NSWMA Files Suit Against the City of Dallas Over Flow Control Ordinance

Suit Says Flow Control Violates City Franchise Agreements, Flow Control Will Reduce Recycling

FOR IMMEDIATE RELEASE
November 18, 2011
Contact: David Margulies, 214-368-0909

Dallas, Texas – The National Solid Wastes Management Association (NSWMA), certain members and non-members filed suit against the City of Dallas today in U.S. District Court to stop implementation of flow control. Effective January 2^nd, the flow control ordinance would require commercial trash haulers to dispose of all of the solid waste, including loads of recyclable materials that have even a trace amount of waste, collected in the city to Dallas' single landfill located in the far Southern sector of the city.

The suit calls flow control "an anti-free-enterprise action by the city that is contrary to both state and federal law."  "It is clear from the history of this ordinance that its sole purpose is to generate revenue," said NSWMA attorney Jim Harris of the law firm Thompson & Knight, "and not to address any health or safety issues or any other problem with the recycling or disposal of commercial waste in the city.  Instead of increasing recycling, the ordinance will actually decrease recycling and may even endanger the city’s residential recycling program."

"This ordinance also would rewrite long term contracts the haulers have with the City that allow them to get the best deal for their customers by using competing landfills and other existing recycling facilities," said Tom Brown, Texas Chair of the National Solid Wastes Management Association. "The City is rewriting the contracts to create a monopoly at the McCommas Bluff landfill so it can address budget shortfalls. The law doesn't allow the City to renege on a deal just because of tough economic times."

Lawsuit Says Flow Control Violates Franchise Agreements

The lawsuit notes that the franchises granted to waste haulers by the city place no limitations on where the material collected can be taken. The ordinance “prevents the franchisees from collecting and disposing of solid waste in the most-cost effective manner dictated by the market.”  NSWMA members have estimated flow control will cost Dallas businesses $19 million a year in higher costs.

The lawsuit also calls into question the city’s claims that flow control is a necessary precursor to an aggressive recycling program that would turn "Trash to Treasure," saying that claim is "demonstrably not factual."  "The city has no current or foreseeable future capacity to turn trash into treasure, even assuming such a transformation is practicable." 

Flow Control Could End Current Recycling Programs

The suit notes that as written, the flow control ordinance "would also prohibit the recycling efforts of the franchisees and their customers, efforts that have successfully diverted hundreds of thousands of tons of materials that would otherwise have ended up in a landfill." The ordinance allows loads that consist of "solely" recyclable materials to be taken to facilities other than the city’s landfill.  However, industry experts say even the city’s own residential recycling program would be upended by this provision because even residential recyclables contains some waste.  Dallas Sanitation Director Mary Nix said "…the ordinance requires you to take it to the landfill if it’s not solely recyclable."

It Was Always About Money

According to the lawsuit flow control's "…sole and avowed purpose is to generate revenue for the city by imposing new solid waste and recyclables management fees on private parties and taking fees that are lawfully earned by other private parties and diverting those fees to the city to address revenue needs."

No Answers – No Time to Prepare

The lawsuit calls the flow control ordinance "broad" and "vague" and, given the dramatic reduction in disposal locations with no operational assistance from the city, the solid waste industry has inadequate time to order equipment or make other operational changes necessary to comply.  A recent meeting between major waste haulers and the city’s sanitation director Mary Nix resulted in no meaningful answers and contradictory comments concerning how the ordinance will be interpreted and enforced.

To download a copy of the complaint:
http://www.environmentalistseveryday.org/docs/NSWMA-Dallas-Complaint-as-filed-111811.pdf.

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NSWMA – a sub-association of the Environmental Industry Associations (EIA) – represents for-profit companies in North America that provide solid, hazardous and medical waste collection, recycling and disposal services, and companies that provide professional and consulting services to the waste services industry. NSWMA members conduct business in all 50 states. For more information, visit NSWMA.org.