N.Y. Counties Win Flow Control Ruling

It is not a reversal of the 1994 Carbone decision, but two New York counties have won a U.S. Supreme Court case that upholds a flow control plan steering some materials to county-owned facilities.

 In a 6-3 vote, the court upheld a solid waste plan that was adopted by the two New York counties (Oneida and Herkimer) in part to spur recycling activities.

According to a Bloomberg news service item, the court rejected arguments from hauling companies and solid waste trade groups that the rules violate the Interstate Commerce Clause.

Haulers operating in the two counties will now have to take municipally-collected solid waste to the designated county-owned landfills, which are currently charging more than $70 per ton. Haulers would prefer to have the option of shipping the waste out of state to landfills that charge under $30 per ton.

The Oneida-Herkimer Solid Waste Management Authority says the intention of its plan is to charge more at the landfill to encourage and promote recycling.

Scrap recyclers will not be affected in any major way, predicts Scott Horne, general counsel of the Institute of Scrap Recycling Industries Inc. (ISRI).

Based on his initial reading of the decision, Horne says the ruling seems to apply narrowly to materials collected in city and county programs, and not to materials collected on commercial routes or for transactions across scrap yard scales.

The Oneida-Herkimer case is “distinct from other, earlier cases attempting to address all materials generated within a county or jurisdiction,” Horne comments.

“I don’t think the court’s decision would extend beyond materials that are voluntarily put at the curbside in a municipally-run program,” says Horne. The ordinance in this case, “didn’t take away the right of individuals to do with the materials as they please,” he adds.

Additionally, Horne was pleased to see the justices make distinctions between the solid waste and recycling programs. “I think the court continually distinguished between solid waste and recyclables—I think that’s important.”