Joint Appendix — United Haulers Ass'n v. Oneida-Herkimer

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Supreme US.

FILED

NOV 7 - 2006

OFFICE OF THE CLERK

No. 05-1345

Jn the Supreme Court of the Gnited States

UNITED HAULERS ASSOCIATION, INC., TRANSFER SYSTEMS,

INC., BLISS ENTERPRISES, INC., KEN WITTMAN SANITATION,

BRISTOL TRASH REMOVAL, LEVITT’S COMMERCIAL CON-

TAINERS, INC., AND INGERSOLL PICKUP INC.,

Petitioners,

ONEIDA-HERKIMER SOLID WASTE MANAGEMENT

AUTHORITY, COUNTY OF ONEIDA, AND COUNTY OF

IIERKIMER, -

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

JOINT APPENDIX

EVAN M. TAGER MICHAEL J. CAHILL

Counsei of Record Counsel of Record

Mayer, Brown, Rowe & - Germano & Cahill, P.C.

Maw LLP Suite 275

1909 K Street, NW 4250 Veterans Mem'l Hwy.

Washington, DC 20006 Holbrook, NY 11741

(202) 263-3000 (621) 588-8778

Counsel for Petitioners Counsel for Respondents

oe NO RE ES RE A OL LL A CR NRT eA SS

WiLSON-EPES PRINTING CO., INC. — (202) 789-0095 — WASHINGTON. D.C. 20001

PETITION FOR CERTIORARI FILED APRIL 21, 2006

CERTIORARI GRANTED SEPTEMBER 26, 2006

TABLE OF CONTENTS

Page

Relevant Docket Entries

U.S. District Court for the Northern District

eee ccnseesattinbinca shntginnestcivideinmalssnenebcaminiiginiad tities la

U.S. Court of Appeals for the Second Circuit,

as EI BED inigiihad ainscuictackdensabehabiebidhndshptenibebalsnb chbbnddinidebainne 23a

U.S. Court of Appeals for the Second Circuit,

Ph RY aiiciisttiictn banished lalapcnsinlicitebongninienninnbinteisk 28a

Complaint (filed Apr. 14, 1995) 0.0... ccceeceeeeeereeneneeees 3la

Defendant Oneida-Herkimer Solid Waste Management

Authority’s Answer (filed June 14, 1995)..............ccceeeeees 53a

Note: The separate answers of Defendants County of

Oneida and County of Herkimer have been omitted in

order to avoid repetition.

Waste Disposal Agreement dated June 28, 1991,

Exhibit | to Affidavit of Kristen Carter Rowe in

Support of Plaintiffs’ Motion for Summary

Judgment (filed July 27, 1995) (Excerpts) ...............:cc00 69a

Affidavit of Steven R. Kowalsky (filed July 27, 1995)......96a

Affidavit of Hans G. Amold (filed May 16, 2003).......... 10Sa

Final Local Solid Waste Management System Plan

dated May 29, 1991, Exhibit 37 to Affidavit

of Hans G. Amold (filed May 16, 2003)..........0...00...00..... 140a

Page

Exhibits to the Affidavit of Kevin C. Murphy in

Support of Plaintiffs’ Motion for Partial Summary

Judgment (filed May 16, 2003)

29.

30.

31.

32.

38.

39.

43.

Letter from Michael Houseknect to Hans

G. Amold (Mar. 19, 1987) and attached

Memorandum to Majority Senators

Rs IE So Tit A eee 168a

Oneida-Herkimer Solid Waste Management

Authority Financial Statements and Report

of Independent Certified Public Accountants

(Dec. 31, 2001 and 2000) (excerpts) .................... 174a

Solid Waste Transporting and Disposal

Agreement (Nov. 30, 1998) (excerpts)................. 176a

Expert Report of Mark P. Berkman

GRINS Batis SIE cic cctecnsnghascaiettees Keciadbivietchiigheenesiipistascliini 19la

NWSMaA Research Bulletin 02-01,

Interstate Movement of Municipal

ER NaC 239a

Affidavit of David N. Levitt

(with attachments) (June 2, 1995) ..............0..0.0204- 253a

Affidavit of Jeff Bliss (with attachments)

CII Aa ic ngceteaedtahticde aes incsdaliglahinsitennndiedtion 269a

Affidavit of Marcella Guerriero

(with attachments) (June 10, 1995) .....00000........... 292a

Letter from Hans G. Arnold to Richard Lynch

Se Ake iin ae een wee 296a

45.

46.

47.

51.

Letter from Hans G. Arnold to Residents

and Businesses of Oneida and Herkimer

RA ROE AER ONAL Se AEE Rr 300a

Excerpt from Draft Environmental Impact

Statement for Site WLE-S East (Jan. 1998)......... 304a

Memorandum from Hans G. Armold to John D.

Plumley and Robert F. Julian, re: Long-Term

Financial Analysis (Jan. 4, 1989) .............:...:-000 307a

Memorandum from John D. Plumley, re

Contractual Relationship Between the Counties

and the Oneida-Herkimer Solid Waste

Management Authority (Nov. 7, 1988)................ 310a

The Cost of Flow Control, Prepared by

Mark P. Berkman (May 3, 1995) 200.0... eee eee 315Sa

Rebuttal Report of Mark P. Berkman dated January 29,

2003, Exhibit 64 to the Affidavit of Kevin C. Murphy

In Support of Plaintiffs’ Reply Memorandum In Sup-

port of Motion and Cross-Motion for Partial Summary

Judgment (filed May 16, 2003) ..0.........:ccccececsesseseeeeeeneeees 340a

Attachments to Defendants’ Motion for Summary

Judgment (filed May 16, 2003)

17.

31.

Plaintiffs’ Supplemental Response to

Defendants’ Third Set of Interrogatorics

a: Ridlg: I iricdiinkaipiaccciithigindapaticncepiinnsiatibicnniiid 348a

Expert Report of Dr. Robeft N. Stavins

ES Fas, IE cenccsiccndcteibuinietsadicnlainlaridsihttiaimhinicdieabiia 353a

Affidavit of Hans G. Amold (July 7, i995)......... 4l3a

Page

32. Affidavit of Robert F. Julian (July 5, 1995).......... 443a

33. Affidavit of Michael Gapin (July 6, 1995)........... 472a

35. Affidavit of Ronald N. Soltys (July 6, 1995)....... 493a

Civil Judgment (March 24, 2005) ..............cccceeseeseceeseeees 497a

Note: The following items have been omitted from this’

Joint Appendix because they appear on the following

pages of the Appendix to the Petition for a Writ of Cer-

tiorari: 4

Opinion of the United States Court of Appeals for the

Second Carcust (Feb. 16, 2006) 2....:..:ccscecscosensecessssoscossceseveses la

Opinion of the United States Court of Appeals for the

ek AY |) Sper Ce EE 22a

Memorandum Decision and Order of the United States

District Court for the Northern District of New York

a Ate, SU sincinsscticdnciitein dseapithdicibihichisaishpaationibhonsedibipetcenic 54a

Report and Recommendation of the United States Magis-

trate Judge of the United States District Court for the

Northern District of New York (Mar. 17, 2004) ................ 75a

Memorandum Decision and Order of the United States

District Court for the Northern District of New York

SE 0 cE sckinidarcnsdaseaidendebinnbadtieigildacnprenilavnepiiniacess 103a

Oneida County Board of Legislators

EN EP ER RE De Se LPL a 118a

Herkimer County Local Law,

TC ies 6 Fe wit tre cecensttimntntedinccnnnttcicccssttientns I3la

U.S. DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK (Syracuse)

Case No. 5:95-cv-00516-NAM-DEP

United Haulers Ass’n., Inc., et al.,

Oneida-Herkimer Solid Waste Management Authority, et al.,

Defendants.

Plaintiffs,

RELEVANT DOCKET ENTRIES

Date Filed No.

Docket Text

04/14/1995 ;

COMPLAINT filed.

06/15/1995. =

ANSWER to Complaint by

County of Oneida.

06/15/1995 g

ANSWER to Complaint by

Oneida-Herkimer.

| 06/16/1995 LM

ANSWER to Complaint by

County of Herkimer.

07/27/1995 14

— = oe

MOTION by United Haulers

Assn., Transfer Systems Inc, Bliss

Enterprises, Ken Wittman

Sanitation, Bristol Trash Removal,

Levitt’s Commercial, Ingersoll

Pickup Inc for Summary

| Judgment, Hearing set for 10:00

_ 8/21/95 Motion returnable before

Judge/Mag. Judge: Pooler

(Statement of Undisputed Facts

attached).

07/27/1995

r T

AFFIDAVIT of KRISTIN

CARTER ROWE, ESQ. on behalf

Date Filed

No.

Docket Text

of United Haulers Assn., Transfer

Systems Inc, Bliss Enterprises,

Ken Wittman Sanitation, Bristol

Trash Removal, Levitt’s

Commercial, Ingersoll Pickup Inc

Re: [14-1] motion for Summary

Judgment (Exhibits A-N

attached).

| 07/27/1995

AFFIDAVIT of DAVID N.

LEVITT on behalf of United

Haulers Assn., Transfer Systems

Inc, Bliss Enterprises, Ken

Wittman Sanitation, Bristo] Trash

Removal, Levitt’s Commercial,

Ingersoll Pickup Inc Re: [14-1]

motion for Summary Judgment

(Exhibits A-D attached).

07/27/1995

AFFIDAVIT of JEFF BLISS on

behalf of United Haulers Assn..,

Transfer Systems Inc, Bliss

Enterprises, Ken Wittman

Sanitation, Bristol Trash Removal,

Levitt’s Commercial, Ingersoll

Pickup Inc Re: [14-1] motion for

Summary Judgment (Exhibit A &

B attached).

Rie as

‘07/27/1995

;

AFFIDAVIT of MARCELLA

GUERRIERO on behalf of United

Haulers Assn., Transfer Systems

Inc, Bliss Enterprises, Ken

Wittman Sanitation, Bristo! Trash

Removal, Levitt’s Commercial,

‘Date Tiled

No.

Docket Text

Ingersoll Pickup Inc Re: [14-1]

motion for Summary Judgment

(Exhibits A-B attached).

07/27/1995

MEMORANDUM by United

Haulers Assn., Transfer Systems

inc, Bliss Enterprises, Ken

: Wittman Sanitation, Bristo] Trash

Removal, Levitt’s Commercial,

Ingersoll Pickup Inc in support of

, [14-1] motion for Summary

Judgment (Exhibits A-D

attached).

07/27/1995

AFFIDAVIT of PHILIP A.

RAYHILL, ESQ. on behalf of

Oneida-Herkimer Re: [14-1]

motion for Summary Judgment

(Exhibits 1-5 attached).

07/27/1995

AFFIDAVIT of MICHAEL A.

GAPIN on behalf of Oneida-

| Herkimer in OPPOSITION to [14-

1} motion for Summary Judgment.

07/27/1995

AFFIDAVIT of ROBERT F.

JULIAN on behalf of Oneida-

Herkimer Re: | 14-1] motion for

Summary Judgment (Exhibits 1-

11 attached).

07/27/1995

Senet —-

07/27/1995

Exhibits J-6, J-7 and J-8 in

" support of Robert Julian’s [24-1]

| Affidavit.

| AFFIDAVIT of HANS G.

Date Filed

No.

Docket Text

ARNOLD on behalf of Oneida-

Herkimer Re: [14-1] motion for

Summary Judgment (Exhibits A-]

- A-12 attached).

07/27/1995

Exhibits A-1, A-2, A-3, A-4, A-5,

A-6, A-7, A-8, A-9, A-10 and A-

11 in support of Hans Arnold’s

[25-1] Affidavit.

07/27/1995

Exhibit A-12 in support of Hans

Arnold’s [25-1] Affidavit.

07/27/1995

MEMORANDUM by Oneida-

Herkimer in opposition to [14-1]

motion for Summary Judgment

(w/attachments).

| 07/27/1995

AFFIDAVIT of CARRIE

MCLOUGHLIN NOLL on behalf

of County of Herkimer in

OPPOSITION to [14-1] motion

for Summary Judgment

(AFFIDAVIT of RONALD N.

SOLTYS and Proof of Mailing

attached).

07/27/1995

MEMORANDUM by County of

Herkimer in opposition to [14-1]

motion for Summary Judgment. =

07/27/1995

MEMORANDUM by County of

Oneida in opposition to [14-1]

motion for Summary Judgment.

07/27/1995

REPLY by United Haulers Assn.. |

| Transfer Systems Inc, Bliss

‘Date Filed

No.

Docket Text

Enterprises, Ken Wittman

Sanitation, Bristol Trash Removal,

Levitt’s Commercial, Ingersoll

Pickup Inc to response to [14-1]

motion for Summary Judgment.

07/27/1995

| AFFIDAVIT of KEVIN M.

r YOUNG, ESQ. on behalf of

United Haulers Assn., Transfer

Systems Inc, Bliss Enterprises,

Ken Wittman Sanitation, Bristol]

Trash Removal, Levitt’s

Commercial, Ingersoll] Pickup Inc

Re: [14-1] motion for Summary

Judgment (Exhibits A-F attached).

07/27/1995

AFFIDAVIT of STEVEN R.

KOWALSKY on behalf of United

Haulers Assn., Transfer Systems

Inc, Bliss Enterprises, Ken

Wittman Sanitation, Bristol] Trash

Removal, Levitt’s Commercial,

_ Ingersoll Pickup Inc Re: [14-1]

motion for Summary Judgment

(Exh. A attached).

07/27/1995

a oe a eee ee

AFFIDAVIT of MARCELLA

| GUERRIERO on behalf of United

Haulers Assn., Transfer Systems

| Inc, Bliss Enterprises, Ken

_ Wittman Sanitation, Bristol Trash

| Removal. Levitt’s Commercial,

| Ingersoll Pickup Inc Re: [14-1]

' motion for Summary Judgment

| (Exhibits A-D attached).

‘Date Filed

No.

Docket Text

| 10/16/1995

MEMORANDUM by County of

Herkimer in further opposition to

[14-1] motion for Summary

Judgment.

10/17/1995

MEMORANDUM by Ingersoll

Pickup Inc, Levitt’s Commercial,

Bristol Trash Removal, Ken

Wittman Sanitation, Bliss

Enterprises, Transfer Systems Inc,

United Haulers Assn. in

FURTHER support of [14-1]

motion for Summary Judgment.

10/17/1995

Supplemental MEMORANDUM

of Law by County of Oneida,

Oneida-Herkimer in opposition to

[14-1] motion for Summary

Judgment.

10/23/1995

MEMORANDUM of Law by

County of Herkimer, County of

Oneida, Oneida-Herkimer in

opposition to [14-1] motion for

Summary Judgment.

| 10/24/1995

REPLY BRIEF IN RESPONSE

TO DEFENDANTS’

SUPPLEMENTAL

MEMORANDA OF LAW by

Ingersoll Pickup Inc, Levitt's

Commercial, Bristol Trash

Removal, Ken Wittman

Sanitation, Bliss Enterprises.

| Transfer Systems Inc, United

Haulers Assn. RE: [14-1] motion |

"Date Filed

No.

Docket Text

for Summary Judgment.

| 05/24/1996

MINUTE ENTRY of

TELEPHONE CONFERENCE

w/Judge Pooler: APP: Philip

Rayhill, Esq. for Oneida-

Herkimer, James O’Shea, Esq. for

County of Oneida, Carrie Noll,

Esq. for County of Herkimer,

Kevin Young, Esq. and Kristin

Carter Rowe, Esq. for pltfs. Pitf.

makes motion for TRO to prohibit

Authority or County from

enforcing flow contro} pending

the court’s decision on pending

| motion. Judge does not issue TRO

as no irreparable harm can be

shown; damages can be measured

in dollars.

' 03/31/2000

ORDERED, that the pitfs [14-1]

motion for Summary Judgmentis

granted on their first cause of

action and defts are enjoined from

enforcing flow contro} laws; the

United Haulers lacks standing

‘only with respect to the claim

| under Section 1983, but [| grant the

remaining pltf's summary

judgment on that second cause of

action; the matter is referred to

Mag. Judge DiBianco for

calculation of damages. (signed by

| Judge Rosemary S. Pooler ).

Modified on 06/28/2000.

Date Filed

No.

Docket Text

| 03/31/2000

CASE REFERRED to Magistrate

Judge Gustave J. DiBianco for

calculations of damages pursuant

to [83-1] Order.

| 04/03/2000

CASE reassigned to Judge

Norman A. Mordue.

;. movie's ven

04/28/2000

NOTICE OF APPEAL by

Oneida-Herkimer.

04/28/2000

NOTICE OF APPEAL by County

of Oneida.

04/28/2000

NOTICE OF APPEAL by County

of Herkimer.

05/08/2000

Notice of appeal and certified

copy of docket to USCA re: [87-

1] appeal by County of Herkimer,

[86-1] appeal by County of

Oneida, [85-1] — by Oneida-

Herkimer.

06/16/2000

COURT NOTICE of

Reassignment of Action to Hon.

David E. Peebles, US Magistrate

Judge w/copy Order.

06/16/2000

CASE NO LONGER REFERRED

TO Magistrate Judge Gustave J.

DiBianco.

06/16/2000

CASE REFERRED to Magistrate

Judge David E. Peebles.

07/1 1/2000

| USCA Case Number Re: [87- 7 a

r i i

Date Filed _ No. Docket Text

[86-1] appeal by County of

Oneida, |85-1] appeal by Oneida-

Herkimer; USCA #: 00-7593(L),

00-7595 (con) & 00-7597 (con).

12/05/2000 95 | Minute entry: Tel. Conf. w/MJ

Peebles - MJ Peebles to sign

Stipulation & Order substituting

Atty. Cahill for Atty. Rayhill;

attys. agree that damages phase

should be stayed until 2nd Circuit

decision on appeal; MJ Peebles to

| issue order staying case; attys. to

| notify Court when decision

| received & further conf. to be

| scheduled.

3 12/07/2000 96 | LETTER STIPULATION and

ORDER dd 12/1/00 by Kevin M.

Young, Esq. for pltf and Michael

J. Cahill, Esq for defts requesting

to Stay discovery pending a

decision by the Court of Appeals ;

Granted. Upon a decision of the

Court of Appeals, the parties shall

| promptly notify the Mag. Judge of

such decision and schedule a

“further conference of the matter to

address remaining issues of

discovery, if any. (signed by

| Magistrate Judge David F.

| Peebles ).

