Reply Brief — Sharon Steel Corp. v. City of Fairmont

iments

Supreme Court, U.S.

FILED

NOV 12 4985

JOSE PH } SPANIOL. IR

No. 85-616 CLER

rte

IN THE

Supreme Court of the United States

October Term, 1985

SHARON STEEL CORPORATION,

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,

Appeliant,

Appellees.

ON APPEAL FROM THE SUPREME COURT

OF APPEALS OF WEST VIRGINIA

BRIEF OPPOSING APPELLEES’

MOTION IN THE ALTERNATIVE TO

DISMISS OR AFFIRM

BLAIR S. MCMILLIN

*ROBERT W. THOMSON

EDWARD A. BITTNER, JR.

Of Counsel: DEBRA M. COULSON

Hays WEBB REED SMITH SHAW & MCCLAY

ALFRED J. LEMLEY 747 Two Mellon Bank Center

eee "

FURBEE, AMOS, WEBB & cy th ue lmaaa 15219

CRITCHFIELD

132 Adams Street Counsel for Appellant

P.O. Box 1189 Sharon Steel Corporation

Fairmont, West Virginia — iY

96555 Counsel of Record

(304) 363-8800 for Appellant

HERBICK & HELD PRINTING COME

| BEST AVAILABLE COPY |

TABLE OF CONTENTS

PAGE

pL Mo a Nie of yy |. SER ii

LE SG AS IR es ae eT 1

Eo a nea oi ve et Nie ceees aves ners 3

TABLE OF AUTHORITIES

CASES PAGE

City of Philadelphia v. New Jersey,

450 US. Gis (OGG Siew ace oe 2

Rollins Environmental Services (FS), Ine. v.

The Parish of St. James, No. 85-3092

(Sth Cir. Now. 1, SOP ea ee eee 2

STATUTES

Resource Conservation and Recovery Act, as

amended, 42 U.S.C.A. $6901 et. seq. (West

Supp. 1905) . «... scsassanawvureacses eee ee 1

423 UBC A Gee 6 aos eenae ee 2

43 USL.A. Fe se ew eee ia

Toxic Substances Control Act, as amended,

15 U.S.C. $9001 of sam CHRGP «+e ose -s ss. '.... 3

West Virginia Hazardous Waste Management Act,

W.Va. Code §20-5E-1 et seg. ................... i

OTHER AUTHORITIES

Fairmont Ordinance No. 597 ...................... 1

section 1. W50.0cscsuce eee eee 2

APPENDIX A—Rollins Environmental Services

(FS), Inc. v. The Parish of St. James la

Argument. 1

ARGUMENT

In its Motion in the Alternative to Dismiss or Af-

firm, the City of Fairmont fails to state one reason this

appeal lacks a substantial federal question. Indeed, the

City acknowledges the substantiality of the two ques-

tions presented by proceeding immediately to the merits.

The need for plenary review by this Court is further

underscored by the City’s insistence that its Ordinance

No. 597 can prohibit the disposal of hazardous wastes

pursuant to a federal permit.

The Court below determined that there was no pre-

emption of the Ordinance because of a subsection of

Section 6972(f) of the Resource Conservation and Re-

covery Act, as amended, 42 U.S.C.A. §6901 et seq. (West

Supp. 1985), which preserves the rights of citizens to

“seek enforcement of any standard or requirement relat-

ing to the management of... hazardous waste” under

any statute or common law. The City makes no attempt

to support this novel reasoning. The fact that such an

important matter of federal-state relations in the area of

environmental management has been decided in this

manner, however, argues persuasively that this Court

should address the issue.

Rejecting the reasoning of the Court below, the City

attempts to misiead this Court into believing that the

West Virginia “approach” to hazardous waste manage-

ment is to allow cities to prohibit disposal of hazardous

waste within their boundaries while providing for dis-

posal of such wastes in “rural” areas and that the federal

Environmental Protection Agency has approved this

“approach”. No citation is given to any statute or regula-

tion wherein this “approach” is articulated. Nor is there

any citation to EPA approval of this “approach”. The

reason is clear: the West Virginia Hazardous Waste Man-

2 Argument.

agement Act, W.Va. Code §20-5E-1 et seq. (HWMA), and

the regulations promulgated thereunder, do not express

such an “approach”. The West Virginia Attorney General

and the West Virginia Department of Natural Resources

do not espouse such an “approach”—they filed a joint

brief with the Court below arguing that the Ordinance is

preempted by the HWMA. It is the Ordinance, not any

“West Virginia approach”, which prohibits and makes

criminal the disposal of “only those [hazardous wastes

the disposal of which] would require a state or federal

hazardous waste permit.” Fairmont Ordinance No. 597,

Section 1 (emphasis added).

The City’s reference to a non-determinative footnote

in a case decided by this Court under the Commerce

Clause! is irrelevant to whether there is a substantial

federal question in this action and to whether a political

subdivision of a state can prohibit an activity allowable

pursuant to a federal permit. The answer to the question

of whether either Section 6929 or Section 6972(f) of

RCRA permits a direct conflict between the exercise of

rights pursuant to a federal permit and the law of a local

government will have a significant impact on RCRA and

related federal environmental programs. This Court

should, therefore, address that question.

