WASHINGTON Passage of flow control legislation is in jeopardy as Congress nears adjournment, but the solid waste industry, state and local groups, and congressional staff are trying to hammer out a last-minute compromise to salvage the effort, sources said.
The compromise under discussion would preserve existing flow control laws and policies indefinitely, but it would not let localities adopt new flow control authority.
Passage of a bill is "vital," said Micah S. Green, executive vice president of the Public Securities Association. "The credit standing of billions of dollars of outstanding bonds hangs in the balance," he told the Senate yesterday.
However, one source said, "the patient is barely alive."
The Supreme Court struck down flow control laws on May 16 in Carbone v. Clarkstown, N.Y., on grounds that they violate the Constitution's commerce clause, which bars states from erecting barriers to interstate commerce without authorization by Congress.
Hundreds of localities relied on flow control authority under which they could dictate where locally generated garbage is sent for disposal, Green said. This authority was used to guarantee revenue through ensuring a waste supply to pay debt service on a facility.
"The market has presumed that Congress would act to protect outstanding bonds. If Congress does not pass a bill this week, and existing flow control policies are invalidated as a result of Carbone, many issuers will find themselves in difficult positions," Green said.
Legislation sent to the Senate by the House late last month has bypassed the Senate committee process and is awaiting floor action. The House bill is supported by the PSA and many state and local governments. It would preserve flow control laws, contracts, and solid waste management plans that were in place as of May 15, 1994.
The bill also would allow localities to control future residential trash flow if disposal facilities were competitively designated.
The measure was passed after the House soundly defeated an alternative offered by Rep. Bill Richardson, DN.M., that would simply have grandfathered laws and contracts in effect as of May 15 until the bonds used to finance facilities under those authorities are paid off.
Now efforts are under way to write a compromise that takes a middle ground between the-House and Richardson approaches by grandfathering policies and ordinances indefinitely, and not just until bond issues are paid off as provided by the Richardson bill.
The compromise under discussion would allow an issuer that was controlling the flow of waste to a particular facility as of May 15 to continue controlling the flow to that facility or to an expanded or redesignated facility in the future, even after bonds are paid off. But caveats would be included, such as requiring competitive redesignation.
However, if issuers were not controlling flow as of May 15, they could not do so in the future under the compromise.
The new compromise effort has been driven in large part by Browning-Ferris Inc., a major Houstonbased waste company, that strongly opposes prospective flow control, sources said.
Sen. Kay Bailey Hutchison and Sen. Phil Gramm, both Texas Republicans, were expected to try to block any legislation that the company opposes, sources said. Brownmg Ferris is participating in this week's discussions after refusing to join compromise efforts earlier this year.
A potential procedural hurdle to passage is a dispute between the Senate and House over their versions of legislation that would let states restrict waste imports. There has been talk in the Senate of attaching flow control to the more controversial interstate waste bill, which the Senate passed on Sept. 30, in a conference committee.
Even if the Senate passes a separate flow control bill, it must be reconciled with the House bill if there are differences between the two. House-Senate conferees would have very little time to finish a bill.