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August 27, 1984

SHAYNE BROS., INC., Plaintiff,

The opinion of the court was delivered by: JACKSON

 JACKSON, District Judge.

 This case presents a constitutional challenge to a District of Columbia ("District") health regulation which prohibits the disposal of solid waste matter collected beyond the city limits in "disposal facilities operated by the District" without its prior permission. It is now before the Court on the District's motion to dismiss on jurisdictional grounds, and cross-motions for summary judgment on the merits. For the reasons hereafter stated the Court will deny the motion to dismiss and plaintiff's motion for summary judgment and will grant defendant District of Columbia's motion for summary judgment.


 Plaintiff Shayne Bros., Inc., ("Shayne") is a District of Columbia corporation in the business of trash removal in the District of Columbia and neighboring jurisdictions in suburban Maryland and Virginia. It holds a solid waste collector's license from the District, and some 22 of its 60 trucks are licensed to operate in the District. The District of Columbia itself operates three solid waste landfills -- two of its own within the city and a third it shares with several other local governments in nearby Fairfax County, Virginia -- primarily to accommodate refuse generated by businesses and homes in the District. *fn1" To that end it has enacted a municipal regulation, D.C.Regulation 8-3:609, which provides as follows:

(a) Solid wastes generated outside the District shall not be delivered to any of the disposal facilities operated by the District unless prior arrangements for acceptance have been made with the Commissioner.
(b) Should any licensee or his agent violate this section, any or all vehicles operated by said licensee may be denied access to any or all District disposal facilities for a period not to exceed thirty days for each such violation. Prior to such denial of access the licensee may request and shall be afforded an administrative hearing by the Director of the Department of Environmental Services or his duly authorized agent on the proposed denial. Nothing in this subsection shall prevent a licensee from being prosecuted for violation of the Regulations in this Part. *fn2"

 On March 26, 1983, a Shayne truck was inspected at one of the D.C. landfills and found to contain waste matter originating in Maryland. As a result, the offending truck was barred from in-city landfills for a month, and Shayne was notified that if the transgressions were repeated within the year, all of its trucks would be suspended automatically for 90 days. On July 20, 1983, Shayne filed the instant complaint for declaratory and injunctive relief against the District of Columbia, *fn3" alleging that D.C.Regulation 8-3:609 imposes an unconstitutional burden upon interstate commerce in violation of the Commerce Clause of the U.S. Constitution, Art. I, ยง 8, cl. 3.


 The District of Columbia moves to dismiss on the ground that Shayne has failed to exhaust its administrative remedies, viz., the administrative hearing to which it is entitled before being denied access to intra-city disposal sites, to be followed by judicial review of any decision within the District's own judicial system. Alternatively, it argues, Shayne could assert its constitutional claim in defense of a criminal prosecution for future violations of the regulation. Finally, it urges this Court, as a federal court, to abstain under the "Pullman Doctrine" from a decision on constitutional grounds as to the validity of purely local legislation not yet considered by a local tribunal.

 Shayne responds that none of the usual reasons obtain here for insisting upon a prior resort to the administrative process before suit. It admits that it was in violation of the regulation in March, 1983, and it expects in the future to collect trash in Maryland and bring it into the District if it can do so legally. A fact-finding hearing is, thus, unnecessary. No special administrative expertise is involved, and no on-going administrative proceedings will be disrupted, none having been commenced or even contemplated by either party. To the extent unconstitutionality might be a defense to a criminal prosecution, it is unlikely ever to receive a hearing. Shayne's grievance is with the District's right to evict it from its landfills, whether or not it is ever prosecuted for attempting to enter them by force or stealth.

 It is true, of course, that federal courts are to avoid "needless friction with state policies" by refraining from constitutional adjudication concerning them when a decision by a state court on other than constitutional grounds might make an end of the controversy. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 500, 61 S. Ct. 643, 645, 85 L. Ed. 971 (1941). It appears that D.C.Regulation 8-3:609 has yet to receive a construction by a District of Columbia court, and until it does it is impossible to say for a certainty that it may be lawfully applied as it has been to Shayne. Abstention is, however, generally appropriate only when state law is ambiguous or unsettled, not merely unconstrued, see Wisconsin v. Constantineau, 400 U.S. 433, 439, 91 S. Ct. 507, 511, 27 L. Ed. 2d 515 (1971), and if there is a saving construction to be put upon Regulation 8-3:609 without assaying the burden it places upon interstate movement of waste materials, the District has yet to suggest it. The regulation is impeccably clear: the District can reject refuse from other jurisdictions, or impose conditions upon its receipt not imposed upon identical matter entering its waste disposal process from a point within the city, for any reason or none.

 Abstention for the sake of federal-state harmony alone is not required, Colorado River Water Conservation District v. United States, 424 U.S. 800, 813-14, 96 S. Ct. 1236, 1244-45, 47 L. Ed. 2d 483 (1976), and the Court declines to await a decision by a District of Columbia court on an issue now properly before it. See Timmons v. Andrews, 538 F.2d 584, 585-86 (4th Cir.1976); Silver v. Woolf, 538 F. Supp. 881, 883-85 ...

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