Amicus Curiae Brief — Alabama Department of Environmental Management v. National Solid Wastes Management Ass'n

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No. 90-1718

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

Supreme Court, U.S,

FILED

JUN 5 91

QFFICE OF THE CLERK

THE ALABAMA DEPARTMENT OF ENVIRONMENTAL MAN-

AGEMENT; LEIGH PEGUES,

Director of the Alabama

Department of Environmental Management; and Guy

HwunNT, Governor of Alabama,

Petitioners,

NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION ;

and CHEMICAL WASTE MANAGEMENT, INC.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF THE STATE OF SOUTH CAROLINA AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

T. TRAVIS MEDiOCK

Attorney General

EDWIN E. EVANS

Chief Deputy Attorney

General

JAMES PATKICK HUDSON

Deputy Attorney General

KENNETH P. WOODINGTON

Senior Assistant Attorney

General

TREVA G. ASILWORTH

Senior Assistant Attorney

General

MARK R. ELAM

Senior Legal Counsel

Office of the Governor

Post Office Box 11549

Columbia, South Carolina 29211

(803) 734-3680

June 5, 1991

WALTON J. MCLEop, III

General Counsel

JACQUELYN S. DICKMAN

Assistant General Counsel

SAMUEL L. FINKLEA, III

Staff Counsel

SOUTH CAROLINA DEPARTMENT OF

HEALTH AND ENVIRONMENTAL

CONTROL

2600 Bull Street

Columbia, Soutn Carolina 29201

(802) 7234-4910

CHARLES IF. LETTOW *

MATTHEW D. SLATER

CLEARY, GOTTLIEB, STEEN &

HAMILTON

1752 N Street, N.W.

Washington, D.C. 20036

(202) 728-2700

* Counsel of Record

for Amicus Curiae

State of South Carolina

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

ADDITIONAL QUESTION PRESENTED

If the Court grants the petition for writ of certiorari,

it should specizy one additional question, as follows:

Whether the court of appeals erred in using dormant

Commerce Clause principles to test the challenged

portions of Alabama’s hazardous waste program

rather than using the standard adopted by the U.S.

Environmental Protection Agency (“EPA’’) to test

consistency of state hazardous waste programs with

federal law pursuant to the Resource Conservation

and Recovery Act of 1976 (“RCRA”), when Ala-

bama’s program has been authorized by EPA to oper-

ate “‘in lieu of” federal law under RCRA.

(i)

TABLE OF CONTENTS

ADDITIONAL QUESTION PRESENTED ..................

TABLE OF AUTHORITIES. ................ sicehieel goo ennsenencceeeen

INTEREST OF THE STATE OF SOUTH CARO-

ADDITIONAL STATUTES AND REGULATORY

ee a): | ee

SUPPLEMENTAL STATEMENT OF THE CASE...

REASONS FOR GRANTING THE WRIT...

The Court Of Appeals’ Erroneous Reliance On

Dormant Commerce Clause Principles, Rather

Than Application Of The Standard Derived From

Congress’ Exercise Of Commerce Clause Power,

Presents Important Legal Issues Respecting State

Powers And The Proper Administration Of

Neen ee ee sia cise svehteimnnensinennonncnaatane

te Ninatisiandentenchecttocnssntrarsbdacisutonvenessrciaee

RCRA § 3006(b), 42 U.S.C. § 6926(b) .

RCRA § 3009, 42 U.S.C.§ 6929. .

40 C.F.R.§ 271.4 00 ee

50 Fed. Reg. 46,437-40 (November 8, 1985) .............

(iii)

colin aetna aaa reali th |

TABLE OF AUTHORITIES

Cases Page

California v. Zook, 336 U.S. 725 (1949) —....... sors. 10

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, 467 U.S. SBT CIGGE) .......2c0cces-cocecvernccsesees 11

City of Philadelphia v. New Jersey, 437 U.S. 617

| iptiedernae eine NIRS MASS AEST Ee SANE LTE eee 5, 7, 10

General Motors Corp. v. United States, 110 S. Ct.

RR are at EIR erie ete ore a ast aah ma en 9

Harrison v. PPG Industries, Inc., 446 U.S. 578

| ERRAASEIDY aa att Pars een A OesN iA ahd RMA At ea 11

Hazardous Waste Treatment Council v. South Car-

olina, 32 Env’t Rep. Cas. (BNA) 1646 (D.S.C.

1991), appeal pending, No. 91-2317 (4th Cir.,

ne SI Ti I gd ncecaeencccecmemaedaasineeacnanace 2

Investment Co. Inst. v. Camp, 401 U.S. 617

| IESE necro UR o RbTuPeS ae Ak f mL OLN OTD Ro ESR PKG E NMEA 11

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130

SY co cirteat kc Jak iinla ccaded tc ccacasddeuae aes oer aticesomiredains g

Northeast Bancorp. Inc. v. Board of Governors,

472 U.S. 159 (1985) .......... . 7,11 |

Prudential Ins. Co. v. Benjamin, 328 US. 408

Se ea eae ra: Ses SO eT

South-Central Timber Development, Inc. v. Wun- |

nicke, 467 U.S. 82 (1984) ........ 7,10 |

White v. Massachusetts Council of Construction

Employers, Inc., 460 U.S. 204 (1983) —...0000.. 10 |

Constitutional Provisions |

Commerce Clause, art. I, § 8, cl. 3... 6 |

Federal Statutes

Resource Conservation and Recovery Act of 1976,

as amended (“RCRA”), 42 U.S.C. § 6901-

6992k............ : ostmtvenion dig Wy Mig Wp Gy Sp Oe Bay EE

RCRA § 3006, 42 U.S.C. § 6926 uisbaaaspabeorestotéehiastses 3,7

RCRA § 3006 (b), 42 U.S.C. § 6926(b) ..................2, 3, 7, 8

RCRA § 3006 (d), 42 U.S.C. § 6926(d) _.... 3

RCRA § 3006 (e), 42 U.S.C. § 6926(e) ence

RCRA § 3009, 42 U.S.C. § 6929 ............................ 3,5

TABLE OF AUTHORITIES—Continued

RCRA § 7006(a) (1), 42 U.S.C. § 6976 (a) (1) _..... 11

Comprehensive Environmental Response, Compen-

sation, and Liability Act of 1980, as amended

(“CERCLA”), 42 U.S.C. §§ 9601-9675 (1988). 5, 6, 7,

bi, ig

CERCLA § 104(c) (9), 42 U.S.C. § 9604(c) (9) ...... 5, 6, 11,

CERCLA § 104(c) (9) (A), 42 U.S.C. § 9604(c)

ay Ne aiden aaa neemesanemaneeta ts aaaare 11

CERCLA § 104(c) (9) (B), 42 U.S.C. § 9604(c)

