Motion — Sharon Steel Corp. v. City of Fairmont

td

_—_ Supreme Court, U.S.

F i i &B D

4) oct 29 1988

—_ — J

OF 4 eX PH F. SPANIOL,

No. 9.9 07 5 ee CE

IN THE

Supreme Court of the United States

October Term, 1985

SHARON STEEL CORPORATION,

Appellant,

v.

THE CITY OF FAIRMONT, WEST VIRGINIA,

EDWIN C. DALEY, City Manager of Fairmont, West

Virginia, and GEORGE R. HIGINBOTHAM, City

Attorney of Fairmont, West Virginia,

Appellees.

ON APPEAL FROM THE SUPREME COURT

OF APPEALS OF WEST VIRGINIA

MOTION IN THE ALTERNATIVE TO DISMISS

OR AFFIRM

*GrorcE R. HIGINBOTHAM

HIGINBOTHAM & HIGINBOTHAM

P.O. Box 567

FAIRMONT, WEST VIRGINIA

26555

(304) 366-2900

Patrick C. McGINLEy

West Vircinia UNIVERSITY

Law SCHOOL

MorGANTOWN, WEST VIRGINIA

26505

(304) 293-5301

*COUNSEL OF RECORD FOR

APPELLEES

TABLE OF CONTENTS

Page

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Sica cL ck a Uo) ea ae WAR eS Oe 4

TABLE OF AUTHORITIES

CASES PAGE

City of Philadelphia v. New Jersey, 437 U.S. 617 (1978) .... 3

STATUTES

ee aS Un 0G ase gan ae eM i 2

rc aa oh cei wise evs ody een eee gewes 3

PI te ve ecsheecvcesus eae 3,4

OTHER AUTHORITIES

SE eS ee 3

H. Dept. No. 96-144, 96th Cong. 2nd Sess. at 40-41 ....... 3

iii

OPINION BELOW

This is an appeal from a decision of the Supreme Court of

Appeals of the State of West Virginia rejecting appellant’s con-

tention that the Resource Conservation and Recovery Act of

1976, as amended, (RCRA), 42 USCA § 6901 et seq, preempts

a municipal ordinance which prohibits the disposal of hazar-

dous waste virtually in the middle of the seventh largest city in

the State of West Virginia.

JURISDICTION

The jurisdictional requisites are adequately set forth in

the appellant’s jurisdictional statement.

CONSTITUTIONAL AND STATUTORY PROVISIONS

Pertinent constitutional and statutory provisions are set

forth in the appellant’s jurisdictional statement.

STATEMENT OF THE CASE

Appellant does not take issue with the statement of the

case as set forth in the appellant’s jurisdictional statement,

except to say that ia 1979 Sharon permanently ceased opera-

tions in the City of Fairmont as the result of a consent decree

arising from a complaint filed by the United States for viola-

tion of the Clean Air Act.' From the time of the closure of the

facility until the State high court’s decision, Sharon has main-

tained an unpermitted hazardous waste dump.

! United States v. Sharon Steel Corporation, Civil Action No. 79-0011-C(H)

(N.D. W. Va.)

ARGUMENT

THIS APPEAL LACKS A SUBSTANTIAL FEDERAL

QUESTION.

Appellant contends that the decision of the West Virginia

Supreme Court of Appeals will:

1. Thwart Congress’ comprehensive national plan for

managing hazardous waste;

2. Directly conflie. with the national permit program

under RCRA; and

3. Promote the proliferation of local vetoes of federal

hazardous waste facility permitting decisions.

Appellant’s contentions have no merit whatsoever. RCRA

provides that the Administrator of the United States

Environmental Protection Agency (EPA) may authorize states

to implement their own hazardous waste management pro-

grams in lieu of a federally administered program. 42 U.S.C. §

6926 (b). Such authorization occurs after EPA review, public

participation and hearing, and a finding by the EPA

Administrator that the state program is consistent with and

effective as RCRA and the EPA regulations promulgated pur-

suant thereto. 42 U.S.C. § 6926 (b) and (d).

This Court has interpreted RCRA as placing primary

responsibility for the statute’s administration and enforcement

in the hands of state regulatory agencies® such as, in this case,

the West Virginia Department of Natural Resources:

... we find no “clear and manifest purpose of Congress”,

Rice v. Sante Fe Elevator Corp., 331 U.S. 218, 230 to

preempt the entire field of interstate waste management

or transportation either by express statutory command,

see Jones v. Rath Packing Co., 430 U.S. 519. 530, 531, or

by implicit legislative design, see City of Burbank v.

West Virginia has been authorized by the Administrator to administer and

enforce a state hazardous waste program to be consistent with RCRA.

2

Lockheed Air Terminal, 411 U.S. 624, 633. To the con-

trary, Congress has expressly provided that “the collec-

tion and disposal of solid wastes should continue to be

‘ primarily the function of state, regional and local agen-

cies. . . 42 U.S.C. § 6901 (a) (4). City of Philadelphia v.

New Jersey, 437 U.S. 617, 620 fn. 4 (1978).

Moreover, RCRA explicity provides that states and

political subdivisions may impose requirements which are

more stringent than those imposed by RCRA:

. . nothing in this chapter shall be construed to prohibit

any state or political subdivision thereof from imposing

any requirements, including those for site selection,

which are more stringent than those imposed by such

(EPA) regulations. 42 U.S.C. § 6929 (Parenthetical add-

ed).

The legislative history of RCRA indicates that Congress

intended to allow states to be more stringent than EPA regard-

ing selection of sites for the disposal of hazardous wastes. See

125 Cong. Rec. at 13247-13248. See also H. Dept. No.

96-1444, 96th Cong. 2d. Sess. at 40-41.

West Virginia’s approach, as interpreted by the State’s

Supreme Ccurt in the case at bar, to disposal of hazardous

wastes allows cities to prohibit the disposal of hazardous waste

within their jurisdiction. The ability of a West Virginia city to

prohibit hazardous waste disposal does not in any way thwart

reaching the goals of RCRA. West Virginia Code § 8-12-5,

providing the general powers of municipalities, authorizes

only urban areas, cities, towns and villages, to prohibit

hazardous waste disposal. Rural areas outside the jurisdiction

of West Virginia municipalities comprise the great majority of

the State’s 15,475,000 acres and that area is available for

q hazardous waste disposal. Surely RCRA does not mandate that

states must allow hazardous waste disposal in populated urban

areas if other more sparsely populated alternative sites are

available. It is perfectly reasonable for West Virginia to limit

hazardous waste disposal to rural areas. Indeed, state and

local decisions to prohibit disposal from certain areas is

explicitly recognized in 42 U.S.C § 6929 which relates to state

and local requirements for “site selections.”

3

a

CONCLUSION

In sum, RCRA explicitly recognizes the power of states

and authorized political subdivisions to regulate hazardous

waste disposal “site selections”. Only West Virginia cities,

towns and villages are empowered by state law to prohibit

hazardous waste disposal within their boundaries. Even if

every one of West Virginia’s cities, towns and villages were to

enact ordinances like the one at bar, there would remain

million of acres of rural land where such disposal cannot be

prohibited in the manner authorized by West Virginia Code §

8-12-5. Obviously RCRA’s objectives can be obtained without

forcing urban areas to be the depository of hazardous wastes.

RESPECTFULLY SUBMITTED

George R. Higinbotham

Higinbotham & Higinbotham

P.O. Box 567

Fairmont, West Virginia 26554

Patrick C. McGinley

West Virginia University

Law School

Morgantown, West Virginia

26505