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Blue Circle Cement, Inc. v. Board of County Comm'rs

ELR Citation: 26 ELR 21089
Nos. 91-C-635-H, 917 F. Supp. 1514/41 ERC 1409/(N.D. Okla., 05/12/1995) on remand

The court holds that a municipal zoning ordinance that requires a cement kiln to obtain a conditional use permit to burn hazardous waste fuels (HWFs) is preempted by the Resource Conservation and Recovery Act (RCRA) and imposes an undue burden on interstate commerce in violation of the Commerce Clause of the U.S. Constitution. The court first notes that RCRA §3009 empowers local governments to adopt regulations that are more stringent than those on the federal level. Thus, neither express nor implied preemption bar the ordinance. The court next holds that RCRA preempts the ordinance on the basis of implied conflict preemption. No property in the municipality can meet the ordinance's location requirements, creating a de facto ban on the burning of HWFs. This contravenes RCRA's stated objectives that treatment technologies such as incineration and recycling replace land disposal. The municipality also did not present any evidence that the ordinance addresses a local concern for safety or welfare in light of the cement kiln operator's assertions that the cement kiln combustion process detoxified organic hazardous wastes. Furthermore, the municipality failed to demonstrate that the criteria of the ordinance are reasonably related to a legitimate local interest. The court next holds that the ordinance imposes an undue burden on interstate commerce, thus violating the Commerce Clause of the U.S. Constitution. Applying a balancing test, the court determines that: the local benefits of the ordinance are minimal at best; the ordinance's burden on interstate commerce is great because the strict site requirements effectively prevent the flow of hazardous waste to the cement kiln facility and the municipality; the burden that the ordinance imposes is clearly excessive in relation to the local benefits; and there is no evidence to counter the cement kiln operator's assertion that the ordinance was irrational, overbroad, unreasonable, and unnecessary with respect to the regulation of recycling activities.

[A prior decision in this litigation is published at 24 ELR 21539.]

Counsel for Plaintiff
Charles W. Shipley
Shipley, Jennings & Champlin
First National Tower
15 E. 5th St., Ste. 3600, Tulsa OK 74103
(918) 582-1720

Counsel for Defendant
Bill Shaw, Ass't District Attorney
District Attorney's Office
219 S. Missouri St., Claremore OK 74017
(918) 341-3164