Amicus Curiae Brief — United Haulers Ass'n v. Oneida-Herkimer

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No. 05-1345

IN THE

Supreme Court of the United States

UNITED HAULERS ASSOCIATION, INC., ef a/.,

Petitioners.

Vv.

ONEIDA-HERKIMER SOLID WASTE

MANAGEMENT AUTHORITY, e7 a/.,

Respondents.

Own Writ OF CERTIORARI TO THE

Unitep STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Britk Amic: Curi4e OF ECONOMIC DEVELOPMENT GrowrH

ENTERPRISES CoRPORATION, A/kK/A MOHAWK VALLEY EDGE, Spoun’s

Disposat. Service, Hawkins & HuriBur Sanrrarion, Inc., STB

ENTERPRISES, INc., LEFroveR Express, INc., GRAHAM’S REFUSE

Service, MARSHALL PrzyLuke, INc., R.D.’s Mountain View

TRUCKING, Jim BONNELL TRUCKING, INC., CONTROLLED WaAsTE

Systems, INc., AND Frep BURROWS TRUCKING AND

Excavatinc, L.L.C. in SupPORT OF RESPONDENTS

Grecory J. AMOROSO

SAUNDERS, KAHLER, AMOROSO

& Locke, L.L.P.

185 Genesee Street, Suite 1400

Utica, New York 13501-2194

(315) 733-0419

Counsel for Amici Curiae

eee T7Se SBT | eC sewty B89 ORIG

STATEMENT OF INTEREST OF AMICI

SUMMARY OF ARGUMENT

ARGUMENT

CONCLUSION

i

TABLE OF CONTENTS

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TABLE OF CITED AUTHORITIES

Page

Case:

Pike v. Bruce Church, Inc.,

a, Se x civeeeueet see nceave 5, 6, 14

Federal Statutes:

eens Oe PE. occ dik cnc cvcccevecas 10, 11

State Statutes:

New York State General

PE DS basi iv s pee ene eee aews 2

New York State Not-For-Profit

1) ae a

l

Amici curiae Economic Development Growth Enterprises

Corporation, also known as Mohawk Valley Edge, Spohn’s

Disposal Service, Hawkins & Hurlbut Sanitation, Inc., STB

Enterprises, Inc., Leftover Express, Inc., Graham’s Refuse

Service, Marshall Przyluke, Inc., R.D.’s Mountain View

Trucking, Jim Bonnell Trucking, Inc., Controlled Waste

Systems, Inc., and Fred Burrow’s Trucking and Excavating,

L.L.C. submit this brief in support of Respondents Oneida-

Herkimer Solid Waste Management Authority, County of

Oneida, and County of Herkimer. '

STATEMENT OF INTEREST OF AMICI

I. Mohawk Valley Edge

The Oneida County Industrial Development Corporation

was formed in 1963, pursuant to New York State Not-For-Profit

Corporation Law Section 1411. As set forth in the enabling state

statute, the purpose of the Oneida County Industrial

Development Corporation was to foster and promote economic

development and to create job growth within Oneida County,

including the specific listed statutory purposes as follows:

relieving and reducing unemployment, promoting

and providing for additional and maximum

employment, bettering 2nd maintaining job

opportunities, instructing or training individuals to

improve or develop their capabilities for such jobs,

1. No portion of this brief was authored by counsel for a party,

and no person or entity other than the amicus curiae has made a

monetary contribution to the preparation or submission of this brief.

The Petitioners and the Respondents have both consented to the filing

of this brief and their respective letters of consent have been filed

with the Clerk of the Court.

2

carrying on scientific research for the purpose of

aiding a community or geographical area by

attracting new industry to the community or area or

by encouraging the development of, or retention of,

an industry in the community or area.

New York State Not-For-Profit Corporation Law § 1411.

_ In 1997, the Oneida County Industrial Development

Corporation amended its corporate documents to reflect a

change in its name to Economic Development Growth

Enterprises Corporation. The new entity also adopted the

assumed name of Mohawk Valley EDGE. Mohawk Valley

EDGE continued to function as the economic development

agent for the County of Oneida, but expanded its efforts to

include economic development in the County of Herkimer.

