# Amicus Curiae Brief — A. A. & M. Carting Service, Inc. v. Town of Babylon

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1150

## Text

MOTION FILED

6) 95-1208

MAR 1 199%
No.
IN THE
Supreme Court of the United States

OCTOBER TERM, 1995

A. A. & M. CARTING SERVICE, INC.; FARMINGDALE
CARTING, INC.; NATALE PEPE WASTE CORP.; PGS
CARTING CO., INC.; JOSEPH S. CELANO; MARIANNE
CELANO,; JC INDUSTRIES, INC.; C.B.S. RUBBISH CO., INC.;
FARMINGDALE INDUSTRIAL PARK ASSOCIATION;
MINERSFUEL COMPANY, INC.; and RESOURCES
CONSERVATION CORP.,

Petitioners,
vs.

TOWN OF BABYLON, NEW YORK, COMMERCIAL
GARBAGE DISTRICT NO. 2, also known as Commercial Waste
Collecting and Recycling District; TOWN BOARD OF THE
TOWN OF BABYLON; RICHARD H. SCHAFFER; and
BABYLON SOURCE SEPARATION COMMERCIAL, INC.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE
AND BRIEF OF AMICUS CURIAE NEW YORK STATE
CONFERENCE OF MAYORS AND MUNICIPAL OFFICIALS
IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI

DONNA M. C. GILIBERTO
General Counsel
Counsel of Record
NEW YORK STATE CONFERENCE OF
MAYORS AND MUNICIPAL OFFICIALS
Attorney for Amicus Curiae
119 Washington Avenue
Albany, New York 12210
(518) 463-1185 |

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

A. A. & M. CARTING SERVICE, INC.; FARMINGDALE
CARTING, INC.; NATALE PEPE WASTE CORP.; PGS
CARTING CO., INC.; JOSEPH S. CELANO; MARIANNE
CELANO; JC INDUSTRIES, INC.; C.B.S. RUBBISH CO., INC.;
FARMINGDALE INDUSTRIAL PARK ASSOCIATION;
MINERSFUEL COMPANY, INC.; and RESOURCES
CONSERVATION CORP.,

Petitioners,
vs.

TOWN OF BABYLON, NEW YORK, COMMERCIAL
GARBAGE DISTRICT NO. 2, also known as Commercial Waste
Collecting and Recycling District, TOWN BOARD OF THE
TOWN OF BABYLON; RICHARD H. SCHAFFER; and
BABYLON SOURCE SEPARATION COMMERCIAL, INC.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

The New York State Conference of Mayors and Municipal
Officials (“NYCOM”) respectfully moves this Court,
pursuant to Rule 36.3, for leave to file the attached brief
amicus curiae in support of the petition for certiorari in this
case. The consent of attorney for the petitioners has been
obtained. The consent of attorneys for the respondents was
requested and received.

NYCOM is a _ not-for-profit, voluntary membership
association for the cities and villages of the State of New

York, which has as its goal the promotion of efficient
municipal government. NYCOM’s current membership
consists of all of the State’s 62 cities and 496 of its 558
villages, thereby representing the great majority of such
municipalities.

In cooperation with cities and villages, NYCOM advocates
and supports legislation, participates in litigation and provides
information and education beneficial to the administration of
municipal affairs and opposes legislation detrimental to cities
and villages and the people therein. NYCOM also has a vital
interest in the outcome of this and other cases dealing with the
issue of flow control because such decisions have begun to
chip away at the United States Supreme Court decision in C
& A Carbone, Inc. v. Town of Clarkstown, 114 S. Ct. 1677,
399 L.Ed.2d 128 (1994) with the ultimate and substantial
effect of depriving NYCOM members of the ability to
contract freely for solid waste disposal services inside and
outside of New York. This ability to contract freely is
essential to the effective functioning of local governments.

NYCOM has, on numerous occasions, expressed its
opposition to flow control legislation to the former and
current governors of New York State and to the State’s
legislative and congressional members. On March 1, 1995 and
March 23, 1995 NYCOM Executive Director Edward C.
Farrell delivered testimony before the U.S. Senate Subcom-
mittee on Superfund, Waste Control and Risk Assessment,
and the U.S. House of Representatives Subcommittee on
Commerce, Trade and Hazardous Materials, respectively, on
the issue of congressional authorization of flow control.
Amicus App. A-1 and A-11.

Opposition to federal and state legislation which would
authorize enactment of flow control provisions is a prominent
plank of NYCOM’s 1996 Legislative Program. NYCOM’s
primary aim is to safeguard those municipalities and public
agencies obtaining “flow control” powers from using them to
raise general fund revenues by mandating the disposal of solid

waste at “tipping fee” rates higher than the municipalities’
actual disposal costs.

The authority to enact local flow control legislation has
been granted to nearly half of New York’s counties and to a
smaller number of towns, cities and villages. NYCOM
members represent that level of government most directly
involved in the collection of solid waste, and which thereby
are most directly affected by flow control legislation.

NYCOM was an amicus curiae in the case of Town of
North Hempstead v. Village of Westbury, 618 N.Y.S.2d 226
(N.Y. App. Div. 1994), appeal withdrawn, 647 N.E.2d 455
(N.Y. 1995) which involved the constitutionality of a flow
control ordinance in the Long Island, New York town of
North Hempstead. Most notably, NYCOM was among the
amici curiae in C & A Carbone, Inc. v. Town of Clarkstown,
114 S. Ct. 1677, 399 L.Ed.2d 128 (1994) in which the United
States Supreme Court invalidated a flow control scheme
virtually identical to the one at issue in the present case.

In the months following the Carbone decision we have
witnessed three decidedly different courses of conduct. On the
positive side, the Carbone decision provided cities and
villages with what they were seeking at the beginning: a seat,
as well as a voice, at the negotiating table. In other cases, it
resulted in lower and more responsible rates for garbage
disposal. Where the Carbone decision was adhered to, we saw
the return of competition to the garbage disposal business as
those who previously used flow control for their own
economic gain were forced to reevaluate their finances.

The negative course of conduct has included various
attempts to undermine, circumvent, and subvert the Carbone
decision, either by ignoring the decision of this Court, or by
enacting a new regulatory/contractual scheme such as in the
Town of Babylon. While in some cases, the failure to adhere
to Carbone can be blamed on ignorance, in most cases, this
failure has been deliberate.

iv

The third course of conduct was undertaken by proponents
of flow control who heeded Justice O’Connor’s concurrence
in Carbone, and mounted a fierce congressional campaign to
authorize states to permit flow control legislation. Proponents
enjoyed a major victory when the U. S. Senate passed a bill
on May 16, 1995 - the first anniversary of the Carbone
decision. However, this effort, which spanned almost two
years, was Lrought to an end on January 31, 1996 when the
House of Representatives rejected flow control by a 272-149
vote.

This case raises an important issue for NYCOM members.
NYCOM represents that level of government - cities and
villages - most directly involved in the collection of solid
waste, and thereby the most directly affected by flow control.
Flow control has been hailed by some as a necessary planning
tool guaranteeing a steady flow of waste to a specific solid
waste facility to finance the costs of that facility. In most
cases, it is NYCOM’s members which are subsidizing these
expensive facilities through corresponding increases in the
local real property tax. Traditionally, local governments in
New York rely upon the local real property tax as their main
source of revenue and the primary method for financing solid
waste disposal. Approximately 65 percent of the cities and
villages are currently financing their disposal costs through
municipal taxes, while another 15 percent impose user fees.
Flow control adds unnecessary spending to a city or village’s
bottom line. While in New York, counties and some towns
are legislatively charged with solid waste planning, that
charge does not require that the county or town become the
ultimate disposal site for all of the garbage generated within
the jurisdiction. Additionally, flow control deprives local
governments of the ability to contract freely for solid waste
disposal services inside and outside of New York. This ability
to contract freely is essential to the effective functioning of
local governments.

The judgment below, if allowed to stand, will act as a
“green light” to the owners and operators of solid waste
facilities to continue to flaunt the Court’s decision in

Vv

Carbone, despite the recent action of Congress. Without

further direction, the Court can anticipate that the district and
appellate courts will continue to carve out exceptions to
| Carbone based upon local situations and conditions. We
respectfully suggest that the Court cannot permit flow control
proponents to evade Carbone through the “backdoor” when
Congress has clearly chosen not to provide this authority
through the legislative “front door”.

