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June 24, 1994


The opinion of the court was delivered by: SYLVIA H. RAMBO

 This case presents a challenge to the "flow control" component of the waste management plan adopted by Defendants in this case. Plaintiffs argue that the restrictions violate the "dormant" or "negative" Commerce Clause of the United States Constitution. The case is before the court on several parties' motions for summary judgment which have been briefed *fn1" and are ripe for disposition.


 The following essential facts are not in dispute. In response to a rapid decrease in the 1980's in the number of operating landfills and available landfill space in Pennsylvania, the Commonwealth of Pennsylvania enacted the Municipal Waste Planning, Recycling and Waste Reduction Act ("Act 101"), 53 P.S. § 4000.101 et seq. Act 101 was intended to ensure adequate long-term capacity for the disposal of waste generated within the Commonwealth. 53 P.S. § 4000.102(a). The Act gave counties the primary responsibility for the development and implementation of long-range plans for the disposal of waste generated within their borders. Id. Counties were required to plan over a ten year horizon.

 The Plan and the various county ordinances and resolutions empower a municipal corporation, the Bedford-Fulton-Huntingdon Solid Waste Management Authority (the "Authority"), to implement the Plan. (See Pls.' Supp. Br., Ex. A at 12-13, Exs. B-D, F-H.) In accordance with the Plan, the Authority has undertaken the financing and construction of a landfill located in Bedford County (the "Authority landfill"). The design, land acquisition and construction costs of the landfill were financed by Farmers Home Administration ("FmHA") bonds in the amount of $ 7.03 million. Although the Authority is the primary obligor under the bonds, FmHA required the Counties each to guarantee a proportionate share of the bonds.

 Pursuant to the authority conferred upon it by the Plan and the Resolutions and Ordinances, the Authority has promulgated a set of rules and regulations (hereafter "Authority Rules"). (Id., Ex. E.) The Authority Rules mandate that all "Regulated Municipal Waste" generated or collected within the participating counties be disposed of at Authority facilities. (Id. at 6, 9.) Subject to minor exceptions, this requires that all municipal waste generated or collected within the three counties be brought to the Authority landfill in Bedford County. (Pls.' Statement of Undisputed Facts, PP 11-12; Defs.' Resp., PP 11-12.) Permission from the Authority is required to transport Regulated Municipal Waste across state or county lines; such permission generally is granted only in conjunction with a waste transfer agreement with another county. (Id., P 12.) Under the Authority Rules, a hauler who takes trash out of the Counties for disposal without permission is subject to substantial sanctions, including loss of its trash hauling license. (Id., P 13.) Each county has passed an ordinance providing that all municipal waste generated within the county must be delivered to the facilities designated by the Authority pursuant to the Plan. (Id., Exs. F-H (collectively, the "Ordinances").)

 The Authority Rules and the Ordinances in combination form the flow control policies to which Plaintiffs in this case object. *fn2" Plaintiffs object to being forced to take trash to the Authority landfill because its tipping fees are substantially higher than the fees at other in-state and out-of-state facilities. For example, Plaintiffs assert that while tipping fees at the Authority landfill are $ 58 per ton (soon to rise to $ 61.80 per ton), those at a landfill in neighboring Somerset County, Pennsylvania are $ 28 per ton. Plaintiffs allege that, absent Defendants' flow control mandate, they would haul trash to less expensive facilities in Pennsylvania and Maryland. They claim that the flow control policy is economic protectionism. Accordingly, they challenge the Plan "to the extent that it operates to insulate the Authority's own landfill from all competition by directing that all county waste be delivered exclusively to that facility." (Pls.' Supp. Br. at 5.)


 The Third Circuit Court of Appeals has capsulized the standards for the award of summary judgment under Federal Rule of Civil Procedure 56:

Summary judgment may be entered if "the pleadings, deposition[s], answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); Equimark Comm. Finance Co. v. C.I.T. Financial Serv. Corp., 812 F.2d 141, 144 (3d Cir. 1987). If evidence is "merely colorable" or "not significantly probative" summary judgment may be granted. Anderson, 106 S. Ct. at 2511; Equimark, 812 F.2d at 144. Where the record, taken as a whole, could not "lead a rational trier of fact to find for the nonmoving party, summary judgment is proper." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).

 Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir. 1987).

 Once the moving party has shown that there is an absence of evidence to support the claims of the nonmoving party, the nonmoving party may not simply sit back and rest on the allegations in his complaint, but instead must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quotations omitted).

 I. Plaintiffs' Motion for Summary Judgment

 Plaintiffs argue that Defendants' flow control policy violates the dormant Commerce Clause of the United States Constitution. The Commerce Clause provides that "Congress shall have the power . . . to regulate Commerce . . . among the several States." U.S. Const. art. I, § 8, cl. 3. The Commerce Clause has a "negative" or "dormant" aspect which "has long been understood to . . . deny the States the power unjustifiably to discriminate against or burden the interstate flow of articles of commerce." Oregon Waste Sys., Inc. v. Department of Environmental Quality of Oregon, 128 L. Ed. 2d 13, 511 U.S. , 114 S. Ct. 1345, 1349 (1994) (citing Wyoming v. Oklahoma, 502 U.S. 437, 112 S. Ct. 789, 800, 117 L. Ed. 2d 1 (1992); Welton v. Missouri, 91 U.S. 275, 23 L. Ed. 347 (1876)).

