Flow Control of Solid Waste: Issues and Options

James E. McCarthy
Specialist in Environmental Policy
Environment and Natural Resources Policy Division

Flow control laws allow State and local governments to designate facilities to which solid waste generated within their jurisdictions must be taken. Such laws have been overturned in recent years by several Federal courts, including a May 16, 1994, decision by the U.S. Supreme Court.

Prior to these decisions, flow control had been widely used. In general, its purpose was to guarantee that projected amounts of waste (and revenues) would be received at waste management facilities funded by revenue bonds. Since 1980, more than $24 billion in municipal bonds have been issued to pay for the construction of solid waste facilities. In the majority of cases, investors were assured that the projected amounts of waste would be delivered to the facility because flow control laws were in place.

As a result of last year's Supreme Court decision, waste haulers have begun ignoring local flow controls in many areas of the country, and bond issues supporting at least eight publicly owned waste management systems have been downgraded. To reverse these developments, there is increasing pressure from local governments for Congress to use its authority under the Constitution's Commerce Clause to enact legislation conferring flow control authority on State and local governments.

Proponents of flow control, who include most State and local government officials, argue that it is an essential tool, without which such governments will find it more difficult to fulfill their responsibilities to plan for the management of municipal solid waste. Flow control is necessary, they argue, to ensure the financing of existing and planned facilities, to ensure that waste is delivered to environmentally sound facilities, and to provide revenues for other aspects of local solid waste management, including recycling, household hazardous waste management, and cleanup of old disposal sites.

Opponents of flow control, who include many firms in the waste management industry, view it as limiting competition, creating inefficient local monopolies, increasing costs, and interfering with the free flow of inter- and intrastate commerce.

In the 104th Congress, the Senate passed flow control legislation (Title II of S. 534) on May 16, 1995, and the House appears likely to act on the issue in the 1st session as well. In both chambers, there appears to be a consensus that flow control authority should be granted to State and local governments. The principal issue under negotiation has been the extent to which flow control should be allowed for new facilities, in addition to those designated before the Supreme Court decision. Other issues are what wastes to include, what conditions to apply to the grant of authority, and how to accommodate the interests of specific States.

INTRODUCTION

This report presents information concerning flow control, the practice of allowing State and local governments to designate where solid waste generated within their jurisdictions must be taken for processing, treatment, or disposal. Flow control is a tool widely used by local governments in arranging for the management of solid wastes. Since 1989, however, it has been successfully challenged in six Federal courts, including the U.S. Supreme Court, which, on May 16, 1994, ruled against a local flow control ordinance imposed by Clarkstown, New York. As a result, Congress has been asked by a number of interested parties to enact legislation clarifying the authority of State and local governments in this regard.

As of mid May, when this report was written, both the House and Senate had begun work on flow control legislation, with the Senate's progress more pronounced. On March 1, 1995, the Senate Environment and Public Works Committee's Subcommittee on Superfund, Waste Control and Risk Assessment held a hearing on flow control and interstate shipment of waste. The subcommittee approved Senator Smith's S.534, amended, March 15, and the full committee ordered the bill reported, with further amendments, March 23. The report (S. Rpt. 104-52) was filed April 18. Floor consideration began May 10; The bill passed the Senate, with amendments, May 16. The House is expected to act on legislation during the 1st session as well. The Subcommittee on Commerce, Trade and Hazardous Materials of the House Commerce Committee held a hearing March 23, and had scheduled markup for May 18.

The report is organized into three sections. The first presents background, including a discussion of the prevalence of flow control, the reasons for its emergence as a legislative issue, and the positions of key interest groups. The second section discusses the arguments for and against allowing its use. The final section discusses issues and options for Federal legislation.

BACKGROUND

While there are no comprehensive data showing how many local governments rely on flow control in managing solid waste, available data suggest that the practice is widespread. According to information compiled by U.S. EPA, flow control is authorized by 39 States, the District of Columbia, and the Virgin Islands. (1)

Thirty-five of the States, the District of Columbia, and the Virgin Islands explicitly authorize flow control by statute. In the other four States, flow control is authorized indirectly, through home rule authority or the solid waste management planning process. In addition, localities in California, Idaho, Kentucky, and Utah exercise the equivalent of flow control through the authority to award franchises for solid waste management.

