Environmental Waste Reductions, Inc. v. Reheis

• Decision Date: 01 February 1995
• Docket Number: Civ. A. No. 1:94-cv-1498-FMH.
• Parties: ENVIRONMENTAL WASTE REDUCTIONS, INC., Plaintiff, v. Harold REHEIS, Director, Environmental Protection Division, Georgia Department of Natural Resources, Defendants.
• Court: U.S. District Court — Northern District of Georgia

887 F. Supp. 1534

ENVIRONMENTAL WASTE REDUCTIONS, INC., Plaintiff, v. Harold REHEIS, Director, Environmental Protection Division, Georgia Department of Natural Resources, Defendants.

Civ. A. No. 1:94-cv-1498-FMH.

United States District Court, N.D. Georgia, Atlanta Division.

October 28, 1994.

Order Granting New Trial January 12, 1995.

Order February 1, 1995.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Patricia T. Barmeyer, King & Spalding, Atlanta, GA, for plaintiff.

Brenda Sue Hill Cole, State of Georgia Law Dept., Atlanta, GA, for defendants.

Order Granting New Trial on Attorney Fees January 12, 1995.

Consent Order on Attorney Fees February 1, 1995.

ORDER

HULL, District Judge.

This matter is before the Court for final decision after a bench trial on August 30, 1994. By agreement of the parties, the Court consolidated the hearing on the plaintiff's application for a preliminary injunction with the trial of the action on the merits of plaintiff's requests for a declaratory judgment and a permanent injunction. Fed. R.Civ.P. 65. After considering all of the evidence, reviewing the record and exhibits in their entirety, and hearing oral argument of counsel, this Court finds as follows.

I. FINDINGS OF FACT

All parties entered into an extensive stipulation covering and agreeing to the vast majority of the facts in this case. Where a stipulation is cited for the Court's finding of fact, the Court adopts and quotes from the parties' stipulation. If the Court's finding of fact is not based on the stipulation, but is based on other evidence in the record, then the Court will reference that evidence as well.

This action involves plaintiff's attempts for over two years to build and operate an advanced technology biomedical waste treatment facility in Quitman County, Georgia. Under Georgia law, biomedical waste is regulated as a form of non-hazardous solid waste. No environmental issues are presented herein. All parties stipulated that plaintiff's proposed facility more than satisfies all applicable federal and state environmental laws and regulations. Plaintiff's proposed facility will enhance environmental protection by disposing of biomedical waste currently sent to landfills or burned at aging on-site hospital incinerators, which are below environmental standards.

The issues herein concern whether certain provisions in Georgia's Comprehensive Solid Waste Management Act, O.C.G.A. ? 12-8-24, which impose on plaintiff's facility "Georgia need" restrictions, planning requirements and transportation limitations based on the geographic origin of the waste, violate the Commerce Clause of the United States Constitution. Plaintiff seeks a declaratory judgment that certain provisions in Georgia's Comprehensive Solid Waste Management Act are unconstitutional under the Commerce Clause; the State seeks to uphold its legislation.

A. THE PARTIES

1.

Plaintiff Environmental Waste Reductions, Inc. ("EWR") is a Georgia corporation with its principal place of business at 5940 Peachtree Road, Atlanta, Georgia 30341. Since December, 1991, EWR has been in the process of obtaining a solid waste permit (the "Permit") and other necessary permits and authorizations to construct and operate a biomedical waste incinerator in Quitman County, Georgia. Stipulations ("Stips"), ? 1.

2.

At the present time, plaintiff EWR is engaged in the business of transporting biomedical waste from generators of that waste, primarily hospitals and doctors' offices, to existing incinerators. EWR operates the biomedical waste collection and transportation business pursuant to a permit by rule. EWR presently operates, also by authority of a permit by rule, a transfer station in DeKalb County, Georgia, to transfer biomedical waste for further transportation and disposal. Stips, ? 2.

3.

Harold F. Reheis is the Director of the Environmental Protection Division of the Georgia Department of Natural Resources ("EPD") and, as such, is the permitting authority for EPD. Stips, ? 3.

B. THE PROPOSED FACILITY

4.

Plaintiff EWR proposes to construct and operate an advanced technology biomedical waste incinerator facility in Quitman County, Georgia ("the facility"). As set forth in the original application filed with defendant EPD on December 16, 1991, plaintiff's proposed incinerator was to operate at a capacity of 42 tons of biomedical waste per day. If operated in compliance with the Permit, air emissions from the facility will be below federal and state emissions limitations, there will be no process wastewater discharge from the facility, and the incinerator ash will be disposed of in a lined landfill in accordance with state and federal law. Stips, ? 6.

5.

