Waste Rolls on Capitol Hill

John T. Aquino

Solid waste professionals who looked for crucial legislation to be passed in 2000 might have better luck next year.

With Fresh Kills landfill in Staten Island, N.Y., set to close at the end of 2001 and legislators representing Pennsylvania and Virginia - the No. 1 and No. 2 states for waste imports - vowing not to let more New York waste into their states, prospects for legislation in the 106th U.S. Congress limiting the interstate transportation of solid waste and reinstating flow control seemed at least possible, if not probable, in 1999.

However, Congress ended its term in October 2000 with no such legislation. This result was affected, in varying degrees, by the death of the Senate committee chairman, the retirement of the U.S. House committee chairman and the reluctance of New York to join in a consensus. These and other issues were highlights of a congressional year that produced few laws affecting the solid waste industry, but raised the prospect of others for the 107th Congress.

Interstate and Flow Control Two interstate waste-related bills were submitted to the House and three to the Senate in the 2000 Congress. The "Solid Waste Interstate Transportation and Local Authority Act of 1999," H.R. 1190, was introduced in March by U.S. Reps. Jim Greenwood, R-Pa., and Rep. Ron Klink, R-Pa. The bill would restore flow control authority to counties that had it before 1994, as well as allow governors to limit solid waste imports if they exceeded a certain amount. H.R. 378, introduced by Rep. Paul E. Gilmore, R-Ohio, in January 1999, would authorize states to regulate certain solid wastes. Both bills were referred to the House Committee on Commerce.

In the Senate, Sen. Arlen Spector, R-Pa., introduced S. 663 in March 1999, the "Solid Waste Interstate Transportation and Local Authority Act of 1999," which was identical to H.R. 1190. And in April, Sens. George Voinovich, R-Ohio, and Evan Bayh, D-Ind., introduced S. 872, the "Municipal Solid Waste Interstate Transportation and Local Authority Act of 1999, " which was similar to H.R. 1190. Also in March, Sen. Charles Robb, D-Va., a sponsor of the other two bills, and Sen. John Warner, D-Va., introduced S. 533, the "Interstate Transportation of Municipal Solid Waste Control Act," which would allow certain states to cap the waste they imported but, unlike the other bills, did not include a flow-control provision (by which municipalities can control the "flow" of waste, directing it to designated facilities).

A hearing on the interstate bills was held before the Senate Environment and Public Works Committee in June 1999. Members sent mixed signals about their views on restoring flow control, which the Supreme Court held to be an unconstitutional violation of the Commerce Clause in C&A Carbone v. Town of Clakstown, 511 U.S. 383 (1994), just as it did for restrictions on interstate waste transport in Philadelphia v. New Jersey, 425 U.S. 910 (1976). Congress can, however, under the Commerce Clause, restrict the movement of commerce between states.

On October 24, 1999, Sen. John Chafee, R-R.I., the Senate committee chairman, died. Sen. Robert Smith, R-N.H., who had been chairman of the Environment and Public Works Subcommittee, replaced Chafee, and from that date there was no Senate activity on the bills.

Insiders note that Smith has been an opponent to flow control. He and Chafee pushed legislation through the Senate in 1995, but it died in the House. Smith felt foolish when the dire consequences that he had been warned of - how flow control's absence would destroy municipal bond ratings - did not come to pass.

"[P]arties continued to operate in a free market in this regard, and, simply put, the sky did not fall," Smith said. Smith's opposition to flow control has become so strong that he refused to hold the hearing in his subcommittee, forcing it into the full committee.

Although the bills received no further consideration in the Senate, the issue intensified, especially in states like Virginia. There, the catalyst was the February 3 decision by the U.S. District Court for the Eastern District of Virginia in Waste Mgmt. Holdings Inc. v. Gilmore, 87 F. Supp. 2d 536 (E.D. Va., 2000), which followed the precedent of Philadelphia v. New Jersey and invalidated Virginia's interstate waste statutes. This decision claimed they unconstitutionally interfered with interstate commerce by discriminating against out-of-state waste - which was in violation of the Commerce Clause - without demonstrating nondiscriminatory alternatives.

