Harford County's noisome trash disposal dispute with Bel Air could lead to a complete overturn of the $35-a-ton tipping fee charged users of the county's Scarboro landfill.
An opinion letter from the state attorney general concludes that the tipping fee -- imposed to encourage and fund recycling programs -- is a tax that requires an enabling law passed by the General Assembly.
There is no such enabling law; none was even filed during the last two annual sessions of the legislature. (One has now been drafted to meet the possible emergency.)
Del. Donald C. Fry requested the advisory opinion from the attorney general during the last session, while considering whether a local taxing law was needed.
The February letter from Richard Israel, assistant attorney general, to Mr. Fry minces no words (or no more than lawyers ordinarily do) about the matter. Unless the legislature authorizes the tipping fee, it is an unpermitted tax, he wrote.
The letter is included in the town of Bel Air's lawsuit against Harford County, filed last month to void the county's claim for $90,000 in fees for the dumping of municipal trash in the Scarboro landfill since last Sept. 1.
The $90,000 is small change, compared to the $6 million or more that the county projects to collect from the tipping fee charged to all users of the county landfill. It makes one wonder whether the current county administration acknowledges anything that happened before it took power in December 1991.
Bel Air could probably prevail in the tipping fee dispute without even bringing in the illegal taxation issue, as it did in 1982 in Circuit Court. It has a clear 1969 agreement with the county that the town could dump its trash in the county landfill free for 99 years. That is, until 2068. The concession was made when Bel Air gave its landfill to the county to build the detention center.
But county officials insist on charging Bel Air the tipping fee. They seek refuge in every possible excuse to avoid settling the dispute: The agreement did not envision mandatory recycling laws, it was for too long a time, it will cost the county too much money.
Confronted with the lawsuit, the county's lawyers quickly argued that the tipping fee is not a tax and was not designated as a specific county revenue source.
That should come as a big surprise to the Harford County Council. County Executive Eileen M. Rehrmann vetoed the council's budget revision precisely because the council had tinkered with a revenue estimate, which she claims is verboten.
What revenue projection? Why, the revenue from tipping fees at the landfill. That should provoke some interesting rhetorical contortions by the administration, and some provocative comments from the council.
By quibbling over this firm agreement with Bel Air, and refusing to negotiate a reasonable compromise, the county could jeopardize the entire tipping fee system. Of course, the legislature could always enact the enabling legislation, but what of fees already collected illegally?
The county did not seek the enabling legislation in 1992 or 1991; as it now argues, no law is required. But one wonders whether the point wasn't overlooked, or dismissed, in the Rehrmann administration's rush to throw together a countywide recycling program using a stable of private haulers.
Bel Air citizens pay for their trash collection through assessments by the town, instead of individually contracting with a private hauler. So the landfill tipping fee is charged to the town itself, not to households or the trash hauling firm.
When state Sen. Habern Freeman became county executive in late 1982, he faced a similar situation. Bel Air was charged tipping fees, won its case against Harford County in lower court and was near victory in the Court of Special Appeals.
Meanwhile, county residents were up in arms about the hodgepodge of fees and exemptions for different classes of trash generators, with ominous claims that the tipping fee was basically illegal. The Tollgate landfill was under state order to close, and a new landfill was needed.
Rather than continuing the legal fight, Mr. Freeman reached agreement with Bel Air and the rest of the county to pay for trash collection out of the general tax fund as a county service. That put the issues to rest, including the nagging claims that tipping fees were imposed illegally.
Scarboro landfill was opened and Bel Air was allowed to dump trash there without charge. The waste-to-energy incinerator was built at Magnolia, and a complete sorting and recycling facility was envisioned for future construction there.
Then came the state mandatory recycling law, and the need to pay for a sorting and recycling facility, not yet built in Harford County. Under the current system, it costs Harford County about $80 a ton to process its recyclables at a center in Elkridge in Howard County.
Harford needs to honor its commitments, and to reach a reasonable accord with Bel Air (which did compromise in 1983 on Scarboro.)
The county is likely to lose again in court if it persists in breaking promises. It also risks the possibility that a court decision could .. imperil the structure of the county's entire recycling program.
Mike Burns is The Baltimore Sun's editorial writer in Harford County.