# Petition for Writ of Certiorari — Potomac Electric Power Co. v. Curran > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2419%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 484 U.S. 1022 ## Text Re -8 71 — i | DFC 1 1986 ' CLERK 7) _ Supreme Court, U.S, FILED JR. IN THE Siuwreme Court of the United States OCTOBER TERM, 1986 THE PoTOMAC ELECTRIC POWER COMPANY, - Petitioner, STEPHEN H. SACHS, ATTORNEY GENERAL OF MARYLAND, AND ADELE WILZACK, SECRETARY OF THE MARYLAND DEPARTMENT OF HEALTH AND MENTAL HYGIENE, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT, OF APPEALS FOR THE FOURTH CIRCUIT E. BARRETT PRETTYMAN, JR.* SHERWIN J. MARKMAN JOHN C. KEENEY, JR. DAVID J. HAYES JOHN G. ROBERTS, JR. HOGAN & HARTSON (a partnership including professional corporations) 815 Connecticut Ave., N.W. Washington, D.C. 20006 (202) 331-4685 ARNOLD W. WEINER Of Counsel: MICHAEL SCHATZOW KATHLEEN B. DEWEESE ETHAN L. BAUMAN Associate General Counsel MELNICOVE, KAUFMAN, WEINER, POTOMAC ELECTRIC SMOUSE & GARBIS, P.A. PowER COMPANY 36 South Charles St. 1900 Pennsylvania Ave., N.W. Baltimore, MD 21201 Washington, D.C. 20068 (301) 332-8525 (202) 872-2520 Counsel for Petitioner * Counsel of Record ET WILSON - EPes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 QUESTIONS PRESENTED 1. Did the court below err in holding that federal courts must abstain in favor of state grand jury investi- gations, contrary to the recent holding of the Third Cir- cuit in Monaghan v. Deakins, 798 F.2d 632 (1986)? 2. Did the court below err in holding that abstention was appropriate in a case seeking relief under a preemp- tive federal statute, contrary to the holdings of the Sec- ond, Third, Fifth, Eighth, Ninth, and Eleventh Circuits? (i) ii PARTIES TO THE PROCEEDINGS Petitioner The Potomac Electric Power Company (“PEPCO”) is the electrical utility corporation that services the District of Columbia and parts of Maryland and Virginia.* Respondents are Stephen H. Sachs, in his official capacity as Attorney General of Maryland, and Adele Wilzack, in her official capacity as Secretary of the Maryland Department of Health and Mental Hygiene. * Pursuant to Rule 28.1, petitioner notes that it has no affiliates and no subsidiaries that are not wholly owned. TABLE OF CONTENTS QUESTIONS PRESENTED .................... scalinteaianieiamnliohn PARTIES TO THE PROCEEDINGS ........-.2ow.... SM SP RIE II sc ccccsssescecassuasacnensnecesnesses i aha cetiaesneeemenessinninecnsenininasat PERTINENT CONSTITUTIONAL AND STATU- a I. The Decision Below Is In Direct And Irrecon- cilable Conflict With The Decision Of The Third Circuit in Monaghan v. Deakins ....................-..... II. The Court Below Misinterpreted This Court’s Abstention Decisions In Extending Younger To Grand Jury Investigations .....00000000000.00- III. The Court Below Erred In Requiring Absten- tion In A Case Involving A Preemptive Federal SE CS ce IV. The Uniform Resolution Of The Questions Pre- sented Is Of Overriding Importance To The Smooth Functioning Of The Federal System ....... IES a APPENDICES Appendix A: Opinion of Court of Appeals... Appendix B: Opinion of District Court on Ab- EEG Sa Appendix C: Opinion of District Court on Pre- RR Appendix D: Judgment of Court of Appeals ....... Appendix E: Order of District Court on Motion EE a Appendix F: Declaratory Judgment Order of tant (iii) 10 20 iv TABLE OF AUTHORITIES Cases Page Aluminum Company of America v. Utilities Com- mission of North Carolina, 713 F.2d 1024 (4th Cir. 1983), cert. denied, 465 U.S. 1052 (1984)... 23 Baggett v. Department of Professional Regulation, poh? § Bo: Cs | ee 24-25 Bartram vy. State, 280 Md. 616, 374 A.2d 1144 SUITE .niiecssadpilnicscheielasangtedatiedlsibinsssadiadsaniiglisaunjiéecienes 14 Blair v. United States, 250 U.S. 273 (1919)...:........ 14 Brennick V. Hynes, 471 F. Supp. 863 (N.D.N.Y. TT Sete a Oi Gre AEN Mee ee 9 Burford v. Sun Oil Co., 319 U.S. 315 (1943) -...... 23 Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 II acct seccecat cedistndapeneiiciadanichicesiinlaisdeihlnianilicaibeess 21 Champion International Corp. v. Brown, 731 F.2d I Be a ccinciinicenientlnciideiaptiietssccnesinks 24 Coblentz v. State, 164 Md. 558, 166 A. 45 (1933)... 13 Ellis v. Dyson, 421 U.S. 426 (1975) ......................---- 10 Four Unnamed Plaintiffs v. Hall, 424 F. Supp. 357 (D. Mass. 1976), rev’d on other grounds, 550 7 @ B 3: oe , , St okien one 10 Gibson Vv. Berryhill, 411 U.S. 564 (1973) —.............. 12,17 Grandco Corp. Vv. Rochford, 536 F.2d 197 (7th Cir. AERC MM ed ab Ness A ANN enc er ee 13 Hawaii Housing Authority v. Midkiff, 467 U.S. 229 | TEETER AORN Er reer a treet 12-13, 15, 17 Hicks v. Miranda, 422 U.S. 332 (1975) ............... a 19 Hotel & Restaurant Employees International Union v. Danziger, 709 F.2d 815 (3d Cir. 1983), va- cated on other grounds, 468 U.S. 491 (1984)... 22 Hurtado vy. California, 110 U.S. 516 (1884) ......... 20 In re Neff, 206 F.2d 149 (3d Cir. 1953).................. 16 In re Special Investigation No. 224, 54 Md. App. 137, 458 A.2d 454, cert. denied, 296 Md. 414 CI iicichesseiccissataialahiccccindchiagteaeimelaniaciceahtinaiatestiiess 8,14 In re Special Investigation No. 287, 54 Md. App. 201, 458 A.2d 450, cert. denied, 296 Md. 414 a, 8,14 Johnson v. State, 199 Ark. 196, 183 S.W.2d 15 «RESTORE SUR oe einai Ea EA ER ote ne een 20 v TABLE OF AUTHORITIES—Continued Page Jones V. Rath Packing Co., 430 U.S. 519 (1977)... 21 Kaylor v. Fields, 661 F.2d 1177 (8th Cir. 1981)... 20 Kentucky West Virginia Gas Co. v. Pennsylvania Public Utility Comm’n, 791 F.2d 1111 (3d Cir. A aI IE ine li IIR A Sk Sin Nh 22, 24 Langley v. Ryder, 602 F. Supp. 335 (W.D. La.), aff'd on other grounds, 778 F.2d 1092 (5th Cir. DS deceit PI Te CRON SI RNP ER OP Ra. ore Ie NAN 10 Marcal Paper Mills, Inc. v. Ewing, 790 F.2d 195 fe PILE SNA DOr a An a See N 22 Marshall v. Chase Manhattan Bank, 558 F.2d 680 OR MR I sccicnkien ihe a 21-22 McCune V. Frank, 521 F.2d 1152 (2d Cir. 1975)... 13 McDonald v. Metro-North Commuter Railroad Di- vision of Metropolitan Transportation Authority, 565 F. Supp. 87 (S.D.N.Y. 19838) .......................... 13 Middle South Energy, Inc. v. Arkansas Public Service Comm’n, 772 F.2d 404 (8th Cir. 1985), cert. denied, 106 S. Ct. 884 (1986) _...0.0022 23-24 Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982) .......0.0000000.0....... 11-13, 15 Monaghan v. Deakins, 798 F.2d 632 (3d Cir. SUED ccchsccuninsstiactuhiasteneaiiiae Sosinidiehiadiaeheenieal 6-9, 13, 14, 19-20 New Orleans Public Service, Inc. v. City of New Orleans, 798 F.2d 858 (5th Cir. 1986) ........0........ 23 Notey v. Hynes, 418 F. Supp. 1320 (E.D.N.Y. PO eceeaseepiiisioisitertans tains Minatitlan dataacaceahactei li alia 10 Ohio Civil Rights Comm’n v. Dayton Christian Schools, Inc., 106 S. Ct. 2718 (1986) ........... 11-13, 15-17, 18, 25 Rose V. Mitchell, 443 U.S. 545 (1979) ..02000002 2. 20 South Central Bell Telephone Co. v. Louisiana Public Service Comm’n, 744 F.2d 1107 (5th Cir. 1984), vacated and remanded on other grounds, o£ Se Se 8 eee 23 Sovereign News Co. v. Falke, 448 F. Supp. 306 (N.D. Ohio 1977), remanded on other grounds, 610 F236 438 (6th Cie. 1979) ..................-............ 10 Steffel v. Thompson, 415 U.S. 452 (1974) 0.00000... 17 vi TABLE OF AUTHORITIES—Continued Page Stone & Webster Engineering Corp. v. Ilsley, 690 F.2d 323 (2d Cir. 1982), aff'd mem. sub nom. Arcudi v. Stone & Webster Engineering Corp., GS Cl Be Ce eit 21 Town of Springfield, Vermont v. McCarren, 549 F. Supp. 1134 (D. Vt. 1982), aff'd mem., 722 F.2d 728 (2d Cir.), cert. denied, 464 U.S. 942 SRE ae se Se nee 22 United Services Automobile Ass’n Vv. Muir, 792 re Ge Ge Fe certtercescentetitteeenicciecctieteeenes 22 United States v. Calandra, 414 U.S. 338 (1974) ... 9,14 United States v. Cleary, 265 F.2d 459 (2d Cir.), cert. denied, 360 U.S. 936 (1959) 0 14 United States vy. Coachman, 752 F.2d 685 (D.C. SR eS 16 United States v. Housand, 550 F.2d 818 (2d Cir.), cert. denied, 431 U.S. 970 (1977) —.00 16 United States v. Johnson, 319 U.S. 508 (1943)....... 19 United States v. Malone, 111°F. Supp. 37 (N.D. GUID SUIT sesnsscecscsnncnnntinatieniiaiiiiebniiiealigiaianiinseManiseitiiien 16 United States v. Sells Engineering, Inc., 463 U.S. | EC i EL ee Se 19 Williams v. Red Bank Board of Education, 662 F.2d 1008 (3d Cir. 1981) 2.0... ee Seen 13 Younger v. Harris, 401 U.S. 837 (1971) 0.0. passim Constitutional and Statutory Provisions nn 2 ht Tok | See i ae 4 BD Se ae CS CUED CD CD ceereeeennccenasesestennenosoncnnencceee 2-3, 4 Ohio Rev. Code Ann. § 4112.05 (Supp. 1985)... 12 Ohio Rev. Code Ann. § 4112.06 (I) (1980) 0... 16 Regulations 40 C.F.R. § 761 (1986) —.......W.- PORES Deane ct seta SOON 4 Md. Admin. Code tit. 10, § 51 000 4 Miscellaneous 1A Moore’s Federal Practice 21 National Institute of Justice, Grand Jury Reform: A Review of Key Issues (1983) 27 IN THE Supreme Court of the United States OCTOBER TERM, 1986 No. THE PoTOMAC ELECTRIC POWER COMPANY, Petitioner, Vv. STEPHEN H. SACHS, ATTORNEY GENERAL OF MARYLAND, AND ADELE WILZACK, SECRETARY OF THE MARYLAND DEPARTMENT OF HEALTH AND MENTAL HYGIENE, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Petitioner, The Potomac Electric Power Company, re- spectfully prays that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Fourth Circuit entered in the above- entitled proceeding on October 17, 1986. OPINIONS BELOW The opinion of the Court of Appeals for the Fourth Circuit is reported at 802 F.2d 1527 and is reprinted in the appendix hereto (“App.”’) at la. The opinion of the District Court for the District of Maryland (Black, J.) on the abstention issue was de- 2 livered orally and is unreported. It is reprinted at App. 20a. The opinion of the District Court on the merits of the preemption issue is reported at 639 F. Supp. 856 and is reprinted at App. 31a. JURISDICTION Petitioner brought suit in the District Court for the District of Maryland seeking a declaratory judgment that the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et seq., preempts the State of Maryland from extending its general hazardous waste regulations to the use and dis- posal of polychlorinated biphenyls. Petitioner moved for summary judgment. Respondents moved to dismiss, con- tending, inter alia, that the District Court should abstain. The District Court denied respondents’ motion on March 25, 1986, and subsequently, on April 16, 1986, denied pe- titioner’s motion for summary judgment and entered judgment on the merits for respondents. App. 55a-58a. Petitioner appealed and respondents cross-appealed. The Court of Appeals for the Fourth Circuit issued an opinion on October 17, 1986, holding that the District Court should have abstained. App. la. The jurisdiction of this Court to review the judgment of the Fourth Circuit is invoked under 28 U.S.C. § 1254 (1). PERTINENT CONSTITUTIONAL AND STATUTORY PROVISIONS Article VI of the United States Constitution provides, in pertinent part, that “this Constitution, and the Laws of the United States which shall be made in Pursuance thereof * * * shall be the supreme Law of the Land.” Section 18(a) (2) (B) of the Toxic Substances Control Act, 15 U.S.C. § 2617(a) (2) (B), provides: if the Administrator prescribes a rule or order under section 2604 or 2605 of this title (other than a rule imposing a requirement described in subsection (a) (6) of section 2605 of this title) which is applicable to a chemical substance or mixture, and which is de- signed to protect against a risk of injury to health or the environment associated with such substance or mixture, no State or political subdivision of a State may, after the effective date of such requirement, establish or continue in effect, any requirement which is applicable to such substance or mixture, or an arti- cle containing such substance or mixture, and which is designed to protect against such risk unless such requirement (i) is identical to the requirement pre- scribed by the Administrator, (ii) is adopted under the authority of the Clean Air Act or any other Federal law, or (iii) prohibits the use of such sub- stance or mixture in such State or political subdivi- sion (other than its use in the manufacture or proc- essing of other substances or mixtures). STATEMENT OF THE CASE The Potomac Electric Power Company (“PEPCO”) is the electrical utility corporation that provides service in the District of Columbia and some surrounding suburbs in Maryland and Virginia. In providing service, PEPCO uses electrical transformers that it purchases from man- ufacturers. Until recently, the mineral oil used in many transformers was contaminated with polychlorinated bi- phenyls (“PCBs”) during the manufacturing process. Transformers become obsolete or unusable after a num- ber of years, and must be scrapped. For several years United Rigging and Hauling, Inc. (“United”) purchased PEPCO’s scrap transformers in the District of Columbia and transported them to a United salvage yard in Belis- ville, Maryland, where they were stored with transform- ers and scrap from other sources. In the spring of 1985, Maryland authorities discovered that the United site was contaminated with PCBs. The use and disposal of PCBs is governed by a com- prehensive federal regulatory scheme. Under Section 4 6(e) of the Toxic Substances Control Act, 15 U.S.C. § 2605(e), Congress directed the Administrator of the Environmental Protection Agency to promulgate rules regulating PCBs, and the Administrator has done so.’ Congress also specified that once “the Administrator pre- scribes a rule or order under section 2604 or 2605 * * *, no State or political subdivision of a State may * * * establish or continue in effect, any requirement which is applicable to such substance or mixture * * *.” 15 U.S.C. § 2617(a) (2) (B). Despite this preemption pro- vision, the State of Maryland has also undertaken to regulate PCBs as a hazardous waste under its waste management program. See Md. Admin. Code tit. 10, § 51. Since May 1985, the Maryland Attorney General has been investigating PEPCO’s sale and delivery of scrap transformers to United, as well as the scrapping activ- ities of United, for alleged violation of Maryland law and regulations governing PCBs. The Attorney General convened a grand jury to assist in his criminal investi- gation. App. 13a. Quite apart from this pending investigation, the State’s effort to regulate PCBs has had a direct and immediate effect on PEPCO’s ongoing operations. The Maryland regulations have created a climate of uncertainty con- cerning operations at a PEPCO generating station in Maryland, since the State has yet to issue the permit for that station that it required PEPCO to apply for over two years ago. The Maryland regulations also com- pelled PEPCO to adopt inefficient trucking and burning practices for oil shipped to the station, since there is no storage facility at that site that complies with state as opposed to federal law. The challenged state regulations also restrict PEPCO’s use of its facilities in Maryland 1 See 40 C.F.R. § 761 (1986). 