[Congressional Record Volume 140, Number 86 (Thursday, June 30, 1994)]
[House]
[Page H]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: June 30, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                FINDING A REMEDY TO THE CARBONE DECISION

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentleman from New Jersey [Mr. Smith] is recognized for 5 minutes.
  Mr. SMITH of New Jersey. Mr. Speaker, I rise today to urge my 
colleagues to support bipartisan legislation I, along with others, have 
introduced, H.R. 4661, to ensure the protection of flow control 
authority for those local and State governments that rely on it for the 
implementation of long-term, integrated, environmentally sound 
municipal solid waste management plans.
  Mr. Speaker, it is absolutely clear that without this flow control 
option, recycling, composting, source reduction, resource recovery 
programs, waste-to-energy and other environmental projects to manage 
municipal solid waste in communities across the United States will be 
seriously endangered. Indeed, it is fair to say that in the aftermath 
of the Carbone decision, which has overnight eliminated this important 
local government tool, the momentum toward increased recycling, 
composting, and source reduction will not only come to a halt but could 
be significantly reversed, undoing all the progress we have made over 
the last decade. As Justice Sandra Day O'Connor noted in her concurring 
opinion, it is within Congress' power to authorize local imposition of 
flow control. I urge my colleagues to move legislation that would 
ensure localities continued use of and investment in innovative and 
environmentally sound solid waste management systems.
  Mr. Speaker, some who claim to be concerned about the negative 
environmental impact of the Carbone decision are suggesting a narrow 
grandfather of exact facilities already built. I believe that could 
prove to be short sighted and environmentally regressive. It would 
freeze in current technology, making it more difficult to finance new 
technology for recycling, composting, resource recovery and source 
reduction. Accordingly, I have introduced legislation, H.R. 4661, that 
grandfathers solid waste management plans that are predicted on waste 
flow control. My bill enables communities that rely on waste flow 
control to pursue those plans and for those communities that do not 
have such plans, they may proceed pursuant to the new guidelines 
established in the bill.
  Mr. Speaker and my colleagues, we need to fully understand and 
appreciate this: the Carbone decision and other similar court cases 
place many planned and existing recycling and composting facilities in 
jeopardy.
  To underscore this concern, let me point to some places across the 
country where composting and related environmental projects are at risk 
absence of flow control legislation like H.R. 4661.
  The city of Springfield, MO, has decided to open to $17.9 million 
recycling and composting facility--referred to as a materials recovery 
facility [MRF]--the funding of which requires a bond issue. After the 
decision to build the facility was made, however, local waste haulers 
purchased landfills outside the city limits. They then began 
transporting 75 percent of the city's waste to these landfills, thereby 
jeopardizing the city's chances for a bond issue. The waste hauler's 
landfills do not, of course, incorporate source reduction or recycling 
into their waste disposal programs. In contrast, the city's plan, which 
now stands in jeopardy due to the actions of the local waste haulers, 
incorporates recycling, source reduction, public education, and the 
removal of household chemicals from the waste stream.
  The city of San Diego's municipal solid waste composting project, 
Cape May County, New Jersey's municipal solid waste composting project, 
and Rockland County New York's recycling facility are all in similar 
situations. Each local government has planned an environmentally sound 
recycling or composting facility as part of an integrated solid waste 
management plan. Each one must now put implementation of its recycling 
or composting facilities as well as its entire integrated solid waste 
plan on hold as a result of its inability to use flow control in the 
wake of the Carbone decision.
  Similarly, Fresno, CA, is in the planning phase of its municipal 
solid waste composting project. Under the California State ``Integrated 
Waste Management Act of 1989,'' California communities are required by 
law to divert 50 percent of their waste from landfills by the year 
2000. In order to comply with this mandate, San Diego built the waste 
recovery facility at issue. Plans for this facility will also be put on 
hold.
  Riverside County, CA, is in the final permitting stages for their 
planned recycling facility, a facility which would allow the county to 
avoid landfilling a significant portion of their waste in compliance 
with California law. These plans will now be put on hold as a result of 
the Carbone decision.
  The Connecticut Resources Recovery Authority operates two recycling 
facilities that are absolutely dependent on flow control. Connecticut 
Attorney General Richard Blumenthal recently described the impact the 
Carbone decision will have on his State. He told the press that ``as a 
direct and immediate result'' of the Carbone decision, ``many 
(Connecticut) municipalities, and ultimately their taxpaying citizens 
