Full opinion text
MEMORANDUM OPINION AND ORDER STAMP, District Judge. I. Introduction In the early 1990s, the West Virginia Legislature enacted various statutes seeking to address certain environmental and other concerns dealing with solid waste collection, disposal and management. West Virginia Senate Bill 18, effective October 18, 1991 (hereinafter “S.B. 18”), and Senate Bill 288, effective April 18, 1993 (hereinafter “S.B. 288”) contain provisions governing the solid waste landfilling and sewage sludge compacting industries in West Virginia. Specifically, S.B. 18 outlines the requirements for obtaining a permit to open and/or operate a commercial solid waste facility in West Virginia, sets forth solid waste assessments to be imposed upon in-state and out-of-state solid waste landfills in West Virginia, and places limitations upon the amount of solid waste a commercial facility can dispose of on the .land each month. S .B. 288 requires a solid waste facility to include sewage sludge composting facilities and non-landfilled sewage sludge in the amount of solid waste that is subject to the monthly limitations announced in S.B. 18, and it imposes solid waste assessments upon unland-filled sewage sludge. Although most of the provisions of S.B. 18 and S.B. 288 were subsequently repealed and reenacted in virtually identical form by the West Virginia legislature, the differential solid waste assessments were repealed in their entirety. Plaintiffs are corporations engaged in the commercial solid waste landfilling and sewage sludge composting industries in West Virginia. As part of their operations, plaintiffs transport solid waste generated outside West Virginia to its sites inside West Virginia. Additionally, plaintiffs import sewage sludge generated in locations outside West Virginia to its facilities inside West Virginia for composting and resale. Plaintiffs operate the only permitted sewage sludge composting facilities in West Virginia. After the enactment of S.B. 18 and S.B. 288, plaintiffs were required to include the sewage sludge composted at their facilities in the computation of “solid waste.” Further, plaintiffs were subject to a “tonnage cap” on the amounts of solid waste, including sewage sludge, that their facilities could receive each month. Plaintiffs were required to pay solid waste assessments, including additional assessments for wastes imported from out-of-state, on solid waste landfilled and on sewage sludge composted each month. Additionally, the enactments required all commercial landfills to first meet local solid waste disposal needs and required permitted solid waste authorities to amend commercial landfill permits to ensure that the present and future needs of the local area were met. Finally, the statutes necessitated that plaintiffs meet strict requirements, including administrative approvals and voter referenda, before enlarging, expanding or opening new solid waste and sewage sludge facilities. Because of these changes to the West Virginia Code, plaintiffs filed suit against defendants in this Court alleging that the newly-enacted statutes violated the Commerce Clause, Due Process Clause, and Equal Protection Clause of the United States Constitution and that they violated plaintiffs’ civil rights under 42 U.S.C. § 1983. This Court found that it had jurisdiction over the matter and preliminarily enjoined defendants from enforcing these statutes on the ground that the statutes violated the Commerce Clause. Plaintiffs seek an order that declares portions of S.B. 18 and S.B. 288, and the resulting codifications dealing with solid waste and sewage sludge, to be unconstitutional; enjoins defendants from enforcing the unconstitutional provisions; compels the state to refund fees paid pursuant to the differentiated assessment statutes; and awards plaintiffs their reasonable fees and costs incurred in prosecuting this action pursuant to 42 U.S.C. § 1988. II. Procedural History On November 4, 1993, plaintiffs Valero Terrestrial Corporation (“Valero”), Lacka-wanna Transport Company (“Lackawanna”), and Solid Waste Services, Inc., doing business as J.P. Mascaro & Sons (“SWS”), filed a complaint for declaratory judgment against defendants: The Honorable David Callaghan, Director, Division of Environmental Protection and the Department of Labor, Commerce and Environmental Resources of the State of West Virginia; The Honorable John Ranson, Secretary, Department of Labor, Commerce and Environmental Resources of the State of West Virginia; The Honorable George Max Robertson, Chief of the Division of Waste Management for the Division of Environmental Protection; The Public Service Commission of the State of West Virginia; The Honorable James H. Paige, Secretary, Department of Tax and Revenue of the State of West Virginia; and The Honorable Darrell V. McGraw, Jr., Attorney General of the State of West Virginia. On October 27, 1995, Laidley Eli McCoy was substituted for David Callaghan, and B.F. “Cap” Smith was substituted for George Max Robertson. Additionally, on January 19, 1996, this Court entered an order dismissing John Ranson from this action. On November 4, 1993, plaintiffs filed a motion for a temporary restraining order and a motion for a preliminary injunction requesting that this Court enjoin defendants from enforcing various provisions of the West Virginia Code. On November 15, 1993, this Court granted plaintiffs’ motion for a temporary restraining order and scheduled a hearing on the motion for a preliminary injunction. After a number of continuances, this Court conducted a six-day preliminary injunction hearing. On September 28,1995, this Court granted plaintiffs’ motion for a preliminary injunction on the basis that the statutes challenged by plaintiffs were unconstitutional. Further, this Court denied defendants’ motion to compel the refund of certain fees paid by plaintiff and granted plaintiffs their reasonable attorney’s fees in bringing this action. In a separate order entered the same day, this Court resolved a number of outstanding issues, including denying the motion of the Secretary of the Department of Tax and Revenue to dismiss plaintiffs’ tax related claims. Subsequent to the September 28, 1995 orders, the defendants filed motions requesting that this Court vacate, reconsider or clarify its preliminary injunction order. On December 14, 1995, this Court entered an order that granted the Public Service Commission’s motion for clarification and amendment of the judgment; granted defendant Callaghan and Robertson’s motion for clarification; denied Paige’s motion for reconsideration; denied McGraw’s motion to vacate; denied Callaghan, Robertson and the Public Service Commission’s motion to stay the preliminary injunction order; denied the defendants’ joint motion to dismiss the pleadings; stayed the award of attorney’s fees pursuant to 42 U.S.C. § 1988; and determined the amount of sanctions to be paid by attorney Larry Harless. The order of clarification indicated that the preliminary injunction order was not a final determination on the constitutionality of the challenged statutes and clarified certain limitations on the preliminary injunction order. Additionally, the order directed the parties to submit recommendations as to the type and amount of bond to be posted by plaintiffs. On January 19,1996, this Court entered an order setting plaintiffs’ bond at $50,000.00. On January 29, 1996, plaintiffs posted the $50,000.00 bond. This Court then entered a scheduling order setting deadlines for discovery and for the filing of dispositive motions. After a number of discovery disputes and continuances of the discovery and motion deadlines, the parties filed a number of dis-positive motions as listed below: 1. On July 22,1996, defendant Paige filed a motion to dismiss Count 1(a)(1) of the complaint for lack of subject matter jurisdiction. On August 6, 1996, plaintiffs filed a response to that motion. On August 13, 1996, defendant Paige filed a reply in support of his motion. 