Section 4000.1111 - Protection of capacity(a)Permit condition.--The following permits issued by the department under the Solid Waste Management Act shall include a permit condition, if provided pursuant to this section, which requires compliance with an agreement or arbitration award, setting forth the weight or volume of municipal waste generated within the county and municipality that the operator shall allow and the rates, terms or conditions with which municipal waste is to be delivered for disposal or processing at the facility for a specified period: (1) A permit for a new municipal waste landfill or resource recovery facility.(2) A permit that results in additional capacity for a municipal waste landfill or resource recovery facility.(3) In the case of an existing facility, a permit modification that results in an increase in the average or maximum daily volume of waste that may be received for processing or disposal at the facility.(b)Determination.--The permit condition shall be determined in the following manner: (1) The applicant shall notify the host county and host municipality upon filing an application for permit pursuant to subsection (a). Within 60 days after receiving written notice from the applicant that an application has been filed with the department, the host county and host municipality shall provide written notice to the applicant and the department if it intends to negotiate with the applicant. If the host county and host municipality do not provide such notice and, if the permit is issued, the permit condition shall state that no waste capacity is reserved for the host county and host municipality. The negotiation period shall commence upon the date of receipt of the written notice to the applicant from the host county and host municipality and shall continue for 30 days. The issues to be considered in negotiations shall include, but not be limited to, the weight or volume of capacity reserved to a host county and host municipality and an increase in the average volume of waste up to the amount of capacity set aside for municipal waste generated within the host county and host municipality.(2) If the host county and host municipality and the applicant agree to a weight or volume of waste capacity to be reserved for the host county and host municipality, they shall notify the department in writing.(3) If the host county and host municipality and the applicant have failed to reach an agreement within the 30-day negotiation period, then either party to the dispute, after written notice to the other party containing specifications of the issue or issues in dispute, may request the appointment of a board of arbitration pursuant to paragraph (7). Such notice shall be made in writing to the other party within five days of the end of the negotiation period. In making the decision as to the terms of the agreement, the board shall consider among other things the availability of disposal alternatives to the host county and host municipality. Should the host county and host municipality fail to request arbitration within five days, then the permit condition shall state that no waste capacity is reserved for the host county and host municipality.(4) If the county and municipality elect to negotiate with the applicant pursuant to this section, any agreement or arbitration award shall provide, unless the host county and host municipality and applicant agree otherwise, that the county and municipality shall utilize the capacity reserved in an agreed-upon time frame.(5) Should the applicant and the host county and host municipality be unable to agree to the terms of the agreement governing such utilization within 30 days of an agreement or an arbitration award as to the weight or volume of waste capacity to be reserved in the facility, either party can request the appointment of an arbitration board pursuant to paragraph (7). In making the decision as to the terms of the agreement for utilization, the board shall consider, among other things, the weight or volume of capacity reserved to a host county and host municipality under any permit issued pursuant to this section, an increase in the average volume of waste in an amount up to the amount of capacity set aside for municipal waste generated within the host county and host municipality, the financial viability of the facility and the terms, including the rates per ton for disposal, of the contracts entered into by the applicant for use of the facility by other than the host county and host municipality.(6) Except as provided in paragraph (1), the department shall not issue any permit under this section unless it has received written notice of an agreement between the applicant and host county and host municipality as to the weight or volume of capacity to be reserved for the host county and host municipality as provided in paragraph (2) or unless it has received written notice that a Board of Arbitration appointed pursuant to paragraph (7) has settled all issues in dispute between the host county and host municipality and the applicant. The department shall include a permit condition reserving such capacity provided for in such agreements or arbitration awards.(7) The board of arbitration shall be composed of three persons, one appointed by the applicant, one appointed by the host county and host municipality and a third member to be agreed upon by the applicant and such host county and host municipality. The members of the board representing the applicant and the host county and host municipality shall be named within five days from the date of the request for the appointment of such board. If, after a period of ten days from the date of the appointment of the two arbitrators appointed by the host county and host municipality and the applicant, the third arbitrator has not been selected by them, then either arbitrator may request the American Arbitration Association, or its successor in function, to furnish a list of three members of said association who are residents of Pennsylvania from which the third arbitrator shall be selected. The arbitrator appointed by the applicant shall eliminate one name from the list within five days after publication of the list, following which the arbitrator appointed by the host county and host municipality shall eliminate one name from the list within five days thereafter. The individual whose name remains on the list shall be the third arbitrator and shall act as chairman of the board of arbitration. The board of arbitration thus established shall commence the arbitration proceedings within ten days after the third arbitrator is selected and shall make its determination within 30 days after the appointment of the third arbitrator.(c)Department.--The department may take any action authorized by statute that the department deems necessary to ensure that operators of municipal waste landfills and resource recovery facilities give priority to the disposal or processing of municipal waste generated within the host county.(d)Consultation.--The host county shall consult with the host municipality as part of the procedure set forth under this section.(e)Exemption.--The provisions of this section shall not apply to a resource recovery facility financed by the host municipality or municipal authority, and to facilities for the disposal of ash residue from municipal waste incinerators which, prior to the enactment date of this act, agree to provide capacity to all municipalities located within the county and which can be documented to the department. 1988, July 28, P.L. 556, No. 101, § 1111, effective in 60 days.