# Petition for Writ of Certiorari — Upjohn Co. v. North Haven Planning & Zoning Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1826%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 500 U.S. 918 ## Text 4 rciiuN YS: 90-1 £7 P|: WAR 20 W001 ! | OFRCE OF THE CLERK No. 90- IN THE Supreme Court of the United States OCTOBER TERM, 1990 THE UPJOHN COMPANY, Petitioner, v. NORTH HAVEN PLANNING AND ZONING COMMISSION and ScoTT SCHATZLEIN, Respondents. Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit PETITION FOR A WRIT OF CERTIORARI H. BARTOW FARR, III * RICHARD G. TARANTO ONEK, KLEIN & FARR 2550 M Street, N.W. Washington, D.C. 20037 (202) 775-0184 S. ROBERT JELLEY WILLIAM J. DOYLE BRIAN J. CASEY WIGGIN & DANA One Certury Tower New Haven, CT 06508-18382 (203) 498-4400 * Counsel of Record \ . = ——S— WILSON - Epgs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 a ae — QUESTION PRESENTED Whether, consistent with the Resource Conservation and Reeovery Act (RCRA), 42 U.S.C. § 6901 et seq., a local government may ban disposal of locally generated hazardous waste within its borders, even though the fed- eral Environmental Protection Agency has approved a local disposal plan as safe and the local government has not established that the plan is unsafe. (i) ii RULE 29.1 STATEMENT Pursuant to Rule 29.1 of the Rules of this Court, peti- tioner Upjohn Company states that it has no parent com- pany and that its subsidiaries, other than wholly owned subsidiaries, are Admiral Espanola, S.A.; Chugai-Upjohn, Inc.; Cobb-Vantress, Inc.; Complejo Asgrow Semillas- S.A.; and Saudi Urethane Chemicals Company. TABLE OF CONTENTS QUESTION PRESENTED ........... icaneieaes nsabueceiansesions > Ey Ls | - e EE TIE ee i cespaneusnecncenss RAP IAS A. Federal Legal Framework .......... AEE Te PANS ARO OS I 1. The Closure Plan ........ VD epee env Cen UO oo. swaudbacesd vetnuseucsunebnccnns 1. District Court Proceedings ..................000........ 2. The Court of Appeals Decision ...................... REASONS FOR GRANTING THE PETITION I. Il. RESPONDENTS’ BAN OF A LOCAL HAZ- ARDOUS WASTE DISPOSAL FACILITY IS INCONSISTENT WITH RCRA ......00000o0........ a cnnencennvanenccennncess B. ame Bem es Teaue Here ..................................... OTHER FEDERAL COURTS, INCLUDING THE EIGHTH CIRCUIT, HAVE RECOG- NIZED FEDERAL PREEMPTION OF LOCAL Se AS A ede eo EEA Sadibisicitbiedliumaninsrscke APPENDICES: A. Court of Appeals Decision ........................ ak B. District Court Decision ................. Sd I ia ic. eememens BG Mewuimtionse .................................... (iii) il = Noa On NO — = tet _~ Oo O&O — w 14 14 18 23 26 la 4a 23a iv TABLE OF AUTHORITIES Cases Page American Mining Congress v. EPA, 824 F.2d 1177 iia: Se SITIES “sncsnciniteectnicuncecneiiansbiienacainindaesens 15 City ef Philadelphia v. New Jersey, 437 U.S. 617 PUTED : conecadadesinddusnascecgicelbantind sullitaianianiibensenacomabanas 16, 23 ENSCO, Inc. v. Dumas, 807 F.2d 748 (8th Cir TINIE ude cennassidodagdenehecknisatdedsnidanvimetdaasastatiaiamanatiminadeie dN passim Hillsborough County v. Automated Medical Lab- oratories, Inc., 471 U.S. 707 (1985) -.......000000.... 20 Hines v. Davidowitz, 312 U.S. 52 (1941) 200000000... 14 International Paper Co. v. Ouellette, 479 U.S. 481 ESININIEY Dinininahccaciehcincicacinaasteacsneadiemathaislgnbigrabacadneenie 14 Nationa: Solid Wastes Management Ass’n v. Ala- bama Dep’t of Envtl. Management, 910 F.2d 713 (11th Cir. 1990), modified in other respects, 1991 U.S. App. LEXIS 1818 .........0000000000000000...... 24 Northwest Cent. Pipeline Corp. v. State Corp. Comm’n, 109 S. Ct. 1262 (1989) _...00 ee... 14 Ogden Envtl. Servs. v. City of San Diego, 687 F. Supp. 1486 (S.D. Cal. 1988) ................................. passim Rollins Envtl. Servs. (FS), Inc. v. Parish of St. James, 775 F.2d 627 (5th Cir. 1985) .................. 24, 25 Sharon Steel Corp. v. City of Fairmont, 334 S.E.2d 616 (W.Va. 1985), appeal dismissed, 474 U.S. ST TIED sa icraissiiniaccdedoncaniieahatbdininnneebideabcananataaabeenn 25 Upjohn Co. v. North Haven Planning & Zoning Comm’n, Nos. CV-89-0250632-S, CV-89-0280709- S, CV-89-0284413-S (Conn. Super. Ct., Jud. Dist. of New Haven Feb. 2], 1991) ......0........... 8 Statutes Toxic Substances Control Act (TOSCA), 15 U.S.C. BN II i sckna ac scnides dc ipepsndlnd iced dioncaesinsdeiac biaoacoueniacn 18, 25 Resource Conservation and Recovery Act (RCRA), ee a I mann 2.3 SL A Ee Ree sis ieee 3 FREE LEE ie mats 19 REE ELS een PM Te ls NE AL Ns 3,5 a passim SOI s.ctiscishieshibssestinaipechshicecdlinsin siciiniiediananaiaata 3, 19, 24 Vv TABLE OF AUTHORITIES—Continued Page SUM ccthcdnnsessitnasiess ba niaigiadaiadstandmemamnets 4,17 a passim RRR IRS RER RGU SUR ater eenemer Er 4 Comprehensive Environmental Response, Compen- sation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seq. .......... RE ECTS WE ae the WORST RDU es UEEU MOEN 15 I 15 Solid Waste Disposal Act Amendments of 1980, Pub. L. No. 96-482, § 14, 94 Stat. 2342 0000. 18 Rule> and Regulations I 5 ek 5 ev en ssididebdatenniae’ 3 gf RE ee aA me a a AN 3 | SEES Ee eeaers Seana Oey IR Ra 4, 6, 22 as eae 4 SNP OPER UE None 4 TT LET SCT ED 4 SE TO a ne eee 4,21 SI anne een Om ne COE. et 4 td fF eee sciicaebikadeecanetamakonenlakan 17, 20 eR EE | nnn C Le 18 45 Fed. Reg. 33,395 (1980) ...........0......... owe 17 GD TP, TR, Te CRD ecnncncecccccnscnssnececcccccnncescceesss 19 51 Fed. Reg. 16,424 (1986) ............. 21 Congressional Materials 126 Cong. Rec. 13,347 (1979) ..................................... 19 132 Cong. Rec. 28,486 (1986) ..................................... 16 H.R. Conf. Rep. No. 1444, 96th Cong., 2d Sess. UNITE ties shcitiucchiech eciaiiebaidacacinicicacecbiaeanaeaknsdi ed decaatl asada 19 H.R. Rep. No. 198, Part I, 98th Cong., Ist Sess. IIIT cecesectivegdssbinaniiatichalenishaniasasadiomeadaie tatiana 19 H.R. Rep. No. 1491, Part I, 94th Cong., 2d Sess. 1 RE eerste ere rae REMMI NOTE. RUT Fre 19 S. Rep. No. 11, 99th Cong., Ist Sess. (1985)........ 16 Other Authorities Brief for Respondents William Reilly and EPA, Hazardous Wastes Treatment Counci! v. Reilly, No. 90-1433 (D.C. Cir., filed Feb. 19, 1991)........ 17 vi ‘ABLE OF AUTHORITIES—Continued Brief for the United States as Amicus Curiae, National Solid Wastes Management Ass'n v. Alabama Dep’t of Envtl. Management, 910 F.2d 713 (No. 90-7047, 11th Cir. 1990) —.................... Brief for the United States as Amicus Curiae, Sharon Steel Corp. v. City of Fairmont, No. 85- SI MIE Ts GU BUPIIIIDY css csnsccincscnsecccncassescesnnensssss EPA, Background Document: Standards Appli- cable to Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facili- ties Under RCRA (1080) ..................c.....c.0:0000005.. Weisskopf, Carolinas’ Clash Over Toxic Waste: Sign of a Nationwide Problem, Wash. Post, I IL SET. «ncaa hac nnnbeenesntihanieaadapibivnaiea Page 16 25 21 14 IN THE Supreme Court of the United States OCTOBER TERM, 1990 No. 90- THE UPJOHN COMPANY, Petitioner, V. NoRTH HAVEN PLANNING AND ZONING COMMISSION and SCOTT SCHATZLEIN, Respondents. Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit PETITION FOR A WRIT OF CERTIORARI The Upjohn Company petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Second Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (Pet. App. la-3a) is reported at 921 F.2d 27. The opinion of the United States District Court for the District of Connecticut (Pet. App. 4a-22a) is reported at 753 F. Supp. 423. JURISDICTION The court of appeals entered judgment on December 14, 1990. Pet. App. la. On March 5, 1891, Justice Marshall extended the time for filing a petition for a writ of cer- 2 tiorari to and including March 21, 1991. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 125411). STATUTORY PROVISIONS INVOLVED The principal statutory provision at issue is Section 3009 of the Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 6929, which provides, in pertinent part: “Nothing in this chapter shal! be construed to pro- hibit any State or political subdivision thereof from im- posing any requirements, including those for site selec- tion, which are more stringent than those imposed by [federal hazardous-waste] regulations.” Other pertinent statutory and regulatory provisions are set out in the appendix to this petition. Pet. App. 23a-65a. STATEMENT This case involves one locality’s effort to shift to other localities a waste problem created as a result of industrial activity within its jurisdiction. Petitioner Upjohn pro- duced a large pile of solid waste as a byproduct of chemi- cal manufacturing in North Haven, Connecticut, before 1985. The pile contains material classified as hazardous waste under the Resource Conservation and Recovery Act (RCRA). 42 U.S.C. § 6901 et seg. The zoning officials of North Haven, who are respondents here, directed Upjohn to remove the waste pile from the Town. They took that position even as the federal Environmental Protection Agency (EPA), pursuant to RCRA, was in the process of considering and eventually approving Upjohn’s pro- posal to “close” the waste pile on the site. Without any finding that the EPA-approved closure plan is unsafe, the district court held that the local ban did not conflict with the federal regulatory scheme, and the court of ap- peals affirmed. Petitioner challenges that ruling on the ground that federal law preempts this kind of naked ef- fort to export a local waste problem. 3 A. Federal Legal Framework In 1976, Congress enacted RCRA based on the finding that the problem of solid waste disposal generally, and of hazardous waste disposal specifically, had “become a mat- ter national in scope and in concern” necessitating federal action to fill regulatory gaps left by recently enacted laws directed at reducing air and water pollution. 42 U.S.C. §$ 6901 (a) (4), (b) (3). The centerpiece of RCRA is Sub- title C, which creates a “cradle-to-grave” regulatory sys- tem to ensure that hazardous wastes—generally to be identified and listed by the EPA—are safely managed from generation through transportation through final treat- ment, storage, and disposal. 42 U.SC. § 6921 et seq. The fundamental aim of the system is to guarantee that hazardous waste will come to rest in disposal facilities that have permits for operation, closure, and post-closure monitoring (42 U.S.C. $6925) and that comply with de- tailed regulatory standards (42 U.S.C. § 6924; 40 C.F.R. Parts 264, 265). Those standards are designed to “mini- mize the present and future threat to hum:.. health and the environment.” 42 U.S.C. § 6902(b) (declaring na- tional policy) .' 1 Section 6925 requires any operator or owner of a treatment, storage, or disposal facility to obtain a permit, and Section 6924 provides for substantive standards that apply to such a facility. 42 U.S.C. §§ 6924, 6925(a) and (c). Recognizing that the develop- ment of regulatory standards and the processing of permit applica- tions would take time, Congress provided that, upon fulfillment of certain conditions, an owner or operator would be entitled to auto- matic issuance of an “interim status” permit while its application for a permanent permit was under review. 42 U.S.C. § 6925(e). EPA’s principal regulatory standards for treatment, storage, and disposal facil’ties seeking final permits are contained in 40 C.F.R. Part 264. The principal standards for the many facilities that are in interim status are contained in 40 C.F.R. Part 265. Although Congress in 1984 added detailed substantive require- ments to Section 6924, some of which concern waste disposal on land, those requirements are generally inapplicable to facilities, like Up- john’s, that no longer accepted wastes after 1985. Accordingly, the 4 In carrying out its responsibility to ensure the exist- ence of adequate disposal facilities, the EPA has provided that an owner of such a facility must have a plan describ- ing the manner and financing of its eventual ciosure and must submit that plan for approval when the time for closure arrives. 40 C.F.R. $§ 265.112(a) and (d), 265.140-.150. Publie notice is to be given and public com- ments received, with a hearing to be held if necessary. 40 C.F.R. § 265.112(d) (4); see also 42 U.S.C. § 6974 (b) (requiring notice to local government and opportunity for public hearing before issuance of permit). The EPA may not approve the closure plan unless it meets specific re- quirements for particular types of facilities, such as land- fills (40 C.F.R. $§ 265.300-.316 (subpart N)), as well as the generally applicable condition that the closure plan minimize the post-closure escape of hazardous substances “to the extent necessary to protect human health and the environment” (40 C.F.R. § 265.111(b)). Upon approvai, the closure plan must be executed, in whole or in relevant part, within 180 days (absent an extension). 40 C.F.R. § 265.113 (b).? Congress recognized a role for States in the regulation of hazardous wastes. RCRA provides that the EPA Ad- ministrator may authorize a State to administer a haz- ardous waste program “in lieu of the Federal program” (e.g., issuing and enforcing the required permits) but only if the state program is, inter alia, “equivalent to” and “consistent with” the federal program. 42 U.S.C. § 6926(b). The statute also provides, with respect to EPA hazardous waste regulations, that “[n]othing in this chapter [42 U.S.C. §§ 6901-6992k] shall be con- substantive standards relevant to this case are those established by the EPA. * Although the regulations cited in the text are those applicable to facilities in interim status, the regulations applicable to facilities with permanent permits (40 C.F.R. Part 264) are identical in all material respects. 5 strued to prohibit any State or political subdivision thereof from imposing any requirements, including those for site selection, which are more stringent than those imposed by such regulations.” 