Opposition Brief — Kleenwell Biohazard Waste & General Ecology Consultants, Inc. v. Nelson

Z : | Ry rane Court, ua

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No. 94-1757: May 3 4, 1993

In the ._.. |

SUPREME COURT OF THE UNITED STATES

October Term, 1994

KLEENWELL BIOHAZARD WASTE AND GENERAL

ECOLOGY CONSULTANTS, INCORPORATED,

Petitioner,

Vv.

SHARON NELSON, Chairman, et al.,

Respondents.

On Petition for a Writ of Certiorari From the

United States Court of Appeals for the Ninth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

CHRISTINE 0. GREGOIRE

Attorney General

William Berggren Collins*

Steven W. Smith

Assistant Attorneys General

Counsel of Record*

Counsel for Respondents

P.O. Box 40128

iympia, WA 98504-0128

(360) 753-6245

May 1995

i

QUESTIONS PRESENTED FOR REVIEW

Whether a state may require a certificate for a solid waste

collection company to provide a local waste collection

service where the certification requirement provides no

preference to in-state collection companies, affects

interstate commerce only incidentally, and where the

burden imposed on that commerce is not excessive.

Whether in a federal civil rights action a state

administrative agency’s fact findings are entitled to the

same preclusive effect they would be given in the state

courts, where the state agency acted in its judicial

Capacity to resolve those factual issues which were

properly before it, and where the parties had an adequate

opportunity to litigate those issues.

