Dive Brief:

• Republic Services is battling a group of local governments in a Michigan court over its acceptance of hazardous waste at its Wayne Disposal landfill. The governments sued last week to halt the shipment of radioactive waste from New York to the site.
• Last week, a judge issued an injunction forcing the U.S. Army Corps of Engineers to pause its plan to ship the waste to Michigan, causing the federal agency to also halt other shipments of waste to the site. An updated injunction filed by the judge on Tuesday made clear other waste not at issue in the suit could still be brought to Wayne Disposal.
• The issue is the latest challenge to long-standing legal protections of the interstate transit of waste, something the U.S. Supreme Court said was covered by the U.S. Constitution in 1992. The issue gained national attention last year following the cleanup of the East Palestine, Ohio, train derailment site.

Dive Insight:

Republic Services acquired the Wayne Disposal site through its purchase of US Ecology in 2022. Located in Van Buren Township, the site was first established in 1970 and is currently operating on an expired permit, which Republic is in the process of updating. Michigan law allows the state to continue operating within the parameters of its last permit as it continues the update process.

The waste at issue comes from the Niagara Falls Storage Site and dates back to the Manhattan Project, when uranium was extracted from ore at the site and remaining residue was stored there. The waste that was scheduled to be shipped to Wayne Disposal constitutes roughly 6,000 cubic yards of contaminated soil and concrete from outside the main structure that housed residues, according to the Detroit Free Press. The Army Corps of Engineers has described the waste as having low radioactivity, and said the Wayne Disposal site has been accepting such waste for years from various sites around the country.

Republic has also argued to public officials and in a recent statement that the waste it's planning to accept from the site "does not pose a risk to public health or the community."

"Wayne Disposal Inc. has been safely receiving and managing technologically enhanced naturally occurring radioactive material (TENORM) for many years," Melissa Quillard, senior manager of external communications, said in an emailed statement. "The landfill meets or exceeds all regulations and is designed to safely manage this type of material, which can be generated through a variety of industrial and other processes."

Michigan officials, too, have assured the public that the waste accepted at the Wayne Disposal site will be less than 50 picocuries per gram, a unit of measurement for radioactivity, which is a stricter limit than the law requires, according to the Free Press. But locals have reportedly been frustrated by a lack of communication regarding what waste their communities must accept, and worry one spilled truck could cause major problems for the area.

The municipalities of Belleville, Romulus, Canton Township and Van Buren Township filed the initial lawsuit against Republic Services seeking a pause on the shipment plan. The mayor of Belleville did not respond to a request for comment. Other public officials have also weighed in — U.S. Rep. Debbie Dingell, D-Mich., has pressed Republic Services and the Army Corps of Engineers to answer questions related to the plan. A state lawmaker has introduced a bill seeking to ban the disposal of radioactive waste in Michigan, echoing a move New York has also taken.

David Biderman, former general counsel of the National Waste & Recycling Association and head of Biderman Consulting, said it's unclear what standing the towns have to halt the waste shipments. The ability to transport waste across state lines has been affirmed by the Supreme Court, which ruled in a 1992 case involving a WM subsidiary and Alabama that jurisdictions cannot add an extra fee on out-of-state waste due to the commerce clause.

"Many of the state and local officials are unaware of these decisions and the circumstances that led to them," Biderman said in an interview. "We don't want 50 states putting up walls preventing the movement of waste materials across state lines."

But he noted that the issue has become more contentious due in part to the Norfolk Southern derailment in East Palestine. The ensuing cleanup prompted objections from officials in Michigan, Baltimore and elsewhere who did not want the waste transported to their vicinity. Eventually the U.S. EPA weighed in with a memo reminding officials of the legal right to transport the waste.

Biderman said it has become "a trend amongst some local officials and apparently at least one judge to forget about the sanctity of the dormant commerce clause” which protects waste shipments. He said if the case continues to pose a challenge for Republic, other national voices could begin to weigh in.

Wayne County Judge Kevin Cox, who is overseeing the case, amended his initial injunction to allow the Army Corps of Engineers to resume disposal of waste from a site in Ohio at the Wayne Disposal site, per the Associated Press. Hearings are set to begin in early October.