The fact that a State authorizes flow control does not necessarily mean that all or even a majority of the local governments within the State exercise the authority, as emphasized by a recent EPA report:

Flow control can be used to direct waste to any type of solid waste facility, but many of the beneficiaries appear to be waste-to-energy facilities. In the decade of the 1980s, the amount of waste handled by such facilities increased more than ten-fold, from 2.7 million tons in 1980 to 29.7 million tons (15.2 percent of all MSW generated) in 1990. A key factor in this growth was the use of flow control ordinances to ensure that the facilities would operate at projected levels. Ogden Projects, which operates 24 waste-to-energy facilities and has 6 more under development, states that all but 2 of these projects are supported by flow control ordinances. (3) EPA, in its recent report to Congress, concluded that "flow controls have played a significant role in the waste-to-energy market segment, with at least 58 percent of the waste throughput supported by flow control." (4)

In the late 1970s, EPA encouraged regional, State, and local officials planning such facilities to "acquire waste supply contracts." (5) While this did not necessarily require flow control, bond counsel and financial advisers recommended its use throughout the 1980s as a means of assuring a supply of waste for planned facilities. A guaranteed supply of waste would, in turn, help assure prospective bondholders that the facilities would generate sufficient revenue to repay principal and interest on the amounts borrowed.

Since 1980, more than $24 billion in municipal bonds have been issued to pay for the construction of solid waste facilities, (6) most of them waste-to-energy facilities. In the majority of cases, investors were assured that the projected amounts of waste would be delivered (and fees paid) to the facility because flow control ordinances were in place directing that the waste be delivered there.

If waste-to-energy is the main beneficiary of flow control, it is not the only one. As local governments have expanded waste management services in recent years (often in response to State mandates), flow control has proven useful in guaranteeing revenue for other aspects of local waste management programs as well, including such popular, but often unprofitable propositions as curbside recycling, composting, household hazardous waste collection, and the proper closure and cleanup of old disposal facilities.

Hennepin County, Minnesota (which includes the city of Minneapolis) provides a good example. Until late 1993, the county directed all solid waste collected by private haulers to a waste-to-energy facility at which it charged a tipping fee of $95.00 per ton. It used $85.00 of this revenue to pay for the capital, operating, and maintenance costs of its waste-to-energy facility. The remainder supported curbside recycling and an ambitious program of household hazardous waste collection and disposal. (8)

Cities without flow control, such as New York, have also attempted to raise revenue by increasing tip fees: New York has had among the highest tipping fees in the country, $40.00 per cubic yard, which at normal waste compaction, translates to about $120.00 per ton. Lacking flow control, however, the high tipping fee does not raise revenue for New York: it tends to drive away business. Almost all privately collected waste from New York City (about 2.5 million tons per year) is exported to other States for disposal, because the haulers are free to find cheaper disposal sites. (9) As a result, New York's recycling program, unlike that in Minneapolis, has been strapped for cash.

Flow control has emerged as a legislative issue because of several recent Federal court decisions. Reversing an earlier trend in which three courts upheld flow control, since 1989 Federal courts have ruled that flow control laws in Alabama, Minnesota, New Jersey, New York, North Carolina, and Rhode Island violate the interstate commerce clause (Article I, Section 8) of the Constitution. On May 16, 1994, the U.S. Supreme Court agreed with this analysis, overturning a flow control ordinance in the case of C & A Carbone v. Town of Clarkstown. (10)

The issue in these court cases has been whether flow control offends the "dormant" commerce clause, an implied corollary of the commerce clause that bars States (and their political subdivisions) from placing undue burdens on interstate commerce. That same commerce clause, however, allows Congress to shield such State and local burdens from dormant commerce clause challenge. Thus, if Congress authorizes the States or local governments to exercise flow control, the commerce clause impediment would be overcome.

Such an authorization is the goal of several groups, including the representatives of cities, counties, local waste management officials, and States. Local and State governments are almost unanimously in favor of flow control. In the Carbone case, amicus briefs were filed with the Supreme Court on behalf of the local government exercising flow control by the:

as well as by 23 States, the Commonwealth of Puerto Rico, and 33 cities, counties, or local solid waste management authorities. Of the State and local governments that filed amicus briefs, only three small villages, with a combined population of about 30,000, opposed flow control.

Many of the same national organizations, including the Conference of Mayors, National League of Cities, National Association of Counties, and Solid Waste Association of North America (which represents municipal solid waste management officials) testified in favor of legislation to authorize flow control at a House subcommittee hearing on November 5, 1993. (11) A Senate hearing, on July 13, 1994, also heard from local and State government representatives in support of legislation Flow control legislation is also supported by firms in the waste-to-energy industry and by investment bankers involved in financing solid waste facilities.

