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Hardage v. Atkins

Citation: 10 ELR 20322
No. No. 79-1147, 619 F.2d 1871/14 ERC 1353/(10th Cir., 04/14/1980) Clarified

Elaborating upon its earlier opinion, 8 ELR 20719, the court affirms a lower court's decision finding unconstitutional a portion of the Oklahoma Waste Disposal Act. Appellants argued that the court's earlier opinion struck down only that part of the statutory section that prohibited the import of hazardous waste unless the state of origin "has entered into a reciprocity agreement" with Oklahoma. On remand, the lower court subsequently held that the entire section, which also included a prohibition on such imports "unless the state of origin has enacted substantially similar standards" governing the disposal violated the Commerce Clause. Appellants urged that the "substantially similar standards" requirement was not invalidated by this court's earlier opinion and does not violate the Commerce Clause. The court rules that the "substantially similar standards" requirement violates the Commerce Clause within the meaning of its earlier opinion. Notwithstanding the state's legitimate local interest in safe disposal of hazardous waste, the mandatory nature of the provision effectively forces Oklahoma's standards on its sister states on pain of halting the flow of interstate commerce and thus causes it to violate the Constitution.

Counsel for Appellee
Richard C. Ford, Clyde A. Muchmore
Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick
1700 Liberty Tower, Oklahoma City OK 73102
(405) 232-0661

Counsel for Appellants
John F. Percival; Jan Eric Cartwright, Attorney General; J. Gregory Thomas, Ass't Attorney General
112 State Capitol Bldg., Oklahoma City OK 73105
(405) 521-3921

Amalija J. Hodgins, General Counsel
State Department of Health
10th & Stonewall Sts., Oklahoma City OK 73105
(405) 271-4200

%counsel for Amicus Curiae W.J. Lamberton
Roger R. Scott, Terry R. Doverspike
Pray, Scott, Williamson & Marlar
2910 Fourth Nat'l Bank Bldg., Tulsa OK 74119
(918) 583-1366

Joined by Seth and McKay, JJ.