Chambers Medical Technologies v. Jarrett, Civ. A. No. 2:90-1360-8.

• Decision Date: 19 January 1994
• Docket Number: Civ. A. No. 2:90-1360-8.
• Citation: 841 F. Supp. 1402
• Court: U.S. District Court — District of South Carolina
• Parties: CHAMBERS MEDICAL TECHNOLOGIES OF SOUTH CAROLINA, INC., Plaintiff, v. Michael D. JARRETT, as Commissioner of the South Carolina Department of Health and Environmental Control, and the South Carolina Department of Health and Environmental Control, Defendants.

841 F. Supp. 1402

CHAMBERS MEDICAL TECHNOLOGIES OF SOUTH CAROLINA, INC., Plaintiff, v. Michael D. JARRETT, as Commissioner of the South Carolina Department of Health and Environmental Control, and the South Carolina Department of Health and Environmental Control, Defendants.

Civ. A. No. 2:90-1360-8.

United States District Court, D. South Carolina, Charleston Division.

January 19, 1994.

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COPYRIGHT MATERIAL OMITTED

Bradford W. Wyche, Greenville, SC, for plaintiff.

Ellison D. Smith, IV, Charleston, SC, Samuel Leon Finklea, III, SC DHEC Office of General Counsel, T. Travis Medlock, J. Patrick Hudson, S.C. Atty. General's Office, Columbia, SC, for defendants.

ORDER

BLATT, Senior District Judge.

FINDINGS OF FACT/BACKGROUND

The plaintiff, Chambers Medical Technologies, challenges the constitutionality of several provisions of both the South Carolina Infectious Waste Management Act, S.C.Code Ann. §§ 44-93-10 et seq. ("the Act") and the regulations promulgated thereunder by the South Carolina Department of Health and Environmental Control ("DHEC"), Reg. 61-105. The original plaintiff in this case was Southland Exchange Joint Venture which owned a facility that incinerated medical, municipal solid and commercial non-hazardous waste in Hampton, South Carolina. On June 20, 1990, Southland instituted this action challenging two of the 1990 amendments to the Act that were to have taken effect on July 1, 1990: (1) an increase in the fees payable by a commercial waste facility from $18 per ton to $30 per ton for out-of-state medical waste and from $13 per ton to $25 per ton for in-state medical waste, S.C.Code Ann. § 44-93-160; and (2) the imposition of a 50 ton per day limit on the amount of medical waste that could be treated at any commercial medical waste facility, unless the amount of medical waste generated in South Carolina warranted a higher amount, S.C.Code Ann. § 44-93-210.

On June 26, 1990, this court granted Southland's preliminary injunction motion and enjoined the defendants from enforcing these two amendments to the Act. On May 16, 1991, Chambers acquired the facility from Southland. On November 25, 1991, this court granted Chambers' motion to be substituted for Southland as plaintiff herein and for leave to file an amended complaint. This case was tried before the court, sitting without a jury, on November 4 and 5, 1992. Proposed orders were filed by both parties on or about March 9, 1993.

In its amended complaint, Chambers challenges the following provisions of both the Act and the Regulation under the commerce clause, the equal protection clause and the due process clause of the United States Constitution:¹

1. The Blacklisting Provision — § 44-93-110

2. The Demonstration of Need Provision — § 44-93-125, Reg. 61-105 V(1) and (3)

3. The Fluctuating Treatment Cap, — § 44-93-210, Reg. 61-105 V(2)

4. The Backhauling Provision, — Reg. 61-105 Q(1)(h)

5. The Refrigeration Rule, — Reg. 61-105 K(5)

6. Treatment Fees, — § 44-93-160

7. Generator Fees — Reg. 61-105 CC(2)

8. Transporter Fees — Reg. 61-105 CC(3)

9. Permit Fee — Reg. 61-105 CC(4)²

Chambers owns the only commercial facility in the state which incinerates infectious medical waste, although over 40 hospitals in the state currently incinerate their medical waste³. Tr. 228-29. More than 98% of the infectious waste treated at the facility by Chambers comes from outside the State of South Carolina. Tr. 38-39. Chambers' customers include over 2,000 individual generators, most of whom send medical waste to the facility through brokers. Tr. 234. The infectious waste handled at the facility consists primarily of bandages, bedding, dressing gowns and empty intravenous bottles. Tr. 29. A small portion of infectious waste consists of sharps (needles), blood products and pathological waste. Tr. 29-30; 256. During its ownership of the facility, Southland had problems associated with receiving leaking containers of medical waste. Chambers, however, has reduced the number of leaking containers to one-tenth of one percent of all shipments (one container for every 1000). Tr. 129.

