Full opinion text
ORDER HULL, District Judge. This matter is before the Court for final decision after a bench trial on August 30, 1994. By agreement of the parties, the Court consolidated the hearing on the plaintiffs application for a preliminary injunction with the trial of the action on the merits of plaintiffs requests for a declaratory judgment and a permanent injunction. Fed. R.Civ.P. 65. After considering all of the evidence, reviewing the record and exhibits in their entirety, and hearing oral argument of counsel, this Court finds as follows. I. FINDINGS OF FACT All parties entered into an extensive stipulation covering and agreeing to the vast majority of the facts in this ease. Where a stipulation is cited for the Court’s finding of fact, the Court adopts and quotes from the parties’ stipulation. If the Court’s finding of fact is not based on the stipulation, but is based on other evidence in the record, then the Court will reference that evidence as well. This action involves plaintiffs attempts for over two years to build and operate an advanced technology biomedical waste treatment facility in Quitman County, Georgia. Under Georgia law, biomedical waste is regulated as a form of non-hazardous solid waste. No environmental issues are presented herein. All parties stipulated that plaintiffs proposed facility more than satisfies all applicable federal and state environmental laws and regulations. Plaintiffs proposed facility will enhance environmental protection by disposing of biomedical waste currently sent to landfills or burned at aging on-site hospital incinerators, which are below environmental standards. The issues herein concern whether certain provisions in Georgia’s Comprehensive Solid Waste Management Act, O.C.G.A. § 12-8-24, which impose on plaintiff’s facility “Georgia need” restrictions, planning requirements and transportation limitations based on the geographic origin of the waste, violate the Commerce Clause of the United States Constitution. Plaintiff seeks a declaratory judgment that certain provisions in Georgia’s Comprehensive Solid Waste Management Act are unconstitutional under the Commerce Clause; the State seeks to uphold its legislation. A. THE PARTIES 1. Plaintiff Environmental Waste Reductions, Inc. (“EWR”) is a Georgia corporation with its principal place of business at 5940 Peach-tree Road, Atlanta, Georgia 30341. Since December, 1991, EWR has been in the process of obtaining a solid waste permit (the “Permit”) and other necessary permits and authorizations to construct and operate a biomedical waste incinerator in Quitman County, Georgia. Stipulations (“Stips”), ¶ 1. 2. At the present time, plaintiff EWR is engaged in the business of transporting biomedical waste from generators of that waste, primarily hospitals and doctors’ offices, to existing incinerators. EWR operates the biomedical waste collection and transportation business pursuant to a permit by rule. EWR presently operates, also by authority of a permit by rule, a transfer station in DeKalb County, Georgia, to transfer biomedical waste for further transportation and disposal. Stips, ¶2. 3. Harold F. Reheis is the Director of the Environmental Protection Division of the Georgia Department of Natural Resources (“EPD”) and, as such, is the permitting authority for EPD. Stips, ¶ 3. B. THE PROPOSED FACILITY 4. Plaintiff EWR proposes to construct and operate an advanced technology biomedical waste incinerator facility in Quitman County, Georgia (“the facility”). As set forth in the original application filed with defendant EPD on December 16, 1991, plaintiffs proposed incinerator was to operate at a capacity of 42 tons of biomedical waste per day. If operated in compliance with the Permit, air emissions from the facility will be below federal and state emissions limitations, there will be no process wastewater discharge from the facility, and the incinerator ash will be disposed of in a lined landfill in accordance with state and federal law. Stips, ¶ 6. 5. The facility will be located in rural Quit-man County, a county with a total population of less than 2,500 people. The facility will be located on Lower Lumpkin Road, approximately seven miles from the City of Georgetown, the county seat of Quitman County, a city of about 700 residents. The site is five acres of land, which is surrounded on all sides by timberland owned by Mead Paper Company, Burgin Lumber Company, and the individual from whom the site was purchased. The nearest residence is approximately 2^ miles from the site. A church is located almost half a mile from the proposed facility. The site is approximately 10 miles from the boundary between Georgia and Alabama. Stips, ¶7. 6. The proposed EWR facility will offer a convenient, cost-effective disposal alternative to both large quantity and small quantity generators of biomedical waste. Incineration at a state-of-the-art incinerator is far more protective of the environment than disposal of biomedical waste in unlined county landfills or incineration at aging on-site hospital incinerators. Stips, ¶ 14. C. REGULATION OF BIOMEDICAL WASTE 7. Biomedical waste is a defined term, O.C.G.A. § 12-8-22(1.1) (1992), which is a subcategory of solid waste, O.C.G.A. § 12-8-22(33) (1992). 8. Biomedical waste consists, inter alia, of pathological waste, biological waste cultures and infectious stocks, and other waste from contaminated animals, sharps, chemotherapy waste, discarded medical equipment and parts, not including expendable supplies and materials which have not been decontaminated. Ga.Comp.R. & Regs. r. 391-3-4-.15. Incineration of biomedical waste is a more preferable means of disposal than a landfill because incineration destroys all pathogens, blood and tissue, leaving only inorganic ash. Doctors and hospitals have favored incineration over landfills because it reduces the public health concern. 1994 Reheis Deposition, P-Ex 30 at 25-27; see Stips ¶ 14. 9. Until 1989, the Georgia law and regulations regarding solid waste made no distinction between biomedical waste and other solid waste. In 1990, as part of the Georgia Comprehensive Solid Waste Management Act, the General Assembly first defined the term and authorized the Board of Natural Resources to adopt regulations governing and controlling the handling of biomedical waste. O.C.G.A. § 12-8-23(l)(E) (1992); Ga. Laws 1990, p. 412, § 1. As recently as September, 1991, biomedical waste even from large quantity generators (100 pounds or more per month) could legally be disposed of at landfills in Georgia. Even under the current rules, biomedical waste from small quantity generators (less than 100 pounds per month) can legally be disposed of at landfills, if the landfill will accept the waste. Ga.Comp.R. & Regs. r. 391-3-4-.15(7)(b) (1993); Stips, ¶ 8. 10. Most landfills in Georgia will not accept biomedical waste. Biomedical Waste Treatment/Disposal Capacity Need in Georgia, P-Ex 13 at 6. Many small quantity generators of biomedical waste (such as hospitals) choose to dispose of their biomedical waste at a biomedical waste treatment or disposal facility (usually next to the hospital or at an incineration facility) instead of at a landfill. Testimony of Armistead, P-Ex 35 at 7-8. Small quantity generators are authorized to dispose of their biomedical waste at municipal solid waste landfills. However, most landfills in Georgia, including privately-owned landfills, refuse to accept biomedical waste for disposal. (Director’s Exhibits 10, 21). A small number of rural landfills in Georgia continue to accept biomedical waste generated by local doctors and clinics. Stips, ¶ 11; Director’s Exhibit 7. 