NYCOM submits that the judgment below is wrong and,
unless reversed, will provide a road map to municipalities
| seeking to evade the Carbone decision and to continue to
force trash to go to a local facility.

NYCOM therefore urges this Court to grant the petition for
certiorari in this case and to accept the attached brief to assist
the Court in its resolution of this matter.

Respectfully submitted, |

DONNA M. C. GILIBERTO
General Counsel
Counsel of Record

NEW YORK STATE CONFERENCE
OF MAYORS AND MUNICIPAL
OFFICIALS

119 Washington Avenue

Albany, NY 12210

(518) 463-1185

Attorney for Amicus Curiae

vii

TABLE OF CONTENTS
Page
TAREE, OF AU TIRE Be ccccscsccccsssccvesscvsocsessssevens iX
INTEREST OF AMICUS CURIAE.............::cccccsseceee l
SUMMARY OF ARGUMENT .............:cssscseseeeeseeees 3
IIIT ind tik ccicecheipunccaitiaccnineusieetgbcnateaetinnacteeisinite 4
IIT sh css ssss sincnokassdcaheariannacnaeciosdicdagunnnetnnenss 9

TABLE OF AUTHORITIES

Cases:

Atlantic Coast Demolition & Recycling, Inc. v.
Board of Chosen Freeholders, 48 F.3d 1417 (3d

8 RRS TIES Oe ee 6n.1, 7n.4
Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 104 S.
Ct. 3049, 82 L.Ed.2d 200 (1984) o..cccccceceseeeee. 8

Ben Oehrleins & Sons & Daughter, Inc. v.
Hennepin County, 867 F. Supp. 1430 (D. Minn.

RES HEHAA SOE Rene re ee eT NCC 6n.1, 7n.4
Blue Circle Cement, Inc. v. Board of County
Comm rs, 27 F.3d 1499 (10th Cir. 1994) .000000000.... 6n.1, 7n.4
Bonollo Rubbish Removal, Inc. v. Town of Franklin,
886 F. Supp. 955 (D. Mass. 1995) .........cccccccceceseee. 6n.1, 7n.4
C & A Carbone, Inc. v. Town of Clarkstown, 114 S.
Ct. 1677, 399 L.Ed.2d 128 (1994) ooo occccecceeeeeeeee passim
(Town of ) Clarkstown v. C & A Carbone, Inc., 617
N.Y.S.2d 482 (N.Y. App. Div. 1994)... ill,
6n.2, 7n.4

Davis Clarkco Landfill Company v. Clark Cty Solid
Waste Management Dist., 653 N.E.2d 646 (Ohio
ar ares cnineiecsnassdealepaiadiaaiabiasesdsiiaieenictididhetcaniaemtiactsadl 6n.2, 7n.4

Delaware County v. Raymond T. Opdenaker &
Sons, Inc., 652 A.2d 434 (Pa. Commw. Ct. 1994).6n.2, 7n.3

Empire Sanitary Landfill, Inc. v. State, 645 A.2d

413 (Pa. Commw. Ct. 1994) occ ececccceeeeeeeeee 6n.2, 7n.4
Environmental Waste Reductions, Inc. v. Reheis,
887 F. Supp. 1534 (N.D. Ga. 1995) 0... eee 6n.1, 7n.4

Grand Central Sanitation, Inc. v. City of Bethlehem,
1994 WL 613674 (E.D. Pa. 1994) oceans 6n.1;7n.3

Cases: Page

Harvey & Harvey, Inc. v. County of Chester, 68
F.3d 788 (3d Cir. 1995), petition for cert. filed,
64 U.S.L.W. 3510 (U.S. Jan. 16, 1996) (No. 95-

8 EEF Picsceccsqcsssetesaninienmnntienissiiisiatecssninintancstiaidinatinnaastiol 6n.1, 7n.3
Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S. Ct.
ee TR eee 8

Hunt v. Washington State Apple Advertising
Comm'n, 432 U.S. 333, 97 S. Ct. 2434, 53
Rn UE GAIT T iicccnserceiinintaieenniidinendibaniinanntiganes 8

Kleenwell Biohazard Waste and General Ecology
Consultants, Inc. v. Nelson, 48 F.3d 391 (9th Cir.
1995), cert. denied, 115 S. Ct. 2580 (1995)........... 6n.1, 7n.4

National Solid Wastes Management Ass'n v. Meyer,
63 F.3d 652 (7th Cir. 1995), petition for cert.
filed, 64 U.S.L.W. 3486 (U.S. Dec. 18, 1995)
BO, Sr cccnicnncenicsestittiniscatinniaiiatanipasaiiaiiail 6n.1, 7n.4

National Solid Wastes Management Ass'n v.
Williams, 877 F. Supp. 1367 (D. Minn. 1995) ......6n.1, 7n.4

(Town of ) North Hempstead v. Village of Westbury,
618 N.Y.S.2d 226 (N.Y. App. Div. 1994), appeal

withdrawn, 647 N.E.2d 455 (N.Y. 1995) ...........+.+ 6n.2, 7n.4
Oregon Waste System v. of

Environmental Quality, 114 S. Ct. 1345 (1994)... 8,9
Philadelphia v. New Jersey, 437 U.S. 617, 98 S. Ct.

BaB 0, DU Cede SEO COOP rrteeemenemnene 8
Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S. Ct.

ee 8,9

Pine Ridge Recycling, Inc. v. Butts County,
Georgia, 855 F. Supp. 1264 (M.D. Ga. 1994).......6n.1, 7n.4

xi

Cases: Page

R & R Disposal Carting, Inc. v. Town of
Clarkstown, 620 N.Y. S.2d 215 (N.Y. 1994) ........ 6n.2, 7n.4

Southcentral Pennsylvania Waste Haulers Ass'n v.
Bedford-Fulton-Huntingdon Solid Waste Auth.,
877 F. Supp. 935 (M.D. Pa. 1994)............cccceeeeeres 6n.1, 7n.4

SSC Corp. v. Town of Smithtown, 66 F.3d 502 (2d
Cir. 1995), cert. denied, 64 U.S.L.W. 3380 (U.S.
Feb. 20, 1996) (No. 95-782) ...........ccccseerreeneereeeeees 6n.1, 7n.3

USA Recycling, Inc. v. Town of Babylon, 66 F.3d
1272 (2d Cir. 1995), petition for cert. filed, 64
U.S.L.W. 3534 (U.S. Jan. 30, 1996) (No. 95-

Vince Refuse Serv., Inc. v. Clark County Solid
Waste Management Dist., No. C-3-93-319, 1995

WL, 253121 (B.D. Oii0) ....0..-cccccocccecoscccccseccrecssceees 6n.1, 7n.3
LEGISLATIVE MATERIALS
H.R. Res. 349, 104th Cong. 2d Sess. (1996) ............. 5

S. 534, 104th Cong. Ist Sess. (1995) ...........c-ccceeeeees 5

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

A. A. & M. CARTING SERVICE, INC.; FARMINGDALE
CARTING, INC.; NATALE PEPE WASTE CORP.; PGS
CARTING CO., INC.; JOSEPH S. CELANO; MARIANNE
CELANO, JC INDUSTRIES, INC.; C.B.S. RUBBISH CO., INC.;
FARMINGDALE INDUSTRIAL PARK ASSOCIATION;
MINERSFUEL COMPANY, INC.; and RESOURCES
CONSERVATION CORP..,

Petitioners,
vs,

TOWN OF BABYLON, NEW YORK, COMMERCIAL
GARBAGE DISTRICT NO. 2, also known as Commercial Waste
ing and Recycling District; TOWN BOARD OF THE
TOWN OF BABYLON; RICHARD H. SCHAFFER; and
BABYLON SOURCE SEPARATION COMMERCIAL, INC.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF AMICUS CURIAE OF THE NEW YORK STATE
CONFERENCE OF MAYORS AND MUNICIPAL
OFFICIALS IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS CURIAE
_NYCOM is a not-for-profit, voluntary membership asso-

government. NYCOM’s current membership consists of all of

ee

2

administration of municipal affairs and opposes legislation
detrimental to cities and villages and the people therein.

