Kansas Attorney General Opinion 1992-111

ROBERT T. STEPHAN
ATTORNEY GENERAL August 18, 1992
ATTORNEY GENERAL OPINION NO. 92-111
The Honorable Richard L. Bond
State Senator, 8th District
9823 Nall
Overland Park, Kansas 66207
Re: Public Health -- Solid and Hazardous Waste; Solid
Waste -- Restriction or Prohibition Against Solid
Waste Generated Outside Solid Waste Disposal Plan
Area; Tonnage Fee on Solid Waste Generated Outside
State; Special Charge on Solid Waste Generated
Outside Solid Waste Disposal Plan Area
Synopsis: Because the legislative means chosen to accomplish
a legitimate public purpose (i.e. minimizing the
accumulation of solid waste) discriminates against
articles of commerce (i.e. solid waste), L. 1992,
ch. 316, new sections 10, 11 and 12 must be
characterized as economic protectionist measures
which impermissibly burden interstate commerce.
In our opinion, the state of Kansas would not be
able to establish that L. 1992, ch. 316, new
sections 10, 11 and 12 further public health,
safety and welfare concerns that cannot be
adequately served by nondiscriminatory
alternatives. Cited herein: K.S.A. 65-3401; L.
1992, ch. 316, §§ 10, 11, 12.

Dear Senator Bond:
As state senator for the eighth district, you inquire whether
certain 1992 amendments to the Kansas solid and hazardous
waste act, K.S.A. 65-3401 et seq., may be subject to
challenge under the interstate commerce clause of the United
States constitution. You ask us to evaluate the
constitutionality of L. 1992, ch. 316, new sections 10, 11
and 12 in light of two recent United States Supreme Court
decisions which found impermissible discrimination against
interstate commerce in a Michigan solid waste statutory
provision and in an Alabama hazardous waste statutory
provision.
Among other amendments to the Kansas solid and hazardous waste
act, L. 1992, ch. 316 contains the following new sections:
"New Sec. 10. On and after the
effective date of this act and upon
amendment of the applicable solid waste
management plan, any county having a
county solid waste management plan and any
group of counties cooperating in a
regional solid waste management plan may
restrict or prohibit solid waste generated
outside the area covered by the plan from
being disposed of at any solid waste
disposal area located within the area
covered by the plan.
"New Sec. 11. (a) Except as provided
by subsection (b), on and after July 1,
1992, each county in this state shall
impose, in addition to any other fee
provided for by law, a solid waste tonnage
fee of $25 for each ton or equivalent
volume of solid waste, generated outside
this state and disposed of at any solid
waste disposal area located in such
county. Such fee shall be collected by
the county and deposited in a special fund
in the county treasury, to be used only
for costs of closure and postclosure •
cleanup of solid waste disposal areas in
the county.

"(b) The board of county commissioners of
any county by unanimous vote may modify,
discontinue, reinstate or determine not to
impose the fee provided for by subsection
(a).
"New Sec. 12. (a) Except as provided
by subsection (c), on and after July 1,
1993, any county or group of counties
operating a solid waste disposal area
shall levy a special charge on solid waste
generated outside such county or counties
and deposited at such disposal area. Such
charge may be higher than charges levied
on solid waste generated within the county
or counties. The revenue from such charge
may be used by the county or group of
counties for the development and
implementation of its solid waste
management plan and the costs of closure
and postclosure cleanup of solid waste
disposal areas within the county or group
of counties."
"(c) The board of county commissioners of
any county by unanimous vote may determine
not to impose the fee provided for by
subsection (a) • • • ."
(For the sake of linguistic simplicity, "solid waste generated
outside a county having a solid waste management plan or group
of counties cooperating in a regional solid waste management
plan" will be referred to as "out-of-county generated solid
waste.")
New section 10 authorizes subdivisions of the state (i.e. a
county or group of counties) to restrict or prohibit
out - of-county generated solid waste from being disposed of
within the boundaries of such subdivisions. Absent
affirmative action by county commissioners, new section 11
requires subdivisions of the state to impose a $25 tonnage fee
for disposal of solid waste generated outside the state.
Absent affirmative action by county commissioners, new section
12 requires subdivisions of the state to impose a special
charge for disposal of out-of-county generated solid waste.

