t-,';"':H::-,,~,l,",d,",'" 'd(.;.."",,;'ltl;~"d,l;&':"i1!~"l'i:l''!i1~.ti Iii.llli. - - '""~~'. ~ .taiMli~Iii_"'""'" ~:~ .~ , (.1'3:,':.;:, C~ ~:~) :;:(-) ~(j ~^c:: z ~ ~ " o c; i- E:"'.I iJ ;1 ij Ii Ii II ;j !I " ;! .. ; r:-. :<; o ~I'l :;fi1:n ,-- :PP' ,c'rJ -::,')t =,:1::; ,:j-H '::7'C) om ?& -< '- ,-- ,= N -a 3: r:y ':::J (::) ~ ill " "",,' "I~ ,~ "'A" ,,""" . JUL 1 2 2002 ~ [ . ~ '" ~ PRAECIPE FOR LISTING CASE FOR TRIAL TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the following case: for JURY trial at the next term of civil court. X) for trial without a jury. North Newton Township Plaintiff (X ( ( civil Action - Equity Appeal From Arbitration v. (other) Hopewell Township Defendant The trial list will be called on 8/13/02 and Trials commence on 9/9/02 pretrials will be held on 8/21/02 (Briefs are due 5 days before pretrials) (The party listing this case for trial shall provide forthwith a copy of the praecipe to all counsel, pursuant to local Rule 214.1.) No. 1833 Civil/ Eauity 2001 Indicate the attorney who will try case for the party who files this praecipe: Robert L. O'Brien. Esquire Signed: C) c ". "eo f11fT1 2:0 &.is;: -<-.' _" 't:t. \2 e ~Kc.A..)~.5=8 >"~ Robert L. O'Brien ~ --. 0 0 N ., '- ;',~:!: s= . \:"J21 N ,~o .:::JC ~~I J v a1-l1i :3:: (')::0 .-:.,,0 ~ dm 0 ~ -< Indicate trial counsel for other parties if known: Sally J. winder. Esquire This case is ready for trial. Print Name: Date: 7/ ' 'Z-{ 0 ~ Attorney For: Plaintiff ,- . ", .' .',,1"'," . - J'~ " " ,,"'-- """ ,"<) ". ~"'f' , t NORTH NEWTON TOWNSHIP, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. HOPEWELL TOWNSHIP, DEFENDANT 01-1833 EQUITY ORDER OF COURT AND NOW, this --L.b day of July, 2002, IT IS ORDERED that a bench trial shall be conducted at 8:45 a.m., Thursday, August 8.2002, in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania. Robert L. O'Brien, Esquire For Plaintiff . ~ '7/"./e:>.. ~ ~.~ Sally J. Winder, Esquire For Defendant Court Administrator - ~ ~...:...., C~ ~ i//fo/e.2.. ,..,.&.1? :saa 1~Wtl!~,-ifl~~l~ml~~~\jfi.l,,,,,,,,,,,,';!>;o0i;,'~l~~~"" -"~ - I"~_ =_l "i"""""- - '"'='...... ~ - ;:diM~ ~,~"<O - _.IUII ~'! ~ VitvVr . J,lN(I(/", ' :.J,{SNtPd I""'J {,'t ;\.r." .....J .')<", "'I~~ . . ," Ir:-'.""Jtitvno '1/ :/ ?U "~, 9 J inr cO Al:!tf:(v,(", ' .L "'/Vi_;/"'Ii,' I _ ""I :-L't.7(] -,....' , .J\...I.LI' rl.... ~", I.L ....!~J,f\..j7i.j \'_,1 -10 ,~ ~ g( -~ - ., ',,','1...... -- --"""'c- AMPAD NO. 23-776 400 SETS RECYCLED PAPER f - ~ ,- " I ,-,,", c' ~,_', ~,,~' - , ~ ''','" '''-.k'.'/If,__"~' ,~ --"~,, ~',',';:;~i,:;,<' ,",<,;,.,n__~' ~~,~" ,'v;",,,^ -'"~n~" ", . .. -:. ' NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V5. : CIVIL ACTION - LAW HOPEWELL TOWNSHIP, Defendant : NO. 2001-1833 : IN EQUITY MOTION FOR CONTINUANCE 1. Movant is Robert L. O'Brien. Esquire, attorney for the Plaintiff. 2. Recently the Court established a hearing for August 8. 