Home Environment Van der linde Recycling responds to RSWA lawsuit

Van der linde Recycling responds to RSWA lawsuit

November 5, 2009

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Following is the complete text of Peter Van der linde’s November 2, 2009 memorandum to Charlottesville City Council, refuting charges made by the Rivanna Solid Waste Authority in their lawsuit against Van der linde Recycling:

MEMORANDUM #1

TO: CHARLOTTESVILLE CITY COUNCIL

FROM: PETER VAN DER LINDE

SUBJECT: FACTS SURROUNDING RSWA’S SUIT AGAINST PETER VAN DER LINDE

DATE: NOVEMBER 2, 2009

Relevant legal parameters concerning collection of RSWA service contribution fees:

“Pursuant to the Agreement (with RSWA), BFI employees are instructed (by RSWA, not van der Linde) to inquire of all haulers, users, or customers who bring MSW (trash) to the transfer station located on 250 East near Zion Crossroads from where the MSW came”.

Excerpted from Contract between RSWA and BFI – COMPLAINT, RSWA Vs Peter van der Linde et al (No 23, pg. 5)

“The purpose of the inquiry is so BFI can determine if the hauler, user, or customer should be charged the service contribution fee”.

Excerpted from Contract between RSWA and BFI+ – COMPLAINT, RSWA Vs. Peter van der Linde et al (No. 24. Pg. 5)

“RSWA admits that it is the duty of BFI (not van der Linde) to inquire of the Corporate Defendants’ drivers about the geographical origin of each load of trash deposited at the transfer station”.

Excerpted from the lawsuit DEMURRER, RSWA Vs Peter van der Linde et al (Case No. 07-376, pg. 2)

(Pg. 1 of 8)

“…we (RSWA) met with BFI on October 17, 2005 and learned from BFI… they had not previously provided in their accounting the originating City or County of waste material on a truck by truck basis to differentiate RSWA waste versus wastes from other regions…”

Excerpted from a letter from Mr. Frederick to Peter van der Linde dated 10/11/05.

“BFI further acknowledged that their 1997 contract with RSWA requires that they assign all loads from companies other than BFI that originate in the RSWA to an RSWA account subject to RSWA tipping fees”.

Excerpted from a letter from Mr. Frederick to Peter van der Linde dated 10/11/05.

“RSWA documents revealed that, In 2005, seven years after the RSWA inked a deal with a firm called BFI to send area waste to BFI waste station in Zion Crossroads, RSWA officials learned that BFI employees were completely unaware of their duty to collect a $16 service contribution fee for the Authority (RSWA) every time in-district (Charlottesville/Albemarle) waste crossed company (BFI) scales”.

Excerpted RSWA documents and widely reported in the press.

Excerpted:+ On the heels of which Mr. Lonnie Wood, RSWA finance director, told BFI officials in a November, 2005 letter that, “Proper charging and accounting of customers had been inaccurately managed”.

Excerpted:+ RSWA’s Mr. Wood charged BFI officials in the same letter, “There has been and continues to be a breach of contract (by BFI not van der Linde)”.

Excerpted:+ RSWA’s Mr. Wood further stated that “BFI kept customer accounts with area haulers, including van der Linde, in violation of its
RSWA contract”.+ When BFI “kept customer accounts” it means in doing so RSWA was denied all potential service contribution fees owed.

(Pg. 2 of 8)

The financial incentives driving BFI to “keep customer accounts” on BFI’s side of the ledger and not RSWA’s are overviewed as per attached hand deliverd letters to RSWA’s Mr. Frederick and Mr. Gaffney.+ To be documented in greater detail in next month’s MEMORANDUM #2.

Excerpted:+ RSWA’s Mr. Wood concluded in his letter that RSWA was “prepared to take legal action” (against BFI, not van der Linde)”.

There is no dispute that BFI ignored their trash origin inquiry and accounting obligations to RSWA for an 8 year period (1997 – fall lf 2005) at a cost to RSWA of perhaps 10’s of millions of dollars.

Excerpted: RSWA’s Mr. Frederick, in a letter to Mr. van der Linde dated October 11, 2005, provided the following reassurance, “BFI agreed at our (RSWA’s) October 17, 2005 meeting to set up accounting not later than October 24, 2005 by which they (BFI) will establish the City and County of origin for each future load received…”.