In the House, Commerce Committee Chairman Thomas Bliley, R-Va., also did not move the legislation forward. Bliley, who decided not to run for his 11th re-election in the fall, insisted that there was no point in having the committee consider the bills unless he received a consensus from the governors of 16 affected states. The states were nearing an agreement at the end of 1999 when New York, the largest exporter of solid waste, pulled out.

On April 20, 2000, the governors of Pennsylvania, New Jersey, Indiana, Ohio and Michigan wrote Bliley, stating that a consensus was impossible, "given that New York has no incentive to participate or come to an agreement without any visible action by Congress."

Virginia Governor James Gilmore, R, joined the other five governors in a May 1 letter. The impetus for the pleas was the February 3 Waste Mgmt. Holdings Inc. v. Gilmore decision. But Bliley still insisted that it would be a waste of time for the committee to consider the matter without a consensus of the states most heavily involved or affected. Why begin, he asked, when New York legislators would block any legislation?

In addition to the particular positions of Smith and Bliley, there was no overriding momentum pushing the bills forward. Insiders noted that Speaker of the House Denny Hastert, R-Ill., is from Chicago and faced the certain prospect of having Chicago waste spread throughout the state if waste borders were closed. House Minority Leader Dick Gephart, D-Mo., represents one of the largest exporters of solid waste.

"The leadership in the House was not in a position to pursue this," says Bill Sells of the Environmental Industry Associations (EIA), Washington, D.C.

House candidates also used the issue in their campaigns. Jon Ann Davis, R, campaigning for the seat representing Virginia's 1st district, promised to fight for legislation that would give the states the right to regulate interstate waste shipments. In Pennsylvania in October, Democrat Pat Casey, challenging Rep. Don Sherwood, R, for the seat in the 10th district, campaigned with U.S. Environmental Protection Agency (EPA) Administrator Carol Browner and called for "federal legislation that would give states and local governments more authority to place limits on trash entering from out of state."

The EIA, which represents the private solid waste management industry, has long lobbied against restrictions on interstate waste transport. Interestingly, in June 2000, the Solid Waste Association of North America (SWANA), representing the public solid waste management sector, said the U.S. government should not restrict the movement of waste between U.S. states and Canadian provinces.

The SWANA policy calls for state and provincial governments to develop plans that outline details, including size, type, capacity and location of waste and recycling transfer facilities, as well as develop economic development plans and a permitting process. SWANA says the state or province should delegate solid waste authority to local governments, which should negotiate with owners and operators to establish local zoning and land-use requirements.

Contract Debarment The Clinton Administration unveiled a procurement regulation or the contractor responsibility rule, also referred to as "contract debarment" by its opponents, in June 2000. Through this regulation, the federal government could deny contracts to firms that have been cited for violations, including high injury and illness, by agencies such as the Occupational Safety and Health Administration (OSHA), EPA and National Labor Relations Board.

Opponents of the bill claimed that it would give unions the upper hand in negotiations, as a union-filed complaint would bar the firm from federal contracts. Some called it a "blacklist," a term that the Teamsters Union, which supported the proposed rule, hotly contested. The proposed rule "stands for and clarifies an important principle: Taxpayer-funded government contracts should go to responsible contractors that respect the law," wrote Michael Mathis, Teamsters director of governmental affairs. "Nothing in the proposed clarifying rules creates a 'blacklist' of any sort.'"

Sells countered, "What is at issue is one question, "'Do violations impact the ability of the contractor to deliver the product?' The way the rule is written, federal procurement officers could deny contracts to any of the 13,000 companies targeted with high injury and illness rates by OSHA this year."

