Update: Dallas flow control trial delayed to Jan. 12
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By Jeremy Carroll | WRN reporter

Jan. 4 — The implementation of a flow control law in Dallas has been delayed, according to a filing in U.S. District Court in Texas.

A hearing before Judge Reed O´Connor on the preliminary injunction requested by the National Solid Wastes Management Association and several haulers was scheduled for Dec. 15, but the city and NSWMA agreed to hold off the hearing until Jan. 12, according to the court filing. The city agreed to delay enforcement of the ordinance, which was to go in effect on Jan. 2, for “at least 30 days after the preliminary hearing,” the filing said.

In its argument for a preliminary injunction, NSWMA and the haulers wrote that “the ordinance violates the United States and Texas constitutions as well as federal antitrust laws, and is preempted by state law.”

The Dallas City Council approved the ordinance Sept. 28, which would force all waste collected at commercial and industrial facilities, along with apartments to be disposed at the city-owned McCommas Bluff Landfill. Residential waste is already mostly collected by the city and taken to the McCommas Bluff Landfill.

The group argues that franchise agreements already in place with various haulers allow them to collect waste and dispose of it wherever they wish.

“Relying on those rights, the franchisees have built businesses that offer combinations of collection, transportation, disposal, and recycling services, all in a free and open marketplace,” attorney Jim Harris wrote in the filing. “The freedom to choose among competing disposal sites and recycling facilities – including their own – has been integral to the franchisees´ ability to offer lower prices to apartments and businesses than otherwise possible.”

In a 26-page filing arguing against the preliminary injunction, an attorney for the city said nowhere in the franchise agreements does it grant the right for franchises to dispose waste anywhere they want and it specifically outlines that the franchisees bare the risk of regulatory change.

City Attorney Peter Haskel wrote that flow control directly advances the city´s fundamental aim to operate in an environmentally sustainable manner as a leader and innovator in green management

“[NSWMA and the haulers] purport to identify preemptive conflicts with state law that simply do not exist,” Haskel wrote in a Dec. 20 filing.

The city mentions the landmark United Haulers vs Oneida-Herkimer counties (N.Y.) case several times, a previous flow control case that was settled by the Supreme Court siding with the municipality´s right to institute flow control.

Previously, Harris, along with NSWMA attorney David Biderman, told Waste & Recycling News that this case is fundamentally different than the United Haulers case.

“Plaintiffs´ views are also ultimately incompatible with the Supreme Court´s own assessment of flow control in United Haulers, a case they never once cite,” Haskel wrote.

The city argues flow control is the first in a multi-step process to “make landfills obsolete by using emerging technologies to reuse the city´s solid waste in the form of energy, fuels and reusable products.”

Dallas is the largest city in the country to pass a flow control ordinance, predicting it would bring an additional $ 13 million to the city annually because of tipping fees. The city estimates that about 700,000 to 900,000 tons of waste is picked up annually inside the city and disposed outside of the city at private facilities.

There are three landfills located just outside of the city limits, including two owned by Waste Management Inc. and one owned by Republic Services Inc. Both companies are among the haulers suing to stop the ordinance.

Contact Waste & Recycling News reporter Jeremy Carroll at [email protected] or 313-446-6780.

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