11. Reuse and recycling are not particularly relevant to biomedical waste. EPD is “not taking any steps to promote recycling and reuse in the health care industry.” 1994 Reheis Deposition, P-Ex 30 at 25-27. No one appears to contend that biomedical waste can be either reused or recycled. 12. In his deposition, the Director admitted that in his capacity as head of EPD, he has acknowledged that “incineration, if properly designed, properly monitored, properly controlled, properly regulated, doesn’t pose significant environmental risks.” 1994 Reheis Deposition, P-Ex 13 at 16. Incineration of biomedical waste at plaintiffs permitted facility will not present environmental risks. 13. Since proper permitted incineration of biomedical waste does not pose an environmental threat, the principal concern in the disposal of biomedical waste is to eliminate or reduce the exposure to the handlers and thus the public during the collection and transportation of biomedical waste. Special handling and treatment of biomedical waste can minimize and eliminate the threat of exposure during collection and transportation of biomedical waste. Reheis Deposition, p. 13. D. ON-SITE INCINERATORS NEXT TO HOSPITALS IN MANY CITIES ARE OLD AND NOT AS TECHNICALLY SOPHISTICATED AS PLAINTIFF’S PERMITTED FACILITY 14. With the onset of “universal precaution” practices among health care providers, more biomedical waste has been generated, and generators of biomedical waste, especially at hospitals, are increasingly concerned about potential liabilities associated with such waste. Stips, ¶ 12. 15. Hospitals in Georgia are authorized by a permit by rule to construct and operate on-site incinerators to burn their own biomedical waste (and up to 25 percent more waste from off-site) without the necessity of obtaining an individual solid waste permit. Ga.Comp.R. & Regs. r. 391-3-4-.15(6)(e) (1993). Many hospitals in Georgia continue to operate on-site incinerators next to the hospitals in most cities. Most of these on-site incinerators are old and are not technically sophisticated; none has emissions controls as stringent as those provided for in the plaintiffs EWR permit for the facility in Quitman County, Georgia. Stips, ¶ 9; Armistead Deposition, P-Ex 34 at 19. 16. Georgia Baptist Hospital in Atlanta operates an on-site incinerator to burn its own biomedical waste. In addition, Georgia Baptist Hospital, for a fee, takes in out-of-state and Georgia biomedical waste and burns it at its on-site incinerator in Atlanta. Georgia Baptist Hospital in Atlanta is disposing of up to 2.5 tons per day of biomedical waste from other generators in its on-site incinerator. Stips, ¶ 10. The Georgia Baptist Hospital facility does not have emissions controls as stringent as those provided in plaintiffs EWR permit for the facility in Quitman County, Georgia. See Stips, ¶9, 10, Armistead Deposition, P-Ex 34 at 19. E. BIOMEDICAL WASTE INDUSTRY IN GEORGIA AND SURROUNDING STATES 17. At the present time, there is evidence of only one commercial biomedical waste incinerator in Georgia which is permitted and authorized to accept biomedical waste from generators throughout Georgia and from other states, i.e., the facility of Bio-Medical Service Corporation, Inc., a division of Browning-Ferns, Inc. (“BFI”), which is located in Lake City, Clayton County, just south of Atlanta. Another commercial biomedical incinerator permit has been issued to the Medical Center of Central Georgia (“MCCG”); however, a Bibb County ordinance prohibits MCCG from accepting waste from outside Bibb County unless it obtains a permit from Bibb County. 18. Presently, large quantities of biomedical waste generated outside of Georgia are transported to Georgia for thermal treatment and disposal. For instance, the BFI incinerator in Lake City, Georgia treats and disposes of approximately 3 million pounds of biomedical waste generated outside Georgia in a year. This waste is generated principally in Alabama. Reheis Deposition, at pp. 30-31; Armistead Deposition, at 29-30. 19. Plaintiff EWR has approached several hospitals in Georgia about contracting to utilize any excess capacity up to 25 percent of their total biomedical waste burned but has been refused by all hospitals except Georgia Baptist Hospital in Atlanta. Armistead Deposition, P-Ex 34 at 32. In addition, plaintiff EWR incinerates biomedical waste generated in Alabama at the Georgia Baptist Medical Center incinerator. Armistead Deposition, at 34. 20. Large quantities of biomedical waste generated in Georgia are also transported to other states for disposal. EWR, BFI, Scientific Waste Systems (“SWS”), MedX, and Biomedical Disposal Services and Waste Management all transport Georgia-generated biomedical waste to disposal facilities in other states. Armistead Deposition, P-Ex 34 at 21-24. 21. The following out-of-state disposal facilities are being used to dispose of large quantities of biomedical waste generated in Georgia: Ogden Martin’s facility in Leesburg, Florida; Recovery Corporation of America’s facility in Cocoa Beach, Florida; Chambers Medical Technology’s facility in Hampton, South Carolina; Recovery Corporation of America’s facility in Matthews, North Carolina; National Medical Waste’s facility in Nashville, Tennessee; Eco-Med’s facility in Birmingham, Alabama; and an autoclave in Bowling Green, Kentucky, Armistead Deposition, P-Ex 34 at 34. 22. BFI’s prices range from 18 cents per pound of biomedical waste to three dollars per pound of biomedical waste. Armistead Deposition, P-Ex 34 at 32. 23. Plaintiff EWR has been quoted and is currently paying disposal prices at out-of-state incinerators which are significantly lower than the prices charged by BFI. Prices at several large out-of-state disposal facilities range from 8.5 cents per pound to 10 cents per pound. Armistead Deposition, P-Ex 34 at 28, 34-38. 24. BFI serves approximately 45 percent of the Georgia biomedical waste market. Occasionally, when BFI’s Lake City disposal facility is inoperable, BFI hauls biomedical waste to out-of-state disposal facilities. Armistead Deposition, P-Ex 34 at 21. SWS hauls its waste to National Medical Waste in Nashville. SWS has approximately 13 percent of the Georgia biomedical waste market and in 1993, transported approximately 3,800,000 lbs. of biomedical waste out-of-state. Id. at 22. In addition, SWS also collects waste in Alabama, Tennessee, and South Carolina and some of that waste is imported into Georgia, consolidated with Georgia waste, and transported to an out-of-state disposal facility. Id. MedX hauls approximately 3,600,000 lbs. of Georgia biomedical waste, which is incinerated at either the Chambers facility in South Carolina or the Recovery Corporation facility in North Carolina or is processed at MedX’s autoclave in Lakeland, Florida. Id. at 23. EWR is next in size after MedX based on Georgia market share. EWR has exclusive rights to incinerate biomedical waste at the incinerator at Georgia Baptist Medical Center. EWR hauls amounts of waste which it collects which exceed Georgia Baptist’s capacity to Ogden Martin’s facility in Lees-burg, Florida. Bio-Medical Services, which is next in size following EWR, incinerates approximately 1,000,000 lbs. yearly at the Chambers facility in South Carolina. Id. at 23-24. Waste Management and several smaller haulers scattered over the State also haul waste. Most of the waste collected by these smaller companies is incinerated out-of-state. Id. at 24. 