Amicus Curiae Brief — C & a Carbone, Inc. v. Clarkstown

No. 92-1402

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(a8 die

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In The

Supreme Court of the United States

October Term, 1993

+

C & A CARBONE, INC., RECYCLING PRODUCTS OF

ROCKLAND, INC., C & C REALTY, INC. AND

ANGELO CARBONE,

Petitioners,

V.

TOWN OF CLARKSTOWN,

Respondent.

+

On Writ Of Certiorari To The

Supreme Court, Appellate Division

Second Department

Of The State Of New York

¢

BRIEF OF AMICUS CURIAE

COUNTY OF SAN DIEGO, CALIFORNIA

IN SUPPORT OF RESPONDENT

Of Counsel,

W. CuLLEN MacDonaLp

Eric S. PETERSEN

JEANNE M. SINCLAIR

HaAwkINs, DeLAFIELD &

Woop

67 Wall Street

New York, NY 10005

(212) 820-9333

Jerome A. BARRON

S

Litoyp M. Harmon, Jr.

County Counsel

Counsel of Record

County of San Diego

DIANE BARDSLEY

Chief Deputy County

Counsel

Scott H. Peters

Deputy County Counsel

355 County Administration

Center

1600 Pacific Highway

San Diego, CA 92101-2469

(619) 531-4860

George Washington University

National Law Center

720 - 20th Street, N.W.

Washington, D.C. 20006

(202) 994-6954

COCKLE LAW BRIEF PRINTING CO., (600) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Interest of the Amicus Curiae.......................

Il.

If.

IV.

In San Diego County, solid waste coll 2ction and

disposal is a public health and safety concern as

basic as police, fire, sewage disposal and water

— BOPPFTTIT LT ee ee eee eee

In San Diego County, fundamental public inter-

ests are at stake in solid waste disposal decision

ES 6556-4 6d eee sccubunscsdndundersesens ses

San Diego County has made a huge public invest-

ment in waste disposal assets in reliance on long

settled law giving it the right and responsibility to

provide for public sanitation ...................

A decision invalidating Clarkstown’s flow con-

trol law would threaten the viability of local

governments’ sanitation systems and deprive

them of any realistic means of managing their

| POET T ET PTET LET TTT eee Te

Ne PD abs page ticecee dette sdvencust

F< bonduenepovesanednds qnéanedsenene venice:

I.

Local governmental monopolies have long

served the ends of public health and safety by

removing and disposing of immediately dan-

gerous waste within their borders. Long settled

constitutional principles sustain such public

health and safety monopolies despite their anti-

SR Gre vscccndeccerssccesdétsweds

10

14

ii

TABLE OF CONTENTS - Continued

Page

A. Governmental public health monopoliza-

tion of the disposal of solid waste was long

ago constitutionally validated by this

Court. The disease avoidance reason

remains wholly unchanged and current... 16

B. The receipt of financial benefits by actively

participating local governmental public

health monopolies does not render them

subject to Commerce Clause review....... 19

II. Nothing in the Court’s recent private landfill

decisions suggests any alteration of the constitu-

tional principles previously validating govern-

mental waste monopolies ...............+..05 22

A. The market participant doctrine indepen-

dently supports the propriety of reaffirming

California Reduction and Gardner and their

per se validation of municipal waste monop-

OMS... ccccccccccessnns nip seen 24

B. This Court’s prior per se immunization of

municipal sewer monopolies under the

Sherman Act is consistent with a declination

to now require balancing inquiries under

the Commerce Clause...............650055 26

III. Local government waste monopolies are valid

when balanced under the Pike v. Bruce Church

iii

TABLE OF AUTHORITIES

Page

Taste or Cases

B.F. Goodrich Co. v. Murtha, 958 F.2d 1192 (2d Cir.

Te en ehachacceses 6

California Reduction Co. v. Sanitary Reduction Works,

199 U.S. 306 (1905) ............. 11, 12, 16, 17, 19, 24

Chemical Waste Management, Inc. v. Hunt, 112 S. Ct.

i cisheehscnvatacactenceescceses 12, 22, 23

City of Philadelphia v. New Jersey, 437 U.S. 617

DP PiPEsGbSieeneceeccecessececes 12, 22, 23, 24, 27

Community Communications Co. v. Boulder, 455 US.

EE 26

District of Columbia v. Brooke, 214 U.S. 138 (1909) .... 19

Evansville-Vanderburgh Airport Authority District v.

Delta Airlines, Inc., 405 U.S. 707 (1972)............ 21

Fort Gratiot Sanitary Landfill v. Michigan Dep't of Natu-

ral Resources, 112 S. Ct. 2019 (1992)....... 12, 22, 23, 24

Gardner v. Michigan, 199 U.S. 325 (1905). .11, 16, 17, 19, 24

Hughes v. Alexandria Scrap Corp., 426 US. 794

PUES EACeEEGRCGRCRSE LE cehesenciacncccesess 24

Hutcheson v. City of Valdosta, 227 U.S. 303 (1913) .... 19

Hybud Equipment Corp. v. City of Akron, 654 F.2d

1187 (6th Cir. 1981), vacated on other grounds, 455

U.S. 931 (1982), on remand, 742 F.2d 949 (6th Cir.

1984), cert. denied, 471 U.S. 1004 (1985) ........ 12, 17

Hybud Equipment Corp. v. City of Akron, 742 F.2d

949 (6th Cir. 1984), cert. denied, 471 U.S. 1004

ENNnENGnb8666500506056006000406000600000006 27

iv

TABLE OF AUTHORITIES - Continued

Page

]. Filiberto Sanitation v. rtment of Environmental

Protection, 857 F.2d 913 (3d Cir. 1988)..°.......... 26

Milk Control Board v. Eisenberg Farm Products, 306

Me ones cndubnedectusakencdedebascensds 28

Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456

DS sthbisensususdhuuncceuseencenaskseeensdeess 28

Morgan's Steamship Co. v. Louisiana Bd. of Health,

Se neu bndsnuahueecdenscbsahdonbes 19

Olsen v. Smith, 195 U.S. 332 (1904) .................. 27

Ouachita Packet Co. v. Aiken, 121 U.S. 444 (1887)..19, 21

Packet Co. v. Catlettsburg, 105 U.S. 559 (1881)..... 19, 21

Parker v. Brown, 317 U.S. 341 (1943)................. 27

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)

