Petition for Writ of Certiorari — Metropolitan Government of Nashville & Davidson County v. Waste Management, Inc. of Tennessee

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Supreme Court, y

(") FILED

No. _____oRIGE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1997

THE METROPOLITAN GOVERNMENT OF

NASHVILLE AND DAVIDSON COUNTY,

Petitioner,

VS.

WASTE MANAGEMENT, INC., OF TENNESSEE,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

James L. Murpny III*

STEPHEN O. NUNN

METROPOLITAN DEPARTMENT OF LAW

Attorneys for Petitioner

204 Metropolitan Courthouse

Nashville, Tennessee 37201

615/862-6341

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether, in a dormant commerce clause challenge to

a municipal solid waste flow control regulation which

discriminates in favor of a publicly owned and operated

disposal facility but not among members of the private

sector, the Pike test is the appropriate standard of review.

LIST OF PARTIES

The parties are plaintiff-respondent, Waste Manage-

ment of Tennessee, Inc., a Tennessee corporation, and

defendant-petitioner, The Metropolitan Government of

Nashville and Davidson County, the local governing

authority of Nashville and Davidson County, Tennessee.

iii

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Page

Cases CirTep:

Atlantic Coast Demolition and Recycling, Inc. v.

Board Of Chosen Freeholders, 113 F.3d 652 (3d Cir.

BOOS ais 5 Ss WWE RSR ES OSA ee ee 6

Ben Oerleins & Sons & Daughter, Inc. v. Hennepin

County, 115 F.SG 1372 (OCR Cin. 1997). cise sncnaes 6

C & A Carbone, Inc v. Town of Clarkstown, 511 U.S.

SRS SEE saves betes enivrsGees vasa sueeaae wen passim

California Reduction Co. v. Sanitary Reduction Works,

SDD CED. Fe Cie kn ss ewe ns ca pees Gees eeanan 10

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

CAGE 60 '66:nk 65-4 PS ARAL CLONER Rae ECR ties ee 5

Fort Gratiot Sanitary Landfill v. Michigan Department of

Natural Resources, 504 U.S. 353 (1992) ............ passim

Gardner v. Michigan, 199 U.S. 325 (1905)............. 11

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

ee Rh A ee re a are ye eg ee 14

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

See Re Ss Rs ws ks cae eevee Cat ehae sas 15

Maine v. Taylor, 471 U.S. 131 (1966) .........ccccesee 10

Philadelphia v. New Jersey, 437 U.S. 617 (1978)......... 6

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

OTHER AUTHORITIES

‘U.S. Constitution, Commerce Clause, Article I, § 8...1, 5

Da TOWNE FS OE eins hac cvveeetecdascucacanes 8

TABLE OF AUTHORITIES - Continued

Tennessee Code Annotated § 7-54-103(d)............. 4

Regulation on Collection and Disposal of Solid

gat SE EOE ER CLT Tee Or ee CERT OE eC CRE eee y ER

THE OPINIONS BELOW

Petitioner seeks a writ of certiorari for review of the

judgment and opinion of the United States Court of

Appeals for the Sixth Circuit in this cause. The opinion is

reported. Waste Management, Inc. of Tennessee v. Metro-

politan Government of Nashville and Davidson County, 130

F.3d 731 (6th Cir. 1997). The opinion was filed November

5, 1997. The opinion is set forth at pages la through 17a

of the appendix to this petition. The United States District

Court entered its memorandum and order in this matter

on May 17, 1995. The memorandum and order are at

pages i8a through 43a of the appendix.

JURISDICTION

The Appellate Court judgment was filed November

5, 1997. No rehearing was sought. The jurisdiction of this

court is pursuant to 28 U.S.C. § 1254(1).

AUTHORITIES INVOLVED

The Commerce Clause of the United States Constitu-

tion is at Article I, § 8, cl. 3, which provides that:

The Congress of the United States shall have

power to . . . regulate commerce with foreign

nations, and among the several states, and with

the Indian tribes.

Also involved is the Metropolitan Government's

“Regulation on Collection and Disposal of Solid Waste,”

which is set forth in the appendix at pages 44a through

54a.

STATEMENT OF THE CASE

Proceedings Below

Plaintiff Waste Management, Inc. of Tennessee, filed a

complaint on May 12, 1994, challenging, inter alia, the

flow control provisions of the Metropolitan Government's

“Regulation on Collection and Disposal of Solid Waste”

as being violative of the dormant Commerce Clause and

seeking a preliminary injunction against enforcement

thereof. An amended complaint was filed May 26, 1994.

The Metropolitan Government filed a response on May

27, 1994, and the matter was argued before the Magistrate

Judge on June 2, 1994. On June 10, 1994, the Magistrate

Judge issued his Report and Recommendation to the Dis-

trict Court, recommending that the Regulation be upheld.

Defendant filed its answer on June 10, 1994. The

Plaintiff filed a second amended complaint, challenging

another solid waste regulation, on August 4, 1994. On

August 18, 1994, the Metropolitan Government filed an

answer to the second amended complaint.

Thereafter the parties filed cross-motions for sum-

mary judgment. The District Court issued a memoran-

dum and order on May 17, 1995, upholding the

constitutionality of the Regulation’s flow control provi-

sion. The Sixth Circuit reversed in an opinion filed

November 5, 1997. Pending the filing of this Petition, and

on motion of the Metropolitan Government, issuance of

the mandate has been stayed. Although the litigation

involves matters other than flow control, certiorari is

sought only on the flow control issue.

The Relevant Facts

The Metropolitan Government's “Flow Control” reg-

ulations require that most solid waste collected within the

boundaries of Davidson County be disposed of at a loca-

tion designated by the Metropolitan Government's Direc-

tor of Public Works. For purposes of this lawsuit, this

requirement means that the Respondent must furnish

periodically a designated amount of solid waste to the

Nashville Thermal Transfer Plant - Metro’s waste-to-

energy facility - which burns garbage as fuel to produce

heating and air-conditioning to service some forty down-

town buildings. Respondent challenges flow control as

being violative of the Commerce Clause.

On December 20, 1990 the Metropolitan Government

promulgated its “Regulation on Collection and Disposal of

Solid Waste” with an effective date of January 2, 1991

(hereinafter the “Flow Control Regulation” or “the Regula-

tion”). The Regulation has been amended twice, once in

1993 and once in 1994. A copy of the Flow Control Regula-

tion, with its amendments, is at pages 44a through 54a of

the appendix. Sections II(b) and II(e) of the Flow Control

Regulation require that solid waste collected within the

boundaries of the Metropolitan Government must be dis-

posed of at sites approved by the Metropolitan Govern-

ment. This also is a licensure regulation, requiring that

persons doing business in any aspect of solid waste man-

agement in Davidson County, not just disposal, be

licensed, and it also establishes procedures governing the

issuance, supervision and revocation of licenses. The Reg-

ulation was promulgated pursuant to Tenn. Code Ann.

§ 7-54-103(d); and also relied upon various provisions of

the Metropolitan Charter and local ordinances.

The Flow Control Regulation provides, at Section

II(b), that disposal of solid waste (as therein defined)

collected within the boundaries of the Metropolitan Gov-

ernment must be at a site designated by the Director of

Public Works. Initially, the municipal landfill and the

Thermal Plant were designated sites. The municipal land-

fill closed permanently in March of 1994. Other locations

have since been approved, including appellant’s waste

transfer station located in Davidson County, and its land-

fill in Benton County, Tennessee.

The Thermal Plant is a waste-to-energy production

facility owned by the Metropolitan Government and

located in Davidson County. It is operated for the Metro-

politan Government by the Nashville Thermal Transfer

Corporation, pursuant to an ordinance and contract. The

not-for-profit Corporation exists for the sole purpose of

operating the plant. The plant is financed by bonds

secured by the Metropolitan Government. The Thermal

Plant has contracts to supply 38 downtowr Nashville

buildings with heating and air conditioning; these con-

tracts extend into the twenty-first century. To fulfill these

contracts, the Thermal Plant needs approximately 900

tons per day of solid waste, or 6,300 tons per week, to

burn as fuel. Of this amount, Metro controls the disposal

of approximately 600 tons per day, or 4,200 tons per

week. Therefore, approximately 300 tons per day, or 2,100

tons per week, is needed from the private sector. Under

ep ee eens

the Regulation, the Metropolitan Government issues

allocations to the major haulers, including Waste Manage-

ment, setting amounts for them to deliver to Thermal.

Smaller haulers are not issued allocations because they

already deliver virtually 100% of their waste to Thermal.

In addition to serving the need to meet long-term con-

tractual obligations, flow control is an integral part of the

Metropolitan Government’s State-mandated solid waste

management plan.

Waste Management, during the pendency of this law-

suit, refused to deliver its allocated share of waste to the

Thermal Plant, instead delivering it to a transfer station it

owns which is located within the boundaries of the Met-

ropolitan Government, and thereafter to its landfill in

Benton County, Tennessee. On at least one occasion,

waste was delivered from the transfer station to a landfill

in Kentucky.

ARGUMENT

The Commerce Clause of the United States Constitu-

tion, Article I, § 8, grants to Congress the power to

regulate interstate commerce. The so-called negative, or

dormant, commerce clause states the corresponding prin-

ciple: the states (and their political subdivisions) are pro-

hibited from regulating, or burdening, interstate

commerce. H.P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525

at 535 (1949). The constitutional purpose is to assure that

“our economic unit is the Nation . . . that the states are

not separable economic units.” H.P. Hood & Sons, Inc. v.

DuMond, 336 U.S. at 623 (1949). If a law discriminates

against interstate commerce, it is subject to a strict scru-

tiny test, and is “virtually per se” invalid, unless the

government can show that it lacks any other means of

accomplishing a legitimate governmental interest. Phila-

delphia v. New Jersey, 437 U.S. 617 at 624 (1978). But if the

law is not discriminatory, yet does burden interstate com-

merce, then it is subject to a balancing test; and will be

found valid unless the burden imposed on interstate com-

merce is clearly excessive in relation to the putative local

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

(1970).

In recent years, flow control regulations and ordi-

nances have been challenged several times on Commerce

Clause grounds. Flow control measures are those requir-

ing solid waste to be disposed of at locations designated

by the regulating authority. See C & A Carbone, Inc. v.

Town of Clarkstown, 511 U.S. 383 at 386 (1994). Since 1978,

this Court has held that garbage is an article of commerce

and therefore subject to the provisions of the commerce

clause. Philadelphia v. New Jersey, 437 U.S. 617 (1978). The

Court has twice in recent years spoken directly to the

flow control issue, in Carbone and in Fort Gratiot Sanitary

Landfill v. Michigan Dept. of Natural Resources, 504 U.S. 353

(1992). The question continues to be an important one

nationally, as governments struggle with problems of

solid waste management. Already this Term, the Court

has had two flow control cases before it. Atlantic Coast

Demolition and Recycling, Inc. v. Board of Chosen Freeholders,

112 F.3d 652 (3d Cir. 1995), cert denied sub nom. Shinn v.

Atlantic Coast Demolition & Recycling, Inc., 118 S. Ct. 413;

and Ben Oerleins & Sons & Daughter, Inc. v. Hennepin

County, 115 F.3d 1372 (8th Cir. 1997), cert. denied, 118

S. Ct. 643. (Neither petition addressed the issue raised

here.) The importance of this issue nationally is further

shown by the fact that there are currently at least three

bills pending in the Congress related to flow control.’

This case presents an issue on which the Court has

never spoken: whether a flow control measure which

discriminates in favor of a public waste disposal facility,

but not among private sector entities, should be evalu-

ated under the per se rule or the Pike test. Although the

Court has not decided the issue, several Justices have

suggested that the Pike test is the appropriate one. The

Sixth Circuit’s ruling here conflicts with that guidance.

Both the District Court and the Magistrate Judge

upheld the Metropolitan Government's flow control ordi-

nance under the Pike test. App. pp. 24a, 36a. The Sixth

Circuit’s reversal hinged on its determination that the

regulation was discriminatory, thereby triggering applica-

tion of the per se or strict scrutiny test. The Sixth Circuit

nowhere disagreed with the conclusion of the court

below that the elements of Pike were satisfied; rather, it

imposed the more stringent test because, unlike the dis-

trict court, it found the regulation to be discriminatory.

