National Solid Waste Management Ass'n v. Voinovich

Decision Date01 May 1991
Docket NumberNo. C2-89-85.,C2-89-85.
Citation763 F. Supp. 244
PartiesNATIONAL SOLID WASTE MANAGEMENT ASSOCIATION, Plaintiff, v. George V. VOINOVICH, Governor State of Ohio, et al., Defendants.
CourtU.S. District Court — Southern District of Ohio



Michael Roy Szolosi, Columbus, Ohio, for plaintiff.

Bryan Frank Zima, Ohio Atty. Gen., Columbus, Ohio, for defendants.


GEORGE C. SMITH, District Judge.

Plaintiff, National Solid Waste Management Association (NSWMA), brings this action challenging the constitutionality of certain provisions of Ohio's solid waste disposal statute. Ohio Rev.Code § 3734.131 and § 3734.57. The NSWMA asserts that the Act violates the Commerce Clause of the U.S. Constitution, art. I., § 8, by discriminating against and placing undue burdens on interstate commerce. This cause is currently before the Court on the parties' respective Motions for Summary Judgment and on the State's Motion to Dismiss plaintiff's challenge to § 3734.131.

On June 24, 1988, Governor Richard Celeste signed House Bill # 592, amending Ohio Rev.Code §§ 3734.01 et seq., into law.1 The statute is a comprehensive scheme designed to correct past improper waste disposal practices.2 Under the Act, disposal of all solid waste in Ohio is regulated by Ohio's Director of Environmental Protection as well as management districts which may include one or more counties. Each of these districts is required to prepare solid waste management plans which provide for the disposal of waste that is generated within the district. In addition, the districts are given substantial leeway to levy fees on the disposal of waste within their own jurisdictions.

The Act, as characterized by defendants, includes four major components. It upgrades the technical requirements for solid waste disposal and improves enforcement of the solid waste requirements. It creates a comprehensive solid waste disposal planning program to ensure adequate capacity for the state disposal of waste. It creates a background investigation program to ensure the reliability of operators of solid waste facilities. Finally, it provides funding mechanisms to finance the programs and provide the revenue required by the Comprehensive Environmental Response Compensation Liability Act, amending 42 U.S.C. § 6901 et seq.

Many of the provisions of the Act have yet to become effective. Plaintiff admits that these provisions are not yet ripe for judicial consideration and reserves the right to challenge those provisions at a later date. The present action is limited to the provisions of Ohio Rev.Code § 3734.57 and § 3734.131.

Specifically, Section 3734.57(A) imposes fees on the disposal of waste, the amount of which is determined by the source of the wastes' origin. Section (A)(1) imposes a tax of seventy cents ($.70) per ton on wastes generated within a management district.3 On the disposal of wastes generated outside of the management district but within the state, a fee of one dollar and twenty cents ($1.20) per ton is imposed. Finally, a fee of one dollar and seventy cents ($1.70) per ton is levied on wastes generated outside of the state.

Section (B) authorizes the individual districts to impose fees, in addition of those required by Section (A) on the basis of tons or cubic feet of wastes disposed. Fees levied on wastes generated within the district are required to be no more than one half of the fees imposed on wastes generated outside of the district but within the state. Fees imposed on wastes from outside the state must be three times the amount of the tax on wastes from within the district. In addition, under Section (C), a municipal corporation or township in which a solid waste disposal facility is located may levy a fee of no more than twenty-five cents ($.25) per ton on wastes disposed of at the facility regardless of where the wastes are generated.

Certain wastes are excluded from the tax provisions under Section (D). Wastes which are disposed of at a facility which is owned by the generator of the wastes are exempt. Wastes generated from the combustion of coal or those from outside of the district but which are covered by an agreement for the joint use of disposal facilities are also tax exempt. Likewise, waste which is incinerated or disposed of in an energy recovery facility may not be taxed.

In addition to Ohio Rev.Code § 3734.57, the Act requires consent to jurisdiction and service of process prior to the transportation of wastes into the state. Ohio Rev. Code § 3734.131. Solid wastes may not be transported into the state unless each of the following persons consents in writing to the jurisdiction of the courts of the State of Ohio:

(a) The person who actually transports the waste;
(b) The business concern that employs the person described in division (A)(1)(a) of this section;
(c) The person or persons who have contracted with the transporter for transportation of the waste to a facility in this state;
(d) The person or persons who have contracted with the owner or operator of the facility for treatment, transfer, storage, or disposal of the waste at the facility in this state.

The consent-to-service document is required to be filed three days before transportation of solid wastes into the state and must be renewed every four years. Furthermore, no owner or operator of a solid waste treatment facility may accept shipment of waste unless a copy of the consent-to-service document is received at the facility.

