Government Suppliers Consolidating Serv. v. Bayh

• Citation: 753 F. Supp. 739
• Decision Date: 27 December 1990
• Docket Number: No. IP 90-303-C.,IP 90-303-C.
• Parties: GOVERNMENT SUPPLIERS CONSOLIDATING SERVICES, INC., and Jack Castenova, Inc., Plaintiffs, v. The Honorable Evan BAYH, Governor of the State of Indiana, Defendant.
• Court: U.S. District Court — Southern District of Indiana

753 F. Supp. 739

GOVERNMENT SUPPLIERS CONSOLIDATING SERVICES, INC., and Jack Castenova, Inc., Plaintiffs, v. The Honorable Evan BAYH, Governor of the State of Indiana, Defendant.

No. IP 90-303-C.

United States District Court, S.D. Indiana, Indianapolis Division.

December 27, 1990.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Ronald J. Waicukauski, White & Raub, Indianapolis, Ind., Bruce L. Thall, Philadelphia, Pa., for plaintiffs.

Harry John Watson III, Michael T. Schaefer, Office of Attorney General, Indianapolis, Ind., for defendant.

MEMORANDUM ENTRY OF THE DECISION AFTER TRIAL ON PLAINTIFFS' COMPLAINT FOR DECLARATORY RELIEF

                Table of Contents
                  I. Introduction ..........................  742
                 II. Findings of Fact ......................  743
                III. Conclusions of Law ....................  756
                     A. Standing and Ripeness ..............  756
                     B. Commerce Clause ....................  762
                        1. Tipping Fee Provision ...........  766
                        2. Health Officer Certification ....  772
                        3. Hauler Certification ............  774
                     C. Vagueness ..........................  779
                 IV. Conclusion ............................  779
                

TINDER, District Judge.

I. Introduction

In 1978 the United States Supreme Court applied the dormant commerce clause to dispose of a New Jersey law banning the importation of out-of-state trash. In his majority opinion Justice Potter Stewart observed as follows:

Today, cities in Pennsylvania and New York find it expedient or necessary to send their waste into New Jersey for disposal, and New Jersey claims the right to close its borders to such traffic. Tomorrow, cities in New Jersey may find it expedient or necessary to send their waste into Pennsylvania or New York for disposal, and those States might then claim the right to close their borders. The Commerce Clause will protect New Jersey in the future, just as it protects her neighbors now, from efforts by one State to isolate itself in the stream of interstate commerce from a problem shared by all.

City of Philadelphia v. New Jersey, 437 U.S. 617, 629, 98 S.Ct. 2531, 2538, 57 L.Ed.2d 475 (1978). The day foretold in City of Philadelphia has arrived.

Today cities in New Jersey and other Eastern states find it necessary, or at least expedient, to ship their waste hundreds of miles to the State of Indiana. This case involves an attempt by Indiana to regulate the influx of that out-of-state waste. In a broader sense, however, this case involves the collision of local concerns with a national problem.

The citizens of the State of Indiana are in the unenviable position of residing in a state which is an economically favorable dumping ground for the refuse of the Eastern states. Besides the deposit of undesirable materials from other states into Indiana soil, the status of being a trash "receiving" state means that the space available here for the disposal of Indiana waste is diminishing due to the inflow of non-Indiana trash.

Indiana's problem is not unique. The reported cases reflect that out-of-state trash is the object of nationwide concern, as well as disdain. Congress itself, however, has not yet deigned to touch the subject in a comprehensive manner. Thus, as the states become fed up, or filled up, with out-of-state waste, the harmony of each state's regulations with the dormant commerce clause is likely to be considered on a case by case basis.

This entry first relates the facts established at trial that are relevant to the issues before this court. This case was hotly contested by counsel for both parties, and the facts found here are the result of the court having carefully weighed all of the evidence and the reasonable inferences to be drawn from those facts. Second, this entry sets forth the controlling legal principles and applies those principles to the findings of fact.¹ Finally, this entry is accompanied by a judgment consistent with the determinations made herein.

II. Findings of Fact

Evan Bayh, Governor of the State of Indiana, signed House Enrolled Act 1240 (hereinafter referred to as the Act or H.E.A. 1240) into law on March 20, 1990. The Act was the product of compromise among Republicans and Democrats in the Indiana General Assembly and between the General Assembly and the Governor. The immediate derivation of the Act can be found in several bills originally introduced in the 1990 Regular Session of the Indiana House and Senate² as well as in various legislative initiatives advanced by the administration of Governor Bayh.³ The history of the Act also includes efforts to enact similar legislation in the previous session of the legislature.⁴

The Act was codified in Title 13 of the Indiana Code, the portion of Indiana laws which deals specifically with environmental concerns. This classification is appropriate because the Act imposes certain requirements on the disposal of solid waste⁵ within the State of Indiana.