NYCOM has a vital interest in the outcome of this and
other cases dealing with the issue of flow control in the post-
Carbone era since NYCOM members represent that level of
government most directly involved in the collection of solid
waste, and which thereby are most directly affected by flow
control legislation. NYCOM was among the amici curiae in C
& A Carbone, Inc. v. Town of Clarkstown, 114 S. Ct. 1677,
399 L.Ed.2d 128 (1994).

In the months following the Carbone decision we have
witnessed three decidedly different courses of conduct. On the
positive side, the Carbone decision provided cities and vil-
lages with what they were seeking at the beginning: a seat, as
well as a voice, at the negotiating table. In other cases, it re-
sulted in lower and more responsible rates for garbage dis-
posal. Where the Carbone decision was adhered to, we saw
the return of competition to the garbage disposal business as
those who previously used flow control for their own eco-
nomic gain were forced to reevaluate their finances.

The negative course of conduct has included various at-
tempts to undermine, circumvent, and subvert the Supreme
Court’s ruling, either by ignoring the decision of this Court,
or by enacting a new regulatory/contractual scheme such as in
the Town of Babylon. While in some cases, the failure to ad-
here to Carbone can be blamed on ignorance, in most cases,
this failure has been deliberate.

The third course of conduct was undertaken by proponents
of flow control who heeded Justice O’Connor’s concurrence
in Carbone, and mounted a fierce congressional campaign to
authorize states to permit flow control
enjoyed a major victory when the U. S. Senate passed a bill
on May 16, 1995 - the first anniversary of the Carbone deci-
was brought to an end on January 31, 1996 when the House of
Representatives rejected flow control by a 272-149 vote.

3

This case raises an important issue for NYCOM members.
NYCOM represents that level of government - cities and vil-
lages - most directly involved in the collection of solid waste,
and thereby the most directly affected by flow control. Flow
control has been hailed by some as a necessary planning tool
guaranteeing a steady flow of waste to a specific solid waste
facility to finance the costs of that facility. In most cases, it is
NYCOM’s members which are subsidizing these expensive
facilities through corresponding increases in the local real

tax. Traditionally, local governments in New York
rely upon the local real property tax as their main source of
revenue and the primary method for financing solid waste
disposal. Approximately 65 percent of the cities and villages
are currently financing their disposal costs through municipal
taxes, while another 15 percent impose user fees. Flow con-
trol adds unnecessary spending to a city or village’s bottom
line. While in New York, counties and some towns are legis-
latively charged with solid waste planning, that charge does
not require that the county or town become the ultimate dis-
posal site for all of the garbage generated within the jurisdic-
tion. Additionally, flow control deprives local governments of
the ability to contract freely for solid waste disposal services
inside and outside of New York. This ability to contract freely
is essential to the effective functioning of local governments.

SUMMARY OF ARGUMENT

The amicus will argue that Congress has spoken and that
despite their best efforts, there will be no legislative solution
for flow control proponents. As a result of Congress’ defeat of
a flow control authorization bill, it is now more important
than ever that the Court not permit localities to flaunt its’ de-
cision in Carbone. What Congress and this Court would not
allow through the front door should not be accomplished
through the back door by localities and the lower courts.

ments, i ing the Town of Babylon, have recognized that
their local laws directing solid waste to a specific facility are

4

invalid under the Commerce Clause, and have sought to find
new ways to defray their financial commitments to the opera-
tors of local solid waste management facilities. Rather than
pursue the politically unpopular solution offered by the Court
in the form of general taxes or municipal bonds, municipali-
ties like the Town of Babylon have chosen to perpetuate a
regime that continues to direct solid waste to a chosen facility.

Certain of the district and appellate courts have been sym-
pathetic to the arguments presented by municipalities like the
Town of Babylon. Such a posture has resulted in piecemeal
and inconsistent application of Carbone. The amicus will ar-
gue that the Court needs to send a clear message to the district
and appellate courts which have upheld local waste flow plans
that replace local laws of the type invalidated in Carbone with
regulatory requirements and/or contractual schemes designed
to ensure that local waste continues to go to a local disposal
facility.

ARGUMENT
I

CONGRESS’ DEFEAT OF FLOW CONTROL
REQUIRES THIS COURT TO ADDRESS
LOCAL GOVERNMENT EVASION OF
CARBONE

When this Court held the Town of Clarkstown’s flow con-
trol ordinance constitutionally invalid under the Commerce
Clause in the Carbone decision, it provided, in a concurring
opinion written by Justice O'Connor, an opportunity for a
legislative solution to flow control. In Justice O’Connor’s
words: “It is within Congress’ power to authorize local im-
position of flow control. Should Congress revisit this area,
and enact legislation providing a clear indication that it in-
tends States and localities to implement flow control, we will,
of course, defer to that legislative judgment.” Carbone, supra
at 1692.

Shortly after this Court issued the Carbone decision, flow
control proponents mounted a fierce campaign for legislation

——

;

5

providing congressional authorization for states to implement
flow control. On the one-year anniversary of the Carbone de-
cision - May 16, 1995 - the U. S. Senate passed flow control
authorization legislation grandfathering waste facilities built
or planned with flow control at the time of this Court’s deci-
sion in Carbone. S. 534, 104rd Cong., Ist Sess. (1995). Ef-
forts in the U.S. House of Representatives to introduce an
identical bill failed and a narrow bill which would grandfather
facilities existing or financed at the time of the Carbone de-
cision was introduced. A House of Representatives resolution
providing for the consideration of the Senate bill was defeated
in the House on January 31, 1996 by a vote of 272-149. H.R.
Res. 349, 104th Cong., 2d Sess. (1996).

The House of Representatives’ defeat of a legislative solu-
tion to flow control sends a strong message to the 104th
Congress that flow control legislation is unnecessary and not
forthcoming in the near future.

Inasmuch as Congress’ action has foreclosed a legislative
solution to flow control, it can be expected to heighten the
activity of flow control proponents to craft new and additional
regulatory and/or contractual solutions and to seek support for
these mechanisms through the courts. For this reason it is vital
that the Court grant this petition and address local government
evasion of its decision in Carbone. Without such action at this
time, the Court can be assured that the issue of flow control
will continue to consume the time and effort of the lower
courts, as well as this Court’s calendar with petitions for writs
of certiorari.

It

INCONSISTENT LOWER COURT
DECISIONS ON FLOW CONTROL REQUIRE
THIS COURT TO CLARIFY ITS HOLDING
IN CARBONE

Since this Court’s decision in Carbone, there has been a
plethora of cases in the federal district and appellate courts
dealing with the constitutional validity of waste management

plans of states and localities. To date, the Carbone decision
has been cited as authority in at least 15 reported federal
opinions’ dealing with Commerce Clause challenges and at
least six reported state court opinions” dealing with solid
waste issues and Commerce Clause challenges. Of these 21
decisions, 15 occurred in the flow-control setting; of those,
six distinguished Carbone or questioned its application in

' Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Free-
holders, 48 F.3d 1417 (3d Cir. 1995); Ben Oehrleins and Sons and
Daughter, Inc. v. Hennepin County, 867 F.Supp. 1430 (D. Minn. 1994);
Blue Circle Cement, Inc. v. Board of County Comm'rs, 27 F.3d 1499
(10th Cir. 1994); Bonollo Rubbish Removal, Inc. v. Town of Franklin, 886
F. Supp. 955 (D. Mass. 1995); Environmental Waste Reductions, Inc. v.
Reheis, 887 F. Supp. 1534 (N.D. Ga. 1995); Grand Central Sanitation,
Inc. v. City of Bethlehem, 1994 WL 613674 (E.D. Pa. 1994); Harvey &
Harvey, Inc. v. County of Chester, 68 F.3d 788 (3d Cir. 1995), petition for
cert. filed, 64 U.S.L.W. 3510 (U.S. Jan. 16, 1996) (No. 95-1127); Kleen-
well Biohazard Waste and General Ecology Consultants, Inc. v. Nelson,
48 F.3d 391 (9th Cir. 1995), cert. denied, 115 S. Ct. 2580 (1995); Na-
tional Solid Waste Management Ass'n v. Meyer, 63 F.3d 652 (7th Cir.
1995), petition for cert. filed, 64 U.S.L.W. 3486 (U.S. Dec. 18, 1995) (No.
95-1079); National Solid Waste Management Assoc'n v. Williams, 877 F.
Supp. 1367 (D. Minn. 1995); Pine Ridge Recycling, Inc. v. Butts County,
Georgia, 855 F. Supp. 1264 (M.D. Ga. 1994); Southcentral Pennsylvania
Waste Haulers Ass'n v. Bedford-Fulton-Huntington Solid Waste Author-
ity, 877 F. Supp. 935 (M.D. Pa. 1994); SSC Corp. v. Town of Smithtown,
66 F.3d 502 (2d Cir. 1995), cert. denied, 64 U.S.L.W. 3380 (U.S. Feb. 20,
1996) (No. 95-782); USA Recycling, Inc. v. Town of Babylon, 66 F.3d
1272 (2d Cir. 1995), petition for cert. filed, 64 U.S.L.W. 3534 (U.S. Jan.
30, 1996) (No. 95-1223); Vince Refuse Service, Inc. v. Clark County Solid
Waste Management Dist., No. C-3-93-319, 1995 WL 253121 (S.D. Ohio).

* Town of Clarkstown v. C & A Carbone, Inc., 617 N.Y.S.2d 482 (N.Y.
App. Div. 1994); Davis Clarkco Landfill Co. v. Clark Cty Solid Waste
Management Dist., 653 N.E.2d 646 (Ohio 1995); Delaware County v.
Raymond T. Opdenaker & Sons, Inc., 652 A.2d 434 (Pa. Commw. Ct.
1994); Empire Sanitary Landfill, Inc. v. State, 645 A.2d 413 (Pa. Commw.
Ct. 1994); Town of North Hempstead v. Village of Westbury, 618
N.Y.S.2d 226 (N.Y. App. Div. 1994), appeal withdrawn, 647 N.E.2d 455
(N.Y. 1995); R & R Disposal Carting, Inc. v. Town of Clarkstown, 620
N.Y.S.2d 215 (N.Y. 1994).

7

upholding state and municipal flow-control schemes’, while
nine decisions followed Carbone in recognizing challenges to
waste-flow laws’. The remaining six cases dealt with solid
waste issues generally; of these, two distinguished or declined
to apply Carbone in turning aside challenges to the waste
plans at issue’, while four opinions cited Carbone in recogniz-
ing challenges to the solid waste plans.°

> Harvey & Harvey, Inc. v. County of Chester, 68 F.3d 788 (3d Cir. 1995),
petition for cert. filed, 64 U.S.L.W. 3510 (U.S. Jan. 16, 1996) (No. 95-
1127); SSC Corp. v. Town of Smithtown, 66 F.3d 502 (2d Cir. 1995), cert.
denied, 64 U.S.L.W. 3380 (U.S. Feb. 20, 1996) (No. 95-782); USA Re-
cycling, Inc. v. Town of Babylon, 66 F.3d 1272 (2d Cir. 1995), petition for
cert. filed, 64 U.S.L.W. 3534 (U.S. Jan. 30, 1996) (No. 95-1223), Vince
Refuse Serv., Inc. v. Clark County Solid Waste Management Dist., No. C-
3-93-319, 1995 WL 253121 (S.D. Ohio 1995); Grand Central Sanitation,
Inc. v. City of Bethlehem, No. 94-59-28, 1994 WL 613674 (E.D. Pa.
1994); Delaware County v. Raymond T. Opdenaker & Sons, Inc., 652
A.2d 434 (Pa. Commw. 1994).

* National Solid Wastes Management Ass'n v. Williams, 877 F. Supp.
1367 (D.Minn. 1995); Atlantic Coast Demolition & Recycling, Inc. v.
Board of Chosen Freeholders, 48 F.3d 701 (3d Cir. 1995)1 Ben Oehrieins
& Sons & Daughter, Inc. v. Hennepin County, 867 F. Supp. 1430 (D.
Minn. 1994); Bonollo Rubbish Removal, Inc. v. Town of Franklin, 886 F.
Supp. 955 (D. Mass. 1995); Southcentral Pennsylvania Waste Haulers
Ass'n v. Bedford-Fulton-Huntingdon Solid Waste Auth., 877 F. Supp. 935
(M.D. Pa. 1994); R & R Disposal Carting, Inc. v. Town of Clarkstown,
620 N.Y.S. 2d 215 (N.Y. 1994); Town of Clarkstown v. C & A Carbone,
Inc., 617 N.Y.S.2d 482 (N.Y. App. Div. 1994); Town of North Hempstead
v. Village of Westbury, 618 N.Y.S.2d 226 (App. Div. 1994); Empire
Sanitary Landfill, Inc. v. State, 645 A.2d 413 (Pa. Commw. Ct. 1994).

> Kleenwell Biohazard Waste & General Ecology Consultants, Inc. v. Nel-
son, 48 F.3d 391 (9th Cir.), cert. denied, 115 S. Ct. 2580 (1995); Blue
Circle Cement, Inc. v. Board of County Comm'rs, 27 F.3d 1499 (10th Cir.
1994).

® National Solid Wastes Management Ass'n v. Meyer, 63 F.3d 652 (7th
Cir. 1995), petition for cert. filed, 64 U.S.L.W. 3486 (U.S. Dec. 18, 1995)
(No. 95-1079); Environmental Waste Reductions, Inc. v. Reheis, 887 F.
Supp. 1534 (N.D. Ga. 1994); Pine Ridge Recycling, Inc. v. Butts County,
855 F. Supp. 1264 (M.D. Ga. 1994); Davis Clarkco Landfill Co. v. Clark
County Solid Waste Management Dist., 653 N.E.2d 646 (Ohio 1995).

Of those rejecting Carbone, the most notable is the present
case, which deals with the creation by the Town of a com-
mercial garbage district within its boundaries which licensed a
single private company to collect all waste generated within
this new district pursuant to a contract with the Town. The
appellate court reversed the lower court and ruled that the
Town’s plan did not discriminate against or impose any undue
burden on interstate commerce.

This Court has clearly established a two-step process for
evaluating the validity of a statute under the Commerce
Clause. Carbone, 114 S.Ct. 1677; Oregon Waste System v.
Department of Environmental Quality, 114 S. Ct. 1345, 1347
(1994). In a Commerce Clause challenge, the burden is ini-
tially on the plaintiff to show that the legislation is discrimi-
nating against interstate commerce on its face or in its purpose
and effect. Hughes v. Oklahoma, 441 U.S. 322, 336, 99 S. Ct.
1727, 1736, 60 L.Ed.2d 250 (1979). The first step of the
evaluation is to determine whether the regulation of interstate
commerce discriminates against interstate commerce or favors
in-state economic interests over their out-of-state counter-
parts. Carbone, 114 S. Ct. at 1682; Oregon Waste System, 114
S. Ct. at 1347. If an ordinance so discriminates, it is virtually
per se invalid unless the municipality can show that the ordi-
nance advances a “legitimate local purpose that cannot be
adequately served by reasonable nondiscriminatory alterna-
tives;” such purposes are to be strictly scrutinized by the
Court. Oregon Waste System, 114 S. Ct. at 1347.

In addition, when it is shown that a law was enacted with a
purpose to discriminate against interstate commerce, strict
scrutiny is also required. A regulation may be discriminatory
on its face, in its purpose or effect. Bacchus Imports, Ltd. v.
Dias, 468 U.S. 263, 270, 104 S. Ct. 3049, 3054-55, 82
L.Ed.2d 200 (1984); Philadelphia v. New Jersey, 437 U.S.
617, 98 S. Ct. 2531, 57 L.Ed.2d 475 (1978); Hunt v. Washing-
ton State Apple Advertising Comm'n, 432 U.S. 333, 352-53,
97 S. Ct. 2434, 2446-47, 53 L.Ed.2d 383 (1977).