Plaintiff, National Solid Waste Management Association, is a not-for-profit trade association whose members are engaged in the solid waste management business. The association is charged with protecting the interests of its members and assisting governments with development and refinement of laws and regulations relating to waste management. Members of the NSWMA are engaged in the business of disposing of solid wastes in Ohio and other states and are currently shipping and receiving solid wastes for disposal in Ohio.

The NSWMA brings this cause of action challenging the constitutionality of Ohio Rev.Code §§ 3734.57(A) and (B), and § 3734.131. Specifically, the NSWMA asserts that the Act discriminates against the disposal of out-of-state wastes by imposing taxes that are 42% to 300% higher than those imposed on in-state wastes, and by allowing for a separate tax structure to be imposed by the management districts under which out-of-state wastes must be taxed at three times the rate of in-state wastes. In addition, plaintiff claims that the provisions of § 3734.131 impose highly burdensome and unnecessary filing requirements on persons who import solid wastes. Plaintiff asserts that these provisions violate the Commerce Clause of the U.S. Constitution, art. I, § 8, by unduly discriminating against the disposal of out-of-state wastes and by placing undue burdens on interstate commerce.

We note the procedural context of the case. Plaintiff filed its Motion for Summary Judgment before the State answered the complaint. The State moved for a continuance to respond until time for discovery had been provided. This Court granted the extension and aided the parties in discovery, after which the State filed its Memorandum in Opposition and its own Cross-Motion for Summary Judgment. On January 10, 1991, plaintiff moved this Court for leave to file notice of additional authority which was granted. The State responded in accordance with Rule 4.0.2 of the Rules for the U.S. District Court for the Southern District of Ohio. Thereafter, plaintiff filed a responsive memorandum to which the State moved to strike arguing that the response was not allowed by Order of the Court or by rule. Finding both that plaintiff's response is not warranted by Rule and that additional authority and arguments are unnecessary, we hereby GRANT the State's motion to strike and do not consider plaintiff's Reply to defendant's Responsive Memorandum Regarding the Government Suppliers Decision. Finally, on February 1, 1991, the State moved the Court to Dismiss for mootness plaintiff's challenge to Section 3734.131 on the basis of legislative amendment. As we note below, the State's motion to dismiss is without merit; therefore we proceed to resolve the parties' respective motions for summary judgment.

The State denies the claims and asserts that the Court should abstain from considering the allegations, that the NSWMA lacks standing to bring suit, and that the challenge to § 3734.57(B) is not yet ripe for review. Plaintiff now moves this Court pursuant to Rule 56 of the Federal Rules of Civil Procedure for an Order granting Summary Judgment in its favor, arguing that no genuine issues of material fact need be resolved at trial. The State has also Cross-Motioned for an Order granting Summary Judgment in their favor.

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The purpose of the procedure is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6th Cir. 1978). Summary judgment, therefore, will not lie if the dispute about a material fact is genuine, "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In a motion for summary judgment, the moving party bears the "burden of showing the absence of a genuine issue as to any material fact, and for these purposes, the evidence submitted must be viewed in the light most favorable to the opposing party." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26...

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4 cases
  • Hazardous Waste Treatment Council v. State of S.C., 91-2317
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • September 20, 1991
    ...differential has not been challenged under the Commerce Clause and is not challenged in this case. Cf. Nat'l Solid Waste Management Ass'n v. Voinovich, 763 F.Supp. 244 (S.D.Ohio 1991) (finding unconstitutional a state statute levying higher taxes on out-of-state solid wastes).3 "All hazardo......
  • Northeast Sanitary Landfill v. SC DEPT. OF HEALTH
    • United States
    • U.S. District Court — District of South Carolina
    • February 17, 1994
    ...transfer of hazardous waste from states that have not met certain requirements held unconstitutional); National Solid Waste Management Ass'n v. Voinovich, 763 F.Supp. 244 (S.D.Ohio 1991) (statute that taxes out-ofstate waste at higher rate than in-state waste held unconstitutional). Governm......
  • Atlantic Coast Demo. v. Bd. of Chosen Freeholders
    • United States
    • U.S. District Court — District of New Jersey
    • June 9, 1995
    ...Indeed, NSWMA has been allowed to participate in similar cases throughout the country. See, e.g., National Solid Waste Management Ass'n v. Voinovich, 763 F.Supp. 244 (S.D.Ohio 1991), rev'd on other grounds, 959 F.2d 590 (6th Cir.1992). Therefore, the Court finds that the association plainti......
  • National Solid Wastes Management Ass'n v. Voinovich
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • May 14, 1992
    ... ... 1 Ohio Rev.Code section 3734.131 requires that out-state generators and carriers consent to service before they may import waste into Ohio for disposal in Ohio landfills ...         In the lower court, Ohio asserted that it had a compelling justification for its ... ...

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