WASHINGTON -- Proponents of flow control legislation are hoping Congress will take up the issue again when it considers the General Agreement on Tariffs and Trade in a postelection lame-duck session.
But the congressional leadership is not expected to allow consideration of the bill, which would protect flow control laws and policies that were in place on May 15, the day before the Supreme Court struck down flow control authority.
"It's a long shot," said Michael Decker, director of policy analysis for the Public Securities Association. "If it looks like a possibility, we are certainly going to pursue it." But "every indication from Congress ... is that they are not going to do anything but GATT," he said.
The PSA is part of a coalition of state and local interests that is hoping for action in the lame-duck session, which is scheduled to start in late November.
Flow control refers to the ability of localities to dictate where locally generated waste is sent for disposal. Local governments have issued billions of dollars in bonds to finance solid waste disposal systems that rely on flow control to ensure a steady waste stream and associated revenue to pay debt service.
State and local interests, the financial community, and the waste industry hammered out a compromise bill just before Congress adjourned earlier this month that would grandfather existing flow control laws and policies. In a concession to the waste industry, the bill would not permit localities to adopt new authority to control future waste flow.
But the legislation, which passed the House on Oct. 7, died in the Senate the following day when proponents could not overcome a procedural hurdle. Sponsors of separate, more controversial legislation that would allow states to restrict imports of out-of-state waste attached the flow control bill to their measure. Objections by senators over the interstate waste component sent the whole package down in flames.
"It would be great" if Congress took up the legislation during the lame-duck session, Decker said. But chances for action are slim, especially since the issues involving interstate waste remain unresolved, and there is uncertainty whether flow control can be separated from the interstate waste measure, he said.
The PSA sent a letter to all members of Congress on Oct. 20 warning them that outstanding bonds "could be in serious jeopardy" if Congress doesn't act. The PSA attached credit reports by Moody's Investors Service and Duff & Phelps Credit Rating Co. that expressed concern about the credit standing of outstanding solid waste bonds.
The PSA also included a joint letter signed Oct. 7 by many supporters of the flow control compromise, including major waste companies that previously opposed legislation, and proponents such as the PSA, the National Association of Counties, the National League of Cities, and the U.S. Conference of Mayors.
The Oct. 7 letter to members of Congress said the compromise is the product of good-faith negotiations involving "significant concessions" by both sides, and "is far more preferable to the uncertainty which will result if no bill is passed."
Whether Congress takes up the issue next year depends on what happens in the market and the upcoming elections, congressional sources said. If the market does not react with rating downgrades or contract invalidations, "or if you just have a couple of situations with municipalities that were on shaky ground anyway, then maybe there's no impetus to do a broad bill," one congressional source said. "But if there are a lot of problems that crop up, I can see a bill moving."
Action will also depend on the outcome of the elections and changes in leadership and composition of committees with jurisdiction.
For example, Rep. Al Swift, D-Wash., the chairman of the House Energy and Commerce Committee's subcommittee on transportation and hazardous materials, is retiring. Swift shepherded flow control legislation through the House, and the subcommittee will have first crack at any bill next year in the House.
Members who could succeed Swift in a Democratic-controlled House are Rep. Cardiss Collins of Illinois, Rep. Billy Tauzin of Louisiana, or Rep. Ron Wyden of Oregon.
Another factor of uncertainty is the position of the waste industry. One industry lobbyist speculated that even though companies such as Browning-Ferris Industries "did not object" to the compromise because they wanted to prevent passage of more onerous legislation, they may see less threat of action by Congress next year and resume their previous opposition to a bill.