Have trash, will travel: Moving garbage across state lines

Over the last 10 years, local and state governments have tried numerous methods to restrict the flow of garbage across their borders. They have implemented moratoria on landfill construction, fees and bans on out-of-state waste, and various administrative requirements that make interstate shipments impossible.

However, those attempts have been struck down repeatedly, as the Supreme Court has ruled three times since 1992 that such mandates violate the Constitution’s Commerce Clause. Only Congress, the courts have reasoned, can regulate the interstate transportation of waste. So, many local governments, without the authority to regulate interstate transportation, are left trying to manage both the positive and negative effects of garbage moving across their borders.

Origins of the dispute

According to the Congressional Research Service (CRS), interstate waste shipments are rising each year. An estimated 28.4 million tons, or about 13 percent of the nation’s municipal solid waste, crossed state lines in 1998, nearly double 1993 levels.

The rise in interstate shipments is the result of several changes in the solid waste industry. EPA regulations require expensive environmental, health and safety measures that have led to the closure of as many as three-quarters of the nation’s small landfills. That capacity is now handled by regional landfills that can cost $500,000 per acre to develop, according to the Environmental Industry Associations, Washington, D.C.

At the same time, the solid waste industry has undergone major consolidation and vertical integration. To protect their investments, private waste haulers often transport waste to their own landfills in other states rather than take the waste to a competitor’s in-state landfill.

The resulting rise in interstate shipments troubles some local leaders. Critics say that the transfer of waste hundreds of miles across state lines increases the traffic, noise and odor problems associated with garbage trucks; decreases the capacity of states to handle their own waste; and detracts from the states’ public images. Proponents say that allowing free transportation of solid waste financially benefits private haulers and host communities.

Foul play

Some observers thought the 106th Congress would be compelled to pass laws regulating interstate waste transportation after a series of exchanges between the governors of New York, New Jersey and Virginia in late 1998 and 1999. After Houston-based Waste Management announced that it planned to ship millions of tons of New York garbage through New Jersey to Virginia, New Jersey Governor Christine Todd Whitman issued a press release entitled, “Whitman to New York’s Garbage Plan: Drop Dead.”

Then, when Gov. James Gilmore of Virginia, the second-largest garbage importing state, expressed concern about receiving New York’s refuse, New York City Mayor Rudy Guiliani suggested that sending the garbage to Virginia was a fair trade for the pleasure Virginia tourists receive from their trips to the Big Apple. Gilmore and the Virginia legislature responded with a law that limited waste imports by capping the amount that could be disposed of in state landfills and banning trash-hauling barges from Virginia waterways.

Waste Management and the County of Charles City, Va., filed suit against the state in response to the law. The company and the county had constructed a large regional landfill (a “megafill”) in 1990, intending to fill much of it with New York trash. Before the legislation, 40 percent of the waste shipped to the landfill arrived via a privately owned barge port a few miles away.

The Virginia law also worried Bristol, Va., which straddles the Virginia/Tennessee line. W. A. Dennison, the director of public works for Bristol, says the law would have made it extremely difficult for his city to operate the landfill it opened in 1998. The landfill’s service area of 100 miles around the city’s corporate limits includes parts of Virginia, West Virginia, Tennessee and North Carolina. If the law had remained in place, Bristol would have had to reduce its service area by about 50 percent, Dennison says. The point became moot when, in June 1999, U.S. District Court Judge James Spencer, following many judges before him, ruled that the Virginia statute violated the Commerce Clause.

Bogged Down

The level of concern that local governments are experiencing over the trash wars is not shared in Washington, D.C. Despite the introduction of several bills and the urging of more than 50 members of the House of Representatives, Thomas Bliley (R-Va.), chair of the House Commerce Committee, has refused to take action on the interstate waste transportation issue.

Similar bills have been introduced in the Senate, but lawmakers are not likely to consider them unless the House takes action first. Most of the bills would authorize state or local governments to restrict out-of-state waste while grandfathering current arrangements in some form.

According to a CRS analysis, the bills introduced in the Senate would allow local governments to request that governors restrict imports. Bills in the House would allow local governments to decide whether to allow interstate shipments at local facilities. But, rather than move forward into what promises to be a bruising debate, Bliley is waiting for a consensus to emerge among the governors of the states that would be most affected by legislation.

Key states in the debate include Pennsylvania, the largest net importer of solid waste, followed by Virginia, Indiana, Michigan and Oregon. The CRS estimates that 46 percent of waste crossing state borders originates from just three states: New York, Illinois and New Jersey. New York’s exports will grow even more with next year’s closure of the city’s Fresh Kills landfill. The consensus Bliley seeks is nowhere in sight.

Andrew Quigley, executive director of the Solid Waste Agency of Lake County, Ill., does not believe federal action is needed. Over the next 20 years, about half the waste generated in Lake County, a suburban Chicago county of 600,000, will be discarded just across the border in Wisconsin. Quigley’s agency and private waste haulers took Wisconsin to court twice in the 1990s over state laws that effectively prohibited importing waste. In both cases, the court found the laws unconstitutional.

