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That Turkey's Smokin'

For thanksgiving, some people like their turkeys oven-baked and others like them deep fried. But one woman likes her turkey cooked with a somewhat trashier method — a garbage can. Beth Hecht of Leavenworth County, Kan., inverted a turkey on a stick, hammered it into the ground, surrounded it with hot coals and covered it with a 10-gallon metal garbage can, with coals placed on top of the can as well. Hecht, who is a 4-H extension agent, claims that this method produces the juiciest turkey she's ever had. Hecht even has blown the lid on her cooking secret by sharing the recipe with area youth groups. “The kids really get into it,” she says.

Source: www.leavenworthtimes.com

O BFI Canada

TORONTO-BASED BFI CANADA INC. is making some serious noise in the solid waste management industry. In November, the company announced it has reached an agreement to purchase the larger IESI Corp., Ft. Worth, Texas, for $1.1 billion (Canadian), or roughly $930 million (U.S.) based on exchange rates at the time of the announcement. The deal is expected to close by the end of January. In mid-December, BFI Canada was offering subscription receipts to raise $340 million (Canadian) in equity for the transaction.

While the companies could not comment on the deal at press time because of Canadian regulations regarding the subscription receipts, BFI Canada CEO and President Keith Carrigan has described the fit between the two companies as “excellent.” “We intend to improve operational efficiencies and profit margins by adopting the best practices of both companies, while pursuing growth both internally and through accretive acquisition opportunities that exist in Canada and the United States,” he said the day the acquisition was announced.

Carrigan will serve as president and CEO of the combined company, and Joseph Quarin, BFI Canada's chief financial officer, will remain in his current role. Mickey Flood will remain president and CEO of IESI, but also will become executive vice president of BFI Canada. Tom Cowee, IESI's senior vice president and chief financial officer, will keep his current titles and will become vice president of integration at the combined company.

BFI Canada is publicly traded on the Toronto Stock Exchange as BFI Canada Income Fund and has about 290,000 residential customers and 43,000 commercial and industrial customers. The company's accounts are in the provinces of British Columbia, Alberta, Manitoba, Ontario and Quebec. In 2003, the company had revenues of $167.6 million (Canadian), or roughly $125 million (U.S.)

IESI serves 560,000 residential customers and 56,000 commercial and industrial customers in the United States. The privately held firm is organized into a South Region, which oversees accounts in Arkansas, Louisiana, Missouri, Oklahoma and Texas; and a North Region, which contains accounts in Maryland, New York, New Jersey and Pennsylvania. IESI is ranked 16th in the most recent Waste Age 100 listing of private solid waste management companies in the United States. In 2003, the company had revenues of $256 million.

Flood founded IESI in 1995 when he purchased a two-truck solid waste operation. BFI Canada was created in 2000 after Scottsdale, Ariz.-based Allied Waste Industries Inc. bought Browning-Ferris Industries Ltd. (BFI) and sold its Canadian operations.

EPA Proposes Rule for Small Waste Incinerators

The U.S. Environmental Protection Agency (EPA), Washington, D.C., has proposed new rules to reduce the emission of air pollutants from “other solid waste incinerators” (OSWI). OSWI include institutional waste incinerators — located at sites such as schools — and very small municipal incinerators, which burn less than 35 tons per day of municipal solid waste. The proposed rules were published in the Federal Register on Dec. 9. Comments on the proposal can be submitted for 60 days following publication. To view the rules in the Register, visit www.gpoaccess.gov/fr/ and enter “other solid waste incinerators” in the 2004 search engine. Then, click on “Standards of Performance for New Stationary Sources and Emission.”

No Harm, No Foul

SUCCESSFUL LAWSUITS AREN'T JUST about how badly the defendant supposedly behaved. A winning case depends on what the plaintiff has going for it, as two waste companies and their trade group learned when a federal appeals court tossed out their claims.