If a regulation is not discriminatory, but rather regulates
evenhandedly, then the Court must apply the Pike balancing

:
H
t

9

test and determine whether the burden on interstate commerce
is clearly excessive in relation to the putative local benefits.
Carbone, 114 S. Ct. at 1682; Oregon Waste System, 114 S.
Ct. 1347; Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.
Ct. 844, 847, 25 L.Ed.2d 174 (1970).

It is submitted that in the present case, the court, while us-
ing the two-part analysis, sought to carve out an exception for
the subject municipal scheme by stretching the envelope of
analysis as outlined in the aforementioned cases.

Inasmuch as the Court of Appeals decision in the present
case - as well as the inconsistent opinions of other federal
courts on post-Carbone flow control cases - provides munici-
palities with a framework for evading this Court’s decision in
Carbone, granting of this petition and review of the judgment

of the Court of Appeals is necessary.
CONCLUSION

For the reasons stated above, this Court should grant the
petition for certiorari and reverse the decision below.

Respectfully submitted,

DONNA M. C. GILIBERTO
General Counsel
Counsel of Record

NEw YORK STATE CONFERENCE
OF MAYORS AND MUNICIPAL
OFFICIALS

119 Washington Avenue

Albany, NY 12210

(518) 463-1185

Attorney for Amicus Curiae

March 1, 1996

APPENDIX

A-l

Testimony of Edward C. Farrell
Executive Director
New York State Conference of Mayors
and Municipal Officials

INTERSTATE TRANSPORTATION OF
SOLID WASTE AND FLOW CONTROL

Hearing before the

United States Senate Committee on
Environment and Public Works
Subcommittee on Superfund, Waste Control
and Risk Assessment

Subcommittee Chairman: Sen. Robert C. Smith
Ranking Minority Member: Sen. Frank Lautenberg

Wednesday, March 1, 1995
9:00 o’clock a.m.
Dirksen Senate Office Building
Room 406
Washington, D.C.

I am Edward C. Farrell, Executive Director of the New
York State Conference of Mayors and Municipal Officials
(NYCOM), which represents villages and cities in New York
State.

I wish to extend my thanks to Senator Robert C. Smith,
Chairman of the Senate Subcommittee on Superfund, Waste
Control and Risk Assessment and to Senators Lautenberg,
Chafee and Baucus, and to all of the members of the Commit-
tee and Subcommittee for the opportunity to offer testimony
at this hearing exploring the issue of flow control.

I am testifying before you today because NYCOM repre-
sents that level of local government - cities and villages -
most directly involved in the collection of solid waste, and
thereby the most directly affected by flow control. Accord-
ingly, we have a very different view of flow control than you
may have heard from national local government associations.

A-2

Therefore, 1 want to state for the record, that the New York
State Conference of Mayors opposes the imposition of flow
control. Further, we ask that this Subcommittee and Congress
take no action with regard to the imposition of flow control.

As you know, flow control refers to the statutory authority
of a planning unit or municipality to exercise control over the
flow of solid waste generated, originated, or brought within
its jurisdiction. In the case of a county, multi-county, or re-
gional facility, jurisdiction is granted over the flow of solid
waste in the cities, towns and villages in that county. In the
case of a town, jurisdiction is granted over the flow of solid
waste in the villages in that town.

Flow control is not a new issue in New York. Since 1975,
the New York State Legislature has enacted 38 special state
laws enabling localities and solid waste management planning
units to enact loca! flow control laws.

Flow control has been hailed by some as a necessary plan-
ning tool guaranteeing a steady flow of waste to a specific
solid waste facility to finance the costs of that facility. In most
cases, it is NYCOM’s members - cities and villages - which
are subsidizing these expensive facilities through correspond-
ing increases in the local real property tax.

The issue of flow control came to the forefront in May,
1994 when the United States Supreme Court issued a sweep-
ing decision which invalidated flow control legislation as
violative of the Commerce Clause of the U.S. Constitution.

NYCOM served as an amicus curiae, along with the Long
Island villages of Westbury, Mineola, and New Hyde Park, in
C & A Carbone, Inc. v. Town of Clarkstown, on behalf of the
hauler. We became involved in that case because our mem-
bers are actively involved in the collection of solid waste, and
thereby the most directly affected by flow control.

Traditionally, local governments in New York rely upon
the local real property tax as their main source of revenue and
the primary method for financing solid waste disposal. Ap-
proximately 65 percent of the villages and cities are currently

A-3

financing their disposal costs through municipal taxes, while
another 15 percent impose user fees.

Flow control adds unnecessary spending to a village or
city’s bottom line. While in New York, counties and some
towns are legislatively charged with solid waste planning, that
charge does not require that the -ounty or town become the
ultimate disposal site for all of the garbage generated within
the jurisdiction.

The cost and its effect on municipal budgets can best be
illustrated by the following examples.

The Phantom Facility

Beginning in 1986 and continuing to date, the Long Island
villages of Westbury, Mineola ad New Hyde Park, which
maintain their own municipal sanitation collection depart-
ments, plus three other sizable villages with similar operations
and about 25 other villages of varying sizes, which utilize pri-
vate carters or public sanitary districts to collect residential
solid waste, have been subjected to the Town of North
Hempstead’s Flow Control Law. The Town imposed, and the
Town Solid Waste Authority reseives, tipping fees for all
solid waste collected by the villages and other public and pri-
vate solid waste collectors. Thest fees have no necessary or
legal relationship to the Authority’s actual disposal functions
and costs. The fees act as a revenje stream, transferring up to
$2 million per year to the Town.

Even though flow control is ustally justified in the name of
financing construction of solid wiste facilities adequate to a
municipality’s long term needs, the Town and Authority
never implemented the original plan to build its own solid
waste facility after five years of fhw control. The Town and
the Authority abandoned all such plans in early 1992 and sub-
contracted all solid waste functins, even though they had
spent two and one-half years devdoping the plan, purchased
460-acres of property for $34 millin, and pledged tipping fee
revenues in a secured bank loan.

RAD Pah AG

A-4

The end result is that these Long Island villages have ex-
perienced tipping fee increases from $66 per ton in 1990 to
$104 per ton in 1992.

The villages and others in North Hempstead have been
isolated from the solid waste disposal market and have been
precluded from dealing with other governmental and private
entities - such as American Ref-Fuel located in the neighbor-
ing Town of Hempstead - which would provide disposal
services at a cost of at least $15 to $30 per ton below the
Town’s monopoly rates.

When the three villages defied North Hempstead’s flow
control law by contracting with American Ref-Fuel, they were
subsequently sued by North Hempstead. NYCOM served as
an amicus curiae in that case. Ultimately, the Court of Ap-
peals upheld the validity of the State and Town of North
Hempstead flow control laws.

The Village of Monticello

In 1992 Sullivan County was granted flow control. This
was done to ensure that Sullivan County would capture all of
the business within the county in order to make payments on
the landfill construction bonds.

Due to its proximity to Pennsylvania and other solid waste
landfills, the Village of Monticello has access to markets
where tipping fees range from $25 to $40 per ton. Presently,
Sullivan County charges $60 per ton to use the county land-
fill.

The Village of Monticello is now paying a tipping fee of
$360,000 per year to the county. Costs continue to rise and
required the Village Board to double the commercial sanita-
tion rate and institute a monthly residential sanitation fee to
cover tipping fee costs.

The bottom line is that flow control deprives local govern-
ments of a basic tenet of municipal home rule authority: the
ability to make decisions on the local level in the best interest
of the local citizenry. The ability to contract freely is essential

hs Tila Aa Dit ia i Ra lea

A-5

to the effective functizning of local governments. Municipal
officials have a fiduciary duty to negotiate contracts and
spend local funds judiciously, in accordance with our State
Constitution. Municipal officials are constrained by the com-
petitive bidding provisions of the New York State General
Municipal Law. These provisions assure the prudent and eco-
nomical use of public moneys for the benefit of all the inhabi-
tants of the state and facilitate the acquisition of facilities and
commodities of maximum quality at the lowest possible cost.
Flow control flies in the face of these provisions and replaces
them with a costly, inefficient, and anti-competitive mandate.

