# Joint Appendix — United Haulers Ass'n v. Oneida-Herkimer > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0252%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 2007 - **Citation:** 550 U.S. 330 ## Text 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, v. 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) 8. 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) 7. 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, Vv RELEVANT DOCKET ENTRIES Date Filed No. Docket Text 04/14/1995 ; COMPLAINT filed. t 06/15/1995. = ANSWER to Complaint by County of Oneida. r 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 i 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 ' i ! AFFIDAVIT of KRISTIN CARTER ROWE, ESQ. on behalf 2a 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 | 16 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 17 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, \ 3a ‘Date Tiled No. Docket Text ! Ingersoll Pickup Inc Re: [14-1] motion for Summary Judgment (Exhibits A-B attached). 07/27/1995 19 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 22 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 23 AFFIDAVIT of MICHAEL A. GAPIN on behalf of Oneida- | Herkimer in OPPOSITION to [14- 1} motion for Summary Judgment. 07/27/1995 | 24 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 24 Exhibits J-6, J-7 and J-8 in " support of Robert Julian’s [24-1] | Affidavit. 25 | AFFIDAVIT of HANS G. 4a Date Filed No. Docket Text r | | | ARNOLD on behalf of Oneida- Herkimer Re: [14-1] motion for Summary Judgment (Exhibits A-] - A-12 attached). 07/27/1995 | ! ! 25 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 25 Exhibit A-12 in support of Hans Arnold’s [25-1] Affidavit. 07/27/1995 | 26 MEMORANDUM by Oneida- Herkimer in opposition to [14-1] motion for Summary Judgment (w/attachments). | 07/27/1995 | | 27 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 28 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 30 REPLY by United Haulers Assn.. | | Transfer Systems Inc, Bliss Sa ‘Date Filed No. Docket Text f 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 3] | 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 32 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 33 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 40 MEMORANDUM by County of Herkimer in further opposition to [14-1] motion for Summary Judgment. 10/17/1995 41 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 45 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 | 7a "Date Filed No. Docket Text a for Summary Judgment. | 05/24/1996 7\ 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 83 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 85 NOTICE OF APPEAL by Oneida-Herkimer. | cr 04/28/2000 86 NOTICE OF APPEAL by County of Oneida. ' 04/28/2000 87 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 89 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 J | USCA Case Number Re: [87- 7 a 9a 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, | J ae 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 f | 145 MOTION by Kevin C. Murphy, Esq., on behalf of the plaintiffs’ for Partial Summary Judgment on the issue of Liability. i 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. | a 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 i ! Statement of Material Facts in Support of defendants’ [152-1| ~Motion for Summary Judgment | dismissing the complaint and for Attorneys Fees & Costs. 7 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 - 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. 7 | 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 i ' | ines 05/16/2003 ee | | T i \ i ; ' 164 | REPLY MEMORANDUM OF ee 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 a 16a = ate Filed No. Docket Text ———— ee ee ee mes ! cr | 05/16/2003 i 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 r 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 co {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 a | Date Filed No. 7 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 Se 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 5 | 03/24/2005 192 JUDGMENT in favor of defendants against plaintiffs. rc 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, v. 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. t 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. rm 12/19/00 Case heard before MESKILL, LEVAL, CALABRESI C_JJ. (Tape: #99+100) | | 12/29/00 | i | | | | 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. f 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, v. 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 ae ; 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’ 4la 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 Sla 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 (c) enjoining Defendants from _ prohibiting § or 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 21 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 22 23 24 25 27 ae 27 27 28 31 31 32 33 33 33 34 34 35 36 37 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. 79 “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 (c) a Change in Law including any change in law 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”, 8la “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: 82a (c) The Authority shall have received permits from 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 83a 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 contem [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0252%3A06. Public record. Not legal advice.