On Deck in 2002

In 2001, players were ready to take the legislative field. Armed with their lineup, the teams loaded the bases with several hot-button, controversial and even divisive topics: flow control and interstate waste transport, landfill gas-to-energy (LFGTE) project tax credits, and ergonomics.

Although progress was made on several fronts, the game was called in the ninth inning on Sept. 11. With the war on terrorism still being fought, will any of these issues advance? Waste Age reviews the issues and the predicted outcomes this year.

Flow Control on First

Flow control is no newcomer to the legislative tables. But the closing of Staten Island's Fresh Kills landfill in New York and the new transportation plans of former Fresh Kills' waste (which all is from New York City) refueled congressional interest in limiting the interstate transportation of solid waste and reinstituting flow control.

Rep. James C. Greenwood, R-Pa., introduced the Municipal Solid Waste Flow Control Act of 2001 (H.R. 1214) on March 27, 2001.

The legislation adds a new section (4011) to the Resource Conservation and Recovery Act (RCRA), authorizing states and political subdivisions, under specified conditions, to exercise flow control authority for municipal solid waste and recyclable materials voluntarily relinquished by the owner or generator, and direct this waste and materials to particular facilities.

The bill imposes identification and volume restrictions on the exercise of flow control authority to the classes or categories of materials to which such authority was applicable on the suspension date — March 16, 1994.

This is the date that the Supreme Court, in C&A Carbone v. Town of Clarkstown, ruled flow control unconstitutional because it imposed limitations on using revenues derived by a state or political subdivision from the exercise of flow control authority, and it allowed states to enforce certain legally binding interim contracts. The Carbone decision did allow a state to exercise flow control authority over solid waste if, on or before Jan. 1, 1984, the state:

  • Adopted regulations under a state law that required or directed the transportation, management or disposal of waste from residential, commercial, institutional or industrial sources to specifically identified waste management facilities and applied those regulations to every political subdivision; and

  • Subjected the facilities to state public utilities commission jurisdiction.

  • Pennsylvania is the largest U.S. importer of solid waste. And Rep. Greenwood also introduced a companion bill, the Solid Waste Interstate Transportation Act of 2001 (H.R. 1213).

    H.R. 1213 amends RCRA, prohibiting a solid waste facility from receiving out-of-state municipal solid waste (MSW) for disposal or incineration unless the waste is received because of a new or existing host community agreement, or receives an exemption from the state. The bill:

  • Allows states to establish limits on the amount of out-of-state waste received annually for disposal at each facility;

  • Lets states limit the amount of out-of-state MSW received annually at each facility to the amount received during 1995, if the state has enacted a comprehensive, statewide recycling program;

  • Prohibits state limits from conflicting with permits or host community agreements that set higher (or no) limits;

  • Sets the limit for any facility that began receiving documented out-of-state waste before the law was enacted at the amount received during 1993; and

  • Prohibits discrimination against waste shipments based on origin.

  • The bill also allows states to require that a permit issued for a new facility or an expansion include an annual limitation of not less than 20 percent of the total quantity of out-of-state MSW relative to the total waste received by the facility. And the bill requires uniform percentage limitations for all facilities and does not discriminate against out-of-state waste based on origin.

    In the Senate, the Solid Waste Interstate Transportation and Local Authority Act of 2001 (S. 1194) was introduced by Sen. Arlen Specter, R-Pa.

    Much of the language mirrors H.R. 1213 and 1214 on interstate waste limits, flow control, permit issuance and annual limitations. The Senate bill also imposes cost recovery surcharges, requires owners or operators to annually report the amount of out-of-state waste received during the preceding year to state governors where the facilities are located, and requires the General Accounting Office to report annually on unauthorized disposal incidents.

    Hearings before the Subcommittee on Environment and Hazardous Materials on the House bills were held on August 1, 2001, and primarily concentrated on interstate waste transport.

    It was no accident that Greenwood separated flow control and interstate into two separate bills, says Bill Sells, director of federal programs for the Environmental Industry Associations (EIA), Washington, D.C. “Flow control has been an albatross around interstate's neck, and it was clear that if anyone wanted to move interstate limitations on solid waste, they'd have to keep the two apart.”