Ce oe Se pour ven eee ancslaaivecaci: 12

Clean Air Act, § 110(a), 42 U.S.C. § 7410(a) _....... 8-9

Superfund Amendments and Reauthorization Act,

Pub. L. No. 99-499, 100 Stat. 1613 (Oct. 17,

1986) (amending scattered’ sections of

CERCLA) ...... ee ed ear er eee ee 5

Federal Regulations

40 C.F.R. Part 262, Subpart B ................... aes 5

Oe ae a EP aatgcdgtcoscarac acca eesocouen secaae 4

46 C.7.E. SFiiA .......... SRS tel sree eee a

40 C.F.R. § 271.4(a) ...... EL RMR a thas WANE 3, 4, 5, 7, 8, 11, 12

te 2 SS : a Sade aaa

pak AE Sg BE) SR epae e eea eREPeS AER 8

40 C.F &.. § 271.22 ................ Teena rdétcdnda ida a

40 C.F.R. § 271.28 .......... passione te nnanee 4

Administrative Materials

45 Fed. Reg. 33,290 (May 19, 1980) ........0000.000022.. 4,5

50 Fed. Reg. 46,437 (Nov. 8,1985) .._... 3, 6, 7, 8, 9, 11

52 Fed. Reg. 46,466 (Dec. 8, 1987) ...........0oee ee. 4

Memorandum from Lee M. Thomas to Regional

Administrators, “Policy Regarding HaZardous

Waste Management Capacity and RCRA Con-

sistency Issues”” (December 23, 1988) ..... ee

State Statutes

Ala. Code § 22-30-11(b) (Supp. 1989) (the

gt nee OC US LOE es. sane 8,11

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-1718

THE ALABAMA DEPARTMENT OF ENVIRONMENTAL MAN-

AGEMENT; LEIGH PEGUES, Director of the Alabama

Department of Environmental Management; and Guy

HuNT, Governor of Alabama,

i Petitioners,

NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION ;

and CHEMICAL WASTE MANAGEMENT, INC.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF THE STATE OF SOUTH CAROLINA AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

The State of South Carolina respectfully submits this

brief pursuant to this Court’s Rule 37.5 as Amicus Curiae

in support of the Petition of the Alabama Department of

Environmental Management (“ADEM”); Leigh Pegues,

Director of ADEM; and Guy Hunt, Governor of the State

of Alabama, for a Writ of Certiorari to review the judg-

ment and opinion of the United States Court of Appeals

for the Eleventh Circuit entered in these proceedings on

August 8, 1990, 910 F.2d 713, as modified upon denial of

rehearing, 924 F.2d 1001.

INTEREST OF THE STATE OF SOUTH CAROLINA

The State of South Carolina, like Alabama, has been

authorized by the U.S. Environmental Protection Agency

(“EPA”) to operate a hazardous waste management pro-

gram “‘in lieu of” federal law pursuant to Section 3006 (b)

of the Resource Conservation and Recovery Act of 1976,

as amended (“RCRA”), 42 U.S.C. § 6926(b). Portions

of South Carolina’s program have also been challenged

in federal court by private parties on Commerce Clause

grounds. In South Carolina’s case, on January 11, 1991,

the U.S. District Court for the District of South Carolina

preliminarily enjoined broad portions of South Carolina’s

program as violating the Commerce Clause. Hazardous

Waste Treatment Council v. South Carolina, 32 Env’t

Rep. Cas. (BNA) 1646 (D.S.C. 1991), appeal pending,

No. 91-2317 (4th Cir., argued May 6, 1991). The Dis-

trict Court for the District of South Carolina, like the

court of appeals here, reached its decision based upon

dormant Commerce Clause principles, rather than by

reference to the special standard adopted by EPA to test

the consistency of a state’s federally-approved hazardous

waste program with federal law, including effects on

interstate commerce. South Carolina has appealed the

district court’s preliminary injunction to the U.S. Court

of Appeals for the Fourth Circuit; after expedited brief-

ing, oral argument on its appeal was heard May 6, 1991. 4

Although the respective laws of Alabama and South

Carolina under challenge are factually distinct, explica-

tion by this Court of the proper standard for judging

effects on interstate commerce of approved state hazard-

ous waste regulatory programs would be important to

guide South Carolina, and EPA, and the states generally,

in the appropriate implementation of the federal struc-

ture of RCRA.

ADDITIONAL STATUTES AND REGULATORY

PROVISIONS INVOLVED

Pertinent portions of Sections 3006 and 3009 of RCRA,

42 U.S.C. $§ 6926 and 6929, are set out in an Appendix

to this brief, along with EPA’s implementing regulation,

40 C.F.R. § 271.4. Also set out in the appendix is 50

Fed, Req. 46,437-440 (November 8, 1985), a decision by

EPA applying 40 C.F.R. § 271.4(a) in approving South

Carolina’s hazardous waste program. The program in-

cluded higher fees for disposal. within the State of haz-

ardous wastes generated outside the State than for dis-

posal of wastes generated within South Carolina.

SUPPLEMENTAL STATEMENT OF THE CASE

RCRA Section 3006/b) provides that a state may be

authorized to “administer and enforce a hazardous waste

program” upon authorization from EPA. 42 U.S.C.

$ 6926(b). EPA must authorize the state program unless

EPA finds that it “is not equivalent to the Federal pro-

gram,” “is not consistent with the Federal or State pro-

grams applicable in other States,” or “does not provide

adequate enforcement of compliance with the require-

ments of [RCRA]}.” 7d.

Once the state’s program is approved by EPA, the state

‘fs authorized to carry out such program in lieu of the

Federal program.” Jd. Any action taken by a State un-

der an authorized hazardous waste program has “the

same force and effect as action taken by [EPA] under

[RCRA].” 42 U.S.C. $6926(d). In addition, RCRA

Section 3009 expressly authorizes the states to impose

hazardous waste laws “which are more stringent than

those imposed by [RCRA],” and it preserves state au-

thority against preemption by federal regulatory require-

ments, provided that the state provisions are not “‘less

stringent than those authorized under [RCRA Sections

3001-3020] respecting the same matter.” 42 U.S.C.

§ 6929. A state’s authorization continues until EPA de-

termines after a public hearing that the state program

no longer conforms with federal requirements. 42 U.S.C.

$ 6926(e).

Alabama’s hazardous waste management program was

approved as not inconsistent with RCRA on December 8,

1987. See 52 Fed. Reg. 46,466 (December 8, i987).

Until authorization is withdrawn, therefore, action taken

by Alabama pursuant to its program operates with “the

same force and effect as action taken by [EPA].”

EPA’s regulations governing the authorization of state

hazardous waste programs are contained in 40 C.F.R.

Part 271. The regulations establish standards to evaluate

whether a state hazardous waste program is “consistent”

with federal law, and these standards explicitly address

effects on interstate commerce. In particular, 40 C.F.R.

$ 271.4(a) provides:

Any aspect of the State program which unreasonably

restricts, impedes, or operates as a ban on the free

movement across the State border of hazardous

wastes from or to other States for treatment, stor-

age, or disposal at facilities authorized to operate

under the Federal or an approved State program

shall be deemed inconsistent.

