Talkin' Trash -- Waste Flow Control Examined by the Legislature

Senate Bill #46
Anti Flow Control Amendments

Anti-Flow Control Amendments, as proposed in Senate Bill 46, would prohibit a public entity from requiring solid waste generated within its jurisdiction be delivered to a government owned facility.

Flow Control, currently authorized by the Utah Solid Waste Management Act, can be used by public entities to assist in providing required solid waste related services by;
Assuring adequate revenue to support requested services.
Providing a financing mechanism for construction of solid waste related facilities.

IS FLOW CONTROL A PROBLEM IN UTAH?
According to a national survey of tipping fees completed by the Solid Waste Digest in 2007, Utah has the lowest median tipping fee in the nation at an average $22 per ton. The ability to enact flow control does not appear to have a pricing effect.

In 2006, based upon reports filed with the Utah Division of Solid and Hazardous Waste, the largest landfill in Utah is privately owned (Allied Waste at 684,811 tons/year) and is nearly twice as large as the largest municipally owned landfill (Trans-Jordan at 402,877 tons/year). The second largest privately owned landfill (Metro Waste) accepted 293,258 tons is the fourth largest landfill in the state. Privately owned landfills are clearly not at a competitive disadvantage in the state. Both of these landfills are less than 4 years old.

Wasatch Integrated Waste Management District is the only entity in Utah which has enacted a flow control ordinance. The ordinance was enacted in 1986 to support financing the waste to energy facility. The newly constructed privately owned landfills entered the market knowing that Davis and Morgan County waste was committed to the District.

Utah’s publicly owned landfills have recognized that flow control should not be a first step in ensuring a reliable waste stream for their facilities, but feel that having flow control as a last result measure to ensure a competitive hauling and transfer market is a legitimate purpose.

We have agreed that flow control should only be utilized if certain market conditions exist that would dramatcially increase the cost of residential waste service or provide an exculsive monopoly or oligopoly for a few well postioned companies that have established complete vertical integration in the hualing, transfering and disposal of Municipal Solid Waste.

WHAT DO CITIZENS LOSE WITHOUT THE ABILITY TO CONTROL FLOW?

Locally owned waste haulers may not be able to compete with large vertically integrated companies which own landfills and also provide hauling services. There is a real possibility that only one or two private companies will end up controlling both the landfill and hauling market in Utah.

Municipalities provide the following services to residents as part of their comprehensive waste management responsibility: private customer drop off (self haul) service, recycling, waste-to-energy, household hazardous waste disposal (HHW), electronic waste recycling, etc. Private landfills do not provide these same services.

There is deep concern that only have one or two private disposal facilities in Utah may allow a select group to price control all aspects of waste disposal and dramatically effect residential waste prices as well as the price of the additional waste services that are offered in most jurisdicitons.


FLOW CONTROL FACTS

Ø Fees charged for waste disposal by Wasatch Integrated are not higher than fees charged in surrounding communities that do not have flow control ordinances.
§ Wasatch charges $26 per ton of waste (all haulers pay the same price).
§ Salt Lake County charges $22 per ton.
§ Weber County (currently being served by Allied Waste) charges $30 per ton.
§ Previously high rates at Wasatch were attributed to a bond repayement schedule and were not the result of flow control as has been witnessed as rates dropped immediately upon paying the bonds.

Flow Control is Not Anti-Competitive

Davis and Morgan Counties have a healthy and highly competitive market for waste related services. There are currently 15 to 20 companies providing waste pickup, hauling, recycling, etc. within Wasatch Integrated’s service area. Because all haulers pay the same rate for disposal, small businesses have the ability to compete, which keeps prices low and service high.

Removing flow control will provide a competitive advantage only to companies which own landfill capacity.

Municipally operated landfills ensure competition by charging all haulers of waste the same rate for disposal. Several municipally operated landfills on the Wasatch Front will close within the next 10 to 20 years as they reach capacity. Without the ability to ensure revenue bonds through flow control, it is unlikely that new municipally owned landfills will be constructed.