On June 1, 1992, the United States Supreme Court announced two
decisions holding that Michigan's import waste restrictions
and Alabama's disposal fee on hazardous wastes generated
outside the state violated the interstate commerce clause.
Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department
of Natural Resources, 504 U.S. , 112 S.Ct. 2019, 119
L.Ed.2d 139 (1992); Chemical Waste Management, Inc. v. Hunt,
504 U.S. , 112 S.Ct. 2009, 119 L.Ed.2d 121 (1992).
Fort Gratiot addressed the waste import restrictions in
Michigan's solid waste act which prohibited private landfill
operators from disposing of solid waste generated in another
county, state, or country unless explicitly authorized in the
receiving county's plan. A private landfill operator had
applied to St. Clair county for authority to accept
out-of-state waste at his landfill. The denial of such
authorization effectively prevented him from receiving any
solid waste that did not originate in St. Clair county. He
contended that requiring a private landfill operator to limit
its business to the acceptance of local waste constituted
impermissible discrimination against interstate commerce. The
United States Supreme Court agreed.
The issue in Fort Gratiot was whether a prohibition
against disposal of out-of-county solid waste, unless
explicitly authorized, constituted impermissible
discrimination against interstate commerce. Variations on
that issue are presented by your inquiry relating to L. 1992,
ch. 316, new section 10, i.e. whether authority to
restrict or prohibit out - of - county generated solid waste
constitutes impermissible discrimination against interstate
commerce, and to L. 1992, ch. 316, new section 12, i.e.
whether the levy of a special disposal charge on out-of-county
generated solid waste constitutes impermissible discrimination
against interstate commerce.
Chemical Waste involved a commercial hazardous waste land
disposal facility located in Emelle, Alabama which received
in-state and out-of-state wastes. An Alabama law imposed an
additional fee on hazardous waste generated outside Alabama,
but disposed of at commercial facilities in Alabama. The
owner of the facility sought to enjoin enforcement of the law
as an impermissible discrimination against interstate
commerce. The United States Supreme Court granted the relief
sought.
The issue in Chemical Waste was whether the additional
disposal fee imposed by Alabama on hazardous waste generated

outside, but disposed of at a commercial facility inside
Alabama constituted impermissible discrimination against
interstate commerce. Your inquiry also presents a variation
of that issue in relation to L. 1992, ch. 316, new section 11,
i.e. whether the assessment of a $25 tonnage fee on
out-of-state generated solid waste constitutes impermissible
discrimination against interstate commerce.
While the issues you present vary slightly from those in Fort
Gratiot and Chemical Waste, the court's rationale and
holdings in those cases are instructive. In both cases, the
court initially noted that the framework for its analyses was
provided by Philadelphia v. New Jersey, 437 U.S. 617, 98
S.Ct. 2531, 57 L.Ed.2d 475 (1978), which held that a New
Jersey law prohibiting the importation of most solid or liquid
waste which originated or was collected outside the
territorial limits of the state violated the interstate
commerce clause of the United States constitution. There the
court had established that "solid waste, even if it has no
value, is an article of commerce." (FN3) 437 U.S., at
622-623, 98 S.Ct., at 2534, 2525. In Fort Gratiot the
court further explained:
"Whether the business arrangements between
out-of-state generators of waste and the
Michigan operator of a waste disposal site
are viewed as 'sales' of garbage or
'purchases' of transportation and disposal
services, the commercial transactions
unquestionably have an interstate
character. The Commerce Clause thus
imposes some constraints on Michigan's
ability to regulate these transactions."
504 U.S., at , 112 S.Ct., at 2023,
119 L.Ed.2d, at 147.
Having affirmed the interstate character of solid waste, the
Fort Gratiot court then quoted Philadelphia v. New
Jersey regarding the "negative" or "dormant" aspect of the
commerce clause which prohibits states from:
"'advan(cing) their own commercial
interests by curtailing the movement of
articles of commerce, either into or out
of the state.' A state statute that
clearly discriminates against interstate
commerce is therefore unconstitutional
'unless the discrimination is demonstrably

