Lawsuit filed protesting solid waste contract

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The other shoe has finally dropped in the county's solid waste saga. After months of waiting, the losing bidder for a county-wide residential trash contract has made its move — a district court lawsuit.

The county commissioners awarded an eight-year contract to Waste Management in December. New Mexico Disposal, the only other qualified respondent, protested the contract award but the county denied the protest.

On Feb. 14, New Mexico Disposal, through its attorney Amavalise Jaramillo, filed a notice of appeal in district court. The formal appeal was filed on May 21.

The company requests the court order the county to cancel its contract with Waste Management, and appoint a new evaluation committee to review and rescore the proposals.

The contract with Waste Management for trash services in the county was to begin on April 1, but the county hesitated to move forward after the February notice of appeal.

Instead, in March, commissioners decided to push back the contract's start to the end of June and allow the four current franchise haulers to continue operating until then.

Because the contract with Waste Management is exclusive, AC Disposal, New Mexico Disposal and Valley Disposal would not be allowed to haul residential trash in the unincorporated areas of the county once it's implemented. Municipal services will remain the same.

The haulers got a reprieve until June and, with NMD's appeal, they could operate for the duration of the litigation.

County Manager Bruce Swingle said it is now up to the commissioners to decide whether to extend the franchise agreements past the end of June.

"We need to make sure we have services for the residents," Swingle said. "And we are not sure how long before the contract can be in place. The county is hesitant to move forward with the contract since the matter is in litigation."

By deferring the contract with Waste Management until there is a court decision, county attorney Dave Pato said via email it was the county's hope to avoid being held responsible for the company's mobilization and startup costs, if the court forced the county to cancel the contract.

While county residents wait for the suit to work its way through the courts, a local recycling program also finds itself in limbo. In November 2010, the county partnered with the city of Belen, paying $600 a month to support the city's recycling center.

The city had just undergone massive budget cuts and the center was threatened with closure. Since it was free to county and city residents, the commissioners felt it only fair to take on part of the cost.

The county renewed its agreement with the city in March, but made it clear the end of the partnership was near.

The funding for the county's part of the costs comes from revenue from recycling appliances at the county-owned and operated Conejo Transfer Station.

The transfer station will be operated by Waste Management once the contract with the county is implemented, eliminating that revenue.

"So long as the county is operating the transfer station, we will have that money," Swingle said.

City administrators did not return calls to the News-Bulletin asking if money has been budgeted to cover the shortage, once the county stops its funding.

The suit by NMD alleges that the county violated the Open Meetings Act when commissioners allowed Swingle to appoint a three-member evaluation committee outside of a public meeting, and that the committee's meetings, even though they were closed, were not publicized.

The county's purchasing policy allows the county manger to appoint an evaluation committee if the commissioners do not do so, but Jaramillo argues that since the commissioners have sole authority to establish a solid waste program, they cannot pass an ordinance that delegates that power to the manager.

"Only the commission has the authority to appoint an (evaluation committee) … and such an appointment is subject to public notice and meetings requirements of the Open Meetings Act," Jaramillo writes in his brief. "… the commission violated the Open Meetings Act by appointing an (evaluation committee) through a process that was closed to the public."

New Mexico Disposal's attorney also argues that various point designations and findings by the committee were not supported by substantial evidence or were arbitrary and capricious.

The brief goes through all 11 areas the proposals were scored in and makes the argument that NMD could have been awarded more points.

During last year's protest, NMD President Ernie Byers said if his company lost its franchise to haul in the unincorporated county, he could lose 3,000 to 4,000 residential trash customers.

But, according to county records, the company had not reported any residential customers via residential franchise payments last fall.

Sarah Schnell, the county environmental coordinator, said the number of residential trash accounts served by each hauler can be estimated based on these franchise payments.

Byers did not return calls seeking clarification on the discrepancy in the numbers.

For that same time period, Waste Management, AC Disposal and Valley Disposal collectively reported and paid franchise fees for about 7,600 residential customers — nearly half of the estimated 16,000 households the solid waste contract hauler will serve.


-- Email the author at jdendinger@news-bulletin.com.