    EIA CEO Bruce Parker testified at the hearings, noting that the National Solid Wastes Management Association (NSWMA), Washington, D.C., is not alone in opposing restrictions on interstate waste. “The Solid Waste Association of North America, which represents public sector solid waste managers, also opposes these restrictions,” Parker said. “At its mid-year meeting last summer, SWANA's International Board of Directors voted unanimously to approve a policy statement that supports ‘the free transboundary movement of solid waste.’ Public sector waste managers and private sector waste management companies agree that they can't do their job and protect the public health and the environment while having their hands tied by artificial restrictions based on state lines.”

    Conversely, Rep. Jo Ann Davis, D-Va., testified, saying “This is not a Republican or Democrat issue. It is a Virginia quality of life issue that transcends party lines. Constituents in my district are tired of dirty trash trucks shedding litter along the sides of the roads, and clogging routes that were not built for such large vehicle traffic.”

    However, after the Sept. 11th terrorist attacks, New York City acquired the country's genuine sympathy, and it was unlikely for any legislation that cast the city in a negative light to be passed. “Congress currently is committed to being united and is not looking to take on controversial issues,” EIA's Sells says.

    At press time, however, it appeared that interstate legislation was starting to move. The Senate Environment and Public Works Committee held a hearing on the bill on March 20. As for the House, pressure also may be mounting there to move the legislation, says SWANA spokeswoman Holly Smithson.

    As for the states, Pennsylvania's concern about taking in New York City's waste temporarily evaporated. As evidence, the state initiated, and then extended, emergency response procedures to keep landfill and incineration facilities open for longer hours so that waste from the World Trade Center areas could be disposed of.

    Meanwhile, the idea of rethinking flow control — which had shifted from the courts after the Supreme Court's 1994 Carbone decision — jumped back to the courts. On July 27, 2001, in the case of United Haulers Association Inc. v. Oneida-Herkimer Solid Waste Authority, the U.S. Court of Appeals for the Second Circuit upheld the flow control systems in two New York counties, holding that Oneida and Herkimer counties' flow control rules are exempt from the Commerce Clause because the counties designated a publicly owned waste facility for disposal. The Second Circuit stated its belief that Carbone only applied to privately owned facilities.

    In December, NSWMA filed a friend-of-the court (amicus) brief suggesting the Supreme Court hear the case. In January, the U.S. Supreme Court announced it would not review the case, so a decision now is in the hands of the district court, which is likely to review the issue in late 2002 or early 2003.

    LFGTE Stalled on Second

    Last May, to expand the credit for electricity produced from certain renewable resources to energy produced from landfill gas, Rep. David Camp, R-Mich., introduced H.R. 1863 to amend the Internal Revenue Code of 1986. SWANA's Skinner says the bill was a much-needed step to encourage newer landfill facilities to recover, instead of flare, the methane that results from organic waste decomposition. Since the previous landfill gas tax credit expired in 1998, facilities aren't building recovery systems, he says, because they are not economically feasible.

    Peter Anderson, president of Recycle Worlds Consulting, Madison, Wis., says a landfill gas tax credit amounts to a disposal subsidy at the expense of composting and recycling alternatives. The landfill gas tax credits issue skirts finding long-term solutions to the methane problem because Subtitle D landfill liner systems will ultimately fail, he says.

    But these arguments against an LFGTE tax credit miss the point, according to Skinner. “It's not a question of recycling and composting vs. landfills,” he says. “It's a question of what's the best way to design and operate landfills.”

    EIA's Sells says most tax credit bills, such as Camp's, tend to get rolled into large bills and that the energy packages being considered by Congress include tax credits for energy from landfill gas. He says they are beginning to recognize “that this is a viable energy source,” that has to be made economically viable.”

    Skinner agrees. “When Congress enacts energy legislation, which might be [in 2002], we believe landfill gas tax credits will be included because it is in the House bill that has passed, [and it is in] Senate bills S. 389 and S. 596, as well as in President Bush's energy policy,” he says.