Quigley believes that much of the debate over interstate waste is political posturing by state lawmakers who can easily find support among voters who do not want their states viewed as dumping grounds. “It should really be up to the host community – the people who have to live with the landfills – not state legislatures,” he says.

Following the waste trail

The leaders of Charles City County, who sued the state of Virginia, agree that solutions lie in local hands. Faced with a huge bill for closure of an existing county-owned landfill, local leaders allowed the construction of a new megafill. By drawing in waste from out of state, the county could afford to continue providing disposal services while closing the old landfill.

According to Bill Britton, Charles City County’s director of development, the county receives an average of $4 million per year through its host agreement. That is roughly equal to the amount the county generates through local taxes and about one-quarter of its annual budget. Charles City County Administrator Ken Chandler says the county has used the landfill revenues to build three new school complexes and to reduce its real estate taxes by more than 45 percent.

While host communities may benefit financially from landfills that import waste, critics of waste imports say negative effects are felt far beyond host community boundaries. Fairfax County, Va., for example, is a convenient resting place for drivers of waste trucks traveling from New York and New Jersey to megafills in southern Virginia. According to Jeff Smithberger, Fairfax County’s deputy director of solid waste disposal, the county has seen an increase in low-budget haulers with poorly maintained trucks parking loads of garbage on public streets for as long as a week. Often the garbage is not covered and is not transported in water-tight containers, resulting in litter and leachate on county streets and leaving the load open to flies, birds and other animals.

In September 1999, the county changed its solid waste code to regulate solid waste transportation. The county now requires that garbage trucks produce no foul odors and do not leak fluids. It also limits where garbage trucks can be parked to prevent drivers from lingering in the county. Fairfax lawmakers crafted the revisions to apply to all garbage trucks, regardless of origin, in an effort to withstand any Commerce Clause challenges.

Fairfax County regularly patrols for trucks out of compliance with the law and impounds those in violation. “Every single truck that we have inspected has had mechanical difficulties and has been taken out of service,” says Smithberger. “The industry is not closely watched. It is a sad state of affairs.”

Quigley agrees that local regulation of leaking, uncovered and smelly garbage trucks is appropriate. “You shouldn’t be able to tell the difference between a garbage truck on the highway and one carrying products to Wal-Mart,” he says.

Carl Newby, solid waste division chief for Arlington County, Va., thinks being an importer of trash is bad for his state because, while Charles City County may benefit financially, other communities, like Fairfax County, do not. He says that state economic development officials have the issue on their list of negative perceptions that businesses and tourists may have of the state. “It used to be Virginia is for Lovers,” says Newby. “Now it is Virginia is for Losers in the Solid Waste Game.”

Charles City County’s Chandler says that many of the critics of interstate waste transportation are being hypocritical. “All of the hazardous and nuclear waste in Virginia is shipped out of state, so how can they argue with us importing non-hazardous waste?” he asks.

Free transportation, local control

To provide some guidance to local governments, the Silver Spring, Md.-based Solid Waste Association of North America (SWANA) issued a policy statement in June. The policy supports interstate transportation of solid waste given local decision making and strict operating standards set by states to ensure public health and safety.

In part, SWANA recommends that state governments:

– enact laws to protect public safety and the environment, and set financial consequences for environmental damage and transportation-related issues;

– develop plans and permitting processes to regulate the size, type, capacity and location of solid waste facilities; and

– delegate authority to local governments to plan, develop and implement solid waste facilities.

Local governments, according to SWANA, should negotiate host agreements with private operators of solid waste facilities and should establish local zoning and land-use regulations that lessen the effects of transportation, handling and disposal of solid waste.

In line with the SWANA policy, Illinois has developed a list of criteria, including need and service area size, that local permitting authorities must address when siting solid waste facilities. “The whole siting process is very much on the record,” Lake County’s Quigley says. Surrounding counties must be notified that the siting process is beginning, and opponents and proponents of facilities may cross-examine each other’s experts.

In contrast, Virginia has no such processes in place. While Fairfax County’s Smithberger is working with legislators to strengthen the state’s ability to regulate leaky waste vehicles, siting of solid waste facilities is a local zoning matter.

A final issue that further complicates the interstate transportation debate is whether local governments can direct private haulers in their jurisdictions to deliver their loads to specific facilities. So-called “flow control” laws have been challenged nationwide.

In 1994, the Supreme Court ruled in C & A Carbone vs. Clarkstown that flow control provisions, like those intended to regulate interstate transportation, violated the Commerce Clause. Local governments have relied on flow control to support bond financing of facilities, and, in the wake of Carbone, that financing has been jeopardized. Three bills to restore flow control authority to local governments have been introduced in the 106th Congress, but no action has been taken on them.

Without Congressional action on either interstate waste transport or flow control, local and state governments are left with the task of creatively crafting solutions that address their concerns without violating the Constitution.