|
Table
1-2 Summary of Court Decisions Since 1991 Affecting
Will County
Solid
Waste Plan Implementation |
| Court
Case |
Background
and Final Decision |
| Cases
Decided Outside Illinois |
| NSWMA
v. Voinovich (C2-89-85, Ohio Federal District Court,
5/1/91) |
In 1988,
the State of Ohio enacted a law that would 1) allow
a tiered-fee structure for waste disposed in Ohio,
2) grant planning districts across the state the discretion
to impose fees in addition to the other fees.
The Federal District Court ruled that differential
fees were a transparent attempt to discourage the
shipment of MSW into Ohio. |
| Fort
Gratiot Sanitary Landfill, Inc. v. Michigan Dept.
of Natural Resources (U.S. Supreme Court No. 91-636,
6/1/92) |
Michigan’s
solid waste law prohibited private landfills from
accepting MSW that originated outside a county without
prior approval of the county, 67% of its municipalities,
and the Michigan DNR. The Supreme Court ruled
that waste import restrictions “unambiguously discriminate
against interstate commerce and are appropriately
characterized as protectionist measures. . . . Unless
a county acts affirmatively to permit other waste
to enter its jurisdiction, the statute affords local
waste producers complete protection from competition
from out-of-state waste producers who seek to use
local waste disposal areas.” |
| Chemical
Waste Management, Inc. v. Hunt (U.S. Supreme Court
No. 91-471, 6/1/92). |
The State
of Alabama imposed a $72/ton fee on out-of-state hazardous
waste destined for commercial hazardous waste facilities
located in Alabama. The Supreme Court ruled
that Alabama targeted only interstate hazardous waste,
and found that “there is absolutely no evidence before
this Court that waste generated outside of Alabama
is more dangerous than waste generated in Alabama.”
Therefore, concerns for the environmental well-being
and concern for the health of its citizens are no
reasons to discriminate against waste generated out-of-state. |
| Waste
Systems Corp. v. County of Martin and County of Faribault,
Minnesota (92-1642,2/18/93). |
Waste
Systems Corp., an Iowa corporation, contested Minnesota
county ordinances mandating the disposal of all wastes
generated in the Martin and Faribault Counties at
a jointly-owned disposal facility. The U.S.
Court of Appeals found that the Facility must be justified
on economic terms. Since cheaper alternatives
for the management of waste generated in the two Counties
exist, the ordinances “discriminate against interstate
commerce and are economic protectionist measures that
violate the Commerce Clause.” |
| Waste
Management of the Desert, Inc., and the City of Rancho
Mirage v. Palm Springs Recycling Center Inc. (California
Supreme Court, 3/31/94) |
Waste
Management and the City of Rancho Mirage, CA sought
an injunction against another hauler collecting recyclables
in violation of city franchise agreements. The
California Supreme Court held that the Integrated
Waste Management Act does not allow an exclusive franchise
for the collection of recyclables not discarded by
their owners. “If the owner of property disposes
of it for compensation, it is not waste because it
has not been discarded. The owner is not required
to transfer this property to the exclusive franchise,
but an owner cannot discard property as he sees fit.
Discarding property renders the property waste and
subjects it to the Act.” |
| Oregon
Waste Systems, Inc. v. Dept. of Environmental Quality
(U.S. Supreme Court, No.’s 93-70 & 93-108, 4/4/94) |
The State
of Oregon imposed a surcharge on “every person who
disposed of solid waste generated out-of-state in
a disposal site or regional disposal site,”
believing out-of-state waste generators were not paying
their fair share of the true costs of disposing waste
in Oregon. The U.S. Supreme Court ruled that
such fees are discriminatory because they impose a
higher fee on the disposal of out-of-state waste than
on the disposal of identical in-state waste. |
| C&A
Carbone, Inc. v. Town of Clarkstown, NY (114 S. Ct.
