Bill Kettlewell Excavating, Inc. v. Michigan Dept. of Natural Resources, 90-1361

• Decision Date: 16 July 1991
• Docket Number: No. 90-1361,90-1361
• Citation: 931 F.2d 413
• Parties: , 59 USLW 2727, 21 Envtl. L. Rep. 20,847 BILL KETTLEWELL EXCAVATING, INC., Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF NATURAL RESOURCES, David Hales, St. Clair County Health Department, John B. Parsons, St. Clair Metropolitan Planning Commission, Gordon Ruttan, St. Clair Solid Waste Planning Committee, Peg Clute, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 413

931 F.2d 413

32 ERC 2116, 59 USLW 2727, 21 Envtl.

L. Rep. 20,847

BILL KETTLEWELL EXCAVATING, INC., Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF NATURAL RESOURCES, David Hales, St Clair County Health Department, John B. Parsons, St. Clair Metropolitan Planning Commission, Gordon Ruttan, St. Clair Solid Waste Planning Committee, Peg Clute, Defendants-Appellees.

No. 90-1361.

United States Court of Appeals Sixth Circuit.

Argued Nov. 29, 1990.

Decided May 1, 1991.

Rehearing and Rehearing En Banc

Denied July 16, 1991.

Robert A. Fineman (argued), Daniel P. Perk, Honigman, Miller, Schwartz & Cohn Detroit, Mich., David R. Heyboer, Luce, Henderson, Bankson, Heyboer & Lane, Port Huron, Mich., for Bill Kettlewell Excavating, Inc.

Leo H. Friedman, Office of the Atty. Gen. of Mich., James E. Riley (argued), Thomas J. Emery, Raymond O. Howd, Office of the Atty. Gen. Natural Resources Div., Lansing, Mich., for Michigan Dept. of Natural Resources and David Hales.

Lawrence R. Ternan (argued), Margaret B. Kiernan, Beier, Howlett, P.C., Bloomfield Hills, Mich., Robert H. Cleland, County of St. Clair Prosecutor's Office, Port Huron, Mich., for St. Clair County Health Dept., John B. Parsons, St. Clair Metropolitan Planning Com'n, Gordon Ruttan, St. Clair Solid Waste Planning Committee and Peg Clute.

Before NORRIS, Circuit Judge, WELLFORD, Senior Circuit Judge, ^* and FORESTER, District Judge. ^**

WELLFORD, Senior Circuit Judge.

Plaintiff, Bill Kettlewell Excavating, Inc., d/b/a Fort Gratiot Sanitary Landfill (Kettlewell), has owned and operated a landfill in St. Clair County, Michigan since 1971. In 1988 the stock of Kettlewell was purchased by new owners and is allegedly controlled by out-of-state corporations. The new owners assert that since they bought Kettlewell's stock they need not reapply for a new landfill license, as demanded by the County defendants, and this issue is presently pending in the Michigan Court of Appeals. We need not address this issue in this opinion.

Kettlewell operates its private landfill under a 1987 license issued by the Michigan Department of Natural Resources (MDNR) pursuant to the Michigan Solid Waste Management Act (MSWMA), subsequently amended, and now challenged by plaintiff in the present controversy. Kettlewell seeks to handle and to dispose of solid waste from outside Michigan, claiming that it is no different in kind and character from in-state solid waste being currently handled at Fort Gratiot Sanitary Landfill.

The MSWMA provides for a state-wide regulatory scheme for disposal of solid waste and delegates much of the responsibility for planning to the individual counties. The MSWMA was amended in late 1988 to provide as follows:

A person shall not accept for disposal solid waste ... that is not generated in the county in which the disposal area is located unless the acceptance of solid waste ... that is not generated in the county is explicitly authorized in the approved county solid waste management plan.

Mich.Stat.Ann. Sec. 13.29(13a), [M.C.L.A. Sec. 299.413a].

In order for a disposal area to serve the disposal needs of another county, state, or country, the service ... must be explicitly authorized in the approved solid waste management plan of the receiving county.

Mich.Stat.Ann. Sec. 13.29(30)(2), [M.C.L.A. Sec. 299.430(2) ].

On February 13, 1989, Kettlewell submitted an application to the St. Clair County Solid Waste Planning Committee requesting authorization for disposal of solid waste, including out-of-state waste. In the application Kettlewell agreed to reserve sufficient space to dispose of all solid waste generated within St. Clair County for the next twenty years. Kettlewell's application was denied promptly by defendant Planning Committee.

There seems to be no disagreement that the County Solid Waste Planning Committee is merely an advisory body. The normal next step in approval for a landfill is approval by the County Board of Commissioners and two-thirds of the communities within the county. Once this approval is received final approval must then be obtained under the statutory scheme from the MDNR. The St. Clair County Board of Commissioners and MDNR have not yet acted on the application in question.