Waste haulers and landfill owners, most large waste management firms, and the trade association representing the private waste management industry (the National Solid Wastes Management Association), on the other hand, see flow control as stifling their industry's ability to compete for waste management services. As a result, they generally oppose flow control. (13)

Recycling industries (including the Institute of Scrap Recycling Industries and the paper industry) also are generally opposed to flow control, although their main concern is that the recyclable commodities on which their industries depend be excluded from flow control authority.

In addition, an unusual combination of business, environmental, and public interest groups have been cited in opposition to flow control in the course of debate. Included in this group are the National Association of Manufacturers, the U.S. Chamber of Commerce, the National Federation of Independent Businesses, the American Trucking Association, the National Taxpayers Union, the Competitive Enterprise Institute, the Sierra Club, Clean Water Action, the New York Public Interest Research Group, and others. (14) Their concerns are as diverse as devotion to free enterprise, the cost of waste disposal, and opposition to the types of facilities (notably, incinerators) often supported by flow control. While opposed to flow control, these groups generally have not played a central role in the debate.

The Administration and the Environmental Protection Agency have not taken a position on flow control. In its FY 1993 appropriations bill, EPA was directed to study the issue and report to Congress by September 1994. The report was to "review comparatively States with and without such authority and describe the impact of such legislation on (1) the protection of human health and environment, (2) the development of State and local waste management capacity, and (3) the achievement of State and local goals for source reduction, reuse and recycling." (15) The Agency conducted three public hearings on the issue and received comments from about 180 organizations and individuals. It reviewed State laws and conducted an analysis of the comporting, recycling, combustion, and landfill markets to assess the role of flow control. It concluded, in a March 1995 report, that:

ARGUMENTS FOR AND AGAINST FLOW CONTROL

Proponents of flow control rely on a number of arguments. First, they argue, flow control assures that revenues will be available to pay off revenue bonds used to finance public facilities. Without flow control, new facilities would be at the mercy of the market, less able to project revenues, and thus, less likely to attract the capital necessary to finance construction.

Existing facilities might be particularly affected, with harmful impacts on cities and local taxpayers, proponents contend. If less waste is delivered to a facility because private haulers may choose to take their waste to any disposal site, the previously designated facility will lose money that has to be made up elsewhere. Where that money would be made up would depend on the contractual arrangements between the local government and the facility operator, but in many cases, the additional revenues would come from local taxpayers.

The extent to which this has happened in the wake of the Carbone decision is difficult to determine, but it is clear that there have been some financial effects of the decision. In the year since the case was decided, at least eight of the approximately 140 bond issues supporting solid waste management facilities have been downgraded. (17) In most of these eight cases, the bonds are revenue bonds, where facility-generated revenue provides the only assurance of repayment. The absence of flow control has led waste to flow elsewhere, to lower-cost facilities, or has made it doubtful that the facilities' owners can maintain the level of tipping fees that had guaranteed payment.

About 130 other bond issues have not been affected, because they are general obligation bonds, or have other forms of guarantee. Problems may have been experienced by these facilities as a result of Carbone, but they have not shown up in the facilities' credit ratings. These cases may actually be of greater concern to the local governments involved, however, since, in many cases, the government's credit, not that of a solid waste authority or facility, is at stake. In short, in a period such as the present, when disposal fees are generally falling because of excess capacity, the absence of flow controls may continue to cause financial distress for local governments and waste management authorities.

A second argument made by proponents is that flow control permits local governments to direct waste to environmentally sound facilities. Without it, waste can be expected to flow to the least expensive site, which in many cases, they argue, could be a facility that is inexpensive because it does not assure adequate protection of the environment. As landfill standards tighten, this is becoming less of an issue, but flow control does permit waste to be directed to the type of facility the community wants. This may be a recycling or compost facility in some cases, a waste-to-energy facility in others, or even a landfill. Local governments have a duty to protect the health and welfare of their citizens, according to this line of reasoning. By designating the disposal facility, they can assure that this duty is fulfilled.

Third, flow control gives local governments greater control over the waste generated within their borders, which is crucial if they are required under State law to meet goals for recycling and reduction of solid waste or the provision of capacity to manage the solid waste generated within their service area. On the most basic level, it allows measurement and analysis of the waste stream, so that local governments can determine whether they are in compliance with waste reduction or management goals. In some States, failure to meet such goals carries financial penalties, which the local government might have to pay.

