ELR Citation: ELR 21026
No(s). IP 90-303-C (S.D. Ind. Apr 3, 1990)

The court enjoins the state of Indiana from enforcing a newly enacted law that prohibits in-state dumping of out-of-state solid waste without certification from a health officer of the source state that the solid waste does not contain any hazardous waste in violation of federal law or any infectious waste in violation of Indiana law. In addition to the health officer certification requirement, the Indiana law imposes a hauler certification requirement that requires waste haulers to identify, under penalty of perjury, the county in Indiana or, if outside Indiana, the state that generated the largest part of the solid waste to be disposed. The Indiana law also imposes a revised tipping fee schedule, which serves as a strong disincentive on importing trash into the state.

First, the court holds that the waste hauling companies have standing to bring Commerce Clause, equal protection, and due process challenges. Although the companies face no threat of physical imprisonment, unlike the independent drivers who transport solid waste into Indiana, the court finds that the companies nevertheless will suffer economic injury and that the Indiana law infringes on their right to engage in interstate commerce. The court further holds that the companies' three constitutional challenges present a ripe controversy. The companies face an enacted law, not merely proposed legislation, and the hauler certification and health officer certification requirements have forced them to deposit waste elsewhere at greater cost. They are currently deriving healthy revenues from shipping interstate solid waste, and their advanced planning for future shipments to Indiana is impaired by the fear of increased costs.

Next, the court holds that the companies are not entitled to a preliminary injunction against enforcement of the hauler certification requirement or the revised tipping fee schedule. Regarding the revised tipping fee schedule, the court finds that the companies have failed to demonstrate an inability to plan future solid waste shipments. Further, only a rapid trial on the merits, rather than a short-lived preliminary injunction, will prevent prospective harm from exorbitant tipping fees. Regarding the hauler certification requirement, the court first finds that the companies have no adequate remedy at law because they seek declaratory relief and not money damages, and they will suffer some irreparable economic harm, though the record presents no evidence of actual dollar amounts. Similarly, although the companies have access to other midwestern landfills, they are irreparably harmed to the extent the Constitution protects access to Indiana landfills, and their business interests will suffer slightly greater harm from the hauler certification requirement than Indiana's interest in tracking waste will suffer if the injunction is granted. However, the court holds that the companies' challenge to the hauler certification provision is not likely to succeed on the merits. The companies may enjoy some success on their Commerce Clause challenge because Indiana could protect public health with a lesser impact on interstate commerce. For example, the provision could require haulers to certify from which state or transfer station the waste was received instead of certifying the origin of the waste. The companies' equal protection claim is weak because the hauler certification requirement does not treat in-state and out-of-state haulers differently. The companies' due process claim that the terms "generated" and "largest part" are unconstitutionally vague is likely to meet negligible success because courts interpret statutes to avoid constitutional questions. The constitutional question is avoided if the court interprets "generated," used to identify the origin of the transported waste, to require haulers to certify the point at which waste is received instead of the point of origin. Further, the term "largest part," used to identify the origin of the largest part of the waste to be disposed, is defined to mean "volume" in another part of the statute.

Finally, the court preliminarily enjoins enforcement of the health officer certification requirement. The court first finds that, whereas Indiana residents are unlikely to suffer irreparable harm if enforcement of the health officer certification requirement is enjoined until trial, the companies have no adequate remedy at law and will suffer irreparable economic harm without the injunction. The court next finds that the companies' equal protection and Commerce Clause claims have merit. The health certification requirement imposes stricter requirements on out-of-state haulers, and protecting the public health and safety could be accomplished in a manner less burdensome to interstate commerce. The court also finds that the companies' due process vagueness argument is strong. Without defining its terms, the statute requires that an out-of-state hauler must present a "document" from a "state or local government officer with public health or environment responsibilities" that "certifies" that "the part of the solid waste generated in that state is not subject to regulation as hazardous waste."

Counsel for Plaintiffs
Ronald J. Waicukauski
White & Raub
One North Capitol Ave., Ste. 1180, Indianapolis IN 46204
(317) 632-1348

Counsel for Defendants
Harry John Watson, III, Michael T. Schaefer
Office of Attorney General
219 State House, Indianapolis IN 46204
(317) 269-6333