Waste Groups Seek Relief from Flow Control Ordinance

The Pennsylvania Waste Industries Association (PWIA) and the National Solid Wastes Management Association (NSWMA) asked the U.S. District Court for Eastern Pennsylvania to enjoin Delaware County and the Delaware County Solid Waste Authority from implementing a new "flow control" ordinance governing all municipal solid waste generated in the county.

The ordinance, which the associations say was enacted and implemented without proper statutory notice, would replace a free-market system of waste disposal and processing by requiring all county-generated municipal waste be disposed only at county-designated facilities.

In a complaint filed by the Philadelphia-based law firm of Drinker Biddle & Reath LLP, PWIA and NSWMA argued that the new ordinance violates the Commerce Clause of the U.S. Constitution and that county officials bypassed mandatory state statutory provisions governing waste plan revisions, including prior approval by the Pennsylvania Department of Environmental Protection.

The U.S. Supreme Court in April 2007 ruled that a flow control plan that directed all waste in a particular region to government owned and operated disposal facilities as part of a purely public system did not interfere with constitutionally protected interstate commerce. The court said the fact of government ownership and operation of such facilities was "constitutionally significant" and justified flow control as a public benefit under those circumstances.

But PWIA and NSWMA maintain the court's decision does not apply in this case because the waste disposal and processing facilities involved in Delaware County's new "flow control" ordinance are not publicly operated and are part of an overall waste services system that is "predominately" private, not public.

Tim O'Donnell, president of the PWIA, said association members began receiving copies of the newly enacted ordinance late last week, without even the benefit of a cover letter of explanation.

"Compliance with this new ordinance would require substantial operational changes by our members that would be difficult to manage on such short notice" O'Donnell said, "and in the long run the lack of competition would mean higher disposal costs for everyone, including the consumer."

PWIA represents private-sector waste haulers, recyclers, and landfill operators in Pennsylvania and is affiliated with the National Solid Wastes Management Association.