Valero Terrestrial v. McCoy
| Decision Date | 17 September 1997 |
| Docket Number | No. 5:93CV189.,5:93CV189. |
| Citation | 36 F.Supp.2d 724 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | VALERO TERRESTRIAL CORPORATION, Lackawanna Transport Co., and Solid Waste Services, Inc. d/b/a J.P. Mascaro & Sons, Plaintiffs, v. The Honorable Laidley Eli McCOY, Director, Division of Environmental Protection of the Department of Labor, Commerce and Environmental Resources of the State of West Virginia, The Honorable B.F. "Cap" Smith, Chief of the Division of Waste Management for the Division of Environmental Protection, The Public Service Commission, The Honorable James H. Paige, Secretary, Department of Tax and Revenue for the State of West Virginia and The Honorable Darrell V. McGraw, Jr., Attorney General of the State of West Virginia, Defendants. |
William F. Fox, Jr., Harleysville, PA, Logan M. Hassig, Snyder & Hassig, New Martinsville, WV, Bruce L. Thall, Spector, Gadon & Rosen, PC, Philadelphia, PA, for Valero Terrestrial Corporation, plaintiff.
William F. Fox, Jr., Logan M. Hassig, Bruce L. Thall, (See above), for Lackawanna Transport Co., plaintiff.
William F. Fox, Jr., Logan M. Hassig, Bruce L. Thall, (See above), for Solid Waste Services, Inc., d/b/a J.P. Mascaro & Sons, plaintiff.
Silas B. Taylor, Atty. Gen. Office, Charleston, WV, for James H. Paige, Secretary, Dept. of Tax and Revenue of the State of West Virginia, defendant.
Silas B. Taylor, (See above), for Darrell V. McGraw, Jr., Honorable, Attorney General of the State of West Virginia, defendant.
Armando F. Benincasa, Charleston, WV, Matthew B. Crum, Division of Environmental Protection, Charleston, WV, William E. Adams, Division of Environmental Protection, Nitro, WV, for B.F. "Cap" Smith, Chief of the Division of Waste Management for the Division of Environmental Protection, defendant.
Armando F. Benincasa, Matthew B. Crum, William E. Adams, (See above), for Laidley Eli McCoy, Director, Division of Environmental Protection of the Dept. of Labor, Commerce and Environmental Resources of the State of WV., defendant.
Larry Harless, Spring Valley, NY, respondent pro se.
In the early 1990s, the West Virginia Legislature enacted various statutes seeking to address certain environmental and other concerns dealing with solid waste collection, disposal and management.
West Virginia Senate Bill 18, effective October 18, 1991 (hereinafter "S.B. 18"), and Senate Bill 288, effective April 18, 1993 (hereinafter "S.B. 288")1 contain provisions governing the solid waste landfilling and sewage sludge compacting industries in West Virginia. Specifically, S.B. 18 outlines the requirements for obtaining a permit to open and/or operate a commercial solid waste facility in West Virginia, sets forth solid waste assessments to be imposed upon in-state and out-of-state solid waste landfills in West Virginia, and places limitations upon the amount of solid waste a commercial facility can dispose of on the land each month. S .B. 288 requires a solid waste facility to include sewage sludge composting facilities and non-landfilled sewage sludge in the amount of solid waste that is subject to the monthly limitations announced in S.B. 18, and it imposes solid waste assessments upon unlandfilled sewage sludge. Although most of the provisions of S.B. 18 and S.B. 288 were subsequently repealed and reenacted in virtually identical form by the West Virginia legislature, the differential solid waste assessments were repealed in their entirety.
Plaintiffs are corporations engaged in the commercial solid waste landfilling and sewage sludge composting industries in West Virginia. As part of their operations, plaintiffs transport solid waste generated outside West Virginia to its sites inside West Virginia. Additionally, plaintiffs import sewage sludge generated in locations outside West Virginia to its facilities inside West Virginia for composting and resale. Plaintiffs operate the only permitted sewage sludge composting facilities in West Virginia.
After the enactment of S.B. 18 and S.B. 288, plaintiffs were required to include the sewage sludge composted at their facilities in the computation of "solid waste." Further, plaintiffs were subject to a "tonnage cap" on the amounts of solid waste, including sewage sludge, that their facilities could receive each month. Plaintiffs were required to pay solid waste assessments, including additional assessments for wastes imported from out-of-state, on solid waste landfilled and on sewage sludge composted each month. Additionally, the enactments required all commercial landfills to first meet local solid waste disposal needs and required permitted solid waste authorities to amend commercial landfill permits to ensure that the present and future needs of the local area were met. Finally, the statutes necessitated that plaintiffs meet strict requirements, including administrative approvals and voter referenda, before enlarging, expanding or opening new solid waste and sewage sludge facilities.
