Decision on Waste Disposal Raises Environmental Eyebrows

Town's attempt to restrict trash flow grounded by high court

TO the United States Supreme Court, garbage is interstate commerce.

Up until a month ago, Clarkstown, N.Y., and hundreds of other towns and cities in 27 states thought garbage was a local resource.

In deciding the case known as ``C. & A. Carbone Inc. v. Clarkstown,'' the high court struck down ``flow control'' laws that had assured local municipalities that they could process or transfer their garbage through local plants.

The court ruled that flow-control laws enabled local governments to ``hoard a local resource'' and had excluded others from access to it in order to engage in the interstate business of trash collection and disposal.

The court said that only the US Congress can regulate interstate commerce.

This marketplace approach could bring down the cost of waste disposal, some experts say, but the decision has implications beyond access to a town's garbage. It raises questions about disposal of waste in the US, and the environmental impact.

``Flow control is one mechanism that allows cities and counties to finance solid-waste facilities,'' says Eddie Coker, executive director of the Huntsville, Ala., Solid Waste Disposal Authority. ``There are many places in the US where private enterprise is not interested in building facilities.''

Many cities and counties, under a state or federal mandate to provide environmentally safe disposal of waste, used industrial bonds to build disposal facilities or incinerators. Many cities' landfills had either been shut down for environmental reasons or filled to capacity.

Huntsville, for instance, has $111 million in outstanding debt for its facility, charging a ``tipping fee'' of $39 a ton to dump there. The facility processes 275,000 tons of waste a year. ``If you guarantee the flow,'' Mr. Coker says, ``and then some of the waste goes to another facility, you are liable for the lost revenue.''

Instead of obligating itself with industrial bonds, Clarkstown contracted with a private company to build and operate a waste-transfer facility. The town guaranteed 120,000 tons of trash each year for five years. In turn the company would charge $81 a ton in ``tipping fees'' to any truck unloading at the facility.

After five years, Clarkstown owns the transfer facility for a fee of $1.

When the town passed an ordinance reguiring that all waste generated in Clarkstown must be delivered to the town facility, a legal issue for the Supreme Court was created.

A local company, C.& A. Carbone, operated a waste facility in Clarkstown, and was caught sending town trash to Indiana. The company challenged the constitutionality of the Clarkstown law.

``Very little has changed at our transfer station because of the decision,'' says Richard Glickel, Clarkstown deputy attorney. ``In fact, we may end up with more business coming in from New Jersey where tipping fees are higher than ours.''

The irony is that the Clarkstown facility separates and processes waste material from many sources, then compacts it and sends it out of state on huge trailers to be disposed of in landfills or incinerators. ``The Supreme Court has already said you can't treat trash coming into your state in a discriminatory fashion,'' Glickel says. ``You can't double the tipping fees. The Clarkstown case was about restricting the outflow of trash, and the court said no to that to.''

For hundreds of towns with bonds to pay off, and for the bond issuers, it's too early to tell what impact the decision will have on tipping fees or trash movement. ``If the Clarkstown facility processes more waste from New Jersey,'' says a New Jersey town council member, ``it means garbage from New Jersey is processed in New York and sent to Indiana for disposal. You've got to ask if there is a better way to do it.''

``We support the Supreme Court decision,'' says Neil Seldman, director of waste utilization at the Institute for Local Self-Reliance in Washington, D.C. ``The bottom line as we see it is that flow control is a tool for government to support uneconomical facilities, and reward inefficiency.''

What the Institute wants is for Congress to tell local and state governments to adopt strategies to ban all out-of-area wastes.