Finally, Sharon would like to call this Court’s atten-

tion to a case decided by the Fifth Circuit Court of Ap-

peals after the filing by the parties of all previous mate-

rials in this case. In Rollins Environmental Services

(FS), Inc. v. The Parish of St. James, No. 85-3092 (5th

Cir. Nov. 1, 1985)?, a unanimous panel held that an ordi-

nance of a Louisiana locality which “amounted to an

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

2. This case is reproduced as Appendix A to this Brief.

Argument. 3

outright prohibition” of disposal of polychlorinated

biphenyls within the boundaries thereof was preempted

under the Toxic Substances Control Act, as amended, 15

U.S.C. $2601 et seq. App. A at p. 2a. (1982).

The Rollins (St. James) case, the cases cited by

Sharon in its Jurisdictional Statement and the case at bar

illustrate the growing response by local communites to

attempts to implement a national hazardous waste pro-

gram. Whether the local law is characterized as a nui-

sance abatement enactment, as in this case, or as a regu-

lation of “commercial solvent businesses”, as in Rollins

(St. James), App. A at p. 4a, is immaterial. The fact

remains that these local enactments are “outright prohi-

bition{s]” of a federally-sanctioned activity. In Rollins

(St. James) the Fifth Circuit stated, “[i]f every locality

were able to dodge responsibility for and participation in

this program through artfully designed ordinances, the

national goal of safe, environmentally sound toxic waste

disposal would surely be frustrated.” App. A at p. 19a.

The same is true with respect to the national goal of safe,

environmentally sound hazardous waste disposal. The

case at bar presents a perfect opportunity for this Court

to address the legality of local resistance to the imple-

mentation of RCRA and related federal environmental

programs.

4 Conclusion.

CONCLUSION

Nothing the City has raised in its Motion diminishes

the urgent need for this Court to assert its jurisdiction in

this case. The questions presented require plenary con-

sideration by this Court.

Respectfully submitted,

Of Counsel:

BuarirR S. MCMILLIN

*ROBERT W. THOMSON

LIDWARD A. BITTNER, JR.

DEBRA M. CouLson

Hays WEBB REED SMITH SHaw & McCLay

ALFRED J. LEMLEY T47 Two Mellon Bank Center

Pittsburgh, Pennsylvania 15219

FURBEE, AMOS, WEBB (412) 288-3118

& CRITCHFIELD

132 Adams Street Counsel for Appellant,

P.O. Box 1189 Sharon Steel Corporation

Fairmont, West Virginia

26555 “Counsel of Record for Appellant

(304) 363-8800

la

APPENDIX A

ROLLINS ENVIRONMENTAL SERVICES (FS), INC.,

a Delaware corporation, Plaintiff-Appellant, v.

THE PARISH OF ST. JAMES, a political subdivision of

the State of Louisiana, et al., Defendants-Appellees

No. 85-3092

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

SLIP OPINION

November 1, 1985

Appeal from the United States District Court for the

Eastern District of Louisiana, Peter Beer, District Judge,

Presiding

OPINION

Before: Goldberg, Reavley and Garwood, Circuit

Judges.

GOLDBERG, Circuit Judge:

This case presents a classic confrontation over the

principles of federalism. Appellant Rollins has developed

a national system of toxic waste disposal facilities and

wishes to locate an intermediate processing plant in St.

James Parish, Louisiana. No one contends in this case

that Rollins’ proposed and existing facilities, and its

plans for operating them, do not conform to Congress’

directives in the Toxic Substances Control Act and to

applicable regulations issued by the Environmental Pro-

tection Agency. Nevertheless, the Parish, for reasons

that are not difficult to comprehend, does not want this

or any other toxic waste proposal facility located within

its boundaries. After passing an ordinance that explicitly

prohibited the type of toxic waste disposal at issue here,

the Parish settled on a version that accomplished indi-

2a Appendix A.

rectly what the earlier ordinance set out to accomplish

directly. The district court, Beer, J., found as a fact that

the second ordinance amounted to an outright prohibi-

tion of Rollins’ activities, but decided ultimately that it

lacked subject matter jurisdiction over the case. We hold

that there was jurisdiction and conclude that the chal-

lenged ordinance has been preempted by the Toxic

Substances Control Act.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff-appellant Rollins Environmental Services

(FS), Inc. (“Rollins”) is in the business of handling,

transporting, and cleaning up hazardous wastes. This

case arises from Rollins’ proposed treatment of certain

particularly toxic and deadly substances known as

polychlorinated biphenyis (“PCBs”) that are found,

among other places, in the insulating fluid of large elec-

trical transformers and capacitors. PCBs are carcino-

genic agents, and direct exposure even to minute quanti-

ties of them can be fatal. For this reason Congress

established in the Toxic Substance Control Act

(“TOSCA”) a broad range of programs to dispose of

PCBs safely and to phase out their use. P.L. 94-469, 15

U.S.C. $ 2601 et seq. (1976).

In November, 1984, Rollins commenced PCB disposal

operations at a facility located in Union, Louisiana, in

the Parish of St. James. The site of the facility is about

one-quarter mile from the Romeville Elementary School.

