New York counties earn dibs on waste
In April, the U.S. Supreme Court ruled that Oneida and Herkimer counties, N.Y., have the right to require waste haulers to use their public landfill. Now, other counties with landfills across the nation are revising their own flow control plans.
The Oneida-Herkimer Solid Waste Management Authority (OHSWMA) was formed in the 1980s to remedy problems with numerous area landfills that were operating in environmentally hazardous ways. To ensure that the authority had the money to carry out its operations and cover its debt service, the two counties passed laws directing waste to authority-owned facilities. However, in 1995, the United Haulers Association and six private waste firms operating in Oneida and Herkimer counties filed suit against the ordinances, claiming that the laws violated the dormant Commerce Clause of the U.S. Constitution by discriminating against interstate commerce. The plaintiffs said that the laws prevented them from taking their waste to out-of-state facilities with significantly cheaper tipping fees, winning the first legal battle when a federal district court ruled in their favor.
The counties and the authority appealed, and eventually the case went before the Supreme Court. In its decision, the Supreme Court said the counties’ flow control laws do not discriminate against interstate commerce because the facilities to which haulers have to bring their waste are publicly owned and, therefore, treat all private companies equally. The court also ruled that the ordinances’ benefits to the public outweigh any burden they place on the interstate waste hauling business.
OHSWMA Executive Director Hans Arnold says there was no immediate change in OHSWMA’s operations following the decision. “We took actions [after the lawsuit was filed] during the 1990s to make sure that our waste stream was secure and that our system was secure so that we could continue to provide services,” he says. Primarily, OHSWMA acquired contractual obligations from haulers, industries, institutions and municipalities to assure their use of the facility. Therefore, he says, the Supreme Court decision ironically has less immediate impact on OHSWMA than on other communities that were contemplating ordinances to control solid waste flow to their landfills.
A case in Daviess County, Ky., was reopened as a result of the ruling. The U.S. District Court in Owensboro, Ky., struck down a flow control ordinance in Daviess County in 2004, but the Supreme Court ordered the district court to reconsider the case in light of its decision on the New York case. “As a result, the federal judge locally determined and deemed that the ordinance was appropriate,” says Daviess County Judge Executive Reid Haire.
Now, the county is reviewing the ordinance to define the waste that should be taken to the county’s landfill. “There are certain types of waste that we don’t take that [haulers] are exempt from [taking to the county landfill], mainly those that have contaminants,” Haire says. When those are defined, waste haulers will be required to use the county facilities as part of the requirements for obtaining a permit.
The Daviess County ordinance has a two-fold purpose: to give the county the authority to make sure waste is properly disposed of and to protect residents’ investment in the landfill. “We know that we’re going to have ‘X’ number of tons [of waste] from Daviess County, and we can make good financial decisions based on that,” Haire says.
Arnold says local government officials with an interest in flow control should plan carefully and devise flow control rules that fit the particular needs of their communities. “I think the significance of this [decision] is that it really provides a community with the ability to say, ‘This is how we want our solid waste systems [configured] in our local community,’” Arnold says. “We can do that now.”
Ed Brock, with contributions from Stephen Ursery, editor of Waste Age.