WGL Fall Newsletter

The following articles discuss upcoming WGL events and current issues facing municipalities and other public entities. For more information, please contact Managing Partner Teno West at 914-898-2400.

Managing Partner Teno West to Present at International Solid Waste Association World Congress in Bilbao, Spain on October 8

WGL Managing Partner Teno West will give a presentation at the International Solid Waste Association (“ISWA”) World Congress in Bilbao, Spain on October 8, 2019.

Mr. West’s presentation will focus on the sustainable solid waste management practices of one of the United States’ leading solid waste management authorities – the Rockland County Solid Waste Management Authority (the “Authority”), which manages solid waste issues for approximately 325,000 residents in Rockland County, New York (the “County”), which is located just north of New York City.  The Authority, through the operation of 10 facilities, has developed an integrated sustainable waste management approach to address the County’s solid waste management needs, including segregating waste streams for processing into marketable commodities, such as recyclables, concrete aggregate, recycled asphalt, mulch, leaf compost and biosolids compost; utilizing concrete and sludge product; nimbly absorbing the impact of China’s recent recycling import ban; and developing and enforcing a flow control law to ensure the Authority’s ability to manage solid waste for the County on a long-term basis. This presentation will focus on the Authority’s sustainable management of the entire solid waste management system.

ISWA promotes and develops sustainable professional waste management worldwide by: promoting resource efficiency through sustainable production and consumption; supporting developing and emerging economies; advancing waste management through education and training; and promoting best available technologies and practices.

Mr. West is an expert in his practice areas and routinely presents at conferences for national and international associations.  He previously led a similar symposium on U.S. municipal infrastructure projects before an international audience of academicians, scientists and global business executives and government officials at the 2013 Innovation in Public Financing (IPF) Conference in Milan, Italy; and he has previously presented at the ISWA World Congress in Florence, São Paulo, Vienna, and Antwerp.

Public Entities Considering Long-Term Solid Waste Disposal Options

In the face of imminent landfill closures and the lack of traditional disposal options, communities around the country and the world are looking to implement alternative waste disposal methods.

Indeed, in response to China’s recent recycling import ban, Australia has pursued measures that will eventually lead to a ban on the export of any recyclable waste in an effort to increase onshore processing of materials.  Innovative measures include paving a road with the equivalent of 200,000 plastic bags, 63,000 glass bottles and waste toner from 4,500 printer cartridges. According to the New York Times, it is the first road in the world made of Reconophalt, which is a combination of recycled materials and asphalt. Additional measures include possibly developing so-called “microfactories,” which are small, modular machines that can be used together in various combinations to create new materials from municipal solid waste. Australia is also looking to implement facilities that can incinerate unrecyclable household scraps and convert them into electricity. While this idea is only just now gaining traction in Australia, Sweden has found so much success with such alternative waste disposal methods that it has begun importing other countries’ trash.  Sweden, in fact, has been at the forefront of utilizing alternative disposal methods to meet its disposal needs. Sweden operates 34 waste-to-energy power plants. Less than one percent of household waste in Sweden ends up in landfills as a result of utilizing these waste-to-energy facilities. Alternative waste disposal methods are gaining in popularity elsewhere as well. Japan, for example, incinerates up to 60 percent of its solid waste, and China more than doubled its waste-to-energy capacity from 2011 to 2015, according to a World Energy Council report.

Municipalities and other public entities in the United States are facing similar issues with respect to limited landfill capacity and pressing environmental concerns. In connection with these issues, WGL has been working with its solid waste management clients to explore their options for the future disposal of municipal solid waste (“MSW”).  Many public entities do not maintain operating landfills and therefore rely on “long-hauling” MSW to distant landfills. While this has provided a short-term disposal option, these landfills are inching ever-closer to reaching their maximum capacity levels. Accordingly, WGL has been advising its solid waste management clients on planning for their future MSW disposal needs, including possibly implementing various innovative alternative disposal methods.

Implementing Public Sewer Projects in Rural Communities

Typically, small rural communities (population less than 10,000) rely on individual septic systems to meet their wastewater management needs. These individual septic systems, however, can be somewhat problematic, often times resulting in failure and the potential for leaching into the water table and nearby water sources.

WGL is currently representing a rural municipal sewer authority in Pennsylvania that is working to address such issues through the implementation of a sewer system around a large natural lake. While the implementation of any public sewer system, whether rural or not, faces several common considerations, including financial and political constraints, implementation of a rural sewer system faces its own unique issues.