The Utah Solid Waste Management Act provides public entities both powers and duties in regard to solid waste management including:
· supervise and regulate the collection, transportation, and disposition of all solid waste generated within its jurisdiction;
· provide solid waste management facilities to handle adequately solid waste generated or existing within or without its jurisdiction;
· levy and collect taxes, fees, and charges and require licenses as may be appropriate to discharge its responsibility for the acquisition, construction, operation , maintenance, and improvement of solid waste management facilities or any portion of them, including licensing private collectors operating within its jurisdiction, and;
· require that all solid waste generated within its jurisdiction be delivered to a solid waste management facility;

The Utah Solid Waste Management Act further requires a public entity to assure a supply of solid waste be available to repay bonded indebtedness through long term contracts or “flow control.”

The Supreme Court of the United States

On April 30, 2007, the Supreme Court of the United States decided, in a 6 to 3 opinion written by Chief Justice Roberts, that local government “flow control” ordinances were not unconstitutional stating in part:

” Disposing of trash has been a traditional government activity for years, and laws that favor the government in such areas-but treat every private business, whether in-state or out-of-state, exactly the same-do not discriminate against interstate commerce.”

“…we uphold these ordinances because any incidental burden they may have…does not outweigh the benefits they confer on the citizens…”

Privatization Efforts Hit Road Block in Committee

The big news today was that the privatization efforts hit a road block in the House Government Operations committee, with several questions and concerns raised relative to the approach that has been taken(HB75 and HB76) to review and evaluate privatization efforts for both the state and local governments.

The committee appropriately questioned how one could define "core" governmental service that could then be applied to local jurisdictions that range from Salt Lake City to Vernal, or from Tremonton to St. George. In addition, the ULCT's concerns on these bills were also being echoed by the counties, publicly operated nursing homes, rural hospitals, and several other groups where the notion of a "core" or inherently governmental service becomes problematic.

In response to the concerns that had been expressed, it appears that a major effort to amend the bill is underway. It is likely that the substitute bill will not be required in the local jurisdictions and that they will simply focuses on reconstituting the state privatization policy board to give it more say in the evaluation of privatization efforts at the state level.

Not a bad outcome for local governments. We will see if our hunch is correct in the next few days and let you know as things change.

The next big issue coming down the pipe is the Waste Flow Control Issue and just on its heels is the Justice Court Restructuring Issue. Stay tuned for detailed updates on both.

Until next time... Enjoy.

The "Water Dogs" still tweaking HB51 Water Forfeiture Bill

Friday was a wild one for HB 51 Water Forfeiture Protection. as the "water dogs" aka. the water attorneys/engineers looked at proposed tweaks to the original HB51.

This bill is one of the League's highest priorities in the 2008 session. It is the product of relentless effort during the interim to accommodate water users throughout the state and to fix a gaping whole in the state water policy to allow public water suppliers to plan and hold water rights for its future demand. The Water Coalition typically met every other week during the summer, and its drafting contingent met in the alternating weeks. Its membership was open to virtually any interested party and included representatives of large and small cities, water districts, the CUP, the Provo River Water Users' Association, private water companies, the State Engineer's Office, the LDS church, legislators, the Farm Bureau, the Utah Homebuilder's Association and virtually every water lawyer in the state.

HB 51 is a Natural Resources Committee bill, having survived several hearings during the interim. However, as one sage politician once told me: "Nothing sharpens the mind like a Standing Committee Hearing."

We have known for quite some time now that the State Engineer's Office is not on board with HB 51, and particularly the exemption from forfeiture for holding water for the reasonable future demands of the public. As it turns out, late last week, a very large ecclesiastical "player" in our state expressed concern that HB 51 did not address some of its "concerns" with the current non-use application process. That entity's "concerns" were alleviated in a substitute bill that was drafted for Friday's committee hearing.

Sparks started to fly on Thursday, and reached a crescendo on Friday, just before the scheduled committee meeting. Representative Painter, who has been our champion in every respect, concluded that discretion is the better part of valor and that we should evaluate the substitute, incorporate good ideas contained in the substitute and reassemble next week with an even more inclusive bill. This strategy seemed to satisfy everyone but the State Engineer's Office.