The plaintiffs seek a declaratory judgment that three provisions of H.E.A. 1240 regarding the hauling of waste into the State of Indiana are unconstitutional under the commerce clause of article I, section 8, and the due process clause of the fourteenth amendment of the United States Constitution. The challenged portions of the Act are codified as follows: Ind.Code ? 13-7-22-2.7(c)(1) (hauler certification); Ind.Code ? 13-7-22-2.7(c)(2) (health officer certification); and Ind.Code ? 13-9.5-5 (tipping fee). The plaintiffs further request that this court permanently enjoin the defendant from enforcing these provisions. The Governor⁶ vigorously opposes this declaratory action on several grounds which will be discussed below.

Within the State of Indiana, there are a number of sites where solid waste can be disposed of legally, which are called sanitary landfills. These landfills, which fall within the legal definition of "final disposal facilities,"⁷ operate by virtue of permits issued by the state and are subject to strict regulation by various state agencies, including principally, the Indiana Department of Environmental Management (IDEM). Ind.Code ? 13-9.5-1-14. IDEM is the agency primarily charged with the enforcement of Indiana environmental laws and regulations. This agency is responsible for the issuance of permits for the establishment of both sanitary and hazardous material landfills as well as the regulation of the actual operation of such landfills.

Indiana law requires "cradle-to-grave" tracking of hazardous materials. An entity causing the production of hazardous waste is required to report information about the creation of such waste, including the quantity of the hazardous materials. A transporter of such waste has to prepare a similar report or manifest, as does the disposer of the material. IDEM, through matching of these reports or manifests, is able to track the major source generators of hazardous waste materials within the state.

Disposal at Indiana sanitary landfills is accomplished by hauling solid waste to the landfill site, usually by truck or a similar motor vehicle and dumping the waste into the landfill. Trash is brought to Indiana landfills from collection points both within and outside the state.

The Act requires that the operator of a vehicle containing a load to be dumped at an Indiana landfill present the operator of the landfill with a verified statement about the location "in which the largest part of the solid waste was generated." Ind.Code ? 13-7-22-2.7(c)(1). If the "largest part of the solid waste was generated" within Indiana, the vehicle operator must certify the county in Indiana in which the waste was generated. If the "largest part of the solid waste" was generated out-of-state, the vehicle operator must certify the state in which such waste was generated. Id. If the "largest part of the solid waste was generated in a state other than Indiana," an operator desiring to dump the trash must also present a statement from a public health or environmental state or local officer from the state in which the trash was generated certifying that the part of the load generated in that state "is not subject to regulation as hazardous waste under the federal Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) or as infectious waste under Ind.Code ? 16-1-9.7." Ind. Code ? 13-7-22-2.7(c)(2).

Kathy Prosser, Commissioner of IDEM, indicated that the purpose of the certification requirements was to facilitate the tracking of waste being deposited in Indiana landfills and to enhance the accountability of violators of Indiana waste disposal laws and regulations for enforcement purposes. It is interesting to note that the Act does not require that either certificate must be sent to IDEM, and neither the hauler nor the landfill operator is required to keep the certificates.

The Act also provides that the fee for dumping a load of trash generated in Indiana is $0.50 per ton. The fee for dumping trash "generated outside of Indiana," however, equals the fee for dumping that trash at a site closest to the location where the trash was generated, minus the fee actually charged for disposal by the operator of the final disposal facility in Indiana or $0.50 a ton, whichever is greater. Ind. Code ? 13-9.5-5-1.

Prior to the enactment of H.E.A. 1240, both the legislature and the Governor were concerned about the quantity and composition of out-of-state trash being dumped at Indiana landfills. The Governor's concern was expressed in a number of public statements made both before and after his election in November of 1988. On April 9, 1990, the Governor revisited a landfill located near Wabash, Indiana that he first visited during the 1988 gubernatorial campaign. A press release issued in connection with the 1990 visit noted that Bayh had visited Wabash during his campaign "to say that Indiana needed to take aggressive action to ensure that Indiana did not become the dumping-ground of trash from the East Coast." The release also alluded that the promulgation of ...