Fourth, flow control assures that revenues can be raised for uneconomic but potentially desirable waste management activities such as recycling, composting, and household hazardous waste collection, and provides revenues for other aspects of local solid waste management programs, such as cleanup of closed facilities, solid waste management planning, and general overhead. These expenses amount to $14 per ton at the typical Ogden waste-to-energy project, according to testimony. (18)

Fifth, at a time when unfunded Federal mandates, including those for environmental quality programs, have become an issue, Federal intervention on the sources of local funding of solid waste programs -- whether from the courts or Congress -- may be particularly unwelcome. As testimony by the National Association of Counties expressed it:

Those arguing against flow control state that other means can be found to finance solid waste management facilities and programs. (20) Under flow control, they argue, such costs are higher than necessary. A study conducted by National Economic Research Associates for Browning Ferris Industries estimates that flow control increases disposal costs an average of $14 per ton or 40 percent, when compared to disposal fees at facilities without it. (21) Flow control limits competition, creates inefficient local monopolies, and interferes with the free flow of inter- and intrastate commerce. In waste management, as in other fields, competition provides better service at lower cost, they argue, stimulating innovation and providing continued incentives to reduce operating costs. (22)

The same can be said of environmental protection: there are other ways (better ways, according to opponents) to protect the environment than to rely on flow control. If, in the absence of flow control, waste would gravitate to facilities that inadequately protect the environment, the answer is not designating where waste should be disposed, they argue; it is stronger regulations and better enforcement, to upgrade or close the substandard facilities.

Critics make an analogy to housing or medical care. In these cases, too, local governments have the burden of providing for the health and welfare of their constituents, but no one argues that they should meet this burden by building all homes or by directing all patients to public hospitals. (23) Rather, they enforce standards and regulations that affect the housing and health care industries.

The opponents of flow control state that, in fact, there is no guarantee that flow control will not be used to direct waste to substandard facilities. In Rhode Island and Illinois, for example, flow control laws have required that waste be disposed at sites listed on the Superfund National Priority List. (24) Given that waste generators are potentially liable for cleanup costs at such facilities, generators should be able to choose their disposal site, argue the opponents.

Flow control opponents have at least two further environmental arguments. First, by driving up prices, flow control provides incentives for illegal dumping. Second, flow control may hurt environmentally desirable enterprises (particularly facilities that process recyclables) by diverting recyclable materials and by imposing higher costs that make it difficult for them to compete in a national marketplace.

Finally, some would argue that flow control is a form of government taking of private property. (25) Through such ordinances, governments lessen the value of investments in competing waste management facilities. Without providing just compensation, they argue, such actions constitute an unconstitutional seizure of private property. Under current court interpretations of Federal and State constitutions, however, such arguments have little chance of succeeding.

FLOW CONTROL ISSUES FOR CONGRESS

Numerous Federal courts, including the Supreme Court, have now held that, without congressional action, State and local governments do not have constitutional authority to enact flow control laws. Under the commerce clause, however, Congress may regulate interstate commerce itself or may authorize States and local governments to do so. Thus, the basic issue facing Congress is whether to immunize flow control arrangements from commerce clause challenge by explicitly granting States and local governments such authority. This point was clearly stated by Justice Sandra Day O'Connor in her concurring opinion in the Carbone case. The Justice concluded:

Following the Court's decision, the 103rd Congress made substantial progress toward passage of such a clear indication; ultimately, however, the Senate adjourned without enactment. (27) In the 104th Congress, the issue is back on the agenda: the Senate passed S. 534 on May 16, 1995, Title II of which protects existing flow control arrangements and authorizes its use for planned facilities in limited circumstances. Leadership of the House Commerce Committee have also committed themselves to move legislation at an early date, with subcommittee markup scheduled for May 18.

While there is a diverse group of interests opposed to flow control, most of them have conceded that some authorization is likely, and do not oppose legislation outright. Instead, the focus of debate has been on the limits to any authority granted, particularly the nature of a grandfather clause.

Following the Supreme Court's decision of May 1994, a consensus formed that existing facilities that had flow control arrangements in place prior to the decision should be allowed to continue using it. This point was considered essential by local government representatives, and came to be accepted also by waste management firms and some environmental groups who were opposed to flow control in principle. The stakes (billions of dollars in existing debt that might be affected by the termination of flow control) were too high for most interested parties to oppose some form of relief to local governments. Thus, opponents of flow control drew a line between existing and new arrangements, accepting the former but arguing that, whatever happened in the past, flow control should not be granted to new facilities in the future.

