Thursday, September 19, 2013
By Stephen L. Goldfinch Jr.
Recently, there has been a battle over the control of garbage. This battles stems from complaints of corruption and mismanagement at the Horry County Solid Waste Authority. In response to these issues, state legislators, including myself, decided to support H. 3290. This bill amends State law to make clear that “flow control” ordinances are inconsistent with State law and therefore are preempted by State law. H. 3290 passed the House by a vote of 89 to 28. The bill was recently favorably reported, as amended, by the Senate Medical Affairs Committee by a vote of 9 to 4. The Committee unanimously adopted a substitute amendment sponsored by Senators Verdin and Hutto to make clear that the bill does not affect solid waste user fee ordinances, zoning or land use ordinances, or ordinances prohibiting waste generated outside a local government’s boundaries from going to that local government’s facility. The amendment also protects existing bonds secured by user fees.
After reading Councilman Bob Anderson's thoughts and struggles with flow control, I thought it would be prudent to take the opposite position so the citizens can make an informed decision for themselves. Quite frankly, Georgetown is low on the concern scale based on the current numbers. The vast majority of waste generated in the County is staying in the county. According to DHEC's Solid Waste Annual Report for FY 2012, only 400 tons were disposed of outside the County - 11 going to Hickory Hill, 306 tons going to Oakridge, and 83 tons going to Horry County SWA. The Georgetown County Landfill also disposed of 105 tons from Horry County, which is the only waste that came in from outside the County. The Georgetown County landfill is a Class 3 landfill and has an annual tonnage limit of only 79,582 tons. At its permitted rate of disposal, it has 9 years left. At its current rate of disposal, it has 13.1 years of life left - not a huge amount of time in either event. Georgetown County does have a Class 2 C&D (Construction and Demolition Debris) that disposed of 17,420 tons in FY 2012. Generators in the County disposed of 34,931 tons in Class 2 landfills- so about half of the C&D waste did not go to the County landfill. Why the county would want to use up the remaining capacity of it's landfill's short life-span through the use of flow control is beyond me. But just in case Georgetown does decide to head down a path of Flow Control, below are some arguments for H3290 and against flow control ordinances enacted by counties across the state:
1. Flow control ordinances create government-owned monopolies.
A flow control ordinance is the mechanism by which a local government, usually a county, requires residents, businesses, and industries within its jurisdiction to send all their solid waste or recyclables to a government-owned or designated facility for processing, treatment, or disposal. Flow control results in the establishment of government-owned monopolies that can then charge above-market rates without fear of customers going elsewhere because they are prohibited from doing so.
2. Flow control ordinances are bad public policy.
Flow control ordinances allow a local government to be both a regulator and a competitor in the same market at the same time. The local government is able to use its governmental powers to force customers to use its services and facilities. Such ordinances can be devastating to private competitors and can force them out of markets with little notice after they have spent thousands of dollars and substantial time to permit and construct a facility or provide services. Flow control ordinances are thus highly anti-competitive and can drive up prices for taxpayers and businesses needing services. They are also contrary to the “business friendly” environment that is key to economic development.
3. H. 3290 prevents government-owned solid waste monopolies.
H. 3290 amends State law to make clear that flow control ordinances are inconsistent with State law and our State’s solid waste management program and are therefore invalid. As the Verdin-Hutto amendment makes clear, the bill does not prohibit local ordinances pertaining to solid waste or prohibit local governments from managing solid waste. H. 3290 simply prohibits one specific type of ordinance, i.e., a direct flow control ordinance, requiring solid waste or recyclables to be managed at facilities owned by or designated by the local government.
4. H. 3290 ensures fair competition for waste services.
H. 3290 ensures fair competition in the marketplace so that purchasers of waste services will have the benefit of competitive pricing and services. If this legislation is not passed, local governments will have the authority through flow control ordinances to force residents, businesses, and industries to use government-owned facilities, even when there is a more competitive and preferred option available in the private sector.
5. The General Assembly has the legislative authority to address flow control ordinances.
The General Assembly clearly has the authority to enact legislation establishing statewide general laws with which local governments must comply. Under Section 4-9-25 and Section 44-96-80(K), counties have the authority to enact ordinances; but, under both these sections, ordinances must not be inconsistent with the general law of the State. H. 3290 simply makes clear that flow control ordinances, and their anti-competitive impact, are inconsistent with State law and therefore invalid after the date of enactment of H. 3290.
In conclusion, I would like to point out that the legislature hasn't been taking their cues from lobbyists as suggested by some columnists. The South Carolina Business Roundtable issued a letter recently in support of H3290. The third paragraph of the letter contained the following endorsement: "Flow control is bad for South Carolinians. It results in the establishment of government-owned monopolies, which can then charge above-market rates to consumers who do not have a choice. Further, these ordinances allow a local government to be both a regulator and a competitor in the same market at the same time. Ultimately, flow control ordinances are highly anti-competitive and will drive up prices for taxpayers." This letter was signed by Otis Rawl, President and CEO of the SC Chamber of Commerce and Lewis Gosset, President and CEO of the SC Manufacturers Alliance; among others.
If Georgetown County is considering flow control, it should take a long hard look at the anti-competitive nature of such ordinances, and then consider the short life span of its own landfills.
Stephen Goldfinch Lives in Murrells Inlet and represents portions of Georgetown and Charleston counties in the South Carolina House of Representatives.
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