In addition, the regulations provide for periodic review

by EPA of changes in state programs after they have

been authorized, 40 C.F.R. § 271.21, and they specify

criteria and procedures for withdrawal of authorization,

including citizen petitions to EPA for public withdrawal

and participation in withdrawal proceedings, id.

$§ 271.22-23.

EPA adopted Section 271.4(a), its “reasonableness”

test for adjudging effects on interstate commerce under

RCRA, after giving explicit consideration to statutory

requirements and to holdings of this Court interpreting

the “dormant” Commerce Clause. See 45 Fed. Reg.

33,290, 33,395 (May 19, 1980).' EPA has characterized

the “unreasonably restricts” language of Section 271.4(a)

as creating a “facts and circumstances test.” 50 Fed.

Reg. 46,437, 46,440 (November 8, 1985), Appendix

infra, at 13a. In evaluating a restriction on the inter-

state movements of hazardous waste, EPA “will look to

all relevant factors.” Jd. at 46,439, Appendix infra,

at lla. EPA considered the relevance of this Court’s hold-

ing in City of Philadelphia v. New Jersey, 437 U.S. 617

(1978), to its test, but concluded that the “Agency is not

required to adopt the Constitutional test for impediments

or restrictions in interpreting its own regulations, and

declines to do so here.” 50 Fed. Reg. at 46,429, Appendix

infra, at 11a.

The requirements in RCRA for facilities which actively

generate, treat, store, and dispose of hazardous wastes

are complemented by provisions in the Comprehensive

Environmental Response, Compensation, and Liability Act

(“CERCLA”). CERCLA provides for remedies to be ap-

plied at a facility or property that has been contaminated

with hazardous substances, and it makes broad categories

of persons liable for costs of cleanup. In 1986, a provi-

sion was added to CERCLA to address assured capacity

for treating and disposing of hazardous wastes. As added

by the Superfund Amendments and Reauthorization Act

of 1986 (“SARA”), Paragraph 104(¢)(9) of CERCLA

provides that each State must provide assurance to EPA

that the State will “have adequate capacity for the de-

struction, treatment, or secure disposition of all hazard-

ous wastes that are reasonably expected to be generated

within the State during” the next 20 years, 42 U.S.C.

$ 9604(¢c) (9). See Petition at 2-3.

1 EPA took account of the fact that RCRA for some purposes

requires reference to the state of origin of hazardous wastes, e.g.,

for operation of the “manifest” system of tracking wastes, 40 C.F.R.

Part 262, Subpart B. The RCRA regime also must accommodate

implementation of states’ “more stringent’ requirements under

Section 3009 of RCRA, 42 U.S.C. § 6929.

EPA’s implementation of this capacity-assurance pro-

vision of CERCLA is closely tied to and coordinated with

its PCRA regulatory regime. As specified in CERCLA

$104(c) (9), EPA required each state by October 17,

1989, to submit for approval a Capacity Assurance Plan

demonstrating that adequate means had been or would

be provided for all hazardous wastes generated within

the state over the following 20 years, to 2009. In a policy

memorandum dated December 23, 1988, then-Administra-

tor Lee Thomas directed that the process for developing,

evaluating, and approving Capacity Assurance Plans be

used as EPA’s primary means of addressing “State action

which may be inconsistent with the federal Resource Con-

servation and Recovery Act program,” and that the

RCRA state-authorization withdrawal process be used

only “after determining that the CERCLA process has

proven ineffective.” Memorandum from Lee M. Thomas

to Regional Administrators, “Policy Regarding Hazard-

ous Waste Management Capacity and RCRA Consistency

Issues” ( December 23, 1988).

REASONS FOR GRANTING THE WRIT

The Court Of Appeals’ Erroneous Reliance On Dormant

Commerce Clause Principles, Rather Than Application Of

The Standard Derived From Congress’ Exercise Of Com-

merce Clause Power, Presents Important Legal Issues

Respecting State Powers And The Proper Administration

Of RCRA.

The court of appeals’ reliance on the dormant Com-

merce Clause to invalidate Alabama’s hazardous waste

program disrupts the balance between federal and state

regulation previously struck by Congress when it enacted

RCRA and entrusted its administration to EPA. Because

of the importance of this issue to the states and to the

proper administration of RCRA and hazardous waste

management pursuant to RCRA, the petition for writ of

certiorari should be granted.

The Commerce Clause is an explicit grant of power to

Congress. U.S. Const. art. I, § 8, cl. 3. Although in the

absence of congressional action the “dormant” Commerce

Clause is a “‘self-executing limitation on the power of the

States,” South-Central Timber Development, Inc. v.

Wunnicke, 467 U.S. 82, 87 (1984), once Congress has

exercised its powers, the constitutional measure of state

action is not that provided by the dormant Clause, but

rather congressional language and intent, Northeast Ban-

corp Inc. v. Board of Governors, 472 U.S. 159, 174

(1985) ; Wunnicke, 467 U.S. at 91-92. As a result of the

enactment of RCRA and, subsequently, the 1986 amend-

ments to CERCLA, “the commerce power of Congress is

not dormant, but has been exercised by that body,”

Northeast Bancorp, 472 U.S. at 174.

Congress provided in RCRA that, upon approval by

EPA, a state’s hazardous waste program operates “in

lieu of the Federal program.” RCRA § 3006(b), 42

U.S.C. § 6926(b). Congress empowered EPA to develop

and enforce implementing regulations for RCRA, and

EPA has done so to explicate Section 3006(b). In those

regulations EPA has specified the standard to be ap-

plied to determine whether the effects on interstate com-

merce of a state’s hazardous waste program are imper-

missible. Specifically, only an aspect of a state program

which ‘“‘unreasonably restricts, impedes, or operates as a

ban” on the interstate movement of hazardous waste

“shall be deemed inconsistent” and thus not in compliance

with Section 3006. 40 C.F.R. § 271.4(a) (emphasis

added ).

In adopting and applying Section 271.4/a), EPA con-

sidered and dismissed the proposition that states could

not impose restrictions on interstate commerce in haz-

ardous waste. EPA expressly rejected the contention re-

vived by the court of appeals in the present case that

a “virtually per se rule of invalidity,” City of Philadel-

phia, 437 U.S. at 624, applies to state hazardous waste

measures affecting interstate commerce. Compare 50 Fed.

Reg. 46,437, 46,439 (November 8, 1985), Appendix infra,

at 1la-12a, with 910 F.2d 713, 719-20, Pet. App. A-8 - A-13.

Instead, EPA stated that “Section 271.4(a) does not by

its terms prohibit any restrictions or impediments, only

those that are unreasonable.” 50 Fed. Reg. at 46,439,

Appendix infra, at 1la. EPA determined that “all rele-

vant factors’ must be considered in assessing the per-

missibility of state laws with interstate effects. /d. In

establishing that its reasonableness test applies, and not

per se rules under the dormant Commerce Clause, EPA

was quite pointed:

Congress gave EPA the authority to interpret the

term “consistent”; the Agency has interpreted the

term in § 271.4 to prevent unreasonable restrictions

or impediments in authorized programs. Nothing in

RCRA section 3006(b) or any other section of RCRA

requires the Agency to adopt the Constitutional test

as the test for consistency or unreasonable restric-

tions or impediments.