5 for storage of electrical equipment, and have compelled PEPCO to alter its solicitation of bids for scrap trans- formers so as to exclude bidders who might take the transformers into Maryland. See Ct. App. JA at 66-69, 127-129. In response to the foregoing, PEPCO filed a complaint in the United States District Court for the District of Maryland, seeking a declaratory judgment that the Toxic Substances Control Act preempted Maryland from ex- tending its hazardous waste regulations to cover PCBs. Respondents moved to dismiss, arguing inter alia that the state grand jury investigation was a pending state judi- cial proceeding to which the District Court must defer under Younger Vv. Harris, 401 U.S. 87 (1971). The District Court declined to abstain, noting that “li]t is clear that PEPCO has no present opportunity to raise its Federal concerns in the Grand Jury proceed- ings. * * * [I]f there is no opportunity to raise the Federal issue in the State proceedings, then * * * Younger abstention is inappropriate.” App. 28a. The court con- cluded that: There is no certainty that the Grand Jury will actu- ally return an indictment, nor is there any indica- tion of how long PEPCO would have to wait before it had its forum to raise the Federal defense. Under such circumstances, it would be harsh, indeed, to foreclose the opportunity to bring the preemption challenge to Federal Court prior to indictment. PEP- CO has no opportunity at all to raise its Federal claim in the State Grand Jury proceedings[;] princi- ples of abstention under Younger, therefore, do not apply. [Jd. at 29a.] The District Court subsequently ruled on the merits in favor of respondents, and PEPCO appealed. The State cross-appealed, reasserting its abstention argument. 6 The Court of Appeals reversed, holding that the Dis- trict Court should have abstained.2 The Court of Ap- peals began by noting that the “Supreme Court has never addressed the issue of whether Younger applies to state grand jury proceedings,” and also noted that “the Su- preme Court has never analyzed the treatment of a pre- emption claim in applying the Younger doctrine.” App. 15a, 16a n.7. The court recognized “the requirement that the federal plaintiff have an opportunity to present the federal claim in the state proceedings.” Jd. at 17a. It held that the requirement was satisfied in this case not because of any opportunity PEPCO had before the grand jury, but because of a possible opportunity PEPCO might have after the grand jury concludes its work: “If indicted, PEPCO can present its claim of federal pre- emption by TSCA as a defense to the criminal prosecu- tion, and therefore has an adequate opportunity to pre- sent the claim in the_ongoing proceedings.” Id. at 18a. The court also concluded that Younger should be applied in a preemption case, stating that “the same logic requir- ing abstention when there is a constitutional challenge to a state criminal statute applies to litigation where there is a claim of federal preemption due to a congres- sional enactment.” App. 16a n.7. REASONS FOR GRANTING THE WRIT I. The Decision Below Is In Direct And Irreconcilable Conflict With The Recent Decision Of The Third Cir- cuit In Monaghan vy. Deakins The court below held that federal courts must abstain . in favor of a pending state grand jury investigation. Less than three months earlier, the Court of Appeals for the Third Circuit reached the exact opposite conclusion in an indistinguishable case, Monaghan v. Deakins, 798 F.2d 632 (1986). This Court should grant the writ to 2In light of its holding, the court did not consider PEPCO’s appeal on the merits. See App. 14a. 7 resolve this direct and irreconcilable conflict between the Circuits on a question of overriding importance to rela- tions between the state and federal courts and the proper functioning of our federal system.* The pertinent facts in Monaghan are indistinguishable from those of the present case. The federal plaintiffs in Monaghan were the targets of an ongoing state grand jury investigation, as PEPCO is in this case. Both in Monaghan and in this case the state investigation in- volved issuance of subpoenas, search and seizure of cor- porate documents, and the physical search of premises. In both cases, however, the grand jury had not issued any indictments, and the State accordingly had not com- menced any prosecution at the time the targets of the investigation filed suit in federal District Court. The plaintiffs in Monaghan alleged in their complaint that the search of their premises was unconstitutional and sought return of the documents seized by the State. PEPCO’s complaint, as noted, alleged that the Maryland law and regulations that formed the basis of the investi- gation were expressly preempted by federal law. In both cases the State moved for dismissal, contending that the federal court should abstain because of the pending state grand jury investigation. The District Court in Monaghan agreed with the State and abstained; the District Court in this case did not. On appeal, the Third Circuit and the Fourth Circuit below framed an identical issue for decision. Compare 798 F.2d at 636 (“whether the existence of the state grand jury proceeding required the district court to ab- stain under Younger’) with App. 15a (“whether Younger applies to state grand iury proceedings”). The 3 Counsel for the state authorities in Monaghan have advised that they will file a petition for certiorari with this Court. The petition in this case should be considered in conjunction with the petition in Monaghan. 8 two courts reached diametrically opposed conclusions. As the Third Circuit stated: No indictment had been returned against the plain- tiffs at the time they filed their complaint in the district court. Thus there was not, for Younger pur- poses, any ongoing state proceeding warranting ab- stention by the district court. [798 F.2d at 637.] The court below, however, held that no indictment was required for Younger abstention to apply, since PEPCO eculd raise its federal claim “[i]f indicted.” App. 18a. The Third Circuit in Monaghan recognized that “Younger abstention is appropriate only when there is pending a proceeding in which a state court will have the authority to adjudicate the merits of a federal plaintiff’s federal claims.” 798 F.2d at 637 (emphasis in original). The court noted that a New Jersey grand jury cannot adjudicate anything, but can only “issue an indictment, which is no more than a charge that the defendant has violated the criminal law.” Jd. Only when an indictment is returned does a state judicial proceeding commence, thereafter affording an opportunity to have the federal claims adjudicated. /d.* | Maryland grand juries are no different from their counterparts in New Jersey, and they too cannot adjudi- cate the claims of targets or witnesses.’ The court below 4 Judge Adams dissented from the panel opinion in Monaghan and from the subsequent denial of petition for rehearing en banc. 798 F.2d at 639-645. 5 See In re Special Investigation No. 237, 54 Md. App. 201, 203, 458 A.2d 450, 452 (“a mere witness, even if the witness might pos- Sibly at some future time become a- defendant, is utterly incom- petent to challenge the authority of the grand jury to act’’), cert. denied, 296 Md. 414 (1983) ; In re Special Investigation No. 224, 54 Md. App. 187, 458 A.2d 454, cert. denied, 296 Md. 414 (1983). The role of the grand jury in New Jersey and Maryland is the same as that of the grand jury in the federal system, and clearly does ra Sita lia iio docu aiaabacalalll 9 at did not rely on any opportunity PEPCO might have to raise its preemption claim before the grand jury, since there clearly is no such opportunity. Where the Third Circuit declined to order abstention on the basis of a possible future indictment, however, the court below held that abstention was required precisely because of that possibility. The conflicting holdings of the Third Circuit and the Fourth Circuit below cannot be reconciled. Nor is it likely that either court will reconsider its holding. This is not a situation in which arguments or theories not raised hefore one court might cause that court to re- evaluate its position, or a situation in which one court had the benefit of guidance from this Court not available to the other. Monaghan was decided after argument but before decision below, and counsel alerted the court below to the Monaghan decision. The court below was thus fully aware of the views of the Third Circuit, but none- theless adopted directly contrary reasoning and reached the opposite conclusion. Judge Adams’s dissent in Monaghan advanced the same arguments accepted by the court below, and failed.to dissuade the Third Circuit from its conclusion.’ not include the adjudication of legal claims such as those raised by PEPCO. See United States v. Calandra, 414 U.S. 338, 345 (1974). ®If anything, Monaghan was a stronger case for abstention than this one. In Monaghan, the federal plaintiffs’ claim was at least directed to the conduct of the grand jury investigation itself, seek- ing return of documents seized in the course of the investigation. Here, the relief sought does not go directly to the operation of the grand jury but only to the underlying law being applied. Indeed, PEPCO has fully complied with the various subpoenas with which it has been served. — 7™The District Courts have also provided conflicting answers to the question whether it is appropriate to abstain under Younger in favor of a state grand jury investigation. See, e.g., Brennick v. Hynes, 471 F. Supp. 863, 867 (N.D.N.Y. 1979) (Younger “does not apply to state grand jury proceedings where the target for investi- 10 II. The Court Below Misinterpreted This Court’s Absten- tion Decisions In Extending Younger To Grand Jury Investigations The court below correctly recognized that this Court “has never addressed the issue of whether Younger ap- plies to state grand jury proceedings.” App. 15a. The decision to apply Younger in the present case, how- ever, was not only directly contrary to that of the Third Circuit but also inconsistent with this Court’s pronounce- ments on abstention. The court below, like the lower court in an earlier Supreme Court case, was “under the misapprehension that the Younger doctrine applied when there is a threatened state criminal prosecution as well as when there is a state criminal prosecution already pending.” Ellis v. Dyson, 421 U.S. 426, 433 (1975). No prosecution is pending against PEPCO. The only action the State has taken has been to commence an investiga- tion of PEPCO, an investigation that is now in its nine- teenth month. The fact that’ the State has invoked the assistance of a grand jury as an investigative tool does not transform the investigation into a pending state judi- cial proceeding to which federal courts must defer. Abstention under Younger is appropriate only if there is an “ongoing state judicial proceeding” that “impli- cate[s] important state interests” and if there is “an gation has no immediate recourse to state courts’); Sovereign News Co. V. Falke, 448 F. Supp. 306 (N.D. Ohio 1977) (Younger abstention appropriate in favor of grand jury proceeding), re- manded on other grounds, 610 F.2d 428 (6th Cir. 1979); Notey v. Hynes, 418 F. Supp. 1320, 1826 (E.D.N.Y. 1976) (same). See also Langley v. Ryder, 602 F. Supp. 335, 338-339 (W.D. La.) (Younger abstention inapplicable when arrest warrants were issued and arrests made but no indictments had been filed), aff’d on other grounds, 778 F.2d 1092 (5th Cir. 1985); Four Unnamed Plaintiffs v. Hall, 424 F. Supp. 357, 362 (D. Mass. 1976) (Younger does not “require federal courts to avoid interference with state criminal or administrative proceedings in the pre-indictment stage’) (em- phasis in original), rev’d on other grounds, 550 F.2d 1291 (ist Cir. 1977). dint —s a Ah 6 ee OOS Ret SATE NES Dita adits A AP OLS Madi Dias el” 26 Ae. 6 te oust il adequate opportunity in the state proceedings to raise con- stitutional challenges.” Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982). In this case there is no ongoing judicial proceeding af- fording PEPCO any opportunity to raise its preemption claim. A grand jury investigation is not a “judicial proceeding” for abstention purposes. The court below dis- missed this element of the test for abstention in a foot- note, noting that “grand juries operate under the auspices of the judicial branch.” App. 16a n.8. That is not, however, the pertinent inquiry. Regardless of the extent to which grand juries are or are not supervised by the courts, the grand jury proceeding itself is not “ ‘judicial in nature.’” Ohio Civil Rights Comm’n v. Dayton Chris- tian Schools, Inc., 106 S. Ct. 2718, 2723 (1986) (quoting Middlesex County, 457 U.S. at 433). The requirement that the pending state proceedings be “judicial in nature” to command abstention looks not to the extent of supervision or control by the courts but rather to the function and nature of the proceeding itself. When this Court has extended Younger to state proceed- ings that were not in the state courts themselves, those proceedings have always been “judicial in nature” in that the agencies had adjudicatory responsibilities and functioned like courts, issuing a decision on the merits after hearing from both sides of a dispute and affording the affected private party an opportunity to present argu- ments and evidence. Thus, in Middlesex County, this Court held that ab- stention was appropriate in favor of proceedings before a state bar ethics committee. The Court looked to “the nature of the proceedings” in determining that they could 8 Nor, in light of PEPCO’s preemption claim, can the grand jury investigation be considered to implicate important state interests. A state can have no legitimate interest in enforcing regulations preempted by federal law. See infra at 20-25. 12 be considered “an ongoing state judicial proceeding” for abstention purposes. Jd. at 435, 432. As the Court ncied: [A] formal hearing on the complaint is held before three or more members of the Ethics Committee, a majority of whom must be attorneys. The lawyer who is charged with unethical conduct may have counsel, discovery is available, and all witnesses are sworn. The panel is required to prepare a written report with its findings of fact and conclusions. [Jd. at 426-427. | In other words, the ethics committee functioned like a court in considering the charge and rendering its deci- sion, and abstention was therefore appropriate. Similarly, in Ohio Civil Rights Comm’n, this Court held that absteniion was appropriate in favor of proceedings before the state agency charged with adjudicating civil rights complaints. Those proceedings were commenced by the filing of a complaint, the charged party was given an opportunity to respond, and the agency conducted a full adversarial hearing. The charged party could appear in person or through an attorney and could examine and cross-examine witnesses. See 106 S. Ct. at 2721; Ohio Rev. Code Ann. § 4112.05 (Supp. 1985). The agency action constituted “a formal adjudication of the matter,” and the proceeding could thus be considered “ ‘judicial in nature’” for abstention purposes. 