However, the crucial point is that the only discrimination

found was in favor of the Thermal Plant — discrimination

favoring the public over the private sector. App. pp-

9a-10a. This type of discrimination calls for the Pike test.

1 See S. 899; H.R. 942; and H.R. 943.

Only discrimination favoring one group or category of

private interests vis-a-vis another group or category of

private interests triggers strict scrutiny. In substituting

the per se test the Sixth Circuit erred, running afoul of the

guidance by this Court in its rulings on flow control in C

& A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994)

and Fort Gratiot Sanitary Landfill v. Michigan Dept. of Natu-

ral Resources, 504 U.S. 353 (1992). It has decided “an

important question of federal law in a way that has not

been, but should be, settled by” the Supreme Court. See

Supreme Court Rule 10(c). Furthermore, insofar as there

is implicit guidance in the existing relevant decisions of

this Court, the Sixth Circuit’s ruling “conflicts with”

those decisions. Id.

In striking down the Metropolitan Government's

flow control, the appellate court relied primarily upon

Carbone, where this Court struck down a flow control

ordinance as being violative of the Commerce Clause.

The Town of Clarkstown, New York, had caused a trans-

fer station to be erected within its boundaries, and was

allowing a private contractor to operate it for five years,

after which the town was to buy the facility for one

dollar. To finance the cost of the transfer station, the town

guaranteed a minimum waste flow to the facility. In order

to meet this waste flow guarantee, the town enacted its

flow control ordinance, requiring all non-hazardous solid

waste within the town to be disposed of via the transfer

station. This was found to violate the dormant commerce

clause.

As the District Court comments, numerous distinc-

tions exist between the situation in Carbone and the situa-

tion in this case. The Metropolitan Government’s flow

control arrangement is not monopolistic. It does not

include the total waste stream. App. at 35a. While all

waste appropriate for disposal at the Thermal Plant

could, theoretically, be directed there, in practice only a

portion is requested by Metro. Id. at 33a. The Metro-

politan Government's flow control is closely tied to its

compliance with a state mandated 25% waste reduction

goal. Id. at 34a-35a. All of these facts materially distin-

guish the situation before this Court from the situation in

Carbone. Carbone dealt with a transfer station; this case

deals with a waste-to-energy production facility, upon

which almost forty downtown buildings depend for heat-

ing and cooling. App. at 34a, note 12. In Carbone, all waste

~ including recyclables - had to be taken to the transfer

station. Here the Metropolitan Government excludes cer-

tain recyclables from regulation, App. at 44a; and does

not necessarily require that all of the waste stream poten-

tially subject to regulation actually be brought to the

Thermal Plant. Id. at 35a-36a. In Carbone, the court speci-

fically found that the only purpose of the flow control

was financial — i.e., to support the transfer station. 511

U.S. at 393-94. Here, as the District Judge found, other

factors are implicated, including but not necessarily lim-

ited to compliance with state statutory mandates and

honoring long-term contractual commitments to third

parties. App. at 34a-35a. But, the single most important

distinction is that the transfer station in Carbone was not

governmentally owned, unlike the waste-to-energy facil-

ity in the case at bar.

In that respect, Carbone was like Fort Gratiot Landfill v.

Michigan Department of Natural Resources, 504 U.S. 353

(1992). In that case, flow control measures were set by the

State of Michigan which restricted acceptance of solid

waste at landfills to those wastes generated within the

county where the facility was located. This was held to

violate the dormant commerce clause. Butin Fort Gratiot,

the Supreme Court specifically reserved judgment on

flow control measures affecting publicly owned and oper-

ated facilities. 504 U.S. at 358-59. Justice Stevens, writing

for the majority, suggested a need to proceed with cau-

tion in reviewing Commerce Clause challenges “concern-

ing policies that municipalities and other governmental

agencies may pursue in the management of publicly run

facilities.” Id. The holding in Fort Gratiot is applicable to

“privately owned and operated landfilis” only. Id. at 359.

(Emphasis supplied).

The Chief Justice filed a thoughtful dissent in Fort

Gratiot (in which he was joined by Justice Blackmun).

Noting the substantial health and environmental issues

operative in regulating solid waste, he supported a

remand for consideration of whether the Michigan flow

control measure was a legitimate health and safety regu-

lation, and, as such, potentially exempt from commerce

clause restriction under Maine v. Taylor, 471 U.S. 131

(1986). 504 U.S. at 368-83 (Rhenquist, C.J., dissenting).

Although he did not rely upon it, the Chief Justice’s

dissent harks back to this Court’s very earliest analyses of

solid waste management by governments, and speci-

fically by local governments. In California Reduction Co. v.

Sanitary Reduction Works, 199 U.S. 306 (1905), a “flow

control” measure enacted by “ie city of San Francisco

required all waste to be delivered to a crematory for

disposal. This Court upheld the ordinance, as a valid

exercise of the police power, in the face of a takings

challenge. To the same effect, see Gardner v. Michigan, 199

U.S. 325 (1905). As discussed below, these considerations

remain valid today, in that they are part of the reason the

Pike test applies to publicly owned facilities — and part of

the Pike balance applicable to such facilities.

Carbone, like Fort Gratiot, deals with a privately

owned waste disposal facility. Admittedly, the transfer

station in Carbone lies closer on the continuum to a pub-

licly owned facility than did the landfill in Fort Gratiot.

Still, it is not a publicly owned and operated facility. The

flow control in Carbone benefited a private entity — the

town’s contractor - not the town alone. Metro’s flow

control benefits only its own public facility.

Justice Souter, joined by the Chief Justice and Justice

Blackmun, dissented in Carbone. He noted that the Clarks-

town flow control ordinance was one which, like the

ordinance at issue in this petition, “directly aids the gov-

ernment in satisfying a traditional governmental respon-

sibility”, 511 U.S. at 411 —ie., solid waste management.

The majority ignores this distinction between

public and private enterprise, equating Local

Law 9’s ‘hoard[ing]’ of solid waste for the

municipal transfer station with the design and

effect of ordinances that restrict access to local

markets for the benefit of local private firms.

But private businesses, whether local or out of State,

first serve the private interests of their owners, and

there is therefore only rarely a reason other than

economic protectionism for favoring local busi-

nesses over their out-of-town competitors. The

local government itself occupies a very different

market position, however, being the one entity

that enters the market to serve the public interest of

local citizens quite apart from private interest in

private gain. Reasons other than economic pro-

tectionism are accordingly more likely to

explain the design and effect of an ordinance

that favors a public facility. . . . An ordinance

that favors a municipal facility, in any event, is

one that favors the public sector, and if “we

continue to recognize that the States occupy a

special and specific position in our constitu-

tional system and that the scope of Congress’

authority under the Commerce Clause must

reflect that position,” Garcia v. San Antonio Met-

ropolitan Transit Authority, 469 U.S. 528, 556, 105

S. Ct. 1005, 1020, 83 L.Ed.2d 1016 (1985), then

surely this Court’s dormant Commerce Clause

jurisprudence must itself see that favoring state-

sponsored facilities differ from discriminating

among private economic actors, and is much

less likely to be protectionist. .. .

C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. at

420-21 (1994). (Souter, J., dissenting). (Emphasis sup-

plied).

Characterizing the proprietor favored in Carbone as

“essentially an agent of the municipal government”, 511

U.S. at 416 and the transfer station as “essentially a

municipal facility,” id. at 419, Justice Souter concluded

that to favor a municipal facility is to favor the public

sector over the private sector, and that the proper test is

the Pike test.

[I]Jn a market served by a municipal facility, a

law that favors that single facility over all others

is a law that favors the public sector over all

private-sector processors, whether local or out

of State. Because the favor does not go to local

private competitors of out-of-state firms, out-of-

state governments will at least lack a motive to

favor their own firms in order to equalize the

positions of private competitors. While a prefer-

ence in favor of the government may inciden-

tally function as a local favoritism as well, a

more particularized enquiry is necessary before

a court can say whether such a law does in fact

smack too strongly of economic protectionism. If

[such a law] is to be struck down, in other

words, it must be under that test most readily

identified with Pike v. Bruce Church, Inc., 397

U.S. 317, 90 S. Ct. 844, 25 L.Ed.2d 174 (1970).

Id. at 422-23 (Souter, J. dissenting). The dissent in Carbone,

in short, assumes the facility at issue to be essentially a

governmental one - thereby going beyond the reservation

expressed in Fort Gratiot. Having made this assumption,

it concludes the Pike test is the appropriate one to

employ; and subsequently finds the test to be satisfied.

Justice O’Connor, in a separate concurrence in Car-

bone, likewise holds that the Pike test is the proper one.

She reaches this conclusion because the ordinance does

not geographically discriminate but rather (like that of

the Metropolitan Government):

_ . . ‘discriminates’ evenhandedly against all

potential participants in the waste processing

business, while benefiting only the chosen oper-

ator of the transfer facility. . . . This distinction

has more doctrinal significance than the major-

ity acknowledges. In considering state health q

and safety regulations such as Local Law 9, we

have consistently recognized that the fact that

interests within the regulating jurisdiction are

equally affected by the challenged enactment

counsels against a finding of discrimination.

And for good reason. The existence of substan-

tial in-state interests harmed by a regulation is a

‘powerful safeguard’ against legislative discrim-

ination. Minnesota v. Clover Leaf Creamery Co.,

449 U.S. 456, 473, n.17, 101 S. Ct. 715, 728, n.17,

66 L.Ed.2d 659 (1981). The Court generally

defers to health and safety regulations because

‘their burden usually falls on local economic

interests as well as other States’ economic inter-

ests, thus insuring that a State’s own political

processes will serve as a check against unduly

burdensome regulation.’ Raymond Motor Trans-

portation, Inc. v. Rice, 434 U.S. 429, 444, n.18, 98

S. Ct. 787, 795, n.18, 54 L.Ed.2d 664 (1978). See

also Kassel v. Consolidated Freightways Corp. of

Del., 450 U.S. 662, 675, 101 S. Ct. 1309, 1318, 67

L.Ed.2d 580 (1981) (same). Thus, while there is

no bright line separating those enactments

which are virtually per se invalid and those

which are not, the fact that in-town competitors

of the transfer facility are equally burdened by

Local law 9 leads me to conclude that Local Law

9 does not discriminate against interstate com-

merce.

C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. at

404-05 (1994) (C’Connor, J., concurring). (Unlike the dis-

senters, she finds that the ordinance fails to meet the Pike

test, hence her concurrence with the majority’s result.)

In addition to Fort Gratiot and Carbone, this Court has

spoken — though indirectly - to this issue in another case,

which the Sixth Circuit inexplicably ignores altogether. In

Hybud Equipment Corp. v. City of Akron, 654 F.2d 1187 (6th

Cir. 1981) underwriters of revenue bonds to finance a

waste-to-energy facility in Ohio (just like the Thermal

Plant in Nashville) imposed a requirement that the city

enact a flow control ordinance, which was done. The

Sixth Circuit upheld that ordinance, using the Pike test, in

a challenge based on the Commerce Clause and on anti-

trust. This Court vacated and remanded for reconsidera-

tion — but solely on the antitrust issue. 445 U.S. 931. When

the case again came before the Sixth Circuit, Hybud Equip-

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

Commerce Clause issue was not discussed; and this

Court thereafter denied certiorari, 471 U.S. 1004.

To sum up, Justice Stevens, writing for the majority

in Fort Gratiot, noted the importance of special policy

interests and other considerations pertinent to flow con-

trol as it relates to public disposal facilities, and reserved

that issue. Four Justices of this Court concluded in Car-

bone that at least where a public waste disposal facility is

the favored entity the Pike test is the appropriate stan-

dard. The majority opinion in Carbone does not contradict

this because it does not expressly address the issue since

technically the transfer station in Carbone was not munici-

pally owned or operated. And the Sixth Circuit’s own

precedent in the Hybud cases, which were reviewed by

this Court, supports use of the Pike test.

This Court has never approved application of the

strict scrutiny test to dormant Commerce Clause analysis

involving municipal flow control regulations that favor

the public over the private sector. Certiorari should be

granted here to clarify the status of flow control regula-

tions as they may operate to favor the public over the

private sector, particularly in the context of municipally

owned facilities. The Metropolitan Government will urge,

if the petition is granted, that for the reasons articulated

by the dissenters in Carbone as well as Justice O’Connor’s

concurrence in Carbone and the Chief Justice’s dissent in

Fort Gratiot, the Pike test is the appropriate one.

