Amicus Curiae Brief — United Haulers Ass'n v. Oneida-Herkimer

SIRE

t gi | :

No. 05-1345

— —_—--—- — —_— — + —— <>

IN THE

Supreme Court of the United States

UNITED HAULERS ASSOCIATION, INC., ef ai.

Petitioners,

v

ONEIDA-HERKIMER SOLID WASTE

MANAGEMENT AUTHORITY, et al.,

Respondents.

——

Own Wait or CERTIORARI TO THE

Unrrep Strares Court OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF MADISON COUNTY, NEW YORK AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

S. Joun CAMPANIE JerFREY B. Morris

County Attorney Counsel of Record

Madison County Touro Law Scuoot

North Court Street 300 Nassau Road

P.O. Box 635 Huntington, NY 11743

Wampsville, NY 13163 (718) 428-3507

Micnet J. DeBottis

Madison County

Solid Waste and Recycling

Committee Chairman

230 Main Street

Oneida, NY 13421

Counsel for Amicus Curtae

i

TABLE OF CONTENTS

Page

TABLE OF CITED AUTHORITIES ............ ii

INTEREST OF AMICUS CURIAE .............

SUMMARY OF ARGUMENT ...............-. 2 :

ce CREE LSE dee pee EP We ag 3

THE PRE-CONSTITUTION ERA ..........-. 4

FROM THE ERA OF THE CONSTITUTIONAL

CONVENTION TO THE FIRST CHOLERA

EPIDEMIC (1787-1832) .............--. 6

FROM THE FIRST CHOLERA EPIDEMIC TO

THE END OF THE AMERICAN CIVIL WAR

eS LOSSES aE RG 9

FROM THE LAST CHOLERA EPIDEMIC TO

THE BEGINNING OF THE “GOLDEN AGE

OF PUBLIC HEALTH” (1866-1894) ...... 11

FROM NEW YORK CITY’S REFORMS TO THE

NEW DEAL (1895-1932) ............05- 15

FROM THE NEW DEAL ERA TO THE

CREATION OF THE ENVIRONMENTAL

PROTECTION AGENCY (1933-70) ...... 19

THE ERA OF GREAT ENVIRONMENTAL

CONCERNS (1970-to date) ............. 22

ES Aa GA nwa een ads ba cheeen coeke 27

li

TABLE OF CITED AUTHORITIES

P

CASES oa

Clason v. Indiana,

EE UIE 5 ads ces Ricco hoa bees 20

Parker v. Brown, SS

DOT URE a Nove wuwuass oy kvediaks 20

United Haulers Association, Inc. v. Oneida-

Herkimer Solid Waste Management Authority,

poe eR Se pk we) ee rare 3

FEDERAL STATUTES

Comprehensive Environmental Response,

Compensation and Recovery Act .

er es ee OO bo ccs bk eaves dvadunes 24

Resource Conservation and Recovery Act,

Se as. es SOOO i ii eee ia ve cewewnds 22

ee vee cin k du daw escawed cabesen 22

ee UR i on a 40a Kis Can dueiencsebeus 23

STATE STATUTES

NYS General Municipal Law Section 120-ww .... 24

NY Solid Waste Management Act of 1988, c.70

Codified as amended in scattered sections of Aiticle

27 of N.Y. Environmental Law ............... 25

iil

Cited Authorities

Page

MISCELLANEOUS

Beth, Loren P, The Development of the American

Constitution 1877-1917 (1971) .............. 13,14

Bureau of the Census, U.S. Department of Commerce,

Historical Statistics of the United States, Colonial

rp Lt en ee ee 9

Burrows, Edwin G. & Mike Wallace, Gotham A

History of New York City: A History of New York

eae reer ery eS 8, 10, 16

Blumberg, Louis & Robert Gottlieb, War on Waste

SE a4 bd chsew thc betes <ehawees 14, 17, 19, 20, 21

Duffy, John, The Sanitarians: A History of American

FU TOUR G ID oe ik hak cecadacusccsnet passim

Goodnow, Frank J., City Government in the United

PGE a kn 0 kab 5000 Caen eeie oben 16

Griffith, Ernest S., A History of American City

Government: The Conspicuous Failure, 1870-

1900, (University Press of America 1983) (1938)

» oinn cual eae kia ovale 0 66 eeewabacs 7, 11, 13, 15, 16

Griffith, Ernest S., A History of American City

Government: The Progressive Years, and Their

Aftermath 192ff (University Press of America

PREY & cs. ew Wo Sn KOEI E is 0d Gawus 10

iv

Cited Authorities

: Page

Griffith, Emest S. & Charles R. Adrian, A History of

American City Government: The Formation of

Traditions, 1775-1870 (University Press of

Pamemraes THGSPCUGIGS: cc ic tcke ic cccccccis 8,9, 10

Melosi, Martin V., Garbage in the Cities: Refuse,

Reform and the Environment, 1880-1980 (Texas

A&M University Press 1981)' ...... 3, 6, 7, 13, 14, 17

Melosi, Martin V., Garbage in the Cities: Refuse,

Reform and the Environment (rev. ed. University

of Pittsburgh Press 2005) (1981) ............. 4

Miller, Benjamin, Fat of the Land: Garbage in New

York The Last 200 Years (2000) .............. 9

Morris, Richard B. & Jeffrey B. Morris, Encyclopedia

of American History (7" ed. 1996) ............ 5

Morse, William Francis, The Collection and Disvosal

of Municipal Waste (1908) ..........-.60006- 2

Rosenberg, Charles E., The Cholera Years (rev.ed.