42 U.S.C. § 6929. B. Factual Background 1. The Closure Plan. Petitioner Upjohn, a producer of pharmaceuticals, agricultural products, and synthetic organic chemicals, acquired a chemical manufacturing plant in North Haven, Connecticut, in 1962, and operated the plant as expressly allowed by the Town’s zoning reg- ulations. Pet. App. 5a; Joint Appendix in Court of Ap- peals (“JA”) 501-02. The North Haven facility has al- ways included a svstem—modified over the years with the involvement of the Connecticut Department of En- vironmental Protection (DEP)—to treat wastewater generated as a part of the manufacturing process. JA 196-200. The system, as it evolved, included lagoons and tanks to hold the wastewater while it was biologically treated and while solids in the water settled. JA 98-101, 107-11, 113, 224. Beginning in 1973, the settled solid waste (sludge) was placed in a pile located on the Upjohn site near the lagoons. JA 100-102, 502. Upjohn stopped adding waste to the sludge pile in April 1985 and, at about the same time, altered its treatment system to re- duce by 90 percent the quantity of sludge produced. This case concerns the sludge pile, which covers four acres and is contained by sloping earthen sidewalls holding roughly 83,900 cubic yards of material. Pet. App. 5a-6a. The pile contains certain materials whose properties render the sludge hazardous waste under RCRA. 42 U.S.C. §§ 6921, 6924(d) and (e); 40 C.F.R. § 261.31. In early 1986, after ceasing all disposal of wastes in the sludge pile, Upjohn submitted to the EPA and the Connecti- cut DEP a plan for closing the pile on the site, having corresponded with both agencies on the matter for the 6 preceding five years. JA 202-08, 211-16, 332-34." De- veloped by an environmental engineering firm with sub- stantial experience in preparing closure plans for hazard- ous waste disposal facilities, Upjohn’s plan was revised several times while under agency review, based on com- ments submitted by respondent North Haven Planning and Zoning Commission and others, both in writing and at a public hearing held by the EPA and DEP. JA 390-91, 400-01, 504, 592. Under the final version of the closure plan, a temporary “cap” consisting of an imper- meable barrier, clay, and soil would be placed on the pile, and groundwater would be collected and treated to min- imize any release of chemicals; then, after the pile had adequately settled and stabilized, a permanent cap of im- permeable material and topsoil would be placed on the pile, and groundwater collection, treatment, and moni- toring would continue for 30 years (unless approval is granted to cease earlier). JA 393-96. The EPA and DEP jointly approved the closure plan on September 29, 1989, thereby obligating Upjohn to carry out the initial phase of the plan by March 29, 1990. JA 505, 655-56. In the approval decision, the EPA and DEP found that the plan complies with applicable regulations, including specific requirements for landfills and the basie federal requirement that the closure plan control, minimize, or eliminate the escape of hazardous materials “to the extent necessary to protect human health and the environment.” 40 C.F.R. § 265.111(b). See J.A. 655-56.4 * The Upjohn waste site has an interim-status permit and there- fore came under the interim-status regulatory standards. At the time of the closure plan’s submission and eventual approval, the Connecticut DEP had not been authorized by the EPA to administer the RCRA regulatory scheme. Becatse Connecticut had its own regulatory statute, however, the closure-approval process in this case was carried out by the EPA and DEP jointly. 4The EPA/DEP letter noted that the approval “does not relieve the facility of the obligation to obtain any other authorizations as 7 2. The North Haven Ban. While the federal and state environmental authorities were examining and approving Upjohn’s closure plan, respondents implemented their de- termination, arrived at some years earlier, to force Up- john simply to rid the Town of the sludze pile. On Feb- ruary 14, 1983, the Town zoning authorities had taken two steps to get rid of the waste disposal problem asso- ciated with the industrial activity that the Town had long permitted. First, the Commission enacted the pres- ent version of Section 3.27.2.24 of the Zoning Regula- tions, which makes explicit what, according to the Town, was implicit in the prior zoning ordinances: that outside storage of waste products or material is prohibited with- out express approval of the Commission. JA 552, 688. See Pet. App. 19a, 65a. Second, the Commission ordered Upjohn to submit a plan for the eventual removal of the waste pile, inciuding the requirement as a condition of approving certain permits for improvements in other fa- cilities on the site. JA 559-60. The Town’s commitment to elimination of the waste pile was made concrete in May 1986, shortly after Up- john submitted its initial closure proposal to the EPA and DEP. At that time, the Town Zoning Enforcement Offi- cer, whose successor is respondent Scott Schatzlein, issued a cease and desist order to Upjohn, forbidding it to con- tinue maintaining the pile. JA 503 (stipulated facts). Although the order refers to the condition imposed on February 14, 1983 (J.A. 500, 560), it has been defended as resting on the Town’s position that maintenance of the pile is a zoning violation. Thus, in upholding the order, the Connecticut Superior Court recently accepted the Town’s argument that (a) Section 6.1 of North Haven’s zoning regulations has long prohibited any land use in an industrial zone that is not expressly allowed and is not may be required by other provisions of the Connecticut General Statutes, Regulations of Connecticut State Agencies, Code of Fed- eral Regulations, or Federal Statutes.” JA-656. 8 an “accessory” use related to a permitted use, and (b) the waste pile, although not challenged by the Town until 1983, had never been expressly allowed and was not an accessory use. Upjohn Co. v. North Haven Planning & Zoning Comm’n, Nos. CV-89-0250632-S, CV-89-0280709- S, CV-89-0284413-S, slip op. at 15-21 (Conn. Super. Ct., Jud. Dist. of New Haven Feb. 21, 1991).° In January 1989, respondent Commission explicitly af- firmed the same policy, demanding that the waste pile be removed from the Town. It did so in denying applica- tions filed by Upjonn that sought permission to install improvements to its wastewater treatment system or- dered by the state DEP. JA 227-28, 626. The parties here have stipulated that the Commission denied the ap- plications solely because of its view that the pile is in 5 As we have noted in the text, respondents have always defended both the cease and desist order and the 1983 condition, in the court of appeals and district court below as well as in the state court actions, as resting on the alleged prohibition of the waste pile by North Haven’s zoning regulations (Section 3.27.2.24 as amended in 1983 and the pre-existing Section 6.1). See, e.g., C.A. Br. of Plaintiffs-Appellees at 32 (“the basis for the order was Upjohn’s violation of the zoning regulations” and “the issue raised in the state court appeal was the same as that raised in this case’’) ; Plaintiffs’ Post-Trial Mem. at 14-28 (D. Conn.); Preliminary Brief for the Zoning Board of Appeals of the Town of North Haven, in Upjohn Co. v. Zoning Bd. of Appeals, No. CV-86-0250632-S, at 21-30 (Conn. Super. Ct., Jud. Dist. of New Haven April 6, 1987) (arguing that pre-1983 zoning regulations prohibited the waste pile). The Connecticut Superior Court took the same view when it found it necessary to reach and resolve the issue whether the waste pile was a zoning violation before (and after) 1983, deciding that it was. Upjohn Co. v. North Haven Planning & Zoning Comm’n, supra, slip op. at 15-'8. See also id. at 23 (“commission cannot require the applicant to meet standards not contained in the regulations’’) ; id. at 29 (refusing to discuss another issue because it had been made academic by remainder of court’s ruling). Ten copies of the recent Superior Court decision have been lodged with the Clerk of the Court, 9 violation of the Town’s zoning regulations. JA 505 (stip- ulated facts) .° Throughout this extended dispute, including the period after federal and state approval of Upjohn’s closure plan, the Town has thus relied upon its zoning power as the justification for its efforts to force removal of the sludge pile. At no point has either of the respondents made any specific findings that the closure plan approved by the EPA and DEP is unsafe or that only elimination of the waste pile would adequately protect human health and the environment, in North Haven alone or generally. At the same time, it has remained undisputed that re- spondents’ insistence on removal of the waste pile from the Town would impose enormous additional costs on Upjohn (and, perhaps, on other localities to which the waste would be moved). The district court noted that the EPA/DEP-approved closure plan was estimated in 1986 to cost approximately $1 million. Pet. App. 6a. By contrast, removal was estimated in 1986 to cost between 20 and 40 times the $1 million needed for closure, de- pending on the available means of removal. Pet. App. 6a. The cost of removal has grown substantially, both in absolute terms and relative to the cost of on-site closure, since 1986.7 6 The state trial court has recently held that the CommiSsion could not lawfully base its denial of permission to improve the w: stewater treatment facility on an alleged violation at the waste pile located elsewhere on Upjohn’s site. Upjohn Co. v. North Haven Planning & Zoning Comm’n, supra, slip op. at 21-28. Although the Commission’s implementation of its position through denial of the requested application has been set aside, the position itself has not been abandoned. 7If land disposal were the chosen alternative, thousands of truck- loads would have to be shipped great distances, because neither Connecticut nor any other nearby State currently has an adequate land disposal site. During the excavation and move, the pile would be exposed to rainwater and snow that would increase the leaching of materials into groundwater. As an alternative to land disposal, incineration would be more expensive and likely require substantial 10 C. Proceedings Below 1. District Court Proceedings. Three weeks after Up- john received federal and state approval for its closure plan, and after it had begun the initial capping of the waste pile, respondents filed suit in Connecticut Superior Court, claiming that Upjohn’s implementation of the closure plan would violate North Haven’s zoning regula- tions and asking for a preliminary and permanent in- junction that would forbid Upjohn to implement the closure plan and require Upjohn to remove the pile. See JA 11. Upjohn, which is headquartered in Michigan, re- moved the case to federal court pursuant to 28 U.S.C. § 1441. Upjohn contended that the zoning regulations did not require removal and, in any event, that respondents’ direction to remove the pile was preempted by RCRA and by the EPA approval of the closure plan. Upjohn coun- terclaimed for an injunction against respondents’ order to remove the pile. JA 13-24. After trial, the district court ruled in favor of re- spondents on the federal issue and enjoined implementa- tion of the closure plan.* Pet. App. 4a-2la. As an initial matter, the court abstained from deciding whether the Town’s zoning regulations do in fact require removal of the waste pile, instead assuming that they do. Pet. App. lla. Proceeding on that assumption, the court then held that the regulatory prohibition is not preempted by fed- eral law.°® movement of the pile anyway, for there is no incineration facility nearby; incineration also would probably result in increased air pollution. Chemical fixation of the material may not be possible and might require removal in any event. 8 The trial was consolidated with the hearing on the application for a preliminary injunction. Although respondents had applied for a temporary restraining order, that request was denied. Pet. App. 4a-5a. The temporary capping of the waste pile, as called for by the initial phase of the closure plan, was completed by the time that the district court ruled on May 31, 1990. ® The district court also abstained from deciding whether the Town’s position was inconsistent with state law. Pet. App. 12a. In reaching the question whether the assumed local requirement of 11 The court reasoned that application of the Town’s ban on outdoor waste storage (Zoning Regulation § 3.27.2.24) to Upjohn’s facility was authorized by the RCRA “savy- ings” clause, which disclaims preemption of ‘any require- ments, including those for site selection, which are more stringent than those imposed by [EPA] regulations” under RCRA. 42 U.S.C. § 6929. The court recognized that both the Eighth Circuit and a federal district court had held local bans on disposal facilities to be outside the scope of the savings clause and inconsistent with RCRA’s aim of ensuring adequate safe disposal capacity. See ENSCO, Inc. v. Dumas, 807 F.2d 743 (8th Cir. 1986) ; Ogden Envtl. Servs. v. City of San Diego, 687 F. Supp. 1436 (S.D. Cal. 1988). The district court here distin- guished those decisions, however, on the ground that the ban in this case was not adopted after, or in response to, a specific federal approval of a waste-disposal project. Pet. App. 19a-20a. The court also relied on the fact that the Town’s ban allows for the possibility of exemptions, although the court made no findings as to the basis for not extending an exemption to Upjohn. Z/d. at 20a-21a. Finally, the court observed that the EPA/DEP letter approving Upjohn’s closure plan stated that Upjohn was not thereby being relieved from obtaining any further authorizations required by Connecticut General Statutes. Id. at 21a. 2. The Court of Appeals Decision. The court of ap- peals affirmed, agreeing that the Town’s ban was con- removal was federally preempted, the court initially suggested that petitioner was at least required to apply for a permit to implement its closure plan. Jd. at 13a-14a. As respondents later explained to the court of appeals, however, the district court’s preemption ruling was “not dependent on whether or not Upjohn had applied for the permits.” Plaintiffs-Appellees’ Memorandum of Law in Opposition to Defendant-Appellant the Upjohn Company’s Motion for Stay of Appeal at 5-6. Upjohn did subsequently apply for permits, which the Commission denied precisely because of the alleged zoning viola- tion. Ibid. 12 sistent with federal law. Pet. App. la-3a. First, the court, like the district court, pointed to the RCRA sav- ings clause, which allows local governments to impose “more stringent” regulations. Next, it noted the sentence in the EPA,/DEP approval letter that disclaimed pre- emption of any obligation Upjohn had to obtain author- izations “required” by “the Connecticut General Stat- utes,” state agency regulations, or federal statutes or reg- ulations (see note 4, supra) ; the court observed that local zoning codes are “authorized” by the Connecticut Gen- eral Statutes (in §§ 8-1 and 8-2). Pet. App. 2a. Then, the court said that the EPA and DEP had “responded to public comments and questions by stating that if the Con- necticut courts upheld a ruling that Upjohn’s current plan would violate zoning regulations, Upjohn would have to submit to EPA and DEP a new plan for review and approval.” Pet. App. 2a-3a.'