106 S. Ct. at 2721, 2723 (quoting Middlesex County, 457 U.S. at 433). The agencies in both Middlesex County and Ohio Civil Rights Comm’n functioned as courts, and the proceedings before them thus “ ‘command the respect due court pro- ceedings’” under Younger. Ohio Civil Rights Comm’n, 106 S. Ct. at 2723 (quoting Gibson v. Berryhill, 411 U.S. 564, 577 (1973)). In contrast, the Court declined to re- quire abstention in favor of a state administrative pro- ceeding in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984). The proceeding in that case was not a formal adjudication similar to a court proceeding but 13 rather mandatory arbitration before the state agency. See id. at 238. The mandatory arbitration was in ad- vance of and not any part of the subsequent court action, id., and the arbitration itself—unlike the formal agency adjudication in Middlesex County and Ohio Civil Rights Comm’n—could not be considered “judicial in nature.” ° A state grand jury proceeding is nothing like the formal agency adjudication in Middlesex County and Ohio Civil Rights Comm’n, or any of the other agency proceed- ings in cases in which abstention has been ruled proper. As the court noted in Monaghan, a state grand jury does not have “the authority to adjudicate anything.” 798 F.2d at 637. A Maryland grand jury, like its counter- parts in New Jersey and the federal system, “is an accusing body, and not a judicial tribunal.” Coblentz v. State, 164 Md. 558, 566, 166 A. 45, 49 (1933). “[A] grand jury is an accusatory body which hears but one side of a case, not a trier of fact which hears both sides of a case and makes a determination accordingly.” ®In Ohio Civil Rights Comm’n, this Court cited with approval four lower court decisions ruling that Younger could be applied to state administrative proceedings that were “judicial in nature.” 106 S. Ct. at 2723 n.2. Those cases clearly indicate that abstention is only appropriate when the pending proceeding itself is like a court proceeding. See Williams v. Red Bank Board of Education, 662 F.2d 1008, 1015 (3d Cir. 1981) (abstention in favor of state administrative proceeding that was “a quasi-judicial, adjudicatory proceeding that in many respects resembles the judicial proceedings to which Younger has already been held to command deference’’) ; McCune v. Frank, 521 F.2d 1152, 1158 (2d Cir. 1975) (abstention in favor of “trial” before state police disciplinary board) ; McDonald v. Metro-North Commuter Railroad Division of Metropolitan Transit Authority, 565 F. Supp. 37, 39 (S.D.N.Y. 1983) (abstention appro- priate when claims could be raised in multi-tiered administrative “trials”) ; Grandco Corp. v. Rochford, 536 F.2d 197, 206 (7th Cir. 1976) (abstention not appropriate when proceedings are not before “any established adjudicatory body’). aa 14 Bartram v. State, 280 Md. 616, 633, 374 A.2d 1144, 1152 (1977). As the Third Circuit emphasized in Monaghan: A grand jury proceeds ex parte. * * * It can issue an indictment, which is no more than a charge that the defendant has violated the criminal law. Only when such a charge is filed does there commence a judicial proceeding that affords the adjudicatory opportunity that Hawaii Housing and Middlesex County require. [798 F.2d at 637 (footnote omit- ted).] It is the function of a grand jury to investigate and charge—not to adjudicate." A grand jury investigation, therefore, cannot be considered to constitute an ongoing state proceeding that is “judicial in nature” for Younger purposes. Moreover, the various proceedings in favor of which federal courts have abstained have been ones where the federal claims could be raised and considered. PEPCO had no opportunity—let alone an adequate opportunity— to raise its preemption claim before the grand jury in- vestigating its activities. The State does not suggest that PEPCO could do so, and Maryland law rather clearly precludes any effort by a grand jury witness or the tar- get of an investigation to challenge the authority of the grand jury to act.” Nor did the court below suggest that PEPCO could raise its claim in the only state pro- 10 See United States v. Calandra, 414 U.S. at 343 (“A grand jury proceeding is not an adversary hearing in which the guilt or innocence of the accused is adjudicated”). 11 See United States v. Cleary, 265 F.2d 459, 461 (2d Cir.) (“Basically the grand jury is a law enforcement agency”), cert. denied, 360 U.S. 986 (1959). 12 See In re Special Investigation No. 2387, supra; In re Special Investigation No. 224, 564 Md. App. at 145, 458 A.2d at 458 (“‘a witness * * * is not interested to challenge the jurisdiction of court or grand jury over the subject-matter that is under inquiry’ ”) (quoting Blair v. United States, 250 U.S. 273, 279 (1919)). 15 ceeding then pending—the grand jury investigation. Rather, the court required abstention because of the op- portunity PEPCO would have to raise its claim in a “separate” prosecution that might be commenced at some point in the future. App. 18a. This Court, however, has never required abstention when the plaintiff had no present opportunity to raise his federal claims in pending state adjudicatory proceed- ings. Abstention results in dismissal of the federal suit in order to permit the federal claims to be raised in the pending state proceeding, not to preclude or delay litiga- tion of those claims. If there is no pending proceeding in which the federal claims can be adjudicated, there is no justification for a federal court to abdicate jurisdic- tion and deny the federal plaintiff any opportunity to have his claims heard. In such a case, federal courts must “fulfill their duty to adjudicate federal questions properly brought before them.” Hawaii Housing Au- thority v. Midkiff, 467 U.S. at 238. The court below relied upon Middlesex County and Ohio Civil Rights Comm’n for the proposition that “an adequate opportunity exists when the federal plaintiff can present its claim on judicial review of the state administrative action or order.” App. 17a. Neither Middlesex County nor Ohio Civil Rights Comm'n, how- ever, based abstention on the mere possibility of an op- portunity to raise federal claims at some point in the future. In Middlesex County there was no question that the federal claims could he raised and decided in the pending agency proceeding, and the federal plaintiff could raise those claims again on review in the state Supreme Court. See 457 U.S. at 435-436, 427. The Court in Ohio Civil Rights Comm’n assumed that the federal claims could be considered in the pending agency pro- ceeding,”* and noted that “[iJn any event” the claims 13 As the Court noted, “even if Ohio law is such that the Com- mission may not consider the constitutionality of the statute under 16 could be raised through the judicial-review provided as a matter of statutory right by the same law authorizing the agency adjudication. 106 S. Ct. at 2724. The statute specified that review actions “shall be heard and deter- mined as expeditiously as possible.” Ohio Rev. Code Ann. § 4112.06(I) (1980). The agency adjudication and judi- cial review were parts of a single pending proceeding, and the federal plaintiff could raise his claims in that proceeding. } PEPCO, however, will only have an opportunity to raise its claims “[i]f indicted.” App. 18a. A crim- inal prosecution is not in any sense “judicial review” of a grand jury proceeding. The two proceedings are en- tirely separate and addressed to quite distinct questions." “It is clear * * * that the investigation of a grand jury is a proceeding which is wholly separate and distinct from, and of a different nature than, the subsequent trial of the defendant in the district court.” In re Neff, 206 F.2d 149, 152 (3d Cir. 1953). See United States v. Coachman, 752 F.2d 685, 691 (D.C. Cir. 1985) (“A grand jury investigating a suspect and a court trying an accused * * * engage in separate and dissimilar func- tions”)."* Indeed, the court below expressly acknowledged that the grand jury proceeding was “separate” from any possible future proceeding at which PEPCO could raise its claims. App. 18a. Thus, even if Ohio Civil Rights which it operates, it would seem an unusual doctrine * * * to say that the Commission could not construe its own statutory mandate in the light of federal constitutional principles.” 106 S. Ct. at 2724. 4 For example, a finding after trial that a defendant is innocent does not mean that the grand jury was wrong in determining that there was a sufficient basis for indictment. See also United States v. Housand, 550 F.2d 818, 821 n3 (2d Cir.) (grand jury proceeding and case growing out of it “separ- ate”), cert. denied, 431 U.S. 970 (1977); United States v. Malone, 111 F. Supp. 37, 38-39 (N.D. Cal. 1953) (grand jury and later case “independent” proceedings). eee Ee ae 12S. 42 eee 17 Comm’n is read most broadly as authorizing abstention when claims can be raised on a judicial review that is part of the pending adjudicatory proceeding, it does not control the_present case. A grand jury investigation is not an adjudicatory proceeding, a subsequent criminal prosecution is not a part of that pending proceeding, and such a prosecution is not a “review” of any adjudication arising from that proceeding. It is one thing to hold that abstention is proper when federal claims can be raised on review of a pending pro- ceeding; it is quite another to require abstention on the basis of a possible separate future proceeding. Absten- tion is only appropriate when “federal claims have been or could be presented in ongoing judicial proceedings,” Hawaii Housing Authority v. Midkiff, 467 U.S. at 237 (emphasis supplied), not when they could be presented in proceedings that have yet to commence.’® The lack of a particular pending proceeding indicates that an oppor- tunity may never materialize, or that it may not mate- rialize in timely fashion. Federal courts cannot take the momentous step of dismissing an action within their jurisdiction on the strength of such mere possibilities. As the Court concluded in Steffel v. Thompson, 415 U.S. 452, 472 (1974): “Requiring the federal courts totally to step aside when no state criminal prosecution is pending against the federal plaintiff would turn federalism on its head.” As noted, the grand jury investigation in this case has been pending for nineteen months, and PEPCO has yet to be indicted. The investigation in Monaghan was pending for eighteen months without indictment when the Third Circuit issued its opinion. 798 F.2d at 634. 16 As this Court has said: “Younger v. Harris contemplates the outright dismissal of the federal suit, and the presentation of all claims, both state and federal, to the state courts. Such a course naturally presupposes the opportunity to raise and have timely decided by a competent state tribunal the federal issues involved.” Gibson v. Berryhill, 411 U.S. at 577 (emphasis supplied). 18 The opportunity to raise federal claims in Ohio Civil Rights Comm’n was available at the very latest upon review of a then-pending proceeding. There is no telling when—if ever—PEPCO will have the opportunity to raise its federal claims. The court below reasoned that PEPCO’s federal rights - were fully protected since PEPCO could raise its-pre- emption claim if indicted, apparently assuming that if PEPCO were not indicted the issue would simply go away. PEPCO, however, did not seek declaratory relief simply to forestall indictment. As noted previously, Maryland’s insistence on regulating PCBs in defiance of the express preemption provision in federal law has di- rectly affected PEPCO’s ongoing business operations, quite apart from the subject matter of the grand jury investigation. Even in the absence of possible indictment, PEPCO would still have a compelling reason to seek declaratory relief. The decision below permits the State to deny PEPCO its right to have its federal claim de- cided, simply by continuing the grand jury investigation. So long as that investigation continues, PEPCO is pre- cluded from raising its claim. Such a result is a perver- sion of the principles animating Younger. The purpose of Younger abstention is to have federal claims decided in pending state judicial proceedings, not to permit a State to hold such claims hostage awaiting the com- mencement of such proceedings. The decision below permits state authorities to pre- clude access to federal court through the simple expe- dient of invoking the aid of a grand jury in an investi- gation. Apparently any involvement by a grand jury is sufficient to mandate abstention under the ruling below. Since grand juries operate ex parte and in secret, a plain- tiff would typically have no way of knowing that his federal suit was barred until after it was filed, if the State chooses at that time to disclose the pendency of its grand jury investigation. 19 Indeed, the State need not even commence its investi- gation prior to the filing of the federal suit. Under Hicks v. Miranda, 422 U.S. 332, 349-350 (1975), abstention is required even when the state proceedings begin after filing of the federal suit, so long as there have been no proceedings of substance on the merits in the federal suit. The decision below thus invites States to respond to suit in federal court simply by initiating an investi- gation directed at the federal plaintiff, thereby divest- ing the federal court of jurisdiction The ruling below also may well have the unintended result of increasing the disruption of state proceedings by federal courts that Younger was intended to prevent. Under that ruling, it will be necessary for federal courts to determine if in fact the federal plaintiff is the target of a pending state grand jury investigation. The neces- sity of such a finding not only deprives the grand jury of the secrecy that is often critical to its investigative efforts,’7 but also may require the federal court to scru- tinize and intrude upon the operations of the state grand jury. If the federal plaintiff challenges the State’s asser- tion that he is the target of a grand jury investigation, some factfinding by the District Court will be necessary to resolve the dispute. Such factfinding could well include testimony by the state prosecutor and the grand jurors themselves, as well as review of testimony and evidence presented to the grand jury to determine if the federal plaintiff is in fact a target. Presumably it would be necessary to permit discovery on these issues. It is dif- ficult to discern how such necessary proceedings would promote the “proper respect for state functions” under- lying Younger, 401 U.S. at 44.