Franchising Serving as Flow Control Method

While the Carbone decision in the 1990s served to block some solid waste flow control methods, the use of franchising agreements is giving municipalities a new way to manage where municipal solid waste (MSW) and collected recyclables go.

The franchising topic was one of several legislative and regulatory subjects addressed in an opening session held Mon., May 6, at the Federation of New York Solid Waste Associations conference in Bolton’s Landing, N.Y.

Barry Shanoff, a Washington attorney who serves as general counsel to the Solid Waste Association of North America (SWANA), characterized flow control as an issue more important to New Yorkers then to people in other parts of the country.

His summary of legislative and legal activities also acknowledged, however, that Michigan governor Jennifer Granholm and senator Debbie Stabenow are attempting to draw attention to the growing amount of solid waste moving from Canada into their state. According to Shanoff, Michigan landfills imported 6.6 million cubic yards of solid waste in 2002, an amount 12.1 percent greater than what came in 2001.

While that flow of solid waste is moving unabated, Shanoff noted that municipalities are achieving some control over their solid waste by writing up carefully constructed franchise agreements signed by both the city and private haulers. Through some agreements, “haulers then have the obligation to take [materials] to a given facility,” he remarked

Thus far, franchise agreements in which the hauler agrees to take solid waste or recyclables to a certain facility have stood up to any Interstate Commerce Clause-based counter-arguments, said Shanoff. “These communities who feel a need to control material . . . are setting [franchise agreements] up to be as safe from legal challenge as possible,” he commented.

Other recycling and solid waste issues on the legal map include an attempt by U.S. Senate Democrats to boost funding of the Superfund program by enacting a tax on the petro-chemical industries.

The U.S. Environmental Protection Administration (EPA), now under the leadership of former New Jersey Republican governor Christine Todd Whitman, is attempting to use publicity methods to increase electronics recycling.