Petition for Writ of Certiorari — South Carolina v. Environmental Technology Council
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FILED
\) 961102 san 101997
No. —= 196 OF THE CLERK
In THE
Supreme Court of the United States
OCTOBER TERM, 1996
STATE OF SOUTH CAROLINA; Davip M. BEASLEY, Gov-
ernor of the State of South Carolina; DouGtas E.
BRYANT, Commissioner of the South Carolina Depart-
ment of Health and Environmental Control; SouTH
CAROLINA DEPARTMENT OF HEALTH AND ENVIRON-
MENTAL CONTROL; SOUTH CAROLINA BOARD OF
HEALTH AND ENVIRONMENTAL CONTROL,
Petitioners,
Vv.
ENVIRONMENTAL TECHNOLOGY COUNCIL,
Respondent.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
PETITION FOR WRIT OF CERTIORARI
CHARLES MOLONY CONDON CHARLES F. LETTOw *
Attorney General MICHAEL A. MAzzuUCHI
KENNETH P. WooDINGTON TIMOTHY A. VOGEL
Senior Assistant CLEARY, GOTTLIEB, STEEN &
Attorney General HAMILTON
Post Office Box 11549 yr nreage N.W.
Columbia, South Carolina 29211 ashington, D.C. 20036
(803) 734-3680 (202) 728-2700
Attorneys for the State Attorneys for Petitioners
of South Carolina * Counsel of Record
[ Additional Attorneys Continued on Inside Cover]
POPE LILLE ATCT LO IAI TENSE RIE AMET RDN AMT TIS BE Sead “"}
WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 ~
CARLISLE ROBERTs, JR.
General Counsel
JACQUELYN S. DICKMAN
Assistant General Counsel
2600 Bull Street
Columbia, South Carolina 29201
(808) 734-4910
Attorneys for Commissioner,
South Carolina Department
of Health and
Environmental Control; and
South Carolina Board of
Health and Environmental
Control
January 10, 1997
TREVA G. ASHWORTH
Deputy Attorney General
Post Office Box 11549
Columbia, South Carolina 29211
(808) 734-8680
Attorney for David M. Beasley,
Governor of the State of
South Carolina
QUESTIONS PRESENTED
1. Whether Congress has displaced dormant Commerce
Clause precepts with respect to state hazardous waste pro-
grams that are approved by the Environmental Protection
Agency under the Resource Conservation and Recovery
Act upon satisfaction of a “consistency” test that includes
criteria for evaluating effects on interstate commerce, which
State programs operate “in lieu” of federal law.
2. Whether South Carolina’s neutral cap on disposal
of hazardous waste by burial and requirement that the
need for a new treatment facility be demonstrated by
reference to wastes generated in-state should be sustained,
whatever criteria for adjudging effects on interstate com-
merce are applied.
3. Whether a court, uncertain as to the meaning or
application of a federal agency’s statutory authority and
implementing regulations, should refer issues of their in-
terpretation to the agency under the doctrine of primary
jurisdiction.
4. Whether the court of appeals erred in employing
an abuse-of-discretion standard rather than a de novo
standard for review of the district court’s denial on legal
grounds of a motion for referral under the primary juris-
diction doctrine.
(i)
ii
PARTIES TO THE PROCEEDING
The Sierra Club, Energy Research Foundation, Citizens
for Clean Air and Water, Environmentalists, Inc., and
Citizens Asking for a Safe Environment (CASE) inter-
vened as defendants in this case in the district court. These
intervening defendants were also appellants in the court
of appeals.
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ........... i
PARTIES TO THE PROCEED! DE wetness cca e ii
Spence ssics bevipnasecty. gh OO RE LEE ES) 2
spas snsips aspera tags Ee oT REO ER OER OE ED 2
CONSTITUTIONAL PROVISIONS, STATUTES AND
REGULATIONS INVOLVED... 2
seb cep tgospeane one Syl Be OEE ENE OR ED eee 2
The federal MeeMoyreeime 4
South Carolina’s corresponding regulatory pro-
AMIEL cnsnnes ovnvenomsitrowtoontcomsicecesauerencvensian- stpetuieiese serecocee pos... 6
ie quot acsiray oN tT Ee aE 10
REASONS FOR GRANTING THE PETITION ..._. 12
A. Congress’ Exercised Commerce Power... 15
SO oe EEE NE ie BE RET OE 16
TO se i 18
3. The effect of EPA’s regulations ...............__ 19
i cee aa a pl 24
B. Neutral Provisions In South Carolina’s Pro-
sso nana, peaneeg Ce Ce TONE SOT 26
C. Referral to EPA Under the Primary Jurisdic-
ee crear, fe EE a 28
PN sdicalen nttense nce 30
iv
TABLE OF CONTENTS—Continued
Page
BP PTIE. Do csivisesicsiticiesins onivaledsteasticcdicl bated aapibaabaaaions la
BPP BD siecitisini satire tiistcabaraibicanbegcttenns capcliasensbadinnatchae . 3a
APPENDIX C ................. sis hinhecnepannipatiaseceieibachenidia wad lvabaaabaie 50a
BPP es BP setihincnntccsinnetusrarreniiasiacnacametbcneatians 80a
APPIN Boss Ak otitis Gea Oh 105a
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PX gw 121 bE t EERRR eee inlanaiinn onal Reotenn Sous: nediy mreeekrmntt ese 109a
BEET i a scisienicer- cease ns tanpterieethinsinticaaiiaptairieea Segasboeionaral 110a
GE sich ecicuisterchG amcncannditiggombaaniouinndsesinn eubmciaies 123a
BET URAIES ©. sastiinsnvrndintibaedagianickieionmnite 125a
Vv
TABLE OF AUTHORITIES
Cases Page
Blackwelder Furniture Co. v. Seilig Mfg. Co., 550
F.2d 189 (4th Cir. MOTE E cei es yee cs 10
C&A Carbone, Inc. v. Town of Clarkstown, 511
deca sPingcecthe aches, Ne eT RS Ma 13, 19, 25
City of Philadelphia v. New Jersey, 427 U.S. 617
selathing Loree EEOC NN I RT RT 6
Chemical Waste Mgmt. v. Hunt, 504 U.S. 384
CRONIN cererrnccenicnsient ct yee 13, 14, 25, 26
Cooley v. Board of Wardens, 53 U.S. (12 How.)
We AOE iets nus a 15
Fort Gratiot Sanitary Landfill, Inc. v. Michigan
Dep’t of Natural Resources, 504 U.S. 358
(1992) ...... ianewinhsnibe lapbiootistinscbeiiimmainicctaien ccc cs 13
Hazardous Waste Treatment Council v. Reilly,
938 F.2d 1890 (D.C. Cir. RUE due 29
Hughes v. Oklahoma, 441 U.S. 322 CITE Y asec: 15
Massachusetts v. Blackstone Valley Elec. Co., 67
F.3d 981 (1st Cir. SED coi. ene |S es 14, 15, 30
Merrion v. Jicarilla Apache Tribe, 455 U.S. 180
Stang pee ee Mente SNES CR ee ate 13, 15, 20, 21, 23
Middlesex County Sewerage Auth. v. National Sea
Clammers Ass’n, 458 U.S. 1 CURE os RS 29
New England Power Co. v. New Hampshire, 455
Wray Wwe SOMOMY Sos ch onsec ears et 24
Northeast Bancorp, Inc. v. Board of Governors of
the Fed. Reserve Sys., 472 U.S. 159 (1985) ....18, 15, 16,
22, 23
Northwest Airlines, Inc. v. County of Kent, 510
CR OOS (200K) cies te as 14, 21, 25, 29
Oregon Waste Systems, Inc. v. Department of
Envtl. Quality, 511 U.S. 93 CEOMO) sc hok 13
Pike v. Bruce Church, Inc., 397 U.S. 187 (1970) .... 28
CRT Y iii isc litical Pa RE 14, 29
ve Span Lospeca, | Se EEE ee 15, 18, 22, 24
Southern Pacifie Co. v. Arizona, 325 U.S. 761
eh A ENO NE TSE Ca 15
vi
TABLE OF AUTHORITIES—Continued
Page
White v. Massachusetts Council of Constr. Em-
ployers, Inc., 460 U.S. 204 (1988) ............... 18, 15, 21, 28
Constitutional Provision
i Be” GO eR & eRe eipieeer ance passim
Federal Statutes
Rik Tate B11 Sb SRROMREM CRON CREE? Bea IR ATI 2
EE The ARRAN tae ors iE RS re OR Nay 10
Anti-Head Tax Act, 49 U.S.C. § 1513(b) —.............. 25
Clean Air Act, 42 U.S.C. § 7411(c) (1995) ............... 25
Comprehensive Environmental Response, Compen-
sation, and Liability Act of 1980, as amended
(“CERCLA”), 42 U.S.C. $§ 9601-9675 (1995)... 2
Section 104(c) (9), 42 U.S.C. § 9604(c) (9)....2, 5, 18
Federal Insecticide, Fungicide, and Rodenticide
Act, 7 U.S.C. § 136w-1 (1980 & Supp. 1996) ...... 25
Federal Water Pollution Control Act, 83 U.S.C.
§ 1842(c) (1). (Sapp. 1906) ....2...ccccccccc.ecccsesesonsees 25
Solid Waste Disposal Act, 42 U.S.C. § 6991c(d) (2)
CSD ies iitd on ncsccthatiisctennnsiiaunmipiim ne tanbatiaiial tiie ie 25
Surface Mining Contro] and Reclamation Act, 30
U.S.C. §§ 1235, 1253 (1986 & Supp. 1996)........ 25
Resource Conservation and Recovery Act of 1976,
as amended (“RCRA”), 42 U.S.C. §§ 6901-6992k
CROGBD sicditceteec Shh Bis cei a ee. 2
Section 1002(b) (7)-(8), 42 U.S.C. § 6901
Cd CED aOR init ais cialis... esa a 8
Section 3004, 42 U.S.C. § 6924 0.00... 8
Section 3006, 42 U.S.C. § 6926 ......... passim
Section 3009, 42 U.S.C. § 6929 ........ 0. 18
Federal Regulations and Related Materials
ee AY |, MEE EI cee TERETE re eos s 4
GO CF ie a Bite te iG ae ies 4
9B Gar ak SD etnies passim
40 GPR. Se ee a? Siti eee: 23
45 Fed. Reg. 38,290 (May 19, 1980) ...........000. 5
50 Fed. Reg. 46,487 (November 8, 1985) ...........0........ 6,18
vii
TABLE OF AUTHORITIES—Continued
60 Fed. Reg. 42,046 Oe. STUN) 9
Memorandum from Lee M. Thomas to Regional
Administrators, “Policy Regarding Hazardous
Waste Management Capacity and RCRA Con-
sistency Issues” (December ey Se 5
State Statutes, Regulations, and Executive Orders
1989 South Carolina Act No. 196 (June 14, 1989) .. 2, 7, 9,
10
1990 South Carolina Act No. 590 (June 7, 1990)... 2, 8, 9,
10, 26
S.C. Code Ann. § 44-56-60 CUED winincite terse. ae 7s 8
S.C. Code Ann. § 44-56-1380 7
S.C. Code Ann. § 49-56-2050. 7
South Carolina Executive Order No. 89-17, issued
Aged &. 1900 fetibtdistnbteloiensibdgicis oo 7, 8,9
South Carolina Executive Order No. 89-25, issued
ven dion feng ee ne OE REAR a ke
South Carolina Department of Health and Envi-
ronmental Control (“DHEC”) Regulation 61-99
(January 12, oa | MRS sclera ee ae 8, 9, 10, 27
Miscellaneous
H.R. Rep. No. 1491, 94th Cong., 2d Sess. (1976)... 17
S. Rep. No. 11, 99th Cong., Ist Sess. ( eee? 19
Letter from Greer C. Tidwell, EPA Regional Ad-
ministrator for Region IV, to Michael D. Jarrett,
Director of South Carolina Department of
Health and Environmental Control (“DHEC”)
wig Sg Msgs OO LE A iia 9
ministrator for Region IV, to the Hon. Carroll
A. Campbell, Jr., Governor of South Carolina,
I NE cine 9
Opinion by T. Travis Medlock, Attorney General
NOON ROOT ces ey are 9
IN THE
Supreme Court of the United States
OCTOBER TERM, 1996
No.
STATE OF SOUTH CAROLINA; Davip M. BEASLEY, Gov-
ernor of the State of South Carolina; DouGLas E.
BRYANT, Commissioner of the South Carolina Depart-
ment of Health and Environmental Control; SouTH
CAROLINA DEPARTMENT OF HEALTH AND ENVIRON-
MENTAL CONTROL; SOUTH CAROLINA BOARD OF
HEALTH AND ENVIRONMENTAL CONTROL,
Petitioners,
ENVIRONMENTAL TECHNOLOGY COUNCIL,
Respondent.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
PETITION FOR WRIT OF CERTIORARI
The State of South Carolina, David M. Beasley, Gov-
ernor of the State of South Carolina, Douglas E. Bryant,
Commissioner of the South Carolina Department of
Health and Environmental Control, the South Carolina
Department of Health and Environmental Control, and
the South Carolina Board of Health and Environmental
Control (“South Carolina” or “the State”), respectfully
petition for a writ of certiorari to review the judgment of
the United States Court of Appeals for the Fourth Circuit
in this case.