% 17 See United States v. Sells Engineering, Inc., 463 U.S. 418, 425 (1983) (“the traditional rule of grand jury secrecy”); United States v. Johnson, 319 U.S. 508, 518 (1948) (“the indispensable secrecy of grand jury proceedings’’). 18 These issues are not merely hypothetical. In Monaghan v. Deakins, 798 F.2d at 636 n.4, the plaintiffs claimed that they were 20 Nor is there any apparent reason to restrict the deci- sion below to investigations aided by a grand jury. The States are not required to employ grand juries,” and in many States prosecutors are authorized to “ ‘take[] the place of a grand jury’” in conducting investigations. Kaylor v. Fields, 661 F.2d 1177, 1182 (8th Cir. 1981) (quoting Johnson v. State, 199 Ark. 196, 204, 133 S.W.2d 15, 18 (1939) ). The logic of the court below would seem to require abstention in favor of any pending state investigation: if the investigation—however conducted—culminates in a prosecution, the defendant can raise his federal claims at that point. The fact that such a result is implicit in the ruling below simply highlights the fundamental error in requiring abstention in favor of a mere investigation rather than an actual prosecution. III. The Court Below Erred In Requiring Abstention In A Case Involving A Preemptive Federal Statute As noted above and as the court below recognized, “the Supreme Court has never analyzed the treatment of a preemption claim in applying the Younger doctrine.” App. 16a n.7. At least six other Circuits have, how- ever, and each has held—contrary to the decision below— that Younger generally does not apply in a preemption case. Indeed, application of the contrary rule adopted by the court below would have meant that several of this Court’s most important decisions holding that fed- eral law preempted state law would never have been not in fact subject to a state grand jury investigation, and the Court of Appeals noted that the finding by the District Court that _ they were was not supported by the sources cited by the District Court. The holding of the Third Circuit that abstention was not appropriate in favor of grand jury proceedings avoided the necessity of resolving the factual challenge. 19 See Rose v. Mitchell, 443 U.S. 545, 557 n.7 (1979); Hurtado v. California, 110 U.S. 516 (1884). 21 decided, given the pendency of some kind of state in- vestigative effort directed against the plaintiff at the time the preemption ruling was sought.” The decision in Younger was based on “the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.” 401 U.S. at 44. When Congress expressly preempts state jurisdiction, however, it has determined that state regulation is not a separate “state function” that the State should be left free to perform in its “separate way.” Abstaining in such a case permits the State to do precisely what Congress has decreed it must not do. Congress is free under the Supremacy Clause to preempt state law, and at least when Congress has expressly done so, federal courts should not undermine that determination by deferring to preempted state proceedings.” For these reasons, Courts of Appeals in the Second, Third, Fifth, Eighth, Ninth, and Fleventh Circuits have held that abstention under Younger is gen- erally not appropriate in a preemption case. In Stone & Webster Engineering Corp. v. Ilsley, 690 F.2d 323 (2d Cir. 1982), affd mem. sub nom. Arcudi V. Stone & Webster Engineering Corp., 463 U.S. 1220 (1983), the Second Circuit considered an ERISA pre- emption claim, and declined to abstain in favor of a pending state proceeding. As the court concluded: ‘“Ab- stention * * * under the doctrine of Younger v. Harris * * * is not appropriately invoked in a preemption case.” 690 F.2d at 326 n.2. See also id. at 326 n.3; Marshall 2° See, e.g., Jones Vv. Rath Packing Co., 430 US. 519 (1977) ; Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984). 21 See 1A Moore’s Federal Practice { 0.203[2] at 2141 (“Where the very existence of the challenged state regulatory scheme vio- lates a federal statute that preempts the field, neither Pullman, Burford, nor Younger abstention may be appropriate’). _ 22 v. Chase Manhattan Bank, 558 F.2d 680, 683-684 (2d Cir. 1977) .? This same approach to abstention in preemption cases was followed by the Third Circuit in Hotel & Restaurant Employees International Union v. Danziger, 709 F.2d 815 (3d Cir. 1988), vacated on other grounds, 468 U.S. 491 (1984). In that case a union sought a declaratory judg- ment that the labor provisions of the New Jersey Casino Control Act were preempted by federal labor law and ERISA. The court rejected the argument that it should abstain in favor of a pending state proceeding, conclud- ing that “when the issue tendered to a federal district court is the very power, as a matter of federal law, to entertain a threatened proceeding, the principles of comity and federalism which apparently animate the Younger v. Harris rule are totally inapplicable.” 709 F.2d at 833.% 22In Marcal Paper Mills, Inc. v. Ewing, 790 F.2d 195 (1st Cir. 1986), the First Circuit expressed “ho opinion as to * * * whether or not there should be a preemption exception to the Younger ab- stention doctrine,” but it did recognize that the Second Circuit has held “that Younger abstention is generally inappropriate * cases involving issues of federal preemption.” Jd. at 198 (citing Stone & Webster Engineering Corp. v. Ilsley, supra). See also Town of Springfield, Vermont v. McCarren, 549 F. Supp. 1134, 1153 (D. Vt. 1982) (court declines to abstain under Younger because “the cus- tomary deference to state enforcement efforts is suspended when * * * the plaintiffs’ challenge is that those efforts are preempted’’), aff'd mem., 722 F.2d 728 (2d Cir.), cert. denied, 464 U.S. 942 (1983). 23In Kentucky West Virginia Gas Co. v. Pennsylvania Public Utility Comm’n, 791 F.2d 1111, 1116-17 (3d Cir. 1986), another panel of the Third Circuit noted in passing that it would be an “overstatement” to suggest that Younger was never appropriate in a preemption case, but cited the fact that the federal claim was one of preemption as a factor counselling against the application of Younger. The court held that the District Court erred in abstain- ing. In United Services Automobile Ass’n v. Muir, 792 F.2d 356, 364 n.4 (3d Cir. 1986), the court referred to the holding in Kentucky West Virginia Gas Co. that “preemption questions are often not 23 In South Central Bell Telephone Co. v. Louisiana Public Service Comm’n, 744 F.2d 1107 (5th Cir. 1984), vacated and remanded on other grounds, 106 S. Ct. 2884 (1986), the court declined to apply Younger abstention to a claim that federal law preempted state regulation of telephone service. As the court noted, “the claim presented here is predicated upon a naked exercise of the federal preemp- tion power.” Under such circumstances, it is “well- established” that the concern of “ ‘avoiding needless fed- eral court intervention into important matters within the state’s jurisdiction * * * obviously is lacking.’ ” Id. at 1123 (quoting Aluminwm Company of America v. Util- ities Commission of North Carolina, 713 F.2d 1024, 1030 (4th Cir. 1983), cert. denied, 465 U.S. 1052 (1984) .™ The Eighth Circuit similarly held that Younger ab- stention was not appropriately involved in a preemption ease in Middle South Energy, Inc. v. Arkansas Public Service Comm’n, 772 F.2d 404, 417 (8th Cir. 1985), cert. denied, 106 S. Ct. 884 (1986). The federal plaintiff al- leged that the Federal Power Act preempted efforts by a state utility commission to regulate contracts for the suitable for abstention under the doctrines announced in Burford and Younger.” 24 New Orleans Public Service, Inc. v. City of New Orleans, 798 F.2d 858 (5th Cir. 1986), is not to the contrary. The court in that case upheld abstention under Burford v. Sun Oil Co., 319 U.S. 315 (1943), noting only in dicta that Younger abstention also “seems appropriate” and “could be” the basis for the District Court’s de- cision to abstain. 798 F.2d at 863-864. The court expressly rec- ognized that “abstention in the face of a federal preemption claim is, at a minimum, problematical.” Jd. at 860. It upheld abstention only because of the “particular structure” of the federal statute at issue in that case. 7d. Far from expressly preempting state law —as does the statute at issue in this case—the statute in New Or- leans Public Service expressly “preserved to the states” jurisdic- tion over the subject of the federal plaintiff’s claim. Id. at 864, 860. Indeed, the court specifically cautioned that its holding should not necessarily apply “in cases presenting other types of federal! pre- emption claims.” Jd. at 861. 24 interstate purchase of power, much as PEPCO alleges in this case that a federal statute preempts efforts by Maryland to regulate PCBs. The court declined to ab- stain in favor of pending proceedings before the Com- mission, reasoning that the comity underlying Younger is not strained when a federal court cuts off state proceedings that entrench upon the federal do- main. The legitimate state interest contemplated by Younger does not exist when the state action has been preempted or foreclosed by the Constitution. [772 F.2d at 417 (citations omitted) .] In Champion International Corp. v. Brown, 731 F.2d 1406 (9th Cir. 1984), the plaintiff filed suit in Federal District Court, alleging that Montana’s age discrimina- tion law was preempted by ERISA. The District Court abstained under Younger in favor of pending state ad- ministrative and court proceedings, and the Ninth Cir- cuit reversed. The Court of Appeals recognized that Younger abstention is only appropriate if the pending state proceeding implicates important state interests, and held that a state can have no interest in enforcing state laws expressly preempted by Congress. Jd. at 1408-09. Baggett v. Department of Professional Regulation, 717 F.2d 521 (11th Cir. 1983), involved an action by a ma- rine pilot seeking to enjoin a state inquiry into his pilot- ing of a tugboat. The pilot claimed that his actions were subject to the exclusive regulation of the U.S. Coast Guard. The State argued that the District Court should abstain in favor of the state proceeding, and that court agreed. On appeal, the Eleventh Circuit held that the District Court erred in abstaining: “When preemption is readily apparent, * * * and, because of preemption, the state tribunal is acting beyond the lawful limits of its authority, abstention can serve no principles of ‘com- ity’ or of ‘our federalism.’” Id. at 524. 25 Like the court in Kentucky West Virginia Gas Co., supra, the Eleventh Circuit remarked in dicta that it would be an “overstate- 25 The court below simply ignored the foregoing, dis- missing the argument that abstention does not apply in a preemption case in a brief footnote. See App. l6a n.7. In contrast to the six Circuits surveyed above, the court below held that “the same logic requiring absten- tion when there is a constitutional challenge * * * ap- plies to litigation where there is a claim of federal pre- emption.” Jd. The court stated that it would be “anomal- ous” to hold that abstention is appropriate for constitu- tional but not preemption issues. No such anomaly exists. In a typical case in which _abstention is appropriate, the federal claim is not that the State is entirely disabled from acting in the area. In Ohio Civil Rights Comm’n, for example, the claim was not that the State could not enforce civil rights laws, but that they could not be applied in a manner that interfered with the federal plaintiffs’ rights under the Free Exercise Clause. In a preemption case such as the present one and those discussed above, the claim is quali- tatively different. It is that any action the State takes in the area would contravene federal law. Here, PEPCO’s claim is that Congress has expressly preempted state regulation of PCBs. Abstaining from deciding this claim in favor of possible state proceedings would deprive PEPCO of the very right it seeks to have vindicated— the right to be free of state regulation of PCBs. ment” to assert that Younger abstention was never appropriate in a preemption case. 717 F.2d at 524. The judicious reluctance of the court to announce an absolute rule, applicable in every conceiv- able case, certainly does nothing to diminish the conflict with the ruling of the court below that preemption claims should be treated no differently than other federal claims for abstention purposes. The Baggett and Kentucky West Virginia Gas Co. courts were pre- sumably concerned about cases in which the preemption claim was clearly spurious and perhaps raised only to avoid abstention, a sit- uation hardly presented by this case, in which federal preemption is express and preemption is the sum and substance of the plaintiff’s claim. 26 IV. The Uniform Resolution Of The Questions Presented Is Of Overriding Importance To The Smooth Function- ing Of The Federal System The issues over which the Fourth Circuit has split from the other Circuits are ones on which there is a clear need for national uniformity. The same principles ani- mating the Younger doctrine require that Younger be applied in a consistent fashion to identical proceedings in different States. Younger was based on “a proper respect for state functions, a recognition of the fact that the entire coun- try is made up of a Union of separate state govern- ments.” 