* 7 1 fF Ne

08/24/2001 101 | MANDATE OF USCA (certified

f. appeal by County of Herkimer,

10a

| Date Filed

No.

Docket Text

copy dated 8/21/01) Re: [87-1]

appeal by County of Herkimer,

[86-1] appeal by County of

Oneida, [85-1] appeal by Oneida-

Herkimer - the judgment of said

district court be and it hereby is

REVERSED and REMANDED

for further proceedings in

accordance with the opinion of

this Court. The parties shall bear

their own costs.

/ 10/02/2001

102 | Minute entry of telephone

conference held w/MJ Peebles:

pitf will be filing a petition for

certiorari; matter will be stayed

pending petition.

09/24/2002

123 | Minute entry of in-person pretrial

conference; App: Kevin Murphy,

Esq. for VHA, Michael Cahill,

Judy Drabicki, Esqs. for defts..,

Richard Frye, Esq. for Oneida

County, Chris Sing, Esq. for

Herkimer Co., Clerk C. McNulty:

| Parties requested bifurcation of

liability from damages and for

_ purposes of discovery and MJ

Peebles agreed, subject to

approval by Judge Morduc; The

Parties believe that the liability

issue can be decided on the papers

although damages might require a

-non-jury trial; The subject of

| experts were discussed and an

—_ —- -——— +4

Ha-

| Date Filed

;

| No.

Docket Text

[—

agreed upon discovery schedule

and expert reports were

developed; The parties report that

at the present time there is no

likelihood of settlement ; set Tel.

Conf. for 3:00 1/15/03 ( pltf to

initiate ).

09/27/2002

| 125

ORDER SUPPLEMENTING

THE UNIFORM PRETRIAL

ORDER: The UPSO is hereby

modified to provide that the

Discovery and motion phases of

‘| the case shall be bifurcated, with

the issue of liability being

determined first, followed by a

determination through motion,

trial or otherwise, of the damages

phase if required; The Deadline

for completion of Discovery with

| regard to the liability phase of the

. | case is hereby extended until

| 2/14/03 inclusive: Plaintiffs expert

| disclosure is due 11/1/02,

defendants expert disclosure duc

12/16/02 and Rebuttal Expert

Disclosure is due 1/10/03; the

' deadline for filing dispositive

| motions remains 4/30/03; All

| other provisions of the USPO

| shall remain the same: the

_ procedures and deadlines

associated w/the damages phase

‘ shall be determined by the Court

at a future date, depending on the

12a

| Date Filed

No.

Docket Text

outcome of liability; So Ordered

signed by Magistrate Judge David

E. Peebles 9/27/02.

04/11/2003

145

MOTION by Kevin C. Murphy,

Esq., on behalf of the plaintiffs’

for Partial Summary Judgment on

the issue of Liability.

04/11/2003

152

MOTION by Michael J. Cahill,

Esq.. on behalf of the defendants’

for Summary Judgment

dismissing the complaint and for

Attorneys Fees & Costs.

05/02/2003

—_ ——

160

CROSS MOTION by Kevin C.

Murphy, Esq., on behalf of the

plaintiffs’ for Partial Summary

Judgment on the issue of Liability.

05/16/2003

146

Statement of Material Facts in

Support of [145-1] Motion for

Partial Summary Judgment on the

issue of Liability filed by

plaintiffs. |

05/16/2003

147

AFFIDAVIT: by Kevin C.

Murphy, Esq., on behalf of the

plaintiffs in support of [145-1]

Motion for Partial Summary

Judgment on the issue of Liability,

w/attached exhibits | through 24.

—_—

—

05/16/2003

148

PLAINTIFFS’ EXHIBITS -

/ VOLUME I], attaching exhibits

25 through 52 in support of [147]

l3a

"Date Filed

Docket Text

-~-

Affidavit of Kevin C. Murphy,

Fsq., and [145] Motion for Partial

Summary Judgment.

05/16/2003

149

MEMORANDUM OF LAW: by

Kevin C. Murphy, Esq., on behalf

of plaintiffs’ in support of [145-1]

Motion for Partial Summary

Judgment on the issue of Liability,

w/attachment.

—+~—- -

05/16/2003

| 150

Defendants’ Response Statement

of Material Facts, Re: plaintiffs’

[145-1] Motion for Partial

Summary Judgment on the issuc

of Liability.

"05/16/2003

}

151

MEMORANDUM OF LAW: by

Michael J. Cahill, Esq., on behalf

of the defendants’ in opposition to

| 145-1] Motion for Partial

Summary Judgment on the issue

! of Liability.

05/16/2003

Statement of Material Facts in

Support of defendants’ [152-1|

~Motion for Summary Judgment

| dismissing the complaint and for

Attorneys Fees & Costs.

05/16/2003

| AFFIRMATION: by Michael J.

Cahill, Esq., on behalf of the

defendants’ in support of [152-1]

| Motion for Summary Judgment

dismissing the complaint and for

Attorneys Fees & Costs.

l4a

| Date Filed

No.

Docket Text

05/16/2003

155

MEMORANDUM OF LAW: by

Michael J. Cahill, Esq., on behalf

of the defendants’ in support of

[152-1] Motion for Summary

Judgment dismissing the

complaint and for Attorneys Fees

& Costs.

156

AFFIDAVIT: by Hans G. Arnold,

Executive Director for the

Oneida-Herkimer Solid Waste

Management Authority, in support

of [152-1] Motion for Summary

Judgment dismissing the

complaint and for Attorneys Fees

& Costs.

157

NOTICE OF APPENDICES:

listed as A through J, filed on

behalf of the defendants’ in

support of [152] Motion for

Summary Judgment dismissing

the Complaint and for Attorneys’

Fees & Costs. (to be considered an

attachment to docket [156-1].

05/16/2003

158

AFFIDAVIT: by Richard A. Frye,

Esq., on behalf of County of

Oneida in support of [152-1]

Motion for Summary Judgment

dismissing the complaint and for

Attomeys Fees & Costs.

| 159

AFFIDAVIT: by Krishna K.

| Singh, Esq., on behalf of County

| of Herkimer i in n support o of [152- VW

15a

‘Date Filed

No.

Docket Text

Motion for Summary Judgment

dismissing the complaint and for

Attorneys Fees & Costs,

w/attached exhibits A through C.

05/16/2003

| Plaintiffs’ Response Statement of

| Material Facts in Response to

| defendants’ [152-1] Motion for

Summary Judgment dismissing

the complaint and for Attorneys

Fees & Costs, and in support of

plaintiffs’ [160-1] Cross Motion

for Partial Summary Judgment on

the issue of Liability.

05/16/2003

162

AFFIDAVIT: by Kevin C.

| Murphy, Esq., on behalf of the

plaintiffs’ in support of | 160-1)

Cross Motion for Partial Summary

Judgment on the issue of Liability,

w/attached exhibits marked 52

05/16/2003

ines

05/16/2003

;

164 | REPLY MEMORANDUM OF

Kevin C. Murphy, Esq., on behalf

of the plaintiffs’ in opposition to

| [152-1] Motion for Summary

| Judgment dismissing the

complaint and for Attorneys Fees

' & Costs, and in support of [160-1]

| Cross Motion for Partial Summary.

' Judgment on the issue of Liability. |

—

| LAW: by Michael J. Cahill, Esq..

| on behalf of defendants in

16a

ate Filed

No.

Docket Text

———— ee ee ee mes

| 05/16/2003

response to and in further support

of [152-1] Motion for Summary

Judgment dismissing the

complaint and for Attorneys Fees

& Costs.

165

REPLY AFFIDAVIT: by Kevin

C. Murphy, Esq., on behalf of the

plaintiffs in response to and in

further support of [145-1] Motion

for Partial Summary Judgment on

the issue of Liability, and [160-1 |

Cross Motion for Partial Summary

Judgment on the issue of Liability,

w/attached exhibits marked 61

through 66.

05/16/2003

166

REPLY MEMORANDUM OF

LAW: by Kevin C. Murphy, Esq.,

on behalf of plaintiffs in response

to and in further support of [145-

1} Motion for Partial Summary

Judgment on the tssue of Liability,

and [160-1] Cross Motion for

Partial Summary Judgment on the

issue of Liability.

—

05/16/2003

167

DEFENDANTS’ EXHIBITS:

Volume |, listing exhibits |

through 13 in support of

defendants’ [152] Motion for

Summary Judgment dismissing

the Complaint and for Attorneys’

Fees & Costs.

— a

05/16/2003

—r

168

| DEFENDANTS’ EXHIBITS:

—$_ ——J

17a

Date Filed

No. Docket Text

Volume II, listing exhibits 14

through 16 in support of

defendants’ [152] Motion for

Summary Judgment dismissing

the Complaint and for Attorneys’

Fees & Costs.

05/16/2003

169 | DEFENDANTS’ EXHIBITS:

Volume III, listing exhibits 17 and

18 in support of defendants’ [152]

Motion for Summary Judgment

dismissing the Complaint and for

Attorneys’ Fees & Costs.

05/16/2003

170 ; DEFENDANTS’ EXHIBITS:

Volume IV. listing exhibits 19

through 21 in support of

defendants” [152] Motion for

| Summary Judgment dismissing

| the Complaint and for Attorneys’

Fees & Costs.

05/16/2003

: 05/16/2003

—-- --—-

tem eee me mee se ee

171 DEFENDANTS’ EXHIBITS:

| Volume V, listing exhibits 22

| through 24 in support of

| defendants’ [152] Motion for

| Summary Judgment dismissing

the Complaint and for Attorneys’ |

Fees & Costs.

—

172 | DEFENDANTS’ EXHIBITS:

| Volume VI, listing exhibits 25

| through 28 in support of

defendants’ [152] Motion for

Summary Judgment dismissing

! the Complaint and for Attomneys’ |

——

18a

Date Filed

_- -

No.

Docket Text

Fees & Costs.

>» ore

05/16/2003

173

DEFENDANTS’ EXHIBITS:

Volume VII, listing exhibits 29

and 30 in support of defendants’

[152] Motion for Summary

Judgment dismissing the

Complaint and for Attorneys’

Fees & Costs.

"05/16/2003

174

‘DEFENDANTS’ EXHIBITS:

Volume VIII, listing exhibits 31

through 35 in support of

defendants’ [152] Motion for

Summary Judgment dismissing _

the Complaint and for Attorneys’

Fees & Costs.

05/16/2003

175

DEFENDANTS’ EXHIBITS:

Volume IX, listing exhibits 36

through 40 in support of

defendants’ [152] Motion for

‘Summary Judgment dismissing

the Complaint and for Attorneys’

Fees & Costs.

06/13/2003

180 "ORDER: the following motions

are referred to Magistrate Judge

David E. Peebles to conduct oral

argument if necessary and to

submit a Report &

Recommendation to Judge

Mordue for their disposition, Re:

[140-1] Motion to Strike the

_ Affidavit of Michael J. Cahill and

; ; Affidavit of Richard A. Frye,

19a

Date Filed

No.

Docket Text

{145-1} Motion for Partial

Summary Judgment on the issue

of Liability, [152-1] Motion for

Summary Judgment dismissing

the complaint and for Attorneys

Fees & Costs, and [160-1] Cross

Motion for Partial Summary

Judgment on the issue of Liability

(Signed by Judge Norman A.

Mordue).

—

| 07/23/2003

181

——a

| Minute entry: Judge Mordue has

requested Judge Peebles to

prepare a Report &

Recommendation regarding the

pending motions for summary

judgment. Judge hears oral

argument from Atty. Kevin

Murphy on behalf of the Pltfs. &

' Atty. Michael Cahill on behalf of |

' the Defits. Judge reserves decision

on the pending motions for

summary judgment. A Report &

| Recommendation will be prepared

| by Judge Peebles shortly.

c—_--—

03/17/2004

| 183

ee ee ee ee

| REPORT AND

RECOMMENDATIONS:

Recommending that defendants’

L152] Motion for Summary

! Judgment filed by County of

| Herkimer, New York, County of

| Oneida, Oneida-Herkimer Solid

Waste Management Authority. be

granted and that the [1] Complaint |

20a

| Date Filed

No.

Docket Text

be dismissed, recommending that

the [145] Motion for Partial

Summary Judgment filed by

plaintiffs’ be denied,

recommending that the [160]

Cross Motion for Partial Summary

Judgment filed by plaintiffs’ be

denied and further recommending

that the [140] Motion to Strike

filed by plaintiffs’ be granted in

part, and that paragraphs five

through forty-five of the Cahill

Affirmation and paragraphs five

through twenty-five of the Frye

affidavit be stricken from the

record. Objections to R&R due by

4/6/2004. Signed by Judge David

E. Peebles on 3/17/04.

‘04/1 5/2004

188

OBJECTION to [183] Report and

Recommendations by Bliss

Enterprises, Inc., Bristol Trash

Removal, Ingersoll Pickup Inc,

| Ken Wittman Sanitation, Levitt’s

Commercial Containers, Inc.,

Transfer Systems Inc, United

) Haulers Association, Inc.

04/26/2004

Motions No Longer Referred to

| Magistrate Judge Peebles: [160]

Motion for Summary Judgment,

[145] Motion for Summary

Judgment, | 140] Motion to Strike,

[152] Motion for Summary

| Judgment.

2la

‘Date Filed

No.

Docket Text

' 05/14/2004

189

MEMORANDUM OF LAW In

Response to Plaintiffs Objections

to Magistrates’ Report and

Recommendations filed by

Oneida-Herkimer Solid Waste

Management Authority.

03/24/2005

19]

MEMORANDUM-DECISION &

ORDER: adopting the [183]

Report and Recommendations in |

its entirety therefore denying

plaintiffs’ [145] Motion for

Summary Judgment, denying

plaintiffs’ [160] Motion for

Summary Judgment, granting in

part and denying in part plaintiffs’

[140] Motion to Strike, ordered

that paragraphs 5 through 45 of

the Cahill Affirmation and

paragraphs 5 through 25 of the

Frye affidavit be stricken from the

record, further ordered granting

defendants’ [152] Motion for

Summary Judgment and the

complaint is dismissed. Signed by

Judge Norman A. Mordue on

3/24/05

| 03/24/2005

192

JUDGMENT in favor of

defendants against plaintiffs.

04/22/2005

NOTICE OF APPEAL as to [192]

Judgment by United Haulers

Association, Inc., Transfer

Systems Inc, Bliss Enterprises,

— — —--

22a

‘Date Filed

No.

Docket Text

Inc., Ken Wittman Sanitation,

Bristol Frash Removal, Levitt’s

Commercial Containers, Inc.,

Ingersoll Pickup Inc.

"03/27/2006

199

MANDATE of USCA as to [193]

Notice of Appeal, filed by United

Haulers Association, Inc.,

Transfer Systems Inc, Bliss

Enterprises, Inc., Ken Wittman

Sanitation, Bristol Trash Removal,

Levitt’s Commercial Containers,

Inc., Ingersoll Pickup Inc. The

Judgment of the District Court is

hereby AFFIRMED in accorcance

with the opinion of the Secona

Circuit Court of Appeals. {Issued

as a mandate on 3/14/06}.

23a

U.S. COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 00-7593

United Haulers Ass’n., Inc., et al.,

Plaintiffs-Appellees,

Oneida-Herkimer Solid Waste Management Authority, et al.,

Defendants-Appellants.

—

RELEVANT DOCKET ENTRIES

- | Date Filed Docket Text

05/10/00 Copy of notice of appeal and

| | district court docket entries on

behalf of Appellant Oneida-

| Herkimer in 00-7593 filed.

'05/ 10/00 Copy of notice of appeal and

| district court docket entries on

| behalf of Appellant County of

| Oneida in 00-7595 filed.

05/10/00 Copy of notice of appeal and

district court docket entries on

. behalf of Appellant County of

Herkimer in 00-7597 filed.

08/03/00 Appellant County of Oneida in

: | 00-7593 brief FILED with proof

| of service.

r _

08/03/00 Appellant Oneida-Herkimer in

00-7593 brief FILED with proof

| of service.

08/03/00 Appellant Oneida-Herkimer in

| 00-7593, Appellant County of

24a

| Date Filed

Docket Text

Oneida in 00-7593, Appellant

County of Herkimer in 00-7593

joint appendix filed w/pfs.

Number of volumes: one.

8/11/00

Appellant County of Herkimer in

00-7593 brief FILED with proof

of service.

pccete

09/07/00

Appellee United Haulers Assoc in

00-7593, Appellee Transfer

Systems, Inc. in 00-7593,

Appellee Bliss Enterprises in 00-

7593, Appellee Ken Wittman

Sanitation in 00-7593, Appellee

Bristol Trash Removal in 00-

| 7593, Appellee Levitt’s

Commercial in 00-7593, Appellee

Ingersoll Pickup Inc. in 00-7593

brief filed with proof of service.

' 09/27/00

| Appellant Onetda-Herkimer in

00-7593 reply brief filed with

proof of service.

-09/ 29/00

Appellant County of Herkimer in

00-7593 reply brief filed with

proof of service.

r—- —

09/29/00

Appellant County of Oneida in

00-7593 reply brief filed with

proof of service.

10/13/00

| Amicus Curiae N.Y.S. Assoc. for

' So in 00-7593 brief filed with

proot of service. |

25a

| Date Filed

Docket Text

| 11/08/00

Set for argument on 12/19/00.

12/19/00

Case heard before MESKILL,

LEVAL, CALABRESI C_JJ.

(Tape: #99+100)

| 12/29/00

Order filed stating: The parties

shall submit supplemental briefs

by January 26, 2001, addressing

the questions listed below. The

New York State Association for

solid Waste Management is

granted leave to submit additional

briefing as amicus on these

issues. Before: Hon. Meskill,

Hon. Leval and Hon. Calabresi,

C.JJ. (12/29/00 RAA)

01/26/01

Appellee United Haulers Assoc.

in 00-7593, Appellee Transfer

Systems, Inc. in 00-7593,

Appellee Bliss Enterprises in 00-

7593, Appellee Ken Wittman

Sanitation in 00-7593, Appellee

Bristol Trash Removal in 00-

7593, Appellee Levitt’s

Commercial in 00-7593, Appellee

Ingersoll Pickup Inc. in 00-7593

supplemental! brief filed with

proof of service.