justified by a valid factor unrelated to
economic protectionism.' (Citations
omitted)." 504 U.S. at , 112 S.Ct.
at 2023, 119 L.Ed.2d at 147.
Both Fort Gratiot and Chemical Waste cited the following
test as determinative of interstate commerce clause violations:
"New Jersey's prohibition on the
importation of solid waste failed this
test: The evil of protectionism can
reside in legislative means as well as
legislative ends. Thus, it does not
matter whether the ultimate aim of ch.
363 is to reduce the waste disposal costs
of New Jersey residents or to save
remaining open lands from pollution, for
we assume New Jersey has every right to
protect its residents' pocketbooks as well
as their environment. And it may be
assumed as well that New Jersey may pursue
those ends by slowing the flow of all
waste into the State's remaining
landfills, even though interstate commerce
may incidentally be affected. But
whatever New Jersey's ultimate purpose, it
may not be accompanied [sic] by
discriminating against articles of
commerce coming from outside the State
unless there is some reason, apart from
their origin, to treat them
differently. . . . Philadelphia v. New
Jersey, 437 U.S., at 626-627, 98 S.Ct. at
2536-2537." Fort Gratiot, 504 U.S.,
at , 112 S.Ct., at 2023-2024, 119
L.Ed.2d, at 147. Chemical Waste, 504
U.S. at , 112 S.Ct. at 2024, 119
L.Ed.2d at 147. (Citation omitted).
Regarding the Michigan law, the court in Fort Gratiot
stated:
"The Waste Import Restrictions enacted by
Michigan authorize each of its 83 counties
to isolate itself from the national
economy. Indeed, unless a county acts
affirmatively to permit other waste to
enter its jurisdiction, the statute

affords local waste producers complete
protection from competition from
out-of-state waste producers who seek to
use local waste disposal areas. In view
of the fact that Michigan has not
identified any reason, apart from its
origin, why solid waste coming from
outside the county should be treated
differently from solid waste within the
county, the foregoing reasoning would
appear to control the disposition of this
case." 504 U.S., at , 112 S.Ct., at
2024, 119 L.Ed.2d, at 148.
Further, regarding the argument that the Michigan statute
treated waste from other Michigan counties no differently than
waste from other states and therefore did not discriminate
against interstate commerce, the Fort Gratiot court had
this to say:
"We disagree, for our prior cases teach
that a State (or one of its political
subdivisions) may not avoid the strictures
of the Commerce Clause by curtailing the
movement of articles of commerce through
subdivisions of the State, rather than
through the State itself." 504 U.S. at
, 112 S.Ct., at 2024, 119 L.Ed.2d, at
148.
In addition, regarding the county option provision of the
Michigan law, the court in Fort Gratiot stated:
"Nor does the fact that the Michigan
statutes allow individual counties to
accept solid waste from out of state
qualify its discriminatory
character. . . . [S]t. Clair County's
total ban on out-of-state waste is
unaffected by the fact that some other
counties have adopted a different policy.
"In short, neither the fact that the
Michigan statute purports to regulate.
intercounty commerce in waste nor the
fact that some Michigan counties accept
out-of-state waste provides an adequate
basis for distinguishing the case from