eiticttdbatee Nialie ih eines 2 tick oe i re 14, 20, 27, 28, 30

Reeves, Inc. v. Stake, 447 U.S. 429 (1980)............. 24

Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872)... 19, 20

Swin Resources Systems, Inc. v. Lycoming County,

883 F.2d 245 (3d Cir. 1989), cert. denied, 493 US.

Se ec eknkcnucccansncedusenceecssenscens é< 25

Town of Hallie v. City of Eau Claire, 471 U.S. 34

PP SGRShahbkbsRecdnnbeebnsécees esUbeks EEG cons 26

Transportation Co. v. Parkersburg, 107 U.S. 691

a abesnccdcncnvhssanunashececdevcneesdkens 19, 21

White v. Massachusetts Council of Construction

Employers, Inc., 460 U.S. 204 (1983)............. 24, 25

Wyoming v. Oklahoma, 112 S. Ct. 789 (1992).......... 24

Vv

TABLE OF AUTHORITIES - Continued

TABLE OF STATUTES

Federal

42 US.C.A. § 9601 ef seq... 2.000 c cece cence.

42 US.C.A. § 6901(a)(4).. 00 e ccc eeeee.

Local

McKinney’s 1991 Laws of New York Ch. 569.....

OtTHEeR AUTHORITIES

All Things Considered, (NPR broadcast, June 13,

1993), available in LEXIS, Nexis Library, CUR-

BOE Sc ncdschcanensceseuddsddedeadeepeeter-

Alan M. Barnes, Zoologic Society of London: Surveil-

lance and Control of Bubonic Plague in the United

States 237 (reprinted by U.S. Dep’t of Health and

Human Servs., Pub. Health Serv. No. 50, 1982) ..

Eule, ing the Dormant Commerce Clause to Rest,

91 Yale L.J. 425 (1982)..................------.

Paul D. H h, M.D. & M. Colin Jordan, M.D.,

Infectious Di 1305 (4th ed. 1984) ..........

Bernard C. Nelson et al., The Complexities at the

Interface Among Domestic/Wild Rodents, Fleas,

Pets and Man in Urban Plague Ecology in Los

Angeles County, California, Proceedings Twelfth

Vertebrate Pest Conference, Univ. of California,

EE We Pen adeccecatéscedenccuseusensssss

Page

No. 92-1402

°

In The

Supreme Court of the United States

October Term, 1993

°

C & A CARBONE, INC., RECYCLING PRODUCTS OF

ROCKLAND, INC., C & C REALTY, INC. AND

ANGELO CARBONE,

. Petitioners,

TOWN OF CLARKSTOWN,

Respondent.

+

On Writ Of Certiorari To The

Supreme Court, Appellate Division

Second Department

Of The State Of New York

=—@

BRIEF OF AMICUS CURIAE

COUNTY OF SAN DIEGO, CALIFORNIA

IN SUPPORT OF RESPONDENT

+

INTEREST OF THE AMICUS CURIAE

The County of San Diego, California (the “County”)

owns a solid waste disposal system (the “County Dis-

posal System”) that provides solid waste disposal service

to its 1,400,000 residents generating 1.6 million tons of

solid waste per year. It includes five major operating

landfills, a major materials recovery (recycling) facility,

and more than twenty closed landfills and burn sites that

the County formerly used. The County Disposal System

I

y |

—

serves vital health and safety interests and depends on

“flow control” for its very existence.

I. In San Diego County, solid waste collection and

disposal is a public health and safety concern as

basic as police, fire, sewage disposal and water sup-

ply.

The safe disposal of garbage, trash and refuse and

the prevention of disease, obnoxious and dangerous

odors, gases and vermin inherent in solid waste is first

and last a matter of public health and safety. California

counties and cities collect solid waste themselves, make

and enforce sanitary ordinances regafding collection,

and, when consistent with public health and safety, grant

franchises, contracts or permits to private haulers. This

latter practice dates from the 1800’s and has long been

relied on by the County.

Some California governments utilize their own

employees to directly provide collection and disposal

services themselves. Public service monopolies in solid

waste are also created by controlled privatization as well

as by the use of municipal labor forces. California allows

waste collection and hauling service, based on public

interest findings by local government, to be provided

exclusively in a particular district by a private company

selected by the government. Hauler rates are bid, negoti-

ated and regulated. Under this public utility model, fran-

chises are awarded to the selected hauler upon terms and

conditions satisfactory to the local government. Such

public service collection, hauling and disposal monopo-

lies have in fact been established by exclusive franchise

for all solid waste generated by most of the cities within

San Diego County.

3

Most basic public services, such as police and fire

protection, sewage disposal and water supply, are in fact

provided by local government monopolies which exclude

competitors. Comparison of sewage disposal to waste

disposal helps draw the “flow control” issue most

sharply. Sewage disposal is ordinarily provided by back-

yard septic systems or by sewer lines carrying sewage to

a central municipal treatment facility. Local government

routinely obligates homeowners to cease using septic

tanks, hook up to sewer lines provided by a local govern-

ment monopoly, and pay all attendant costs. Sewage gen-

erators and septic tank pumpers are simply not permitted

to disregard sewer line hook-up ordinances, evade the

monopoly public sewer system and truck the septic

pumpings in interstate commerce. Solid waste flow con-

trol differs from sewage waste flow control only in that

the dangerous wastes move by truck rather than pipe.

Haulage vehicles are the conveyance pipes of solid waste.

Waste haulers are pipeline operators providing an essen-

tial public service.

Il. In San Diego County, fundamental public interests

are at stake in solid waste disposal decision mak-

ing.

Safe waste disposal is a basic public need and legal

duty of the County and cities in the region. Private indus-

try has no inherent duty to provide this service. Landfills

and other major disposal facilities take years from initial

planning to commercial operation, a consequence of sit-

ing, environmental review and public approval process

timelines. Initial planning and permitting costs exceed

tens of millions of dollars. Local government cannot dis-

charge its sanitation duty while ignoring these daunting

4

time and cost realities. If a facility or landfill were to

cease operations for any reason, the County simply can-

not produce an instant replacement. This development

timeline requires long-term planning with reasonable cer-

tainty as to how much trash to plan for. Providing over-

sized facilities squanders precious resources; providing

undersized facilities risks being unable to reliably serve

excess tonnages. Flow control avoids either untoward

result.

