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Gilliam County v. Department of Envtl. Quality

ELR Citation: 24 ELR 20065
Nos. No. DEQ 45-1990, 849 P.2d 500/316 Or. 99, (Or., 04/15/1993)

The court holds that state statutory provisions authorizing regulations that impose a surcharge on disposal of out-of-state solid waste are unconstitutional and severable, but that the surcharge does not violate the Commerce Clause of the U.S. Constitution. The court first holds that the surcharge regulation was promulgated in accordance with statutory requirements and therefore is not procedurally invalid. The court holds, however, that the two portions of the statute that allow less than a majority of both chambers of the state legislature to perform a "legislative act" are unconstitutional under the Oregon Constitution, Article III, §3, and Article IV, §25. By purporting to authorize either an emergency board in the interim between legislative sessions or the Joint Committee on Ways and Means during sessions to approve or veto regulations, the provisions unconstitutionally permit a "legislative act" in the absence of a majority vote of each chamber as required by the Oregon Constitution. The court holds, nevertheless, that those portions of the statute are severable from the act, because the statute does not explicitly require that it remain intact to remain in force and the unconstitutional portions are not essentially and inseparably connected to the remainder of the statute and its overriding purpose, which is the establishment and collection of disposal fees. Moreover, severing the unconstitutional portions does not render the remaining portions incomplete or incapable of being executed. The court next holds that the surcharge regulation does not on its face discriminate against out-of-state commerce and is thus not violative of the Commerce Clause. The surcharge is not an economic protectionist measure that impermissibly burdens out-of-state interests, but rather a compensatory fee for the costs incurred by the state in regulating out-of-state waste. The surcharge has an express nexus to the actual costs the state government incurs in the regulation of that waste. The court declines to rule on the factual question of whether the surcharge is disproportionate to the costs incurred by the state.

Counsel for Petitioners
John DiLorenzo
O'Connell, Goyak & DiLorenzo
Bank of America Financial Ctr.
121 W. Morrison St., Ste. 800, Portland OR 97204
(503) 227-2900

J. Laurence Cable
Cable, Huston, Benedict, Haagensen & Ferris
2000 Security Pacific Plaza
1001 SW Fifth Ave., Portland OR 97201
(503) 224-3092

Counsel for Respondents
Robert M. Atkinson, Ass't Attorney General
Attorney General's Office
100 Justice Bldg., Salem OR 97310
(503) 378-6002