Bonollo Rubbish Removal, Inc. v. Town of Franklin, 94 Civ. 10808 (MEL).

• Decision Date: 26 May 1995
• Docket Number: No. 94 Civ. 10808 (MEL).,94 Civ. 10808 (MEL).
• Citation: 886 F. Supp. 955
• Parties: BONOLLO RUBBISH REMOVAL, INC., Plaintiff, v. TOWN OF FRANKLIN, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

886 F. Supp. 955

BONOLLO RUBBISH REMOVAL, INC., Plaintiff, v. TOWN OF FRANKLIN, et al., Defendants.

No. 94 Civ. 10808 (MEL).

United States District Court, D. Massachusetts.

May 26, 1995.

COPYRIGHT MATERIAL OMITTED

Edward J. McCormick, III, McCormick & Maitland, Norfolk, MA, for Bonollo Rubbish Removal, Inc.

Mark J. Lanza, Canton, MA, for Mario DeBaggis, Bruce J. Hunchard.

Steven J. Comen, James J. Dillon, J. Anthony Downs, Goodwin, Proctor & Hoar, Boston, MA, for WMX Technologies, Inc.

Steven J. Comen, Ann L. Carpenter, James J. Dillon, J. Anthony Downs, Goodwin, Proctor & Hoar, Boston, MA, for Waste Management, Inc., Wheelabrator Millbury, Inc.

LASKER, District Judge.

In C & A Carbone, Inc. v. Town of Clarkstown, New York, ___ U.S. ___, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994), the Supreme Court declared that a municipal ordinance which required trash haulers to deliver solid waste to a specified transfer station, thereby forbidding them from depositing the waste out of state, violated the Commerce Clause of the United States Constitution. In December 1987, the town of Franklin, Massachusetts, through its Board of Health, enacted a by-law which fit the Carbone pattern. Bonollo Rubbish, Inc., the plaintiff in this case, was a trash hauler in and from Franklin.

In this action, Bonollo sues Franklin, officials of the Franklin Board of Health (collectively with the town itself, the "Town Defendants"), WMX Technologies, Inc., Waste Management, Inc. and Wheelabrator Millbury, Inc. (the last three, collectively, the "Corporate Defendants"), alleging violations of the Commerce Clause of the U.S. Constitution, the antitrust laws and the civil rights laws. Several motions are pending. Bonollo moves for summary judgment against the Town Defendants to declare the Franklin by-law invalid and to enjoin its enforcement. The Town Defendants cross-move to dismiss or, in the alternative, for summary judgment on Bonollo's Commerce Clause claims and its claims that the Town Defendants are liable for damages under 42 U.S.C. § 1983. The Corporate Defendants move to dismiss the complaint as to them.

Bonollo's motion to declare the by-law invalid is granted, but the request for injunctive relief against the town of Franklin is denied as moot. However, because the by-law did violate Bonollo's rights before it was amended in February 1995, the Town Defendants' motion is denied as to Bonollo's claim for damages under 42 U.S.C. § 1983 (that is, as to Count 6 of the complaint). The individual Town Defendants' cross-motion is granted as to all claims against them on the grounds of qualified immunity.

The Corporate Defendants' motion for summary judgment dismissing the complaint as to them is granted and Bonollo's motion to amend its complaint a second time to incorporate additional antitrust allegations against the Corporate Defendants is denied.

I.

This case stems from Franklin's efforts to dispose of its solid waste in an environmentally sound but cost-effective manner. As the Supreme Court observed in Carbone, "as solid waste output continues apace and landfill capacity becomes more costly and scarce, state and local governments are expending significant resources to develop trash control systems that are efficient, lawful, and protective of the environment." ___ U.S. at ___, 114 S.Ct. at 1680. Franklin is no exception.

Since 1987, the cornerstone of the town's trash control system has been a contract between it and Wheelabrator Millbury, by which the town has agreed to ship its solid waste to Wheelabrator Millbury's waste to energy facility in Millbury, Massachusetts. The contract provides for a set "tipping fee" per ton of solid waste delivered to the facility and requires Franklin to deliver a minimum number of tons of solid waste per year. Waste Management — a commercial hauler of solid waste — is a sister corporation of Wheelabrator Millbury. WMX Technologies, Inc. is the parent of both companies.