The means by which local government chooses to

carry out its sanitation responsibilities vary widely,

reflecting local facts and circumstances. Elected officials

decide the extent and degree to which private sector

companies participate in the public service. Management

of solid waste involves an array of assets: collection

trucks and containers; transfer stations; recycling facili-

ties; compost plants; waste-to-energy facilities; and land-

fills. It involves numerous classes of waste: single family

residential, multi-family residential, commercial, indus-

trial, construction and demolition, yardwaste and house-

hold hazardous waste. Government must decide whether

municipal forces or private companies will be utilized,

providing which assets, handling which class of waste,

and serving which district within the region.

Local government has a vital interest in assuring that

waste disposal service is reasonably priced. When dis-

posal costs at private East Coast landfills rose sharply in

the 1980’s from $30 per ton to $125 per ton, many munici-

palities developed waste-to-energy facilities costing $80

per ton. Private landfill prices have since come down to

$45 per ton. On the other end of the pricing scale, i. is not

uncommon for below cost, “teaser rate” disposal service

to be offered to municipal government in an attempt to

5

induce government to abandon a long-term public dis-

posal project for short term rate relief. These phenomena

clearly indicate a great price elasticity, with fees bearing

little relationship to costs; private waste industry can

raise or lower prices almost at will to serve immediate

ends. Government-sponsored landfill or waste-to-energy

facilities provide stable and reasonably priced, controlled

disposal service on a long-term basis. The County Dis-

posal System operates at cost and is constitutionally, stat-

utorily and contractually required to do so.

Landfills and other waste disposal facilities are

heavily regulated by state and federal government. Local

government has important and valid public health and

safety interests in disposal facility development indepen-

dent of these regulations. Regional issues are vital. Allot-

ting disposal facilities among communities in the region

is basic to the general welfare of the County. Truck traffic,

accidents, air pollution, and noise levels resulting from

waste haulage and disposal are all sensitive local, health

and safety matters.

California mandates that county and city integrated

waste management plans include a schedule under which

25% of the wastestream in counties and cities will be

recycled and diverted from landfill by 1994, and 50% by

2000. Local communities elect the means and methods of

meeting these environmentally beneficial landfill diver-

sion mandates through combinations of curbside recyc-

ling, central waste processing and composting

alternatives. However, virtually every such diversion

choice involves greater total expense than landfilling. For

example, San Diego County’s materials recovery facility

will cost more than three times as much per diverted ton

than landfilling. State and local government have thus

6 —

made higher cost choices for disposal based on a dis-

favoring of landfills and the re-use of materials.

The County faces the practical burden and cost of

dealing with closed, formerly private landfills in which

the County had no prior involvement. Private operators,

until recently, were basically free to operate open,

unlined dumps. As the dumps filled, regulations tight-

ened and costs increased, the operators abandoned the

dumps, leaving local government to deal with what

remained. Recourse to the judgment-proof ex-operator

for recoupment of costs is generally unavailing. The

County also faces multi-million dollar costs of cleaning

up and managing the more than twenty closed landfills

and former burn sites which it did operate. These future

costs from past sanitation activities are justly the respon-

sibility of current ratepayers; hauler evasion of County

flow control would disproportionately burden ratepayers

served by non-evading haulers. Finally, local govern-

ments are liable as responsible parties under the Compre-

hensive Environmental Response, Compensation and

Liability Act (“CERCLA”), 42 U.S.C.A. § 9601, et seq. (B.F.

Goodrich Co. v. Murtha, 958 F.2d 1192 (2d Cir. 1992)). The

County has chosen to build and operate the County Dis-

posal System precisely to monitor and control these risks.

The County’s interest in waste disposal monopoliza-

tion for the protection of the public health and safety is

further driven by its concern that the solid waste hauling

and disposal industry in its region has been cited for

illegal and unethical business practices.

7

III. San Diego County has made a huge public invest-

ment in waste disposal assets in reliance on long

settled law giving it the right and responsibility to

provide for public sanitation.

The San Diego County Board of Supervisors has for-

mally declared, in a September 1992 policy statement,

that waste disposal assets serving the people of San

Diego County should be publicly owned, managed or

controlled to best serve the public interest. The County’s

five landfills are publicly owned and controlled. Pres-

ently, operations are contracted out and performed by

private business. The County’s materials recovery facility,

expected to be operational in 1993, is privately owned but

operated for the exclusive benefit of the County at the

County’s expense.

Costs of the County Disposal System, in addition to

landfill capital and current operating costs and service

payments to the materials recovery facility operator,

include maintaining large reserves for federal and state-

mandated future landfill capping, closure and post-clo-

sure monitoring; household hazardous waste collection

and disposal; recycling; planning and education; and

County sanitation code enforcement. The County’s mate-

rials recovery facility, built in response to State waste

disposal mandates, represents particularly massive and

costly investment. The County has contractually commit-

ted 550,000 tons of solid waste per year to the facility for

20 years on a “put-or-pay” basis. Project revenue bond

debt of $134 million was issued by the facility owner and

is secured principally by the County’s annual processing

fee.

8

The County operates the County Disposal System

through an “enterprise fund” in which solid waste reve-

nues and expenses are accounted for separately from

general funds. Enterprise funds and general fund moneys

may not be commingled, and enterprise fund moneys

must be raised in amounts which are not less nor more

than are sufficient to cover County Disposal System costs.

Various contract and debt instruments involving hun-

dreds of millions of dollars in payments have been

entered into by the County for County Disposal System

purposes secured by the enterprise fund. General county

taxes are not legally pledged and will not be available to

support such limited resource payment obligations.

IV. A decision invalidating Clarkstown’s flow control

law would threaten the viability of local govern-

ments’ sanitation systems and deprive them of any

realistic means of managing their waste.

The means by which municipal government pays for

public monopoly disposal service is a crucial element of

local decisionmaking. San Diego County has chosen the

user-fee method, where haulers using the County Dis-

posal System pay user fees at the landfill gate. The sys-

tem is self-sustaining and not taxpayer supported. Such

user fee systems, based on tonnage delivered, encourage

recycling and other landfill diversion practices. California

law restricts government enterprise funds from charging

rates in excess of costs; excesses are deemed taxes requir-

ing voter approval.

County Disposal System costs have increased signifi-

cantly in recent years owing principally to increased

landfill regulatory requirements. The tipping fee charged

at the County Disposal System to cover these costs has

9

risen from $8 per ton in 1987 to $43 per ton presently.

Costs of the materials recovery facility and landfill

improvements are expected to raise the tipping fee to $67

in 1996.