CONCLUSION

For the above stated reasons the Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

James L. Murpny III*

STEPHEN O. NuNN

METROPOLITAN DEPARTMENT OF LAW

Attorneys for Petitioner

204 Metropolitan Courthouse

Nashville, Tennessee 37201

615 862-6341

“Counsel of Record

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WasTE MANAGEMENT, INC. OF )

TENNESSEE, )

Plaintiff-Appellant/ )

Cross-Appellee, xp

95-5863 /5900

METROPOLITAN GOVERNMENT OF )

NASHVILLE AND DavIDsON County,

Defendant-Appellee/ )

Cross-Appellant. )

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 94-00411 - Thomas A. Higgins, District Judge.

Argued: August 6, 1996

Decided and Filed: November 5, 1997

Before: CONTIE, BOGGS, and NORRIS, Circuit Judges.

COUNSEL

ARGUED: John M. Gillum, MANIER, HEROD, HOL-

LABAUGH & SMITH, Nashville, Tennessee, for Appel-

lant. Stephen Nunn, THE METROPOLITAN

GOVERNMENT OF NASHVILLE & DAVIDSON

COUNTY DEPARTMENT OF LAW, Nashville, Tennessee,

for Appellee. ON BRIEF: John M. Gillum, William L.

Penny, Stephanie M. Jennings, MANIER, HEROD, HOL-

LABAUGH & SMITH, Nashville, Tennessee, for Appel-

lant. Stephen Nunn, THE METROPOLITAN

GOVERNMENT OF NASHVILLE & DAVIDSON

COUNTY DEPARTMENT OF LAW, Nashville, Tennessee,

for Appellee.

OPINION

ALAN E. NORRIS, Circuit Judge. Plaintiff, Waste

Management, Inc. of Tennessee (“WMIT”), appeals the

district court’s denial of its motion for injunctive relief

from enforcement of a flow control regulation and an

ordinance which requires that all waste delivered to cer-

tain disposal facilities in passenger vehicles and pickup

trucks be accepted either free of charge or for five dollars

per load, respectively. Both the flow control regulation

and the passenger vehicle and pickup truck ordinance

were enacted by defendant, Metropolitan Government of

Nashville and Davidson County (“Metro”). Defendant

cross-appeals the district court’s ruling that its waste

disposal fee ordinances and their implementing regula-

tion violate the Commerce Clause. We reverse in part and

affirm in part.

The parties have stipulated to the facts relevant to this

case. Defendant Metro is the local governing authority of

Nashville and Davidson County, Tennessee. Between Janu-

ary 1991 and May 1994, defendant promulgated three

classes of ordinances and regulations governing the dis-

posal of solid waste generated within its boundaries. First,

the flow control regulation and one of two amendments

thereto (“flow control provisions”) require that all persons

collecting, hauling, or removing waste from Metro be

licensed; that the waste be disposed of only at sites

approved by Metro; and that all residential waste collected

within Metro be disposed of at a waste-to-energy facility

owned by Metro and operated by the Nashville Thermal

Transfer Corp. (“NTTC”).1 NTTC supplies power to

' The flow control provisions read, in relevant part, as

follows:

(e) Unless otherwise specifically authorized in

writing by the Director [of the Department of Public

Works], all residential Solid Waste collected within

the boundaries of the Metropolitan Government shall

be disposed of at the Nashville Thermal Transfer

Corporation (NTTC). Non-residential Solid Waste is

not required to be disposed of at the NTTC unless

| designated for disposal there pursuant to the

following procedure:

) (1) Any Collector of Solid Waste collected

within the boundaries of the Metropolitan

Government shall report the amount of residential .

and non-residential Solid Waste collected each month

and the amounts of Solid Waste delivered to each

Final Disposal Point and/or Intermediate Disposal

Point... .

(2) At least quarterly, the Department of Public

Works shall calculate a pro rata estimate of the

amount of non-residential Solid Waste collected by

each Collector, using the best available data.

(3) The NTTC shall notify the Director, at least

two (2) weeks in advance, of its estimated need for

buildings in downtown Nashville with the energy it gener-

ates by burning solid waste. The amended regulation does

not require that non-residential waste collected within

Metro be disposed of at NTTC, unless that facility has not

received the 6,300 tons of solid waste per week it needs to

operate.

Second, the waste disposal fee ordinances and their

implementing regulation (“waste disposal fee provi-

sions”) require that NTTC charge a tip fee of thirty-six

dollars per ton, and that all collectors pay Metro a waste

disposal fee of eight dollars per ton of waste dumped at

sites other than NTTC.? This fee must be paid by any

Solid Waste for each operating day of the

corresponding week. The Department of Public

Works shall notify each Collector, at least one (1)

week in advance, of its estimated pro rata share of

Solid Waste, which may include an amount of non-

residential Solid Waste if any, necessary for disposal

at the NTTC for the following week. . ..

Public Works Regulation on Collection and Disposal of Solid Waste,

Amendment No. 2 (added to Section II of the Regulation).

2 The waste disposal fee provisions read, in relevant part,

as follows:

All metropolitan government sanitary landfills,

incinerators or other collection stations shall have tip

fees established and all persons shall pay a tip fee of

nine dollars per cubic yard or thirty six dollars per

ton of loose or compacted refuse, effective November

1, 1993; and all persons shall pay a tip fee of eleven

dollars per cubic yard or forty-four dollars per ton of

loose or compacted refuse effective January 1, 1995.

Ordinance No. 093-821, Section 5 (amending Section 10.20.200 of

the Metropolitan Code of Laws by deleting the existing

language in its entirety and substituting this language).

collector operating a facility within Metro for waste col-

lected within Metro, and by any collector collecting such

waste and disposing of it outside of Metro. Finally, the

passenger vehicle and pickup truck ordinance requires

that all waste collectors operating disposal facilities

within Metro accept waste delivered by passenger vehi-

cles free of charge,3 and that such collectors accept waste

Any person enjoying the privilege of providing

temporary or permanent disposal of solid waste

generated or collected within the boundaries of the

metropolitan government at a site or facility located

within the boundaries of the metropolitan

government; or enjoying the privilege of collecting

solid waste within the boundaries of the metropolitan

government and disposed of outside the boundaries

of the metropolitan government; shall pay to the

metropolitan government a fee of $2.00 per cubic yard

or $8.00 per ton of solid waste or special waste

accepted into the site or facility or collected within

the boundaries of the metropolitan government and

disposed of outside said boundaries. . . .

Ordinance No. 094-1063, Section 1 (amending Section 11A of

Ordinance No. 093-821 by deleting the existing language in its

entirety and substituting this language).

* The portion of the passenger vehicle and pick-up truck

ordinance that concerns passenger vehicles reads as follows:

Any person enjoying the privilege of providing

temporary or permanent disposal of solid waste

pursuant to this chapter shall provide without charge

sufficient containers at or near the entrance for the

use of persons in passenger cars disposing of such

waste.

Ordinance No. 093-821, Section 9 (added to Section 10.20.260 of

the Metropolitan Code of Laws).

delivered by standard pickup trucks for a fee of five

dollars per load.* This ordinance does not apply to NTTC

because that facility does not accept deliveries from pas-

senger vehicles or pickup trucks.

Plaintiff is one of several waste collectors licensed to

collect and dispose of waste within the boundaries of

Metro, but it is the only collector which actually operates

a waste disposal facility in Metro. The other licensed

collectors include Browning-Ferris Industries of Tennes-

see, Inc. (“BFI”) and Sanifill. Each of these collectors

dispose of waste differently. Before it opened NTTC,

Metro operated a landfill known as the Bordeaux Landfill

in Davidson County. Plaintiff, on the other hand, operates

a transfer station in Davidson County and landfills in

both Benton County, Tennessee and Logan County, Ken-

tucky. Because BFI does not have a transfez station, it

brings waste directly to its landfill in Rutherford County,

4 The portion of the passenger vehicle and pick-up truck

ordinance that concerns pick-up trucks reads as follows:

Any person enjoying the privilege of providing

temporary or permanent disposal of solid waste

pursuant to this chapter shall accept waste from

private standard pickup trucks at a fee of five dollars

per load. No fee shall be paid to the metropolitan

government, but a full monthly accounting as to

weight, volume and number of trucks shall be

furnished to the metropolitan government upon

request.

Ordinance No. 093-821, Section 11B (added to Article II of

Chapter 10.20 of the Metropolitan Code of Laws as Section

10.20.330, re-numbering the existing Section 10.20.330 as Section

10.20.350).

Tennessee, and Sanifill brings waste to NTTC, plaintiff’s

transfer station, or BFI’s landfill.

In its amended complaint, plaintiff sought declara-

tory and injunctive relief against defendant, alleging that

the flow control and waste disposal fee provisions violate

the Commerce Clause of the United States Constitution;

U.S. Const. art. I, § 8, cl. 3. Plaintiff later amended its

complaint again, adding a claim that defendant's pas-

senger vehicle and pickup truck ordinance constituted a

taking without just compensation in violation of the Fifth

Amendment to the United States Constitution.

The district court permanently enjoined enforcement

of the waste disposal fee provisions, but did not enjoin

enforcement of the flow control provisions, or the pas-

senger vehicle and pickup truck ordinance. Both parties

filed timely notices of appeal as to those portions of the

district court’s order which were adverse to their respec-

tive positions.

II.

Jurisdiction before this court is premised upon 28

U.S.C. § 1292(a)(1). We review a district court’s decision

to grant or deny a motion for a permanent injunction for

abuse of discretion, accepting the court’s findings of fact

unless they are clearly erroneous. Loschiavo v. City of

Dearborn, 33 F.3d 548, 553 (6th Cir. 1994). “An abuse of

discretion exists when the district court applies the

wrong legal standard, misapplies the correct legal stan-

dard, or relies on clearly erroneous findings of fact.” First

Tech. Safety Sys., Inc. v. Depinet, 11 F.3d 641, 647 (6th Cir.

1993).

A. Commerce Clause

The United States Constitution expressly authorizes

Congress to “regulate Commerce with foreign Nations,

and among the several States,” U.S. Const. art. I, § 8, cl. 3,

and “the ‘negative’ or ‘dormant’ aspect of the Commerce

Clause prohibits the States from ‘advanc[ing] their own

commercial interests by curtailing the movement of arti-

cles of commerce, either into or out of the state.’ ” Fort

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

Resources, 504 U.S. 353, 359 (1992) (quoting H.P. Hood &

Sons, Inc. v. Du Mond, 336 U.S. 525, 535 (1949)); see also

Ferndale Lab., Inc. v. Cavendish, 79 F.3d 488, 492 (6th Cir.

1996). The negative Commerce Clause also limits the

actions of municipalities such as Metro, where such

actions “burden interstate commerce or impede its free

flow.” C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383, 389

(1994).

In deciding if a particular law violates the negative

Commerce Clause, a court must first “determine whether

[the law] ‘regulates evenhandedly with only incidental

effects on interstate commerce, or discriminates against

interstate commerce.’ ” Oregon Waste Sys., Inc. v. Dep’t of

Envtl. Quality of Oregon, 511 U.S. 93, 99 (1994) (quoting

Hughes v. Oklahoma, 441 U.S. 322, 336 (1979)) (internal

quotation marks omitted). A law that discriminates

against interstate commerce treats in-state and out-of-

state interests differently, benefitting the former and bur-

dening the latter. Oregon Waste, 511 U.S. at 99.

If a law discriminates against interstate commerce, it

is “virtually per se invalid,” id., unless “the municipality

can demonstrate, under rigorous scrutiny, that it has no

other means to advance a legitimate local interest.” Car-

bone, 511 U.S. at 392. On the other hand, “nondiscrimina-

tory regulations that have only incidental effects on

interstate commerce are valid unless ‘the burden imposed

on such commerce is clearly excessive in relation to the

putative local benefits.’” Oregon Waste, 511 U.S. at 99

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

(1970)); see also City of Philadelphia v. New Jersey, 437 U.S.

617, 624 (1978).

1. Flow Control Provisions

Plaintiff argues that the district court erred in ruling

that defendant’s flow control provisions do not violate

the Commerce Clause. The court held that the provisions

are nondiscriminatory, with incidental effects on inter-

state commerce, and that the burden they impose is not

clearly excessive in relation to their putative local bene-

fits. It distinguished this case from Carbone on the

grounds that the provisions at issue here do not totally

exclude disposal of waste outside of Metro, or create or

result in a monopoly for NTTC. Rather, the court rea-

soned, plaintiff can still dispose of non-residential waste

at facilities other than NTTC that are located outside of

Metro or even outside of Tennessee.