Philadelphia v. New Jersey." 504 U.S., at
, 112 S.Ct., at 2025-2026, 119
L.Ed.2d, at 149.
The state of Michigan and St. Clair county argued that the
Michigan solid waste management act constituted a
comprehensive health and safety regulation rather than
"economic protectionism" of the state's limited landfill
capacity. The Fort Gratiot court determined that while
the act generally could be fairly characterized as health and
safety regulations with no protectionist purpose, the same
could not be said with respect to the waste import
restrictions themselves.
"Because those provisions unambiguously
discriminate against interstate commerce,
the state bears the burden of proving that
they further health and safety concerns
that cannot be adequately served by
nondiscriminatory alternatives.
Michigan and St. Clair County have not
met this burden." 504 U.S., at , 112
S.Ct., at 2027, 119 L.Ed.2d, at 151.
To address this burden, Michigan and St. Clair county
asserted that the restrictions of waste import were necessary
to enable individual counties to make adequate plans for the
safe disposal of future waste. While the court in Fort
Gratiot acknowledged that such forecasts may be an
indispensable part of a comprehensive waste disposal plan, it
found that:
"Michigan could attain that objective
without discriminating between in- and
out-of-state waste. Michigan could, for
example, limit the amount of waste that
landfill operators may accept each year.
See Philadelphia v. New Jersey, 437
U.S., at 626, 98 S.Ct., at 2536-2537.
There is, however, no valid health and
safety reason for limiting the amount of
waste that a landfill operator may accept
from outside the State, but not the amount
that the operator may accept from inside
the State. Of course, our conclusion
would be different if the imported waste
raised health or other concerns not

presented by Michigan waste." 504 U.S.,
at , 112 S.Ct., at 2027, 119 L.Ed.2d,
at 152.
The Fort Gratiot court held:
"[t]he Waste Import Restrictions
unambiguously discriminate against
interstate commerce and are appropriately
characterized as protectionist measures
that cannot withstand scrutiny under the
Commerce Clause." 504 U.S., at , 112
S.Ct., at 2028, 119 L.Ed.2d, at 152.
Alabama also attempted to meet the burden of demonstrating
that, although the additional fee for out-of-state hazardous
waste discriminated against interstate commerce, such was
justified in terms of local benefits and the unavailability of
nondiscriminatory alternatives. Four bases were presented:
"(1) protection of the health and safety
of the citizens of Alabama from toxic
substances; (2) conservation of the
environment and the state's natural
resources; (3) provision for compensatory
revenue for the costs and burdens that
out - of - state waste generators impose by
dumping their hazardous waste in Alabama;
(4) reduction of the overall flow of
wastes traveling on the state's highways,
which flow creates a great risk to the
health and safety of the state's
citizens." 504 U.S., at , 112 S.Ct.,
at 2014, 119 L.Ed.2d, at 133.
The Chemical Waste court, however, disposed of Alabama's
purported justification thus:
"'[A]lthough the Legislature imposed an
additional fee of $72.00 per ton on waste
generated outside Alabama, there is
absolutely no evidence before this Court
that waste generated outside Alabama is
more dangerous than waste generated in
Alabama. The Court finds under the facts
of this case that the only basis for
additional fee is the origin of the
waste.' App. to Pet. for Cert.

83a-84a. In the face of such findings,
invalidity under the Commerce Clause
necessarily follows, for 'whatever
(Alabama's) ultimate purpose, it may not
be accomplished by discriminating against
articles of commerce coming from outside
the State unless there is some reason,
apart from their origin, to treat them
differently.'" (citations omitted). 504
U.S., at , 112 S.Ct., at 2014-2015,
119 L.Ed.2d, at 133.
Turning now to the Kansas solid waste act amendments, under
Fort Gratiot and Chemical Waste, the first question is
whether L. 1992, ch. 216, new section 10, 11 or 12 curtails
the movement of solid waste into or out of the state or its
political subdivisions.
L. 1992, ch. 316, new section 10 specifically authorizes
subdivisions of the state (any county or group of counties) to
restrict or prohibit out-of-county generated solid waste.
While the Michigan waste import restrictions were mandatory
absent explicit county authorization, the authorized Kansas
restriction or prohibition against disposal of out-of-county
generated solid waste are permissive county options. However,
in our opinion, this is not a relevant distinction as L. 1992,
ch. 316, new section 10, like the Michigan waste import
restrictions, authorizes each county or group of counties "to
isolate itself from the national economy." Like the Michigan
waste import restrictions, L. 1992, ch. 316, new section 10
potentially "affords local waste producers complete protection
from competition from out-of-state producers who seek to use
local waste disposal areas." 504 U.S., at , 112 S.Ct.,
at 2024, 119 L.Ed.2d, at 148. In our opinion, therefore, L.
1992, ch. 316, new section 10 would curtail the movement of
solid waste into the state and therefore discriminates against
interstate commerce.
L. 1992, ch. 316, new section 11 requires political
subdivisions of the state to impose a $25 tonnage fee on
out-of-state generated solid waste. In our opinion, this
provision, which clearly is a tax imposed on interstate
commerce alone, would act to curtail the movement of articles
of commerce (solid waste) into the state. And as made all too
clear in Fort Gratiot, the fact that this provision allows
individual counties to accept solid waste from out of state
does not qualify its discriminatory character. Accordingly,

