Answers to public questions about Broward trash disposal will have to wait as Bergeron v. Waste Management trial is delayed

By Dan Christensen, FloridaBulldog.org

A blockbuster courtroom showdown over a $525-million acquisition made by Waste Management to reestablish its Broward trash disposal monopoly, set to begin this week, has been postponed until next year.

The trial directly pits defendant Waste Management against Bergeron Environmental and Recycling, owned by prominent Davie developer Ron Bergeron. He sued five years ago contending Waste Management destroyed his business when it quietly bought out his then-partner, Sun Recycling. That business was called Sun Bergeron, and it had siphoned away a significant portion of Waste Management’s municipal garbage customers.

Sun Recycling, now known as LGL Recycling, is also a defendant along with principal owner and Palm Beach resident Anthony Lomangino and several other LGL executives.

No jury will sit in judgment. The complex case, estimated to last five weeks, will be decided by Broward Chief Judge Jack Tuter, who for months had hoped to begin the trial this week. The delay was necessary because the Fourth District Court of Appeal has yet to rule on a defense request to quash Tuter’s August order allowing Bergeron to amend the complaint to assert additional claims for punitive damages. A trial date will be reset following that ruling.

Aside from untangling an ugly business dispute in which Bergeron is demanding more than $100 million in damages, the trial is expected to illuminate several matters of public interest. How did the January 2016 deal contribute to sharply higher recycling costs and cutbacks for Broward cities? Why did the Florida Attorney General’s anti-trust regulators fail to enforce – or disclose to Broward’s cities – commitments received from Waste Management in exchange for not opposing its controversial asset purchase of Sun Recycling? Did the Houston-based trash disposal giant commit a crime or fraud by lying to regulators to make the deal happen?

Henry’s secret testimony on Broward trash disposal

Then there are the unanswered questions about the involvement of longtime Broward County Administrator Bertha Henry. In 2019, Henry was subpoenaed by Bergeron’s lawyers and gave a deposition in the case – but only after Waste Management’s lawyers shut down an initial attempt to depose her because a Florida Bulldog reporter showed up.

Broward County is, by law, responsible for operating solid waste disposal facilities to meet the needs of all incorporated and unincorporated areas of the county. Broward also has the stated goal of achieving 75 percent countywide recycling – a goal that’s never been met.

As the county’s top executive, Henry oversees Broward trash disposal contracts and planning for the county’s future role in solid waste disposal. Henry was largely responsible for the adoption of the 2015 “global amendment” – a public but abstruse 59-page agreement with Waste Management and Wheelabrator Environmental Systems regarding disposal of the county’s residential and commercial waste.

But what Henry had to say about all that is oddly secret. The reason: at Waste Management’s request Tuter issued an order that transcripts of depositions taken of public officials in the case are to be kept confidential. The company sought the order during then May 2018 deposition of Southwest Ranches City Attorney Keith Poliakoff.

The court’s “protective” order was part of the extraordinary secrecy that has been a hallmark of the case due to Waste Management’s decision to broadly mark its corporate documents confidential – a move that gave the defense access so long as it agreed to keep the documents secret, yet blocked public access.

Like testimony from Henry, those documents likely would provide detailed information about how the “global amendment” came into being, and how its complex provisions were reached regarding how many tons of municipal waste were required to be delivered for processing and disposal at the plants.

Diverting recycling to landfills

A key result of that agreement was permission for Waste Management to prematurely close its North Broward waste-to-energy plant, adjacent to its Monarch Hill landfill in Pompano Beach. The shutdown set the stage for the diversion of tens of thousands of tons of waste for less costly disposal by dumping them into Waste Management’s landfills that occurred after SunBergeron’s municipal contracts expired in 2018.

The North Broward waste-to-energy plant was one of two such incinerators built in the county by Wheelabrator when it was owned by Waste Management in the late 1980s. The second is in Fort Lauderdale at 4400 S. State Road 7. Their $700-million cost was largely financed by the sale of county-issued industrial revenue bonds, according to old newspaper accounts.

Today, Wheelabrator has disposal agreements with most of the cities that once contracted with Sun Bergeron, but its remaining Fort Lauderdale plant has been at capacity for years. Under the terms of the global amendment, trash that Wheelabrator can’t handle goes to Waste Management’s landfills.

A new group of public officials with a not-so-new idea wants to reform the system. The Solid Waste Working Group, representing each of the county’s 31 cities and chaired by Cooper City Mayor Greg Ross, wants to build a new waste-to-energy incinerator. The still-evolving plan to do that, Ross said in an interview last week, is to create an independent district that can’t increase taxes but can impose assessments on residents and businesses countywide to pay for it.

The new incinerator would be owned by the new yet-to-be-named district.

“We’re moving very quickly ahead and we’ve finally come to an agreement on a governing structure as well as to terms of the ILA [Interlocal Agreement] between the cities,” Ross said. “We are just at the point where the blanks are being filled in by the attorneys.”