TABLE OF CONTENTS

SEAR EMTE CP SUGAR 26 we ccc seccesecen |

REASONS WHY THE PETITION SHOULD BE

TE ee ee eee eee OL ee PTere 5

1. Petitioner Mischaracterizes the

Purpose and Effect of the Washington

Es obs a Se ee EE Ke ke 5

2. The Decision of the Court of Appeals

Does Not Conflict With the Commerce

Clause Decisions of This Court. ......... 6

A. The Decision of the Court of

Appeals Does Not Conflict With

i 6

B. The Decision of the Court of

Appeals Does Not Conflict With C & A

Carbone, Inc. v. Town of Clarkstown. .. 9

3. The Decision of the Court of Appeals is Not |

in Conflict With the Decision of Another

Oe a Pc we ee oe eee 12

4. The Court of Appeals’ Decision May be

Affirmed Based on the Transportation of

Waste Between Two Points in the Same

State, Which is an Intrastate Movement

Subject to State Regulation............ 14

5. The Decision of the Court of Appeals Has

No Impact on a State’s Authority to Ban the

Interstate Transportation of Waste. ...... 15

6. The Court of Appeals Correctly Applied

University of Tennessee v. Elliott. ....... 16

CPR 8 045 oN otuewnsutisietavaeas 19

TABLE OF AUTHORITIES

Cases Page

Baltimore & Ohio Southwestern R.R. v. Settle,

A a Pe eee a re 14

Bradley v. Public Util. Comm’n of Ohio,

oS aS ae ah wee Oe ees 7,8

Buck v. Kuykendall,

I PE og te ee ee ewe ees 6, 7,9

Bush & Sons Co. v. Maloy,

rr ro ie ed ek Be Ae ee ee 7

C & A Carbone, Inc. v. Town of Clarkstown,

511 U.S. , 114 S. Ct. 1677,

ae: 9, 10, 11

Eli Lilly & Co. v. Sav-On-Drugs, Inc.,

i kos wee ke 6 4 es 7

Kleenwell Biohazard Waste v. Nelson,

48 F.3d 391 (9th Cir. 1995) ... 5,7, 8,9, 10, 12, 13, 16

Maine v. Taylor,

Eo i iw been ew eee ee 14

Medigen v. Public Serv. Comm'n,

985 F.2d 164 (4th Cir. 1993)............. 12, 13, 18

Philadelphia v. New Jersey,

8 MS ere ara ee 15

Pike v. Bruce Church, Inc.,

CN a ee ae 13

St. Joseph Stock Yards Co. v. United States,

a re ye ees bak 64 8 O's 18

Steffel v. Thompson,

EE eee 18

TV Pix, Inc. v. Taylor,

Ne pew ee keen aes 7

iv

University of Tennessee v. Elliott,

me 8 Re ere ee eee 16-18

Washington v. Confederated Bands & Tribes

of the Yakima Indian Nation,

a Gee, Se CE Bk owe 0 1 he ER s&s oR 15

Statutes & Regulations

GE UB. Bee bv 8s he ee eee WEEE TRS 5, 16

CE ULES. Be ae a ok ORs NRK oe ws 7

Wash. Admin. Code Ch. 480-09 .................. 4

i Dis, Te ee oo bb i oe a Bowe sce 9, 10

Wie, Ti. COGS © PA EO 6 ce ee de ewe eee eee’ 16

Wash. Rev. Code § Gi.77.0IGG) 2. ccc cenes 4

Wash. Rev. Code § 34.05.410-.476 ..............4.. 4

Wash. Rev. Code § 61.77.00 2. wc cee cece 2,4

No. 94-1757

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1994

KLEENWELL BIOHAZARD WASTE AND GENERAL

ECOLOGY CONSULTANTS, INCORPORATED,

Petitioner,

v.

SHARON NELSON, Chairman, et al.,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION

STATEMENT OF THE CASE

The facts regarding the operations of Kleenwell

Biohazard Waste and General Ecology Consultants, Incorporated

(Kleenwell), were presented in hearings before an administrative

law judge in state administrative proceedings in May and June of

1992. The order which the Washington Utilities and

Transportation Commission (WUTC) entered following those

hearings is set forth in the appendix to Kleenwell’s petition.

Pet. App. 26(a)-68(a).

Kleenwell is a Washington corporation with all of its

facilities located in that state. Kleenwell’s two shareholders are

2

both Washington State residents. No out-of-state interests are

involved in this case. Kleenwell operates a medical waste

collection and disposal service in the greater King county area.

Medical waste is collected from customers weekly and

transported to a rented warehouse in Washington where it

remains for up to 90 days until a load is hauled to California.

At one time, Kleenwell held a temporary certificate from

the WUTC to operate as a solid waste collection company.’

While operating under that temporary authority, Kleenwell used

a disposal site in Ferndale, Washington.

After notice and hearing, Kleenwell’s temporary

authority was cancelled and its application for permanent

authority denied. Kleenwell, nevertheless, continued to provide

the same service in the same manner except that it began

transporting the medical waste it collected to California.

The denial of Kleenwell’s application was not based on

a determination of whether there was a need for the proposed

service. The application was denied because Kleenwell was

found unfit to provide waste collection service for, among other

reasons, knowingly violating health regulations regarding the

storage of medical waste. Pet. App. 33(a).

‘Under Washington law, no company can lawfully operate as a solid waste

collection company without first obtaining a certificate of public convenience

and necessity from the WUTC. Wash. Rev. Code § 81.77.040; Pet. App.

69(a)-70(a).

EOE EES

3

At the time Kleenwell began transporting waste to

California, the in-state disposal site was still accepting medical

waste from Kleenwell.’ The only reason Kleenwell changed to

the out-of-state disposal site was to try to avoid state regulation

once its permanent application had been denied.

It is between two and three times as expensive to dispose

of medical waste at the California facility than at Ferndale.

There is nothing different in the handling and disposal of medical

waste at the California facility that would justify the change in

disposal sites.

The decision to dispose out-of-state was Kleenwell’s

alone. Kleenwell’s customers were indifferent whether their

medical waste was disposed in-state or out-of-state. No

customers ever requested that their medical waste be disposed in

California, and none objected to the disposal at Ferndale.

In January 1992, the WUTC imposed $6,000 in penalty

assessments against Kleenwell for operating as a solid waste

collection company in Washington State without a certificate to

do so. Kleenwell asserted that the penalty assessment was

invalid because the transportation in question was interstate in

nature.