2
OPINIONS BELOW
The opinion of the court of appeals is reported at 98
F.3d 774. App. la. The opinion of the district court is
reported at 901 F. Supp. 1026. App. 28a.
JURISDICTION
The judgment of the court of appeals was entered on
October 15, 1996. The jurisdiction of this Court is in-
voked under 28 U.S.C § 1254(1).
CONSTITUTIONAL PROVISIONS, STATUTES
AND REGULATIONS INVOLVED
U.S. Const. art. I, § 8, cl. 3, provides that “The Con-
gress shall have Power . . . To regulate Commerce .. .
among the several States.”
Section 3006 of the Resource Conservation and Re-
covery Act, as amended, 42 U.S.C. § 6926 (1995), is set
out in the Appendix at 105a-107a. Paragraph 104(c) (9)
of the Comprehensive Environmental Response, Compen-
sation, and Liability Act, as amended, 42 U.S.C. § 9604
(c)(9) (1995), is set out in the Appendix at 108a. The
Environmental Protection Agency’s “consistency” regula-
tion, 40 C.F.R. § 271.4 (1995), is set out in the Appendix
at 109a.
South Carolina Acts No. 196 of 1989 and No. 590 of
1990, Executive Orders Nos. 89-17 and 89-25, and De-
partment of Health and Environmental Control Regulation
61-99 are set out in the Appendix at 125a-147a.
STATEMENT
Exercising its power under the Commerce Clause, US.
Const. art. I, § 8, cl. 3, Congress enacted the Resource
Conservation and Recovery Act of 1976, as amended
(“RCRA”), 42 U.S.C. $§ 6901-6992k (1995), and the
Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended (“CERCLA”),
as ptetals i atin deetine As
3
42 US.C. §§ 9601-9675 (1995), to address treatment,
storage, and disposal of hazardous wastes and remediation
of contamination from hazardous substances and con-
stituents, respectively. Both RCRA and CERCLA con-
template that States will establish counterpart regulatory
programs. RCRA explicitly provides that State programs
for regulating hazardous wastes, if “consistent” with the
Federal and other State programs, shall, upon approval
by the Environmental Protection Agency (“EPA”), op-
erate “in lieu” of the Federal program. RCRA § 3006,
42 U.S.C. § 6926(b).
The court of appeals’ decision in this case invalidated
on dormant Commerce Clause grounds a set of laws and
rules that are part of South Carolina’s hazardous waste
regulatory program. The court of appeals struck down
these laws and rules notwithstanding the fact that South
Carolina’s program has been approved by EPA and thus
has been found to satisfy the Statutory standard of con-
sistency established by Congress in RCRA and defined
and implemented by EPA. Despite this Court’s precedents
to the contrary, the court of appeals concluded that a fed-
eral agency’s implementing regulations and its actions
under those regulations are not to be considered in decid-
ing whether a federal statute has displaced the dormant
Commerce Clause. The court’s application of dormant
Commerce Clause analysis to South Carolina’s program,
even though it was approved by EPA under the RCRA
standard, contravenes Congress’ mandate that interstate
issues respecting hazardous waste regulatory programs be
addressed through RCRA, by EPA. In effect, the court
of appeals held that statz laws which are approved by a
federal agency under a federal statute can nonetheless be
struck down by the courts under the dormant Commerce
Clause, an unprecedented and impermissible result.
Moreover, the court of appeals struck down two provi-
sions, a neutral cap on total amounts to be landfilled and
a “needs” regulation, that match ones that have been
expressly approved by this Court as permissible under
4
the dormant Commerce Clause. Whatever standard is
applied for evaluating effects on interstate commerce,
whether derived from federal statute or dormant Com-
merce Clause jurisprudence, the court’s conclusion on
these provisions is improper and should be set aside.
The federal regulatory regime.
RCRA is a comprehensive federal statute governing
identification, listing, treatment, storage, transportation,
and disposal of hazardous wastes. In enacting RCRA,
Congress provided that States might develop their own
programs to regulate such wastes. RCRA § 3006, 42
U.S.C. § 6926(b). RCRA subjects such programs to a
standard of “consistency”: to be approved by EPA, each
State’s RCRA program must be “consistent with the Fed-
eral or State programs applicable in other States.” Id.
State programs that are approved by EPA under this
consistency requirement operate “in lieu of the Federal
program.” Jd. Thus, an approved state program operates
in place of and with the force of federal law. RCRA
§ 3006, 42 U.S.C. § 6926(d).
EPA is responsible for implementing RCRA’s statutory
mandates. EPA’s regulations for authorization of state
programs, set out in 40 C.F.R. Part 271, specify “the
procedures EPA will follow in approving, revising, and
withdrawing approval of State programs and the require-
ments State programs must meet to be approved by the
Administrator under sections 3006(b), (f) and (h) of
RCRA.” 40 C.F.R. § 271.1(a). In accord with RCRA
§ 3006, EPA’s regulations provide that the Agency musi
authorize a state program unless it is found inconsistent
with either the federal program outlined in RCRA or the
programs already approved in other States. 40 C.F.R.
§§ 271.1(e), 271.4.
Subsection (a) of the “consistency” provisions in 40
C.F.R. § 271.4 prescribes a “reasonableness” test for
judging effects of a State’s program on movement of
EEE
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5
hazardous waste in interstate commerce. App. 109a.
Specifically, “[aJny aspect of the State program which
unreasonably restricts, impedes, or operates as a ban on
the free movement across the State border of hazardous
wastes from or to other States . . . shall be deemed incon-
sistent” and thus not in compliance with RCRA § 3006.
40 C.F.R. § 271.4(a). EPA adopted this “reasonable-
ness” test under RCRA after giving explicit consideration
to statutory “consistency” requirements, see 45 Fed.
Reg. 33,290, 33,395 (May 19, 1980), and taking ac-
count of precedents interpreting the “dormant” Commerce
Clause. Id.
Congress has also addressed interstate waste disposal
issues under the ambit of CERCLA. In 1986, Congress
added paragraph 104(c)(9) to CERCLA to address the
reluctance of some States and localities to permit con-
struction of new hazardous waste treatment and disposal
facilities. Paragraph 104(c) 9) requires each State to
“assure the availability of hazardous waste treatment or
disposal facilities” for all hazardous wastes generated
within such State over the coming twenty years. CERCLA
§ 104(c)(9), 42 U.S.C. § 9604(c)(9). The facilities
may be either “within the State or outside the State in ac-
cordance with an interstate agreement or regional agree-
ment or authority.” Id,
EPA coordinated the implementation of this capacity-
assurance provision of CERCLA with EPA’s regulatory
regime under RCRA. Particularly, EPA decided to use
the process by which Capacity Assurance Plans are de-
veloped, evaluated, and approved as the primary means of
addressing “State actions which may be inconsistent with
the federal Resource Conservation and Recovery Act pro-
gram.” Policy Mem. (Dec. 23, 1988), App. 123a. As a
result, the RCRA state-authorization withdrawal process
is to be used secondarily only “after determining that the
CERCLA process has proven ineffective.” Id.
6
South Carolina’s corresponding regulatory program.
In 1985, EPA granted South Carolina authorization
under RCRA § 3006 to operate its own hazardous waste
program in lieu of the federal program.’ See 50 Fed. Reg.
46,347 (November 8, 1985), App. 110a. In doing so,
EPA explained its use of the “consistency” regulation. /d.
at 46,438-440, App. 116a-122a. EPA noted that although
Section 271.4(a) had some roots in dormant Commerce
Clause standards, e.g., City of Philadelphia v. New Jersey,
437 U.S. 617 (1978), the “Agency is not required to
adopt the Constitutional test for impediments or restric-
tions in interpreting its own regulations, and declines to
do so here.” 50 Fed. Reg. at 46,439, App. 117a. EPA
disagreed “that any disparity in treatment between in-
State and out-of-State wastes is per se unreasonable.” I/d.
(emphasis in original). Instead, EPA determined that
RCRA requires “all relevant factors” to be considered in
assessing the permissibility of state hazardous waste laws
with interstate effects. Id.
With the advent, in 1986, of the federal capacity-assur-
ance requirements under CERCLA, South Carolina made
adjustments to its then-recently-approved program. South
Carolina was and still is one of the few States which have
large existing hazardous waste treatment and disposal fa-
cilities. Consequently, South Carolina has borne the brunt
of the failure of other States to provide adequate, or in
some cases, any, commercial treatment and disposal ca-
1 EPA’s application of the consistency requirements in Section
271.4 to South Carolina’s RCRA program required resolution of
a challenge by the Hazardous Waste Treatment Council, respondent
in this case (which has since changed its name), to the moderately
higher fee South Carolina sought to impose on disposal of out-
of-state waste. At issue was whether the disparate fee schedule
was unconstitutional and whether it complied with Section 271.4(a).
EPA determined that the different fee schedule was not unreason-
able, and South Carolina’s hazardous waste program including the
fee schedule was approved on November 8, 1985. 50 Fed. Reg. at
46,438-440, App. 116a-122a.
cn en fT
7
pacity for hazardous wastes. In developing its Capacity
Assurance Plan, South Carolina had to provide for its own
wastes, allocate capacity for out-of-state wastes that the
State accepted under an interstate or regional agreement,
and assure that the existing permitted capacity was not
exhausted by demands from States that did not provide
disposal capacity for their wastes or enter into appropriate
agreements. To deal with these issues, South Carolina re-
vised its EPA-approved hazardous waste regulatory pro-
gram in three respects pertinent to this litigation.
The first adjustment was made in Act No. 196 of 1989.
App. 125a. Section 9 of that Act prohibited the treatment,
storage, or disposal in South Carolina of hazardous waste
generated in a State that both (1) prohibited the treat-
ment, storage, or disposal of such waste, and (2) “hafd]
not entered into an interstate or regional agreement for the
safe” treatment, storage, or disposal in another State. Act
No. 196, §9, amending S.C. Code Ann. § 44-56-130,
App. 127a.° There was no requirement that the regional
agreement be one to which South Carolina was a signa-
tory. Id.*
2In October 1989, South Carolina joined the States of Alabama,
Kentucky, and Tennessee in a SARA Capacity Assurance Regional
Agreement. In November of 1989, the State of North Carolina was
added to that Regional Agreement, but North Carolina did not
fulfill its commitments under the Agreement and it was auto-
matically removed from the Agreement as a consequence. In the
Regional Agreement, the Party States committed to provide specific
facilities.that the States needed to make up deficits in treatment
and disposal capacity for particular types of waste.
* Section 5 of Act No. 196 expressed a nondiscriminatory, preca-
tory “preference” for the disposal of in-state waste at facilities
within the State. Jd. §5, adding S.C. Code Ann. § 44-56-205.
* Act No. 196 superseded and partially codified Executive Order
No. 89-17, which provided that permitted disposal facilities in the
State were not to accept hazardous wastes generated in another
State where the waste was banned or prohibited from disposal in
that State by law or regulation, and where South Carolina had no
interstate or regional agreement with such State. Executive Order
8
The second adjustment was made to South Carolina’s
neutral cap on land disposal of hazardous waste. At the
time, South Carolina had authorized disposal of up to
135,000 tons of hazardous waste per year at commercial
land-disposal facilities in the State. S.C. Code Ann.
§ 44-56-60(a). In accord with RCRA’s mandate to re-
duce landfill disposal whenever possible, see 42 U.S.C.
$§ 6901(b)(7)-(8), 6924, the State legislature enacted
Act No. 590 of 1990 to provide for a phased decrease
in the amount of hazardous waste disposed of in landfills.
App. 129a. The existing statutory authorization of
135,000 tons was reduced to 120,000 tons effective July
1, 1990, and to 110,000 tons effective July 1, 1991. App.
13la. In addition, each disposal facility was to reserve
at least the same capacity used during the previous year
for disposal of hazardous waste generated in-state.*
Third, Department of Health and Environmental Con-
trol (“DHEC”) Regulation 61-99 became effective Janu-
ary 12, 1990. App. 134a. This rule, commonly called the
“needs regulation,” requires that an applicant seeking a
permit to expand an existing treatment facility or to build
a new facility shall demonstrate a need for the increased
capacity. For purposes of demonstrating the defined
amount of “need,” out-of-state hazardous waste is not
included in the applicant’s calculations. DHEC Reg.
61-99, § III(C), App. 136a.
No. 89-17 also established a preference for disposal of waste gen-
erated within South Carolina.
5 Act No. 590 also provided that the amount of waste disposed
of in the State could exceed the specified limit if the South Carolina
Department of Health and Environmental Control (“DHEC’’) de-
termined that (1) an increase in disposal of waste from a particu-
lar in-state site was “necessary to protect the health and safety” of
the South Carolina citizenry, or (2) at least 110,000 tons of in-state
waste was disposed of by land in the State during the previous
year. This Act superseded Executive Order No. 89-25.
