Agenda Oct27 2009 Doc5

MEMORANDUM TO:

RIVANNA SOLID WASTE AUTHORITY BOARD OF DIRECTORS

FROM:

THOMAS L. FREDERICK, EXECUTIVE DIRECTOR

SUBJECT:

RESPONSES TO PUBLIC COMMENTS

DATE:

OCTOBER 27, 2009

This report provides a response to comments made at the September Board meeting under “Items from the Public”. The comments were critical of RSWA’s 2007 decision to pursue a fraud claim in the local courts against Mr. van der Linde. The comments included the idea that RSWA’s actions result from Mr. van der Linde’s opening of a recycling facility and that the lawsuit is a waste of taxpayers money. These opinions are not factually true. RSWA filed suit against Mr. van der Linde in December 2007 for one reason and one reason only – because RSWA had substantial evidence that Mr. van der Linde had defrauded the RSWA of in excess of a million dollars in tipping fees since late 2005. Because RSWA’s solid waste public services are paid from taxpayer revenues to the extent they are not covered by tipping fees, defrauding RSWA results in the Albemarle and Charlottesville taxpayers making up the difference. It is ironic that the lawsuit has been considered a waste of taxpayer money, because collecting what RSWA feels is lawfully owed by Mr. van der Linde would restore much more taxpayer money than the cost of litigation. Further, the cost of litigation is expected to be far less than what Ms. Mooney suggested. RSWA has been deliberate in not responding to public comments in the media, because it is most important that this case be fairly tried in the courtroom and not “in the press”. However, also recognizing that when the public hears only one side of the issue they may not understand the purpose of the litigation, RSWA has summarized below several very important facts, directly from the pleadings already available to the public from the records of the court. o In 1997 RSWA entered into an agreement with BFI whereby with the closing of the Ivy Landfill, waste from Albemarle County and the City of Charlottesville (Albemarle/Charlottesville) could begin going to BFI’s transfer station at Zion Crossroads with RSWA billing and collecting its own tipping fee for such waste to provide for additional public services in Albemarle/Charlottesville. o In the fall of 2005, based on then recent concerns, RSWA had a series of meetings with BFI upon which BFI agreed to improve accounting procedures, including requiring each hauler to declare the origin of its waste upon entry to the BFI transfer station. As these procedures were being amended, BFI was charging $46 per ton for waste outside of the 5 T:\Board\RSWA\Board Meetings 2009\October 2009\Responses to Public Comment Oct09.doc

Albemarle/Charlottesville area and RSWA was charging $62 per ton for waste inside the Albemarle/Charlottesville area. The revenues from RSWA’s higher fee were helping the Authority to provide free public services, including but not limited to the McIntire Recycling Center, Household Hazardous Waste Collections, paint exchange program, and other environmentally responsive programs. o At the time BFI’s accounting procedures were being amended, Mr. van der Linde’s companies were delivering wastes to the BFI transfer station being billed by RSWA at a weight equivalent of 5,180 tons a year (based upon billings of 864.06 tons in the months of November and December 2005). Following full implementation of new accounting procedures, Mr. van der Linde’s declared waste from Albemarle/Charlottesville dropped significantly to a total of 674.15 tons for the entire year of 2006 and 406.60 tons for the entire year of 2007. During one twelve month period from September 2006 through August 2007, Mr. van der Linde’s companies declared zero tons from Albemarle/Charlottesville, a period within which there are multiple photographic records of Container Rentals’ orange roll-off boxes sitting on numerous construction sites within Albemarle/Charlottesville. According to records obtained from BFI, Mr. van der Linde’s companies brought 69,500 tons of waste declared as outside of Albemarle/Charlottesville between November 2005 and December 2008, an average of 21,947 tons per year. o Mr. van der Linde has suggested in the press that he paid more by his waste being declared outside of Albemarle/Charlottesville, but his statement is in conflict with the facts. When the weight of Mr. van der Linde’s waste loads declared as Albemarle/Charlottesville initiated a sharp decline in January 2006, BFI’s tipping fee for waste outside the Albemarle/Charlottesville was $16.00 per ton LESS than waste from Albemarle/Charlottesville. Although BFI did raise the tipping fee for wastes outside the Albemarle/Charlottesville area three times between July 2006 and November 2008, it was not until November 2008 that the BFI fee for waste outside the Albemarle/Charlottesville area was equal to the waste from Albemarle/Charlottesville at $62.00 per ton. o Mr. van der Linde complained about his bill from RSWA in November 2005 and then refused to provide RSWA records confirming the origins of his waste loads that could have demonstrated if a billing error deserved correction, claiming at the time that “the only written transaction record with [his] customer that ever exists is the bill.” Contrary to Mr. van der Linde's statements, other written transaction records did exist and were in Mr. van der Linde's possession. These written transaction records included Delivery Tickets, Field Tickets, Carbon Copy Tickets, and a “BFI Pink Slip” in addition to the customer invoices that together would confirm the declared origin of every waste load. Mr. van der Linde originally failed to disclose the existence of these written transaction records. When they were discovered through the lawsuit, Mr. van der Linde admitted to destroying many of these written transaction records even after the judge presiding over the litigation had ordered that all records be preserved. Yet, when recently questioned by Rob Schilling on the Schilling Show, Mr. van der Linde stated "there is nothing ah, including tax returns, every financial hair follicle that I’ve ever been associated with, that hasn’t been willingly enthusiastically turned over to them – end of story.”.

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o RSWA has asked Mr. van der Linde on repeated occasions to identify which of the 18,000 loads from 2005 through 2008 that were deposited at BFI and were recorded as coming from outside the Albemarle/Charlottesville area actually came from inside the Albemarle/Charlottesville area. Mr. van der Linde refuses to give the information. o RSWA has asked Mr. van der Linde on repeated occasions to identify which of the 69,500 tons that were deposited at BFI and were recorded as coming from outside the Albemarle/Charlottesville area actually came from inside Charlottesville and Albemarle. Mr. van der Linde refuses to give the information. o RSWA has asked Mr. van der Linde to acknowledge that RSWA and the citizens of Charlottesville and Albemarle did not receive the funds that they should have received. Mr. van der Linde refuses to give the information. There is a very simple and fair question that should be answered by citizens and talk show hosts who are defending Mr. van der Linde in their statements regarding this litigation: Is it okay for a business to not pay a lawful fee and let the resulting shortfall of revenues fall upon the taxpayer? This case is about right and wrong. Mr. van der Linde knew the process of collecting the information. He said to Mr. McNair in the Hook article that he was “saved” when BFI stopped asking the question. Even if you believe that BFI stopped asking the question, what was he “saved” from? He was “saved” from paying a fee that he knew he had to pay. Not paying the service contribution fees is wrong and unfair to the other haulers who properly declared loads and unfair to the taxpayers of Charlottesville and Albemarle who will have to make up the difference in the revenue from those fees if not collected.

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