Editor’s note: This is the first of a three-part series examining the effort of Blythe Township and a private entity called FKV LLC to develop the Blythe Recycling And Demolition Site (BRADS), and the battle the neighboring borough of Saint Clair is waging to stop it.
By Stephen J. Pytak
SAINT CLAIR — For the past 12 years, officials from Blythe Township have tried to establish a demolition waste landfill called “BRADS,” and officials in Saint Clair have struggled to prevent it.
The bills keep mounting and the cost involves taxpayer dollars. None of the parties has made all the invoices public so exactly how much has been spent to date in the BRADS battle is hard to estimate. Nevertheless, representatives of the parties have recently provided estimates.
FKV LLC is the private company Blythe Township partnered with to develop the landfill on a 252-acre site along Burma Road. So far FKV spent “in excess of $2.5 million” of its private funds on development costs and legal fees, Steven Field, one of FKV’s principals, said March 10. The township will eventually have to pay for those expenses, according to its 2007 contract with FKV.
The Borough of Saint Clair has so far spent $1,266,846.92 on legal and expert witness fees in its efforts to stop the project, the treasurer for Saint Clair, Carol A. Sutzko, said March 11.
That is taxpayer money.
The Republican-Herald has filed inquiries to determine the accuracy of that figure. Invoices the borough provided Feb. 11 and Feb. 17 show it was at least that much. Recently, officials from Saint Clair shared stacks of invoices with the newspaper — but not all that had been requested — and they discussed their views of the situation.
“I figured between legal fees and expert witnesses, it would be that kind of thing, about $100,000 a year,” Mayor Richard E. Tomko said Feb. 23.
Council President James D. Larish said the borough is getting what it paid for.
“Of course it’s worth it, because it’s not in there. The landfill isn’t in there. You can’t put a price on the personal safety of the citizens of Saint Clair. That’s my personal opinion,” Larish said Feb. 23.
“I think it’s a tremendous amount of money. But I think a majority of our citizens do not want the landfill. Whether they know the amount of money spent or not, I do not know,” Joann Brennan, a council member who was elected in November 2012, said Feb. 23.
Saint Clair is a borough with 2,976 residents, according to www.census.gov, and its 2016 budget is $2,524,604.
RTK request
On Jan. 9, 2003, neighboring Blythe Township entered into an agreement with FKV to develop the landfill. Since then, Saint Clair has made numerous efforts to stop it, fearing the landfill will affect its quality of life, including its air and water. The borough is “within 2 miles” of the BRADS landfill site, according to Edward M. Brennan, solicitor for the borough of Saint Clair.
“The landfill site is approximately 400 acres. The permitted area of the site is approximately 252 acres, of which approximately 110 acres is the permitted disposal area. The site is located in the Little Wolf Creek watershed. The Wolf Creek Reservoir is located in the Wolf Creek Watershed,” Brennan said Feb. 24.
On Feb. 2, the newspaper submitted a Right-To-Know request to the borough for invoices for legal and consulting fees related to the BRADS battle.
On Feb. 11, Roland Price Jr., the borough secretary, Brennan and Sutzko provided a stack of invoices, but not all of the ones requested, citing attorney-client privilege.
The borough started its fight against BRADS in 2004, according to Price and Sutzko.
Between 2004 and the end of 2015 the borough spent $1,190,005.04 in the effort, according to figures included in a three-page summary submitted with the Feb. 11 response.
Legal fees
The sum included $868,749.87 in legal fees.
Breaking that down, Price said that between 2004 and 2015 the borough paid Buchanan, Ingersoll & Rooney, Harrisburg, $745,906.88, Brennan, $119,806.25; and Marshall Dennehey, Scranton, $3,036.74.
“Your request is granted as to the amount of attorney’s fees and costs. It is denied as to copies of the itemized invoices provided by the borough solicitors. A borough solicitor’s itemized invoices are not public records and, therefore, not subject to a Right-To-Know request. See Board of Supervisors of Milford Township v. McGogney, 13 A.3d 569 (2011),” Price said in the Feb. 11 letter.
However, that case law has been overruled by Commonwealth Court and the Pennsylvania Supreme Court, Melissa Melewsky, media law counsel with the Pennsylvania Newspaper Association, said Feb. 13.