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9
South Carolina’s Capacity Assurance Plan was timely
submitted to EPA on October 17, 1989. Each of the
legislative, executive, and regulatory actions at issue here
was included in the Plan or was projected for inclusion.*
The SARA Capacity Assurance Regional Agreement to
which South Carolina was a party, see supra, p. 7 n.2, was
also included as part of South Carolina’s Plan.
After preliminarily reviewing South Carolina’s Capacity
Assurance Plan, EPA requested that South Carolina ad-
dress whether the limitations of Executive Order No.
89-17 and Act No. 196 satisfied the RCRA “consistency”
requirement. Letter from Greer C. Tidwell, EPA Re-
gional Administrator for Region IV, to Michael D.
Jarrett, Director of South Carolina Department of Health
and Environmental Control (July 6, 1989). South Caro-
lina responded with a formal Opinion of its Attorney
General that the provisions were consistent with federal
law and did not violate the Commerce Clause. Opinion
by T. Travis Medlock, Attorney General (August 23,
1989). EPA thereafter approved the Plan and com-
mended the State for its efforts. Letter from Greer C.
Tidwell, EPA Regional Administrator for Region IV, to
the Hon. Carroll A. Campbell, Jr., Governor of South
Carolina (May 10, 1990).
Thereafter, in 1995, EPA issued a notice that it had
made a final decision approving South Carolina’s hazard-
ous waste regulatory program under RCRA in all respects.
60 Fed. Reg. 42,046 (Aug. 15, 1995).
® Executive Orders Nos. 89-17 and 89-25 and Act No. 196 were
included in the submission. Regulation 61-99 was then a proposed
permanent regulation. In the submission South Carolina advised
EPA that legislation was expected to be passed which would enact
into law quantitative disposal limits reflecting the amounts speci-
fied in Executive Order No. 89-25. This was effectuated in Act
No. 590.
10
This litigation.
On June 27, 1990, respondent Environmental Tech-
nology Council (“ETC”), then named the Hazardous
Waste Treatment Council, filed suit against South Caro-
lina in federal district court, seeking declaratory and
injunctive relief primarily based upon claims that Act
No. 196 of 1989, Act No. 590 of 1990, and DHEC
Reg. 61-99 violated the Commerce Clause, U.S. Const. art
I, § 8, cl. 3.7 On January 11, i991, by a Preliminary In-
junction and Order, the district court “declar[ed] invalid”
and enjoined enforcement of the South Carolina laws, exe-
cutive orders, and regulations that had been put at issue.
Hazardous Waste Treatment Council v. South Carolina,
766 F. Supp. 431 (D.S.C. 1991), App. 80a. Appeal was
taken to the United States Court of Appeals for the Fourth
Circuit, which, assessing ETC’s claims under the prelimin-
ary injunction standard of Blackwelder Furniture Co. v.
Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977), held that
the “likelihood of irreparable harm to the plaintiff” would
be “measurably greater” if the injunction were denied.
Hazardous Waste Treatment Council v. South Carolina,
945 F.2d 781, 795 (4th Cir. 1991) (““HWTC”), App.
50a, 78a. The court of appeals thus affirmed entry of the
preliminary injunction, while remanding to the district
court with instructions for modification to strike the words
implying a declaration of invalidity and to narrow the pre-
liminary injunction in specified respects. See id. at 787
n.9, 795, App. 63a, 78a.
The court of appeals’ opinion in HWTC was rendered
on September 20, 1991, and the mandate issued on Octo-
ber 21, 1991. On November 21, 1991, South Carolina
filed a motion requesting the district court to conform its
preliminary injunction to the court of appeals’ mandate.
Shortly thereafter, in light of the uncertainties expressed
7 Jurisdiction of Hazardous Waste Treatment Council’s complaint
was predicated upon 28 U.S.C. § 1881.
Re ee
1]
by the court of appeals regarding the proper application
of the consistency provisions of RCRA § 3006 and 40
C.F.R. § 271.4,° South Carolina moved for a stay of the
proceedings and referral of such questions to EPA’s pri-
mary jurisdiction. ETC contested this motion and on Feb-
ruary 3, 1992 moved for summary judgment on its Com-
merce Clause claims. The district court heard argument on
ETC’s motion for summary judgment on April 30, 1992.°
Nearly three years later, on April 13, 1995, the district
court entered its Findings of Fact, Conclusions of Law,
and Order (1) denying South Carolina’s motion to refer
the RCRA-consistency issue to EPA’s primary jurisdic-
tion, (2) granting ETC’s motion for summary judgment
on its Commerce Clause claims and entering a permanent
injunction against the challenged provisions, and (3) deny-
ing as moot South Carolina’s motion to conform the pre-
liminary injunction to the court of appeals’ 1991 mandate.
App. 49a. South Carolina filed a timely appeal.
On October 15, 1996, the court of appeals issued an
opinion affirming the district court’s summary judgment.
In holding that the dormant Commerce Clause provided
the standard applicable to this case, the court said there
was an “absence of a clear Congressional statement author-
izing discrimination,” Environmental Technology Council
8 In its 1991 decision, the court of appeals reviewed RCRA § 3006
and EPA’s implementing regulation and explicitly noted its un-
certainty:
We are still unsure, however, of whether EPA was attempting
to state (1) that some disparities [in treatment of in-state
and some out-of-state wastes] might be constitutional, (2)
that even if the disparities would be unconstitutional, EPA
could approve the programs as “consistent,” or (3) that EPA
had the authority to permit otherwise unconstitutional state
actions.
945 F.2d at 794, App. 76a.
® Subsequent hearings were held on August 5 and September 20,
1994,
12
v. Sierra Club, 98 F.3d 774, 783 (4th Cir. 1996), App.
15a. The court of appeals accorded no weight to EPA’s
implementing regulations in this regard, holding that
“fe]ven if EPA had expressly approved the laws in ques-
tion, we could not do so without express congressional
authorization.” /d. at n.17, App. 17a. The court of
appeals addressed the neutral cap and the needs regula-
tion aiong with the other aspects of the challenged laws
for purposes of its analysis, notwithstanding the circum-
stance that these two provisions set overall limits on dis-
posal capacity not dependent on the origin or source of the
waste. Broadly characterizing the neutral cap and needs
regulation as part of a program that “favors in-state
interests over out-of-state interests,” the court of appeals
struck down the “overall limit[s]” as “discriminatory.” 98
F.3d at 788, App. 24a. Finally, reviewing for abuse of
discretion the district court’s decision not to refer this
case to EPA’s primary jurisdiction, the court of appeals
characterized the question to be referred as “whether
South Carolina’s laws are constitutional,” and concluded
that “[t]he EPA’s special expertise is not needed to decide
a question of law in a constitutional matter.” Jd. at 789,
App. 27a.
REASONS FOR GRANTING THE PETITION
This case raises important questions regarding whether
dormant Commerce Clause criteria are supplanted by a
comprehensive federal regulatory regime that authorizes
approved state programs to operate for federal as well as
state purposes. The court of appeals struck down on
Commerce Clause grounds South Carolina laws and rules
that were approved by EPA under a federal regulatory
regime that includes a review for effects on interstate
commerce as part of the statutory approval process. Be-
cause EPA’s approval of South Carolina’s laws and rules
meant that South Carolina’s program operated “in lieu”
of federal law, 42 U.S.C. § 6926(b), the court of appeals
7
ee ee ee ee FA
: ind Spits Res a
REP OE ete Oe Sd
13
in effect used the dormant Commerce Clause to invalidate
federal law.
This case thus squarely presents the important question,
identified but pretermitted (because not raised below)
in Chemical Waste Management vy. Hunt, 504 U.S. 334,
346 n.9 (1992), of whether the RCRA consistency stand-
ard and federal approval under that standard displace
the dormant Commerce Clause. In resolving that issue
in this case, the court of appeals refused to give effect to
a series of precedents of this Court holding that an
administrative agency’s construction of a federal statute,
and of its own regulations implementing that statute, has
a direct bearing on whether dormant Commerce Clause
criteria are in fact supplanted. E.g., Northeast Bancorp,
Inc. v. Board of Governors of the Fed. Reserve Sys., 472
U.S. 159 (1985); White v. Massachusetts Council of
Constr. Employers, Inc., 460 U.S. 204 (1983); Merrion
v. Jicarilla Apache Tribe, 455 U.S. 130 (1982). Apart
from RCRA, the decision in this case is significant for a
number of other federal-state regulatory programs that
follow the pattern exemplified by RCRA. In refusing to
give weight to the approval of a federal agency—and to
the criteria adopted by the agency—the court of appeals’
dec’sion in this case calls into queStion the validity of
EPA-approved hazardous waste regulatory programs in
operation in a number of States, and, more generally,
undermines a basic federal-state regulatory model em-
ployed by Congress.”
In addition, contrary to this Court’s guidance in Chem-
ical Waste Management, the court of appeals refused to
1° Tn the area of solid waste regulation, which unlike hazardous
waste regulation Congress has largely left to states and localities,
challenges to state and local laws under the dormant Commerce
Clause have been frequent. See C&A Carbone, Inc. v. Town of
Clarkstown, 511 U.S. 888 (1994) ; Oregon Waste Systems, Inc. v.
Department of Envtl. Quality, 511 U.S. 98 (1994); Fort Gratiot
Sanitary Landfill, Inc. v. Michigan Dep’t of Natural Resources,
504 U.S. 358 (1992).
14
uphold two provisions, the neutral cap and the needs
regulation, which place “an evenhanded cap on the total
tonnage landfilled” in the State. 504 U.S. at 345. Under
either the RCRA consistency standard or a dormant
Commerce Clause standard, the court of appeals erred in
striking down provisions which regulated overall waste
disposal through neutral means.
Finally, the court of appeals wrongly approved the
district court’s refusal to refer questions of the interpre-
tation and application of the RCRA “consistency” stand-
ard and EPA’s “reasonableness” regulations to the Agency
under the primary jurisdiction doctrine. 98 F.3d at 789,
App. 27a. The court did so despite its observations that
“EPA’s position on what constitutes ‘reasonableness’ has
changed over time,” id. at 783, App. 14a, and “EPA has
taken seemingly contradicting positions at different times
on how it will apply and interpret the consistency require-
ment.” /d. at 783 n.14, App. 14a. The court of appeals
achieved this result notwithstanding the open questions
of statutory and regulatory interpretation and applica-
tion by simply assuming that those questions did not
matter because a constitutional question of law was at
issue. Id. at 789, App. 27a. This approach to the pri-
mary jurisdiction doctrine in a Commerce Clause case is
wrong. A dormant Commerce Clause question arises at
all only if the pertinent federal statutes do not sanction
the State’s law at issue. EPA is charged by statute with
implementing the laws that are at issue in ti.at regard in
this case. As to the primary jurisdiction doctrine, the
court of appeals’ decision is contrary to Ricci v. Chicago
Mercantile Exchange, 409 U.S. 289 (1973) (ruling that
reference should be made to Commodity Exchange Com-
mission of questions concerning rules adopted under Com-
modity Exchange Act, where underlying claims were
brought under antitrust laws), and to dicta in Northwest
Airlines, Inc. v. County of Kent, 510 U.S. 355, 366 n.10
(1994), and is in conflict with Massachusetts v. Black-
hess ci a a ee ri a
15
stone Valley Elec. Ce., 67 F.3d 981 (1st Cir. 1995)
(vacating partial summary judgment entered by district
court and ordering referral to EPA of “legal” question
whether ferric ferrocyanide is a “cyanide” within the
meaning of EPA regulations).
A. Congress’ Exercised Commerce Power
The Constitution’s grant to Congress of the power to
regulate commerce among the several States prohibits by
implication State actions that burden interstate commerce,
at least where the matters have not been addressed by a
federal statute. See South-Central Timber Dev., Inc. v.
Wunnicke, 467 U.S. 82, 87 (1984); Hughes v. Okla-
homa, 441 U.S. 322, 325 (1979); Cooley v. Board of
Wardens, 53 U.S. (12 How.) 143 (1852). The dormant
Commerce Clause, however, is but “a limitation on the
power of the States,” South-Central Timber, 467 U.S. at
87, and, by exercising its power under the Commerce
Clause, Congress may “permit the states to regulate ...
_ commerce in a manner which would otherwise not be per-
missible,” Southern Pacific Co. vy. Arizona, 325 U.S. 761,
769 (1945). See Northeast Bancorp, Inc. v. Board of
Governors of the Fed. Reserve Sys., 472 U.S. 159, 174
(1985); White v. Massachusetts Council of Constr. Em-
plovers, Inc., 460 U.S. 204 (1983); Merrion v. Jicarilla
Apache Tribe, 455 U.S. 130 (1982). To be effective,
such authorization must be “unmistakably clear” from
the plain meaning of the statute or regulations involved,
or from independent evidence of congressional intent.