No solid waste generated in San Diego County has

historically left California or the County for disposal.

Solid waste has flowed to the County Disposal System on

an economic basis, since no feasible alternatives existed

and none were more economical given transportation and

disposal costs. With the projected increase in the County

tipping fee, however, such “economic” flow control will

no longer be adequate to assure the disposal of County-

generated solid waste at the County Disposal System.

Haulers will find out-of-County and out-of-State disposal

cheaper, at least episodically. With costs rising and ton-

nage declining the tipping fee will have to be raised to

assure the solvency of the enterprise fund. The more the

tipping fee increases, the greater the incentive and poten-

tial for evasion. This is known in the public finance

industry as the “death spiral”.

To prevent such a financial collapse, which would

prevent the County from meeting its health and safety

objectives, the County must be able to make and rely on

flow control laws and agreements to require the contin-

ued delivery of County solid waste to the County Dis-

posal System. In the unincorporated area, the County will

augment its current hauler permit system and grant fran-

chises to private haulers in order to obligate them to haul

waste to the disposal site designated by the County. As to

waste generated in the cities in San Diego County, waste

supply agreements have been executed by fourteen cities

obligating them to cause their franchise haulers to con-

tinue to deliver all solid waste to the County Disposal

10

System. Underpinning the viability of the County Dis-

posal System with “legal flow control” in this manner is

critical to avoiding the “death spiral” risk to this critical

public asset.

SUMMARY OF ARGUMENT

Petitioners and their amici argue for the establish-

ment of a constitutional right to pick-up any and all

waste (locally generated and otherwise), sort or

“remanufacture” it, bail it, and ship it whenever, wher-

ever and to whomever they choose. The argument is

advanced broadly as if there were no difference between

state conservation efforts to ration or husband access to

private landfills and efforts of local governments to

assure safe and healthy disposal of all local waste every

step along the way, from pick-up through final disposi-

tion.

Petitioners argue that, if a municipal government has

elected to fulfill such public health and safety duties by

employing “flow control”, this Court should overlook

public health and safety justifications because such a

disposal requirement might also allow the municipality to

realize monopolistic economies of scale at the expense of

excluded carters. Under this view, invalidity follows no

matter the range of possible, financial benefits to the

responsible government and no matter how speculative

the detrimental impact on interstate commerce. Most

importantly, invalidity is claimed even though the local

government is directly participating through its owner-

ship of or exclusive control over the aggregating means

being employed. A risk-averse local government may

11

never require use of its own facility because such monop-

olistic use might occasionally or permanently result in

public charges in excess of those for private transporta-

tion to out-of-state landfills. Even though local residents

bear the burden of such higher charges, petitioners claim

that mandatory aggregation in collection and disposal is

still unwarranted because it might erode a carter’s para-

mount Commerce Clause right to maximize its own

receipt of waste removal payments.

The County respectfully suggests that Clarkstown be

afforded, in aid of its good faith attempt to properly

fulfill its public health and safety duties, freedom of

choice between rational alternatives. These include com-

pletely prohibiting others from participation in collecting

and disposing of waste and compelling permitted waste

haulers to collect, handle, transport and deposit the waste

only in approved ways. The most relevant prior decisions

of this Court validated public health and safety monopo-

lies for the collection and disposal of waste, based upon

an arbitrariness standard according great respect for the

public health and safety decisions of state and local gov-

ernments in lawfully establishing such sanitation monop-

olies. (California Reduction Co. v. Sanitary Reduction Works,

199 U.S. 306 (1905); Gardner v. Michigan, 199 U.S. 325

(1905)).

We perceive no ground to doubt the good

faith of the Board of ge geen nor can we say

that the mode adopted for the suppression of

the evils in question was arbitrary or did not

have a real, substantial relation to the protection

of the public health.

The State, charged with the duty of safeguard-

ing the health of its people, committed the sub-

ject to the wisdom and discretion of the Board of

12

Supervisors. The conclusion it reached appears

in the ordinances in question, and the courts

must accept it, unless these ordinances are, in

some essential particular, repugnant to the fun-

damental law. (California Reduction Co., 199 U.S.

at 320-21).

Numerous localities have long modeled their own safe

waste disposal solutions upon the San Francisco and

Detroit government monopolies which were previously

approved by this Court.

Courts in literally hundreds of reported cases

have upheld the authority of local governments

to monopolize and control local garbage collec-

tion by eliminating and restraining competition

among private collectors. If any area of the law

can be said to be well settled, this one is. (Hybud

Equip. Corp. v. City of Akron, 654 F.2d 1187, 1192

(6th Cir. 1981); emphasis added).

Nothing in Commerce Clause jurisprudence suggests that

such municipal public health and safety monopolies have

now somehow fallen outside of the spectrum of good

faith alternatives available to the primarily responsible

local government. Indeed, decisions before and after 1905

involving analogous direct governmental participation

have been held beyond the reach of potential dormant

Commerce Clause invalidation.

Chemical Waste Management, Inc. v. Hunt, 112 S. Ct.

2009 (1992), Fort Gratiot Sanitary Landfill v. Michigan Dep't

of Natural Resources, 112 S. Ct. 2019 (1992) and City of

Philadelphia v. New Jersey, 437 U.S. 617 (1978) hela only

that neither the responsible state nor local government

can prohibit or restrict the disposal of wastes at privately

owned landfill sites that were originally generated, col-

lected and shipped elsewhere, at least not without equiv-

alent application to local wastes as well. Nowhere in any

13

of these decisions is it seriously suggested that there is

any “free market” philosophy which would ever justify a

judicial veto of a local decision to build a facility

designed for disposal of 100% of locally-generated waste,

and supported by a legal or contractual requirement that

all such waste be disposed of ai the facility.

Due respect for the principles of federalism in this

quintessentially “local” waste disposal area suggests an

enthusiastic vote of confidence in local government. Of

course, Congress could retreat from its endorsement of

the longstanding federal collective judgment that “the

collection and disposal of solid wastes should continue to

be primarily the function of State, regional, and local

agencies,” 42 U.S.C.A. § 6901(a)(4). Until then, however,

this Court should continue to entrust at least this much of

the problem of waste disposal to those local governments

“primarily” responsible for and actually participating in

the collection and disposal of such waste.

