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County Attorney's Report 14. 1.

BCC Regular Meeting

Information

Meeting Date:	06/10/2013
Issue: West Florida Recycling, LLC v. Escambia County, Florida (Case No. 3:13-cv-81-RS-CJK)
From:	Charles Peppler
Department:	County Attorney's Office
CAO Approval:

RECOMMENDATION:

Recommendation Concerning West Florida Recycling, LLC v. Escambia County, Florida; Case No. 3:13-cv-81-RS-CJK.

That the Board accept the following information report concerning West Florida Recycling, LLC v. Escambia County, Florida, Case No. 3:13-cv-81-RS-CJK.

BACKGROUND:

West Florida Recycling, LLC (WFR) brings recycled or recovered materials collected from homeowners and businesses in Santa Rosa County and Escambia County for processing to its Materials Recovery Facility here in Escambia County. As part of processing, residual solid waste is generated. WFR was bringing a significant percentage of that residual solid waste back to the Central Landfill in Santa Rosa County because it contended that it was generated in Santa Rosa County. In April 2012, the County's Environmental Enforcement Division cited WFR with violation of the County's flow control ordinance. The County's flow control ordinance requires that all residential and commercial solid waste which is either generated or collected in Escambia County be disposed of at either at the County's Perdido Landfill or the County's Palafox Transfer Station. The ordinance was enacted based on Florida statute and U.S. Supreme Court precedent so that County would have an adequate supply of solid waste for recycling and waste-to-energy programs mandated by Florida Statutes.

Although negotiations between County and WFR were undertaken for a period of nine months, with a view toward entering into a Memorandum of Understanding, negotiations reached an impasse in January, 2013. On February 20, 2013, WFR filed suit in U.S. District Court claiming that the County's flow control ordinance was unconstitutional as it violated the dormant commerce clause of the U.S. Constitution. In essence, WFR argued that the requirement that all solid waste be disposed of at the Perdido Landfill was a protectionist measure which discriminated against interstate commerce. WFR sought preliminary injunctive relief as well as declaratory relief. The District Court received memoranda of law from this office opposing the request for preliminary injunctive relief and in support of a motion to dismiss WFR's claims that flow control was unconstitutional and that County's interpretation of flow control and Florida statutes was invalid.

U.S. District Judge Richard Smoak agreed with the County that the County's flow control ordinance was not unconstitutional and declined to exercise supplemental jurisdiction to rule on WFR's state claims that the County's interpretation of where solid waste is generated violated Florida statutes. A copy of the order granting the dismissal is attached. In declining to accept the case for resolution of the Florida law issues, Judge Smoak did remark in passing that the process of separating residual solid waste from recyclable materials in Escambia County does not generate solid waste in Escambia County. The County respectfully disagrees with Judge Smoak's observation and will vigorously defend its interpretation of Florida statutes that generation of solid waste takes place in Escambia County when recyclable materials are processed in Escambia County to remove undesirable solid waste for disposal.

WFR has thirty days in which to appeal the dismissal of its case to the U.S. Eleventh Circuit Court of Appeals. It remains to be seen whether WFR will pursue any state law claims and relief in Escambia County Circuit Court.

BUDGETARY IMPACT:

N/A

LEGAL CONSIDERATIONS/SIGN-OFF:

N/A

PERSONNEL:

N/A

POLICY/REQUIREMENT FOR BOARD ACTION:

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IMPLEMENTATION/COORDINATION:

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Attachments
West Florida Recycling Order