Id. (emphasis added), Appendix infra, at 12a.

The fact that Alabama’s Holley Bill was adopted after

EPA approved Alabama’s hazardous waste program does

not deprive it of its foree under RCRA or subject it to

scrutiny under dormant Commerce Clause precedents

rather than 40 C.F.R. § 271.4(a). A state “program”

approved pursuant to RCRA § 3006(b) is not static.

Once approved, the State “is authorized to carry out

[its] program in lieu of the Federal program,” 42 U.S.C.

§$ 6926(b) (emphasis added), unless and until EPA with-

draws authorization of the program as a whole, id.

§ 6926(e). Change within a state’s approved program

does not require subsequent EPA authorization to become

effective. Instead, ‘‘{p]rogram revision may be necessary

when the controlling Federal or State statutory or regu-

latory authority is modified or supplemented.” 40 C.F.R.

§ 271.21(a) (emphasis added).* EPA explained the dis-

2 This arrangement contrasts with State Implementation Plans

under the Clean Air Act, for example, where state revisions to the

plans are not effective unless expressly approved by EPA. See 42

cretionary nature of its power specifically in the context

of state provisions that affect interstate waste:

If an authorized State adopts restrictions or impedi-

ments that may affect the flow of hazardous wastes,

EPA may find that such changes are significant re-

visions to the State’s program and provide public

notice and comment under § 271.21 on their potential

impacts on interstate transportation of wastes. If

the restrictions or impediments are found to be wn-

reasonable, they would be grounds for withdrawal of

the authorized program under § 271.22.

50 Fed. Rey. at 46,440 (emphasis added), Appendix

infra, at 14a.

Although the court of appeals acknowledged in passing

that Congress may redistribute power over interstate

commerce, 910 F.2d at 721, Pet. App. at A-13, its exclu-

sive reliance on dormant Commerce Clause cases effec-

tively nullifies this fundamental precept.* “When Con-

gress has struck the balance it deems appropriate, the

courts are no longer needed to prevent States from bur-

dening commerce .... Courts are final arbiters under

the Commerce Clause only when Congress has not acted.”

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 154-55

(1982) (footnote and citations omitted). Once Congress

has acted, as it has here, the question is not determined

by whether “the commerce clause ‘of its own force’ and

without reference to any action by Congress . . . forbids

discriminatory state” law, Prudential Ins. Co., 328 US.

at 422. Rather, the crucial questions are whether Con-

gress has acted legitimately and ‘whether the policy

stated [by Congress] extends to the kind of state legisla-

U.S.C. § 7410(a). See generally General Motors Corp. v. United

States, 110 S. Ct. 2528 (1990).

* The court of appeals should have stated this basic proposition in

stronger terms. As this Court has said: “The commerce clause is in

no sense a limitation upon the power of Congress over interstate

and foreign commerce.” Prudential Ins. Co. v. Benjamin, 328 U.S.

408, 423 (1946).

tion which is immediately in issue.” Jd. at 427. And, con-

trary to the approach of the court of appeals in relying

on City of Philadelphia, “those questions are not an-

swered . .. by any conception that Congress’ declaration

of policy adds nothing to the validity of what states have

done within the area covered by the declaration.” Jd.

The court of appeals misconstrued the effect of the

cases decided on the basis of Congress’ exercise of its

Commerce Clause power by suggesting that congressional

approval of the state’s law must be “ ‘expressly stated.’ ”

910 F.2d at 721, Pet. App. at A-13. This Court has not

been so grudging in giving effect to Congress’ power, nor

could it, for in taking so limited an approach “Congress’

power over commerce would be nullified to a very large

extent.” Prudential Ins. Co., 328 U.S. at 422. Contrary

to the court of appeals’ invocation, “|t]here is no talis-

manic significance to the phrase ‘expressly stated.’ ”’

South-Central Timber Development, Inc. v. Wunnicke,

467 U.S. 82, 91 (1984). Rather, “it merely states one

way of meeting the requirement . . . for a state regula-

tion to be removed from the reach of the dormant Com-

merce Clause,” the ultimate test of which is “congres-

sional intent.” Jd. (emphasis added). See White v. Mas-

sachusetts Council of Construction Employers, Inc., 460

U.S. 204, 213 (1983).*

The court of appeals was thus wrong to conclude that

its task was simply ‘‘to determine whether Congress has

authorized Alabama to erect its barrier to the interstate

movement of hazardous wastes.” 910 F.2d at 721, Pet.

App. at A-13. Congress has authorized EPA to promul-

gate regulations and policies to implement RCRA and

CERCLA, and EPA has addressed through these routes

the permissibility of state hazardous waste laws that

4 In that regard, “[w]|hen Congress enters the field by legislation,

we try to discover to what extent it intended to exercise its power

of redefinition” over the dormant Commerce Clause. California v.

Zook, 336 U.S. 725, 728 (1949).

affect interstate commerce in hazardous waste. Just as

the Federal Reserve Board is ‘an authoritative voice on

the meaning of a federal banking statute,” Northeast

Bancorp, 472 U.S. at 168, so too is EPA’s interpretation

authoritative with respect to RCRA. This Court is re-

quired to defer to EPA’s construction of RCRA and con-

clude that the pertinent standard for regulation by a

state respecting interstate waste is the reasonableness

standard of 40 C.F.R. § 271.4(a) as elucidated at 50

Fed. Reg. 46,439, Appendix infra, at 10a-13a. See Chev-

ron U.S.A. Ine. v. Natural Resources Defense Council,

467 US. 837, 843 (1984).°

The court of appeals further erred in failing properly

to account for the impact of the capacity assurance re-

quirements in CERCLA § 104/c) (9), 42 U.S.C. § 9604

sessing the reasonableness of a state restriction on inter-

state movement of hazardous waste under Section 271.4

(a), the most “relevant factor” is the requirement of

CERCLA § 104(/¢c) (9) (A), 42 U.S.C. § 9604(c¢) (9) (A),

that a state provide assurance that it will have available

“adequate capacity for the destruction, treatment, or

secure disposition of all hazardous wastes that are rea-

sonably expected to be generated within the State’ over

the next 20 years ‘emphasis added). By its very terms,

CERCLA § 104(c) (9) requires a state to give separate

regard to wastes generated within its borders, and to

demonstrate that it has provided explicitly for their

treatment or disposal.

Moreover, the Section allows this demonstration to be

provided by only limited means: the facilities relied upon

5 EPA’s interpretation is expressed in its regulations, policies and

decisions applying those regulations and policies. Investment Co.