In 1997, Mohawk Valley EDGE also began providing

staff services by contractual relationship to the other major

economic development entities in Oneida County: the Oneida

County Industrial Development Agency, created by the New

York Legislature in 1970 by New York State General

Municipal Law § 901 (to provide financing and tax incentives

to industrial development), and the Griffiss Local

Development Corporation, an entity created by specific act

of the New York State Legislature in 1994 (to redevelop the

former Griffiss Air Force Base into a business and technology

park).

By staffing three distinct and separately constituted

agencies with separate missions, Mohawk Valley EDGE

provides a “one-stop shop” for potential developers interested

in locating in the two-county area and for existing local

businesses interested in growing their operations.

3

As part of its corporate purposes, Mohawk Valley EDGE

coordinates an outreach program to existing employers within

the two-county area, visiting approximately three hundred local

employers annually to discuss local issues and the business

climate, to help address their concerns and to assist them with

opportunities for growth and new investment. On a global scale,

Mohawk Valley EDGE promotes the region’s business climate,

quality of life, infrastructure, utilities, work force and

developable sites to businesses, site selection specialists and

industrial developers. Mohawk Valley EDGE develops financing

and assistance packages for both new and expanding businesses

and finds suitable existing buildings or “shovel-ready” sites for

construction or location of a new facility.

Mohawk Valley EDGE is governed by a self perpetuating

Board of Directors, representing many of the largest employers

in the two county area, including manufacturers, back office

businesses, banks, professional offices, private higher education

institutions, service providers and retail establishments. Based

on its Board membership and representation, it can safely be

said that Mohawk Valley EDGE represents approximately half

of the workforce in the two county region.

Mohawk Valley EDGE’s interest in this appeal can be

summarized as follows: 1) The benefit to local businesses and

industries of a financially viable comprehensive waste

management program; 2) The reduction and/or elimination of

exposure of the local businesses and industries to costly-

environmental tort suits; and 3) The ability to attract new

businesses to the area because it can guarantee proper solid waste

management without unwarranted liability. These elements are

- Critical to the creation of a business climate supporting economic

development, business growth and job creation.

4

Il. Spohn’s Disposal Service, Hawkins & Hurlbut

Sanitation, Inc., STB Enterprises, Inc., Leftover

Express, Inc., Graham’s Refuse Service, Marshall

Przyluke, Inc., R.D.’s Mountain View Trucking, Jim

Bonnell Trucking, Inc., Controlled Waste Systems, Inc.,

And Fred Burrows Trucking And Excavating, L.L.C.

Mohawk Valley EDGE is joined in this brief by the

following hauling companies: Spohn’s Disposal Service,

Hawkins & Hurlbut Sanitation, Inc., STB Enterprises, Inc.,

Leftover Express, Inc., Graham’s Refuse Service, Marshall

Przyluke, Inc., R.D.’s Mountain View Trucking, Jim Bonnell

Trucking, Inc., Controlled Waste Systems, Inc., and Fred

Burrow’s Trucking and Excavating, L.L.C (hereinafter

collectively referred to as the “hauling companies’’). The hauling

companies provide solid waste collection services to the

public in all of the seventy-eight cities, towns and villages

compromising Herkimer County and Oneida County.

The hauling companies share in Mohawk Valley EDGE’s

interest in this appeal as members of the business community

but also have a unique interest as integral participants in the

existing comprehensive waste management system. They

directly benefit from the opportunity to participate in the

collection aspect of the system and from the cooperation and

responsiveness of the Oneida Herkimer Solid Waste

Management Authority. They also benefit from the protection

provided to them from the potentially unlimited environmental

liability associated with their business.

—_

5

SUMMARY OF ARGUMENT

The Second Circuit Court of Appeals correctly applied

the Pike balancing test to Oneida County Local Law No. 1

of 1990 and Herkimer County Local Law No. | of 1990 and

found that the local benefits of the flow control laws were

clear and substantial.

The business community, including the hauling

companies, benefit from a financially viable comprehensive

waste management plan. Such a plan provides a business-

friendly atmosphere that aids in attracting new industry, in

encouraging growth of new industry and in creating new jobs

for the region.

The business community, including the hauling

companies, also benefit from the reduction of or elimination

of costly tort suits. The existing plan commits the Oneida

Herkimer Solid Waste Management Authority as the

responsible party, both practically and legally, to protect the

users against future environmental liability.

These benefits are critical to the survival and growth of

the local economy, and could not be achieved in any other

way.

