Tag: township

Force majeure and the Township Solid Waste District

We attended a “Candidates Night” event last night where the two individuals on the ballot for a Trustee position spoke and took questions. Where most local elections don’t have much in the way of issues, this particular election may be a proxy vote for the single-hauler solid waste district because the incumbent was involved in the entire process and voted to establish a Solid Waste District that allows only one trash hauler. And indicated that she didn’t see anything wrong with the way the decision was approached.

There were two justifications provided for this decision — both financial. Individuals who have rubbish service will pay less for their service because the Township is essentially facilitating a bulk-purchase agreement. The company is going to drive the same number of miles but 100% of the houses will be their customer. The other stated motivation is reducing road repair costs. Not because the Trustees provided any evidence that rubbish trucks cause a significant amount of damage to roads (although I’ve been told it’s common sense that big trucks cause a lot of damage … there are four, I think, companies that collect rubbish in the area. Commercial rubbish collection is out of scope, so those companies are still going to be driving on some of the roads. What percentage of road damage is done by three rubbish trucks a week compared to vehicle traffic, delivery trucks, snow plows, freeze/thaw cycles? And that’s assuming the single hauler doesn’t need to increase the number of trucks/trips to collect all residential waste — which I doubt is true. We’re more likely to net remove one or two large trucks a week from the roads.). But when I asked what metrics would be provided to show that this cost savings would be realized, the incumbent candidate replied “I don’t think residents want to fund an expensive study about what roads needed repairs and how much it costs”. Which is a senseless non-answer — they’ve got a projected service department budget for next year. And hopefully the year after that. They’ve got historic actual numbers for decades. Take next year’s actual and compare it to the budget. How’s that compare to, say, the difference between last year’s actual and forecasted budgets?

But the oddest part of the night was when a resident asked about people whose existing contracts are a problem — either their current rubbish service will stop collecting trash a month before this single-hauler contract begins, their annual contract is up a month or three before the single-hauler contract begins and they’re not going to be able to renew, or their contract extends beyond the single-hauler start date. The first two scenarios are answered easily enough — the company that’s been chosen as the rubbish collector has agreed to start collecting “early” at rack-rate. So you “get” to buy service from the company you didn’t want at the price you didn’t want. The incumbent indicated that people whose contracts extend beyond the single-hauler start date won’t have to pay early termination penalties because of force majeure. Now maybe she’s actually seen residential contracts from each of the rubbish collectors that operate in this Township. We haven’t had rubbish service for years because we compost & recycle. The remaining trash (generally Styrofoam), we can drop off once a year at the county dump for like 1.50$. But in the contract we did have, force majeure was specifically protection for the trash hauler — they are not in breach for failing to collect rubbish in the middle of a hurricane, during a strike, etc. Courts tend to interpret force majeure clauses narrowly. If the hauler wants to push the issue … I doubt there’s a clause about government action freeing the resident from fulfilling their contractual duties. You’d be making an argument under common law contract doctrine.

But there’s no need to put yourself in a defensive position. The hauler will elect either to cease operation in the Township or incur penalties for continued residential rubbish collection. As a customer, you aren’t the one seeking to breach the contract. The hauler’s failure to act on their contractual duties may fall under a specific item within a force majeure clause. Or they may consider their duty voided under “frustration of purpose”. Call it “impracticability” because of the fines. It’s not like a resident needs to fight to compel their old hauler to continue their contractually-obligated duties that the hauler needs to defend their withdraw as a specifically permitted action. A resident needs the hauler to be the one who withdraws from the contract.