Capital Goods - October 2007

Legislative trash talking
By Scott Mooneyham

In 1978, the U.S. Supreme Court ruled that moving garbage constitutes commerce. As a result, New Jersey couldn't prohibit Philadelphia from trucking trash across the Delaware River into the Garden State. Nearly three decades later, North Carolina’s political leaders decided that they didn’t want this state to become New Jersey’s, or any other state’s, dumping ground. A handful of landfills being planned threatened to do so, not to mention create dumps unlike anything ever seen here.

The largest was planned for Camden County. An agreement between county officials and Black Bear Disposal LLC, a subsidiary of Raleigh-based Waste Industries USA Inc., called for a landfill 21/2 miles long and 280 feet tall that could accept as much as 10,000 tons each day. For poor, rural Camden County, the agreement promised between $1 million and $3 million a year in sorely needed revenue. Local revenue or not, legislative leaders weren’t thrilled with the prospect. Senate President Pro Tem Marc Basnight, in particular, saw the Camden facility as an eyesore from which the county would never recover. But what to do?

In the years since its ruling in Philadelphia v. New Jersey, the nation’s high court had upheld the findings. It even deemed some municipal restrictions on the flow of privately handled garbage an affront to the constitution’s Commerce Clause. An outright ban on these private landfills and the private importation of trash from other states certainly would be found unconstitutional.

Unclear on a long-term strategy, the legislature in 2006 approved a one-year moratorium on new landfills. After spending a year chewing on the issue, lawmakers came up with a regime of new landfill regulations, approving the plan this summer. The law created more permitting hoops for landfills. It established a statewide $2-per-ton surcharge on garbage sent to landfills. It set up buffer requirements, prohibiting landfills within five miles of a national wildlife refuge, two miles of a state park and a mile of state game lands.

The buffer requirements appear to have doomed the Camden project, as well as at least one other mega-landfill planned for Hyde County. Basnight, never afraid to speak his mind, admits that part of the legislation’s purpose was to block the Camden County landfill. But lately, legislators haven’t been talking about barring New Jersey and New York refuse from crossing into North Carolina when discussing the issue. They apparently recognize that doing so could put the state in a poor legal posture.

Waste Industries officials continue to consider their options, among them a lawsuit. “The whole purpose of the bill was to keep out-of-state waste from coming into North Carolina,” spokesman Phil Carter says. Proving it in court may be another matter. Companion legislation promises to reimburse money spent on permitting, design and engineering of landfills now banned under the law. But there’s a catch. To get the money, companies have to sign a waiver agreeing not to sue.

North Carolina is a net exporter of garbage, shipping about a million tons a year to landfills in other states, mainly South Carolina, while accepting between 200,000 and 300,000 tons. The Camden County landfill alone could have tipped the scales in the other direction. Waste companies already were viewing North Carolina — with its central location on the East Coast, cheap land in the Coastal Plain and lack of a statewide tipping fee — as a prime location, particularly as doing business in other states becomes more expensive.

But for most people, whether they live in New Jersey or North Carolina, huge landfills aren’t the kind of business they relish in their backyards. In Basnight’s view, seeing a mountain of garbage upon entering North Carolina from Virginia wouldn’t have done much for the state’s image. “It would be a sad statement of what we are.”

Still, Carter, who heads the state chapter of the Solid Waste Association of North America, believes the policy will prove shortsighted. North Carolina is a growing state, and the need for landfill space will certainly increase. Neighboring states, aware of the legislature’s action, may look for ways to stem the flow of garbage from North Carolina, he says.

The law, though, continues to allow existing landfills to expand, exempting them from the buffer requirements. And shrinking landfill space and higher tipping fees almost certainly will result in more-aggressive recycling programs by state and local government. The question now is whether the law will hold up, either to any court challenges or runs at weakening the new rules during the 2008 legislative session. It won’t take too long to find out.

Scott Mooneyham is the editor of The Insider, www.ncinsider.com.

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