Browning-Ferris, Inc. v. Anne Arundel County, Maryland

• Decision Date: 15 December 1981
• Docket Number: INCORPORATED,No. 151,BROWNING-FERRI,151
• Citation: 438 A.2d 269,292 Md. 136
• Parties: , 16 ERC 1863, 12 Envtl. L. Rep. 20,264 v. ANNE ARUNDEL COUNTY, MARYLAND.
• Court: Maryland Court of Appeals

Page 136

292 Md. 136

438 A.2d 269, 16 ERC 1863, 12 Envtl.

L. Rep. 20,264

BROWNING-FERRIS, INCORPORATED v. ANNE ARUNDEL COUNTY, MARYLAND.

No. 151.

Court of Appeals of Maryland.

Dec. 15, 1981.

Thomas M. Downs, Annapolis (Blumenthal, May, Downs & Merrill, P.A., Annapolis, on the brief), for appellant/cross-appellee.

Thomas G. Redman, Asst. County Sol., Annapolis, for appellee/cross-appellant.

Argued before SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

ELDRIDGE, Judge.

Seeking to control the transportation and depositing of various hazardous and toxic wastes, and radioactive materials within its borders, Anne Arundel County enacted two ordinances in 1979, Bill Nos. 158-79 and 159-79, codified as Anne Arundel County Code § 11-401 and § 11-408(g), (h) and (i). This case concerns the validity of several sections of the two ordinances.

The disputed provisions of the ordinances can be summarized as follows. Section 11-408(g)(1)(ii) absolutely prohibits the disposal in and transportation through Anne Arundel County of various hazardous wastes ¹ not originating in that county. Section 11-408(g)(1) mandates that all who would transport hazardous wastes through the county must have a license. The same section also requires a license to dispose of hazardous wastes in Anne Arundel County. In order to obtain either a transportation or a disposal license, a manifest must be submitted to the county detailing the quantity and type of waste involved. Section 11-408(g)(1)(i) provides that a cargo manifest also accompany in transit each shipment of hazardous wastes, and that the manifest be retained at the disposal site. Section 11-408(i) specifies a $1,000 annual fee for the license to transport hazardous waste through Anne Arundel County, required by § 11-408(g)(1). The licensing section also provides that each transporting vehicle of a licensee must be annually registered for a $50 fee (but the section states that the $1,000 license fee "shall include the first registered vehicle,") and be "regularly inspected."

Finally, § 11-408(g)(1)(iii) prohibits absolutely the disposal of radioactive materials in the county. And § 11-408(h) requires that a person obtain a "Certificate of Emergency Transport" in order to transport various radioactive materials through the county. Such a certificate is made available for $50 plus any additional amount necessary to cover the cost of inspection, supervision and escort services which are "prescribed by approving agencies." The time and route to be travelled are to be specified by the County Health Officer and the Chief of Police. Section 11-408(i) sanctions no more than four "emergency transports" per year without obtaining a hazardous waste transportation license for $1,000.

Browning-Ferris, Inc. is the owner and operator of a landfill located on Solley Road in Anne Arundel County, which is licensed by the State of Maryland to receive hazardous, but not radioactive, wastes. Browning-Ferris is also a hauler of hazardous (but non-radioactive) waste materials within Anne Arundel County. The county notified the corporation that compliance with the new regulations was expected, and, as a result of that notification, Browning-Ferris filed a petition in the Circuit Court for Anne Arundel County challenging the ordinances on various grounds and seeking declaratory and injunctive relief.

The circuit court (Wolff, J.) declared that § 11-408(g)(1)(ii) of the Anne Arundel County ordinance, prohibiting transportation through the county and disposal in the county of hazardous wastes originating outside of the county, violated the Commerce Clause of the United States Constitution, Art. 1, § 8, cl. 3. The court went on to declare that all other provisions of the ordinances relating to hazardous waste and radioactive materials transportation, in §§ 11-408(g)(1), 11-408(h) and 11-408(i), were void on the ground of federal preemption. On the other hand, the court upheld those portions of the ordinances in § 11-408(g)(1) regulating the disposal of hazardous wastes and prohibiting the disposal of radioactive materials in the county. Finally, the court permanently enjoined the county from implementing or enforcing § 11-408(g)(1) (including its subsections) as it pertained to transportation of hazardous wastes and radioactive materials, and §§ 11-408(h) and 11-408(i) in their entireties.