Within two weeks of the disapproval by the Planning Committee, Kettlewell sought declaratory judgment contending unconstitutionality of the amendments under the commerce clause in the district court. ¹ The defendants, MDNR, the County Health Department and its Planning Commission, brought a motion to dismiss on jurisdictional grounds which the district court first denied. ² Subsequently, the district court denied summary judgment to Kettlewell on the merits of the case. 732 F.Supp. 761.

Kettlewell contends that its application involving out-of-state solid waste was denied based on defendants' "policy to ban all out-of-state waste." Kettlewell's Brief at 2. The complaint states that the 1988 amendments to MSWMA impose "an absolute ban on the disposal of out-of-state waste without County approval," and that "MDNR and St. Clair [County] have, by prior legal action, indicated an intention not to permit Kettlewell to dispose of any solid waste originating from outside the State of Michigan at the Fort Gratiot Sanitary Landfill."

In a prior counterclaim filed in a Michigan court in a suit involving these parties, the County defendants stated:

St. Clair County has prepared a plan pursuant to Act 641 and it has been approved by the DNR Director. This plan, which adequately provides for the disposal of solid refuse within the county, does not include provisions for waste originating outside the county from being disposed of at facilities within the county, except for certain limited specified instances.

The answer of the County defendants conceded that the Planning Committee had decided not to allow disposition of out-of-state waste. The County defendants also indicated that an "update" of the St. Clair County Solid Waste Management Plan was "in the process of being prepared and submitted [to MDNR] for approval." MDNR denied there was any absolute ban on out-of-state waste, but admitted that the present County plan did not permit disposal of solid waste "originating outside of St. Clair County."

Under MSWMA each Michigan county is required to submit a 20-year solid waste management plan to provide for such waste generated in the county, or, under certain conditions, in another Michigan county. Each county is also required to update the plan every five years. The St. Clair County plan was approved by MDNR in 1983, and was, therefore, supposed to be updated in 1988.

An earlier Michigan decision bears upon the actions of MDNR under MSWMA prior to the amendments in controversy and Kettlewell's authority to dispose of solid waste from another Michigan county in St. Clair County. The Michigan Court of Appeals held in Fort Gratiot Charter Twp. v. Kettlewell, 150 Mich.App. 648, 389 N.W.2d 468 (1986), that the other Michigan county (Macomb) and St. Clair County both had to provide affirmatively for such intercounty transfer of solid waste in their solid waste management plans for Kettlewell to handle Macomb County solid waste in its landfill in St. Clair County. The absence of such affirmative action by St. Clair County was also challenged in that case by Kettlewell as violating its constitutional due process rights. The Michigan court held that there was no due process violation, no unreasonable classification, and no "taking" of Kettlewell's property under the circumstances. An additional Kettlewell challenge that MSWMA provided inadequate standards for issuance of permits and authority to dispose of out-of-county waste was deemed to be without merit. See 389 N.W.2d at 471. See also County of Saginaw v. John Sexton Corp., 150 Mich.App. 677, 389 N.W.2d 144 (1986) (to the same effect as to disposition of waste from one Michigan county to another under MSWMA).

Here the district court found, in substance, that the Michigan statute did not expressly favor in-state entities since out-of-state entities and other Michigan counties were treated equally. It also found that the amendments did not constitute an outright ban against out-of-state waste and that the incidental effects were not clearly excessive compared to the claimed local benefits. The court also found that the county's policy prohibiting all out-of-county waste from being imported was evenhanded and that the benefits of the policy outweighed its burden on interstate commerce so that there was no violation of the commerce clause as applied. Finally, the court dealt with the due process clause allegations by finding that the county's blanket prohibition of out-of-county waste importation obviated the need for guidelines for acceptance under the due process clause. Since the district court provided no relief upon its claim, Kettlewell now appeals.

We review the legal determinations of the district court de novo. We must ascertain, as did the district court, whether the MSWMA amendments represent on their face or as applied

basically a protectionist measure, or whether [they] can fairly be viewed as [ ] law[s] directed to legitimate local concerns, with effects upon interstate commerce that are only incidental.

City of Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.2d 475 (1978). If the amendments are simply aimed at economic protectionism, the defendants must hurdle a "virtual[ ] per se rule of invalidity" to survive constitutional challenge. Id. at 624, 98 S.Ct. at 2535. If, however, the amendments serve a legitimate public interest, and only incidentally burden interstate commerce, the amendments "will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970) (citing Huron Portland Cement Co. v. City of Detroit, 362...