° Against this background, the court of appeals, without further analysis, rejected the preemption argument “substantially for the reasons stated in the Memorandum of Decision of Judge Daly dated May 31, 1990, published at [753] F. Supp. [423] (1990).” Pet. App. 3a. ©The court had in mind the following passage from the State DEP’s summary of public comments and responses, issued in April 1989 (JA 603) : Public Comment Will DEP/EPA require Upjohn to submit, along with its pend- ing application for a closure/post-closure plan, a plan indicating how they would remove the sludge pile in the event the pending North Haven Planning and Zoning court action so required? DEP/EPA Response No. If the final determination from the court upholds the com- plaint filed by the Planning and Zoning Commission, Upjohn would have to submit a waste removal closure/post-closure plan to DEP. EPA for review and approval. 13 REASONS FOR GRANTING THE PETITION The Second Circuit has held that a local veto of a plan to dispose of hazardous waste—a veto made without any articulated and well-supported environmental basis and in the face of an EPA finding that the disposal plan ade- quately protects human health and the environment—is consistent with federal law. That view, which allows a municipality to garner the benefits of industrial activity without sharing the costs, is incorrect. Not surprisingly, it is also in conflict with the view taken by other federal courts, including the Eighth Circuit. See, e.g., ENSCO, Inc. v. Dumas, 807 F.2d 743 (8th Cir. 1986); Ogden Envtl. Servs. v. City ef San Diego, 687 F. Supp. 1436 (S.D. Cal. 1988). The federal scheme embodied in RCRA establishes a national policy aimed at solving the national problem of providing adequate facilities for the safe disposal of hazardous wastes. Although RCRA permits localities to serve that policy by imposing “more stringent” require- ments on disposal facilities (42 U.S.C. § 6929), it does not allow a locality to wall itself off from the solution by simply banning a disposal facility within its borders, with the inevitable effect that some other jurisdiction will be burdened with the problem. However attractive that sort of exclusionary policy might appear from a purely local peint of view, it is not “more stringent” than fed- eral requirements, for it is no more protective of the en- vironment, considered from the necessary national per- spective. Indeed, Congress has recognized that the sort of “not in my back yard” (NIMBY) syndrome that was at work in this case, if allowed to prevail, would under- mine the RCRA policy of ensuring safe disposal of haz- ardous wastes. See pages 15-16, infra. The Second Circuit was thus mistaken in concluding that federal law allows a local community’s effort to ex- port its hazardous-waste problem to other communities when a local solution has already been found safe by fed- 14 eral authorities. Other federal courts have rejected that approach and recognized the invalidity of such near- sighted efforts, holding them preempted by RCRA and other statutes. See, e.g., ENSCO, Inc. v. Dumas, supra; Og- den Envtl. Servs. v. City of San Diego, supra. If the Second Circuit’s decision stands, however, local communi- ties will be encouraged to follow North Haven’s lead and ban local hazardous-waste disposal within their borders. The federal regulatory scheme cannot function, and the environment will suffer, if localities are permitted to disclaim their share of the national responsibility for safe disposal." I. RESPONDENTS’ BAN OF A LOCAL HAZARDOUS WASTE DISPOSAL FACILITY IS INCONSISTENT WITH RCRA. A. The Federal Policy A local ban on a hazardous-waste disposal facility, without any finding that the facility must be removed for environmental safety, is contrary to the federal scheme established by RCRA. As such, it is preempted by federal law. See, e.g., Northwest Cent. Pipeline Corp. v. State Corp. Comm’n, 109 S. Ct. 1262, 1273 (1989) ; International Paper Co. v. Ouellette, 479 U.S. 481, 491-92 (1987); Hines v. Davidowitz, 312 U.S. 52, 67 (1941). It is, to begin with, unmistakable that Congress re- garded the problem of hazardous waste to be a national problem, not one to be left to the initiative of state and local governments. To bring about a national solution, Congress sought in RCRA to ensure the safe disposal of 11 Protectionist efforts to avoid responsibility for waste disposal have become a national problem. See Weisskopf, Carolinas’ Clash Over Toxic Waste: Sign of a Nationwide Problem, Wash. Post, March 18, 1991, p. A7 ‘describing “new kind of civil war’ between “states that have incinerators and landfills to handle their wastes” and “ ‘have not’ states that have dodged the politically sticky task of siting hazardous waste facilities at home”). 15 hazardous wastes by guaranteeing the development of a sufficient number of adequate disposal facilities. See American Mining Congress v. EPA, 824 F.2d 1177, 1179 (D.C. Cir. 1987) (Congress’s “ ‘overriding concern’ ” was to create “a national system to insure the safe manage- ment of hazardous waste”) (citation omitted). That guarantee is a logical prerequisite to the functioning of the entire “cradle-to-grave” management system, which depends on the existence of safe final resting places— disposal facilities—for the hazardous waste that is an inevitable byproduct of industrial and other human ac- tivity. A local ban that lacks a particularized environ- mental justification is manifestly inconsistent with that congressional goal: there would be no disposal at all if every jurisdiction adopted a comparable policy. Congress, in fact, has taken specific notice of the ten- sion between the national commitment to adequate dis- »osal facilities embodied in RCRA and the tendency of local communities to favor their placement elsewhere. Thus, in a 1986 amendment to the Comprehensive Envi- ronmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601 et seg., Congress resorted to the financial leverage of Superfund money to pursue the RCRA goal.” As the Senate Committee explained, the RCRA goal was not being met with existing tools because the “not in my back yard” (NIMBY) syndrome leads to parochial protectionism; the tendency of local governments to fall prey to the syndrome, said the Com- mittee, undermines the national policy of RCRA: Pressures from local citizens place the political sys- tem in an extremely vulnerable position. Local offi- cials have to respond to the fears of local citizens. 12 Tn Section 104(c) (9) of CERCLA, Congress declared that no Superfund money may be spent for remedial actions in any State that does not ensure, in its own borders or through contracts with other States, enough disposal capacity meeting RCRA standards to handle the hazardous waste generated in that State for the next 20 years. 42 U.S.C. § 9604(c) (9). 16 The broader social need for safe hazardous waste management facilities often has not been strongly represented in the siting process. A common result has been that facilities have not been sited, and there has been no significant increase in hazardous waste capacity over the past several years. In 1976, the Resource Conservation and Recovery Act (RCRA) was passed, mandating the construc- tion of needed hazardous waste facilities and placing the responsibility for siting the facilities with the States. Unfortunately, when RCRA was first passed, Congress failed to anticipate the intensity of public opposition to new and expanded waste management facilities. While everyone wants hazardous waste managed safely, hardly anyone wishes it managed near them. This is the NIMBY syndrome (not in my backyard). Yet if the RCRA and Superfund pro- grams are to work—if public health and the envi- ronment are to be protected—the necessary sites must be made available. S. Rep. No. 11, 99th Cong., 1st Sess. 22-23 (1985). To achieve that end, Congress used its Superfund leverage as one device “to force States to provide safe and ade- quate facilities for toxic and hazardous waste.” 132 Cong. Ree. 28,436 (1986) (remarks of Sen. Chafee) .'* 13 A similar form of protectionism, based on the same NIMBY principle, has been condemned by the United States government in the context of supporting a Commerce Clause challenge to local measures designed to keep hazardous waste from coming into a State. Brief for the United States as Amicus Curiae in National Solid Wastes Management Ass’n v. Alabama Dep’t of Envtl. Man- agement, 910 F.2d 713 (No. 90-7047, 11th Cir. 1990), modified in other respects, 1991 U.S. App. Lexis 1813, at 2 (“While most would agree that adequate capacity for safe disposal of hazardous waste is important to the nation’s health and welfare, individual states and localities are likely to succumb to the ‘not in my backyard’ (NIMBY) arguments of their constituents ... .”). The United States noted in the same brief (at 15) that this Court in City of Philadelphia v. New Jersey, 437 U.S. 617, 62% 17 The EPA likewise has explicitly and formally recog- nized that the national policy of RCRA is not compatible with efforts by one part of the country to declare itself exempt from the solution to the hazardous-waste problem. Thus, in its regulation discussing the circumstances in which a state hazardous-waste program is to be regarded as not “consistent”? with the federal program, EPA has stated: “Any aspect of State law or of the State pro- gram which has no basis in human health or environ- mental protection and which acts as a prohibition on the treatment, storage or disposal of hazardous waste in the State may be deemed inconsistent.” 40 C.F.R. § 271.4 (b)."* The agency comment upon issuance of the regula- tion further clarified that point: “State programs which contain provisions that prohibit treatment, storage or dis- posal of hazardous waste within the State, will be deemed inconsistent if the prohibition has no basis in human health or environmental protection.” 45 Fed. Reg. 33,395 (1980) (emphasis added)."® If a state program is not (1978), held “that states may not place the burden of protecting their resources or economy on other states.” That is the effect not only of a ban on imports but also of a ban on keeping in a com- munity hazardous waste that is already there, having been ygen- erated by local industrial activity that has long benefited the com- munity. In terms of RCRA policy, if not of Commerce Clause law, such a ban is just as destructive as, and indeed more irresponsible than, a local effort to seal itself off from waste created outside its own jurisdiction. 4 The EPA has said that the regulation reflects its construction not only of the state authorization provision, 42 U.S.C. § 6926, but of the siatutory savings clause as well, 42 U.S.C. § 6929. Brief for Respondents William Reilly and EPA in Hazardous Waste Treat- ment Council v. Reilly, No. 90-1433 (D.C. Cir., filed Feb. 19, 1991), at 10, 34-35. 5 The first part of the regulation reflects the same principle, declaring that any state measure that “unreasonably restricts, im- pedes, or operates as a ban on the free movement across the State border of hazardous wastes from or to other States for treatment, storage, or disposal at facilities authorized to operate under the Federal or an approved State program shall be deemed inconsist- ent.” 40 C.F.R. § 271.4(a). 18 consistent with federal policy when it operates as a ban without environmental justification, a local government measure with the same effect and same lack of particular- ized environmental justification is every bit as inconsist- ent with federal policy.'® B. The Ban at Issue Here The court of appeals, like the district court before it, gave short shrift to concerns about national policy, find- ing instead that Congress had allowed local communities to require removal of hazardous waste pursuant to the “savings clause” contained in 42 U.S.C. § 6929. But that reading would turn a provision allowing more rigorous assumption of environmental responsibilities into one al- lowing wholesale avoidance of environmental responsi- bilities—just the opposite of what Congress had in mind. The plain fact is that a ban on a hazardous waste facility, without a particularized environmental basis, is not saved by the savings clause.'’ See ENSCO, Inc. v. 16 EPA also expressed its view of the national responsibility for hazardous waste disposal in addressing local opposition to disposal of polychlorinated biphenyls (PCBs), which are regulated by the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.: EPA has become concerned that actions by local and State governments to prohibit disposal of PCBs and other substances in their jurisdictions could frustrate the national goal of prop- erly disposing of hazardous chemical substances. While EPA has always believed that States should have the right to set pollution control standards more restrictive than the Fe@zrz! standards, it would be a matter of national concern if this principle were to become the basis for refusal by States to share in the national responsibility for finding safe means for the proper disposal of hazardous substances. 44 Fed. Reg. 31,528 (1979). Although the statutory contexts are concededly different, those comments are equally applicable to haz- ardous waste regulated by RCRA. 17 The legislative history of the savings clause itself is un- enlightening. The clause was added to the statute in 1980. Solid Waste Disposal Act Amendments of 1980, Pub. L. No. 96-482, § 14, 19 Dumas, supra; Ogden Envtl. Servs. v. City of San Diego, supra (both discussed at pages 23-24, infra). Such a ban is not “more stringent” in the sense used by RCRA, for it is not more protective of human health and the environment overall. A local ban does nothing to reduce the nationwide risks to health and the environment that RCRA seeks to eliminate. At best, it merely moves those risks from one place to another. At worst, it increases environmental harm overall by requiring resort to other solutions that may be more damaging to the environ- ment.'* And unlike a soundly based, stricter environmen- tal standard, a simple ban, if adopted nationally, would effectively prevent safe disposal in the United States. To put the same point another way, it seems evident from the statutory scheme as a whole that a local require- ment cannot be regarded as “more stringent” than the federal program—and thus free from preemption—if it is not “consistent” with the federal program. The differ- ence is simply that between supplemental regulation and contradictory regulation. Here, as we have said, the very essence of the federal program is to promote a univer- sally shared responsibility for the development of ade- quate disposal facilities. An environmentally unjustified local ban is not consistent with that program, any more 94 Stat. 2342. It was added to the bill as an amendment on the floor of the Senate, with essentially no comment on its meaning or scope. 