Because of these changes to the West Virginia Code, plaintiffs filed suit against defendants in this Court alleging that the newly-enacted statutes violated the Commerce Clause, Due Process Clause, and Equal Protection Clause of the United States Constitution and that they violated plaintiffs' civil rights under 42 U.S.C. § 1983. This Court found that it had jurisdiction over the matter and preliminarily enjoined defendants from enforcing these statutes on the ground that the statutes violated the Commerce Clause. Plaintiffs seek an order that declares portions of S.B. 18 and S.B. 288, and the resulting codifications dealing with solid waste and sewage sludge, to be unconstitutional; enjoins defendants from enforcing the unconstitutional provisions; compels the state to refund fees paid pursuant to the differentiated assessment statutes; and awards plaintiffs their reasonable fees and costs incurred in prosecuting this action pursuant to 42 U.S.C. § 1988.
On November 4, 1993, plaintiffs Valero Terrestrial Corporation ("Valero"), Lackawanna Transport Company ("Lackawanna"), and Solid Waste Services, Inc., doing business as J.P. Mascaro & Sons ("SWS"), filed a complaint for declaratory judgment against defendants: The Honorable David Callaghan, Director, Division of Environmental Protection and the Department of Labor, Commerce and Environmental Resources of the State of West Virginia; The Honorable John Ranson, Secretary, Department of Labor, Commerce and Environmental Resources of the State of West Virginia; The Honorable George Max Robertson, Chief of the Division of Waste Management for the Division of Environmental Protection; The Public Service Commission of the State of West Virginia; The Honorable James H. Paige, Secretary, Department of Tax and Revenue of the State of West Virginia; and The Honorable Darrell V. McGraw, Jr., Attorney General of the State of West Virginia. On October 27, 1995, Laidley Eli McCoy was substituted for David Callaghan, and B.F. "Cap" Smith was substituted for George Max Robertson. Additionally, on January 19, 1996, this Court entered an order dismissing John Ranson from this action.
On November 4, 1993, plaintiffs filed a motion for a temporary restraining order and a motion for a preliminary injunction requesting that this Court enjoin defendants from enforcing various provisions of the West Virginia Code. On November 15, 1993, this Court granted plaintiffs' motion for a temporary restraining order and scheduled a hearing on the motion for a preliminary injunction. After a number of continuances, this Court conducted a six-day preliminary injunction hearing.
On September 28, 1995, this Court granted plaintiffs' motion for a preliminary injunction on the basis that the statutes challenged by plaintiffs were unconstitutional. Further, this Court denied defendants' motion to compel the refund of certain fees paid by plaintiff and granted plaintiffs their reasonable attorney's fees in bringing this action. In a separate order entered the same day, this Court resolved a number of outstanding issues, including denying the motion of the Secretary of the Department of Tax and Revenue to dismiss plaintiffs' tax related claims.
Subsequent to the September 28, 1995 orders, the defendants filed motions requesting that this Court vacate, reconsider or clarify its preliminary injunction order. On December 14, 1995, this Court entered an order that granted the Public Service Commission's motion for clarification and amendment of the judgment; granted defendant Callaghan and Robertson's motion for clarification; denied Paige's motion for reconsideration; denied McGraw's motion to vacate; denied Callaghan, Robertson and the Public Service Commission's motion to stay the preliminary injunction order; denied the defendants' joint motion to dismiss the pleadings; stayed the award of attorney's fees pursuant to 42 U.S.C. § 1988; and determined the amount of sanctions to be paid by attorney Larry Harless. The order of clarification indicated that the preliminary injunction order was not a final determination on the constitutionality of the challenged statutes and clarified certain limitations on the preliminary injunction order. Additionally, the order directed the parties to submit recommendations as to the type and amount of bond to be posted by plaintiffs.
On January 19, 1996, this Court entered an order setting plaintiffs' bond at $50,000.00. On January 29, 1996, plaintiffs posted the $50,000.00 bond. This Court then entered a scheduling order setting deadlines for discovery and for the filing of dispositive motions. After a number of discovery disputes and continuances of the discovery and motion deadlines, the parties filed a number of dispositive motions as listed below:
1. On ...
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