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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 550 U.S. 330

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0252%3A14. Public record. Not legal advice.