25. Plaintiff EWR has been using incineration services at Georgia Baptist Hospital since early May, 1994. Armistead Deposition, P-Ex 34 at 32. EWR has attempted to enter into similar arrangements with other hospitals for use of their on-site incinerators without success. Id. at 33-34. EWR has exhausted the capacity of Georgia Baptist and is now transporting waste which exceeds the capacity to the Ogden Martin facility in Lees-burg, Florida. EWR has two sales people working in the field in addition to Ralph Armistead, Vice President of Sales and Marketing. Id. at 7, 39. EWR has a permanent transfer station located at 5940 Peachtree Road in DeKalb County. EWR has trucks which haul biomedical waste from its customers to its transfer station for consolidation. In addition, EWR has “wholesale” customers who pick up from their own customers and bring the waste to EWR’s transfer station. Id. at 40. 26. Plaintiff EWR recently signed a contract with a customer in Alabama. The State of Alabama requires that biomedical waste be refrigerated if it is stored more than seven days, and it is more cost-effective for EWR to haul the waste more frequently than to refrigerate it. As a result, EWR will keep a trailer at its Alabama customer’s facility for the storage of biomedical waste and will haul the trailer from this customer once weekly, even though the trailer will not be full at the end of a week. EWR will then haul the tráiler to its DeKalb County transfer station and consolidate the Alabama biomedical waste with the Georgia biomedical waste collected from local biomedical waste generators. EWR will then haul this waste to Leesburg, Florida for processing. Armistead Deposition, P-Ex 34 at 39-40. 27. Once plaintiff EWR’s proposed facility is operational, EWR will offer its customers a one-half cent price decrease because it anticipates lower operating costs due to the shorter haul to Quitman County rather than Florida. Armistead Deposition, P-Ex 34 at 44-46. 28. Plaintiff EWR does not use the BFI facility because EWR can haul waste to the Ogden Martin incinerator in Florida for a cost less than the price charged by BFI and because EWR does not want to disclose its customer list to BFI for fear that BFI will solicit its customers. Armistead Deposition, P-Ex 34 at 51-52; Watson Affidavit, P-Ex 52 at 11. F. BIOMEDICAL WASTE IN INTERSTATE COMMERCE 29. Biomedical waste and services for the transportation and disposal of biomedical waste are articles of commerce which are in the stream of interstate commerce. Stips, Pl 13. 30 Other than its geographical origin, there is no difference between biomedical waste generated in Georgia and biomedical waste generated in other states. Stips, ¶ 16. 31. Approximately 22 tons per day or 15,800,-000 pounds per year of the biomedical waste generated in the State of Georgia is transported to out-of-state disposal facilities. Armistead Deposition, P-Ex 34 at 53. Some out-of-state biomedical waste is transported into Georgia for disposal at BFI’s facility or for transfer and transportation to out-of-state facilities. Id. at 21-22. 32. The market for biomedical waste services is regional. Armistead Deposition, P-Ex 34 at 21-23. The companies in Georgia which collect and transport biomedical waste compete for business from generators in Georgia and neighboring states. Id. The one commercial disposal facility in Georgia, already permitted by defendant EPD, accepts waste from customers not only in Georgia but also from other states. Id. at 21. When selecting a company to collect and transport their biomedical waste to a disposal facility, generators of biomedical waste are choosing, on the basis of cost and the disposal site, between competing companies which dispose of waste at BFI in Georgia or at disposal facilities in neighboring states. Id. at 14. As a result, in choosing a disposal facility, companies in the business of collecting and transporting biomedical waste in Georgia choose, on the basis of cost and other factors, between competing disposal facilities in Georgia and neighboring states. 33. Once its facility in Georgia is constructed, plaintiff EWR will compete with existing commercial incinerators for waste from throughout Georgia, as well as from Alabama and northern Florida. Stips, ¶ 14. G. THE “GEORGIA NEED” REQUIREMENT IN THE COMPREHENSIVE SOLID WASTE MANAGEMENT ACT 34. In 1990, as an amendment to the Comprehensive Solid Waste Management Act (the “Act”), Georgia established an additional permitting requirement applicable only to a biomedical waste incinerator. The Act provides as follows: No permit for a biomedical waste thermal treatment technology facility shall be issued by the director [of EPD] unless the applicant for such facility demonstrates to the director that a need exists for the facility for waste generated in Georgia by showing that there is not presently in existence within the state sufficient disposal facilities for biomedical waste being generated or expected to be generated within the state. O.C.G.A. § 12-8-24(b)(l) (Supp.1994) (the “Georgia need” requirement), originally codified at O.C.G.A. § 12-8-23.1(c)(l), Ga.Laws 1990, p. 1222, § 1. The Act does not require any showing of “need” for a permit for any other type of solid waste facility. Stips, ¶ 15. However, the Act requires a showing of a need for a facility to dispose of biomedical waste generated in Georgia before a permit will issue. H. THE PLANNING REQUIREMENTS 35. As part of the permitting process, the Act requires that an applicant for any solid waste disposal permit demonstrate, not only that the proposed facility complies with all local zoning and land use ordinances and that the facility is consistent with the host jurisdiction’s approved solid waste management plan, but also that “all jurisdictions generating solid waste destined for the applicants’ facility can demonstrate that they are part of an approved solid waste plan ... and are actively involved in and have a strategy for meeting the state-wide goal of waste reduction by July 1,1996.” O.C.G.A. § 12-8-24(g) (Supp.1994); see also O.C.G.A. § 12-8-31.1(e)(3) (Supp.1994). The EPD regulations require that this showing be in the form of verification letters from the cities and counties from which the waste is generated. Ga. Comp.R. & Regs. r. 391-3-4-.02(10) (1993). Collectively, those statutory and regulatory provisions are referred to as the “Georgia planning requirements.” Stips, ¶ 17. 36. EPD has not construed the Georgia planning requirements to be limited to the waste actually generated by jurisdictions but to include all municipal solid waste generated by any generators, public or private, within any jurisdiction, and thus to apply to all municipal solid waste in Georgia. Stips, ¶ 18. 37. The Act also provides that: Prior to the issuance of any permit for a solid waste handling facility ... that will handle solid waste from jurisdictions outside Georgia, the out-of-state solid waste generating jurisdictions shall provide documentation that they have a strategy for and are actively involved in meeting planning requirements and a waste reduction goal that are substantially equivalent to the planning requirements and waste reduction goal contained in this part. O.C.G.A. § 12-8-24(g) (Supp.1994) (the “out-of-state planning requirements”). Stips, ¶ 19. 