125 Cong. Rec. 13,247-50 (1979). No similar provision ap- peared in the House bill, and the Conference Committee adopted the provision without elaboration. H.R. Conf. Rep. No. 1444, 96th Cong., 2d Sess. 41-42 (1980). 18 For example, transportation itself may be harmful, and alterna- tives like incineration may cause other forms of pollution. Such alternatives have been of specific concern to Congress and the EPA. See, e.g., 42 U.S.C. §$ 6924(n), 6925(g); H.R. Rep. No. 198, Part I, 98th Cong., Ist Sess. 39 (1983); 48 Fed. Reg. 14,481-82 (1983). More generally, Congress enacted RCRA to coordinate with, not obstruct, other pollution laws, so as to reduce overall environmental risks. 42 U.S.C. § 6905; H.R. Rep. No. 1491, Part I, 94th Cong., 2d Sess. 4 (1976). 20 than is a state hazardous-waste program that operates as a ban and lacks particularized environmental justifi- cation. See 40 C.F.R. § 271.4 (reflecting EPA’s view of the savings clause) ; page 17 & n.14, supra.’® This is not to say that a local ban could never be a “more stringent” regulation within the meaning of the savings clause.” The existence of special local conditions could conceivably make a local ban of a given waste site more stringent in the proper environmental sense. At a minimum, however, the regulating entity must come for- ward with a particularized basis for holding that disposal cannot be safely carried out within the jurisdiction, espe- cially in the face of a particularized EPA decision that removal of a particular waste facility is not necessary for safety. Absent such a basis, a local ban must be deemed preempted, given the obvious danger that improper NIMBY motives, rather than sound safety considerations, lie behind the local decision. There is no such environ- mental basis for the ban in this case.”! 19 Although this Court has recognized a “presumption that state or local regulation of matters related to health and safety is not invalidated under the Supremacy Clause” (Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 715 (1985)), that presumption drops out of the analysis when a local measure— of the sort likely to be motivated by a protectionist, NIMBY prin- ciple—is not found to be grounded in health or safety considera- tions, other than perhaps a general desire to see some other com- munity deal with the disposal of hazardous wastes. 20 Nor is it to say that a locality might not prohibit the placement of a waste facility in particular areas within its borders—for ex- ample, in residentia! neighborhoods. Here, of course, the waste pile at issue is located in an industrial zone, and North Haven has ordered its removal from the entire Town. 21 The effects of the present ban are particularly obnoxious to federal policy because of the enormous costs imposed on an existing facility. Congress has made clear its determination that extraordi- nary care be taken before such costs are imposed in requiring modification of existing facilities, even if higher costs might be justified in regulating the construction of new facilities. See, e.g., The district court also sought to save the North Haven ban on the ground that the Town’s regulations allow the Commission to permit some waste-storage facilities. Pet. App. 19a (describing Section 3.27.2.24). But even the cited regulation fails to specify the circumstances in which an exemption will be granted; without laying down any standard for decision, it merely identifies a handful of factors to be considered in reaching a decision, includ- ing one consideration—“‘aesthetics”—unrelated to human or environmertal safety. See Pet. App. 65a (quoting reg- ulation). In any event, reliance on the facial terms of the Town’s regulations is beside the point in the absence of any finding that the Town based its refusal to allow Upjohn’s facility on sound environmental concerns.” A written provision for exemptions from the ban, even one that identifies the factors to be considered in granting or denying exemptions, is legally meaningless unless the locality demonstrates that the proper factors, rather than local parochialism, actually lay behind a particular re- 42 U.S.C. §$ 6924(a) (directing EPA to make appropriate distinc- tions between existing and new facilities), 6924(b)-(h) (applying new restrictions on particular disposal means only to still-open facili- ties). Concern with costs is also a major theme of the regulatory scheme, which requires careful financial planning for closure and post-closure maintenance, because of the danger that high costs might bankrupt a responsible party and, perhaps, leave a clean-up problem to the public. See, e.g., 40 C.F.R. * 265.140-.150 (subpart H: financial requirements); EPA, Background Document: Stand- ards Applicable to Owners and Operators of Hazardous Waste Treat- ment, Storage, and Disposal Facilities Under RCRA at 61, 70, 71 (1980); 51 Fed. Reg. 16,424-25 (1986) (modifying language of proposed closure standard to reflect comments complaining that proposed standard would require actions that “were not cost- effective’). 22 There can be little doubt that the ban in this case is, in fact, a ban. The Town has never suggested that Upjohn’s pile poses problems unique to its site or that other action, short of removal from the Town itself, would satisfy specific environmental concerns. Indeed, when Upjohn applied for permission to close the pile on the site, the application was summarily denied. See note 9, supra. 4 . ; 22 fusal to grant an exemption. An unjustified as-applied ban is no different, for present purposes, from an un- justified facial ban on disposal of particular wastes. The ban at issue in this case was approved by the courts below without any finding, or basis for finding, that it has an environmental foundation. In particular, there has been no finding that removal of the waste pile is required for safety reasons or that the closure plan approved by the EPA is, contrary to EPA’s determina- tion, not actually protective of human health and the en- vironment. See 40 C.F.R. § 265.111(b). The ban in this case was upheld by the court of appeals and the dis- trict court on the broad theory that no such basis is required—that North Haven could ban Upjohn’s waste pile even without any environmental reason. That prop- osition is inconsistent with the RCRA scheme.** “3 The court of appeals suggested in passing that the EPA—in a sentence in the letter approving Upjohn’s closure plan and in a response to a public comment—might have saved North Haven’s removal requirement from preemption. But the sentence at issue in the approval letter says only that the approval itself does not pre- empt certain other obligations, not that otherwise-preempted obliga- tions are thereby preserved. And the sentence conspicuously refers only to an obligation to obtain “authorizations” that are “required” by state statutes or state agency regulations (or federal statutes and regulation). That category does not include any local govern- ment rules that are merely permitted by state law, let alone rules that prevent the execution of the closure plan rather than merely authorize the steps needed to execute it. JA 656 (quoted at note 4, supra). Similarly, the EPA/DEP response to a public comment (see note 10, supra), aside from a confusing reference to a non- existent suit brought by the Commission, says no more than that a valid local requirement of removal of the waste pile would require submission of a new closure plan. Nothing the EPA has said in this proceeding alters the conclusion that North Haven’s local ban is incompatible with the federal scheme. Nor, contrary to the district court’s apparent belief (Pet. App. 19a-20a), does the timing of respondents’ removal decision make it any less incompatible with RCRA. 23 II. OTHER FEDERAL COURTS, INCLUDING THE EIGHTH CIRCUIT, HAVE RECOGNIZED FED- ERAL PREEMPTION OF LOCAL BANS. The decision below puts the Second Circuit in direct conflict with other federal courts construing RCRA in general and the savings clause in particular. Most par- ticularly, it places the Second Circuit at odds with the fighth Circuit, which has held that RCRA does preempt a local measure that simply bans the disposal of certain hazardous wastes within its borders, without regard to specific safety concerns. ENSCO, Inc. v. Dumas, 807 F.2d 743 (1986). Although the Eighth Circuit recog- nized that RCRA does not occupy the field of all hazard- ous waste regulation—just as it does not preempt the broader field of all solid waste regulation (City of Phila- delphia v. New Jersey, 437 U.S. 617, 620 n.4 (1978) )— it nonetheless found the local ban before it to be pre- empted because it undermined “the purposes and objec- tives of the RCRA” by walling the locality off from the national problem of safe disposai of hazardous waste. ENSCO, 807 F.2d at 744-45. The court explained: “RCRA emphasizes the need for safe disposal and treat- ment of hazardous waste,” yet the local ban “ignores that [the particular] wastes do exist, and through its ban on storage, treatment, and disposal in essence mandates that these wastes in [the locality] will not be handled in the manner deemed safest by Congress and the EPA.” J/d. at 745. The Eighth Circuit explicitly held that the local ban was not protected by the savings clause in RCRA, which “acknowledges only the authority of state and local gov- ernmental entities to make good-faith adaptations of fed- eral policy to local conditions,” not to insist that other communities handle the hazardous-waste problem. J/bid. The district court in Ogden Envtl. Servs. v. City of San Diego, 687 F. Supp. 1436 (S.D. Cal. 1988), reached a similar conclusion, expressly following the Eighth Cir- cuit’s decision and holding that RCRA preempted a local government’s refusal to permit a hazardous-waste dis- | 24 posal facility (an incinerator) that had received a fed- eral permit under RCRA, 42 U.S.C. § 6925. Acknowledg- ing that the RCRA savings clause contemplates a role for state and local regulation (687 F. Supp. at 1444), and that a local government might even require land-use per- mits in proper circumstances (id. at 1445), the court nevertheless ruled, based on ENSCO, that the savings clause “only provides for more stringent requirements than those imposed by the federal government, not out- right bans on such activity” (687 F. Supp. at 1446). The court went on to conclude that the local refusal to per- mit the disposal facility effectively constituted a ban, be- cause (like the ban at issue here) it was unsupported by any articulated, particularized environmental or health and safety concerns (and the EPA had decided to permit the facility as acceptably safe). Jd. at 1446-48. The Fifth Circuit, in a related though not identical statutory context, has likewise refused to allow a local government to frustrate federal regulation of waste dis- posal. In Rollins Envtl. Servs. (FS), Inc. v. Parish of St. James, 775 F.2d 627 (5th Cir. 1985), which involved 24The Eleventh Circuit in National Solid Wastes Management Ass'n v. Alabama Dep’t of Envtl. Management, 910 F.2d 713 (1990), modified in other respects, 1991 U.S. App. Lexis 1813, held that RCRA preempted a State’s ban on land disposal of certain hazard- ous wastes, even though Congress had, in 1984, adopted a broad policy against land disposal. The court concluded that the land disposal provisions of RCRA (42 U.S.C. § 6924(d)-(m)) were de- signed implicitly to give EPA the sole authority to delay the appli- cation of the ban to particular wastes in light of a national deter- mination of the unavailability of alternative disposal facilities; and that, where EPA had granted such an extension for certain wastes, a State could not adopt a ban for such wastes without violating RCRA. 910 F.2d at 724. In making clear the need for a national determination of adequate disposal capacity, the court cited Con- gress’s policy of resisting the NIMBY syndrome and the interaction of the RCRA and CERCLA policies encouraging the development of adequate disposal capacity. 910 F.2d at 716. Those policies apply with extra force where, as here, the waste site is not even subject on its face to the congressional bar on land disposal. 25 the Toxic Substances Control Act (TOSCA), 15 U.S.C. § 2601 et seg., the court concluded that, even beyond the specific TOSCA preemption provision, the TOSCA pro- gram was designed to ensure safe disposal of certain hazardous chemicals (775 F.2d at 632-33) and that a local measure effectively banning local disposal would im- pair that program. The court explained: “No one wants a toxic waste disposal facility ‘in his own back yard,’” yet “[ilf every locality were able to dodge responsibility for and participation in this program through artfully designed ordinances, the national goal of safe, environ- mentally sound toxic waste disposal would surely be frus- trated.” 775 F.2d at 637. The same conclusion applies in this case. No court, to our knowledge, has upheld a local ban of the sort at issue here. Although a ban of sorts was al- lowed in Sharon Steel Corp. v. City of Fairmont, 334 S.E.2d 616 (W. Va. 1985), appeal dismissed, 474 USS. 1098 (1986), the ruling in that case was quite different from the decisions below upholding the ban imposed by North Haven. In Sharon Steel, the West Virginia Su- preme Court narrowly construed a local ordinance that banned hazardous waste facilities, holding that it ap- plied only to the extent that a particular facility itself was found unsafe. The court therefore rejected an argu- ment that RCRA preempted the ordinance on its face. Id. at 624. The United States, whose views were solic- ited by this Court, expressly relied on that limiting con- struction in recommending that this Court deny review. Brief for the United States as Amicus Curiae, Sharon Steel Corp v. City of Fairmont, No. 85-616, at 3, 5 (filed Dec. 31, 1985). At the same time, however, the United States indicated that ‘a complete prohibition on place- ment of hazardous waste sites might in some circum- stances conflict with the federal scheme set forth in the Resource Conservation and Recovery Act.” Jd. at 3. Even with the ordinance narrowly construed, three Jus- 26 tices dissented from the decision of the Court not to hear the case. 474 U.S. 1098 (Justices Brennan, White, and Blackmun dissenting). In the present case, of course, the courts below ap- proved a local waste-disposal ban without regard to any need for an environmental justification as applied. This ease thus squarely presents the question whether such a flat prohibition is consistent with the provisions of RCRA. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted, H. BARTOW Fark, III * RICHARD G. TARANTO ONEK, KLEIN & FARR 2550 M Street, N.W. Washington, D.C. 20037 (202) 775-0184 S. ROBERT JELLEY WILLIAM J. DOYLE BRIAN J. CASEY WIGGIN & DANA One Century Tower New Haven, CT 06508-1832 (203) 498-4400 Dated: March 20, 1991 * Counsel of Record APPENDICES la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 598 August Term, 1990 (Argued: December 10, 1990 Decided: Dec. 14, 1990) Docket No. 90-7638 NoRTH HAVEN PLANNING AND ZONING COMMISSION, and ScoTTt SCHATZLEIN, Plaintiffs-A ppellees, UPJOHN COMPANY, Defendant-A ppellant. Before: KEARSE, PIERCE, and MINER, Circuit Judges. Appeal from a judgment of the United States District Court for the District of Connecticut, T.F. Gilroy Daly, Judge, enjoining defendant from implementing plans with respect to waste pile until necessary permits ob- tained from plaintiff commission. See F. Supp. (1990). Affirmed. 2a Per Curiam: Defendant Upjohn Company (“Upjohn”) appeals from a final judgment of the United States District Court for the District of Connecticut, T.F. Gilroy Daly, Judge, en- joining Upjohn from implementing its present plan for “capping” a 4.25-acre, 40-foot-high pile of chemical waste on its property in the Town of North Haven, Connecticut (“Town’’), until such time as Upjohn has obtained the necessary permits from plaintiff North Haven Planning & Zoning Commission. The district court ruled that the Town’s zoning regulations were not preempted by the Federal Resource Conservation Recovery Act (“RCRA”’’), 42 U.S.C. § 6901 et seg. (1988), or by prior actions of the United States Environmental Protection Agency (“EPA’’) and the Connecticut Department of Environmental Pro- tection (“DEP”) in approving Upjohn’s current plan. On appeal, Upjohn contends principally that the districi court erred in concluding that RCRA does not preempt the Town’s zoning regulations and in abstaining from deciding, inter alia, whether the Town’s regulations are in fact violated. We have considered all of Upjohn’s arguments on this appeal and have found them to be without merit. RCRA provides that “[n]Jothing in this chapter shall be construed to prohibit any State or political subdivision thereof from imposing any requirements, including those for site selection, which are more stringent than those imposed by [the] regulations [passed pursuant to this chapter].” 42 U.S.C. § 6929. In addition, the approval given by EPA and DEP to Upjohn’s plan to cap its sludge pile stated that the approval did not relieve Upjohn from its obligation “to obtain any other authorizations [that] may be required by other provisions of the Connecticut General Statutes”; local zoning codes are authorized by Conn. Gen. Stat. Ann. §$§ 8-1 and 8-2. Consistent with the view that the approval was thus not intended to pre- empt local zoning regulations, EPA and DEP responded to public comments and questions by stating that if the ee i relia ics 3a Connecticut courts upheld a ruling that Upjohn’s current plan would violate zoning regulations, Upjohn would have to submit to EPA and DEP a new plan for review and approval. Accordingly, we see no error in the rulings of the dis- trict court that federal law and regulatory actions have not. preempted the Town’s zoning regulations. Nor do we see any abuse of discretion in the court’s decision to abstain from deciding what are essentially state-law ques- tions. In sum, we affirm the judgment substantially for the reasons stated in the Memorandum of Decision of Judge Daly dated May 31, 1990, published at F. Supp. —— (1990). The judgment of the district court is affirmed. ———— 4a APPENDIX B UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT Civ. No. N-89-526 (TFGD) NORTH HAVEN PLANNING & ZONING COMMISSION and SCOTT SCHATZLEIN, Plaintiffs, V. THE UPJOHN COMPANY, Defendant. MEMORANDUM OF DECISION | Filed May 31, 1990] The subject of this litigation is a sludge pile containing hazardous materials located on defendant’s property in North Haven, Connecticut. The North Haven Planning and Zoning Commission (‘the Commission”) and Scott Schatzlein, its present Zoning Enforcement Officer (“plaintiffs”) originally filed this action on October 19, 1989 in Superior Court in New Haven, Connecticut, seeking to enjoin the Upjohn Company (“defendant”, “Upjohn”) from implementing a plan capping the sludge pile and also requiring Upjohn to remove it. Defendant subsequently removed this case to federal court. 28 U.S.C. ° 1441. On October 25, 1989, the Honorable José A. Cabranes denied plaintiffs’ application for a temporary restraining order. On November 22, 1989, Upjohn an- swered plaintiffs’ amended complaint, and also filed a counterclaim seeking to enjoin plaintiffs from enforcing any local regulations which prohibit Upjohn from imple- 5a menting its closure plan and new wastewater treatment system. A consolidated hearing on plaintiffs’ application for a preliminary injunction and trial on the merits of both parties’ claims began on December 4, 1989, and con- cluded January 10, 1990. Both parties have submitted proposed findings of fact and conclusions of law, and the matter is now ripe for decision. FINDINGS OF FACT The Upjohn Company, headquartered in Kalamazoo, Michigan, produces pharmaceuticals, agricultural prod- ucts, and synthetic organic chemicals. Upjohn’s North Haven, Connecticut facility, a medium-sized manufactur- ing plant, makes synthetic organic chemicals. The North Haven plant is bounded on its eastern side by the Quin- nipiac River. Upjohn started production on this site in 1962. 1) THE PILE A by-product of Upjohn’s chemical manufacturing is a substantial quantity of wastewater. In 1968, Upjohn began adding lime to its wastewater so as to neutralize its waste, and channeling the water through a series of lagoons to permit any solids to settle before the water was discharged into the Quinnipiac River. Upjohn has modified these lagoons several times to improve its water treatment system. Upjohn also dredged the solids which had collected in the lagoons and, starting in 1973, began placing this waste material, known as a sludge, on a por- tion of its property north of a certain lagoon which by that time contained an aeration device. By 1977 the re- sulting pile, known as the north sludge pile and the sub- ject of this litigation, covered approximately 4.25 acres of Upjohn’s property. Upjohn continued to place sludge on- this pile until April, 1985. The pile did not expand any further hori- zontally, but did grow vertically. By 1985, the pile stood 6a approximately 40 feet above grade, and contained ap- proximately 83,000 cubic yards of sludge. The pile is surrounded on all sides by a sloping earthen embankment and dikes. The material in the pile consists of, among other compounds, iron, iron oxides, silica, silica oxides, powdered activated carbon, sodium chloride, microorgan- isms, lead, dichlorobenzidene, dichloronitroauiline, other trace chemicals, and water. The materials in the pile are classified as hazardous waste under the Federal Resource Conservation Recovery Act (“RCRA”). 42 U.S.C. § 6901 et seq. In April, 1985, as a result of adding a substantial amount of material that had not had a sufficient period to dry, the pile partially collapsed, damaging water treat- ment devices. Upjohn removed approximately 27,000 tons of material that had escaped from the pile, placed it in a temporary storage area, and subsequently took it off site. Some time after this accident, Upjohn implemented a treatment system which reduced the quantity of ma- terial being produced by approximately 90 percent. Up- john stopped placing sludge on the north pile in April, 1985. Upjohn hired Malcolm Pirnie, Inc. to evaluate the remedial alternatives for addressing the environmental problems posed by the north sludge pile. That firm re- ported in July, 1986, that carting the sludge away would cost $22,660,000, that incineration and carting would cost $19,700,000, and that chemical fixation and carting would cost $40,500,000. The firm also explained that capping the pile and leaving it in place would cost only $900,000. A similar report prepared in 1982 had estimated the cost of carting the sludge away at $12,000,000, with an additional $500,000 per year thereafter for sludge gen- erated at the production rate at that time. There was testimony at trial that chemical manufacturers around the country utilize one or combinations of several options for on-site disposal of sludge: land piling (such as uti- Ta lized by the defendant), land fill, land spreading or spraying, and land farming. Other manufacturers have inplemented recycle and reuse programs, and still others incinerate, though this was not popular until the 1980’s due to the oil crises of the 1970’s. Finally, some com- panies take their waste off site. Upjohn chose to cap their pile, provided it could gain approval from the United States Environmental Protec- tion Agency (“EPA”). The plan developed and modified by Malcolm Pirnie provides for capping the pile in two stages, which includes first adding six inches of gravel, and then replacing this layer with 24 inches of vegetated cover soil and a synthetic membrane. Malcolm Pirnie recommended the phased approach in order to more closely monitor the stability of the pile. The final cap will pro- vide for a “higher degree of long-term integrity.” Def’s exh. 523 at 1-6. Under the plan, the capped pile and subsurface groundwater are to be monitored for hazard- ous waste leachate for the next thirty years. Jd. 2) The Regulations Since 1960, North Haven has had zoning regulations in effect which provide for permitted uses in industrial zones delineated within the town. The town’s regula- tions are permissive in nature, meaning that only those uses which are expressly allowed are permitted. Upjohn’s North Haven facility is located in an industrial zone designated IG-80. Upjohn’s manufacturing processes have always been permitted in this zone. Since 1960, resi- dents of an IG zone were also permitted to engage in “accessory uses customarily incidental to a permitted use on the same premises.” Furthermore, since 1960, North Haven’s regulations have provided that any non-conform- ing use lawfully existing at the effective date of the regulations or any amendment may be continued. The Commission became aware of the manner in which Upjohn was disposing of its sludge sometime in the late 8a 1976’s. The Commission and Upjohn had numerous com- munications concerning the defendant’s wastewater treat- ment and disposal system from that time through 1986. In 1983, the Commission sent a letter advising Upjohn that it had approved defendant’s applications for permits concerning additions to the wastewater treatment system subject to certain conditions, including that Upjohn sub- mit a plan and a timetable for the removal of all existing sludge. Pltf’s exh. 32. The Town also amended its zoning regulations so as to provide “|[nJo storage of any type . Shall be permitted outside of an enclosed area with- out the expressed site plan approval of the Planning and Zoning Commission.” On June 3, 1985, Upjohn informed the Commission that it was about to implement a system reducing solid waste generation by 90 percent, and that it was investigating possible uses for the existing sludge, including ways to convert the sludge to non-toxic materials. Pltf’s exh. 33. Upjohn also advised the Commission that it intended to pursue these options primarily, but that it would dispose of material from the pile at a rate of one truckload per week. Jd. The Commission replied that this course of action was unacceptable, and that unless Upjohn made a more substantial commitment to removing the accumu- lated sludge, the Commission would be forced to issue a Cease and Desist Order. Pltf’s exh. 33. On May 16, 1986, the North Haven Zoning Enforcement Officer for- mally informed Upjohn that it was in violation of the conditions attached to zoning approvals granted in Feb- ruary, 1983, and ordered it to cease and desist ail out- door storage of sludge on the property. Pltf’s exh. 4. On May 23, 1986, the Commission informed the Connecticut Department of Environmental Protection (“DEP”) that Upjohn was in violation of North Haven’s zoning regula- tions. Pitf’s exh. 3. Upjohn subsequently appealed the action of the Zoning Enforcement Officer to the Zoning Board of Appeals. That body upheld the Officer’s actions. Thereafter, Upjohn appealed the Board’s decision to the 9a Connecticut Superior Court. Upjohn Co. v. Zoning Bad. of Appeals of the Town of North Haven, CV-86-0250632 (Conn. Super. Ci.). That appeal is still pending. Pltf’s exh. 138A. Since at least 1981, Upjohn contemplated closing the sludge pile when it reached capacity, which was esti- mated to be approximately 90,000 cubic yards. Def’s exhs. 503, 505. In early 1986, Upjohn submitted its clos- ure plan for the sludge pile, prepared by Malcolm Pirnie, Ine., to the EPA and DEP. As described above, this plan proposed capping the pile, and did not propose re- moval of the material. After receiving comments con- cerning this plan, Upjohn submitted revised plans in Jan- uary, 1988, and again in July, August, and September, 1989. Counsel for plaintiffs sent a letter to the EPA and DEP on March 28, 1988, commenting on the proposed capping plan. Pltf’s exh. 13A at { 10. Plaintiffs also tes- tified at a hearing held by the EPA and DEP on June 15, 1988 addressing the plan. Id. at 111. On September 29, 1989, the DEP and EPA formally approved Upjohn’s capping plan. Def’s exh. 524. On June 15, 1988, the DEP Commissioner issued an Order requiring Upjohn to take all steps necessary to install certain wastewater treatment facilities as required to comply with the applicable state water pollution dis- charge regulations. Def’s exh. 522 at A. The Order further provided that noncompliance with these provi- sions would result in monetary penalties. Jd. Upjohn subsequently applied to the Commission for permits to make modifications to its wastewater treatment system. Pitf’s exh. 183A at 1715 & 16. At a January 17, 1989 meeting, the Commission denied these applications solely on the basis of the alleged zoning violations; i.e., the sludge pile. Jd. at 17. Plaintiffs concede that absent these violations, Upjohn’s applications met the require- ments of the zoning regulations. Pltf’s Post-Trial Brief at 37-38. 