1677,1994) |
Clarkstown,
NY adopted a flow control ordinance which required
that all non-hazardous waste within the town be taken
to a local transfer station for the purpose of financing
the cost of the transfer station through tipping fee
revenues. C.A. Carbone challenged the flow control
ordinance and the U.S. Supreme Court ruled that such
ordinances violate the Commerce Clause of the Constitution. |
| Atlantic
Coast Demolition and Recycling v. Board of Chosen
Freeholders of Atlantic County, NJ 112 F. 3d 731 (3d
Cir. 1997) |
New Jersey
statewide disposal system discriminates against interstate
commerce. The state cannot designate facilities
to which hauling in each disposal district must deliver
locally generated waste. |
| SSC Corp.
v. Town of Smithtown, NY, 66 F. 3d 502 (Second Circuit
Court, 1995) |
A
local government may engage a private contractor for
waste collection services under an agreement that
requires the service provider to transport waste to
a designated facility without violating the Commerce
Clause. However, local governments may not force
the contractor, by ordinance, to deliver waste to
such a facility. |
| USA Recycling,
Inc. v. Town of Babylon, NY 66 F. 3d 1272 (2d Cir,
1995) |
A
local government does not discriminate against or
burden interstate commerce when it exclusively manages
municipal solid waste, even if such action displaces
the local commercial garbage market and private firms
win the rights to exclusively perform certain functions. |
| Harvey
& Harvey, Inc. v. County of Chester, NJ 68 F.
3d 788 (3d Cir. 1995) |
Local
governments do not unlawfully interfere with interstate
commerce by requiring haulers to bring locally generated
solid waste to designated disposal facilities.
However, communities must select such facilities using
a fair, open and competitive process that does not
discriminate against out-of-state interests. |
| Peake
Excavating, Inc. v. Town Board of Hancock 93f. 3d
68 (2d cir. 1996) |
A
local government does not interfere with interstate
commerce when it prohibits the disposal of waste anywhere
except at a municipally operated transfer station
or landfill. |
| Individuals
for Responsible Government v. Washoe County 110 F.
3d 699 (9th Cir. 1997 |
A
local ordinance that requires residents to subscribe
to a trash collection service offered by a private
hauler that has an exclusive franchise does not violate
the Commerce Clause and does not amount to an unconstitutional
“taking” of property. |
| Ben Oehrleins,
Inc. v. Hennepin County, MN 115 f. 3d 731 (8th
Cir. 1997) |
A
local government unlawfully discriminates against
interstate commerce when it restricts the flow of
waste to out-of-state facilities. However, controlling
the disposition of waste destined for in-state disposal
may not unreasonably burden commerce. In any
event, waste generators whose costs are affected by
flow control measures may not challenge the regulations
under the Commerce Clause. |
| Waste
Management of Tennessee v. Metro Govt. of Nashville
and Davidson County, TN 130 F. 3d 731 (6th
Cir. 1997) |
A
flow control system for Nashville and surrounding
Davidson County discriminates against interstate commerce.
The ruling also suggested that another element of
the scheme – conditions under which disposal facilities
must accept waste delivered by passenger vehicles
and pickup trucks – may amount to an unconstitutional
“taking” of a waste company’s property. |
| NSWMA
v. Minn. Poll. Control Agency 146 F. 3d 595 (8th
Cir. 1997) |
A state
solid waste management plan that requires local governments
to send waste to designated facilities does not violate
the Commerce Clause because the state is acting as
a market participant in directing the purchasing behavior
of local government units. |
| Tinnerello
& Sons v. Town of Stonington 141 F. 3d 46 (2d
Cir. 1998) |
A local
government may take over municipal solid waste operations,
effectively dissolving the private market for commercial
waste collection, without violating the Commerce Clause
of the U.S. Constitution. |
| Houlton
Citizens Coalition v. Town of Houlton 175 F 3d 178
(1st Cir. 1999) |
A local
government does not discriminate against interstate
commerce or otherwise violate haulers’ constitutional
rights when it a) contracts with a solid waste collector
on an exclusive basis and b) enacts an ordinance to
assure that all waste is either collected by the contractor
or brought to a designated facility. |
| United
Waste Systems of Iowa v. Wilson 189 F 3d 762 (8th
cir. 1999) |
A state
solid waste program does not unlawfully interfere
with interstate commerce by giving local governments
freedom to contract with haulers and landfill operators
to designate interstate landfills for their disposal
needs. |
| Village
of Rockville Centre v. Town of Hempstead, 196 F 3d
395 (2d Cir. 1999) |
When
a governmental authority furnishes waste disposal
services for municipalities that, in return, provide
contractual guarantees of waste supply, such an arrangement
is ordinary market transaction that does not interfere
with interstate commerce. |
| U&I
Sanitation v. City of Columbus , 205 F.3d 1063 (8th
Cir., 2000) |
A municipal
ordinance does not discriminate against interstate
commerce by requiring haulers to use a specific in-state
facility while allowing them free choice of out-of-state
disposal sites. Nevertheless, such a restriction
can unlawfully burden the interstate market in recyclables. |
| Huish
Detergents v. Warren County, KY 214 F3d 707 (6th
Cir., 2000) |
A county
ordinance may unlawfully interfere with interstate
commerce if it incorporates a waste collection and
hauling agreement whereby local residents are obliged
to purchase services directly from the exclusive provider.
