Court Sides with ABC Disposal, But Recycling Pickup Will Continue

NEW BEDFORD — The City of New Bedford was informed Tuesday that its injunction to force ABC Disposal to continue to pick up recyclables after July 1 was denied, but the company has still agreed to provide the service beyond its self-imposed end date.

"While it is unfortunate that the City was forced to take legal action to ensure that ABC lived up to its contractual obligations to the City's residents, the result is that ABC has retracted its initial threat to cease collection of recyclable materials," Mayor Jon Mitchell said in a statement.

However, ABC Disposal CEO Mike Camara said his company still will not absorb the additional costs associated with recycling following the institution of China's National Sword Policy.

"No, we're going to continue to bill them for the extra charges that we're incurring," Camara told WBSM News, noting ABC began charging the City the extra cost in November 2017. "So that won't stop, and we expect to collect those funds."

As for the court's decision, Camara said his family was happy with the ruling not to issue an injunction.

"Obviously, we're elated," Camara said. "We just wish we didn't have to go through this at all, but since we did, we felt strongly that we had a good position, and obviously the court agreed with our position."

The City and ABC are currently in year five of a 10-year contract for ABC to pick up solid waste and recyclables at a fixed price. When China instituted the National Sword Policy, essentially restricting what recyclables it would allow into the country, ABC Disposal informed the City of New Bedford as well as the Towns of Mattapoisett, Fairhaven, Rochester and Plymouth that it risked financial insolvency if it absorbed additional costs of collecting and disposing of recyclables without the China option.

The letter said it would need to pass the additional costs onto the communities it served to remain in business.

The complete letter can be read here: ABC letter April 12 2018

The communities requested a review of ABC's financial information to ensure that this was true before agreeing to any increased rates, and Mayor Mitchell stated repeatedly on WBSM that ABC at first did not comply with that requested, and when it did, was slow to provide the requested information. As a result, the Town of Plymouth outright cancelled its contract with ABC, and left it up to residents to contract directly with a hauler for pickup service.

The City of New Bedford filed a lawsuit against ABC Disposal May 21 in Bristol County Superior Court, claiming the company has charged the City more than $189,000 above the contracted rate since November. The suit also aimed to keep the company from increasing its rates from what is currently contracted.

Camara responded to New Bedford's lawsuit on WBSM, calling it "not fair."

In the decision handed down Tuesday, the court denied the City's request for a preliminary injunction, stating instead that the City was actually seeking a mandatory injunction, which was also denied because there has not yet been a breach of contract between the two parties.

Read the decision here: Decision__abc

Instead, the court said the City was trying to "claim an anticipatory breach of contract by ABC predicated on statements in electronic mail correspondences and those made at other meetings which the City construes as evidence of ABC's break of the waste and recyclable contract."

The City pointed to statements made by Michael Camara, Director of ABC Disposal, in a letter to Mayor Jon Mitchell dated April 12, 2018, which stated: "This letter serves as formal notice that ABC...may not be financially able to continue to provide curbside collection...Beginning July 1, 2018 without contributions from the City supporting new unanticipated costs."

The decision then pointed to an email sent to Camara by Kenneth Blanchard, Director of the City's Department of Facilities and Fleet Management, after Camara spoke to the Plymouth Board of Selectman about pickup in their town.

"I heard you tell Plymouth...that you would not continue to pick up their recyclables unless they paid ABC more money. What about New Bedford? Will you continue to collect our recyclables beyond June 30 within the current contract terms?" Blanchard wrote.

Camara responded: "Yes we will as long as we all agree to continue to work together on a financial solution."

According to the decision, "The court finds that those statements, while elucidating some uncertainty in the performance of services, are insufficient to establish an anticipatory breach of the contract."

"The court finds that Camara's words, while they are suggestive of a possible difficulty of ABC in performance, those words in no way assert a firm conviction or intent to cease performing services under the current contract necessary for finding of anticipatory repudiation of the contract," the decision read.

WBSM News has also obtained emails sent from Camara to the Town of Mattapoisett and the Town of Fairhaven, indicating that "my family & I do plan to continue collecting recyclables along with the trash...on July 1, 2018. I heard rumors that there was a concern about this." The emails were sent on May 21, the same day the City of New Bedford filed its suit against ABC Disposal.

Camara told WBSM News Tuesday that ABC is expecting the City of New Bedford to send some dates soon for another meeting "to continue to talk about this issue." He said residents should not expect any issues or delays with their trash or recycling pickup.

"We would never let them down," Camara said. "We love this city, and we're looking forward to continue to provide this kind of service for a long time."

The mayor, too, is hoping the issue can be resolved going forward, even without the injunction.

"I am grateful for the swift and skillful effort of the City's legal team to forestall the potential disruption of an important municipal service," Mitchell said. "While it is my hope that the City's relationship with ABC may continue on a more certain path, it will be incumbent upon the City to maintain the pending suit to ensure its interests are protected."