01/26/01

Amicus Curiae N.Y.S. Assoc. for

So in 00-7593 supplemental brief

filed with proof of service.

01/26/01

Appellant Oneida-Herkimer in

26a

Date Filed

Docket Text

| |

00-7593, Appellant County of

Oneida in 00-7593, appellant

County of Herkimer in 00-7593

affidavit in support of

supplemental brief filed with

proof of service.

: 01/26101

Appellant Oneida-Herkimer in

00-7593, Anpellant County of

Oneida in 0J-7593, appellant

County of Herkimer in 00-7593

joint supplemental brief filed with

proof of service.

07/27/01

Judgment of the district court is

REVERSED & REMANDED by

published signed opinion filed.

(TJM)

07/27/01

Judge Calabresi concurring in a ,

separate opinion filed.

07/27/01

Judgment filed.

08/21/01

Judgment MANDATE ISSUED.

11/14/01

Enterprises in 00-7593, Appellee

' Levitt’s Commercial in 00-7593.

Notice of filing petition for writ

of certiorari for Appellee United

Haulers Assoc. in 00-7593,

Appellee Transfer Systems, Inc.,

in 00-7593, Appelice Bliss

Ken Wittman Sanitation in 00-

7593, Appellee Bristol Trash

Removal in 00-7593. Appellee

——)

27a

‘Date Filed Docket Text

Appellee Ingersoll Pickup Inc., in

00-7593 dated 11/9/01 filed.

Supreme Ct. No. 01-686.

Letter dated 1/7/02 from the

O1/11/02

Supreme Court advising of order

DENYING petition for writ of

certiorari | 1965748-1] by

Appellee United Haulers Assoc.,

Transfer Systems, Inc., Bliss

Enterprises, Ken Wittman

Sanitation, Bristol Trash

Removal, Levitt’s Commercial,

Ingersoll Pickup Inc., endorsed on

motion dated 11/14/01. FILED.

(Supreme Court No. 01-686)

28a

U.S. COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 05-2024-cv

United Haulers Ass’n., Inc.. et al.,

Plaintiffs-A ppellants,

Oneida-Herkimer Solid Waste Management Authority, et al.,

Defendants-Appellees.

RELEVANT DOCKET ENTRIES

| Date Filed Docket Text

04/25/05 Copy of notice of appeal and

district court docket entries on

| behalf of APPELLANT Bliss

Enterprises, Inc., Bristol Trash

Removal, Ingersoll Pickup, Inc.,

Ken Wittman Sanitation, et al.,

filed.

8/29/05 | APPELLEES County of Herkimer,

| New York, County of Oneida,

Oneida-Herkimer Solid Waste

Management Authority, joint brief

filed with proof of service.

09/08/05

AMICUS CURIAE Attorney

General for the State of New York,

brief filed with proof of service.

09/13/05

AMICUS CURIAE Bristol

Resource Recovery Facility

Operating Committee, brief filed

with proof of service.

09/22/05

Amicus Curiae Attorney General

29a

—

‘Date Filed : Docket Text

for the State of New York motion

allow oral argument filed with proof

of service.

10/03/05 APPELLANT Bliss Enterprises,

| Inc., Bristol Trans Removal,

| Ingersoll Pickup, Inc., Ken

| Wittman, Sanitation, et al., reply

brief filed with proof of service.

"10/26/05 Set for argument on 12/14/05.

11/16/05 Order FILED GRANTING motion

to participate in oral argument, 10

minutes to be divided between

appellee and State amicus; as

| amicus by amicus Curiae Attorney

| General for the State of New York,

| Appellant United Haulers

Association, Inc., Appellant

Transfer Systems, Inc., Appellant

| Bliss Enterprises, Inc., Appellant

| Ken Wittman Sanitation, Appellant

! Bristol Trash Removal, Appellant

| ~ | Levitt’s Commercial Containers,

Inc., Appellant Ingersoll Pickup,

'Inc., endorsed on motion dated

| 9/22/05 (for the Court-AV).

12/14/05 Case heard before CALABRESI,

KATZMANN, WESLEY, C.JJ

; i

| 02/16/06 Judgment of the district court is

Affirmed by published signed

opinion filed.

———— oe —_- -

30a

Date Filed

Docket Text

02/16/06

Judgment filed.

03/14/06

Judgment MANDATE ISSUED.

CLOSED.

05/01/06

Notice of filing petition for

APPELLANT Bliss Enterprises,

Inc., Bristol Trash Removal,

Ingersoll Pickup, Inc., Ken Wittman

Sanitation, et al., dated 4/24/06

filed. Supreme Court No. 05-1345.

10/05/06

Letter dated 9/26/06 from the

Supreme Court advising-of order

GRANTED petition for writ of

certiorari by APPELLANT Bliss

Enterprises, Inc., Bristol Trans

Removal, Ingersoll Pickup, Inc.,

Ken Wittman Sanitation, et al.,

filed. (Supreme Court No. 05-

1345)

"10/05/06

Writ of Certiorari GRANTED.

31a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

UNITED HAULERS ASSOC., INC., TRANSFER

SYSTEMS, INC., BLISS ENTERPRISES, INC., KEN

WITTMAN SANITATION, BRISTOL TRASH

REMOVAL, LEVITT’S COMMERCIAL CONTAINERS,

INC. and INGERSOLL PICKUP, INC.,

Plaintiffs,

Vv.

ONEIDA-HERKIMER SOLID WASTE MANAGEMENT

AUTHORITY, COUNTY OF ONEIDA and COUNTY OF

HERKIMER, ‘

Defendants.

Case Number: 95-CV-0516

COMPLAINT

The Plaintiffs, by and through their attorneys, Young

Stockli & Rowe, as and for their complaint against the

Defendants, allege as follows:

PRELIMINARY STATEMENT

1. This is an action pursuant to 42 U.S.C. §1983, the

Declaratory Judgment Act, 28 U.S.C. §2201, et seq., and the

Commerce Clause of the United States Constitution seeking

a determination that Oneida County Local Law No. | of 1990

and Herkimer County Local Law No. | of 1990 (hereinafter

collectively referred to as “Flow Control Laws”), facially and

as applied, unconstitutionally discriminate and/or unduly

burden interstate commerce in violation of Article I, section

8. clause 3 of the Commerce Clause of the United States

Constitution by requiring that solid waste generated,

originated or brought within Oneida and Herkimer Counties

32a

(hereinafter collectively referred to as “Counties”) be

transferred to and/or disposed at facilities designated by the

respective County or the Oneida-Herkimer Solid Waste

Management Authority pursuant to contract with the

Counties, and that said discrimination constitutes. a

deprivation under color of law and regulation of the

Plaintiffs’ rights, privileges and immunities secured by the

United States Constitution in violation of 42 U.S.C. §1983.

Plaintiffs seek an injunction barring enforcement of the Flow

Control Laws, and the contracts, regulations and resolutions

entered into, enacted and/or adopted in accordance therewith,

and further seek damages for the deprivation of Plaintiffs’

constitutional rights and attorneys’ fees in accordance with

42 U.S.C. §1988.

JURISDICTION

2. This Court has jurisdiction over this case pursuant to

28 U.S.C. §§1331 and 1343(a)(3) because this case requires

resolution of a federal question under the Commerce Clause

of the United States Constitution and is brought pursuant to

42 U.S.C. §1983.

VENUE

3. This case is properly venued in the Northern District

of New York pursuant to 28 U.S.C. §§1391(b) and (c)

because the Plaintiffs’ causes of action arose in this District

and all parties are located within this District.

PARTIES

4. The Plaintiff United Haulers Assoc., Inc. (the

“Association”) was and is a not-for-profit New York

corporation doing business in the State of New York with its

principal place of business located at P.O. Box 283,

Westmoreland, New York. At all times relevant to the

allegations of this complaint, the Association was and is a

not-for-profit corporation comprised of solid waste

management companies engaged in the collection, transport,

33a

processing and/or disposal of solid waste generated,

originated or brought within the Counties of Oneida and

Herkimer.

5. The Plaintiff Transfer Systems, Inc. (“TSI”) was and

is a New York corporation doing business in the State of

New York with its principal place of business located at R.D.

2 Dyke Road in Frankfort, New York. At all times relevant to

the allegations of this complaint, TSI was and is a

corporation engaged in the collection, transport, processing

and disposal of solid waste generated, originated or brought

within the Counties of Oneida and Herkimer.

6. The Plaintiff Bliss Enterprises, Inc. (“Bliss”) was and

is a New York corporation doing business in the State of

New York with its principal place of business located at R.D.

2 Hillsboro Road in Camden, New York. At all times

relevant to the allegations of this complaint, Bliss was and is

a corporation engaged in the collection, transport, processing

and disposal of solid waste generated, originated or brought

within the Counties of Oneida and Herkimer.

7. The Plaintiff Ken Wittman Sanitation (“Wittman”)

was and is a sole proprietorship doing business in the State of

New York with its principal place of business located at 19

Tibbitts Road in New Hartford, New York. At all times

relevant to the allegations of this complaint, Wittman was

and is a business engaged in the colluction, transport,

processing and disposal of solid waste generated, originated

or brought within the Counties of Oneida and Herkimer.

8. The Plaintiff Bristo! Trash Removal (“Bristol”) was

and is a sole proprictorship doing business in the State of

New York with its principal place of business located at Gore

Road in Rome, New York. At all times relevant to the

allegations of this complaint, Bristol was and is a business

engaged in the collection, transport, processing and disposal

of solid waste generated, originated or brought within the

Counties of Oneida and Herkimer.

34a

9. The Plaintiff Levitt’s Commercial Containers, Inc.

(“Levitt’s”) was and is a New York corporation doing

business in the State of New York with its principal place of

business located at 867 Route 5 in Utica, New York. At all

times relevant to the allegations of this complaint, Levitt’s

was and is a corporation engaged in the collection, transport,

processing and disposal of solid waste generated, originated

or brought within the Counties of Oneida and Herkimer.

10. The Plaintiff Ingersoll Pickup, Inc. (“Ingersoll”) was

and is a New York corporation doing business in the State of

New York with its principal place of business located at Box

145A, Military Road in Poland, New York. At all times

relevant to the allegations of this complaint, Ingersoll was

and is a corporation engaged in the collection, transport,

processing and disposal of solid waste generated, originated

or brought within the Counties of Oneida and Herkimer.

11. At all times relevant hereto, the Defendant Oneida

County was and is a municipal corporation of the State of

New York, constituting a political subdivision thereof,

created and existing under the laws of the State of New York

with offices at 800 Park Avenue in Utica, New York.

12. At all times relevant hereto, the Defendant Herkimer

County was and is a municipal corporation of the State of

New York, constituting a political subdivision thereof,

created and existing under the laws of the State of New York

with offices at P.O. Box 471, County Office Building in

Herkimer, New York.

13. At all times relevant hereto, the Defendant Oneida-

Herkimer Solid Waste Management Authority was and is a

public benefit corporation and a body corporate and politic,

created and existing under the laws of the State of New York,

with offices located at 311 Turner Street, Suite 401, in Utica,

New York.

35a

GENERAL ALLEGATIONS

14. The Oneida-Herkimer Solid Waste Management

Authority Act (hereinafter the “Act”) was enacted by the

New York State Legislature in 1988, with an effective date of

September 1, 1988.

15. Pursuant to the Act, a public benefit corporation

known as the Oneida-Herkimer Solid Waste Management

Authority (hereinafter the “Authority”) was created with the

powers and duties set forth in Title 13-FF of the New York

State Public Authorities Law (“PAL”).

16. The Act grants the Authority the power to, among

other things, collect, receive, transport, process, dispose of

and deal with solid waste and any byproducts thereof

generated in the Counties.

17. The Act further grants the Authority the power to

contract with the Counties for the development or

construction of solid waste management-resource recovery

facilities, as defined in PAL §2049-bb(16), and grants the

Authority the power to contract with the Counties so as to

provide sufficient revenues to pay the principal and interest

on the bonds of the Authority as the same shall become due.

18. The Act at PAL §2049-ee(8) states that the Authority

has the power to contract with the Counties for the delivery

of all solid waste generated within the Counties to a specific

solid waste management-resource recovery facility, and —

prohibits the Authority from receiving, collecting, treating or

disposing of solid waste (other than recyclables) generated

outside the Counties.

19. The Act at PAL §2049-tt(2) states that the Counties

may enter into contracts with the Authority which require the

Counties to deliver or cause to be delivered all of the solid

waste generated, originated or brought within the Counties to

facilities designated by the Authority.

36a

20. The Act at PAL §2049-1t(3) states that the Counties,

as instrumentalities of the State, may adopt “local laws,

ordinances and regulations imposing appropriate and

reasonable limitations on competition with respect to

collecting, receiving, transporting, delivering, storing,

processing and disposing of solid waste,” including local

laws which require that all solid waste generated, originated

or brought within the boundaries of the Counties be brought

to solid waste management-resource recovery facilities

owned and/or operated by the Authority.

21. The Act provides that any such local law adopted by

the Counties, or one of them, may contain enforcement and

penalty provisions providing for the imposition of civil

penalties, fines, monetary charges or the suspension or

revocation of permits or licenses granted by any jurisdiction

for the collection, receiving, transporting, delivery or storing

of solid waste.

22. The Act states that the Counties may contract with the

Authority so as to obligate the Counties to pay such amounts

as shall be necessary to assure the continued operation and

solvency of the Authority.

23. Allegedly pursuant to the Act, on or about May 10,

1989, the Authority entered into a Solid Waste Management

Agreement (“May 1989 Agreement”) with the Counties,

wherein the Authority agreed to, among other things, operate

certain existing solid waste management facilities, to study

the solid waste and recycling needs of the Counties’ residents

and to manage and dispose of all solid waste, including

recyclables, generated, originated or brought within the

Counties.

24. In the May 1989 Agreement, the Authority agreed to

take over the operation of the Oneida County Energy

Recovery Facility (“ERF”) in Rome, New York commencing

on January 1, 1990, and to charge a tipping and/or disposal

fee sufficiently high to cover (among other things) the costs

37a

of outstanding capital and interest expenses and principal and

other debt and operating and maintenance expenses.

25. In the May 1989 Agreement, the Authority further

agreed to supervise and administer the planning, design,

equipping and operation of a Materials Recovery Facility,

also known as the Oneida-Herkimer Recycling Center, in

Utica, New York (“Recycling Center’’) and to either purchase

or operate said facility in the future, paying the operating and

maintenance costs associated with said facility.

26. In the May 1989 Agreement, the Counties agreed to

direct all recyclables collected from residences in the

Counties to the Recycling Center upon its completion, or to

another Authority-designated facility.

27. In the May 1989 Agreement, the Counties conveyed

to the Authority all rights to solid waste generated, originated

or brought within the Counties and, in doing so, relied on

PAL §2049-tt as the enabling legislation for such an

agreement.

28. In the May 1989 Agreement, the Counties also

delegated to the Authority the right to select the sites for

solid waste management facilities to handle waste generated,

originated or brought within the Counties.

29. In the May 1989 Agreement, the County agreed to

deliver or cause to be delivered all solid waste originated or

brought within the Counties to solid waste management

facilities designated, owned and/or operated by the

Authority.

30. In the May 1989 Agreement, the Authority agreed to

assume regulatory powers (including permitting and

enforcement authority) with regard to private haulers

operating within the Counties and was granted the power to

establish tipping fees and user fees to finance the operation,

maintenance and costs of the ERF, the Recycling Center and

any additional facilities built by or for the Authority.

38a

31. Allegedly pursuant to the Act, in or about December

of 1989, the Oneida County Board of Legislators enacted

Oneida County Local Law No. 1 of 1990 (“Oneida Law”)

which requires that all solid waste and recyclables generated

within Oneida County be hauled and/or delivered by a hauler

permitted by Oneida County or the Authority to a facility

designated by Oneida County or by the Authority pursuant to

contract with Oneida County.

32. The Oneida Law requires the removal of solid waste

and recyclables from the property on which they are

generated to be performed by the municipality, a licensed

private hauler or the individual generator and requires that

such solid waste and/or recyclables be delivered to a facility

designated by Oneida County or the Authority pursuant to

contract with Oneida County.

33. Pursuant to the Oneida Law, tipping fees and other

charges for the handling and disposal of solid waste are

established by the Oneida County Board of Legislators upon

its own initiative, upon the recommendation of the Oneida

County executive or by the Authority pursuant to contract

with Oneida County.

34.The Oneida Law requires that any person

commercially collecting, picking up or removing solid waste

and/or recyclables generated in Oneida County obtain a

permit from Oneida County or from the Authority pursuant

to contract with Oneida County.

35. A failure to comply with the Oneida Law, including

the failure to deliver solid waste to an Authority-designated

facility, subjects the violator to civil penalties, fines,

imprisonment and/or the loss of the violator’s solid waste

collection and disposal permit.

36. Allegedly pursuant to the Act, in or about February of

1990, the Herkimer County Legislature (“Legislature”)

enacted Herkimer County Local Law No. | of 1990

39a

(“Herkimer Law”), which requires that all solid waste and

recyclable material generated within Herkimer County be-

hauled and/or delivered by a hauler permitted by Herkimer

County or the Authority to a facility designated by the

Legislature or by the Authority pursuant to a contract with

Herkimer County.

37. The Herkimer Law requires that all persons or

companies engaged in the commercial collection, pick-up,

transfer, removal and/or disposal of solid waste and/or

recyclables obtain a permit issued by Herkimer County or by

the Authority pursuant to contract with Herkimer County.

38. The Herkimer Law prohibits the placement of solid

~ waste and/or recyclables at property within Herkimer County

for collection unless that property generated said material.

39. The Herkimer Law requires the removal of garbage

and recyclables (as defined therein) from the property_on

which they are generated to be performed by the

municipality, a licensed private hauler or the individual

generator and the delivery of such material at a disposal

location approved by Herkimer County or the Authority

pursuant to contract with Herkimer County. Tipping fees and

other charges for the handling and disposal of recyclables are

established by the Legislature or by the Authority pursuant to

contract with Herkimer County.

40. The Herkimer Law requires the disposal of

residential, commercial and industrial construction and

demolition (“C&D”) debris at the “Demolition Debris_

Disposal Site” or at another “suitable site as designated by

the Legislature.” Tipping fees and other charges for the

handling and disposal of this material are established by the

Legislature or by the Authority pursuant to contract with

Herkimer County.

