NSWMA Sues City of Dallas over Flow Control Law

Date: November 18, 2011

Source: News Room

An industry group, as expected, filed suit challenging the City of Dallas' Sept. 28 decision to mandate that all waste generated in the city be taken to the city's McCommas Bluff Landfill in South Dallas. The National Solid Wastes Management Association (NSWMA), Waste Management, Inc., Republic Services, Inc. and others filed a 28-page complaint in U.S. District Court which contends that the "flow-control" ordinance violates existing franchise agreements and imposes a burden on local private haulers and area businesses that far outweighs any public benefit, calling it "an anti-free-enterprise action by the city that is contrary to both state and federal law." NSWMA has called the flow control measure a "ghost tax" that will result in $19 million in added costs to local businesses and consumers who will see rate increases from haulers that are required to drive much further distances and pay higher tipping fees to use the city's landfill rather than any of a dozen area landfills that would likely be cheaper and closer.

"It is clear from the history of this ordinance that its sole purpose is to generate revenue, and not to address any health or safety issues or any other problem with the recycling or disposal of commercial waste in the city," said NSWMA attorney Jim Harris of the law firm Thompson & Knight, in a news release. "Instead of increasing recycling, the ordinance will actually decrease recycling and may even endanger the city's residential recycling program."

In an interview response to the suit, Mary Nix, Dallas director of sanitation, said, "The city has carefully studied the court cases involving flow control laws before enacting its own ordinance. The city believes its ordinance is valid and will defend it vigorously."

The door to flow control was reopened by the US Supreme Court in April, 2007 when it ruled on United Haulers Association v. Oneida-Herkimer Solid Waste Management Authority in upstate New York. There, the court ruled 6-3, amending its earlier 1994 Carbone ruling which outlawed flow control as an imposition on interstate commerce, by making the distinction between a facility that is publicly owned. The court held that a government could show preference for itself if it served a public good.

Other parties to the lawsuit include Bluebonnet Waste Control Inc., IESI TX Corp., Camelt Landfill TX LP, WM Recycle America LLC and Businesses against Flow Control.

See also: "All Industry Eyes on Dallas Vote to Impose Flow Control," (www.wasteinfo.com/news/wbj20111004A.htm).

See also: "Industry Group Urges City of Dallas Not to Use Flow Control," (www.wasteinfo.com/news/wbj20110816F.htm).

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