Opposition Brief — Eastern Kentucky Resources v. Fiscal Court of Magoffin County

custtiaieatmemeameeeen, TE

Supreme Court, U.S.

(9) FILED

No. 97-1194 MAR 23 190

In The

Supreme Court of the United States

+>

October Term, 1997

EASTERN KENTUCKY RESOURCES, et al.,

Petitioners,

VS.

THE FISCAL COURT OF MAGOFFIN COUNTY, et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION FOR RESPONDENT

THE FISCAL COURT OF MAGOFFIN COUNTY

WILLIAM GROVER ARNETT

Magoffin County Attorney

Attorney for Respondent

The Fiscal Court of Magoffin County

P.O. Box 648

Salyersville, Kentucky 41465

(606) 349-2065

145456 (800) 274-3321 + (800) 359-6859 Le te

A DIVISION OF COUNSEL PRESS

ervices, inc.

i

QUESTION PRESENTED

Whether a state municipal solid waste program that links

landfill permits to local planning violates the Commerce Clause,

by allowing a county either to host a landfill with an evenhanded

cap on the landfill’s size, or to prohibit all new landfills and to

market its garbage outside the county.

TABLE OF CONTENTS

Page

Gate FUNG o.kcce cccddeietoboscbebessenes i

eee GE 0 cnc cbopetstendbaeeeeiaeeene ii

eee OE ED 0.0 0:kh00800nentesedeeseseen iii

Statutory Provisions Involved .................... l

PRT GG | 6 ck odeccsteccssdeseinsodenne 1

Reasons for Denying the Writ .................... 8

I. The Case Turned On A Question Of Fact, Not

Constitutional Law; The Sixth Circuit Correctly

Applied Supreme Court Precedents And Issued

An Opinion Consistent With Those Precedents

And The Opinions Of Other Circuits. ........ 8

A. EK Resources Did Not Prove That Senate

Bill 2 Was Enacted With a Discriminatory

POE. 0 ccccncctcesecésauenieweines 11

B. EK Resources Did Not Prove That Senate

Bill 2 Discriminates in Practical Effect. .. 15

C. Because EK Resources Did Not Prove That

Senate Bill 2 Has Discriminated Against

Interstate Commerce, This Case Is

Distinguishable From Fort Gratiot and

GES 800s000ss00esssenseneneessas 19

CIRO. oss cicncueecdeeesesaenee 22

iii

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ... 12

Blue Circle Cement v. Bd. of County Comm'rs, 27 F.3d

ce kG eWs e666 0 Soe sc cecs 10

Brimmer v. Rebman, 138 U.S. 78 (1891) ........... 16

C & A Carbone, Inc. v. Town of Clarkstown, N.Y., 511

ET See chubsedewesdbacdsees Seces 9

Chambers Medical Technologies of S.C., Inc. v. Bryant,

— eB eee 10

Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334

le Ea ass Wb oes do s0b see nes 00's es o's eee 10

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

CRUE Re tiewha shia Wee wae sds eee'ee ee 8, 9, 10, 11, 17, 20

Clover Leaf Creamery Co., 449 U.S. at 463 ... 12, 16, 18, 21

Dean Milk Co. v. City of Madison, 340 U.S. 349

i SMEs Gee Whewe dense seeewees does s 16

Eastern Kentucky Resources v. Arnett, 892 S.W. 2d 617

EE A eins a's w'e ace Wet kc'e ee eves» ees 6

iv

Contents

Page

Eastern Kentucky Resources v. Arnett, 934 S.W. 2d 270

PTT Te ere ere errr ere 5, 6, 17

Exxon Corp. v. Governor of Maryland, 437 U.S. 117

(RPOED ¢ déeetked an cdcdehsd oseaesenedenes 9, 16, 18, 21

Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep’t of

Natural Resources, 504 U.S. 353 (1992) .......... 19, 20

Gary D. Peake Excavating, Inc. v. Town Bd. of Hancock,

93 F.3d 68 (2d Cir. 1996) ........ Ae een 12, 14

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) .. 11

GSW v. Long County, 999 F.2d 1508 (11th Cir. 1993)

CVeceeeedeaetancensh ene ined obs Cane dp hae 16, 17, 19

H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525

rene per tre PA pees « 8

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

Hughes v. Oklahoma, 441 U.S. 322 (1979) ......... 11, 15

Hunt v. Washington State Apple Advertising Comm’n, 432

ls SN EEE ei cid ewen eed een 50k ko ae 11, 12, 14

Kassel v. Consolidated Freightways Corp. of Delaware,

Sie TD, See CRED. 6 s.00bsuicsas ses ces 10

Contents

Page

Kleenwell Biohazard Waste and General Ecology

Consultants, Inc. v. Nelson, 48 F.3d 391 (9th Cir.

1995), cert. denied, 515 U.S. 1143 (1995) ....... 10

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

ESPEN £cebbdvdccadebsganibie es obuwaddadoics 10

Morrow v. City of Louisville, 249 S.W. 721 (Ky. 1952)

Leda ab o0e SEN Es Kes be ated POCA ee Veo 13

New Energy Company of Indiana v. Limbach, 486 U.S.

et kG ck Ks neo oceebakeneneeeeansons 8

Old Bridge Chemicals, Inc. v. New Jersey Dep’t of

Environmental Protection, 965 F.2d 1287 (3d Cir.

1992), cert. denied, 506 U.S. 1000 (1992) ....... 10

Oregon Waste Systems v. Dep’t of Environmental Quality

Gemgee, F345 US. Fo IRS anccseccasbdiens, 11

Perry v. Commerce Loan Co., 383 U.S. 392 (1966) .. 12

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

Cdhusch sinh sake pada dens ake e 8, 9, 11, 20, 21

SDDS, Inc. v. South Dakota, 47 F.3d 263 (8th Cir. 1995)

SSC Corp. v. Town of Smithtown, (2d Cir. 1995) 66 F.3d

502, cert. denied, __ U.S. __, 116 S. Ct. 911, 133 L.

14

Oy Se Oe AAI 8 ch ncn saneccanssanecchpebas 17, 18

vi

Contents

Page

Taylor v. Freeland & Kronz, 503 U.S. 638 (1992) .... 18

United States v. Vuitch, 402 U.S. 62 (1971) ......... 10

U.S.A. Recycling, Inc. v. Town of Babylon, 66 F.3d 1272

(2d Cir. 1995), cert. denied, __ U.S. __, 116 S. Ct.

