This case is before us on remand from the Supreme Court of the United States. Oregon Waste Systems v. Dept. of Env. Quality, 511 US _, 114 S Ct 1345, 128 L Ed 2d 13 (1994).
On judicial review pursuant to ORS 183.400,1 this court considered the validity of ORS 459.297, ORS 459.298, former OAR 340-61-115(1), and former OAR 340-61-120(6),2 providing for the imposition of a per-ton surcharge on the disposal in Oregon of solid waste generated outside the state. Gilliam County v. Dept. of Environmental Quality, 316 Or 99, 849 P2d 500 (1993).3 This court first held that former OAR 340-61-115(1) and former OAR 340-61-120(6) are not invalid under ORS 183.400(4)(b), because those rules do not exceed the statutory authority of the promulgating agency, the Environmental Quality Commission. 316 Or at 106-07. This court next held that certain portions of ORS 459.298 are unconstitutional under Article IV, section 25, and Article V, section 15b, of the Oregon Constitution. Id. at 107-08. This court held, however, that those portions of the statute are severable and that the remaining portions of the statute shall remain in force. Id. at 108-10. Finally, this court held that ORS 459.297, the remaining portions of ORS 459.298, former OAR 340-61-115(1) and former OAR 340-61-120(6) do not violate the Commerce Clause, Article I, section 8, clause 3, of the Constitution of the United States.4 Id. at 110-13.
On certiorari, the Supreme Court of the United States held that the surcharge provided in former OAR 340-61-115(1) and former OAR 340-61-120(6) discriminates *255against interstate commerce, Oregon Waste Systems v. Dept. of Env. Quality, supra, 114 S Ct at 1350, is not justified as a compensatory tax, id. at 1351-53, and constitutes impermissible protectionism, id. at 1353-54. Accordingly, the Court held:
“Because respondents have offered no legitimate reason to subject waste generated in other States to a discriminatory surcharge approximately three times as high as that imposed on waste generated in Oregon, the surcharge is facially invalid under the negative Commerce Clause.” Id. at 1355.
The Court reversed the judgment of this court and remanded the case for further proceedings. Ibid.
On remand, the validity of our prior holdings under Oregon law is not at issue. We now hold, however, that, insofar as ORS 459.297, ORS 459.298, former OAR 340-61-115(1), and former OAR 340-61-120(6) provide for the imposition of a per-ton surcharge on disposal in Oregon of solid waste generated outside the state, those statutes and rules are invalid under Article I, section 8, clause 3, of the Constitution of the United States. Taken together with our earlier decision, the result is that ORS 459.297, ORS 459.298, and former OAR 340-61-120(6) are invalid in their entirety, and former OAR 340-61-115(1) is invalid insofar as it provides for a surchage on disposal in Oregon of solid waste generated outside the state.
The decision of the Court of Appeals, Gilliam County v. Dept. of Environmental Quality, 114 Or App 369, 837 P2d 965 (1992), is affirmed in part and reversed in part. ORS 459.297, ORS 459.298, and former OAR 340-61-120(6) are invalid, and former OAR 340-61-115(1) is invalid to the extent described.
ORS 183.400 provides for judicial review of agency rules and states in part:
“(4) The court shall declare the rule invalid only if it finds that the rule:
“(a) Violates constitutional provisions; [or]
“(b) Exceeds the statutory authority of the agency.”
After this court issued its prior opinion, the pertinent administrative rules were renumbered. Former OAR 340-61-115 has been renumbered to OAR 340-97-110, and former OAR 340-61-120 has been renumbered to OAR 340-97-120.
The texts of the relevant statutes and rules are set forth in Gilliam County v. Dept. of Environmental Quality, 316 Or 99, 102-03, 849 P2d 500 (1993).
Article I, section 8, clause 3, of the Constitution of the United States, provides:
“The Congress shall have Power * * * To regulate Commerce * * * among the several States[.]”