All waste products contain microorganisms, a few of which are "infectious", or capable of causing disease or illness. For disease to occur, however, there must be a "portal of entry" whereby the microorganism can enter an individual's bloodstream. With the exception of tuberculosis and chicken pox, breathing is not a "portal of entry" for any infectious microorganisms. Most microorganisms gain entry only by actually being injected into, or ingested by, the individual. Tr. 259-60. Household waste contains an average of 100 times as many infectious microorganisms as medical waste. Tr. 260. Most microorganisms quickly die upon being subjected to temperatures of 200 to 300 degrees fahrenheit. There is no evidence that any microorganism can survive temperatures of 1000 degrees Fahrenheit. Tr. 262. Waste in the facility's primary chamber, where incineration takes place, is subjected to a temperature of 1,600 degrees Fahrenheit for approximately six and one-half hours. Tr. 124. There is no evidence that a member of the public or any waste industry worker has ever acquired an infection from medical waste. Tr. 247-48; 260-61.

There is no dispute that this country is experiencing vast problems with waste disposal. Waste flow is increasing at a rapid rate while available landfill space is decreasing because of the unattractive nature of, and the risks associated with, landfills. States which provide waste disposal at a lower cost have experienced a great increase in out-of-state waste being brought into their states. South Carolina, like other states, has attempted to deal with this influx of out-of-state waste with legislation which discourages out-of-state waste. While this court acknowledges South Carolina's plight in trying to protect the health and safety of the environment and its citizens, legislation which violates the commerce clause must be declared unconstitutional. It is not unconstitutional for South Carolina to regulate the total volume of waste being disposed of in South Carolina; however, it must be achieved through means which do not discriminate against out-of-state waste. See Chemical Waste Management, Inc. v. Hunt, ___ U.S. ___, ___, 112 S.Ct. 2009, 2015, 119 L.Ed.2d 121 (1992).

ANALYSIS

As a threshold matter, the defendants contend that the plaintiff lacks standing to challenge three of the provisions in question: the generator fees, the blacklisting provision and the demonstration of need requirement. As enumerated in Lujan v. Defenders of Wildlife, ___ U.S. ___, ___, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992), the Supreme Court has established that the constitutional minimum for standing must contain three elements: first, the plaintiff must have suffered an "injury in fact" — an invasion of a legally-protected interest which is concrete and particularized⁴, Allen v. Wright, 468 U.S. 737, 756, 104 S.Ct. 3315, 3327, 82 L.Ed.2d 556 (1984); Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-741, n. 16, 92 S.Ct. 1361, 1368-1369, n. 16, 31 L.Ed.2d 636 (1972) and is "actual and imminent, not `conjectural' or `hypothetical,'" Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1723, 109 L.Ed.2d 135 (1984). Second, there must be a causal connection between the injury and the challenged conduct. The injury has to be "fairly ... traceable to the challenged action of the defendant, and not ... the result of the independent action of some third party not before the court." Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976). Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." Id., at 38, 43, 96 S.Ct. at 1924, 1926. The party invoking federal jurisdiction bears the burden of establishing these elements. See FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607, 107 L.Ed.2d 603 (1990).

The defendants contend that plaintiff lacks standing to challenge the "blacklisting" provision, S.C.Code Ann. § 44-93-110⁵, because there has been no showing that any state has been blacklisted nor has plaintiff shown that it accepts waste from any blacklisted state. Chambers counters that even if no state is currently blacklisted, it will have to incur expenses to monitor the laws of all of the states from which it receives medical waste to ensure that none of them at any time ever bans the treatment or disposal of medical wastes. Plaintiff has not yet suffered an actual injury; however actual injury need not be shown; the mere risk of future injury is a sufficient "injury in fact" to support standing; thus, it is enough for standing purposes to show only a "threatened" injury. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). This court finds that the plaintiff has alleged a sufficient injury in fact in light of § 44-93-150, which provides the South Carolina Department of Health and Environmental Control (DHEC) with the authority to impose a civil penalty of up to $10,000.00 per day for any violation of the act or a regulation promulgated thereunder. As a result, the court concludes that the plaintiff is faced with sufficient threat of injury adequate to meet the standing requirements necessary to challenge the "blacklisting" provision.

The defendants next contend that plaintiff lacks standing to challenge the "generator fees"⁶ imposed by Reg. 61-105 CC(2), because the plaintiff is not a generator of medical waste. The plaintiffs contend that generators usually demand from treatment facilities, such as the plaintiff, a "turnkey" contract covering the collection, transportation, treatment and disposal of medical waste, much like an individual requires from his or her...