2. On July 22, 1996, plaintiffs filed a motion for entry of declaratory judgment and permanent injunction. On September 27, 1996, defendant Public Service Commission filed a response to plaintiffs’ motion. Also on September 27, 1996, defendants McCoy and Smith filed a response to plaintiffs’ motion. On October 2, 1996, plaintiffs filed a reply to defendants McCoy and Smith’s response. On October 4,1996, plaintiffs filed a reply to the response of the Public Service Commission. On December 13, 1996, the Public Service Commission filed a supplemental response to the declaratory judgment and permanent injunction motion. Further, on December 13, 1996, plaintiffs filed an additional responsive memorandum regarding defendants’ dormant commerce clause contentions. Finally, on December 16, 1996, defendants Paige and McGraw filed a response to plaintiffs’ motion. 3. On July 23, 1996, defendants McCoy and Smith filed a motion for partial summary judgment. On August 1,1996, plaintiffs filed a response to that motion. On October 4, 1996, defendants McCoy and Smith filed a reply in support of their motion. 4. On July 23,1996, defendant Paige filed a motion for summary judgment on all claims pertaining to the constitutionality of the state’s solid waste disposal taxes. On August 6, 1996, plaintiffs filed a response to the motion. On October 7, 1996, defendant Paige filed a reply in support of his motion. 5. On July 23, 1996, defendants McGraw and Paige filed a motion to dismiss plaintiffs’ complaint on the basis of “unclean hands.” Subsequently, a corrected courtesy copy of the motion was submitted to this Court. On August 6, 1996, plaintiffs filed a response in opposition to the motion. No reply was filed. 6. On July 23, 1996, defendant Public Service Commission filed a motion for summary judgment on the constitutionality of West Virginia’s certificate of need statute, of West Virginia’s legislatively established tonnage caps, and of the Commission’s independent statutory authority to impose tonnage caps. On August 1, 1996, plaintiffs filed a response to that motion. On October 4,1996, defendant Public Service Commission filed a reply in support of its motion. Subsequently, on December 24, 1996, the Public Service Commission filed a supplemental reply memorandum. On March 21, 1997, the Public Service Commission filed a second supplemental memorandum in support of its motion. Finally, on April 2,1997, plaintiffs filed a response to the supplemental memorandum. 7. On July 23, 1996, defendant Public Service Commission filed a motion for the modification of this Court’s September 28, 1995 and December 14, 1995 orders to remove the Commission from the enjoined defendants. Additionally, on July 23, 1996, defendant Public Service Commission filed a motion for judgment on the pleading or summary judgment on the issue of this Court’s lack of jurisdiction over the Public Service Commission. On July 29, 1996, plaintiffs filed a response to the Public Service Commission’s motions. Finally, on October 4, 1996, the Public Service Commission filed a reply in support of its motions. 8. On September 4,1996, plaintiffs filed a motion to substitute the real party in interest or, in the alternative, to dismiss defendant Public Service Commission from this action. On September 19, 1996, the Public Service Commission filed a response to the motion. No reply has been filed. 9. On July 23,1996, defendants Paige and McGraw filed a motion requesting that this Court abstain from deciding the merits of plaintiffs’ complaint pending the disposition of numerous enforcement proceedings in state tribunals which have been disrupted by the pendency of this action. On August 14, 1996, plaintiffs’ filed a response to that motion. Finally, on August 19,1996, defendants Paige and McGraw filed a reply in support of their motion. 10.On August 13, 1996, defendants filed a joint motion to dissolve the preliminary injunction based upon plaintiffs’ misrepresentations of facts upon which the preliminary injunction was based. On September 4, 1996, plaintiffs’ filed a response to that motion. Finally, on September 16, 1996, defendants filed a reply in support of their motion. III. Summary of Opinion As set forth below, this Court finds that plaintiffs have successfully shown that the West Virginia statutes that impose fees upon unlandfilled sewage sludge; impose tonnage caps upon solid waste, requiring the inclusion of sewage sludge within these caps; require commercial solid waste facilities to first meet the needs of the local wasteshed or county; allow solid waste authorities to amend a solid waste facility permit to ensure that the local solid waste disposal needs will be met; and impose procedures upon commercial solid waste facilities to open, site, expand or increase the volume of a facility, which includes obtaining a certificate of need and approval by administrative bodies and by voter refer-enda, discriminate against out-of-state solid waste and sewage sludge in violation of the Dormant Commence Clause of the United States Constitution. At the same time, this Court finds that defendants have correctly asserted that this Court is prohibited by the Eleventh Amendment from considering the constitutionality of the repealed differential assessments placed upon out-of-state waste and from exercising jurisdiction over the Public Service Commission. Further, this Court finds that it is not required to abstain from deciding the merits of this case and is not precluded by the “clean hands” doctrine, inartful pleading, or the Tax Injunction Act from considering the merits of plaintiffs’ claims. Additionally, this Court finds that plaintiffs have failed to show that, as a matter of law, the challenged solid waste and sewage sludge statutes violate the Due Process Clause and the Equal Protection Clause. Finally, this Court finds its earlier order granting plaintiffs an award of attorney’s fees was premature and should be reconsidered upon additional briefing. IV. Undisputed Facts 1. Valero is a West Virginia corporation which owns and operates two separate solid waste facilities located in Colliers, Brooke County, West Virginia: the Brooke County Sanitary Landfill and the Brooke County Composting Facility. 2. Lackawanna is a West Virginia corporation which owns and operates two solid waste facilities in New Martinsville, Wetzel County, West Virginia: the Wetzel County Sanitary Landfill and the Wetzel County Composting Facility. 3. Valero and Lackawanna operate the only permitted commercial composting facilities in the state. 