Institute v. Camp, 401 U.S. 617, 628 (1971). Section 271.4(a) is

established as law barring subsequent amendment because the time

period for bringing a petition for judicial review of the regulation

has long passed, and by statute the regulation may not otherwise be

attacked. See 42 U.S.C. § 6976(a) (1); Harrison v. PPG Industries,

Inc., 446 U.S. 578, 594 (1980) (Powell, J., concurring).

must either be ‘within the State or outside the State in

accordance with an interstate agreement or regional

agreement or authority.” CERCLA § 104(c) (9) (B), 42

U.S.C. $ 9604(¢c) (9) (B). Thus, not only does the statute

specify that the state must distinguish in-state genera-

tors from those out-of-state, it requires that the state

specifically account for in-state generated waste in connec-

tion with its in-state treatment and disposal facilities.

Whether the state allocates all in-state capacity to in-

state waste, all to out-of-state waste, or something in be-

tween, the statute requires that an allocation be made

for the state’s assurance of capacity to have any real

meaning and practical effect. There simply is no way for

a state without affecting interstate commerce to comply

with Section 104(c) (9)’s requirement to ensure capacity

for in-state waste, short of making infinite capacity avail-

able, which is not what Congress contemplated.

EPA has recognized the relevance of CERCLA §& 104

§ 271.4(a) by tying its implementation of CERCLA’s

capacity assurance requirement to its RCRA regulatory

regime. In December 1988, then-EPA Administrator Lee

Thomas directed that EPA’s “CERCLA capacity as-

surance process should be used as an initial response to

State actions which prohibit waste management within

State boundaries without environmental justification.”

Memorandum from Lee M. Thomas to Regional Adminis-

trators (Dec. 23, 1988). Notwithstanding the fact that

“the procedures for withdrawal of authorized State

RCRA programs” could provide a remedy for such “un-

reasonable restrictions on interstate waste movements,”

the Administrator directed that withdrawal procedures

should be considered only “after determining that the

CERCLA process has proved ineffective.” Jd.

The long-standing constitutional principles governing

this case were summarized in Prudential Ins. Co. v. Ben-

jamin, 328 U.S. 408 (1946). In Prudential Ins. Co., the

challengers, like the court of appeals here, sought to

relegate pertinent federal statutes entirely ‘‘to one side,

either as not intended to have effect toward validating

this sort of [state law] or, if construed otherwise, as con-

stitutionally ineffective to do so.” Id. at 422. Those ques-

tions cannot be so dismissed; they have primacy and are

of “controlling” significance. Jd. Because of the impor-

tance of those issues to the States and the administration

of the nation’s hazardous waste laws, the petition should

be granted.

CONCLUSION

For the reasons set forth above, and those set forth in

the Petition for Certiorari, the requested petition for writ

of certiorari should be granted.

Respectfully submitted,

WALTON J. McLeop, III

Genera] Counsel

JACQUELYN S. DICKMAN

Assistant General Counsel

SAMUEL L. FINKLEA, III

Staff Counsel

SOUTH CAROLINA DEPARTMENT OF

HEALTH AND ENVIRON MENTAL

CONTROL

2600 Bull Street

T. TRAVIS MEDLOCK

Attorney General

EDWIN E. EVANS

Chief Deputy Attorney

General

JAMES PATRICK HUDSON

Deputy Attorney General

KENNETH P. WOODINGTON

Senior Assistant Attorney

General

TREVA G. ASHWORTH

Senior Assistant Attorney

General

MARK R. ELAM

Senior Legal Counsel

Office of the Governor

Post Office Box 11549

Columbia, South Carolina 29211

(803) 734-3680

June 5, 1991

Columbia, South Carolina 29201

(803) 734-4910

CHARLES F. LETTOW *

MATTHEW D. SLATER

CLEARY, GOTTLIEB, STEEN &

HAMILTON

1752 N Street, N.W.

Washington, D.C. 20036

(202) 728-2700

* Counsel of Record

for Amicus Curiae

State of South Carolina

APPENDIX

RCRA Section 3006(b), 42 U.S.C. § 6926(b) :

§$ 6926. Authorized State hazardous waste programs

* * * ~

(b) Authorization of State program

Any State which seeks to administer and enforce

a hazardous waste program pursuant to this sub-

chapter may develop and, after notice and opportu-

nity for public hearing, submit to the Administrator

an application, in such form as he shall require, for

authorization of such program. Within ninety days

following submission of an application under this

subsection, the Administrator shall issue a notice as

to whether or not he expects such program to be

authorized, and within ninety days following such

notice (and after opportunity for public hearing)

he shall publish his findings as to whether or not

the conditions listed in items (1), (2), and (3) below

have been met. Such State is authorized to carry out

such program in lieu of the Federal program under

this subchapter in such State and to issue and en-

force permits for the storage, treatment, or disposal

of hazardous waste (and to enforce permits deemed

to have been issued under section 6935(d) (1)"™ of

this title) unless, within ninety days following sub-

mission of the application the Administrator notifies

such State that such program may not be authorized

and, within ninety days following such notice and

after opportunity for public hearing, he finds that

(1) such State program is not equivalent to the Fed-

eral program under this subchapter, (2) such pro-

gram is not consistent with the Federal or State pro-

grams applicable in other States, or (3) such pro-

gram does not provide adequate enforcement of com-

pliance with the requirements of this subchapter.

In authorizing a State program, the Administrator

may base his findings on the Federal program in ef-

fect one year prior to submission of a State’s applica-

tion or in effect on January 26, 1983, whichever is

later.

RCRA Section 3009, 42 U.S.C. § 6929:

$6929. Retention of State authority

Upon the effective date of regulations under this

subchapter no State or political subdivision may im-

pose any requirements less stringent than those au-

thorized under this subchapter respecting the same

matter as governed by such regulations, except that

if application of a regulation with respect to any

matter under this subchapter is postponed or en-

joined by the action of any court, no State or political

subdivision shall be prohibited from acting with re-

spect to the same aspect of such matter until such

time as such regulation takes effect. Nothing in this

chapter shall be construed to prohibit any State or

political subdivision thereof from imposing any re-

quirements, including those for site selection, which

are more stringent than those imposed by such regu-

lations, Nothing in this chapter (or in any regula-

tion adopted under this chapter) shall be construed

to prohibit any State from requiring that the State

be provided with a copy of each manifest used in

connection with hazardous waste which is generated

within that State or transported to a treatment, stor-

age, or disposal facility within that State.

40 C.F.R. § 271.4:

$271.4 Consistency.

To obtain approval, a State program must be con-

sistent with the Federal program and State programs

applicable in other States and in particular must

comply with the provisions below. For purposes of

this section the phrase ‘“‘State programs applicable in

other States” refers only to those State hazardous

waste programs which have received final authoriza-

tion under this part.

(a) Any aspect of the State program which un-

reasonably restricts, impedes, or operates as a ban on

the free movement across the State border of haz-

ardous wastes from or to other States for treatment,

storage, or disposal at facilities authorized to oper-

ate under the Federal or an approved State program

shall be deemed inconsistent.