1419, 134 L. Ed. 2d 544 (1996) .......... 16, 18, 19, 21

Statutes Cited:

Se SE UU idakextcakan dade Varnwsane 1, 4, 19

PE 6 vib 8Kc dn tansnennkdses cheeeenens i, 3, a2

Pereira 4

SE SRD, 6 ioc dececnicessnsbaaheeneeuas 4

Se OIE we daicecdccvde seu sduneeheneeee L238

SOUR END So oc nees CeedyaAtconsdbeees 19

eee SOM EE LEED cave sccbacsiadtsacdecaees 19

Senate Bill 2, Ky. Acts 1991, ch. 12 ...............

esd adeaiaenevatewes 2, 3, 4, 5, 6, 11, 12, 13, 14, 15, 20

United States Constitution Cited:

ee Per erreer Tr tr erie rr ete 8

A Su PACER G RE ET

vii

Contents

| Page

Rules Cited:

Supreme Court Rule 14.1(a) ..........cccccccccces 18

SY CEE SOD BOSECED 5 cv cn sss ccecencsecvess l

APPENDIX

Appendix A — Kentucky Revised Statutes ......... la

i 6 dina Ale a AEE Sane KS ek O66 la

EE i ei ta Wak tinh a 6 canbe Manne ees Sa

ee er ee ere errr eT ee 7a

1

The Respondents, Paul E. Patton, in his capacity as

Governor of the Commonwealth of Kentucky, and James E.

Bickford, in his capacity as Secretary of the Natural Resources

and Environmental Protection Cabinet of the Commonwealth

of Kentucky, and The Fiscal Court of Magoffin County,

respectfully request that this Court deny the petition for Writ of

Certiorari, seeking review of the opinion issued by the United

States Court of Appeals for the Sixth Circuit in this case. That

opinion is reported at 127 F.3d 532 (1997).

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved are KRS 224.43-345,

KRS 224.43-010, and KRS 224.40-315. They are presented in

the appendix because of their length, and because EK

Resources’ quotations were not set forth verbatim in conformity

with Supreme Court Rule 14.1(f).

STATEMENT OF THE CASE

This is a case about EK Resources’ attempt to site a new

municipal solid waste landfill in Magoffin County, Kentucky.

Because EK Resources did not succeed, it is petitioning the

Supreme Court of the United States to do what the courts below

would not - strike Kentucky’s program for managing municipal

solid waste down under the Commerce Clause. EK Resources

did not prevail below because it failed to prove that

discrimination by differential treatment existed under the

challenged statutes, as is necessary for strict scrutiny under the

Commerce Clause. EK Resources now asks the Supreme Court

to overturn the findings of fact made by the United States District

Court, Eastern District of Kentucky and affirmed by the United

States Court of Appeals for the Sixth Circuit, to hold that

differential treatment does in fact exist.

2

In so petitioning, EK Resources omits in its Statement of

the Case several key factual findings entered by the courts below.

These facts relate to the timing between the landfill proposal

and the challenged statute’s enactment, the reasons for

Kentucky’s actions with respect to the landfill permit application,

and the events, unrelated to the challenged statute, that hindered

construction of the new landfill.

Kentucky’s program for managing municipal solid waste

(commonly known as garbage) sets design and operation

standards for landfills, and links landfill permits to local

planning. Kentucky first developed a program regulating

garbage disposal in the 1960’s, but it emphasized the control of

open dumps, with minimal local planning. The local planning

that was required was not effective, and was not linked to the

issuance of landfill permits. In 1990, Kentucky’s Natural

Resources and Environmental Protection Cabinet (“the cabinet’)

adopted more stringent standards for landfills, and

then-Governor Wallace G. Wilkinson announced a special

legislative session on garbage.

Senate Bill 2, Ky. Acts 1991, ch.12 (“SB 2”) was enacted

at the special legislative session, and became effective February

21, 1991. It contains sixty-three sections governing garbage

reduction strategies, landfill permits, state and local planning,

garbage collection, tax incentives for recycling, and public

participation in local planning and permitting. Local planning

areas were to be established, and were charged to administer

fifteen solid waste planning duties, including the duty to project

local garbage disposal needs and to plan for those needs by

finding present and future “homes” for garbage. KRS

224.43-345.' The goal of SB 2 is to reduce the amount of

1. It has been well noted in the lower Federal Court opinions

that Kentucky has made great progress in recycling. In 1990, prior

(Cont’d)

3

garbage generated per person by 25%, by using the three basic

precepts of solid waste management, “reduce, reuse, and

recycle”. KRS 224.43-010.

(Cont’d)

to Senate Bill 2, 104 of 120 counties reported that no recycling

programs existed within the planning area; in 1993, well after the

implementation of Senate Bill 2, the local garbage plans showed that

only 26 remaining counties of 120 counties do not have recycling

programs. Furthermore, to date, 97 of 120 counties have data on

garbage collection rates, etc.... with all 120 counties having local

citizen advisory committees.

Magoffin County has in one sense taken the lead in it’s effort

to reduce, reuse and recycle waste pursuant to KRS 224.43-345. In

1995, the newly instituted recycle center disposed of 141,000 pounds

of “in-county waste” with minimal recycle material from “out-of-

county”. In 1996, 207,000 pounds of “in-county waste” was recycled

plus 64,000 pounds of “out-of-county waste” recycled. Then, as of

1997 year end, a record 390,000 pounds of “in-county waste” was

recycled plus 50,000 pounds of “out-of-county waste”. These figures

do not account at all for used appliances or larger materials that are

taken to Magoffin County’s transfer station. Primarily, the figures

above account for paper, plastic, glass and other such similar

household waste.

Magoffin County’s recycle program, albiet it partially funded,

is primarily comprised of civic minded citizen volunteers who

tirelessly give up their free time. These citizens and Magoffin’s

recycle program as a whole have been recognized time and again as

a leader in recycling by television, newspaper, the Kentucky Division

of Waste Management and by Resolution of the Kentucky Senate.

This program of recycling is not only unique for the reasons stated,

but is also different because there are no consultants hired to write

the solid waste plan for the County. Instead, this plan is written by a

citizen comprised solid waste advisory board. Without this local

citizen participation, this successful program of rural recycling

would not have been possible.

4

Kentucky counties must either “host” a landfill open to

local and out-of-county garbage (including out-of-state

garbage), or they may “sell” their garbage outside the county,

in which case new landfills are not sited within the county. A

county hosting a new landfill may limit its capacity, but only

by limiting the total amount of garbage to be accepted. A county

may not site a local landfill and reserve its capacity for local

use. SB 2, as drafted and administered, does not allow a ban on

garbage from outside a county.”

SB 2 links landfill permits to local solid waste management

plans, by requiring all applications for new landfills to be locally

reviewed. KRS 224.40-315. This furthers the legitimate local

interest of requiring government officials, local citizens and

landfill developers to work together on reducing the amount of

garbage generated per person and slowing the flow of garbage

into landfills. See, e.g., KRS 224.43-010(2), (3). This “local

determination” process applies to all new landfills and substantial

expansions of existing landfills.