401 U.S. at 44. Such respect is hardly fostered when the federal courts effectively differentiate among the States for purposes of abstention. If the ruling be- low stands, federal courts will defer to the grand jury proceedings of Maryland, Virginia, North Carolina, South Carolina, and West Virginia,. but not to those of Penn- sylvania, New Jersey, and Delaware. In the Second, Third, Fifth, Eighth, Ninth, and Eleventh Circuits, fed- eral courts generally do not abstain in favor of state proceedings when the federal plaintiff claims Congress has expressly preempted state law. In the Fourth Cir- cuit, they will. A “proper respect” for the States by the federal judiciary requires, at the very least, that the federal judiciary not treat identical state proceedings differently depending on the State in which they take place. = For the reasons developed above, “sensitivity to the legitimate interests of both State and National Govern- ments,” id., does not require abstention by federal courts in favor of pending state grand jury investigations. If | federal courts do abstain in favor of the grand jury proceedings of New Jersey, however, this sensitivity re- quires that they similarly defer to grand jury proceed- ings of Maryland, or that if they do not defer to Mary- land proceedings, they similarly not defer to New Jersey 27 proceedings. By the same token, a federal court in New York presented with a claim based on federal preemption will not abstain in favor of New York State proceedings, while a federal court in Maryland presented with the identical claim under the same federal statute will ab- stain in favor of identical Maryland proceedings. There are situations in which the uniform application of federal law, while always desirable, is not critical. In some cases Congress can resolve any conflict in inter- pretation, or a conflict may be tolerated for several years as issues are refined and sharpened. The absten- tion doctrine, however, was created by this Court; only this Court can ensure its uniform application. And dis- parity in treatment of the sovereign States by the lower federal courts is not an issue on which conflict may be tolerated. Review by this Court is necessary to ensure uniformity in this delicate area of state-federal rela- tions. The issue over which the Third and Fourth Circuits have split will arise repeatedly. Grand juries are con- stantly sitting in States throughout this country.* In some cases they act, and in others they do not. To hold that the mere pendency of such secret proceedings—or of other investigative procedures—suffices to preclude a legitimate claim of federai preemption from being raised and decided would effect a dramatic shift in present law. At the very least it would mean that grand jurors and prosecutors could act unchecked on the basis of state laws expressly preempted by Congress. Such a power in the hands of prosecutors should not be sanctioned without this Court’s approval. Indeed, the decision below could well prompt changes in state investigative practices, 26 Grand jury indictments are required for specified crimes in half the States, and the use of a grand jury is optional at the dis- cretion of the prosecutor in the other States. National Institute of Justice, Grand Jury Reform: A Review of Key Isswes 12 (1983). 28 with prosecutors going through the formality of enlist- ing the aid of a grand jury at the earliest stages of an investigation to insulate the investigation from any scru- tiny by federal courts. Similarly, the large number of Circuits that have re- cently addressed the question of the appropriateness of abstention in federal preemption cases demonstrates that the issue arises with great frequency.. This Court should grant the writ to resolve the existing conflict among the Circuits and provide definitive guidance to the lower federal courts on these significant and recurring issues of federal jurisprudence. CONCLUSION For the foregoing reasons, this Court should grant the writ and reverse the decision of the court below. Respectfully submitted, E. BARRETT PRETTYMAN, JR.* SHERWIN J. MARKMAN ~JOHN C. KEENEY, JR. Davip J. HAYES JOHN G. ROBERTs, JR. HOGAN & HARTSON (a partnership including professional corporations) 815 Connecticut Ave., N.W. Washington, D.C. 20006 (202) 331-4685 ARNOLD W. WEINER Of Counsel: MICHAEL SCHATZOW KATHLEEN B. DEWEESE ETHAN L. BAUMAN Associate General Counsel MELNICOVE, KAUFMAN, WEINER, POTOMAC ELECTRIC Smouse & Garsts, P.A. PowER COMPANY 36 South Charles St. 1900 Pennsylvania Ave., N.W. Baltimore, MD 21201 Washington, D.C. 20068 (301) 332-8525 (202) 872-2520 Counsel for Petitioner * Counsel of Record APPENDICES fi Meear nay iets la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 86-1572 THE POTOMAC ELECTRIC POWER COMPANY, Appellant, versus STEPHEN H. SACHS, in his capacity as Attorney General of Maryland* ADELE WILZACK, in her capacity as Secretary of the Maryland Department of Health and Mental Hygiene, Appellees, STATE OF NEW YORK Amicus Curiae, STATE OF ALABAMA, Amicus Curiae, NIAGARA MOHAWK POWER CORPORATION, Amicus Curiae, EDISON ELECTRIC INSTITUTE, Amicus Curiae, NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION, Amicus Curiae, AMERICAN PUBLIC POWER ASSOCIATION, Amicus Curiae, AMERICAN ELECTRIC POWER SERVICE CORPORATION, Amicus Curiae, APPALACHIAN POWER COMPANY, Amicus Curiae, 2a CoLuMBUS & SOUTHERN OHIO ELECTRIC COMPANY, Amicus Curiae, INDIANA & MICHIGAN ELECTRIC COMPANY, Amicus Curiae, OHIO POWER COMPANY, Amicus Curiae, ATLANTIC CITY ELECTRIC COMPANY, Amicus Curiae, BALTIMORE GAS & ELECTRIC COMPANY, Amicus Curiae, CENTRAL HUDSON GAS & ELECTRIC CORPORATION, Amicus Curiae, CENTRAL ILLINOIS LIGHT COMPANY, Amicus Curiae, CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, Amicus Curiae, CENTRAL & SOUTH WEST SERVICES, Amicus Curiae, COMMONWEALTH EDISON COMPANY, Amicus Curiae, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Amicus Curiae, DAYTON POWER & LIGHT COMPANY, Amicus Curiae, DELMARVA POWER & LIGHT COMPANY, Amicus Curiae, DUKE POWER COMPANY, Amicus Curiae, DUQUESNE LIGHT COMPANY, Amicus Curiae, FLORIDA POWER & LIGHT COMPANY, Amicus Curiae, OO 3a HousTON LIGHTING & POWER COMPANY, Amicus Curiae, ILLINOIS POWER COMPANY, Amicus Curiae, INDIANAPOLIS POWER & LIGHT COMPANY, Amicus Curiae, IowA Power & LIGHT COMPANY, Amicus Curiae, CINCINATTI GAS & ELECTRIC COMPANY, Amicus Curiae, IowA PUBLIC SERVICE COMPANY, Amicus Curiae, JERSEY CENTRAL POWER & LIGHT COMPANY, Amicus Curiae, MADISON GAS & ELECTRIC COMPANY, Amicus Curiae, MINNESOTA POWER & LIGHT COMPANY, Amicus Curiae, MONOGAHELA POWER COMPANY, Amicus Curiae, MONTAUP ELECTRIC COMPANY, Amicus Curiae, NEW ENGLAND PoWER COMPANY, Amicus Curiae, NEW YorRK STATE ELECTRIC & GAS CORPORATION, Amicus Curiae, OHIO VALLEY ELECTRIC CORPORATION, Amicus Curiae, OKLAHOMA GAS & ELECTRIC COMPANY, Amicus Curiae, PaciFic GAS & ELECTRIC COMPANY, Amicus Curiae, 4a PaciFic PowEr & LIGHT CoMPANY, Amicus Curiae, PENNSYLVANIA POWER & LIGHT COMPANY, Amicus Curiae, PHILADELPHIA ELECTRIC COMPANY, Amicus Curiae, PUBLIC SERVICE ELECTRIC & GAS COMPANY, Amicus Curiae, PUBLIC SERVICE COMPANY OF INDIANA, INC., Amicus Curiae, SOUTHERN CALIFORNIA EDISON COMPANY, Amicus Curiae, SOUTHERN COMPANY SERVICES, INC., Amicus Curiae, ALABAMA POWER COMPANY, Amicus Curiae, GEORGIA POWER COMPANY, Amicus Curiae, GULF PowWER COMPANY, Amicus Curiae, MISSISSIPPI POWER COMPANY, Amicus Curiae, TAMPA ELECTRIC COMPANY, Amicus Curiae, TEXAS UTILITIES GENERATING COMPANY, | Amicus Curiae, CLEVELAND ELECTRIC ILLUMINATING COMPANY, Amicus Curiae, DETROIT EDISON COMPANY, ~ Amicus Curiae, POTOMAC EDISON COMPANY, Amicus Curiae, 5a TOLEDO EDISON COMPANY, Amicus Curiae, UNION ELECTRIC COMPANY, Amicus Curiae, VIRGINIA ELECTRIC POWER COMPANY, Amicus Curiae, WEST PENN POWER COMPANY, Amicus Curiae, WISCONSIN ELECTRIC POWER COMPANY, Amicus Curiae, WISCONSIN POWER & LIGHT COMPANY, Amicus Curiae, WISCONSIN PUBLIC SERVICE CORPORATION, Amicus Curiae, CHESAPEAKE BAY FOUNDATION, Amicus Curiae, NATURAL RESOURCES DEFENSE COUNCIL, INC., Amicus Curiae, UNITED STATES OF AMERICA, Amicus Curiae. No. 86-1573 THE POTOMAC ELECTRIC POWER COMPANY, Appellee, versus STEPHEN H. SACHS, in his capacity as Attorney General of Maryland; ADELE WILZACK, in her capacity as Secretary of the Maryland Department of Health and Mental Hygiene, Appellants, 6a STATE OF NEW YORK, Amicus Curiae, STATE OF ALABAMA, Amicus Curiae, NIAGARA MOHAWK POWER CORPORATION, Amicus Curiae, EDISON ELECTRIC INSTITUTE, Amicus Curiae, NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION, Amicus Curiae, AMERICAN PUBLIC POWER ASSOCIATION, Amicus Curiae, AMERICAN ELECTRIC POWER -SERVICE CORPORATION, Amicus Curiae, APPALACHIAN POWER COMPANY, Amicus Curiae, CoLUMBUS & SOUTHERN OHIO ELECTRIC COMPANY, Amicus Curiae, INDIANA & MICHIGAN ELECTRIC COMPANY, Amicus Curiae, OHIO POWER COMPANY, Amicus Curiae, ATLANTIC CITY ELECTRIC COMPANY, Amicus Curiae, BALTIMORE GAS & ELECTRIC COMPANY, Amicus Curiae, CENTRAL HUDSON GAS & ELECTRIC CORPORATION, Amicus Curiae, CENTRAL ILLINOIS LIGHT COMPANY, Amicus Curiae, CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, Amicus Curiae, Ta CENTRAL & SOUTH WEST SERVICES, Amicus Curiae, CINCINNATI GAS & ELECTRIC COMPANY, Amicus Curiae, COMMONWEALTH EDISON COMPANY, Amicus Curiae, CONSOLIDATED EDISON COMPANY OF NEW YORK, Amicus Curiae, DAYTON POWER & LIGHT COMPANY, Amicus Curiae, DELMARVA POWER & LIGHT COMPANY, Amicus Curiae, DUKE POWER COMPANY, Amicus Curiae, DUQUESNE LIGHT COMPANY Amicus Curiae, FLORIDA POWER & LIGHT COMPANY, Amicus Curiae, HOUSTON LIGHTING & POWER COMPANY, Amicus Curiae, ILLINOIS POWER COMPANY, Amicus Curiae, INDIANAPOLIS POWER & LIGHT COMPANY, Amicus Curiae, IowA POWER & LIGHT COMPANY, Amicus Curiae, IOWA PUBLIC SERVICE COMPANY, Amicus Curiae, JERSEY CENTRAL POWER & LIGHT COMPANY, Amicus Curiae, MADISON GAS & ELECTRIC COMPANY, Amicus Curiae, INC., 8a MINNESOTA POWER & LIGHT COMPANY, Amicus Curiae, MONOGAHELA POWER COMPANY, Amicus Curiae, MONTAUP ELECTRIC COMPANY, Amicus Curiae, NEW ENGLAND POWER COMPANY, Amicus Curiae, NEW YoRK STATE ELECTRIC & GAS CORPORATION, Amicus Curiae, OHIO VALLEY ELECTRIC CORPORATION, Amicus Curiae, OKLAHOMA GAS & ELECTRIC COMPANY, Amicus Curiae, PAcIFIC GAS & ELECTRIC COMPANY, Amicus Curiae, PACIFIC POWER & LIGHT COMPANY, Amicus Curiae, PENNSYLVANIA POWER & LIGHT COMPANY, Amicus Curiae, PHILADELPHIA ELECTRIC COMPANY, Amicus Curiae, PUBLIC SERVICE ELECTRIC & GAS COMPANY, Amicus Curiae, PUBLIC SERVICE COMPANY OF INDIANA, INC., Amicus Curiae, SOUTHERN CALIFORNIA EDISON COMPANY, Amicus Curiae, SOUTHERN COMPANY SERVICES, INC., Amicus Curiae, ALABAMA POWER COMPANY, Amicus Curiae, 9a GEORGIA POWER COMPANY, Amicus Curiae, GULF POWER COMPANY, Amicus C WAGE, MISSISSIPPI POWER COMPANY, Amicus Curiae, TAMPA ELECTRIC COMPANY, Amicus Curiae, TEXAS UTILITIES GENERATING COMPANY, Amicus Curiae, CLEVELAND ELECTRIC ILLUMINATING COMPANY, Amicus Curiae, DETROIT EDISON COMPANY, Amicus Curiae, POTOMAC EDISON COMPANY, Amicus Curiae, TOLEDO EDISON COMPANY, Amicus Curiae, UNION ELECTRIC COMPANY, Amicus Curiae, VIRGINIA ELECTRIC POWER COMPANY, Amicus Curiae, WEST PENN POWER COMPANY, Amicus Curiae, WISCONSIN ELECTRIC POWER COMPANY, Amicus Curiae, WISCONSIN POWER & LIGHT COMPANY, Amicus Curiae, WISCONSIN PUBLIC SERVICE CORPORATION, Amicus Curiae, CHESAPEAKE BAY FOUNDATION, Amicus Curiae, 10a NATURAL RESOURCES DEFENSE COUNCIL, INC., Amicus Curiae, UNITED STATES OF AMERICA, Amicus Curiae. Appeal from the United States District Court for the District of Maryland, at Baltimore. Walter E. Black, Jr., United States District Judge. (CA-86-220-B). Argued: July 14, 1986 Decided: October 17, 1986 Before PHILLIPS, SPROUSE and CHAPMAN, Circuit Judges. Arnold M. Weiner (Michael Schatzow; Ethan L. Bau- man; Melnicove, Kaufman, Weiner & Smouse on brief) ; E. Barrett Prettyman, Jr. (Sherwin J. Markman; John C. Keeney, Jr.; David J. Hayes; Hogan & Hartson; Kathleen B. DeWeese, Associate General Counsel, Po- tomac Electric Power Company, on brief) for Appel- lant/cross Appellee; Ralph S. Tyler, Assistant Attorney General (Stephen H. Sachs, Atorney General; Richard M. Hall, Michael C. Powell, Kathie A. Stein, Charles R. Taylor, Jr., Assistant Attorneys General on brief) for Appellees/cross Appellants; Karen L. Florini, United States Department of Justice, (F. Henry Habicht, II, Assistant Attorney General; Jacques B. Gelin; Margaret A. Hill; United States Department of Justice; Francis S. Blake, General Counsel; Bruce M. Diamond, Regional Counsel; Terrell Hunt, Associate Enforcement Counsel; Alan H. Carpien; Environmental Protection Agency on brief) for Amicus Curiae United States of America; (Robert Abrams, Attorney General of the State of New York; Lawrence A. Rappoport, Associate Attorney; Nancy Stearns, Assistant Attorney General; John K. Van de oa lla Kamp, Attorney General of State of California; Theodora Berger, Assistant Attorney General; Timothy R. Patter- son, Deputy Attorney General; Charles A. Graddick, At- torney General of the State of Alabama; Craig Kneisel, Assistant Attorney General; Joseph I. Lieberman, Attor- ney General of the State of Connecticut; Kenneth Ted- ford, Assistant Attorney General on brief) for Amici Curiae State of New York, et al; (Ann Powers, Vice President and General Counsel; Catherine A. Cotter on brief) for Amicus Curiae Chesapeake Bay Foundation, Inc.; (Jacqueline M. Warren; Donald S. Strait, Lawanda Still, Legal Assistant on brief) for Amicus Curiae Na- tural Resources Defense Council, Inc.; (William L. Ko- vacs; Henry W. Killeen, III; Donald S. Stefanski; Jaeckle, Fleischmann & Mugel; Joseph F. Cleary, Assist- ant Secretary and General Attorney, Niagara Mohawk Power Corporation on brief) for Amicus Curiae Niagara Mohawk Power Corporation; (J. Thomas Wolfe; Lynne H. Church on brief) for Amicus Curiae Baltimore Gas and Electric Company; (Toni K. Allen; Mary F. Edgar; Piper & Marbury on brief) for Amici Curiae Edison Electric Institute, et al. SPROUSE, Circuit Judge: The Potomac Electric Power Company (PEPCO) ap- peals from the district court’s summary judgment in favor of Steven Sachs, Attorney General of the State of Maryland (Maryland), in PEPCO’s declaratory judg- ment action. PEPCO sought a judgment holding that the federal Toxic Substances Control Act (TSCA)' preempts Maryland’s hazardous waste laws and regulations,? which, among other things, govern the use and disposal of poly- chlorinated biphenyls (PCBs). PEPCO also sought re- 115 U.S.C. § 2601 et seq. 2Md. Health-Envtl. Code Ann. §§ 7-101 et seq., 9-301 et seq. (1982); Md. Admin. Code tit. 10, §51 (Disposal of Controlled Hazardous Substances). 12a lief preventing Maryland from enforcing those laws and regulations against PEPCO. The district court denied PEPCO’s motion for summary judgment and instead held that TSCA did not preempt the challenged state statutes. On appeal, PEPCO primarily contends that the district court erred because a plain reading of TSCA clearly indicates Congress’ intent that the Act preempt any state regulation of PCB disposal.