Es nnGy Opp ews s habe o0 Oks 0 e888 10, 13

Savas, E.S., The Organization and Efficiency of Solid

ST CET FD 6a oko 0.0 heen ctavces 5,7, 14

Peter T. White, The Fascinating World of Trash,

163Nat’| Geographic, April 1983, at 424, 456... 18

1. All references are to this edition unless otherwise notcd.

Cited Authorities

Page

Winslow, C.F.A., The Evolution and Significance of

the Modern Public Health Campaign (Journal

cf Public Health Policy ed. 1984) (1923)....... 7,10

l

INTEREST OF AMICUS CURIAE

Madison County, New York is largely rural. Part of the

county has generally level to gently rolling topography while

the rest consists of rounded hills and steep-sided valleys. Its

area is 661 square miles, with a population of 69,441 at the

time of the 2000 census. Most residents work in the nearby

cities of Syracuse and Utica, although the county has nearly

seven hundred active farms. The county has one city, fifteen

towns and ten villages. Madison County is home to several

industrial facilities, banking and other commercial institutions,

four colleges, numerous small business, and agricultural

enterprises.

Madison County’s comprehensive solid waste management

plan, which is similar to that of Oneida and Herkimer Counties,

is an example of a modern local government that properly

manages all of the solid waste generated within it. Madison

County, as a state-designated planning unit, operates its landfill

and four transfer stations, materials recycling facility, yard waste

composting facility, household hazardous waste program,

television and computer recycling, sharps disposal and other

programs pursuant to its NYS-approved Solid Waste

Management Plan. As part of its integrated system, the County

adopted a flow control law in 2001, similar to Oneida and

Herkimer’s, which directs all locally-generated municipal solid

waste and recyclables to its transfer stations, landfill and

recycling center. i

Madison County’s interest in this litigation is clear. For

many years the County, witnessed and endured many of the

same problems as Oneida and Herkimer counties: poorly

managed local municipal dumps resulting in significant

environmental and legal problems, and private operators in a

market lacking competition holding municipalities hostage to

ever increasing costs. Like Oneida and Herkimer counties,

Madison County stepped into the breach to ensure that its

residents’ waste was properly disposed of, recycled to the

2

greatest extent possible, at a reasonable cost. Thus, like

OHSWMA, it represents local government taking responsibility

for ensuring the health and welfare of its citizens by properly

managing solid waste pursuant to a system that includes flow

control as an important element.

Madison County proffers this brief discussing the history

of solid waste management in thy United States in order to assist

the Court in analyzing this case in the proper historical context,

recognizing that solid waste management was and continues to

be a core governmental function and that communities must be

free to develop a system uniquely suited to their particular

situation.

. SUMMARY OF ARGUMENT

The Second Circuit Court of Appeals correctly decided that

by local governments establishing themselves as the exclusive

provider of solid waste disposal services within their yunisdiction,

they are not in violation of the dormant commerce clause. The

purpose of this brief is to place in historical perspective the role

of local governments in the management of solid waste. Waste

disposal has been and is a service that has traditionally been

provided by local government and has been essential] in

protecting public health and welfare. Every major advance in

the science and technology of waste management has come from

the active involvement of local governments, confirming that a

strong municipal role is vital to the solution of the current

and future garbage crises. The Respondents in this case

are correct, that for many communities to carry out their

commitment to innovation in waste management, enactment

and implementation of flow control regulations or conditional

regulations in private contracts are essential.

3

ARGUMENT’

The purpose of this brief is to place current issues in the

management of solid waste in historical perspective. Basically,

there is nothing new about the role of iocal governments in

handling such waste. Throughout American history, local

governments have had the primary responsibility for the

removal, processing and disposal of solid waste. Martin Melosi,

a leading historian of American solid waste collection has stated,

“The question of municipal responsibility for collection and

disposal has long been resolved.”* The Second Circuit spoke

in the first United Haulers case of the “well-settled principle

that waste disposal is a traditional local government function.” *

Like police and fire protection, parks and public schools, the

collection of garbage and its disposal has been a core function

of local government; a function inherent in the state police power

to provide for the health and welfare of its residents. The chief

contemporary reason for the exercise of this power by municipal

authorities is to protect the environment.

Today, some counties, cities and towns directly collect,

process and dispose of the solid waste themselves. Other cities

and towns award exclusive or non-exclusive franchises to handle

part or all of these functions while incidentally regulating the

private waste-service sector. There is nothing new about this.

Today, as during much of the Nineteenth Century and the entire

Twentieth Century, citizens of cities and counties expect that

their government will in some way provide for collection

2. This brief was co-authored with Shari G. Newman, a 2006

graduate of Touro Law School. The authors acknowledge the assistance

of Benjamin Miller, former director of policy planning for the New

York City Department of Sanitation and advisor in environmental policy

to many organizations.

3. Martin V. Melosi, Garbage in the Cities: Refuse, Reform and

the Environment, 1880-1980, at 194 (1981 ed.).

4. United Haulers Association, Inc. v. Oneida-Herkimer Solid

Waste Management Authority, 261 F.3d 245, 263 (2d Cir. 2001).

4

services and for processing and disposal facilities, just as they

expect government to provide other essential services. In spite

of a growing state, federal and private presence, municipal

control of sanitary services has not been seriously eroded.‘

Surely, in an area that evokes such great public concer, it is

essential that each community have the ability to establish a

system that best serves its needs.

This is not to say that responsibility for solid waste is

exclusively municipal. In addition to cities, counties, and private

firms, state governments play a role, and so does the federal

government, a role most recently articulated in the Resource

Conservation and Recovery Act of 1976 and its subsequent

amendments. The RCRA: redefined solid waste to include

hazardous waste and ordered EPA to require “cradle to grave”

tracking of hazardous waste and controls on hazardous waste

facilities; closed most dumps and set minimum standards for

waste disposal facilities—including criteria for facility sizes and

locations—through rules and regulations promulgated through

the states.°

THE PRE-CONSTITUTION ERA

The history of solid waste collection and disposal is

intertwined with the history of the city.’ Prior to 1787, the United —

5. Melosi , supra, at 238.

6. Melosi [2005 ed.], at 203.

7. Sanitation tends to become a problem when there is population

density. When human beings first gathcred together in settlement, they

had to establish places at the edge of their settlement to dispose of

garbage. As early as 2500 B.C., the city of Mahego-doro in India

possessed elaborate drainage systems as well as rubbish chutes in the

homes of its residents. The city of Babylon had cirains, cesspools and

sewage systems, while Crete set aside areas for the disposal of human

waste around the year 1500 B.C. The Greeks had the world’s first

municipal dump in 500 B.C., while Rome had sewers, great aqueducts

and public latrines. Virtuaily all of the early civilizations protected food

(Cont'd)

\

5

States had few cities, and the entities classified as cities were

very small (8,000 or more).* Solid waste problems tend to

emerge when cities reach a certain level of population density.