Rollins planned to receive obsolete electrical trans-

formers (some weighing several thousand pounds) at the

facility by truck or rail, to drain off the fluid containing

PCBs, and to rinse out the interiors of the transformers

with diesel fuel. The insuiating fluid and spent diesel fuel

would then be placed in containers and shipped to an-

other Rollins facility in Texas for final disposal; the

Appendix A. 3a

transformers themselves were to ! shipped to a landfill

in Nevada for burial. 2 Record on Appeal, Transcript of

Proceedings (“Tr.”) at 88. This procedure was designed

by Rollins as part of a national program for the safe

disposal of PCBs. Rollins has decontaminated thousands

of transformers in this way, as specified by EPA regula-

tions, see 40 C.F.R. 761.40-761.79 (1984), and its Texas

incinerator is one of only three in the nation approved

for the destruction of large quantities of PCBs. Tr. at 91,

95-98, 100-06.'

The first shipment of transformers arrived in

Rollins’ Union, Louisiana, facility on November 27, 1984.

On December 19, 1984, the St. James Parish Council

enacted Emergency Ordinance 84-29, “An Ordinance

Regulating Hazardous Wastes and PCBs in St. James

Parish,” which provided in part:

The treatment, storage, and disposal of poly-

chlorinated biphenyls (PCB and PCB’s) at commer-

cial waste disposal facilities within the Parish of St.

James is hereby prohibited.

The transporting of polychlorinated biphenyls

(PCB and PCB’s) through the Parish of St. James

shall require that the transporting agent supply a

manifest to, and obtain a permit from, the Sheriffs

[sic] Department of St. James Parish.

Two days later Rollins brought an action in the United

States District Court for the Eastern District of Louisi-

1. See also Defendant's Exhibit 3 (letter from EPA administrator to

Rollins stating in part that “A PCB disposal permit is not required for an

activity which is specifically authorized by the PCB disposal regulation. There-

fore, you may drain and flush PCB transformers in accordance with the proce-

dures described in 40 CFR 761.60(b) (1) without an EPA permit.”).

4a Appendix A.

ana, challenging the Ordinance as violative of the Com-

merce Clause and Supremacy Clause of the U.S. Consti-

tution and demanding declaratory and injunctive relief.

Ordinance 84-29 remained on the books for less than

a month. At its next meeting, on January 29, 1985, the St.

James Parish Council repealed Ordinance 84-29 and re-

placed it with Emergency Ordinance 85-1. Tr. at 19, 71.

The new Ordinance is styled “An Ordinance Regulating

Commercial Solvent Cleaning Businesses in St. James

Parish,” and it includes the following “prohibitions”:

A. No commercial solvent cleaning business may be

conducted within one mile of any area of special

concern.

B. No commercial solvent cleaning business may be

located in an area of special environmental concern

or conducted so as to drain or discharge any spent

solvent into any area of special environmental con-

cern.

C. No commercial solvent cleaning business may

conduct any part of the cleaning operation except in

a “contained area’ as described in this ordinance.*

Rollins amended its complaint to challenge Ordi-

nance 85-1, and it is this Ordinance that is at issue in the

present case.

2. The Ordinance defines an area of special concern as “a schoo!, day

care center, nursing home, grain elevator, public building or auditorium, hospi-

tal, church, or theater’; an area of special environmental concern as “a flood

hazard area or flood plain, wetland, surface or subsurface drinking water

source in St. James Parish”; and a contained area as “a concrete siab at least

two feet thick and sloped to collect any spilled solvent.” The Ordinance also

imposes a number of special building requirements on commercial solvent

cleaning businesses and empowers the Parish Council to determine whether “‘a

need for the proposed facility exists and the proposal is the best alternative to

fill that need.” “{O]n site cleaning or decontamination by any owner or his

contractor” and “machinery or motor vehicle repair businesses” are specifi-

cally exempted from the scope of the Ordinance.

Appendix A. oa

A full hearing was held in the district court on

Rollins’ request for a temporary restraining order.

Rollins put on four witnesses: the President of St. James

Parish, a civil engineer and land surveyor, a member of

the St. James Parish Council, and the Vice-President of

Rollins. After hearing their testimony and the argu-

ments of counsel, including that of an Environmental

Protection Agency (“EPA”) representative, the district

court found as a fact that Ordinance 85-1 amounted to,

and had the practical effect of, an absolute prohibition of

Rollins’ activities in the Parish. See Tr. at 137-38, 139,

145, 149-50, 154-55. Nevertheless, the district court de-

termined that it lacked subject matter jurisdiction and

dismissed Rollins’ suit. The key factor in the court’s

decision seems to have been the EPA’s ambivalent posi-

tion on the issue of preemption. See id. at 83-85, 117-18,

150, 151, 152-53 (describing EPA not ambiguously con-

firm that Ordinance 85-1 was preempted under TOSCA,

the court was reluctant to disturb what it saw as an

otherwise legitimate exercise of the Parish’s political

rulemaking and the local police powers.

II. JURISDICTION

The issue of jurisdiction is a threshold matter. Al-

though some consideration of the merits may occasion-

ally be necessary for a decision on jurisdiction, in this

case the district court need not have looked very far to

find jurisdiction.

The most obvious source of federal jurisdictica in

this case is 28 U.S.C. § 1331, which confers original ju-

risdiction on the district courts to adjudicate “all civil

actions arising under the Constitution, laws, or treaties

of the United States.” In its amended Complaint Rollins

6a Appendix A.

invokes, inter alia, the Supremacy Clause of the U‘S.