38. Thus, the Act requires that plaintiff EWR, to obtain a permit for its facility, must show (1) that in-state jurisdictions, generating waste “destined” for plaintiffs facility, have an approved solid waste plan and have an active strategy for meeting Georgia’s goal of waste reduction, and (2) that out-of-state jurisdictions, generating waste “destined” for plaintiffs facility, have a strategy and actively are involved in meeting planning requirements and a waste reduction goal substantially equivalent to Georgia’s. I. THE LIMITATION ON TRANSPORTATION 39. The Act provides: Any permit for the transportation of municipal solid waste from a jurisdiction generating solid waste to a municipal solid waste disposal facility located in another county shall be conditioned upon the jurisdiction generating solid waste developing and being actively involved in, by July 1, 1992, a strategy for meeting the state-wide goal of waste reduction by July 1, 1996. O.C.G.A. § 12-8-24(c) (Supp.1994) (the “transportation restriction”). The transportation restriction is also set forth in the EPD solid waste regulations. Ga.Comp.R. & Regs. r. 391-3nl-.06(3)(a)(8.) (1993). Stips, ¶ 20. 40. O.C.G.A. § 12-8-24(c) (Supp.1994) and Ga. Comp.R. & Regs. r. 391-3-4-.06(3)(a)(8.) condition any permit for the transportation of municipal solid waste from a jurisdiction generating solid waste to a municipal solid waste disposal facility in another county upon the generating jurisdiction’s developing and being actively involved in a strategy for meeting the state-wide goal of waste reduction by July 1, 1996. Stips, ¶69. 41. EPD can enforce the provisions on O.C.G.A. § 12-8-24(c) by revoking the permit by rule of transporters who violate the provision, or by fining such transporters. Reheis Deposition, at 45. 42. In many cases, the local jurisdiction responsible for planning is also the transporter of the solid waste (i.e., the City of Atlanta). Reheis Deposition, at 46. 43. The Director of EPD is aware of no imminent enforcement actions pending or anticipated against solid waste transporters under § 12-8-24(c). The Director could recall no enforcement action taken to date under this Code Section. Reheis Deposition, at 42. 44. Many cities and counties in Georgia have complete and approved solid waste management plans. (Director’s Exhibit 15). As of July 5, 1994, approximately 100 cities and counties, including the City of Atlanta and Fulton County, had not adopted approved solid waste management plans. List of Eligible Governments, P-Ex 8. 45. There is no regulatory requirement that transporters of solid waste operating under a permit by rule report or supply information on a regular basis to EPD concerning their compliance with § 12-8-24(c). Reheis Deposition, at 47. The Director did not have any information concerning the extent of compliance or noncompliance with this Code Section. Id. at 44. 46. Thus, although the Act has contained the transportation requirements since 1990, there is no evidence of any attempt by EPD to enforce them against any entity in order to promote or achieve any entity to adopt a waste reduction goal or plan. J. EWR’S EFFORTS TO OBTAIN A SOLID WASTE HANDLING PERMIT&emdash; THE “GEORGIA NEED” DETERMINATION 47. On December 16, 1991, plaintiff EWR filed with EPD an application for permits to construct and operate a biomedical waste incinerator in Quitman County, Georgia, with a capacity of 42 tons per day. Georgia law requires issuance of an air quality permit, a solid waste management permit and a land-disturbing permit prior to construction and operation of the proposed facility. Stips, P21/ 48 As part of its application, plaintiff EWR made a showing, based on waste generated and expected to be generated in Georgia, that there was “need” for an incinerator with capacity to dispose of over 200 tons of biomedical waste. Initially, EPD refused to process EWR’s application because EPD had in 1990 issued to American Envirecycle, Inc. a permit to incinerate up to 33 tons per day of biomedical waste, and EPD took the position that such permit took care of the “Georgia need.” In early 1992 the American Envirecycle project was abandoned, and EPD resumed consideration of the EWR application. Stips, ¶22. 49. At various points in the lengthy permitting process, defendant EPD and plaintiff EWR discussed various methods and conclusions regarding the amount of biomedical waste generated and expected to be generated in Georgia. Stips, ¶23. 50. In May, 1993, plaintiff EWR submitted evidence that there was a “Georgia need” for additional incinerator capacity in the amount of 42.53 tons per day. Stips, ¶ 24; EWR’s Certificate of Need, P-Ex 3. 51. In June, 1993, defendant EPD made a calculation as to the amount of biomedical waste generated and expected to be generated in Georgia, compared that to the existing capacity and determined that there was a “Georgia need” for a facility to handle 25.2 tons of biomedical waste per day. Stips, ¶26; Director’s Exhibit 11. 52. In discussing the “Georgia need” issue with EPD, plaintiff EWR consistently maintained, through its officers and through counsel, that the “Georgia need” requirement for a biomedical waste incinerator permit is clearly unconstitutional as violative of the Commerce Clause. EWR expressed to EPD its reluctance to challenge the statute in federal court but made it clear that a denial of its permit application would leave it no other option. Stips, ¶25. 53. In June, 1993, defendant EPD again made a calculation as to the amount of biomedical waste generated and expected to be generated in Georgia, compared that to the existing capacity and determined that there was a “Georgia need” for a facility to handle 25.2 tons of biomedical waste per day. Stips, ¶ 26; Biomedical Waste TreatmentyDisposal Capacity Need in Georgia, P-Ex 13. 54. The Director, through his staff, advised plaintiff EWR that defendant EPD would issue a permit to incinerate up to 25.2 tons per day, if EWR would commit not to challenge the constitutionality of the statute in federal court. EWR decided to modify its application to seek a permit for 25.2 tons per day capacity and to accept the permit as offered by EPD, even though it authorized less capacity than sought by EWR, because of EWR’s interest in moving forward with this project. As requested by EPD, EWR agreed not to challenge the constitutionality of the permit as issued but advised EPD that EWR could not honor this agreement if the permit were appealed by local opponents of the project. Stips, ¶27. 55. On July 8, 1993, defendant EPD issued solid waste handling permit No. 118-003P(Inc) to plaintiff EWR, authorizing construction and operation of an incinerator handling up to 25.2 tons of biomedical waste per day. On that same date, EPD also issued an air quality permit and a land-disturbing permit to EWR. Stips, ¶28; EWR’s Solid Waste Handling Permit, P-Ex 14. 