Anything less invites the burdens and delays of

review by injunction of every such local monopolizing

governmental decision. Such inordinately expensive

inquiries must occur when Congress has acted. But here,

Congress has for more than a century totally endorsed

the anti-competitive effects of local government public

health and safety waste monopolies. This Court has never

held these effects barred by the co-extensive reach of the

Sherman Act.

The very waste disposal market itself is largely the

product of the imposition by local government of lawful

disposal duties upon local waste possessors. The same

local government participates directly through a public

health and safety monopoly in removing and disposing of

14

the waste. Nothing in the substantially congruent Com-

merce Clause or Sherman Act jurisprudence compels any

“balancing” review of any aspect of these governmental

actions. No matter how extreme may be the economic

harm to the excluded potential competitor, such harm

will never truly outweigh the public health and safety

raison d’étre for establishing the governmental waste

monopoly. Alternatively, even under the Court's Pike v.

Bruce Church balancing test, the Clarkstown flow control

system is valid.

S

ARGUMENT

I. LOCAL GOVERNMENTAL MONOPOLIES HAVE

LONG SERVED THE ENDS OF PUBLIC HEALTH

AND SAFETY BY REMOVING AND DISPOSING

OF IMMEDIATELY DANGEROUS WASTE WITHIN

THEIR BORDERS. LONG SETTLED CONSTITU-

TIONAL PRINCIPLES SUSTAIN SUCH PUBLIC

HEALTH AND SAFETY MONOPOLIES DESPITE

THEIR ANTI-COMPETITIVE EFFECTS.

Petitioners argue that the “economic protectionism”

or “free trading” concept embedded in this Court’s Com-

merce Clause jurisprudence secures to them a right to

compete with Clarkstown for waste within its borders,

whether generated by Clarkstown’s citizenry or other-

wise. They argue that no local government could decide

to participate directly in the actual delivery of such a

concededly essential public health service — timely collec-

tion and disposal of municipal waste — without also hav-

ing to compete directly with private industry in the

rendering of such services. No local government can ever

be permitted to decide to provide such services with

15

respect to all waste within its borders, unless the decision

is justified by pure public health reasons, untainted by the

specific economic goal or benefit of reducing the overall

cost to the host municipality and its taxpayers.

Under petitioners’ openly competitive model, local

gevernments must predict the amount of waste to be

collected and disposed of under free market forces, size

collection fleets and necessary facilities to handle safely

such estimates and then let the market forces reign.

Should spot market prices surpass those of the public”

entities, undersized governmental systems could become

unable to dispose of waste for which they did not plan.

Unlike the government, private carters remain free to

elect not to collect and dispose of waste when profits are

unavailing. Episodic withdrawals of the private sector

leave all risk to the public, whose workforce and facilities

may not be capable of handling such abandoned waste.

Early decisions sizing municipal plants and workforces

for 100% of all predicted waste would go far to prevent

such a lack of capability. But the inability to control waste

flow would soon render uneconomic such oversized facil-

ities and thereby inflict substantial economic harms upon

the public. No prior decision of this Court suggests in

any way that a risk-averse local government cannot avoid

such harms by a decision to compel collection and dis-

posal of all waste within its borders.

16

A. Governmental public health monopolization of

the disposal of solid waste was long ago consti-

tutionally validated by this Court. The disease

avoidance reason remains wholly unchanged

and current. -

Historically, public health monopolizing decisions

have often been thought necessary for a local government

to attract private capital to assist it in providing such an

essential public service. Indeed, municipal grants or

awards of waste collection and disposal monopolies have

long had an honorable place in the history of waste

disposal. California Reduction Co. v. Sanitary Reduction

Works, 199 U.S. 306 (1905) and Gardner v. Michigan, 199

U.S. 325 (1905) each upheld injunctions enforcing munici-

pal awards of exclusive collection and disposal monopo-

lies over competitors claiming “due process” objections

and correlative rights either to continue competing or to

be compensated for such an alleged taking of their pri-

vate property for public use. This Court’s ninety-year-old

understanding and description of the dimensions of the

municipal collection and waste disposal challenge, the

chosen monopolization solution and the carters’ claims

remains wholly current and incisive:

[T]he municipal authorities might well have

doubted whether the substances that were per se

dangerous or worthless would be separated

from such as could be utilized and whether the

former would be deposited by the scavenger at

some place that would not endanger the public

health. They might well have thought that the

safety of the community could not be assured

unless the entire mass of garbage and refuse,

constituting the nuisance, from which the dan-

ger came, was carried to a crematory where it

could be promptly destroyed by fire; and thus

17

minimize the danger to the public health. (Cali-

fornia Reduction Co. v. Sanitary Reduction Works,

199 U.S. at 323).

California Reduction and Gardner remain as compel-

ling and persuasive as ever. Recentiy Hybud Equipment

Corp. v. City of Akron, 654 F.2d 1187 (6th Cir. 1981) rejected

efforts identical to petitioners’, to distinguish California

Reduction and Gardner: —

The plaintiffs and the American Paper Insti-

tute argue, however, that the increased value of

wastes and the City’s appropriation of that

value render the old cases anachronisms that

should be set aside. They argue that changed

economic circumstances and heightened envi-

ronmental concern make separating and selling

such recyclable wastes as metal, paper and card-

board more feasible now than in the past. They

point out that there now exist competitive mar-

kets for recyclable wastes. They argue that

Akron’s purpose in acquiring a monopoly over

garbage is not public health, as was the purpose

in the old cases, but rather making its energy

plant more profitable by insulating it from com-

petition for raw materials. A monopoly imposed

for that purpose, they argue, is neither neces-

sary nor efficient.

The old cases are not anachronisms. They are

not distinguishable on any of these grounds. The

solid waste disposal problem is as serious today for

cities as in the past, perhaps more serious.

Neither does the fact that the City appropri-

ates the value and sells some of the recyclable

waste, or chooses in manufacturing energy to

burn some of the paper and cardboard rather

than to resell it, distinguish the old cases. Under

these cases, the City could simply have taken over all

garbage collection as in San Francisco, Detroit and

18

Cincinnati, depriving existing collectors of any busi-

ness at all.

In each of the cases discussed above the city

granted a monopoly right to collect garbage to a

single company, permitting that company alone to

engage in a profitable business that had previously

been done by several firms. The courts held that

the public interest in regulation of garbage was

so great that monopolization of the service and

the attendant transfer of profits did not violate

the taking or due process clause. (Hybud, 654

F.2d at 1193-94; emphasis added).