So long as there was unsettled land outside but near the city,

garbage could be disposed of by individuals at the nearest

convenient place without governmental activity. It was the

growth of urban centers that made necessary elaborate and

complex systems to handle solid waste.’ As time proceeded,

governments adapted environmentally-prctective systems and

requirements originally created for use by cities to all areas of

the country, recognizing that public health and safety is necessary

ever in the most rural and seemingly isolated locations.

In the Seventeenth and Eighteenth Centuries, public health

knowledge had advanced little from the Middle Ages. It would

take more than a century before a critical mass of scientific

studies presented a generally adequate picture of the causes of

disease. Although there was very little “hard knowledge” about

public health, cities nevertheless worried about a connection

between unsanitary conditions and public health. By the end of

the Seventeenth Century, several colonial towns had reached a

stage in their development requiring them to pass basic sanitary

laws. A 1652 Boston ordinance dealt with the construction of

privies. In the Seventeenth Century, Boston regulated trades such

as butchers and blubber boilers who fouled the environment

and issued an ordinance dealing with garbage removal.'°

(Cont'd) :

and water from contamination. The Minoans had flush toilets.

E. S. Savas, The Organization and Efficiency of Solid Waste Collection

11 (1977); John Duffy, The Sanitarians: A History of American Public

Health 5-6 (1990).

8. Richard B. Morris & Jeffrey B. Morris, Encyclopedia of

American History 631 (1996).

9. Savas, supra, at 11.

10. Jd. at 16.

6

During the colonial era, municipal governments relied on

the initiative of individual householders or businesses to manage

their own wastes by sweeping up the organic and inorganic

detritus from in front of their houses or places of business. At

their best, streets were paved with cobblestones whose interstices

usually became packed with accumulations of organic material

and other debris that was impossible to remove by rinsing or

sweeping. Unless it could be eaten by animals or used to fertilize

creps, refuse was removed to low-lying lots or dumped in the

nearest body of water.

As such conditions became intolerable, municipalities

began to take responsibility for waste. The first was Boston,

which in 1666-67 appointed a municipal scavenger. Scavengers,

who become a standard feature of municipal life in the United

States, were responsible for sweeping the streets, clearing them

of animal carcasses, piles of kitchen waste and other refuse that

might impede traffic or otherwise cause a nuisance.'’ While New

York City did not appoint a scavenger until 1750, when cart

men asked for a monopoly for transporting goods within New

York City in 1670, the city made a condition that the cart men

remove piles of dirt, rubbish and garbage from the streets every

Saturday.”

FROM THE ERA OF THE CONSTITUTIONAL

CONVENTION TO THE FIRST CHOLERA

EPIDEMIC (1787-1832)

During the four decades between the commencement of

government under the U.S. Constitution and the first great

cholera epidemic to reach the United States, the American

population grew rapidly, especially in its cities. In 1790, 5.1%

of the population of the United States was city dwellers; in 1840,

the figure would be 10.8%." The great migration west led to

11. Duffy, supra, at 13, 28.

12. Id. at 16.

13. Melosi, supra, at 13.

7

the settlement of a number of smaller cities comparable or greater

in population by 1832 to that of the Eastern cities in 1790.

Furthermore, the cities had to cope with the profound

dislocations caused by the Industrial Revolution—long hours

and dangerous conditions in the factory and life in crowded

tenements.

Throughout the colonial period, responsibility for street

cleaning had been able to rest primarily in the hands of individual

citizens. '* But, by 1832, the chronic overcrowding in the Eastern

cities made that no longer possible. Existing sewer disposal

systems failed to meet the needs of the growing cities. Water

was impure; unpaved streets reeked with waste.'* The problem

was accentuated by waste coming from tanning, slaughtering

and other businesses. Furthermore, humans lived with and

among domestic animals and their refuse was everywhere.'* As

a result, wave upon wave of communicable diseases spread—

typhoid and yellow fever, small pox, cholera and childhood

diseases such as diphtheria. Boards of Health had been created

in some cities to deal with such matters, but neither laymen nor

physicians had command of what would become fundamental

principles of public health."’

The onslaught of yellow fever proved to be the first major

impetus to the movement for sanitary reform. The first yellow

fever epidemic to reach the United States hit Philadelphia in

1793. Perhaps one-tenth of the population of that city perished.

Yellow fever would return again the following year and spread

to other cities.

14. Duffy, supra, at 16.

15. Melosi, supra, at 14. See also Savas, supra, at 17.

16. Duffy, supra, at 13, 30, 88; Ernest S. Griffith & Charles R.

Adrian, A History of American City Government: The Formation of

Traditions, 1775-1870, at 66 (1938).

17. C.F.A. Winslow, The Evolution and Significance of the Modern

Public Health Campaign 6 (1923, repr. 1984).

8

In New York City, a committee of the City Council placed

the blame for the epidemic virtually on every sanitary problem

of the day: foul-smelling slips, undrained lots, overflowing sinks

and privies, burials within the city during the hot season (when,

actually, the disease was mosquito-borne). The committee

urged the municipality to plan for a waste system and build

underground sewers, and in the meantime to hire carts and

laborers for street cleaning and assume full responsibility for it.

What the Council did do was to draft a bill, which was passed

by legislature, which gave the municipal government full control

over sanitary matters. '* Elsewhere, town after town began major

efforts to drain pools, clear drains of carrion, require residents

to empty their overflowing privies.'

Yellow fever would recede from the North in the middle of

the first decade of the Nineteenth Century, and no new great

pestilence would threaten for over twenty-five years. As a result,

governmental efforts to promote the public health and welfare

were shafply reduced. With but a few exceptions, health boards

disappeared.