56. O.C.G.A. § 12-8-24(b)(l) was applied by defendant EPD to limit the capacity of plaintiff EWR’s facility to the incineration of not more than 25.2 tons per day, based on EPD’s determination that a need exists for capacity to burn only 25.2 tons per day of biomedical waste generated and expected to be generated in Georgia. Stips, ¶ 67. K. EWR’S EFFORTS TO OBTAIN A SOLID WASTE PERMIT — THE PLANNING REQUIREMENTS 57. The Act imposes numerous procedural prerequisites to issuance of a solid waste handling facility permit. The proposed facility must comply with local zoning and land use ordinances, O.C.G.A. § 12-8-24(g) (Supp. 1994); the local government must hold a public meeting before any siting decision, O.C.G.A. § 12-8-26(b) (1992); and the applicant must advertise the submission of the permit application, O.C.G.A. § 12-8-32(a) (1992). After defendant EPD has determined that the location is a suitable site for the proposed facility, the applicant must advertise that fact, and the host local government must initiate the facility issues negotiation process. O.C.G.A. § 12-8-32(c) (1992). A permit cannot be issued until a prescribed process of negotiation with local landowners and other interested persons has been completed. O.C.G.A. § 12-8-32(d) (1992). Stips, ¶ 29. 58. In the case of the EWR permit, the facility issues negotiation process was initiated and completed, with the parties thereto negotiating an agreement which addressed the hours of operation, the routes for truck traffic, local recycling efforts, and other concessions by EWR to local concerns. Stips, ¶ 30; Facilities Issues Agreement, P-Ex 9. 59. The solid waste permitting process is also contingent upon the solid waste planning process. The Act requires that each city and county in Georgia must develop or be included in an approved local or regional comprehensive solid waste management plan no later than July 1, 1993. O.C.G.A. § 12-8-31.1(a) (Supp.1994). After July 1, 1992, no permit can be issued for any solid waste facility, public or private, unless the local government where the facility is to be located is part of an approved solid waste management plan. O.C.G.A. §§ 12-8-24(g) (Supp.1994); 12-8-31.1(e) (Supp.1994). Stips, ¶31. 60. Quitman County, with the cooperation and assistance of EWR, went through the long and involved process of adopting a local solid waste management plan in accordance with the plan procedures developed by the Georgia Department of Community Affairs (“DCA”). These procedures require local governments to hold public hearings and require the Regional Development Center (the “RDC”) and DCA to approve the local solid waste management plan. Stips, ¶ 32; Quit-man County Solid Waste Management Plan, P-Ex 10. 61. Quitman County held the requisite public hearings and followed all required procedures, starting with the initial public hearing held on October 8,1992. The Quitman County Solid Waste Management Plan includes the EWR facility. Stips, ¶ 33; Quitman County Solid Waste Management Plan, P-Ex 10. 62. The Quitman County Solid Waste Plan was approved by the county commissioners, approved by the RDC and, after certain revisions were made, approved by DCA. Prior to issuance of the final letter of approval from DCA, certain opponents of the project filed suit in the Superior Court of Fulton County, seeking to enjoin the issuance of the DCA approval of the Quitman County Solid Waste Management Plan. The Superior Court of Fulton County, the Honorable Frank M. Eldridge presiding, denied the request for a temporary restraining order in open court and, by a written Order entered on September 8,1993, denied the request for injunctive relief and for mandamus. On July 2, 1993, Commissioner Jim Higdon issued to EPD a letter confirming that Quitman County had an approved Solid Waste Management Plan and that, as a result, EPD was authorized to issue permits to facilities in Quitman County. Stips, ¶ 34; Letter from Ralph Balkcom, P-Ex 5; Letter from James Higdon, P-Ex 6. 63. Other cities and counties in Georgia have gone through the process of obtaining approval for their solid waste management plans. As with Quitman County, the solid waste management plans have in many instances become the focus of local political controversies dealing with solid waste. As of June 1, 1994, DCA has approved the solid waste plans of 587 cities and counties, out of a total of 695 local governments. Cities and counties without approved solid waste management plans include the City of Atlanta and Fulton County. Stips, ¶ 35; [List of Eligible Governments, P-Ex 8]. 64. The amount of biomedical waste generated in any given community and in Georgia as a whole is only a tiny fraction (less than one percent) of the total Georgia solid waste stream. Stips, ¶36. 65. In December, 1993, EPD wrote EWR a letter which advised EWR of the planning requirements prerequisite to the obtaining of a solid waste facility permit. This letter stated that the planning demonstrations must be made prior to issuance of a permit and that the permit would be limited to receipt of waste from those jurisdictions for which planning demonstrations had been made. Stips, ¶37. 66. In the course of the permitting process, EWR contended, on several grounds, that EWR was not required to submit planning compliance letters from all jurisdictions in which any potential customers are located. EWR did submit letters from the governing bodies of Habersham County and all municipalities located within Habersham County, certifying that they had approved solid waste management plans and that they are each actively involved in and have a strategy for meeting the State’s waste reduction goal. EWR also submitted, through counsel, information published by the State of Florida which demonstrated that Florida has a strategy for meeting Florida’s waste reduction goal, and that Florida’s strategy is more ambitious than Georgia’s. Stips, ¶ 38; Letter from Dick Watson, P-Ex 7; Letter from Patricia Barmeyer, P-Ex 4. 67. Based on the submissions from Habersham County and its municipalities and the information regarding Florida, EPD concluded that EWR had satisfied the Georgia planning requirements and the out-of-state planning requirements of the Act and the regulations. EPD construed the requirements in O.C.G.A. § 12-8-24(g), § 12-8-31.1(e)(3) and Ga.Comp.R. & Regs. r. 391-3^-.02(10) only as threshold prerequisites for issuance of a permit. Since EWR had no commitments from any customers to send waste to its facility, EPD concluded that there was no waste “destined for” the facility within the meaning of O.C.G.A § 12-8-24(g), § 12-8-31.1(e)(3) and Ga.Comp.R. & Regs. r. 391-3-4-.02(10). EPD concluded that § 12-8-24(g), § 12-8-31.1(e)(3) and Ga.Comp.R. & Regs. r. 391-3-^-02(10) did not require any limitation on the permit, and EPD did not condition EWR’s permit to receipt of waste only from those jurisdictions for which the planning demonstration had been made. Stips, ¶ 39; Written Direct Testimony of Watson, P-Ex 53 at 27. L. THE ADMINISTRATIVE APPEAL OF EWR’S PERMIT 68. After the issuance of EWR’s permit on July 8, 1993, a timely appeal of the permit was filed with the Board of Natural Resources by the Legal Environmental Assistance Foundation, Inc. (“LEAF”), and several residents of Quitman County (collectively, the “Opponents”). The appeal was heard by Mark A. Dickerson, the Administrative Law Judge appointed by the Board of Natural Resources (the “ALJ”), in accordance with O.C.GA.. § 12-2-2(c)(2) and (3) (Supp.1994) and the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-13 (1990) (the “APA”). Stips, ¶40. 69. In the administrative appeal the Opponents raised no issues regarding the environmental aspects of the permit. The issues raised on the administrative appeal dealt only with the questions whether there was a “Georgia need” for the facility for Georgia waste and whether the planning requirements in the statute and regulations had been satisfied. Stips, ¶ 41; Joint Prehearing Submission, P-Ex 38. 