The County respectfully submits that adherence to

these municipal waste precedents is both necessary and

advisable. For example, while the last bubonic plague

outbreak occurred in Los Angeles in 1924, the danger “is

still a threat in several Western States, including New

Mexico, Arizona, Colorado, California and Oregon.” (All

Things Considered, (NPR broadcast, June 13, 1993), avail-

able in LEXIS, Nexis Library, CURRNT File; Paul D. Hoe-

prich, M.D. & M. Colin Jordan, M.D., Infectious Diseases

1305 (4th ed. 1984) (“The primary preventive or suppres-

sion measures against urban plague consists of rigorous

environmental sanitation aimed at reducing or eliminating

commensual rodent populations, particularly rats and

their fleas.” (emphasis added)); Alan M. Barnes, Zoologic

Society of London: Surveillance and Control of Bubonic Plague

in the United States 237 (reprinted by U.S. Dep’t of Health

and Human Servs., Pub. Health Serv. No. 50, 1982); Ber-

nard C. Nelson et al., The Complexities at the Interface

Among Domestic/Wild Rodents, Fleas, Pets and Man in Urban

Plague Ecology in Los Angeles, County, California, Proceed-

ings Twelfth Vertebrate Pest Conference, Univ. of Califor-

nia, Davis 88 (1986)). Prevention of disease is the

19

continuing, core reason for reaffirming the validity of

California Reduction and Gardner.

B. The receipt of financial benefits by actively

participating local governmental public health

monopolies does not render them subject to

Commerce Clause review.

Throughout our history local governmental monopo-

lies have regularly been used to attract private capital to

public ends. Much of what is now referred tu as infra-

structure was originally built and operated through such

municipal monopoly grants, monopolies which both com-

petitors and paying customers regularly and broadly

attacked as unconstitutional. (E.g., Slaughter-House Cases,

83 U.S. (16 Wall.) 36 (1872); Hutcheson v. City of Valdosta,

227 U.S. 303 (1913); District of Columbia v. Brooke, 214 U.S.

138 (1909); Ouachita Packet Co. v. Aiken, 121 U.S. 444

(1887); Morgan’s Steamship Co. v. Louisiana Bd. of Health,

118 U.S. 455 (1886); Transportation Co. v. Parkersburg, 107

U.S. 691 (1882); Packet Co. v. Catlettsburg, 105 U.S. 559

(1881)). None of the wide-ranging full scale constitutional

assaults on the anti-competitive effects of such munici-

pally established monopolies ever succeeded in overcom-

ing a public health and safety justification.

“Unwholesome trades, slaughter-houses,

operations offensive to the senses, the deposit of

powder, the application of steam power to pro-

pel cars, the building with combustible mate-

rials, and the burial of the dead, may all,” says

Chancellor Kent, “be interdicted by law, in the

midst of dense masses of population, on the

general and rational principle, that every person

ought so to use his property as not to injure his

neighbors; and that private interests must be

20

made subservient to the general interests of the

community.”

In Gibbons v. Ogden, Chief Justice Marshall,

speaking of inspection laws passed by the

States, says: “They form a portion of that

immense mass of legislation which controls

everything within the territory of a State not

surrendered to the General Government - all of

_which can be most advantageously adminis-

tered by the State themselves. Inspection laws,

quarantine laws, health laws of every descrip-

tion, as well as laws for regulating the internal

commerce of a State, and those which respect

turnpike roads, ferries, &c., are component

parts.” (Slaughter-House Cases, 83 U.S. (16 Wall.)

at 62-63 (citations omitted)).

No such monopoly case ever held that indisputably

strong public health and safety legislative purposes are

overridden by detrimental impacts upon interstate com-

merce. Indeed, Pike v. Bruce Church, Inc., 397 U.S. 137

(1970) suggested that “balancing” may not even be neces-

sary when dealing with the public health and safety, i.e.

“We are not, then, dealing here with ‘state legislation in

the field of safety where the propriety of local regulation

has long been recognized.’ ” (Id. at 143 (citation omitted)).

These same decisions uniformly held that such govern-

ment public health monopolies, quintessentially in

“works and improvements of a local character”, were

substai..ially impervious to review by the federal courts

under the Commerce Clause.

In all such cases of local concern, though inci-

dentally affecting commerce, we have held that

the courts of the United States cannot, as such,

interfere with the regulations made by the State,

nor sit in judgment on the charges imposed for

the use of improvements or facilities afforded,

21

or for the services rendered under state author-

ity. It is for Congress alone, under its power to

regulate commerce with foreign nations and

among the several states, to correct any abuses

that may arise, or to assume to itself the regula-

tion of the subject. (Ouachita Packet Co. v. Aiken,

121 U.S. 444, 447-48 (1887)).

The financing of these local public health and safety

solutions necessitated and justified their monopolizing

features. For example, the requirement that Ohio river

steamers exclusively use the town wharf, instead of the

river bank within its borders, was upheld as a coercive

municipal monopoly permissible under the Commerce

Clause. (Packet Co. v. Catlettsburg, 105 U.S. 559 (1881)).

More recently, Evansville-Vanderburgh Airport Authority

District v. Delta Airlines, Inc., 405 U.S. 707 (1972), upheld

local airport charges through the application (citing Par-

kersburg and other such cases) of the financing consider-

ations which ultimately justify this principle.

We therefore regard it as settled that a

charge designed only to make the user of state-

provided facilities pay a reasonable fee to help

defray the costs of their construction and main-

tenance may constitutionally be imposed upon

interstate and domestic users alike. (/d. at 714).

These settled Commerce Clause principles have long

been relied upon by many local governments in establish-

ing monopolies to carry out their public duties including

especially monopolies in the collection and disposal of

waste. The County respectfully suggests that while time

has passed, the dangers have not, and therefore a differ-

ent result is unwarranted.

22

Il. NOTHING IN THE COURT’S RECENT PRIVATE

LANDFILL DECISIONS SUGGESTS ANY ALTER-

ATION OF THE CONSTITUTIONAL PRINCIPLES

PREVIOUSLY VALIDATING GOVERNMENTAL

WASTE MONOPOLIES.

The recent decisions of this Court invalidating

efforts to conserve local disposal space by excluding out-

of-state waste do not diminish in any way the traditional

force accorded to the public health or financing needs |

underlying “flow control” monopolization by the local

waste collecting and disposing jurisdiction. None of the

values animating these decisions is impaired in any way

by the continued validation of municipal collection and

disposal monopolies.

