Gilliam County v. Department of Environmental Quality of State of Or.

• Citation: 316 Or. 99,849 P.2d 500
• Parties: , 24 Envtl. L. Rep. 20,065 GILLIAM COUNTY, Oregon, and Oregon Waste Systems, Inc., Petitioners on Review, v. DEPARTMENT OF ENVIRONMENTAL QUALITY OF the STATE OF OREGON, Respondent on Review. COLUMBIA RESOURCE COMPANY, L.P., a Washington Limited Partnership, Petitioner on Review, v. ENVIRONMENTAL QUALITY COMMISSION, Respondent on Review. DEQ 45-1990; CA A68441 (Control), CA A68455, SC S39659, SC S39658.
• Decision Date: 15 April 1993
• Court: Supreme Court of Oregon

Page 500

849 P.2d 500

316 Or. 99, 24 Envtl. L. Rep. 20,065

GILLIAM COUNTY, Oregon, and Oregon Waste Systems, Inc., Petitioners on Review, v. DEPARTMENT OF ENVIRONMENTAL QUALITY OF the STATE OF OREGON,

Respondent on Review.

COLUMBIA RESOURCE COMPANY, L.P., a Washington Limited Partnership, Petitioner on Review, v. ENVIRONMENTAL QUALITY COMMISSION, Respondent on Review.

DEQ 45-1990; CA A68441 (Control), CA A68455, SC S39659, SC S39658.

Supreme Court of Oregon,

In Banc.

Argued and Submitted March 4, 1993.

Decided April 15, 1993.

John DiLorenzo, O'Connell, Goyak & DiLorenzo, Portland, argued the cause and filed the petition, for petitioner on review Columbia Resource Co., L.P. With him on the petition was Michael E. Farnell.

J. Laurence Cable, Cable, Huston, Benedict, Haagensen & Ferris, Portland, argued the cause, for petitioner on review Oregon Waste Systems, Inc. James E. Benedict filed the petition for review. With Mr. Benedict on the petition was James M. Coleman, O'Donnell, Ramis, Crew & Corrigan, Portland, who waived argument, for petitioner on review Gilliam County, OR.

[316 Or. 101-A] Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause, for respondents on review. With him on the response to the petition were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

GRABER, Justice.

At issue in this case is the validity of regulations imposing a per-ton surcharge on the disposal in Oregon of solid waste generated outside the state. ORS 459.297(1) provides:

"Beginning on January 1, 1991, every person who disposes of solid waste generated out-of-state in a disposal site or regional disposal site shall pay a surcharge as established by the Environmental Quality Commission under ORS 459.298. The surcharge shall be in addition to any other fee charged for disposal of solid waste at the site."

ORS 459.298 provides:

"Subject to approval by the Joint Committee on Ways and Means during the legislative sessions or the Emergency Board during the interim between sessions, the Environmental Quality Commission shall establish by rule the amount of the surcharge to be collected under ORS 459.297. The amount of the surcharge shall be based on the costs to the State of Oregon and its political subdivisions of disposing of solid waste generated out-of-state which are not otherwise paid for under the provisions of [statutes relating to solid waste disposal, domestic solid waste disposal, and household hazardous waste disposal]. These costs may include but need not be limited to costs incurred for:

"(1) Solid waste management;

"(2) Issuing new and renewal permits for solid waste disposal sites;

"(3) Environmental monitoring;

"(4) Ground water monitoring; and

"(5) Site closure and post-closure activities."

As authorized by ORS 459.297 and 459.298, the Environmental Quality Commission (EQC) promulgated rules pertaining to the disposal of solid waste. OAR 340-61-115(1) provides in part:

"Beginning July 1, 1984, each person required to have a Solid Waste Disposal Permit shall be subject to a three-part fee consisting of a filing fee, an application processing fee and an annual compliance determination fee as listed in OAR 340-61-120. In addition, each disposal site receiving domestic solid waste shall be subject to an annual recycling program implementation fee as listed in OAR 340-61-120, and a per-ton fee on domestic solid waste * * *. In addition, each disposal site or regional disposal site receiving waste generated out-of-state shall pay a surcharge * * *."

OAR 340-61-120(6) provides:

"Surcharge on disposal of waste generated out-of-state. Each solid waste disposal site or regional solid waste disposal site that receives solid waste generated out-of-state shall submit to the Department of Environmental Quality a per-ton surcharge of $2.25. This surcharge shall apply to each ton of out-of-state waste received at the disposal site[.]"