41. The Herkimer l.aw requires that yard waste be

composted by Herkimer County at sites designated by the

40a -

Legislature or by the Authority pursuant to contract with

Herkimer County, but does not prohibit private composting

of yard waste. Tipping fees and other charges for the

handling and disposal of residential yard waste are

established by the Legislature.

42. The Herkimer Law requires that commercial and

industrial waste, major appliances, large household

furnishings, vehicular tires, household hazardous waste and

infectious waste collected by private haulers be delivered to a

facility or site designated or approved by the Legislature or

by the Authority pursuant to contract with Herkimer County.

Tipping fees and other charges for the handling and disposal

of this material, with the exception of infectious waste, are

established by the Legislature or by the Authority pursuant to

contract with Herkimer County.

43.A failure to comply with the Herkimer Law

(including the failure to deliver solid waste to an Authority-

designated facility) subjects the violator to civil penalties,

fines, imprisonment, revocation of the violator’s solid waste

collection and disposal permit and/or revocation of all rights

and privileges to collect, pick up, transfer, remove or dispose

of solid waste or recyclables as defined therein.

44. On or about December 28, 1989, the Authority and

the Counties entered into a second Solid Waste Management

Agreement (hereinafter “December 1989 Agreement”).

45. Pursuant to the December 1989 Agreement, the

Authority agreed to manage the solid waste generated,

originated or brought within the Counties-by receiving,

treating and disposing of such solid waste, including

recyclables, at Authority-designated facilities.

46. Pursuant to the December 1989 Agreement, the

Authority agreed to issue, sell and deliver bonds to finance

its management of solid waste generated, originated or

brought within the Counties in reliance upon the Counties’

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agreement to pay the Authority’s operating costs and debt

service less the amount of monies received by the Authority

from tipping fees or other funds levied or raised for the

receipt, processing and disposal of solid waste, including

recyclables.

47. Pursuant to the May and December 1989 Agreements,

the Authority has been delegated the power and

responsibility for enforcing the Flow Control Laws, which

such power includes the power to revoke the licenses of

private haulers refusing to comply with the Flow Control

Laws and the power to designate the facilities to which solid

waste and/or recyclables originated, generated or brought

within the Counties must be delivered for processing and/or

disposal.

48. The Authority has adopted and enforced policies,

resolutions and/or regulations which require the Plaintiffs

and other private haulers to transport and/or dispose of all

solid waste and recyclables that originated, are generated

and/or are brought within the Counties at facilities owned

and/or operated by the Authority and located within the

Counties.

49. The Authority administers, issues and enforces the

solid waste collection and disposal permit system for the

public and private collectors of solid waste and recyclables

generated in the Counties.

50. In March of 1990, the Authority issued $42.8 million

in variable rate revenue bonds and utilized these funds to,

among other things, purchase the ERF, the Ash Landfill on

Tannery Road in Rome, New York (“Ash Landfill”) and the

Recycling Center, to complete construction of the Recycling

Center, to construct the Green Waste Compost Facility in

Utica, New York (“Compost Facility”) and to reimburse the

Counties for monies spent on planning and construction

costs.

42a

51.In 1991, the Authority issued $8.1 million in Solid

Waste System Revenue Bonds to, among other things,

finance the acquisition and construction of a transfer station

in Utica, New York (the “Transfer Station”).

52. In 1992, the Authority issued $50,510,000 in Solid

Waste System Revenue Bonds to, among other things,

finance the redemption of the 1990 and 1991 bonds.

53. The Authority currently owns and operates the ERF,

the Ash Landfill, the Recycling Center, and the Compost

Facility.

54. The Authority also owns the Transfer Station which

is operated by Empire Sanitary Landfill, Inc. pursuant to

contract with the Authority.

55. The Authority is currently vested with all solid waste.

management responsibilities for the Counties and has

designated the above-referenced facilities for the receipt,

treatment and/or disposal of solid waste and/or recyclables

generated, originated and/or brought within the Counties.

56. The Ash Landfill and the Transfer Station accept

solid waste and C&D debris. Pursuant to the Flow Control

Laws, the May 1989 Agreement, the December 1989

Agreement and, upon information and belief, pursuant to the

policies, regulations and/or resolutions enacted and/or

adopted by the Authority, except as provided below in

paragraphs 57 through 64, all solid waste originated,

generated or brought within the Counties must be delivered

to and/or disposed at the Ash Landfill, the ERF, the Transfer

Station, the Green Waste Compost Facility or the Recycling

Center as designated by the Authority.

57. Upon information and belief, the Compost Facility

accepts only green waste (as defined in the Flow Control

Laws). Pursuant to the Flow Control Laws, the May 1989

Agreement, the December 1989 Agreement and, upon

information and belief. pursuant to the policies, regulations

43a

and/or resolutions enacted and/or adopted by the Authority,

all green or yard waste generated in the Counties, which is

not privately composted, must be delivered to the Authority’s

Compost Facility.

58. Upon information and belief, the Recycling Center

began operating in February of 1991 and primarily processes

mixed household recyclables. The Recycling Center also

accepts recyclables from commercial, industrial and

institutional establishments in the Counties. Pursuant to the

Flow Control Laws, the May 1989 Agreement, the December

1989 Agreement and, upon infornfation and belief, pursuant

to the policies, regulations and/or resolutions enacted and/or

adopted by the Authority, all recyclables generated in the

Counties must be delivered to the Recycling Center for

processing. The Authority sells the recyclables it receives

from Plaintiffs.

59. Upon information and belief, the ERF was

constructed in 1985 by Oneida County to incinerate

municipal solid waste for western Oneida County and to sell

energy in the form of steam to Griffiss Air Force Base

(“GAFB”).

60. Upon information and belief, GAFB decided to. no

longer purchase steam produced by the ERF and the

Authority determined that, as a result, operation of the ERF

would no longer be cost-effective. Accordingly, the

Authority has discontinued operation of the ERF as an

incinerator but, upon information and belief, still operates the

ERF as a transfer station.

61. Pursuant to Authority resolution, C&D debris can be

disposed at and/or delivered to the Ash Landfill or the

Transfer Station and can also be delivered to other facilities

within the Counties for the term of any contracts between

Plaintiffs and said facilities which were in existence and

legally binding as of February 15, 1993.

44a

62. Pursuant to Authority resolution, C&D debris can

also be delivered to other permitted facilities in the Counties

for processing, recycling and recovery only, provided that the

C&D waste from such facilities is subsequently delivered to

the Authority’s Transfer Station for delivery to the Empire

Landfill.

63. In or about June of 1991, the Authority awarded a

five-year contract to Empire Sanitary Landfill in Taylor,

Pennsylvania (“Empire Landfill”) for the disposal of non-

recyclable waste generated or originated in the Counties.

This agreement obligates the Authority to deliver or cause to

be delivered solid waste generated or originated in the

Counties to a Transfer Station owned by the Authority and

operated by Empire Sanitary Landfill, Inc. (“Empire”) in

Utica, New York, for subsequent disposal at the Empire

Landfill.

64. In 1994, the Authority amended its agreement with

Empire so as to extend its term through 1998. The contract

between the Authority and Empire provides for a tipping fee

of $56 per ton for the period 1995 through 1998. This

«sposal rate is charged to the Authority by Empire for solid

waste delivered to the Transfer Station for disposal.

65. The Authority has not yet sited a new County landfill

but has chosen candidate sites in the Counties. The

Authority’s current use of an out-of-State landfill for the

ultimate disposal of solid waste generated in the Counties is

anticipated by the Authority as only temporary and the

Authority intends to eventually dispose of, and require the

disposal of, all waste originated, generated or brought within

the Counties at a landfill owned and/or operated by the

Authority in the Counties.

66. Development costs for the Authority’s new landfill

have been estimated by the Authority at $34-41 million, with

a resulting disposal cost of approximately $53 to $74 per ton,

plus additional service costs of approximately $25 per ton.

45a

67. Upon information and belief, the Flow Contro! Laws,

the May 1989 Agreement, the December 1989 Agreement

and the policies, rules, regulations and/or resolutions

promulgated in accordance therewith were enacted, adopted

and/or entered into in order to finance the Authority’s

purchase of certain solid waste management facilities from

the Counties, to reimburse the Counties for planning and

construction costs associated with solid waste management

facilities, to finance the acquisition and construction of the

Transfer Station and the Compost Facility, and to finance a

new County landfill to handle solid waste generated,

originated or brought within the Counties.

68. Pursuant to the Flow Control Laws, the May 1989

Agreement, the December 1989 Agreement and, upon

information and belief, pursuant to the policies, rules,

regulations and/or resolutions enacted and/or adopted by the

Authority, except as provided in paragraphs 61 and 62 for

C&D debris and paragraph 57 for green waste, the following

facilities are the only facilities to which Plaintiffs and other

private haulers can transport and/or dispose of solid waste

and/or recyclables generated, originated or brought within the

Counties: (1) the Transfer Station in Utica, New York; (2)

the Ash Landfill in Rome, New York; (3) the Recycling

Center in Utica, New York; (4) the Green Waste Compost

Facility in Utica, New York; and (5) the ERF in Rome, New

York.

69. Pursuant to the Authority's 1995 Rules and

Regulations, all haulers, including Plaintiffs, must obtain a

Solid Waste Collection and Disposal Permit from the

Authority pursuant to the Flow Contro) Laws and must pay

the Authority the following tipping fees for 1995:

(a) Solid Waste Disposal: $86 per ton of solid waste

unless witnessed disposal is required or the solid waste

load contains greater than 25% recyclables, in which case

the charge is $172 per ton.

46a

(b) C&D Debris Disposal: $67 per ton at the Transfer

Station; $40 per ton at the Ash Landfill; $86 per ton if

mixed with solid waste; and $172 per ton if mixed with

greater than 25% recyclables.

70. But for the Flow Control Laws, the May 1989

Agreement, the December 1989 Agreement and the

contracts, rules, regulations and resolutions adopted or

enacted in accordance therewith, the Plaintiffs could deliver

and dispose of solid waste generated, originated or brought

within the Counties at other facilities, including out-of-State

facilities, for substantially less cost per ton of solid waste.

71. In May of 1994, the United States Supreme Court in

C&A Carbone, Inc. v. Town of Clarkstown, 114 S.Ct. 1677

(1994), held that an ordinance requiring the delivery of all

non-hazardous solid waste within or generated within the

town to a transfer station located within the town violated the

Commerce Clause of the United States Constitution, despite

the argument that the flow control ordinance served a

legitimate local purpose in ensuring the safe handling and

proper treatment of solid waste.

72. Despite the decision in Carbone, the Defendants have

indicated to Plaintiffs their intent to enforce and have

enforced the Flow Control Laws and the rules, regulations

and/or resolutions enacted and/or adopted in accordance

therewith.

FIRST CAUSE OF ACTION

(Commerce Clause Claim - Discrimination

Against Interstate Commerce)

73. Plaintiffs reallege and incorporate by reference the

allegations set forth in paragraphs | through 72 herein as if

fully set forth herein.

74. The Flow Control Laws, in conjunction with the May

1989 Agreement, the December 1989 Agreement and the

. 47a

policies, rules, regulations and resolutions adopted or

promulgated by the Authority in accordance therewith,

prohibit the Plaintiffs from collecting solid waste that

originated, was generated or was brought within the Counties

and delivering or disposing of such waste at any location

other than at a facility located in the Counties and designated

by the Authority.

75. The Authority-designated facilities are solely located

within Oneida County, thereby precluding Plaintiffs from

delivering or disposing of waste that originated, was

generated or was brought within the Counties at other

facilities, including out-of-State facilities.

76. The Authority-designated facilities are owned by the

Authority, or either operated by the Authority or by a vendor

selected by the Authority, thereby precluding other facilities

or Operations — including out-of-State facilities — from

competing for Plaintiffs’ business.

77. The Authority-mandated tipping fees exceed the

tipping fees charged by other facilities, including out-of-State

transfer stations and disposal facilities, which has caused the

Plaintiffs to incur excessive handling and disposal fees for

waste generated, originated or brought within the Counties.

78. But for the Flow Control Laws, together with the

May 1989 Agreement, the December 1989 Agreement and

the policies, rules, regulations and/or resolutions enacted

and/or adopted in accordance therewith, Plaintiffs could

legally deliver solid waste that originated, was generated or

was brought within the Counties, and collected by Plaintiffs,

to other facilities, including out-of State disposal facilities, at

significantly lower cost than what is currently charged at the

Authority's facilities designated above.

79. The Plaintiffs currently collect and transport solid

waste and recyclables generated, originated or brought within

the Counties pursuant to permits issued by the Authority.

48a

80. By prohibiting the flow of solid waste generated,

originated or brought within the Counties to other facilities,

including out-of-State facilities, the Flow Control Laws,

together with the May 1989 Agreement, the December 1989

Agreement and the policies, rules, regulations and/or

resolutions enacted and/or adopted in accordance therewith,

are unconstitutional, void, discriminatory and constitute an

unreasonable interference with and undue burden on

interstate commerce, all in violation of Article |, section 8,

clause 3, of the United States Constitution which provides, in

part, that “Congress shall have the power... to regulate

commerce . . . among the several States... .”

81. The Flow Control Laws, together with the May 1989

Agreement, the December 1989 Agreement and the policies,

rules, regulations and/or resolutions enacted and/or adopted

in accordance therewith, are unconstitutional because they

hinder and obstruct the free flow of solid waste, unreasonably

burden and impede the free flow of interstate commerce,

discriminate against interstate commerce and constitute an

undue burden on interstate commerce, all of which is

contrary to Article 1, section 8, clause 3 of the United States

Constitution.

82. The Flow Control Laws, together with the May 1989

Agreement, the December 1989 Agreement and the policies,

rules, regulations and/or resolutions enacted and/or adopted

in accordance therewith, are unconstitutional, void and in

direct conflict with Article V1, Clause 2 of the United States

Constitution, which provides that “[t}his Constitution. . .

shall be the supreme Law of ‘he Land; and the Judges in

every State shall be bound thereby, any Thing in the

Constitution or Laws of any State to the Contrary

notwithstanding.” \

83. The Flow Control] Laws, together with the May 1989

Agreement. the December 1989 Agreement and the policies,

- rules, regulations and/or resolutions enacted and/or adopted

49a

in accordance therewith, are financing measures for the

construction and operation of solid waste management

facilities in the Counties.

84. The Plaintiffs, and members of the Plaintiff

Association, as licensed waste management companies

within the counties of Herkime™ and Oneida, must comply

with the Flow Control Laws and the rules, regulations and/or

resolutions enacted and/or adopted in accordance therewith

or face revocation of their license to operate in the Counties

in addition to imprisonment, penalties and/or fines.

85. The Flow Control] Laws and the rules, regulations

and/or resolutions enacted and/or adopted in accordance

therewith have been enforced by the Defendants and

Defendants continue to threaten enforcement against

Plaintiffs.

86. In view of the actual and/or threatened enforcement

of the Flow Control Laws, and the rules, regulations and/or

resolutions enacted and/or adopted in accordance therewith,

and Plaintiffs’ contention that the enforcement of the Flow

Control Laws, and the rules, regulations and/or resolutions

enacted and/or adopted in accordance therewith, 1s

unconstitutional and deprives Plaintiffs of their rights under

the Commerce Clause, there is an actua] controversy within

the jurisdiction of this Court, requiring adjudication of the

rights of the parties.

SECOND CAUSE OF ACTJON

(Claim for Damages Under 42 U.S.C. §1983)

87. Plaintiffs reallege and incorporate by reference the

allegations set forth in paragraphs | through 86 as if fully set

forth herein.

88. The Civil Rights Act, 42 U.S.C. §1983, provides that

“Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State... subjects, or

causes to be subjected. ary citizen of the United States or

50a

other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper proceeding for

redress.”

89. The Flow Control Laws and the Act are statutes of

the State within the meaning of 42 U.S.C. §1983.

90. Defendants are each a “person” within the meaning of

42 U.S.C. §1983.

91. The policies, rules, regulations and/or resolutions of

the Counties and/or the Authority are regulations and/or

ordinances of the State within the meaning of 42 U.S.C.

§1983 and were enacted, adopted or promulgated under color

‘of the Flow Control Laws and the Act.

92.The May 1989 and December 1989 Agreements

establish customs or usages of the State within the meaning

of 42 U.S.C. §1983 and were enacted, adopted or

promulgated under color of the Flow Control Laws and the

Act.

93. Pursuant to 42 U.S.C. §1988(b), in any action or

proceeding to enforce 42 U.S.C. §1983, the court may award

the prevailing party reasonable attorneys’ fees.

94. The requirement imposed by the Flow Control Laws,

the May 1989 Agreement, the December 1989 Agreement

and the policies, rules, reguiations and resolutions enacted

and/or adopted by the Authority that Plaintiffs deliver and

dispose of al] waste generated, originated or brought within

the Counties to facilities designated by the Authority

deprives Plaintiffs, under color of State law, of rights secured

by the Commerce Clause of the United States Constitution.

95. Plaintiffs have suffered and will continue to suffer

damages as a result of Defendants’ actions under color of

State law, including (but not limited to) excessive tipping and

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disposal fees and the costs and attorneys’ fees incurred in this

action.

WHEREFORE, Plaintiffs request judgment in their favor

and against Defendants as follows: |

1. Granting a preliminary and permanent injunction:

(a) prohibiting the enforcement of the Flow Control

Laws, the May 1989 Agreement and the December 1989

Agreement;

(b) prohibiting the enforcement of the policies, rules,

regulations and resolutions adopted and/or- promulgated

by the Authority which mandate delivery and/or disposal

of waste originated, generated or brought within the

Counties at Authority-designated facilities; and

otherwise interfering with the collection, processing,

transfer and/or disposal of waste originated, generated,

brought or collected within the Counties to or at

processing, transfer and/or disposal facilities other than

those designated by the Defendants;

2. Declaring that the Flow Control! Laws, the May 1989

Agreement, the December 1989 Agreement and the policies,

rules, regulations and resolutions enacted, adopted and/or

promulgated in accordance therewith violate the Commerce

Clause of the United States Constitution and are

unconstitutional and void; ,

3. Ordering Defendants to pay damages in an amount -

necessary to compensate Plaintiffs for any economic loss

they have suffered, together with interest and costs:

4. Awarding Plaintiffs reasonable attorneys’ fees.

together with interest and costs;

5. Retaining ~ jurisdiction to supervise the

implementation of the Court’s order; and

52a

6. Awarding such other relief as the Court deems just

and proper.