Chemical Waste Management, Inc. v. Hunt, 112 S. Ct.

2009 (1992), Fort Gratiot Sanitary Landfill, Inc. v. Michigan

Dep't of Natural Resources, 112 S. Ct. 2019 (1992) and City

of Philadelphia v. New Jersey, 437 U.S. 617 (1978), invali-

dated laws discriminatorily restricting access to privately

owned landfills to local residents only unless special

permissions were obtained or special fees paid. These

landfills had previously served both their host commu-

nities and out-of-state exporting communities. The

receiving governments argued that their closure laws

were justified by long term conservation considerations

rather than immediately threatening public health con-

cerns. None of these cases had anything to do with a

health and safety decision by a principally responsible

government actively engaged in the collection and dis-

posal of solid wastes. Moreover, each case either reserved

decision on the point of or explicitly suggested that the

opposite conclusion would have resulted had there been

any imminent public health or safety basis for even a

23

discriminatory decision. (Philadelphia v. New Jersey, 437

U.S. at 628-29 (“There has been no claim here that the

very movement of waste into or through New Jersey

endangers health. .. . ”); Fort Gratiot Sanitary Landfill, Inc.,

112 S. Ct. at 2027 (“Of course, our conclusion would be

different if the imported waste raised health or other

concerns not presented by Michigan waste.” (emphasis

added)); Chemical Waste Management, Inc. v. Hunt, 112 S.

Ct. at 2015 (“There is absolutely no evidence

before this Court that waste generated outside Alabama is

more dangerous than waste generated in Alabama. . . . ”)).

Clarkstown’s decision to centralize waste collection

through a single facility was based on compelling health

and safety evidence aired at a public hearing (J.A. at

34-68), and the equally compelling planning necessity to

carry out that decision through a non-discriminatory

monopolizing requirement which limited the potentially

harmful waste to that single location. Here. therefore,

there is little basis for condemning the Town’s decision

on the basis of the Court’s prior rejection of long-term

conservation as an acceptable rationale for placing all

burdens on out-of-state interests.

Although Clarkstown’s monopoly offers possible

financial advantage through bulk purchase of transporta-

tion and landfill services, there is nothing in any of these

landfill conservation decisions which suggests that any

such financial benefit would ever render bona fide public

health and safety monopolies subject to dormant Com-

merce Clause invalidation. Indeed, Philadelphia v. New

Jersey and Fort Gratiot each expressly disclaimed an

expression of opinion as to the appropriateness of actions

taken by receiving municipalities to conserve their own

24

facilities. (Philadelphia v. New Jersey, 437 U.S. at 627-628

n.6; Fort Gratiot Sanitary Landfill, Inc., 112 S. Ct. at 2023).

In the final analysis, these cases only teach that the

burden of conserving a shrinking disposal resource must

not be placed entirely on out-of-state interests. The dis-

criminatorily priced access and total exclusion of outside

waste evaluated in these prior decisions left the burden

on out-of-state users. Thus, a benefit was transferred to

in-state users who were not shown to have used public

resources on behalf of the privately owned landfill busi-

nesses in furtherance of the particular conservation pol-

icy under scrutiny.

A. The market participant doctrine independently

supports the propriety of reaffirming Califor-

nia Reduction and Gardner and their per se val-

idation of municipal waste monopolies.

The market participant doctrine serves as an inde-

pendent basis for the per se validation of flow control

laws enacted by a responsible local government where it

is actively participating in the collection and disposal of

municipal solid waste through monopolistic controls hav-

ing both public health and public finance benefits. (Wyo-

ming v. Oklahoma, 112 S. Ct. 789 (1992); White v.

Massachusetts Council of Constr. Employers, Inc., 460 U.S.

204 (1983); Reeves, Inc. v. Stake, 447 U.S. 429 (1980); Hughes

v. Alexandria Scrap Corp., 426 U.S. 794 (1976)). The County

respectfully suggests that this rule is wholly consonant

with California Reduction and Gardner and should now

expressly be extended to include municipal solid waste

monopolies.

A government's investment of time, effort and funds

in such an integral operation as sanitary waste disposal

25

presents a most compelling need for the freedom to

exclude competition in an effort to protect the public fisc

through non-discriminatory user fees designed to pay for

that investment. The older monopoly cases repeatedly

upheld such exclusivity choices for essentially the same

“sovereignty” reasons as ultimately underlie recent mar-

ket participation cases. If the State may control use of its

own cement plants, it would seem that more flexibility,

not less, should be accorded it in making financial com-

mitments to carry out operations in more traditional

health and safety areas. (White, 460 U.S. 214-215). The

monopolizing requirement here at issue has had a long

and honorable history of effective use in facilitating a

most necessary governmental task.

Nothing in the market participation cases suggests

inapplicability to Clarkstown’s municipal disposal

monopoly and the five year put-or-pay financing commit-

ment which it made to the operator of its transfer facility.

If sufficient waste is produced annually, no direct Clarks-

town payments will be required; if insufficient, Clarks-

town must pay. Such financing guarantors participate in

most marketplaces. Governmental assurances of perfor-

mance are often necessary to induce construction lenders

to advance funds to build facilities.

Swin Resources Systems, Inc. v. Lycoming County, 883

F.2d 245 (3d Cir. 1989), cert. denied, 493 U.S. 1077 (1990)

upheld a local county’s market participant status in the

operation of its landfill. And, while there are some differ-

ences, of course, between a local government's operation

of its transfer station and its landfill, the more meaning-

ful similarities would seem to favor a market participa-

tion conclusion for the former. Purely as a commercial

26

matter, the aggregation of waste affords Clarkstown pos-

sible economies of scale in purchasing transportation and

landfill services. Such vital trading advantages were rec-

ognized in J. Filiberto Sanitation v. Department of Environ-

mental Protection, 857 F.2d 913 (3d Cir. 1988):

The transfer station is the county’s only disposal

facility. As such it is irreplaceable. As a central-

ized depository, it is the basis of the county’s

ability to plan and execute long- and short-term

disposal arrangements. As such, it is indispens-

able. (Id. at 922).

The County respectfully submits that the basic reason

for the rule embodied in this Court’s market participation

decisions wholly justifies its application to the Clarks-

town participation in waste collection and disposal

through its transfer station, its financially sustaining put-

or-pay commitment and the chosen “flow control” means

of fulfilling it.