4. SWS is a Pennsylvania corporation engaged in the business of collecting, transporting, recycling and disposing non-hazardous solid wastes and hauling such wastes to interstate locations such as Valero and Lacka-wanna. 5. The West Virginia legislature enacted S.B. 18 and S.B. 288 to regulate solid waste and sewage sludge composting facilities in West Virginia. 6. Plaintiffs challenge the following statutory provisions enacted as part of S.B. 18 and S.B. 288 as unconstitutional: a. Repealed Differentiated Solid Waste Assessments 1.W.Va.Code § 20-5F-5a(a) (enacted by S.B. 18, repealed by Acts of the Legislature 1993, C. 126 (hereinafter “Acts 1993”) and Acts of the Legislature 1994, C. 61 (hereinafter “Acts 1994”)), which provides in pertinent part: A solid waste assessment fee is hereby levied and imposed upon the disposal of solid waste at any solid waste disposal facility in this state to be collected and paid as follows ... [o]ne dollar ... per ton or part thereof of solid waste ... for solid waste generated from sources outside the solid waste disposal shed in which the solid waste disposal facility is located. 2. W.Va.Code § 20-5F-12 (enacted by S.B. 18, repealed by Acts 1993 and Acts 1994), which provides in pertinent part: [T]he county commission of any county containing a Class A [solid waste] facility may ... impose a fee, not to exceed five dollars per ton of solid waste received from outside the wasteshed in which the facility is located ... for solid waste disposed in said facility. 3. W.Va.Code § 20-5N-4© (enacted by S.B. 18, repealed by Acts 1993 and Acts 1994), which provides in pertinent part: Additional fee for out of shed waste. — ... [Tjhere shall be imposed an additional two dollar fee on the disposal of solid waste generated outside of the wasteshed wherein the solid waste disposal facility is located. 4. W.Va.Code § 20-5N-4(a) (enacted by S.B. 18, repealed by Acts 1993 and Acts 1994), which provides in pertinent part: A solid waste assessment fee is hereby levied and imposed upon the disposal of solid waste at any solid waste disposal facility in this state in the amount of four dollars per ton or like ratio ... except [that certain uses are exempt from the fee and out-of-shed waste is subject to an additional two dollar fee]. b. Requirement to Meet Local Needs W.Va.Code § 20-5F-5(f) (enacted by S.B. 18, repealed and reenacted as amended by Acts 1994 at W.Va.Code § 22 — 15—10(f)), which provides in pertinent part: [A] commercial solid waste facility shall first ensure that the disposal needs of the county, or if applicable the region, in which it is located are met. If the county solid waste authority, or regional solid waste authority if applicable, in which the facility is located determines that the present or future disposal needs of the county, or if applicable the region, are not being, or will not be, met by the commercial solid waste facility, such authority may apply to the director of the division of natural resources to modify the applicable permit in order to reduce the total monthly tonnage of out of county waste, or if applicable, out of region waste, the facility is permitted to accept by an amount that shall not exceed the total monthly tonnage generated by the county, or if applicable the region, in which the facility is located. c. Requirement to Obtain Certificate of Need and Procedure 1. W.Va.Code § 20-5F-5(g) (enacted by S.B. 18, repealed and reenacted by Acts 1994 at W.Va.Code § 22-15-10(g)) which provides in pertinent part: [A] permit to construct a new commercial solid waste facility or to expand the spatial area of an existing facility, not otherwise allowed by an existing permit, may not be issued unless the public service commission has granted a certificate of need.... 2. W.Va.Code § 24-2-lc(b) through (f) (enacted and rewritten by S .B. 18, technically amended by Acts 1994) provides in pertinent part: (b)Any person applying for a permit to construct, operate or expand a commercial solid waste facility as defined in ... this code, or any person seeking a major permit modification from the division of natural resources first shall obtain a certificate of need from the public service commission .... The commission shall grant or deny a certificate of need, in accordance with provisions set forth in this chapter. If the commission grants a certificate of need, the commission may include conditions not inconsistent with the criteria set forth in this section. (c)For purposes of subsections (a) and (b) of this section, a complete application shall consist of the following and notwithstanding any other provision of this chapter to the contrary, such information contained in the application provided by the applicant shall not be confidential and shall be disclosable pursuant to the [applicable] provisions ... of this code: (1) The names of the owners or operators of the facility including any officer, director, manager, person owning five percent or more interest or other person conducting or managing the affairs of the applicant or of the proposed facility; (2) The proposed or existing location of the facility; (3) A description of the geographic area to be served by the facility; (4) The anticipated total number of citizens to be served by the facility; (5) The average monthly tonnage of solid waste to be disposed of by the facility; (6) The total monthly tonnage of solid waste for which the facility is seeking a permit from the division of natural resources; (7) The anticipated life span and closure date of the facility; and (8) Any other information requested on the forms prescribed by the public service commission. (d)In considering whether to grant a certificate of need the commission shall consider, but shall not be not limited to considering, the following factors: (1) The total tonnage of solid waste generated within the county; (2) The total tonnage of solid waste generated within the wasteshed; (3) The current capacity and life span of other solid waste facilities located within the county, if any; (4) The current capacity and life span of other solid waste facilities located within the wasteshed, if any; (5) The current capacity and life span of other solid waste facilities located within this state; (6) The life span of the proposed or existing facility; (7) The cost of transporting solid waste from the points of generation within the county or wasteshed and the disposal facility; (8) The impact of the proposed or existing facility on needs and criteria contained in the statewide solid waste management plan; and (9) Any other criteria which the commission regularly utilizes in making such determinations. (e) The public service commission shall deny a certificate of need upon one or more of the following findings: (1) The proposed capacity is unreasonable in light of demonstrated needs; (2) The location of the facility is inconsistent with the statewide solid waste management plan; (3) The location of the facility is inconsistent with any applicable county or regional solid waste management plan; (4) The proposed capacity is not reasonably cost effective in light of alternative disposal sites; (5) The proposal, taken as a whole, is inconsistent with the needs and criteria contained in the statewide solid waste management plan; or (6) The proposal, taken as a whole, is