Judge throws out suit filed against Indianapolis over recycling deal

A suit filed Sept 5, 2014, by Graphic Packaging International Inc., RockTenn Converting Co. and Cathy Weinmann against the city of Indianapolis and its Board of Public Works over alleged violations of the city’s Waste Disposal Statute has been thrown out by Marian County Judge Cynthia Ayers.

The suit followed the city of Indianapolis awarding the waste management company Covanta, Morristown, New Jersey, a contract to build what the company describes as a $45 million advanced materials recovery center (ARC) adjacent to its existing waste-to-energy facility.

Following the plaintiffs’ initial filing, the defendants filed a motion to dismiss the suit, alleging the plaintiffs lacked standing to contest the government action and a motion for summary judgment.

After both parties submitted evidence in support of their position, the matter was fully briefed, with the parties presenting their arguments to the court March 10, 2015.

One critic of the Covanta/Indianapolis project says, “There is no evidence that this process (mixed waste recovery) works. There should have been competitive bidding on the program.”

Several critics of the project say the mixed waste facility would not boost the city’s recycling rate. Other critics of the Covanta/Indianapolis deal say recyclables recovered through the mixed waste facility would be highly contaminated.

However, in her ruling, Judge Ayers says the plaintiffs’ fears that paper recovered at Covanta’s ARC likely would be contaminated is not a sufficient basis for a lawsuit.

“There is no evidence that these two plaintiffs are using the resource at issue, i.e., the recycled products from the ARC, because the facility has not been constructed and is not producing any products in the stream of commerce. Such speculative claims are insufficient to establish an actual or immediate injury,” Ayers writes in her ruling.

“A mere unilateral expectation or an abstract environmental need is not an interest entitled to protection absent personal use of the resource at issue,” she adds.

The plaintiffs alleged that the city violated the state’s Waste Disposal Statute by not conducting a public bidding process.

Ayers found the city didn’t violate the statute because the deal was an amendment to an existing contract and lease of city property.

A spokesman for the Indianapolis Board of Public Works says some of the key points in its deal with Covanta are:

• Residents will put all waste and recyclables in their regular trash bin, eliminating the need to separate recyclables.
• One hundred percent of single family homes will be enrolled automatically in the program and will immediately increase recycling in Indy by five times.
• Covanta’s ARC will recover up to 90 percent of recyclables, including cardboard, plastic and metals, while glass and organics may be added in the future.
• About 130 jobs will be created during construction and operation of the ARC.
• Covanta’s ARC will help the Indiana take a major step forward in recycling, supporting the new statewide recycling goal of 50 percent.
• Covanta and Indianapolis’ partnership will provide the city with a revenue stream from the sale of recyclables after six years and will end penalties of $500,000 per year from the city to Covanta for not providing enough trash to the company’s existing facility.
• The new facility is expected to be up and running in the fall of 2016.
• Indianapolis will continue to operate existing curbside and drop-off recycling programs as well as household hazardous waste and electronics waste disposal programs.

Allison Gritton, an attorney with the law firm Spalding & Hilmes PC, Indianapolis, which represented the plaintiffs, expressed disappointment in the decision. In an email, she writes that they are discussing whether to file an appeal.

Following the ruling, Scott Holkeboer, Covanta market area vice president, released a statement, saying, “We are very pleased to see the city of Indianapolis has prevailed in the lawsuit regarding its professional services contract with Covanta. We appreciate the careful consideration given by the Marion Superior Court and thank Mayor Ballard for his leadership.”

Holkeboer continues, “Covanta is excited to bring the next generation in sustainable waste management system to Indianapolis with a $45 million investment to build the advanced recycling center, which will increase the recycling rate by 500 percent, capture 80 to 90 percent of all recyclable materials—and without Indy residents having to pay for it. This project represents an important investment in our community’s future and a significant leap forward in efforts to increase recycling, save energy and reduce greenhouse gas emissions for generations to come.”

A spokesman for the city says that even with the new program, a subscription-based curbside recycling service will be available for residents.

Permitting for the mixed waste processing facility is expected to be completed by the third quarter of this year with the plant operational by 2016, Covanta says. The city’s contract with Covanta will run through 2028.