this provision likewise discriminates against interstate
commerce.
L. 1992 ch. 316, new section 12 requires political
subdivisions of the state to levy a special charge on
out-of-county generated solid waste. (Since out-of-state
generated solid waste also qualifies as out-of-county
generated waste, conceivably the "special charge" could be
levied on out-of-state generated solid waste in addition to
the $25 tonnage fee.) In our opinion, this provision would
likewise curtail the movement of articles of commerce (solid
waste) into subdivisions of the state, i.e. its counties.
We acknowledge that the goal of curtailing the amount of solid
waste accumulating in Kansas landfills may well serve
legitimate public health and safety purposes. However, as
reiterated in Fort Gratiot, "The evil of protectionism can
reside in legislative means as well as legislative ends." 504
U.S., at , 112 S.Ct., at 2024, 119 L.Ed.2d, at 147. In
other words, although the purpose of a statute may be
legitimately unrelated to economic protectionism, the
interstate commerce clause is violated if the means of
accomplishing that purpose discriminate against articles of
commerce. In our opinion, because the legislative means of
accomplishing a legitimate public purpose discriminate against
articles of commerce, L. 1992, ch. 316, new sections 10, 11
and 12 must be characterized as economic protectionist
measures which impermissibly burden interstate commerce.
Given that L. 1992, ch. 316, new sections 10, 11 and 12
discriminate against interstate commerce, the second question
under Fort Gratiot and Chemical Waste is whether public
health, safety and welfare concerns can be adequately served
by nondiscrminatory alternatives. It is difficult for us to
believe that nondiscriminatory alternatives do not exist.
Regarding L. 1992, ch. 316, new section 10, statutory
authorization to restrict or prohibit the amount of solid
waste without regard to its origin may be enacted. Regarding
L. 1992, ch. 316, new section 11, to fund the costs of
closure and postclosure cleanup of solid waste disposal
areas, a statutory requirement to assess a tonnage fee on all
solid waste deposited in disposal areas without regard to its
origin may be enacted. Regarding L. 1992, ch. 316, new
section 12, to fund the development and implementation of
solid waste management plans and the costs of closure and
postclosure of cleanup of solid waste disposal areas, a
statutory requirement to levy a "special charge" on all solid

waste deposited in disposal areas without regard to its origin
may be enacted.
Chemical Waste suggested other nondiscriminatory
alternatives - a per-mile tax on all vehicles transporting
(hazardous) waste across state roads or an evenhanded cap on
the total tonnage landfilled at disposal areas. Other
nondiscriminatory alternatives may also exist.
In our opinion, the state of Kansas would not be able to
establish that L. 1992, ch. 316, new sections 10, 11 and 12
further public health, safety and welfare concerns that cannot
be adequately served by nondiscriminatory alternatives.
•
In conclusion, it is our opinion that a constitutional
challenge under the interstate commerce clause to L. 1992,
ch. 316, new sections 10, 11 and 12 would be successful.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Camille Nohe
Assistant Attorney General
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