6

ARGUMENT

I. The Second Circuit Was Correct In Finding That The

Local Benefits To The Local Laws Are “Clear And

Substantial”

The Second Circuit Court of Appeals considered the

validity of Oneida County Local Law No. | of 1990 and

Herkimer County Local Law No. | of 1990 under the Pike

balancing test. Pet. App. at 29a. Said test, as set forth in the

1970 opinion, requires the following analysis:

Where the statute regulates even-handedly to

effectuate a legitimate local public interest, and

its effects on interstate commerce are only

incidental, it will be upheld unless the burden

imposed on such commerce is clearly excessive

to the putative local benefits . . . If a legitimate

local purpose is found, then the question becomes

one of degree. And the extent of the burden that

will be tolerated will of course depend on the

nature of the local interest involved, and on

whether it could be promoted as well with a lesser

impact on interstate activities.

Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).

In applying the Pike test, the Second Circuit found that

“(t)he ordinances’ benefits ... are clear and substantial.”

Pet. App. at 29a. The Court elaborated as foliows:

Our conclusion that the assumed burden created

by the challenged ordinances is slight means that

the defendants need to present only a minimal

;

showing of local benefits in order to compel a finding

that the burden is not ‘clearly excessive’ to the

benefits that the ordinance provides. The Counties’

flow control regulations easily clear this hurdle.

Pet. App. at 29a.

_A. The Business Community And Hauling Companies

Benefit From A Financially Viable Comprehensive

Waste Management Program.

There are three basic “public utility” functions that are

essential to economic growth and business development within

a region: 1) a system for providing a clean supply of water; 2) a

system for properly treating and disposing of wastewater

discharge; and 3) a system for properly managing and disposing

of solid waste. Pet. App. at 472a. In simplest terms, these services

are regularly described as “water”, “sewer” and “garbage”, and

businesses traditionally look to their local governments to adopt

and implement comprehensive plans for these necessary

services.

Each service is seen as equally important for a successful

business climate. As stated in the affidavit of now retired Oneida

County Planning Director Michael Gapin:

A public solid waste management system is just as

important as a region’s water and wastewater

systems. If there cannot be public oversight and

control of the solid waste collection system, it is akin

to having a public water supply reservoir or a

wastewater treatment plant without the pipes.

Pet. App. at 488a, 489a.

8

The importance of a comprehensive solid waste

management plan was recognized by the District Court. Judge

Mordue specifically held that it was obvious that the waste

management scheme adopted by the two Counties had or

would improve the local economy in attracting new

businesses and creating new jobs. Pet. App. at 2la. Judge

Peebles held that the two Counties’ waste management plan

meets a “legitimate desire to provide a business-friendly

atmosphere designed to attract industry and provide jobs in

the community”. Pet. App. at 19a.

Through their elected officials, the counties of Oneida

and Herkimer adopted a comprehensive plan designed to

match the best management method to each component of

solid waste. Pet. App. at 46la. The plan contains a strong

recycling component, but also emphasizes the benefit of this

component to businesses. As of November of 2006, local

businesses have been able to obtain over four hundred free

waste “audits” performed by the Oneida Herkimer Solid

Waste Management Authority, to improve their recycling and

thereby reduce their waste disposal expenses. These waste

“audits” also provide an opportunity for the identification of

hazardous wastes and the development of the most

appropriate and cost-effective disposal methods. Pet. App.

at 425a, 382a.

The most fundamental concern of businesses and

industries in regards to utilities, both public and private,

always relates to cost. Removal of solid waste is part of the

overhead of any business, and stability in overhead costs is

critical to both short-term and long-term budgeting. The solid

waste plan adopted by the two counties provides much-

needed stability in the economically tumultuous area of solid

waste disposal. The plan allows for the distribution of costs

9

commensurate with the disposal demands of each user. This

in turn allows businesses to accurately project and budget

for the costs related to their present and future solid waste

removal aeeds.

The hauling companies also directly benefit from the

- existence of a comprehensive plan. They are given the

opportunity to provide collections services to the public over

the two thousand three hundred square mile area that

comprises the two counties. The Oneida Herkimer Solid

Waste Management Authority has been and continues to be

responsive to their needs, offering conveniently located

transfer stations with expanded hours and days of operation

and with equipment designed to significantly reduce waiting

times. They are able to dispose of all types of waste collected

from the public, including recyclables and green waste. All

of the haulers, both large and small, are treated equally and

fairly as to disposal costs, regardless of volume of waste

delivered to the transfer stations. The hauling companies

clearly share in the benefits related to consistent, predictable

costs and a stable system.