Constitution, the Commerce Clause of the U.S. Consti-

tution, and specific provisions of the Toxic Substances

Control Act as bases for its claims. For a finding of fed-

eral question jurisdiction is not incumbent on the party

asserting jurisdiction to prove in advance that it will

ultimately prevail on the merits of its federal claims. Bell

v. Hood, 327 U.S. 678, 682 (1946). Rather, the party as-

serting jurisdiction need only advance plausible, colora-

ble claims that “arise under” federal law. As the Su-

preme Court stated in Oneida Indian Nation v. County

of Oneida, 414 U.S. 661 (1974), for purposes of jurisdic-

tion it is sufficient that a party present claims that are

not “so insubstantial, implausible, foreclosed by prior

decisions of this Court, or otherwise completely devoid of

merit as not to involve a federal controversy...

whatever may be the ultimate resolution of the federal

issues on the merits.” Id. at 666-67; see also SED, Inc. v.

City of Dayton, 5_5 F.Supp. 737, 740-41 (S.D. Ohio 1981)

(EPA’s position on preemption of ordinance regulating

PCB’s irrelevant to issue of jurisdiction).

In this case it is clear that federal law supplies essen-

tial elements of Rollins’ claims. First, Rollins asserts

that Ordinance 85-1 regulates an area of concern that is

expressly preempted under TOSCA, § 18(a)(2)(B), and

thus directly violates the Supremacy Clause of the U.S.

Constitution. Second, Rollins maintains that Ordinance

85-1 conflicts with implied Congressional goals and pur-

poses, expressed through enactments in the same field—

namely, the comprehensive legislative and regulatory

scheme enacted in TOSCA—and is thus unconstitutional

under the implied preemption doctrine of the Supremacy

Clause. Finally, Rollins alleges that the Ordinance consti-

tutes a substantial burden on interstate commerce and

Appendix A. Ta

thereby violates the Commerce Clause of the U.S. Consti-

tution. Clearly, these claims are plausible enough and

present sufficiently substantial federal questions to get

Rollins into federal court.*

Our finding of jurisdiction is buttressed by the fact

that appellee St. James Parish did not seriously contest

the issue in its brief and virtually conceded jurisdiction

at oral argument.

III. SCOPE OF REVIEW

Ordinarily we would have no occasion to reach the

merits of a case dismissed in federal court for want of

jurisdiction. In the present case, however, it is clear that

the district court based its jurisdictional ruling on the

merits of Rollins’ federal claim. A brief examination of

the record confirms this interpretation of the proceed-

ings below.

At the outset of the hearing on Rollins’ request for a

temporary restraining order the district court directed

counsel for both parties to focus their efforts on the

“threshold” issue of jurisdiction. Tr. at 4-5. The court

then proceeded to hear four witnesses, noting that “the

whole question of preemption seems to require a certain

amount of, I guess you would have to say, testimony on

the merits....” Id. at 52. The witnesses testified in de-

tail on such diverse subjects as the porosity of concrete,

the location of a 1,000-year flood plain in St. James Par-

ish, and the volume of water that would pass through an

eight-inch water line at sixty pounds per square inch

3. Since we find federal question jurisdiction under 28 U.S.C. § 1331 it is

unnecessary for us to consider whether, as appears to be the case, federal

jurisdiction would also lie in the district court under 28 U.S.C. § 1332 (diver-

sity jurisdiction) and 28 U.S.C. § 1337 (jurisdiction under commerce regula-

tion).

8a Appendix A.

pressure during six hours of continuous use. At the end

of this testimony, arid after hearing the arguments of

counsel, the district court conciuded that, but for its

preceived lack of jurisdiction, the district court stated,

then I wouid have to say to the very able and I think

distinguished parish Council, you all are in trouble.

Because I think as a factual matter, the result of your

Ordinance, however well intended, however much

was your feeling that that was the will of the people

you are elected by, the fact of the matter is that it

does effectively kick Rollins out of the Parish, inso-

far as this activity is concerned.

Id. at 154.

As will be more fully developed below, the purpose

and effect of Ordinance 85-1 are the only real factual

issues in this case. On these issues, the district court

made explicit findings of fact. See id. at 137-38, 139,

145-50, 154.*

4. In reaching the merits of this case we note that counsel for both

parties briefed these issues fully. In their briefs, and at oral argument, both

parties appear to have acknowledged the propriety of appellate review on the

merits. See Appellee’s Brief at 2 (“In order to determine that ordinance 35-1

was bona fide the Court had to hear the evidence about what the ordinance did

and what Rollins proposed to do. All evidentiary issues were fully explored in

the Court below."’); id. at 3 (“Statement of the Issues Presented for Review”);

id. at 19 (“‘The... jurisdictional issue is ciosely intertwined with the merits.

For this reason, as Rollins concedes in brief, the case was fully tried in the

court below. All evidence to support the Rollins claims is now before this

Court.”); Appellant’s Brief at 21 (‘Remand of the case for findings as to the

applicability of the ordinance and its validity is unnecessary, and would be

wasteful of judicial resources since no issues of material fact remain and the

legal issues can be fully briefed and argued in this appeal.”); Appellant’s Reply

Brief at 3 (“The question of whether Ordinance 85-1 is constitutional, as weil

as the question of whether subject matter jurisdiction resides in the district

court, should both be decided in this appeal.”’); see also Independent Bankers

Association v. Heimann, 613 F.2d 1164, 1167 (D.C. Cir. 1979), cert. denied, 449

U.S. 823 (1980).