Petitioners Oregon Waste Systems, Inc., Columbia Resource Company, L.P., and Gilliam County, Oregon, ¹ sought judicial review of OAR 340-61-115(1) and 340-61-120(6) in the Court of Appeals pursuant to ORS 183.400. ² Petitioners argue that, because ORS 459.298 requires approval of the amount of the surcharge by the Joint Ways and Means Committee or by the Emergency Board and because those approval provisions are not severable from the remainder of the statute,

ORS 459.298 violates Article I, section

21; ³ Article III, sections 1 ⁴ and 3; ⁵ Article IV, section 25; ⁶ and ARTICLE V, SECTION 15B, OF THE OREGON CONSTITUTION⁷. As a result, they argue, the implementing regulations also are invalid. In the alternative, petitioners argue that, even if ORS 459.298, OAR 340-61-115(1), and OAR 340-61-120(6) are valid under the Oregon Constitution, they are invalid because they impermissibly discriminate against interstate commerce in violation of the Commerce Clause, ARTICLE I, SECTION 8, CLAUSE 3, OF THE CONSTITUTION OF THE UNITED STATES⁸.

Respondent Department of Environmental Quality (DEQ), the state agency for which EQC is the policy making body, concedes that, "to the extent [that ORS 459.298] subjects DEQ's surcharge determination to Emergency Board approval," that statute is unconstitutional under Article III, sections 1 and 2, ⁹ and Article IV, section 25, of the Oregon Constitution. DEQ argues, however, that that portion of the statute is severable and that the remainder of the statute and its accompanying regulations are valid under the Oregon Constitution and under the Commerce Clause, Article I, section 8, clause 3, of the Constitution of the United States.

The Court of Appeals accepted DEQ's concession as to the unconstitutionality of the portion of ORS 459.298 relating to approval of the surcharge by the Emergency Board, concluding that that portion violates Article III, section 3, of the Oregon Constitution. Gilliam County v. Dept. of Environmental Quality, 114 Or.App. 369, 375-76, 837 P.2d 965 (1992). The Court of Appeals concluded that the portion of ORS 459.298 relating to approval of the surcharge by the Joint Committee on Ways and Means also is unconstitutional, because it violates Article IV, section 25, of the Oregon Constitution. Id. at 379-80, 837 P.2d 965. The court held, however, that those portions of the statute are severable and that "the language that remains after both approval provisions are deleted is still a workable statute that contains clear standards for EQC to follow." Id. at 378, 382-383, 837 P.2d 965. Next, the Court of Appeals held that OAR 340-61-115(1) and 340-61-120(6) do not violate the Commerce Clause, because the surcharge imposed on out-of-state waste is a permissible "compensatory fee for specific costs incurred by the state" in the disposal of that waste and because, under the scope of review granted to the court by ORS 183.400, the court could not say that the amount of that fee either impermissibly exceeds those state costs or is insufficiently related to the services provided by the state in relation to disposal of out-of-state waste. Id. at 383-88, 837 P.2d 965. We affirm the decision of the Court of Appeals.

We begin by considering petitioners' state law claims. See State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983) (court decides questions of state law before reaching federal constitutional issues). Further, "[t]his court follows the principle that constitutional issues should not be decided when there is an adequate statutory basis for a decision." Planned Parenthood Assn. v. Dept. of Human Resources, 297 Or. 562, 564, 687 P.2d 785 (1984).

In a challenge to a regulation under ORS 183.400(4), this court first decides whether the regulation was promulgated according to applicable rulemaking procedures. ORS 183.400(4)(c). We then decide whether the promulgation of the regulation was within the jurisdictional authority of the promulgating agency and whether the substance of the regulation neither departed from the legal standard expressed or implied in the enabling statute, nor contravened any other applicable statute. ORS 183.400(4)(b). Only after determining that the regulation meets those requirements do we consider the question whether the regulation violates any provision of the Oregon or United States Constitution. ORS 183.400(4)(a). See Planned Parenthood Assn. v. Dept. Of Human Resources, supra, 297 Or. at 565, 687 P.2d 785 (setting forth that three-part analysis).

First, petitioners make no contention that the challenged regulations were "adopted without compliance with applicable rulemaking procedures," namely, the rulemaking procedures established by ORS 459.298. ORS 183.400(4)(c).

Next, as petitioners concede, EQC had jurisdictional authority to promulgate OAR 340-61-115(1) and 340-61-120(6). Petitioners do not contend that those regulations depart from the legal standards expressed or implied in the authorizing statute, ORS 459.298.

Petitioners contend, however, that, because the regulations include the cost of out-of-state waste reduction certification as a component of the surcharge, they contravene ORS 459.305. We disagree. ORS 459.305(1) provides that disposal sites may not accept waste generated outside the county in which the site is located unless DEQ certifies that the latter area has implemented a recycling program. ORS 459.305(4) permits DEQ to establish, according to the rulemaking procedures provided in ORS 468.065, a certification fee in relation to that requirement. Nothing in ORS 459.305 or 468.065 prohibits DEQ from including the cost to the state of certifying out-of-state waste reduction programs as a component of the surcharge authorized under ORS 459.298.

For the above reasons, we conclude that OAR 340-61-115(1) and 340-61-120(6) are not invalid under ORS 183.400(4)(b) in any of the particulars urged by petitioners.

We thus reach the question whether OAR 340-61-115(1) and 340-61-120(6) violate any provisions of the Oregon or United States...