(b) 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.

the requirements of this part, the State program

shall be deemed inconsistent.

Federal Register—Vol. 50, No. 217

Friday, November 8, 1985

Rules and Regulations

[46437 |

40 CFR Part 271

|OSW-FRL-2921-6 |

South Carolina; Decision on Final Authorization of State

Hazardous Waste Management Program

AGENCY: Environmental Protection Agency.

ACTION: Notice of Final Determination on South Caro-

lina’s Application for Final Authorization.

SUMMARY: South Carolina has applied for Final Au-

thorization under the Resource Conservation and Re-

covery Act (RCRA). EPA has reviewed South Carolina’s

application and has reached a final determination that

South Carolina’s Hazardous Waste Program satisfies all

of the requirements necessary for Final Authorization.

Thus, EPA is granting Final Authorization to the State

to operate its program in lieu of the Federal program.

EFFECTIVE DATE: Final Authorization for South

Carolina, for purposes of judicial review, shall be effec-

tive at 1:00 p.m. Eastern time on November 22, 1985.

However, in accordance with § 271.20(e), this Notice

constitutes the Agency’s official decision to approve South

Carolina for Final Authorization.

FOR FURTHER INFORMATION CONTACT: Otis

Johnson Jr., Chief, Waste Planning Section, Residuals

Management Branch, Waste Management Division, U.S.

ial acai eee

Environmental Protection Agency, 345 Courtland Street

N.E., Atlanta, Georgia 30365, (404) 257-3016.

SUPPLEMENTARY INFORMATION:

I. Background

Section 3006 of the Resource Conservation and Re-

covery Act (RCRA) allows the Environmental Protection

Agency (EPA) to authorize State hazardous waste man-

agement programs to operate in the State in lieu of the

Federal program. To qualify for Final Authorization,

a State’s program must: (1) Be “equivalent” to the

Federal program, (2) be consistent with the Federal pro-

gram and other State programs, and (3) provide for

adequate enforcement (Section 3006(b) of RCRA, 42

U.S.C. 6226(b) [sic]). On July 23, 1984, South Carolina

submitted a complete application to obtain Final Author-

ization to administer a RCRA program. On October 25,

1984, EPA published a tentative decision announcing its

intent to grant South Carolina Final Authorization. Fur-

ther background on the tentative decision appears at 49

FR 42959, October 25, 1984.

In the October 25 notice announcing the Agency’s

tentative determination, EPA announced the availability

of the State’s application for public review and comment

and the date of a public hearing on the application. The

public hearing was not held, since neither EPA nor the

South Carolina Department of Health and Environmental

Control received a significant show of interest in holding

the hearing.

On March 5, 1985, the decision to grant final authoriza-

tion to South Carolina was temporarily postponed. At

that time, EPA decided to defer a final decision until

July 1985 to allow the State a reasonable period of time

to resolve identified issues.

Prior to EPA’s review of the State’s performance in

July 1985, the South Carolina Hazardous Waste Man-

agement Act (1935 Act No. 436) was amended to estab-

lish increased fees for disposal of hazardous waste. The

amendments passed in June 1985 changed section 44-56-

170 to raise the fee for land disposal of wastes generated

within the State from $5.00 to $13.00 per ton. For land

disposal of wastes generated outside the State, the fee

was raised from $7.50 per ton to either $18.00 per ton

or to the amount that would be charged for land disposal

by the State in which the wastes were generated, which-

ever is higher.

[46438] EPA determined that this statutory change

constituted a substantial program revision, and in ac-

cordance with 40 CFR 271.20(b), the Agency decided to

solicit public comment. On September 13, 1985 (50 FR

37385), EPA published a second notice of tentative deter-

mination to approve the State. In that notice, EPA high-

lighted the question of whether the South Carolina Haz-

ardous Waste Management Act Amendments rendered

the State program inconsistent with the Federal program

or approved State programs under RCRA.

The question to be settled before EPA granted final

authorization was whether the South Carolina fee sched-

ule rendered the State program inconsistent with the

Federal program and other State programs. Under

$271.4(a) a State treatment, storage or disposal at fa-

cilities authorized to operate under the Federal or an

approved State program ...”. [sic]

In the notice of tentative determination, EPA stated

that while higher fees for out-of-State wastes should not

be encouraged, the Agency did not have any evidence to

indicate that the new fees would unreasonably restrict,

impede, or operate as a ban on the transportation of haz-

ardous waste into the State. The only evidence before the

Agency at that time were South Carolina’s statements

that the fee imposed constitutes a “relatively small per-

centage” of the actual cost of disposal and that, in the

State’s view, it would not unreasonably restrict or im-

iccteenenensiieeeeeneiin ieee

—

pede the movement of hazardous waste (50 FR 37386,

September 13, 1985). The Agency solicited comment cn

whether the State law unreasonably restricts, impedes or

operates as a ban on the importation of hazardous waste,

under the consistency requirements of 40 CFR 271.4(a).

EPA received written comments and also held a_ public

hearing in Columbia, South Carolina.

II. Basis for EPA’s Decision to Grant Final Authoriza-

tion

The Agency today is making a final determination that

the South Carolina fee schedule does not impose an un-

reasonable impediment or restriction or operate as a ban

on the free movement of hazardous waste under 40 CFR

271.4. The fee schedule is not inconsistent with the Fed-

eral program or approved State programs under this reg-

ulation or under RCRA. This section explains the reasons

for the Agency’s decision on this matter. Because this

was the only outstanding issue, the Agency is now able to

grant final authorization to the State.

A. EPA’s veqgulation

EPA adopted the present regulation at 40 CFR 271.4 (a)

on May 19, 1980 (see 45 FR 33395, 33465-66, Mav 19,

1980). The regulation states that any aspect which “un-

reasonably restricts, impedes or operates as a ban” is

deemed inconsistent.

In the preamble discussing § 271.4(a)}, EPA explained

the regulation as follows. The Agency stated that any

aspect of the program which operates as a ban on the

interstate movement of hazardous waste is automatically

inconsistent. The Agency noted that this position was

supported by a court decision, City of Philadelphia v. New

Jersey, 4837 U.S. 617 (1978), which held unconstitutional

a statute banning transportation of certain wastes into

the State for disposal because it violated the commerce

clause of the Constitution. (This discussion is consistent

with that in the preamble to the proposed regulation (44

FR 34259, June 14, 1979).)

EPA did net discuss what criteria it would apply in

determining whether State programs unreasonably re-

strict or impede the free movement of hazardous waste.

However, it is clear from the regulation that EPA in-

tended “unreasonable restrictions or impediments” to

render State programs inconsistent. The question of

whether a State provision unreasonably restricts or im-

pedes the free movement of hazardous waste did not arise

in any final decision to grant RCRA final authorization

until South Carolina’s amended statute raised this issue.

