BFI files second appeal of waste fee

BFI files second appeal of waste fee

By Philip Moulden

Daily Journal

Browning-Ferris Industries has filed a second appeal of Tupelo’s commercial waste permit ordinance, challenging a Dec. 19 City Council decision setting a yearly franchise fee of $98,500 to operate in the city.

BFI charges the fee constitutes an unlawful tax not authorized by state law and was approved in an attempt to further a monopoly in the city’s commercial waste business.

The company, which is seeking to break Waste Management Inc.’s hold on the commercial hauling market, last month filed a similar appeal of a Dec. 5 council action that led to the Dec. 19 vote.

BFI attorney Ben Logan said a third appeal is expected to be filed after the city publishes the text of the ordinance, the final act before it becomes effective. Logan said the company elected to file the multiple appeals to make certain its case isn’t derailed by legal technicalities.

Although it apparently was never issued a commercial permit under city ordinance, Waste Management has held a “non-exclusive” commercial franchise under its 1983 contract to collect the city’s residential waste. That contract was last extended in 1993.

Under the pact, Waste Management has been paying the city at least $95,000 a year for the commercial rights. But the contract, which runs through July 1999, permits Waste Management to halt payment of that or any fee if another commercial hauler is permitted to operate in Tupelo.

The council’s ordinance provides that the franchise fee will drop to $10,000 a year, plus 5 percent of revenues, after Waste Management’s contract expires. But if that fee is reasonable in 1999, it should be reasonable now, BFI said.

BFI argued that the $98,500 permit fee was “arbitrary and capricious, utterly unreasonable and extravagant” and “confers special privileges” to Waste Management, which has locked in commercial customers for at least three years.

The fees “are not a regulation of business, but an excess infringement on the right to carry on a business, and therefore violated due process,” BFI’s court challenge claims.

It also contends that a $10,000 industrial waste hauling fee, also approved Dec. 19, is unconstitutional because it impairs BFI’s existing contracts with local industries, contracts made when there was no charge for the permit. Waste Management’s pact also granted industrial privileges.

The new ordinance “constitutes an ex post facto law making it a crime for BFI to pick up industrial accounts, whereas before the passage of the ordinance on Dec. 19, 1995, the collection of industrial solid waste was a lawful and unregulated activity,” the appeal states.

City officials contend the loss of Waste Management’s revenue, which is used to subsidize residential pickup, would boost home pickup fees by 75 cents a month.

But supporters of a lower fee claim that disposal costs for Three Rivers Solid Waste Management Authority, of which Tupelo is a member, would drop by up to $1.80 a ton if the city’s commercial waste was taken to its landfill in Pontotoc County.

Under its contract, Waste Management may carry its commercial garbage to its own landfill in Chickasaw County unless directed to another site by its commercial customers.

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