A small drafting contingent met into the evening on Friday and will resume again on Monday morning. Stay tuned as a substitute bill is in the works. If you would like more information on the water issue, also plan on attending ULCT's policy meeting on Monday, Jan. 28, where Rep. Painter and ULCT's Jodi Hoffman will provide the most recent update on the status of the substitute that is being undertaken.

Until next time... Enjoy.

Monday, Jan. 28th is Policy Meeting (Noon -- Room W135)

Hey Everyone,

Don't forget our Monday Policy Meeting will be held Monday, January 28, 2008 in room W135 of the Capitol Complex West Building. The meeting will begin at Noon (MST).

Here is the agenda if you would like to review.

1. Welcome and Introductions – Council Member Jill Love, ULCT 1st Vice-President

2. Economic Report – Neil Abercrombie, Doug McDonald – 5 Minutes
a. Please see handout

3. HB51 Water Forfeiture Protection – Rep. Patrick Painter – 10 Minutes

4. HB104 Urban Trails Appropriation – Rep. Kory Holdaway – 5 Minutes

5. ULCT Priority Issues – 25 Minutes
a. Taxes – Roger Tew
b. Water Forfeiture – Jodi Hoffman
c. Justice Courts – Lincoln Shurtz
d. Land Use Subcommittee Bills – Jodi Hoffman
f. Privatization – Roger Tew

6. Status Sheet Review – Lincoln Shurtz -- 15 Minutes
a. Review ULCT Suggested Positions
b. Answer any questions you may have on specific bills

7. Other Issues

8. Adjourn

Day 4 -- Things are starting to move

Day 4 is now behind us. It was a fairly slow day on Capitol Hill for Utah’s cities with nothing in committee in either the Senate or the House. However, it looks like SB20 is going back to a Senate Standing Committee on Tuesday, January 29 for some additional hearing time. While the bill went immediately to the floor for consideration, there were still some issues that needed to be addressed prior to Senate passage. The ULCT has been charged with finding consensus on this legislation prior to Tuesday’s scheduled hearing. If you are interested in the discussion I would encourage your attendance at Monday’s Policy Meeting. A working group will be meeting soon after to hammer out the final details.

In addition to SB20 we have several other key items up for consideration in the next few days to include SB46 Anti-Flow Control Amendments which will be in committee next Tuesday, January 29th, as well as Rep. Painters HB51 Water Forfeiture Amendments which is scheduled for committee on Friday, January 25th . If you have an opportunity to attend this meeting tomorrow on Water Forfeiture, your showing of support would be greatly appreciated. In addition, we will be smattered with a few privatization bills HB75 and HB76 both sponsored by Craig Frank on Monday as well as SB45 which is in Senate Government Operations Committee tomorrow afternoon. The ULCT has opposed all three of these bills.

So what do these bills do?

SB46 Anti Flow Control: Would restrict a city, county or district from directing the flow of residential and commercial solid waste to a public facility. The bill, in its current form, does not address municipal concerns with monopolistic propensities in the private Utah waste disposal industry, nor does it address concerns with the potential for rate increases associated with residential waste disposal if a significant portion of the commercial waste stream is diverted from public facilities. The ULCT is in discussions with the legislative advocates behind this bill and is working to address their concerns while also maintaining the option of flow control if the city, county or district can demonstrate certain factors associated with the creation of monopolies and price concerns. The ULCT’s current position is to oppose the bill as drafted

HB51 Water Forfeiture Amendments: This bill would allow cities and towns to retain municipal water rights for the reasonable future demands of the public and waive current forfeiture provisions if water is being retained for that purpose. The reasonable future demands of the public concept allows cities and towns to do appropriate long range planning (20 and 30 year plans) without the threat of forfeiting water that is purchased today for a demand that may not be realized for 20-30 years. This is a very high priority bill for the League and we would encourage you to contact your representative to express your support.