The facility will be located in rural Quitman County, a county with a total population of less than 2,500 people. The facility will be located on Lower Lumpkin Road, approximately seven miles from the City of Georgetown, the county seat of Quitman County, a city of about 700 residents. The site is five acres of land, which is surrounded on all sides by timberland owned by Mead Paper Company, Burgin Lumber Company, and the individual from whom the site was purchased. The nearest residence is approximately 2? miles from the site. A church is located almost half a mile from the proposed facility. The site is approximately 10 miles from the boundary between Georgia and Alabama. Stips, ? 7.

6.

The proposed EWR facility will offer a convenient, cost-effective disposal alternative to both large quantity and small quantity generators of biomedical waste. Incineration at a state-of-the-art incinerator is far more protective of the environment than disposal of biomedical waste in unlined county landfills or incineration at aging on-site hospital incinerators. Stips, ? 14.

C. REGULATION OF BIOMEDICAL WASTE

7.

Biomedical waste is a defined term, O.C.G.A. ? 12-8-22(1.1) (1992), which is a subcategory of solid waste, O.C.G.A. ? 12-8-22(33) (1992).

8.

Biomedical waste consists, inter alia, of pathological waste, biological waste cultures and infectious stocks, and other waste from contaminated animals, sharps, chemotherapy waste, discarded medical equipment and parts, not including expendable supplies and materials which have not been decontaminated. Ga.Comp.R. & Regs. r. 391-3-4-.15. Incineration of biomedical waste is a more preferable means of disposal than a landfill because incineration destroys all pathogens, blood and tissue, leaving only inorganic ash. Doctors and hospitals have favored incineration over landfills because it reduces the public health concern. 1994 Reheis Deposition, P-Ex 30 at 25-27; see Stips ? 14.

9.

Until 1989, the Georgia law and regulations regarding solid waste made no distinction between biomedical waste and other solid waste. In 1990, as part of the Georgia Comprehensive Solid Waste Management Act, the General Assembly first defined the term and authorized the Board of Natural Resources to adopt regulations governing and controlling the handling of biomedical waste. O.C.G.A. ? 12-8-23(1)(E) (1992); Ga. Laws 1990, p. 412, ? 1. As recently as September, 1991, biomedical waste even from large quantity generators (100 pounds or more per month) could legally be disposed of at landfills in Georgia. Even under the current rules, biomedical waste from small quantity generators (less than 100 pounds per month) can legally be disposed of at landfills, if the landfill will accept the waste. Ga.Comp.R. & Regs. r. 391-3-4-.15(7)(b) (1993); Stips, ? 8.

10.

Most landfills in Georgia will not accept biomedical waste. Biomedical Waste Treatment/Disposal Capacity Need in Georgia, P-Ex 13 at 6. Many small quantity generators of biomedical waste (such as hospitals) choose to dispose of their biomedical waste at a biomedical waste treatment or disposal facility (usually next to the hospital or at an incineration facility) instead of at a landfill. Testimony of Armistead, P-Ex 35 at 7-8. Small quantity generators are authorized to dispose of their biomedical waste at municipal solid waste landfills. However, most landfills in Georgia, including privately-owned landfills, refuse to accept biomedical waste for disposal. (Director's Exhibits 10, 21). A small number of rural landfills in Georgia continue to accept biomedical waste generated by local doctors and clinics. Stips, ? 11; Director's Exhibit 7.

11.

Reuse and recycling are not particularly relevant to biomedical waste. EPD is "not taking any steps to promote recycling and reuse in the health care industry." 1994 Reheis Deposition, P-Ex 30 at 25-27. No one appears to contend that biomedical waste can be either reused or recycled.

12.

In his deposition, the Director admitted that in his capacity as head of EPD, he has acknowledged that "incineration, if properly designed, properly monitored, properly controlled, properly regulated, doesn't pose significant environmental risks." 1994 Reheis Deposition, P-Ex 13 at 16. Incineration of biomedical waste at plaintiff's permitted facility will not present environmental risks.

13.

Since proper permitted incineration of biomedical waste does not pose an environmental threat, the principal concern in the disposal of biomedical waste is to eliminate or reduce the exposure to the handlers and thus the public during the collection and transportation of biomedical waste. Special handling and treatment of biomedical waste can minimize and eliminate the threat of exposure during collection and transportation of biomedical waste. Reheis Deposition, p. 13.

D. ON-SITE INCINERATORS NEXT TO HOSPITALS IN MANY CITIES ARE OLD AND NOT AS TECHNICALLY SOPHISTICATED AS PLAINTIFF'S PERMITTED FACILITY

14.

With the onset of "universal precaution" practices among health care providers, more biomedical waste has been generated, and generators of biomedical waste, especially at hospitals, are increasingly concerned about potential liabilities associated with such waste. Stips, ? 12 15.

Hospitals...