Under SB 2 all garbage is treated identically, regardless of

origin, and garbage moves freely into and out of Kentucky.

The record below reflects that the amount of garbage imported

to Kentucky from out-of-state has doubled since enactment of

SB 2. At the same time, the number of landfills went from 70

to 30. Petitioner’s Appendix, pages 25a, 40a (“Pet. 25a, 40a”).

The total disposal capacity authorized in the 118 local solid

waste plans is double Kentucky’s needs as projected over the

next ten years, meaning that half of authorized capacity is

reserved for out-of-state garbage. Jd. The Sixth Circuit held

2. However, a county may own its own landfill and reserve that

landfill for local use without violating the Commerce Clause, under

the market participant doctrine established in Hughes v. Alexandria

Scrap Corp., 426 U.S. 794 (1976). Two of Kentucky’s 120 counties

have selected this option.

5

that this is an evenhanded approach to managing garbage,

presenting no differential treatment benefiting a local economic

interest and burdening a foreign interest. (Pet. 26a-27a). In so

holding, the Sixth Circuit affirmed the findings made by the

district court. (Pet. 55a-56a).

EK Resources offers the conclusion in its Statement of the

Case that Kentucky acted to stop the proposed landfill since the

landfill would accept out-of-state garbage. The record does not

support that conclusion. To begin with, SB 2 could not have

been enacted to defeat EK Resources’ landfill, because it was

months after enactment of SB 2 that EK Resources first presented

its landfill proposal to the Magoffin County Fiscal Court. (Pet.

44a). Further, the cabinet rejected EK Resources’ permit

application because the county’s solid waste management plan,

which incorporated the proposed landfill, was defective. (Pet.

44a-45a). That plan was defective because it allowed the

county’s old substandard landfill to operate illegally while EK

Resources’ landfill was being constructed. Indeed, the cabinet

included EK Resources’ proposed landfill in its own plan for

Magoffin County, a plan required by SB 2 because the county

failed to submit a timely, completed plan. (Pet. 45a-46a). A

legal challenge to the contract for the proposed landfill entered

between EK Resources and the Magoffin Fiscal Court hindered

the county’s timely completion of a plan. (Pet. 45a). The legal

challenge, as well as changes in the membership of the fiscal

court, led to a stalemate among those members and ultimately a

county decision not to host a landfill at all. Jd.

The landfill contract initially entered between EK Resources

and the Magoffin County Fiscal Court in December 1991 was

ultimately struck down by the Kentucky Supreme Court as

violating the Kentucky Constitution, because of the county’s

failure to allow public notice and competitive bidding on the

contract. Eastern Kentucky Resources v. Arnett, 934 S.W. 2d

6

270 (Ky. 1996). If the Kentucky Supreme Court had instead

affirmed the contract, EK Resources would be proceeding to

site the landfill as proposed. This demonstrates conclusively

that SB 2 is not the source of EK Resources’ difficulties. Indeed,

EK Resources’ failure to follow the Kentucky Constitution in

contracting with the county, and its unsuccessful SLAPP suit

against local citizens who challenged the contract, provide more

than an adequate explanation for its landfill siting woes. See,

Eastern Kentucky Resources v. Arnett, 892 S.W. 2d 617 (Ky.

App. 1995).?

3. The failure of the Fiscal Court of Magoffin to issue public

notice or to follow certain basic competitive bidding practices in

1991 in regard to the corporation, EK Resources, was no oversight

or mistake. At this time, the Magoffin County Fiscal Court was

advised by then County Attorney John “Jack” Collins and his

Assistant County Attorney Gregory D. Allen. Magoffin County

Attorney Assistant Gregory D. Allen was the nephew of Charles Allen,

who was Magoffin County Judge at the time. County Judge Charles

Allen heavily courted EK Resources and their money. County Judge

Allen met with them in private and was supported by real estate agent,

Darvin Allen, father of Gregory D. Allen, in his efforts to bring out-

of-state garbage into Magoffin County. Attorney Allen even prepared

deeds of conveyance for EK Resources who purchased the land for

the landfill in the small community of Half Mountain, Kentucky.

Meanwhile, after a series of secret and private meetings were held

by County Judge Charles Allen with various entities who promoted

out-of-state garbage, these secret events were discovered by then

Salyersville Independent reporter, Jerry Hardt. Once the story went

to press, the public became outraged that all of this had been hidden

from their view and the people exercised their freedom of speech

and right to vote in simultaneous fashion. Some fiscal court members

resigned. County Judge Allen died while in office. Then, at election

time, the voters of Magoffin County did the rest by voting in new

fiscal court members, County Judge, County Attorney, Circuit Clerk,

District Judge, etc... Thus, through the will of the people, the solid

waste plan of Magoffin simply reflects the deisres of citizens of

(Cont'd)

7

The Sixth Circuit reached a very different conclusion than

the one EK Resources submits in its Statement of the Case. Of

the events surrounding EK Resources and its efforts to site a

new landfill in Magoffin County, the Sixth Circuit stated:

When the Cabinet rejected the County’s area plan

and rewrote a plan for the County, the Cabinet itself

suggested that the County use EKR’s proposed

landfill. However, the contract between EKR and

the County was later declared invalid, the

composition of the Fiscal Court changed, and the

new members decided to do the expedient and not

build a landfill at all in Magoffin County. These

events were most likely the predominant, if not the

only reasons, why EKR did not succeed.

(Pet. 25a). As the Sixth Circuit concluded in reviewing the facts

EK Resources presented, “[t]he Commerce Clause is not a safety

valve for those who are simply political process losers”. (Pet.

24a).

(Cont’d)

Magoffin by preventing the location of any landfill in its borders

for either local or out-of-state waste. This response and attitude

of the citizens of Magoffin can be attributed to many factors, but of

paramount concern is that Magoffin County houses the head waters

of the Licking River that empties into the Ohio River. The head waters

of the Licking River is where the first landfill was scheduled to be

located (Half Mountain), receiving 10,000 tons of trash each day.

8

REASONS FOR DENYING THE WRIT

L

THE CASE TURNED ON A QUESTION OF FACT,

NOT CONSTITUTIONAL LAW; THE SIXTH CIRCUIT

CORRECTLY APPLIED SUPREME COURT

PRECEDENTS AND ISSUED AN _ OPINION

CONSISTENT WITH THOSE PRECEDENTS AND THE

OPINIONS OF OTHER CIRCUITS.

The Commerce Clause states that Congress shall have the

power “[t]o regulate Commerce with foreign Nations, and

among the several States, and with the Indian Tribes.” U.S.

