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National Solid Wastes Management Ass'n v. Voinovich

ELR Citation: 21 ELR 21268
Nos. No. C2-89-85, 763 F. Supp. 244/33 ERC 1124/(S.D. Ohio, 05/01/1991)

The court holds that provisions of Ohio's solid waste disposal statute imposing a higher fee on disposal of out-of-state waste and requiring waste transporters and generators to consent to jurisdiction and service of process prior to transportation of wastes into Ohio violate the Commerce Clause of the U.S. Constitution. The court first holds that plaintiff, a nonprofit trade association whose members are engaged in solid waste management, has standing to sue on behalf of its members. The association's members would have standing to raise the issues presented in their own right because each member that imports solid waste into Ohio is currently subject to the statute's taxing scheme and filing requirements. The interests the association seeks to protect are germane to its purpose of protecting the interest of those engaged in solid waste management. Further, the participation of the individual members is not required. The alleged disagreement among the members over the suit does strip the association of standing if the association has alleged injury-in-fact to any one of its members. The association's allegation that its members will incur economic hardship due to the Ohio taxing scheme is sufficient to support standing, even though the members may be able to pass some of the cost to their customers. The court next holds that the association's challenge to the provision imposing a higher fee on out-of-state waste is ripe for review. The statute is in effect and currently being applied, and the harm to the association is concrete. The court declines to abstain from hearing the case to allow the state Environmental Board of Review to resolve the issues. The cases relied on by the association to bolster its abstention argument pertain to constitutional claims arising from the construction of state law, not to the present case challenging the constitutionality of the statute itself. Although Ohio has a legitimate interest in the disposal of solid waste, abstention is inappropriate because the association claims that the statute is unconstitutional on its face, the statute does not provide a centralized form to review the issues, and federal court review will not interfere significantly with the workings of a lawful state system.

The court holds that the provision of the Ohio statute imposing a higher fee on disposal of out-of-state waste than on in-state waste violates the Commerce Clause. The court notes that a statute that discriminates against interstate commerce without a compelling reason is unconstitutional regardless of how slight the burden on interstate commerce or how legitimate the state interest. The court holds that the Ohio statute discriminates against out-of-state wastes on its face and the state does not have a compelling reason for doing so. The increasing volume of solid waste shipped into Ohio is not a sufficient reason for the higher tax on out-of-state waste. The allegedly higher costs of inspecting out-of-state wastes also does not justify the tax, nor does the increased threat of hazardous waste entering the state. The court next holds that the consent to service provisions of the Ohio statute violate the Commerce Clause. The burden imposed on interstate commerce by these provisions exceeds any local interest advanced by the state. The provision clearly distinguishes between intrastate commerce and interstate commerce and places impediments on interstate commerce. Although the state has a legitimate interest in facilitating the service of process on out-of-state carriers, the state already has a long-arm statute. The consent to service provisions merely place unnecessary burdens on those who ship solid waste into Ohio.

Counsel for Plaintiff
Michael R. Szolosi
Szolosi & Fitch
37 W. Broad St., Columbus OH 43215
(614) 461-1337

Counsel for Defendant
Bryan F. Zima, Ohio Attorney General
State Office Tower, 30 E. Broad St., Columbus OH 43266
(614) 466-3376