10a Upjohn’s capping plan includes activities such as re- grading and excavation which also require permits and approvals under the town’s zoning regulations. Upjohn has not applied for, nor received these permits or ap- provals. Nevertheless, Upjohn recently began to imple- ment the first stage of its capping plan. Shortly after the conclusion of trial, Upjohn announced its intention to close its North Haven manufacturing facility. CONCLUSIONS OF LAW Plaintiffs’ argument is essentially that: (1) Upjohn has begun certain work pursuant to the closure plan which requires permits and approvals from the Commis- sion, which Upjohn has neither applied for nor received; and, (2) the presence of the sludge pile on the defend- ant’s property is in violation of town zoning regulations and the Zoning Enforcement Officer’s Cease and Desist Order. Plaintiff seeks an order enjoining the implemen- tation of the closure plan, and requiring Upjohn to bring the property intc compliance with the zoning regulations. Defendant claims: (1) the provisions of RCRA and the EPA/DEP Approval preempt the plaintiffs’ order re- quiring removal of the pile; 2) the provisions of RCRA and the DEP/EPA Approval preempt the plaintiffs from enforcing the zoning regulations so as to prevent imple- mentation of the closure plan, or from denying the neces- sary permits on the basis of the existence of the pile on the premises; (3) the June 15, 1988 DEP Order pre- empts the Commission from denying the applications con- cerning the wastewater treatment system; and, (4) the sludge pile is not a zoning violation. Upjohn seeks an order enjoining the plaintiffs from enforcing the Cease and Desist Order, from enforcing the town zoning reg- ulations so as to prevent it from implementing the in- terim phase of the closure plan, and to prevent the plain- tiffs from denying applications for wastewater treatment system additions. lla At the outset, the Court observes that despite the many issues the parties have presented for resolution, the Court shall only examine whether Upjohn need apply for cer- tain permits, and the effects of its failure to so apply. There are several reasons why the Court limits its evaluation to these areas. First, Upjohn has appealed the decision of the North Haven Zoning Board of Ap- peals upholding the Commission’s finding that the pile constitutes a zoning violation, and that case is still pend- ing in Connecticut Superior Court. See supra. Local land use decisions have repeatedly been held to be issues of local concern. Northeast Mines, Inc. v. Smithtown, 584 F, Supp. 112, 114-15 (E.D.N.Y. 1984) (citing Louisiana Power & Light Co. v. Thibidoux, 360 U.S. 25 (1959) ). Accordingly, resolution of Upjohn’s contention that it has not committed a zoning violation is not properly before this Court. Jd. For purposes of this dispute, the Court must consider that, as matters currently stand, the pres- ence of the pile on the Upjohn property constitutes a zoning violation. Second, the Court shall not resolve the defendant’s con- tention that the Order issued on June 15, 1988 by the DEP pursuant to the Connecticut Water Pollution Con- trol Act, Connecticut General Statutes § 22a-416 et seq., preempts the Commission from denying Upjohn’s appli- cations to make wastewater treatment system improve- ments. The Commission has conceded that the applica- tions were satisfactory in all respects, but that the per- mits could not be issued until Upjohn remedied the ex- isting zoning violation. The present record casts serious doubt on the merits of Upjohn’s suggestion that unless it is allowed to make the needed improvements it cannot avoid violation of Con- necticut law. There is nothing to prevent Upjohn from ceasing operations which produce illegal discharge. Fur- thermore, the terms of the Order require Upjohn to “take such action as is necessary” to install the required equip- 12a ment. Def’s exh. 522 at A. Remedying the existing zon- ing violation would enable Upjohn to obtain the needed permits. See pltf’s exh. 138A at {17 (applications denied solely on basis of alleged illegal existence of pile). More significantly, however, the Court notes that defendant presented this exact question—whether the DEP Order preempts local regulations—to the Connecticut Superior Court in a motion to strike the complaint in Carothers v. Upjohn Co., Inc., No. CV 89-0363075 S (Conn. Super. Ct. July 18, 1989). As there is thus an ongoing state judicial proceeding considering this issue and as these questions concern important state interests, and are of peculiarly local concern, resolution of how local zoning regulations should be construed in light of state law is best left to the state judiciary, given the circumstances of this case. See Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423 (1982); Younger v. Harris, 401 U.S. 37 (1971); and Burford v. Sun Oil Co., 319 U.S. 315 (1943). Accordingly, the Court abstains from considering the merits of defend- ant’s claim in this regard. Nothing precludes the Court from resolving the ques- tion of federal preemption, however, nor any of the other issues which the parties have not raised elsewhere. Ac- cordingly, the Court now turns to these questions. The capping plan calls for the addition of gravel and top soil to the sludge pile, as well as excavation and re- grading, and the placement of collection and test wells, among other things. The North Haven Zoning Regula- tions require residents who intend to perform such ac- tivities to apply for and obtain permits. Pltf’s exh. 3 at § 8.1 et seg. Upjohn has begun construction pursuant to its plan. It has neither applied for nor obtained such permits. Plaintiffs’ amended complaint asserts that im- plementation of the capping plan will constitute new zon- ing violations and increase the size and scope of the already existing zoning violations. 13a Connecticut General Statutes § 8-12 provides that a town’s zoning enforcement officer may institute an ac- tion to prevent the violation of zoning regulations. This section also provides for the issuance of an injunction to remedy a violation of local zoning regulations. Accord- ingly, as a plaintiff in such an action, the zoning en- forcement officer need not show irreparable harm or the lack of an adequate remedy at law to obtain an injunc- tion preventing the violation. Johnson v. Murzyn, 1 Conn. App. 176, 179-81, cert. denied, 192 Conn. 802 (1984) (enactment of statute assumes that no adequate alterna- tive remedy exists and that injury is irreparable); see also United States v. Diapulse Corp. of America, 457 F.2d 25 (2d Cir. 1972) (same). Upjohn argues that it need not obtain any permits from plaintiffs to implement its capping plan since the Commission cannot issue approvals due to its determina- tion that there is an existing zoning violation on the site. The defendant also argues that the EPA/DEP approval compels it to implement its closure plan, but that the zoning regulations and the Commission’s actions prohibit Upjohn from beginning work. Defendant claims that since compliance with both federal and local law is im- possible, local law is preempted. The only support defendant cites in support of its first argument—that since the Commission will deny the per- mits it need not apply—is Kosinski v. Lawlor, 177 Conn. 420, 425 (1979). In that case the plaintiff sought a writ of mandamus directing the local planning and zoning commission to approve a proposed site plan. Jd. at 122. On appeal, the Connecticut Supreme Court rejected de- fendants’ argument that in ordgr to obtain such relier the plaintiff needed to first apply for and be denied building permits. Jd. at 425-27. As this defendant correctly note-, the Court wrote that it would not require the exhaustion of an administrative remedy when that remedy is either inadequate or futile. 7d. at 425. Contrary to defendant’s l4a implication, however, this decision and the indicated lan- guage in no way sanction a party to ignore any zoning regulations and proceed without necessary authorization simply because an application would be denied. Rather, the case suggests that courts may review the merits of an application if administrative denial is sufficentiy def- inite. Jd. Adopting defendant’s suggestion would per- mit any resident to engage in a land use without au- thorization so long as he or she could be certain that the use would not be permitted, an untenable result. De- fendant’s contention that it need not have applied for the appropriate permits and approval on this ground is, therefore, without merit. The defendant has also claimed, however, that federal law preempts the local requirements, and has filed a counterclaim seeking to restrain the plaintiffs from en- forcing the regulations so as to prevent Upjohn from im- plementing the plan, or from enforcing the Cease and De- sist Order. Thus, the Court needs to resolve whether RCRA and the EPA/DEP Approval preempt the local zoning regulations and the Commission in these respects. Under the Supremacy Clause of the Constitution, fed- eral law may preempt state and municipal law in several different ways. See generally Hillsborough County v. Au- tomated Medical Laboratories, Inc., 471 U.S. 707, 712-13 (1985); Pacific Gas and Elec. Co. v. State Energy Re- sources Conservation & Dev. Comm’n, 461 U.S. 190, 203- 04 (1984); Environmental Encapsulating Corp. v. New York City, 855 F.2d 48, 53 (2d Cir. 1988). Congress may preempt state or local law by so stating in explicit terms on the face of a statute. Adams Fruit Co., Inc. v. Bar- rett, 58 U.S.L.W. 4367, 4368 (March 21, 1990) (citing Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)). Absent such express language, preemption will be implied where federal legislation is so comprehensive in a given area as to leave no room for supplemental state or local legislation. International Paper Co. v. Ouelette, 479 U.S. l5a 481, 491 (1987). Finally, even if Congress has not dis- placed state or local action in an area, state or local law is displaced to the extent that it actually conflicts with federal law, or with congressional purposes and goals. Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963). A local regulation that frustrates a federal scheme is preempted. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 747 (1985). As to the third type of preemption—actual conflict, or frustration of congressional purposes—there is no rigid formula to determine whether a local regulation conflicts with federal law. Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (Court has used variety of expressions in con- sidering validity of state laws in light of federal law, including “irreconcilable” and “repugnant”, as well as “different” and “inconsistent”’). In amending RCRA in 1984, Congress expressly de- clared “the national policy of the United States [to be] that wherever feasible, the generation of hazardous waste is to be reduced or eliminated as expeditiously as possi- ble... [w]aste that is nevertheless generated should be treated, stored, or disposed of so as to minimize the pres- ent and future threat to human health and the environ- ment.” 42 U.S.C. § 6902(b). Congress, however, neither expressly preempted nor impliedly occupied the entire field of hazardous waste regulation through RCRA. Ogden Environmental Services v. San Diego, 687 F. Supp. 1436, 1444 (S.D. Cal. 1988). In fact, one of RCRA’s express objectives is to establish a cooperative effort among the federal, state, and local governments and private enterprise to carry out the purposes of the Act. 42 U.S.C. § 6902(a) (7). RCRA has a “savings” clause to promulgate this co- operation which provides ‘‘{n]othing in this chapter shall be construed to prohibit any State or political subdivision thereof from imposing any requirements, including those for site selection, which are more stringent than those 16a imposed by such (RCRA and EPA) regulations.” 42 U.S.C. § 6929. Although courts within this circuit have not addressed the question of federal preemption posed in this case, courts from other circuits have considered the effect of RCRA regulations and EPA approvals pursuant to RCRA authorization upon local regulations. The Eighth Cir- cuit considered the effect of the RCRA savings clause in a county’s defense of an ordinance in the face of a pre- emption claim. ENSCO, Inc. v. Dumas, 807 F.2d 743 (1986). In that case, after the EPA passed regulations governing the incineration and disposal of certain haz- ardous wastes pursuant to RCRA authorization, ENSCO announced that it would seek EPA certification to incin- erate the wastes governed by such regulations at its Union County, Arkansas facility. Id. at 744. The County subsequently passed an ordinance which provided, among other things, that the hazardous wastes covered by the regulations could not be “stored, treated, or disposed of within the County.” Jd. ENSCO brought suit challeng- ing the validity of the ordinance. Id. The district court found for ENSCO. Id. On appeal, the Eighth Circuit affirmed the district covrt’s decision, holding that RCRA preempted enforce- ment of the ordinance. Id. at 745. While acknowledging that the language in the RCRA savings clause indicated that Congress had not preempted all local regulations, the Eighth Circuit held that the ordinance stood in con- flict with the purposes and objectives of RCRA. 7d. at 744-45. The county’s ban on the materials altogether ig- nored that these particular hazardous wastes exist. Jd. at 745. In essence, the County’s ban mandated that the wastes would not be handled in the manner deemed saf- est by RCRA and the EPA. /d. As to the savings clause, the Eighth Circuit wrote “[a] county cannot, by attach- ing the label ‘more stringent requirements’ or ‘site selec- tion’ to an ordinance ... , arrogate to itself the power +S ete eal 17a to enact a measure that as a practical matter cannot function other than to subvert federal policies... .” Id. The Southern District of California also considered a situation akin to the one presented here in Ogden. 