Excerpted: Mr. Frederick, in the same letter to Mr. van der Linde dated 10/11/05, expressed his willingness to accept “additional information on the basis of knowledge we (RSWA) now have that BFI was not keeping records on the originating City or County of each delivered load…”

Excerpted: Continuing RSWA’s reassurances, Mr. Frederick continued in his October 11, 2005 letter to Mr. van der Linde that, “We (RSWA, not van der Linde) are now in the process of following up with BFI on their commitment to improve their records and we expect them to honor their contract commitment to make these determinations going forward”, i.e. it was clearly not Mr. van der Linde’s legal or moral obligatin to formulate, implement, monitor, manage or enforce the trash origin inquiry and accounting service contribution fee system between RSWA and BFI.

(Pg. 3 of 8)

The only critical flaw in RSWA’s new trash origin inquiry and accountability plan with BFI was the absence of enforcement provisions, critical because of BFI’s historic track record of abject neglect of BFI’s obligaion to inquire and report BFI’s trash origin findings to RSWA

Excerpted: Mr. Frederick’s “we (RSWA) expect them to honor their (BFI’s) contract commitment to make these determinations going forward” and “their (BFI’s) commitment to improve their (BFI’s) records” proved to be an insufficient enforcement plan leaving the door wide open for continued pattern of noninquiry from BFI. BFI reverted back to its old ways of not inquiring about the origin of the trash almost immediately, except this time BFI opted to inquire occasionally instead of not at all.

Acutely aware of RSWA’s pattern of blame van der Linde and sanctify BFI agenda van der Linde hired a private investigator to camp out in the woods a mere 10 feet the BFI truck scales and record, video and log every syllable of exchange between BFI and their haulers over a six week period.+ As anyone familiar with BFI’s scales can attest, at the time the transmission from BFI’s scale master squawk box on BFI’s scales was almost deafening, i.e. there is no doubt about BFI’s absence of inquiry.+ BFI has since turned the volume way down presumably after the recording sessions were disclosed in the press in 2008.

It is critical to note that van der Linde’s audio/video/logging documentation, of BFI’s continued neglect of trash origin inquiry was carried out in July and August, 2007 almost 2 years after Mr. Frederick had provided +Mr. van der Linde with written assurances that RSWA had implemented a system of origin inquiry aqnd accounting of service contribution fees with BFI, as contractually required by RSWA (see pg. 1, par. 1).

(Pg. 4 of 8)

After each week of taping hundreds of hauler’s exchange with BFI’s scale master as they entered BFI’s facility the investigative team would report their findings to Mr. van der Linde that only occasionally did BFI inquire as to the origin of the trash, thinking that was sufficient proof. Mr. van der Linde, anticipating that RSWA would claim that BFI had just temporarily ceased the required inquiries, contracted for additional weeks of survelliance so as to leave zero doubt with RSWA that BFI’s “commitment to improve their records” and begin to “honor their contract commitment” to RSWA concerning their (BFI’s) contractually required origin inquiry had still not been met.

It was just reported in the press that RSWA attorneys’claim that, “the recordings are inconclusive because they are of poor quality and difficult to understand”+ Experienced technicians used the most state of the art audio/video available at close range (10’ from BFI scales).+ Daily sound checks were conducted along with a careful review of the finished product to ensure high fidelity. CD’s are available upon request.

The audio/video and logs document with absolute certainty that, with few exceptions, BFI had continued their traditional pattern of failing to inquire about the geographical origin of the trash of hundreds of different drivers and haulers.

Equally compelling documentation is the following concerning BFI’s neglect of inquiring as to the origin of trash entereing BFI’s waste facility under RSWA’s “new system of accountability”:

Dozens of other haulers will provide testimony to the JURY corroborating that BFI either never or only occasionally inquired about the origin of their trash.

(Pg. 5 of 8)

Three BFI staffers (so far) will confim that little changed regarding BFI’ s dereliction of duty to ask the trash origin inquiry question after Mr. Frederick’s efforts in the fall of 2005 to implement a system of trash origin inquiry and accountability.

Many haulers, known to haul either partly or entirely from the RSWA district never even had RSWA accounts.+ That’s what RSWA’s finance director, Mr. Wood meant when he stated, “BFI kept customer accounts with area haulers, including van der Linde, in violation of its RSWA contract”.+ See attached, hand delivered letters to Tom Frederick and Mike Gaffney for financial incentives and rewards to BFI for not inqiring as to the origin of the trash. (Next month’s MEMORANDUM #2 will delve into RSWA fee analysis).