South-Central Timber, 467 U.S. at 91. Where federal
law “unmistakably” creates a standard different from
those of the dormant Commerce Clause, the dormant
Commerce Clause no longer applies, and the challenged
State laws are tested by the requirements of the pertinent
federal statute or regulation.
16
1. RCRA.
As a result of the enactment of RCRA and amend-
ments to CERCLA, “the commerce power of Congress
is not dormant, but has been exercised by that body,”
Northeast Bancorp, 472 U.S. at 174, and the dormant
Commerce Clause standards have been displaced by statu-
tory ones. In RCRA, Congress established a compre-
hensive scheme for the regulation of hazardous wastes,
and provided that States may operate their own programs
in place of the federal program if the state program meets
the statutory standard of consistency. In addition to
specifying the standard by which state programs are to be
measured, Congress provided procedures for federal re-
view, by EPA, of proffered state programs.
Implementing RCRA’s mandate, EPA adopted regula-
tions to flesh out the federal approval process, and in
doing so, expressly considered the effects that state regu-
lation might have on interstate commerce. EPA inter-
preted and applied the RCRA consistency standard as
creating a federal standard distinct from those of the
dormant Commerce Clause. In its regulations, EPA pre-
scribed a multi-factored “reasonableness” test by which
State programs are to be measured for consistency and
expressly rejected any notion that the dormant Commerce
Clause would supply the standard of reasonableness.
By creating a statutory standard of consistency and by
providing that state programs deemed “consistent with
the Federal or State programs applicable in other States”
shall be approved and operate “in lieu of” federal law,
RCRA § 3006, 42 U.S.C. § 6926(b), Congress has ex-
pressed its intention to exercise its Commerce Clause
power and to create a statutory standard for adjudging
state programs. Congress has manifestly not left the
nation’s policy respecting interstate movement in hazard-
ous wastes to be addressed under a “dormant” standard.
The legislative history of RCRA is explicit that Congress
was well aware that hazardous waste management in-
17
volved the potential for interstate conflicts and that it in-
tended for such issues to be addressed under the RCRA
statutory scheme. The House Report of the bill that
became RCRA noted that:
{t]he fact that waste itself is in interstate and inter-
municipal commerce has raised a number of prob-
lems. (Generally, hazardous waste is more likely to
be the subject of interstate transportation than is non-
hazardous industrial or municipal waste.) Several
jurisdictions, including some states, have attempted
to prohibit the importation of waste.
H.R. Rep. No. 1491, 94th Cong., 2d Sess. 10 (1976).
Congress intended the consistency requirement under
Section 3006(b) to address disparities in state programs
and the consequent effects on interstate commerce:
The general purpose of having federal minimum
standards for hazardous waste disposal, with the op-
tion of state implementation of state programs equiv-
alent to the federal program, is (1) it provides uni-
formity among the states as to how hazardous wastes
are regulated, (2) it provides industry and commer-
cial establishments that generate such wastes uniform-
ity among states, (3) by providing such uniformity a
state with environmentally sound laws does not drive
business out of the state to a state which, for eco-
nomic reasons, decides to be a dumping ground for
hazardous wastes... .
Id. at 30. In exercising its Commerce Power to create a
statutory standard of consistency, Congress displaced the
“dormant” Commerce Clause.
In this vein, Congress empowered EPA to develop and
implement regulations for RCRA thai would ensure
consistency with the federal program and among state
laws. Using that authority, EPA has implemented the
statutory consistency requirement by adopting 40 C.F.R.
§ 271.4. Under RCRA as applied by EPA, only an aspect
of a state program which “uiireasonably restricts, impedes,
18
or operates as a ban” on interstate movement of hazard-
ous waste “shall be deemed inconsistent” and thus not
permitted by federal law. 40 C.F.R. § 271.4(a) (empha-
sis added). In implementing this regulation, EPA rejected
the suggestion that “RCRA section 3006(b) or any other
section of RCRA requires the Agency to adopt the
[dormant Commerce Clause] Constitutional test as the
test for consistency or unreasonable restrictions or impedi-
ments.” 50 Fed. Reg. at 46,439, App. 118a. Indeed,
EPA requires that “all relevant factors’—not just the
existence of burdens—be considered in assessing the
permissibility of state laws with interstate effects. Jd.™*
The RCRA consistency standard, as implemented by
EPA, thus displaces the dormant Commerce Clause with
respect to approved state programs for hazardous waste
disposal. South-Central Timber, 467 U.S. at 91.
2. CERCLA.
The governing nature of RCRA’s consistency provisions
regarding interstate effects is specifically reinforced by
Capacity assurance requirements adopted by Congress as
amendments to CERCLA in 1986. As noted supra,
p. 5, CERCLA § 104(c)(9) requires States to provide
assurances “deemed adequate by the President” of the
“availability of hazardous waste treatment or disposal
facilities” sufficient for the State’s requirements over the
next twenty years. The facilities must be “within the
State or outside the State in accordance with an interstate
agreement or regional agreement or authority.” 42 U.S.C.
§ 104(c)(9)(B).
The “unmistakably clear” import of this requirement
is that States such as South Carolina may—in fact, must—
11 EPA recognized that state requirements “may have some
adverse effect on interstate commerce.” 50 Fed. Reg. at 46,439,
App. 118a. Construing the mandates of RCRA §§ 3006 and 3009,
EPA concluded that not every “disparity in treatment between
in-State and out-of-State wastes is per se unreasonable” or un-
lawful. Id.
19
“interfere” with interstate commerce in hazardous waste
disposal capacity. For a State meaningfully to assure
EPA that disposal capacity will be available for its wastes,
it can and must address the existence and use of such
facilities within the ambit of regional agreements.
The legislative history of paragraph 104(c)(9) demon-
strates Congress’ intent to authorize States to interfere
with interstate commerce as necessary to comply with the
new provision. Congress expressly approved “[u]se of
binding agreements through interstate compacts guaran-
teeing access to a facility” as “one example of how a
State may provide the requisite assurances.” S. Rep. No.
11, 99th Cong., Ist Sess. 22 (1985) (emphasis added).
If a State were to be forbidden under the dormant Com-
merce Clause from putting limits on access to its facilities
by another State, it could not enter into such binding
agreements. It could not guarantee access for waste from
States party to regional agreements without being able to
restrict access for waste from others. As Congress recog-
nized, such restrictions will inescapably burden interstate
commerce. Accordingly, in marked contrast to cases such
as C&A Carbone, supra, Congress’ direction that States
enter into agreements which will guarantee access to
appropriate facilities plainly constitutes a finding that
“the unobstructed flow of interstate commerce itself is
unable to solve the local problem,” 511 U.S. at 393,
involved in siting of hazardous waste facilities.
3. The effect of EPA’s regulations.
Its attention gripped by the “Constitutional” nature of
the issues in this case, the court of appeals gave short
shrift to the interstate-effects aspects of the RCRA “con-
sistency” standard. In this regard, the court of appeals
refused to credit EPA’s contrary conclusion—-adopted as
law in Section 271.4—that RCRA does create a distinct
standard of “reasonableness” which is more permissive
20
than the dormant Commerce Clause.” It acknowledged
the conflicting “reasonableness” standard, but “reject[ed]
. . . South Carolina’s argument that EPA’s reasonableness
standard should displace a constitutional dormant Com-
merce Clause analysis.” 98 F.3d at 783, App. 14a. The
court of appeals opined that, “[e]ven if EPA had ex-
pressly approved the laws in question, we could not do so
without express congressional authorization.” Jd, at 784
n.17, App. 17a. This view of the Agency’s role in the
federal system is plainly at odds with the particular
statute at issue and with this Court’s jurisprudence.
For example, in Merrion v. Jicarilla Apache Tribe,
supra, this Court rejected a dormant Commerce Clause
challenge brought by oil and gas producers against a
severance tax imposed by the Jicarilla Apache Tribe on
oil and gas extracted from tribal lands. This Court held
that because the tax had “received the requisite approval
from the Secretary [of the Interior]” acting pursuant to
his regulatory authority, the tax was insulated from dor-
mant Commerce Clause review. 455 U.S. at 155. The
Court based that holding on the federal approvals required
by the Indian Reorganization Act, 25 U.S.C. §§ 476,
477. The cited provisions did not specifically mention
taxing authority; rather, they provided broadly that
changes in an Indian Tribe’s constitution (which had been
necessary to authorize the severance tax) had to receive
federal approval. Merrion thus relied not on any evidence
of Congressional intent respecting the burdens of the tax
On interstate commerce, but on the fact that the tax had
received a federal sanction by an agency. “Congress
ha[d] affirmatively acted by providing a series of federal
checkpoints that must be cleared before a tribal tax can
12 The court of appeals therefore also did not consider that the
CERCLA capacity assurance process would be a factor in applying
the “reasonableness” criterion.
21
~
take effect,” and thus the federal commerce power had
been exercised. 455 U.S. at 155.”
This Court looked to a federal agency’s implementing
regulations to displace the dormant Commerce Clause in
White v. Massachusetts Council of Constr. Employers,
supra. White involved a dormant Commerce Clause chal-
lenge to an executive order by the City of Boston requir-
ing all construction projects receiving federal funds ad-
ministered by the City to be “performed by a work force
consisting of at least half bona fide residents of Boston.”
460 U.S. at 206. The discriminatory spending of federal
funds in favor of city residents was upheld on the ration-
ale that “the order was affirmatively sanctioned by the
pertinent regulations” governing use of the federal funds
at issue. Id. at 215 (emphasis added). The applicable
federal statutes did not specifically address local favori-
tism; the Court noted only a general goal of assisting
“the poor, minorities, and unemployed.” /d. at 213.
Effective federal authorization was found, however, in the
Department of Housing and Urban Development’s imple-
menting regulations, which permitted “the type of paro-
chial favoritism expressed in the order.” /d.
White reinforces the conclusions drawn in Merrion:
in determining whether a statute displaces dormant Com-
merce Clause restrictions, the regulations and interpretive
guidance of an agency charged with administering that
18 The Court explained that as a result of its approval by the
Secretary—
this tribal tax comes to us in a posture significantly different
from a challenged state tax, which does not need specific fed-
eral approval to take effect, and which therefore requires, in
the absence of congressional ratification, judicial review to
ensure that it does not unduly burden or discriminate against
interstate commerce. Judicial review of the Indian tax meas-
ure, in contrast, would duplicate the administrative review
called for by the congressional scheme.
455 U.S. at 155-56. See also Northwest Airlines, Inc. v. County of
Kent, 510 U.S. 355, 378-74 n.20 (1994).
22
Statute must be given effect. This Court adhered to such
an approach in Northeast Bancorp, Inc. v. Board of Gov-
ernors of the Fed. Reserve Sys., 472 U.S. 159 (1985).
In Northeast Bancorp, the issue was whether the Douglas
Amendment to the Bank Holding Company Act of 1956,
12 U.S.C. § 1842(d), which prohibited the Federal Re-
serve Board from approving an acquisition by a bank or
bank holding company located in one state of a bank
located in another, unless the acquired bank’s state laws
permitted such acquisitions, also permitted a state to
permit such cross-border acquisitions selectively, depend-
ing on reciprocity from other states. In considering a
proposed acquisition, the Board had held that such selec-
tive lifting of the ban was authorized by the Douglas
Amendment. Citing the Board’s status as “an authoritative
voice on the meaning of a federal banking statute,” this
Court agreed with the Board and held that the dormant
Commerce Clause had been displaced. 472 U.S. at 168.
EPA’s application of the RCRA consistency standard is no
less authoritative, and should have been given similar
deference here.
In other words, under South-Central Timber it is not
“Congressional intent” expressed solely in terms of legis-
lative history, but federal law, that must authorize the
State’s laws in an “unmistakably clear” fashion. Here,
both Congress and EPA have acted under the power
granted by the Commerce Clause in creating the RCRA
consistency standard and the “reasonableness” test of
Section 271.4(a)—Congress directly and EPA by statu-
tory authorization. EPA’s application of the consistency
standard of RCRA is unchallenged here and there is no
reason why it should not be given effect as arising from
the exercise of the Commerce Clause power. The court
of appeals’ holding to the contrary consigns the RCRA
consistency standard as applied by EPA to a netherworld:
despite ostensibly being valid federal law, it has been
accorded no actual effect on the very interstate relation-
23
ships it aims to address. Merrion, White, and Northeast
Bancorp do not permit such a result.
Moreover, under RCRA and CERCLA Congress has,
in addition to adopting a substantive standard at odds
with that of the dormant Commerce Clause, also “affirm-
atively acted by providing a series of federal checkpoints
that must be cleared” before a state law can receive federal
authorization. Merrion, 455 U.S. at 155. In stating that
Congress had not provided federal checkpoints, 98 F.3d
at 784, App. 16a, the court of appeals ignored EPA's
approval of South Carolina’s capacity assurance plan
in 1990, see supra, at 9, and its approval of South
Carolina’s hazardous waste program in a series of actions
over several years, culminating in full approval in 1995,
see supra, at 6, 9. EPA gave its approval of the capacity
assurance plan only after first looking explicitly at effects
on interstate commerce. See supra, at 9.™
For RCRA, EPA’s rules contemplate that the Agency
may undertake review at any time, either acting sua sponte
or on petition “from an interested person.” 40 C.F.R.