Several Mississippi cities and counties developed a master plan for disposing of their region's solid waste. To implement the plan, they formed the Pine Belt Regional Solid Waste Management Authority, which quickly issued a request for proposals (RFP) for a landfill and transfer stations. The RFP contained an estimated volume of disposable waste generated in the region and a commitment by the authority to require its communities, if necessary, to enact ordinances requiring all locally generated waste to be transported to the authority's facilities.

Five firms, including the local affiliates of BFI (owned by Scottsdale, Ariz.-based Allied Waste Industries) and Houston-based Waste Management (WM), submitted bids. The authority issued revenue bonds to finance the construction of the facilities and signed an operating contract with low bidder Enviro Inc., a company based in the region.

From the outset, the landfill and transfer stations handled much less solid waste than the potential disposable tonnage in the region. The corresponding shortfall in tipping fee revenue made it difficult for the authority to meet its debt payments. To improve its financial position, the authority directed its member communities in 2002 to adopt identical flow control ordinances applicable within their geographical areas.

No sooner were the measures on the books, than the National Solid Wastes Management Association (NSWMA) and the BFI and WM affiliates filed suit against the authority and its member cities and counties. They alleged that the flow control ordinances unlawfully discriminated against and otherwise burdened interstate commerce. A federal judge declared the ordinances invalid on both grounds and blocked their enforcement.

On appeal, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit dismissed the discrimination claim and ruled that the ordinances did not excessively burden interstate commerce.

As the court saw it, the plaintiffs' injury did not fall within the zone of interests protected by the Commerce Clause with respect to ordinances alleged to discriminate against out-of-state economic interests. The court noted that BFI and WM hauled the trash they collected to facilities outside the region. No waste was shipped outside the state, and the plaintiffs had no plans to do so.

“In sum, plaintiffs' injury is not related to any out-of-state characteristic of their business,” the appellate panel concluded. The plaintiffs were thus deemed ineligible to challenge the discriminatory nature of the ordinances.

As for the alleged burden on interstate commerce, the appeals court first examined the authority's local purpose — the economic viability of its landfill — and found it legitimate. Next, the court found that flow control created no greater hindrance on the plaintiffs' interstate business than on their intrastate affairs. Unable to demonstrate a disparate impact on interstate commerce, the plaintiffs' alternative claim was rejected.

[National Solid Wastes Management Association v. Pine Belt Regional Solid Waste Management Authority, 389 F.3d 491 (5th Cir. 2004)]

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: shanoff@knopf-brown.com.

The columnist is a Rockville, Md., attorney and serves as general counsel of the Solid Waste Association of North America.

MAKING IT IN THE USA

THE SOLID WASTE INDUSTRY, Paul Jenks likes to say, is “more evolutionary than revolutionary.” As president and CEO of Onyx Waste Services (OWS) and an industry veteran of 23 years, Jenks should know. Change occurs slowly in this industry, he says, whether it relates to regulations, waste streams or technology. But as the industry evolves in the United States, Onyx Waste Services is determined to stay ahead of the curve. And there's no reason the company should not be able to. After all, OWS can draw on its sister companies and international expertise, when necessary, to grow its operations.

The Milwaukee-based OWS is just one of four sister companies that make up Onyx North America, along with Onyx Montenay Power (its waste-to-energy division), Onyx Environmental Services (its hazardous waste division) and Onyx Industrial Services (its industrial cleaning and maintenance division). Founded in 2000, Sarasota, Fla.-based Onyx North America (ONA) is itself the American arm of Onyx, the international waste company owned by France-based Veolia Environnement. Despite its international backing, however, Onyx Waste Services maintains that it is a homegrown operation. The company was formed out of Onyx's acquisition of Superior Services, which had a longtime waste presence in the Midwest.

“We feel American,” says Michel Gourvennec, president and CEO of Onyx North America. Gourvennec held various international positions with Veolia before assuming his ONA role. “We have a payroll of 9,000 in Canada and the United States. We have focused on being an American company, and we are learning from the States.”