Before the court concluded that defendant’s flow

control provisions do not discriminate against interstate

commerce, it proceeded as if they do discriminate. In

considering whether defendant had any other means of

advancing a legitimate local interest, the court again dis-

tinguished these provisions from those at issue in Car-

bone, on the ground that they do not just generate

10a

revenues, which would not be a legitimate local interest

justifying such discrimination. 511 U.S. at 393. They also

“implicate[ ] significant public environmental interests,”

such as ensuring that a proportion of solid waste col-

lected within Metro’s boundaries is used as fuel, and

enabling Metro to comply with Tennessee’s Solid Waste

Management Act of 1991, Tenn.Code Ann.

§§ 68-211-801-874, which requires municipalities to

reduce by twenty-five percent the volume of solid waste

disposed of in landfills and incinerators in Tennessee.

In Carbone, the Supreme Court stated that the flow

control ordinance at issue there “hoard[ed] solid waste,

and the demand to get rid of it, for the benefit of the

preferred processing facility.” 511 U.S. at 392, 114 S. Ct. at

1683. The provisions at issue in this case do the same,

even though they do not require that all waste be sent to

NTTC. They require that all residential waste be sent to

NTTC, thereby preventing plaintiff from disposing of

such waste at a cheaper facility, and threatening the well-

being of plaintiff's own dump sites. In Wyoming v. Okla-

homa, 502 U.S. 437 (1992), the Supreme Court observed

that “[t]he volume of commerce affected measures only

the extent of the discrimination; it is of no relevance to the

determination whether a State has discriminated against

interstate commerce.” Id. at 455. As we read Wyoming,

plaintiff’s ability to send some waste to facilities other

than NTTC goes to the extent of the discrimination, not

whether there was discrimination in the first place.

Having determined that defendant’s flow control

provisions do in fact discriminate against interstate com-

merce, we must now decide whether “the municipality

[has] demonstrate[d], under rigorous scrutiny, that it has

lla

no other means to advance a legitimate local interest.”

Carbone, 511 U.S. at 392. Although defendant may have

cited two legitimate local interests, there are other means

of advancing such interests, like charging competitive

tipping fees for waste disposed of at NITC. Moreover,

Metro concedes that it could secure a flow of waste to

NTTC by increasing its collections either directly or by

contract, “but this could not be done without legislation

and some further time for preparation.” Because defen-

dant’s flow control provisions are facially discriminatory,

and because there are other means of advancing the

legitimate local interests cited, these provisions cannot

satisfy the rigorous scrutiny to which such laws are sub-

jected under the Commerce Clause. We hold, therefore,

that the district court erred in refusing to enjoin their

enforcement.

2. Waste Disposal Fee Provisions

Defendant cross-appeals the district court’s decision

to permanently enjoin enforcement of its waste disposal

fee provisions, arguing that the court erred in concluding

that they violate the Commerce Clause. We agree with the

district court’s conclusion that the provisions in question

are facially discriminatory, since they treat Metro and

non-Metro interests differently. Examples of such differ-

ential treatment are the fact that the fee is not imposed

upon waste disposed of at NTTC or any other Metro-

owned facility, and that it is only imposed upon plaintiff

and BFI, both of whom dispose of waste at facilities

outside of Metro’s boundaries. Once the court found the

fee to be facially discriminatory, it was per se invalid,

unless Metro could demonstrate that it had no other

12a

means of advancing a legitimate local interest. Carbone,

511 U.S. at 392.

The district court properly rejected defendant's argu-

ment that the fee is a compensatory tax which compen-

sates Metro for “the overall cost of solid waste

management in Davidson County,” since Metro did not

offer any evidence of a specific tax burden on intrastate

commerce for which it sought compensation. See Oregon

Waste, 511 U.S. at 102-03. Not only did Metro fail to

demonstrate that it had no other means of advancing a

legitimate local interest, both parties acknowledged that

there was a reasonable nondiscriminatory alternative in

the form of a generator or container tax on all residential

and non-residential waste generated within Metro’s

boundaries. The district court did not abuse its discretion

in permanently enjoining enforcement of defendant’s

waste disposal fee provisions.

B. Takings Clause

The Takings Clause of the Fifth Amendment pro-

vides, in relevant part, “ . . . nor shall private property be

taken for public use, without just compensation.” U.S.

Const. amend. V. The primary purpose of the Takings

Clause is to prevent the government from requiring cer-

tain individuals to bear burdens which should be borne

by society as a whole. Penn Central Transp. Co. v. City of

New York, 438 U.S. 104, 123-24 (1978); see also In re Blue

Diamond Coal Co., 79 F.3d 516, 524 (6th Cir. 1996), cert.

denied, 117 S. Ct. 682 (1997). The Supreme Court has

recognized two categories of takings: regulatory and

physical. See, e.g., Penn Central, 438 U.S. 104 (holding

13a

prohibition on construction of fifty-five-story office tower

over New York’s Grand Central Terminal is not a regula-

tory taking); Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) (holding cable equipment occupying

one and one-half cubic feet of private building is a physi-

cal taking).

1. Regulatory Taking

The Supreme Court has declined to lay out a set

formula for determining whether a regulatory taking has

occurred, preferring instead to engage in “essentially ad

hoc, factual inquiries.” Lucas v. South Carolina Coastal

Council, 505 U.S. 1003, 1015 (1992) (quoting Penn Central,

438 U.S. at 124). The Court has, however, identified sev-

eral factors which have “particular significance” in deter-

mining whether there has been a taking, namely 1) the

character of the governmental action; 2) the economic

impact of the regulation on the claimant; and 3) the extent

to which the regulation has interfered with the claimant's

distinct investment-backed expectations. Connolly v. Pen-

sion Benefit Guar. Corp., 475 U.S. 211, 224-25 (1986) (citing

Penn Central, 438 U.S. at 124); see also Blue Diamond Coal,

79 F.3d at 524.

2. Physical Taking

A physical taking, on the other hand, occurs where

the government physically intrudes upon a plaintiff's

property. “[A] permanent physical occupation is a gov-

ernment action of such a unique character that it is a

taking without regard to other factors that a court might

ordinarily examine.” Loretto, 458 U.S. at 432. If, in other

14a

words, the “character of the governmental action” is a

permanent physical occupation of property, then the

Supreme Court “uniformly [has] found a taking to the

extent of the occupation, without regard to whether the

action achieves an important public benefit or has only

minimal economic impact on the owner.” Id. at 434-35.

3. Passenger Vehicle and Pickup Truck Ordinance

Plaintiff argues that the district court erred in ruling

that defendant’s passenger vehicle and pickup truck ordi-

nance does not violate the Fifth Amendment, but fails to

articulate exactly which kind of taking it believes the

ordinance causes. Plaintiff did argue to the district court

that the ordinance amounts to an invasion and taking of

its property because it was required to designate an area

on plaintiff's property specifically for receiving waste

from passenger cars and pickup trucks. The district court

rejected this argument, concluding that plaintiff “has not

suffered an easement equivalent to permanent physical

occupation of the property” in part because it “is in the

business of collecting and disposing of solid waste and,

therefore, its physical plants already have the physical

modifications required to receive and process such

waste.” According to the court, the requirements are jus-

tifiable intrusions that serve the legitimate state interest

of efficient and timely collection and disposal of solid

waste.

In determining whether the district court erred when

it ruled that defendant’s ordinance does not cause a phys-

ical taking, we must decide whether the character of the

governmental action constitutes a permanent physical

15a

occupation of plaintiff's property. Loretto, 458 U.S. at 432.

If so, defendant’s action is a taking “without regard to

other factors that a court might ordinarily examine,” id.,

and “without regard to whether the action achieves an

important public benefit or has only minimal economic

impact on the owner.” -Id. at 434-35.

As one measure of the burden placed upon it by the

ordinance, plaintiff points to documents in the record

indicating that Metro’s Bordeaux Landfill received

approximately 50,000 tons of waste from passenger vehi-

cles and pickup trucks in 1989 (the landfill was closed in

1994). Should defendant's ordinance be enforced, plaintiff

alone will have to be equipped to accept all waste deliv-

ered by passenger vehicles and pickup trucks - regard-

less of how much there is, and regardless of the capacity

of its facility - since plaintiff’s facility is the only one

located within Metro’s boundaries that will accept such

waste. In addition, the parties stipulated that plaintiff

will have to do the following in order to comply fully

with defendant’s ordinance: (1) allot approximately one-

half acre of its nine-acre property to accommodate these

services; (2) prepare that designated area with a concrete

pad and drains; (3) place containers on that area to

receive the waste; (4) physically receive the solid waste;

(5) hire personnel and designate equipment to handle

such waste; (6) allow access to the property to passenger

vehicles and pickup trucks; (7) accept, process, transport

and dispose of the waste; and (8) incur the financial costs

of accepting, processing, transporting and disposing of

the waste at an uncompensated or undercompensated

rate.

16a

The stipulations appear to recognize that it is not-

feasible, either from a safety or economic standpoint, to

serve both commercial and non-commercial vehicles in

the very same area. If what is being required of plaintiff

is that it involuntarily set off and improve a portion of its

property for the accommodation of passenger cars and

pickup trucks to the exclusion of all other uses, then it

seems to us that the effect of defendant’s conduct in

pursuing its interests is tantamount to defendant's physi-

cal occupation of plaintiff's property. However, it is not

clear to us from the wording of the stipulated facts that

this exclusive dedication of a portion of the property is

what is actually being required of plaintiff.

Should the district court conclude on remand that

defendant’s ordinance did in fact cause a physical taking

of plaintiff’s property, then it follows under Loretto that

plaintiff would be entitled to relief regardless of the

otherwise legitimate state interest advanced by Metro.

458 U.S. at 434-35.

4. Ripeness

There is, however, one more issue to consider,

namely, whether plaintiff complied with the Supreme

Court’s holding in Williamson County Regional Planning

Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172

(1985), thereby rendering its taking claim ripe for adjudi-

cation in federal court.

In Williamson, the Supreme Court held that the Tak-

ings Clause “does not proscribe the taking of property; it

proscribes taking without just compensation.” Id. at 194.

Thus, where a state provides an adequate procedure for

17a

seeking just compensation, a property owner cannot

claim the Takings Clause has been violated until he has

used the procedure and been denied just compensation.

Id. at 195. In Williamson, the Court examined Tennessee

law and concluded that a property owner in that state

could bring an inverse condemnation action to obtain just

compensation for an alleged taking of property under

certain circumstances. Because the landowner in Wil-

liamson had not shown that the procedure was unavail-

able or inadequate, and had not utilized it, the Court

concluded that the taking claim before it was premature.

This case, of course, comes to us from Tennessee.

Because the ripeness issue was not addressed by the

district court, and we are unable to say whether applica-

ble Tennessee law in effect at the relevant time afforded

plaintiff an adequate procedure to seek compensation or

whether plaintiff utilized it prior to filing his claim in

federal court, we must call upon the district court to

address the ripeness issue on remand.

Il.

We reverse that portion of the district court’s order

which denies plaintiff’s motion for injunctive relief from

enforcement of the flow control provisions, and we affirm

that portion of the court's order that grants plaintiff’s motion

for injunctive relief from enforcement of the waste disposal

fee provisions. Finally, we vacate that portion of the court's

order that denies plaintiff’s motion for relief from enforce-

ment of the passenger vehicle and pickup truck ordinance,

and remand this cause to the district court for further pro-

ceedings consistent with this decision.

18a

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

WASTE MANAGEMENT, INC.

OF TENNESSEE

METROPOLITAN GOVERNMENT

OF NASHVILLE

AND DAVIDSON COUNTY

No. 3-94-0411

Judge Higgins

ooo

MEMORANDUM

The Court has before it the Report and Recommenda-

tion (entered June 13, 1994; Docket Entry No. 17) of the

Magistrate Judge; the defendant’s objections (filed June

24, 1994; Docket Entry No. 23); the plaintiff’s objections

(filed June 24, 1994; Docket Entry No. 24); the plaintiff’s

response (filed July 11, 1994; Docket Entry No. 30); and

the defendant’s response (filed July 11, 1994; Docket

Entry No. 31). The Court hereby makes a de novo deter-

mination of the case upon the record, pursuant to the

Federal Rules of Civil Procedure 72(b), 28 U.S.C.