However, the county can achieve the same results without
Commerce Clause implications if it directly hires
a service provider using public funds. |
| On the
Green Apartments v. City of Tacoma 98-35976 (9th
Cir, 2001) |
A local
ordinance does not burden interstate commerce if it
requires residents and businesses to use city-provided
waste collection services and prevents self-hauling
by waste generators to in-state disposal sites. |
| A.G.
G. Enterprises v. Washington County, OR 99-1071-KI
(2000) |
A.G.G.
requested a permit to haul waste in Washington County,
but was denied. They challenged the exclusive
franchise by arguing that under the Federal Aviation
Administration Act of 1994 the County could not regulate
any private motor carrier with respect to the transportation
of property. The District Court found that haulers
are motor carriers as defined in the legislation and
that they haul property. |
| Maharg,
Inc. v. Van Wert SWMD 99-4035, (6th Cir
2001) |
A waste
management agency does not unconstitutionally burden
interstate commerce by requiring all solid waste collected
within the county to be transported to transfer and
disposal facilities designated by the County.
In-state and out-of-state facilities were eligible
for designation if they contracted with the county
to collect and remit to the county a fee on all solid
waste from the county. |
| Randy’s
Sanitation v. Wright County, MN (98-1205, D. Minnesota
1999) |
Wright
County passed an ordinance that required all of the
county’s solid waste discarded in-state to be disposed
of at a county-owned composting facility. The
District Court ruled that flow control ordinances
are unconstitutional as applied to intrastate as well
as interstate commerce |
| United
Haulers Assoc. Inc. v. Oneida-Herkimer Solid Waste
Authority, 2d Cir, 7-27-01 |
Reversing
a prior federal district decision, the appeals court
ruled that Oneida and Herkimer Counties flow control
rules are exempt from the Commerce Clause, because
the counties designated a publicly owned waste facility
for disposal. The prohibition against flow control
in the Carbone case only applies to privately
owned facilities. |
| Waste
Management Holdings v. Gilmore (4th Cir.,
2001) |
The federal
appeals court ruled that Virginia’s limits on the
amount of solid waste that a landfill could accept
and its ban on barges transporting solid waste on
certain state rivers violates the U.S. Constitution.
The decision confirms that states may not pass laws
with the intent of stopping the importation of out-of-state
waste. |
| Illinois
Court Cases |
| TENNSV,
Inc. v. Gade (U.S. District Court of S. Illinois,
92-503 & 92-522, 7/8/93) |
TENNSV
was engaged in the rail shipment of MSW generated
outside Illinois. A contract dispute with another
company prevented the waste from being disposed at
a landfill in Fairmont City, IL. In the meantime,
the waste sat on the tracks for 12 days, thus violating
Illinois law. TENNSV was cited by the IEPA for
operating a regional pollution control facility without
a permit issued by the IEPA. The District Court
ruled that this provision of the Illinois Environmental
Protection Act violated the Commerce Clause.
The effect of this lawsuit is that the words “regional”
and “non-regional” were removed from the definition
of a pollution control facility and that all pollution
control facilities are now subject to local siting
under Section 39.2 of the Act. |
| Residents
Against a Polluted Environment (R.A.P.E) and the Thornton
Foundation v. PCB, LandComp Corp. and LaSalle County
(3rd District, 11/20/97) |
In 1996,
LandComp and LaSalle County held meetings to discuss
a landfill siting application prior to formally submitting
the application to the County. Eventually, the
application for siting was granted. RAPE appealed
the decision to the PCB claiming the decision was
fundamentally unfair given the pre-application contacts.
The Board ruled, and the Appellate Court upheld the
decision, that the pre-application contacts were not
fundamentally unfair, since the Board has no statutory
authority to consider evidence of pre-application
contacts. |
| CAO and
TOTAL v. IPCB, the City of Salem, Roger Kinney and
Roger Friedricks (Illinois Appellate Court, 5th
District, 4/18/97) |
The City
of Salem purchased land for a new landfill four days
prior to the hearing on the siting application.
The application was granted. CAO and TOTAL appealed
the decision on the grounds that the decision was
against the manifest weight of the evidence and the
City had no jurisdiction to rule on the application.