In May 1992 NYCOM called the attention of the State
Legislature and the Governor to three bills which would grant
flow control to specific counties. At that time, we stated that
none of the special laws enacted to date, nor the three bills
which were before the Legislature, provided local govern-
ments within those counties or towns any safeguards or pro-
tection from abuse of that flow control authority. We asked
that future special state laws authorizing municipal flow con-
trol provide local governments within those jurisdictions with
protection against price gouging, provide municipalities the
authority to honor existing contracts with waste haulers, and
require formal prior notification and negotiation between the
level of municipal government seeking flow control and the
localities within that jurisdiction. Neither the Legislature nor
the Governor addressed our concerns before these bills were
enacted.

Mr. Chairman, you will hear many groups and individuals
testify today. Several will suggest that by striking down the
Clarkstown law, the Supreme Court created a crisis for mu-
nicipally-operated solid waste facilities. Perhaps it is more
appropriate to question why in the 70’s and 80’s did states
embark on policies to build facilities which are backed by
revenue bonds, only to find out that these facilities are un-
competitive in the open marketplace of the 90’s?

I submit, Mr. Chairman, that the crisis that many in the
solid wasse community perceive we are in today was in fact

A-6

created by particular State policies concerning solid waste. In
New York, the perceived need for flow control was precipi-
tated by the State’s active policy to close landfills.

Since 1986, there has been a net loss of 244 landfills, or 83
percent of the active landfills. In 1993 alone, 35 landfills
closed. There were 50 municipal solid waste landfills remain-
ing in New York as of December 31, 1993. During approxi-
mately the same period, roughly 12 new landfills were
opened.

We must not forget that in 1988, the New York State De-
partment of Environmental Conservation re-wrote its regula-
tions concerning solid waste disposal. At that time DEC
boasted of the fact that the new regulations were now the
most stringent in the county - and accordingly disposai costs
would increase by 1/3. Having the cadillac of regulations may
work in a monopoly, but perhaps they are not well suited to a
free enterprise situation.

What are the alternatives now that the U.S. Supreme Court
has held that flow control laws violate the Commerce Clause?
The Court noted that if special financing were needed to en-
sure a transfer station’s survival, the municipality may subsi-
dize the facility through general taxes or municipal bonds.
But, the Court said, having elected to use the open market to
earn revenues for a project, a municipality may not employ
discriminatory regulation to give that project an advantage
over rival businesses from out of state.

What is the effect of the Carbone decision in New York
State? A number of planning units have reduced tipping fees
to a competitive level to retain current business and attract
new customers. In the case of solid waste authorities, several
are actively negotiating with the municipalities under their
jurisdiction to subsidize their costs and foster cooperation.
Some planning units and municipalities have chosen to ignore
the high court’s decision and are continuing to enforce flow
control. They are facing lawsuits by industry and others.

A-7

We understand that there are two legislative initiatives in
Congress which address the issue of flow control authoriza-
tion.

The first bill, H.R. 24 (Smith/Pallone) / S. 398
(Lautenberg) would “grandfather” local laws, plans or agree-
ments containing flow control authority that existed prior to
May 15, 1994, the date of the Carbone decision. This legisia-
tion is very broad as it would provide protection to some fa-
cilities that did not even exist or were not planned prior to
May 15, 1994. Pursuant to this bill, a community would have
three years to designate a facility, and then an unspecified
amount of time to construct it, after which flow control could
be chosen by the local government in perpetuity. Addition-
ally, this proposal provides that up to 49% of flow control
revenues can be used for municipal services unrelated to mu-
nicipal solid waste management.

The second initiative, the Richardson/Fields amendment of
1994, is more restrictive, and would grandfather only those
facilities that were actually constructed or for which permits
were obtained and contracts executed for construction, or for
which revenue bonds were sold prior to May 15, 1994. Pursu-
ant to this proposal, flow control authority would last only for
the life of the facility that was built or in development before
May 15, 1994. After that time, free market principles would

apply.

We support neither of these proposals. We ask that this
Subcommittee and Congress take no action with regard to the
imposition of flow control. We ask that Congress take no ac-
tion on the aforementioned proposals.

The end of flow control does not mean the end of munici-
pally-operated solid waste facilities. It does, however, mean
the end of monopolistic prices for waste services and the re-
turn to a free market system. The Carbone decision is but
nine months old, it is premature to do anything but assess its
effects nationwide.

A-8

The real issue that needs to be addressed is how do we re-
tire the bonds that have been issued on the debt of uncom-
petitive facilities? If Congress enacts flow control, and New
York State follows suit, bonds issued for New York facilities
will continue to be retired by increases in the local real prop-
erty tax. This is a practice which we find unacceptable. There
are alternatives such as state subsidies which could make up
the difference between what is viable in the marketplace and
the funds necessary to retire the debt.

State financial assistance for solid waste facilities is not
unprecedented. In the past, New York State has provided
funds for the construction of such facilities. It would not be
extraordinary for New York to use state funds to retire the
bonds on these same facilities. The assistance would not have
to be 100 percent of the outstanding debt, but could rather re-
flect the difference between a competitive tipping fee and the
outstanding obligation. The State offers a broad tax base from
which to help finance such a program, including various in-
come, corporate, sales and business use taxes, to name a few.
Of course, if the federal government is interested in providing
funds for this purpose, we would be most appreciative.

It is clear that bonds issued on the debt of uncompetitive
facilities cannot be allowed to default. New York State will
not allow this to happen. However, we cannot allow the mar-
gin in the marketplace between economic reality and these
bonds to continue to grow. Each State must look at its own
policies which brought about this occurrence. We do not need
Federal assistance - in the form of flow control - in this mat-
ter. Individual State policies brought us to this point, and it is
a reexamination of those policies, along with State financial
assistance, which will result in a solution.

We would also like to address the issue of an interstate
waste ban. In 1994, Congress considered H.R. 4779
(Boucher) The Local Government Interstate Waste Control
Act, which would prohibit owners or operators of landfills,
incinerators, or other waste disposal facilities from receiving

le ge, ee ee ee ee es ele ee Oe

A-9

municipal solid waste generated outside their state unless they
obtain authorization from the affected local government.

NYCOM opposed that legislation, and continues to oppose
such a measure. Our position had the support of the New
York Congressional delegation. Twenty-one New York mem-
bers from both sides of the aisle signed a delegation letter op-
posing interstate restrictions during the 103rd Congress. All
members of the New York Congressional delegation opposed
the restrictions during House floor action last year.

We understand that states that seek to limit the interstate
transportation of waste argue that some states should not be
the dumping ground for others. The simple fact is that most
states and the District of Columbia both import and export
solid waste. In 1992, for example, 47 states exported waste
and 42 states imported waste for other parts of the country.
Interstate trade in waste occurs because communities and
waste disposal companies are always looking for the least ex-
pensive and most efficient means of handling trash. Some-
times this means using a local incinerator or recycling facility,
in other cases, it means hauling the waste to a landfill, per-
haps one across state lines.

Enactment of an interstate waste ban would wreak havoc
with any state’s ability to dispose of its waste and would re-
sult in higher local property taxes to finance new disposal ca-
pacity to replace out-of-state markets. For New York, those
out-of-state markets represent 20 percent of our waste stream.

Such legislation would fly in the face of Congress’ current
theme and action with regard to unfunded mandates. At a time
when Congress and the Administration are rethinking the
burden of mandates they impose on local governments, and
limiting Federal management of local affairs, interstate mu-
nicipal solid waste restrictions are contrary to those princi-
ples.

Interstate waste restrictions violate the Commerce Clause
of the U.S. Constitution and have been repeatedly struck
down by the courts. Limiting the transport of municipal solid

A-10

waste across state lines is anti-competitive and just doesn’t
make a lot of sense. Besides, what makes garbage so special?
Once you allow local governments to define commerce, why
stop with garbage? Why not ban radioactive material, gaso-
line, chemicals and other certainly more dangerous sub-
stances? Or perhaps move on to prohibit alcohol or cigarettes
from entering a community.

Simply put, the transportation of garbage to a licensed dis-
posal facility is a legitimate public and private activity. We
see not reason for Congressional action in this matter.