To coordinate the collection and removal of solid waste effectively and comply with the minimum tonnage requirement contained in the Wheelabrator Millbury contract, Franklin — through its Board of Health — enacted a series of by-laws outlining the requirements which haulers are obligated to meet to be eligible to haul trash in Franklin.¹ The regulatory scheme devised by the Franklin Board of Health divides haulers of residential solid waste into two categories based on the number of dwelling units contained in the residential buildings served by the hauler. Solid waste generated by residential buildings containing less than three dwelling units can be removed and transported only by a hauler who is under contract with the town of Franklin. Solid waste generated by residential buildings with three or more dwelling units is generally also removed and transported by haulers who are under contract with the town. However, persons not under contract (so-called "alternate haulers") are allowed to transport solid waste from buildings with three or more units if they acquire a permit from the town. As enacted in December 1987 and amended in July 1990, § 151.2 of Franklin's local code, the by-law at issue in the case at hand, provided:

§ 151.2 Permit issuance restrictions

A. No permit for the removal of solid waste from residential buildings (a residential trash collection permit) shall be issued by the Board of Health of the Town of Franklin pursuant to M.G.L. c. 111, § 31A, unless the following conditions are attached to said permit:

(1) All residential trash collected in the Town of Franklin shall be caused to be delivered to the Wheelabrator Millbury Incinerator in Millbury, Massachusetts, or to such other disposal facility as may be designated, in writing by the Town Administrator, in the name of and to the tonnage account of the Town of Franklin.

(2) If the permit holder receives direct payment from a customer for the collection of residential trash, the permit holder shall reimburse the Town in full, on a weekly basis and at the Town's contracted rate schedule, for tonnage caused to be delivered to the Town's designated disposal facility in the name of and to the tonnage account of the Town of Franklin. The permit holder shall submit a copy of weight scale receipts to the Town on a weekly basis....

Thus, to acquire a permit, would-be alternate haulers were required to agree, among other conditions, to use the Millbury facility exclusively for the disposal of trash collected in Franklin and to pay the tipping fees specified in the contract between Franklin and Wheelabrator Millbury. The by-law also provided that permit holders must submit a performance bond to secure Franklin's obligation to pay tipping fees and barred permit holders from delivering trash collected from other towns to the Wheelabrator facility. The latter requirement was intended to prevent non-Franklin trash from being counted toward Franklin's minimum tonnage requirement.

On or about November 28, 1990, Bonollo Rubbish applied for and received an alternate hauler permit to transport and remove residential solid waste from buildings with three or more dwelling units, subject to the by-law and the conditions outlined above. On April 27, 1994, the Franklin Board of Health revoked Bonollo's permit, effective June 30, 1994. The Board's stated reason for taking this action was Bonollo's failure to meet several conditions listed in the by-law, including the requirement that Bonollo deliver all waste collected in Franklin to the Wheelabrator Millbury facility. Bonollo does not contest the fact that it had been delivering waste collected in Franklin to other sites, including a facility located in Johnston, Rhode Island which charged a tipping fee of $42.00 per ton, as compared to the $59.76 per ton charged by Wheelabrator Millbury.

Upon the Board's decision to revoke its permit, Bonollo filed this suit, alleging that Franklin's actions violated rights guaranteed it by the Commerce Clause and seeking damages under 42 U.S.C. § 1983. Bonollo moved simultaneously for a preliminary injunction against the Town Defendants enjoining them from taking any action to rescind or revoke its residential trash permit.

It seems likely that the Carbone decision effectively dictated the parties' actions after May 14, 1994. On June 1, Judge Stearns issued an order stipulated to by the parties granting a preliminary injunction. On June 15, 1994, the Franklin Board of Health voted to reverse its April 27 decision and struck from Bonollo's permit the requirement that Bonollo deliver waste to the Wheelabrator Millbury facility. On February 15, 1995, the Franklin Town Council amended the by-law to provide that the requirement to deliver trash collected in Franklin to the Wheelabrator facility applies only to haulers operating under a contract with the town of Franklin (i.e., non-alternate haulers). Thus, the by-law no longer applies to Bonollo and Bonollo's alternate hauler permit was never actually revoked.

The original complaint named the Town Defendants only. On June 24, 1994, Bonollo filed an amended complaint restating its claims against the Town Defendants and alleging for the first time that the Corporate Defendants' actions had violated federal antitrust laws, specifically 15 U.S.C. §§ 1, 2 and 14, as well as the civil rights statute, 42 U.S.C. § 1983.

II.

Both the Town and Corporate Defendants move to dismiss the complaint as time-barred. The parties agree that the appropriate limitations periods are three years under M.G.L. c. 260, § 2A for claims grounded in alleged violations of the Commerce Clause and 42 U.S.C. § 1983, and four years under 15 U.S.C. § 15b for the antitrust claims. The defendants contend that the limitations period began running when the injuries Bonollo complains of originated — that is, when the by-law was enacted in its final form in 1990, in the case of the Town Defendants, and when the waste supply agreement between Wheelabrator Millbury and the...