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With trash piling up in alleys and citizens griping about recycling, you’d think that a government might actually encourage private garbage companies. But this is D.C.: For the past year, city hall has been warring against the District’s private trash “transfer stations” (see “Trash Cash Clash,” The District Line, 10/14/94). Now, after trying to raid, legislate, and regulate the transfer stations out of business, the city may finally have to admit defeat.
On Friday, July 7, D.C. Superior Court Judge Zinora Mitchell-Rankin crippled the District government’s latest attempt to limit transfer stations, issuing a temporary restraining order in favor of Eastern Trans-Waste (ETW), a Southeast D.C. transfer facility.
The stations, seven of which have popped up in blighted areas of Northeast and Southeast during the past two years, are the middlemen of the District’s garbage industry. Private garbage haulers collect 75 percent of the city’s trash. Rather than toting that refuse down I-95 to the city’s Lorton, Va., dump—a two-hour shlep—these private companies bring the garbage to transfer stations. The stations, in turn, load the trash onto tractor-trailers and cart it to remote landfills.
Neighboring businesses and residents complain about the horrible smells of the facilities, but that’s not the principal reason the city has been trying to close them. The District’s real motivation is, not surprisingly, money. Trash is cash for the D.C. government. The city pockets $30—a “recycling surcharge”—for every ton dumped at Lorton. Transfer stations send their trash to much cheaper dumps, saving money for private hauling companies and siphoning off a stream of waste (and money) that would otherwise go to Lorton. D.C. trash revenues are falling $4.5 million short of estimates this year, and Department of Public Works (DPW) officials blame that deficit on the transfer stations.
DPW opened its ill-fated offensive against the stations in June 1994. An army of inspectors, ticket-writers, and cops raided ETW and the Northeast Distribution Center, a transfer station on Queens Chapel Road NE. The action forced both stations to close for nearly one month. The companies protested, and on July 6, 1994, Judge Mitchell-Rankin ruled that the raids were illegal, holding that the District had no laws on the books to justify enforcement actions against transfer stations.
So the D.C. Council wrote some, passing an anti-transfer-station law in January 1995. In late May, the Department of Consumer and Regulatory Affairs (DCRA) issued the regulations to enforce the legislation, a draconian set of requirements that seemed designed either to drive transfer stations out of business or to force them to compensate for Lorton’s lost revenue. The new transfer-station licensing rules impose a $10,000 permit fee and a $10-per-ton “capacity tax” on all transfer stations. Instead of covering every ton of trash the station actually processes, this levy would be collected for the volume of waste that each facility is “capable” of processing in a year. ETW estimates that the capacity tax would cost it $600,000 per year.
The new regulations also stipulate that stations submit detailed engineering plans and an environmental impact evaluation. And as if all these requirements weren’t enough, DCRA insisted that transfer stations file for their permits by June 30, but didn’t distribute the (elaborate) applications until June 19.
The regulations are “preposterous,” says A.J. Cooper, counsel for ETW. “This is legislating by ambush.” On July 5, ETW sued the city, asking Mitchell-Rankin to toss out the new rules.
The judge agreed with the plaintiffs, barring the city from enforcing its regulations against ETW. Mitchell-Rankin decried the regulations as an “impermissible burden on interstate commerce,” and ruled that the city may not saddle private concerns with excessive taxes in order to force local haulers to dump at Lorton. “Once the government goes into the private market,” she wrote, “it must act as a private enterprise and cannot use its taxing and regulatory powers to promote its own interest while creating legislative disadvantages for its competitors.”
“It should be clear by now that DPW has been getting lousy legal advice,” says Cooper of this latest setback to the city.
Mitchell-Rankin did not overturn the new regulations entirely; her ruling applies only to ETW. But her decision opens the way for the city’s other transfer stations to sue on their own behalf if DCRA tries to impose the regs on them. “The garbage community really wants to follow the law,” says Eric Lipman, attorney for Northeast Distribution. “But these regulations are hostile to the trash industry.”
The city now faces exactly the same dilemma it did a year ago: It still wants to close the transfer stations, but seems to have no legal way to do so. Janet McCormick, a DCRA spokeswoman, says that the city will follow the ETW court order but has not decided whether to try to enforce the regulations against the other transfer stations.
Mitchell-Rankin’s ruling may be only the start of the bad news for McCormick and her colleagues. Both Northeast Distribution and ETW have also filed lawsuits against the city for its illegal raids in 1994. The firms are demanding compensation—in Northeast’s case, $1 million—for losses incurred after DPW shut them down last June.