Finally, interstate disposal restrictions would also hurt
municipal solid waste disposal facilities in other states that
depend upon imports for profit. Their investments and the
size of their facilities have been based on the expectation of
receiving out-of-state municipal solid waste. Restrictions
would damage their business and leave little likelihood of re-
placing lost revenue with that generated from in-state waste.

I would like to thank Chairman Smith, Senators Lauten-
berg, Chafee and Baucus, and the members of the Subcom-
mittee for providing NYCOM with the opportunity to testify
here today. We stand ready to assist you in resolving this is-
sue.

A-I1

Testimony of Edward C. Farrell
Executive Director
New York State Conference of Mayors
and Municipal Officials

CONGRESSIONAL AUTHORIZATION OF
FLOW CONTROL

Hearing before the

United States House of Representatives
Committee on Commerce
Subcommittee on Commerce, Trade and
Hazardous Materials

Subcommittee Chairman: Rep. Michael G. Oxley
Ranking Minority Member: Rep. W.J. “Billy” Tauzin

Thursday, March 23, 1995
9:30 o’clock a.m.
Rayburn House Office Building
Room 2123
Washington, D.C.

I am Edward C. Farrell, Executive Director of the New
York State Conference of Mayors and Municipal Officials
(NYCOM), which represents villages and cities in New York
State.

I wish to extend my thanks to Rep. Michael G. Oxley,
Chairman of the House Subcommittee on Commerce, Trade
and Hazardous Materials and to Reps. Tauzin, Bliley, and
Dingell, and to all of the members of the Committee and Sub-
committee for the opportunity to offer testimony at this hear-
ing exploring the issue of flow control.

I am testifying before you today because NYCOM repre-
sents that level of local government - cities and villages -
most directly involved in the collection of solid waste, and
thereby the most directly affected by flow control. Accord-
ingly, we have a very different view of flow control than you
may have heard from national local government associations.

A-12

Therefore, I want to state for the record, that the New York
State Conference of Mayors opposes the imposition of flow
control. Further, we ask that this Subcommittee and Congress
take no action with regard to the imposition of flow control.

As you know, flow control refers to the statutory authority
of a planning unit or municipality to exercise control over the
flow of solid waste generated, originated, or brought within
its jurisdiction. In the case of a county, multi-county, or re-
gional facility, jurisdiction is granted over the flow of solid
waste in the cities, towns and villages in that county. In the
case of a town, jurisdiction is granted over the flow of solid
waste in the villages in that town.

Flow control is not a new issue in New York. Since 1975,
the New York State Legislature has enacted 38 special state
laws enabling localities and solid waste management planning
units to enact local flow control laws.

Flow control has been hailed by some as a necessary plan-
ning tool guaranteeing a steady flow of waste to a specific
solid waste facility to finance the costs of that facility. In most
cases, it is NYCOM’s members - cities and villages - which
are subsidizing these expensive facilities through correspond-
ing increases in the local real property tax.

The issue of flow control came to the forefront in May,
1994 when the United States Supreme Court issued a sweep-
ing decision which invalidated flow control legislation as
violative of the Commerce Clause of the U.S. Constitution.

NYCOM served as an amicus curiae, along with the Long
Island villages of Westbury, Mineola, and New Hyde Park, in
C & A Carbone, Inc. v. Town of Clarkstown, on behalf of the
hauler. We became involved in that case because our mem-
bers are actively involved in the collection of solid waste, and
thereby the most directly affected by flow control.

Traditionally, local governments in New York rely upon
the local real property tax as their main source of revenue and
the primary method for financing solid waste dis-
posal.Approximately 65 percent of the villages and cities are

A-13

currently financing their disposal costs through municipal
taxes, while another 15 percent impose user fees.

Flow control adds unnecessary spending to a village or
city’s bottom line. While in New York, counties and some
towns are legislatively charged with solid waste planning, that
charge does not require that the county or town become the
ultimate disposal site for all of the garbage generated within
the jurisdiction.

The cost and its effect on municipal budgets can best be
illustrated by the following examples.

The Phantom Facility

Beginning in 1986 and continuing to date, the Long Island
villages of Westbury, Mineola and New Hyde Park, which
maintain their own municipal sanitation collection depart-
ments, plus three other sizable villages with similar operations
and about 25 other villages of varying sizes, which utilize pri-
vate carters or public sanitary districts to collect residential
solid waste, have been subjected to the Town of North
Hempstead’s Flow Control Law. The Town imposed, and the
Town Solid Waste Authority receives, tipping fees for all
solid waste collected by the villages and other public and pri-
vate solid waste collectors. These fees have no necessary or
legal relationship to the Authority’s actual disposal functions
and costs. The fees act as a revenue stream, transferring up to
$2 million per year to the Town.

Even though flow control is usually justified in the name of
financing construction of solid waste facilities adequate to a
municipality’s long term needs, the Town and Authority
never implemented the original plan to build its own solid
waste facility after five years of flow control. The Town and
the Authority abandoned all such plans in early 1992 and sub-
contracted all solid waste functions, even though they had
spent two and one-half years developing the plan, purchased
460-acres of property for $34 million, and pledged tipping fee
revenues in a secured bank loan.

- A-14

The end result is that these Long Island villages have ex-
perienced tipping fee increases from $66 per ton in 1990 to
$104 per ton in 1992.

The villages and others in North Hempstead have been
isolated from the solid waste disposal market and have been
precluded from dealing with other governmental and private
entities - such as American Ref-Fuel located in the neighbor-
ing Town of Hempstead - which would provide disposal
services at a cost of at least $15 to $30 per ton below the
Town’s monopoly rates.

When the three villages defied North Hempstead’s flow
control law by contracting with American Ref-Fuel, they were
subsequently sued by North Hempstead. NYCOM served as
an amicus curiae in that case. Ultimately, the Court of Ap-
peals upheld the validity of the State and Town of North
Hempstead flow control laws.

The Village of Monticello

In 1992 Sullivan County was granted flow control. This
was done to ensure that Sullivan County would capture all of
the business within the county in order to make payments on
the landfill construction bonds.

Due to its proximity to Pennsylvania and other solid waste
landfills, the Village of Monticello has access to markets
where tipping fees range from $25 to $40 per ton. Presently,
Sullivan County charges $60 per ton to use the county land-
fill.

The Village of Monticello is now paying a tipping fee of
$360,000 per year to the county. Costs continue to rise and
required the Village Board to double the commercial sanita-
tion rate and institute a monthly residential sanitation fee to
cover tipping fee costs.

The bottom line is that flow control deprives local govern-
ments of a basic tenet of municipal home rule authority: the
ability to make decisions on the local level in the best interest
of the local citizenry. The ability to contract freely is essential

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to the effective functioning of local governments. Municipal
officials have a fiduciary duty to negotiate contracts and
spend local funds judiciously, in accordance with our State
Constitution. Municipal officials are constrained by the com-
petitive bidding provisions of the New York State General
Municipal Law. These provisions assure the prudent and eco-
nomical use of public moneys for the benefit of all the inhabi-
tants of the state and facilitate the acquisition of facilities and
commodities of maximum quality at the lowest possible cost.
Flow control flies in the face of these provisions and replaces
them with a costly, inefficient, and anti-competitive mandate.

In May 1992 NYCOM called the attention of the State
Legislature and the Governor to three bills which would grant
flow control to specific counties. At that time, we stated that
none of the special laws enacted to date, nor the three bills
which were before the Legislature, provided local govern-
ments within those counties or towns any safeguards or pro-
tection from abuse of that flow control authority. We asked
that future special state laws authorizing municipal flow con-
trol provide local governments within those jurisdictions with
protection against price gouging, provide municipalities the
authority to honor existing contracts with waste haulers, and
require formal prior notification and negotiation between the
level of municipal government seeking flow control and the
localities within that jurisdiction. Neither the Legislature nor

the Governor addressed our concerns before these bills were
enacted.

Mr. Chairman, you will hear many groups and individuals
testify today. Several will suggest that by striking down the
Clarkstown law, the Supreme Court created a crisis for mu-
nicipally-operated solid waste facilities. Perhaps it is more
appropriate to question why in the 70’s and 80’s did states
embark on policies to build facilities which are backed by
revenue bonds, only to find out that these facilities are un-
competitive in the open marketplace of the 90’s?