will find themselves liable for huge payments in lieu of garbage which 
they can no longer supply.'' As Blumenthal notes, it is ironic that 
Connecticut municipalities find themselves in this position because 
Connecticut complies with Federal mandates requiring long range 
planning for solid waste disposal and recycling. The State of 
Connecticut could ultimately be liable for $520 million in State 
revenue bonds.
  San Diego County recently began commercial operation of a $134 
million waste recovery facility which recovers recyclable from the 
waste stream. In order to comply with California State mandate, San 
Diego built the waste facility at issue. The fate of this facility, 
which depends on flow control, is uncertain in the wake of the Carbone 
decision.
  In my own district, one county, Mercer County, issued and spent $71 
million in revenue bonds for the construction and implementation of a 
state-of-the-art comprehensive solid waste management system which 
incorporates many environmental programs. Its solid waste management 
system includes comprehensive recycling, leaf and yard waste 
compositing, household hazardous waste collection, an aggressive 
consumer education program, resource recovery and landfilling. 
Similarly, Atlantic County has a comprehensive solid waste management 
system that includes compositing of municipal waste, including leaf and 
yard waste, a comprehensive recycling program, including curb-side 
collection of batteries and other items, household hazardous waste 
collection and an aggressive consumer education program.
  By employing comprehensive waste management systems, the counties 
eliminate the need to send significant portions--often over 50-
percent--of their waste streams to waste disposal facilities. Under 
Mercer County's comprehensive recycling program, which includes 
curbside collection of recyclable materials including wood, paper, 
plastic, glass, steel, aluminum, bi-metallic, newsprint, batteries, 
tires, and ascptic containers, last year 63 percent of the county's 
municipal solid waste was recycled.
  In addition to the many environmental projects employed by Mercer and 
Atlantic Counties, the two counties have agreed to jointly operate a 
regional resource recovery facility, scheduled to begin construction on 
July 31, 1994. As a result of the Carbone decision and the counties' 
inability to use flow control in the absence of Federal legislation 
authorizing its use, both counties' entire comprehensive solid waste 
management systems--and the $71 million in revenue bonds used to fund 
the Mercer County system--are in jeopardy. As a result, not only is the 
construction of this regional facility placed in jeopardy, but so are 
the numerous aggressive and effective environmental programs currently 
run by the counties.
  Burlington County, in my district, 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.
  Situations similar to those I have just described also exist in 
Snohomish County, WA, Brookhaven, NY, Lancaster County, PA, Beaumont, 
TX, and in many other localities throughout the country.
  Mr. Speaker, under Federal law, these State and local governments, as 
well as many more, are presupported by the Federal Government to have 
the responsibility for managing municipal solid waste. As part of this 
responsibility, local governments have developed and implemented 
integrated municipal solid waste management plans. In many instances 
recycling or other environmental programs are mandated by local 
governments as part of their diposal of MSW. In other instances, local 
governments choose, often based on public demand, to implement 
recycling and other environmentally responsible programs such as 
composting, source reduction, household hazardous waste collection, and 
public education to deal with municipal solid waste. Local governments 
use flow control ordinance to implement the long-term integrated solid 
waste plans required of them and to fullfil their responsibility to 
protect the public health and safety by providing adequate long-term 
disposal capacity. To change the rules now, would be patently unfair 
and wreak havoc on environmentally safe and publicly approved waste 
management plans across the country.
  When a locality implements a fully-integrated solid waste management 
system that includes components such as recycling, composting, waste-
to-energy facilities, landfills and public education, flow control 
allows the locality to fund these components through the collection of 
tipping fees at the municipal solid waste landfill and/or waste-to-
energy facility which are parts of the system.
  Often times large private haulers compete for only a portion--or the 
cheapest aspect--of the complete plan leaving it to the taxpayers to 
pay for the nondisposal costs of the system, such as the costs of 
recycling, composting, source reduction and public education program. 
Unlike local governments who are required to act in the public 
interest, private waste companies often overlook the long-term 
environmental benefits and focus on their prime interest: making money 
through the cheapest disposal means. Such profit motives create 
disincentives for the employ of recycling, resource conservation and 
recovery technologies, which are invariably more expensive, when you do 
not factor in their obvious long-term benefits to the community and the 
environment.

