A publication of Work On Waste USA, Inc., 82 Judson, Canton, NY 13617 315-379-9200 March 1993

Carol Browner, new head of the U.S. EPA, on incineration:

“...Overall, she believes much can be done to reduce the amount of hazardous waste generated. The remaining waste then has to be disposed of in the safest possible manner for a given region, but she doesn’t specify any one technology. Browner cautions, though, that the nation has to be careful not to ‘overbuild hazardous waste disposal facilities of any type’ to prevent creating an incentive for generating hazardous waste. However, Browner has a different take on incinerating municipal solid waste. If properly constructed and managed, ‘incineration is going to be part of a comprehensive system for dealing with garbage. Again, I think there is an awful lot that we can do in terms of source reduction, and in terms of recycling,’ she says...” Chemical & Engineering News, March 1, 1993, page 19-20: EPA’s Browner To Take Holistic Approach to Environmental Protection. Comment from Waste Not: Too bad Browner didn’t apply the same logic to municipal solid waste as she did to hazardous waste.

Litigious OGDEN MARTIN is behind the Lawsuit against the Province of Ontario, Canada, over Ontario’s Law that Bans the Building of Municipal Waste Incinerators. Ontario’s ban was enacted into law on September 11, 1992 (see Waste Not #206). We found out about the lawsuit after Jeffrey Hahn told David Mochrie that ‘Ogden’ is suing the Province of Ontario. David spoke with Hahn at a March 10th Seminar titled “Incineration or Landfill,” which was moderated by Ogden Martin’s lawyer Ian Blue, Q.C. Waste Not contacted Blue, and here’s what he told us: The lawsuit was brought by Mayor Bob Johnson of the Township of Georgina, in the regional municipality of York, against the Attorney General of Ontario. (Blue stated that if you sue any agency on constitutional grounds, the main party is the Attorney General.) Blue said that Ogden Martin is giving “technical assistance” to Mayor Johnson in the lawsuit and the he is representing Mayor Johnson in the lawsuit. The lawsuit claims that Ontario’s incinerator ban is illegal because it is not authorized by Ontario Statute, and also that the Ontario’s Waste Management Act of 1991, for the Greater Toronto Area, is an unconstitutional law because it bans incineration. The lawsuit was filed in July 1992. After Ontario’s ban was enacted into law in September, Johnson’s lawsuit was amended “to attack” the law. Blue says the lawsuit will be in court on May 13, 1992. Ian Blue is with the Toronto law firm of Cassels, Brock & Blackwell. Ogden Martin launched a lawsuit in November 1992 against the State of Rhode Island over their law banning the building of municipal waste incinerators which was enacted in July 1992 (see Waste Not # 218). Ogden’s suit in Rhode Island argues that the ban on incineration constitutes an unconstitutional taking of property from Odgen. In later issues we will report more on Ogden Martin’s aggressive efforts to crush all barriers set up against building incinerators. For more information on Ogden’s activities in Ontario contact either Dave Mochrie in Cayuga, Ontario, at 416-772-5797, or Coleen Cooney, at her new tel. # 705-686-7457. (Coleen and Bill Cooney have recently moved. Their new address is: R.R.#1, Coldwater, Ontario, LOK 1EO, Canada.)


Case # CV-SA-88-192 AHS (RWRX) in the Central District Court of California
Ogden Martin’s attorneys in the Litigation were Barry Wm. Levine (Lead Attorney), Judith E. Schaeffer and Martin Kimel,
from the law firm of DICKSTEIN, SHAPIRO & MORIN of Washington, D.C.,
the same law firm that represented Ogden Martin in Montgomery County, Maryland.

San Bernardino County used the law firm of
ORRICK, HERRINGTON & SUTCLIFFE, of Sacramento, California.

