Import Laws in Effect

MICHIGAN RECENTLY notched an important victory in the battle to stop its new trash import laws. A federal judge has refused a waste industry request to block the regulations' implementation. However, the controversial rules are not out of the legal woods yet. They still are facing a lawsuit and potential appeals filed by the Washington, D.C.-based National Solid Wastes Management Association (NSWMA).

The laws say that trash shipments from outside Michigan must adhere to state disposal standards, meaning they cannot contain such items as beer and soda cans, whole tires and lead-acid batteries, among other materials. The regulations also stipulate that Michigan landfills can only accept a trash shipment that comes from jurisdictions that have certified they prohibit the same items the Great Lakes State prohibits from landfill disposal. Or, the importer must certify that a shipment has passed through a processing facility and removed banned items and documented the inspection.

Michigan Gov. Jennifer Granholm signed the measures into law in March. The waste import rules were part of a package of laws that clarified the items banned from landfills and originally were scheduled to take effect on Oct. 1. The import laws were perceived by the solid waste industry as an attempt to stem the importation of Canadian trash, particularly from Toronto. However, Robert McCann, a spokesman for the Michigan Department of Environmental Quality, claims the regulations were intended to control the content, not the amount, of trash shipments.

In April, NSWMA filed a lawsuit against the state alleging that the laws violate the U.S. Constitution's Commerce Clause because they discriminate against out-of-state trash by hampering its free flow into Michigan landfills while not doing the same for in-state solid waste. In the fall, U.S. District Judge Avern Cohn pushed back the laws' starting date to Nov. 1 after determining that the state had not yet developed the necessary procedures to implement the rules.

NSWMA asked Cohn to issue a preliminary injunction to prevent the laws from taking effect pending the lawsuit's resolution. However, in late October, Cohn declined to do so, and the laws took effect on Nov. 1.

In his opinion explaining his decision, Cohn wrote he did not detect the laws were crafted with discriminatory intent, but he conceded that the rules may have a discriminatory effect that NSWMA could demonstrate during the lawsuit. The laws “contain no overt distinctions between in-state and out-of-state waste, nor do they expressly bar the entry of out-of-state waste into Michigan,” he wrote, later adding that the state “has the constitutional right to limit the composition of solid waste disposed of in a Michigan landfill so long as the limitations are uniformly applied to in-state and out-of-state solid waste.”

The “procedures [outlined by the laws] appear to be reasonable ways to keep ineligible solid waste from being disposed of in a Michigan landfill,” Cohn added. “That trial of plaintiff's claims may prove otherwise is no basis for issuance of a preliminary injunction at this time.”

David Biderman, general counsel for the NSWMA, says the organization is disappointed by the judge's ruling but has decided not to appeal. Instead, the NSWMA will proceed with the next phases of the lawsuit. “We're confident that when the judge reviews this case on the merits, he's going to determine that these laws violate the Commerce Clause,” Biderman says.

However, the wording and tone of Cohn's injunction opinion indicates that he is likely to side with the state, says Barry Shanoff, general counsel for the Solid Waste Association of North America, Silver Spring, Md. “His choice of words suggests he is very deferential to what the state is doing, and he sees the state as crafting these rules fairly carefully,” Shanoff says.

If Cohn does not rule in the NSWMA's favor, the organization could appeal the decision. Meanwhile, trash from Canada and other states has met the new requirements and is entering the state — despite the laws' implementation, according to McCann.

Toronto's trash is disposed at Republic Services Inc.'s Carleton Farms Landfill in Sumpter Township, Mich. Will Flower, spokesman for the Ft. Lauderdale, Fla.-based firm, says the regulations have created more paperwork for landfill employees.

Tom Horton, government affairs manager for Houston-based Waste Management Inc.'s Michigan area, says the rules have affected the company's procedures for collecting solid waste in Ontario and disposing it in the company's Michigan landfills. The largest efforts and costs have been spent at the company's transfer stations to ensure that any banned items are removed before they reach the landfills, he says.