Today, Onyx Waste Services is a fully integrated solid waste company that provides collection, transfer, recycling and disposal services to more than 1.3 million residential, commercial and industrial customers throughout North America. Sister company New York City-based Onyx Montenay Power (OMP) is leading what some are viewing as a resurgence in the waste-to-energy (WTE) sector. Together, in a competitive market dominated by well-known waste giants, Onyx North America is working to distinguish itself with its integrated approach, strong environmental ethic, and commitment to research and innovation.

Global Values

Onyx North America is aware that, with its international brand name, the company might have a difficult time edging into the increasingly consolidated and competitive North American waste industry. But having a global view on the American waste market also can be advantageous.

“We are very modest, because this country has the two biggest players, Waste Management and Allied Waste, and they are very strong in their market,” Gourvennec says. “We want to be one of the key players [here]. But it's better to be present worldwide because you have the advantage of being well-aware of revolutions in technology. We want to be successful on a worldwide level.”

To brand itself in America, Onyx North America focuses on its ability to provide customers with wholly integrated waste services. It maintains that it is the only company in North America that provides solid waste collection, recycling and disposal; hazardous waste; industrial cleaning; and waste-to-energy services. Onyx also has a company-wide commitment to research, development and technology exchange.

“Onyx has a coordinating research center in France that monitors and invests money to coordinate programs with local universities to identify and catalog emerging technologies, such as incineration and bioreactors,” Jenks says. “This gives us an advantage in that when we need a technology that we don't see domestically, we can turn to them.” Recently, a team from the United States and another from France helped to initiate a bioreactor project in Australia.

Executives who came from Superior view being a fully integrated company with international backing a welcome change. “One of the big benefits is that we can bid on any project that's out there,” says Todd Watermolen, vice president of engineering and compliance for OWS. “In the early stages of Superior Services, our balance sheet may have restricted us from pursuing major contracts in the United States. No solid waste projects are too big for the company now.”

Yet Onyx views its corporate stature not as an excuse to sidestep environmental stewardship — but as more reason to embrace it. “The company's mandate is environmental sustainability, and that's not negotiable. That comes from the parent company,” Jenks says. “The Europeans, in almost every case, have preceded the United States. We have exposure to that, and we can also draw down on that technology when we find an opportunity to use it.”

Onyx's international roots give it a unique perspective on the American recycling market as well. European governments have been more involved in regulating recycling than the United States, where land still is widely available and landfilling is relatively affordable. Yet Onyx believes that as space becomes scarcer and transportation and disposal costs rise, Americans may have to find creative ways to boost recycling, just as the Europeans have. Currently, OWS operates 14 recycling facilities.

“I don't think recycling will ever die,” Jenks says. “It will go through phases where parts of it are favored and parts of it are not. Every American buys, consumes and disposes of a certain amount of material. We can't ignore that as recycling grows.”

Leading-Edge Landfills

Onyx Waste Services is now the fourth-largest waste management company in North America, and landfills are a cornerstone of its operations. The company owns or operates 21 landfills, primarily located in the Midwest, Pennsylvania and the Southeast. Remarkably, the company already has incorporated bioreactor technology at nearly all of its landfills at a time when other waste companies have only begun pilot projects. Bioreactors operate by introducing air and liquid back into landfills, which accelerates the biodegradation process, conserves airspace and boosts landfill gas production. “It allows us to get commercially available volumes of landfill gas,” Jenks says.

Onyx started experimenting with bioreactor research in the mid-1990s, despite the fact that many state regulators (not to mention recycling and zero-waste advocates) were reluctant to embrace the practice. Today, bioreactors are increasingly accepted, although skeptics remain. “It's a long-term project that's going to take five to 15 years before we see all the benefits from leachate toxicity [reduction], landfill gas, gains in airspace and post-closure care,” Watermolen says. “We're continuing to gather data, and it's very positive.”