70. The ALJ conducted prehearing proceedings and then held an evidentiary hearing which lasted five days. The ALJ entertained legal arguments both orally and in post-hearing briefs and, on January 3, 1994, issued a Final Decision affirming the issuance of the permit to EWR for the facility in Quitman County, Georgia. Stips, ¶ 42; Final Decision of the ALJ, P-Ex 15. 71. The ALJ heard detailed evidence from the Opponents, from EPD and from EWR concerning the amount of biomedical waste generated and expected to be generated in Georgia and concerning the amount of disposal capacity presently available in Georgia. The ALJ concluded that there is a “Georgia need” for the capacity of the EWR facility greater than the amount actually permitted by EPD. Stips, ¶ 43; Final Decision of the ALJ, P-Ex 15 at 13. 72. Certain of the legal issues raised by the Opponents were resolved by the ALJ during the course of the hearing on a motion by EWR and EPD at the close of the Opponents’ case. [Administrative Hearing Transcript, P-Ex 16, Volume IV at 68-109.] At that time, the ALJ ruled that EPD had been correct in not considering, as part of the “presently available” capacity to dispose of biomedical waste, the capacity of the biomedical waste incinerator at the Medical Center of Central Georgia (“MCCG”) in Macon. [Id., Volume IV at 101.] The ALJ noted in his Final Decision that the facility was not considered because a local ordinance prohibits it from accepting biomedical waste from outside the county in which it is located. Stips, ¶ 44; Final Decision of the ALJ, P-Ex 15 at 11, n. 19. 73. In his Final Decision, the ALJ considered as disposal capacity “presently in existence” the capacity of landfills to accept the total amount of biomedical waste generated by small quantity generators in Georgia. Final Decision of the ALJ, P-Ex 15 at 13. 74. The ALJ also ruled at the close of the Opponents’ case that the Opponents had failed to demonstrate that the permit as issued by EPD violated the planning requirements of O.C.G.A. § 12-8-24(g) (Supp.1994). Stips, ¶ 45; Administrative Hearing Transcript, P-Ex 16, Volume IV at 96-100. M. THE APPEAL TO SUPERIOR COURT 75. After issuance of the Final Decision of the ALJ affirming the Permit, the Opponents filed an appeal to the Superior Court of Quitman County. [Petition for Judicial Review, P-Ex 39.] No environmental issues were raised in Superior Court. The Opponents sought reversal or modification of the permit on two issues of law, as follows: (1) The Opponents contended that the Director and the ALJ erred in refusing to consider the capacity of the biomedical disposal facility of MCCG in determining “Georgia need” under the provisions of O.C.G.A. § 12-8-24(b)(l) (Supp.1994); and (2) The Opponents contended that the Director and the ALJ erred in regarding the requirements of O.C.G.A. § 12-8-24(g) as being merely “threshold” requirements and had abused their discretion in not limiting the permit to receipt of waste from those jurisdictions for which the planning demonstrations had been made. [LEAF’S Brief in Support of Petition for Judicial Review, P-Ex 42.] Both defendant EPD and plaintiff EWR responded to the appeal and filed briefs contending that the issuance of the permit was proper in all respects and that the decision of the ALJ should be affirmed. Stips, ¶ 46; Response of EWR to Petition for Judicial Review, P-Ex 41; Director’s Response to Petition for Judicial Review, P-Ex 40; Response of EWR to Appellants’ Brief in Support of Petition for Judicial Review, P-Ex 43; Brief of Director in Response to the Appellants’ Brief in Support of Petition for Judicial Review, P-Ex 44. 76. A hearing was held on April 29, 1994 before the Honorable Lowrey S. Stone, Judge of the Superior Courts, Pataula Judicial Circuit, at which time counsel for all parties presented oral arguments. Stips, ¶47. 77. At this hearing the Superior Court expressed its objection to the prospect of waste being imported into Quitman County to EWR’s facility without any geographical limitations. The following are excerpts from statements made by the Superior Court at the hearing: “I can’t see a legislative intent there, Mrs. Cole, that it should be open-ended, and that’s what the Administrative Law Judge was in effect holding, that once just a few of them made these certifications they could start taking it from everywhere. And I — I certainly don’t think the Legislature intended that.” [Superior Court Hearing Transcript, P-Ex 18 at 24.] “But to say that is simply a — a threshold thing and is — and from there on is open-ended, that is — that’s taking in a lot of territory and burdening the State of Georgia with a — with a potential deluge of waste from other states without complying with that and, frankly, the Court cannot read that legislative intent into the statute.” [Id. at 27.] “Are you just going to take Alabama’s waste without any kind of showing and any kind of determination? I don’t think that’s due process of law.” [Id. at 50.] “Do — do you realize the enormity of — of the amount of waste that would be coming in there without any further supervision, without any further control?” [M at 52.] Stips, ¶48. 78. After the hearing, the parties submitted briefs on potential Commerce Clause and preemption issues, as requested by the Superior Court. Supplemental Brief of Director, P-Ex 45; Post-Hearing Brief of EWR, P-Ex 46; Supplemental Post-Hearing Brief of EWR, P-Ex 48; Appellants’ Supplemental Brief, P-Ex 47. N. THE DECISION OF THE SUPERIOR COURT 79. By an Order entered May 25, 1994, the Superior Court reversed the decision of the ALJ and reversed the issuance of the permit to plaintiff EWR. Stips, ¶ 49; Final Order of Superior Court, P-Ex 17. 80. The Court held that the ALJ and EPD erred in refusing to consider the capacity of MCCG (19 tons per day) in determining “Georgia need” and that the ALJ and EPD erred in not limiting the permit to receipt of waste from jurisdictions for which planning requirements had been met. Stips, ¶ 50; Final Order of Superior Court, P-Ex 17. 81. O.C.G.A § 12-8-24(g) (Supp.1994), O.C.G.A § 12-8-31.1(e)(3) (Supp.1994), and Ga.Comp.R. & Regs. r. 391-3-4-.02(10) (1993) have been applied by the Superior Court to limit the waste which EWR’s facility may handle to waste from only those Georgia jurisdictions which had demonstrated at the time of permit issuance that they are part of an approved solid waste plan and are actively involved in and have a strategy for meeting the state-wide goal of waste reduction by July 1, 1996. Stips, ¶ 68. 82. After receipt of the Court’s order, EWR and even EPD (through the Director) requested that the Superior Court amend its Order, to provide that the matter was not only reversed but also remanded for further proceedings not inconsistent with the Order. EPD joined in that request. By an Order entered June 3, 1994, the Superior Court refused to amend or modify its Order. Stips, ¶ 51; Letter from Patricia Barmeyer, P-Ex 49; Letter from Brenda Cole, P-Ex 50; June 3, 1994 Order, P-Ex 51. 83. The permit issued by EPD and the decision of the ALJ have been reversed (with no remand) by the Superior Court of Quitman County. Stips, ¶ 60; Final Order of Superior Court, P-Ex 17; June 3, 1994 Order, P-Ex 51. 