* On cross-appeal, Maryland, of course, agrees with the district court’s decision on the merits, but argues that the court erred by refusing to abstain in deference to previously instituted grand jury proceedings. Maryland had initiated the grand jury proceeding to investigate whether PEPCO had violated Maryland’s criminal laws and regulations governing hazardous waste disposal. These proceedings were in progress at the time this de- claratory judgment action was filed. We agree with Maryland and hold that the district court should have abstained. PEPCO is the electric utility corporation serving the District of Columbia and some of its suburbs in Mary- land and Virginia. Historically, it has used electrical transformers filled with mineral oil. In many of the transformers, the oil was permanently contaminated with PCBs during the manufacturing process. PCBs are highly toxic materials. PEPCO disposed of the obsolete transformers involved here by sale through competitive bids to scrap metal dealers—in this instance to United Rigging and Hauling, Inc. (United Rigging), of Belts- ville, Maryland. Pursuant to their contract, United Rig- ging transported the obsolete transformers from PEPCO’s District of Columbia testing facility. to United Rigging’s -_~ 3It is of no consequence in light of our decision on abstention, but there is no merit to Maryland’s argument that the district court lacked jurisdiction. See Lawrence County v. Lead-Deadwood School District, US. , 105 S. Ct. 695, 698 n.6 (1985); Shaw v. Delia Air Lines, Inc., 463 U.S. 85, 96 n.14 (1983). a ee ee 13a salvage yard in Maryland where the scrapping activities were carried out. In 1985, Maryland’s Waste Management Administra- tion determined that United Rigging’s salvage yard and a nearby creek were contaminated with PCBs. Follow- ing that determination, PEPCO and United Rigging en- tered into an Administrative Consent Order with the State of Maryland and the Environmental Protection Agency to conduct a cleanup of the site under the Com- prehensive Environmental Response, Compensation, and Liability Act of 1980.4 In April of 1985, the Attorney General of Maryland commenced a grand jury criminal investigation of PEPCO’s and United Rigging’s roles in scrapping the transformers and dispésing of the hazardous material. It appears the grand jury was on the verge of indicting PEPCO.* Against this background of state activity, PEPCO brought this declaratory judgment action in the United States District Court for the District of Maryland, seek- ing a declaration that provisions of TSCA preempt Mary- land’s laws and regulations on hazardous waste disposal.® PEPCO filed a motion for summary judgment and the district court, ruling against PEPCO, held that TSCA does not preempt Maryland’s hazardous waste disposal laws and regulations. PEPCO appeals from this decision and Maryland cross-appeals from the district court’s re- 4 42 U.S.C. § 9601 et seq. 5In its opinion, the district court concluded that “an indictment of PEPCO for_alleged responsibility for or participation in the United Rigging contamination is imminent.” United Rigging has since entered into a plea agreement with the Attorney General of Maryland for violations of the Health-Environment Article of the Maryland Code. ®PEPCO argues that to avoid preemption of its PCB disposal laws, a state must apply for and receive an exemption under 15 U.S.C. § 2617(b) ; and Maryland did neither. l4a fusal to abstain. Because we hold that abstention is ap- propriate in this case, we do not address the merits of PEPCO’s preemption claim. The district court ruled in response to Maryland’s motion to dismiss that abstention under Younger v. Harris, 401 U.S. 37 (1971), was inappropriate. It ana- lyzed the Younger doctrine and concluded that it did not apply to state grand jury proceedings because there was no adequate opportunity for PEPCO to raise its federal claim of preemption before the grand jury. The district court viewed the grand jury investigation as a proceeding that was separate from the possible result- ing criminal prosecution. It noted that since there was no certainty of indictment, it was possible that PEPCO would never be able to present the preemption claim in state court. Further, the court reasoned that, even if indicted, there was no indication of how long PEPCO would have to wait for a state forum in which to present its claim of federal preemption. We cannot agree with the conclusion the district court reached from this rea- soning. Younger v. Harris set forth the established “national policy forbidding federal courts to stay or enjoin pend- - ing state court proceedings except under special circum- stances.” 401 U.S. at 41 (footnote omitted). Specifically, “a federal court should not enjoin a state criminal pros- ecution begun prior to the institution of the federal suit except in very unusual situations, where necessary to prevent immediate irreparable injury.” Samuels v. Mackell, 401 U.S. 66, 69 (1971). A companion case to Younger, Samuels v. Mackell held that declaratory relief should also be denied where an injunction would be im- proper under Younger. Id. at 73. The Court, however, recognized exceptions to abstention for prosecutions brought in bad faith or for harassment purposes or in other extraordinary circumstances. Younger v. Harris, 401 U.S. at 53. 15a The Supreme Court has never addressed the issue of whether Younger applies to state grand jury proceed- ings. It has ruled, however, that the doctrine applies to quasi-criminal proceedings such as nuisance actions, Huffman v. Pursue, Ltd., 420 U.S. 592 (1975); to state civil enforcement activ'ties such as the recovery of fraudulently obtained welfare paymentsyTrainor v. Her- nandez, 431 U.S. 484 (1977); child custody actions, Moore v. Sims, 442 U.S. 415 (1979); and contempt pro- ceedings, Juidice v. Vail, 480 U.S. 327 (1977); and to state administrative proceedings in which important state interests are involved and an adequate opportunity exists to present federal or constitutional challenges to the state action, Ohio Civil Rights Commission v. Dayton Christian Schools, 54 U.S.L.W. 4860 (U.S. June 24, 1986) ; Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423 (1982); Gibson v. Berryhill, 411 U.S. 564 (1973). The fundamental principles underlying Younger and its progeny of decisions are equity, comity and federal- ism. A “basic doctrine of equity jurisprudence [is] that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the mov- ing party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” Younger, 401 U.S. at 43-44. The notion of comity is one of federal courts having the “proper respect for state functions,” which reinforces the policy of noninter- ference in state criminal proceedings by courts of equity. Id. at 44. Federalism represents a system in which there is sensitivity to the legiti- mate interests of both State and National Govern- ments, and in which the National Government, anx- ious though it may be to vindicate and protect fed- eral rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States. l6a These principles encompass the belief that state courts are as capable as federal courts of deciding federal or constitutional issues; therefore, all state and federal claims should be addressed in the pending state proceed- ing. See Moore v. Sims, 442 U.S. at 320; Huffman v. Pursue, Ltd., 420 U.S. at 611. See also Lynch v. Snepp, 472 F.2d 769, 774 (4th Cir. 1973}—(C“It-should never be forgotten that the Constitution literally calls state judges by name. . . and puts upon them the obligation to apply the supreme Law of the Land.”).” These clas- sic precepts, we think, apply to a state quasi-judicial ac- tion taken within its grand jury system with as much or more force as they apply to the state administrative, civil, and quasi-criminal involved in in Dayton Christian Schools, Moore v. Sims, Trainor v. Hernandez, and Huff- man v. Pursue, Ltd.* A common thread to these de- TWhile the Supreme Court has never analyzed the treatment of a preemption claim in applying the Younger doctrine, it appears to us that the same logic requiring abstention when there is a constitutional challenge to a state criminal statute applies to liti- gation where there is a claim of federal preemption due to a con- gressional enactment. See Samuels v. Mackell, 401 U.S. 66 (1971) (alternative claims of federal preemption and unconstitutionality of state criminal anarchy law not distinguished). A state’s interest in enforcing its criminal statutes remains undiminished until a statute is declared unconstitutional. Likewise, its enforcement in- terest remains undiminished until the statute is declared preempted or invalid for any. other reason. It would strike us as anomalous to hold that a state court may decide federal constitutional issues but is unqualified or inhibited from deciding preemption issues. 8In Maryland, grand juries operate under the auspices of the judicial branch. “Grand juries operate under the control of he court which convenes them,” Duckett v. Touhey, 36 Md. App. 238, 242, 373 A.2d 328, 325 (1977), with the “single view that the accused may be brought to trial in the court whereof the grand jury is a part... .” Im re Report of Grand Jury, 152 Md. 616, 622, 187 A. 370, 372 (1927) (setting out detailed history of grand juries as well as their function and purpose). Importantly, the Supreme Court of the United States has stated that federal grand 17a cisions is the requirement that the federal plaintiff have an opportunity to present the federal claim in the state proceedings.°® The pivotal question then is whether PEPCO has an adequate opportunity to present its preemption claim within the state grand jury proceedings. The Supreme Court has recently held in the context of state adminis- trative proceedings that an adequate opportunity exists when the federal plaintiff can present its claim on ju- dicial review of the state administrative action or order. In Middlesex County Ethics Committee v. Garden State Bar A: :3ociation, the Court held that abstention was proper where an attorney subject to disciplinary action by the state ethics committee could present his constitu- tional challenge to the action on review by the New Jersey Supreme Court. 457 U.S. 423 (1982). In a case jury proceedings are judicial in nature. In Cobbledick v. United States, 309 U.S. 323 (1940), the Court stated: The Constitution itself makes the grand jury a part of the judicial process. It must initiate prosecution for the most important federal crimes. It does so under general instructions from the court to which it is attached and to which, from time to time, it reports its findings. The proceeding before a grand jury constitutes “a judicial inquiry” of the most ancient lineage. Id. at 327, quoting Hale v. Henkel, 201 US. 43, 66 (1906). See Levine v. United States, 362 U.S. 610, 617 (1960) (“The grand jury is an arm of the court and its in camera proceedings consti- tute ‘a judicial inquiry.’ ”’). ®In contrast, the Supreme Court held Younger inapplicable in two instances because the federal plaintiff could not present its claim in the state proceedings. In Gibson v. Berryhill, 411 U.S. 564 (1973), the Court held that the inherent bias of the state optometry board effectively denied an opportunity to present the federal claim. In Gerstein v. Pugh, 420 U.S. 103 (1975), the Supreme Court held that Younger did not bar a federal suit on the legality of pretrial detention without a hearing to determine prob- able cause because the claim could not be raised in defense at the criminal trial. 7d. at 108 n.9. 18a decided subsequent to.the district ¢court’s ruling in this case, the Court stated, in response to a claim that the Ohio Civil Rightg,Commission could not consider con- stitutional claims, that “in any event, it is sufficient un- der Middlesex, that constitutional claims may be raised in state court judicial review of the administrative pro- ceeding.” Ohio Civil Rights Commission v. Dayton Chris- tian Schools, Inc., 54 U.S.L.W. at 4863. These cases dem- enstrate that not only is the immediate proceeding rele- vant in determining whether there is an opportunity to present a federal claim, but subsequent state judicial proceedings in which the claim can be raised are also relevant. Grand jury investigation and indictment in- itiate a criminal prosecution in Maryland’s system of criminal enforcement. If indicted, PEPCO can present its claim of federal preemption by TSCA-as a defense to the criminal prosecution, and therefore has an ade- quate opportunity to present the claim in the ongoing proceedings.” This court- has previously decided in another context that the Younger doctrine applies to state-initiated grand jury proceedings. See Craig v. Barney, 678 F.2d 1200 (4th Cir.), cert. denied, 459 U.S. 860 (1982). In Craig, we dealt with the validity of a subpoena while here PEPCO attacks the validity of the entire grand jury process as it relates to its alleged environmental viola- tions. We think nevertheless that the reasoning of Craig governs our decision in this case and that Younger re- quires abstention. The grand jury, although separate, is 1° Contrary to PEPCO’s contention, the fact that PEPCO can- not present its claim immediately does not establish that it has no adequate opportunity to present the preemption claim. In Moore v. Sims, the Court addressed a similar argument concerning delay in holding a requested hearing and ruled that the argument was indistinguishable from “conventional claims of bad faith,” and the Court could not “agree that the conduct_of the state authorities in this case evinces bad faith.” 442 U.S. at 432. Here, there is not even an allegation of bad faith. 