Const., art. 1, § 8, cl. 3. The Supreme Court has established a

“dormant” component of the Commerce Clause, which limits a

state’s ability to pass laws that impermissibly interfere with the

flow of interstate commerce. H.P. Hood & Sons, Inc. v. Du

Mond, 336 U.S. 525, 535 (1949). If state legislation

discriminates against interstate commerce, it violates the dormant

component of the Commerce Clause unless the state or local

government shows the discrimination is demonstrably justified

by a valid factor unrelated to economic protectionism. City of

Philadelphia v. New Jersey, 437 U.S. 617 (1978); New Energy

Company of Indiana v. Limbach, 486 U.S. 269, 274 (1988).

Discrimination is defined as differential treatment based on the

origin of the article of commerce. City of Philadelphia, 437

U.S. at 627-28. However, statutes which regulate evenhandedly

and have only indirect effects on commerce are upheld unless

the burdens are “clearly excessive in relationship to the putative

local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142

(1970).

Garbage is an article of commerce protected by the

Commerce Clause. See City of Philadelphia, 437 U.S. at 622.

9

However, garbage has no economic value; it only has value in

the marketplace because of government regulations to ensure

its proper disposal as a health and safety measure. Thus, unlike

the classical “widgets,” garbage has a public health and safety

component requiring government intervention. That is the

genesis of all solid waste management programs, from collection

to disposal. There is a delicate balance between the police power,

legitimately exercised to enforce proper management of garbage

as a potential health hazard, and the marketplace that delivers

this service. This is the reason for the series of waste

management-related cases decided under the Commerce Clause

since City of Philadelphia.

There are two categories of waste management-related

regulation that constitute economic protectionism requiring strict

scrutiny under the Commerce Clause. The first occurs when

foreign waste is banned or restricted while local waste is not, or

when a scarce local resource is hoarded for local use, such as

when landfill space is reserved for local waste. See, e.g., City of

Philadelphia, 437 U.S. at 624. The second occurs when a

preferred local business is protected against foreign competition,

such as when all local waste must be delivered to a local waste

disposal facility. See, e.g., C & A Carbone, Inc. v. Town of

Clarkstown, N.Y., 511 U.S. 383 (1994). This is known as “flow

control,” and is essentially a local processing requirement. Jd.

However, economic protectionism is not created by the

evenhanded regulation of commerce. If a statute treats commerce

evenhandedly, then the statute is entitled to review under the

Pike balancing test. Pike v. Bruce Church, 397 U.S. at 142.

One type of evenhanded treatment exists when the requirement

simply excludes everyone from the marketplace. See Exxon

Corp. v. Governor of Maryland, 437 U.S. 117 (1978)

(upholding a Maryland statute under the Commerce Clause that

prohibited all petroleum producers and refiners from owning

10

retail stations); Minnesota v. Clover Leaf Creamery Co., 449

U.S. 456 (1981) (upholding a Minnesota statute under the

Commerce Clause that prohibited the sale of milk in plastic,

non-returnable containers). Another type of evenhanded

treatment exists when a local requirement is applied across the

board to everyone participating in the marketplace. Old Bridge

Chemicals, Inc. v. New Jersey Dep’t of Environmental Protection,

965 F.2d 1287 (3d Cir. 1992) (state recycling code for hazardous

waste by products), cert. denied, 506 U.S. 1000 (1992);

Kleenwell Biohazard Waste and General Ecology Consultants,

Inc. v. Nelson, 48 F.3d 391 (9th Cir. 1995) (certificate of need

for all solid waste transporters), cert. denied, 515 U.S. 1143

(1995); Blue Circle Cement v. Bd. of County Comm'rs, 27 F.3d

1499 (10th Cir. 1994) (zoning ordinance applicable to all

hazardous waste sites). Further, in waste management-related

cases this Court has expressly noted that states may act to slow

the flow of all waste or to place evenhanded caps on landfills.

City of Philadelphia, 437 U.S. at 626; Chemical Waste

Management, Inc. v. Hunt, 504 U.S. 334, 345 (1992). Accord,

Chambers Medical Technologies of S.C., Inc. v. Bryant, 52 F.3d

1252 (4th Cir. 1995) (upholding a fluctuating cap on the total

amount of infectious waste an incinerator may accept).

In challenging the constitutionality of a state statute, EK

Resources bears a heavy burden. Statutes should be construed

whenever possible so as to uphold their constitutionality. United

States v. Vuitch, 402 U.S. 62, 70 (1971). Those who would

challenge bona fide state safety regulations using the Commerce

Clause must overcome a strong presumption of validity. Kassel

v. Consolidated Freightways Corp. of Delaware, 450 U.S. 662,

670 (1981). Thus, while EK Resources charges that the Sixth

Circuit erred in applying the balancing test instead of the per se

test, it fails to acknowledge the factual predicate for imposing

Strict scrutiny under the per se test: Discrimination, the

differential treatment of an article of commerce based on its

11

origin, must exist. Oregon Waste Systems v. Dep’t of

Environmental Quality of Oregon, 511 U.S. 93 (1994); Pike v.

Bruce Church, 397 U.S. at 142; City of Philadelphia, 437 U.S.

at 627-8. The burden is on the challenger to demonstrate the

existence of differential treatment. Hughes v. Oklahoma, 441

U.S. 322, 336 (1979). It is this evidentiary burden that EK

Resources did not carry.

Thus, EK Resources is in reality asking for the Supreme

Court to issue a writ of certiorari to the Sixth Circuit for the

purpose of overturning allegedly erroneous findings of fact,

and not for any compelling reason. Further, the Sixth Circuit

affirmed the findings of fact made by the district court. This

Court need not review those concurrent findings of fact, since

no “extraordinary reason for undertaking this task” exists.

Goodman v. Lukens Steel Co., 482 U.S. 656, 665 (1987). For

that reason, the petition should be denied.

A. EK Resources Did Not Prove That Senate Bill 2 Was

Enacted With a Discriminatory Purpose.

EK Resources asks the Supreme Court to hold that SB 2

has a discriminatory purpose, yet it offers no direct evidence of

a discriminatory purpose. Moreover, in its discussion of

discriminatory purpose, EK Resources offers no legal authority

explaining how the Sixth Circuit either misapplied Supreme

Court precedent or contradicted opinions issued by other circuits.

Further, EK Resources ignores the opinions issued by the

Second and Eighth Circuits in reviewing solid waste-related

statutes for a discriminatory purpose.

In framing this argument, EK Resources equates purpose

to motive. It is questionable whether motive can be so equated,

since without other evidence of discrimination, evidence of

motive is of limited probative value. See, e.g., Hunt v.

12

Washington State Apple Advertising Comm’n, 432 U.S. 333,

352 (1977); Gary D. Peake Excavating, Inc. v. Town Bd. of

Hancock, 93 F.3d 68, 74 (2d Cir. 1996). Indeed, as the Sixth

Circuit noted, articulated legislative objectives are the actual

purposes of a statute, and those words are often sufficient in

and of themselves to determine those purposes, citing Perry v.