§ 271.23(b)(1) (procedures for withdrawing approval
of State programs). Thus, RCRA provides explicit check-
points because the “consistency” test must be met and
a dissatisfied person has appropriate means—action be-
fore the Agency and judicial review—to insure that the
test has been satisfied. As in Merrion, independent judicial
invocation of dormant Commerce Clause analysis would
14 EPA did not look at such effects when it gave RCRA approval
in 1995 to the full South Carolina program, including the provisions
at issue here. Thus, while the court of appeals was wrong when it
said that “EPA has not expressly approved any of the contested
South Carolina laws,” 98 F.3d at 784, App. 17a, it was correct in
the sense that in EPA’s 1995 approval the Agency did not focus
on interstate effects. EPA obviously did focus on such effects in
giving its approval in 1990 to the provisions submitted as part of
the State’s capacity assurance program, see supra, at 9, and,
under EPA’s policy, that approval served as a first-stage blessing
for purposes of the RCRA consistency process, see supra, at 5.
24
be “duplicative” if not contradictory, and EPA’s approval
should be given effect until it is removed.”
4. Synopsis.
The courts should not strike down what EPA elects to
approve in valid pursuit of its congressional mandate
to regulate hazardous waste. Given EPA’s approval under
RCRA and CERCLA, the notion that Congress’ Com-
merce Clause power nonetheless still lies “dormant” with
respect to the challenged provisions is unsupportable.
South Carolina’s EPA-approved laws and rules cannot be
challenged under the dormant Commerce Clause any more
than could action taken by the federal agency itself.**
15 Cases in which the Court has held that the exercise of Con-
gress’ Commerce Clause power has not been sufficiently clear to
insulate a state provision from dormant Commerce Clause review
involve nothing like the present context. In South-Central Timber,
supra, Alaska’s discriminatory requirement that timber sold from
state lands be processed locally was rejected. Although a federal
statute created a similar policy with respect to federal lands, it
did not address state laws in any respect. Thus, the reason the
Court found no “unmistakably clear” intent by Congress to displace
dormant Commerce Clause restrictions was that the federal statute
had no bearing on the state program. 467 U.S. at 92-938. New
England Power Co. v. New Hampshire, 455 U.S. 331, 341 (1982),
involved New Hampshire’s attempt to prohibit exportation of
hydroelectric power on the basis of a “savings clause” in the Fed-
eral Power Act which preserved the States’ “lawful authority now
exercised over the exportation of hydroelectric energy.” The Court
held that the clause only preserved already valid authority—.e.
authority exercised within the limits of the dormant Commerce
Clause. /d. In Sporhase v. Nebraska, 458 U.S. 941 (1982), Nebraska
defended its prohibition against extraction of its groundwater for
use outside the State without citing any directly relevant statute,
but rather it simply relied on “37 statutes in which Congress has
deferred to state water law, and on a number of interstate com-
pacts dealing with water.” Jd. at 958. Accordingly, the Court found
no direct “indicat[ion] that Congress wished to remove federal
constitutional constraints on such state laws.” Jd. at 960.
16 The regulatory model used by Congress under RCRA—enact-
ment of federal minimum standards with provisions allowing
25
The present case thus squarely presents an instance of
Congressional authorization—through the adoption of the
competing RCRA standard—which has been absent from
prior cases before this Court. For example, in C&A
Carbone, supra, which involved a municipality's “flow
control” ordinance directing solid non-hazardous waste
to a local facility, Justice O’Connor’s concurring opinion
noted Congress’ “delegation . . . to EPA of authority to
assist local government in solving waste supply problems,”
511 U.S. at 409-410 (O’Connor, J., concurring), but con-
cluded that EPA’s regulations merely echoed the dormant
Commerce Clause’s requirement of “free and unrestricted
movement” of waste. Jd. Similarly, in Northwest Air-
lines, Inc. v. County of Kent, supra, 510 U.S. at 373,
the Court was presented with the issue of whether the
“express permission” in the Anti-Head Tax Act, 49 U.S.C.
§ 1513(b), of “reasonable rental charges, landing fees,
and other service charges from aircraft operators for the
use of airport facilities” was “{s]ufficiently clear to rule
out judicial dormant Commerce Clause analysis.” Ix the
absence of agency implementation of the AHTA, how-
ever, the Court held that the AHTA “reasonableness”
standard was no different than that of the dormant Com-
merce Clause. 510 U.S. at 374. Here, the conflict between
the RCRA “consistency” standard and the dormant Com-
merce Clause has been both explicated and implemented
by the Agency. Indeed, EPA has expressly approved as
not “unreasonable” under Section 271.4 precisely the sort
(though not the degree) of differential fees for in-state
and out-of-state waste which this Court struck down in
Chemical Waste Management, supra, while “pretermit-
States to implement federal requirements through their own pro-
grams—has also been used in a number of other environmental
regulatory statutes. See, e.g., Solid Waste Disposal Act, 42 U.S.C.
§ 6991c(d) (2) (1995); Clean Air Act, 42 U.S.C. § 7411(c) (1995) ;
Federal Water Pollution Control Act, 33 U.S.C. § 1842(c) (1)
(Supp. 1996); Surface Mining Control and Reclamation Act, 30
U.S.C. §§$ 1235, 1253 (1986 & Supp. 1996) ; Federal Insecticide,
Fungicide, and Rodenticide Act, 7 U.S.C. § 136w-1 (1980 & Supp.
1996).
26
[ting]” the RCRA authorization issue to a later time.
Compare note 1, supra, with Chemical Waste Manage-
ment, 504 U.S. at 338-339 & 346 n.9. With the maturity
of the instant case, that time has come.
B. Neutral Provisions In South Carolina’s Program.
The court of appeals improperly analyzed two provi-
sions of South Carolina’s regulatory program—provisions
that are not in any way discriminatory. Whatever stand-
ards for judging interstate effects are applicable, its ruling
that the provisions are invalid is contrary to this Court’s
precedents.
South Carolina’s neutral overall cap on the amount of
hazardous waste disposed of by landfill is permissible un-
der any test for evaluating effects on interstate commerce.
Act No. 590, S.C. Ann. 44-56-60(a)(2), App. 129a, re-
duces the cap from its prior level of 135,000 tons per year
to new, phased levels first of 120,000 tons and then of
110,000 tons. The court of appeals acknowledged that this
Court has held that among the less discriminatory alterna-
tives available to States seeking to restrict disposal of
hazardous waste consistent with the requirements of the
dormant Commerce Clause is “ ‘an evenhanded cap on the
total tonnage landfilled . . . [which would] curtail volume
from all sources.’” 98 F.3d at 787, App. 23a, quoting
Chemical Waste Mgmt., 504 U.S. at 345. The court of
appeals ruled that the reduction in the cap was not even-
handed ™ because the statutory amendment providing for
the reduction also provided for two exceptions: one trig-
gered by a certification that waiver of the limit is necessary
to protect South Carolina’s citizens, $.C. Code Ann.
17 The effect of the rulings in this regard by the district court
and the court of appeals was to reinstate the pre-Act No. 590 cap
of 135,000 tons per year of hazardous waste disposed by landfill
in South Carolina. This result illustrates the incongruity of the
court of appeals’ decision. Under its ruling, a cap of 120,000 tons
per year or of 110,000 tons per year is impermissible, but a cap
of 185,000 tons per year is valid.
27
§ 44-56-60(a)(3)(A), and the other by a finding that the
entire statutory limit of landfilled hazardous waste was
generated by South Carolina sources.” The court of ap-
peals found the exceptions to be discriminatory and to dis-
able the reduced cap. 98 F.3d at 788, App. 24a. It also
opined that even if the reduced limit were neutral, it
would not be severable. 7d. at 788 n.21, App. 24a. Its
analysis is wrong on both counts, and exemplifies the
broad sweep of its decision to set aside state law.
Similarly, South Carolina’s “needs regulation” is a non-
discriminatory provision, both on its face and in practical
effect. It simply does not affect what hazardous wastes
private facilities accept for treatment and disposal. The
court of appeals stated that the “effect on out-of-state in-
terests is to prohibit facilities frcm expanding to meet
out-of-state needs, but to allow expansion to meet in-state
needs.” 98 F.3d at 788, App. 25a. The court further
translated the provision as an allowance for “expansion
or a raise in the limits where in-state needs dictate such a
rise.” Jd. There is no factual record to support any as-
sumption at all about the use cf an expansion in capacity,
let alone that such an expansion would be dedicated to in-
state needs. There certainly also is not any evidence that
facilities would be planned and permitted any time there
was an excess of in-state waste needing disposal but not
otherwise. The case below was decided on summary judg-
ment, without any factual development whatsoever. In
18 The court of appeals took no facts into account in its assess-
ment of the exceptions. However, facts before the court, which
South Carolina had put forward by way of affidavits to resist
summary judgment in the district court, showed that the in-state
percentage of wastes disposed subject to the cap was 11.91% for
1993 (11,972.18 tons), while the remainder (88.09%) came from
out-of-state (88,527.66 tons). (Joint Appendix before court of
appeals, at JA 0700.) For the first two quarters of 1994, the
percentage and amounts of hazardous waste disposed in South
Carolina subject to the cap were comparable. (Jd. at JA 0702-
0703.) Thus, the likelihood that the second exception would have
any practical consequence was nil.
28
short, whether evaluated under the “reasonableness” test
set out in EPA’s implementing regulations, or under a
dormant Commerce Clause test such as the balancing test
of Pike v. Bruce Church, Inc., 397 U.S. 137, 142
(1970),"® South Carolina’s reduced disposal cap and its
needs regulation pass muster.
C. Referral to EPA Under the Primary Jurisdiction
Doctrine.
South Carolina raised the issue of primary jurisdiction
before the district court and sought a referral to EPA be-
cause the court of appeals had earlier, in its decision on
appeal from the district court’s preliminary injunction, ex-
pressed frustration with EPA’s variously expressed views
about the meaning of the “consistency” provision of
RCRA and the Agency’s own implementing rules. See
HWTC, 945 F.2d at 794, App. 76a, quoted supra, at 11
n.8. Both the district court and then the court of appeals
nonetheless refused to order referral on the basis of their
erroneous conclusions that EPA’s decision respecting
the federal statute and regulation would be irrelevant.
This view ignores that the question of federal statutory
construction must be resolved as a first step in this case.
Regarding that question of interpretation, both the district
court and the court of appeals fundamentally misperceived
the nature and purpose of referral under the primary ju-
risdiction doctrine.
The question of what types of state laws are authorized
for approval under RCRA is an issue within the special
expertise of EPA. The doctrine of primary jurisdiction
exists to permit courts to take advantage of agency ex-
pertise rather than attempt to answer, in the first instance,
complicated questions of law and fact relating to an
agency’s exercise of its statutory powers. In this case,
1 The Pike test applies if a State’s law regulates evenhandedly
but adversely affects interstate commerce in its application. Such
a law is valid unless the burdens on commerce are “clearly excessive
in relation to the putative local benefits.” Pike, 8397 U.S. at 142.
29
any confusion that exists regarding the interpretation or
application of the statutory consistency requirement and
of EPA’s consistency regulation should be resolved by re-
ferral to EPA under the doctrine of primary jurisdiction.
See Ricci v. Chicago Mercantile Exchange, supra, 409
U.S. at 307; see also Northwest Airlines, supra, 510 U.S.
at 366 n.10 (noting that the question as to the “reason-
ableness” of the respondent airport’s rates under the Anti-
Head Tax Act “might have been referred . . . to the
Department of Transportation under the primary jurisdic-
tion doctrine” ).”°
In reviewing the district court’s decision not to refer the
questions of statutory and regulatory interpretation to
EPA, the court of appeals noted that the district court had
refused to make the referral because it had found “that
there were no issues of fact.” 98 F.3d at 789, App. 26a.”
If only questions of law were at issue, the question also
arises why the court of appeals reviewed the district
court’s decision for abuse of discretion. While a decision
to refer a case to the primary jurisdiction of an agency
is generally labeled a discretionary one, where, as in this
case, the district court’s decision was based wholly on con-
clusions of law, the court of appeals should accordingly
201f the “consistency” standard is held to displace the dormant
Commerce Clause, respondent ETC should be required to proceed
before EPA not only because EPA has primary jurisdiction, but
because ETC cannot state a claim directly under RCRA in federal
court. See Middlesex County Sewerage Auth. v. National Sea
Clammers Ass’n, 453 U.S. 1 (1981) (comprehensive scheme of
administrative remedies precludes implied right of action or remedy
under 42 U.S.C. § 1988). ETC’s proper remedy is to petition EPA
to withdraw South Carolina’s RCRA authorization, and, if it
remains dissatisfied, to seek judicial review of EPA’s decision. See
Hazardous Waste Treatment Council v. Reilly, 988 F.2d 1390 (D.C.