19a an integral part of state criminal enforcement proceed- ings and here, as in Craig, PEPCO will have an ade- quate opportunity to present its federal claim within that ongoing state system. The district court, therefore, should have abstained. In view of our abstention ruling, we do not address the merits of PEPCO’s preemption claim. On remand, PEPCO’s action must be dismissed and its claims pur- sued in Maryland courts. Gibson v. Berryhill, 411 U.S. at 577. The judgment of the district court is, therefore, reversed and remanded for proceedings consistent with this opinion. REVERSED AND REMANDED 20a APPENDIX B UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MARYLAND Case Number B86-220 POTOMAC ELECTRIC POWER COMPANY, Plaintiff, vs. STEPHEN H. SACHS, et al., Defendants. March 27, 1986 TRANSCRIPT OF RECORDED PROCEEDINGS BEFORE THE HONORABLE WALTER E. BLACK, JR. Appearances: For the Plaintiff: ARNOLD W. WEINER, ESQUIRE 36 South Charles Street Baltimore, MD 21201 (301) 332-8500 For the Defendant: RALPH §S. TYLER, ESQUIRE Munsey Building Seven N. Calvert Street Baltimore, MD 21202 (301) 576-6342 2la [2] THECOURT: Good afternoon. THE CLERK: The matter now pending before the Court is Civil Docket Number B86-220 for Potomac Electric Power Company vs. Stephen H. Sachs, et al. Counsels for the plaintiff are Arnold M. Weiner, E. Bar- ret Prettyman, Jr. and David J. Hayes. Counsels for the defendants are Michael C. Powell and Ralph 8. Tyler. This matter now comes before the Court for a hearing on motion of plaintiff for summary judgment. THE COURT: I think at the outset, Counsel, let me take care of my unfinished business, which is to render an informal oral opinion on the matters raised in the hearings two weeks ago, reserving the right, if it is transcribed for any reason, to edit that opinion, without in any way changing the results or the essential meaning. This is declaratory judgment action brought by Po- tomac Electric Power Company, referred to as PEPCO, against the Attorney General of Maryland. PEPCO, who is currently being investigated by the State Court Grand Jury for possible violation of State environmental laws, seeks to have the Federal Court declare that the Toxic Substance Control Act, referred to as TOSCA, 15 U.S.C., Sections 2601 and following, preempts State law. Of particular focus in this case is the regulation of polychlorinated biphenyls, PCB’s, a highly toxic substance [3] found in electrical transformers used by the plaintiff. Pending before the Court is the defendant's motion to dismiss the case, Paper Number 9. pygBuant to Rule 12 (D) (1) of the Federal Rules af Fe Procedure. The defendants present three arguments why this Court lacks subject matter jurisdiction over the case. First, the plaintiff’s claims do not present a Federal question. Second, no actual case or controversy exists between the parties; and third, that the principles of federalism and comity compel Federal Court abstention under Younger v. Harris, 401 U.S. 37, 1971. The parties have submitted memoranda in support of their respective positions and the Court had the benefit 22a of oral argument on Thursday, March 13, 1986. After careful consideration of the arguments presented, the Court has concluded that the motion must be denied for reasons the Court will discuss. This Court does, in fact, have subject matter jurisdiction over this action and _ abstention is inappropriate. First, it should be pointed out that the party asserting jurisdiction has the burden of proof, see Thompson v. Gaskill, 315 U.S. 442 at 446; 1942; Gibbs v. Buck, 307 U.S. 66 at 72, 19389; McNutt v. General Motors Accept- ance Corporation, 298 U.S. 178 at 188 and 9, 1936; Hair v. Family Publications Service, Inc., 342 F.Supp., 678 at [4] 682, District of Maryland, 1972. Now, the claim is based upon the Court’s Federal question of jurisdiction. The plaintiff must prove the claim is, in fact, based upon Federal Law and that the claim is not frivolous, Wright and Miller Federal Prac- tice and Procedure, Civil Section Number 1350 at 556 and Note 93, citing Baker v. Carr, 369 U.S. 186, 1962. The Court is persuaded that the plaintiff has met its burden with respect to all three of the issues raised by the defendants. First as to the Federal question, under 28 United States Code, Section 1331, this Court has original jurisdiction over any civil action arising under the Constitution and Laws of the United States. The courts traditionally have required that the Federal ques- tion appear on the face of a well-pleaded complaint; and not as an anticipated defense to the claim. Louisville and Nashville Railroad Company v. Mottley, 211 U.S. 149, 1980. See generally Wright and Miller, Civil Section 3566. PEPCO has, in fact, invoked Federal Law, TOSCA, on the face of the complaint; and at first blush, that fact alone would appear to satisfy the jurisdictional require- ment. The defendants argue, however, that PEPCO’s claim is, in fact, only a defense to a possible criminal action the Attorney General may bring against it. That such an anticipated defense is insufficient to satisfy the [5] requirements of Federal question jurisdiction. 23a While it is true that success on the part of the plain- tiff in this declaratory judgment action could have the effect of borrowing a State criminal prosecution, it does not follow that Federal question jurisdiction is lacking in this Court. Indeed, it appears that the plaintiff has followed precisely the procedures mandated by the Su- preme Court for bringing declaratory judgment actions in Federal Court. The hazy distinction between a Federal claim and an anticipated Federal defense was recently addressed by the Supreme Court in a series of cases decided in 1983 and 1985. In one, Franchise Tax Board v. Construction Laborers’ Vacation Trust for Southern California, 463 U.S. 1, 1983, the Supreme Court held that the Federal Court lacked jurisdiction to hear a case where the State was the plaintiff in a State Court action, and claimed that the State Law in question was not preempted by Federal Law. The defendants removed the case to Federal Court on the basis that the preemption issue created Federal ques- tion jurisdiction. The Supreme Court reversed, holding that the Federal Court should look only at the State com- plaint in determining whether Federal question jurisdic- tion exists. The same day, the Supreme Court decided Shaw v. Delta Airlines, 463 U.S. 85, 1988, and held that where the plaintiffs in Federal Court sought injunctive and declaratory [6] relief from State regulation, on grounds of Federal preemption, a Federal question was presented. The distinction between the two cases is that in Fran- chise Tax Board, it was the State that was attempting to show that its laws were not preempted; in Shaw, the Federal plaintiffs sought to prove that Federal Law pre- empted the State Law being applied against them. In- deed, Justice Blackmun, writing for the Court in Shaw distinguished the cases on precisely these grounds by citing Shaw, 463 U.S. at 986, Note 14, and the Court also 24a refers to Wright and Miller, Section 3566 at Pages 99 to 101. Clearly, PEPCO more closely resembles the plaintiffs in Shaw than in Franchise Tax Board, a case upon which the defendants heavily relied. Moreover, subsequent cases from the Supreme Court further support the conclusion that there is Federal question jurisdiction here. For example, in Arcudi v. Stone and Webster Engineering Corporation, 463 U.S. 1220, 1983, the Court summarily affirmed the judgment of the Second Circuit in Stone and Webster Engineering Corporation v. Ilsley, 690 F.2d, $23, Second Circuit 1982, which had found that a Federal preemption challenge to a State Statute was within the Court’s Federal question jurisdiction. The Supreme Court reaffirmed this principle in Law- rence County vs. Lead Deadwood School District, 105 [7] S.Ct., 695, 1985, where the Court rejected the Eighth Circuit’s conclusion that a Federal preemption challenge to a State Statute did not state a Federal question. I’m referring to Page 698, Note 6. Moreover, in a case similar on its facts to this case, the Fifth Circuit had little difficulty in finding Federal question jurisdiction in a case where the plaintiff claimed that TOSCA preempted State Law, Rollins Environmental Service v. Parish «f St. James, 775 F.2d, 627 at 631, Fifth Circuit, 1985. The Court recognizes that there ~ some authority in the Fourth Circuit that arguably supports the defend- ant’s position, specifically in City National Bank v. Ed- misten, 681 F.2d, 942, Fourth Circuit, 1982. The Court vacated the declaratory judgment of the District Court that certain banking procedures did not violate state usury laws. The Court held that the claim did not arise under Federal Law, because the complaint involved only State Law. The case is clearly distinguishable on the basis of the fact that the complaint did not involve Fed- eral Law, whereas PEPCO’s complaint does. 25a Moreover, the Edmisten decision came before the Su- preme Court decision in Shaw, Stone and Webster, and Lawrence County, and the Court is persuaded that any ambiguity created by Edmisten is resolved by those later [8] authorities. Accordingly, the Court finds that by bringing a claim that specifically invokes the preemption provision in Fed- eral Statute, the plaintiff has met its burden of proving Federal question jurisdiction. Indeed, where the very question at issue is whether or not Congress intended certain provisions of a Federal Statute to preempt State Law, it seems both logical and legally correct that the Federal District Court is the appropriate forum in which to bring the case. Second, as to the case or controversy. The defendants assert that PEPCO has not alleged a case or controversy within the meaning of Article III of the United States Constitution. Specifically, the defendants argue that the State’s investigation of PEPCO does not constitute an actual controversy and that the threat of enforcement is not sufficiently real to satisfy the requirements of Article III. This assertion need not detain us long, particularly in light of the defendant’s concession at oral argument, that the threat of enforcement is now more acute than at the time the Motion to Dismiss was filed. This fact is reflected in the defendant’s reply brief, ‘where in addressing the abstention issue, the defendants spelled out in detail how imminent a criminal prosecution of PEPCO had become. Indeed, it is somewhat [9] in- consistent to argue that the present investigation of PEPCO is a pending State criminal proceeding for ab- stention purposes, but is not a case or controversy under Article III. In Babbitt v. United Farm Workers National Union, 442 U.S. 289, 1979, the Supreme Court stated that a case or controversy under Article III must embody a dispute definite and concrete, not hypothetical or ab- stract, being a quote from Page 298. The issue of how 26a concrete a dispute must be in order to meet this test is not entirely clear, but the Court is persuaded that the dispute between PEPCO and the Maryland Regulatory Agency is sufficiently immediate to meet the test. The State has been rating PEPCO for several years and has conducted a thorough investigation into the company’s handling of transformers. There is nothing hypothetical or abstract about the possibility of indictment in this case. Several lower court decisions support this conclusion. For example, in Hughes v. Christophony, 486 F.Supp. 541, District of Maryland, 1980, the owners of a restaurant challenged an ordinance prohibiting topless dancing where food or alcohol was served. The Court determined that - where law enforcement authorities had made arrests on enforcement visits, the threat of prosecution was suffi- ciently real to provide the plaintiffs with standing to bring the claim. In addition, the Eighth Circuit addressed itself to [10] the case or controversy’s requirement in the environ- mental context in Caldwell v. Girley Refining Company, 755 F.2d 645, Eighth Circuit, 1985. In that case, Federal agencies have asserted the plaintiffs liability for certain hazardous waste spills, but had not initiated any prose- cution. Caldwell sought declaratory relief and the Court found that the threat of prosecution was sufficiently real to satisfy the case or controversy requirement. A quote, “a plaintiff need not always wait the actual commence- ment in enforcement proceedings to challenge the au- thority under which those proceedings would be brought”, at Page 650. The same reasoning applies here. The Court finds that the disagreement between PEPCO and the State of Mary- land has advanced close enough to the indictment stage to satisfy the case or controversy requirement of Article III. Third, the Younger abstention. Finally, the defend- ants assert that the Grand Jury Investigation of PEPCO 27a constitutes ongoing State proceedings to which this Court should defer under the doctrine of Younger v. Harris, 401 U.S. 87, 1971. While> the Younger decision itself applied to a State criminal prosecution already in prog- ress, the doctrine has been expanded to apply to civil and administrative proceedings in certain contexts. See, for example, Moore v. Sims, 442 U.S. 415, 1979; Hoffman v. Pursue, Limited, 420 U.S. 592, 1975; Turner v. . Hernan dez, 431 [11] US. 434, 1977. In its most recent consideration of the scope of the Younger doctrine, the Supreme Court listed three con- sideratiéns Federal Court should evaluate in determin- ing whether abstention is appropriat. in light of the State proceedings. First, there must be an ongoing State judicial proceed- ing. Second, the proceedings must implicate important State interest; and third, there must be an adequate opportunity in the State proceedings to raise the Fed- eral claims. Middlesex County Ethics Committee v. Gar- den State Bar Association, 457 U.S. 423 at 432, 1982. Of these three factors, it is clear that the third is the most important for our purposes in this case. As the Court indicated at oral argument, there is a surprising dirth of case law on the issue of whether or not the Younger doctrine applies to State Grand Jury proceed- ings. The parties have brought to the Court’s attention, however, severai cases where the issue was addressed, though apparently not conclusively resolved. In one, Craig v. Barney, 678 F.2d 1200, Fourth Cir- cuit, cert. denied, 459 U.S. 860, 1982, the managers of adult bookstores sought to enjoin Virginia Grand Jury proceedings where no indictment had been filed, and where the Grand Jury lacked the power to indict, the Court found that [12] Younger abstention was appropri- ate because of the matter of State Law, that Federal plaintiffs would have an adequate opportunity to raise their Federal claims in the State proceeding through appropriate legal procedures, such as a contempt hearing. 