ELR Citation: ELR 21539
No(s). 92-5174 (10th Cir. Jun 22, 1994)

The court holds that the existence of genuine issues of material fact, regarding whether the Resource Conservation and Recovery Act (RCRA) preempts a local zoning board's hazardous waste zoning ordinance that effectively prevents a cement manufacturing facility from converting to hazardous waste fuels from coal and natural gas, precludes summary judgment. The operator of a quarry and cement manufacturing plant challenged the ordinance, which requires that the operator obtain a conditional-use permit to burn hazardous waste fuels, alleging that the ordinance is preempted by RCRA and violative of the Commerce Clause of the U.S. Constitution. The operator had earlier determined that the terms of the ordinance and the associated conditional-use permit requirement did not apply to its operations. The board disagreed, however, and amended the ordinance to prevent the operator from circumventing the conditional-use permit requirement. The court first holds that because RCRA neither expressly preempts nor impliedly preempts the field preemption of state and local hazardous waste regulations that are more restrictive than RCRA, RCRA can only preempt the ordinance impliedly, and only if the ordinance frustrated Congress' intent as embodied in RCRA. Examining whether the ordinance is consistent with the structure and purpose of RCRA as a whole, the court derives from case law some principles that inform its preemption analysis. First, RCRA ordinarily preempts ordinances that amount to an explicit or de facto ban of an activity that RCRA otherwise encourages. Second, an ordinance that does not impose a total ban will ordinarily be upheld so long as it is supported by a record establishing that it is a reasonable response to a legitimate local concern for safety or welfare, rather than a sham to sabotage federal RCRA policy. Employing an objective, rather than a subjective analysis to whether a legitimate local concern has been identified and whether the ordinance is a reasonable response to that concern, the court holds that the record is inadequate to support summary judgment. There is a genuine dispute whether the ordinance is a reasonable response to protect a legitimate local concern or whether it imposes a de facto ban and is really a sham, with the purpose and effect simply of frustrating RCRA's policy of encouraging recycling of hazardous waste and the safe use of hazardous waste fuels.

Addressing whether the ordinance violates the Commerce Clause, the court applies a dormant Commerce Clause analysis. The court first determines that the ordinance is not discriminatory because it operates evenhandedly and does not distinguish between hazardous waste generated within the county and hazardous waste generated outside the county. Because the ordinance is not discriminatory, the court next applies a balancing test to determine if the burdens the ordinance imposes on commerce are excessive in relation to its putative local benefits. The court holds that the record is inadequate to support summary judgment on this issue. The local interest is purportedly the health and safety of county residents, yet there is no evidence that the hazardous waste fuels the operator proposes to burn or the byproducts of such burning would present any significant health or safety hazard. The court holds that the district court erroneously failed to conduct the appropriate balancing analysis and that the operator has presented evidence creating material fact issues as to the Commerce Clause implications of the ordinance.

Turning to the operator's state-law claims, the court holds that it was not inequitable to subject the operator to the ordinance, as amended, where the operator had not yet applied for a conditional-use permit at the time of amendment and, thus, did not at that time have a vested right to convert to hazardous waste fuel even under the original version of the ordinance. Finally, the court refuses to consider the operator's allegation that the board's amendment to the ordinance constitutes unlawful exercise of police powers because the operator did not raise that issue in its amended complaint or summary judgment motion.

Counsel for Plaintiff
Charles W. Shipley
Shipley, Inhofe & Strecker
First National Tower
15 E. 5th St., Ste. 3600, Tulsa OK 74103
(918) 582-1720

Counsel for Defendant
Bill M. Shaw, Ass't District Attorney
District Attorney's Office
219 S. Missouri St., Rm. 1-111, Claremore OK 74017
(918) 341-3164

Before EBEL, SETH, and KELLY, Circuit Judges.