OWS is positioning itself as an expert in bioreactor research. Among its most visible findings, the company has contended that bioreactors reduce leachate toxicity by 80 or 90 percent. “The landfill is anaerobic, and microbes are basically digesting and consuming the organic acids that are in the leachate,” Watermolen says. “Those microbes are enhanced so that they can absorb the contaminants and break them down. Bioreactor technology [provides] a positive benefit and sheds a greener light on landfills.”

Bioreactors, Watermolen adds, can boost landfill gas generation by a factor of three to 10 times. “There is a lot of emphasis right now on using all the landfill gas that's being generated as green energy,” Watermolen says. “The new tax credit law that just went into effect may help with that, but it's very limited in scope. It would be nice if those tax credits were extended. That's a push that we have within the company.”

One such project is under way at Onyx's Seven Mile Creek Landfill in Eau Claire, Wis. There, a new 3-megawatt gas-to-energy facility is producing electricity for Dairyland Power in La Cross, Wis., to supply to its residential and commercial customers. The facility produces enough energy to power more than 2,600 households. In Horicon, Wis., the company installed eight 30-kilowatt microturbines at its Glacier Ridge Landfill, providing energy for about 100 households. Additionally, the company helped to restore native prairie and wetlands near the facility, improving the natural water flow in the area and reducing invasive species.

Energy Boosts

Complementing Onyx Waste's gas-to-energy efforts, Onyx also has cornered the market on WTE, long thought to be a moribund sector of the waste industry. Currently, Onyx Montenay Power operates 10 WTE facilities with a capacity of more than 11,000 tons per day. The facilities convert more than 3.8 million tons of waste to energy each year. In addition to becoming the first WTE company in the United States to earn ISO 14001 certification, which verifies environmental management systems, seven of Onyx's 10 WTE facilities have received the certification.

“ISO certification shows that instead of just doing the minimum to meet your permit requirements, you have a system that shows there's a continuing process to upgrade the environmental management of your facilities,” says Steve Passage, president and CEO of OMP. In addition, five OMP facilities have been accepted into the federal Occupational Safety and Health Administration's Voluntary Protection Program, which certifies those companies that have volunteered for and successfully passed OSHA safety inspections. Currently, only about 1,000 workplaces, out of about 6 million, have been accepted into the program.

Such efforts are important, Passage says, to help position Montenay Power for the growth he expects to see in the WTE sector in the coming years. Because of a range of factors — such as the low costs of landfill disposal, an increase in recycling and the widespread image of WTE facilities as polluters — the industry has stagnated in the past decade.

“That period of stagnation is coming to an end, both in the short term and in the long term,” Passage predicts. “The biggest change is that the economic competitiveness of WTE is going to change when the current open contracts end. The tipping fee for a WTE plant that is now $80 a ton could drop to $30 per ton or $40 a ton, when these contracts expire. WTE will become the cheaper alternative.”

As American waste generation continues to rise and recycling rates remain flat, more communities may turn to waste-to-energy as well, Passage contends. WTE is a viable part of any integrated waste management system, he adds, pointing out that recycling tends to benefit in these communities. “Most of the things that are recycled aren't suitable for WTE,” Passage says. “Generally the history of WTE shows that, in communities that do it, the recycling rate is higher than in communities that don't.”

Once again, Montenay is depending on Onyx's research divisions to keep it abreast of emerging WTE technologies. As with other aspects of the waste industry, WTE technology has changed little from the “mass burn” technique that has been used for more than a century. Yet new WTE technologies are being tested in Europe and Asia that could increase the efficiency of American facilities in the next 10 years, Passage predicts.

In the meantime, OMP is focusing on operating its current facilities and acquiring other existing operations as feasible, which eliminates most of the cost of designing and building new facilities. In September, the company was awarded a 10-year contract extension to prolong its management of the Miami-Dade County Resources Recovery Facility — which processes 1.2 million tons of trash and produces up to 76 megawatts of energy each year — until the year 2023.

Smart Growth

OMP's cautious approach to growth is typical of all of Onyx North America's operations. “We've been very careful in our external growth,” Paul Jenks says. “We tend to grow in markets where we already have disposal facilities.”