    In his new budget, President Bush set aside $440 million to promote using landfill gas as an energy source. However, while LFGTE credits were included in early versions of energy bills, language including LFGTE credits was dropped from the Senate energy bill. Senator Max Baucus, D-Mont., chairman of the Finance Committee, suggested the omission was due to concern about reduced recycling rates, because the tax credit would make disposal more attractive, Sells reports.

    Furthermore, although the Senate is expected to continue debating the energy bill this spring, the process could become mired in arguments over other issues. “With so many contentious issues embroiled in the energy proposals like drilling in the ANWR [Arctic National Wildlife Refuge] and CAFE [Corporate Average Fuel Economy] standards, a question mark looms,” Smithson says. “If an energy package is allowed for a vote, however, I feel confident this Congress will not exclude LFG utilization projects.”

    Sells agrees. “Since the House Energy Bill [H.R. 4] includes LFG tax incentives, the President's budget includes $440 million for LFGTE tax credits and even Senate Democrats support the idea,” Sells says, “I'd say it will end up in the final energy bill.”

    Ergonomics Ready on Third

    In March 2001, Congress and the Bush administration revoked the ergonomics rule approved by the Occupational Safety and Health Administration (OSHA), Washington, D.C., that was scheduled to take effect the following October. Using the Congressional Review Act, which allows Congress to repeal any regulation issued by a federal agency within 90 days of the date of its publication, both the House and Senate voted in March to repeal regulation. President Bush signed the repeal legislation on March 21, 2001.

    Under the terms of the Congressional Review Act, OSHA may not propose a new rule substantially similar to the one that was repealed.

    Secretary of Labor Elaine Chao indicated that the Bush administration would study other methods to decrease or eliminate workplace ergonomic injuries and initiated a series of public forums on the topic. She also stated that any new regulation would focus on high-risk occupations and would not mandate employees pay workers for their injuries.

    In July, a union picket line greeted Chao as she opened the first public forum to discuss ergonomics injuries and what should be done to prevent them. Union members carried signs that read, “Stop the Pain,” and a giant papier-mâché hand with a bandage labeled, “Ergonomics Forum Band-Aid.”

    In his remarks, AFL-CIO Secretary-Treasurer Richard Trumka said that more than 500,000 workers had suffered ergonomics-related injuries since the legislation was repealed.

    “Secretary Chao, you, President Bush, the Chamber of Commerce, NAM (National Association of Manufacturers), UPS (United Parcel Service of America) and all the others who killed these protections are responsible for these injuries,” Trumka said. “You're responsible for the pain, suffering and devastation to their lives.”

    Anticipating his remarks, Chao said in her opening statement, “It's extremely disappointing to see some groups attacking these forums before they even begin … It's one thing to disagree on policy. But to make political attacks on the process and the people who are involved — before the process even begins — is unreasonable, irresponsible and insincere.

    “My responsibility as Secretary of Labor is to safeguard workers' health and safety,” Chao continued. “We will not fulfill that responsibility if we pursue an approach that raises the same objections and meets the same end as the previous ergonomics standard.”

    The U.S. Bureau of Labor Statistics, Washington, D.C., released a report that stated that musculoskeletal disorders — triggered by repetitive actions, force and awkward postures — accounted for one-third of all job-related injuries and cost the country between $45 billion and $54 billion annually.

    “This finding demonstrates the need for a solid, comprehensive approach to ergonomics,” Chao said in response to the report. “It also points to a need to address injuries, before they occur, through prevention and compliance assistance, rather than just relying on reactionary methods.”

    Sen. John Breaux, D-La., had opposed the initial OSHA ergonomics rule, calling it “confusing,” and charging OSHA with overstepping its rule-making bounds. In a statement on the Senate floor, Breaux said that the initial rule unlawfully extended state workers' compensation laws.

    Breaux introduced legislation (S. 598) designed to replace the rule, and Rep. Christopher John, D-La., introduced a similar bill (H.R. 1241) in the house. Citing a National Academy of Science's January 2001 report, which had similar results to the BLS study, the Senate bill establishes a need for ergonomics legislation “to address a serious workplace safety and health problem,” and requires OSHA to issue a new rule within two years of the bill's enactment.