After San Bernardino County rejected Ogden’s proposal to build the Milliken municipal solid waste incinerator on November 30, 1987, --a proposal that engulfed the County in massive and sustained incinerator opposition from all quarters in San Bernardino County and neighboring Riverside County-- Ogden Martin initiated litigation in March 1988. “Asserting claims for breach of contract and for recession of contract” Ogden sued San Bernardino for $6 million. According to the settlement, San Bernardino County has to pay Ogden Martin $1.3 million, plus 3% interest for paying off the settlement in 6 annual installments -the last payment is scheduled for January 31, 1999. The settlement prompted incinerator opponent Mary Burns to exclaim: “Look what those _ _ _ _ _ _ _ [expletive for Ogden Martin] did to my county!” The settlement absolved San Bernardino County from paying off Ogden Martin’s lawyers fees, which probably took a considerable chunk out of Ogden’s $1.3 million settlement. According to the “Settlement Agreement and Mutual Relief” papers, “The requirements and provisions of, and the parties obligations under, the stipulation regarding confidentiality entered into the litigation survive this agreement...” For a copy of the “Settlement Agreement and Mutual Relief” papers cite Case # CV-SA-88-192 AHS (RWRX) and the Freedom of Information Act to request copies. Send request to: Alan Marks, County Council, 385 North Arrowhead Avenue, 4th Floor, San Bernardino, CA 92415. For more information on Ogden’s efforts to build the Milliken incinerator, contact Mary Burns at 909-685-6026. (Note, Mary has a new telephone area code #.)

FLOW CONTROL STRUCK DOWN IN MINNESOTA. “Municipalities and states could face big losses on their garbage incinerators and other waste facilities following a trio of recent federal court rulings that limits governments’ control over where trash is disposed. The rulings are an outgrowth of the increasingly fierce competition between the public and private sectors in the $25 billion U.S. trash hauling-and-dump business. The competition has been intensified because - contrary to the widely held notion of a disposal shortage - there is a glut of dump space in many parts of the country. That has driven disposal prices downward and made some operators desperate for volume. The rulings, striking down a practice known as ‘flow control’ under which a municipality requires all trash generated within its borders to go to certain disposal sites, could be most troublesome to communities that have invested heavily in modern disposal plants. Flow control provides a monopoly, in effect, allowing governments to make long-term investments in disposal sites [to ensure] they’ll have the revenues to pay for the investment. Palm Beach County, Fla., for instance, through its solid waste authority, borrowed $420 million through a bond offering to build a big trash-to-energy plant and dump to handle its approximately 1.2 million tons of trash...If the trash-to-energy plant doesn’t take at least 624,000 tons a year, it can’t run at full efficiency and could have trouble generating enough revenue to service the bond debt. H. Lanier Hickman Jr., chief of the Solid Waste Association of North America, a group of mostly municipal trash officials, predicts ‘big trouble. Anarchy will reign throughout the solid waste field.’ The rulings are the second big setback for states in federal courts involving the waste business. The Supreme Court ruled last year that states can’t bar out-of-state hazardous waste from licensed sites within their borders. The court rules that such moves violate the Constitution’s commerce clause that protects interstate trade. For the few states that have complied with federal guidelines about providing for their own hazardous waste disposal, the ruling in effect meant they’d set themselves up to be dumps for neighboring states that did nothing. Now, municipalities that invested to ensure long-term disposal capacity for their trash could have those investments undermined. The latest ruling, Feb. 18 by the Eighth U.S. Circuit Court of Appeals in Minneapolis, struck down a trash ordinance set up by two small southern Minnesota counties that required most of their trash to go to an $8 million composting plant they built. The cost is $50 a ton. A hauler with a dump just south, in Iowa, sued, saying the ordinance restricts interstate trade and violates the Constitution’s commerce clause. The hauler, Waste Systems Corp., a privately held Lake Mills, Iowa, concern, has a dump that charges just $30 a ton...Similar federal court rulings in Alabama and Rhode Island cases have some municipal officials worried.. A group of private haulers and dump operators, the National Solid Waste Management Association, applauds the rulings and suggests municipalities enter into long-term contracts with private companies to assure disposal capacity...Two earlier federal court rulings upheld flow control arrangements in Akron, Ohio, and the state of Delaware...” Wall Street Journal, March 2, 1993, Municipal Waste-Disposal Investments Undermined by Federal Court Rulings.

WASTE NOT # 230. A publication of Work on Waste USA, published 48 times a year. Annual rates are: Groups & Non-Profits $50; Students & Seniors $35; Individual $40; Consultants & For-Profits $125; Canadian $US50; Overseas $65. Editors: Ellen & Paul Connett, 82 Judson Street, Canton, NY 13617. Tel: 315-379-9200. Fax: 315-379-0448.