One of the biggest issues facing rural communities in this regard is the ability to disseminate accurate information regarding such a project and inform the public on the issues that need to be solved. In communities where a local newspaper may only publish once a week, misinformation can spread quickly and lead to unfounded fears. For example, the community WGL is representing is concerned that implementation of a sewer system will lead to unchecked development. In addition, rampant speculation about the cost of implementation, and who will bear that cost, previously led to significant opposition to the project.

Another unique issue for rural communities involves topography. As opposed to some nearby urban and suburban counterparts, the community WGL is representing is heavily forested and rocky, with steep drop-offs. In addition, there are preservation concerns for this rural community – concerns that urban and suburban communities may not face.

Further, with respect to a wastewater treatment facility, rural areas may face more obstacles than their urban and suburban counterparts. While there will always be opposition to the siting of such a facility, rural areas may face additional challenges insofar as there may be fewer industrial property owners that may be more willing to negotiate for the location of such a site.

There are no easy answers to the above issues, but they are important to keep in mind when proceeding with the implementation of a rural sewer project. With WGL’s assistance, the local sewer authority we are representing has been able to navigate some of these tricky issues.

Governance Issues For Water Supply Systems

WGL attorneys recently drafted revisions to a Rhode Island town’s Water Supply Board Rules and Regulations, which govern the use of the public water system, and set forth the guidelines for consumers with regard to their general obligations to the Water Supply Board.  Some of the topics covered by the Rules and Regulations that required review, updates and revisions included: ownership, maintenance, repair, and replacement of water meters; conditions regarding termination of water service; provisions concerning service pipes; and schedules for fees and other charges.

In addition to making revisions to the Rules and Regulations, we’ve assisted the town with understanding its legal authority to impose betterments for improvements to the water distribution system; and, we are researching and strategizing regarding the legality and practicality of creating a water authority, in lieu of the Water Supply Board. The current makeup and structure of the Water Supply Board was created many years ago and is outdated, a fact facing many municipalities throughout the Country. More recent changes to the water supply system and the need for expansions and capital improvements likely necessitate the need for a separate water authority.  We are helping the town to understand its options and choose an approach that is lawful and beneficial to the town and the long term sustainability of its water supply system.

Energy Performance Contracts

WGL represents a city in Massachusetts in connection with the implementation of an Energy Management Services (“EMS”) procurement under MGL Ch. 25A. In Massachusetts, EMS is a type of energy savings performance contracting and an alternative public procurement method used to purchase the installation of energy and water conservation measures, energy efficiency measures, and/or onsite energy generation at buildings and facilities throughout the municipality.  By utilizing EMS, municipalities can obtain new capital equipment without much up-front capital investment; and, the company selected to make improvements and install equipment provides a performance guarantee, guaranteeing a certain level of savings to the municipality, as well as agreeing to pay the municipality in the event of a shortfall.

Such Energy Performance Contracting is governed by statute and there are very specific, required steps involved from the commencement of the procurement, throughout the implementation and post-implementation of the project, including, for example, public notification, governmental filings and certifications, contract requirements, monitoring, and reporting.

Because of the steps involved and the statutory requirements, these projects may take a while to complete, but they are fairly low-risk to the municipality, and in the end, they have clear benefits to the town or city, including not only monetary savings, but energy and water conservation and efficiencies, as well as energy generation in some cases.

Claims and Change Order Provisions in Public Construction

One of the critical issues impacting municipalities when they draft, negotiate and administer public construction contracts is claims and change orders. When not properly drafted or administered, these provisions in public construction contracts can create unnecessary project costs in terms of economics and schedule, and lead to costly and uncertain litigation. Because each construction project is unique, operative and critical contract language should not simply be copied from “shelf documents,” but should carefully be tailored to the community’s needs, including the level of risk you are willing to assume or assign, and the antecedent costs of that risk.

Claims and change order provisions in contracts must be detailed and “owner-protective” in terms of procedural, substantive and interpretive requirements placed on the general contractor and design professional. Disputes over scope or pricing should never be a basis for excusable delay or suspension of work by the contractor. Finally, early engagement of legal counsel experienced in drafting the contract specifications, including selecting, or modifying the key construction documents, such as the main contract, general or supplemental contract conditions and schedules, will save litigation and aggravation once the shovels hit the ground.

***

If you wish to discuss any of these newsletter articles or the issues discussed therein, please contact WGL Managing Partner Teno West at 914-898-2400.