January/February 1994
Local flow control ordinances have affected some communities’ waste disposal practices for years, and now they’re threatening recycling options. Here’s a look at how the courts and government are attempting to resolve flow control concerns.
By Clare Hessler
Clare Hessler is director of state and local programs for the Institute of Scrap Recycling Industries (ISRI) (Washington, D.C.).
What was until recently a smattering of isolated, local skirmishes over flow control has grown into something of a major national concern--at least for those local government officials, landfill and incinerator operators, and waste haulers across the country who are involved. And these days, it's also shaking up more than a few private-sector recyclers who see flow control efforts threatening their access to scrap materials.
Flow control--the practice by local governments of directing the movement of waste (and now, in some instances, recyclables) within their jurisdictions--was ferociously debated in state legislatures and the courts last year. As 1994 unwinds, the temperature of the discussion seems likely to rise since the issue is before the Supreme Court, the Environmental Protection Agency (EPA), and Congress.
When it comes to flow control over waste destined for disposal, proponents typically argue that it is the responsibility of local governments to manage solid waste not only for health and safety reasons, but also in order to comply with demanding state and federal environmental laws. Because these requirements have forced governments or their contractors to build new, expensive, state-of-the-art disposal facilities, they say, they need a constant flow of material to keep such operations running economically. In addition, some proponents maintain that flow control enables local government officials to protect their taxpayers from excessively priced disposal services.
On the other side are those who question whether local governments have--or even should have--the authority to exercise flow control. At a congressional hearing last fall, for instance, Larry Knutson, president of Knutson Services Inc., a small solid waste hauling firm in Rosemount, Minn., conceded that local governments must regulate waste disposal for the welfare of the community, but denied their right to monopolize provision of services. "Local government must regulate the type and quality of waste services, but not shunt aside everyone who can perform those services," he said, adding the analogy that government has a role in protecting public health and safety, but this in no way implies that government must limit the number of hospitals, or flow patients to particular doctors, nurses, and clinics."
Courts Step In
While courts usually upheld Municipal solid waste flow control measures in the 19sos, in more recent years several have overturned such ordinances on the grounds that they disrupt interstate trade. Further, the 8th U.S. Circuit Court of Appeals in Minneapolis ruled in Waste Systems Corp. vs. County of Martin that a local flow control law was an economic "protectionist” measure and that the waste hauler affected could seek damages under federal civil rights law.
Now the U.S. Supreme Court is getting involved, and has agreed to hear its first-ever flow control case, C&A Carbone Inc. vs. Clarkstown, N.Y. Some background to the case:In 1990, Clarkstown, N.Y., passed an ordinance requiring that all nonrecyclable waste in the town be handled by Clarkstown Recycling Center, which the town guaranteed a minimum of 120,000 tons of waste annually. Like many other municipalities that pay for waste disposal on a per-ton basis, the ordinance was part of an effort to ensure Clarkstown would not have to pay penalties to the contractor if the town failed to supply the minimum amount of waste to the facility.
C&A Carbone, a local waste hauler that ships some of the material it collects within the town out of state for disposal, challenged the flow control ordinance in federal district court. The court upended the ordinance, ruling that it "constitutes an unreasonable, discriminatory, and impermissible burden on interstate commerce."
At the same time, however, Clarkstown sued C&A Carbone in state court for violating the ordinance, and the state court ruled in favor of Clarkstown, agreeing with the town that the ordinance did not discriminate against interstate commerce because it treated all waste the same, regardless of origin. A state appellate court subsequently upheld the trial court's ruling.
The U.S. Supreme Court has already heard oral arguments in the case and its ruling, which could have broad impact on flow control ordinances, is expected this year.
Recyclables Enter the Fray
In a case that strikes much closer to the heart of recyclers, the California Supreme Court is mulling over a dispute that may determine the amount of control local authorities can extend over not only waste, but also recyclable materials,
In March 1990, the city of Rancho Mirage, Calif., signed a contract giving Waste Management of the Desert Inc. the exclusive right to collect all recyclables within the city, encompassing commercial materials as well as those set out at curbside. Another local private-sector recycler, Palm Springs Recycling Center, already had contracts with several businesses in the city to collect their recyclables and refused a request by Rancho Mirage and Waste Management to suspend its scrap collecting operations. The city and its contractor subsequently filed suit in California's Superior Court alleging that Palm Springs Recycling Center was interfering with their contract and was in violation of a city ordinance requiring that specified recyclable materials be collected only by the city or by an entity to which it had awarded a contract. Palm Springs Recycling Center then filed a countersuit.
The trial court ruled in favor of the city and Waste Management, but California's 4th District Court of Appeals reversed the decision in September 1992, declaring the practice by the city and its franchised hauler of trying to monopolize the flow of all recyclable material within the city illegal and unconstitutional. According to the decision, California's Integrated Waste Management Act of 1989-wNch the city and its waste haulers cited as the basis for their authority-permits a governing body to determine how solid waste may be handled within its borders, but pertains only to "discarded" materials since "nothing becomes solid waste ... until it has been discarded." The court emphasized that waste and recyclables are owned by an individual or firm until they are sold, given away, set on a curb, or otherwise discarded, and said that nothing within the Integrated Waste Management Act "limits the right of any person to donate, sell, or otherwise dispose of his or her recyclable materials."