Opponents also saw the bill as an attempt to win back union votes in the fall election that had been lost in response to the China vote. On July 27, 2000, Sen. Tim Hutchinson, R-Ark., introduced S. 2986, the "Just Opportunity in Bidding Act," to delay any changes in federal procurement rules until the Government Accounting Office conducted a study. Hutchinson called the proposed regulations "Al Gore's payback to his union friends, at the expense of both taxpayers and companies, who only want a level playing field to compete for federal contracts."

The House passed a similar bill on July 20, sponsored by Reps. Tom Davis, R-Va., and Jim Moran, D-Va. Hearings were planned but never held, and at press time no delaying legislation had been enacted.

Ergonomics In March 2000, the NSWMA (National Solid Wastes Management Association), which is part of the EIA and represents private waste haulers, joined with SWANA, the Municipal Waste Management Association and the West Coast Refuse and Recycling Association to urge OSHA to defer regulation of the solid waste industry from the new ergonomics rules. SWANA cited four conditions that affect the solid waste industry: (1) Work is carried out under a variety of environmental and workplace conditions, including cold, heat and confined spaces; (2) Work is carried out at non-fixed work stations or non-fixed work sites that are outside an employer's control; (3) Work often involves the use of day laborers and other short-term temporary workers; and (4) Work occurs on multi-employer sites.

NSWMA said OSHA did not have sufficient data on the solid waste issue for the rules to be meaningful or effective. "NSWMA has taken the position that one size does not fit all," Sells said.

The Waste Equipment and Technology Association (WASTEC), a branch of the EIA that represents waste-related manufacturers, specifically opposed ergonomics regulations, stating that OSHA's proposal duplicated and interfered with state workers' compensation programs already in place.

On June 22, the Senate approved 57-41, an amendment (No. 3593) sponsored by Sen. Michael Enzi, R-Wyo., that called for a one-year delay in a final ergonomic standard to be added to the spending bill for the Departments of Labor, Education, and Health and Human Services. The amendment was identical to language inserted in the House version of the Labor and Health and Human Services appropriations legislation.

On November 14, OSHA published its ergonomics rule in the Federal Register, noting exemptions for the construction, maritime, agricultural and railroad industries only.

The rule, which is set to take effect on Jan. 16, 2001, requires employers in general industry to advise their employees about possible injury risks and the importance of reporting signs and symptoms of muscoskeletal disorders promptly to avoid injury. The standard, which will be phased in over four years, also requires employers establish job-based ergonomics programs triggered only when an employee experiences a work-related injury or persistent signs or symptoms of a job injury that include a set of risk factors. Employers also must ensure medical attention for injured workers and continue pay and benefits for up to 90 days, if necessary, according to OSHA.

Almost as soon as the final rule was announced, a coalition of business groups, headed by the Washington, D.C.-based U.S. Chamber of Commerce, filed suit to block the rule, which they said is "unconstitutional, unscientific and unworkable."

The NSWMA and others in the waste industry are considering whether to join the current lawsuits or file separate challenges, an EIA spokesman said.

Carol Fearns, SWANA's chief operating officer, says her organization is disappointed the waste industry was not exempted, but is taking positive action by forming a task force of association members and creating a survey to determine best practices for the solid waste industry. Fearns said SWANA would share these practices with OSHA, so that the administration could make better waste industry regulations in the future.

As of press time, Congress still had not enacted the $350 billion labor-health-education spending bill that contains disputed funding for OSHA's new rule.

Superfund Once again, there was no comprehensive Superfund reform in 2000. Sen. Oxley tried to pass a bill under suspension of the rules exempting small businesses and de minimis contributors. This bill mirrored an agreement between the EPA and the National Federation of Independent Businesses on limiting small business liability, but it did not garner the necessary two-thirds approval - 290 votes - necessary under suspension of the rules. The speculation for the next Congress is that such exemptions either will not pass because senators will take a hard and strict "polluters must pay" position, or because senators will reason that the more exemptions they approve, the harder it will be to pass comprehensive Superfund reform later.