inconsistent with the public convenience and necessity. (f) Any certificates of need granted pursuant to this section shall be conditioned on acceptance of: (1) Solid waste generated within the county in which the facility is or is to be located; and (2) Solid waste generated within the wasteshed in which the facility is or is to be located. d. Danger of Unknown Solid Waste W.Va.Code § 20-5F-l(c), (enacted by Senate Bill. No. 18, repealed and reenacted by Acts 1994 at W.Va.Code § 22-15-1 (c)), which provides in pertinent part: The Legislature ... finds that disposal in West Virginia of solid waste of unknown composition threatens the environment and the public health, safety and welfare, and therefore, it is in the interest of the public to identify the type, amount and origin of solid waste accepted for disposal at West Virginia solid waste facilities. e. Approval Process for Opening or Expanding Solid Waste Facility 1. W.Va.Code § 20-9-12b (enacted by S.B. 18, repealed and reenacted with technical amendments as amended by Acts 1994 at W.Va.Code § 22C^l-25(a)) which provides in pertinent part: (a) It is the intent of the Legislature that all commercial solid waste facilities operating in this state must receive site approval at the local level.... [Facilities] which seek to expand spatial area or to convert from a Class B facility to a Class A facility, shall obtain such approval only in the manner specified [by statute].... (b) In considering whether to issue or deny the certificate of approval ... the ... solid waste authority or county commission shall base its determination upon the following criteria: The efficient disposal of solid waste generated within the county or region.... 2. W.Va.Code § 20-9-12c (enacted by S.B. 18, repealed and reenacted with technical amendments by Acts 1994 at W.Va.Code § 22C-4-26) which provides in pertinent part: (a) Except as provided below with respect to Class B facilities, ... in order to obtain approval to operate a new Class A facility, an applicant shall: (1) File an application for a certificate of need with, and upon approval from, the public service commission; (2) File an application for a certificate of site approval with, and upon approval from, the county or regional solid waste authority for the county or counties in which the facility is proposed...and (3) File an application for approval of operation as a Class A facility with, and obtain approval from, the county commission for each county in which the facility would be located.... The county commission shall hold at least one public hearing and shall solicit public comment prior to acting on the application. The county commission shall provide notice of such public hearing with publication of a Class II legal advertisement in a qualified newspaper serving the county where the proposed site is situated. (b) If applications are approved pursuant to subdivisions (1), (2) and (3), subsection (a) of this section, each county commission shall order that a referendum be placed upon the ballot'.... (1)Such referendum will be to determine whether it is the will of the voters of the county that a Class A facility be located in the county.... (3) If a majority of the legal votes cast upon the question be against the siting of a Class A facility within the county, then the county commission, the county or regional solid waste authority and the division of natural resources shall not proceed any further with the application. If a majority of the legal votes cast upon the question be for siting a Class A facility within the county, then the application process ... may proceed: Provided, That such vote shall not be binding on or require the division of natural resources to issue a permit.... (c) ... [T]he public referendum established in this section shall be mandatory for every new Class A facility applicant which will accept between ten and thirty thousand tons of solid waste per month.... 3. W.Va.Code § 20-9-12d (enacted by S.B. 18, repealed and reenacted with technical amendments by Acts 1994 in W.Va.Code § 22C-4-27) which provides in pertinent part: (a) ... [I]n order to obtain approval to operate as a Class A facility at a site previously permitted to operate as a Class B facility, an applicant shall: (1) File an application for a certificate of need with, and obtain approval from, the public service commission....; (2) File an application for a certificate of site approval with, and obtain approval from, the county or regional solid waste authority for the county or counties in which the facility is located or proposed ....; and (3) File an application for approval of operation as a Class A facility with, and obtain approval from, the county commission for each county in which the facility is or would be located.... The county commission shall hold at least one public hearing and shall solicit public comment prior to acting on the application. The county commission shall provide notice of such public hearing with publication of a Class II legal advertisement in a qualified newspaper serving the county where the proposed site is situated. (b) If applications are approved pursuant to subdivisions (1), (2) and (3), subsection (a) of this section, the county or regional solid waste authority shall publish a Class II legal advertisement ... in a newspaper of general circulation in the counties wherein the solid waste facility is located. Upon the written petition of registered voters residing in the county equal to not less than fifteen percent of the number of votes cast within the county for governor at the preceding gubernatorial election ... the county commission shall ... order a referendum be placed upon the ballot. Any referendum conducted pursuant to this section shall be held at the next primary, general or other countywide election. (1)Such referendum will be to determine whether it is the will of the voters of the county that the Class B facility be converted to a Class A facility.... (3) If a majority of the legal votes cast upon the question be against the facility, then the county commission, the county or regional solid waste authority and the division of natural resources shall not proceed any further with the application. If a majority of the legal votes cast upon the question be for the facility, then the application process ... may proceed: Provided, That such vote is not binding on or require the division of natural resources to modify the permit.... 