After the assessment of the penalty, the WUTC initiated

an administrative proceeding by complaint to enforce the state

certification requirements. In that proceeding, Kleenwell again

4

contended that it was not subject to the certification requirement

because it was engaged in interstate commerce. The hearing was

conducted in accordance with the state Administrative Procedure

Act (APA) for adjudicative proceedings (Wash. Rev. Code

§ 34.05.410-.476) and the WUTC’s rules of practice and

procedure (Wash. Admin. Code Chapter 480-09). The hearing

was presided over by an administrative law judge from the state

Office of Administrative Hearings. Proper notice of the hearing

was provided to Kleenwell. Motions to intervene were granted

to five interested parties. All parties were represented by

counsel. Kleenwell’s counsel made an opening statement.

Direct testimony under oath was presented and cross examined.

Evidentiary objections were made and ruled upon. Exhibits were

admitted into evidence. Opening briefs were filed by all parties

and Kleenwell filed a reply brief. The administrative law judge

issued an initial order. Kleenwell filed a petition for

administrative review of the proposed order. The WUTC then

entered its final order affirming the decision of the administrative

law judge.

In its order, the WUTC determined that Kleenwell was

operating as a "solid waste collection company” as defined by

Wash. Rev. Code § 81.77.010(7) and was subject to the

certification requirements of Wash. Rev. Code § 81.77.040.

The WUTC considered Kleenwell’s claim that it was immune

5

from state regulation under the Commerce Clause. Kleenwell

never appealed the WUTC’s decision in state court as provided

by the state APA, but rather filed a complaint under 42 U.S.C.

§ 1983 in federal district court.

On September 10, 1993, the federal district court granted

the commissioners of the WUTC their motion for summary

judgment. Kleenwell appealed to the Ninth Circuit Court of

Appeals which on February 9, 1995, affirmed the decision of the

district court. Kleenwell Biohazard Waste v. Nelson, 48 F.3d

391 (9th Cir. 1995); Pet. App. 1(a).

REASONS WHY THE PETITION SHOULD BE DENIED

1, Petitioner Mischaracterizes the Purpose and Effect of

the Washington Statute.

Kieenwell mischaracterizes the Washington statute as a

restriction on the interstate transportation of waste. The

Washington statute, neither in purpose nor in effect, impedes the

interstate transportation of waste.

The statute directly regulates a local activity — solid

waste collection in the state of Washington. Nothing in the

Statute dictates in any way where a certificated hauler transports

waste for ultimate disposal. Nothing in this statute prevents the

free flow of waste into or out of Washington State. Nothing in

the statute favors in-state interests over out-of-state interests in

6

the certification process; companies based outside the state have

the same rights to certification as those based inside the state.

Kleenwell’s characterization of the Washington statutory

framework as an obstruction to the interstate movement of waste

is without basis in law or fact.

y a The Decision of the Court of Appeals Does Not

Conflict With the Commerce Clause Decisions of This

Court.

The Ninth Circuit Court of Appeals correctly decided

that on the facts before it the Commerce Clause does not prevent

the State of Washington from imposing its certification

requirement on Kleenwell. There is no inconsistency between

that decision and prior decisions of this Court.

A. The Decision of the Court of Appeals Does

Not Conflict With Buck v. Kuykendall.

In attempting to find some inconsistency, Kleenwell

relies on Buck v. Kuykendall, 267 U.S. 307 (1925) for the

proposition that there is a per se rule against certification

requirements such as Washington State’s. As noted by the Court

of Appeals, however, there are at least three cases of this Court

upholding the constitutionality of state regulations requiring

businesses engaged in interstate commerce to obtain state permits

7

prior to doing so.” Kleenwell, 48 F.3d at 396; Pet. App. 13(a)-

15(a). Buck v. Kuykendall does not stand for the proposition that

a carrier who crosses a State line is entitled to use state highways

as a matter of right. Bradley v. Public Util. Comm’n of Ohio,

289 U.S. 92, 95 (1932).

Rather, the problem with the state action in Buck was

summarized in the companion case of Bush & Sons Co. v.