2002. Movant has another matter scheduled in Franklin County Court at the same date and time. WHEREFORE. Movant respec!fully requests that the hearing set for August 8.2002 at 8:45 a.m. be continued to another date. Respectfully submitted. O'BRIEN, BARIC & SCHERER By: ~)~~ Robert L. O'Brien, Esquire Attorney for Plaintiff 1.0. # 28351 17 West South Street Carlisle. Pennsylvania 17013 rlo\Clients\NNT\continuance.mot !! , ,', -=, ,--,' ~~_. '~"" ""~ ,~,..."",,,-,.,, "~,-- , "~r' - ""f:. '. ~ ... NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLANO COUNTY, PENNSYLVANIA VS. : CIVIL ACTION - LAW HOPEWELL TOWNSHIP, Defendant : NO. 2001-1833 : IN EQUITY CERTIFICATE OF SERVICE 2." I hereby certify that on July 21. 2002, I, Robert L, O'Brien, Esquire, of O'Brien. Baric & Scherer. did serve a copy of the Petition for Special Relief and Motion for Continuance, by first class U.S. mail. postage prepaid. to the party listed below, as follows: Sally J. Winder. Esquire Hopewell Township 9974 Molly Pitcher Highway Shippensburg. Pennsylvania 17257 < F=?a~ Robert L. O'Brien. Esquire Attorney for Defendant Date: July 17. 2002 , :; - .',' ,'. ',-" , ^". ~'." ~.' - 'L.,<"'-' _'-",i^.' 'dol' --" ~", 'o','c,-,,,, ". - ^'.~, ",';",.;."""'"""I"J,,",:.,.',-"",,g., re',";:" ' ' , ; " r ~ ,: .. ~ , NORTH NEWTON TOWNSHIP, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA vs. : CIVIL ACTION. LAW HOPEWELL TOWNSHIP, Defendant : NO. 2001-1833 : IN EQUITY ORDER OF COURT AND NOW. this jlf- day of July, 2002, upon review of the attached Motion For Continuance, said Motion is granted and the hearing on the above-captioned matter is continued to the ~\Jlk:. day of __~ .2002 at \'.3tl a...m/p.m. by the Court. Notice of entry of Hlis order shall be provided to all parties by petitioner. J. I Robert L. O'Brien. Esquire Attorney for Petitioner Sally J. Winder Attorney for Respondent ~~ f.oU))... 9-. ~U"""" a~"Jii:n ~~~jg;@r~..,,,,,,,,,-,,,..;...,~,,,,,,.i,. '.:' ?;. :.?;: ,~- ,(:) ., .-? ~() ~ ".~ ~''''' '~~-fl' ~.= ~,;':': }-... , tl. ("oJ (~) C) u:> N ~ ?)~ (-~ O~( ~>. ':~.;~ 'fifu .:]2 c::z !J,JUj COO- .....:; ::) (.) c;, t r _ ^^ ~.",~,~ ,,=,_ 1""""""",""""'''''_____~,'''<..."~,''~._,_r,','I',,'~,,','-,, "" -, ;.,!,", ~:','f",1y)_", ,,- ,~,:" ,,~"r ,>~ ~ - ,'~ , '" "-"~ ~ ~'" . .~,' " ",",~,,~ 0 ..." ,'~,' '.,~~".- ".' "_=~~"J<,~'" , .':1 I, 11 fi Ii Ii .",,;:; .' -- I ,_ 1.-',.',- _""",, --d,n_'",,> ;_ " '" ' -, ~ " ' ." ',~'~' '",,,, ':d< NORTH NEWTON TOWNSHIP, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - EQUITY HOPEWELL TOWNSHIP, Defendant NO. 01-1833 EQUITY TERM ORDER OF COURT AND NOW, this 21st day of August, 2002, this matter having been called for trial, and the parties having reached an agreement, judgment is entered in favor of North Newton Township against Hopewell Township in the amount of $310,000.00. /Robert L. O'Brien, Esquire (l . e.3 .\ " \ For Plaintiff > L Or I .-(f\o."e;d- /Sally J. 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