Nevertheless, by 1830, nearly all major American cities had

taken some responsibility for cleaning their streets. Individual

residents were expected to sweep the dust in front of their homes

or business establishments, but scavengers or cart men employed

by the city, private contractors or even local farmers collected

the material they had swept up. Further, by 1830, most of the

larger towns regulated the construction, location and emptying

of privies. Progress was made in securing healthful water,

creating sewer systems and even in building regulations.

Unfortunately, the effect of most of these accomplishments was

nullified by rapid population growth.”

18. Duffy, supra, at 43; Edwin G. Burrows & Mike ‘Wallace,

Gotham: A History of New York City to 1898, at p. 43 (1999).

19. Duffy, supra, at 48.

20. Jd. at 72. 73, 77; Grffith& Adnan, supra, at 152.

9

FROM THE FIRST CHOLERA EPIDEMIC TO THE

END OF THE AMERICAN CIVIL WAR (1832-65)

As rapid growth of the nation’s cities continued—between

1830 and 1860 the percentage of Americans living in cities of

10,000 more than doubled*'—- municipal governance had to

come to terms with the problems this growth caused. Municipal

responsibilities increased and a bureaucracy slowly began to

develop. City services were established to deal with pressing

needs.

The scourge of cholera and developments in public health

knowledge led to increasing concern about solid waste. When

the first of three cholera epidemics hit the United States in 1832,

municipal responsibility for the removal of waste and for public

health was still in an immature state. The streets of the nation’s

largest cities were filled with the giant heaps of excrement of

men and animals, decaying garbage, putrefying carrion and

stagnant pools in every low place. The markets were strewn

with the heads of sheep, the hoofs of cattle, blood and offal, as

well as dead dogs, cats, hogs and rats.”

While there was hardly any scientific knowledge of disease

to be drawn upon, American cities still had to act to try to protect

their residents. Towns and villages appointed boards of health.

In almost every American city, sanitary surveys and reports were

commissioned. Filth continued to be blamed for the epidemics.

The reports recommended the building of water and sewer

systems, the institution of street cleaning and garbage collection,

the creation of strong health departments with extensive

authority and the passage of sanitary measures that included

among other things, the-removal of waste from streets and

_——- ss ———

21. Bureau of the Census, U.S. Department of Commerce,

Historical Statistics of the United States, Colonial Times to 1970, Part

2, at 11-12.

22. Griffith & Adrian, supra, at 69; Burrows & Wallace, supra, at

588, 787; Benjamin Miller, Far of the Land: Garbage in New York The

Last 200 Years 37 (2000); Duffy, supra, at 88.

10

private property.” While these recommendations would clearly

contribute to improved public health and general public

betterment, they would not by themselves eliminate cholera,

typhoid fever, tuberculosis or the other great scourges.

Thus, as a result of the epidemics, municipal governments

acted more assertively in dealing with sanitary problems. In

certain localities, more comprehensive regulations to control

the removal and disposal of waste materials were promulgated.

As early as 1832, New York’s Board of Health assumed many

of the functions of Twentieth Century government— running

hospitals and welfare services, providing for slum clearance,

controlling the sale of food and drugs.” Streets and homes were

cleared and “purified”. In New York, 20,000 of its wandering

hogs, long a problem, were driven to the City’s Northern wards

during the 1849 outbreak. By the beginning of the Civil War,

New York’s porkers were in exile north of 86" Street.”

Spurred by the need to respond to the periodic epidemics;

aided by the emergence of vital statistics as a public health tool

which demonstrated that dirt, congestion and bad air shortened

lives; sensitized to the danger of poor drainage, foul water and

crowded tenements; concerned about sewage, offal and dead

animals; encouraged by the increasing role of medical societies

in promoting public health, the stage was set in the large cities

for greater municipal responsibility for street cleaning, garbage

collection and pure water supply.”® By the end of this period,

there would be firmer institutional entrenchment of local

governmental control in the management of sanitary affairs.

—— — —— ——

23. Duffy, supra, at 81, 99-100; Griffith & Adrian, supra, at 67;

Rosenberg, supra, at 19; Ernest S. Griffith, A History of American City

Government: The Progressive Years, and Their Aftermath 192{¥ (1974).

24. Rosenberg, supra, at 83.

25. Burrows & Wallace, supra, at 786. .

26. Griffith & Adrian, supra, at 8; Rosenberg, supra, at 143; Duffy,

supra, at 67, 93; Winslow, supra, at 25ff.

1]

FROM THE LAST CHOLERA EPIDEMIC TO THE

BEGINNING OF THE “GOLDEN AGE OF

PUBLIC HEALTH” (1866-1894)

The thirty-year period that followed the American Civil War

was notable for remarkable developments in public health and

for extraordinary breakthroughs in the understanding of disease.

As the work of municipal governments increased greatly in

complexity, they took on greater responsibilities for the removal

of solid waste.

The lessons of the great wars of the era contributed to the

growing involvement of the cities in waste collection and

removal. The Crimean and the American Civil War produced

considerable knowledge about the connection between

uncleanliness and disease. The sanitary techniques pioneered

by Florence Nightingale and others would come to be employed

in civilian life by the same sanitary engineers who had applied

them in the military camps. When such officers as General

Egbert Ludovicus Viele and Colonel George E. Waring, Jr.

returned to civilian life, they came to play an increased role in

municipal management of liquid and solid waste.

Rising interest in the whole area of public health was

stimulated by reports and surveys of public health conditions.

New organizations were formed, such as the American Public

Health Association (1872) that helped professionalize the field

and produced seminal reports on conditions in America.”’

Growing municipal interest in waste removal was also

stimulated by revolutionary change in the field of medicine,

where there were major advances in pathology, histology,

physiology and chemistry. The 1880s was the decade that saw

the identification of the organisms responsible for many killer

diseases. The first wide-scale application of bacteriology to

public health occurred with regard to diphtheria.

