[Congressional Record Volume 140, Number 85 (Wednesday, June 29, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: June 29, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
           INTRODUCTION OF THE WASTE FLOW CONTROL ACT OF 1994

                                 ______


                       HON. CHRISTOPHER H. SMITH

                             of new jersey

                    in the house of representatives

                         Tuesday, June 28, 1994

  Mr. SMITH of New Jersey. Mr. Speaker, today I am introducing 
legislation which authorizes State and qualified local government 
entities to regulate and manage the collection, transport, and disposal 
of their municipal solid waste. While local governments have exercised 
this authority for approximately two decades, and while Congress has 
presupposed this function for local governments, waste flow control 
authority has never been explicitly granted. My bill remedies that 
shortfall.
  I would like to take this opportunity, Mr. Speaker, to offer my 
heartfelt thanks and deep appreciation to Mercer County, NJ county 
executive Bob Prunetti without whom this legislation would not have 
been possible. County Executive Prunetti assembled a team of top-notch 
environmental attorneys including Dave Brooman who provided crucial 
technical expertise in crafting this measure. I would also like to 
express my gratitude to the many waste management experts and local 
government officials, like Somerset County freeholder Mike Pappas who, 
as president of the New Jersey Association of Counties, successfully 
advocated the principles embodied in this bill and won statewide 
support for the same. The New Jersey Governor Whitman's office and the 
Department of Environmental Protection and Energy have offered insight 
as well.
  The Waste Flow Control Act of 1994 is a response to the Supreme Court 
decision in C&A Carbone versus Clarkstown, New York in which the Court 
undermined the use of waste flow control measures by state and local 
government. Specifically, the bill provides a broad grandfather for all 
waste flow control laws, ordinances, provisions, related contracts, and 
solid waste management plans that had been in effect prior to the 
Court's decision. Furthermore, it explicitly grants States and 
localities the authority to flow control all residential municipal 
solid waste generated within the borders of the State or locality in 
the future. The Waste Flow Control Act of 1994 also strengthens the 
public comment and competitive bidding procedures for future waste 
management plans.
  Mr. Speaker, approximately 28 States have adopted waste flow control 
ordinances over the past 20 years. These direct initiatives simply 
designate waste disposal and treatment facilities to which all 
municipal solid waste generated within the localities borders must 
flow. These facilities--which can include landfills, waste-to-energy 
systems, composting or sludge treatment plants, incinerators, and 
transfer stations--are generally part of an integrated waste management 
plan, necessary to meet public health, safety, and environment needs in 
a responsible manner.
  Mr. Speaker, to fund the safe, sound, and environmentally progressive 
technologies as well as the successful recycling programs which the 
public rightfully demands, States and localities have relied upon 
resource recovery bonds. The key to securing these bonds has always 
been flow control in one form or the other. Only by ensuring that there 
will be a steady flow of waste to the facilities at a determined 
tipping fee can the local government assure Wall Street that the 
venture is worthy of investment.
  Mercer County, for instance, has developed a solid waste disposal 
plan which hinges on the construction of a waste-to-energy facility in 
Hamilton Township. The county has gone to great lengths to secure 
general public approval and to ensure that all relevant environmental 
standards are met or exceeded. Financing, however, depends on the sale 
of up to $200 million worth of resource recovery bonds. In ligt of the 
recent Supreme Court decision, however, sale of these bonds has been 
put on hold and the preliminary construction deadline of July is 
unlikely to be satisfied. Not only is the county's highly successufl 
curbside recycling program threatened; but also the waste management 
plan as a whole. Furthermore, county taxpayers face the prosect of 
additional taxes or reduced services to fulfill contract requirements 
for bonds already sold.
  Burlington County faces a similar situation regarding its proposed 
sewage sludge composting plant. The plant is estimated to cost $70 
million and the county has already borrowed $46 million from the State 
Wastewater Trust. However, financing is based on the assurance that 
sewage sludge from all 40 municipalities in Burlington County would be 
treated at the plant. Without this guaranteed revenue, the county may 
be forced to accept sludge from outside the county--thus breaking a 
longstanding promise to Burlington residents--or hike disposal fees 
which would inevitably mean higher local property taxes.
  Without waste flow control, the management and disposal of municipal 
solid waste becomes a free-for-all with large hauling conglomerates 
searching for the cheapest but not necessarily the safest means of 
waste disposal. Only with our State or local governments at the helm 
can we be certain that the Nation's goals of protecting our 
environment, health, and safety will be met effectively and cost-
efficienly long-term. Furthermore, without waste flow control, the 
burden for waste management would fall directly on the already 
overburdened taxpayer.
  Neither raising taxes nor resorting to lower environmental, health, 
ad safety standards can be acceptable solutions to the problem raised 
by the Carbone decision.
  Congress has, on several occasions, implied that States and 
localities have the authority to manage resource recovery through waste 
flow control ordinances. In the Resource Conservation and Recovery Act 
of 1976 [RCRA] the Congress authorized ``State and regional solid waste 
plans'' to ``assist in developing and encouraging methods for the 
disposal of solid waste which are environmentally sound'' [42 U.S.C. 
Sec. 6941].
  Furthermore, in 6943(a)(5) or RCRA, Congress expanded on the 
parameters of these plans, ensuring that State and local governments 
not be ``prohibited under State or local law from negotiating and 
entering into long-term contracts for the operation of such 
facilities.'' The House report, in reference to this specific section, 
states that ``this prohibition, on State or local laws invalidating 
long-term contracts, is not to be construed to affect State planning 
which may require all discarded materials to be transported to a 
particular location * * *.'' [H.R. Rept. No. 94-1491, p. 34 (1976)].
  In the Solid Waste Disposal Act Amendments of 1980, Congress 
authorized the Environmental Protection Agency [EPA] to provide 
technical assistance to State and local governments for the ``removal 
or modification of legal, institutional, and economic impediments which 
have the effect of impeding the development of systems and facilities, 
for resource recovery].'' [42 U.S.C. Sec. 6948(d)(3)] Included in the 
list of obstacles which Congress sought to overcome are ``impediments 
to institutional arrangements necessary to undertake projects * * * 
including the creation of special districts, authorities, or 
corporations where necessary having the power to secure the supply of 
waste of a project.''

