Companies challenge 1984 cap on refuse; loss would hit rates

NORTH BAY – Six disposal companies in Sonoma and Marin counties have joined a federal lawsuit seeking to overturn a measure to cap the amount of solid waste flowing into a Solano County landfill.

The suit, led by Potrero Hills landfill owner Waste Connections in Folsom, seeks to dispatch as unconstitutional Measure E, passed in 1984 by Solano voters to limit trash imports to 95,000 tons a year. In 2004, the landfill took in about 900,000 tons, 80 percent of which was generated outside the county, according to the suit.

Sonoma County exports 50 percent to 60 percent of its solid waste to the Potrero Hills landfill. Novato Disposal Service, Redwood Empire Disposal, Rohnert Park Disposal, Santa Rosa Recycling and Collection, West Sonoma Disposal and Windsor Refuse are parties in the lawsuit. With the exception of Empire Disposal, they are all under Santa Rosa-based North Bay Corp.

Most of Napa County's waste stream goes to a transfer station and then to the Keller Canyon landfill in Contra Costa County.

"Cities in Sonoma and Marin need to ensure the capacity for disposal is adequate," said North Bay director of government affairs Steve McCaffrey.

"Rate payers could see their bills soar if waste has to be transferred to landfills at a greater distance."

The measure hasn't been enforced since 1992, when Solano County attorneys deemed it possibly unconstitutional in light of a U.S. Supreme Court decision involving parties in another state.

"Proponents of the measure have tried multiple times without success to get the county to recognize its applicability to Potrero Hills," said Ron Mittelstaedt, CEO and chairman of Waste Connections. "It's time to lay this issue to rest with a federal ruling."

His company acquired the landfill as part of court-ordered divestiture and has plans to expand it, which reactivated opposition to the regional landfill.

The Northern California Recycling Association; the Sustainability, Parks, Recycling and Wildlife Legal Defense Fund; and the Sierra Club are among plaintiffs suing in the Solano courts to enforce the measure.

"These groups say they represent environmental interests, but the issue is really financial," said Mr. Mittelstaedt. "They don't want recyclable material leaving their own areas, which are not competitive with Solano, and they're asking the government to make sure it doesn't. That amounts to a subsidy."

It's in the interest of the public to allow waste, like any commercial goods, to cross county and state lines, he said.

"If a county can limit the passage of goods across its borders, so can a state."

According to Kelly Smith, a Sacramento attorney for the legal defense group, the coalition of disposal companies "is trying to pull an end run around the state court. This is a private interest action, not public. It's the goal of my clients to close or at least prevent the expansion of all landfills."

Regional landfills, he said, create bargain basement prices for waste disposal and dampen efforts to recycle.

"If a jurisdiction can take care of its own waste, it should," said Mr. Smith.

A long-time opponent of Potrero Hills expansion is former Solano County supervisor and Sierra Club member Duane Kromm.

"The site sits at the edge of Suisun marsh, a very sensitive area," he said.

Recognizing the impact of the landfill on the wetlands, Waste Connections pays a portion of the Portrero Hills landfill fees to the Suisun Resource Conservation District to improve waterfowl habitat.

Waste Connections owns about 300 acres at the edge of a large valley. If Potrero Hills expands to double its current size, as planned, it will fill another third of the valley.

"That land is habitat to tiger salamanders and many threatened species. It could be used for mitigation," said Mr. Kromm.

Counties like Alameda and Marin, he pointed out, charge high fees for solid waste disposal and use the money for recycling and diversion programs.

"We have nothing like that in Solano. And disposal fees are so low, we've become the Wal-Mart of dumping sites."

John Moore, the Berkeley attorney representing the Northern California Recycling Association in the Solano County suits, is confident the federal judge will refer the matter back to the local courts.

"Measure E is not unconstitutional. It's clearly a matter of intrastate commerce, not interstate, and volume caps have been ruled admissible in the past," he said.

Parties in the federal suit are equally confident that the court will find that Measure E discriminates against out-of-county waste.

Locally, the concern is about higher rates.

"When supply (of available landfill) stays the same or dwindles, and demand doesn't go away, rates will climb. It's inevitable," said Mr. McCaffrey.