Appendix A. 9a

IV. PREEMPTION

The overall purpose of the Toxic Substances Control

Act was to set in place a comprehensive, national scheme

to protect humans and the environment from the dangers

of toxic substances. Congress recognized that state and

local ordinances might thwart the effectiveness of a na-

tional legislative and regulatory scheme; accordingly,

section 2 of TOSCA states that “the effective regulation

of interstate commerce in such chemical substances and

mixtures also necessitates the regulation of intrastate

commerce in such chemical substances and mixtures.” 15

U.S.C. § 2601(a)(3).5

Sections 2604 and 2605 of Title 15 are the basic pro-

visions of TOSCA mandating a comprehensive regula-

tory scheme for toxic substances. Section 2605(e)(1) pro-

vides in part:

(e) Polychlorinated biphenyls.—(1) Within

six months after January 2, 1977, the Adminis-

trator shall promulgate rules to—

{A) prescribe methods for the disposal of

polychlorinated biphenyls, and

5. The House report on TOSCA explains, that:

The Committee has extended the reach of the regulatory

authority of the bill to all chemical substances and mixtures

whether an interstate commerce or not since the size and scope of

the chemical industry makes it impossible to distinguish betwen

those in interstate commerce and those which are not. Further,

commerce in those which are arguably only in intrastate commerce

may affect commerce in those which are in interstate commerce,

and consequently there cannot be effective regulation of the latter

without regulation of the former. Also regulation of only those in

interstate commerce without regulation of the others could depress

commerce and discriminate against those in interstate commerce

and adversely burden, obstruct, and affect such commerce.

H.R. Rep. No. 94-1341, 94th Cong., 2d Sess. (1976), reprinted in House

Committee on Interstate and Foreign Commerce Legislative History of the

Toxic Substances Control Act at 417.

10a Appendix A.

(B) require polychlorinated biphenyls to be

marked with clear and adequate warnings, and

instructions, with respect to their processing,

distribution in commerce, use or disposal or with

respect to any combination of such activities.

To effectuate Congress’ national regulatory objec-

tives Section 18(a)(2)(B) of TOSCA, codified at 15 U.S.C.

§ 2617, contains an explicit preemption provision, which

reads as follows:

Preemption

Except as-provided in subsection (b) of this section—

...if the Administrator prescribes a rule or or-

der 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 designed to protect against a risk of injury

to health or the environment associated with such

substance or mixture, no State or political subdivi-

sion of a State may, after the effective date of such

requirement, establish or continue in effect, any re-

quirement which is applicable to such substance or

mixture, or an article containing such substance or

mixture, and which is designed to protect against

such risk unless such requirement (i) is identical to

the requirement prescribed by the Administrator,

(ii) is adopted under the authority of the Clean Air

Act or any Federal law, or (ili) prohibits the use of

such substance or mixture in such State or political

subdivision (other than its use in the manufacture or

processing of other substances or mixtures).

Appendix A. lla

15 U.S.C. § 2617(a)(2)(B).®

In 1978 the EPA promulgated a comprehensive set of

PCB disposal regulations pursuant to its authority under

Section 2605. See 43 Fed. Reg. 7150 (Feb 17, 1978). These

regulations have been codified at 40 C.F.R. §§ 761.40-

761.79 (1984). The Parish of St. James does not maintain

that Ordinance 85-1 qualifies for any of the three above-

numbered exceptions to the preemption provision.

Subsection (b) details a procedure for obtaining

exemptions from the preemption provision, but the Par-

ish has not applied for such an exemption. Thus all the

conditions necessary to trigger the preemption provi-

sions of TOSCA have been met.’

Article VI of the U.S. Constitution provides that

“This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof... shall be the

6. Congressman McCollister, the floor manager of the bill, explained the

preemption provision as follows:

State law is preempted only when the EPA has issued a rule

under Section 4, Section 5 or Section 6 fof TOSCA|]. If the EPA has

not acted, the States are free to act. If the EPA has acted, then the

States must appiy for an exemption from the preemption.

Before the State can put a different requirement into effect, it

nas to ask for an exemption from the preemption.

This provision was designed to discourage State require-

ments which would put an undue burden on those companies that

do business in a number of States.

House Debate, August 23, 1976, reprinted in House Committee on [nter-

state and Foreign Commerce Legislative History of the Toxic Substances

Control Act at 625.

7. As noted above, the EPA regulations governing PCBs were promul-

gated under the authority of subsection (e)(1) of Section 2605 of Title 15

(TOSCA section 6(e)(1) ), not subsection 2605. See 43 Fed. Reg. 7150 (Feb. 17,

1978). Thus the parenthetical exception to the preemption provision—“(other

than a rule imposing a requirement described in subsection (a)(6) of Section

2605 of this title)”—does not apply. See SED, Inc. v. City of Dayton, 519

F.Supp. 979, 987-88 (S.D. Ohio 1981).