Commerce Loan Co., 383 U.S. 392, 400 (1966); Clover Leaf

Creamery Co., 449 U.S. at 463, 471 & nn.7, 15. (Pet. 19a).

Thus, KRS 224.43-010, stating the purpose of SB 2, is

adequate evidence to establish legislative purpose. Yet the Sixth

Circuit did review the additional evidence EK Resources

presented, and concluded, as did the district court, it did not

support the premise that SB 2 was enacted with “bad motive”.

(Pet. 20a-22a, 53a-55a).

EK Resources tenders as proof that SB 2 was enacted with

a discriminatory purpose a 1990 University of Kentucky study

commissioned by then-Governor Wallace Wilkinson. This study

could not have been “a blueprint” for Kentucky to discriminate

against out-of-state garbage, since there is no evidence in the

record that then-Governor Wilkinson had any influence over

the contents of the study, that the study influenced the vote of

any legislator in enacting SB 2, or even that then-Governor

Wilkinson appointed the University of Kentucky’s president.

(Pet. 21a). EK Resources attempts to bolster the evidence

presented below by making these unsupported statements. Such

statements not supported by the record should be disregarded.

Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 (1970).

The study was hardly a blueprint for discrimination, even

if it had been relied upon. Instead it examined many solid waste

management issues, such as those related to open dumping,

garbage collection, recycling, landfill design and capacity, local

planning, and public participation. It does not focus on public

Opposition to out-of-state garbage, and where the issue is

13

examined, the study cautions that there is a duty to comply

with the Commerce Clause and the judicial precedents

interpreting it. (Pet. 53a).

Similarly irrelevant are the opinions of the later-elected

governor, Brereton Jones, and later-elected county judge-

executive, Charles Hardin, since there is no evidence in the

record that their opinions influenced the actions of the Kentucky

legislature in enacting SB 2, or the actions of the cabinet in

administering it. (Pet. 54a). In an attempt to correct this

deficiency in the evidence, EK Resources proffers as evidence

a footnote in a law review article, in which the author claims

familiarity with the enactment of SB 2, and asserts that the

working premise of that legislative session was that local landfills

could preserve local landfill space for local use through capacity

assurance. The author was not a legislator, and even if he were,

in construing Kentucky statutes the courts do not inquire into

’ the motives that impel legislative action either before or after

such action is taken. Morrow v. City of Louisville, 249 S.W.

721, 724 (Ky. 1952). Further, since under SB 2 Kentucky

counties are not allowed to reserve local landfill space for local

use, the author’s assertion is simply erroneous.‘

4. Magoffin County Attorney, William Grover Arnett, never

directly influenced the passage of SB2. Instead, he was elected by

the citizens of Magoffin County, as were many other public officials,

to insure that the Magoffin County Solid Waste Plan reflected the

interest of the majority. The majority of the people opposed a solid

waste plan for Magoffin County that includes establishing a landfill

for in-state or out-of-state waste. Many reasons for opposition to

any landfill has been voiced, but a fact that can not be overlooked is

that EK Resources and the old pro-landfill fiscal court had negotiated

the terms of this landfill in secret, purposely hiding it from the

public. The result was a galvanized public who stood fast together

against at least one clear opponent — a bad government who

obviously had a secret deal to hide. Thus, it is clear from the evidence

(Cont’d)

14

The evidentiary weaknesses are best illustrated by EK

Resources’ failure to present the “bad motive” case it relied on

below, SDDS, Inc. v. South Dakota, 47 F.3d 263 (8th Cir.

1995). In SDDS, the Eighth Circuit invalidated a South Dakota

statute requiring a referendum on environmental issues before

any large landfill could be constructed, even though

environmental reviews for such landfills were already conducted

by the state environmental protection agency. Key to the Eighth

Circuit’s decision was direct evidence that the statute was enacted

with the purpose of stopping a large landfill that proposed to

accept out-of-state garbage. By contrast, the Sixth Circuit found

no direct evidence to suggest that SB 2 was enacted to stop EK

Resources’ landfill (or any other any landfill) because it would

accept out-of-state garbage, noting that:

Unfortunately, EKR does not present my such

evidence to support its contention that KRS

224.40-315 and KRS 224.43-345 were enacted by

the Commonwealth with the purpose of protecting

local economic actors from interstate

competition. ... When a party seeks to present

circumstantial evidence of discriminatory purpose

pursuant to a dormant Commerce Clause challenge,

it is the duty of that party to show the effect of that

evidence on the challenged statute. (Pet. 21a).

See Washington State Apple Advertising Comm’n, 432 U.S. at

351-53; Peake Excavating, Inc., 93 F.3d at 74.

(Cont'd)

that EK Resources’ rights under the Commerce Clause have not been

violated, rather they have been discarded along with the rest of the

garbage by a public who reacted to the wrong doing of both EK

Resources and an earlier Magoffin County Fiscal Court, then County

Judge Charles Allen and then County Attorney John “Jack” Collins.

Local economic actors versus interstate competition was simply

never part of the issue in regard to the people or SB2.

: SEAR AN, oS pe mE

15

EK Resources bore the burden of demonstrating that SB 2

has a discriminatory purpose, and as the Sixth Circuit correctly

held, EK Resources failed to present the evidence necessary to

carry that burden. See Hughes v. Oklahoma, 441 U.S. at 336.

(Pet. 20a, 22a). The motive and argument EK Resources

advances in its petition is nothing more than a plea for the

Supreme Court to re-examine the evidence presented below,

Such a re-examination is not worthy of a writ of certiorari.

B. EK Resources Did Not Prove That Senate Bill 2

Discriminates in Practical Effect.

EK Resources asks the Supreme Court to hold that SB 2

discriminates in practical effect. While EK Resources seeks to

persuade that the Sixth Circuit ignored Supreme Court

precedents and created a new rule contradicting those precedents,

in reality the Sixth Circuit simply applied those precedents to

the facts. In its petition EK Resources attempts to manufacture

a legal issue out of an issue of fact, after it failed to place the

necessary facts into evidence.

EK Resources argues that the 118 area solid waste

management plans demonstrate that SB 2 discriminates in

practical effect, stating that 85 of those 118 plans “provide no

capacity whatsoever for out-of-area (and thus out-of-state)

waste.” (Pet. 11). What EK Resources does not state is that

those same counties also do not have capacity for local garbage.

They do not have capacity for anyone because they do not host

a new landfill and they market their garbage elsewhere. After

examining all of the 118 plans, both the Sixth Circuit and the

district court found no. discrimination because the amount of

out-of-state garbage imported to Kentucky doubled after

enactment of SB 2, despite the fact that the number of Kentucky

landfills decreased. (Pet. 25a, 51a). The Sixth Circuit also found

persuasive the fact that landfill capacity is double Kentucky’s

16

projected needs over the next decade, meaning half of that

capacity is reserved for out-of-state garbage. (Pet. 25a).