27. Ernest S. Griffith, A History of American City Government:

The Conspicuous Failure, 1870-1900, at 53 (1983) (1938).

12

During this period, for the first time there was hard evidence

that garbage was not only an aesthetic problem, but also one

that greatly impacted public health. Typhoid fever, dysentery,

pneumonia and tuberculosis were the normal hazards of

tenement life. The need to make improvements in the collection

of solid waste was identified as 4 critical component in the fight

against those and other diseases.

The last twenty years of the Nineteenth Century saw the

Sanitary revolution in full swing. Towns and cities were

establishing water and sewer systems, while health departments

were expanding into new areas such as laboratory testing of

water and milk.” Taken together, these advances—inspection,

pasteurization, vaccination and immunization, attacks on

mosquito-borne diseases and public education—led to a

remarkable improvement in public health.

During the thirty years following the Civil War, municipal

governments increasingly exercised their police powers and

made assertive use of them. By 1870, virtually all of the modern

municipal services had been established, at least at a rudimentary

level, and were being operated in the large and middle-sized

cities by full-time personnel. The larger cities had fire

departments, salaried police and municipally sponsored schools.

One of the most striking features of the decades immediately

after the Civil War was the growth in the number and

effectiveness of municipal health departments. Among the most

important developments was passage by the New York State

~ Legislature of a law creating a Metropolitan Sanitary District

(encompassing much of the yet unconsolidated New York City)

and a Metropolitan Board of Health that was given substantial

legislative and quasi-judicial powers. Within eight months of

the Metropolitan Board of Health’s creation in February 1866, —

160,000 tons of manure were removed from vacant lots, 31,

000 cease and desist orders issued, 4,000 lots ordered cleaned

and 6,418 privies disinfected. In 1866, New York City suffered

28. Duffy, supra, at 125-26.

13

only one-tenth the number of deaths caused by cholera as

compared with 1849. The Metropolitan Board of Health would

prove to be the first effective health department in a major city

and would become a model for urban health departments

throughout the nation.-Its work would demonstrate that disease

was preventable through proper management of municipal solid

waste and improved sanitation practices.”

The public health functions of municipalities varied. They

could include tenement inspection, the collection of statistics,

quarantining, water treatment, removing nuisances associated

with foul odors and running the city’s small pox hospitals and

insane asylum.*° The sanitary revolution in America was in full

swing and health and sanitation were virtually synonymous.

Elaborate water supply systems were constructed. Old sewer

lines were expanded and new ones built. Most heavily-traveled

streets were paved. The collection of garbage and refuse was

improved and new facilities for the disposal of garbage

provided.®'

The United States Census first collected information on

the management of municipal solid waste in 1880. Of the 199

cities surveyed, 68.8% directly managed waste removal and

disposal services—either through private contracts, the use of

public facilities and personnel, or through some combination

thereof. Because a reliance on individual initiative became

increasingly impractical as population density increased, the

provision of waste management and disposal services by the

public sector was particularly prevalent in the larger cities. In

1880, only 21% of cities with a population of at least 30,000

did not provide these services in one form or another.”

29. Rosenberg, supra, at 210, 212, 239; Duffy, supra, at 118ff.

30. Griffith, A History of American City Government: The

Conspicuous Failure, supra at 8ff, Duffy, supra, at 142-43,

31. Griffin & Adrian, supra, at 224; Loren P. Beth, The

Development of the American Constitution 1877-1917, p. 101.

32. Melosi, supra, at 31.

14

Of the cities surveyed in the 1880 census, 94% had a board

of health commissioner or a health officer. Of those, 46% had

some direct control over the collection and disposal of refuse.*

That year, only 24% of those services were actually run by a

city. The figures jumped to 65% in 1900." By the turn of the

century, a growing number of cities provided at least a

rudimentary level of solid waste collection and disposal.*°

Cities and towns were also concerned with what was done

with the collected garbage, although they lacked modern

sensitivity to environmental concerns. In many towns, refuse

was dumped onto vacant lots. When the town grew, the refuse

was consolidated at convenient points on low ground or on roads

needing grading. Cities on the seaboard or on rivers that could

conveniently do so dumped waste into waterways. Many New

England cities and towns sold their swill to farmers. Several

western cities also sold their garbage.**

By the end of this period, cities were responsible for

sanitation and public health, as they were for elections, fire

prevention and fire fighting, prevention and punishment of

crime, education and the building and maintenance of roads

and parks.*’ With considerable progress made in some cities

with the provision of fresh water and construction of an adequate

sewage system, the refuse problem finally captured the attention

of urban dwellers. Sanitarians and public health officers offered

health reasons for their concern; civil groups offered aesthetic

reasons for improvement in collection and disposal; engineers

provided new technologies.** Certainly, more needed to be done

—_ ——

33. Savas, supra at 2, 7.

34. Mclosi (2005 ed.) 155.

35. Blumberg & Gottlieb, War on Waste 6 (1989).

36. William Francis Morse, The Collection and Disposal of

Municipal Waste 2, 6, 48, 85, 328, 330, 364, 371(1908).

37. Beth, supra, at 93, 101.

38. Melosi, supra, at 49-50.

15

—especially with the disposal of municipal solid waste—but

the cities were more engaged in the process in the late 19"

Century.

By the 1890s, in some places the quality of urban life had

really improved. In Memphis, for example, as late as 1879, the

water supply had been polluted with excrement. Yards, alleys

and gutters had been full of garbage, refuse, stagnant water and

dead animals.” However, beginning around 1880 under the

leadership of George E. Waring, Jr., sewer and water systems

were improved and animals driven from newly paved streets.

By 1890, Memphis had been transformed into one of the nation’s

cleanest cities. Its mortality rate had been cut in half over

seventeen years.“ This much could be said: as the Nineteenth

Century drew to a close, the sanitary movement had finally

begun to improve the quality of human life.