 The Court recently discussed the purpose of the Commerce Clause:

The Framers granted Congress plenary authority over interstate commerce in "the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation." Hughes v. Oklahoma, 441 U.S. 322, 325-26, 60 L. Ed. 2d 250, 99 S. Ct. 1727 (1979). See generally The Federalist No. 42 (J. Madison). "This principle that our economic unit is the Nation, which alone has the gamut of powers necessary to control of the economy, . . . has as its corollary that the states are not separable economic units." H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537-38, 93 L. Ed. 865, 69 S. Ct. 657 (1949).

 Oregon Waste, 114 S. Ct. at 1349-50.

 The processing and disposal of waste may be the most popular subject of Commerce Clause analysis in recent years. In the last three terms, the United States Supreme Court has addressed four Commerce Clause challenges to regulations involving trash. C & A Carbone Inc. v. Town of Clarkstown, 128 L. Ed. 2d 399, 511 U.S. , 114 S. Ct. 1677 (1994); Oregon Waste Sys., Inc. v. Department of Environmental Quality of Oregon, 128 L. Ed. 2d 13, 511 U.S. , 114 S. Ct. 1345 (1994); Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334, 112 S. Ct. 2009, 119 L. Ed. 2d 121 (1992); Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U.S. 353 112 S. Ct. 2019, 119 L. Ed. 2d 139 (1992); see also Philadelphia v. New Jersey, 437 U.S. 617, 57 L. Ed. 2d 475, 98 S. Ct. 2531 (1978). In recent years, numerous lower courts also have addressed Commerce Clause challenges to various waste management schemes. See, e.g., Waste Systems Corp. v. County of Martin, 985 F.2d 1381, 1387 (8th Cir. 1993); J. Filiberto Sanitation Corp. v. New Jersey Dep't of Envtl. Protection, 857 F.2d 913 (3d Cir. 1988); Waste Recycling, Inc. v. Southeast Alabama Solid Waste Disposal Authority, 814 F. Supp. 1566, 1578 (M.D. Ala. 1993).

 Commerce Clause case law "yields two lines of analysis: first, whether the ordinance discriminates against interstate commerce, Philadelphia, 437 U.S. at 624; and second, whether the ordinance imposes a burden on interstate commerce that is 'clearly excessive in relation to putative local benefits.' Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 25 L. Ed. 2d 174, 90 S. Ct. 844 (1970)." Carbone, 114 S. Ct. at 1682. If the ordinance is discriminatory, it is "per se invalid save in a narrow class of cases in which the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest." Id. at 1683. In contrast, the Pike test is "softer around the edges," id. at 1698-99 (Souter, J., dissenting), leaving the burden of proof with the party challenging the statute.

 In this case, Plaintiffs assert that Defendants' flow control policy is discriminatory on its face and in effect and that the burden should shift to Defendants to show that the flow control ordinances are the only available means for advancing a legitimate state interest. Defendants, on the other hand, assert that the ordinances have neither a discriminatory purpose nor effect and should be analyzed under the Pike test.

 Recently, the Supreme Court faced a challenge to a flow control ordinance very similar to the one at issue here. Carbone, 114 S. Ct. at 1680-81. While the Town of Clarkstown ordinance addressed by the Supreme Court did not prohibit the ultimate export of waste (as do the challenged ordinances in this case), it mandated that all qualified waste generated within Clarkstown be brought for processing to the single transfer facility designated by the town. See Clarkstown ordinance, 114 S. Ct. at 1684-87. Only after the designated facility had processed the waste and extracted a fee from the hauler could the waste be taken out of the municipality. Id.

 The Carbone court analyzed the Commerce Clause challenge in three parts, addressing the following three questions:

(1) Does the ordinance regulate interstate commerce?
(2) If so, does the ordinance regulate evenhandedly with only "incidental" effects on interstate commerce or does it discriminate against interstate commerce?
(3) If discriminatory, is the ordinance the only available means to advance a legitimate state interest?

 Id. at 1681-84. Concluding that the ordinance regulated and discriminated against interstate commerce and that it was not the only available means for addressing the legitimate interests of the municipality, the Court struck down the Clarkstown flow control ordinance. Id. This court will follow the mode of analysis employed in Carbone.

 A. The Authority Rules Regulate Interstate Commerce

 Trash, or at least the service of processing and disposing of it, indisputably is an article of commerce. Carbone, 114 S. Ct. at 1682 ("the article of commerce is not so much the solid waste itself, but rather the service of processing and disposing of it"); Fort Gratiot, 112 S. Ct. at 2022 ("Solid waste, even if it has no value, is an article of commerce."); Chemical Waste Management, 112 S. Ct. at 2013 n. 3 (same); Philadelphia, 437 U.S. at 622-23 (same). The ordinances at issue in this case clearly regulate both solid waste and the services of hauling and disposing of it.

 The Authority and Bedford County argue that the Commerce Clause is not applicable in this case because, at the time the Plan was developed and adopted, there was no out-of-state seller willing to sell the long-term disposal capacity that the Counties were seeking. Defendants have cited nary a case in support of their argument that this fact makes the Commerce Clause wholly irrelevant. That is not surprising. The Supreme Court has made clear that the mere fact that the effects of a state or local law "are interstate in reach" is sufficient to bring an ordinance within the ambit of the Commerce Clause. Carbone, 114 S. Ct. at 1681.

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