12a Appendix A.

supreme Law of the Land.” It is well established that

Congress may, within constitutional limits, absolutely

preempt state and local rulemaking authority in a given

area. Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977);

Pacific Gas and Electric Co. v. State Energy Resources

Comm’n, 461 U.S. 190, 203-04 (1983). Even where Con-

gress has not entirely displaced state and local

rulemaking in a specific area, those lower laws are pre-

empted to the extent that they conflict with federal law.

Where a lower law “stands as an obstacle to the accom-

plishment and execution of the full purposes and objec-

tives of Congress,” Hines v. Davidowitz, 312 U.S. 52, 67

(1941), it is preempted. Preemption may also be “in-

ferred” from the existence of a comprehensive Con-

gressional scheme covering an area of activity. Fidelity

Federal Savings & Loan Ass’n. v. de ia Cuesta, 458 U.S.

141 (1982); Rice v. Santa Fe Elevator Corp., 331 U.S. 218,

230 (1947). Here, however, Congress has explicitly man-

dated that TOSCA, and regulations promulgated under it

by the EPA, preempt state and local regulation of PCB

disposal.®

——

8. See Warren County v. North Carolina, 528 F.Supp. 276 (E.D. N.C.

1981):

If [the Supremacy Clause} of the Constitution means any-

thing it must mean that a county may not pass an ordinace, the

effect of which is to totally frustrate an entire statutory plan en-

acted by the Congress for the protection of citizens in ail fifty

states. Were the Court to approve this ordinance, no doubt the

other ninety-nine counties in North Carolina would quickly enact

identical bans. What, then, would North Carolina do with the PCB

laced soil? Surely our neighbors in Virginia and Tennessee, South

Carolina and Georgia would also object to our carrying such wastes

into their states. The Warren County ordinance clearly stands as an

obstacle to the accomplishment and execution of the full purposes

and objectives of Congress under the Toxic Substances Control Act

and, therefore, is void.

(Footnote continued. )

Appendix A. 13a

Against this legal background, appellee St. James

Parish wisely declines to dispute the validity of Con-

gressional preemption as a general proposition. The Par-

ish acknowledges that an outright ban or prohibition or

PCB disposal activity would be impermissible under

TOSCA. See, e.g., Warren County, 528 F.Supp. at 290.

However, in response to the foregoing analysis the Par-

ish insists that its challenged Ordinance is not a PCB

ordinance at all. There is no mention of “PCBs,”

“<ransformers,” or “toxic substances” in Ordinance 85-1;

instead, it refers exclusively to “commercial solvent

cleaning” operations and the like. In other words, the

Parish argues that its Ordinance does not regulate the

same field of activity preempted by Congress.? In terms

of TOSCA, the Parish has to be saying that its Ordinance

is not “applicable to” the same “chemical substance or

mixture” that Congress had in mind, and that it is not

“designed to protect against a risk of injury to health or

the environment associated with such substance or

mixture.” 15 U.S.C. § 2617. Only if the Ordinance were a

“sham”—which counsel for the Parish defined at oral

argument as a “total subterfuge”—would it be invalid.

We accept appellee’s definition and hold today that Ordi-

nance 85-1 is indeed a sham.

At the very least, an exercise of legislative

rulemaking authority must be a reasonable means of

(Footnote 8 continued. )

Id. at 290. See also Twitty v. North Carolina, 527 F.Supp. 778 (E.D. N.C.

1981) (companion case to Warren County), alf'd., 696 F.2d 992 (4th Cir. 1982);

Chemical Waste Management, Inc. v. Broadwater, Civil Action No. 84-G-

1208-W (N.D. Ala. 1984), appeal dismissed, 758 F.2d 1538 (11th Cir. 1985);

SED, Inc. v. City of Dayton, 519 F.Supp. 979 (S.D. Ohio 1981). But see Chappell

v. SCA Services, Inc., 540 F.Supp. 1087 (C.D. Ill. 1982).

9. See, e.g., Appellee’s Answer [P] 7 (“At the present time, the St. James

Parish Council does not have in effect any regulations on PCB compounds.”).

l4a Appendix A.

attaining legitimate governmental objectives.

Williamson v. Lee Optical Co., 348 U.S. 483 (1955); U.S.

Dept. of Agriculture v. Moreno, 413 U.S. 528 (1973);

Jiminez v. Weinberger, 417 U.S. 628 (1974). Here, of

course, the question is not so much whether the chal-

lenged Ordinance is rationally related to legitimate ob-

jectives, but whether it trenches impermissibly upon a

field preempted by Congress. Nevertheless, the two anal-

yses are related. Insofar as Ordinance 85-1 amounts to an

outright ban of prohibition of appellant’s PCB disposal

activities, it has the legitimate objective of regulating a

field preempted by Congress. Alternatively, even viewed

as a “commercial solvent cleaning” regulation, the Ordi-

nance would be an unreasonably burdensome and restric-

tive means of attaining that end, and would thus be in

violation of the Commerce Clause.!°

In construing Ordinance 85-1 we look to its purpose

and effect. Guidance in interpreting the Ordinance is

10. See, v.g., Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970); Kassal

v. Consolidated Freightways Corp., 450 U.S. 662, 670-71 (1981); City of Phila-

delphia v. New Jersey, 437 U.S. 617, 622, 626-29 (1978) (garbage); Hardage v.