FROM NEW YORK CITY’S REFORMS TO THE

NEW DEAL (1895-1932)

The last decade of the Nineteenth Century and first decade

of the Twentieth may be properly called “the golden age of public

health”. It was during these years that the water-borne diseases

(cholera, typhoid) and the insect-borne maladies (yellow fever,

malaria) were conquered in the Northern Hemisphere.

Considerable progress was made against other public health

menaces. Increasingly, public health reformers linked sanitary

practices to the incidence of disease and health risks in urban

areas. Between 1900 and 1930, the life expectancy for the

average American increased from 47.3 years to 59.7.*'

The flagship of reform for municipal handling of solid waste

was New York City. It was jump-started in 1895 by the

a et

39. Griffith, A History of American City Government: The

Conspicuous Failure, supra, at 41.

40. Duffy, supra, at 143-45.

41. Duffy, supra, at 256.

16

appointment of George E. Waring, Jr. as Street Cleaning

Commissioner, heading a department previously notorious for

inefficiency and corruption. With Waring’s appointment, the

first practical, comprehensive system of refuse management

in the United States was created. Waring’s force was

professionalized and organized in a military fashion. His

uniformed “white wings” scoured the streets, arrested violators

of the Sanitary Code, cut ocean dumping to a minimum and

became nationally famous fer efficiency and inorale.”

In addition to keeping the streets clean, Waring devised a

program for efficient source separaticn, collection and disposal

of municipal solid waste that involved local communities and

individual citizens. Waring’s experiments when he was Street

Cleaning Commissioner of New York were the first efforts made

in the United States to systematize the collection and disposal

of municipal waste. He employed a precursor of recycling that

he had seen in Budapest: sorting waste by placing thin layers

on a moving belt, where workers, standing on either side, picked

out materials with market value or which could be put to a useful

purpose providing revenue for the city.

Waring embodied the principle that, to achieve success in

waste management, public welfare needed to take priority over

private economic interests. Waring’s waste management

_ Strategies embedded the notion that sanitation was a municipal

responsibility.

By 1905, sanitary engineers and public health officers

emerged as even more crucial “players” than before. Joined with

other reformers, they demanded the termination or alteration of

contracted collection and disposal (because of their susceptibility

to corruption) and supported centralization of refuse

—— —— —-_—

42. Griffith, A History of American City Government: The

Conspicuous Failure, supra, at 4, 52; Duffy, supra, at 175; Burrows &

Wallace, supra, at 1194-96; Frank G. Goodnow, City Government in

the United States, 239-40 (1991 repr.) (1904).

17

management through municipal departments operating under

the newest management techniques.**

For decades, professional engineers, public health officials,

and civic reformers had strongly supported purely municipal

operations, believing that sanitation was an inherently public

responsibility that should be managed as a public utility. From

the 1890s to the outbreak of the First World War, direct municipal

provision of waste services (using municipally owned disposal

facilities and municipal collection workers) increased

substantially. Surveys conducted from the 1880s to the end of

this period demonstrate increased municipal responsibility for

direct collection of solid waste, street cleaning and disposal. In

1880, 24% of the municipalities surveyed took complete

responsibility for collection and disposal while another 19%

contracted out the service. In a 1902 survey of 161 cities, ranging

in population from 28,000 to New York City’s millions, 33.5%

took complete responsibility and 30% contracted out their

service. In a 1915 survey of 168 cities, 50% of the cities had

municipally controlled collection service. Of the 96 cities

surveyed in 1924, 63% had direct municipal collection.“ Thus,

whatever the manner of disposal, the health factor, odors and

~ nuisances had established collection as an appropriate municipal

function.

Cities employed a wide variety of methods to dispose of

garbage. The evolution of waste disposal practices from the

primitive dumping on land or sea to the building of large-scale

industrial plants, also contributed to making local government’s

role in the management of municipal waste more widespread.

The demand for the safe and instant disposal of dangerous matter

could be met by the erection of facilities in which excrement,

garbage, dead animals and combustible refuse were incinerated.

In 1885, the first American incinerator was built. The first -

43. Melosi, supra, at 80, 87ff, 113; Griffith & Adrian, supra, at 8.

44. Melosi, supra, at 28, 30, 98-100, 106-07, 113-16, 137, 139,

153-4, 197; Blumberg & Gottlieb, supra, at 8ff.

18

generation of incinerators was not successful. Of 180

incinerators built between 1885 and 1908, 102 had been

abandoned by 1909. A second generation was built after 1910

and, more successful, achieved wider use.

Another important innovative method involved the

technology of reduction through which it was possible to extract

oils and other by-products through the compression of city

garbage. The byproducts could be sold as lubricants, perfume

base and fertilizer. Reduction, however, was unable to dispose

of the inorganic elements of the waste stream. Few reduction

plants remained in operation after the First World War.*°

Reduction plants, like incinerators, were capital-intensive,

“high technology” facilities. Both required waste management

conducted on such a large scale. Only a government entity——or

a contractor to a government entity —could muster the financial

and technical resources required.

The widespread pattern of municipal provision of sanitation

~ services in one form or another continued and similar ways of

dealing with it emerged again and again: different generations

of incinerators, waste-to-energy plants, recycling. Engineers

became aware that in order for waste management programs to

be productive, not only were large financial investments

necessary, but specific, complex, detailed planning was

necessary to account for the differences of each municipality.

As a result, existing contract arrangements were modified to

_ incorporate meticulous and necessary advances in waste

management practices because private contractors were not

willing to incorporate systems that required large capital

investment and were more interested in keeping costs low. “

— ———— — —

45. Melosi, supra, at 49, 152, 175; Blumberg & Gottlieb, supra,

at 8ff.

46. Peter T. White, The Fascinating World of Trash, 163 Nat’!

Geographic, April 1983, at 424, 456.

19

The post-war period brought new challenges. The progress

between 1880 and 1920 had been limited to waste elimination.