Cir. 1991).
21 Questions of fact were, or at least should have been, at issue,
however, as shown by the discussion of the court of appeals’ deci-
sion to affirm the invalidation of the State’s overall cap on waste
disposal and the “needs regulation” for permitting new or expanded
facilities. See supra at 26-27 & n.18.
30
have reviewed that decision de novo. When the district
court’s determination is based solely on conclusions of
law, the court of appeals is in as good a position as the
district court to make the determination in the first in-
stance, and accordingly, should proceed to do so. See
Massachusetts v. Blackstone Walley Elec. Co., 67 F.3d
981, 991-93 (ist Cir. 1995) (addressing and then order-
ing referral to resolve “varying positions” stated by EPA
whether ferric ferrocyanide is a “cyanide” for purposes of
the Agency’s rules). This case presents the Court with
the opportunity to clarify this aspect of primary jurisdic-
tion doctrine.
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
CHARLES MOLONY CONDON
Attorney General
KENNETH P. WOODINGTON
Senior Assistant
Attorney General
Post Office Box 11549
Columbia, South Carolina 29211
(803) 734-3680
Attorneys for the State
of South Carolina
CARLISLE ROBERTS, JR.
General Counsel
JACQUELYN S. DICKMAN
Assistant General Counsel
2600 Bull Street
Columbia, South Carolina 29201
(803) 734-4910
Attorneys for Commissioner,
South Carolina Department
of Health and
Environmental Control; and
South Carolina Board of
Health and Environmental
Control
January 10, 1997
CHARLES F.. LETTOW *
MICHAEL A. MAZZUCHI
TIMOTHY A. VOGEL
CLEARY, GOTTLIEB, STEEN &
HAMILTON
1752 N Street, N.W.
Washington, D.C. 20036
(202) 728-2700
Attorneys for Petitioners
TREVA G. ASHWORTH
Deputy Attorney General
Post Office Box 11549
Columbia, South Carolina 29211
(803) 734-3680
Attorney for David M. Beasley,
Governor of the State of
South Carolina
* Counsel of Record
E APPENDICES
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-2008
ENVIRONMENTAL TECHNOLOGY COUNCIL, formerly known
as Hazardous Waste Treatment Council, on behalf of
itself and its members,
Plaintiff-A ppellee,
v.
SIERRA CLUB; ENERGY RESEARCH FOUNDATION; CITIZENS
FOR CLEAN AIR AND WATER; CITIZENS ASKING FOR A
SAFE ENVIRONMENT, INCORPORATED (CASE); ENvI-
RONMENTALISTS, INCORPORATED,
Defendants-A ppellants,
and
STATE OF SOUTH CAROLINA; DAvip M. BEASLEY, Gov-
ernor; COMMISSIONER, SOUTH CAROLINA DEPARTMENT
OF HEALTH AND ENVIRONMENTAL CONTROL; SOUTH
CAROLINA DEPARTMENT OF HEALTH AND ENVIRON-
MENTAL CONTROL; SOUTH CAROLINA BOARD OF
HEALTH AND ENVIRONMENTAL CONTROL,
Defendants.
No. 95-2245
ENVIRONMENTAL TECHNOLOGY COUNCIL, formerly known
as Hazardous Waste Treatment Council, on behalf of
itself and its members,
Plaintiff-A ppellee,
2a
STATE OF SOUTH CAROLINA; DAavip M. BEASLEY, Gov-
ernor; COMMISSIONER, SOUTH CAROLINA DEPARTMENT
OF HEALTH AND ENVIRONMENTAL CONTROL; SOUTH
CAROLINA DEPARTMENT OF HEALTH AND ENVIRON-
MENTAL CONTROL; SOUTH CAROLINA BOARD OF
HEALTH AND ENVIRONMENTAL CONTROL,
Defendants-A ppellants,
and
SIERRA CUB; ENERGY RESEARCH FOUNDATION; CITIZENS
FOR CLEAN AIR AND WATER; CITIZENS ASKING FOR A
SAFE ENVIRONMENT, INCORPORATED (CASE); ENVI-
RONMENTALISTS, INCORPORATED,
Defendants.
Appeals from the United States District Court
for the District of South Carolina, at Columbia
Matthew J. Perry, Jr., Senior District Judge
(CA-90-1402-3-0)
Argued: March 5, 1996
Decided: October 15, 1996
Before MURNAGHAN and MOTZ, Circuit Judges,
and YOUNG, Senior United States District Judge for the
District of Maryland, sitting by designation.
OPINION
MURNAGHAN, Circuit Judge:
The appeal before the court concerns South Carolina’s
attempt to limit the amount of hazardous waste generated
3a
out-of-state and buried within its borders by promulgating
a series of executive orders, statutes, and one regulation
(collectively “the South Carolina laws”) which, as com-
pared to treatment of waste generated within South Caro-
lina, burden out-of-state waste. The discriminating state
laws would impact the operations of three commercial
hazardous waste facilities owned and operated by mem-
bers of the appellee-plaintiff Environmental Technologies
Council (“ETC”).2 ETC filed a lawsuit challenging South
Carolina’s laws under the Commerce Clause of the United
States Constitution, art. I, § 8, cl. 3, the Supremacy Clause,
art. VI, cl. 2, and the Privileges and Immunities Clause,
art. IV, §2 cl. 1, and 42 U.S.C. § 1983 (1988). The
question before the court on appeal is whether South
Carolina’s laws violate the Commerce Clause.’
We previously considered a motion by ETC for a pre-
liminary injunction in this same lawsuit based on a Com-
merce Clause violation. Hazardous Waste Treatment
Council v. State of South Carolina, 945 F.2d 781 (4th
Cir. 1991) (“HWTC”). While remanding to the dis-
trict court, we, for the most part, affirmed the district
court’s grant of a preliminary injunction in favor of ETC.*
1 ETC was formerly known as the Hazardous Waste Treatment
Council (“HWTC”). ETC is a non-profit association of commercial
firms that provide services for the treatment, recycling, and dis-
posal of hazardous wastes.
2 Because the district court addressed only the Commerce Clause
question and our ruling on the Commerce Clause renders the chal-
lenged laws invalid, we do not reach the validity of the laws under
the Supremacy Clause, Privileges and Immunities Clause, or 42
U.S.C. § 1983.
8 We instructed the district court on remand “(1) to modify the
order by striking the words that confusingly imply a declaration
of invalidity, (2) to modify the order to apply only to the specific
portions of the executive orders and statutes challenged as violating
the Commerce Clause, and (3) to consider explicitly the balance of
hardships with respect to Regulation 61-99.” HWTC, 945 F.2d at
795.
4a
On remand, the district court has granted summary judg-
ment in favor of ETC, issuing a permanent injunction as
to all the challenged provisions. Environmental Technolo-
gies Council v. South Carolina, 901 F. Supp. 1026 (D.S.C.
1995) (“ETC”). South Carolina and several intervenors
have appealed. For the following reasons, we affirm.
I
Disposing of hazardous wastes is a national problem
which raises complex technological and political issues.*
4 The Resource Conservation and Recovery Act of 1976 (“RCRA”)
defines “hazardous waste” as
a solid waste, or combination of solid wastes, which because
of its quantity, concentration, or physical, chemical, or in-
fectious characteristics may—
(A) cause, or significantly contribute to an increase in
mortality or an increase in serious irreversible, or in-
capacitating reversible, illness; or
(B) pose a substantial present or potential hazard to
human health or the environment when improperly treated,
stored, transported, or disposed of, or otherwise managed.
42 U.S.C. § 6903 (5).
The increasing problem of disposing of solid wastes—hazardous
and non-hazardous—is evidenced by the number of recent lawsuits
involving states’ or localities’ attempts to limit wastes entering
their borders. See, e.g., C & A Carbone, Inc. v. Town of Clarkstown,
New York, 511 U.S. 383 (1994) (local solid waste flow control
ordinance requiring all nonhazardous waste to be deposited at
locally-owned facility) ; Oregon Waste Sys., Inc. v. Department of
Envtl. Quality of Oregon, 511 U.S. 93 (1994) (Oregon statute
imposing additional fee on solid waste generated outside the state
and disposed of within the state); Fort Gratiot Sanitary Landfill,
Inc. v. Michigan Dep’t of Natural Resources, 504 U.S. 353 (1992)
(Michigan law prohibiting private landfill operators from accepting
solid waste that originates outside county in which facilities are
located unless specifically authorized by the receiving county’s
plan) ; Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334
(1992) (Montana statute imposing additional fee on all hazardous
waste generated out of state and disposed of within state); City
of Philadelphia v. New Jersey, 487 U.S. 617 (1978) (New Jersey
Sa
South Carolina is one of few states which contain com-
mercial hazardous waste treatment, storage, and disposal
facilities. Thus, South Carolina absorbs a large amount
of the hazardous waste that other states export.
South Carolina’s attempt to limit the level of out-of-
state hazardous waste entering its borders occurs against
a backdrop of congressional legislation addressing the
national hazardous waste problem. Congress has enacted
three sets of laws which are relevant here: (1) the Re-
source Conservation and Recovery Act of 1976 (“RCRA”),
as amended, 42 U.S.C. §§ 6901-6992k (1988); (2) the
Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (“CERCLA”), as amended, 42
U.S.C. §§ 9601-75 (1988); and (3) the Superfund
Amendments and Reauthorization Act of 1986 (“SARA”),
Pub.L. No. 99-499, 100 Stat. 1613 (1986). We briefly
describe each law in so far as it is relevant to the question
before us.
A. RCRA
RCRA establishes a cradle-to-grave regulatory program
for hazardous waste management administered by the En-
vironmental Protection Agency (“EPA”). It attempts to
deal with hazardous waste before it becomes a problem by
establishing minimum federal standards for the genera-
tion, treatment, storage, transportation, and disposal of
hazardous waste, and the permitting of facilities to treat
hazardous waste. HWTC, 945 F.2d at 783. RCRA also
allows a state to implement its own program in lieu of
statute prohibiting importation of most solid or liquid waste gen-
erated out of state); National Solid Wastes Management Ass’n v.
Alabama Dep’t of Envti. Management, 910 F.2d 713 (llth Cir.
1990), as modified upon denial of reh’g, 924 F.2d 1001 (11th Cir.),
cert. denied, 501 U.S. 1206 (1991) (Alabama statute blacklisting
certain hazardous wastes generated out of state). In each case
listed above a state or locality attempted to discriminate against
waste generated out-of-state, and in each case the discriminatory
action was ruled a violation of the Commerce Clause.
6a
the federal program if the state’s program is “equivalent
to” and “consistent with” the federal or state programs
applicable in other states and provides for “adequate en-
forcement of compliance.” 42 U.S.C. § 6926(b).
Congress delegated to EPA the task of reviewing and
authorizing state programs as consistent with the federal
program. The EPA’s regulation explaining how a state’s
program must be consistent with the federal program is of
particular relevance to the present controversy. It requires
that a state program not unreasonably impede interstate
commerce.°
B. CERCLA and SARA
Passed by Congress in 1980, CERCLA establishes a
cleanup program for hazardous waste which has already
been disposed of improperly. CERCLA created a fund of
federal money available for state cleanup efforts (“Super-
fund”).
Finding that more was still needed to address the
hazardous waste problem, Congress amended CERCLA in
1986 by enacting SARA. SARA requires that each state
submit a proposal to EPA demonstrating that over a 20-
year period the state will have either: (1) adequate ca-
pacity available to dispose of hazardous wastes generated
within the state; or (2) arrange for the disposal of wastes
generated in-state in other states through interregional
5 40 C.F.R. § 271.4 provides:
To obtain approval, a State program must be consistent with
the Federal program and State programs applicable in other
States and in particular must comply with the provisions
below...
(a) Any aspect of the State program which unreasonably
restricts, impedes, or operates as a ban on the free move-
ment across the State border of hazardous wastes from
or to other States for treatment, storage, or disposal at
facilities authorized to operate under the Federal or an
approved State program shall be deemed inconsistent.
Ta
agreements. 42 U.S.C. § 9604(c)(9) (1995).° The re-
quired plans are referred to as Capacity Assurance Plans
(“CAPs”). Failure to submit an acceptable CAP results
in the state becoming ineligible to receive Superfund
money for remedial cleanup of hazardous waste within the
state. Congress promulgated no other sanctions or in-
centives for states to submit CAPs."
C. South Carolina’s Restrictions on the Interstate Flow
of Hazardous Waste
Because South Carolina is one of the few states which
has large existing hazardous waste treatment and disposal
facilities, it contends that it has borne an unfair share of
the national hazardous waste burden. As a result, South
Carolina has attempted, through a series of measures, to
® 42 U.S.C. § 9604(c) provides:
(9) Siting
Effective 3 years after October 17, 1986, the President shall not
provide any remedial actions pursuant to this section unless the
State in which the release occurs first enters into a contract or
cooperative agreement with the President providing assurances
deemed adequate by the President that the State will assure the
availability of hazardous waste treatment or disposal facilities
which—
(A) have adequate capacity for the destruction, treatment,
or secure disposition of all hazardous wastes that are rea-
sonably expected to be generated within the State during
the 20-year period following the date of such contract or
cooperative agreement and to be disposed of, treated, or
destroyed,
(B) are within the State or outside the State in accord-
ance with an interstate agreement or regional agreement
or authority,
(C) are acceptable to the President, and
(D) are in compliance with the requirements of subtitle C
of the Solid Waste Disposal Act.
