ELR Citation: ELR 20584
No(s). IP 90-303-C (S.D. Ind. Dec 27, 1990)

The court permanently enjoins Indiana from enforcing its statutory prohibition against in-state dumping of out-of-state solid waste and rules that the prohibition violates the Commerce Clause of the U.S. Constitution. In an earlier decision, the plaintiff waste-brokerage companies won a preliminary injunction against Indiana's enforcement of a newly enacted law that prohibited in-state dumping of out-of-state solid waste without certification from a health officer of the source state that the solid waste did 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 imposed a hauler certification requirement that required 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 imposed a revised tipping fee schedule, which served as a strong disincentive to importing trash into the state.

The court first holds that the controversy is ripe for review because Indiana officials have pronounced their immediate intent to fully enforce the challenged statutory provisions. The court next holds that the plaintiffs have standing because enforcement of the challenged provisions would cause their business in Indiana to cease. Waste hauling business that they would otherwise broker into Indiana landfills will be directed into landfills in other states and cause the volume of plaintiffs' business to decrease as they struggle to make contacts and establish a disposal network in other markets. Although eliminating Indiana as a business market may not produce injury-in-fact for some trash brokers, this hypothetical broker is not before the court. Additionally, the court holds that no prudential limitations preclude its finding that the plaintiffs have standing. The plaintiffs' interest in brokering trash into the Indiana market falls within the zone of interests that the dormant Commerce Clause was intended to protect, and their personal right of action is neither too general to be enforceable nor dependent upon the rights of any party not before the court.

On the merits, the court holds as a preliminary matter that the out-of-state infectious and hazardous waste the challenged statute attempts to regulate are items of interstate commerce, and their flow in interstate commerce cannot be restricted under the quarantine theory as intrinsically undesirable products. The court also holds that the state bears the burden of demonstrating that the challenged statute serves a legitimate local purpose and that other nondiscriminatory alternatives adequate to preserve the legitimate local purpose are not available. Applying this elevated scrutiny test, the court holds that the three challenged provisions are unconstitutional. First, the court holds that the tipping fee provision is unconstitutionally discriminatory because it imposes a greater burden on out-of-state trash than on in-state trash. Although the statute establishes a trust fund to pay for the removal of hazardous substances discovered in Indiana waste disposal sites, and thus advances the state's interest in health and safety, the tipping fees provision cannot generate any money for the trust fund unless out-of-state waste is actually dumped in Indiana. Moreover, reasonable nondiscriminatory alternatives are available, including tying the tipping fee to the state's costs rather than to the waste hauler's costs. Second, the court holds that the requirement that waste haulers present certification from a health officer of the source state does not pass the Commerce Clause's elevated scrutiny test because a nondiscriminatory alternative regulation exists. Even if this provision serves the legitimate state interest of promoting the health and safety of Indiana citizens, the court observes that the most obvious and evenhanded alternative is to require all haulers of waste to Indiana landfills to present a health officer's certification. Inspecting all waste would necessarily be more protective of the environment than inspecting only part of it, and universal inspections would raise the cost of disposing of all trash, thereby increasing the financial incentive on all generators to recycle their trash. The court notes that the motives behind the health certification requirement are suspect because not even a pretense of evenhandedness is found in imposing the requirement only on out-of-state waste, and no requirement exists that the certification be retained by the landfill operator, the hauler, or the state. Third, applying the U.S. Supreme Court's Pike v. Bruce Church balancing test, the court holds that the waste hauler certification requirement is unconstitutional because the burden imposed on the interstate shipment of waste is excessive in relation to the putative local benefits. Although the state asserts that the hauler certification advances the health and safety of Indiana's citizens by providing information that may be used in developing future regulations, the statute does not require that the hauler certification be filed with the state or retained by the landfill operator. By requiring only that the certification be presented but not that it be filed with the state, and by imposing criminal liability if a hauler fails to achieve the impossible task of accurately certifying a waste source, the provision serves a valid state interest only to a small degree while imposing an excessive burden on interstate commerce. Finally, because all three challenged provisions failed to survive the Commerce Clause scrutiny, the court declines to address the plaintiffs' Fourteenth Amendment void for vagueness claim.

[The court's earlier decision is published at 20 ELR 21026.]

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

Bruce L. Thall
2128 Locust St., Philadelphia, PA 19103
(215) 545-2400

Counsel for Defendants
Harry John Watson III, Michael T. Schaefer
Office of the Attorney General
219 State House, Indianapolis, IN 46204-2794
(317) 232-6201