Maloy, 267 U.S. 317, 326 (1925):

The state action in the Buck case was held to be

unconstitutional . . . because the statute, as

construed and applied, invaded a field reserved

by the commerce clause for federal reguiation.

Bush, 267 U.S. at 324-25. The field of solid waste collection,

by contrast, is not a field reserved for federal regulation. The

field of solid waste collection has been primarily reserved by

Congress for local regulation:

The Congress finds with respect to solid waste—

(4) 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. § 6901(a)(4) (The Solid Waste Disposal Act).

*TV Pix, Inc. v. Taylor, 396 U.S. 556 (1970) (per curium); Eli Lilly &

Co. v. Sav-On-Drugs, Inc., 366 U.S. 276 (1961); Bradley v. Public Util.

Comm'n of Ohio, 289 U.S. 92 (1933).

8

The infirmity in the statute in Buck was that its purpose

was to prevent competition deemed undesirable, and the test

employed was the adequacy of existing transportation facilities

for conducting interstate commerce "a test peculiarly within the

province of federal action." Bradley v. Public Util. Comm’n of

Ohio, 289 U.S. 92, 95 (1932). Under the Washington statute,

the WUTC is not concerned with the adequacy of transportation

facilities for conducting interstate commerce. It is concerned

with the adequacy of solid waste collection service—a test strictly

rciated to local concerns.’

The vice in the statute in Buck was control of interstate

commerce. This was demonstrated by the fact that Oregon had

already issued a certificate of necessity for the interstate

passenger route between Seattle and Portland on the finding that

Oregon citizens would benefit from the service. Consequently,

Washington’s denial of a certificate affected not only its own

citizens, but also those of Oregon, as well as citizens of other

states who may have been traveling between the two cities.

Here, the citizens of other states have no interest in the area of

*The Court of Appeals noted that Buck turned upon the fact that the

central purpose of the regulation was to regulate commerce. The primary

purpose of Washington's regulation is to address a legitimate local concern

with only incidental effects on interstate commerce. Kleenwell, 48 F.3d at

396; Pet. App. 1(a).

9

solid waste collection governed by the Washington statute.‘

Buck has no application here.

B. The Decision of the Court of Appeals Does

Not Conflict With C & A Carbone, Inc. v.

Town of Clarkstown.

There is likewise nothing inconsistent between the Court

of Appeals’ decision and the decision of this Court in C & A

Carbone, Inc. v. Town of Clarkstown, 511 U.S. ___, 114 S. Ct.

1677, 128 L. Ed. 2d. 399 (1994). Kleenwell states that Carbone

is one of a series of decisions, the theme of which is that a state

cannot restrict the flow of waste into or out of the state. Even

accepting that characterization, there is nothing in the

Washington statutes that prevents the free flow of waste across

any state line or grants any preference to any in-state interests

over out-of-state interests.

In Carbone, this Court found that the town of

Clarkstown’s flow control ordinance discriminated against

interstate commerce in two ways. First, the Carbone processing

facility received and processed waste from outside the town,

including waste coming from out of state. Under the flow

control ordinance, Carbone was required to send the

“Kleenwell incorrectly argues that this case involves the same state law

that was found invalid in Buck v. Kuykendall. Buck involved chapter 81.68 of

the Revised Code of Washington relating to “auto transportation companies”.

Kleenwell involves chapter 81.77 (Wash. Rev. Code) relating to solid waste

collection companies.

10

nonrecyclable portion of this out-of-state waste to the town’s

transfer station. This requirement drove up the cost for out-of-

State interests to dispose of their solid waste.

Second, insofar as the ordinance applied to waste

Originating in Clarkstown, the ordinance prevented everyone

except the single local operator from performing the initial

processing step. Consequently, the court found that the

ordinance deprived out-of-state businesses of access to a local

market. Carbone, 114 S. Ct. at 1681.