Dated: April 14, 1995 ~ YOUNG, STOCKLI & ROWE

By: /s/ Kevin M. Young

~ Kevin M. Young, Esq.

(Bar Roll No. 102859)

Attorneys for Plaintiffs

Executive Woods

Two Palisades Drive

2 Albany, New York 12205

(518) 438-9907

53a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

[Title Omitted in Printing]

_ANSWER

COMES NOW DEFENDANT Oneida-Herkimer Solid

Waste Management Authority (hereinafter referred to as “the

Authority”), by and through attorneys RAYHILL &

RAYHILL, and for an answer to plaintiffs’ complaint alleges

as follows:

The Authority DENIES each and every allegation not

specifically admitted herein.

1. The Authority ADMITS that plaintiffs have named 42

U.S.C. § 1983, 28 U.S.C. § 2201, et seq, and Article I,

Section 8, Clause 3 of the United States Constitution as the

grounds for this lawsuit, but the Authority DENIES that a

claim has been presented under any of plaintiffs’ named

theories and further DENIES that plaintiff is entitled to any

relief requested therein.

2. The Authority DENIES that this court has subject

matter jurisdiction.

3. The Authority ADMITS that if this court had subject

matter jurisdiction. venue would be proper.

4-10. The Authority is without sufficient information

with which to either admit or deny the allegations contained

in paragraphs 4 through 10 of plaintiffs’ compjaint and

therefore DENIES the same. |

11-13. The Authority ADMITS the allegations contained

in paragraphs 11-13 of plaintiffs’ complaint.

54a

14 and 15. The Authority ADMITS the allegations of

paragraphs 14 and 15 of plaintiffs’ complaint.

16. The Authority ADMITS that it was granted certain

powers and assigned certain duties by legislation enacted at

Chapter 43-A, Title 13-FF of the New York State Public

Authorities Law (hereinafter referred to as the “Act”), but

refers the court to the legislation for the court’s determination

of those powers and duties. To the extent plaintiffs’

generalizations are at odds with the Act, the allegations of

paragraph 16 are DENIED.

17. The Authority ADMITS it was granted certain

powers and assigned certain duties in the Act, but refers the

court to the Act for the court’s determination of those powers

and duties. To the extent plaintiffs’ characterizations are at

odds with the substance of the Act, plaintiffs’ allegations of

paragraph 17 are DENIED.

18. The Authority ADMITS it was granted certain

powers and assigned certain duties in the Act, but refers the

court to the Act for the court’s determination of those powers

and duties. To the extent plaintiffs’ characterizations are at

odds with the substance of the Act, plaintiffs’ allegations of

paragraph 18 are DENIED.

The Authority ADMITS the Act at §2049-ee(8) prohibits

the Authority from receiving, collecting, treating or disposing

of solid waste (other than recyclables) which are generated

outside the Authority’s area of operation.

19. The Authority ADMITS it was granted certain

powers and assigned certain duties in the Act, but refers the

court to the Act for the court’s determination of those powers

and duties. To the extent plaintiffs’ characterizations are at

odds with the substance of the Act, plaintiffs’ allegations of

paragraph 19 are DENIED.

20. The Authority ADMITS the allegations contained in

paragraph 20 of the Complaint to the extent that the Counties

SSa

are authorized to adopt local laws, ordinances and regulations

- regarding collection and disposal of solid waste with

provisions for enforcement and penalties, but refers the Court

to the text of the Act for the nature and extent of such

authority, and DENIES all other allegations of paragraph 20

of the Complaint contrary thereto.

21. The Authority ADMITS the allegations contained in

paragraph 21 of the Complaint to the extent that the Counties

are authorized to adopt local laws, ordinances and regulations

regarding collection and disposal of solid waste with

provisions for enforcement and penalties, but refers the court

to the text of the Act for the nature and extent of such

authority, and DENIES all other allegations of paragraph 21

of the Complaint contrary thereto.

22. The Authority ADMITS the allegations contained in

paragraph 22 of the Complaint to the extent that the Counties

may contract with the Authority with regard to the financial

affairs of the Authority, but refers the Court to the text of the

Act for the extent and purposes of such contracts, and

DENIES all other allegations of paragraph 22 of the

Complaint contrary thereto.

23-30. The Authority ADMITS it entered into a Solid

Waste Management Agreement in May of 1989 (hereinafter

referred to as the “May 1989 Agreement”) with Oneida and

Herkimer Counties with regard to management of solid waste

generated within Oneida and Herkimer Counties and refers

the court to the Act and the Agreement for the court’s

determination of the terms found therein. To the extent the

plaintiffs’ characterizations of the terms of the Act or the

May 1989 Agreement differ from the actual terms, the

plaintiffs” allegations of paragraphs 23-30 are DENIED.

31-34. The Authority ADMITS the existence of Local

Law No. | of 1990 enacted by the Oneida County Legislature

(hereinafter referred to as “the Oneida Law”) and refers the

court to such law for the court's interpretation of its terms.

56a

To the extent plaintiffs’ characterizations differ from the

actual terms of the Oneida Law, the allegations of paragraphs

31-35 of plaintiffs’ complaint are DENIED.

35. The Authority DENIES knowledge and information

sufficient to admit or deny the allegations contained in

paragraph 35 of the Complaint, and therefore DENIES the

same.

36-42. The Authority ADMITS the existence of Local

Law No. 1 of 1990 enacted by the Herkimer County

Legislature (hereinafter referred to as “the Herkimer Law”)

and refers the court to such law for the court’s interpretation

of its terms. To the extent plaintiffs’ characterizations differ

from the actual terms of the Herkimer Law, the allegations of

paragraphs 36-43 of plaintiffs’ complaint are DENIED.

43. The Authority DENIES knowledge and information

sufficient to admit or deny the allegations contained in

paragraph 43 of the Complaint, and therefore DENIES the

same. :

44. The Authority ADMITS the allegations contained in

paragraph 44 of plaintiffs’ complaint.

45. The Authority ADMITS as much of paragraph 45 of

the Complaint as allege that the Counties and the Authority

entered into a second Solid Waste Management Agreement

on or about December 28, 1989 and refers the Court to said

contract for the meaning and effect thereof, and DENIES

each and all allegations of said paragraph of the Complaint

contrary thereto.

46. The Authority ADMITS as much of paragraph 46 of

the Complaint as allege that the Counties and the Authority

entered into a second Solid Waste Management Agreement

on or about December 28, 1989 and refers the Court to said

contract for the meaning and effect thereof, and DENIES

each and all allegations of said paragraph of the Complaint

contrary thereto.

S7a

47. The Authority ADMITS the allegations contained in

paragraph 47 of the Complaint to the extent that the

Authority has been vested with and/or delegated certain

powers under the Local Laws of Oneida and Herkimer

Counties, the May and December Agreements, and Title

13FF of the Public Authorities Law. The Court is referred to

the text of said laws and Agreements for the substance of the

Authority’s powers. The Authority DENIES all allegations of

paragraph 47 of the Complaint which allege or imply that the

Authority has acted in an unlawful or ultra vires manner with

respect to its lawfully authorized powers. :

48. The Authority DENIES knowledge and information

sufficient to admit or deny the allegations contained in

paragraph 48 of the Complaint, and therefore DENIES the

same.

49. The Authority ADMITS the allegations found in

paragraph 49 of plaintiffs’ complaint.

50. The Authority ADMITS the allegations contained in

paragraph 50 of the Complaint to the extent that the

Authority issued bonds in the amounts set forth at the times

stated for the purposes set forth in the bond documents. The

Court is referred to the bond documents for the specific uses

of funds from each bond sale, and the Authority DENIES all

allegations of paragraph 50 of the Complaint which are

inconsistent with said documents.

51. The Authority ADMITS the allegations contained in

paragraph 51 of the Complaint to the extent that the

Authority issued bonds in the amounts set forth at the times

stated for the purposes set forth in the bond documents. The

Court is referred to the bond documents for the specific uses

of funds from each bond sale, and the Authority DENIES all

allegations of. paragraph 51 of the Complaint which are

inconsistent with said documents.

58a

52. The Authority ADMITS the allegations contained in

paragraph 52 of the Complaint to the extent that the

Authority issued bonds in the amounts set forth at the times

stated for the purposes set forth in the bond documents. The

Court is referred to the bond documents for the specific uses

of funds from each bond sale, and the Authority DENIES all

allegations of paragraph 52 of the complaint which are

inconsistent with said documents.

53. The Authority ADMITS the allegations of paragraph

53 of the complaint to the extent that the Authority owns and

operates the compost facility and recycling center, owns the

ERF and operates it as a transfer station, and operates the ash

landfill.

54. The Authority ADMITS that it owns the transfer

station and DENIES the remainder of the allegations of

paragraph 54 of plaintiffs’ complaint.

55. The Authority DENIES the allegations contained in

paragraph 55 of the Complaint, but ADMITS that the

Authority is vested with certain lawful authority and has

provided certain facilities to the people of Oneida and

Herkimer Counties for the disposal of certain materials

according to law.

56. The Authority ADMITS the allegations in paragraph

56 of the Complaint to the extent that the Ash Landfill and

Transfer Station accept solid waste and C &.D debris but

otherwise DENIES the allegations of paragraph 56 of the

Complaint.

$7. The Authority ADMITS the allegation entered in

paragraph 57 of the Complaint to the extent that the Compost

Facility accepts only green waste but otherwise DENIES the

allegations of paragraph 57 of the Complaint.

58. The Authority ADMITS the allegations entered in

paragraph 58 of the Complaint to the extent that the

Recycling Center began operations in 1991 and accepts

59a

household recyclables and_ recyclables from other

establishments within the Counties; DENIES knowledge and

information sufficient to admit or deny the allegations

regarding recyclables allegedly received from plaintiffs; and

otherwise DENIES all other allegations of paragraph 58 of -

the Complaint.

59. The Authority ADMITS the allegations in paragraph

59 to the extent the ERF was erected as an ERF in 1965, but

the Authority DENIES the remainder of the allegations of

paragraph 59.

60. The Authority ADMITS the allegations contained in

paragraph 60 of the Complaint to the extent that the ERF is

no longer used as an incinerator and is now used as a transfer

station, but DENIES all other allegations of paragraph 60 of

the Complaint.

61 and 62. The Authority ADMITS the allegations of

paragraphs 61 and 62 of plaintiffs’ complaint.

63. The Authority ADMITS the allegations contained in

paragraph 63 of the Complaint to the extent that a contract

between the Authority and Empire Sanitary Landfill of

Taylor, PA, was awarded after public bidding in June of

199], the terms of which speak for themselves, and DENIES

all allegations of paragraph 63 of the Complaint contrary

thereto.

64. The Authority ADMITS the allegations contained in

paragraph 64 of the Complaint, to the extent that a contract

amendment with Empire was executed in 1994, the terms of

which speak for themselves, and DENIES all allegations of

paragraph 64 of the Complaint contrary thereto.

65. The Authority ADMITS it is in the process of siting a

landfill within the two-county area for the disposal of

Oncida-Herkimer municipal solid waste, but DENIES all

other allegations of paragraph 65 of plaintiffs’ complaint.

60a

66. The Authority ADMITS the allegations contained in

paragraph 66 of the Complaint to the extent that certain cost

estimates and projected tipping fees have been estimated

based upon a number of assumptions set forth in the planning

documents of the Authority, and refers the Court to the

official records of the Authority for such estimates and

projections, and otherwise DENIES ail other allegations of

paragraph 66 of the Complaint.

67 and 68. The Authority DENIES the allegations found

in paragraphs 67 and 68 of plaintiffs’ complaint.

69. The Authority ADMITS that all haulers must obtain a

permit prior to collecting solid waste in the two county area.

The Authority ADMITS. the: plaintiffs have accurately

stated the tipping fees, including penalties, for 1995.

The Authority DENIES all remaining allegations of

paragraph 69 of plaintiffs’ complaint.

70. The Authority DENIES the allegations of paragraph

70.

71. The Authority DENIES the allegations of paragraph

71. The holding of Carbone v. Town of Clarkstown, __ USS.

__, 114 S.Ct. 1667 (1994) is a matter for the court’s -

construction.

72. The Authority DENIES the allegations of paragraph

72 of plaintiffs’ complaint and further DENIES that

Carbone, supra, has any application to the case at bar.

73. The Authority repeats and realleges paragraphs |

through 72 herein as if fully set forth.

74. The Authority DENIES the allegations of paragraph

74 of plaintiffs’ complaint.

75. The Authority DENIES the allegations of paragraph

75 of plaintiffs’ complaint.

6la

76. The Authority DENIES that anyone, in-state or out-

of-state, is precluded from competing for plaintiffs’ business.

77-79. The Authority is without information or belief

with which to either admit or deny the allegations of

paragraphs 77-79 and therefore DENIES the same.

80-83. The Authority DENIES the allegations of

plaintiffs’ complaint found in paragraphs 80-83.

84. The Authority is without information as to which

regulation plaintiffs contend suffers license revocation for its

infraction and therefore the Authority is without information

~with which to admit or deny the allegations. Accordingly, the

allegations of paragraph 84 are DENIED.

85. The Authority DENIES knowledge and information

sufficient to admit or deny the allegations contained in

paragraph 85 of plaintiffs’ complaint, and therefore DENIES

the same. .

86. The Authority DENIES the allegations of paragraph

86 of plaintiffs’ complaint.

87. The Authority repeats and realleges paragraphs |

through 86 herein as if fully set forth.

88. The Authority asserts that the allegations set out in

paragraph 88 of plaintiffs’ complaint, insofar as they

reference and quote from a statute (42 U.S.C. § 1983) which

speaks for itself, do not require admission, denial or other

controversion. The Authority DENIES it has violated 42

U.S.C. § 1983 and further DENIES plaintiffs’ have stated a

cause of action under 42 U.S.C. § 1983.

89. Whether certain referenced matters constitute

“statutes” within the meaning of 42 U.S.C. § 1983 is a matter

for determination by this court. The Authority DENIES it has

violated 42 U.S.C. § 1983.

62a

90. Whether the Authority is a “person” as defined in 42

U.S.C: § 1983 is a matter for determination by this court. The

Authority DENIES it has violated 42 U.S.C. § 1983.

91. Whether the policies, rules, regulations, and/or

resolutions’ are “regulations and/or ordinances” within the

meaning of 42 U.S.C. § 1983 is a matter for determination by

this court. The Authority DENIES it has violated 42 U.S.C. §

1983.

92. The Authority DENIES the allegations of paragraph

92. ;

93. The Authority ADMITS 42 U.S.C. § 1988(b)

authorizes awards of attorney fees in civil rights actions in

certain situations. The Authority DENIES it has violated 42

U.S.C. § 1983, et seq. The authority DENIES that plaintiffs

are entitled to an award of attorney fees or any other relief.

94 and 95. The Authority DENIES the allegations of

paragraphs 94 and 95.

FIRST AFFIRMATIVE ea

96. In the early 1960s, Congress recognized that garbage

was a problem of epic proportion. Congress also recognized

that the volume of garbage of all sorts was expanding

exponentially. In order tO meet perceived present needs, and,

in an attempt to avert future disaster, Congress enacted the

Solid Waste Disposal Act of 1965. Their efforts proved

wholly unsatisfactory and, in 1976, Congress enacted the

Resource Conservation and Recovery Act (RCRA) (42

U.S.C. Sections 6901 et. seq.). Congress again

underestimated the size of the problem and sweeping

amendments were implemented in 1984, 1988, and again in

1992.

RCRA establishes federal guidelines for the handling of

solid waste. New York State’s Solid Waste Management

Plan (NYSWMP) was enacted in direct response to

63a

Congress’ enactment of RCRA and was an effort by the State

Legislature to implement the RCRA _ mandates. On

September 1, 1988, the Oneida-Herkimer Solid Waste

Management Authority, a public benefit corporation, was

created by the New York State Legislature and directed in its

enabling laws to implement state and federal solid waste

policy. ‘

The Laws, Rules and Regulations under attack in this

lawsuit are authorized and/or mandated under RCRA and the

NYSWMP and the New York Environmental Conservation

Law (ECL) and are enforced by the Federal Environmental

Protection Agency and the New York State Department of

Environmental Conservation. The policies and customs under

attack in this lawsuit are the policies and customs of the

Federal and State governments.

SECOND AFFIRMATIVE DEFENSE

97. The plaintiffs’ complaint fails to state a claim upon

which relief can be granted. . ;

THIRD AFFIRMATIVE DEFENSE

98. The plaintiffs lack standing to assert the claims set

forth in the complaint.

FOURTH AFFIRMATIVE DEFENSE

99. The complaint fails to present an actual case or

controversy under the Declaratory Judgment Act and Article

Three of the United States Constitution.

FIFTH AFFIRMATIVE DEFENSE

100. This court lacks subject matter jurisdiction.

SIXTH AFFIRMATIVE DEFENSE

101. Plaintiffs have failed to exhaust their administrative

remedies.

64a

SEVENTH AFFIRMATIVE DEFENSE

102. Plaintiffs have failed to allege connection with

interstate commerce or interstate commerce injury sufficient

to afford them commerce clause protection.

EIGHTH AFFIRMATIVE DEFENSE

103. All actions of the Authority are implemented under

direct authorization of the Legislature of the State of New

York and, accordingly, are protected by the 10th Amendment

to the Constitution of the United States.

NINTH AFFIRMATIVE DEFENSE

104. The mandated duties of the Authority, to establish

and operate a hierarchical solid waste management system,

are intended and designed to achieve the important

~ government functions of safe and responsible solid waste

deposit and a reduction of the amount which is deposited.

The Authority is not concerned with the protection of local

markets for local businesses. The authority is not interested

in preventing out-of-state competitors from entering the local

solid waste collection market. In fact, should an out-of-state

hauler seek to collect solid waste in the Oneida-Ilerkimer

county area, all that hauler need do is seek the same permit

all haulers must secure, local or otherwise. The Authority is

intent 6n implementing federal and state law to see that the

volume of solid waste is reduced, to see that what can be

reused is reused, to see that what can be recycled is recycled,

and to see that what can be recovered is recovered. The

Authority is intent on the inspection of solid waste to see that

toxic substances are not commingled with municipal solid

waste. The Authority is intent on implementing and operating

a comprehensive recycling program which covers substances

from motor oil to paints and solvents — traditional toxic

pollutants often dumped in or near groundwater sources. The

Authority acts in accordance with and in compliance with the

65a

Herkimer Law and the Oneida Law to protect the public

health and promote a sound environment.

