Tennsv, Inc. v. Gade

Nos. 92-503 WLB; 92-522 WLB (S.D. Ill. July 8, 1993)

The court holds that provisions of the Illinois Environmental Protection Act (IEPA) that restrict the location of waste treatment, landfill, and incinerator facilities serving areas beyond the borders of a local government unit are unconstitutional burdens on interstate commerce in violation of the Commerce Clause. Transporters of out-of-state waste argued that the IEPA requirements discriminated between facilities that accept only in-state waste, and those that accept out-of-state waste. Although the court agrees that the state's concerns for public health and safety are valid factors unrelated to economic protectionism, the state has failed to show that this purpose cannot be furthered through a nondiscriminatory alternative; no proof was offered that out-of-state waste poses health risks any different from locally generated waste. Moreover, the discriminatory effect on interstate commerce is not ameliorated by the factthat the IEPA regulations appear to affect only intrastate commerce. The court also holds that a provision of the IEPA requiring all persons to dispose of waste at sites or facilities that meet the Act's requirements applies to facilities without geographical distinction and therefore does not independently violate the Commerce Clause. The court further holds that Illinois' regulation of municipal solid waste handling and disposal through the IEPA is not preempted by federal law, because plaintiffs have failed to establish that the Staggers Rail Act, Department of Transportation regulations, and Interstate Commerce Commission regulations explicitly or implicitly occupy the entire field, or that the IEPA conflicts with these federal authorities.

Counsel for Plaintiffs
Jeffrey Hebrank
103 N. Main St., P.O. Box 510, Edwardsville IL 62025
(618) 656-0184

Counsel for Defendants
Thomas Davis, Ass't Attorney General
Attorney General's Office
500 S. Second St., Springfield IL 62206
(217) 524-7506

[24 ELR 20019]

Beatty, J.:

Order

Two lawsuits have been filed with the court challenging the constitutionality of certain provisions of the Illinois Environmental Protection Act (IEPA or the Act). In each of these lawsuits, the parties have submitted stipulated facts and have requested that the court rule on the constitutionality of the Act as it applies to these facts. The factual background of these lawsuits are similar and the constitutional issues raised are identical. Therefore, for purposes of this Order and decision only, causes No. 92-503 and No. 92-522 are consolidated.

The stipulated facts are lengthy and will not be repeated here. In summary, these cases involve the shipment of municipal solid waste (MSW) generated outside of the State of Illinois which is brought into the State of Illinois for its ultimate disposal. The Plaintiffs do not operate landfills. Instead, the Plaintiffs are involved in the shipment, [24 ELR 20020] conveyance, unloading, or loading of MSW generated outside of the State of Illinois. The Defendants interrupted the business of the Plaintiffs by citing the Plaintiffs for violations of the IEPA.

The Plaintiffs' constitutional challenge to the Act is twofold. First, the Plaintiffs allege that the Act discriminates between operations handling out-of-state MSW and operations handling locally generated MSW in a manner which violates the Commerce Clause. Second, the Plaintiffs allege that the Act's regulation of MSW generated outside of the State of Illinois is preempted by various federal regulations and is therefore unconstitutional under the Supremacy Clause.

The Plaintiffs challenge the application of IEPA Sections 39.2, 3.32, and 22.14 to their business activities. Section 39.2¹ requires that every Regional Pollution Control Facility (RPCF) obtain local siting approval prior to its operation. An RPCF is defined in Section 3.32² as "any waste storage site, sanitary landfill, waste disposal site, waste transfer station, waste treatment facility, or waste incinerator that accepts waste from or that serves an area that exceeds or extends over the boundaries of any local general purpose unit of government." Section 22.14(a)³ restricts the location of RPCFs, but does not restrict the location of facilities which do not fall within the definition of an RPCF. The Act, therefore, establishes a statutory scheme which distinguishes between facilities located outside the geographical boundaries of a general purpose unit of government and those which are not so located.

In Fort Gratiot Landfill v. Michigan Dept. of Nat. Res., 112 S. Ct. 2019 [22 ELR 20904] (1992), the Court noted that the "negative" or "dormant" aspect of the Commerce Clause prohibits States from advancing their own commercial interests by curtailing the movement of articles of commerce, either into or out of the state. Fort Gratiot Landfill v. Michigan Dept. of Nat. Res., 112 S. Ct. 2019, 2023 (1992). The Court held that "[a] state statute that clearly discriminates against interstate commerce is therefor unconstitutional 'unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism.'" Id. at 2023-24 (quoting New Energy Co. of Indiana v. Limbach, 486 U.S. 269, 274, 108 S. Ct. 1803, 1808, 100 L. Ed. 2d 302 (1988)).

