12.16.09
County, Texas AG sued by landfill contractor Waste Management, Inc.
As readers of EOW know the Williamson County Landfill has been a sad and sore subject for many in Williamson County over the last several years, (just click here to find out). That’s why seeing this is extremely disheartening, WM sues county, Landfill operator arguing public information request. What started out as a simple request for public information has been turned into a proverbial “federal case” by the corporation that now runs the landfill owned by Williamson County.
Disposal company Waste Management has filed a lawsuit against Texas Attorney General Greg Abbott and Williamson County to try and keep information from being given out as part a Public Information Act request, saying it is an attempt by a direct competitor to gain a competitive advantage against the county landfill operator.
The request, filed by Hutto resident Kurt Johnson, is asking for “the sequentially-numbered tickets showing the individual loads of solid waste disposal events at the Williamson County Landfill for the full business day of July 14.” Johnson contends that WM may be using tactics “for its own substantial benefit.”
In essence what Johnson is trying to get at is whether WMI is, “creating a situation of self-dealing”. WMI contends that giving out information such as discounted tipping fees are “trade secrets”. From Johnson’s press release [.pdf]:
Johnson said he submitted the public information request after analyzing general financial information about the landfill and determined that the total reported revenues and tonnage only made sense if the tipping fees charged to commercial haulers were unbelievably low.
“If those substantial discounts are really happening,” Johnson said, “it’s a problem not only because the
landfill is a public asset owned by the county. It’s also a major problem because WMI gets to charge any lowball rate it wants to its own hauling company for waste deposited in the county’s landfill, creating a situation of self-dealing.”Johnson continued, “The fact that WMI can determine the charges to its own hauling company shows
one of the major flaws in the landfill contract to which the county agreed back in March, and another major flaw is that WMI is trying to keep the financial information about a public landfill secret while no one representing the county is willing to step up and do anything about it.”According to WMI’s lawsuit, the claim for non-release is being made based on the argument that the
discounted tipping fees are “trade secrets.”“That argument would work if the county didn’t own the landfill,” Johnson said. “If WMI owned the landfill, then there would be no opening to even make the public information request.” According to Johnson, both current Attorney General Greg Abbot and former Attorney General John Cornyn have issued previous opinions stating the the public has a right to obtain such information.
Johnson added, “It’s going to be very interesting to see whether Precinct 4 Commissioner Ron Morrison
—whose precinct is home to the landfill—is willing to stand up and be an advocate for having this information released to his constituents. It also will be interesting to see whether Morrison and other members of commissioners court are willing to accept accountability for the provision in the landfill contract which made this kind of self-dealing possible without public scrutiny.”
The county, County Attorney Jana Duty’s office in particular, is responsible for not getting the requsest to WMI in time, (see here [.pdf]). The county and our elected leaders have had little to say at this point. With election season upon us the county’s elected officials can’t be happy that the landfill is again in the news for the wrong reasons. Many voters are waiting to see whose side those in elected office will be on. The side of the people or the side of the corporation.
More below in the extended entry:
As usual when dealing with Williamson County government and/or a corporation stalling by using the court system has been implemented. More from the TDP:
Despite an opinion issued Nov. 5 by the AG’s Open Records Division instructing the county to turn over some of the information from the submitted tickets to Johnson, including quantity of waste information and negotiated rates and fees, only a handful of tickets had been received by Dec. 2, all cash customer tickets.
Johnson filed the initial request because of what he calls apparent “self-dealing … for (Waste Management’s) own substantial benefit a and on behalf of the public’s interest.
Per the landfill agreement between the county and WM, WM should provide the county with monthly reports showing a breakdown of a number of items, including the tip fee charged to all users of the landfill. By Johnson’s review of March, April, May and June 2009 monthly reports, WM failed to report the tip fees received.
Johnson says that because the county is the permitee, site owner and site operator of the landfill, all financial and operational records become available to the public.
Part of the PIA act requires a time frame in which information must be turned over or an objection filed with the AG’s office. On Aug. 11, Johnson sent the first written request to the county for the information regarding tipping fees.
Three weeks later, after the 10 business day period for response required by the PIA, the county sent a letter to WM advising them of the request and of their right to submit arguments as to why the information should be kept private.
WM sent an objection letter to the AG Sept. 16 and on Nov. 6, the Open Records Division of the AG’s office issued an opinion that some of the information Johnson sought was suitable and should be turned over.
Per the PIA, the information must have been released within 10 business days, or by Nov. 20. By Dec. 2 the county still had not released the information to him, citing a possible lawsuit being filed by WM.
WM filed their lawsuit Dec. 4. Since then, Johnson has filed a petition on intervention, requesting further information to determine whether deadlines were missed and if communication between the county and WM falls into the scope allowed by law.
I would encourage everyone to go read up on this issue at gismedia.com/agreement. In particular Johnson’s PETITION IN INTERVENTION to the lawsuit filed by Waste Management against the Attorney General of Texas and Williamson County [.pdf]. Especially this from Page 17, which gets to the heart of WMI’s potential “self-dealing”:
Even though WMI was in violation of requirement in the Agreement that it must report on a monthly schedule the tipping fees for all landfill customers (by not reporting that specific information), additional information contained in those reports shed light on the subject to the extent that, contrary to Muelker’s assertion, such information generally is known outside of Waste Management because it can be calculated from other information.
Utilizing WMI’s required monthly reports to the county, for the months of March through June, total tonnage reported was 112,666 tons, and revenues for that tonnage from tipping fees was $2, 502,623. Doing the math, the per-ton tipping fee is $22.21 per ton. The posted gate rate is $31.50 per ton, so the explanation for the differential obviously in found in the discounted rates for commercial haulers. It is appropriate to conclude that the discounted rates to commercial haulers averages less than some $22 per ton, but a more precise number is not available inasmuch as we don’t know what proportion of the tonnage is due to discounted haulers as compared to non-discounted haulers. If the proportion of the tonnage due to discounted haulers is substantially higher than the tonnage provided by non-discounted haulers (private citizens), then the tipping fee for discounted haulers would be significantly less than $22 per ton. The tickets sought by Johnson’s request would provide a more specific figure, but in substance, the discount information obviously is known outside of Waste Management.
Additional information consistent with the above conclusion is that for the four-month period, there were collected tipping fees of $2,502,623, resulting in royalty payments to the county of $313,055. Inasmuch as the Agreement calls for a royalty schedule of 10 percent (for the first year), a royalty total of $313,055 would reflect tipping fee collections of $3,130,550. This difference of some $600,000 for four months (or some $150,000 per month) is best explained by the fact that discounts to commercial haulers are grossed up for the purpose of royalty payments to the county, but the result is that these haulers receive in the aggregate some $150,000 per month in discounts (a discount of some 30.5 percent) below the gate rate available to the public ($31.50 per ton discounted to $22.21 per ton). It is reasonable to say that the
discount provided to commercial haulers actually is much greater than that in light of the fact that the $22.21 per ton for all waste includes revenues from the general public, which pays the posted gate rate of $31.50.And so, the obvious fact that substantial discounts are made available by WMI to commercial haulers (including it’s own hauling company, which is the key element in the selfdealing component) is already well-known, despite WMI’s efforts, as described by Muelker, to secret the information. The secreting away of the information is even more significant in light of the appearance that WMI is doing so (secreting) as part of WMI’s possible and apparent abuse of its position in being the contractor for the operation of a publicly-owned asset.