EK Resources cites Dean Milk Co. v. City of Madison, 340

U.S. 349 (1951); Brimmer v. Rebman, 138 U.S. 78 (1891);

and GSW v. Long County, 999 F.2d 1508 (11th Cir. 1993), in

support of its argument that SB 2 discriminates against interstate

commerce because even though in-state economic interests are

burdened, out-of-state economic interests are also burdened.

However, the cases cited are local barrier cases. In each, a local

product (milk in Dean Milk, meat in Brimmer, garbage in GSW)

was favored over foreign products, and each local requirement,

while it may not have discriminated at the state line, did

discriminate at the county line or at some other line dividing

local from foreign interests. By contrast, under the Kentucky

statutes there is no barrier dividing a local interest from a foreign

interest, because there is no local landfill. Either a local planning

area hosts a landfill within its borde.s and sets an evenhanded,

origin-neutral cap, or it does not host a landfill and the local

garbage is marketed elsewhere. Governments have the ability

simply to eliminate a market by virtue of legislation, as long as

it is evenhanded and local producers are not favored. See, e.g.,

Exxon, 437 U.S. at 127-28; Clover Leaf Creamery, 449 U.S. at

474; U.S.A. Recycling, Inc. v. Town of Babylon, 66 F.3d 1272

(2d Cir. 1995) (town’s decision to eliminate commercial garbage

collection service and to take over that responsibility is

evenhanded and not discriminatory), cert. denied, __ U.S. __,

116 S. Ct. 1419, 134 L. Ed. 2d 544 (1996).

Hence, EK Resources must overcome the fact that in

Kentucky all economic interests, whether local or foreign, are

equally burdened. EK Resources attempts to do so by relying

on GSW for the principle that a county violates the Commerce

Clause if it prohibits new landfills and instead markets its garbage

elsewhere. This reliance is misplaced, because GSW is simply a

17

local barrier case, involving a contract between a county and a

private company to construct a landfill, where the county

attempted to renegotiate the contract after its execution to add a

150-mile geographical limit on garbage disposed at the landfill.

The Eleventh Circuit applied the strict scrutiny of City of

Philadelphia, 437 U.S. at 624, and said there was no basis for

Imposing this new term except for the origin of the waste. The

Eleventh Circuit expressly recognized that the contract could

have eliminated all competition, stating:

Long County could have decided not to contract

for waste disposal services and not to license a

potential provider of such services without violating

the Commerce Clause; but once it decided to contract

for services and then to place a restriction, it cannot

escape constitutional scrutiny, 999 F.3d at 1518.°

While GSW examines the Commerce Clause in the context of

State contracts, it is inapposite because Magoffin County did

not site a local landfill with a geographic limit for the garbage

it could take. GSW does not stand for the proposition that a

decision to use a contract to eliminate all competition violates

the Commerce Clause.

Further, EK Resources is not challenging its contract with

Magoffin County in the case sub judice. In fact EK Resources

sought in the state court action to hold the county to the terms

of that contract. Eastern Kentucky Resources v. Arnett, 934 S.W.

2d 270 (Ky. 1996). Any Commerce Clause issues presented by

that contract were not before the courts below, and are therefore

5. But see SSC Corp. v. Town of Smithtown, (2d Cir. 1995) 66

F.3d 502, 515-519 (town is a market participant exempted from

confines of Commerce Clause in contracting for its waste collection

and disposal), cert. denied, _ U.S. __, 116 S. Ct. 911, 133 L. Ed. 2d

842 (1996).

18

not before the Supreme Court. Taylor v. Freeland & Kronz,

503 U.S. 638, 645 (1992); Supreme Court Rule 14.1(a). While

EK Resources argues that the contracts entered between other

Kentucky counties hosting landfills and landfill operators are

evidence of discrimination, the relationship between those

contracts and the evenhanded caps on landfill size set by those

counties is also not before this Court. /d.°

2. But see SSC Corp. v. Town of Smithtown, 66 F.3d 502,

515-519 (2d Cir. 1995) (town is a market participant

exempted from confines of Commerce Clause in contracting

for its waste collection and disposal), cert. denied, __ U.S.

_., 116 S. Ct. 911, 133 L. Ed. 2d 842 (1996).

3. The district court reviewed the contracts placed into the

record. It concluded that any burden they might impose

was negated by the undisputed evidence of Kentucky’s

evenhanded treatment of garbage, and that the contracts were

freely negotiated in the marketplace without the cabinet’s

regulatory oversight. (Pet. 51a-52a).

The decision not to host a landfill is simply a decision to

eliminate all competition, since no local competitors or products

are preferred. The Commerce Clause “protects the interstate

market, not particular interstate firms, from prohibitive or

burdensome regulations.” Exxon, 437 U.S. at 127-28. In

authorizing that decision, SB 2 regulates evenhandedly and the

Sixth Circuit correctly reviewed it by using the Pike balancing

test. See Clover Leaf Creamery, 449 U.S. at 472; Town of

6. The district court reviewed the contracts placed into the

record. It concluded that any burden they might impose was negated

by the undisputed evidence of Kentucky’s evenhanded treatment of

garbage, and that the contracts were freely negotiated in the

marketplace without the cabinet’s regulatory oversight. (Pet. 5la-

52a).

al a

19

Babylon, 66 F.3d at 1286-88. The Commerce Clause does not

mandate that each county construct a landfill. As the Sixth

Circuit held, “we emphatically reject that argument”. (Pet. 24a).

C. Because EK Resources Did Not Prove That Senate Bill

2 Has Discriminated Against Interstate Commerce, This Case

Is Distinguishable From Fort Gratiot and GSW.

EK Resources asks the Supreme Court to hold that the Sixth

Circuit has issued an opinion that conflicts with the Eleventh

Circuit’s opinion in GSW, supra, and abrogates the precedent

set by the Supreme Court in Fort Gratiot Sanitary Landfill,

Inc. v. Michigan Dep’t of Natural Resources, 504 U.S. 353

(1992). Since those cases presented situations where local

regulation erected a barrier, either at the county line or at a set

distance, this case is distinguishable on its facts, as the Sixth

Circuit correctly concluded.

Kentucky’s program does condition landfill permits on their

relationship to local solid waste management plans. KRS

224.40-315, KRS 224.43-345. In that respect, Kentucky’s

program is similar to the Michigan solid waste management

program struck down by the Supreme Court as violating the

Commerce Clause in Fort Gratiot. However, the Kentucky and

Michigan programs contain a critical difference. In Michigan, a

county could exclude foreign garbage from a local landfill by

using a local solid waste management plan. In contrast,

Kentucky requires local and foreign garbage to be treated

identically. A county must either host a landfill, in which case

garbage must be accepted regardless of origin (with an

evenhanded cap on capacity), or the county does not host a

landfill for anyone, including itself. KRS 224.43-345(1)(J), (m).