The two reasons the Court found the town’s ordinance

to discriminate against interstate commerce are not present in the

Washington statutory framework for solid waste collection as

applied to Kleenwell.’ Chapter 81.77 of the Revised Code of

Washington (Wash. Rev. Code) does not drive up the costs for

Out-of-state interests, to dispose of solid waste or otherwise. No

waste originating outside of the state of Washington is affected

by the Washington statute.

Moreover, the Washington statute does not require that

the collection service be performed by a local provider. Out-of-

State businesses do provide collection services in the state of

“The Clarkstown ordinance also generated revenue for the town since it

was a financing measure. Carbone, 114 S. Ct. at 1684. Rates for certificated

haulers are regulated to assure that they are fair, just, and reasonable,

however, revenue generation for the state is not a feature of the Washington

statute.

11

Washington. In the case of medical waste in particular, the

WUTC granted statewide collection authority to American Waste

Systems, a California corporation, which uses a California

disposal site.° Pet. App. 65(a). Nor does the Washington

Statute impose any local processing requirement. When this

Court focused on the processing and disposal service as the

commerce in Carbone, the Court concluded that the flow control

ordinance discriminated against out-of-state interests because it

allowed only the favored local operator to process waste within

the town limits:

In this light, the flow control ordinance is just

one more instance of local processing

requirements that we long have held invalid.

{Citations omitted.] . . . The essential vice in

laws of this sort is that they bar the import of

the processing service . . . Out-of-state

[processors] . . . are deprived of access to local

emand for their services.

Carbone, 114 S. Ct. at 1682.

Kleenwell is not importing a collection service from out

of state. Kleenwell is a Washington corporation with all its

facilities in the state. Thus, we are not here concerned with the

importation of a service as an article of commerce as in

Carbone. But more important, as noted above, out-of-state

*Since American Waste System's certificate to collect medical waste

covers the entire state, that authority overlaps every other service territory in

the state. Thus, every service territory has at a minimum two carriers

authorized to collect medical waste, at least one of which is an out-of-state

business.

12

waste collection businesses are allowed to operate in the state of

Washington whether they dispose waste within or outside the

State.

3. The Decision of the Court of Appeals is Not in

Conflict With the Decision of Another Circuit.

Kleenwell’s claim that the decision below conflicts with

the case of Medigen v. Public Serv. Comm’n, 985 F.2d 164 (4th

Cir. 1993), is not correct. Kieenwell argues that the issue in this

case is identical to that in Medigen, but that the results are

opposite. Kleenwell, however, ignores the critical distinction

that the facts in each case are different. The different results are

fully explained by the different factual records before the two

appellate courts.

This factual difference was noted by the Kleenwell court

below:

The Fourth Circuit appears to have

reached a different conclusion in Medigen v.

Public Serv. Comm'n of West Virginia, 985 F.2d

164 (4th Cir. 1993), where it ruled that West

Virginia may not deny a certificate of

convenience and necessity to medical waste

transporters engaged in interstate commerce.

We note, however, that the Fourth Circuit found

“no basis in the record . . . for concluding that

competition in this market has had or will have

any destructive effects.” Jd. at 167. Here, in

contrast, there is extensive evidence in the

record that supports the WUTC’s finding that a

regulated market is to protect the

health and safety of Washington residents.

Indeed, the Fourth Circuit acknowledged that

“where competition has destructive effects,

regulation may be justified.” Jd.

“

4

?

d

2

,

32

Ed

|

i

13

Kleenwell Biohazard Waste v. Nelson, 48 F.3d at 400-401, n.13;

Pet. App. 24(a), n.13.

The Fourth Circuit Court in Medigen did not hold that

the Commerce Clause was an absolute bar to a State’s

certification requirement to collect waste that eventually goes

out-of-state. Both courts agree that whether a certification

requirement contravenes the Commerce Clause depends on the

facts of each case. The court in Kleenwell found the factual

basis for upholding Washington’s statutory framework. The

court in Medigen found no basis in the record before it to

conclude that competition in the West Virginia market had any

destructive effects. Both the court in Medigen and the court in

Kleenwell agreed that regulation could be justified where

competition has destructive effects. Medigen, 985 F.2d at 167.