In the last Congress, their position was embodied in H.R. 4643 (Richardson/Fields) and subsequent variations. In this Congress, Senator Hutchison's S. 485 and Senator Smith's S. 534 have come closest to this position, among bills introduced as of mid-May. (28)

Local government representatives want more than just a grandfathering of existing facility arrangements. Much of the debate has concerned how much more they can get. In the last Congress, the principal alternative was the Pallone amendment, which was approved by the Committee on Energy and Commerce August 18, and passed the House by voice vote, September 29. (29) Legislation similar to the Pallone bill has been reintroduced in this Congress as H.R. 24, H.R. 225, and H.R. 342.

The Pallone bill granted flow control not only to facilities in existence but to planned facilities as well. To qualify, a planned facility needed to be designated within five years of the date of enactment. In addition, the Pallone bill provided that jurisdictions exercising flow control at existing or planned facilities as of May 15, 1994, could transfer a designation to another facility at any time in the future. (30) Such "redesignations" -- also referred to as grandfathering the waste management system, rather than the specific facilities -- would guarantee flow control in many jurisdictions for an unlimited period of time.

In S. 534, such redesignation are not permitted, and the scope of authority for planned facilities is substantially smaller. In the bill, planned facilities are granted flow control only if a law or regulation was in effect prior to May 15, 1994, and the political subdivision had committed to designate the facility prior to that date. Evidence of such a commitment would include the issuance of permits or contracts for construction, the sale of revenue bonds, or the submission of substantially complete permit applications for construction and operation. Amendments pushing in the direction of "system" flow control were not attached to S.534, but are considered possible when the House takes up flow control legislation this year.

A second set of issues that has assumed a lesser importance as debate has proceeded concerned what types of waste to include in flow control authority. The facilities that are subject to flow control generally handle municipal solid waste, but "municipal solid waste" is not a term currently defined in Federal law or regulations. Even the broader term "solid waste," which is defined, is subject to dispute concerning the extent to which it includes recyclable materials. Thus, defining the wastes or types of facilities to which flow control might be applied was one of the more difficult issues to be addressed. At the outset, questions included:

Wastes from residential, commercial, institutional, and industrial sources may be difficult to distinguish, particularly in cases where the different waste generators (e.g., commercial and residential) are serviced by the same hauler. S. 534 resolves this issue by including in the scope of its flow control authority only municipal solid waste (defined by type of material and source) and residue from the separation of recyclable materials. Industrial waste, including construction and demolition debris, medical waste, and material returned to a manufacturer, is specifically excluded from the definition of municipal solid waste.

The second issue under this heading was whether or how to exempt recyclable materials from flow control. There has been broad support for such an exemption on all sides of the debate, but defining recyclable materials in such a way as to limit the exemption to a useful subgroup proved difficult. Virtually everything in the waste stream can be recycled. To avoid excluding all materials, one must somehow distinguish materials not by type, but by the intent of the generator. S. 534 and last year's House-passed bill both resolved the issue by excluding recyclable materials unless they were voluntarily relinquished by the generator or owner of the materials This definition appears to have satisfied processors and users of recycled material that they will have continued access to their raw material.

A third set of issues is perhaps the most diverse and difficult to summarize: under what conditions should flow control be exercised? The most basic form of a Federal flow control statute would be a grant of immunity for State or local governments from challenge under the commerce clause of the Constitution. This would leave existing State and local laws, which establish a variety of requirements and mechanisms for establishing flow control, in place.

Many of the bills that have been introduced in this Congress, however, go beyond such a simple grant, by establishing conditions that States, local governments, and waste management facilities must meet in order to qualify for immunity. In doing so, they may allow continuing legal challenges to existing flow control arrangements, which may not meet the conditions established. In addition, some might require States to pass new flow control legislation compatible with Federal requirements before immunity is conferred.

As other issues near consensus, the conditions applied to the grant of flow control are likely to be the areas of greatest debate as consideration of legislation proceeds in the House and in conference. In attempting to broaden prospective flow control authority, numerous amendments are likely to be offered that would grant future authority to specific States or entities or types of solid waste program. The result could be a rather complex piece of legislation that establishes different rules in different States.

CONCLUSION

There are numerous questions raised by flow control legislation. However, there is one fundamental question that outweighs the others: whether Congress wishes to protect State and local flow control laws, by immunizing them from challenge under the commerce clause of the Constitution.