The Sixth Circuit compared the Kentucky and Michigan

programs and held that while the Kentucky statute may

distinguish between in-area and out-of-area garbage, it is not a

20

discriminatory distinction because discrimination is the different

treatment of local and foreign economic interests that benefit

the former and burden the latter. (Pet. 18a).

Because EK Resources did not carry its burden of proving

the existence of discrimination, the Sixth Circuit correctly

applied the Pike balancing test. 397 U.S. at 142. Using the

Pike test, the Sixth Circuit correctly held that Kentucky carried

its burden to establish that SB 2 furthers legitimate local goals,

including the goal of reducing the amount of garbage generated

per person and thereby slowing the flow of all garbage into

landfills. See Fort Gratiot, 504 U.S. at 367; City of Philadelphia,

437 U.S. at 626.

Indeed, the Sixth Circuit had difficulty finding even an

incidental burden an interstate commerce, stating:

From the facts presented in this ease, it is not clear if

the challenged provisions place any incidental

burdens on interstate commerce. As noted supra,

both the County and the Cabinet proposed to use

the services of a landfill developer — e.g., EK —

which clearly stated, ex ante, that it planned to accept

out-of-state waste at its proposed landfill. The

Cabinet did not appear to believe that the challenged

provisions prohibited the acceptance of out-of-state

waste into the Commonwealth. There is no evidence

in the record that the Cabinet objected to the fact

that EKR planned to accept out-of-state waste. EKR

does not state what, if any, incidental burdens the

Commonwealth’s waste disposal program places on

interstate commerce. Consequently, based upon the

record before us, we find that the Commonwealth’s

clearly legitimate goals outweigh the burdens, if any,

that are placed upon interstate commerce. (Pet. 27a).

21

EK Resources is really asking this Court to convert the

Commerce Clause from a shield protecting interstate commerce

to a sword mandating state and local governments to open a

local market that would otherwise be closed to all. Yet the

decision to allow counties to eliminate all competition is

evenhanded in its administration and benefits no local

competitor while burdening others. See Exxon, 437 U.S. at

127-8; Clover Leaf Creamery, 449 U.S. at 472. Hence, the

decision is reviewed under the Pike, supra, balancing test, as

the Sixth Circuit correctly concluded. See Town of Babylon, 66

F.3d at 1286-88.

22

CONCLUSION

Kentucky’s municipal solid waste management program does

not benefit local garbage by burdening foreign garbage, or protect

a local landfill operator against competition from foreign landfill

operators. It does not preserve landfill space for local use, require

local processing, or erect a geographic barrier. The undisputed

evidence is that garbage is moving freely into and out of Kentucky,

while the Kentucky program is accomplishing the legitimate local

goal of reducing garbage generated per person and slowing

Kentucky’s reliance on landfills. EK Resources has not succeeded

in siting a new landfill in Magoffin County, but neither has anyone

else. This does not render constitutionally infirm a statewide

program that treats all garbage identically, regardless of origin.

The Commerce Clause does not prevent a state solid waste

management program from eliminating a local market in its entirety.

This is because the Commerce Clause, and for that matter the

Constitution of the United States, embraces the democratic principals

of popular sovereignty, i.e. the right of the people to rule, balanced

with the demand that the law must be fairly and equally imposed.

Such has been the ruling of the lower Federal Sixth Circuit and

her District Court and such has been the case in Magoffin County.

With a voice that is crystal clear, the people through their local

elected officials have declared that they do not want any landfill

placed in Magoffin County. The petition for a writ of certiorari

should be denied.

Respectfully submitted,

WILLIAM GROVER ARNETT

Magoffin County Attorney

Attorney for Respondent

The Fiscal Court of Magoffin County

P.O. Box 648

Salyersville, Kentucky 41465

(606) 349-2065

£6 By, re

tag MUR aoe

PE eee

APPENDIX

snariaihe: Ser Ce ne ae eee et

la

APPENDIX A — KENTUCKY REVISED STATUTES

224.43-345 CONTENTS OF AREA SOLID WASTE

MANAGEMENT PLAN - APPROVAL BY CABINET

(1) Each area solid waste management plan shall be

prepared in accordance with administrative regulations to be

adopted by the cabinet and shall be required to include the

following:

(a) Identification of the area that will be included in the

plan;

(b) A demographic study of the planning area of current

and projected populations five (5), ten (10) and twenty (20)

years in the future. A projection of the amount and source of

solid waste generated and requiring disposal at municipal solid

waste disposal facilities for each of these time periods shall be

provided;

(c) An inventory and description of all existing solid waste

management facilities and activities. The description shall

include their identity, location, life expectancies, ownership,

cost to the users, and level of compliance with state and federal

laws. The description is not required to include any solid waste

management facility which is operated exclusively by a solid

waste generator on property owned by the solid waste generator

for the purpose of accepting solid waste from the solid waste

generator or waste generated at another facility owned and

operated by the generator or wholly-owned subsidiary. After

commencement of operation by a solid waste generator of a

solid waste disposal facility which is permitted but not included

in a solid waste management plan, an amendment to a solid

waste management plan shall be required for any solid waste

which is to be no longer disposed by the solid waste generator

in its own solid waste disposal facility;

2a

Appendix A

(d) An estimate of the area’s long-range needs for solid

waste management and facilities for five (5), ten (10), and twenty

(20) years into the future;

(e) Identification and assessment of current and future solid

waste management problems faced by the area. List any

deficiencies with existing solid waste management facilities in

meeting current and future area needs, and identify opportunities

for improvement;

(f) Outline short-term, mid-term, and long-term goals and

objectives of the solid waste management area. The goals and

objectives shall be consistent with state policies.

