By Judy Sheahan
December 20, 2006

Rick Sapir, an attorney with Hawkins, Delafield and Wood, gave MWMA members an update of flow control issues that will be heard by the Supreme Court in early 2007. Simply stated, flow control is the ability of a municipality to control the “flow” of garbage to a facility.

In 1994, The United States Supreme Court struck down a flow control ordinance in Clarkstown (NY) that obliged haulers to bring their waste to the Clarkstown Recycling Inc. landfill. The courts upheld the ordinance until the 2nd Court of Appeals, when the U.S. Supreme court ruled the ordinance violated the Commerce clause by ruling that garbage was considered commerce. Most state and local flow control ordinances were then overturned, which paved the way for increased privatization.

The courts recently disagreed on two new cases resulting in their agreement to hear the United Haulers Association Inc. vs. Oneida-Herkimer Solid Waste Management Authority. Previously, in the second circuit court decision, the judge distinguished between publicly-owned and privately-owned facilities. The judge ruled that there can be no discrimination against out of state waste disposal centers. The 6th Circuit Court, however, did not distinguish between publicly and privately owned facilities.

The United States Conference of Mayors and the Municipal Waste Management Association are filing an amicus brief outlining the Conference’s support for flow control.