Much less thought was given to waste generation. By one

estimate, the solid waste generated after the First World War

increased five times as rapidly as the population. Between 1900

and 1920, each citizen of Manhattan, Brooklyn and the Bronx

annually produced 50 to 100 pounds of rubbish, 160 pounds of

‘garbage and 1231 pounds of ashes.*’ This would prove to be a

more intractable problem. The automobile and chemical

industries brought forth new collection and disposal products

problems in the 1920s as did the unprecedented growth of

packaging materials—paper goods, plastics, glass, aluminum, as

well as toxic chemicals and synthetics.** While sanitary

engineers had been able to solve the problems of municipal

sewage and waterworks with advanced technology,-they -

recognized that proper handling and disposal of solid waste

required less knowledge of technology and more of human

nature. The municipalities had to teach their residents how to

consume less.

FROM THE NEW DEAL ERA TO THE CREATION OF

THE ENVIRONMENTAL PROTECTION AGENCY

(1933-70)

The growing trend towards municipalities taking complete

responsibility for solid waste continued steadily in the 1920s

and 1930s. Direct municipal collection predominated, but some

municipalities instead used some form of contracts or franchise

agreements. By the late 1930s virtually every city with a

population exceeding 100,000 offered or contracted for

collection and disposal services. In 1939, 78% of the 190 cities

surveyed were directly responsible for collection and disposal.*

47. Melosi, supra? at 23.

48. /d. at 190.

49. Melosi, supra, at 197, 206; Blumberg & Gottlieb, supra, at 6;

Savas, supra, at 36-7..

20

During this period the Supreme Court upheld the exercise

of state police powers against Commerce Clause challenge in

two significant cases. in Clason v. Indiana, 306 U.S. 439 (1939),

the Court upheld a state law requiring transportation of waste

under strict sanitary conditions by a licensed operator. The

Supreme Court held that the mere power of the federal

government to regulate interstate commerce did not prevent the

states from adopting measures designed to secure the health

and comfort of their people.

in Parker v. Brown, 317 U.S. 341, 367 (1943), the Court

upheld an antitrust exemption for state and local regulation.

The Court recognized a wide scope for local regulation without

substantially impairing the national interest in the regulation of

commerce, so long as the free flow of commerce was not

materially obstructed.

After the Second World War, the further growth of the

package industry led to a jump in the volume of municipal solid

waste, as did the planned obsolescence of durable goods. Waste

generation, thus, had become an essential by-product of

economic activities.*°

The first “sanitary landfills” had been established in New

York City and Fresno in the 1930s. After the War, the sanitary

landfill became a preferred alternative to open dumping. The

rise of sanitary landfills also roughly coincided with the decline

of incineration that began during the 1940s and the 1950s.°'

The widespread pattern of municipal provision of sanitation

services in one form or another continued after 1960.°° There

was a growing trend back toward private contracting. New

environmental laws and regulations conceming landfills and

incinerators resulted in the closure of relatively small-scale, non-

50. Blumberg & Gottlieb, supra, at xv, 11ff.

St. Jd. at 17.

52. Melosi, supra, at 198.

21

compliant facilities owned by local governments. They were

replaced by a much smaller number of much larger, regulatory

compliant landfills (and a handful of incinerators), many owned

by private sector firms. .

During the 1960s, conglomerates began controlling a

substantial portion of the residential as well as the commercial

collection business. Through aggressive pricing and other

marketing techniques, a relatively small number of firms and

disposal facilities were able to secure contracts for the collection

and disposal of a significant portion of the nation’s waste,

generally under detailed contracts with local governments. The

widespread consolidation in the private waste industry resulted

in a handful of large, vertically integrated, multi-national firms

in place of hundreds of smaller, locally-based firms. The fiscal

difficulties of many local governments contributed to the trend.

Cities and counties sought to avoid upfront capital costs through

the resort to private disposal facilities and the lower ongoing

Operational costs that were associated with private collection

contracts. Although exclusive municipal collection declined,

65% of American cities maintained some degree of municipal

control.*

Complete reliance on landfills diminished as they filled or

failed to meet new standards. Communities began to look for

other alternatives.** During the 1960s with increased regulation,

additional permitting requirements and stepped-up monitoring

of pollution, responsibility for the various aspects of collection

became fragmented among many agencies, councils and

other groups. Passage of the Solid Waste Disposal Act by the

Congress in 1965 required no immediate changes, but brought

attention to the problem of solid waste on a national scale.

The federal government was authorized to grant financial

incentives to state and local government for research, training

53. Melosi, supra, at 197.

54. Id. at 190, 197, 199ff, 202; Blumberg & Gottlieb, supra at

128.

22

and local demonstration programs. A product of the Act was

the understanding that garbage was a problem extending

beyond city limits. Inter-local, county-wide and multi-county

arrangements began to make municipal boundaries less

meaningful.

THE ERA OF GREAT ENVIRONMENTAL

CONCERNS (1970-TO DATE)

By the 1970s, the solid waste problem was national. It had

become apparent that federal and state funding were essential

to any successful waste management system. In 1976, Congress

passed the Resource Conservation Recovery Act (RCRA,

42 U.S.C. §6901, et seq.) that focused primarily on the need to

change from disposal to recycling, resource recovery, and the

conversion of waste to energy. RCRA established a

comprehensive framework for managing hazardous and non-

hazardous waste in an environmentally sound manner, including

the requirement to properly handle and dispose of hazardous

waste from cradle to grave. The EPA was made responsible for

most national solid waste management activities. But a state

and local partnership was encouraged, pursuant to a system of

State solid waste plans, 42 U.S.C. §6943.

Towards the end of the 1970s, there were growing health

and environmental concerns about landfills. While the problem

of contamination of ground water resulting from leaking landfills

had begun to be recognized in the early and mid-1970s, it took

a few years before such conditions were given widespread

publicity.°° RCRA started to address this growing concern by

55. Prior to 1970, enforcement of the 1965 Waste Disposal Act

had been the responsibility of the United States Public Health Services

(USPHS) and the Bureau of Mines (BOM). The USPHS was responsible

for municipal waste and BOM supervised mining and fossil fuel waste

from power plants and industrial steam plants. When EPA was created,

the activities were combined and the responsibilities of oversceing solid

waste management activities transferred to EPA. Melosi, supra, at 201.