4. W.Va.Code 8 20-9-12e (enacted by S.B. 18, repealed and reenacted with technical amendments by Acts 1994 in W.Va.Code § 22C-4-28) which provides in pertinent part: (a) ... [I]n order to increase the maximum allowable monthly tonnage handled by a Class A facility by an aggregate amount of more than ten percent of the facility’s permit tonnage limitation within a two-year period, the permittee shall: (1) File an application for approval with, obtain approval from, the county or regional solid waste authority for the county or counties in which the facility is located....; (2) Pile an application for approval with, obtain approval from, the public service commission to modify the certificate of need ...; and (3) File an application for a major permit modification with the division of natural resources. (b) If applications are approved pursuant to subdivisions (1) and (2), subsection (a) of this section and an application has been filed pursuant to subdivision (3), subsection (a) of this section, the county or regional solid waste authority shall publish a Class II legal advertisement ... in a newspaper of general circulation in the counties wherein the solid waste facility is located. Upon the written petition of registered voters residing in the county equal to not less than fifteen percent of the number of votes cast within the county for governor at the preceding gubernatorial election ... the county commission shall ... order a referendum be placed upon the ballot.... (1) Such referendum will be to determine whether it is the will of the voters in the county that the Class A facility applicant be permitted to increase the maximum tonnage allowed to be handled at the facility not to exceed thirty thousand tons per month.... (3) If a majority of the legal votes cast upon the question be against allowing the Class A facility to increase the maximum tonnage of solid waste allowed to be handled per month at the facility, then the division of natural resources shall not proceed to modify the Class A facility permit to increase the maximum allowable tonnage. If a majority of the legal votes cast upon the question be for allowing the Class A facility to increase the maximum tonnage of solid waste allowed to be handled per month at such facility, then the application process ... may proceed: Provided, That such vote shall not be binding on or require the county or regional solid waste authority or the division of natural resources to approve an application to modify the permit.... f. Tonnage Caps 1. W.Va.Code 8 20-5F-4c (enacted by S.B. 18, repealed and reenacted by Acts 1994 at W.Va.Code § 22-15-8) which provides in pertinent part: [I]t shall be unlawful to operate any commercial solid waste facility that handles between ten thousand and thirty thousand tons of solid waste per month [without proper approval].... [T]he maximum quantity of solid waste which may lawfully be handled at any commercial solid waste facility shall be thirty thousand tons per month. 2. W.Va.Code § 20-9-2(c) and (d) (enacted by S.B. 18, repealed and reenacted by Acts 1994 at 8 22C-4-2(d) and (e)) which provides in pertinent part: (c)“Class A facility” means a commercial solid waste facility which handles an aggregate of between ten and thirty thousand tons of solid waste per month.... (d) “Class B facility” means a commercial solid waste facility which receives or is expected to receive [no more than] ten thousand tons [of solid waste] per month. g. Solid Waste Assessments Applicable to Sewage Sludge W.Va.Code § 20-5F-2b(e) (enacted by S.B. 288, repealed and reenacted with technical amendments by Acts 1994 at W.Va.Code § 22-15-20(e)) which provides in pertinent part: All sewage sludge placed in, or upon, or used by a solid waste facility or processed or handled, pursuant to a permit issued by the division of environmental protection, shall be subject to the same tipping and other fees levied by this chapter on the disposal of solid waste and shall be included in said facility’s total tonnage.... [N]o such fees ... shall be levied upon the application of sewage sludge to land outside a solid waste facility.... h. Siting Plans W.Va.Code § 20-9-12a (enacted by S.B. 18, repealed and reenacted with technical amendments by Acts 1994 at W.Va.Code § 22C^l-24) provides in pertinent part: (a) ... [E]ach county or regional solid waste authority shall prepare and complete a commercial solid waste facilities siting plan for the county or counties within its jurisdiction [.] ... The siting plan shall identify zones within each county where siting of the following facilities is authorized or prohibited: (1) Commercial solid waste facilities which may accept an aggregate of more than ten thousand tons of solid waste per month. (2) Commercial solid waste facilities which shall accept only less than an aggregate of ten thousand tons of solid waste per month. (3) Commercial solid waste transfer stations or commercial facilities for the processing or recycling of solid waste. (b) The county or regional solid waste authority shall develop the siting plan authorized by this section based upon the consideration of one or more of the following criteria: The efficient disposal of solid waste, including all solid waste generated within the county or region, economic development, transportation facilities, property values, groundwater and surface waters, geological and hydrological conditions, aesthetic and environmental quality, historic and cultural resources, the present or potential land uses for residential, commercial, recreational, environmental conservation or industrial purposes and the public health, welfare and convenience.... (e) Effective upon approval of the siting plan by the solid waste management board, it shall be unlawful for any person to establish, construct, install or operate a commercial solid waste facility at a site not authorized by the siting plan: Provided, That an existing commercial solid waste facility which, on the eighth day of April, one thousand nine hundred eighty-nine, held a valid solid waste permit or compliance order issued by the division of natural resources pursuant to article five-f of this section may continue to operate but may not expand the spatial land area of the said facility beyond that authorized by said solid waste permit or compliance order, and may not increase the aggregate monthly solid waste capacity in excess of ten thousand tons monthly unless such a facility is authorized by the siting plan.... (g) Notwithstanding any provision of this code to the contrary, upon application ... the county or regional solid waste authority or county commission, as appropriate, may amend the siting plan by redesignat-ing a zone that has been designated as an area where a commercial solid waste facility is tentatively prohibited to an area where one is authorized. In such case, the person seeking the change has the burden to affirmatively and clearly demonstrate, based on the criteria set forth in subsection (b) of this section, that a solid waste facility could be appropriately operated in the public interest at such location.... 