Trash collector attacks logic behind FMCSA's non-domiciled ban

Waste Pro USA, a waste collection and recycling company with more than 2,000 registered trucks and drivers out of Longwood, Florida, has jumped into the legal battle over non-domiciled CDLs. 

In doing so, Waste Pro's legal counsel at Colombo & Hurd has taken on some of the key logical arguments against ending CDL eligibility for non-citizens. A new court filing raises an issue not addressed by FMCSA in its rulemaking: What about employers now shedding dozens of drivers?

Waste Pro filed an amicus brief with Jorge Rivera Lujan, the non-domiciled CDL holder whose petition to block the Federal Motor Carrier Safety Administration's 2025 ban on non-domiciled CDLs initially succeeded in court.  

[Related: Owner-op, unions challenge FMCSA's non-domiciled CDL ban]

FMCSA's second final rule cited different reasons for banning non-domiciled CDLs, and Lujan renewed his challenge, this time less successfully. Lujan's petition to stay the rule with a preliminary injunction has been denied, but the case is heading to oral arguments in September. 

Waste Pro argued that FMCSA's non-domiciled CDL ban has already taken 20 of its drivers off of the road, and that it leaves the company stuck paying overtime and scrambling to fulfill fixed-price municipal contracts. 

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"Removing these drivers doesn't solve a safety problem -- it creates one: understaffed routes, missed pickups, and the public health consequences that follow when waste collection fails," said Sarah Wilson, partner and federal immigration litigation practice leader at Colombo & Hurd.

Overdrive spoke to Wilson about Waste Pro's troubles with staffing drivers, and heard that Florida has been pretty aggressive in revoking non-domiciled CDLs. 

[Related: The states that actually revoked 'illegally' issued non-domiciled CDLs]

Waste Pro so far has lost 20 non-domiciled drivers, many of whom were not given a concrete reason for their loss of CDL, and the company has identified it has 30-40 such drivers in its Southwest Florida operations alone.

Wilson and Waste Pro argued that FMCSA's rule is straining the essential service of trash pickup, that the drivers can't easily be replaced, and the rule is removing proven, capable drivers rather than unknown applicants. 

Asked about FMCSA's reasoning that since non-citizens can't provide driving records with their CDL application, they're not held to the same standard as U.S. citizen drivers and therefore ineligible, Wilson took issue with the framing. 

"A large portion of our folks are people who have been here for a long time," said Wilson. "Several of the people have been here longer than ten years," enough time to produce full motor vehicle records. FMCSA therefore is "offering too blunt a remedy" to the problem of driver qualifications for non-citizens. 

"Waste Pro would also suggest that [FMCSA] should be thinking about other creative solutions," Wilson added. "This is a training issue," and states could potentially still ask for driving records from non-citizens. 

Wilson said FMCSA's initial rulemaking, which relied heavily on documenting deadly crashes by non-domiciled CDL drivers before the second rulemaking pivoted away from that reasoning, was evidence the agency was hard-pressed to justify the ban. 

"Seems as though they realized their initial justification wasn’t particularly strong," said Wilson. 

Furthermore, Waste Pro drivers go through training, drug tests, and additional layers of screening before getting behind the wheel. 

The logic echoes Lujan's initial successful legal challenge, where his lawyers argued that non-domiciled CDL drivers might actually even be safer than U.S. citizen drivers, as FMCSA was only able to cite five individual crashes involving non-citizen drivers in the first rulemaking attempt. 

FMCSA itself no longer pushes the crash statistics rationale, instead saying that state-level DMV employees can't evaluate foreign driving records or Employee Authorization Documents. On that front, Wilson said it's time for the federal government to get its act together. 

The Department of Labor, as a condition of granting EADs, must ensure it's "not inviting a workforce in that’s going to depress the wages of U.S. workers," she said. "That's not something that needs to be solved at the driver’s license level."

While U.S. DOT repeatedly calls out states for issuing CDLs to "illegal" immigrants and even a wanted terrorist, the Department of Homeland Security grants the work authorizations they use to get the CDLs, and DOL plays an administrative role in that process. 

[Related: Who is vetting 'wanted terrorist' CDL drivers?]

The CDL issuance level, then, "is the wrong place to try to solve" the federal government's mixed messaging on immigration, said Wilson. 

Still, the court in May ruled with FMCSA.

"States must assess the prior driving records of CDL applicants, yet they cannot access the foreign driving records of aliens domiciled abroad," the court wrote in its decision.

Also, large majorities of working owner-operators and drivers largely favor FMCSA's approach. In December, Overdrive polled more than 5,000 readers and found 88% overall favored DOT's move to oust non-domiciled drivers, 70% said the move would boost rates, and even 21% of non-citizens who could lose their CDLs under the rule supported the measure.

Follow this link to download full survey results published in December. 

Does Waste Pro invoke 'driver shortage' arguments? 

DOT has repeatedly poured cold water on the idea of a "driver shortage," saying there are plenty of American drivers ready to roll and that rates should go up. Why not simply offer more money to land more drivers? 

Waste Pro said it takes 60 to 75 days to fill a CDL-B sanitation truck driver role and that many of its contracts are with municipalities and sensitive sites that are on fixed prices. 

Waste Pro had offered more money for drivers, but the local nature of the work draws from only a small pool of local applicants, and the pay is probably still not competitive with long-haul trucking. 

FMCSA has to reply to Lujan's case by July 15, and in September, oral arguments can start on the merits of the case, potentially still blocking the rule.