I submit, Mr. Chairman, that the crisis that many in the
solid waste community perceive we are in today was in fact

A-16

created by particular State policies concerning solid waste. In
New York, the perceived need for flow control was precipi-
tated by the State’s active policy to close landfills.

Since 1986, there has been a net loss of 244 landfills, or 83
percent of the active landfills. In 1993 alone, 35 landfills
closed. There were 50 municipal solid waste landfills remain-
ing in New York as of December 31, 1993. During approxi-
mately the same period, roughly 12 new landfills were
opened.

We must not forget that in 1988, the New York State De-
partment of Environmental Conservation re-wrote its regula-
tions concerning solid waste disposal. At that time DEC
boasted of the fact that the new regulations were now the
most stringent in the county - and accordingly disposal costs
would increase by 1/3. Having the cadillac of regulations may
work in a monopoly, but perhaps they are not well suited to a
free enterprise situation.

What are the alternatives now that the U.S. Supreme Court
has held that flow control laws violate the Commerce Clause?
The Court noted that if special financing were needed to en-
sure a transfer station’s survival, the municipality may subsi-
dize the facility through general taxes or municipal bonds.
But, the Court said, having elected to use the open market to
earn revenues for a project, a municipality may not employ
discriminatory regulation to give that project an advantage
over rival businesses from out of state.

What is the effect of the Carbone decision in New York
State? A number of planning units have reduced tipping fees
to a competi tive level to retain current business and attract
new customers. In the case of solid waste authorities, several
are actively negotiating with the municipalities under their
jurisdiction to subsidize their costs and foster cooperation.
Some planning units and municipalities have chosen to ignore
the high court’s decision and are continuing to enforce flow
control. They are facing lawsuits by industry and others.

isiicinicisinictenieesininenitatennieaemmniail

A-17

We understand that there are several legislative initiatives
in the House of Representatives which address the issue of
flow control authorization. We would like to discuss H.R.
1085 and H.R. 1180.

The first bill, H.R. 1085 (Smith), also known as the
“systems” bill, would “grandfather” local laws, plans or
agreements containing flow control authority that existed
prior to May 15, 1994, the date of the Carbone decision. This
legislation is very broad as it would provide protection to
some facilities that did not even exist or were not planned
prior to May 15, 1994. Pursuant to this bill, a community
would have three years to designate a facility, and then an un-
specified amount of time to construct it, after which flow
control could be chosen by the local government in perpetu-
ity. Additionally, this proposal provides that up to 49% of
flow control revenues can be used for municipal services un-
related to municipal solid waste management.

The second initiative, H.R. 1180 (Upton), also known as
the “facilities” bill, is more restrictive, and would grandfather
only those facilities for which revenue bonds were sold prior
to May 15, 1994. Pursuant to this proposal, flow control
authority would last only for the life of the facility that was
built or in development before May 15, 1994. After that time,
free market principles would apply. This proposal also pro-
vides congressional authorization for restrictions on the re-
ceipt of out-of-State municipal solid waste and for State
control over transportation of municipal solid waste.

We oppose any form of legislation which would result in
congressional authorization of flow control, therefore, we op-
pose the aforementioned proposals. We ask that this Sub-
committee and Congress take no action with regard to the
imposition of flow control. We ask that Congress take no ac-
tion on the aforementioned proposals.

The end of flow control does not mean the end of munici-
pally-operated solid waste facilities. It does, however, mean
the end of monopolistic prices for waste services and the re-
turn to a free market system. The Carbone decision is but

A-18

nine months old, it is premature to do anything but assess its
effects nationwide.

The real issue that needs to be addressed is how do we re-
tire the bonds that have been issued on the debt of uncom-
petitive facilities? If Congress enacts flow control, and New
York State follows suit, bonds issued for New York facilities
will continue to be retired by increases in the local real prop-
erty tax. This is a practice which we find unacceptable. There
are alternatives such as state subsidies which could make up
the difference between what is viable in the marketplace and
the funds necessary to retire the debt.

State financial assistance for solid waste facilities is not
unprecedented. In the past, New York State has provided
funds for the construction of such facilities. It would not be
extraordinary for New York to use state funds to retire the
bonds on these same facilities. The assistance would not have
to be 100 percent of the outstanding debt, but could rather re-
flect the difference between a competitive tipping fee and the
outsianding obligation. The State offers a broad tax base from
which to help finance such a program, including various in-
come, corporate, sales and business use taxes, to name a few.
Of course, if the federal government is interested in providing
funds for this purpose, we would be most appreciative.

It is clear that bonds issued on the debt of uncompetitive
facilities cannot be allowed to default. New York State will
not allow this to happen. However, we cannot allow the mar-
gin in the marketplace between economic reality and these
bonds to continue to grow. Each State must look at its own
policies which brought about this occurrence. We do not need
Federal assistance - in the form of flow control - in this mat-
ter. Individual State policies brought us to this point, and it is
a reexamination of those policies, along with State financial
assistance, which will result in a solution.

While we understand that this issue will be the subject of a
second hearing, we would also like to address the issue of an
interstate waste ban. In 1994, Congress considered H.R. 4779
(Boucher) The Local Government Interstate Waste Control

A-19

Act, which would prohibit owners or operators of landfills,
incinerators, or other waste disposal facilities from receiving
municipal solid waste generated outside their state unless they
obtain authorization from the affected local government.

NYCOM opposed that legislation, and continues to oppose
measures such as H.R. 1180, which combines flow control
authority with a waste ban. During the last session of Con-
gress, our position had the support of the New York Con-
gressional delegation. Twenty-one New York members from
both sides of the aisle signed a delegation letter opposing in-
terstate restrictions during the 103rd Congress. All members
of the New York Congressional delegation opposed the re-
strictions during House floor action last year.

We understand that states that seek to limit the interstate
transportation of waste argue that some states should not be
the dumping ground for others. The simple fact is that most
states and the District of Columbia both import and export
solid waste. In 1992, for example, 47 states exported waste
and 42 states imported waste for other parts of the country.
Interstate trade in waste occurs because communities and
waste disposal companies are always looking for the least ex-
pensive and most efficient means of handling trash. Some-
times this means using a local incinerator or recycling facility,
in other cases, it means hauling the waste to a landfill, per-
haps one across state lines.

Enactment of an interstate waste ban would wreak havoc
with any state’s ability to dispose of its waste and would re-
sult in higher local property taxes to finance new disposal ca-
pacity to replace out-of-state markets. For New York, those
out-of-state markets represent 20 percent of our waste stream.

Such legislation would fly in the face of Congress’ current
theme and action with regard to unfunded mandates. At a time
when Congress and the Administration are rethinking the
burden of mandates they impose on local governments, and
limiting Federal management of local affairs, interstate mu-
nicipal solid waste restrictions are contrary to those princi-
ples.

A-20

Interstate waste restrictions violate the Commerce Clause
of the U.S. Constitution and have been repeatedly struck
down by the courts. Limiting the transport of municipal solid
waste across state lines is anti-competitive and just doesn’t
make a lot of sense. Besides, what makes garbage so special?
Once you allow local governments to define commerce, why
stop with garbage? Why not ban radioactive material, gaso-
line, chemicals and other certainly more dangerous sub-
stances? Or perhaps move on to prohibit alcohol or cigarettes
from entering a community.

Simply put, the transportation of garbage to a licensed dis-
posal facility is a legitimate public and private activity. We
see not reason for Congressional action in this matter.

Finally, interstate disposal restrictions would also hurt
municipal solid waste disposal facilities in other states that
depend upon imports for profit. Their investmenis and the
size of their facilities have been based on the expectation of
receiving out-of-state municipal solid waste. Restrictions
would damage their business and leave little likelihood of re-
placing lost revenue with that generated from in-state waste.

I would like to thank Chairman Oxley, Reps. Tauzin, Bliley
and Dingell, and the members of the Subcommittee for pro-
viding NYCOM with the opportunity to testify here today.
We stand ready to assist you in resolving this issue.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1789%3A6. Public record. Not legal advice.