The proffered justification for the statutory distinction and the different requirements for RPCFs is that these distinctions are necessary to protect the public health and safety. While the court agrees that concerns for the public health and safety. While the court agrees that concerns for the public health and safety are valid factors unrelated to economic protectionism, the Defendants bear the burden of proving that the [sic] this statutory scheme furthers health and safety concerns in a manner that cannot be adequately accomplished through a non-discriminatory alternative. Id. at 2027. The Defendants have failed to do so. The Defendants have offered no proof that MSW generated outside the boundaries of any local general purpose unit of government poses any different health risks to the public than MSW generated locally. Absent such proof, there exists no valid factor to justify the discriminatory effect of the statutory scheme. The establishment of RPCFs and the restrictions placed on these facilities, therefore, violates the Commerce Clause. Id. at 2023.

Furthermore, the intent of the legislature to provide a system to balance state and local interests does not cure the discriminatory effect of the challenged provisions of the IEPA. "[A] State (or one of its political subdivisions) may not avoid the strictures of the Commerce Clause by curtailing the movement of articles of commerce through subdivisions of the State, rather than through the State itself." Id. at 2024.

The Plaintiffs also argue that Section 21(e)⁴ violates the Commerce Clause. The court will address this contention bearing in mind that the court has declared that portions of Sections 39.2, 3.32, and 22.14(a) are unconstitutional as applied to interstate MSW. Thus, the court will interpret Section 21(e) vis-a-vis the remaining sections of the IEPA.

Section 21(e) states that all persons must dispose, treat, store, and not abandon any waste, except at sites or facilities which meet the requirements of the IEPA. It applies to intrastate, interstate, and facilities located within the boundary of a local general purpose unit of government and intended to serve only that entity. Therefore, in the absence of Sections 39.2, 3.32, and 22.14(a), Section 21(e) does not discriminate against interstate commerce in violation of the Commerce Clause.

The Plaintiffs' second constitutional challenge is based on preemption under the Supremacy Clause. The Plaintiffs argue that certain provisions of the IEPA are preempted by the Staggers Rail Act, DOT regulations, and ICC regulations. The Plaintiffs, while referring to the Staggers Rail Act, the DOT regulations, and the ICC regulations, do not point to any specific sections which give rise to a valid preemption argument under the Supremacy Clause. The Plaintiffs have failed to establish that this statute or these regulations explicitly or implicitly encompass the entire field of MSW disposal, storage, treatment, or transfer, or that the IEPA conflicts with these federal authorities. Gade v. National Solid Waste Management Ass'n, 112 S. Ct. 2374, 2383 [22 ELR 21073] (1992). The court, therefore, has no basis upon which to holdthat the state's exercise of its legitimate police power is preempted by federal law.

Accordingly, IEPA Sections 39.2, 2.32, and 22.14(a) are unconstitutional as applied to interstate MSW. Nothing has been presented to the court to establish that the Staggers Rail Act, the DOT regulations, or the ICC regulations preempt any portion of the IEPA.

IT IS SO ORDERED.

1. "The county board of the county or the governing body of the municipality, as determined by paragraph (c) of Section 39 of this Act, shall approve or disapprove the request for local siting approval for each regional pollution control facility which is subject to review." 415 ILCS 5/39.2(a) (formerly Ill. Rev. Stat. ch. 111 1/2, P1039.2(a) (1992)).

2. "Regional pollution control facility" is any waste storage site, sanitary landfill, waste disposal site, waste transfer station, waste treatment facility, or waste incinerator that accepts waste from or that serves an area that exceeds or extends over the boundaries of any local general purpose unit of government. . . .

The following are not regional pollution control facilities:

(1) sites or facilities located within the boundary of a local general purpose unit of government and intended to serve only that entity; . . . 415 ILCS 5/3.32 (1992) (formerly Ill. Rev. Stat. ch. 111 1/2, P1003.32 (1992)).

3. No person may establish any regional pollution control facility for use as a garbage transfer station, which is located less than 1,000 feet from the nearest property zoned for primarily residential uses or within 1,000 feet of any dwelling, except in counties of at least 3,000,000 inhabitants. In counties of at least 3,000,000 inhabitants, no person may establish any regional pollution control facility for use as a garbage transfer station which is located less than 1,000 feet from the nearest property zoned for primarily residential uses, provided, however, a station which is located in an industrial area of 10 or more contiguous acres may be located within 1,000 feet but no closer than 800 feet from the nearest property zoned for primarily residential uses. However, in a county with over 300,000 and less than 350,000 inhabitants, a station used for the transfer or separation of waste for recycling or disposal in a sanitary landfill that is located in an industrial area of 10 or more acres may be located within 1,000 feet but no closer than 800 feet from the nearest property zoned for primarily residential uses. 415 ILCS 5/22.14(a) (1992) (formerly Ill. Rev. Stat. ch. 111 1/2, P1022.14(a) (1992)).

4. "No person shall: (e) Dispose, treat, store, or abandon any waste, or transport any waste into this State for disposal, treatment, storage, or abandonment, except at a site or facility which meets the requirements of this Act and of regulations or standards adopted by the Board." 415 ILCS 5/21(e) (1992) (formerly Ill. Rev. Stat. ch. 111 1/2, P1021(e) (1992)).