    Additionally, the bill would prohibit any new rule from expanding existing state workers' compensation laws and would not apply to “non-work-related musculoskeletal disorders that occur outside the workplace or non-work-related musculoskeletal disorders that are aggravated by work.”

    Although the bill has co-sponsors on both sides — Arlen Specter, R-Pa.; Blanche Lincoln, D-Ark.; Ted Stevens, R-Alaska; Mary Landrieu, D-La.; Ben Nelson, D-Neb.; Max Cleland, D-Ga.; and Zell Miller, D-Ga. — it is still awaiting action by the Senate Committee on Health, Education, Labor and Pensions.

    “It is looking more likely that the overturned rule will not be replaced with another regulatory scheme,” says SWANA's Smithson. “Secretary of Labor Elaine Chao has not made a public announcement to that effect, but all indications point to that scenario.”

    Other industry experts predict that Congress was waiting for OSHA's response to the forums, which, after the Sept. 11 attacks, the agency announced it was postponing for a year.

    David Biderman, EIA general counsel, who also testified at the first OSHA ergonomics public forum, believes that even after OSHA presented its guidelines, there likely still will be issues to deal with, and organized labor must decide whether they want to push Congress, given the new bipartisan political environment resulting from the Sept. 11th attacks. “The ergonomics fight was one of the most divisive that Washington, D.C., has ever seen, and divisiveness isn't acceptable [after September 11th],” Biderman says.

    Regardless of what OSHA does, EIA's educational work concerning ergonomics will continue, Biderman adds. “The Environmental Research and Education Foundation's OSHA grant for ergonomics programs and training has been renewed,” he says. Several training sessions took place in 2001, and online training using the Internet and live training sessions for WasteExpo 2002 also are planned.

    States Ready To Bat

    In an effort to regain its status as neither a net importer nor net exporter of garbage, Massachusetts, as part of the state's “Beyond Solid Waste Master Plan,” lifted a five-year moratorium to allow for more landfill capacity.

    Inspired in part by the Massachusetts Department of Environmental Protection's (DEP) predictions of an 8-million-ton garbage shortfall by 2010, the solid waste master plan anticipates that approximately 1.8 million tons of disposal capacity could be added by lifting the moratorium. Modified recycling and reuse plans would address the remaining 78 percent of the shortfall.

    Another reason for lifting the moratorium was to compensate for landfill closures, says Jim Colman, assistant commissioner of waste prevention. Since the DEP instituted its 1990 master plan, 105 unlined landfills have been closed, leaving a total of 19 Massachusetts landfills still in operation.

    Landfill moratorium legislation also was introduced in Pennsylvania last year (H.B. 1436), and passed the state House of Representatives with amendments in November. It now awaits action by the state Senate. Ohio introduced a similar bill (SB 71) that passed the state Senate in January and is now awaiting action before its House. Although the terrorist attacks sapped much of the drive from these movements last year, these bills may slowly be starting to move again.

    As for why the issue is so problematic, Chaz Miller, NSWMA director of state programs, suggests that state legislatures that believe they can recycle their way out of a state need for additional disposal capacity may be trying to avoid constructing new or expanded disposal facilities in their neighborhoods.

    “But what Massachusetts did, at least, is just send a message that the state's waste is going out of state,” he says. “There was an attempt after the ban was lifted to reinstate it, but it failed for that reason.”

    Miller notes that states have shown a renewed interest in banning electronic goods and mercury products from landfills. According to Raymond Communications' “State Recycling Laws Update,” there are more than 20 state bills pending banning cathode ray tubes (CRTs) and twice as many banning mercury products.

    But the problem, Miller says, is that the bills present no substitute for mercury and no clear identification of mercury products. Such bills also are unclear on how to identify and find electronic products prior to landfilling.

    Clearly, the courts, Congress and many state legislatures will have to determine new strategies to bring about a winning season in 2002.

    Contributor John Aquino is an attorney and the former editor-in-chief/publishing director of Waste Age publications.