  Mr. Speaker, there is a consensus that our local governments have the 
responsibility to provide for the safe and sanitary disposal of 
municipal solid waste over the long-term. Yet, Congress must ensure 
that local governments have the explicit authority to: first, pursue 
environmentally safe avenues of recycling, composting, and disposal as 
components of their integrated solid waste management plans and, 
second, to cost effectively finance such activities through 
guaranteeing adequate waste streams to their waste management 
facilities to ensure that they receive sufficient revenues to met their 
bond obligations. One of the most equitable and progressive ways to 
accomplish these two objectives is to ensure that municipalities who 
have enacted flow control programs are permitted to carry them out.
  In my own State of New Jersey we have required each of our 21 
counties to develop their own waste flow and management plans so that 
our State will become self-sufficient in our management of garbage 
disposal and no longer export our trash. All around the country, in 
more than 25 States, State and local governments have taken the 
initiative and are developing environmentally responsible integrated 
systems for the management of waste. All of their efforts, as well as 
their financial and environmental health, are now at risk if Congress 
remains silent on the flow control issue. I therefore strongly urge my 
colleagues to support my legislation which restores flow control 
authority to those local governments that have planned for it. Those of 
us who are environmentally concerned about solid waste reduction and 
preserving our open spaces through increased recycling and other means 
must vigorously support enactment of this comprehensive measure.
  Outline of the provisions of H.R. 4661:

             The Waste Flow Control Act of 1994 (H.R. 4661)

       Grandfather for States and political subdivisions that have 
     relied on flow control:
       (A) Allows continued flow control for residential, 
     commercial, incinerator ash, construction or demolition 
     debris, industrial, institutional waste, if adopted before 
     May 15, 1994 (date of Carbone decision);
       (B) Protects source separation and recycling programs, if 
     adopted before May 15, 1994;
       (C) Protects all ordinances, laws, contracts, 
     administrative/legislative provisions, including solid waste 
     management plans, adopted before May 15, 1994; and
       (D) Protects all existing and planned facilities.
       Clearly states that waste flow control is a reasonable 
     regulation of commerce, retroactive to the effective date of 
     the contract or agreement or date of adoption of any law, 
     ordinance, regulation, legislative/administrative provision.
       Congressional grant of authority to States for prospective 
     waste flow control:
       (A) Gives States and qualified political subdivisions 
     permission to flow control residential waste, including:
       (1) from a single or multifamily residence;
       (2) from an apartment or condominium; or
       (3) from a hotel or motel.
       (B) Gives States and qualified political subdivisions 
     authority to control destination of recyclables, if:
       (1) the materials are relinquished voluntarily; or
       (2) the State or qualified political subdivision assumes 
     responsibility for the materials.
       (C) Allows the designation of waste management facilities.
       Contingencies for prospective waste flow control:
       (A) State or political subdivision must establish a source 
     separation program for recycling, reclamation, and reuse.
       (B) Designation process for waste management facilities 
     must include 1 or more public hearings and a written 
     explanation.
       Competitive bidding process for prospective waste flow 
     control:
       (A) Designation process must be a part of a long-term 
     municipal solid waste management strategy.
       (B) Goals of the designation process must at least include:
       (1) capacity assurance;
       (2) provisions to protect human health and environment; and
       (3) additional goals determined to be relevant to State or 
     qualified political subdivision.
       (C) Identifies/compares reasonable and available 
     alternatives.
       (D) Provides for public participation and comment.
       (E) Provides for an open competitive process for 
     designation, including:
       (1) in writing, criteria to be utilized in selection;
       (2) opportunity for private and public persons to offer 
     their existing or proposed facilities; and
       (3) use of the merits of the facilities in selection.
       Protects State procurement laws and Federal and State 
     environmental standards relating to the disposal or 
     management of solid waste or recyclables.

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