“In Levy v. Senate (2014), the PA Supreme Court held that legal invoices are presumptively public under the RTKL, and client names and the description of services therein are not generally exempt under the attorney-client privilege although there may be the rare case when the privilege applies to limit access,” Melewsky said.
On Feb. 16, the newspaper hand-delivered a letter to Price with that information and, again, requested copies of all itemized invoices from borough solicitors related to the BRADS fight.
On Feb. 17, Price replied with a two-page letter and a stack of invoices from its lawyers, but not all of the invoices.
“First, the case law cited by you in your letter does not read precisely as you suggest. The borough solicitor advises that the existing case law was not overturned by the Supreme Court. Rather, the Supreme Court stated as follows: ‘We do not view the Commonwealth Court as setting forth a per se rule that descriptions of legal services are not protected by attorney-client privilege. Rather, we approve the Commonwealth Court and its Special Master Judge Kelley’s careful line-by-line analysis of the content of the invoices ... the relevant question is whether the content of the writing will result in disclosure of information otherwise protected by the attorney-client privilege ... For example, descriptions of legal services that address the client’s motive for seeking counsel, legal advice, strategy or other confidential communications are undeniably protected under the attorney-client privilege,” Price said in the Feb. 17 letter
“The Commonwealth Court, through Judge Kelley, conducted what is called an in-camera review of the invoices to decide on a line-by-line basis whether the attorney-client privilege attaches. It is our position that the descriptions of legal services do contain information which would be protected under the attorney-client privilege. Nonetheless, we do enclose copies of the invoices for the time period in question with the relevant entries redacted,” Price said in the Feb. 17 letter.
“Please keep in mind that these invoices contain information concerning ongoing litigation, which begin basically from the remand by the Environmental Hearing Board to DEP. We do enclose unredacted copies of the invoices from the prior litigation which led up to the remand by the Environmental Hearing Board. In that particular phase of the case, as a prevailing party, Saint Clair did file a petition for counsel fees which is filed of record with the Environmental Hearing Board. Since these have been disclosed in that matter and that part of the litigation is no longer active, you will receive full copies of the invoices,” Price said in the Feb. 17 letter. The date of the remand was March 3, 2014, according to Price.
To date, the borough has not provided all invoices for legal fees spent on its fight against BRADS. And in his Feb. 17 letter, Price did not give summary calculations for the invoices he did provide.
Expert witness fees
According to information Price provided Feb. 11, from 2004 to the end of 2015, the borough spent $321,255.17 in expert witness fees fighting BRADS.
According to Price, the following expert witnesses were paid the following amounts between 2004 and 2015: Alfred Benesch & Co., Pottsville, $98,512; Barton & Loguidice, Camp Hill, $128,100.53; Gannett Fleming, Harrisburg, $55,915.83; Michael Setley, an attorney from Wyomissing, $24,274; A. Roger Greenway, author of the “Risk Management Planning Handbook,” $4,831.63; Samuel H. Baughman II, geologist, Lancaster, $2,912.90; and “Miscellaneous Costs,” $6,708.28.
There were no invoices provided regarding the “Miscellaneous Costs” Price referred to in the Feb. 11 response.
New calculations
On March 11, borough officials added $76,841.88 to the total expenditures the borough spent on BRADS to date.
Price and Sutzko presented new figures, lists of expenditures, both legal and expert witness fees regarding the BRADS battle, by year, starting with 2004 to the present.
They said the total legal and expert witness fees the borough paid per year during the fight are: 2004, $59,000.62; 2005, $9,248.79; 2006, $28,233.20; 2007, $30,510.53; 2008, $53,534.31; 2009, $153,918; 2010, $160,946; 2011, $23,339.87; 2012, $135,441.25; 2013, $420,452.79; 2014, $76,130.15; 2015, $47,195.12; and 2016, $19,422.29.
Adding in $49,474 in undated “additional fees” from Alfred Benesch, Sutzko concluded from 2004 to March 9, the “Costs of BRADS Landfill Opposition To Date” was $1,266,846.92.
“From 2009 to 2016, the figures are right on. Prior to 2009, we put all expenditures — BRADS expenses — into emergency services and administration for budgetary purposes and it was not broken down by line item,” Sutzko said.
It’s been a long battle, but worth the effort, Tomko said.
“The borough can afford it, when you consider the quality of life of our citizens,” Tomko said.