TENTH AFFIRMATIVE DEFENSE

105. The Authority and the two Counties are market

participants in the disposal of solid waste and recyclables.

As a market participant, the Authority is not precluded

under the commerce clause from designating where and how

their solid waste will be managed. The Authority is not

precluded by the commerce clause from ensuring that RCRA

is complied with and future CERCLA liability is avoided.

Because the Authority is participating in the market for the

article of commerce as defined in this matter, the Authority is

exempt from commerce clause scrutiny.

ELEVENTH AFFIRMATIVE DEFENSE

106. The Laws, Rules, Regulations, Policies and

Practices of the Authority do not facially discriminate against

interstate commerce.

TWELFTH AFFIRMATIVE DEFENSE

107. The Laws, Rules, Regulations, Policies and

Practices of the Authority do not have a discriminatory cffect

upon interstate commerce.

THIRTEENTH AFFIRMATIVE DEFENSE

108. The Authority, through practice or policy, does not

discriminate against interstate commerce.

Local interests are not protected over out-of-state

interests. The Authority's practices and policies are not a

form of-economic protectionism. They do not benefit in-state

collectors by burdening out-of-state collectors. No class of

competitors is protected or harmed by Authority practice or

policy on the basis of location or any other criteria.

66a

The Authority and its practices and policies are designed

and implemented to serve the local, state, and federal

interests of reduction of waste volume and responsible and

safe handling of municipal solid waste, to protect the public

health and promote a sound environment.

FOURTEENTH AFFIRMATIVE DEFENSE

109. Pursuant to state and local laws all municipal solid

waste handled and disposed by the Authority is properly

within the dominion, control and possession of the general

public and their representatives, the defendants.

FIFTEENTH AFFIRMATIVE DEFENSE

110. The plaintiffs are not entitled to relief due to laches.

SIXTEENTH AFFIRMATIVE DEFENSE

111. The claims asserted in the complaint are not ripe for

adjudication.

SEVENTEENTH AFFIRMATIVE DEFENSE ~

112. The plaintiffs have waived their rights, if any, to

relief.

EIGHTEENTH AFFIRMATIVE DEFENSE

113. The plaintiffs are estopped from seeking the relief

they have requested.

NINETEENTH AFFIRMATIVE DEFENSE

114. The Laws, Rules, Regulations, policies and customs

under attack in this lawsuit are designed to achieve the ends

of reduction, reuse, recycling, and recovery. They are not

designed to impede interstate commerce nor do they impede

interstate commerce.

TWENTIETH AFFIRMATIVE DEFENSE

115. Plaintiffs have failed to join necessary and

indispensable parties.

67a

TWENTY-FIRST AFFIRMATIVE DEFENSE

116. Within Oneida_ and Herkimer Counties, the

collection of municipal solid waste and recyclables is

regulated by Oneida and Herkimer Counties and the

Authority, under grant of power by the State of New York.

TWENTY-SECOND AFFIRMATIVE DEFENSE

117. All relevant actions of the Authority were and are

local actions unrelated to interstate commerce and

insufficient to implicate the Commerce Clause of the United

States Constitution.

TWENTY-THIRD AFFIRMATIVE DEFENSE

118. All relevant actions of the Authority were.and are

authorized and protected by the Guaranty Clause of the

United States Constitution.

TWENTY-FOURTH AFFIRMATIVE DEFENSE —

119. A Federal Court adjudicating a dormant Commerce

Clause case stands vicariously in the shoes of Congress.

Therefore, an adjudication by such a Court which invalidates

the citizen-chosen method of managing local solid waste

would result in a taking of the property of the Authority and

its bondholders, without just compensation, and in violation

of the Fifth Amendment to the United States Constitution.

TWENTY-FIFTH AFFIRMATIVE DEFENSE :

120. All relevant Laws, Rules and Regulations enacted

and/or applied by the Authority serve a valuable local

purpose which outweighs any incidental burden, if any, on

interstate commerce.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

121. All relevant Laws, Rules and Regulations enacted

and/or applied by the Authority do not facially discriminate

against interstate-ccommerce and serve a valuable local

68a

purpose which could not be served in any other way and

therefore any burden, if any, placed upon _ interstate

commerce is justified.

TWENTY-SEVENTH AFFIRMATIVE DEFENSE

122. The Laws, Rules and Regulations enacted and/or

applied by the Authority which are the subject of this

Complaint were authorized by Act of Congress and are not

repugnant to the Commerce Clause of the United States

Constitution.

PRAYER FOR RELIEF

WHEREFORE, defendant demands judgment against

plaintiffs dismissing plaintiffs’ Complaint, together with

costs and disbursements of this action, including attorneys

fees, and such other relief as this Court deems just and

equitable.

Dated: June 14, 1995

RAYHILL & RAYHILL

By: /s/_ Philip A. Rayhill

Philip A. Rayhill, Esquire

Bar Roll No. 103485

Attorneys for Defendant

Oneida-Herkimer Solid Waste

Management Authority

Office & P.O. Address

P.O. Box 156, 5 Paris Road

New Hartford, NY 13413

Telephone: (315) 735-8575

TO: YOUNG, STOCKLI & ROWE

Attorneys for Plaintiffs

Executive Woods

Two Palisades Drive

Albany, New York 12205

69a

WASTE DISPOSAL AGREEMENT

BETWEEN

EMPIRE SANITARY LANDFILL, INC.

U.S. SYSTEMS CORPORATION

AND

ONEIDA-HERKIMER SOLID WASTE

MANAGEMENT AUTHORITY

Dated as of June 28, 199]

70a

WASTE DISPOSAL AGREEMENT

TABLE OF CONTENTS

RECITALS ‘

ARTICLE I- DEFINITIONS

Section 1.01 Definitions

Section 1.02 Terms Generally

Section 1.03 Notices Generally

ARTICLE II - CONDITIONS PRECEDENT

Section 2.01 . General

Section 2.02 Conditions to Authority Obligations

Section 2.03 Conditions to Obligations of Empire and

USS

Section 2.04 Satisfaction of Conditions Precedent

ARTICLE Ill - DELIVERY AND DISPOSAL OF

SOLID WASTE

Section 3.01 Overall Responsibilities

Section 3.02 Commencement Date; Notice of Site;

Change; Receiving Time

Section 3.03 Weighing of Solid Waste; Weigh Scale

Records

Section 3.04 Rejection Rights

Section 3.05 Unauthorized Rejections

Section 3.06 Alternate Disposal Site 7

ARTICLE IV - DISPOSAL FEE

Section 4.01 Disposal Fee

Section 4.02 Adjustment to Disposal Fee for

uncontrollable Circumstance

ARTICLE V - OPERATION AND MAINTENANCE OF

TRANSFER STATION

Section 5.01 Design and Construction of Transfer Station

Tla

Section 5.02 Transfer Station Operations

Section 5.03 Use of Transfer Station

Section 5.04 Maintenance of Transfer Station

ARTICLE VI - INDEMNIFICATION

Section 6.01

Indemnification

ARTICLE VII - UNCONTROLLABLE CIRCUMSTANCES

Section 7.1 Excuse for Nonperformance

Section 702 Mitigation

Section 7.03 Notices

Section 7.04 Costs Attributable to Uncontrollable

Circumstance

Section 7.05 Pro Rata Application of Increased Costs

ARTICLE VIII - DISPUTE RESOLUTION AND EVENTS OF

DEFAULT

Section 8.01 Dispute Resolution

Section 8.02 Remedies for Breach .

Section 8.03 Events of Default by Empire and USS

Section 8.04 Events

ARTICLE IX - TERMINATION AND REMEDIES

Section 9.01

Section 9.02

Termination by the Authority

Termination by the Contractor

Section 9.03 Remedies of the Authority

Section 9.04 Remedies of the Contractor

Section 9.05 Manner of Termination Payment

Section 9.06 Survival

ARTICLE X - MISCELLANEOUS

Section 10.01

Section 10.02

Section 10.03

Section 10.04

Section 10.05

Section 10.06

Term

Representation of the Authority

Representations of USS

Representation of Empire

Insurance

Performance Bond

Section 10.07

Section 10.08

Section 10.09

Section 10.10

Section 10.11

Section 10.12

Section 10.13

Section 10.14

Section 10.15

Section 10.16

Section 10.17

Section 10.18

Section 10.19

Section 10.20

SCHEDULE |

72a

| Compliance with Laws

Assignment

Subcontracts

Notices

Relationship of the Parties

Waiver

Payment Disputes

Article and Section Captions; References

Severability

Amendment

Agreement Governed by State Law

No Other Agreements

Successors and Assigns

Execution of Documents

Description of Facility

73a

DISPOSAL AGREEMENT

THIS WASTE DISPOSAL AGREEMENT (the

“Agreement”) made and entered into as of the 28 day of

June, 1991, by and between U.S. Systems Corporation, 314

Main Street, Suite 23, Great Barrington, Massachusetts

(U.S.S.), Empire Sanitary Landfill, Inc., P. O. Box 22,

Taylor, Pennsylvania (Empire), and the Oneida-Herkimer

Solid Waste Management Authority, 311 Turner Street, Suite

401, Utica, New York (the “Authority”).

RECITALS:

WHEREAS, the Authority is authorized by Section 2049-

ee of the Oneida-Herkimer Solid Waste Management

Authority Act, N.Y. Pub. Auth. Law, Article VIII, Title

thirteen-FF (1987) (the “Act”) to collect, receive, extract,

transport, dispose of, sell, store, convey, recycle, and deal

with, in any lawful manner and way, Solid Waste and any

products or by-products thereof, on such terms and in such

manner as the Authority may deem proper; and

WHEREAS, Empire is the owner and operator of one or

more Solid Waste disposal facilities with present or future

capacity to dispose of Authority Waste; and

WHEREAS, the Authority and Empire desire to enter

into an agreement whereby the Authority will deliver or

cause to be delivered Authority Waste to a transfer station,

and. Empire will dispose of such Authority Waste at a Solid

Waste disposal facility authorized to operate under all

applicable federal, State and local laws; and

WHEREAS. the Authority and Empire have entered into

a separate agreement (the construction agreement) whereby

Empire has agreed to design and manage construction of a

Transfer Station where Authority Waste will be delivered for

inspection and loading on trucks for transportation to

Empire's landfill located in Taylor, Pennsylvania; and

74a

WHEREAS, USS utilizing its knowledge and expertise

with respect to regional disposal requirements will consult

with Empire during the design phase and act as compliance

inspector during construction of the Transfer Station and

perform services as waste management inspector of waste to

be delivered to the facility; and

WHEREAS, the Authority has agreed to pay Empire for

services performed by Empire and USS in accordance with

the terms of this Agreement;

NOW, THEREFORE, in consideration of the premises

and of the mutual obligations undertaken herein, the Parties

hereby agree as follows:

ARTICLE I - DEFINITIONS

Section 1.01 Definitions. |For purposes of this

Agreement, the following words and phrases shall be given

the respective interpretations and meanings set forth below.

“Alternate Disposal Site” means any duly licensed or

permitted alternate disposal facility designated by Empire

and approved by the Authority pursuant to Section 3.06.

“Authority Hauler(s)” means any Person permitted by the

Authority to deliver Authority Waste to the Transfer Station

on behalf of the Authority.

“Authority Surcharge” means the amount per Ton, as said

amount may from time to time be revised by the Authority,

to be invoiced and billed to Authority Haulers(s) for Solid

Waste delivered. to the Transfer Station.

“Authority Waste” means Solid Waste generated or

originating in the Counties, net of Recyclables, Hazardous

Waste, composted Municipal Solid Waste, waste burned in

the Authority’s Energy Recovery Facility and waste directed

into experimental projects which explore new technology for

disposal of solid waste.

75a

“Billing Period” means each calendar month in each

Billing Year.

“Billing Year” means each twelve month period

commencing on January 1, 1992 and ending on the last day

of the twelfth full month thereafter; provided, however, that

the first Billing Year shall commence on the first day of the

first month following the Commencement Date.

“Business Day” means each Monday, Tuesday,

Wednesday, Thursday, Friday and Saturday which is not a

Legal Holiday.

“Change in Law” means either (a) the enactment,

adoption, promulgation, modification or repeal, after the

Contract Date, of any federal, State, County or other local

law, ordinance, code, rule or regulation or other similar

legislation which establishes requirements affecting the

removal, transport and disposal of the Authority Waste more

burdensome than the most stringent requirements in effect on

the Contract Date, or (b) the imposition, after the Contract

Date, of any material conditions in the issuance or renewal of

any official permit, license or approval necessary for

operation of the Transfer Station or the Facility, which

reduces the amount of Authority Waste which may be

received at the Transfer Station or the Facility, or which

prohibits the receipt of any amount of the Authority Waste at

the Transfer Station or the Facility, by establishing

requirements with respect to the operatior or maintenance of

the Transfer Station or the Facility, or with respect to the

disposal of Authority Waste, which are more burdensome

than the most stringent requirements in effect on the C. ntract

Date. In no event shall a change in federal, State or local tax

law, other than a law imposing a fee on the importation of

waste into a State, be considered a Change In Law.

“Commencement Date” means the date on which the

Authority commences, or causes to be commenced,

deliveries of Authority Waste to the Transfer Station, and

76a

Empire is obligated to dispose of such waste, which date

shall be established pursuant to the provisions of Section

3.02(a).

“Contract Date” means the date of execution of this

Agreement.

“Contractor Fault” means the unexcused nonperformance

by either U. S. Systems or Empire Sanitary Landfill, Inc.

severally or the negligent or willful act or omission of an

agent or employee of either of them under this Agreement.

“Cost Sub tantiation” means, with respect to any Direct

Cost, a _ certificate, accompanied by — supporting

documentation, signed by an authorized representative of

Empire or the Authority, which certificate shall be provided

no later than ninety (90) days after the date on which Empire

or the Authority paid such amount, stating such Party’s

reason for incurring such Direct Cost, the amount of such

Direct Cost, and the event or Section of this Agreement

giving rise to such Party’s right to incur and be reimbursed

for any such Direct Cost and that such Direct Cost is at a

competitive price for the service or materials supplied.

“Counties” means the Counties of Oneida and Herkimer,

New York.

“DEC” means the New York State Department of

Environmental Conservation and its successor.

“D.E.R.” means the Pennsylvania Department of

Environmental Resources and its successors.

“Direct Costs” means, in connection with any work

performed by or on behalf of Empire or the Authority by its

agents or employees, or any cost or expense incurred by

either Empire or the Authority, for which such Party is

entitled to reimbursement pursuant to the terms of this

Agreement, the sum of (i) the costs of payroll consisting of

compensation and fringe benefits, including vacation, sick

leave. holidays, retirement, Worker's Compensation

77a

Insurance, federal and State unemployment taxes and all

medical and insurance benefits, times 1.10, plus (ii) the costs

of materials and supplies purchased in connection with any

such work, plus (iii) the costs of travel and subsistence

incurred by any employee of such Party, plus (iv) the costs of

any payments to subcontractors in connection with such

work. Verification of any Direct Cost incurred by Empire or

the Authority shall be provided, to the extent of Cost

Substantiation, within ninety (90) days of the payment of

such amount by the Party secking reimbursement therefor.

“Disposal Fee” means the cost per Ton payable by the

Authority to Empire for disposal of Authority Waste loaded

on Transfer Trailers at the Transfer Station for delivery to the

Facility.

_“Disposal Fee Increase Limitation” means, after. the

Contract Date, a cumulative increase in the Disposal Fee due

to Uncontrollable Circumstances in excess of ten dollars

~ ($10.00) per Ton.

“Empire” means Empire Sanitary Landfill, Inc.

incorporated under the laws of the State of Pennsylvania and.

authorized to do business in the State of Pennsylvania and

the State of New York.

“Environmental Conditions” means the discharge,

leaching, disposal or release into the environment of any

Solid Waste, Hazardous Waste, hazardous or toxic substance,

or contaminant.

“Event of Defaults” means any one or more of those

events described in Sections 8.03 and 8.04 hereof.

“Facility” means that certain landfill of Empire located in

Taylor, Pennsylvania described in Schedule | hereto, which

is fully authorized to operate under all applicable federal,

State and local laws, and which is suitable for utilization by

Empire to dispose of Authority Waste.

78a

“Hazardous Waste” means any material, substance or

waste which, as of the Contract Date and by reason of its

composition or characteristic, is (a) toxic or hazardous as

defined in the Solid Waste Disposal Act, 42 U.S.C. Section

6901 et seqg., section 6(e) of the Toxic Substances Control

Act, 15 U.S.C. Section 2605(e) or the New York

Environmental Conservation Law, Section 27-0701-0103, as

any such provisions are replaced or amended, and regulations

promulgated and finalized thereunder or (b) special nuclear

material, source material, or by-product material within the

Atomic Energy Act of 1954, as amended. If any

governmental agency or unit now or hereafter having

appropriate jurisdiction shall determine that materials,

substances, or wastes which were not, as of the Contract

Date, considered Hazardous Waste, then such substances

- shall be Hazardous Waste for purposes of this Agreement as

of the effective date of any such determination.

“Legal Holiday” means New Year’s Day, Memorial Day,

Independence Day, Labor Day, Thanksgiving Day and.

Christmas Day.

“Party” or “Parties” means Empire, U.S.S. or the

Authority, as the context requires.

“Person” means any individual, corporation, partnership,

joint venture, association, joint-stock company, trust,

unincorporated organization, or government or any agency or

political subdivision thereof.

“Receiving Time” means the period of operation of the

Transfer Station consisting of hours from

until ____ on each Business Day.

“Schedule” means any exhibit or schedule attached,

hereto and incorporated in this Agreement, unless otherwise

expressly indicated by the terms of this Agreement.

“Section” means a section of this Agreement.

79a

“Solid Waste” has the meaning specified in 6 NYCRR

Part 360-1.2(a), as amended or replaced and DNR

Regulations. Solid Waste shall also mean residual waste

sludge, and construction and demolition waste as defined in

DNR Regulations. The Authority shall only include residual

waste, sludge and construction and demolition waste as so

defined, in the Authority Waste delivered to the Transfer

Station upon 180 days prior written notice to Empire.