HB75, HB76 and SB45: These bills came out of the legislative study committee on privatization and attempt to address perceived local government and state activities that compete with the private sector. Each bill has a different methodology, but all fail to address the true concerns of privatization. The bills attempt to address a “core governmental service” but the current definition fails to recognize anything that is not a regulatory or legislative activity as a “core” service. In short; police, fire, parks, recreation, water, sewer, public works would all be considered non-core services and should therefore be handled by the private sector. In addition to “core service” these bills attempt to create oversight boards that can overturn city council decisions if a decision is deemed to have private competition implications. Since this concept clearly tramples the constitutionally held concept that a legislative decision cannot be overturned by a non-elected board – The RIPPER CLAUSE, we have some concerns here as well. Due to the overarching aspect of each bill, the ULCT stands opposed to all three.

SB20 Form of Government Amendments: In the most simplistic sense, this bill addresses the roles and responsibilities of councils and mayors under the various forms of municipal government. It also stipulates how a city can change from one form to another. This bill still has some work to be done to ensure that the power balance is not shifted in the changes that were made and still allows all cities and towns to operate as they do today. As mentioned above, we will have a final product ready to go on Monday, January 28 and will provide more detail at that time.

As you can see things are already picking up. We will be sure to keep you up to speed.

Until next time …. Enjoy

Day 44 -- Now the Fun Begins

It was a fairy slow day in committee on Tuesday as most of the bills affecting local governments were pulled from the agenda to allow for futher discussion.

Rep. Shurtliff's annexation bill (HB124) that extends some of Salt Lake County's requirements to counties of the second class was pulled so that the Counties and Cities could see if there were some alternatives to her original language. It is safe to say that no one is looking at SL County's annexation laws as the poster child for how things should be. We will keep you posted as this continues to be discussed

Rep. Frank pulled his privatization policy board bill HB75 to allow the League an opportunity to provide some alternatives to the constitutional hang-ups with his legislation, which essentially allows an appointed board to override a city council in determining the proper role of government. We provided those alternatives late afternoon, and we was going to "sleep on them" to see where he wants to go with his legislation

Sen. Greiner also pulled his bill (SB127) that would require local government to locate all private and public underground sewer facilities. Since this would cost about $300-$500 per home, everyone is trying to figure out some alternatives to locating sewer laterals that are not owned by government, but rather the home owner.

So while bills before committee were largely held for further discussion, the Senate was moving quickly on bills already on the floor, and have passed two big retirement bills to the third reading calendar for final discussion. Those bills SB18 and SB19 provide greater benefits to police officers by offering a death benefit to surviving spouses (SB18) and allowing for greater Cost of Living Adjustments for retired peace officers (SB19). While the League has endorsed SB19 since it is optional for local government, our position is still pending on SB18. We will be solidifying our position at our next policy meeting.

Well that about does it for Tuesday.

Until next time ... Enjoy!

45 Days and Counting

The clock has officially begun for the 57th Utah State Legislature. In what was consider largely a ceremonial day, both the House and Senate began this year's legislative session by paying respect to Martin Luther King Jr. As many of you may know, this will likely be the last session of the Utah Legislature to begin on the third Monday in January, which is also the same day as Martin Luther King Jr. day. Due to a bill passed last year, the voting public will have an opportunity in the upcoming November election to move the constitutionally held opening day of the session in an effort to properly honor Martin Luther King Jr. Day.

So while to day is largely ceremonial, we will be in full swing tomorrow with several bills in committee. To include an annexation bill that is being run by Rep. Shurtliff and an underground utility bill being run by Sen. Greiner. The annexation bill would increase the ability of individuals and township planning committees to protest annexations in second class counties; while the underground utility bill will require local governments to identify and map many underground utilities regardless of ownership. The utility bill is estimated to cost local governments tens of millions in mapping and locating costs, and obviously has the ULCT and several other local government representatives anxious.

So as you can see, we are starting off with a bang. Please check this website daily for continued progress reports and updates for the 2008 General Legislative Session.

Until tomorrow -- enjoy....