A New Flow Control Battle in Pennsylvania

Date: March 10, 2008

Source: The Pennsylvania Waste Industries Association

PA Waste Industries Association and National Affiliate File Suit to Halt 'Flow Control' Ordinance in Delaware County

The Pennsylvania Waste Industries Association (PWIA) and the National Solid Wastes Management Association (NSWMA) today asked the U.S. District Court for Eastern Pennsylvania to enjoin Delaware County and the Delaware County Solid Waste Authority from implementing a new "flow control" ordinance governing all municipal solid waste generated in the county.

The flow-control ordinance -enacted only 10 days ago without proper statutory notice and scheduled to become effective today-would replace a free- market system of waste disposal and processing by requiring all county- generated municipal waste be disposed only at county-designated facilities.

In a complaint filed today by the Philadelphia-based law firm of Drinker Biddle & Reath LLP, PWIA and NSWMA argued that the new ordinance violates the Commerce Clause of the U.S. Constitution and that county officials bypassed mandatory state statutory provisions governing waste plan revisions, including prior approval by the Pennsylvania Department of Environmental Protection.

The U.S. Supreme Court in April 2007 ruled that a flow control plan that directed all waste in a particular region to government owned and operated disposal facilities as part of a purely public system did not interfere with constitutionally protected interstate commerce. The court said the fact of government ownership and operation of such facilities was "constitutionally significant" and justified flow control as a public benefit under those circumstances.

But PWIA and NSWMA maintain the court's decision does not apply in this case because the waste disposal and processing facilities involved in Delaware County's new "flow control" ordinance are not publicly operated, and are part of an overall waste services system that is "predominately" private, not public.

Tim O'Donnell, president of the PWIA, said association members began receiving copies of the newly enacted ordinance late last week, without even the benefit of a cover letter of explanation.

"Compliance with this new ordinance would require substantial operational changes by our members that would be difficult to manage on such short notice" O'Donnell said, "and in the long run the lack of competition would mean higher disposal costs for everyone, including the consumer."

According to state Act 101, solid waste plans are supposed to be "developed and implemented in an open and public manner" and the county involved is to "provide written notice to municipalities within the county when plan development or plan revision begins." The law says one of the purposes of the planning process is to "ensure a full, fair and open discussion of alternative methods of municipal waste processing or disposal."

PWIA and NSWMA argued in their complaint that county officials "entirely side-stepped [the] comprehensive planning process mandated by state statute" and that the "utter lack of planning accompanying this significant change poses threats to the safe and orderly collection and disposal of municipal solid waste generated in Delaware County, starting today."

The PWIA represents private-sector waste haulers, recyclers, and landfill operators in Pennsylvania and is affiliated with the National Solid Wastes Management Association. The PWIA's mission is to promote the efficient and environmentally safe management of solid waste, advocate sound public policy affecting the management of solid waste, and communicate the benefits the waste industry provides to the people of Pennsylvania.

For more information, visit www.pawasteindustries.org.

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