7. The legislative purposes and findings relevant to the challenged statutes include the following: a. W.Va.Code § 20-5F-1 (enacted by S.B. 18, repealed and reenacted by Acts 1993 and Acts 1994 at W.Va.Code § 22-15-1) provides in pertinent part: (a) The purpose of this article is to ... establish a comprehensive program of controlling solid waste disposal. (b) The Legislature finds that uncontrolled, inadequately controlled and improper collection, transportation, processing and disposal of solid waste: (1) Is a public nuisance and a clear and present danger to people; (2) provides harborage and breeding places for disease-carrying, injurious insects, rodents and other pests harmful to the public health, safety and welfare; (3) constitutes a danger to livestock and domestic animals; (4) decreases the value of private and public property, causes pollution, blight and deterioration of the natural beauty and resources of the state and has adverse economic and social effects on the state and its citizens; (5) results in the squandering of valuable nonrenewable and nonreplenishable resources contained in solid waste; (6) that materials recovery and recycling reduces the need for landfills and extends their life; and that (7) proper disposal, materials recovery or recycling of solid waste is for the general welfare of the citizens of this state. (c) The Legislature further finds that disposal in West Virginia of solid waste of unknown composition threatens the environment and the public health, safety and welfare, and therefore, it is in the interest of the public to identify the type, amount and origin of solid waste accepted for disposal at West Virginia solid waste facilities; (d) The Legislature further finds that other states of these United States of America have imposed stringent standards for the proper collection and disposal of solid waste and that the relative lack of such standards and enforcement for such activities in West Virginia has resulted in the importation and disposal in the state of increasingly large amounts of infectious, dangerous and undesirable solid wastes and hazardous waste from other states by persons and firms who wish to avoid the costs and requirements for proper, effective and safe disposal of such wastes in the states of origin. (e)The Legislature further finds that Class A facilities often have capacities far exceeding the needs of the state or the areas of the state which they serve and that such landfills create special environmental problems that require statewide coordination of the management of such landfills. b. W.Va.Code § 20-9-1 (repealed and reenacted by Acts 1993 and Acts 1994 at W.Va. Code § 22C-4-1), provides in pertinent part: The Legislature finds that the improper and uncontrolled collection, transportation, processing and disposal of domestic and commercial garbage, refuse and other solid wastes in the state of West Virginia results in: (1) A public nuisance and a clear and present danger to the citizens of West Virginia; (2) the degradation of the state’s environmental quality including both surface and groundwaters which provide essential and irreplaceable sources of domestic and industrial water supplies; (3) provides harborages and breeding places for disease-carrying, injurious insects, rodents and other pests injurious to the public health, safety and welfare; (4) decreases public and private property values and .results in the blight and deterioration of the natural beauty of the state; (5) has adverse social and economic effects on the state and its citizens; and (6) results in the waste and squandering of valuable nonrenewable resources contained in such solid wastes which can be recovered through proper recycling and resource-recovery techniques with great social and economic benéfits for the state. The Legislature further finds that the proper collection, transportation, processing, recycling and disposal of solid waste is for the general welfare of the citizens of the state and that the lack of proper and effective solid waste collection services and disposal facilities demands that the state of West Virginia and its political subdivisions act promptly to secure such services and facilities in both the public and private sectors. The Legislature further finds that other states of these United States of America have imposed stringent standards for the proper collection and disposal of solid waste and that the relative lack of such standards and enforcement for such activities in West Virginia has resulted in the importation and disposal into the state of increasingly large amounts of infectious, dangerous and undesirable solid waste and hazardous waste from other states by persons and firms who wish to avoid the costs and requirements for proper, effective and safe disposal of such wastes in the states of origin. The Legislature further finds that the process of developing rational and sound solid waste plans at the county or regional level is impeded by the proliferation of siting proposals for new solid waste facilities. Therefore, it is the purpose of the Legislature to protect the public health and welfare by providing for a comprehensive program of solid waste collection, processing, recycling and disposal to be implemented by state and local government in cooperation with the pxhvate sector. The Legislature intends to accomplish this goal by establishing county and regional solid waste authorities throughout the state to develop 'and implement litter and solid waste control plans. It is the further purpose of the Legislature to restrict and regulate persons and-firms from exploiting and endangering the public health and welfare of the state by disposing of solid waste and other dangerous materials which would not be accepted for disposal in the location where such wastes or materials were generated. It is further the purpose of the Legislature to reduce our solid waste management problems and to meet the purposes of this article by requiring county and regional solid waste authorities to establish programs and plans based on an integrated waste management hierarchy. In order of preference, the hierarchy is as follows: (1) Source reduction. — This involves minimizing waste production and generation through product design, reduction of toxic constituents of solid waste and similar activities. (2) Recycling, reuse and materials recovery. — This involves separating and recovering valuable materials from the waste stream, composting food and yard waste, and marketing of recyclables. (3) Landfilling. — To the maximum extent possible, this option should be reversed for nonrecyclables and other materials that cannot practically be managed in any other way. This is the lowest priority in the hierarchy and involves the waste management option of last resort. The Legislature further finds that the potential impacts of proposed commercial solid waste facilities may have a deleterious and debilitating impact upon the transportation network, property values, economic growth, environmental quality, other land uses and the public health and welfare in affected communities. The Legislature also finds that the siting of such facilities is not being adequately addressed to protect these compelling interests of counties and local communities. The Legislature further finds that affected citizens and local governments often look to state environmental regulatory agencies to resolve local land use conflicts engendered by those proposed facilities. The Legislature also finds that such local land use conflicts are most effectively resolved in a local governmental forum where citizens can most easily participate in the decision-making process and the land use values of local communities most effectively identified and incorporated into a comprehensive policy which reflects the values and goals of those communities. Therefore, it is the purpose of the Legislature to enable local citizens to resolve the land-use conflicts which may be created by proposed commercial solid waste facilities through the existing forum of county or regional solid waste authorities. 