Burn Them, Burn Them All [1]
By John D. Moore, NCRA Vice President and Legal Counsel, Henn, Etzel & Moore, Inc.
CA Department Of Public Health Enjoined From Enforcing Restriction On Medical Waste Crossing State Lines. Does new ruling impact Al Co drug take back ordinance?
The Commerce Clause of the US Constitution (Art. I, Sec. 8) has an odd relationship to the field of solid waste. In 1978 the US Supreme Court issued its first decision since 1905 that related to garbage and found that solid waste was an “article of commerce” covered by the Commerce Clause [2] .
The Commerce Clause reserves to Congress the right to regulate interstate commerce; the purpose being to preserve a “Union” and guard against state “protectionist” laws. The 1979 case involved a state (New Jersey) passing a law forbidding the importation of solid waste into that state; a law passed because of dwindling landfill space there, a situation then existing in many East Coast states. The Supreme Court struck down the New Jersey law finding that “solid waste” is an “article of commerce” that New Jersey improperly regulated. The Court did not say exactly what about the nature of solid waste makes it an “article of commerce”. [3]
By labeling “solid waste” an article of commerce, the Court later struck down laws where local government commanded that solid waste be disposed of only at a facility directed by the local government. [4] The Court later modified its holding to allow local government to direct solid waste to facilities owned and operated by the local government. [5]
The Commerce Clause was applied to Alameda County’s pharmaceutical take back ordinance, and held constitutional by the Ninth Circuit Court of Appeals. [6] An intrastate limitation on the import of solid waste was held constitutional by the Solano County Superior Court. [7] A state case found that the Commerce Clause did not preclude an exclusive solid waste franchise arrangement in Pleasant Hill, CA. [8]
Last week the Ninth Circuit Court of Appeals struck down a portion of the state of California’s laws, as applied by Cal DPH, regulating the disposal of medical waste, on Commerce Clause grounds. Again, the Court did not examine why medical waste is an “article of commerce” and both it and the parties assumed that it was.
Under California law, medical waste collected within the state must be incinerated, and, if transported out of state, must be “consigned to a permitted medical waste facility in the receiving state. [9]
The plaintiff in the case operated a permitted medical waste transfer station in Fresno, where it received medical waste collected by an affiliated company. Because there was not a permitted medical waste incinerator in California, the plaintiff transported the medical waste first to an incinerator in Maryland. Then, to reduce disposal expenses, the plaintiff began transporting the medical waste to facilities in Kentucky and Indiana for “autoclave” and “thermal deactivation” treatment permitted in those states. Both of these processes involve heating the medical waste; it does not appear that anyone argued that these processes are de facto incineration under state law.
Cal DPH then threatened the plaintiff with fines, taking the position that medical waste shipped out of state still must be incinerated. The only statutory support for this position is when the “receiving state” does not have a permitted facility, in which case the medical waste must be incinerated. (Where that could be is an unresolved question.) But the plaintiff’s medical waste was taken to permitted facilities in Kentucky and Indiana.
Plaintiff filed suit in US District Court and obtained a preliminary injunction against the state, forbidding imposition of penalties or other regulatory action by Cal DPH. The Ninth Circuit affirmed the preliminary injunction stating
“Were it otherwise, California could purport to regulate the use or disposal of any item—product or refuse—everywhere in the country if it had its origin in California. The district court did not abuse its discretion when it determined that Daniels was likely to succeed on the merits and enjoined the Department officials from “enforcing the MWMA against Daniels’s out-of-state waste disposal.”
The Ninth Circuit treated this as a clear case of violating the Commerce Clause, as it considered Alameda County’s pharma ordinance to not impair interstate commerce. The Ninth Circuit did not comment on the difference between the statute requiring out of state treatment of medical waste at a permitted facility and Cal DPH’s interpretation of this statute. From experience I can relate that there often are facts in a case on appeal that the parties deem pertinent, where the Court does not share this view.
Hopefully the technology for safe disposal of medical waste will provide a solution besides incineration, possibly by the field of fungi-based mycoremediation. Please continue looking to this column to report on new applications of the Commerce Clause to solid waste and recyclable material.
And if you have read all the way to the end, please send me an email at jmoore@recyclelaw so I can tell if these legal articles are worth publishing in the NCRA News.
[1] Game of Thrones quoting the last words of Aegon Targaryen, King of Westeros
[2] Philadelphia v. New Jersey (1978) 437 US 617, 622-623
[3] Indeed, if the California Supreme Court was right in saying that “solid waste” was something valueless that an owner paid to dispose, how could something valueless, like solid waste, be an “article of commerce”. See Waste Management of the Desert v. Palm Springs Recycling Center (1994) 7 Cal.4th 478
[4].C & A Carbone v. Town of Clarkstown (1994),511 U.S. 383
[5] United Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 344 (2007)
[6] Pharm. Research & Mfrs. of Am. v. County of Alameda (9 Cir. 2014) 768 F.3d 1037
[7] NCRA v. County of Solano case no. FCS03687 Judgment entered May 30, 2009
[8] Waste Mgmt. of Alameda Cty. Inc. v. Biagini Waste Reduction Sys., Inc. (1988) 63 Cal. App. 4th 1488
[9] Health and Safety Code Section 118000(c)