Motion — National Solid Waste Management Ass'n v. Williams

}; supreme Lour, U.S. |

FILED

5) Ov) 14 1996

No. 98-424 OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1998

National Solid Waste Management Association,

Petitioner,

v.

Charles W. Williams as Commissioner of the Minnesota

Pollution Control Agency, and Edward Garvey as Director

of the Minnesota Office of Environmental Assistance,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

MOTION AND BRIEF OF AMICUS CURIAE

BFI WASTE SYSTEMS OF NORTH AMERICA, INC.

IN SUPPORT OF PETITIONER

Jerry L. Mitchell, Jr.

Counsel of Record

BFI Waste Systems of

North America, Inc.

757 N. Eldridge

Houston, TX 77079

(281) 870-7190

Attorney for Amicus Curiae

BFI Waste Systems of

North America, Inc.

No. 98-424

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1998

National Solid Waste Management Association,

Petitioner,

v.

Charles W. Williams as Commissioner of the Minnesota

Pollution Control Agency, and Edward Garvey as Director

of the Minnesota Office of Environmental Assistance,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

MOTION OF

BFI WASTE SYSTEMS OF NORTH AMERICA, INC.

FOR LEAVE TO FILE BRIEF AMICUS CURIAE

IN SUPPORT OF PETITIONER

Movant BFI Waste Systems of North America, Inc.

("BFI") hereby seeks leave to file a brief amicus curiae in

support of the Petition of National Solid Waste Management

Association for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Eighth Circuit in

this case.’

' Petitioner has consented to this amicus brief. Counsel for Respondents has

informed undersigned counsel of record that they do not oppose the filing of the

amicus brief.

BFI is one of the nation's largest companies which

collects, processes for recycling, transports, and disposes of a

wide range of commercial, industrial, medical, and

residential solid wastes. As a collector and transporter of

solid wastes, BFI is subject to solid waste "flow control"

programs and requirements that were developed subsequent

to and despite this Court's holding in C & A Carbone, Inc. v.

Town of Clarkstown, 511 U.S. 383 (1994). In addition, BFI

operates 78 municipal solid waste landfills in the United

States that are or can be adversely affected by the

implementation of post-Carbone economic flow control

schemes such as the one at issue in this case.

BFI and similarly situated businesses experience, on

a national scale, the impact of governmental action like that

taken by the Respondents in this case. With all due respect

to the parties to this case, BFI believes that its broad,

national experience and the perspective it has gained from

that experience will allow it to be of significant additional

assistance to the Court in its consideration of the important

national issues raised by the petition.

Respectfully submitted,

Jerry L. Mitchell, Jr.

Counsel of Record

BFI Waste Systems of

North America, Inc.

757 N. Eldridge

Houston, TX 77079

(281) 870-7190

Attorney for Amicus Curiae

BFI Waste Systems of

October 13, 1998 North America, Inc.

No. 98-424

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1998

National Solid Waste Management Association,

Petitioner,

v.

Charles W. Williams as Commissioner of the Minnesota

Pollution Control Agency, and Edward Garvey as Director

of the Minnesota Office of Environmental Assistance,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF OF AMICUS CURIAE

BFI WASTE SYSTEMS OF NORTH AMERICA, INC.

IN SUPPORT OF PETITIONER

QUESTION PRESENTED

Amicus BFI Waste Systems of North America, Inc.

believes that certiorari should be granted on the question

presented in the Petition for Writ of Certiorari. In the interest

of judicial economy, the question is not repeated here.

is

TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED... iii

INTEREST OF AMICUS CURIAE {

REASONS FOR GRANTING THE WRIT 1

IL THE MINNESOTA STATUTORY SCHEME

FAILS TO PROMOTE A LEGITIMATE

ENVIRONMENTAL OBJECTIVE;