The agreement of the hauling companies to participate

as amici curiae in this Brief is quite remarkable, and indicates

that they do not feel “left behind” or aggrieved by the current

comprehensive system. Instead, they feel that their

partnership with the Oneida Herkimer Solid Waste

Management Authority provides them with financial

constancy and reliability.

10

B. The Business Community And The Hauling

Companies Benefit From The Reduction Or

Elimination of Costly Environmental Tort Suits.

Any business contemplating a relocation or expansion

of its operations immediately considers the issue of potential

environmental liability at its new or expanded facility. The

reduction or, if possible, elimination of environmental

liability is one of the most significant factors in site selection.

Businesses within Oneida and Herkimer Counties are

uniquely aware of the environmental liabilities that can result

from the remediation of a landfill. In recent history, many

local businesses have experienced the traumatic effects of

cost recovery actions based on CERCLA. See 42 U.S.C.

§ 9601 ef seq.

During the cost recovery efforts associated with the

remediation of the former Ludlow Landfill, six hundred and

three local businesses, individuals, haulers, school districts

and other entities were sued and forced to incur legal fees

and settlement costs. Pet. App. at 416a, 450a, 452a. The

record is replete with references to this litigation and its

disastrous effect on the local business community.

In 1996, over one hundred local businesses and haulers

were subject to yet another intense investigation as potential

responsible parties, as a result of the discovery of hazardous

waste in the City of Rome, New York’s former municipal

landfill. After a six year investigation, during which many

of the businesses hired counsel and incurred substantial legal

expenses, six businesses were ultimately named in a state

Superfund recovery action. The investigation and litigation

occurred even though the City had closed the landfill almost

1]

a decade earlier in accordance with the standards set by the

New York State Department of Environmental! Conservation.

The businesses had to pay legal fees for defense and the six

named businesses had to pay settlement costs, due to lack of

oversight at the facility and the improper disposal practices

of a limited number of bad actors.

These cost recovery suits under the “Superfund” laws

are based on the statutory scheme’s imposition of “strict, joint

and several liability” for any users who sent its solid waste

to the particular landfill. The liability will attach whether or

not the user knew of the waste disposal practices at the

landfill. The liability will attach whether or not th: user knew

about other users of the landfill and their waste disposal

practices. The liability will attach whether or not the user

even knew which particular landfill was actually receiving

its solid waste from its hauler. The liability will attach even

if the past waste disposal practices were permitted at the time

they took place. The message of the statutory scheme is clear

to the business community: if your business is named in a

Superfund cost recovery action, the liability will attach.

See 42 U.S.C. § 9601 et seq.

Once a business is investigated and/or brought into one

of these suits, either as a defendant or as a third party

defendant, it will incur legal and other professional fees for

investigation, litigation and negotiation. It will also most

likely have to pay some sort of settlement in order to be

released from the suit. The settlement is often greater than

the business’ fair share of the clean-up costs, because the

cost of litigating the issue of each parties’ exact share of the

culpability is cost prohibitive. Pet. App at 477a, 478a.

12

The business communities of both Oneida and Herkimer

County have not forgotten the lessons learned during the

Ludlow landfill and the Rome City landfill remediation and

cost recovery efforts. As stated by Hans Arnold, Executive

Director of Respondent Oneida Herkimer Solid Waste

Management Authority, in his 1995 affidavit, in regard to

the Ludlow matter:

Citizens were sent a bill to clean up a problem

they thought they had left at the curb years ago.

They never expected it to return.

Pet. App. at 416a

This sentiment is echoed in the newspaper quote set forth

in the affidavit of Robert Julian:

Everybody in the County is going to be

responsible up to 20 years for whatever they threw

out, and for whatever their garbage man might

have done with it —Edward A. Zammiello, Jr.,

Co-Owner Frank’s Body Works.

(Emphasis added). Pet. App. at 452a.

Mr. Zammiello’s quote emphasizes the need of the

business community for a solid waste management plan that

provides protection from environmental liability. The

evidence establishes that the comprehensive plan adopted

by Oneida and Herkimer Counties provides that protection.

Hans Arnold provided a statement about the protection

systems used by the Authority once it is in possession and

control of the solid waste. Before disposal, the Authority

13

monitors and inspects the waste to insure that it has not received

any dangerous or hazardous materials. The Authority used

extreme care in ensuring that the waste was only sent for disposal |

to facilities with the best environmental protective systems and

proven management experience. Pet. App. at 426a, 427a, 428a.