Jenks adds that having a broad customer base has helped the company to weather the economic downtown the past couple years. “We've had the good fortune to have balanced the solid waste business lines between the industrial, residential and commercial sectors,” he says. “The residential sector is the most stable in terms of the season and economy. The industrial sector turns down early in a recession but comes back early, while the commercial sector turns down later and comes back later. What we're seeing, now that the economy is recovering, is a very competitive market among service-based customers, moving away from large industrial customers.”

Onyx also is focused on vertical integration in most markets. “The key to our industry, like any industry, is to have a sales funnel that's full,” Jenks concludes. “We want to grow all our sectors. What's important is to keep them in balance.”

Kim A. O'Connell is a Waste Age contributing editor based in Arlington, Va.

ONYX WASTE SERVICES AT-A-GLANCE

Services and Service Area: Onyx Waste Services Inc. (OWS) provides collection, transfer, transportation, disposal and recycling services to generators of solid and special waste.

Operations: OWS has operating locations in 11 states including Alabama, Florida, Georgia, Illinois, Indiana, Michigan, Minnesota, Missouri, New Jersey, Pennsylvania and Wisconsin. The company operates 62 solid waste collection operations and owns 21 landfills, 11 recycling facilities and 31 transfer stations. OWS also has an equity interest in a solid waste collection operation and landfill on Grand Bahama Island and manages the solid waste operations of affiliated companies in Quebec, Canada, which include 3 landfills, 3 recycling facilities and 2 transfer stations.

No. of Customers: 1.24 million residential, 135,000 commercial and industrial.

No. of Employees: 3,513

Stock: OWS is traded under parent company Veolia Environnement (NYSE: VE).

Customer Service: Onyx Waste Services recently launched a new customer-focused Web site at www.onyxws.com.

INTEGRATED ENVIRONMENTAL ETHIC

Processing and disposing of municipal solid waste is just one facet of Onyx North America's (ONA) integrated approach to environmental services. In addition to Onyx Waste Services and Onyx Montenay Power, ONA delivers integrated waste management, maintenance and cleaning solutions and innovative technologies through Onyx Industrial Services (OIS) and Onyx Environmental Services (OES). Together, the organization's operations benefit from the more than 150 years of environmental experience that its corporate parent, France-based Veolia Environnement, brings to the table.

Onyx Environmental Services provides solutions to industrial and municipal customers who need hazardous and special waste disposal. For example, OES's award-winning Electronics Recycling Division supplies a government-compliant recycling system for large and small quantities of universal waste, including both lighting and electronic waste. In conjunction with America Recycles Day, OES worked with Staples office supply stores to collect discarded computer equipment and ensure proper recycling. To responsibly recycle and recover the thermal value found in high-Btu hazardous liquid wastes, OES has developed fuel-blending techniques.

OES also offers complete municipal household hazardous waste services, from organized collections to final transportation and recycling. Additionally, the company provides a variety of specialty services for hazardous waste treatment. For instance, OES provides stabilization solutions for metal-coded hazardous waste solids and solidification of non-hazardous liquids and solids. Cost-efficient hazardous waste incineration options provide customers with complete destruction services, from collection to final ash disposal.

OES also handles the identification, classification, transportation and treatment of low-level radioactive waste. The company functions in a traditional fashion by classifying, packing and disposing of lab chemicals, but it also can act as a customer's employee by performing outsourced tasks. Finally, OES's emergency response teams afford customers spill response, as well as contingency planning, site cleanup and site closure.

For its part, Onyx Industrial Services offers industrial and municipal facilities with comprehensive maintenance and cleaning services. The company's chemical cleaning services for industrial process equipment allow customers to customize the chemicals, solvent systems and equipment used throughout the cleaning procedure to maximize safety and cost-effectiveness. Refineries can use OIS's services, including hydroblasting, which removes fouling and deposits; vacuuming materials of all viscosities; sewer system management; solids separation; and manned hydraulic pumps for dredging.