EXISTING FEDERAL AND STATE RULES

FOR MUNICIPAL SOLID WASTE

LANDFILLS ESTABLISH PROTECTIVE

STANDARDS 2

IL THE CHALLENGED LEGISLATION NOW

SERVES ONLY ONE PURPOSE: TO

PERPETUATE AN UNCONSTITUTIONAL

FLOW CONTROL SYSTEM 9

ItL REVicW BY THIS COURT IS NECESSARY

TO ELIMINATE THE HIGHER COSTS AND

ECONOMIC BALKANIZATION PRODUCED

BY THE MINNESOTA STATUTE 11

CONCLUSION 14

TABLE OF AUTHORITIES CITED

Cases

C & A Carbone, Inc. v. Town of Clarkstown,

SN ic 1, 2, 14

Other Authorities

130 Cone. Rec. $13,814 (daily ed. Oct. 5, 1984) ooo... 3

OCR, FUE Aa CIGD ven evvcevsusessnsvevecsosees 2, 3, 4, 5, 6, 7, 8,9

og Ke | ____RRRR P l TeRD COLEI 3

38 Fed. Reg. 46,923 (Sept. 3, 1993) ...............ccccccccccsssosecsssessere 4

H.R. Conr. Rep. No. 1133, 98" Cong., 2d Sess. 116-17,

reprinted in 1984 U.S.C.C.AN. 5, 678-88 o0.0.o.ooocccceccccee. 3

Minn. Stat. Section 115A.02(b) ......................c..cccccccscssssssees 2

Minn. Stat. Section 115A.46, subd. 5 o...0...ooooccccccccccccccceeeeeee 2

National Economic Research Associates,

The Cost of Flow Control, May 3, 1995 o........c.cccccccccsseseeees 13

U.S. Environmental Protection Agency,

REPORT TO CONGRESS ON FLOW CONTROLS

AND MUNICIPAL SOLID WASTE,

Fe IE CE Docscncvissusescenssnséscocessocsesensenssosvens 13

1

INTEREST OF AMICUS CURIAE

BFI Waste Systems of North America, Inc. ("BFI") is

one of the largest companies in the world which collects,

processes for recycling, transports, and disposes of a wide

range of commercial, industrial, medical and residential solid

wastes. BFI owns or operates a network of 78 municipal

solid waste landfills in the United States. Those landfills

accept for disposal wastes generated by residences and

commercial establishments. BFI owns a landfill in Dakota

County, Minnesota that has been affected by the

implementation of the challenged Minnesota statute. In

addition, BFI is subject to solid waste "flow control"

programs and requirements, including provisions and

mandates that were developed subsequent to this Court’s

holding in C& A Carbone, Inc. v. Town of Clarkstown,

511 U.S. 383 (1994).

REASONS FOR GRANTING THE WRIT

Through an expansive reading of the "market

participant" doctrine, the courts below sanctioned a

Minnesota statute that requires local governments to adhere

to the waste management choices made by counties. The

legislation serves no legitimate environmental purpose;

because it discourages landfilling, it acts merely to ensure the

flow control of solid waste to facilities such as incinerators.

A state statute that requires local governments to adhere to

county solid waste management plans, in the absence of any

state funding for local "purchasing" activities, should not fall

within the scope of the market participant doctrine. The

decision below encourages circumvention of Carbone by the

simple guise of state-level market participation.

2

The fiction of market participation in the absence of

any financial involvement has consequences that may extend

far beyond Minnesota. Review by this Court is necessary to

ensure that Carbone is not rendered, through similar solid

waste management "planning" statutes, a constitutional

nullity. In addition, the obvious inconsistencies in the judicial

rulings regarding the scope of the market participant doctrine

(as described in the Petition for Writ of Certiorari) justify this

Court’s review.

THE MINNESOTA STATUTORY SCHEME FAILS TO

PROMOTE A_ LEGITIMATE ENVIRONMENTAL

OBJECTIVE; EXISTING FEDERAL AND STATE

RULES FOR MUNICIPAL SOLID WASTE LANDFILLS

ESTABLISH PROTECTIVE STANDARDS .

