Issue Management
Services
Interstate Shipment of Municipal Solid Waste
July 30, 1999
In most areas of the U.S., state and local governments play the
lead role in MSW management. State and local governments generally
decide how waste will be managed—whether by landfill, incineration,
recycling, composting, or a combination of these. States also set
standards for the management facilities. Funding for MSW programs
primarily comes from state and local sources.
Private waste management firms also play an active role in MSW management,
usually under contract with local governments or in response to
state mandates. Private firms manage most commercial waste (waste
generated by stores, office buildings, and institutions), which
comprises about 40% of MSW. Private firms also increasingly manage
residential waste, comprising the remaining 60% of MSW.
The federal government also has an important role in the regulation
of MSW. Congress established minimum national standards for landfills
and incinerators under the Resource Conservation and Recovery Act
(RCRA) and the Clean Air Act.
Interstate shipment of MSW has become more common in recent years.
The reasons for this include increases in the amount of MSW, local
shortages of disposal capacity, particularly in the Northeast and
on the West Coast, and a national trend towards larger regional
disposal facilities. Many states depended on the importation of
MSW as a source of revenue.
The five major exporters of MSW are Maryland, New York, Illinois,
New Jersey, and Missouri. The leading MSW importers are Pennsylvania,
Virginia, Indiana, and Michigan.
Since 1996, developments in New York City have sparked increased
interest in interstate waste issues. On May 29, 1996, New York Governor
George Pataki and New York City Major Rudolph Giuliani announced
that New York City’s one remaining landfill, Fresh Kills, will
close in the year 2001. At the time of the decision, the city was
sending 13,200 tons of waste per day to the landfill. There is little
or no capacity in state to replace Fresh Kills when it closes. As
a result, New York City began exporting 1,800 tons of waste per
day in July 1997. In October 1997, the city accepted proposals from
firms interested in managing the remaining 11,000 tons per day.
The first of these contracts, for 2,400 tons per day, was awarded
September 17, 1998.
As a result of increased shipments of MSW, states with adequate
disposal capacity have attempted to limit MSW imports. Many methods
have been tried, such as moratoria on the construction of new landfills,
fees on the disposal of out-of-state waste, and bans on disposal
of out-of-area waste. However, many of these measures have been
struck down as violating the interstate commerce clause.
In May 1994, in the case of C & A Carbone v. Clarkstown, the
Supreme Court held that flow control violates the Constitution’s
protection of interstate commerce. “Flow control” is the
term used for efforts by state and local governments to designate
where privately collected waste must be disposed. With few exceptions,
a state may not prohibit waste imports or impose fees on out-of-town
waste, nor may it designate where privately collected waste must
be disposed.
Although the states are prevented from regulating interstate commerce,
the Constitution does provide Congress with this power. This power
can be used directly by the federal government or it can be used
to authorize state and local governments to restrict interstate
commerce under specified conditions. The latter approach is the
principle behind legislation that has been considered in each of
the last four Congresses. Eight bills have been introduced in the
106th Congress addressing interstate shipment of MSW. Essentially,
such legislation would give state or local governments the authority
to restrict imports of out-of-state waste.
STATE INITIATIVES
The importation of MSW can generate large amounts of revenues for
states with excess landfill capacity. However, in most states importing
MSW, public opinion is generally against the importation of MSW.
In response to public opinion, the states continue their attempts
to limit the flow of MSW even though the U.S. Supreme Court has
limited the ability of the states to restrict MSW disposal. Importer
states are the most active in their attempts to enact flow control
legislation.
Virginia
During its 1999 session, the Virginia General Assembly enacted a
law (H.B. 2471) that placed a cap of 2000 tons per day or the average
actual amount disposed of in 1998, whichever is greater, on the
disposal of MSW. The law also prohibits the issuance of permits
for new landfills until the statewide disposal capacity falls below
a ten-year supply. Virginia also enacted a law (H.B. 2556) that
prohibited the commercial transport of hazardous or nonhazardous
solid waste (except scrap metal, dredged material and source-separated
recyclables) and regulated medical waste by ship, barge or other
vessel upon the navigable waters of the state.
These laws were challenged in federal court by Waste Management,
a private waste management firm. On June 29, 1999, a federal judge
issued a temporary injunction prohibiting enforcement of the laws
based on the laws' violation of the Constitution's commerce clause.
The laws were to become effective July 1, 1999. The trial challenging
the constitutionality of Virginia's landfill cap and barge restrictions
is scheduled for later this year. Virginia Governor James Gilmore
(R) has vowed to fight to the U.S. Supreme Court to ensure Virginia's
right to restrict garbage imports.
Virginia Attorney General Mark Early (R) is attempting to add New
York as a plaintiff in the court case challenging the Virginia laws.
Early has argued that New York City violated the U.S. Constitution
by closing its own landfills, discouraging local dumping and overwhelming
the interstate market with thousands of tons a day of garbage.
Michigan
The Michigan Legislature is considering several bills addressing
solid waste. The two important to note are H.B. 400 and S.B. 83.
H.B. 4040 would prohibit the transport or disposal of solid waste
from another state; this prohibition will apply only if the Congress
enacts a law authorizing the states to regulate the transportation
and disposal of solid waste.
S.B. 83 would restrict the transport of solid waste into Michigan
unless the state certifies that the generating state or country
has a solid waste disposal regulatory system that is at least as
stringent and protective of public health as is in existence in
Michigan.
New Jersey
The New Jersey Legislature is considering a number of bills addressing
solid waste. Several of the bills being considered are in response
to court decisions ruling flow control legislation unconstitutional.
A.B. 516 would require municipalities establishing a municipal service
system adopt an ordinance that, among other things, identifies out-of-state
disposal sites to be utilized by the municipality and shows that
the site is permitted by the appropriate state agency and conforms
with all applicable state and federal laws.
A.B. 519 would impose a $10 per ton surcharge on solid waste generated
from the municipal solid waste stream within each municipality.
The money would be used to retire the debt service on bonds issued
on May 15, 1994, to finance solid waste facilities. (This is in
response to federal courts finding flow control measures unconstitutional).
A.B. 1605 and S.B. 459 would provide for the state repayment of
the revenue shortfall of counties and public authorities associated
with the construction and operation of solid waste facilities. The
court decision which declared New Jersey's solid waste management
program unconstitutional opened the door to a competitive market
for solid waste. The ensuing loss of revenue, caused by price reductions,
has made it difficult for counties to pay debt service on capital
costs associated with solid waste management.
A.B. 2740 would prohibit the construction or operation of any new
solid waste marine transfer stations designed and operated for the
purpose of accepting solid waste generated in the City of New York
and shipped along the State's coastal waterways in barges.
A.B. 2924 would require the Department of Environmental Protection
to adopt regulations governing the issuance of permits to transfer
stations and other solid waste facilities that receive municipal
solid waste from out-of-state sources by barge, ship, or other vessel
upon the navigable waters of the state.
S.B. 1614 would prohibit marine transfer stations and intermodal
container facilities from accepting solid waste that is not containerized.
Pennsylvania
The Pennsylvania Legislature is considering a bill, H.B. 747, that
would provide a three year moratorium on the issuance of permits
for landfills and commercial residual waste disposal facilities,
and impose a statewide capacity cap.
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