8. Publicly owned treatment works (“POTWs”) are not required to pay the assessment fees imposed upon commercial sewage sludge composting facilities by W.Va. Code § 20-5F-2b(e) (now § 22-15-20(e)) by virtue of a provision that excludes from the definition of “composting facility” those facilities which compost solid waste “that is located at the site where the waste was generated.” W.Va.Code § 20-5F-2(y) (now § 22-15-2(10)). V. Rule 12(b)(6) Standards In assessing a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), the court must accept the factual allegations contained in the complaint as true. Advanced Health-Care Servs., Inc. v. Radford Community Hosp., 910 F.2d 139, 143 (4th Cir.1990). Dismissal is appropriate pursuant to Rule 12(b)(6) only if “ ‘it appears to be a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proven in support of its claim.’” Id. at 143-44 (quoting Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.1969)); see also Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324 (4th Cir.1989). Stated another way, it has often been said that the purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it is not a procedure for resolving a contest about the facts or the merits of the case. 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 1356 (1990). The Rule 12(b)(6) motion also must be distinguished from a motion for summary judgment under Fed.R.Civ.P. 56, which goes to the merits of the claim and is designed to test whether there is a genuine issue of material fact. For purposes of the motion to dismiss, the complaint -is construed in the light most favorable to the party making the claim and essentially the court’s inquiry is directed to whether the allegations constitute a statement of a claim under Fed.R.Civ.P. 8(a). A motion to dismiss for failure to state a claim under Rule 12(b)(6) should be granted only in very limited circumstances. Rogers, 883 F.2d at 325. A dismissal under Rule 12(b)(6) is granted only in cases in which the allegations raised in the complaint clearly demonstrate that plaintiff does not have a claim and that no set of facts would support plaintiffs claim. 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 1357 (1990). Finally, “[a] district court’s dismissal under Rule 12(b)(6) is, of course, with prejudice unless it specifically orders dismissal without prejudice. That determination is within the district court’s discretion.” Carter v. Norfolk Community Hosp. Ass’n., Inc., 761 F.2d 970, 974 (4th Cir.1985). VI. Summary Judgment Standards Under Fed.R.Civ.P. 56(c), summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law.” The party seeking summary judgment bears the initial burden of showing the absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, as the United States Supreme Court noted in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), Rule 56(c) itself provides that “a party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of [the] pleading, but must set forth specific facts showing that there is a genuine issue for trial.” “The inquiry performed is the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250, 106 S.Ct. 2505. See also Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979) (finding that summary judgment “ ‘should be granted only where it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law.’ ”) (quoting Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.1950)). In Celotex, the Supreme Court stated that the “plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s ease, and on which that party will bear the burden of proof at trial.” 477 U.S. at 322, 106 S.Ct. 2548. Summary judgment is not appropriate until after the non-moving party has had sufficient opportunity for discovery. Oksanen v. Page Mem’l Hosp., 912 F.2d 73, 78 (4th Cir.1990). In reviewing the supported underlying facts, all inferences must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). VII. Motion of the Secretary of Tax and Revenue to Dismiss Count I.A(1) of the Complaint Count I.A(l) of the complaint alleges that three provisions of S.B. 18, now repealed, unconstitutionally imposed differentiated solid waste assessment fees upon out-of-state solid waste landfilled in West Virginia. The complaint further alleges that plaintiffs paid over $1.5 million in differentiated fees while the provisions were in force. In their motion for permanent injunction and declaratory relief, plaintiffs seek to recover those monies paid to the state under the repealed statutes. Defendant Secretary of Tax and Revenue asserts that this Court lacks jurisdiction over this claim because the Eleventh Amendment of the United States Constitution bars this Court from exercising jurisdiction over a claim by a private citizen against a state for retroactive monetary relief. This Court agrees that count I.A(1) should be dismissed for failure to state a claim upon which relief can be granted. Defendant Secretary’s motion to dismiss raises questions of jurisdiction, mootness and proper pleading under Rule 8(a) of the Federal Rules of Civil Procedure. First, this Court notes that, as the Secretary stated in his motion, the complaint in this matter does not contain a prayer for retroactive monetary relief with regard to the repealed assessment statutes. Fed.R.Civ.P. 8(a) requires that a complaint contain “a demand for judgment for the relief the pleader seeks.” While the complaint alludes to a demand for retroactive monetary relief, no such demand is directly stated in the complaint, even though such a demand is made in subsequent pleadings. Accordingly, plaintiffs should be barred from asserting claims not properly pleaded in the complaint, and are not entitled to seek retroactive monetary relief at this time. In the alternative, however, this Court finds that even if a demand for retroactive monetary relief were properly made in the complaint, plaintiffs are still barred from recovering retroactive monetary relief by the Eleventh Amendment. “Because of the Eleventh Amendment, States may not be sued in federal court unless they consent to it in unequivocal terms or unless Congress, pursuant to a valid exercise of power, unequivocally expresses its intent to abrogate the immunity.” Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423, 88 L.Ed.2d 371, 68 (1985). While federal courts are not prevented by the Eleventh Amendment from granting prospective relief and crafting remedies designed to end a continuing constitutional violation, the doctrine of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), bars claims for retrospective relief against the state from federal court. Nonetheless, an award of retroactive monetary relief is proper if it is ancillary to prospective relief. Association of Surrogates and Supr. Ct. Reporters within New York v. New York, 940 F.2d 766, 774 (2d Cir.1991). Thus, where the court enjoined the State of New York from enforcing a “lag-payroll” law, the ancillary effect on the state treasury as a result of the prospective relief was “ ‘a permissible and ... inevitable consequence’ ” and was not barred by the Eleventh Amendment. Id. (citations omitted); see also Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 552 (9th Cir.1991) (explaining that if retroactive monetary relief is “ancillary” to prospective relief, it is not barred by the Eleventh Amendment). The Eleventh Amendment also bars declaratory relief that has “the same effect as a full-fledged award of damages or restitution by the federal court....” Green, 474 U.S. at 73, 106 