RSWA has made much of the fact that Mr. van der Linde knew that BFI was not meeting its contractual and financial obligations to RSWA and did nothing about it.+ Initially this was to Mr. van der Linde’s financial gain & later to Mr. van der Linde’s loss.

Next month’s MEMORANDUM #2 will delve into fee analysis.

Simply stated, it was not then and it is not now Mr. van der Linde’s (or any other hauler’s+ for that matter) responsibility to formulate, implement, monitor, manage and enforce the contractual obligations between BFI and RSWA which since 1997 have been and continue to be, however violated by BFI, as follows:

Excerpted: “Pursuant to the Agreement (with RSWA) , BFI employees are instructed (by RSWA, not van der Linde) to inquire of all haulers, users, or customers who bring MSW (trash) to the transfer station located on 250 East near Zion Crossrooads from where the MSW came”.

Excerpted: “The purpose of the inquiry is so BFI can determine if the hauler, user, or customer should be charged the service contribution fee”.

(Pg. 6 of 8)

Excerpted: “RSWA admis that it is the duty of BFI (not van der Linde) to inquire of the Corporate Defendants’ drivers about the geographical origin of each load of trash deposited at the transfer station”.

As an aside there is a much publicized RSWA accusation that Mr. van der Linde tried to side step paying RSWA service contribuion fees as a consequuence of “losing” a previous lawsuite against RSWA.+ It is a matter of public record that Mr. van der Linde sued RSWA not because he was against RSWA’s service contribuion, but because RSWA granted a fee exempton to BFI’s hauling company (nothing to do with BFI’s waste facility).

Excerpted: The 1997 Contract bwtween RSWA and BFI states, “Authority (RSWA) shall be responsible for submitting statements to and collecting (fees) from ALL Rivanna Service Area haulers and other users who deliver MSW (trash) to the Disposal Facility”.+ In October, 2005 Mr. van der Linde pleaded in a letter to Mr. Frederick asking for relief from RSWA’s service contribution fee exemption to BFI’s hauling company and provided written taped conversation transcripts of BFI’s trash hauling marketing personnel using RSWA’s hauler fee exemption to gainunfair rate advantage of Mr. van der Linde’s hauling company, customers.+ Tapes are available upon request.

The written record in letters from Mr. van der Linde to Mr. Frederick clearly shows that Mr. van der Linde never had anything against RSWA’s contribution fee as long as BFI’s hauling company did not put Mr. van der Linde’s hauling company (Container Rentals) out+ of business due to a special hauler fee exemption from RSWA to BFI.

Ironically Mr. van der Linde did not lose the suit against RSWA.+ The court’s opinion was that Mr. van der Linde should “work it out politically” (Mr. van der Linde is still not sure exacty what “work it out politically” meant).

(Pg. 7 of 8)

RSWA’s web site reported a $202,471 legal bill for a recent 90 day period. +Assuming RSWA’s suit against Mr. van der Linde is the only current RSWA legal action, that translates into $3,375 spent every business day.

A cash burn rate of $3,375 per day extrapolates (when RSWA Vs. van der Linde legal financial infrno concludes in court in mid 2011 earliest, now that RSWA’s RICO charges against Mr. van der Linde have pushed the case up to Federal court) to $3,000,000+ in RSWA legal coss, in pursuit of an alleged $1 million that BFI is clearly responsible for.

A 3 ½ year (1/1/08 – 6/30/11) RSWA legal expendiure of $3,000.000+, especially in the context of a not guilty finding by the JURY, at a time of acute, local, budget deficit challenges, does not seem like a prudent use of taxpayers funds.

Excerpted: As RSWA finance director, Mr. Wood, succinctly stated, “There has been and continues to be a breach of contract (by BFI)”. Mr. Wood’s conclusion that RSWA was “prepared to take legal action (against BFI, not van der Linde)” has been eclipsed by the unending legal efforts of RSWA to put van der Linde Recycling out of business.+ Memorandum #3 will document RSWA’s hidden agenda.

Mr. van der Linde appreciates your consideration of the information presented in this, and subsequent, monthly MEMORANDUMS to the Charlottesville City Council.

It remains Mr. van der Linde’s hope that RSWA and Mr. van der Linde will redirect their collective energy and monetary resources toward exploring ways to combine their strengths to provide the maximum benefit to the citizens of Charlottesville and Albemarle.

(Pg. 8 of 8)