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As Flushable Manufacturer Sues, We Push Back

Monday, January 29, 2018  
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WEF and NACWA File Amicus Brief in Support of District of Columbia’s Wipes Law

 

Brianne Nakamura and Steve Spicer

 

On Nov. 14, 2017 the Water Environment Federation and the National Association of Clean Water Agencies filed an amicus brief in support of a District of Columbia law to regulate disposable wipes.

 

This law, the Nonwoven Disposable Products Act of 2016, aims to protect the sewer systems from backups by defining the term flushable for any disposable wipes sold within Washington, D.C., and requires manufacturers of non-compliant products to “clearly and conspicuously label” them as products that “should not be flushed.”

 

The Law

 

This law is the first successful attempt by any jurisdiction to enact legislation to define flushable officially for labeling, the brief states. The law provides that a “nonwoven disposable product” that is offered “for sale in the District” can be labeled as “flushable” only if it: “(A) Disperses in a short period of time after flushing in the low-force conditions of a sewer system; (B) Is not buoyant; and (C) Does not contain plastic or any other material that does not readily degrade in a range of natural environments.”

 

The D.C. Council passed the law unanimously in December 2016. As introduced, the bill prohibited the advertisement, packaging, or labeling of any nonwoven disposable product as flushable, sewer safe, or septic safe unless the claim is substantiated by competent and reliable scientific evidence. The bill authorizes the District Department of Energy and Environment to impose civil fines and penalties to sanction non-compliance with its provisions. The law requires the labeling rule to take effect Jan. 1, 2018, a deadline that the district is unlikely to meet.

 

The Call to Action

 

Since Washington, D.C. is a federal city, Congress has granted the city home rule authority to make and implement its own laws. But, the U.S. Congress also has retained jurisdiction over policies and budget matters; on occasion Congress has revoked district laws. In July 2017, some members of Congress suggested that they would take full advantage of this policy, by introducing a rider to the DC Appropriations Bill that would prevent the district from moving forward with the wipes legislation.

 

In response, WEF sent a letter of support to D.C.’s non-voting member of Congress Rep. Eleanor Holmes Norton and members of both the House and Senate Appropriations Committees to protect the district’s new law. Additionally, WEF issued a “Call to Action” to the WEF membership urging them to contact their senators and representatives to oppose the rider. The WEF Water Advocates program had a resounding response with 232 letters sent in just one week.

 

The Lawsuit

 

The Kimberly-Clark Corp. has sued the district to stop enforcement of the law. The plaintiff’s case states that requiring manufacturers to adhere to the definition set forth in the new law “restrains commercial speech and compels speech by private actors,” which would violate the First Amendment. The manufacturer’s claim further says that the law violates the Commerce Clause because it invalidly seeks to regulate the conduct of manufacturers in other states by imposing civil sanctions on conduct that is entirely lawful in other states.

 

The Amicus Brief

 

In the brief supporting the district’s right to enforce the law, WEF and NACWA state that they “have a strong interest in the Court rejecting the current challenges to the authority of state and local governments to decide which products may safely enter their own sewer and wastewater systems and to create mechanisms to enforce those standards.”

The 32-page brief describes the burden that wipes place on sewer systems in Washington, D.C., and nationwide. “The increased popularity of wipes marketed as ‘flushable’ has been accompanied by a rise in costly burdens associated with handling flushed wipes — burdens borne directly by municipalities, utilities, and ratepayers,” the amicus brief states.

 

The brief explains the effects of wipes that do not readily degrade. They can combine with fats, oils, greases, and other debris to cause major clogs in sewer and wastewater systems. They can accumulate in pump impellers; this leads to reduced efficiency, increased electrical power used by pumps, and, potentially, complete malfunction. To restore service, workers must perform the costly, time consuming, and hazardous task of physically unclogging the pumps.

 

The full brief can be read on the WEF website at http://bit.ly/DC-wipes-amicus.

WEF continues to support the District of Columbia law, as well as convey the burden that flushable wipes and other products can cause our infrastructure. We encourage our members to continue to share their stories and hardships with their communities and representatives, along with the messages to “Only Flush the 3Ps” and “Toilets are not Trashcans.”

 

 

 

Brianne Nakamura, PE, ENVSP, is the manager of Collection Systems and Sustainability in the Water Science & Engineering Center at WEF. She is the staff liaison for both the Collection System Committee and the Flushables Task Force. She can be contacted at bnakamura@wef.org.

 

 

 

 

 

 

Steve Spicer is the director of Content Creation and managing editor of Water Environment & Technology magazine at the Water Environment Federation (Alexandria, Va.). He can be reached at sspicer@wef.org.



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