“Ton” means two thousand (2,000) pounds.

“Transfer Station” means a solid waste transfer facility

where Authority Waste will be delivered by Authority

haulers to Empire and where Empire will load Authority

Waste on transfer trailers for shipment to Empire’s facility

for disposal.

“Uncontrollable Circumstance” means any act, event or

condition, other than a labor strike, that has had, or may

reasonably be expected to have, a direct material adverse

effect on the rights or the obligations of a Party under this

Agreement, or a direct material adverse effect on the

operation of the Transfer Station or the Facility, or on the

delivery of Authority Waste to the Transfer Station or the

Facility, if such act, event or condition is beyond the

reasonable control of the Party relying thereon as justification

for not performing an obligation or complying with any

condition required of such Party under this Agreement. Such

acts or events shall include, but shall not be limited to, the

following:

(a) anact of God (except normal weather conditions for

the geographic area of the Facility), hurricanes, tornados,

epidemic, landslide, lightning, earthquake, flood, fire or

explosion or similar occurrence; or an act of the public

enemy, war, blockade. insurrection, riot, general unrest, or

restraint of government and people, civil disturbance or

similar occurrence:

80a

(b) the order, or Injunction and/or judgment of any

federal, State or local court, administrative agency or

governmental body with jurisdiction over the performance of

a Party’s obligations under this Agreement; excepting

_ decisions interpreting federal, State and local tax laws;

provided that such order or judgment shall not be the result

of the negligent or willful action or inaction of the Party

relying thereon and neither the contesting in good faith of

any such order or judgment nor the failure to so contest shall

be construed as a willful or negligent action or inaction of

such Party; and

which permits the State of Pennsylvania to impose import

fees on Authority Waste delivered to the Facility.

(d) suspension, termination or interruption of utilities,

water and sewer lines and power transmission lines to the

Transfer Station or the Facility (for reasons other than

Empire’s Fault) which are required for and essential to the

operation of the Transfer Station or the Facility.

(e) extraordinary increases in the wholesale price of the

resin used to fabricate the liner pads installed after January 1,

1993 at the facility.

“USS” means U.S. Systems Corporation, a corporation

organized under the laws of the Commonwealth of

Massachusetts and authorized to do business in the

Commonwealth of Massachusetts and the State of New York.

“Week” means a period commencing Sunday at 12:01.

a.m. and ending on midnight of the following Saturday.

Section 1.02 Terms Generally. Whenever the context

may require, any pronoun shall include the corresponding

masculine, feminine and neuter forms. The words “include”,

“includes” and “including” shall be deemed to be followed

by the phrase “without limitation”, except as the context may

otherwise require. The words “agree”, “agreement”,

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“approval and consent” shall be deemed to be followed by

the phrase “which shall not be unreasonably withheld or

unduly delayed” except as the context may otherwise require.

Section 1.03 Notices Generally. Unless specifically

provided elsewhere in this Agreement, at least fifteen (15)

days prior written notice shall be required to be given by one

Party to the other Party of any breach of this Agreement by

the other Party hereto or failure to fulfill any requirement of

this Agreement by a Party, in order to allow the Party

receiving such notice to cure any such breach or to allow

such Party time to prepare for, question or contest the fact

that any such requirement of this Agreement has not been

fulfilled.

ARTICLE II- CONDITIONS PRECEDENT

Section 2.01 General.” All, rights, obligations and

liabilities of the parties hereunder shall be subject to the

satisfaction of each of the respective conditions precedent set

forth in Sections 2.02 and 2.03 on or before the

Commencement Date.

Section 2.02 Conditions to Authority Oblations.

(a) Empire and USS shall each have delivered to the

Authority a certificate of an authorized officer of Empire and

USS respectively, dated as of the Contract Date, to the effect

that each of the representations of Empire and USS set forth

in Sections 10.03 and 10.04 are true and correct as if made on

such date and opinions of counsel to Empire and USS, in

customary form and acceptable to the Authority to the effect

set forth in clauses (a) through (d) of Sections 10.03 and

10.04;

(b) all applicable permits, licenses and authorizations

necessary for Empire’s disposal of Authority Waste at the

Facility shall be in full force and effect:

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D.E.C. allowing the construction and operation of the

Transfer Station:

(d) Empire shall have filed or caused to be filed all

necessary tariffs and obtained all applicable permits for

transporting Authority waste to the facility; |

(e) The Authority and/or municipalities in the Counties

shall have procured or otherwise secured the services of

Authority Haulers which, in the determination of the

Authority, are sufficient to collect, transport and deliver all

Authority Waste to the Transfer Station for disposal;

_ (f) no action, suit, proceeding or official investigation

shall have been overtly threatened or publicly announced or

commenced by any Person or federal, State or local

governmental authority or agency other than the Authority in

any federal, State or local court, that seeks to enjoin, assess

civil or criminal penalties against, assess civil damages

against or obtain any judgment, order or consent decree with

respect to the Authority, Empire or USS as a result of

Empire’s or USS’s participation or intended participation in

any transaction contemplated by this Agreement; provided,

however, that any such action, suit, proceeding or

investigation would, if adversely determined, materially

affect this Agreement, or the performance by the Parties of

their respective obligations hereunder or the transactions

contemplated hereby; and provided further, that this

paragraph 2.02(f) shall, without limitation, apply to any

action, suit, proceeding or official investigation which is

criminal in nature or which challenges the validity, binding

effect or enforceability of this Agreement; and. provided

further that the existence or threat of any action, suit or

proceeding initiated by any person not a governmental

agency that has been interposed for purposes of delay or

hindrance of Authority programs and which is apparently

frivolous shall not be an excuse-for nonperformance of the

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Authority’s obligations hereunder. In the event a party, who

is the target of any litigation or other proceeding, provides

the other parties with an indemnification or other assurance

which is satisfactory to them, then the subject litigation or

proceeding shall not interfere with the performance of this

Agreement.

(g) no change shall have occurred after the Contract Date

in any applicable federal, State or local law, or any applicable

federal, state or local rule, regulation or ordinance

thereunder, or in the interpretation thereof by any applicable

regulatory authority, that would make the execution or

delivery by the Authority, Empire or USS of this Agreement,

or would make compliance by the Authority, Empire or USS

with the terms and conditions of this Agreement or the

consummation by the Authority, Empire or USS of the

transactions contemplated hereby, a violation of such law,

rule, regulation or ordinance;

(h) Empire and USS shall each have submitted evidence,

dated as of the Commencement Date, that there has been no

material adverse change in their financial condition since the

Contract Date; and

(i) Empire and USS shall each have delivered to the

Authority certificates of insurance with respect to coverages

which are satisfactory to the Authority

(j) Empire shall have furnished to the Authority the

performance bond required under Section 10.06 and shall

have deposited $350,000 in the joint account required under

Section 9.03(b).

(k) Empire shall have designated an Alternate Disposal

Site approved by the Authority under Section 3.06 and shall

have furnished to the Authority (1) a copy of the contract or

other documents satisfactory to the Authority incorporating

Empire’s arrangements for disposal of Authority Waste at the

Alternate Disposal Site and (2) evidence satisfactory to the

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Authority that all applicable permits, licenses and,

authorizations necessary for Empire’s disposal of Authority

Waste at the Alternate Disposal Site are in full force and

effect.

Section 2.03 Conditions to Obligations of Empire and

USS.

(a) The Authority shall have delivered to both Empire

and USS a certificate of the Authority, dated as of the

Contract Date, to the effect that each of the representations of

the Authority set forth in Section 10.02 are true and correct

as if made on such date and an opinion of counsel to the

Authority, in customary form, to the effect set forth in

- Clauses (a) through (d) of Section 10.02;

(b) no action, suit, proceeding or official investigation

shall have been overtly threatened or publicly announced or

commenced by any Person or federal, state or local

governmental authority or agency other than the Authority in

any federal, state or local court, that seeks to enjoin, assess

civil or criminal penalties against, assess civil damages

against or obtain any judgment, order or consent decree with

respect to the Authority, Empire or USS as a result of the

Authority’s participation or intended participation in any

transaction contemplated hereby; provided, however, that any

such action, suit, proceeding or investigation would, if

adversely determined, materially affect this Agreement, or

the performance by the Parties of their respective obligations.

hereunder or the transactions contemplated hereby; and

in any applicable federal, state or local law, or any applicable

federal, state or local rule, regulation or ordinance

thereunder, or in the interpretation thereof by any applicable

regulatory authority that would make the execution or

delivery by the Authority, Empire or USS of this Agreement,

or would make compliance by the Authority; Empire or USS

with the terms and conditions of this Agreement or the

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consummation by the Authority, Empire or USS of the

transactions contemplated hereby, a violation of such law,

rule, regulation or ordinance.

Section 2.04 Satisfaction of Conditions Precedent.

(a) The Parties shall exercise good faith and due diligence

in satisfying the Conditions Precedent set forth in this Article

I] and each Party shall give prompt notice to each of the other

Parties when the foregoing conditions precedent to its

obligation have been respectively satisfied or waived in

writing by the Party whose obligation is conditioned thereon.

If all of the said conditions precedent are not so satisfied or

are not waived by a Party whose obligation is conditioned

thereon on or before the date specified in Section 3-02(a)

hereof as the Commencement Date, or such later date as the

Authority may elect, then any c.her Party may, by-notice in

writing to each of the other parties, terminate as of the date of

the notice this Agreement with the party whose conditions

precedent have not been satisfied or waived. No Party shall

be relieved of its obligations hereunder by the failure to

satisfy any condition precedent to the extent that the

satisfaction of such condition is within such Party’s control.

(b) Empire, USS and the Authority shall each provide

executed acknowledgements to each of the other Parties that

the conditions precedent to their respective obligations under

this Agreement have been met immediately upon the

satisfaction or waiver of such conditions precedent.

ARTICLE II] - DELIVERY AND DISPOSAL OF

SOLID WASTE

Section 3.01 Overall Responsibilities.

(a) The Authority shall be responsible for and shall

deliver, or cause to be delivered, Authority Waste to the

Transfer Station. The Parties agree and understand that the

inadvertent and/or periodic delivery of non-Authority Waste

shall not constitute a breach of this Agreement by the

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Authority; provided, however, that the Authority shall use all

reasonable efforts to deliver, or cause to be delivered, only

Authority Waste to the Transfer Station.

(b) Empire shall accept such waste at the Transfer Station

from collection vehicles which will deposit the waste on the

tipping floor of the Transfer Station.

Authority surcharge described in Article IV for each load

deposited by collection vehicles at the Transfer Station.

(d) USS shall inspect waste to be delivered to the facility

and shall identify any waste other then Authority waste

which can be rejected under paragraph 3.04.

(e) Empire shall load waste into open top transfer trailers

and transport the loaded transfer trailers to the facility.

(f) Empire will unload the transfer trailers at the facility

and dispose of Authority waste at the facility.

(g) Empire and USS shall obtain and maintain all

necessary licenses and permits In order to enable them to

perform their obligations under this Section 3.01 and

elsewhere in this Agreement.

Section 3.02 Commencement Date: Notice of Site

Chance; Receiving Time.

(a) Provided that the conditions precedent set forth in

Article Il have been met, the Commencement Date shall be

December |, 1991. If the conditions precedent are not met on

or before such date, and the Authority elects to extend the

date by which the conditions precedent must be met pursuant

to Section 2.04, the Commencement Date shall be the 14th

day (unless such 14th day is not a Business Day in which

case the applicable day shall be the first Business Day

following such 14th day) following the date on which the

conditions precedent are met.

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(b) Empire shall notify the Authority as soon as possible

of its expected use of the Alternate Disposal Site.

Authority Waste during the Receiving Time, excluding Legal

Holidays. Subject to applicable State regulations and any

permit issued thereunder, Empire may receive Authority

Waste at the Facility at such additional times as Empire and

the Authority may agree.

Section 3.03 Weighing of Solid Waste; Weigh Scale

Records.

(a) The Authority shall operate N.Y.S. certified weigh

scales located in the vicinity of the Transfer Station and

maintain the weigh scale records, for the purpose of

determining the total Tons of Solid Waste loaded on Transfer

trailers leaving the Transfer Station. Empire shall have the

right to inspect weigh scale records at any time during

normal business hours. At the close of each business day a

copy of weigh scale records for the day’s activity shall be

delivered to Empire by the Authority.- Disputes with respect

to the occurrence of weigh scale records shall be resolved

pursuant to the provisions of Article VIII.

Section 3.04 Rejection Rights at the Transfer Station.

US* shall have the right to reject deliveries by or on behalf

o. *» Authority of:

(a) Any material other than Authority Waste;

(b) Authority Waste delivered at other than the Receiving

Time;

Transfer Station due to an Uncontrollable Circumstance: and

Disputes with respect to whether Authority Waste has

been properly rejected shall be resolved pursuant to the

provisions of Article VIII.

Section 3.05 Unauthorized Rejections.

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(a) If USS rejects Authority Waste delivered to the

Transfer Station for any reason other than those set forth in

Section 3.04, the Authority shall not be required to pay a

Disposal Fee to Empire with respect to such Authority

Waste, and USS shall be obligated to pay to the Authority for

its Direct Costs incurred, to the extent of Cost Substantiation,

for the total of the transportation and disposal charges per

Ton incurred by the Authority which are in excess of the

Disposal Fee for-each such Ton.

Section 3.06 Alternate Disposal Site

Empire shall designate subject to approval by the

Authority an Alternate Disposal Site during periods in which

Empire is unable to accept Authority waste at the facility.

Empire shall enter into such arrangements as may be

necessary for disposal by Empire of Authority Waste at such

Alternate Disposal Site at no additional cost to the Authority

and shall furnish to the Authority copies of the contract or

other documents in form and substance satisfactory to the

Authority incorporating Empire’s arrangements for disposal

of Authority. Waste at the Alternate Disposal Site. On or

‘before the Commencement Date Empire shall furnish

evidence satisfactory to the Authority that all applicable

permits, licenses and authorizations necessary for Empire’s

disposal of Authority Waste at the Alternate Disposal Site are

in full force and effect.

ARTICLE IV — DISPOSAL FEE

Section 4.01 Disposal Fee.

(a) Collection. The Authority shall pay the Disposal Fee

to Empire by the fifteenth day following the receipt by the

Authority of Empire’s statement for the Billing Period;

provided, however, that if the fifteenth day shall be a Sunday

or Legal Holiday, payment shall be made to Empire by the

first immediately succeeding Business Day.

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Empire shall provide the Authority with a statement

together with each request for payment pertinent to such

Billing Period. The statement shall set forth the number of

Tons of Authority Waste and other Solid Waste loaded on

Transfer trailers at the Transfer Station and the Disposal Fee

due Empire.

(b) Fee. For any Billing Period, the Disposal Fee to be

collected by the Authority from Authority Haulers for the

disposal of Authority Waste shall be as follows:

1992 56.55 per ton of Authority Waste loaded on

Transfer Trailers

1993 56.55 per ton

1994 56.55 per ton

1995 63.50 per ton

1996 71.31 per ton

fees for services rendered by Empire and USS under this

agreement except that Empire and USS shall agree as to the

terms of compensation between them. The Authority shall

incur no liability to USS for payment of USS’s fees and USS

hereby waives any claim against the Authority for any fees

for services performed by USS under this contact and agrees

that it will look solely to Empire for payment for its services.

Section 4.02 Adjustment to Disposal Fee for

Uncontrollable Circumstance.

(a) Subject to Article VII if Empire incurs Direct Costs

which are attributable to an Uncontrollable Circumstance,

then the Disposal Fee shall be increased by the amount per

Ton directly attributable to such Direct Costs, which increase

shall be determined in accordance with subsection (b) hereof.

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(b) Upon an event described in subsection (a), the

increase per Ton in the Disposal Fee shall be determine as

follows:

(i) Empire shall deliver to the Authority operating

data for the three-year period which precedes the occurrence

of the applicable Uncontrollable Circumstance (or if Empire

has an operating history of less than three years preceding the

Uncontrollable Circumstance, then Empire shall deliver the

appropriate data for such lesser period).

(ii) Empire shall deliver to the Authority such data as

may be requested by the Authority to enable it to determine

the actual cost increase per Ton that would not have been

incurred by Empire but for the occurrence of the

Uncontrollable Circumstance. No allowance shall be made

for profit of Empire.

(iii) The Authority shall determine the increase per

Ton on the operating costs of Empire which is attributable to

the Direct Costs incurred as a result of the Uncontrollable

Circumstance. The amount so determined shall be added to

the Disposal Fee.

ARTICLE V - OPERATION AND MAINTENANCE OF

TRANSFER STATION

Section 5.01 Design and Construction of Transfer Station

(a) Project Description. Empire shall design and manage

construction of a solid waste transfer station abutting the

Materials Recovery Facility owned by the Authority. The

Transfer Station shall be owned by the Authority and its

operation permitted by D.E.C. in the name of the Authority.

Empire shall operate the station pursuant to the terms of this

contract. Empire’s obligations to design and manage

construction of the Transfer Station shall be governed by the

terms of a separate agreement between Empire and the

Authority.

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(b) Role of U.S. Systems. U.S. Systems shall consult

with Empire concerning compliance of plans and

specifications with the terms of the Construction Permit. In

no event shall USS be responsible for or obliged to provide

supervision of the construction of the transfer station.

5.02 Transfer Station Operations

(a) Weighing of Transfer Trailers. In accordance with

Section 3.03 the Authority shall cause each loaded transfer

trailer to be weighed on New York State certified scales

before departure from the Transfer Station to determine the

tonnage of waste to be delivered to the Facility. Scales for

weighing the vehicles shall be provided and operated by the

Authority at a location to be chosen by the Authority in the

vicinity of the Transfer Station. ms

(b) Discharge and inspection of Waste. After delivery of

waste to the Transfer Station U.S. Systems shall inspect and

identify Authority Waste to be delivered to the Facility.

Unacceptable Waste shall be reloaded on the collection

vehicle which deposited such material on the tipping floor.

Waste from the tipping floor of the Transfer Station and load

it on walking floor transfer trailers for shipment to the

facility. Transfer trailers shall be fully tarped before

departure to the facility.