Similarly, S. 2700, which would provide increased spending for a Brownfields restoration program, sat in legislative limbo, despite the support of the Clinton Administration and sponsorship by 67 senators, including 28 Republicans. The bill's sponsors complained that Senate Majority Leader Trent Lott, R-Miss., would not allow the bill to come up for a vote because of a promise he made Idaho Sen. Michael Crapo in exchange for his assurance that he would not try to block a bill that would exempt scrap metal recyclers from Superfund requirements.

Crapo's spokeswoman, Susan Wheeler, said that the senator opposed any "piecemeal" legislation to deal with narrow problems of the Superfund law. As you "peel away the issues" one by one, it reduces the chance of a comprehensive overhaul of the 1980 law, she said.

Proponents of S. 2700 note that one of the largest Superfund sites in the country is in northern Idaho's Coeur d'Alene River Basin, which is contaminated from more than a century of silver mining and smelting. The site would face much larger cleanup costs if the government pursues compensation for natural resource destruction.

Because of Lott's promise to Crapo, any Superfund-related legislation would have had to address the Idaho mine situation. Sells, pointing out that a significant majority of Democrats voted against the Superfund small business liability exemption, said the climate in the closing days of this Congress evidently did not support any form of Superfund legislation.

Landfill Gas Tax Credits The Tax Relief Extension Act of 1999, S. 1792, passed in the Senate in 1999 with a landfill gas tax credit, but this was dropped from the final bill. Rep. David Camp, R-Mich., introduced H.R. 3466 in November 1999 to provide LFG tax credits. In February 2000, President Clinton's proposed $1.8 trillion budget for fiscal year 2001 included a 1 1/2 cent per kilowatt hour tax credit for electricity produced from gas at landfills not subject to the EPA's New Source Performance Standards and Emissions Guidelines. SWANA lobbied for tax credits for all gas uses, such as direct-to-oil or feedstock for motor vehicle fuels.

Landfill gas tax credits were included as part of Senate Finance Chairman William V. Roth's, R-Del., Community Renewal and New Markets Act of 2000 (S. 3152). There was, however, no companion bill in the House. As of press time, pending any last minute development, there was no action.

And More to Come On Nov. 17, as this issue was being prepared for press, the Republicans retained control of both the Senate (narrowly) and the House. It was unclear which of the two front-runners for the chairmanship of the House Commerce Committee - Reps. Billy Tauzin, R-La., or Mike Oxley, R-Ohio - would obtain it, replacing Rep. Bliley. The common thinking is that Tauzin is more of a deal-maker, and might work out compromise interstate legislation. On the other hand, Louisiana is not a "big dog" in the interstate fight, one industry expert said, because New Orleans is under sea level and must export solid waste.

If Oxley becomes the chairman, it is expected that interstate legislation will not move through the committee since Ohio is a big solid waste importer and exporter.

Something that could throw the whole issue of interstate waste restrictions out of kilter is the Supreme Court's upcoming decision in Solid Waste Authority v. the U.S. Army Corp. of Engineers. A decision is expected by next summer. While it is risky predicting the outcome based on the Justices' questions during oral arguments, the majority was very tough on the government's position.

What is at issue in this case is Congress' affirmative power under the Commerce Clause of the U.S. Constitution - specifically, legislation that asserts federal regulatory authority over small intrastate wetlands that provide habitat for migratory birds. Congress' ability to restrict the interstate movement of solid waste involves the "dormant" Commerce Clause. The case law for each - the "express" or "affirmative" Commerce Clause and the "dormant" Commerce Clause - has different standards and elements, but their source is the same constitutional provision.

Consequently, attorneys contacted for this article agree that if the Supreme Court limits Congress' affirmative authority under the Commerce Clause, that could, theoretically, "spill over" to the dormant Commerce Clause. And, if Congress' ability to restrict the movement of interstate waste under the "dormant" Commerce Clause is limited, then which party controls the House or Senate is of little interest - at least as far as this particular issue is concerned. This, if nothing else, shows that what is important can quickly become unimportant - depending on the breaks.