84. Pursuant to O.C.G.A. § 50-13-20 (1990) and O.C.G.A. § 5-6-35(a)(l) and (b) (Supp. 1994), both EWR and the Director filed petitions for discretionary review of the decision of the Superior Court on June 24, 1994. On July 14, 1994, the Court of Appeals entered orders granting EWR’s and the Director’s petitions for discretionary appeal. EWR and the Director have filed notices of appeal, and the costs in Superior Court have been paid by EWR. When discretionary review is granted, the filing of a timely notice of appeal is a supersedeas of the judgment of the Superior Court upon payment of all costs in Superior Court by the appellant(s). O.C.G.A. § 5-6-46(a) (Supp.1994). Stips, ¶ 52; EWR’s Petition for Leave to Appeal, P-Ex 19; Director’s Application for Discretionary Appeal, P-Ex 20; LEAF’S Response to Petitions for Appeal, P-Ex 21. 85. Thus, although EPD and the ALJ were satisfied that EWR had satisfied Georgia’s “need” restrictions and planning requirements, the Superior Court reversed the ALJ and the EWR permit and refused to remand the issues back to the ALJ and EPD for further consideration. Plaintiff EWR contends that the Georgia statutes are not only unconstitutional on their face but applied in an unconstitutional manner by the Superior Court in violation of the Commerce Clause of the United States Constitution. O. GEORGIA’S HISTORY OF DISCRIMINATORY REGULATION OF INTERSTATE MOVEMENT OF SOLID WASTE 86. In 1971, Georgia passed a statute which prohibits the movement of waste from any county in Georgia to a landfill in another county or from any other state, unless both the generating county and the county of disposal give their permission. O.C.G.A. § 36-1 — 16(a) .(1993); Ga.Laws 1971, p. 445. Stips, ¶ 53. 87. In 1988 the General Assembly enacted the “special solid waste” provisions of the solid waste law. Ga.Laws 1988, p. 1965. By this amendment, Georgia created a separate category of waste which was defined to mean out-of-state waste, see O.C.G.A. § 12-8-22(37) (1992), and set up a separate and cumbersome process to obtain a permit to handle out-of-state waste. On August 11, 1992, Chief Judge Wilbur Owens, in the federal District Court for the Middle District of Georgia, held that Georgia’s “special solid waste” statutes in the Comprehensive Waste Management Act were unconstitutional as violative of the Commerce Clause in Southern States Landfill, Inc. v. Georgia Dep’t of Natural Resources, 801 F.Supp. 725 (M.D.Ga.1992). Those Georgia statutes have since been repealed. Ga. Laws 1993, p. 399, § 7. Stips, ¶ 54. 88. The special solid waste law (held unconstitutional) contained the following subsection: After July 1, 1992, the owner or operator of a facility proposing to handle special solid waste shall provide certification that the jurisdiction generating the special solid waste to be handled has a strategy for and is actively involved in meeting planning requirements and a waste reduction goal that are equivalent to the planning requirements and the waste reduction goal of this part. O.C.G.A. § 12 — 8—27(f) (1992). When the General Assembly amended the Comprehensive Waste Management Act in 1993, it repealed Section 12-8-27 in its entirety but incorporated into the planning requirements, Section 12-8-24(g), a revised version of the former Section 12 — 8—27(f), so as to require the planning certifications for both in-state and out-of-state generating jurisdictions. Ga.Laws 1993, pp. 402-07. 89. The codified statement of legislative intent in the Comprehensive Solid Waste Management Act of 1990 (the “Act”) is as follows: [T]he director of the Environmental Protection Division of the Department of Natural Resources shall, in exercising any authority granted in this part, recognize that the states which share common borders with Georgia also share the vital natural resources of clean air, clean surface waters, and clean ground waters which flow across those common borders and that, therefore, those bordering states have a mutual interest with Georgia to manage solid waste in a manner that does not threaten to contaminate the shared natural resources. The director shall also recognize, however, that such mutual interest may not exist between Georgia and states which do not share common borders and natural resources with it. Therefore, the director is instructed to be particularly mindful of the need to monitor, inspect, and regulate closely that solid waste generated from sources located in states not sharing common borders and natural resources with Georgia. O.C.G.A. § 12-8-21(e) (1992 & Supp.1994). Stips, ¶55. 90. As enacted in 1990, the Act includes provisions restricting the issuance of solid waste permits to facilities which have made a showing that the host jurisdiction and all Georgia jurisdictions whose waste is destined for the facility have complied with the Georgia planning requirements. O.C.G.A. § 12-8-24(g) (Supp.1994). Stips, ¶56. 91. In 1993, the General Assembly amended the Act to require the planning showing even from out-of-state jurisdictions whose waste is destined for a facility seeking a solid waste permit. O.C.G.A. § 12-8-24(g) (Supp.1994). Stips, ¶ 57. 92. In processing plaintiff EWR’s application, defendant EPD has implemented the “Georgia need” restriction for a biomedical waste incinerator permit. In applying that provision, EPD initially refused to process the application. Subsequently, when EPD made a determination that there was a “Georgia need” for a facility with 25.2 tons of capacity, EPD required EWR to amend its application to seek less capacity than the operating capacity of the facility, before a permit would be issued. Stips, ¶ 58; Biomedical Waste TreatmenVDisposal Capacity Need, P-Ex 13. EPD issued the Permit to EWR for a facility with 25.2 tons capacity. 93. In applying the planning provisions of the Act, defendant EPD gave a limited construction to the planning requirements in O.C.G.A. § 12-8-24(g), by requiring the planning demonstration only from those jurisdictions from which waste was committed to go to the proposed facility at the time of issuance of the permit (of which there were none), and by not limiting EWR’s permit to receipt of waste only from jurisdictions for which the planning certifications had been provided. Stips, ¶ 59; EWR’s Solid Waste Handling Permit, P-Ex 14. P. CURRENT STATUS OF THE QUITMAN COUNTY PLAN 94. On June 8,1993, the Board of Commissioners of Quitman County adopted the Solid Waste Management Plan for Quitman County (the “Quitman County Plan”) as approved by the Georgia Department of Community Affairs on June 2, 1993. [Letter from Ralph Balkcom, P-Ex 5.] The Quitman County Plan includes the proposed EWR facility and, by agreement with EWR, the Quitman County Plan provides that EWR will arrange for the transportation of Quitman County household waste and that EWR will pay for recycling containers for use in Quitman County. Stips, ¶ 61; Quitman County Solid Waste Management Plan, P-Ex 10 at 17. 95. On June 14, 1994, the Board of Commissioners of Quitman County (the “Board”) adopted a resolution approving proposed amendments to the Quitman County Plan which would delete the proposed EWR biomedical waste incinerator from the Solid Waste Management Plan. Stips, ¶ 62. 