§ 636(b)(1)(B), and Rule 506 of the Local Rules Governing

Duties of and Proceedings Before Magistrates.

The Court also has before it the plaintiff's motion

(filed August 17, 1994; Docket Entry No. 46) for summary

judgment and its memorandum (Docket Entry No. 47) in

support;! the defendant’s motion (filed August 17, 1994;

Docket Entry No. 50) for partial summary judgment and

1 On August 17, 1994, the plaintiff also filed a motion

(Docket Entry No. 49) for oral argument.

19a

its memorandum (Docket Entry No. 51) in support; as

well as the defendant’s response (filed September 9, 1994;

Docket Entry No. 66) and the plaintiff’s response (filed

September 6, 1994; Docket Entry No. 69).

The Court has subject matter jurisdiction pursuant to

28 U.S.C. § 1331.

In his Report and Recommendation, the Magistrate

Judge recommended that the plaintiff’s motion (filed May

12, 1994; Docket Entry No. 2) for a preliminary injunction

be granted with respect to the defendant’s waste disposal

fee, but denied with respect to the defendant’s flow con-

trol requirements. For the reasons set forth below, the

Court shall approve and adopt the Report and Recom-

mendation. The objections to the Report and Recommen-

dation of the defendant and the plaintiff shall be

overruled.

The Court finds that it is able to make its determina-

tion with regard to the plaintiff's motion for summary

judgment without benefit of oral argument and, there-

fore, the Court shall deny the plaintiff's motion (Docket

Entry No. 49) for oral argument. In addition, the Court

shali grant the plaintiff's motion for summary judgment

in part and deny it in part. The Court shall also grant the

defendant's motion for partial summary judgment in part

and deny it in part.

The plaintiff, Waste Management, Inc., of Tennessee,

is a waste collector and operator which is licensed to

“

20a

collect and dispose of waste generated within the geo-

graphic boundaries of the defendant, The Metropolitan

Government of Nashville and Davidson County (Metro),

and has been engaged in this business since 1979. Solid

waste generated within Metro’s boundaries is collected

and disposed of by Metro, three major haulers of which

Waste Management is one,? and various smaller haulers.

Metro owns a waste-to-energy facility in Davidson

County which is operated by the Nashville Thermal

Transfer Corporation (NTTC) but no landfill since Bor-

deaux closed in March, 1994. See joint reply (filed Septem-

ber 23, 1994; Docket Entry No. 71) { 3. Waste

Management owns and operates a transfer station in

Davidson County which processes solid waste for dis-

posal at its primary landfill located in Benton County,

Tennessee, as well as its backup site located in Logan

County, Kentucky. Id. {J 4, 21-23; stipulated facts (filed

June 2, 1994; Docket Entry No. 15) {¥ 13-15.

Effective January 2, 1991, Metro enacted a regulation

which established a licensing system for persons engaged

in the management of solid waste within Metro’s bound-

aries. Stipulated facts { 1. This system imposes flow

control restrictions on the disposal of solid waste which

require that solid waste collected within Davidson

County be disposed of at sites approved by Metro. Id.

An amendment to this regulation further imposes the

flow control restrictions which require that all residential

2 The other two major haulers are Browning Ferris

Industries (BFI) and Sanifill. See joint reply (filed September 23,

1994; Docket Entry No. 71) { 1.

2la

solid waste collected within Metro’s boundaries be dis-

posed of at NTTC. Id. { 16. Commercial solid waste is not

required to be disposed of at NTTC unless specifically

designated for disposal there if an operator’s mandatory

pro rata contribution of solid waste has not been fulfilled.

See id., appendix A at 9. Metro issues mandatory weekly

allotments of solid waste to be disposed of at NTTC only

to the three major haulers of solid waste, namely, Waste

Management, Browning Ferris Industries (BFI), and Sani-

fill. Joint reply { 27.

Metro also enacted an ordinance which imposes a

waste disposal fee of eight dollars per ton upon persons

enjoying the privilege of providing temporary or perma-

nent disposal of solid waste. See stipulated facts (Docket

Entry No. 15) { 4 and appendix B at 3. This fee is not

imposed on municipal solid waste which is disposed of at

NTTC, however. Id. J 4. This ordinance was further

amended to extend the fee of eight dollars per ton to

persons who collect solid waste within the boundaries of

Metro and dispose of such solid waste outside Metro’s

boundaries. Joint reply { 10. Metro only assesses this fee

against Waste Management, based upon its operation of a

transfer station within Metro, and against BFI, based

upon its landfill located in Rutherford County.? Stipu-

lated facts ¥ 8.

With certain exceptions which are not pertinent to

this action, all Metro sanitary landfills, incinerators or

other collection stations (including NTTC) must charge a

3 BFI does not use a transfer station or any other

intermediate disposal point. Id. { 10.

22a

tip fee of thirty-six dollars per ton. Id. { 5. The current

tipping fee charged at Waste Management’s transfer sta-

tion is also thirty-six dollars per ton, which does not

include Metro’s eight-dollar surcharge. Id. { 18.

Finally, Metro’s ordinance requires that all persons

enjoying the privilege of providing temporary or perma-

nent disposal of solid waste within Metro’s boundaries

accept waste from standard pickup trucks for a fee of five

dollars per load, as well as provide containers for free

disposal of solid waste from passenger vehicles at the

facility’s entrance. See stipulated facts, appendix B at 2-3.

These requirements do not apply to Waste Management's

private competitors, however, since they do not operate

temporary or permanent disposal facilities within Metro’s

boundaries, joint reply { 36, nor do these requirements

apply to NTTC, which does not accept solid waste from

either standard pickup trucks or passenger vehicles. Id.

{ 37.

The plaintiff originally filed its complaint (Docket

Entry No. 1) and its motion (Docket Entry No. 2) for a

preliminary injunction on May 12, 1994. The plaintiff

alleges that Metro’s imposition of a waste disposal fee

and flow control requirements violates the Commerce

Clause of the United States Constitution. The plaintiff

further alleges that Metro’s requirements that the plaintiff

provide free containers for disposal of waste delivered by

passenger vehicles and that the plaintiff charge only five

dollars per load of waste received from non-commercial

trucks constitute a taking of the plaintiff’s property with-

out just compensation, thereby violating the Fifth

Amendment of the Constitution.

23a

The defendant responded to the plaintiff’s motion for

a preliminary injunction and asserted that its regulations

do not violate the Constitution. See defendant’s response

(filed May 27, 1994; Docket Entry No. 8) and memoran-

dum (Docket Entry No. 9) in support; and defendant's

supplemental memorandum (filed May 31, 1994; Docket

Entry No. 13).

By order (Docket Entry No. 14) entered June 2, 1994,

the plaintiff’s motion for a preliminary injunction was

referred to the Magistrate Judge for a Report and Recom-

mendation concerning its proper disposition. Following

the entry of the Magistrate Judge’s Report and Recom-

mendation (Docket Entry No. 17) on June 13, 1994, the

plaintiff filed its motion (Docket Entry No. 46) for sum-

mary judgment and the defendant filed its motion

(Docket Entry No. 50) for partial summary judgment.

The parties have agreed that there are no genuine

issues of material fact with regard to the determination of

their cross motions for summary judgment and, therefore,

the Court shall resolve the parties’ dispute on the basis of

the record before it.

II.

The standard for injunctive relief and its application

are fully articulated by the Magistrate Judge in his Report

and Recommendation and need not be reiterated here.

Report and Recommendation (Docket Entry No. 17) at

15-23.

In his Report and Recommendation, the Magistrate

Judge recommended that the plaintiff's motion (Docket

24a

Entry No. 2) for a preliminary injunction be granted with

respect to the defendant’s waste disposal fee* since the

plaintiff was likely to succeed in establishing that this fee

constitutes a discriminatory local law which violates the

Commerce Clause. Report and Recommendation at 19-20.

However, the Magistrate Judge concluded that the plain-

tiff does not have a substantial likelihood of success and

that a preliminary injunction should not issue with

regard to the defendant’s flow control requirements.° Id.

at 24-25.

In arriving at the latter conclusion, the Magistrate

Judge determined that the defendant’s flow control

requirements do not result in a monopoly, nor do they

exclude waste disposal outside of Metro. Id. at 23. Noting

that enforcement of these requirements is limited, id. at

23-24, and that there was no evidence that the plaintiff is

treated differently in the quota demands than are other

waste collection and disposal companies, the Magistrate

Judge concluded that this provision of the ordinance is

nondiscriminatory and has only an incidental impact on

interstate commerce. Id. at 24.

In its objections to the Report and Recommendation,

Metro contends that the Magistrate Judge erred in con-

cluding that the waste disposal fee falls into the category

of virtually per se discriminatory legislation. Defendant's

objections (Docket Entry No. 23) at 10. More specifically,

the defendant notes that although the waste disposal fee

4 See plaintiff’s memorandum (Docket Entry No. 47),

exhibit 2 at 1.

> See stipulated facts (Docket Entry No. 15), appendix A at

9-10.

25a

is not imposed upon waste disposed of in Davidson

County, a much higher fee is actually charged pursuant to

another provision. Id. at 11. In addition, the defendant

contends that the plaintiff has failed to demonstrate

irreparable harm. Id. at 14-16. Finally, the defendant

asserts that Metro will be impaired in its ability to govern

and the public will be harmed if a preliminary injunction

is granted. Id. at 16-17.

As might be expected, the plaintiff objects to the

Magistrate Judge’s recommendation that its motion for a

preliminary injunction with regard to the flow control

requirements be denied. Plaintiff’s objections (Docket

Entry No. 24) at 1. More specifically, the plaintiff con-

tends that the defendant’s flow control requirements fall

under the Commerce Clause’s virtually per se rule against

discriminatory local laws and that Metro failed to demon-

strate under rigorous scrutiny that it has no other means

to advance its legitimate local interest. Id. at 7. Alter-

natively, the plaintiff asserts that the defendant has failed

to establish that its flow control requirements are evenly

enforced and have only incidental effects on interstate

commerce. Id. at 11. Finally, the plaintiff contends that the

burden imposed by the defendant’s flow control require-

ments is clearly excessive in relation to the putative local

benefits. Id.

After independently reviewing the Magistrate

Judge’s findings and conclusions and the entire record,

the Court finds that the Magistrate Judge’s findings and

conclusicns are correct and that the objections of the

plaintiff and the defendant are without merit. Accord-

ingly, the Court shall adopt and approve the Report and

Recommendation and overrule the parties’ objections.

26a

If.

As provided by Federal Rule of Civil Procedure 56(c),

summary judgment “shall be rendered forthwith if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits, if any, show

that there is no genuine issue as to any material fact and

the moving party is entitled to a judgment as a matter of

law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106

S.Ct. 2505, 2509-10, 91 L.Ed.2d 202, 211 (1986). In its

consideration of the evidence, the Court must view all

facts and inferences to be drawn therefrom in the light

most favorable to the non-moving party. Davidson & Jones

Dev. Co. v. Elmore Dev. Co., 921 F.2d 1343, 1349 (6th Cir.

1991).

In order to prevail on a summary judgment motion,

the moving party bears the burden of proving the

absence of a genuine issue of material fact concerning an

essential element of the opposing party’s action. Celotex

Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91

L.Ed.2d 265, 274 (1986); Davidson & Jones Dev. Co., 921

F.2d at 1349; Street v. J.C. Bradford & Co., 886 F.2d 1472,

1479 (6th Cir. 1989). A dispute about the material fact

must be genuine, that is, “the evidence is such that a

reasonable jury could return a verdict for the non-moving

party.”© Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510, 91

6 The Supreme Court further explained that a court must

determine “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.” Liberty

Lobby, 477 U.S. at 251-52, 106 S.Ct. at 2512, 91 L.Ed.2d at 214.

27a

L.Ed.2d at 211-12. Since the preponderance of the evi--

dence standard is used in this determination, more than a

mere scintilla of evidence in support of the plaintiff’s

position is required. Id. at 252, 106 S.Ct. at 2512, 91

L.Ed.2d at 214.