The county appealed, attacking the injunction and the declaratory judgment to the extent they struck down parts of the ordinances. Browning-Ferris appealed from the injunction and declaratory judgment insofar as they upheld the portions of the ordinances regulating hazardous waste disposal and prohibiting radioactive materials disposal in the county. This Court, on its own motion, granted a writ of certiorari before oral argument in the Court of Special Appeals.

I.

Section 11-408(g)(1)(ii) of the Anne Arundel County Code prohibits absolutely the transportation through and disposal in Anne Arundel County of hazardous wastes from any areas other than Anne Arundel County. ² In this respect, the ordinance is very similar to a New Jersey law, prohibiting importation of wastes into that state, which was struck down by the United States Supreme Court in Philadelphia v. New Jersey, 437 U.S. 617, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978). The New Jersey Supreme Court, at 68 N.J. 451, 348 A.2d 505, had upheld the act as advancing vital health and environmental objectives, while posing little burden upon interstate commerce. Philadelphia v. New Jersey, supra, 437 U.S. at 620, 98 S.Ct. at 2533. The Supreme Court disagreed, however, holding that the act "(o)n its face ... imposes on out-of-state commercial interests the full burden of conserving the State's remaining landfill space .... (T)he State has overtly moved to slow or freeze the flow of commerce for protectionist reasons." Id. at 628, 98 S.Ct. at 2537. The Court stated that the New Jersey act represented an "attempt by one State to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade." Ibid.

Although recognizing that New Jersey might well have had valid health and environmental or financial reasons for enacting the law in question, the United States Supreme Court held that it was impermissible in any case to accomplish these legitimate ends "by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently." Id. at 626-627, 98 S.Ct. at 2536-2537. ³

It is obvious that § 11-408(g)(1)(ii) of the Anne Arundel County Code does exactly what is forbidden by Philadelphia v. New Jersey. ⁴ The ordinance, while permitting transportation and disposal of hazardous waste under certain conditions if the waste originates within the county, nonetheless closes down the county's borders to all of those who would either transport or dispose of wastes originating from outside the county. Thus the ordinance overtly discriminates against articles in interstate commerce. Since no reason has been advanced for treating out-of-county wastes differently from in-county wastes, apart from their origin, we hold that § 11-408(g)(1)(ii) is void under Philadelphia v. New Jersey, supra, as impermissibly discriminating against articles in interstate commerce. ⁵ The county may not attempt to avoid what amounts to a problem of state and national scope by cutting itself off from the rest of the country. That is clearly prohibited by the Commerce Clause.

II.

Section 11-408(g)(1) requires that all who would transport hazardous wastes through Anne Arundel County have on file with the county an application and a license issued by the county. The same section requires that a manifest detailing the nature and quantity of each shipment also be on file with the county. ⁶ Section 11-408(g)(1)(i) requires that the manifest accompany all shipments of hazardous wastes through the county. ⁷ Section 11-408(i) imposes a $1,000 annual fee for obtaining the license required by § 11-408(g) (1). Section 11-408(i) also requires that "(e)ach transporting vehicle of a licensee shall be annually registered and regularly inspected," and subject to a fifty dollar additional registration fee. ⁸ No details are provided revealing the specific nature or frequency of the requisite vehicle inspections.

The licensing and manifest requirements apply with equal force to all hazardous wastes transported through the county, including hazardous wastes originating in Anne Arundel County. Unlike § 11-408(g)(1)(ii) dealt with in Part I of this opinion, these provisions do not discriminate against articles in interstate commerce, and so do not fall within the scope of Philadelphia v. New Jersey, supra. It is argued, however, that the licensing and manifest requirements impose an impermissible burden on interstate commerce.

A leading case in the Supreme Court on the subject of state-imposed burdens on interstate commerce is Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). In that case, Arizona required that essentially all cantaloupes grown and offered for sale in the state be packed according to mandatory specifications. The Supreme Court, in reviewing the validity of the measure in the context of whether it unduly burdened interstate commerce, indicated the general approach to follow in making such a determination (Pike v. Bruce Church, Inc., supra, 397 U.S. at 142, 90 S.Ct. at 847, quoted approvingly in Philadelphia v. New Jersey, supra, 437 U.S. at 624, 98 S.Ct. at 2535):

"Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.... If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the...