Board of Health Enforces Flow Control Law

By: Elise R. Hugus
Published: 07/16/10

Falmouth Board of Health voted to implement a regulation that has not been enforced in 19 years last night, a decision that will force trash haulers to use the Upper Cape Regional Transfer Station.

At issue is the fact that commercial haulers have been circumventing a “flow control” rule that states all Falmouth’s trash should go to the UCTS, by bringing it instead to the Bourne waste management facility or directly to the SEMASS trash incinerator in Rochester.

Doing so saves the companies about half of the cost of disposal, but also has caused Falmouth and other Upper Cape towns to make up the shortfall in its contract with the UCRTS and Massachusetts Coastal Railroad, which transports the trash off-Cape.

 Facing a room packed with members of the solid waste advisory committee and several of the area’s commercial haulers, board of health Chairman James A. Vieira began the hearing with his opinion that his board should not be in charge of what is basically a financial matter.

“My concern is the practicality of enforcement. Is this truly a public health issue?” Mr. Vieira asked his fellow board members.

“I understand the financial ramifications and I recognize the town has to work as a team to solve these problems. That’s why I believe this process belongs somewhere other than the board of health.”

Mr. Vieira suggested that town committees work together to draft a bylaw on flow control, to be brought before the next Town Meeting for voters to decide. Reading a portion of the minutes from a board of health meeting in June 1991, he said that was the same recommendation that board members came up with 19 years ago.

“Obviously that didn’t happen. The ball was dropped,” he said.

Flow control 'legal and enforceable'

The only person who was on the board of health at the time is current member George R. Heufelder, who is also the director of the Barnstable Department of Health and Environment. While admitting responsibility for not following through on that motion, Mr. Heufelder said the board should now act on the opinion of Town Counsel Frank K. Duffy Jr., who said that flow control is legal and enforceable, in a statement released on June 29.

In that statement, Mr. Duffy referenced two US Supreme Court decisions regarding flow control, indicating that since the UCRTS is a public facility, the 2007 decision, United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, applies to Falmouth.

“The Supreme Court found the distinction between a private waste disposal facility and a public waste control facility important for consitutional purposes,” Mr. Duffy wrote.

Mr. Heufelder pointed out that the purpose of the regulation is to ensure the long-term stability of the trash disposal system, which is a public health issue.

“Collection implies there is a place for [the trash] to go. It’s within the board of health purview to make sure the trash gets picked up. We don’t like to use that tool, but if it’s the only tool in the box, you use it.”

Common cents?

As Carl F. Cavossa Jr. and William C. Sullivan Jr. of Cavossa Disposal, Donald Groseclose, the general manager of Allied Waste, and Jay Zavala, president of the Falmouth Chamber of Commerce, walked into the room, board member John B. Waterbury noted that the refuse regulation, first put into place in 1991, “has been completely off our radar screen.”

“What’s happened in the intervening years is that free enterprise has taken over. Private haulers decided in the absence of regulation that it’s more financially feasible to go somewhere else with their trash,” he said.

Board member Jared V. Goldstone agreed with Mr. Vieira that Town Meeting would be an appropriate venue for making a decision.

“The financial viability of commercial haulers is something we need to keep in the back of our minds,” he said.

However, to John Elliot, the Falmouth representative to the UCRTS board of managers, a rule is a rule. “Your rules and regulations are black and white. The haulers have completely defied the regulation,” he said. “Something has to be done. This can be enforced.”

Mr. Elliot also referred to a recent settlement between the Town of Mashpee and commercial haulers there.

“It was ridiculous. They have to bring 30 tons a year. It would be better if it was 30 tons a day,” he said, noting that on a recent day when both the Bourne dump and SEMASS were closed, commercial haulers brought 22 tons of trash to the transfer station.

Solid waste advisory committee member Daniel H. Shearer suggested that the board start enforcing the regulation until a bylaw passes at Town Meeting.

“I don’t want to pay for restaurant trash. I also don’t want it to not get picked up,” he said. “The average taxpayer has to pay for this. It’s not fair for you to pass this on to Town Meeting.”

Mr. Cavossa did not agree with Mr. Shearer that taxpayers are subsidizing his company or the dumpsters he hauls for local businesses.

“The shortfall is about the town entering into a contract that was sub-par to what the trucking contracts were offering,” he said, pointing out the intense competition for contracts in the waste industry.

Mr. Cavossa said that forcing his company and other haulers to abide by the regulation is “playing into the hands of big business.”

However, Mr. Groseclose said that Allied Waste abides by the rule, bringing “a majority” of what it picks up in Falmouth to the UCRTS.

“If you allow this [lack of regulation] to go forward, you’re saying it’s unenforceable and everyone will find alternatives [to the UCRTS],” he said. “You can’t ask national companies to follow the law but smaller companies to openly tell you they’re not going to follow it. We’d support an open market if everyone follows the same rules.”

Mr. Cavossa warned that if haulers have to pay double the amount they pay at Bourne to dispose of trash at the UCRTS, the added cost will impact local businesses. “If you force [haulers] to go to one facility, the pricing goes through the roof,” he said.

That statement was corroborated by Mr. Zavala, who questioned the impact of imposing flow control on the local economy. “I’m concerned about the impact this may have, not only on the business community. We’re talking about the economy we’re all part of,” he said.

Working towards compliance

Mr. Zavala suggested that a task force be formed to come up with a solution, composed of members of the chamber of commerce, the solid waste advisory committee, the board of health, selectmen, and representatives of the Department of Public Works, and the town administrator’s office.

Virginia Valiela, a former selectmen and a former employee of SEMASS, said that the contract signed by Upper Cape towns when they created the UCRTS was to ensure the viability of the transfer station.

“Businesses are part of our community, and the tonnage at the UCRTS should reflect that,” she said. “A level playing field is extremely important. If something is not done, we’ll have even more of a shortfall than we have now.”

After considerable discussion, Mr. Heufelder proposed a solution: the board of health will issue a letter to all the commercial trash haulers in Falmouth notifying them that the regulation will be enforced. The companies will then have two weeks to respond with a schedule showing how they plan to comply with the regulation to bring all their trash to the UCRTS.

“We can offer to sit down with them, but we’ll need to see a schedule and strategy. We should enforce this regulation in the interim of any other actions,” said Mr. Heufelder, who also made a motion to request that selectmen create a task force to develop an article for the Town Meeting warrant.

Both motions were approved unanimously by the board.

Mr. Groseclose thanked the board for its decision. “The motion is thoughtful and not intrusive to the private sector. It gives a reason to those honoring it to continue honoring it, and give those who aren’t an opportunity to do so,” he said.

As he left the meeting, Mr. Cavossa said, “With any luck, the transfer station will be closed by the time they finish” developing the bylaw.