Atkins, 619 F.2d 871 (10th Cir. 1980) (industrial wastes); Washington State

Buiiding and Construction Trades Council v. Spellman, 684 F.2d 627 (9th Cir.

1982), cert. denied sub nom. Don't Waste Washington Legul Defense Founda-

tion v. Washington, 461 U.S. 913 (1983) (low-level radioactive waste); Illinois

v. General Electric Co., 683 F.2d 206 (7th Cir. 1982), cert. denied sub nom.

Hartigan v. General Electric Co., 461 U.S. 913 (1983) (nuclear wastes); see also

Note, Pre-emption as a Preferential Ground: A New Canon of Construction, 12

Stan. L. Rev. 208, 219-20 (1959):

The Court... appears to use essentially the same reasoning

process in a case nominally hinging on pre-emption as it has in past

cases in which the question was whether the state law regulated or

burdened interstate commerce. {T]he Court has adopted the same

weighing of interests approach in pre-emption cases that it uses to

determine whether a state law unjustificably burdens interstate

commerce. In a number of situations the Court has invalidated

statutes on the pre-emption ground when it appeared that the state

laws sought to favor local economic interests at the expense of the

interstate market.

Appendix A. 15a

provided by (1) the chronology of events leading up to its

passage-its “legislative history,” so to speak; (2) the

testimony below on several notable features of the Ordi-

nance; and (3) the explicit findings of fact made by the

trial judge.

Although an examination of the motives and

intentions of those who enacted a measure is no substi-

tute for a reading of its plain language, such an inquiry

can provide useful context for understanding the real

meaning and import of legislation.'! In this case, as has

been noted above, the challenged measure was immedi-

ately preceded by Ordinance 84-29, enacted on December

29, 1984, which provided for an express ban or prohibi-

tion of PCB disposal activities: “The treatment, storage

and disposal of polychlorinated biphenyls (PCB and

PCB’s) at commercial waste disposal facilities within the

Parish of St. James is hereby prohibited.” Appellee con-

cedes in its brief that “The original ordinance contained

a ban on PCB disposal practices. ...This ordinance had

problems under the commerce clause and [under] several

district court decisions interpreting the Toxic Substances

Control Act....” Appellee’s Brief at 4. The Agenda for

the next meeting of the Parish Council included two

references to “Amending Ordinance 84-29,” and at that

meeting the challenged Ordinance 85-1 was enacted to

replace Ordinance 84-29. See Testimony of Paul Keller,

President of St. James Parish, Tr. at 19 (Ordinance 85-1

“was intended to replace” 84-29); Testimony of Robert

Benn, Jr., St. James Parish Councilman, Tr. at 71 (same).

In light of the foregoing, it hardly takes a leap of faith to

conclude that Ordinance 85-1 has the same purpose as

11. See Pacific Gas and Electric, 461 U.S. at 216; United States v.

O'Brien, 391 U.S. 367, 383 (1968).

16a Appendix A.

the rescinded Ordinance 84-29, namely to ban or prohibit

PCB disposal activity in the Parish.

The district court below heard uncontroverted testi-

mony to the effect that Ordinance 85-1 amounted either

to an outright prohibition of Rollins’ PCB disposal activi-

ties or an unreasonably burdensome and restrictive reg-

ulation of its “commercial solvent cleaning’ business.

Several key features of the Ordinance call attention to

themselves. First, it provides that no commercial solvent

cleaning business may be conducted within one mile of

any “area of special concern,” which the Ordinance de-

fines as “a school, day care center, nursing home, grain

elevator, public building or auditorium, hospital, church,

or theater.” The Parish President testified that this pro

vision alone would exclude 83% of the Parish from con-

sideration as a “commercial solvent cleaning business”

site. Tr. at 26. Second, the Ordinance provides that no

commercial solvent cleaning business may be located in

“an area of special environmental concern,” which the

Ordinance defines as ‘“‘a flood hazard area of flood plain,

wetland, surface or subsurface drinking water source in

St. James Parish.” The Parish President testified that,

under various possible interpretations of these terms,

the entire Parish would be excluded from consideration

as a “commercial solvent cleaning business” site. See Tr.

at 32-37.

12. Further evidence that the purpose of the Ordinance was to ban or

prohibit PCB disposal activities in general, and Rollins’ business in particular,

is to be found in the provisions of the Ordinance that inexplicitly exempt local

businesses from its prohibitions:

The term (“Commercial Solvent Cleaning Business”) shall

not include on site cleaning or decontarmination by any owner or

his contractor nor does it include machinery or motor vehicle

repair businesses when cleaning and decontamination is incidental

to a bona-fide effort to repair the machinery or vehicle.

Appendix A. 17a

Finally, Ordinance 85-1 imposes a number of special

building requirements for commercial solvent cleaning

business, including the requirements that such busi-

nesses be built on a concrete slab “at least two feet thick”

and that they have on site “at least one 8” water line

capable of maintaining normal pressure through at least

six hours of continuous use.” The Parish President testi-

fied that he had “no [idea] whatsoever” why a two-foot

thick slab of concrete would [be] necessary for commer-

cial solvent cleaning operations, and added that he knew

of no other Ordinance imposing this requirement in the

Parish. Tr. at 42. Rollins then put on an expert engineer

who testified that the requirement of a two-foot thick

concrete slab was “unreasonable” from an engineering

point of view and that Rollins’ six-inch thick slab was

“totally adequate” for its intended purpose. Testimony of

Ronald K. Ferris, Tr. at 55. This engineer also tesiified

that the water supply required by the Ordinance would

cover the Rollins facility to a height of fifty-eight feet. Id.

at 57.

