Flow Control Creates Stir in Congress

Rep. Frank Pallone , D-N.J., along with several other representatives from New Jersey, submitted H.B. 342, The Flow Control Act of 1995, to the Commerce Committee’s Subcommittee on Commerce, Trade and Hazardous Waste. To ensure bipartisan support, an identical bill was introduced by Rep. Christopher Smith, R-N.J. Both bills were submitted early in January, while a similar bill was expected to be introduced in the Senate as early as the first week of February. The Senate proposal was co-sponsored by Sen. Olympia Snowe, R-Maine, and Sen. William Cohen, R-Maine.

Last year’s bill, which was cobbled together through last fall, fell just short of passing the House. Sen. John Chaffee, R-R.I., withdrew his support of the bill on the last day due to some concerns about language included in the bill.

Supporters of the bill vow that this year’s Congress will pass some type of flow control ordinance. In response to opponents who express concern about the impact flow control legislation would have on recycling and the competitive marketplace, proponents of the policy note that the bill’s scope is limited to only a select group of communities that either had flow control policies in place before the Supreme Court decision last year or were well on their way to having a flow control policy implemented.

To further support the bill’s chances of passing, Eric Bock, with Schwabe, Williamson & Wyatt, a lobbying firm working for the Solid Waste Association of North America, notes that this year’s bill is identical to a flow control bill submitted last year which had the support of virtually every waste management group. Bock expects to see this support again as hearings on the bill get under way.

Additionally, Bock notes that the final bill submitted last year was far different from the original flow control proposal. Through the last half of last year’s Congressional session, both sides of the bill worked toward a compromise which, Bock says, leaned much closer toward the waste management industry’s position than the original bill’s goals.

Bock points out that the compromise bill that was hammered out between the two sides last year had generated some opposition from municipal interests who felt it gave up too much to private industry.

"We told them it was the best we could do to have it pass," he said. While the revised bill waters down many of the provisions contained in the original bill, proponents hope that it will have an easier time passing in Congress.

Although last year’s flow control bill missed being enacted by one vote and received tacit support from many waste management groups, this year’s revision could meet opposition from many of those same groups that supported the previous bill.

To bring the sides together on the policy, Environmental Industry Associations assembled a number of groups opposing this year’s measure last month to address the inherent problems in a flow control ordinance. Representatives included industry groups such as the National Association of Manufacturers; public sector officials, including representatives from the Ventura County, Calif. Management Department and the city of Minneapolis’ Solid Waste & Recycling Department; and policymaking groups such as the Competitive Enterprise Institute.

Although coming from very different perspectives, many of these groups agree on the anti-competitive nature of flow control legislation. Because flow control would prevent open markets, recycling market development would be limited, says Jonathan Adler, associate director of environmental studies for the Competitive Enterprise Institute. A number of other groups, including the New York Public Interest Research Group and the Sierra Club, oppose flow control legislation for the same reason, says Adler.

"Flow control proponents argue that ‘local’ governments must be in control of options for MSW disposal," notes Susan Young, a spokeswoman for the Minneapolis Department of Public Works, Division of Solid Waste and Recycling. "However, they fail to acknowledge that their definition of ‘local’ does not correspond to the level of government directly accountable to citizens, bill payers or voters.

"Legislation giving the county designation control over city decisions will have serious effects on the ability of the city to make decisions on these competing funding needs by artificially giving the county decision-making authority on city solid waste management costs and services," she adds.

The National Association of Manufacturers’ opposition to the bill stems from several issues. First, flow control would create a government monopoly, reducing competitive marketplaces, according to NAM. Also, giving state and local government the authority to allocate the market and set waste services and costs virtually eliminates incentives to maintain standards, NAM maintains. In addition, NAM argues that the bill would give government absolute power to make decisions and appropriate whatever share of the market it cared to take.

Allen Blakey, a spokesman for the National Solid Wastes Management Association, maintains that flow control "creates waste service monopolies, raises prices, promotes inefficiencies, hinders innovation and is bad for consumers by raising costs while failing to provide services to communities."

Regarding the support of previous legislation by many waste management groups, Blakey notes last year’s bill was haphazardly drafted, "with a lot of contradictory information." Also, he says that the bills being submitted are not simple grandfather legislation.

While on the surface the flow control issue appears to be primarily governing solid waste, the notion of collection of recyclables has arisen. Bock points out that composting and recycling are not profitable at the present time. While private industry is in the business to make money, they will not go after areas that are deemed unprofitable, he says. At the same time, communities are faced with state mandates to reduce their solid waste destined for disposal through means such as recycling.

Another flashpoint is the portion of the bill stating that flow control could be used for communities "well on their way to developing flow control legislation." This area is open to a significant interpretation, and was the cause of great debate during last year’s flow control discussion.