The benefit of this process to the users and the hauling

companies is immeasurable. As stated in the expert opinion of

Dr. Robert N. Stavins, private waste haulers would not likely

have the resources to expend similar efforts to evaluate the

environmental consequences of their choices. Further, it would

not be financially feasible or practical for each user to gather

this type of information.

While this information may be costly to gather, once

gathered, its benefits can be shared with all waste

generators without cost. Therefore, while for each

generator the benefits of gathering this information

may not outweigh the costs of doing so, the benefits

enjoyed by all the Counties’ waste generators may

far outweigh the cost to the Authority of collecting

and sharing the information. Put simply in terms of

conventional economics, public good tends to be

under-provided by ordinary private means.

Pet. App. at 385a.

The most important benefit to the business community,

including the hauling companies is the theory of collective

responsibility for potential future environmental liability. Pet.

App. at 427a. As stated by Hans Amold, the Oneida Herkimer

Solid Waste Management Authority has “made a commitment

as the responsible party should there be any legal action in the

future.” Pet. App. at 428a.

14

When marketing the region to outside businesses looking

to relocate, and when advising and assisting existing businesses

to expand, Mohawk Valley EDGE can definitely answer their

important question about environmental tort liability. The

comprehensive solid waste management plan, which includes

Oneida County Local Law No. | of 1990 and Herkimer County

Local Law No. | of 1990, provides a responsible party, both

from a legal sense and from a practical sense, to protect against

future liability.

II. The Second Circuit Was Correct In Finding That The

Local Benefits Could Not Be Achieved “In Any Other

Way”

The Pike balancing test requires an analysis as to whether

the local benefits “could be promoted by a lesser impact on

interstate activities.” Pike v. Bruce Church, Inc. 397 U.S. 137,

142 (1970). it is respectfully submitted that the local benefits

set forth above could not be achieved by any other method.

It is only through flow control that the local government is

able to ensure that its waste management standards are met and

thereby effectively provide tort liability protection to its citizens,

including its businesses and haulers. As stated by Dr. Stavins:

(F)low control significantly increases the ability of

the authority to enforce the law ... Were haulers

able to bring their waste to any disposal site, an equal

level of enforcement would be much more costly

— if not impossible —- to achieve.

Pet. App. at 389a.

15

Petitioners’ answer to the environmental liability issue

is to suggest that the Counties would be wise to avoid the

issue altogether. In their brief, Petitioners state as follows:

This putative justification for flow control is

misguided. If a commercial hauler were to pick

up waste from a business or residence and then

bring it to a processing or disposal facility

unconnected with the Counties, respondents never

would come into possession of the waste and

would not have any liability for it . . . Indeed, if

respondents genuinely wanted to minimize

exposure to environmental liability, it would be

rational for them to encourage the use of private

waste disposal alternatives.

See Petitioners’ Brief, p. 19.

The line of reasoning is echoed in the Brief of Amici

Curiae National Solid Wastes Management Association,

American Trucking Associations, Inc. and National

Association of Manufacturers, when they state as follows:

A local government would not have any Superfund

or other liability for waste collected by private

haulers disposed of at a private landfill.

See Brief of Amici Curiae National Solid Wastes

Management Association, American Trucking Association,

Inc., and National Association of Manufacturers, pp. 23-24.

16

This argument by Petitioners and their Amici is a slap in

the face to the businesses that provide jobs for the citizens

of the Counties and that pay taxes to support the governments

of the Counties. Petitioners are urging the Counties to hide

their heads, protect themselves and leave all potential

environmental liabilities on the doorsteps of their businesses,

haulers and residents. It is also insulting to the elected

officials of County government. Petitioners assume that the

officials only worry about the liability of County government

itself, not the liability faced by the citizens and businesses

of the region.

There is simply no evidence of any other alternative

system that will provide the businesses, industries and haulers

with a financially viable comprehensive waste management

program combined with the reduction of or elimination of

costly environmental suits.

CONCLUSION

The decision of the court of appeals should be affirmed.

Respectfully submitted,

Grecory J. AMoROSO

SAUNDERS, KAHLER, AMOROSO

& Locke, L.L.P.

185 Genesee Street, Suite 1400

Utica, New York 13501-2194

(315) 733-0419

Counsel for Amici Curiae