This is a question that does not require the Congress to address secondary issues, such as the types of waste covered, the treatment of recyclables, the treatment of existing facilities, or any of the other issues raised. Nevertheless, Congress may wish to address these other issues, in order to establish consistent national rules regarding the use of such authority, or to ensure the protection of solid waste programs under development in various States.

Other possibilities, not necessarily favored by flow control opponents, include subsidizing the designated waste management facility through general revenues or a tax or fee on waste generators, perhaps in combination with a lower tipping fee. Such arrangements would be likely to result in what is termed "economic" as opposed to "legal" flow control. In a system of economic flow control, waste flows to a facility because the tipping fee is kept low enough to discourage waste generators from using other disposal sites. Economic flow control presents its own problems, however. It, too, discourages competition and takes business from potentially more efficient private competitors.

21. National Economic Research Associates, The Cost of Flow Control, May 3, 1995, p. 1.

22. The National Solid Wastes Management Association has assembled numerous examples of inefficiencies caused by flow control. See Comments of NSWMA before the U.S. Environmental Protection Agency Public Meeting on Flow Control, Arlington, Virginia, August 17, 1993, pp. 7-15.

Some note a certain irony in this set of arguments. While the waste management industry is highly competitive at the national level, there have been numerous cases of price fixing and market restraint successfully prosecuted in local and regional markets. Given the industry's lack of competition in many small markets, this argument runs, flow control sometimes encourages competition. As part of a regional planning process, it allows local jurisdictions to combine forces, providing countervailing power to that of the waste haulers, and ensuring that large firms are interested in competing for their business. By providing the same disposal cost for all, it also allows small local haulers to compete with large integrated firms. Without it, the vertically integrated companies that operate disposal sites and collection services will have an advantage. See statement of Scott Mackin, President, Ogden Projects, Inc., House hearing, p. 257.

23. See testimony of Richard Innes, Browning-Ferris Industries, House hearing, p. 2 and Attachment.

24. Statement of Larry Knutson, National Solid Wastes Management Association, House hearing, p. 159.

26. See C & A Carbone, Inc. v. Town of Clarkstown, 114 S. Ct. 1677, 1692 (1994) (O'Connor, J., concurring).

27. The House Energy and Commerce Committee reported Representative Pallone's H.R. 4683 (H. Rpt. 103-738) on September 22, 1994; the bill passed the House September 29. The Senate did not act on a bill of its own, but interested parties from the House and Senate agreed to compromise legislation that became Title II of S. 2345. (Title I restricted interstate shipment of municipal solid waste.) This bill passed the House by voice vote October 7. Efforts to bring the bill to the Senate floor on October 8, however, failed to achieve unanimous consent, largely because of the interstate waste provisions. As a result, the Senate adjourned without enacting the legislation.

28. These bills would grant flow control authority to States and their political subdivisions if they had laws, ordinances, or other legally binding provisions in effect and had designated facilities to which waste was to be taken, as of May 15, 1994 (the day prior to the Supreme Court's decision in Carbone). Authority for such existing facilities would remain in place until the completion of the schedule for payment of capital costs of the facility concerned or for the life of the facility, whichever is longer, or for the remaining life of a contract concerning the movement of waste entered into by the affected government. Flow control would also be protected if there was a commitment to construction including contracts executed, permit applications submitted, or revenue bonds presented for sale prior to May 15, 1994. In S.534, the authority would sunset 30 years after the date of enactment.

29. The bill passed after the House had rejected an amendment introduced by Representatives Richardson and Fields, 244-161.

30. After exhaustive negotiations among the interested parties, the final version approved by the House last year (as title II of S. 2345, on October 7) modified the provisions concerning planned and future facilities. The deadline for future designation was changed from five years to three years, and the requirements to qualify for future authority were tightened so that redesignation could occur only in a more limited set of circumstances.

31. The term "recyclable materials separated or diverted at the point of generation" was used in last year's House-passed bill, and resurfaced in several bills this year. This term might itself pose problems for some waste haulers. Increasingly, waste haulers are collecting mixed recyclables, or even mixed waste, and taking it to processing facilities for extraction and sorting of that which can be recycled. The term in question would seem to imply that waste must be separated at the source (e.g., by a household) to qualify for exemption from flow control, thus granting authority not only over waste but over recyclables as well, in some cases. S. 534 appears to resolve this issue by deleting reference to where the waste is separated.

This document was produced by the Congressional Research Service. The National Council for Science and the Environment (NCSE) has made these reports available to the public at large, but the CRS is not affiliated with the NCSE or the National Library for the Environment.
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