OIS serves customers in a variety of industries. Customers in the mining and automotive industries may opt for heat exchanger maintenance and employ OIS solutions for waste stream management, while those in the automotive, pharmaceutical and construction industries may use the company's environmental consulting and emergency response services. Together, Onyx North America's four sister companies complement each other to provide clients with waste management options and fully integrated services.

Jingle Bells, Our Trash Smells

The holiday season normally brings on a rash of festive decorations, but this year, Beirut's halls were decked with trash. Members of Greenpeace erected a 6-meter-tall “tree” of cans, computer waste and plastic in Martyr's Square, where a real Christmas tree normally is placed each December. The group constructed the tree in protest of Lebanon's growing problem of overflowing landfills and low recycling rate. The environmental group wants the nation to adopt a zero-waste strategy, where all of the nation's trash is recycled or composted. The Lebanese government says it is drafting a law to do just that. So perhaps next year, after the new law goes into effect, the government should think about recycling some of its trash into next year's holiday decorations … you know, for old time's sake.

Source: Reuters.com

Flying Solo

HARLAN WORKED FOR A WASTE HAULING FIRM operating a front-end loader. During a two-week period, several customers reported unpleasant encounters with him to his supervisor, Metcalfe. The supervisor then left a note on Harlan's locker, asking him to stay after his shift ended for a meeting. Metcalfe planned to confront Harlan with the complaints and get his side of the story.

Fearing that he would be chewed out, disciplined or, worse, let go, Harlan ignored the request and went straight home after work. From there, he called his boss and said that he did not want to meet until he could arrange for a co-worker to be present during the encounter. Metcalfe brushed aside the suggestion and ordered Harlan to return to the company office immediately, or consider himself out of a job. Harlan said he'd show up if a co-worker were present, and Metcalfe fired him. Harlan was told he could return the following day only to clean out his locker and pick up his final paycheck. If Harlan did not show up, Metcalfe warned, the contents of his locker would be thrown away, and his paycheck would be mailed to him.

The waste company has no unionized employees, and no one has a written employment agreement. Harlan, the other drivers, helpers, supervisors and managers are all at-will employees. They can be fired for almost any reason — or for no reason — and they have no recourse, except if their dismissal were, for example, motivated by racial considerations.

The issue of whether or not someone in Harlan's shoes has a right to bring a co-worker to a meeting like the one requested by Metcalfe has followed a twisting path.

Thirty years ago, the U.S. Supreme Court upheld the National Labor Relations Board's (NLRB) interpretation of the National Labor Relations Act that an employee had the right to union representation at a prediscliplinary interview. [NLRB v. J. Weingarten Inc., 420 U.S. 251 (1973)] Section 7 of the Act provides that employees have the right to engage in “concerted activities for the purposes of … mutual aid or protection.”

Since that time, however, the NLRB has flip-flopped on whether employees in non-union settings may rely on the Weingarten decision. In 1982, the board first extended the ruling to non-union employees. Just three years later, it reversed itself. Fifteen years after that decision, the NLRB reverted to its 1982 position and said that non-union employees had a right to have a co-worker present during an interview with their employer. [Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (2000)] That position gained further solidity when a federal appeals court said the board's interpretation of Section 7 was reasonable. [Epilepsy Foundation of Northeast Ohio v. NLRB, 268 F.3d 1095 (D.C. 2001)]

However, the issue took another twist last year when, by a 3-2 vote, the NLRB gelded its own Epilepsy Foundation decision. The board held that although unrepresented non-union workers may ask to have a co-worker present during an investigatory interview and cannot be disciplined for making the request, an employer can safely ignore the request without violating the federal labor law. [IBM Corp., 341 NLRB No. 148 (June 9, 2004)]

Unfortunately for Harlan — and other non-union at-will waste industry employees who may find themselves in a similar situation — employers can turn a deaf ear to pleas to have a witness present during grillings by the boss.