B. The Agency's Tentative Decision on South Carolina

Authorization

As noted above, EPA tentatively concluded that the

South Carolina statute did not render the State program

inconsistent under 40 CFR 271.4(a). In reaching this

conclusion, the Agency considered all available facts. It

appeared reasonably clear from the face of the statute

that the fee schedule was not a ban and that it did not

operate as a ban. The evidence before the Agency did

not indicate that the fee schedule had significantly affected

the flow of hazardous waste into the State. However, be-

cause the amended statute was a potentially significant

change to the State program which might affect authori-

zation under 40 CFR 271.4, the Agency solicited comment

on whether the fee schedule unreasonably restricts or

impedes the flow of hazardous waste into South Carolina.

C. Public Comment

Public comment, with one exception, supported EPA

authorization of the State program. Several commenters

did not address the question of the fee schedules but gen-

erally stated that South Carolina’s RCRA program was

supported by adequate legal authority and staffing and

therefore deserved authorization. The only land disposal

facility in South Carolina known to the Agency to accept

out-of-State hazardous waste and to pay the fees at issue

also generally supported authorization, but did not ad-

dress the question rasied {sic] by the fee schedule.

Several other commenters who favored authorization

argued that the fee schedule was reasonable and justified.

They provided a variety of rationales including that the

higher fees were appropriate: (1) To discourage land

disposal as it is environmentally the least desireable [sic]

form of disposal, (2) to raise money that might be ex-

pended to address released [sic] from land disposal units,

(3) to discourage land disposal and thereby conserve the

State’s limited land disposal resource, and (4) to supple-

ment State funds for monitoring compliance at land dis-

posal facilities accepting out-of-State wastes.

The State of South Carolina commented that the one

land disposal facility in South Carolina which accepts out-

of-State wastes charges $90.00 per ton for disposal.

First, the State noted that the new fee differential of

$5.00 per ton for out-of-State wastes represents but a

small percentage of this charge. The State believed that

this small amount would not discourage out-of-State gen-

erators from using the facility. Second, the State noted

that during the period of July to September of 1984 there

were 16,848 tons of out-of-State waste disposed at the

facility. During the same period in 1985, when the new

fee schedule was in place, there were 26,352 tons of out-

of-State waste disposed. The State cited this increase as

factual proof that the fee schedule has not had any ad-

verse impact on the amount of waste imported into the

State. The State reported that fees had been collected at

both the $18.00 rate and at higher rates corresponding

to the fees of the States from which the wastes were

shipped. Third, the State noted that a fee differential,

including rates equivalent to those charged in the shipping

State, had existed for several years and that there has

been a continuing increase in the volume of wastes im-

ported into the State.

10a

The Hazardous Waste Treatment Council was alone in

opposing authorization for South Carolina. The Council

did not dispute that the volume of imported waste had in-

creased despite the higher fees. Rather, they believed

[46439] that the fee schedule discriminates on its face

against interstate commerce and therefore was an un-

constitutional and unreasonable restriction on the free

flow of waste. The Council argued that: (1) The dis-

parity in fees rendered the program “inconsistent” under

RCRA 3006(b) as it did not promote the essential uni-

formity among hazardous waste programs intended by

Congress, (2) the disparity in favor of in-State wastes

was unconstitutional and therefore was inconsistent un-

der RCRA 3006(b) and an unreasonable restriction or

impediment under § 271.4(a), and (3) discriminatory

statutes will frustrate RCRA objectives for a national

market for development of proper treatment and disposal

practices.

The Council stated that in promulgating 40 CFR 271.4,

EPA had adopted a constitutional test to determine what

is an unreasonable restriction and impediment. There-

fore; they argued that the unconstitutional statute vio-

lated § 271.4(a). They also argued that it would be too

difficult to assess whether there is in fact a significant

discrimination on a case-by-case basis.

EPA believes that these are the substantive comments

relating to the fee schedule and the Agency’s decision.

These and other comments are addressed in this notice

and in a separate comment and response document that

is available from EPA Region IV (address listed at the

front of this notice).

D. Application of § 271.4(a) to South Carolina’s Fee

Schedule

EPA carefully evaluated the above comments in deter-

mining whether the South Carolina fee schedule was an

unreasonable restriction or impediment to the free move-

ment of hazardous waste.

lla

The Agency has determined that in applying § 271.4 (a)

to State laws and regulations, EPA should look to

whether the State provision in fact has or is likely to have

a significant adverse effect on the follow [sic] of hazard-

ous waste into or out of the State. Thus, the unreason-

ableness of the restriction or impediment under § 271.4(a)

should be measured by the impact of [sic] likely impact

on the actual flow of waste. In applying this test, EPA

will look to all relevant factors. The Agency will pri-

marily focus on any available evidence on the quantities

of wastes that are imported and exported.

The Agency believes that this test is a reasonable in-

terpretation of its regulation and does not conflict with

section 3006 of RCRA. Section 271.4(a) does not by its

terms prohibit any restrictions or impediments, only

those that are unreasonable. Reasonable restrictions or

impediments can logically include those that do not sig-

nificantly decrease the flow of hazardous waste. There-

fore, EPA does not agree that any disparity in treatment

between in-State and out-of-State wastes is per se unrea-

sonable. Contrary to the statement by the Hazardous

Waste Treatment Council, the preamble adopting this reg-

ulation did not state that EPA was relying on the Con-

stitutional test for impermissible restraints on interstate

commerce as the basis for finding restrictions or impedi-

ments unreasonable. The Agency is not required to adopt

the Constitutional test for impediments or restrictions in

interpreting its own regulations, and declines to do so

here.

EPA also believes that its interpretation of the regula-

tion accords with RCRA. RCRA section 2006 [sic] re-

quires EPA to approve State programs unless it finds they

are: (1) Not equivalent, (2) not consistent, or (3) lacking

adequate enforcement authority. To be equivalent, States

must adopt a set of basic statutes and regulations that

are equivalent to EPA’s. In addition, States may adopt

requirements which are more stringent or different than

12a

EPA’s authority. More stringent requirements are ex-

pressly permitted by RCRA section 3009. These require-

ments may have some adverse effect on interstate com-

merce. Different requirements are permissible if they

are not inconsistent with the Federal program and ap-

proved State programs. Authorized States have adopted

many State requirements that are unlike the requirements

of other States and which, in some cases, have an effect

on the flow of wastes. The Agency does not believe that

the mere existence of differences or disparities in treat-

ment makes State programs inconsistent per se. Congress

expected that States would not have identical programs

and recognized the importance of allowing States to ex-

periment with different requirements. Congress gave

EPA the authority to interpret the term “consistent”;

the Agency has interpreted the term in § 271.4 to prevent

unreasonable restrictions or impediments in authorized

programs. Nothing in RCRA section 3006(b) or any

other section of RCRA requires the Agency to adopt the

Constitutional test as the test for consistency or unrea-

sonable restrictions or impediments.

The Agency does not believe that higher fees for out-

of-State wastes or other discriminatory practices should

be encouraged. EPA is concerned that such fees may dis-

courage wastes from going to the most appropriate facil-

ity for treatment or disposal.