7 The court refers the reader to its prior opinion in this litigation,
HWTC, 945 F.2d at 783-85, for further background on RCRA,
CERCLA, and SARA.
8a
reduce the amount of hazardous waste entering its borders.
South Carolina’s legislature passed two statutes, its Gov-
ernor signed two Executive Orders, and the South Caro-
lina Departinent of Health and. Environmental Control
(“DHEC”) promulgated one regulation—all of which
were designed to limit the level of out-of-state hazardous
wastes entering South Carolina for burial within the state.
The first measure enacted was a blacklisting provision,
prohibiting entry into the state of certain out-cf-state
wastes. Section 9 of Act No. 196 of 1989 prohibits “any
person who owns or operates a waste treatment facility
within” South Carolina from accepting
any hazardous waste generated in any jurisdiction
which prohibits by law the treatment of that hazard-
ous waste within that jurisdiction or which has not
entered into an interstate or regional agreement for
the safe treatment of hazardous waste pursuant to
the federal [CERCLA].
The Act codified a prior executive order, No. 89-17.
The second measure, Act No. 590 of 1990, established
a limit on all waste buried within the state.* The limit
reduces the existing statutory authorization for hazardous
waste disposal by burial from 135,000 tons within the
state in a year to 120,000 tons from July 1, 1990 to
July 1, 1991. After July 1, 1991, the authorization drops
to 110,000 tons per year. The limit on waste burial can
be lifted, however, upon certification that the burial of
more waste is necessary to protect the health and safety
of the citizens of South Carolina or that 110,000 tons of
the waste buried in South Carolina during the relevant
time period was generated in South Carolina only.
8 The limit is most often referred to as a cap. We have used the
term “limit” here in order to prevent confusion between “cap” and
the acronym for Capacity Assurance Plan, “CAP.”
9a
The same Act also discriminates between waste gen-
erated in-state versus out-of-state by establishing a floor
for in-state wastes and a ceiling for out-of-state wastes.
All hazardous waste facilities must reserve for waste gen-
erated in-state at least the same capacity used during the
previous year. On the other hand, no more hazardous
waste may be buried from out-of-state than the amount
buried in the previous year.
The third measure, executive order No. 89-25 promul-
gated on July 6, 1989, imposes quota preferences for
in-state facilities to reserve at least 54,000 tons per year
of the then-current statutory maximum of 135,000 tons
for waste generated within South Carolina. It also limits
the waste generated from any one state to 35,000 tons
per year, and 10,000 tons per quarter.
The fourth and final measure, DHEC Regulation 61-99,
effective January 12, 1990, imposes a needs requirement
for all permits to establish or expand hazardous waste
treatment and storage facilities. Need may be demon-
strated by reference to only in-state need.
D. EPA’s Response
In 1985, EPA approved South Carolina’s hazardous
waste program under RCRA despite the presence of a dis-
criminatory fee imposed on waste generated out of state.
50 Fed.Reg. 46437 (1985); HWTC, 945 F.2d at 785 &
n.2.° In 1989, EPA expressed concern that the blacklist-
ing provision (Act No. 196 and Exec. Order No. 89-17)
could render South Carolina’s hazardous waste manage-
ment program inconsistent with RCRA. Thus, the EPA
requested an opinion from the South Carolina Attorney
General and certification by the state that the provision
was consistent with RCRA. The South Carolina Attorney
General responded with an opinion that the provision was
® That fee is not challenged in the instant lawsuit.
10a
“consistent.” The record contains no response by EPA or
further EPA action.
Shortly thereafter, on October 17, 1989, South Carolina
submitted to EPA its proposed CAP. EPA approved the
CAP in May 1990, with certain conditions. That approval
was granted in the context of an EPA policy of using the
CAP process as its first step in addressing state actions
which may be inconsistent with RCRA.”
Subsequently, in 1995, EPA issued a notice that it had
made a final decision, subject to public review and com-
ment, that the agency intended to find that South Caro-
lina’s hazardous waste program revisions satisfied all of
the requirements necessary for final authorization under
RCRA. 60 Fed.Reg. 42046 (Aug. 15, 1995). While
the notice does not directly address i ie provisions at issue
here, the notice does indicate that the EPA continues to
approve South Carolina’s hazardous waste program under
RCRA.”
10 Memorandum from Lee M. Thomas to Regional Administrators,
“Policy Regarding Hazardous Waste Management Capacity and
RCRA Consistency Issues” (December 23, 1988).
1 At oral argument, South Carolina asserted that the EPA 1995
RCRA approval specifically addressed one of the challenged provi-
sions at 60 Fed.Reg. 42048, checklist item 17E. Checklist item 17E
addresses the federal requirement for “location standards for salt
domes, salt beds, underground mines and caves.” The federal RCRA
regulations addressed were promulgated by EPA on July 15, 1985.
The state authority to administer the federa! requirements is found
at South Carolina Code §§ 44-56-30, 44-56-60(a-c), and 44-56-120.
We surmise that South Carolina is referring to § 44-45-60 as being
specifically authorized by EPA. Act No. 590 amended § 44-45-60
in 1990 to include the overall limit on waste disposed of by land
burial, a ceiling on out-of-state waste, and a floor on in-state waste.
From the information before the court, however, we do not presume
that EPA specifically addressed and authorized the discriminatory
provisions in question here, which were enactea in 1990 and not
addressed specifically to the location standards for salt domes, salt
beds, underground mines and caves. We do not view the EPA
finding as to the particular federal regulation governing location
lla
Il
We review the district court’s summary judgment ruling
under a de novo standard of review. Henson v. Liggett
Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995); Jackson
v. Kimel, 992 F.2d 1318, 1322 (4th Cir. 1993). Under
Rule 56(c) of the Federal Rules of Civil Procedure, sum-
mary judgment is appropriate only where there are no
genuine issues of material fact. In conducting our analysis,
we review the record in the light most favorable to the
nonmoving party.
South Carolina and the intervenors appeal on several
grounds. First, South Carolina argues that the district
court erred by applying a dormant Commerce Clause anal-
ysis because RCRA, CERCLA, and SARA override the
dormant Commerce Clause, rendering the Clause inappli-
cabic. Second, South Carolina asserts that even assuming
a dormant Commerce Clause analysis applies, there were
genuine issues of material fact and, therefore, summary
judgment was premature. Third, South Carolina argues
that even assuming its laws violate the dormant Commerce
Clause, two portions of the laws—the overall limit on in-
state waste burial and the needs requirement for new
permits—are neutral nondiscriminating provisions and,
therefore, should be severed fro.n the invalid provisions
and upheld. Finally, South Carolina argues that the dis-
trict court should not have ruled on the constitutionality
of the laws, but instead referred the entire lawsuit to the
EPA under the doctrine of primary jurisdiction. We ad-
dress each argument in turn.
We caution at the beginning of our discussion that, as
we recognized in our previous opinion in this case, “what-
standards for salt domes, salt beds, underground mines and caves
as specifically addressing and authorizing the overall limit on
hazardous waste burial and the ceilings and fioors in question.
Thus, based upon the record before the court, we disagree with
South Carolina’s contention that EPA has specifically addressed
and authorized some of the challenged provisions.
12a
ever our own view may be about the effectiveness of what
Congress or [South Carolina] has done [and the serious-
ness of the hazardous waste management problem that
plagues our nation], we can only apply the law.” HWTC,
945 F.2d at 783 (citing National Solid Wastes Manage-
ment Ass'n v. Alabama Dep't of Envtl. Management, 910
F.2d 713, 715-16 (11th Cir. 1990), as modified upon
denial of reh’g, 924 F.2d 1001 (1ith Cir. 1991), cert.
denied, 501 U.S. 1206 (1991)).
A. The Dormant Commerce Clause
The Commerce Clause provides that “[t]he Congress
shall have Power . . . [t]o regulate Commerce . . . among
the several States.” U.S. Const. art. I, § 8, cl. 3. Although
“phrased as a grant of regulatory power to Congress, the
Clause has long been understood to have a ‘negative’ aspect
that denies the States the power unjustifiably to discrim-
inate against or burden the interstate flow of articles of
commerce.” Oregon Waste Sys., Inc. v. Department of
Envtl. Quality, 511 US. ; , 114 S. Ct. 1345,
1349 (1994). Thus, with certain exceptions, the negative
or dormant Commerce Clause prohibits states from dis-
criminating against the free flow of interstate commerce.”
Where Congress has acted in an area specifically
authorizing state or local government action, the dormant
Commerce Clause is, however, inapplicable, even if the
state interferes with interstate commerce. Northeast Ban-
corp. v. Board of Governors of the Fed. Reserve Sys., 472
U.S. 159, 174 (1985); White v. Massachusetts Council of
Constr. Employers, Inc., 460 U.S. 204, 213 (1983).
South Carolina contends that through enacting RCRA,
CERCLA, and SARA, Congress created a federal scheme
to address the disposal of hazardous wastes which author-
12 The Commerce Clause applies to the interstate flow of hazard-
ous waste. Chemical Waste Management, 504 U.S. at 340 n.3.
———
13a
ized the state laws challenged here, thus displacing the
dormant Commerce Clause.
In order for a state law to be removed from the reach
of the dormant Commerce Clause, however, congressional
intent to authorize the discriminating law must be either
“unmistakably clear” or “expressly stated.” South-Central
Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 91-92
(1984). Congress need not state that it intends to over-
ride the dormant Commerce Clause, but it must affirma-
tively have contemplated the otherwise invalid state legis-
lation. Id.
South Carolina contends that Congress did just that on
a number of levels. First, South Carolina insists that under
RCRA, Congress has expressly authorized any state law
or program addressing hazardous wastes which meets
EPA’s consistency standard of “reasonableness.” 40 C.F.R.
§ 271.4. Second, South Carolina argues that through dele-
gating the authorization of state programs to the EPA
under RCRA and CERCLA, Congress created a system
of checkpoints for a state’s hazardous waste program.
South Carolina contends that by providing the check-
points, Congress has “affirmatively” authorized the state
laws because they are contained in an EPA-approved
RCRA program and CAP. See Merrion v. Jicarilla
Apache Tribe, 455 U.S. 130, 155 (1982). Finally, South
Carolina argues that the CAP requirement affirmatively
contemplates and sanctions states discriminating against
other states’ wastes. Regional agreements, South Carolina
asserts, will require that states set aside capacity for states
party to the agreement, thus necessitating discrimination
among the states. Furthermore, South Carolina contends
it must favor its own wastes in order to assure the capacity
for in-state wastes it has demonstrated in its CAP.
We previously found at the preliminary injunction stage
that RCRA, CERCLA, and SARA did not contain any
language indicating “an unmistakably clear congressional
intent to permit states to burden interstate commerce.”
14a
HWTC, 945 F.2d at 792. Neither South Carolina, nor
the intervenors have come forward with any further per-
suasive evidence indicating that Congress intended to per-
mit the states, directly or by EPA authorization, to engage
in actions otherwise violative of the Commerce Clause.
i"
More specifically, we reject, as we did before, South
Carolina’s argument that EPA’s reasonableness standard
should displace a constitutional dormant Commerce Clause
analysis. The EPA’s position on what constitutes “reason-
ableness” has changed over time.* While EPA may
13 The Supreme Court has not yet addressed this question. In
Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334 (1992),
the Supreme Court pretermitted the issue raised by the amici
curiae in that case of whether Congress had authorized a discrimi- —
natory fee Alabama imposed on out-of-state hazardous wastes dis-
posed of at commercial facilities locat+xd in Alabama. Z/d. at 346
n.9. Applying the dormant Commerce Vlause, the Supreme Court
held that the discriminatory fee violated the Commerce Clause and
declared the law unconstitutional. The Court refused to consider
the question of whether the Commerce Clause did not apply at all
because that issue had not been a basis for the lower court’s deci-
sion or briefed and argued by the parties.
14 EPA has taken seemingly contradictory positions at different
times on how it will apply and interpret the consistency require-
ment. In 1980, EPA adopted the approach taken in a then- recent
Supreme Court opinion, City of Philadelphia v. New Jersey, 437
U.S. 617 (1978), which applied the dormant Commerce Clause to
strike down state statutes discriminating agairst out-of-state liquid
or solid wastes. The Court’s approach rested on the premise that
state regulations which discriminated facially, in effect or in pur-
pose, were virtually yer se invalid. City of Philadelphia, 437 U.S.
at 624-27. Following that precedent, EPA pronounced that under
its consistency regulation, § 271.4, any state program which “op-
erates as a ban on the interstate movement of hazardous waste
is automatically inconsistent.” HWTC, 945 F.2d at 793 (citing 45
Fed.Reg. 53395 (1980)).
