Delaware Public Media

Legal expert 'not persuaded' by DRPI landfill's claims against new county limits

Sep 2, 2019

A national waste disposal company is crying foul over New Castle County legislation signed last week to limit the height of landfills.

 


The ordinance limits landfill height in the county to 140 feet above sea level.

Right now it only applies to Waste Management’s Delaware Recyclable Products, Inc. (DRPI) landfill on Rt. 13 in New Castle, because it is the only landfill under the County's jurisdiction. The DRPI landfill is currently seeking state permission to expand to 190 feet above sea level.

Company representatives say they plan to challenge the new legislation in court. They argue it unlawfully targets a single business. 

“The idea that it impacts a future landfill is sheer speculation,” said Waste Management spokesman John Hambrose after the legislation passed last week. “The only landfill it impacts is the DRPI landfill on Route 13 in New Castle.”

Widener University Delaware Law School professor Thomas Reed is not convinced by this argument. 

“That certainly is an issue you can argue to a very favorably inclined court— that this is simply designed to put them out of business or to cripple their business and let their business go to [Delaware Solid Waste Authority],” he said. “But I’m not persuaded by that … because the ordinance is general in character, and if anyone else wants to get into the landfill business, subject to the ordinance in New Castle County, they’ll be bound just as much as these people are.”

Reed says the argument could hold water if the company can find a “smoking gun” — such as “backroom chatter” or emails proving a county official wanted to use the legislation specifically to shut down DRPI. “Not so much bad science as evil intent: ‘Let’s get ‘em! We don’t like ‘em! Let’s get rid of ‘em!’” he said. 

Concerns about the DRPI landfill’s desire to expand featured prominently in county officials’ push for the ordinance

County Executive Matt Meyer told Delaware Public Media in June he supported the county legislation, at the same time saying he saw DRPI’s proposed expansion as an environmental justice issue. 

“I’m absolutely opposed to enabling dumpers to increase the height of their dumping ground, particularly when that waste is coming from neighboring states from outside our county, and particularly when the dumping ground is right basically smack in the middle of a residential area,” he said at the time.

Widener’s Reed says there is a difference between using a single company as an example to promote legislation and targeting it to intentionally regulate it out of business. 

Legal counsel to New Castle County Council Mike Migliore said last week before the legislation passed that its height limit was chosen in part to give the DRPI landfill time to continue operating. The landfill is currently permitted at 130 feet.

   

“The intent behind this was to strike a reasonable balance between council’s concerns related to health, welfare and safety of the surrounding neighborhoods, while allowing DRPI time to reasonably continue with its business, and continue employing individuals, while allowing for sufficient time to transition operations, in a smooth transition of fill to other locations,” he said. 

Waste Management also claims the legislation seeks to inhibit interstate commerce. Their landfill accepts more than half of its waste from states including New Jersey, Maryland, New York, and Pennsylvania.

“The fact that DRPI accepts waste from other states was prominent in the rhetoric around the subject of our operation, the ordinance and its approval,” said Hambrose in an email. 

Reed says if the company sues the County, its luck could also depend on which judge is assigned the case.

“If you get someone on the bench who’s very receptive to the argument of an ordinance masquerading as a public act affecting more than one entity [but] actually being an attempt, proved by a landslide of evidence, to single out this one company to put them out of business— that would turn a corner for them,” he said. 

 

County officials say they are prepared to defend the legislation.

“Well there’s no certainty, but we have clear authority under the state code through zoning to dictate what we want the future of our county to look like,” said County Councilman Dave Carter, who co-wrote the legislation.

He adds that the legislation will apply to any future landfill proposed in the county, which he says would likely be in southern New Castle County, where his district is located. “I am quite comfortable if [Waste Management] wants to mount a legal challenge, I think the record is clear and we will stand with it.”

County Executive Matt Meyer said his administration has asked Waste Management “as good corporate citizens” not to sue over the legislation. “If they choose to go that route, we are going to fight without stop, relentlessly, for the people of this county and for the land, the water and the air of this county.”

Waste Management’s expansion application is still pending before DNREC. DNREC officials say they have not finished evaluating the impact of the County’s decision on their consideration of the application.