Bill Penny
Bill Penny

Bill Penny is a Member in the Nashville office of Stites & Harbison. He is a member of the firm's Environmental, Natural Resources and Energy Service Group as well as the Green Industry Practice Group. Bill has more than 25 years experience in environmental law. You can contact him at william.penny@stites.com or by phone at 615-782-2308.

Bill Penny
Christina Davidow

Christina Bodewig Davidow is an Associate in the Nashville office of Stites & Harbison and a LEED Accredited Professional. She is a member of both the Environmental, Natural Resources and Energy Service Group as well as the Green Industry Practice Group. She may be contacted at christina.davidow@stites.com or by phone at 615-782-2323.

tennessee

CAN UNITED HAULERS BE USED TO IMPOSE INVALID TIP FEES RETROACTIVELY?

11.04.09 1:52 PM
posted by

On October 5, 2009, the Tennessee Supreme Court granted the Metropolitan Government of Nashville and Davidson County’s (Metro’s) request for permission to review the Court of Appeals recent decision, Gray's Disposal Co. v. Metro. Gov't of Nashville, 2009 Tenn. App. LEXIS 304 (Tenn. Ct. App. Feb. 23, 2009).  This case is another iteration of a longstanding effort by Metro to collect tipping fees owned by Gray’s Disposal for disposal at the now defunct Nashville Thermal Transfer Corporation’s, waste to energy incinerator (“Thermal”).  The Supreme Court is interested in reviewing this case most likely because of Metro’s position that “intervening change in controlling authority” nullifies the basis of earlier court decisions that concluded that Gray’s did not owe the fee.

In the 1990’s Metro imposed a requirement that all garbage collected in Metro had to be disposed of at Thermal, a governmental corporation.  Thus Gray’s was required to take garbage it collected to Thermal.  When they were billed for tipping fees, they paid some, but later paid nothing.  In 1997, the 6th Circuit ruled that the flow control ordinance was unconstitutional because it discriminated against interstate commerce, even though Thermal was a public entity.  See  Waste Mgmt., Inc. of Tenn. v. Metro. Gov't of Nashville & Davidson County, 130 F.3d 731, 736 (6th Cir. 1997.  In 2002, the Court of Appeals determined that Metro could not collect the tipping fees levied after 1997 relying on that case.  The litigation proceeded to the remand stage and in April 2007, just prior to the hearing in the latest chapter of this saga, the Supreme Court of the United States issued an opinion, United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 127 S. Ct. 1786, 167 L. Ed. 2d 655 (2007), which found that a local government could impose flow control where the favored entity was owned by the government.  Metro argued that the United Haulers case constituted an intervening change in controlling authority, thus nullifying the 2002 decision.  The Court of Appeals ruled against Metro.

The implications of this case are somewhat curious.  Metro actually cured the defective ordinance in 1998, but the question remains as to whether they could use the change in controlling authority to go against other haulers that did not pay the tip fee during that time period.  The results could be interesting.

 

Leave a Comment

Comments!

    No comments yet. You should leave one!

Leave a Comment!