Wednesday, January 30, 2008

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.

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.


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.


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…”