Well over a year ago, it was pointed out in this space that Harford County government's insistence on welshing on its long-term landfill agreement with the Town of Bel Air could lead ++ to wide-ranging adverse consequences.
The first impact came two weeks ago, when the Harford Circuit Court ruled that the county was illegally collecting a $35-a-ton tipping fee charged against trash haulers to use the Scarboro landfill.
Because those collected fees were mixed with other revenues in the county solid waste fund, and not applied specifically to the services provided by the landfill (or the county recycling-sorting center), Circuit Court Judge Maurice W. Baldwin Jr. ruled that the tipping fee was, in effect, an illegal tax.
Since that tonnage fee is charged to all disposers at Scarboro, the only county-owned landfill, Judge Baldwin's ruling could result in the abolition of fees for all landfill users, and a return to financing landfill costs out of general funds.
There's a considerable amount of money at stake for Harford County; nearly $9 million has been collected since the tipping fee was first imposed in 1992.
Bel Air went to court when the county refused to honor a 1969 agreement that gave the town free trash dumping rights at the Harford landfill for 99 years, in exchange for nine acres of town land to build a new county detention center.
Harford County now reckons that Bel Air owes a half-million dollars in unpaid fees and interest. But that will be chump change if the judge's decision is upheld by higher courts, and the county has to refund these fees to all trash haulers.
The judge did not decide on the legality of the town's 99-year free dumping accord, leaving aside that issue until appeals of the tipping-fee issue are exhausted.
Judge Baldwin also did not rule on another major contention, that the tipping fee is an illegal tax because it was not authorized by the General Assembly.
If the fee can be legally collected as a user charge, specifically allocated for those services, it may not be a tax at all; therefore it wouldn't need a state enabling act. But that's another round of legal arguments.
In February 1993, Assistant Attorney General Richard Israel stated in a letter to Del. Donald C. Fry that Harford's tipping fee appeared to be a tax that required an enabling law. No such legislation was ever presented to the General Assembly; after the Bel Air lawsuit was filed, of course, it would have hurt the county's defense to introduce such a bill.
Harford County is appealing the Circuit Court decision. Insisting that it did not "commingle" the disputed tipping fees with other revenues, County Attorney Ernest A. Crofoot nevertheless said that Harford would "adjust its accounting procedures" to try to please the court.
The court's verdict obviously didn't warm the hearts of either side. The decision didn't uphold Bel Air's position that its no-fee dumping agreement with Harford County is valid. And it didn't validate Harford's claim that the tipping fee is just another one of the user charges made by the county for services.
Harford still has to fear that the tipping fee will be considered a tax, and an illegal one, because it did not get the required state legislative approval. That would be a setback for County Executive Eileen Rehrmann's administration, which scrambled to patch together a countywide recycling program just before the state's legal deadline. Critics claim that it was an oversight not to seek state permission for the fee, rather than a considered opinion that none was needed.
This legal imbroglio could have been avoided. All Harford County had to do was to keep its agreement with Bel Air on free town dumping at the landfill. That agreement was reviewed and reinforced after it was originally signed, so it's not as if unreasonable public officials simply made an unreasonable deal back in 1969.
In 1982, Bel Air won its case against Harford County in lower
court and the county appealed to the Court of Special Appeals. Then-County Executive Habern W. Freeman decided to end the dispute by paying for trash collection service throughout the county out of the general fund. And when the county's Tollgate Landfill closed in 1987, Harford agreed to transfer Bel Air's free dumping rights to the Scarboro landfill.
Certainly, the state-mandated recycling program has created higher costs for the counties in the 1990s, Harford among them. But that added expense didn't justify abrogating the deal made with Bel Air, which will likely prevail in court regardless of how the tipping fee is legally defined.
(Harford was lucky to have the Magnolia waste-to-energy incinerator in place, cutting waste disposal costs and giving the county extra credit toward its state-specified recycling goal, 20 percent of all trash.)
No one doubts that Maryland counties can charge a tipping fee on trash haulers using county landfills and recycling facilities. But it has to be done right. And recycling expenses need to be reduced if the program is to become economically justifiable; 18 percent of Harford's material sent to recyclers is still rejected as unsuitable.
Above all, legal agreements made by the county have to be honored; there have certainly been benefits for both sides. By the way, we don't see Harford County making any preparations to return the jail property to Bel Air; instead, it is involved in a major expansion, with state aid, to double capacity of that facility.
Mike Burns is The Baltimore Sun's editorial writer in Harford County.