The Water Environment Federation (Alexandria, Va.) and the National Association of Clean Water Agencies (Washington, D.C.) 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 sewer systems from backups by requiring a regulation that defines the term flushable for any disposable wipes sold within Washington, D.C. It requires manufacturers of non-compliant products to “clearly and conspicuously label” them as products that “should not be flushed.”
The Kimberly-Clark Corp. (Dallas, Texas) has sued the District to stop enforcement of the law. The plaintiff’s case states that making manufacturers adhere to the definition required by 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.”
This law is the first 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 District Department of Energy and Environment will promulgate a rule that defines the technical definition of this.
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 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, leading 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 next steps
The court is scheduled to hear oral arguments on Dec. 13 on the plaintiff’s motion for preliminary injunction. The court has put all other elements of the case on hold until it decides on the preliminary motion.
Download a PDF of the amicus brief