(d) Staging Area. Empire shall have the use of a staging

area to allow temporary parking of transfer trailers prior to

departure for the facility and after their return.

(e) Transport of Trailers. Empire will transport or cause

to be transported all loaded transfer trailers to the facility and

empty trailers back to the Transfer Station. Trailers will be

dedicated to the performance of Empire’s obligations under

this contract.

(f) Equipment. The Authority shall procure and maintain

at its expense a D-6 Dozer or equivalent, two rubber tire front

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end loaders and a knuckle boom crane. This equipment shall

be used and operated by Empire in accordance with sound

industrial practice at the Transfer Station to process and load

Authority Waste on the Transfer trailers. Empire shall

perform routine inspections of said equipment in order to

advise the Authority of maintenance and repair requirements

on a timely basis. Empire shall procure, maintain and

operate at its expense the required number of walking floor

transfer trailers for transportation of Authority Waste to the

Facility.

(g) Staffing of Transfer Station. USS shall staff the

transfer station with a qualified waste inspector.

(h) Utilities. Electricity, gas and water used at the transfer

station shall be separately metered and billed in the name of

the Authority which shall be responsible for the payment of

all invoices for these services.

(i) Office. The Authority will at its own cost and expense

provide a partitioned area of the transfer station for use by

Empire and USS as office space.

Section 5.03 Use of Transfer Station

(a) Empire and USS may use the Transfer Station for the

performance of their respective duties under this agreement.

If not previously terminated under Article LX, their use of the

transfer station shall terminate at the end of the term of this

agreement. Thereafter, if continued operation of the Transfer

Station by Empire and/or USS is requested by the Authority,

the parties shall enter into a new contract that shall

incorporate such provisions as may then be required by

applicable laws and regulations.

(b) Title to the transfer station shall remain in the

Authority. Title to parts replaced by the Empire in carrying

out its normal maintenance responsibilities under Section

5.04 shall pass to and vest in the Authority upon completion

of their installation in the Transfer Station.

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and clear of all liens and encumbrances and, except as

otherwise authorized by this contract, shall not remove any

part thereof or permit the use by others of any part thereof

except as may be permitted by the Authority under Section

10.09 “Subcontracts”.

(d) Empire and USS shall not construct or install, any

fixed improvement or structural alterations in the Transfer

Station without the advance written approval of the

Authority. Fixed improvement or structural alterations as

used herein means any alteration or improvement in the

nature of the building or other real property that, after

completion, cannot be removed without substantial loses of

value or damage to the premises.

- (e) The Authority and any persons designated by it shall,

at all times have access to the Transfer Station for the

performance of Authority functions on a non-interference

basis.

(f) The Authority makes no warranty express or implied

regarding the condition or fitness for use or operation of the

Transfer Station.

Section 5.04 Maintenance of Transfer Station

(a) Empire shall protect, preserve, and clean the Transfer

Station.

(b) As soon as practicable after the completion of the

construction of the Transfer Station, Empire shall submit to

the Authority in writing a proposed cleaning program. If the

Authority agrees to the proposed program it shall become the

normal maintenance program of Empire. At the end of the

term of this Agreement Empire shall leave the Transfer

Station in good order and condition.

removal, grounds maintenance, mud and dust control and

removal of litter outside the Transfer Station.

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(d) The Authority shall be responsible for payment of

leachate disposal costs.

ARTICLE VI - INDEMNIFICATION

Section 6.01 Indemnification.

(a) Empire agrees that it shall protect, indemnify, and

hold harmless the Authority and its respective members,

employees and agents, (the “Authority Indemnified Parties”)

from and against all liabilities, actions, damages, claims,

demands, judgments, losses, costs, expenses, suits, or actions

and reasonable attorneys’ fees, and shall defend the

_ Authority Indemnified Parties in any suit, including appeals,

for personal injury to, or death of, any person or persons, or

for loss or damage to property arising out of the acts or

omissions of Empire in the performance (or nonperformance)

of the Empire’s obligations under this Agreement. Empire

further agrees that the Authority shall not be liable solely as a

result of entering into this Agreement or. authorizing the

disposal of Authority Waste at the Facility or Alternate

Disposal Site, for any claims, damages, or loss arising from

Environmental Conditions at the Facility or Alternate

Disposal Site, and that Empire will indemnify, defend and

hold harmless Authority Indemnified Parties against and

from all liabilities, obligations, damages, penalties, costs and

expenses up to the limits of Empire’s pollution liability

insurance which shall not be less than $15,000,000.00 of

every nature which may be imposed on or incurred by or

asserted against them or any of them in connection with the

Environmental Conditions existing on or at the Facility or

Alternate Disposal Site. Empire is not, however, required to

pretect indemnify or hold harmless any Authority

Indemnified Party for loss or claim resulting from

performance (or nonperformance) of the Authority’s

obligations under this Agreement or the negligence or willful

misconduct of any Authority Indemnified Party. Empire’s

aforesaid indemnity is for the exclusive benefit of Authority

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Indemnified Parties and in no event shall such indemnity

inure to the benefit of any third Person.

(1) Municipalities. Empire further agrees not to assert

any claim damages or seek contribution from any

Municipality in the counties arising out of the disposal or

arranging for the disposal of Solid Waste at the Facility, or

arising from Environmental Conditions at Empire’s Facility.

(b) USS agrees that it shall protect, indemnify, and hold

harmless the Authority and its respective members,

employees and agents (the “Authority Indemnified Parties”)

from and against all liabilities, actions, damages, claims,

demands, judgments, losses, costs, expenses, suits, or actions

and reasonable attorneys’ fees, and shall defend the

Authority Indemnified Parties in any suit, including appeals,

for personal injury to, or death of, any person or persons, or

for loss or damage to property arising out of the acts or

omissions of the USS in the performance (or

nonperformance) of the USS _ obligations under this

Agreement. USS is not, however, required to protect,

indemnify or hold harmless any Authority Indemnified Party

for loss or claim resulting from performance (or

nonperformance) of the Authority’s obligations under this

Agreement or the negligence or willful, misconduct of any

Authority Indemnified Party. USS’s aforesaid indemnity Is

for the exclusive benefit of Authority Indemnified Parties and

in no event shall such indemnity Inure to the benefit of any

third Person.

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

[Title Omitted in Printing]

AFFIDAVIT

STATE OF NEW YORK )

SS.:

COUNTY OF ONEIDA )

STEVEN R. KOWALSKY, being duly sworn,

deposes and says as follows:

1. I am the President of Empire Recycling Corporation,

a private recycling firm that has been in the business of

recycling metal and paper in the County of Oneida since

1916. Empire Recycling has been handling the recycling

needs of the Counties of Oneida and Herkimer (hereinafter

collectively referred to as the “Counties”) prior to the

creation of the Oneida-Herkimer Solid Waste Management

Authority (hereinafter the Authority’) and prior to the

enactment of flow control laws by the Counties.

2. Empire Recycling maintains two recycling centers.

One recycling center is located in Utica, New York,

approximately one mile away from the Authority’s Recycling

Center, and the other recycling center is operated in

Syracuse, New York by a division of Empire Recycling,

known as S.M.R. Fibre.

3. Because of the enactment and enforcement of flow

control in the Counties, Empire Recycling cannot gain access

to any recyclables placed at the curbside in the Counties that

it had received prior to 1990. As a result, Empire Recycling

can only contract for the recyclables of businesses which

maintain Empire Recycling containers at their premises for

the source separation of recyclables. Empire Recycling

cannot participate in the recycling of residential recyclables,

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however, because the flow control laws require that curbside

recyclables be delivered by haulers — such as the Plaintiffs

in this action — to the Authority’s Recycling Center.

Accordingly, Empire Recycling cannot contract with private

haulers for the purchase of curbside recyclables because of

flow control.

4. Because the flow control laws apply to recyclables

placed at the curb, Empire Recycling could place recycling

bins at each individual residence for the collection of

recyclables, without violating flow control. This approach to

recycling, however, is cost-prohibitive. Individual

households do not generate enough recyclable waste to

justify individual contracts with those households. On a

large scale, however, the residences in the Counties do

generate a significant amount of recyclable material.

Accordingly, but for flow control, Empire Recycling could

contract with private hauling firms (such as the Plaintiffs) for

the purchase of recyclables collected at the curbside.

5. The Authority’s Recycling Center, which is located

one mile down the road from Empire Recycling’s facility,

does not pay private haulers for recyclable waste collected at

the curbside. But for flow control, Empire Recycling would

be willing to pay private haulers — such as the Plaintiffs —

for recyclables brought to Empire Recycling’s facility in

Utica. Empire Recycling’s standard practice is to send out

monthly pricing letters to its customers, which indicate the

value of recyclables delivered to Empire Recycling based on

market conditions. Empire Recycling enters into month-by-

month pricing agreements with private haulers and even has

multi-year contracts with other private organizations. When

Empire Recycling enters into multi-year contracts with

customers, it provides those customers with recycling bins,

the contents of which are then graded, packed and sold to

brokers or mills, located both in and out of the State of New

York.

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6. Empire Recycling engages in interstate commerce

_ because it acts as both a processor of recyclable waste and as

_a broker for mills which convert recyclables into useable

product. For example, Empire Recycling either (1) processes

recyclables and then sells those recyclables to brokers

serving as middlemen for mills or (2) sources recyclable

materials for mills which turn the recyclable material into

useable product.

7. The brokers and mills that Empire Recycling deals

with in these situations are located both in state and out-of-

state. Mills will typically buy recyclable product from

recycling companies or brokers within a five hundred mile

radius, which enables Empire Recycling to deal with mills as

far away as Wisconsin, Montreal and South Carolina.

8. Flow control and the Authority’s monopoly over

curbside recyclables has impacted the recycling business of

Empire Recycling. For example, in the 1980s, cardboard and

newspaper were a large part of our recyclable business.

Since most newspaper and cardboard had to be delivered to

the Authority’s Recycling Center because of flow control,

Empire Recycling — and its out of state customers — were

deprived of access to these recyclable products.

9. Empire Recycling and its out-of-state customers have

also been impacted by the Authority’s ability to charge

artificially low prices to its customers as a result of flow

control. Flow control causes the flow of all curbside

recyclables and non-recyclables to the Authority’s facilities.

The non-recyclables are accepted only after payment of the

$86.00 per ton tipping fee while recyclables are not paid for

by the Authority. The Authority’s monopoly over non-

recyclable waste provides the Authority with the funds to

subsidize its Recycling Center, while the monopoly over

curbside recyclables gives the Authority free product to sell

on the open market. As a result, the Authority can artificially

lower the prices it charges for the sale of its recyclables on

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the open market to brokers or mills located out-of- state and

in Canada. This prevents Empire Recycling and other

recycling centers across the northeast (which are not

subsidized and must pay for recyclable product before its

resale) from competing with the Authority for the business of

brokers and milling companic s.

10. In support of flow control, the Authority argues that

private companies lack the incentive and ability to recycle om

a consistent basis because of the fluctuating nature of the

recyclables market. The Authority argues that private

companies will not have the incentive or desire to collect and

haul recyclable material when the recyclables market is low.

I have been involved in the business of recycling for the past

20 years. In my experience, it is rare for the recyclables

market to crash so dramatically that goods which are

profitably recycled one day suddenly become unprofitable

recyclables the next day. Moreover, when markets are weak,

it is not the fault of the recycler but a function of the

economy. Even when the markets are low, however, Empire

Recycling continues to recycle material, but there may be

times when nominal tipping fees are needed to offset

processing costs. Because Empire Recycling pays for most

recyclables year round, and only charges for certain

recyclables (usually newspaper and cardboard) during limited

periods when the markets are low, our customers Over the

long term still benefit by recycling. They not only avoid

paying Authority tipping fees and disposal costs ($86 per

ton) which always exceed the costs, if any, charged at our

recycling center when the market is low, but they

consistently receive payment for their recyclables.

11. While recyclables may fluctuate in value from week-

to-week or month-to-month, that market fluctuation is

accounted for in the month-to-month pricing agreements or

the multi-year contracts executed by Empire Recycling and

its customers. Consequently, it is unlikely that the market for

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any particular product would crash so drastically that private

companies would rescind their contracts or refuse to haul or

collect recyclable material.

12. In his affidavit, Hans Arnold — the Authority's

Director — argues that flow control was necessary to

promote recycling because the private sector was not

recycling or educating the public regarding recycling.

(Arnold Aff. $930 and 33.) As part of our longstanding

commitment to recycling, Empire Recycling, led by Michael

Foye, Vice President of operations, has consistently donated

time both before and after 1991 to boy scout groups, girl

scout groups, elementary schools and junior high schools to

talk about recycling, give tours and augment curriculum

pertaining to recycling. Our ongcing advertising campaign

includes billboard and newspaper advertising using the

slogan “Our work helps the environment work.” In fact,

_during the authority’s formation, Michael Foye of Empire

Recycling was critical in educating Hans Arnold, Bob Julian,

Kevin Manion and other Authority employees and supporters

about recycling. Empire Recycling gave tours of its own

facility and gave classes on proper grade identification,

collection, separation and marketing. It is therefore

disingenuous for Mr. Arnold to argue that the private sector

did not or does not educate the public about recycling.

13. There was no mandatory recycling in the Counties

prior to the enactment and enforcement of flow control. In

other words, defendants did not give the private sector the

opportunity to operate under mandatory recycling laws;

rather, the mandatory recycling laws and the flow control

laws were enacted contemporaneously. Had the defendants

only enacted mandatory recycling laws. recycling could have

been promoted and accomplished by the private sector.

14. Mr. Arnold claims that the recyclable items listed in

paragraph 28 of his affidavit were not being recycled by the

private sector prior to the opening of the Recycling Center in

10la

1991. (Amold $30.) Attachment A-4 to his own affidavit

contradicts this statement. Attachment A-4 is a letter from

Empire Recycling advising the City of Utica that, because of

low markets, it would be charging $30.00 per ton for

newspaper. While this letter indicates that the recycling

market was low in June of 1989, it also indicates that our

company was indeed recycling newspaper prior to the

creation of the Authority or the enactment of flow control.

Moreover, the $30 per ton charged by Empire Recycling for

newspaper in 1989 was significantly lower than the $88 per

ton charged by the Authority the following year for the

disposal of waste. Accordingly, even absent flow control,

gencrators would have benefitted by recycling even during

periods when the recyclables market was low.

15. Indeed, of the 22 grades listed in paragraph 28 of Mr.

Arnold’s affidavit, Empire Recycling recycles or has

recycled (some materials are no longer received since the

County facility opened and began enforcing flow control)

newspapers and inserts, magazines and catalogues, phone

books, brown grocery bags and kraft paper, junk mail,

corrugated cardboard, lightweight cardboard, computer

paper, glass, plastics (PET bottles), metal cans (Universal

Empire, an Empire Recycling affiliate, accepts all ferrous

metals), foil wrap and foil plates and automobile batteries.

The only materials not recycled by Empire Recycling include

hazardous waste (aerosol cans, motor oil, motor oil filters,

household paint, antifreeze), yard waste (yard and garden

waste and brush), swimming pool liners, beverage cartons

and drink boxes. If given the opportunity, it is likely that

Empire Recycling could have begun to recycle hazardous

materials. If flow control was not in effect, Empire also

could have implemented the new technology that has allowed

the recycling of beverage cartons and drink boxes, but flow

control prevents Empire Recycling from receiving that

tonnage.

102a

16. The Authority focused on newspaper as its first flow

control supported recycling effort at its opening in February

1991. As a result, Empire Recycling’s newspaper business

decreased immediately. As a direct result of the constricting

recycling streams, Empire Recycling relocated much of its

paper processing operations to Liverpool, New York. The

Authority did not begin to focus on corrugated, CPO, office

paper, and lower grade mixed paper until after its Start-up

period. The appreciable decrease in material processed by

Empire Recycling did not occur until some months later

when the reach of mandated flow control took full effect.

The fact remains that much of the paper the Authority claims

was saved from being landfilled (Arnold Aff. § 37) was

recycled by Empire Recycling long before the opening of the

Authority’s Recycling Center. The figures in the chart

attached as Exhibit A hereto completely contradict Mr.

Arnold’s claims of a non-existent private recycling market

and clearly indicate the negative impact flow control has had

on Empire Recycling’s business.

17. Moreover, flow control is not necessary to ensure

either the collection or the transportation of recyclable

material, because these matters are dealt with in the contracts

entered into by the municipalities and the private hauling

companies. These contracts obligate the private hauling

companies to collect and transport recyclables regardless of

the value of any particular product in the recyclables market.

18. For example, the City of Utica has a contract with

Waste Management, Inc. for the collection of all curbside

material. Pursuant to this contract, Utica has given all

residential homeowners bins for the collection of waste and

recyclables. Waste Management then collects those bins and

transports recyclables to the Authority’s Recycling Center

and non-recyclable waste to the Authority's facilities. Even

in the absence of flow control, the City of Utica would still

have the right to contract for the collection and transportation

103a

of curbside recyclables and could require the delivery of such

waste to facilities of its choosing. But absent flow control,

Empire Recycling would have the ability to compete for

designation as the chosen recycling facility in such contracts.

19. Because of the nature of Empire Recycling’s

business, and its business relationship with out-of-state mills

and out-of-state brokers, flow control has significantly

impacted Empire Recycling’s ability to engage in interstate

commerce.

20. Based on my 20 years of experience in the recycling

business, I do not agree with the Authority's conclusion that

flow control promotes recycling. Mandatory recycling laws,

with enforcement mechanisms, are responsible for increased

recycling rates, not flow control.

21. The only relationship between flow control and

recycling is a financial one. In other words, the flow control

laws enable the Authority to collect recyclables at no cost for

resale on the open market. The tipping fees received on non-

recyclables, which are directed to the Authority's facilities by

flow control, are used to subsidize the Authority's Recycling

Center. These funds received by the Authority can in turn be

applied towards the construction and operating costs of the

Recycling Center and also allow the Authority to charge

artificially low prices for its recyclables on resale in the open

market. While funds generated as a result of flow control

enable the Authority to publicize recycling on a wider scale

than might otherwise be possible, flow control is not the only

means of funding public awareness projects.

22. Flow control, in and of itself, does not promote

recycling — it simply provides the Counties and the

Authority with funds to cover the costs of the Authority's

Recycling Center and their public awareness projects. This

financial benefit. how

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