Testimony of Honorable John E. Rooney
Committee on Environmental and Public Works
March 18, 1997

Good morning Mr. Chairman, members of the committee. Thank you for the opportunity to address this committee on the issue of flow control. I am opposed to any federal legislation that allows states to control the flow of solid waste thereby squelching competition and raising the cost of garbage disposal.

I will explain the reasons that this body does not need to enact flow control legislation. First, I would like to let you know who I am and why I so fervently oppose flow control.

I am the Mayor of Northvale, New Jersey. Northvale is a suburban community nestled in the far northeastern corner of New Jersey. I have been Mayor there for 15 of the last 20 years. I am also a member of the New Jersey General Assembly. I have been honored to serve my district for the past 14 years. From 1983 to 1988 I served as a commissioner of the Bergen County Utilities Authority, the agency in my county responsible for the oversight and now participation in the solid waste industry.

I also come here today with yet another hat, that is, Chairman of the Mayors' Task Force Against Flow Control. The Mayors' Task Force was formed shortly after the U.S. Supreme Court's decision in Carbone v. Clarkstown. As this committee well knows, the Court in Carbone, resting "upon well-settled principles of our Commerce Clause jurisprudence" held that flow control laws violate the U.S. Constitution, which prohibits individual states from hoarding an article of commerce - in this case, garbage, - to the exclusion of other states.

Mayors like myself saw this decision as a rare opportunity for lower property taxes. Garbage disposal ranks near the top of most municipalities' budget items. This is true in New Jersey where as a result of waste flow control we have the highest disposal costs in the nation - $96.00 per ton. If I may, I would like to share an anecdote which illustrates just how perverse an effect waste flow control has had in New Jersey.

In February 1988 at the beginning of the waste flow control era, I was having some construction done on my house that resulted in a considerable amount of debris requiring a 10 yard dumpster. The hauler informed me that if he took the container by Friday my cost would be $350.00; however if I waited until Monday, after flow control took effect, my cost would be $1,300.00.

No longer were municipalities or businesses permitted to choose the disposal facility that made the most economic sense for them. Everyone had to deliver their waste to the "favored" government facility. Ironically, the facility in my county simply shipped the waste to a landfill which the rest of us were prohibited from doing business with. Remember flow control is not about preventing some environment insult, rather it is about economics (I refer you to portions of the executive summary of a March 1995 EPA report on Flow Control which is submitted with my testimony).

After Carbone, communities throughout New Jersey thought rate relief was in sight. However, the State persisted in its stance that New Jersey's system of waste flow control was distinguishable from Carbone. I, along with three other Mayors joined a Federal Lawsuit to end waste flow in New Jersey. The Judge told us we had no legal standing to remain in the suit. We had no where to turn. We were compelled to form a coalition, the Mayors' Task Force, to convey to the state and federal government the position of communities; the view from the front line; the view from the pocket book.

The Mayors' Task Force started as a few concerned Mayors. Although we were not given much of a chance to mount an effective grassroots campaign by many of the so-called experts. We have come a long way. Our ranks number nearly 250 Mayors from across the state representing 3.5 million of our residents. We are democrats and republican alike. While we include Mayors from 7 of the largest 10 cities in the state, we also include Pine Valley Borough, population 19.

We have also been joined by others who are concerned, including The New Jersey Environmental Federation, an umbrella organization of several environmental groups. Other groups supporting our cause include Hands Across New Jersey; Common Cause; New Jersey Business and Industry Association; the Chemical Industry Council; United Tax Payers of New Jersey; the New Jersey Chamber of Commerce; and the New Jersey League of Municipalities.

These groups and the Mayors' Task Force all see waste flow control for what it really is - a garbage tax that feeds the bureaucratic monoliths called county utility authorities. These utility authorities maintain a stranglehold over towns like mine by forcing us to use their product and only their product. This government intervention where it does not belong simply adds another layer to an already bloated bureaucracy.

Today is a time where politicians talk of reducing bureaucracy and balancing budgets. Federal legislation to permit flow control puts us on a diametrically opposite path. Flow control allows the government to grow by allowing county utility authorities to charge artificially high tipping fees, in Bergen County $103 per ton (the national average is $34 per ton). This tipping fee plays havoc with my budget forcing me to divert badly needed funds for infrastructure, police and public safety to garbage disposal.

Let's analyze Bergen County's rate of $103 per ton. Bergen was mandated to send 192,000 tons of waste to the Union County Incinerator at $80.00 per ton. Bergen pays $24.00 per ton to "process" its garbage at the Bergen County transfer station and $12.00 to ship it to Union - $116.00 per ton. The balance of Bergen's waste which was bid in the free market obtained a price of 42.75 for transportation and disposal.

Recently I sought a non flow control alternative for Northvale's disposal. I was immediately threatened by the state with fines of up to $50,000 per day for daring to violate this unconstitutional law. I was thus prevented from implementing a bid of $63.00 per ton, nearly a 40% savings with a stroke of the pen. How would this body like to find a budgetary item that could be cut 40% immediately without cutting services.

Suffice it to say you would all have great job security. Now, think if you had the 40% savings at your fingertips and someone took it away. If you pass flow control legislation, that's what you will do to my community and 566 others in New Jersey alone.

It's been nearly three years since flow control was declared unconstitutional and no bonds have defaulted. Rather, the facilities are learning to compete. New York City recently received bids for disposal at a cost of $43.00 per ton from a facility located in Newark, New Jersey, while Newark itself is forced to pay the same facility $72.00 because of flow control.

There has been no case made that county facilities have to be bailed out by the taxpayer. And make no mistake, that is what flow control legislation would be doing. They may not call it a tax; they may tell you that no money needs be spent by passing this legislation; they may even tell you that the sky will fall without this legislation. But you will be bailing out yet another government flop.

Look at the evidence. To whom does the artificially high tipping fees flow to in the long run, not the hauler, not even the business - no, its the same people who always pay it - the taxpayer.

The Mayors' Task Force advocates the following. Communities, and businesses, must be allowed to contract with the most cost effective yet environmentally sound vendors of their choosing. We must be free of the government restraints which federal flow control legislation will perpetuate.

New Jersey presently has several bills in the legislature dealing with a post flow control world. While differing in approach the bills in the New Jersey Assembly recognize that the financial integrity of existing solid waste facilities need some degree of protection, however if Federal legislation is enacted and the present system of flow control is allowed to remain intact it will continue to have the same deleterious effect on the taxpayers. The approach I advocate is one where we put in place a mechanism to pay off existing debt but simultaneously force the county facilities to compete. In other words, I want to cut our losses.

Mr. Chairman, members of the committee, this issue is about nothing more than political turf. It pits the county and state governments against the municipal government. It allows the voracious appetite for hidden tax dollars to be spent by groups of bureaucrats, who are typically appointed rather than elected. I like my fellow Mayors must stand in front of my constituents, and explain why services at the community level are being cut, while at the county level, the bureaucracy keeps expanding.

Article I, section 8 of the Constitution, the Commerce Clause, is there precisely for the reasons we find ourselves here today. The power to impede the flow of interstate commerce among the states lies with the Congress. This body must see through the smoke and mirrors, and not allow the balkanization of this nation because of a battle over turf.

On May 16, 1994 the United States Supreme Court removed the noose from our necks, I respectfully and sincerely ask that you do not replace it.

The roots and benefits of interstate commerce are embodied in the words and teaching of the United States Constitution. At the founding of this nation we were cautioned about erecting economic barriers between the states. A healthy respect for the wisdom of our nations' founders warrants that we are cautioned now.

Thank you for this opportunity to present my views in opposition to federal flow control legislation.