28a The Court went on to say, however, that “Federal Court should not dismiss unless the State proceeding has reached a stage that assures the Federal plaintiff an opportunity to present its Constitutional defenses at some point during the ongoing proceeding.” That’s a quote from Page 1201. In a case from another jurisdiction, Sovereign News Company v. Falke, 448 F. Supp. 306, Northern District of Ohio, 1977, the Court used similar language in de- termining whether the Younger doctrine should apply to State Grand Jury actions. In that case, the Federal plaintiffs sought-to enjoin State Prosecutors from intro- ducing into evidence before the Grand Jury certain ma- terials allegedly seized in violation of the plaintiff’s Fourth Amendment rights. The Court found that the Younger abstention did apply, because in the context of that case, the plaintiffs had an adequate opportunity to raise their typical Federal claim. The Court reasoned that the defendant would either not be indicted by the Grand Jury, or could immediately raise the Federal defense in a criminal prosecution. Re- ferring to [13] page 359. This Court cannot agree with that analysis in deter- mining whether or not the Federal plaintiff has an ade- quate opportunity to raise the Federal claim, this Court must look not to what the proceedings might become, but to what they are now. It is clear that PEPCO has no present opportunity to raise its Federal concerns in the Grand Jury proceedings. As noted in Middlesex and also in Gibson v. Berryhill, 411 U.S. 546, 1978, if there is no opportunity to raise the Federal issue in the State proceedings, then the Younger abstention is inappropri- ate. Moreover, the Supreme Court has stated clearly that where a State criminal case has not yet begun, that is, an indictment has not yet been filed, considerations of Federalism are not controlling. Steffel v. Thompson, 415 29a U.S. 452, 1974, citing Perez v. Ledesma, 401 U.S. 82, 1971, are the concurring opinion of Justice Brennan. This line of authority seems to run counter to the lower court holdings in Craig and Sovereign News. The Court is persuaded, however, that Steffel and Perez con- trol this case, and that because the State Grand Jury proceeding has not yet reached the stage where PEPCO can raise its Federal claim, the Younger principle should not apply. The issue turns in part on whether one considers State Grand Jury proceedings as a separate process or as part [14] of a criminal case. The defendant correctly points out that if PEPCO ever is indicted, it would then be able to raise its Federal defense in State Court. How- ever, that relief is inadequate to protect PEPCO’s as- serted Federal rights at the present time, as noted in Berryhill at Page 577. The availability of a subsequent forum to raise the Federal claim is an inadequate basis upon which to in- voke Federal Court abstention. The Court is thus per- suaded that State Grand Jury proceedings must be viewed as separate from the actual criminal prosecu- tion. There is no certainty that the Grand Jury will actually return an indictment, nor is there any indica- tion of how long PEPCO would have to wait™befere it had its forum to raise the Federal defense. Under such circumstances, it would be harsh, indeed, to foreclose the opportunity to bring the preemption chal- lenge to Federal Court prior to indictment. PEPCO has no opportunity at all to raise its Federal claim in the State Grand Jury proceedings, principles of abstention under Younger, therefore, do not apply. In conclusion, the Court finds that the defendants’ Mo- tion to Dismiss must be denied. A Federal question is presented on the face of the complaint, an actual con- troversy exists between the parties sufficient to satisfy the case or controversy requirement, and Federal Court abstention under Younger v. Harris would be inappropri- 30a ate on the facts of this [15] case. As a result, this Court has jurisdiction to proceed in this case. While the issues presented by the defendant, merited serious consideration, the Court is entirely persuaded that the Federal District Court is the appropriate forum in which this claim should be heard. At issue is a Fed- eral Statute containing an express preemption provision. It seems far more efficient and fair to decide in this forum the issue of what Congress intended, than to re- quire the litigants to defend a criminal prosecution at great length and then hope for Supreme Court review on a fortiori. The plaintiff has a Federal claim and hav- ing filed this declaratory action before any indictment was filed in State Court, it has the right to have the matter decided before this tribunal. The motion is denied, and I have entered a formal order consistent with this opinion. Bob, have Counsel been furnished with a copy of the order? te 8la APPENDIX C IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Civil Action No. B-86-220 THE POTOMAC ELECTRIC POWER COMPANY v. STEPHEN H. SACHS, in his capacity as Attorney General of Maryland, and ADELE WILZACK, in her capacity as Secretary of the Maryland Department of Health and Mental Hygiene Filed: April 16, 1986. Arnold M. Weiner, Michael Schatzow, Ethan L. Bauman, and Melnicove, Kaufman, Weiner & Smouse, P.A., of Baltimore, Maryland; E. Barrett Prettyman, Jr., Sher- win J. Markman, John C. Keeney, Jr., David J. Hayes, and Messrs. Hogan & Hartson, of Washington, D.C.; and Kathleen B. DeWeese, Assistant General Counsel, of Washington, D.C.: for plaintiff, The Potomac Electric Power Company. Stephen H. Sachs, Attorney General of Maryland, Michael C. Powell, Richard M. Hall, Kathie A. Stein, Charles R. Taylor, and Ralph 8. Tyler, Assistant Attorneys General of Maryland: for defendants, Stephen H. Sachs, in his capacity as Attorney General of Maryland, and Adele Wilzack, in her capacity as Secretary of the Maryland Department of Health and Mental Hygiene. Black, District Judge. This action for declaratory judgment presents the Court with a narrow legal question of statutory interpre- 32a tation. Does the federal Toxic Substances Control Act, 15 U.S.C. § 2601 et seg. (TOSCA), preempt Maryland’s regulatory provisions governing the disposal of poly- chlorinated biphenyls (PCBs) ? The plaintiff, Potomac Flectric Power Company (PEPCO) seeks to avoid a possible state criminal en- forcement action by means of a declaratory judgment that all state regulations relating to PCBs are preempted by TOSCA. The defendants, Stephen H. Sachs, Attorney General of Maryland, and Adele Wilzack, Secretary of the Maryland Department of Health and Mental Hygiene, argue that Maryland’s regulations governing disposal of PCBs are not subject to preemption in light of the specific exceptions in the preemption provision of TOSCA. The matter is before the Court on the plaintiff’s Motion for Summary Judgment. I. BACKGROUND Polychlorinated biphenyls are chemical substances which have been manufactured and used commercially for several decades. Due to their chemical stability, fire re- sistance, and electrical resistance properties, they have frequently been used in electrical transformers and ca- pacitors. In the past, PEPCO used electrical transform- ers containing this substance. PCBs, however, are extremely toxic. “Epidemiological data and experiments on laboratory animals indicate that exposure to PCBs pose carci- nogenic and other risks to humans. Experimental animals developed tumors after eating diets that in- cluded concentrations of PCBs as low as 100 parts per million (ppm). Experiments on monkeys indi- cate that diets with PCB concentrations of less than ten ppm reduce fertility and cause still births and birth defects. Other data show that PCBs may ad- 83a versely affect enzyme production, thereby interfer- ing with the treatment of diseases in humans.” Environmental Defense Fund v. Environmental Pro- tection Agency, 636 F.2d 1267, 1270 (D.C. Cir. 1980). = Moreover, PCBs accumulate in fish and other aquatic organisms and are virtually indestructible in the environ- ment. Affidavit, of Ronald Nelson, attached to Defend- ants’ Memorandum in support of Motion to Dismiss, at 2. Both Congress and the state of Maryland have re- sponded to the grave dangers presented by PCBs. At the federal level, Congress passed TOSCA, which allows the administrator of the Environmental Protection Agency (EPA) to regulate virtually all aspects of PCB manu- facture, use and disposal. See 15 U.S.C. § 2605(e) (pro- viding a separate erg 0 PCBs). Indeed, the legis- lative history of TOSCA iftdicates that PCBs were a special source of concern to Congress at the time of the passage of the statute. See comments of Representative Dingell, explaining Congress’ attention to the immediate dangers posed by PCBs, Defendants’ Opposition to plain- tiff’s Motion for Summary Judgment at 21. At the state level, Maryland regulates PCBs as a hazardous waste under the state’s waste management program. By track- ing PCBs from “cradle to grave,” the state can detect and respond to PCB problems, incidents and spills in the state. Nelson Affidavit, supra, at 3. = The present controversy arises out of PCB contamina- tion discovered at a Beltsville, Maryland site used by the United Rigging and Hauling Company (United Rigging) as a salvage yard for electrical transformers. State au- thorities discovered PCB concentrations in the soil as high as 128,000 parts per million and found that con- taminated runoff was entering a nearby creek. Pursuant to their authority under the Comprehensive Environ- mental Response, Compensation, and Liability Act of 34a 1980 (CERCLA or Superfund), 42 U.S.C. § 9601 et seq., state and federal authorities determined that the situa- tion at the United Rigging site posed an imminent and substantial endangerment to public health, welfare, or the environment. PEPCO, whose transformers were found at the site, along with United Rigging, entered into an administrative consent order with state authorities and the EPA to conduct the Superfund cleanup. The cleanup activities resulted in the removal of 10,562 tons of PCB-contaminated soil and 787 electrical transformers. Nelson Affidavit, supra, at 5. In May, 1985, a Prince George’s County grand jury began a criminal investigation of the contamination at the United Rigging site. PEPCO has been one of the subjects of that investigation, which has not yet led to any indictments. There is little question from the record, however, that an indictment of PEPCO for alleged re- sponsibility for or participation in the United Rigging contamination is imminent. See Defendant’s Reply Mem- orandum in support of Motion to Dismiss at 11-13 n.10 (providing details of the intention of the Attorney Gen- eral’s Office to prosecute) . PEPCO brought this suit in federal court in an ap- parent attempt to foreclose the possibility of a state criminal prosecution. Its argument, in sum, is that TOSCA expressly preempts any state efforts to regulate PCBs, including disposal, and that the state therefore lacks the authority to regulate the substances or to indict a party for mishandling them. The Court has previously denied the defendants’ Mo- tion to Dismiss, or for Summary Judgment, Based Upon Lack of Jurisdiction, or for Stay. The Court found that »PEPCO’s complaint established federal question jurisdic- tion under Shaw v. Delta Air Lines, 463 U.S. 85, 96 n.14 (1983), that the facts presented a live case or contro- versy, and that federal court abstention under Younger 35a v. Harris, 401 U.S. 37 (1971), was inappropriate.* Ac- cordingly, the parties proceeded to the merits of the plaintiff’s Motion for Summary Judgment, which was fully briefed and presented at oral argument on March 27, 1986. After full consideration of the arguments presented, the Court is persuaded that the plaintiff’s motion must be denied and declaratory judgment entered in favor of the defendants. As discussed below, the matter is ripe for adjudication on summary judgment, and the Court has determined that the Maryland regulations governing dis- posal of PCBs are not preempted by TOSCA. II. SUMMARY JUDGMENT Under Rule 56 of the Federal Rules of Civil Proce- dure, a motion for summary judgment can only be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467 (1962). The burden is on the moving party to demonstrate clearly that there is no genuine issue of fact and any doubt as to the existence of such an issue is resolved against him. Phoenix Sav- ings & Loan, Inc. v. Aetna Casualty & Surety Co., 381 F.2d 245, 249 (4th Cir. 1967). This burden can be a heavy one; the-standard for passing on motions for sum- mary judgment is strict. Clarke v. Montgomery Ward & Co., 298 F.2d 346, 348 (4th Cir. 1962). If interpre- tations of the facts of a case differ, summary judgment is improper. Morrison v. Nissan Motor Co., Ltd., 601 1 At oral argument on the motion for summary judgment, the defendants moved to file an immediate appeal of this Court’s ruling on these issues, pursuant to 28 U.S.C. § 1292(b). In light of the dispositive ruling of this opinion, that motion will be denied as moot, and the parties will be free to argue the jurisdictional issues, as well as the merits, on appeal. 36a F.2d 139, 141 (4th Cir. 1979). See also Ross v. Com- munications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985), where the court determined that summary judg- ment is proper only when “it is perfectly clear that there are no [factual] issues in the case.” The Court has determined that the narrow legal issues presented by this case are ripe for determination on summary judgment. The primary task before the Court is to determine the intent of Congress when it enacted the preemption provision of TOCSA. None of the facts related to Congress’ activities are in dispute. While the parties clearly interpret the legislative history quite dif- ferently, the record is complete, and proceeding to trial would do nothing to further illuminate what Congress intended. There are obviously substantial issues of fact relating to the actions which created the contamination at the United Rigging site, but those issues are not be- fore the Court. Rather, the focus of this Court’s atten- tion is solely on the preemption provision of TOSCA, 15 U.S.C. § 2617, and the exceptions contained in it. On those issues, there is no dispute of fact.2 Moreover, as one court has stated, “[q]uestions of statutory construc- tion and legislative history traditionally present legal questions properly resolved by summary judgment.” Union Pacific Land Resources Corp. v. Moench Invest- ment Co., 696 F.2d 88, 93 n.5 (10th Cir. 1982), cert. denied, 460 U.S. 1085 (1983). 2A possible exception—where a dispute of fact might exist—is in the arguments related to the identity or lack of identity between the Maryland regulations and the federal regulations under the first of the three listed exceptions in § 2617, § 2617(a) (2) (B) (i). If the Court were to rule on that issue, more facts would be needed, in order to examine the regulations item by item. The Court, how- ever, does not reach that issue, having concluded that the State must prevail on a separate dispositive issue. The factual issues of the identity of the regulations, therefore, are not in any sense material to the Court’s ruling. 37a III. PREEMPTION UNDER TOSCA “Tt is well-established that within constitutional limits Congress may preempt state authority by so stating in express terms.” Pacific Gas & Electric v. State Energy Resources Conservation & Development Commission, 461 U.S. 190, 203 (1983), citing Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977). In the absence of an express preemption provision, Congress’ intent to preempt state law may be found from a pervasive scheme of federal regulation that leaves the states no room to supplement the federal requirements or from a regulatory scheme in which the federal interest is dominant. Even where Congress does not entirely displace state regulation, state law is preempted to the extent that it conflicts with fed- eral law or stands as an obstacle to the accomplishment of the purposes and objectives of Congress. Pacific Gas & Electric, 461 U.S. at 203-04. It should be noted, how- ever, that in certain areas traditionally left to the his- toric police powers of the State, preemption will be found only if the clear and manifest purpose of Congress is to preempt. Jones v. Rath Packing, 430 U.S. at 525; Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). In TOSCA, Congress was explicit in addressing the preemption issue by including § 2617. It determined that federal regulations under TOSCA should preempt certain areas of state regulation, but not in [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_IA40385011_2419%3A1. Public record. Not legal advice.