THE ONSLAUGHT of legislation from Michigan attempting to stop Canadian trash from entering the state's landfills is continuing, as Gov. Jennifer Granholm recently signed 11 flow control bills into law. In response, the Washington, D.C.-based National Solid Wastes Management Association (NSWMA) filed a lawsuit challenging the laws under the U.S. Constitution's traditional, ‘dormant’ Commerce Clause and the foreign Commerce Clause.
According to Granholm's office, a few of the new laws:
Require the inspection of municipal solid waste (MSW) imported from Canada to determine if waste is being properly transported and does not threaten public health and safety.
Expand prohibited products in landfills to include certain beverage containers, oil, lead acid batteries, tires, hazardous waste and low-level radioactive waste.
Prohibit out-of-state or out-of-country waste unless unacceptable refuse has been removed or the other state or province has solid waste stream standards equal to Michigan's.
“We view this package of bills as addressing issues related to what materials can be disposed of in Michigan landfills and what's the best way to ensure that prohibited items are not disposed of,” says Frank Ruswick, assistant district chief for the Michigan Department of Environmental Quality (DEQ), waste and hazardous materials division.
The NSWMA challenged each of the new laws because, according to the association's General Counsel David Biderman, “they all suffer from the same Constitutional flaw. They are all enacted in an effort to discriminate against out-of-state waste, and in particular, waste originating in Canada,” he says.
Constitutionally flawed or not, most Michigan lawmakers feel resolute in their decision, especially because of the “Report on Waste Inspections at Michigan Landfills” conducted by the DEQ. From mid-March to mid-June 2003, waste inspections were conducted, and the study found that approximately 10 percent of all incoming loads were contaminated with yard waste. Waste originating from Ontario had the highest percentage of refuse containing yard waste.
However, with the exception of yard waste, a significant amount of other prohibited materials were not found during waste inspections. In fact, of the more than 4,600 loads inspected, only 18 contained prohibited waste, the report states.
To further fight flow control ordinances, the NSWMA also recently filed a lawsuit challenging a Daviess County, Ky., law that requires municipal solid waste generated within the county be disposed of at a county-owned disposal facility. However, the law contains language that states it does not become effective until the federal court issues a ruling.
“This statement in the law is an admission that Daviess County understands the law is vulnerable to legal attacks,” Biderman says. “The NSWMA filed a lawsuit in federal district court, and we have not yet received an answer from the county.”
To help quell the ongoing battles, several Michigan legislators recently visited Toronto to find ways to stem the flow of trash across their borders. One of the legislators included Rep. Joseph Rivet, who thinks the recently passed legislation is vulnerable. “I think there's some serious problems for this legislation to be upheld in any court. However, my job is to represent the citizens. By visiting [Toronto], I wanted to try and take things in a different, more positive direction.”
Indeed, despite continual battles, not every community is trying to implement flow control laws.
“There continues to be jurisdictions that think flow control … is the absolute only way to achieve … legitimate local interests,” says Barry Shanoff, general counsel for the Silver Spring, Md.-based Solid Waste Association of North America. “I think the overwhelming majority of local governments and states are not resorting to overt flow control.”