B. This Court’s prior per se immunization of

municipal sewer monopolies under the Sher-

man Act is consistent with a declination to now

require balancing inquiries under the Com-

merce Clause.

Because the ultimate goals being served by both

Sherman Act and dormant Commerce Clause jurispru-

dence are the same, this Court’s per se immunization in

Town of Hallie v. City of Eau Claire, 471 U.S. 34 (1985) of

municipal sewer monopolies under the Sherman Act

should support, by analogy, a consistent per se immunity

under the Commerce Clause. If a court should hesitate to

uphold per se immunity under the Sherman Act for some

government business monopolies not presenting genuine

safety and health needs (see, e.g. Community Communica-

tions Co. v. Boulder, 455 U.S. 40 (1982)), it should be

27

equally hesitant under the Commerce Clause; in both

cases the need for a rule of reason type of balancing

inquiry with all of its attendant transaction costs may be

justified by the more detailed and comprehensive eco-

nomic understandings potentially available.

Here New York State has indisputably authorized

Clarkstown to impose “appropriate and reasonable lim-

itations” on “competition” by requiring “that all solid

waste” no matter its origins “shall be delivered to a

specified” facility. (Rockland County — Solid Waste Treat-

ment and Disposal Act, ch. 569, McKinney’s 1991 Laws of

New York, p. 1072.) Clarkstown’s wholly authorized

equitable ownership and exclusive use of the facility

should be more than sufficient to make it such a constitu-

tionally valid “actor” within the meaning of the federal-

ism concepts which underlay sovereign immunity under

the Sherman Act. (Parker v. Brown, 317 U.S. 341 (1943);

Olsen v. Smith, 195 U.S. 332 (1904); Hybud Equip. Corp. v.

City of Akron, 742 F.2d 949 (6th Cir. 1984)).

Ill. LOCAL GOVERNMENT WASTE MONOPOLIES

ARE VALID WHEN BALANCED UNDER THE

PIKE V. BRUCE CHURCH TEST

Even if municipal waste disposal systems are not

validated on the ground of a municipal waste disposal per

se exception to dormant Commerce Clause invalidation,

or on the basis of the market participant doctrine, they

are still valid under a Pike v. Bruce Church analysis. Flow

controls are challenged as export restrictions on a par

with, or are the “flip side” of, the import restrictions

struck down by this Court in City of Philadelphia v. New

Jersey, 437 U.S. 617 (1978). In fact, Clarkstown does not

bar the export of solid waste. Clarkstown requires that

28

solid waste first be brought to a town-operated transfer

facility; after delivery export out of state is not only

possible, but is intended. The Clarkstown ordinance reg-

ulates even-handedly; it neither precludes the entry nor

the departure of waste from the jurisdiction as such.

Where the statute regulates even-handedly

to effectuate a legitimate local public interest,

and its efforts on interstate commerce are only

incidental, it will be upheld unless the burden

imposed on such commerce is clearly excessive

in relation to the putative local benefits. (Pike v.

Bruce Church, 397 U.S. 137 (1970)).

Dormant commerce clause challenges to local gov-

ernment solid waste regulation span a wide variety of

solid waste systems across the country. Flow control in

Clarkstown requires the delivery of waste to a designated

site; exportation outside the county is not prohibited.

Fundamentally, however, interstate commerce is not

being discriminated against.

Here, petitioners actually objected to Clarkstown’s

enactment of the challenged local regulation; however,

because they constitute in-state and local interests their

claim for protection is necessarily weak. (Eule, Laying the

Dormant Commerce Clause to Rest, 91 Yale L.J. 425 (1982)).

The lack of identifiable adverse consequences to

interstate commerce, incidental or otherwise, suggests a

speculative burden on interstate commerce that should

not be deemed to override indisputably substantial local

interests. (Minnesota v. Clover Leaf Creamery Co., 449 U.S.

456, 473 (1981) (held that burden on out-of-state plastics

manufacturer was outweighed by state’s solid waste dis-

posal interest in banning use of plastic non-returnable

milk containers); Milk Control Board v. Eisenberg Farm

Products, 306 U.S. 346, 353 (1939) (upheld in-state price

29

control as applied to exports to an out-of-state pur-

chaser)).

What is critical in this case, therefore, is that the local

benefits in terms of safety, health, the environment and

fiscal well-being are clearly substantial. The Clarkstown

transfer facility may even speed the ultimate entry of

waste into interstate commerce. Such incidental or margi-

nal effects on interstate commerce produced by regula-

tion directed almost entirely to internal public health and

safety concerns should be held insufficient for invalida-

tion under the dormant Commerce Clause.

¢

CONCLUSION

In matters of local public health and safety, such as

waste disposal, local sovereignty should normally result

in the judicial validation of the establishment of local

government monopolies.

Fundamentally powerful federalism principles coun-

sel against petitioners’ requests to extend this Court's

three private landfill conservation decisions backwards to

the local government ultimately responsible for collecting

and disposing of the waste. Here, literally thousands

upon thousands of bona fide local monopolizing judg-

ments are constantly being made and adjusted in

response to the ever-changing local waste disposal needs.

Such acts need not discriminate between states. Private

disappointed expectancy claims, like petitioners’, will be

ubiquitous unless limited to prosecution on other than

dormant Commerce Clause grounds. The County of San

Diego respectfully commends to this Court that it create a

per se safe-harbor where local government waste monop-

olies may operate free of any duty to subordinate their

30

governmental functions to those of interstate carters. Sim-

ilarly, the Court could implement these concerns by val-

idating local government waste monopolies under the

market participant doctrine or the Pike v. Bruce Church

balancing test.

For these reasons, the decision below should be

affirmed.

. Respectfully Submitted,

Litoyp M. Harmon, Jr.

County Counsel

Counsel of Record

County of San Diego

DIANE BARDSLEY

Chief Deputy County

Counsel

Scott H. Peters

Deputy County Counsel

355 County Administration

Center

1600 Pacific Highway

ie San Diego, CA 92101-2469

(619) 531-4860

Of Counsel,

W. CuLLeEN MacDonaLp

Eric S. PETERSEN

JEANNE M. SINCLAIR

Hawkins, DeLarietp &

Woop

67 Wall Street

New York, NY 10005

(212) 820-9333

Jerome A. BARRON

George Washington University

National Law Center

720 - 20th Street, N.W.

Washington, D.C. 20006

(202) 994-6954