The Minnesota statute upheld by the Eighth Circuit

Court of Appeals (Minn. Stat. Section 115A.46, subd. 5)) has

had the effect of precluding any meaningful use of landfilling as a

waste management method, particularly when applied in

conjunction with the 1980 waste “hierarchy” provision (Minn.

Stat. Section 115A.02(b)). The prohibition against landfilling

condemns local governments to utilize more expensive waste

treatment methodologies. Moreover, while there may have been

a rational environmental justification in 1980 for disfavoring

landfilling through a statutory scheme that essentially ensures the

“flow control" of waste to incinerators and composting facilities,

no legitimate reason now exists for perpetuating such costly,

inefficient, and uncompetitive requirements. Federal standards,

set forth at 40C.F.R. Part 258 (1997), which have been

incorporated into Minnesota rules and permit conditions,

establish criteria fully protective of human health and the

environment. Landfilling today is as environmentally sound as

any type of "processing" favored by the Minnesota legislation

and insisted upon by county waste management plans.

3

The Part 258 standards were adopted in 1991 after

extensive analysis by the U.S. Environmental Protection Agency

("EPA") of the risks presented by substandard facilities. The

Federal criteria were promulgated in accordance with Congress's

insistence in 1984 that EPA standards “be those necessary to

protect human health and the environment". Section 4010(c) of

the Resource Conservation and Recovery Act provides that if a

particular form of regulatory control is necessary to “protect

human health and the environment", reduced levels of protection

should not be tolerated. Congress was aware that—in one year

alone-at least 500 municipal landfills violated state groundwater

protection standards, 845 violated state air standards, and at least

600 were formally cited for having contaminated surface water.

Out of 163 documented case studies, 146 landfills were actively

contaminating groundwater and 73 landfills were contaminating

surface water. In 1986, the EPA estimated that only fifteen

percent of all municipal solid waste landfills had liners, only five

percent had leachate collection systems, and only twenty-five

percent had groundwater monitoring systems. 53 Fed.

Reg. 33,319 (1988). Similarly, the congressional history is

replete with examples of ground and surface water

contamination resulting from the operation of poorly designed

and maintained landfills. See, e.g., H.R. Conr. Rep. No. 1133,

98" Cong., 2d Sess. 116-17, reprinted in 1984 U.S.C.C.AN. 5,

678-88.

Moreover, the Congress clearly desired—indeed, it

intended—the closure of substandard facilities. Congress noted

that "(t)he underlying standard for facilities subject to this

amendment to SubtitleD remains protection of the

environment." 130 Cone. Rec. $13,814 (daily ed. Oct. 5, 1984).

As then-Senator Randolph noted, individual facilities might

suffer hardship-and possibly close—if they cannot meet

requirements deemed necessary and practicable for the industry

as a whole: “New statutory requirements for Subtitle D facilities

may hasten the closure of many solid waste facilities that have

4

only a few years of remaining capacity. The requirements could

also hasten the closure of facilities with substantial capacity, but

that are either unable or unwilling to accept new regulatory

costs." Id.

The Part 258 regulations fiulfilled Congress's

expectations, by establishing risk-based criteria that, in the EPA's

words, “ensure that municipal solid waste landfills are operated

and designed to safely manage household hazardous waste and

conditionally exempt small quantity generator waste... ."

58 Fed. Reg. 46,923 (Sept. 3, 1993). In releasing the rules, the

EPA noted that the Federal requirements “will increase public

confidence that landfills are designed to protect human health

and the environment", protect "property values located within

the vicinity of new landfills", safeguard "the existence value of

ground water near landfills", and minimize "the need for future

cleanups" in order to reduce “the potential impacts on future

generations (or the federal government, as in the case of a

Superfund site)." Jd

Moreover, the Agency stressed that "the final rule, by

more fully reflecting the cost of safe waste disposal, will also lead

to more responsible waste management practices and promote

resource conservation." Jd at 50,986. The EPA agreed "that

regionalization of solid waste management in rural areas,

employing larger, better located, designed and operated

MSWLFs [Municipal Solid Waste Landfills], is preferable to

continued use of small, poorly planned facilities that may pose

health and environmental threats to their communities." Jd.