S.Ct. 423. In Green, the plaintiffs alleged that the state had improperly calculated plaintiffs’ benefits under the Federal Aid to Families with Dependent Children program. Id. at 65-66, 106 S.Ct. 423. Plaintiffs sought to enjoin the state from making further erroneous calculations and further sought a declaration that the state violated federal law in making the past computations. Id. During the pendency of the litigation, Congress amended the relevant statutory provisions thereby mooting any injunctive relief that could be awarded to plaintiffs. Id. at 65, 106 S.Ct. 423. However, plaintiffs argued that they could properly be granted the declaratory relief that they sought. Id. The Supreme Court found that granting relief under the Declaratory Judgment Act was within a court’s discretion and was dependent upon equitable considerations. Id. at 72, 106 S.Ct. 423. Specifically, the court held that a declaratory judgment is not appropriate where there is no continuing violation of federal law, where there is no “threat of state officials violating the repealed law in the future[,]” and where the sole purpose of the declaratory judgment would be to have a res judicata effect in subsequent state proceedings. Id. at 72-73, 106 S.Ct. 423. Thus, the Court found that declaratory judgment was inappropriate because there was no cpn-tinuing violation of federal law and that any declaratory relief would result in an “‘end run’ ” around the jurisdictional limitations of the Eleventh Amendment. Id. at 73, 106 S.Ct. 423; see also Manning v. S.C. Dept. of Highway and Pub. Transp., 914 F.2d 44, 48 (4th Cir.1990) (holding that Eleventh Amendment prohibited declaratory relief where only benefit plaintiff could derive from declaration that outmoded statutory scheme violated his constitutional rights was res judicata effect in state court proceedings). As noted above, the Eleventh Amendment permits a court to grant prospective relief to a private party against a state for continuing violations of federal law. However, a question of mootness of the prospective relief arises when the state voluntarily ceases a challenged practice. In Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982), the Supreme Court held that “voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of a practice.” At the same time, the Court noted that a “case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not be reasonably expected to recur....” Id. at n. 10, 102 S.Ct. 1070; see also Green, 474 U.S. at 72, 106 S.Ct. at 428 (claim for injunctive relief mooted where there is no threat of state officials violating repealed law in the future). This Court finds that the Eleventh Amendment bars this Court from awarding plaintiffs retroactive monetary relief or declaratory judgment relief under Count I.A(1) of the complaint. As a preliminary matter, this Court must address plaintiffs’ argument that the Eleventh Amendment is inapplicable. First, this Court notes that, although plaintiffs argue otherwise, any retroactive relief in the form of a refund of fees paid by plaintiffs would affect the state treasury and thereby would invoke the prohibitions of the Eleventh Amendment. Although the fees collected under the now-repealed statutes were designated to specific funds, those funds were “state funds” such that if a refund was ordered, the state would be obligated to pay such refund. Additionally, W.Va. Code § 12-2-2 indicates that all monies collected under acts of the legislature become part of the state treasury. Accordingly, this Court finds that there is no doubt that the Eleventh Amendment applies to the monies referenced in Count I.A(1). Plaintiffs also argue that under the Commerce Clause, Congress can abrogate the state’s sovereign immunity under the Eleventh Amendment. See Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989). However, in Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 5.Ct. 1114, 1128, 134 L.Ed.2d 252 (1996), the Supreme Court expressly overruled its holding in Union Gas and held that Congress lacks authority under the Commerce Clause to override the prohibitions of the Eleventh Amendment. Accordingly, this Court finds plaintiffs’ argument on this point without merit. Having decided that the Eleventh Amendment applies in this matter, this Court finds that the Eleventh Amendment bars the retroactive monetary relief sought by plaintiffs. While the state may have an obligation under the Due Process Clause of the Fourteenth Amendment of the United States Constitution to provide “meaningful backward looking relief to rectify any unconstitutional deprivation,” McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, 496 U.S. 18, 31, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990), this Court is without jurisdiction to order the state to do so. Furthermore, neither of the exceptions to the Eleventh Amendment constraint permit this Court to grant plaintiffs the relief they seek. First, the retroactive relief sought by plaintiffs cannot be ancillary to any prospective relief that could be awarded by this Court. Here, the statutes challenged in I.A(1) of the complaint, unlike those challenged in Mesquite, were repealed prior to this lawsuit. The complaint makes no allegation that there is any reasonable risk that defendant Secretary will reenact the statutes and engage in any kind of “continuing violation” of federal law. Thus, this Court finds there is no reason for the court to enjoin the possible reenactment of a potentially unconstitutional statute. Accordingly, this Court will exercise its discretion under the Declaratory Injunction Act and will not enjoin the possible reenactment of a potentially unconstitutional statute. Thus, because the issue of prospective relief is mooted by the statutes’ repeal, any retroactive relief that could be awarded under Count I.A(1) cannot be ancillary to a prospective remedy; it is barred by the Eleventh Amendment. Second, this Court finds that any declaratory judgment that it might make regarding the constitutionality of the repealed statutes would do no more than have a res judicata effect on any state proceedings brought by plaintiffs to obtain a refund of the fees paid. Clearly, case law establishes the Supreme Court’s disfavor of declaratory judgments which permit a plaintiff to avoid the constraints of the Eleventh Amendment. Accordingly, although this Court indicated in its preliminary injunction orders that it could and would consider the constitutionality of the repealed statutes, upon further and closer review, this Court finds that it is precluded by the Eleventh Amendment from doing so. Defendant Secretary’s motion to dismiss Count I.A(1) for failure to state a claim upon which relief can be granted is GRANTED, and this Court makes no determination as to the constitutionality of the now-repealed differential fee statutes. VIII. Defendant Public Service Commission’s Motion to Modify Orders to Remove Public Service Commission fi’om Enjoined Defendants; Defendant Public Service Commission’s Motion for Judgment on the Pleadings re: Lack of Jurisdiction; and Motion of Plaintiffs to Substitute Real Party in Interest or Dismiss Public Service Commission Defendant Public Service Commission (“PSC”) asserts that this Court lacks subject matter jurisdiction over the claims agai