House panel approves grandfathering municipal flow control laws, plans.

WASHINGTON -- A House subcommittee quickly approved stop-gap legislation yesterday that would grandfather state and local waste flow control laws, regulations, and plans that were in effect as of mid-May.

The transportation and hazardous materials subcommittee of the House Energy and Commerce Committee passed the bill on a voice vote and sent it to the full committee, even though controversial issues remain, because time is running out in this legislative session.

Subcommittee chairman Rep. AI Swift, D-Wash., offered the measure with Rep. Michael Oxley, R-Ohio, at a markup on legislation that would give states more authority to regulate imports of out-of-state waste. The subcommittee meets again today to consider the bill.

The flow control measure is "a page marker" that still requires much work, Swift said. If Congress does not act in this session, "an awful lot of municipalities are going to be hanging for a long time out there."

Yesterday's action came in response to a May 16 Supreme Court ruling in C&A Carbone v. Clarkstown, N.Y., which struck down state and local laws authorizing them to dictate where garbage is to be sent for disposal. The ruling jeopardized the revenue bonds of waste disposal facilities that relied on flow control to guarantee revenues through a steady waste supply to pay debt service, subcommittee members agreed.

The flow control bill seeks to protect facilities built and financed on previously legal flow control by allowing state and local governments to control the flow of waste under any statute, regulation, or plan that existed when the court issued the Carbone decision.

Under what Swift called a new concept, the measure would terminate flow control authority at the end of the useful life of the facility, rather than at the time the bonds are paid off.

Since states do not control waste flow directly but may pass laws authorizing localities to do so, local governments would have the authority under the bill to control waste flow for either proposed or existing facilities as long as they had adopted some kind of public measure by May 16.

The measure provides that as long as a state or local government has adopted a method for choosing a facility for disposing of municipal solid waste, any facility chosen under the method can be grandfathered. Swift called this a "very broad" grant of authority.

Subcommittee members by prior agreement did not offer amendments, reserving them instead for full committee review. "We haven't got a real consensus for anything at this point beyond the strong feeling that we need to do something," Swift said.

While there is broad agreement that existing laws and contracts should be grandfathered, subcommittee members such as Rep. Bill Richardson, D-N.M., said the grandfathering bill adopted yesterday goes too far because it "is flexible enough to allow local governments to transfer flow control authority from one facility to another."

Richardson, who is sponsoring an anti-flow control bill, called for a "far stricter grandfather provision" that "protects only those investments which have been made in good faith ... Rather than the overreaching acceptance it currently allows, this clause should at the most protect those facilities that are in the pipeline: for example, those awaiting a final operating permit, or those that have signed contracts but have not yet received waste."

Rep. Frank Pallone Jr., D-N.J., argued for a broader bill that would allow governments to control the future flow of non-grandfathered municipal waste.

In addition to grandfathering, the full committee must grapple with prospective treatment of residential, commercial, industrial, and other types of solid waste such as demolition debris and recyclable waste, Swift said.

Swift agreed with Richardson that state and local interests have not made Clear the degree to which they require flow control authority to manage solid waste. Richardson faulted those interests for not offering a proposal.

Groups representing state and local interests, including the National Association of Counties, the Public Securities Association, the National League of Cities, and the U.S. Conference of Mayors, have been negotiating with the solid waste management industry for a compromise that full committee chairman Rep. John Dingell, D-Mich., has said is necessary before his committee acts.

One company, WMX Technologies Inc., agreed on a compromise approach on Wednesday that is based on, but goes a little further than, a bill sponsored by Sen. Frank Lautenberg, D-N.J., according to lobbyists for the state and local groups.

The Laurenberg bill as introduced last month would grandfather existing laws and contracts and provide for future flow control of residential waste. The bill also would let governments control the flow of commercial waste under grandfathered flow control authority as long as they set up a competitive process for designating disposal facilities.

The private sector compromise would let jurisdictions that do not have grandfathered flow control to set up a competitive designation process for all municipal solid waste as long as they make a finding of fact that flow control is necessary, according to Diane S. Shea, associate legislative director for the National Association of Counties.

Shea praised the House subcommittee action yesterday, saying it addresses "the key point of what we have been trying to achieve." The full committee could act as early as a week from now.

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