In developing the Federal requirements, the EPA also

emphasized that "small landfills tend to be poorly located and

designed, and operate at the high end of the cost per ton scale.

As a result, small communities have a number of strong

incentives to regionalize and, in fact, many of them have moved

or are currently moving to regional facilities." Jd. at 50,989.

The Federal rules contain stringent requirements

regarding liners, leachate collection systems, corrective action for

closure and post-closure care, and financial assurance. 40 C.F.R.

§§258.40-70. In addition, limitations are placed on the location

of facilities near airports and in floodplains, unstable areas,

facilities must either make a demonstration of no adverse impact

or Close in accordance with the regulations. 40 C.F.R. §§258.10-

16.

Other provisions of the regulations include restrictions

on public access to the landfill, daily cover requirements to

minimize disease vector and other problems, methane gas

controls to prevent gas explosions, controls on runoff from the

facility to prevent releases to surface and ground water

resources, and restrictions on the landfilling of certain wastes,

including hazardous waste and liquid wastes, to minimize the

toxicity and quantity of leachate that may threaten ground water.

40 C-F.R. §§258.20-29.

The following provisions illustrate the significantly

increased design, construction, monitoring, and post-closure

maintenance responsibilities imposed upon landfill operators.

Numerous siting criteria ensure that MSWLFs are located so as

to ensure environmental protection and safe operation. For

example, under the EPA rules owners/operators of existing

MSWLEFs and proposed lateral expansions or new MSWLFs

located in 100-year floodplains must demonstrate that the landfill

"will not restrict the flow of the 100-year flood, reduce the

temporary water storage capacity of the floodplain, or result in a

washout of solid waste". 40C.F.R. §258.11. Likewise,

proposed lateral expansions and new MSWLFs may not be

located in wetlands in states without approved programs.

Proposed MSWLFs may not be located in approved states, such

as Minnesota, unless the owner/operator of the facility can make

6

demonstrations to the State Director that are essentially

equivalent to those under Section 404 of the Federal Clean

Water Act. 40 C.F.R. §258.12.

The EPA regulations provide that proposed lateral

expansions and new MSWLFs "shall not be located in seismic

impact zones" in states without approved programs. Proposed

MSWLFs may not be located in seismic impact zones in

approved states “unless the owner or operator demonstrates to

the State Director that all containment structures, including

liners, leachate collection systems, and surface water control

systems, are designed to withstand the maximum horizontal

acceleration in lithified earth material for the site". The necessary

documentation must be placed in the site operating record and

the State Director must be notified of its completion. 40 C.F.R.

§258.14.

The standards also address the daily operation of

facilities. They provide that owners or operators of all MSWLFs

must implement a program at the facility for the detecting and

preventing the disposal of regulated hazardous waste and PCB

waste. The program must include, at a minimum: (1) random

inspections of incoming loads unless the owner or operator takes

other steps to ensure that incoming loads do not contain

regulated hazardous wastes or PCB wastes; (2) records of any

inspections; (3) training of facility personnel to recognize

regulated hazardous wastes and PCB wastes; and (4) notification

to the State Director of an authorized state or the EPA regional

administrator if in an unauthorized state if a regulated hazardous

wastes or PCB waste is discovered at the facility 40C FR

§258.20.

The rules also require that all MSWLFs must cover

disposed solid waste at the end of each operating day with six

inches of soil to control disease vectors, fires, odors, blowing

litter, and scavenging. Alternative materials of alternative

7

thicknesses may be approved by the Director of an approved

State if the owner or operator shows that the alternative material

or thickness will adequately control the concerns listed above

without presenting a threat to human health and the

environment. 40 C.F.R. §258.21.