Once a motion for summary judgment has been

made, “the non-moving party bears the responsibility to

demonstrate that summary judgment is inappropriate

under Rule 56(e).” Davidson & Jones Dev. Co., 921 F.2d at

1349. The non-moving party may not merely rest on

conclusory allegations contained in the complaint, but

must respond with affirmative evidence supporting its

claims and establishing the existence of a genuine issue of

material fact. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553, 91

L.Ed.2d at 274; Cloverdale Equip. Co. v. Simon Aerials, Inc.,

869 F.2d 934, 937 (6th Cir. 1989).

IV.

As noted by the Magistrate Judge, Report and Rec-

ommendation (Docket Entry No. 17) at 17, the plaintiff's

action arises under the dormant or negative Commerce

Clause, which provides that the states are denied “the

power unjustifiably to discriminate against or burden the

interstate flow of articles of commerce.” Oregon Waste

Sys., Inc. v. Department of Environmental Quality, 511 U.S.

__, __, 114 S.Ct. 1345, 1349, 128 L.Ed.2d 13, 20 (1994).

The Supreme Court of the United States has explained

that this prohibition encompasses the advancement of a

state’s “own commercial interests by curtailing the move-

ment of articles of commerce, either into or out of the

state.” Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep't

28a

of Natural Resources, 504 U.S. 353, __, 112 S.Ct. 2019, 2023,

119 L.Ed.2d 139, 147 (1992) (citing H.P. Hood & Sons, Inc.

v. Du Mond, 336 U.S. 525, 535, 69 S.Ct. 657, 663, 93 L.Ed.

865, 872-73 (1949)). A state statute which discriminates

against interstate commerce is unconstitutional “unless

the discrimination is demonstrably justified by a valid

factor unrelated to economic protectionism.” Fort Gratiot,

504 U.S. at__, 112 S.Ct. at 2024, 119 L.Ed.2d at 147 (citing

New Energy Co. v. Limbach, 486 U.S. 269, 274, 108 S.Ct.

1803, 1808, 100 L.Ed.2d 302, 308 (1988)).

In determining whether a given law violates the dor-

mant Commerce Clause, the court must first determine

whether the law in question is a neutral regulation hav-

ing only incidental effects on interstate commerce, or

whether the law treats in-state and out-of-state economic

interests differentially, favoring in-state interests. Oregon

Waste, 511 U.S. at __, 114 S.Ct. at 1350, 128 L.Ed.2d at 21.

A nondiscriminatory law which effectuates a legitimate

local interest and only incidentally affects interstate com-

merce is valid unless “the burden imposed on such com-

merce is clearly excessive in relation to the putative local

benefits.” Pike v. Church, 397 U.S. 137, 142, 90 S.Ct. 844,

847, 25 L.Ed.2d 174, 178 (1970). However, a law which

discriminates against interstate commerce in favor of

local business or investment is per se invalid, C & A

Carbone, Inc. v. Clarkstown, 511 U.S. __, __, 114 S.Ct.

1677, 1683, 128 L.Ed.2d 399, 409 (1994); Oregon Waste, 511

U.S. at __, 114 S.Ct. at 1350, 128 L.Ed.2d at 21, unless it

falls within the narrow exception in which “the munici-

pality can demonstrate, under rigorous scrutiny, that it

29a

has no other means to advance a legitimate local inter-

est.” Carbone, 511 U.S. at __, 114 S.Ct. at 1683, 128

L.Ed.2d at 409.

As noted by the Supreme Court, it is well-established

that a state “may not tax a transaction or incident more

heavily when it crosses state lines than when it occurs

entirely within the State.” Chemical Waste Mgmt., Inc. v.

Hunt, 504 U.S. 334, ___, 112 S.Ct. 2009, 2014, 119 L.Ed.2d

121, 132 (1992) (citing Armco Inc. v. Hardesty, 467 U.S. 638,

642, 104 S.Ct. 2620, 2622, 81 L.Ed.2d 540, 545 (1984)). A

tax or fee of this kind is clearly discriminatory and for-

bidden by the dormant Commerce Clause. Chemical Waste

Memt., 504 U.S. at __, 112 S.Ct. at 2014, 119 L.Ed.2d at

132.

A state may not avoid the requirements of the dor-

mant Commerce Clause by simply limiting the movement

of articles of commerce through its subdivisions. Fort

Gratiot, 504 U.S. at __, 112 S.Ct. at 2024, 119 L.Ed.2d at

148. It is well-established that solid waste is an article of

commerce, id. at __, 112 S.Ct. at 2023, 119 L.Ed.2d at

146-47, as is the service of processing and disposing of

solid waste. Carbone, 511 U.S. at ___, 114 S.Ct. at 1682, 128

L.Ed.2d at 408. Therefore, the regulation of such articles

of commerce is subject to the strictures of the dormant

Commerce Clause.

A. Waste disposal fee

In its motion (Docket Entry No. 46), the plaintiff

contends that it is entitled to summary judgment because

the defendant’s waste disposal fee violates the Commerce

30a

Clause of the Constitution since it is a per se discrimina-

tory local law and Metro cannot prove that it has no other

means to advance its local interest. In the alternative, the

plaintiff contends that even if this regulation is not per se

discriminatory, it must be stricken as unconstitutional

because the defendant has failed to prove that the

requirements set forth in Pike have been fulfilled.”

In response, the defendant asserts that the waste

disposal fee is not per se discriminatory and that the Pike

criteria have been fulfilled and, therefore, the fee is valid.

Alternatively, the defendant contends that even if the

waste disposal fee is discriminatory, the evidence indi-

cates that the requirements set forth in Oregon Waste and

Carbone have been fulfilled,® rendering the waste disposal

fee constitutional.

The provision imposing the waste disposal fee, as

amended, purportedly applies to all persons who provide

temporary or permanent disposal of solid waste gener-

ated within Metro’s boundaries, including those who dis-

pose of such waste within as well as outside Metro’s

7 More specifically, the plaintiff alleges that the defendant

has failed to prove that Metro has evenly enforced the fee, that

the fee has only incidental effects on interstate commerce, and

that the burden imposed by the fee is not excessive relative to

the putative local benefits. See plaintiff's memorandum (Docket

Entry No. 47) at 12.

8 The defendant specifically alleges that an intrastate tax

burden exists for which the state is attempting to compensate,

that the intrastate tax roughly approximates the amount of

interstate tax, and that these taxes are based upon substantially

equivalent events. See defendant’s response (Docket Entry No.

66) at 2-4.

3la

boundaries. See plaintiff’s memorandum (Docket Entry

No. 47), exhibit 2 at 1. However, the provision further

specifies that the fee is not imposed on solid waste dis-

posed of at NTTC or at a sanitary landfill owned or

operated by Metro. Id. In addition, it is undisputed that

Metro assesses this fee of eight dollars per ton only

against Waste Management and BFI, both of which dis-

pose of solid waste at facilities outside Metro's bound-

aries. Stipulated facts (Docket Entry No. 15) {{ 8, 10, 13.

It is also undisputed that the revenue generated from this

surcharge is placed in a solid waste fund, some of which

finances NTTC’s activities. Joint reply (Docket Entry No.

71) { 12. Thus, this provision is discriminatory since in-

state and out-of-state economic interests are treated dif-

ferentially, with local interests being benefited and non-

local interests being burdened by Metro’s assessment of

its surcharge. Furthermore, there is no evidence before

the Court which identifies any intrastate tax burden for

which Metro is attempting to compensate through its

waste disposal fee and, therefore, the surcharge cannot be

considered a fair share tax. Oregon Waste, 511 U.S. at ___

114 S.Ct. at 1352, 128 L.Ed.2d at 24.

Since the waste disposal fee is discriminatory, it must

be invalidated unless Metro can demonstrate that this fee

“advances a legitimate local purpose that cannot be ade-

quately served by reasonable nondiscriminatory alterna-

tives.” Id. at __, 114 S.Ct. at 1351, 128 L.Ed.2d at 22

(citing New Energy Co. v. Limbach, 486 U.S. 269, 278, 108

S.Ct. 1803, 1810, 100 L.Ed.2d 302, 311 (1988)). The parties

concede that a reasonable nondiscriminatory alternative

to the surcharge is available as a revenue measure,

32a

namely, a generator or container tax imposed on all resi-

dential and commercial solid waste generated in David-

son County. See joint reply { 24. Therefore, the waste

disposal fee must be invalidated as unconstitutional.’

Accordingly, the Court shall grant the plaintiff’s motion

for summary judgment and shall deny the defendant's

motion for partial summary judgment with regard to the

constitutionality of the defendant’s waste disposal fee.

B. Flow control requirements

The plaintiff contends that the defendant’s flow con-

trol requirements also violate the Commerce Clause of

the Constitution since they are per se discriminatory and

Metro cannot prove that it has no other means to advance

its local interest. See plaintiff’s memorandum (Docket

Entry No. 47) at 13. In the alternative, the plaintiff con-

tends that even if the flow control provision is not per se

discriminatory, it must be stricken as unconstitutional

because the defendant has failed to prove that the criteria

set forth in Pike have been fulfilled.!° Id. at 17.

° The Court notes that even if the waste disposal fee is not

discriminatory, it would be unconstitutional in light of Metro’s

uneven enforcement of the fee, as well as the fee’s effects and

resulting excessive burden on interstate commerce. Pike, 397

U.S. at 142, 90 S.Ct. at 847, 25 L.Ed.2d at 178.

10 More specifically, the plaintiff alleges that the defendant

has failed to prove that Metro has evenly enforced the

requirements, that the requirements have only incidental effects

on interstate commerce, and that the burden imposed by the

requirements is not excessive relative to the putative local

benefits. See id. at 17-18.

33a

In response, Metro asserts that its flow control provi-

sion is nondiscriminatory and only incidentally impacts

interstate commerce. Defendant’s memorandum (Docket

Entry No. 51) at 9. The defendant further contends that

the Pike criteria have been fulfilled and, therefore, this

provision is valid. Alternatively, Metro asserts that even

if the flow control provision is discriminatory, the evi-

dence indicates that the criteria set forth in Oregon Waste

and Carbone have been fulfilled,"! rendering this provi-

sion constitutional.

Examination of the flow control provision reveals that it

requires that all residential solid waste collected within

Metro’s boundaries be disposed of at NTTC. See stipulated

facts (Docket Entry No. 15), appendix A at 9. It also states

that nonresidential solid waste is not required to be disposed

of at NTTC unless a collector has not provided its pro rata

share of solid waste necessary for NTTC’s operation. Id. at

9-10. While it is undisputed that Metro only issues manda-

tory weekly allotments to the three major haulers of solid

waste, Waste Management, Sanifill, and BFI, joint reply

(Docket Entry No. 71) {¥ 27-28, there is no evidence to

suggest that the underlying reason for this is the fact that

two of the three major haulers dispose of some solid waste

outside Metro’s boundaries. Nor is there any evidence that

the three major haulers are treated differently with regard to

their pro rata shares relative to other haulers. As noted

previously, the mandatory allotments are required only if

11 The defendant specifically alleges that it has no other

alternate means to advance its legitimate local interests. See

defendant’s memorandum at 10.

34a

necessary to fulfill a collector’s requisite pro rata contribu-

tion. See stipulated facts (Docket Entry No. 15), appendix A

at 9-10. The evidence before the Court indicates that the solid

waste delivered to NTTC by the smaller haulers fulfills their

requisite pro rata shares and, therefore, such allotments are

simply unnecessary. See, e.g., Wiles deposition (filed August

17, 1994; Docket Entry No. 61) at 96; Wiles deposition (filed

August 17, 1994; Docket Entry No. 62) at 176.

In addition, it is important to note that, in contrast to

the contested regulation in Carbone, Metro’s flow control

provision is not simply a means to generate revenue

which, by itself, would not constitute a legitimate local

interest which can justify discrimination against inter-

state commerce. 511 U.S. at __, 114 S.Ct. at 1684, 128

L.Ed.2d at 409-10. While it is true that the flow control

provision generates revenue for Metro and enables NTTC

to meet its contractual obligations to supply energy to

numerous buildings in downtown Nashville,!? it also

implicates significant public environmental interests. For

example, the provision serves to ensure that a proportion

of solid waste collected within Metro’s boundaries is

used as fuel,!> as well as enables Metro to comply with a

12 Metro points out that NTTC currently has long-term

contracts to provide the heating and cooling for thirty-eight

downtown buildings. See defendant’s objections (Docket Entry

No. 23) at 9. Absent the substantial remodeling of the majority

of these buildings, a viable alternative means of heating and

cooling does not exist. Id.