Labeling recyclable materials as private property a lowed the court to take the next step in protecting private recycling, affirming that because "it is lawful for a business to segregate its recyclable materials and dispose of them by sale or otherwise, it follows that it is lawful for a business person to purchase such material[s] and to collect and convey them."
The court also declared that "neither the state nor its subdivisions may use their Police powers for the purpose of obtaining an economic advantage at the expense of private property ownership rights or of one's right to engage in lawful employment or convenience." In addition, the ruling noted that the California Legislature, in passing the Integrated Waste Management Act, did not consider the recycling business to be so invested with a public interest as to allow 4 state-sanctioned monopoly.
A Legislative Fix?
As the ruckus over flow control and the ownership of recyclable materials is being addressed by courts around the country, Congress is also getting into the act. While municipal solid waste has traditionally been regulated by state and local governments, many local officials disturbed by recent court decisions are pressing the federal government to clarify and solidify the authority of state and local governments to determine the disposition of waste through flow control laws.
In response, Congress directed the EPA in 1992 to study flow control issues, and the agency is expected to deliver a report of its findings by September. In addition, Congress is examining the issues on its own. In fact, Rep. Al Swift (D-Wash.), chairman of the Subcommittee on Transportation and Hazardous Materials of the House Committee on Energy and Commerce, recently said he expects Congress to act on the matter early in 1994.
While this could come about as part of a larger national recycling bill or in legislation dealing with interstate transport of waste, two bills were introduced last year--one sponsored by Rep. David Minge (D-Minn.) and the other by Rep. Alex McMillan (R-N.C.)--that would specifically authorize state and local governments to control the flow of municipal solid waste but would exempt materials separated for recycling.
At a subcommittee hearing on the measures, ReMA Executive Director Herschel Cutler spoke in favor of the recycling exemption, cautioning that it would be improper for flow control to be extended to cover recyclable materials against the will of their legal owner. "The owner of recyclable materials has the constitutionally protected right to do whatever he or she chooses with that property, including selling, donating, or disposing of the material," he said. "Flow control over recyclables that have not been voluntarily surrendered strips businesses and individual citizens of their right to participate in a free market system and violates the Constitution's prohibition of taking property without just compensation."
Others who testified at the hearing also directed considerable attention to protecting recyclables from flow control. Steven Goldstein, a project director representing Snohomish County, Wash., for one, spoke in favor of flow control legislation, but echoed Cutler's viewpoint: "We believe that separated recyclables should not be covered [by flow control laws]. After recyclables are separated, they are commodities, they are in demand. In short, they are not waste." And one of the legislators, McMillan, noted that he owns a commercial business and appreciates the value of separating corrugated cardboard from solid waste and selling it to recover operating costs.
State Legislatures Remain Active
While the states may be hoping Congress and the U.S. Supreme Court will settle flow control questions in a satisfactory manner, few are sitting idly by. Last year, Florida, for example, passed a comprehensive solid waste bill that includes a provision empowering local governments to establish flow control over municipal solid waste. Nevertheless, the measure prohibits establishment of flow control over "source-separated recovered materials," defined as recyclable materials that have been separated or diverted from the solid waste stream.
Meanwhile, the Ohio Legislature passed a bill last year that establishes detailed procedures, including provision of public notification and opportunity for comment, that must be followed by local waste districts that seek to designate specific privately operating facilities to handle all or certain local wastes. For private-sector recyclers, the bill was an improvement over a 1990 state law that gave the waste districts such flow control power, but failed to resolve key questions over designation of publicly owned facilities to monopolize certain services, powers the districts have in monitoring private recycling and the limits to the kinds of materials the districts are empowered to control. Still, most districts in Ohio have not yet attempted to control the flow of privately handled scrap materials.
California also set out to resolve now control questions last year, and two flow control bills are still on the table in the state Assembly Natural Resources Committee, though they will die if not acted upon by the end of the session in mid-January. One of these measures would revise the state's definition of solid waste to eliminate the term "discarded"-thus removing the existing distinction for recyclables in the law and, hence, the protection from flow control provided in the Rancho Mirage decision. The other is an opposing bill that would protect the rights of the owners of recyclable materials from flow control ordinances much like the law enacted in Florida.
Among the other states that examined flow control last year were Alabama, Maryland, Mississippi, New York, and Texas, none of which was able to pass such legislation before their sessions closed.
Looking ahead, there is little doubt that there will be a flurry of flow control measures introduced in the coming months as states begin new legislative sessions. And 1994 is sure to be an active year on other flow control fronts. While there appears to be no national effort to widen flow control to cover recyclables, and considerable enthusiasm for the contrary, many flow control decisions remain to be made--perhaps as adjuncts to other, broader solid waste issues--and most seem to lie not far down the road. •
Local flow control ordinances have affected some communities’ waste disposal practices for years, and now they’re threatening recycling options. Here’s a look at how the courts and government are attempting to resolve flow control concerns.