Kleenwell, 48 F.3d at 399-400; Pet. App. 22(a)-23(a).

There is, likewise, no inconsistency between the

Kleenwell and Medigen cases on the proper standard for

reviewing certification requirements under the Commerce

Clause. The Fourth Circuit in Medigen concluded, based on the

factual record before it, that the West Virginia certification

requirement was unconstitutional under the more deferential

balancing test of Pike v. Bruce Church, Inc., 397 U.S. 137

(1970). Consequently, the Medigen, court found it unnecessary

to decide whether a stricter standard should be applied.

14

Medigen, 985 F.2d at 166. Because the Medigen court expressly

declined to decide what level of scrutiny to apply, there is no

inconsistency between the two circuits on that issue.’

4. The Court of Appeals’ Decision May be Affirmed

Based on the Transportation of Waste Between Two

Points in the Same State, Which is an Intrastate

Movement Subject to State Regulation.

Kleenwell’s reliance on Medigen is misplaced for another

reason. In that case, the Fourth Circuit specifically noted that

Medigen did not engage in transportation of medical waste from

one point in West Virginia to another point in West Virginia.

Medigen, 985 F.2d at 165. Because Kleenwell’s customers have

no intent to transport their waste out of state, Kleenwell’s

transportation of waste between two points in the state of

Washington is intrastate in nature and subject to state regulation

on that basis. Baltimore & Ohio Southwestern R.R. v. Settle,

260 U.S. 166, 173-74 (1922). Although not relied on by the

Court of Appeals, this ground was raised below and would be a

separate basis for the WUTC to defend its judgment if certiorari

"In reference to the appropriate level of scrutiny, Kleenwell is incorrect

in its argument at page 25 of its petition that the WUTC’s decision contained

no finding that the certificate requirement was the only way to achieve a

legitimate local purpose as would be required under the test in Maine v.

Taylor, 477 U.S. 131 (1986). In the “Factual Background” contained in the

memorandum portion of its order, the WUTC expressly found that there were

no obvious alternatives to the certificate requirement to assure universal solid

waste collection service at reasonable rates. Pet. App. 57(a)-60(a). There is

no requirement under the state APA that factual findings be numbered.

eats P

so 3 tesa,

whi ew

wits Reba Reieetial hacaibete sda eab aie Tate 9

15

were granted. Washington v. Confederated Bands & Tribes of

the Yakima Indian Nation, 439 U.S. 463, 476 n.20 (1979).

S. The Decision of the Court of Appeals Has No Impact

on a State’s Authority to Ban the Interstate

Transportation of Waste.

Kleenwell’s exaggerated claim that the Court of Appeals’

decision “will change the nature of interstate commerce

nationwide" (Pet. at 17) by allowing states to control the flow of

waste at state borders is legally and factually erroneous. Pet.

at 15-16.

The question of whether states can stop the free flow of

waste at the state borders has already been determined in

Philadelphia v. New Jersey, 437 U.S. 617 (1978), where this

Court held that a state cannot constitutionally block the free flow

of waste at the state border based solely on its origin. Nothing

in the decision below conflicts with that holding.

As the Court of Appeals found, there is nothing in the

Washington statutory scheme that blocks the flow of waste across

the state’s borders. Certificated carriers may, and do, transport

waste out of state for disposal with no interference from the state

of Washington. In its administrative order, the WUTC stated

that a certificated carrier does not need to request WUTC

approval to transport waste across state lines. Pet. App. 40(a)-

41(a). Moreover, because the Washington statutory scheme is

directed at only the local activity of waste collection, there is no

16

requirement for a certificate of convenience and necessity to

import waste into Washington State or to export waste in long

haul movements from a disposal site, transfer station, or other

point of accumulation. Pet. App. 41(a).

