Court rules C&D material not part of franchise.

A Nevada court has ruled that non-putrescible C&D debris is not a hazard to the public health, does not fall tinder the definition of solid waste and is not part of a waste collector's exclusive franchise.

According to a legal bulletin from the Environmental Industry Association, Douglas County, Nevada, had a franchise agreement with Douglas Disposal Inc. (DDI) that material allowed for self-had to a transfer station or landfill. Two other companies began hauling C&D in the franchise area, and DDI filed a suit against them, saying that Nevada law defines solid waste broadly to include non-putrescible refuse, including C&D debris.

The defendants argued that C&D waste is a non-putrescible and does not pose a health and safety issue. Because of it, it was outside Douglas County's franchise powers.

The court ruled that the county had exceeded its authority by including non-putrescible construction debris in the franchise agreement. It cited a 1975 Utah Supreme Court case that limited the scope of a similar franchise agreement because C&D material is not injurious to the public health and thus falls outside the county's policing power.

When the Nevada Legislature defined solid waste, the court said it did not grant the authority to displace competition and ruled the Nevada statute that included construction waste in the "other waste" provision unconstitutional, according to the legal bulletin.

"We have contended for a long time that C&D should not be included in a definition of solid waste that is covered under a franchise agreement because C&D is a different waste coming from a different waste stream," says William Turley, executive director of the Construction Materials Recycling Association and associate publisher of C&DR.

"Common sense tells you that. It looks like the court is recognizing common sense. But you can expect the landfill companies to fight this vehemently, because C&D has long been a cash cow for them as they divert it away from legitimate recyclers," Turley adds.

The EIA bulletin agrees with that assessment, saying, "Because franchises are often financially lucrative to the franchisee, and frequently reflect an economic and political decision made by local governmental officials, continued litigation over the scope of such franchises between competing haulers, and between haulers and local governments, can be expected."