In the face of this testimony, we have no difficulty

upholding the district court’s finding of fact that Ordi-

nance 85-1 was so unreasonably burdensome and restric-

tive that it amounted to an imperrnissible ban or prohibi-

tion of Roilins’ PCB disposal business. The court below

was explicit as to its findings:

[A]s a practical matter, in order that some re-

viewing Court may know how it all strikes me, I do

believe that it is very well intended, but nevertheless

calculated effort to say no without actually really

ever saying no.

In other words, I don’t want any of the parties or

the attorneys or the record or any reviewing Court to

have to labor with one determination that I think I

18a Conclusion.

should make [as] a fact-finder and that determina-

tion is that whatever good faith I may ascribe to the

witnesses who testified, and I do ascribe total good

faith to them, I am still pretty much convinced that

the end result sought by this Ordinance is to do

exactly what you Say it isn’t to do, and that is to stop

this company’s clock, as far as operating in St. James

Parish is concerned.

Tr. at 137-38; see also id. at 139, 154-55. Elsewhere in its

findings of fact the district court expressly rejected the

Parish’s contention that its Ordinance is not a PCB regu-

lation at all, but rather an ordinance of general applica-

bility regulating “commercial solvent cleaning” busi-

nesses:

I perceive the Ordinance to be more far reaching

than its title indicates, and...I am convinced as a

practical person and as a fact finder that the essen-

tial implications of the Ordinance are not necessarily

to control a particular cleaning substance, but to stop

the operations of Rollins in this parish, at least at

this point in time and at this physical location.

Id. at 149-50; see also id. at 145. The district court’s

findings are amply supported by the record in this case.

We conclude therefore that Ordinance 85-1 is an imper-

missible intrusion into territory preempted under

TOSCA and that enforcement of it would violate the

Supremacy Clause of the federal Constitution.

V. CONCLUSION

This court is not insensitive to the concerns ex-

pressed by the Parish of St. James in this case. No one

wants a toxic waste disposal facility “in his own back

yard’—and for good reason. The uncontrolled chemical

emissions that have occurred elsewhere this year lend

Conclusion. 19a

sober perspective to the sanguine assurances of scien-

tists that such mishaps will not—indeed, cannot—occur.

These concerns are rightfully intensified when, as here, a

hazardous facility appears to have been located almost

deliberately on the most inauspicious possible site, one-

quarter mile from a local elementary school.

Precisely because of such concerns, Congress en-

acted in the Toxic Substances Control Act a broad na-

tional program of measures of prevent and guard against

the uncontrolled and hazardous emission of substances

such as PCBs. If every locality were able to dodge re-

sponsibility for and participation in this program

through artfully designed ordinances, the national goal

of safe, environmentally sound toxic waste disposal

would surely be frustrated. And, for all we know, electri-

cal transformers of the Romeville Elementary School

may present at this very moment far greater dangers of

uncontrolled and disastrous PCB emission than the

Rollins facility.

Moreover, our holding today does not mean that the

Parish must simply resign itself to the present location

of Rollins’ ill-fated facility. As noted above, Congress

also provided in TOSCA an orderly procedure by which

exemptions from its preemption provisions can be

sought and obtained. But the enactment of an ordinance

that can only be characterized as a subterfuge is not an

appropriate response to legitimate concerns over the

dangers of PCBs.

The Continental Congress knew that, without a

powerful preemption doctrine, its chances of forming a

more perfect union of the struggling states, with their

variegated philosophies and economics, would have been

nil. For this reason a strong Supremacy Clause was in-

serted in the Constitution, and it has been justified by the

20a Conclusion.

events of the founding years and throughout the history

of our country.

In the 1960’s, for example, the Civil Rights legisla-

tion and the Voting Rights Act were distinctly distasteful

to some of the states of the Union. These states re-

sponded with an agenda of frustrating and nullifying and

eviscerating the benign principles of Brown v. Board of

Education and the subsequent Civil Rights legislation.

Thus, the state legislatures busily engaged in the legisla-

tive process, passing bills and convening the legislature

in the midnight hours—at times to negate what Congress

and the President had put into law the day before. It

quickly became obvious that the federal supremacy fos-

tered by the Constitution, and the doctrine of preemption

as it applies when federal statutes are invoived, were

indispensable in assuring that there could be no interdic-

tion of the progress of civil rights through state legisla-

tive action.

Preemption is an absolute necessity, an imperative,

if the federal government is to be a federal government.

To do what is asked for by the appellee in this case is

really to change the whole constitutional structure of our

country and to bury federalism many feet below the sur-

face of a babbling group of states and an utterly ineffec-

tive federal government. The Constitution of the United

States prevents the erection of 50 Towers of Babel.

Accordingly, we REVERSE and grant Rollins Envi-

ronmental Services’ petition to enjoin enforcement of

Ordinance 85-1.

REVERSED.