6. The Court of Appeals Correctly Applied University of

Tennessee v. Elliott.

When a State agency acting in its judicial capacity

resolves factual issues which are properly before it and which the

parties have had an adequate opportunity to litigate, federal

courts in 42 U.S.C. § 1983 cases give the agency’s factual

findings the same preclusive effect they would be entitled to in

the state’s courts. University of Tennessee v. Elliott, 478 U.S.

788 (1986). The Court of Appeals correctly concluded that the

administrative hearing before the WUTC met all the

requirements of Elliott. Kleenwell, 48 F.3d at 394-95; Pet.

App. 10(a)-12(a).

Kleenwell’s claim of being denied an opportunity for a

fair determination of the facts is disingenuous. First, the

administrative proceedings were conducted by an administrative

law judge from the state Office of Administrative Hearings, an

independent state agency charged with conducting impartial

administrative hearings. Wash. Rev. Code § 34.12.010. The

WUTC affirmed the initial order of the administrative law judge.

ak 2 Senta . a

17

Second, the claim that the fact finding was biased is quite

remarkable since all the factual findings regarding Kleenwell’s

operations were based exclusively on Kleenwell’s own testimony

and exhibits. Kleenwell made its factual presentation before the

WUTC based on a theory of law that it believed exempted it

from state regulation. Kleenwell now seeks a second opportunity

to make a different factual presentation based on the same theory

of law. It is difficult to conceive of a clearer case for the

application of collateral estoppel.

Kleenwell’s complaint that it should get a second attempt

to litigate whether medical waste is harmful is irrelevant. The

Court of Appeals’ decision addressed the Washington statutory

scheme for solid waste collection, whether that waste is medical

waste or some other type of waste. In any event, Kleenwell had

a full and adequate opportunity to present before the WUTC any

evidence supporting its theory of the case.

Kleenwell’s sensational claims of the WUTC’s abuse of

procedure are baseless. In determining whether Elliott applied

to the facts of this case, two levels of the federal judiciary have

now reviewed the WUTC’s procedures as applied to Kleenwell

and have not found those procedures biased or otherwise

deficient. And, of course, those courts have independently

reviewed the constitutional question without giving any deference

to the WUTC.

18

Kleenwell’s claim that it could not file its civil rights

action in federal court until the WUTC had issued its decision

misstates the law. The WUTC’s staff had earlier issued

Kleenweli a warning letter to cease collecting waste in this state

until it received a certificate authorizing it to do so. The WUTC

had also issued a penalty assessment against Kleenweil for

Operating as a solid waste collection company without a

certificate. A reasonable threat of a prosecution gives rise to a

ripe controversy. Steffel v. Thompson, 415 U.S. 452, 458-59

(1974). In the Medigen case relied on by Kieenwell, the federal

plaintiff did file its complaint in federal district court upon the

threat of prosecution. Medigen, 958 F.2d at 165. Kleenwell

could have done likewise and was not "trapped" from filing its

suit.

Finally, Kleenwell’s reliance on St. Joseph Stock Yards

Co. v. United States, 298 U.S. 38 (1936), is misplaced. That

case involved the judicial review of the factual findings of an

administrative agency, rather than the relitigation of those factual

findings. Kleenwell’s argument confuses judicial review of

findings of fact, which it did not seek in the state courts, with

relitigation of factual matters which it seeks but to which it is not

entitled under Elliott. Kleenwell takes the contradictory

approach of not seeking judicial review, and then citing cases on

19

the scope of judicial review to support the entirely different

proposition that it may relitigate those facts.

CONCLUSION

For the foregoing reasons, the petitioners’ petition for a

writ of certiorari should be denied.

Respectfully submitted,

CHRISTINE O. GREGOIRE

Attorney General

WILLIAM BERGGREN COLLINS*

STEVEN W. SMITH

Assistant Attorneys General

Counsel of Record*

Counsel for Respondents

P.O. Box 40100

ee WA 98504-0128

(360) 753-6245

May 1995