687 F, Supp. at 1436. Pursuant to RCRA regulations, Ogden applied to the EPA for permission to conduct hazardous waste incineration testing in San Diego. Jd. at 1438. After extensive consideration of the proposal, the EPA approved the project. Jd. Subsequently, the City Coun- cil passed an ordinance requiring a conditional use per- mit for any facility, activity, or use of property “which is required by federal law to obtain a... permit from the EPA... pursuant to [RCRA].” Id. at 1440. Ogden applied for such a permit. Jd. Ultimately, after exien- sive discussion which included testimony from EPA rep- resentatives, the City Council voted to deny Ogden’s ap- plication. Jd. at 1441. Ogden subsequently brought suit, claiming RCRA and the EPA approval preempted the City’s action. Jd. The Court upheld the plaintiff’s claim, finding that RCRA and the EPA approval preempted the Council from denying the permit on the basis of generalized safety concerns, where the EPA had already found safety risks to be acceptable. Jd. at 1447-1450. The Court found that while the RCRA savings clause provided for local adoption of more stringent environmental standards, and expressly provided for local governments to play a role in site selection, the city’s action in this case stood as an obstacle to clear congressional purposes. Jd. In evalu- ating the effect of the savings clause, the Court noted that the ENSCO decision stood for the principle that lo- cal governments cannot directly subvert RCRA and EPA decisions through outright bans on activities federal au- thorities consider safe. Jd. at 1446. The Court then ob- served that requiring the application for a use permit, rather than an outright ban, created the potential for subterfuge, permitting a local government “to do indi- 18a rectly what the ENSCO court found the City cannot do directly.” Id. Nevertheless, the Court also wrote that to construe every permit denial as creating a de facto con- flict with congressional objectives would substantially eviscerate the role of local governments in choosing one site over another, a role presumably envisoned by the savings clause. /d. Ultimately, the Court ruled that, on the record in that case, the stated reasons for the city’s denial of the permit were insufficient. Jd. at 1449. The Court now turns to the federal and local law al- legedly in conflict in this case. To accomplish the fed- eral goal of sound hazardous waste management, RCRA requires a producer of hazardous waste to develop and submit for EPA approval a plan for closure of the haz- ardous waste site. See 40 C.F.R. § 265.112. Specifically, any owner or operator of a hazardous waste site must close the facility in a manner which minimizes the need for maintenance of the site and controls or eliminates, to the extent necessary to protect human health and the environment, post-closure escape of the types of waste addressed by RCRA. Id. at § 265.111. It is clear from the text of the Act that closure can be accomplished through any means approved by the EPA, including the removal of hazardous materials. See 40 C.F.R. § 265. 113 (a). The EPA/DEP Approval cited by the defendant pro- vides that Upjohn’s proposed plan complies with RCRA and Connecticut hazardous waste site closure require- ments. Def’s exh. 524. The North Haven Zoning Regulations at issue, as de- scribed above, do not specifically address hazardous waste storage or disposal. One set of regulations at issue con- cerns the necessity of permits and approval for excava- tion and construction. Pltf’s exh. 3 at 3.26, 3.27. More generally, the regulations require site plan approval for any change in use of a property. Jd. at 3.27(a). The regulations also provide a procedure through which ap- 19a plications for such approvals are made. Id. at 3.27.2 et seq. The regulations further provide that the Commission shall not approve a site plan unless all of the town regu- lations are met. 7d. at 3.27.1. RCRA does not specifically address any of these issues. Nor does the Court find that simply requiring such approval and permits frustrates congressional purposes. See Ogden, 687 F. Supp. at 1445 (requirement of use permit is not per se preempted) ; cf. Pacific Gas & Electric, 461 U.S. at 190 (Congress’ inclusion of savings clause indicated intent for states to retain traditional responsibilities in field). ~ Ae oh 8 rable The town regulations, as interpreted by the Commis- sion and the Zoning Enforcement Officer, do not provide for the storage of this type of waste on property such as defendant’s, absent express permission from the Com- mission. See Pltf’s exh. 13A at {8 (Cease and Desist Order issued and upheld). Recently, the town has amended the regulations to explicitly provide that plots within the town shall not be used to store waste prod- ucts unless enclosed within a building absent the ex- pressed site plan approval of the Commission. Pltf’s exh. 3 at 3.27.2.24. The Commission may grant approval of such activity, after having considered the activity’s im- pact upon public safety, health, sanitation and aesthetics. Id. Although RCRA obviously addresses these matters, it expressly provides for the establishment of more strin- gent local standards, and for local participacion in site selection. 42 U.S.C. § 6929. Thus, since the provisions of RCRA and the town regulations are not themselves in conflict, to determine whether RCRA and the EPA/DEP Approval preempt the local regulations, the Court must examine whether the local activity in this field frustrates Congress’ goals and purposes. See Florida Lime and Avocado Growers, 373 U.S. at 132, 141. The Court first notes that this situation is dissimilar from the one presented in ENSCO. The town has not passed any ban in response to federal approval of cer- ill 20a tain activity. In other words, this case does not present a direct challenge to a federal determination. Moreover, this case is unlike the situation presented in Ogden. First, concerning the capping plan, the defendant has not even applied to the town to use its property in the manner approved by the EPA and DEP. The exact holding of Ogden, that the city council failed to provide adequate reasons for denying the permit, is therefore inapplicable. Even assuming Upjohn applied, the town has offered a reason for denying the permit—the pre- existing zoning violation. Second, in Ogden the city de- nied the permit after the federal agency approved Og- den’s plan. Here, after extensive interaction, the Com- mission found Upjohn in violation of the regulations be- fore the defendant sought federal approval of its plan. The Commission’s actions in no way indicate even an in- direct challenge to federal authority. Finally, although the Commission requires the defend- ant to remove the materials, rather than conduct the fed- erally approved activities on its own property, the town has not banned this type of activity within the town. Quite to the contrary, the recent amendment of the regu- lations explicitly -provides for residents to apply to the Commission to operate and close hazardous waste sites within the town, and provides for the Commission to evaluate the applications considering certain factors. Pitf’s exh. 3 at 3.27.2.24. Rather than conflicting with RCRA, this would seem to be the exact sort of site selec- tion process, or application of more stringent standards, envisioned by the savings clause. 42 U.S.C. § 6929. In sum, for all of the foregoing reasons, the Court finds that the local regulations are not preempted by RCRA. Upjohn’s argument that the Approval constitutes an EPA determination that Upjohn’s plan represents the most sound environmental action, and therefore any ob- stacle to its implementation is an obstacle to congres- sional goals is also not persuasive. There are many 2la methods in which a hazardous waste site might be closed in accordance with RCRA, including removal. See 40 C.F.R. § 265.113(a). The language of the Approval con- tains no indication that the EPA or DEP has determined that this method of closure is the most environmentally protective. See Def’s exh. 524. Furthermore, the conclu- sion that the EPA and DEP simply determined that fed- / eral and state standards were satisfied by the plan is supported by the fact that these agencies issued an Ap- proval, rather than an order. Indeed, in a different con- text the defendant points out that the EPA had the power to issue an order requiring Upjohn to remove the material. Def’s Post-Trial Brief at 18. The Court re- fuses to draw a conclusion from the fact that the agencies issued the Approval with knowledge that the Commission considered the presence of the unclosed pile a zoning vio- lation. The Court also notes that the language of the Approval itself includes that it does not relieve Upjohn from obtaining any further authorizations required by the Connecticut General Statutes, which provide for the enactment of local zoning regulations. CONN. GEN. STAT. §§ 8-1, 8-2. For all of the foregoing reasons, and in light of the RCRA savings clause providing for a role for local government, the Court finds that the Approval does not preempt the Commission’s actions or the local zoning requirements. CONCLUSION For all of the foregoing reasons, the Court finds that the zoning regulations of the town of North Haven are not preempted by federal law or federal action. Accord- ingly, the relief plaintiff seeks is hereby GRANTED in part, such that Upjohn is hereby ENJOINED from im- plementing its temporary or final closure plan of the north sludge pile until such time as it has obtained the necessary permits from the Commission. Furthermore, for all of the foregoing reasons, the relief sought by de- Jit 22a fendan: in its counterclaim is hereby DENIED. Finally, the Court hereby abstains from considering the remain- der of the relief sought by plaintiffs or defendant. SO ORDERED. Dated au Bridgeport, Connecticut this 3lst day of May, 1990. /s/ T. F. Gilroy Daly T. F. GILROY DALY U.S.D.J. 23a APPENDIX C STATUTES AND REGULATIONS The Resource Conservation and Recovery Act (RCRA), as amended, 42 U.S.C. § 6901 et seg.—which is part of the Solid Waste Disposal Act (SWDA)—provides in per- tinent part: SUBCHAPTER I—GENERAL PROVISIONS 42 U.S.C. § 6901. Congressional findings [RCRA/ SWDA § 1002] (a) Solid waste The Congress finds with respect to solid waste— (1) that the continuing technological progress and improvement in methods of manufacture, packaging, and marketing of consumer products has resulted in an ever-mounting increase, and in a change in the characteristics, of the mass material discarded by the purchaser of such products; (2) that the economic and population growth of our Nation, and the improvements in the standard of living enjoyed by our population, have required increased industrial production to meet our needs, and have made necessary the demolition of old buildings, the construction of new buildings, and the provision of highways and other avenues of transportation, which, to- gether with related industrial, commercial, and agricultural operations, have resulted in a rising tide of scrap, discarded, and waste materials; (3) that the continuing concentration of our population in expanding metropolitan and other urban areas has presented these communities with serious financial, management, intergovern- 24a mental, and technical problems in the disposal of solid wastes resulting from the industrial, commercial, domestic, and other activities car- ried on in such areas; (4) that while the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies, the problems of waste disposal as set forth above have become a matter national in scope and in concern and necessitate Federal action through financial and technical assistance and leadership in the development, demonstration, and applica- tion of new and improved methods and processes * to reduce the amount of waste and unsalvage- able materials and to provide for proper and economical solid waste and disposal practices. (b) Environment and health The Congress finds with respect to the environ- ment and health, that— (1) although land is too valuable a national resource to be needlessly polluted by discarded materials, most solid waste is disposed of on land in open dumps and sanitary landfills; (2) disposal of solid waste and hazardous waste in or on the land without careful planning and management can present a danger to human health and the environment; (3) as a result of the Clean Air Act |42 U.S.C.A. § 7401 et seq.|, the Water Pollution Control Act [33 U.S.C.A. § 1251 et seq.|, and other Federal and State laws respecting public _health and the environment, greater amounts of solid waste (in the form of sludge and other pollution treatment residues) have been created. Similarly, inadequate and environmentally un- os 25a sound practices for the disposal or use of solid waste have created greater amounts of air and water pollution and other problems for the en- vironment and for health; (4) open dumping is particularly harmful to health, contaminates drinking water from undex- ground and surface supplies, and pollutes the air and the land; (5) the placement of inadequate controls on hazardous waste management will result in sub- stantial risks to human health and the environ- ment; (6) if hazardous waste management is im- properly performed in the first instance, cor- rective action is likely to be expensive, complex, and time consuming; (7) certain classes of land disposal facilities are not capable of assuring long-term contain- ment of certain hazardous wastes, and to avoid substantial risk to human health and the en- vironment, reliance on land disposal should be minimized or eliminated, and land disposal, par- ticularly landfill and surface impoundment, should be the least favored method for managing hazardous wastes; and (8) alternatives to existing methods of land disposal must be developed since many of the cities in the United States will be running out of suitable solid waste disposal sites within five years unless immediate action is taken. (c) Materials The Congress finds with respect to materials, that— 26a (1) millions of tons of recoverable material which could be used are needlessly buried each year; (2) methods are available to separate usable materials from solid waste; and (3) the recovery and conservation of such materials can reduce the dependence of the United States on foreign resources and reduce the deficit in its balance of payments. (d) Energy The Congress finds with respect to energy, that— (1) solid waste represents a potential source of solid fuel, oil, or gas that can be converted into energy; (2) the need exists to develop alternative en- ergy sources for public and private consumption in order to reduce our dependence on such sources as petroleum products, natural gas, nu- clear and hydroelectric generation; and (3) technology exists to produce usable en- ergy from solid waste. * > - 42 U.S.C. § 6902. Objectives and _ national _ policy [RCRA/SWDA § 1003] (a) Objectives The objectives of this chapter are to promote the protection of health and the environment and to con- serve valuable material and energy resources by— (1) previding technical and financial assist- ance to State and local governments and inter- state agencies for the development of solid waste management plans (including resource recovery 27a and resource conservation systems) which will promote improved solid waste management tech- niques (including more effective organizational arrangements), new and improved methods of collection, separation, and recovery of solid waste, and the environmentally safe disposal of nonrecoverable residues; (2) providing training grants in occupations involving the design, operation, and maintenance of solid waste disposal systems; (3) prohibiting future open dumping on the land and requiring the conversion of existing open dumps to facilities which do not pose a danger to the environment or to health; (4) assuring that hazardous waste manage- ment practices are conducted in a manner which protects human health and the environment; (5) requiring that hazardous waste be prop- erly managed in the first instance thereby re- ducing the need for corrective action at a future date; (6) minimizing the generation of hazardous waste and the land disposal of hazardous waste by encouraging process substitution, materials recovery, properly conducted recycling and re- use, and treatment; (7) establishing a viable Federal-State part- nership to carry out the purposes of this chapter and insuring that the Administrator will, in carrying out the provisions of subchapter III of this chapter give a high priority to assisting and cooperating with States in obtaining full au- thorization of State programs under subchapter III of this chapter; (8) providing for the promulgation of guide- lines for solid waste collection, transport, separa- 28a tion, recovery, and disposal practices and sys- tems; (9) promoting a national research and devel- opment program for improved solid waste man- agement and resource conservation techniques, more effective organizational arrangements, and new and improved methods of collection, separa- tion, and recovery, and recycling of solid wastes and environmentally safe disposal of nonrecov- erable residues; (10) promoting the demonstration, construc- tion, and application of solid waste management, resource recovery, and resource conservation sys- tems which preserve and enhance the quality of air, water, and land resources; and (11) establishing a cooperative effort among the Federal, State, and local governments and private enterprise in order to recover valuable materials and energy from solid waste. (b) National policy The Congress hereby declares it to be the national policy of the United States that, wherever feasible, the generation of hazardous waste is to be reduced or eliminated as expeditiously as possible. Waste that is nevertheless generated should be treated, stored, or disposed of so as to minimize the present and future threat to human health and the environ- ment. 42 U.S.C. § 6903. Definitions [RCRA/SWDA § 1004) As used in this chapter: (1) The term “Administrator” means the Administrator of the Environmental! Protection Agency. 