  Mr. Speaker, we have effectively written into law that waste flow 
control is an acceptable method for States and localities to carry out 
their responsibilities in resource recovery and solid waste management. 
However, as Justice Sandra Day O'Connor pointed out in her concurring 
opinion in the Carbone case, these references by Congress ``neither 
individually nor cumulatively rise to the level of the `explicit' 
authorization required by our dormant Commerce Clause decisions.'' My 
bill answers Justice O'Connor's call to arms and spells out 
congressional intent in the letter of the law in a concise, 
unambiguous, and unmistakably clear manner.
  Since the Carbone decision, I have been working closely with many of 
my colleagues as well as representatives of States, county and local 
governments, small waste hauling companies, environmental agencies, 
securities corporations, and bond companies. All have been helpful in 
providing the input that has been necessary to produce this remedy 
which will protect the investments of State and local governments and 
will allow these governing bodies to continue to pursue their 
traditional responsibilities in ensuring their citizens' health and 
safety and the protection of the environment. Furthermore, The Waste 
Flow Control Act of 1994 is worded clearly, heeding the Court's 
recommendation and freeing States and localities from endless 
litigation.
  Mr. Speaker, in closing, I would like to stress the absolute urgency 
with which Congress must address this issue in the remaining weeks of 
this session. The Carbone decision has left State and local governments 
high and dry--many with outstanding debt which they have acquired in 
their effort to meet their waste management responsibilities, some 
simply without recourse for meeting the needs of their constituents and 
ours. I appreciate the prompt action and sympathy with which Energy and 
Commerce Subcommittee on Transportation and Hazardous Materials 
Chairman Al Swift has met this matter and the work of our colleagues, 
particularly Alex McMillan and David Minge, who have been actively 
seeking legislative remedy even in anticipation of a Carbone decision 
much like that handed down.
  The Waste Flow Control Act of 1994 is a sensible approach to a simple 
problem and I encourage my colleagues to join this effort on behalf of 
their local governing partners.

                          ____________________