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Sal Tinnerello & Sons, Inc. v. Stonington, Town of

ELR Citation: 28 ELR 21141
Nos. 97-7919, 141 F.3d 46/46 ERC 1403/(2d Cir., 04/03/1998)

The court affirms a district court's denial of a waste hauling company's motion to enjoin a town from enforcing a local ordinance that provides for a municipal takeover of solid waste collection. The court first holds that the waste hauler is not likely to succeed on the merits of its claim that the town's ordinance violates the U.S. Commerce Clause. The court declines to decide the issue of whether the waste hauler could make a sufficient showing of substantial impairment because it is not clear when the various contracts between the waste hauler and its customers were executed. To the extent that the contracts were executed subsequent to the enactment of certain state-law provisions reserving for all state municipalities the power to regulate and/or conduct waste collection and disposal, the waste hauler's claim that the ordinance was unexpected is less potent and, accordingly, so too is its claim of substantial impairment. While the ordinance's lack of a grace period is a relevant factor, the court does not consider it dispositive. The court then holds that the town's ordinance serves significant social and economic purposes. The town's stated goals of safety, efficiency, and equity are wholly legitimate. In addition, imposing the costs of solid waste disposal on an equitable, user-fee basis rather than utilizing general tax revenue is a legitimate public goal. Furthermore, the ordinance helped the town ensure that solid waste would be delivered to an incinerator possessing the proper permits rather than to incinerators of dubious quality or to landfills. And by ensuring against defaults on bonds that financed the town's waste facility and by making unnecessary a significant government subsidy of the disposal fees charged by the facility, the ordinance also served important economic interests. The court further holds that the town's ordinance reasonably promotes the public purposes for which the ordinance was enacted.

The court next holds that the ordinance does not violate the federal dormant Commerce Clause. The court finds no basis for concluding that the provisions of the town's ordinance are distinguishable from an ordinance that was previously upheld. The court also holds that the contract between the town and another waste hauler constitutes permissible market participation that is nonviolative of the Commerce Clause. In effect, the town has purchased the garbage hauling services from a private waste hauler. And a buyer of disposal services can dictate by contract where its contractor disposes of such waste without violating the Commerce Clause. The court further holds that the ordinance does not discriminate against commerce. Local garbage haulers are not required to buy processing or disposal services from a local facility. Rather, entities generating waste buy collection or disposal services solely from the town, and the town uses its discretion to dump the waste in what it deems to be an appropriate location. Moreover, the town has not favored in-state haulers over out-of-state competitors. In fact, the waste hauler that secured the contract is a national company, not a local one.

Counsel for Plaintiff
Eliot B. Gersten
Gersten & Clifford
214 Main St., Hartford CT 06106
(860) 527-7044

Counsel for Defendants
Robert D. Tobin
Tobin, Carberry, O'Malley, Riley & Selinger
43 Broad St., New London CT 06320
(860) 447-0335

Before Parker and Dearie,* JJ.