29a (2) The term “construction,” with respect to any project of construction under this chapter, means (A) the erection or building of new struc- tures and acquisition of lands or interests therein, or the acquisition, replacement, expan- sion, remodeling, alteration, modernization, or extension of existing structures, and (B) the acquisition and installation of initial equipment of, or required in connection with, new or newly acquired structures or the expanded, remodeled, altered, modernized or extended part of existing structures (including trucks and other motor vehicles, and tractors, cranes, and other ma- chinery) necessary for the proper utilization and operation of the facility after completion of the project; and includes preliminary plan- ning to determine the economic and engineering feasibility and the public health and safety as- pects of the project, the engineering, architec- tural, legal, fiscal, and economic investigations and studies, and any surveys, designs, plans, working drawings, specifications, and other ac- tion necessary for the carrying out of the proj- ect, and (C) the inspection and supervision of the process of carrying out the project to com- pletion. (2A) The term “demonstration” means the initial exhibition of a new technology process or practice or a significantly new combination or use of technologies, processes or practices, subse- quent to the development stage, for the purpose of proving technological feasibility and cost ef- fectiveness. (3) The term “disposal” means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid 30a waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, in- cluding ground waters. (4) The term “Federal agency” means any department, agency, or other instrumentality of the Federal Government, any independent agency or establishment of the Federal Govern- ment including any Government corporation, and the Government Printing Office. (5) The term “hazardous waste’ means a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may— (A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating re- versible, illness; or (B) pose a substantial present or poten- tial hazard to human health or the environ- ment when improperly treated, stored, transported, or disposed of, or otherwise managed. (6) The term “hazardous waste generation” means the act or process of producing hazardous waste. (7) The term “hazardous waste manage- ment” means the systematic control of the col- lection, source separation, storage, transporta- tion, processing, treatment, recovery, and dis- posal of hazardous wastes. (8) For purposes of Federal financial assist- ance (other than rural communities assistance), the term “implementation” does not include the 3la acquisition, leasing, construction, or modification of facilities or equipment or the acquisition, leasing, or improvement of land. (9) The term “intermunicipal agency” means an agency established by two or more munici- palities with responsibility for planning or ad- ministration of solid waste. (10) The term “interstate agency” means an agency of two or more municipalities in differ- ent States, or an agency established by two or more States, with authority to provide for the management of solid wastes and serving two or more municipalities located in different States. (11) The term “long-term contract” means, when used in relation to solid waste supply, a contract of sufficient duration to assure the via- bility of a resource recovery facility (to the ex- tent that such viability depends upon solid waste supply). (12) The term “manifest” means the form used for identifying the quantity, composition, and the origin, routing, and destination of haz- ardous waste during its transportation from the point of generation to the point of disposal, treatment, or storage. (13) The term “municipality” (A) means a city, town, borough, county, parish, district, or other public body created by or pursuant to State law, with responsibility for the planning or administration of solid waste management, or an Indian tribe or authorized tribal organi- zation or Alaska Native village or organization, and (B) includes any rural community or unin- corporated town or village or any other public entity for which an application for assistance is made by a State or political subdivision thereof. 32a (14) The term “open dump” means any fa- cility or site where solid waste is disposed of which is not a sanitary landfill which meets the criteria promulgated under section 6944 of this title and which is not a facility for disposal of hazardous waste. (15) The term “person” means an individual, trust, firm, joint stock company, corporation (in- cluding a government corporation), partnership, association, State, municipality, commission, po- litical subdivision of a State, or any interstate body. (16) The term “procurement item” means any device, good, substance, material, product, or other item whether real or personal property which is the subject of any purchase, barter, or other exchange made to procure such item. (17) The term “procuring agency” means any Federal agency, or any State agency or agency of a political subdivision of a State which is using appropriated Federal funds for such procurement, or any person contracting with any such agency with respect to work per- formed under such contract. (18) The term “recoverable” refers to the capability and likelihood of being recovered from solid waste for a commercial or industrial use. (19) The term “recovered material” means waste material and byproducts which have been recovered or diverted from solid waste, but such term does not include those materials and by- products generated from, and commonly reused within, an original manufacturing process. (20) The term “recovered resources” means material or energy recovered from solid waste. (21) The term “resource conservation” means reduction of the amounts of solid waste that are 33a generated, reduction of overall resource con- sumption, and utilization of recovered resources. (22) The term “resource recovery” means the recovery of material or energy from solid waste. (23) The term “resource recovery system”’ means a solid waste management system which provides for collection, separation, recycling, and recovery of solid wastes, including disposal of nonrecoverable waste residues. (24) The term “resource recovery facility” means any facility at which solid waste is processed for the purpose of extracting, convert- ing to energy, or otherwise separating and pre- paring solid waste for reuse. (25) The term “regional authority” means the authority established or designated under section 6946 of this title. (26) The term “sanitary landfill” means a facility for the disposal of solid waste which meets the criteria published under section 6944 of this title. (26A) The term “sludge” means any solid, semi-solid or liquid waste generated from a mu- nicipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility or any other such waste having similar characteristics and effects. (27) The term “solid waste” means any gar- bage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pol- lution control facility and other discarded ma- terial, including solid, liquid, semisolid, or con- tained gaseous material resulting from indus- trial, commercial, mining, and agricultural op- 34a erations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial dis- charges which are point sources subject to per- mits under section 1342 of title 33, or source, special nuclear, or byproduct material as de- fined by the Atomic Energy Act of 1954, as amended (68 Stat. 923) [42 U.S.C.A. § 2011 et seq.]. (28) The term “solid waste management” means the systematic administration of activi- ties which provide for the collection, source separation, storage, transportation, transfer, processing, treatment, and disposal of solid waste. (29) The term “solid waste management fa- cility” includes— (A) any resource recovery system or component thereof, (B) any system, program, or facility for resource conservation, and (C) any facility for the collection, source separation, storage, transportation, trans- fer, processing, treatment or disposal of solid wastes, including hazardous wastes, whether such facility is associated with fa- cilities generating such wastes or otherwise. (30) The terms “solid waste planning”, “solid waste management”, and “comprehensive plan- ning” include planning or management respect- ing resource recovery and resource conservation. (31) The term “State” means any of the sev- eral States, the District of Columbia, the Com- monwealth of Puerto Rico, the Virgin Islands, 35a Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. (32) The term “State authority” means the agency established or designated under section 6947 of this title. (33) The term “storage”, when used in con- nection with hazardous waste, means the con- tainment of hazardous waste, either on a tempo- rary basis or for a period of years, in such a manner as not to constitute disposal of such hazardous waste. (34) The term “treatment”, when used in connection with hazardous waste, means any method, technique, or process, including neu- tralization, designed to change the physical, chemical, or biological character or composition of any hazardous waste so as to neutralize such waste or so as to render such waste nonhazard- ous, safer for transport, amenable for recovery, amenable for storage, or reduced in volume. Such term includes any activity or processing designed to change the physical form or chemi- cal composition of hazardous waste so as to ren- der it nonhazardous. (35) The term “virgin material” means a raw material, including previously unused cop- per, aluminum, lead, zine, iron, or other metal or metal ore, any undeveloped resource that is, or with new technology will become, a source of raw materials. (36) The term “used oil” means any oil which has been— (A) refined from crude oil, (B) used, and 36a (C) asa result of such use, contaminated by physical or chemical impurities. (37) The term “recycled oil” means any used oil which is reused, following its original use, for any purpose (including the purpose for which the oil was originally used). Such term includes oil which is re-refined, reclaimed, burned, or reprocessed. (38) The term “lubricating oil” means the fraction of crude oil which is sold for purposes of reducing friction in any industrial or me- chanical device. Such term includes re-refined oil. (39) The term “re-refined oil’ means used oil from which the physical and chemical con- taminants acquired through previous use have been removed through a refining process. (40) Except as otherwise provided in this paragraph, the term “medical waste” means any solid waste which is generated in the diagnosis, treatment, or immunization of human beings or animals, in research pertaining thereto, or in the production or testing of biologicals. Such term does not include any hazardous waste iden- tified or listed under subchapter III of this chap- ter or any household waste as defined in regula- tions under subchapter III of this chapter. * + * * 42 U.S.C. § 6905. Application of chapter and integra- tion with other Acts [RCRA/ SWDA § 1006] * * * * (b) Integration with other Acts (1) The Administrator shall integrate all provi- sions of this chapter for purposes of administration 37a and enforcement and shall avoid duplication, to the maximum extent practicable; with the appropriate provisions of the Clean Air Act [42 U.S.C. § 7401 et seq.], the Federal Water Pollution Control Act [33 U.S.C. § 1251 et seq.], the Federal Insecticide, Fungicide, and Rodenticide Act [7 U.S.C. § 136 et seq.], the Safe Drinking Water Act [42 U.S.C. § 300f et seq.], the Marine Protection, Research and Sanctuaries Act of 1972 [33 U.S.C. § 1401 et seq.], and such other Acts of Congress as grant regulatory ai‘hority to the Administrator. Such integration shall be effected only to the extent that it can be done in a manner consistent with the goals and policies expressed in this chapter and in the other acts referred to in this subsection. * * * * SUBCHAPTER III—HAZARDOUS WASTE MANAGEMENT 42 U.S.C. § 6921. Identification and listing of haz- ardous waste [RCRA/SWDA § 3001] (a) Criteria for identification or listing Not later than eighteen months after October 21, 1976, the Administrator shall, after notice and op- portunity for public hearing, and after consultation with appropriate Federal and State agencies, develop and promulgate criteria for identifying t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1826%3A1. Public record. Not legal advice.