Similarly, owners and operators of all MSWLFs must,

pursuant to the EPA rules, ensure through compliance with

detailed standards that the concentration of methane gas

generated by the facility does not pose an explosion hazard. The

owner or operator must implement a routine methane-

monitoring program. The monitoring shall be performed at least

quarterly and if methane gas levels are detected above the levels

listed above, the owner or operator must "immediately take all

necessary steps to ensure protection of human health and notify

the State Director". The owner or operator must also record the

methane levels detected within the operating record within seven

days of detection. Within 60 days of detection, the owners or

operators must implement a remediation plan for the methane

gas releases, place a copy of the plan in the operating record, and

notify the State Director that the plan has been implemented.

The plan shall describe the nature and extent of the problem and

propose a remedy. 40 C.F.R. §258.23.

All new MSWLF units and lateral expansions must be

constructed with an approved site-specific liner and leachate

collection system design. The design must ensure that Maximum

Contaminant Levels promulgated pursuant to the Safe Drinking

Water Act will not be exceeded in the uppermost aquifer at the

relevant "point of compliance" (i.e., the property line or no more

than 150 meters from the limits of fill). Altematively, a

composite liner design specified in the regulations may be

utilized. The composite liner design must consist of a flexible

membrane liner placed directly over at least 2 feet of compacted

soil and a leachate collection system designed and constructed to

maintain less than a 30cm depth of leachate over the liner.

40 C.F.R. §258.40.

In addition, the Federal rules establish stringent and

detailed standards to ensure protection of groundwater and

drinking water supplies. 40CFR §§258.50-S8. The

monitoring program must include the installation of monitoring

wells (some of which must be installed at the relevant point of

compliance) which yield representative groundwater samples

from the uppermost aquifer downgradient from the landfill.

Periodic sampling for 15 metals and 47 organic compounds must

owner/operator must initiate corrective action measures that are

protective of human health and the environment, control the

source of the release, and properly manage any wastes that are

generated.

Owners/operators of all landfills must, under the EPA

rules, install a final cover system that is designed to minimize

infiltration and erosion. In addition, closure of a landfill unit

must be in accordance with a previously approved plan, and the

Closure activity must be overseen and certified by an

independently registered professional engineer. 40 C.F.R

§258.60. Following closure, the owner or operator must record

a notation on the deed to the landfill facility property. In

addition, all owners/operators must conduct post-closure care

for thirty years; the monitoring period may be extended if

necessary to protect human health and the environment.

40 C.F.R. §258.61.

Finally, owners/operators are required to maintain

financial assurance during all periods of operation and post-

closure monitoring for a typical period of thirty years to ensure

that the costs of closure and post-closure or remediation are not

borne by third parties (i.e., the general public). The rules require

that owners/operators establish continuous financial assurance,

9

using one or more of the methods (such as trust funds, insurance,

and letters of credit) approved by the EPA, for the cost of hiring

a third-party to conduct closure and post-closure activities. The

amount of financial assurance must be adjusted yearly during the

active life of the site as well as during the post-closure period to

account for inflation as well as any changes in landfill conditions.

The extensive EPA requirements make redundant the liability

risk obligations contained in the Minnesota legislation (see

Petition for Writ of Certiorari, at 8 fh. 2). 40 CF.R. §§258.70-

74.

These Federal regulations have led to the closure of

hundreds of smaller landfills. Those facilities in operation today

meet or exceed the EPA requirements. They provide a cost-

effective and environmentally protective means of managing the

Nation’s solid wastes. Yet the Minnesota statute essentially

precludes their use—in order to promote a system of flow

control that this Court has already rejected.

THE CHALLENGED LEGISLATION NOW SERVES

ONLY ONE PURPOSE: TO PERPETUATE AN

UNCONSTITUTIONAL FLOW CONTROL SYSTEM.

