ELR Citation: ELR 21148
No(s). AND-92-352 (Me. Aug 5, 1993)

The court holds that genuine issues of material fact regarding whether a municipal solid waste flow-control ordinance violates the Commerce Clause of the U.S. Constitution preclude summary judgment on the city's action seeking civil penalties, indemnification, and an injunction to prevent a waste hauling company disposing of waste at a nondesignated facility. The ordinance, passed in furtherance of a contract between the city and the designated facility, requires all solid waste generated within the city to be disposed of at that facility. The hauler had been taking solid waste to a nondesignated facility for sorting, selling the recyclable portion, and disposing of the nonrecyclable portion at another nondesignated facility with a much lower tipping fee than the designated facility. The court first holds that solid material becomes "solid waste" subject to the ordinance's provisions when the generator decides it has no further use or plans for the material, as evidenced by the generator's placing the material in a dumpster and making arrangements for its transport. The court next holds that the flow-control ordinance complies with state enabling legislation that allows a municipality, through an interlocal agreement, to enact an ordinance requiring delivery of solid waste to a designated facility. The court also holds that the city and the designated facility enjoy state action immunity, which shields them from federal antitrust laws.

Addressing the hauler's constitutional claims, the court holds that the ordinance does not effect a taking of private property under the Fifth Amendment. The court next holds that the ordinance did not violate the hauler's right to due process. A municipal ordinance satisfies due process if, as here, the object of the ordinance is to provide for the general welfare, the legislative means employed are appropriate to the achievement of the ends sought, and the manner of exercising the power is not unduly arbitrary or capricious. The court also holds that the hauler has made no showing of discriminatory or purposeful intent to support its allegation of selective prosecution in violation of the Equal Protection Clause of the U.S. Constitution. The court next holds that the ordinance discriminates against interstate commerce because it requires businesses to take recyclable materials to the designated facility and prevents them from marketing the recyclables in interstate commerce. The court vacates the lower court's grant of summary judgment and remands to allow the city to introduce facts justifying the ordinance's discrimination and demonstrating the absence of reasonable alternatives.

Counsel for Plaintiff
John W. Conway
Linnell, Choate & Webber
83 Pleasant St., P.O. Box 190, Auburn ME 04212
(207) 784-4563

Counsel for Defendant
Ralph A. Dyer
Law Offices of Ralph A. Dyer
477 Congress St., Ste. 702, Portland ME 04104
(207) 773-6489

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, COLLINS and RUDMAN, JJ.