Industry's Legal Advocate

THE NATIONAL SOLID WASTES MANAGEMENT Association (NSWMA) plays a critical role in protecting the business interests of the entire waste industry — in the statehouses, the courthouses, before Congress and elsewhere. On the legal side, the NSWMA is the hub for industry litigation and also provides timely and useful research, information and analysis to members about the impact of laws and legal decisions on their business operations.

Interstate

Michigan is the current battleground between local and state officials and the waste industry concerning out-of-state trash. When Toronto closed its landfill in December 2002, it increased the amount of its municipal solid waste delivered to Michigan landfills near Detroit. Predictably, Michigan lawmakers, environmental groups and others have been complaining about the Toronto trash. There have been negative articles in the Michigan newspapers about Canadian trash. Opponents allege that the Canadian trash will cause environmental contamination and fill up Michigan's landfills.

Of course, they ignore a recent state study that found Ontario waste is “cleaner” than Michigan waste and, therefore, poses less of an environmental threat. Articles often forget to mention that Michigan exports upward of 50,000 tons of hazardous waste to Ontario each year, and that Michigan has more than enough landfill capacity for both in-state and imported trash.

In August 2003, Wayne County in southeastern Michigan tried to stop the flow of Canadian waste into landfills located in the county. It passed a law, making it illegal for a landfill to accept solid waste from any location that does not have a beverage container law and bottle return rates “comparable” to those in Michigan. The law would have had an immediate effect on several waste companies' operations. The NSWMA filed a lawsuit challenging the Wayne County law under the Commerce Clause, and the court issued an order blocking the law from taking effect on October 16, 2003.

Unfortunately, the State of Michigan has passed similar legislation, and the NSWMA and its members likely will be forced to respond again with a lawsuit. Although the association and its members always prefer working with state and local officials to address solid waste concerns, Michigan's current political atmosphere often restricts such discussions. The NSWMA also is working to block unreasonable limitations on waste disposal in Pennsylvania, Virginia and Ohio.

Flow Control

Although the 2001-'02 recession is over, many local governments' budgets continue to be in the red. Some counties and cities are looking, once again, at solid waste as a source of revenue — either through fees or by controlling where it is disposed. These actions interfere with the free market for waste services and impose additional costs on businesses and residents. The NSWMA continues to be at the forefront of these issues and seeks to stop such laws from being enacted or taking effect.

In Mississippi, the NSWMA successfully challenged a waste district's flow control laws that would have disrupted the operations of two members. The association has been heavily involved in the lawsuit, shaping the legal strategy, assisting with the briefs and acting as a resource for lawyers.

In North Carolina, a member recently asked the NSWMA to file an amicus (friend of the court) brief in support of the member's position in a flow control case. The association helped to secure an important legal victory at minimal cost to the members.

Because interstate and flow control court decisions are complicated, to put it mildly, many solid waste companies need help in determining whether a particular law violates state law and/or the Commerce Clause. One of the many benefits of NSWMA membership is access to its legal department and decades of experience in dealing with all types of interstate, flow control and other laws. For smaller companies, the $540 or $810 annual membership fee could be a bargain.

To join, contact NSWMA's member services department at (800) 424-2869. E-mail [email protected].

David Biderman is NSWMA's General Counsel and can be reached at (800) 424-2869 or [email protected].