The regulatory standards described above did not exist in

1980. Today, however, standards that the EPA has described as

fully protective of human health and the environment are firmly

in place. Minnesota’s applicable solid waste management laws

and regulations meet (and, in some instances, significantly

exceed) the Federal criteria in stringency. Other EPA and

Minnesota provisions are applicable to MSWLFs and expand

upon the Part 258 rules. For example, air emissions from

MSWLFs are regulated under stringent guidelines established

pursuant to the Clean Air Act. 40C.F.R. Part 60. Leachate

produced by MSWLFs must be treated or utilized according to

Part258 or Clean Water Act regulations. See, e.g,,

40 C.F.R. §258.28.

10

The criteria applicable to MSWLFs are in many instances

considerably more stringent than the requirements applicable to

hazardous waste treatment, storage, and disposal facilities, even

though MSWLFs present far fewer potential risks. Whatever

environmental justification may have existed nearly two decades

ago for disfavoring—much less effectively precluding-landfilling

as a legitimate waste management option is no longer present.

The landfilling of municipal solid waste is a safe, legitimate

management practice. The challenged Minnesota legislation

now works simply as an economically counterproductive and

constitutionally impermissible flow control scheme.

Regulatory restrictions on landfilling are, moreover,

restrictions on the use of privately owned facilities. While only

about a quarter of the Nation’s landfills are privately owned, the

disposal capacity of those landfills is more than half the total

permitted capacity. These larger landfills have been designed to

comply with the strict Federal standards and their economic

viability is dependent upon the receipt of waste from numerous

jurisdictions. Obviously, the Minnesota legislation acts as a

deterrent to the use of these state-of-the-art facilities, including

landfills located outside the State, which are sized and designed

to receive wastes from a large number of political subdivisions .

In addition, the challenged statute works to discourage

responsible solid waste management planning, at either the state

or the local level, through cooperative partnerships among state

and local governments, the private sector, and individual citizens.

Local governments in Minnesota simply have no choice; they

must follow the dictates of county plans, and inevitably must

deliver wastes to designated, flow-controlled "processing"

(incinerator and composting) facilities.

The mandatory restrictions on the ability of local

governments to choose have also led to unjustified higher costs

for residential and commercial waste generators within

11

Minnesota. Because alternative technologies have proven to be

more expensive than state-of-the-art landfilling, residents of the

State, like those of many other jurisdictions which continue to

impose flow control requirements, incur unnecessary costs.

They will likely continue to do so in the absence of a judicial

determination that the existing legislation is constitutionally

impermissible.

REVIEW BY THIS COURT IS NECESSARY TO

ELIMINATE THE HIGHER COSTS AND ECONOMIC

BALKANIZATION PRODUCED BY THE MINNESOTA

STATUTE.

The private sector responded to rapidly rising disposal

costs in the 1980's by building more disposal capacity. While the

number of landfills in the United States has dropped dramatically,

particularly since the Part 258 regulations went into effect,

overall landfill capacity has increased. As a result, disposal

charges have fallen as landfills compete for business. Yet

Minnesota waste generators and local governments cannot take

advantage of this cost-effective marketplace. They must instead

abide by antiquated county plans that typically continue to rely

on "processing" mandates and flow control strategies to assist

incinerators and recycling facilities that in many cases require

mandatory directed waste flows to be economically viable.

Without the challenged legislation and the statutory

predisposition against landfilling, local governments and waste

generators could avoid higher fees by turing to alternative

disposal options both within Minnesota and in other states.

