Dust-Up in Dallas

The fight is on with Dallas’ new flow control law.

The National Solid Wastes Management Association (NSWMA), Waste Management Inc., Republic Services Inc. and other parties filed a suit against the city in U.S. District Court to stop the city’s new legislation implementing of flow control.

The next step is scheduled for Dec. 15 when there will be a hearing before a federal judge to consider a preliminary injunction against the law, scheduled to take effect Jan. 2.

 The suit calls flow control “an anti-free-enterprise action by the city that is contrary to both state and federal law.”

“It is clear from the history of this ordinance that its sole purpose is to generate revenue, and not to address any health or safety issues or any other problem with the recycling or disposal of commercial waste in the city,” said NSWMA attorney Jim Harris of the law firm Thompson & Knight, in a news release.

In an interview response to the suit, Mary Nix, Dallas director of sanitation, said, “The city has carefully studied the court cases involving flow control laws before enacting its own ordinance. The city believes its ordinance is valid and will defend it vigorously.”

The city would not comment further. Dallas has a section of its website devoted to the flow control issue. As part of it the city says, “Flow control is consistent with the city of Dallas’ objective to conduct its operations in an environmentally sustainable way and to be a leader and innovator in environmental management.”

David Biderman, general counsel for NSWMA, has seen a variety of flow control cases over the years. While in his view the grab for revenue makes it similar to other cases, other aspects make this legal challenge different. “We’re not arguing that it violates the Commerce Clause,” which in the past has made it unconstitutional, he says in an interview.  “Instead, our principal claims involve violations of Dallas franchisee rights under state and federal constitutional provisions, including the impairment of contracts, and our concern about how the law would likely end recycling in Dallas because of the way it’s written.”

He says the law includes all solid waste except for loads that are “solely” recyclable material. That means if there’s even a little residue of waste the load has to go to the city’s McCommas Bluff facility “where it will be landfilled instead of what happens to it now, where it’s processed for recycling,” he says. He calls that a “monumental” obstacle to recycling.

While Dallas has said that it plans to recycle the material and a company, Organic Energy Corp., has proposed building a recycling facility toward that end, Biderman says with the 1.3 million tons Dallas annually brings in to the landfill, “It’s our belief the city council could do that now. They don’t need to get flow control to justify building that facility.”

The flow control ordinance would require commercial trash haulers to dispose of all solid waste at Dallas’ single landfill on the southern edge of the city.

“This ordinance also would rewrite long-term contracts the haulers have with the city that allow them to get the best deal for their customers by using competing landfills and other existing recycling facilities,” said Tom Brown, chairman of the NSWMA Texas chapter. “The city is rewriting the contracts to create a monopoly at the McCommas Bluff landfill so it can address budget shortfalls. The law doesn’t allow the city to renege on a deal just because of tough economic times.”

The law affects commercial and industrial waste; the city already collects residential waste and takes it to the McCommas landfill. The city’s tipping fee at McCommas is $21.50 a ton. Dallas operates the Bachman transfer station at the city’s northern end and will lower the fee there to $36 a ton from $47 a ton, the city said in an e-mail.

Besides NSWMA, other parties filing the complaint were Bluebonnet Waste Control Inc., IESI TX Corp., Republic Waste Services of Texas Ltd., Allied Waste System Inc., Camelt Landfill TX LP, Waste Management of Texas Inc., WM Recycle America LLC and Businesses Against Flow Control.
Biderman says regardless of the outcome of the Dec. 15 hearing, he expects the case to be appealed and to go on for years.