56. Blumberg & Gottlieb, supra, at 130.

23

requiring the EPA to develop cniteria for classifying open dumps

and sanitary landfills, which during the next two decades

ultimately led to the closure of thousands of unlined dumps

throughout the country, RCRA, at §6945.

Modern environmental awareness, better scientific capacity

to identify threats to public health, and technical innovation

have eliminated any complacency about the consequences of

disposal that rural communities, such as Madison County might

have once enjoyed. While traditional sanitation concerns arose

in the nation’s cities, with immediate danger from disease and

congestion, the modern era has revealed the threat posed to air

and groundwater by solid waste in every region. The response

to these threats in rural communities, like their urban neighbors,

must still come from local government. Technical and

organizational advances now make it possible to build safer,

although far more expensive, facilities to recycle, compost and

landfill solid waste, as Madison County has done. In Madison

County, as in New York City and other large population centers,

public participation remains extremely important, as local

_ governments strive to implement waste systems that reflect the

environmental standards demanded by the public. Today,

governmental accountability for the state of waste management

is as vital as ever. Therefore, it is important that the court affirm

the decision of the Second Circuit, in order to confirm that local

government can continue to provide the traditional leadership

it has always provided in the field.» ——

Amicus curiae_Madison-County, in response to concerns

from county residents and businesses that were seeing their local

dumps shutting down, addressed this-need for improved

environmental infrastructure by developing a county-owned and

operated solid waste management system in the mid 1970’s. It

included four solid waste transfer stations, recycling drop-off

facilities, and a central landfill for use by county residents,

businesses and haulers. Madison County has continued to

expand and upgrade these solid waste management facilities

24

over the years, ever mindful of the importance of providing

economical and environmentally sound solid waste management

services for the community.

Soaring energy prices in the late 1970’s and early 1980's,

along with RCRA’s emphasis on resource recovery, also helped

spur the development of waste-to-energy facilities in many

communities as a solution to the garbage crisis. These waste-

to-energy projects were typically implemented through public-

private partnerships. Under such partnerships the local

government typically paid a negotiated service fee to the waste-

to-energy facility owner/operator covering debt repayments and

the cost of disposal. In return, the private owner/operator

guaranteed to operate the facility at specified performance levels

and share the energy revenues through a negotiated formula.*”

New York State encouraged the development of waste-to-

energy projects by providing grant assistance from a 1976

Environmental Quality Bond Act and by establishing more

flexible public procurement rules (NYS General Municipal Law

Section 120-ww, adopted in 1980) that facilitated the negotiation

of more complex development contracts that were involved with

such public-private partnership arrangements.

In 1980 Congress adopted the Comprehensive

Environmental Response, Compensation and Recovery Act

(CERCLA, also known as Superfund, 42 U.S.C. §9601 ef seq).

CERCLA established a funding mechanism and environmental

standards that authorized EPA to take action to clean up

abandoned or uncontrolled hazardous waste sites that pose a

threat to public health or the environment. CERCLA also

imposed strict liability upon those deemed responsible for the

release of hazardous substances from such sites. A portion of

this clean-up liability even extended to municipalities,

businesses, haulers and waste generators who had only sent non-

hazardous waste to what eventually became identified as a

Superfund site. CERCLA made it clear that the consequences

57. Id., at 38.

25

of improper waste disposal could be severe — to public health,

to the environment and to the financial balance sheet.

In New York State, the Solid Waste Management Act of

1988 (1988 Act) established requirements for local government

planning units to prepare long term (a minimum ten-year

planning period) solid waste management plans that would be

consistent with a state-wide solid waste management hierarchy

consisting of the following priorities: 1*-waste reduction, 2™

—tecycling, 3“—tecovery of energy from waste and 4°—

landfill disposal. The 1988 Act also required municipalities to

adopt local laws or ordinances to mandate that recyclable

materials be separated from waste, thereby spurring a substantial

increase in recycling within New York State that continues to

this day.

Madison County, like OHSWMA and other local

government planning units throughout New York State, prepared

a comprehensive long term solid waste management plan in

accordance with the 1988 Act. The County’s development of

this long term plan not only involved considerable input from

the community, including local haulers and recycling companies,

but culminated with review and approval by the County’s elected

Board of Supervisors and by the New York State Department

of Environmental Conservation. The County’s long term plan

calls for the county to continue to provide an environmentally

sound, integrated system of solid waste management facilities

for county residents, businesses and haulers that emphasizes

waste reduction and recycling.

Today, like Respondent, Madison County provides a full

array of recycling, waste reduction, household, hazardous waste,

transfer, and landfill disposal services to its constituents. These

services are paid for by system user (tipping) fees on waste,

with no fees charged for recycling, thereby providing incentives

to recycle more and to generate less waste for disposal. Within

months of the Second Circuit’s decision below, in 2001 Madison

County also adopted a local flow control law that is substantially

26

similar to Respondent’s, which enables it to secure waste

disposal fees that are adequate to support its environmentally

beneficial recycling and waste reduction programs, disposal of

household hazardous waste, sharps, television and computer

recycling, public education, and other programs.

In addition, the County currently has a permit application

pending with the New York State Department of Environmental

Conservation for a landfill expansion that is anticipated to

provide environmentally sound solid waste disposal capacity

for over one hundred years. Flow control assures steady tipping

fee revenues which are critical to Madison County’s

environmentally sound solid waste management programs.

27

CONCLUSION

The decision below should be affirmed.

Respectfully submitted,

JEFFREY B.-Morris

Counsel of Record

Touro Law SCHOOL

300 Nassau Road

Huntington, NY 11743

(718) 428-3507

S. JoHN CAMPANIE

County Attorney

Madison County

North Court Street

P.O. Box 635

Wampsville, NY 13163

Micuet J. DeBortis

Madison County

Solid Waste and Recycling

Committee Chairman

230 Main Street

Oneida, NY 13421

Counsel for Amicus Curiae