(g) Based on the problems, needs, goals, and objectives

previously identified, identify alternative approaches to solid

waste management and select the optimal alternatives. Solid

waste management activities and facilities to be addressed

include:

1. Identification of those regulations and ordinances which

provide for proper, safe, and sanitary management of solid

waste;

2. A description of proposed improvements to existing

solid waste collection and transportation systems;

3. Establishment of a sitting procedure and development

program to assure the orderly location, development, and

financing of new or expanded municipal solid waste

management facilities. The plan shall demonstrate how all

persons in the planning area will within the near future have

reasonable opportunity to dispose of their waste in a manner

that complies with state and federal laws;

3a

Appendix A

4. Identification of planned programs for the control and

cleanup of litter and open dumps. The programs shall include:

a schedule for the cleanup of illegal open dump sites which

will result in the cleanup of those sites within one (1) year of

cabinet approval of the plan; an annual survey of the county to

discover new sites which shall then be scheduled for cleanup

within one (1) year; and measures to prevent the recurrence of

dumping at sites which are cleaned up;

5. An assessment of opportunities to reduce the need for

land disposal by banning grass clippings, leaves, and other yard

wastes from municipal solid waste disposal facilities and the

institution of composting operations for grass clippings, leaves,

and other yard wastes;

6. Establishment of a plan to reduce the need for land

disposal through waste reduction and recycling, materials

recovery, and energy recovery and the provision of

opportunities for recycling that may include, but are not limited

to, drop-off centers or door-to-door collection. Where recycling

or material recovery is not deemed feasible, specific factual

analysis shall be provided to support the conclusion; and

7. A description of any proposed recycling, materials

recovery, or energy recovery plan or facility;

(h) A five (5) year schedule and description of activities to

be undertaken to implement the proposed plan;

(i) A description of short-term costs of the plan including

capital and operational costs on a per ton and per capita basis

for each element of the plan, and the identification of the means

of financing plan implementation;

4a

Appendix A

(j) Designation of the governing body for implementation

of the solid waste management plan or components of the plan.

A description of its responsibilities and authority shall be

provided;

(k) A description of proposed surveillance and enforcement

procedures to assure that solid waste in the planning area is

properly managed. Identification of modifications to local laws

and regulations necessary to implement the area plan;

(1) Specific previsions to assure that adequate capacity for

a ten (10) year period shall be available for municipal solid

waste generated in the solid waste management area, and

identification of any additional capacity authorized for disposal

of out-of-area municipal solid waste;

(m) Contractual agreements for use of waste disposal

Capacity at any municipal solid waste disposal facility inside or

outside the waste management area identified and relied upon

in the plan;

(n) Provisions to assure achievement of reductions in

municipal solid waste requiring disposal, consistent with the

goals of KRS 224.43-010;

(0) Establishment of a public information and participation

process including the following components;

1. Formation of an advisory committee comprised of local

residents, and business and industry representatives;

2. Preparation of a draft plan for public notice and

comment,

Sa

Appendix A

3. Convening of a public hearing upon request; and

4. Publication of a response to public comments.

(2) The solid waste management plan shall consist of two

(2) parts. The first part shall contain the information described

in subsection (1)(a) through (1)(d) and (1)(1) of this section and

shall be submitted to the cabinet by October 1, 1991. The

second part shall contain the information described in subsection

1(a) through 1(0) of this section and shall be submitted to the

cabinet by January 1, 1993. The cabinet shall approve or

disapprove the first part of the plan within thirty (30) days of

receipt, and the second part of the plan within one hundred

twenty (120) days of receipt.

223.43-010 POLICY AND PURPOSE — PRIORITIES

FOR SOLID WASTE MANAGEMENT PRACTICES —

MUNICIPAL SOLID WASTE DISPOSAL REDUCTION

GOAL

(1) It is hereby declared to be the policy of this

Commonwealth and the purpose of this chapter to provide for

the management of solid waste, including reduction, collection,

transportation, and disposal in a manner that will protect the

public health and welfare, prevent the spread of disease and

creation of nuisances, conserve our natural resources, and

enhance the beauty and quality of our environment.

(2) It is the policy of the Commonwealth to limit and

reduce the amount of solid waste disposed in municipal solid

waste disposal facilities in the Commonwealth and to encourage

a regional approach to solid waste management.

6a

Appendix A

(3) It is the policy of the Commonwealth that a

comprehensive and integrated waste management system to

handle solid waste is to be fostered. State policies and funding

assistance shall reflect a preference for solid waste management

practices according to the following priority:

(a) Reduction in the amount of waste generated;

(b) Reuse of solid waste;

(c) Waste recycling or yard waste composting;

(d) Resource recovery through mixed municipal solid

waste composting or incineration;

(e) Land disposal in publicly-owned landfills or

incineration of solid waste without energy recovery; and

(f) Land disposal in landfills other than publicly-owned

landfills.

(4) It is further the goal of this Commonwealth that the

amount by weight of municipal solid waste disposed at

municipal solid waste disposal facilities shall be reduced by a

minimum of twenty-five percent (25%) by July 1, 1997, as

compared to fiscal year 1993 on a statewide per capita basis.

However, credit shall be given for reductions achieved prior to

1993 when accurate measurements are available. The reduction

goal shall not apply to special wastes as designated by KRS

224.50-760 or industrial solid waste.

7a

Appendix A

224.40-315 REQUIREMENTS FOR ACCEPTANCE

AND APPROVAL OF PERMITS TO CONSTRUCT OR

EXPAND MUNICIPAL SOLID WASTE DISPOSAL

FACILITY

(1) No permit to construct or expand a municipal solid

waste disposal facility shall be accepted for processing by the

cabinet unless the application contains a determination from

the governing body for the solid waste management area in

which the facility is or will be located concerning the

consistency of the application with the area solid waste

management plan submitted under KRS 224.43-354(1)(a) to

(d) and (1) until January 1, 1993, and the entire plan after

January 1, 1993. The governing body for the area shall, within

sixty (60) days of receipt of a written request, make the

determination after public notice and opportunity for public

comment and public hearing. For applications with a notice of

intent filed prior to February 26, 1991, the cabinet shall continue

to process the application but no permit shall be approved until

the governing body for the solid waste management area in

which the facility is or will be located has made a determination

in accordance with this section.

(2) No permit to construct or expand a municipal solid

waste disposal facility shall be approved unless the applicant

affirmatively demonstrates and the cabinet makes a written

finding in the preliminary determination made pursuant to KRS

224.40.310(2) that the application conforms to and is consistent

with all of the following:

(a) The capacity needs identified in the area solid waste

management plan;

8a

Appendix A

(b) Other elements of the area solid waste management

plan, for permit applications filed after approval of those

elements;

(c) The statewide solid waste reduction and management

plan, for permit applications filed after completion of the plan;

and

(d) Applicable zoning regulations adopted pursuant to

KRS Chapter 100.

(3) If the cabinet approves a permit to construct or expand

a municipal solid waste management facility after the governing

body for the area has determined the application to be

inconsistent with the area solid waste management plan, as part

of the written finding the cabinet shall state in detail the reasons

why it did not accept the determination of the governing body

for the area.

(4) For the purposes of this section, the term municipal

solid waste disposal facility includes, in addition to those

facilities defined in KRS 224.01-010(15), any residual or

contained landfill or incinerator disposing of industrial solid

waste for a fee, but does not include a waste site or facility

which is operated exclusively by a solid waste generator on

property owned by the solid waste generator which accepts only

industrial solid waste from the solid waste generator or industrial

solid waste generated at another facility owned and operated

by the generator or wholly-owned subsidiary.