The Board ruled, and the Appellate Court upheld the
decision, that it could not rule on the City’s annexation
of the property. Furthermore, City Council members
are not prejudiced simply by having opinions about
the application. The record of the hearing reflected
impartial rulings on evidence. The Court also
ruled that authors of reports in the application may
not be compelled to testify. |
| County
of Kane v. IPCB (Illinois Appellate Court, 2nd
District, 9/4/97) |
Kane
County and Waste Management sought to expand the Settler’s
Hill landfill in an unincorporated area of Kane County
without involving the City of Geneva, although part
of the contiguous site was also located in Geneva.
Siting was granted by the County and permit applications
were submitted the IEPA. The Agency denied permit
applications, since Geneva had not granted siting
approval. The IPCB ruled that Geneva’s approval must
be sought too. The Board had ruled that a new
facility included not only the new area that was to
be expanded, but also the area where continued use
was planned. Thus, “facility” encompassed the
structures and administrative buildings located within
Geneva’s corporate limits. The Appellate Court disagreed
with the Board finding that the plain language in
the Act limits new pollution control facilities for
which siting approval must be obtained to the area
beyond the boundary of the currently permitted facility. |
| Concerned
Citizens of Williamson County v. IPCB (Illinois Appellate
Court, 5th District, 7/10/97) |
Having
previously reversed Williamson County’s siting approval
on the grounds that the hearing was fundamentally
unfair, the County held another hearing and comment
period. The County did not reach a decision
in the required timeframe, therefore the application
was approved by default. Concerned Citizens
appealed stating the lack of manifest weight of evidence.
The Court ruled that enough evidence was presented
at the hearing to satisfy the required criterion.
Furthermore, the court upheld the Board’s decision
to require Mr. Kibler’s testimony to the County Board
(the basis for the original appeal) be open to cross-examination. |
| Medical
Disposal Services, Inc. and Industrial Fuels and Resources
v. IEPA and IPCB (Illinois Appellate Court, 1st
District, 9/18/97) |
Industrial
Fuels was granted siting approval for a facility in
Harvey, IL. Subsequent to permit applications
being filed, Medical Disposal Services purchased the
property on which siting was granted. The IEPA
denied permit applications on the grounds that siting
approval was applicant-specific and could not be transferred.
The Court upheld the Board’s decision, stating that
the Act requires units of local government to consider
the operating experience of the applicant when considering
the approval of siting. Since Medical Disposal
Services did not seek siting approval, their experience
could not be considered. |
| Pollution
Control Board Opinions and Orders |
| Concerned
Citizens for a Better Environment v. City of Havana
and Southwest Energy Corporation (PCB 94-44, 5/19/94) |
Several
members of the Havana City Council had an invitation-only
luncheon meeting with the applicant and an expenses-paid
trip to see a similar facility in Massachusetts.
In addition, the applicant was allowed to revise the
City’s siting ordinance and hire the hearing officer
directly. The IPCB found that the invitation-only
luncheon and trip after the application was filed
with the City Council resulted in ex parte
communication. In addition, the applicant’s
influence over the siting ordinance and hiring of
the hearing officer lead to a fundamentally unfair
proceedings. |
| Concerned
Citizens of Williamson County v. Kibler Development
Corp. and the Williamson County Board (PCB 94-262,
1/19/95) |
After
the required public hearing regarding the applicants
local siting application, the Williamson County Board
sought additional information from the applicant.
The meeting was open to the public, the public was
not allowed to participate. The IPCB ruled that
the special meeting to discuss technical aspects of
the application resulted in a fundamentally unfair
proceeding, since the applicant was able to provide
information to the County Board, but the public had
no opportunity to participate. |
| R.A.P.E.
v. LaSalle County and LandComp Corp. (PCB 96-243,
9/19/96) |
LandComp
submitted an application for local siting to the LaSalle
County Board including company financial information,
but this information was never placed into the public
record during the hearing process. In addition,
contacts between the County’s Solid Waste Coordinator,
the County’s consultant and the applicants consultant
took place while the application was pending.
The application for siting was eventually granted.
The Board ruled that 1) the financial information
submitted as part of the application should have been
available to the public during the siting process,
and 2) the County’s Solid Waste Coordinator’s participation
in contacts between the County’s consultant and the
applicant’s consultant resulted in ex parte
communication, since there was no opportunity for
cross examination by the public. |