13 The evidence indicates that long-term reliance on natural

gas, rather than garbage, as fuel to provide the necessary

heating and cooling for these buildings would result in

unacceptably high levels of air pollution. See defendant’s

objections at 9.

35a

state statutory mandate concerning a solid waste manage-

ment plan.

The Court further notes that in Carbone the Supreme

Court recognized that as a result of increasing solid waste

and decreasing landfill capacity, state and local govern-

ments have had to develop efficient and lawful waste

control systems which are also protective of the environ-

ment. 511 U.S. at __, 114 S.Ct. at 1680, 128 L.Ed.2d at 405.

The Supreme Court concluded that such control systems

must be limited, however, such that state and local gov-

ernments “may not use their regulatory power to favor

local enterprise by prohibiting patronage of out-of-state

competitors or their facilities.” Id. at___, 114 S.Ct. at 1684,

128 L.Ed.2d at 410. See also Waste Recycling v. Southeast

Alabama Solid Waste Disposal Auth., 814 F. Supp. 1566, 1570

(M.D. Ala. 1993), aff’d, 29 F.3d 641 (1994) (striking ordi-

nance requiring all solid waste generated in city be deliv-

ered to one disposal); Stephen D. DeVito, Jr. Trucking, Inc.

v. Rhode Island Solid Waste Mgmt. Corp., 770 F. Supp. 775,

778 (D.R.1.), aff'd, 947 F.2d 1004 (1991) (striking regula-

tions which totally prevented solid waste from being

transported out of state for disposal).

It is significant that Metro’s flaw control provision

does not totally exclude disposal of solid waste outside

Metro nor create or result in a monopoly for NTTC. As

noted by the Supreme Court in its comments concerning

local processing requirements, “[t]he essential vice in

laws of this sort is that they bar the import of the process-

ing service.” Carbone, 511 U.S. at __, 114 S.Ct. at 1683,

128 L.Ed.2d at 408. Because the provision does not

require all solid waste to be processed at NTTC, out-of-

state competitors are not deprived of access to any local

36a

market as occurred in Carbone. Id. at __, 114 S.Ct. at 1680,

1681, 128 L.Ed.2d at 405, 407. Rather, Waste Management

may still dispose of a significant portion of the solid

waste it collects at facilities other than NTTC, including

facilities outside Metro or outside the state.

Thus, the Court concludes that Metro’s flow control

provision is a nondiscriminatory and neutral regulation

which effectuates a legitimate local interest. Because its

effect on interstate commerce is incidental and not

“clearly excessive in relation to the putative local bene-

fits,” Pike, 397 U.S. at 142, 90 S.Ct. at 847, 25 L.Ed.2d at

178, the Court further concludes that the provision does

not violate the Commerce Clause.

Accordingly, the Court shall deny the plaintiff’s

motion for summary judgment and shall grant the defen-

dant’s motion for partial summary judgment with regard

to the constitutionality of the defendant’s flow control

provision.

VI.

The Fifth Amendment to the United States Constitu-

tion, which is made applicable to the states through the

Fourteenth Amendment, provides that private property

may not be taken for public use without just compensa-

tion. As noted by the Supreme Court, this constitutional

provision serves “to bar Government from forcing some

people alone to bear public burdens which, in all fairness

and justice, should be borne by the public as a whole.”

Dolan v. City of Tigard, 512 U.S. __, __, 114 S.Ct. 2309,

2316, 129 L.Ed.2d 304, 316 (citing Armstrong v. United

EAE LISA ON DAR Pree LO td

Aint arget Satya A AMIOERA SAY

37a

States, 364 U.S. 40, 49, 80 S.Ct. 1563, 1569, 4 L.Ed.2d 1554,

1561 (1960)).

It is generally the case that “while property may be

regulated to a certain extent, if regulation goes too far it

will be recognized as a taking.” First English Evangelical

Lutheran Church v. County of Los Angeles, 482 U.S. 304, 316,

107 S.Ct. 2378, 2386, 96 L.Ed.2d 250, 265 (1987) (citing

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415, 43 S.Ct.

158, 160, 67 L.Ed. 322, 326 (1922)). It is well-established

that a land-use regulation constitutes a taking, thereby

violating the Fifth Amendment, when it “does not sub-

stantially advance legitimate state interests, or denies an

owner economically viable use of his land.” Agins v.

Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d

106, 112 (1980) (citations omitted). The range of govern-

mental interests and regulations which satisfy these

requirements is admittedly broad. Nollan v. California

Coastal Comm'n, 483 U.S. 825, 834-35, 107 S.Ct. 3141, 3147,

97 L.Ed.2d 677, 688 (1987).

VIL.

Metro’s regulations concerning waste collection and

disposal include an ordinance which requires that those

who enjoy the privilege of providing such services “shall

provide without charge sufficient containers at or near

the entrance for the use of persons in passenger cars

disposing of such waste.” See stipulated facts (Docket

Entry No. 15), appendix B at 2. In yet another section,

such persons are required to “accept waste from private

standard pickup trucks at a fee of five dollars per load.”

See id., appendix B at 3. It is readily apparent that such

38a

requirements substantially advance legitimate state inter-

ests, namely, the efficient and timely collection and dis-

posal of solid waste, by increasing the visibility and

convenience of waste management facilities.

The plaintiff contends that it is entitled to summary

judgment because these requirements constitute a taking

of its property without just compensation, thereby violat-

ing the Fifth Amendment to the Constitution. In

response, the defendant asserts that this constitutional

challenge is fatal because regulation of the transfer and

disposal of waste is a valid exercise of governmental

power, these requirements are simply minor intrusions

which do not result in any permanent physical occupa-

tion of the plaintiff's property, and the plaintiff is not

deprived of all economically beneficial use of its land. See

defendant's response (Docket Entry No. 66) at 13-15. The

defendant's assertions have considerable merit.

As an initial matter, the plaintiff contends that the

provisions both take and invade its property because

Waste Management

is required to designate an area on the property

for such activities, to prepare that area to accept

solid waste, to place containers on that area of

the. property to receive such solid waste, to

physically receive such solid waste on the prop-

erty, and to allow access to such vehicles for the

disposal of such solid waste.

Plaintiff's memorandum (Docket Entry No. 47) at 19.

These arguments ring hollow in light of the fact that

Waste Management is in the business of collecting and

disposing of solid waste and, therefore, its physical

plants already have the physical modifications required

ae Stas in

39a

to receive and process such waste. Access to its physical

plants is a necessary aspect of conducting the plaintiff’s

business. Placement of containers near its entrance to

facilitate acceptance of solid waste from passenger vehi-

cles, as well as allowing access to such vehicles and

standard pickup trucks, must be recognized as only

minor intrusions which are clearly justified by the impor-

tant legitimate state interests they serve. As such, these

provisions hardly comprise a taking of the plaintiff’s

property.

The plaintiff also complains that implementation of

these provisions requires that Waste Management

“accept, process, transport, and dispose of such solid

waste with little or no compensation at a financial loss”

and results in an expenditure of capital which deprives

the plaintiff of economically beneficial use of its property.

See plaintiff's memorandum at 19-20. The Court notes

that, while some minimal reduction in profits may neces-

sarily result from these provisions, Waste Management is

clearly not deprived of economically beneficial use of its

property. Indeed, the contested provisions allow the

plaintiff to obtain five dollars for each pickup truckload

collected.

Finally, the plaintiff's reliance on Dolan and Nollan in

arguing that imposition of the provisions as permit condi-

tions would deny its right to operate a transfer station on

the property is misplaced. Plaintiff’s memorandum at

20-21. Unlike the situation in Dolan, the plaintiff has not

been required to deed portions of its property to Metro

and, therefore, has not been forced to give up its constitu-

tional right to compensation for that property. 512 U.S. at

__, 114 S.Ct. at 2316, 129 L.Ed.2d at 316. Rather, the

40a

conditions imposed by Metro’s ordinance constitute sim-

ply a limitation on the use Waste Management might

make of its property. Id. Likewise, the plaintiff has not

suffered an easement equivalent to “ ‘permanent physical

occupation’ of the property, by the government itself or

by others,” as occurred in Nollan.'4 483 U.S. at 832, 107

S.Ct. at 3146, 97 L.Ed.2d at 686.

The Court concludes that the provisions requiring

that Waste Management accept waste from standard

pickup trucks for five dollars per load and provide con-

tainers for disposal of waste from passenger vehicles

without charge do not comprise a taking of the plaintiff’s

property. Accordingiy, the Court shall grant the defen-

dant’s motion for partial summary judgment and shall

deny the plaintiff’s motion for summary judgment with

regard to the plaintiff’s Fifth Amendment claim.

VIII.

After independently reviewing the Report and Rec-

ommendation and the entire record, the Court finds the

Magistrate Judge’s findings and conclusions are correct

| and, therefore, shall approve and adopt the Report and

Recommendation. The defendant’s objections and the

plaintiff’s objections to the Report and Recommendation

shall be overruled.

14 The Court notes that in Nollan the Supreme Court opined

that a condition attached to the granting of the building permit

which required that the plaintiffs provide a viewing spot on

their property would be constitutional even though it would

comprise “a permanent grant of continuous access to the

property.” 483 U.S. at 836, 107 S.Ct. at 3148, 97 L.Ed.2d at 689.

4ia

Accordingly, the Court shall grant the plaintiff’s

motion for injunctive relief with regard to the constitu-

tionality of the defendant’s waste disposal fee. In addi-

tion, the Court shall grant the plaintiff’s motion for

summary judgment and deny the defendant’s motion for

partial summary judgment with regard to the waste dis-

posal fee.

However, the Court shall deny the plaintiff's motion

for injunctive relief with regard to the constitutionality of

the defendant’s flow control provision. The Court shall

also grant the defendant’s motion for partial summary

judgment and deny the plaintiff's motion for summary

judgment with regard to the flow control provision.

Finally, the Court shall grant the defendant’s motion

for partial summary judgment and deny the plaintiff’s

motion for summary judgment with regard to the plain-

tiff’s Fifth Amendment claim.

An appropriate order shall be entered.

/s/Thomas A. Higgins

Thomas A. Higgins

United States District Judge

5-17-95 /

42a

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

WASTE MANAGEMENT,

INC. OF TENNESSEE No. 3-94-0411

Judge Higgins

]

METROPOLITAN oe

GOVERNMENT OF

NASHVILLE AND

DAVIDSON COUNTY

ORDER

In accordance with the memorandum contemporane-

ously entered, the Court approves and adopts the Report

and Recommendation of the Magistrate Judge (entered

June 13, 1994; Docket Entry No. 17). The defendant’s

objections (filed June 24, 1994; Docket Entry No. 23) and

the plaintiff’s objections (filed June 24, 1994; Docket

Entry No. 24) to the Report and Recommendation are

overruled.

Accordingly, the Court grants the plaintiff’s motion

(filed May 12, 1994; Docket Entry No. 2) for injunctive

relief with regard to the defendant’s waste disposal fee,

but denies the plaintiff’s motion for an injunction with

regard to the defendant’s flow control provision.

In addition, the Court denies the plaintiff’s motion

(filed August 17, 1994; Docket Entry No. 49) for oral

argument. The Court grants the plaintiff’s motion (filed

August 17, 1994; Docket Entry No. 46) for summary judg-

ment and denies the defendant’s motion (filed August 17,

1994; Docket Entry No. 50) for partial summary judgment

43a

with regard to the waste disposal fee. The Court also

grants the defendant’s motion (Docket Entry No. 50) for

partial summary judgment and denies the plaintiff’s

motion (Docket Entry No. 46) for summary judgment

with regard to the defendant’s flow control provision.

Finally, the Court grants the defendant’s motion

(Docket Entry No. 50) for partial summary judgment and

denies the plaintiff's motion (Docket Entry No. 46) for

summary judgment with regard to the plaintiff’s Fifth

Amendment claim.

Accordingly, the defendant is permanently enjoined

from enforcing section 11A of Ordinance No. 093-821.

Entry of this order shall constitute the judgment in

this action.

It is so ORDERED.

/s/ Thomas A. Higgins

Thomas A. Higgins

United States

District Judge

5-17-95

44a

PUBLIC WORKS REGULATION

ON COLLECTION AND DISPOSAL OF SOLID WASTE

The following regulations are adopted by the Direc-

tor of the Department of Public Works pursuant to Metro-

politan Ordinance §§ 36-1-43 and 36-2-9; T.C.A.