96. Before any proposed amendments to the Quitman County Plan can become final and effective, the following procedures and events must occur: • the Board must submit additional information to the Lower Chattahoochee Regional Development Commission (the “RDC”), including information as to how (by taxes or otherwise) Quitman County intends to finance the proposals of the plan, including the 10-year disposal capacity and 25 percent waste reduction elements of the plan; • the RDC must hold a regional public hearing on the proposed amended plan, after providing notice of the proposed amendment to contiguous local governments and affected state agencies; • the RDC must review and approve of the proposed amended plan; • the Georgia Department of Community Affairs must review and approve of the proposed amended plan; • the Board must officially adopt the proposed amended plan. By law, the above procedures require a minimum of sixty days for completion, after submission of all necessary information to the RDC for review. Stips, ¶ 63.- 97. On July 5,1994, by a letter from the RDC, the Board was advised that additional documentation must be submitted before the RDC would proceed to hold the required regional hearing. Among the additional items required is a statement that the Board will implement the proposals of the plan by taxes or other means. Stips, ¶ 64; Letter from Ron Starnes, P-Ex 12. 98. As of July 11, 1994, the RDC had not received any additional information or submittals from the Board in connection with the proposed amendment to the Quitman County Plan. Stips, ¶ 65; Letter from Ron Starnes, P-Ex 12. 99. At the present time, the original Quitman County Plan, adopted June 8, 1993 remains in force and effect. Stips, ¶ 66; Letter from Ron Starnes, P-Ex 12. 100. O.C.GA. § 12-8-24(b)(l) was applied by EPD to limit the capacity of EWR’s facility to the incineration of not more than 25.2 tons per day, based on EPD’s determination that a need exists for capacity to burn only 25.2 tons per day of biomedical waste generated and expected to be generated in Georgia. Stips, ¶ 67. 101. O.C.GA. § 12-8-24(g) (Supp.1993), O.C.GA. § 12-8-31.1(e)(3) (Supp.1993), and Ga.Comp.R. & Regs. r. 391-3-4-.02(10) (1993) have been applied by the Superior Court to limit the waste which EWR’s facility may handle to waste from only those Georgia jurisdictions which had demonstrated at the time of permit issuance that they are part of an approved solid waste plan and are actively involved in and have a strategy for meeting the state-wide goal of waste reduction by July 1, 1996. Stips, ¶ 68. 102. O.C.GA. § 12-8-24(c) (Supp.1993) and Ga. Comp.R. & Regs. r. 391-3-4-.06(3)(a)(8.) condition the issuance of any permit for the transportation of municipal solid waste from a jurisdiction generating solid waste to a municipal solid waste disposal facility in another county upon the generating jurisdiction’s developing and being actively involved in a strategy for meeting the state-wide goal of waste reduction by July 1, 1996. Stips, ¶ 69. 103. Waste is not “destined for” a proposed solid waste facility within the meaning of O.C.GA. § 12-8-24(g) and § 12-8-31.1(e)(3) unless the proposed facility has binding commitments to accept the waste. At the time of the issuance of the Permit, EWR had no binding contracts or other commitments to accept and dispose of waste at its facility. Therefore, there was no waste “destined for” the EWR facility, and EWR was not required by the Act to make any demonstration that any jurisdictions, in-state or out-of-state, had complied with the planning requirements. Stips, ¶ 70; Director’s Exhibit 26, p. 27. 104. Even if the Bibb County Ordinance might be held invalid, as preempted by State law or as violative of the Commerce Clause, in a proceeding brought by MCCG or some other party with standing to challenge the ordinance, the capacity of the MCCG facility is not capacity which is “presently in existence” within the meaning of O.C.GA. § 12-8-24(b)(1) and thus should not be considered in determining the need for the EWR facility. Stips, ¶71. Q. PURPOSE OF THE “GEORGIA NEED” PROVISION 105. Defendant EPD had a key role in the drafting and passage of the bill that became the Comprehensive Solid Waste Management Act (the “Act”). 1994 Reheis Deposition, P-Ex 30 at 7. The “Georgia need” provision was not included in the Act as passed but was included in a 1990 amendment to the Act. Ga.Laws 1990, p. 1222, § 1. The bill with the “Georgia need” provision was introduced by a legislator to block a specific facility. Georgia EPD took a neutral stance with regard to this bill. 1994 Reheis Deposition, P-Ex 30 at 7-9. 106. As stated in a letter dated June 30, 1994 from counsel for the Director, the purpose of the “Georgia need” provision is “[t]o limit the volume of biomedical waste handled, transported, and disposed of within Georgia by establishing a cap on the quantity of biomedical waste that may be treated using thermal treatment technology.” Letter from Alan Gantzhom, P-Ex 29. In his deposition on July 1, 1994, the Director acknowledged that this purpose may not be accomplished because: if somebody were bringing waste from outside of Georgia and using capacity that exists in Georgia for incineration, and somebody inside Georgia was generating waste and they also wanted to incinerate their waste, and there was not capacity inside Georgia, they may have to take it somewhere else, or they may have to move it to a different — a hospital facility that was willing to take waste from elsewhere in Georgia. And, therefore, the — under that scenario, the handling and transport might be increased. It wouldn’t be limited, necessarily, if someone was bringing in waste from out of state. But the amount being disposed by incineration would be limited. 1994 Reheis Deposition, P-Ex 30 at 23-24. 107. In his deposition on July 1, 1994, the Director testified that he continues to have a concern that EPD cannot control and regulate out-of-state generators and that those generators might not follow EPD’s regulations with respect to the waste they send to Georgia for disposal. 1994 Reheis Deposition, P-Ex 30 at 28-29. 108. In his deposition on July 1, 1994, the Director testified that the purpose of the “Georgia need” provision is “to reduce the hazards and the exposures by putting limits on the amount of air quality increments that would be used by incinerators.” 1994 Reheis Deposition, P-Ex 30 at 13-14. 109. The “Georgia need” requirement does not “limit in any way the generation of biomedical waste.” 1994 Reheis Deposition, P-Ex 30 at 14. EPD’s efforts on solid waste reduction have focused on households and commercial and industrial waste, but not on biomedical waste. Id. at 27. Because of the overriding health and safety and cost issues involved, the Director acknowledges that EPD’s programs will have little impact on the amounts of biomedical waste generated. Id. at 26-27. The total amount of biomedical waste generated in Georgia must necessarily be handled and transported in Georgia even if it is transported for disposal in another State. In short, the Georgia need requirement restricting the amount of biomedical waste that can be disposed of in Georgia does not limit or in any way reduce the amount of biomedical waste generated in Georgia. 110. In seeking to achieve the purpose of limiting the volume of biomedical waste handled, transported and disposed of within Georgia, EPD did not consider any “other alternatives to achieve that purpose.” 1994 Reheis Deposition, P-Ex 30 at 27. 111. House Bill 1169 as passed by the House and Senate in the 1992 Session of the General Assembly amended the “Georgia need” provision so as to make it yet more difficult to make a showing of “Georgia need” for a biomedical waste incinerator. However, the bill as passed also included a floor amendment which would have relieved an exis