This case presents precisely the type of economic

balkanization feared by the drafters of the Commerce Clause. A

recent study conducted by the National Economic Research

Associates ("NERA") summarized the historical development of

flow control mandates:

12

Flow control refers to local laws by which local

governments direct that the municipal solid

waste (including residential, commercial, and

industrial) generated within their jurisdictions be

disposed of and/or processed at designated

facilities. Local governments have been

imposing such controls at least since the early

1970's, principally for two reasons—to protect

sizeable investments in waste facilities and to

generate fee revenues to finance solid waste

programs. Many local governments built and/or

financed large-scale waste management facilities

which require substantial minimum waste flows

to cover costs. Many of these facilities, for

example, are resource recovery plants which

operate under contracts to provide steam for

industrial processes and electricity generation.

Some of these plants would not be economic

without these contracts, and the contracts

require that they provide a specific amount of

stream requiring a specific amount of waste.

Consequently, local governments need to direct

waste to these plants to protect their

investments. In fact, according to the Resource

Recovery Yearbook, about 48% of the resource

recovery plants constructed since 1964 benefit

from flow controls. More recently, local

governments have financed and built transfer

stations and material recovery facilities. These

facilities, especially the latter, also require

substantial waste flows to be economic. Public

landfills have been less reliant on flow controls,

although economies of scale may encourage

larger facilities. Some local governments also

have tumed to flow control to generate fee

revenues often used to finance waste

13

management programs such as recycling and

household hazardous waste. Without flow

control, waste generators could avoid such fees

by turing to alternative disposal options in other

jurisdictions.

National Economic Research Associates, The Cost of Flow

Control, May 3, 1995, at 2.

Moreover, there has been a pronounced increase in

disposal/incineration capacity in many areas of the Nation,

including the Midwest. Upgrading and expansions of local sites,

a revolution in transportation, and the growth of transfer station

infrastructure have all have led to a competitive market in which

a community can contract for long-term disposal at very

advantageous rates. Private companies are striving to be the

low-cost provider in their field. Governments that enter into

partnerships with private companies can enjoy financial benefits

and still meet their obligations to their constituents.

Flow control requirements add “approximately $10 per

ton or 33 percent to the average landfill disposal charge (tip fee)

nationwide", "$11.50 per ton or 23 percent to the average

incinerator disposal charge (tip fee) nationwide", and

"approximately $14 per ton or 33 percent to the average transfer

station disposal charge (tip fee) nationwide." National Economic

Research Associates, The Cost of Flow Control, May 3, 1995, at

1-2. Moreover, as the EPA noted, flow contro! mandates

provide no ascertainable environmental benefit. U/S.

Environmental Protection Agency, REPORT TO CONGRESS

ON FLOW CONTROLS AND MUNICIPAL SOLID WASTE,

EPA 530-R-95-008 (1995). Given the excessive and

burdensome costs of flow control, measures such as the

Minnesota legislation stand as significant obstacles to the goal of

a non-balkanized economy. This Court is once again presented

with the opportunity to confirm and make explicit its ruling in

14

Carbone. In addition, the obvious conflict in the judicial rulings

involving the scope of the market participant doctrine amply

justifies this Court’s intervention.

CONCLUSION

This case presents an extremely important question for

the Court's consideration, one that impacts individuals,

businesses and governmental bodies throughout the country.

Despite this Court's decision in Carbone, state and local

governments have continued their efforts to create and sustain

protectionist schemes that thwart the free flow of commerce.

The Minnesota legislation at issue in this case is yet another

example. The statute in question promotes no legitimate

environmental goal; its continued application serves merely to

ensure, through the fiction of market participation, the flow

control of waste to preferred facilities. Such end-runs around

Carbone threaten the viability of this Court’s precedents and the

goals advanced by the Commerce Clause. In addition, as

Petitioner has demonstrated, in light of the inconsistent rulings

on the scope of the market participant doctrine there is a need

for clear and unequivocal guidance from this Court on the

question presented.

Respectfully submitted,

BFI Waste Systems of

North America, Inc.

Jerry L. Mitchell, Jr.

Counsel of Record

757 N. Eldridge

Houston, TX 77079

(281) 870-7190

Attorney for Amicus Curiae

BFI Waste Systems of

October 12, 1998 North America, Inc.