§§ 7-54-103(d) and 68-31-101, et seqg.; and §§ 1.05, 2.01(7),

2.01(19), 2.01(40) and 8.402(b) of the Metropolitan Char-

ter.

SECTION I. DEFINITIONS.

(a) Director means the Director of the Depart-

ment of Public Works, or his designated representative.

(b) Solid Waste means all municipal, commercial

or industrial solid waste, garbage, rubbish, refuse, and

other such similar and related materials, including with-

out limitation recyclable materials when they become

discarded, except those excluded by the Tennessee

Department of Public Health, which will designate as

“special waste” any hazardous or other waste it deter-

mines should not be processed in an energy production

facility for reasons of public health or safety or because

the nature of the waste is such that it is not suitable for

processing in an energy production facility.

artificial, including any individual, firm or association,

business trust, partnership, joint venture (provided, how-

ever, that as to any business trust, partnership or joint

venture in which any federal government corporation has

direct, equitable or beneficial ownership, such business

trust, partnership or joint venture shall not be included in

the definition of “person”), municipality, and public,

I ee ee a

45a

municipal, nonprofit or private corporation organized or

existing under the laws of this state or any state, and any

governmental agency or county of this state and any

department, agency or instrumentality of the executive,

legislative and judicial branches of the federal govern-

ment.

(d) Collector means a Person engaged in the

business of collecting Solid Waste for the purpose of

delivery to an Intermediate or Final Disposal Point.

(e) Disposal means the delivery of Solid Waste

to an Intermediate or Final Disposal Point.

(f) Hauler means a Person engaged in the trans-

portation of Solid Waste from a processing or recycling

center, or other Intermediate Disposal Point to an Inter-

mediate or Final Disposal Point.

(g) Remover means a Person engaged in contain-

ing or cleaning up solid waste sites.

(h) Operator means any Person owning or oper-

ating a landfill, transfer station, processing or recycling

center, incinerator, or any similar solid waste disposal

facility within the boundaries of Davidson County.

(i) Final Disposal Point means a location to

which Solid Waste is delivered which is intended to be

the final, permanent point of disposition, including but

not limited to, a landfill or ash landfill.

(j) Intermediate Disposal Point means a location

to which Solid Waste is delivered which is intended to be

non-permanent, including but not limited to, transfer

station, processing or recycling center, incinerator, or any

other similar facility.

46a

(k) License means permission granted by the

Metropolitan Government through the Director for the

collection, hauling, or removal of Solid Waste; or for

ownership or operation of any solid waste disposal facil-

ity pursuant to this regulation.

(1) Licensee means any Person holding a License.

SECTION II. SCOPE.

(a) No Person shall engage in business as a

Coliector, Hauler or Remover of Solid Waste, or shall own

or operate any solid waste disposal facility within the

boundaries of the Metropolitan Government, without

first securing a License.

(b) Disposal of all Solid Waste collected within

the boundaries of the Metropolitan Government shall be

at a site or sites determined by the Director to be (a)

appropriate under applicable federal, state and local laws

and regulations; (b) necessary to provide for safe and

sanitary processing and disposal of Solid Waste; and (c)

in the interests of efficient, economical operation of the

Metropolitan Government's solid waste management sys-

tem. The Director shall maintain a written register of such

sites. Failure to dispose of Solid Waste at site(s) thus

identified by the Director shall be cause for revocation or

suspension of a License issued pursuant to this regula-

tion.

Metropolitan Ordinance § 36-1-44 are incorporated herein

by reference.

ap te! mE: fA A A AN I OE TT OE TENN Kypis APR Hy eM werent

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Rah Eee

4 RAG NARS. Qi ce hees tem

47a

(d) The License required by these regulations

shall be in addition to the permit required by Metro-

politan Ordinance § 36-2-17.

SECTION III. APPLICATION FOR LICENSES.

Application. Any Person desiring to obtain such a

License must first submit an application to the Director.

The application shall contain the following information:

(1) Applicant’s name, business address and

telephone numbers.

(2) Proof of public liability insurance satisfac-

tory to the Metropolitan Government

issued by a company authorized to do busi-

ness in the State of Tennessee in the

amount of at least $500,000 for automobile

and general liability exposure for collec-

tors; at least $3,000,000 for haulers and

removers; and at least $10,000,000 for oper-

ators of landfills or other disposal facilities;

or such other limits as may be determined

necessary by the Director with the approval

of the Director of the Insurance and Safety

Division of the Metropolitan Department of

law to ensure the health, safety and welfare

of the citizens of Davidson County.

(3) Proposed hours of operation.

(4) Activity for which the applicant wishes to

be licensed.

(5) Such other and further information as the

director may require.

48a

SECTION IV. EFFECTIVE PERIOD.

The License will be valid for a period of one year and

must be renewed annually by submitting a new applica-

tion to the Director at least 30 days prior to the expiration

date of the current License.

SECTION V. ISSUANCE OF LICENSE.

(a) Following review of the information pro-

vided pursuant to Section III, the Director may issue a

License upon a finding that the applicant (1) has com-

plied with all applicable federal, state and local laws,

rules and regulations (2) has furnished proof of public

liability insurance (3) has operated and/or demonstrated

an ability to operate in a manner which is not injurious to

the public health, safety and welfare.

(b) Notification of approval or denial of an

application shall be provided to the applicant in writing.

If the applicant is denied issuance of a License, he/she

may request a hearing within ten (10) days following the

issuance of the denial letter. If, after further review, the

Director finds that a License should not be granted he

shall notify the applicant of his decision within ten (10)

days of the hearing. The Director’s decision shall be final;

but a denied applicant may reapply for a License at any

time.

SECTION VI. SUSPENSION OR REVOCATION OF

LICENSE.

(a) Failure to dispose of Solid Waste at site(s)

identified by the Director pursuant to Section II of this

49a

Regulation shall be cause for revocation or suspension of

a License issued pursuant to this regulation.

(b) The Director may suspend or revoke a

License if he finds the Licensee is (i) not complying with

any applicable federal, state or local laws, rules, or regu-

lations; or (ii) is operating in a manner injurious to the

public health, safety or welfare. At least fifteen (15) days

notice shall be given of any such suspension or revoca-

tion; provided, however, that a suspension or revocation

pursuant to subsection (ii) of this subsection may, in the

discretion of the Director, take effect immediately.

pension or revocation may, within 10 days of notification

thereof, request a hearing before the Director. The Direc-

tor shall schedule a hearing within 30 days of receiving a

request. If no timely request for a hearing is made, the

determination of the Director shall be final. Hearings

before the Director shall be informal and the Director will

render a written decision within 15 days of the close of

such a hearing. Hearings shall be scheduled only by the

Director and may be continued only with his consent.

SECTION VII. EXCEPTIONS.

If the Director finds that an immediate danger to the

public health, safety or welfare exists, he may issue a

temporary exemption from the licensing requirements to

any Person for a period of not more than 60 days. The

exemptions set out at Metropolitan Ordinance

§ 36-2-15(b), respecting private citizens not engaged in

the commercial collection, removal and/or disposal of

Solid Waste, are incorporated herein by reference. Except

50a

as provided by this section, there shall be no exemptions

from the licensing requirements of this regulation.

SECTION VIII. [Reserved].

SECTION IX. This regulation shall take effect the 2 day

of January, 1991.

/s/ Peter Heidenreich

Director of Public Works

Approved: /s/ Bill Boner

Mayor

Filed with Metropolitan Clerk,

this 20th day of December, 1990.

/s/ Marilyn S. Swing

Metropolitan Clerk

AMENDMENT TO PUBLIC WORKS REGULATION

ON COLLECTION AND DISPOSAL OF SOLID WASTE

The following amendments to the Metropolitan Gov-

ernment’s “Public Works Regulation on Collection and

Disposal of Solid Waste” are hereby adopted by the

Director of the Department of Public Works. These

amendments shall take effect the 1 day of April, 1993.

1. Section II (b) is amended by adding the following

language following the final sentence thereof:

Review of the Director’s determinations here-

under shall be pursuant to the provisions of

Section V(b) of this Regulation, unless such

5la

determination results in revocation or suspen-

sion of a License. If such determination results

in revocation or suspension of a License, review

shall be pursuant to Section VI(c) of this Regula-

tion.

2. The following is incorporated into the Regulation

as Section VIII.

Upon notice from the Director, work being per-

formed on any site within Metropolitan

Nashville and Davidson County contrary to the

provisions of this Regulation shall be imme-

diately stopped. Such notice shall be in writing

. and shall be given to the owner of the property

or to the person doing the work, and shall state

‘ the conditions under which the work may be

f resumed.

/s/ Marlin Keel

Director of Public Works

APPROVED: /s/ Philip N. Bredesen

Mayor

Filed with the Metropolitan Clerk this

10th day of March, 1993.

/s/ Marilyn S. Swing

Metropolitan Clerk

AMENDMENT NO. 2 TO PUBLIC WORKS

REGULATION ON THE COLLECTION AND

DISPOSAL OF SOLID WASTE

The following amendment to the Metropolitan Gov-

ernment’s “Public Works Regulation on Collection and

52a

Disposal of Solid Waste” is hereby adopted by the Direc-

tor of the Department of Public Works. This amendment

shall take effect the 15th day of May, 1994.

The following definition is added to Section I of the

Regulation as item (m):

(m) Documentation means any information,

records, and data requested or deemed neces-

sary by the Director to verify, support, or clarify,

to the satisfaction of the Director, any report,

fee, claim, or any other information that must be

submitted/reported to the Department of Public

Works by any Person pursuant to these Regula-

tions. Such Documentation includes but is not

limited to invoices, trip/routing/pull/manifest

tickets (that include County of origin of waste

and date and time of truck arrival at Disposal

Point), customer lists, scale weight tickets

(including gross, net, and tare weights of

trucks), truck sizes (volume capacity), and

dumpster box size, location, and service sched-

ules. Such Documentation shall be available to

the Metropolitan Government, upon request, for

audit and review during normal business hours.

The following is added to Section II of the Regulation as

items (e) and (f):

(e) Unless otherwise specifically authorized in

writing by the Director, all residential Solid

Waste collected within the boundaries of the

Metropolitan Government shall be disposed of

at the Nashville Thermal Transfer Corporation

(NTTC), Non-residential Solid Waste is not

required to be disposed of at the NTTC unless

designated for disposal there pursuant to the

following procedure:

(1)

(2)

(3)

53a

Any Collector of Solid Waste collected

within the boundaries of the Metro-

politan Government shall report the

amount of residential and non-residen-

tial Solid Waste collected each month

and the amounts of Solid Waste deliv-

ered to each Final Disposal Point and/

or Intermediate Disposal Point. Each

Collector shall submit the monthly

report to the Director by the Fifteenth

(15th) day of the following month on

forms provided by the Department of

Public Works. Each report must be sup-

ported, upon request, with Documenta-

tion satisfactory to the Director.

At least quarterly, the Department of

Public Works shall calculate a pro rata

estimate of the amount of non-residen-

tial Solid Waste collected by each Col-

lector, using the best available data.

The NTTC shall notify the Director, at

least two (2) weeks in advance, of its

estimated need for Solid Waste for each

operating day of the corresponding

week. The Department of Public Works

shall notify each Collector, at least one

(1) week in advance, of its estimated

pro rata share of Solid Waste, which

may include an amount of non-residen-

tial Solid Waste if any, necessary for

disposal at the NTTC for the following

~ week. Such estimated pro rata shares

shall be binding upon all Collectors,

unless a Collector demonstrates good

cause to the satisfaction of the Director

for a revision or an exception.

54a

(f) An Operator shall report the amount of all

Solid Waste received each month at the Opera-

tor’s facility that was generated within the

boundaries of the Metropolitan Government

and the amount of all Solid Waste received each

month at the Operator’s facility that was gener-

ated outside the boundaries of the Metropolitan

Government. Each Operator shall submit the

monthly report to the Director by the fifteenth

(15th) day of the following month on forms

provided by the Department of Public Works.

Each report must be supported, upon request,

with Documentation satisfactory to the Director.

/s/ Marlin Keel APPROVED:

Director of Public /s/ Philip N. Bredesen

Works Mayor

Filed with the Metropolitan /s/ Marilyn S. Swing

Clerk this Metropolitan Clerk

4th day of May, 1994.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.