However, it appears that South Carolina’s fees schedule

does not have a significant adverse effect on the flow of

hazardous waste into or out of the State. All available

evidence supports this conclusion. The fact that the fee

differential is small in most cases indicates that the out-

of-State fee probably will not restrict a significant vol-

ume of waste. Moreover, the fact that the volume of out-

of-State wastes increased signiticantly after the higher

fees were imposed suggests that there is not a significant

adverse impact on the flow of wastes. The fees clearly do

not operate as a ban in this case. In addition, some fees

13a

were collected at the higher rate based on the fees of

other States. Finally, the volume of wastes imported into

the State has increased over the years despite a fee differ-

ential which included fees based on those in the State of

origin. Although it is unknown how much more waste

might have entered South Carolina if there were no fee

differential, there is no information to suggest that a

significant volume might be affected. The Agency dis-

agrees that this test (which looks to the facts of each

case) is too difficult to apply.

Several comments related to the reasons for the State’s

adoption of the fee schedule and one addressed the con-

cern that discriminatory practices would frustrate RCRA

objectives for a national market for proper treatment

and disposal practices. EPA acknowledges that the State

offered several reasons for the fee differential. However,

the Agency believes that the reasons for the adoption of

the fee or any purportd benefits are not generally rele-

vant to the question of reasonableness of the impediment

or restriction. If a provision has little or no impact on

the flow of wastes, EPA does not believe that the actual

motives or benefits resulting from the provision should

preclude authorization. EPA is also concerned that dif-

ferent provisions for in-State and out-of-State wastes may

frustrate the best possible treatment and disposal of

wastes. As noted above, RCRA intended that State pro-

grams be generally uniform for purposes of encouraging

proper treatment and disposal and EPA has interpreted

this consistency requirement to deny authorization where

restrictions or impediments are unreasonable. It does not

require EPA to deny authorization merely because in-

State and out-of-State wastes are regulated somewhat

differently by the State. In any event, there is no evi-

dence that proper [46440] treatment or disposal is ad-

versely affected by this statute; the volume of wastes into

South Carolina has increased.

In applying this facts and circumstances test, EPA is

aware that circumstances may change over time. The

l4a

Agency will therefore periodically reassess provisions

which may unreasonably impede the flow of wastes, in-

cluding this fee schedule of South Carolina. In addition,

any provisions adopted by States seeking authorization

and which impose or result in restrictions or impediments

or result in restrictions or impediments on the flow of

wastes will be subjected to careful scrutiny. If an au-

thorized State adopts restrictions or impediments that

may affect the flow of hazardous wastes, EPA may find

that such changes are significant revisions to the State’s

program and provide public notice and comment under

§ 271.21 on their potential impacts on interstate trans-

portation of wastes. If the restrictions or impediments

are found to be unreasonable, they would be grounds for

withdrawal of the authorized program under § 271.22.

For the reasons discussed above, EPA has concluded

that South Carolina’s fee schedule is not an unreasonable

impediment or restriction on the flow of waste into the

State and that authorization is not precluded by § 271.4

(a). Nevertheless, the Commissioner of the South Caro-

lina Department of Health and Environmental Control

has informed the Agency that he will recommend to the

South Carolina Legislature that it repeal that aspect of

the fee schedule which imposes higher fees based on rates

charged by the State of origin. EPA supports this effort.

South Carolina is not authorized by the Federal govern-

ment to operate the RCRA program on Indian lands and

this authority will remain with EPA.

Final authorization is hereby granted to South Caro-

lina to operate its hazardous waste management program

in lieu of the Federal program subject to the limitation

on its authority by the Hazardous and Solid Waste

Amendments of 1984 (Pub.L. 98-616, November 8, 1984).

South Carolina now has the responsibility for permitting

treatment, storage, and disposal facilities within its bor-

ders and carrying out the other aspects of the RCRA

program. South Carolina also has primary enforcement

15a

authority, although EPA retains the right to conduct

inspections and make information requests under section

3007 of RCRA and to take enforcement action under

sections 3008, 3013, and 7003 of RCRA.

Prior to the Hazardous and Solid Waste Amendments

(HSWA) amending RCRA, a State with final authoriza-

tion administered its hazardous waste program entirely

in lieu of EPA. EPA’s regulations no longer applied in

the authorized State, and EPA could not issue permits

for any facilities the State was. authorized to permit.

Now, however, under seciton [sic] 3006(g) of RCRA, 42

U.S.C. 6226(¢), the new Federal requirements and pro-

hibitions imposed by the HSWA take effect in authorized

States at the same time as they take effect in non-

authorized States. EPA is directed to carry out those

requirements and prohibitions, including the issuance of

full or partial permits, in authorized States until the

State is granted authorization to do so.

As a result of HSWA, there will be a dual State-

Federal regulatory program in South Carolina. To the

extent the authorized State program is unaffected by

the HSWA, the State program will operate in lieu of

the Federal program. EPA will administer and enforce

the portions of the HSWA in South Carolina until the

State receives authorization to do so. Among other

things, this will entail the issuance of Federal RCRA

permits for those areas in which the State is not yet

authorized. Once the State is authorized to implement a

HSWA requirement or prohibition, the State program in

that area will operate in lieu of the Federal program.

Until that time the State will assist EPA’s implementa-

tion of the HSWA under a Cooperative Agreement.

Federal HSWA requirements that are more stringent

than the State’s program apply in South Carolina. Any

State requirement that is more stringent than a Federal

HSWA provision also remains in effect. (South Carolina

l6a

is not being authorized now for any requirement imple-

menting the HSWA.)

EPA has published a Federal Register notice that ex-

plains in detail the HSWA and its effect on authorized

States. Refer to 50 FR 2872-28755, July 15, 1985.

Compliance With Executive Order 12291

The Office of Management and Budget has exempted

this rule from the requirements of section 3 of Executive

Order 12291.

Certification Under the Regulatory Flexibility Act

Pursuant to the provisions of 5 U.S.C. 605/b), I hereby

certify that this authorization will not have a significant

economic impact’ on a substantial number of entities.

This authorization effectively suspends the applicability of

certain Federal regulatidns in favor of South Carolina’s

program, thereby eliminating duplicative requirements

for handlers of hazardous waste in the State. It does

not impose any new burdens on small entities. This rule,

therefore, does not require a_ regulatory flexibility

analysis.

List of Subjects in 40 CFR Part 271

Hazardous waste, Indian lands, Reporting and record-

keeping requirements, Waste treatment and disposal, In-

tergovernmenta!l relations, Penalties, Confidential busi-

ness information.

Authority: This notice is issued under the authority of

sections 2002/a), 3006, and 7004(b) of the Solid Waste

Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974

(b), and EPA Delegation 8-7.

Dated: November 5, 1985.

Jack E. Ravan,

Regional Administrator.

[FR Doc. 85-26814 Filed 11-7-85; 8:45 am]

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