Sink Or Swim: Local Governments Go With The Flow

Michelle Roberts

All garbage is created equal, but - under flow control - some garbage seems to be more equal than others.

To simply define a complex issue, flow control is the practice through which local governments mandate that all waste generated in a particular area is brought to one specific waste processing, disposal or transfer facility.

For some, flow control ensures a constant level of supply and revenue. For others, it creates local monopolies that prevent competition and raise prices. And for many, it's become a moot point.

"According to our members, flow control is obsolete," said Allen Blakey of the National Solid Wastes Management Association (NSWMA). "It's not the way to go anymore. There are other ways to finance facilities and programs."

In the early 1980s, when the waste-to-energy (WTE) boom began, flow control was initiated in part to pay for expensive facilities and to reassure the public of WTE's viability. Communities then began to use flow control to finance other waste facilities. Today, approximately 27 states have flow control ordinances, but not all of them are enforced, according to NSWMA.

The U.S. Supreme Court ruled, in the C&A Carbone Inc. v. Town of Clarkstown decision last May, that the town's flow control laws violated the interstate commerce clause of the Constitution. The decision itself has caused confusion. "Every time a local government seeks bids, it creates winners and losers," explained U.S. environmental attorney Barry Shanoff. "The Supreme Court is saying that if the losers aren't local, there's an interstate commerce problem. Are they unhappy with monopolies or with interstate commerce?"

The responsibility of legislating the flow control issue was then passed to Congress, which received support from many local governments and criticism from some members of the private sector. In the House, H.R. 4683, sponsored by Frank Pallone (D-N.J.), passed easily on October 6. The bill would have "grandfathered" existing flow control authority and allowed for a limited amount of new flow control over residential MSW. The bill also was tied to an interstate waste transport component.

But in the Senate, on the afternoon of October 8, with a deadline fast approaching and some uncertainty gathering around the interstate provision, flow control "went down with the ship," as Blakey put it. The Senate needed to pass the legislation unanimously; however, a single senator, John Chafee (R-R.I.), objected to the interstate part of S. 2345 and the session ended without resolving the flow control issue.

In the next session, the newly elected members of Congress will have to be educated on the issue, according to Shanoff. Since the committees that handle environmental matters will change dramatically, Congress will be back at ground zero on solid waste issues.

The outcome frustrates the public officials whose jurisdictions depend on flow control as a waste management tool and who sought - and almost received - help from Congress. Yet not all local governments support flow control (see "Walking A Tightrope," above).

"I don't see any reason on God's green earth why municipal officials who leaped before they looked on solid waste incineration should be allowed to do any different," said Edward Hallenback Jr., supervisor for the town of Van Buren, N.Y. "If there is a shortfall, it needs to be subsidized directly, openly and honestly, not covertly by making the municipality a monopoly."

Leonard Samansky, the mayor of the village of Saddle Rock, N.Y., and president of the Nassau County Villages Association, agrees. After Carbone, the villages lowered their tip fee from $108 to $76 per ton. "Because of no flow control, we have done exactly what flow control was supposed to do," Samansky said.

New Jersey has been a hotspot in the debate due to its dense population and strict waste regulations. The state's Waste Management Association recently issued a plea to eliminate flow control, which it blames for the state's excessive disposal costs.

Newark Mayor Sharpe James added, "Since New Jersey residents already pay the highest garbage disposal fees of any state in the Northeast, restricting access to neighboring facilities will only place a further burden on the taxpayers."

The industry's major trade associations are attempting to assess the response to the Supreme Court ruling and subsequent congressional activity. In Philadelphia, for instance, the Solid Waste Association of North America sponsored a discussion, "Life After Carbone: The Challenge to Solid Waste Flow Control," which painted a discouraging picture of its future. Meanwhile, NSWMA plans to survey its members to see what effect the decisions have had on operations.

Representatives on both sides of the issue agree that, with or without flow control, the waste industry will have to change with the times to stay competitive.

In light of the Carbone case, many communities are seeking creative ways to maintain the level of success they once achieved under the auspices of flow control.

"The world without flow control is a competitive one," said Herb Flosdorf, executive director of the Lancaster County, Pa., Solid Waste Management Authority. "We've discovered that the whole is greater than the sum of its parts."

Although its flow control ordinance is still in place, Lancaster County has taken a different approach. The county owns a landfill, waste-to-energy plant, transfer station, recycling center and household hazardous waste facility. But with a lower tip fee and a unique rebate program, the county is forming partnerships with hauling companies and becoming "vertically integrated," said Flosdorf.

Before the Supreme Court ruling in May, Lancaster County officials had been preparing themselves for change. In July, the $69 tip fee was lowered to $59; in exchange for competitive price, haulers can bring all their waste to the county's facilities and receive a $6-per-ton dividend.

As a result, the county has "greatly increased the volume of business - and so have the haulers," said Flosdorf, who adds that 52 haulers have assured themselves long-term hauling and disposal capacity by signing the agreements.

The new method is working well, but Flosdorf describes his operation as being "in limbo" since the Carbone decision. "With flow control, we're able to minimize waste and maximize landfill life. Without it, you have to operate competitively by finding more waste and keeping the price lower," he said. Therefore, the county is balancing in a precarious position.

"But in the end, the debate over flow control is good," said Flosdorf. "The country is redesigning the entire solid waste management system, and the process is more painful than the results."