In 1985, EPA “altered” its approach to the consistency require-
ment. That year EPA ruled that under its consistency regulation,
the agency wou” «pp 7 a “reasonableness” test to interstate com-
ih blk a da Sie tb ate, Citi
Pee a
7 en ee ORT,
poe *
ge es eS
15a
change its position on what “consistency” entails, the Con-
stitution has not changed and, in the absence of a clear
Congressional statement authorizing discrimination by the
States with respect to hazardous wastes, we must apply the
Constitution’s dictates. See C & A Carbone, 511 USS. at
, 114 S. Ct. at 1691-92 (O’Connor, J. concurring )
(emphasizing high degree of specificity with which Con-
gress must “explicitly” authorize state law otherwise vio-
lating the Commerce Clause) .™
merce restrictions. HWTC, 945 F.2d at 794 (citing 50 Fed.Reg.
46439 (1985)). Thus, EPA announced that it did “not agree that
any disparity in treatment between in-state and out-of-state wastes
is per se unreasonable” seemingly abandoning its prior constitu-
tional standard. 7d.
15 The instant case is distinguishable from the opinion on which
South Carolina places a great deal of reliance, White v. Massa-
chusetts Council of Constr. Employers, 460 U.S. 204 (1988), for
its proposition that Congress has authorized the State’s laws
through RCRA and CERCLA. In White, the Mayor of Boston,
Massachusetts issued an executive order requiring all construction
projects funded by the city to be performed by workers at least
half of whom were bona fide residents of Boston. The order was
challenged as violating the Commerce Clause. The Supreme Court
upheld the Mayor’s order, finding that Boston acted as a market
participant in spending the city’s money. There is a well-settled
exception to the dormant Commerce Clause for states or cities act-
ing as market participants as opposed to government regulators
of the market. Jd. at 206-08. Additionally, the Court noted that
although federal funds were also implicated, Congress had specif-
ically contemplated and directed that those funds be used in a
similar manner to the city’s money: to stimulate economic recov-
ery; to create permanent jobs; to retain jobs that would be lost; to
provide jobs to lower income persons and minorities, including the
unemployed; and to retrain workers. See, e.g., 42 U.S.C. §§ 3131,
5318. Furthermore, the regulations implementing Congress’s di-
rectives contained similar mandates, affirmatively permitting the
type of parochial favoritism contained in the Mayor’s executive
order. White, 460 U.S. at 218-14 n.11. Thus, the preference for
local employment had been expressly contemplated anc authorized
by Congress. In contrast, here, Congress merely contemplated
that state RCRA programs be consistent with the federal and
other states’ approved programs. Congress did not contemplate
16a
We also find that Congress has not provided a series of
checkpoints which authorize discrimination by South Caro-
lina against other states’ hazardous wastes. South Carolina
relies on Merrion v. Jicarilla Apache Tribe, 455 U.S. 130
(1982), for the proposition that a series of congression-
ally created checkpoints for a state’s law authorizes the
state to discriminate against interstate commerce. The
facts of Merrion, however, are distinguishable.
In Merrion, the Court upheld, in the face of a Com-
merce Clause challenge, a tax imposed by the Jicarilla
Apache Indian Tribe on oil and gas extracted from tribal
reservation land. The Court found that the Tribe had the
power as an independent sovereignty to impose the tax.
Id. at 136-52. The Court also noted that the tax would
survive dormant Commerce Clause scrutiny, if applied,
because Congress had displaced the Commerce Clause by
providing a series of precise federal checkpoints that must
be cleared before such a tax could be implemented. 7d. at
154-56. Congress required that under the Indian Reor-
ganization Act, 25 U.S.C. §§ 476, 477, “a tribe . . . obtain
approval from the Secretary [of the Interior] before it
adopts or revises its constitution to announce its intention
to tax nonmembers.” Jd. at 155. Congress was also aware
that Indian tribes impose taxes of the sort in question.
Id. at 156. Furthermore, the tax had been expressly ap-
proved by the Secretary through the checkpoints estab-
lished for such taxes. Td. at 155-56. Thus, Congress ex-
pressly authorized such taxes being implemented by Indian
Tribes if approved by the Secretary of the Interior.**
nor direct that state RCRA programs implement economic barriers
to hazardous waste from other states. Nor do the EPA’s regula-
tions affirmatively and expressly authorize economic barriers to the
interstate movement of hazardous wastes.
16 The Court further concluded that the tax would survive Com-
merce Clause scrutiny because it did not discriminate against inter-
state commerce in violation of the Commerce Clause. Merrion, 455
U.S. at 156-58. The tax had a substantial nexus with the taxing
EE
17a
In contrast, here, one cannot say that Congress expressly
contemplated or authorized violations of the dormant Com-
merce Clause by states limiting access to their hazardous
waste facilities when it enacted RCRA, CERCLA, and
SARA. Thus, no congressionally established “checkpoints”
expressly anticipate or authorize the challenged state laws.
Furthermore, the EPA has not expressly approved any of
the contested South Carolina laws."
We also reject South Carolina’s argument that the CAPs
requirement contemplates and requires that South Carolina
discriminate against out-of-state waste in order to assure
capacity for its in-state waste and to fulfill its interregional
agreements. In our prior opinion, HWTC, 945 F.2d at
794-95, we stated that CERCLA requires only
an “assurance” of twenty-year availability of arranged
adequate capacity. It does not [require] that the state
must ensure that hazardous waste actually is treated
and disposed of either in-state or pursuant to an inter-
state or regional agreement. CERCLA § 104(c) (9)
contemplates that adequate national capacity will exist
if each state can assure that it has adequate capacity
for in-state generated waste after taking into consider-
ation out-of-state waste that it has agreed to import
and in-state waste that it has agreed to export. How-
ever, no part of § 104(c)(9) appears to permit or
require a state to limit its actual in-state capacity to
in-state waste to receive Superfund money. See
OSWER Directive 9010.00a at 4, 6. In fact, it ap-
pears that, if a state refuses to build in-state facilities
or make alternate arrangements, it will be denied
Tribe, was fairly apportioned, related to the services provided by
the Tribe, and was nondiscrimniatory because it was imposed on
minerals sold on the reservation and minerals transported off the
reservation before sale. Jd.
17 Even if EPA had expressly approved the laws in question, we
could not do so without express congressional authorization.
18a
Superfund money, even if, in reality, all in-state
generated waste is safely exported. If congressional
intent had been to subject citizens of recalcitrant
states to environmental danger by barring export of
otherwise untreated and undisposed of hazardous
waste, it could have been easily made clear. “A state
not in compliance with this section may not export
any waste.” In the absence of such intent, we suspect
that Congress believed the penalty of no access to
federal Superfunds for waste cleanup would be suf-
ficient.
South Carolina has not presented any evidence sufficient
to dissuade us of our prior thinking. Furthermore, as the
Eleventh Circuit noted in responce to a similar argument,
if the state’s CAP depends on capacity provided by a com-
mercial, privately owned management facilty, the state can
contract with that private facility for that capacity, instead
of blocking the private facility from accepting wastes from
other states. National Solid Wastes Managament Ass’n,
910 F.2d at 720-21 (rejecting similar argument that
SARA expressly authorized state law discriminating against
out-of-state hazardous waste); Alabama v. EPA, 871 F.2d
1548, 1555 n.3 (11th Cir.) (finding that Congress had
not overridden Commerce Clause through enacting
CERCLA) cert. denied, 493 U.S. 991 (1989). Thus, we
apply a dormant Commerce Clause analysis to South Caro-
lina’s laws.
B. Application of Dormant Commerce Clause
We apply a two-tiered analysis to state actions allegedly
violating the dormant Commerce Clause. The first tier, “a
virtually per se rule of invalidity”’ applies where a state
law discriminates facially, in its practical effect, or in its
purpose. Wyoming v. Oklahoma, 502 U.S. 437, 454-55
(1992) (quoting City of Philadelphia, 437 U.S. at 624).
In order for a law to survive such scrutiny, the state must
prove that the discriminatory law “is demonstrably justi-
ee en ee eee
19a
fied by a valid factor unrelated to economic protection-
ism,” New Energy Co. of Ind. v. Limbach, 486 U.S. 269,
274 (1988), and that there are no “nondiscriminatory
alternatives adequate to preserve the local interests at
stake,” Hunt, 504 U.S. at 342 (quoting Hunt v. Washing-
ton State Apple Advertising Comm’n, 432 U.S. 333, 353
1977)). To date, the Supreme Court has upheld such
discriminatory laws only where the discrimination was
justified by the threat of death or disease. See, e.g., Maine
v. Taylor, 477 U.S. 131 (1986) (upholding Maine’s pro-
hibition on importing live baitfish because of the potential
for destruction of Maine’s fisheries); Clason v. Indiana,
306 U.S. 439 (1939) (upholding Indiana’s restrictions on
transporting dead animals without a license because of the
potential for disease).
The second tier applies if a statute regulates even-
handedly and only indirectly affects interstate commerce.
In that case, the law is valid unless the burdens on com-
merce are “clearly excessive in relation to the putative
local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137,
142 (1970).
The line between the per se rule and the Pike balancing
test is not clear. Nonetheless, most of the provisions at
issue here are not close calls—they clearly discriminate
against out-of-state waste either facially, in effect, or in
purpose. The blacklisting provision, floor for in-state
wastes, ceiling for out-of-state wastes, and quotas for
out-of-state and in-state wastes facially discriminate
against out-of-state wastes by refusing admittance into
South Carolina of certain wastes and giving express pref-
erence over South Carolina capacity to in-state wastes.
Their effect, if implemented, would also clearly discrimi-
nate against out-of-state wastes. As for purpose, we have
no reason to reverse the district court’s finding that the
laws in question constitute “an integrated and intercon-
nected discriminatory program,” ETC, 901 F.Supp. at
1029, whereby South Carolina has “attempted ‘to isolate
itself from a problem common to [the nation] by erecting
20a
a barrier against the movement of interstate trade’,”
HWTC, 945 F.2d at 791 (quoting City of Philadelphia,
437 U.S. at 628).*
A state cannot achieve a legitimate economic goal
through “the illegitimate means of isolating the State from
the national economy.” Wyoming, 502 U.S. at 456-57
(quoting City of Philadelphia, 437 U.S. at 627). The
relevant economic unit is the nation, and the Commerce
Clause prohibits states from balkanizing into separate eco-
nomic units. H.P. Hood & Sons, Inc. v. Du Mond, 336
U.S. 525, 537-38 (1949). Thus, South Carolina faces a
heavy burden in justifying its discriminatory practices. To
survive summary judgment, South Carolina must demon-
strate issues of fact regarding whether the laws are justified
by a valid factor unrelated to economic protectionism and,
if so, that there are no neutral alternatives available.
While South Carolina failed to articulate precisely its
purpose in discriminating against out-of-state waste, the
district court found several motivating concerns. The
district court first found that South Carolina was moti-
vated by the state’s concern for the “health, safety, and
welfare of its citizens.” ETC, 901 F.Supp. at 1033-34.
There is “no basis to distinguish out-of-state waste from
domestic waste” over concern for citizens’ health, safety,
and welfare, however. Hazardous waste is equally danger-
ous whether generated within South Carolina or out-of-
state. See Chemical Waste Management, 504 U.S. at
344-45 (holding that hazardous waste’s danger to the
health and safety of Alabama’s citizens “does not vary
with the point of origin of the waste”); HWTC, 945 F.2d
at 792 (citing City of Philadelphia, 437 U.S. at 629).
The State’s second concern was with preserving existing
disposal capacity for waste generated within South Caro-
18 For example, the stated purpose of Act No. 196 (blacklisting
provision) is to “give preference to hazardous waste generators
within” South Carolina. Act No. 590 gives the same preference to
hazardous waste generators within the state.
2la
lina. ETC, 901 F.Supp. at 1034. Natural resources, how-
ever, may not be hoarded under the Commerce Clause.
“{A] State may not accord its own inhabitants a preferred
right of access over consumers in other States to natural
resources located within its borders.” City of Philadelphia,
437 U.S. at 627; see also New England Power Co. v. New
Hampshire, 455 U.S. 331, 338 (1982). Thus, “[t]he
burden . . . of conserving the State’s remaining landfill
space should not fall disproportionately on out-of-state
interests.” HWTC, 945 F.2d at 792 (citing City of
Philadelphia, 437 U.S. at 628).
The third concern the district court found was South
Carolina’s worries about “transportation risks.” ETC, 901
F.Supp. at 1034. Just as with the State’s concern with
health and safety, there is little to distinguish out-of-state
waste from in-state waste in this regard. Furthermore,
neutral alternatives exist for regulating transportation of
all hazardous waste regardless of origin. Chemical Waste
Management, 504 U.S. at 345-46.
Finally, there was South Carolina’s concern that it is
shouldering an unfair burden of the nation’s hazardous
wastes. ETC, 901i F.Supp. at 1034. The Commerce
Clause does not purport to require fairness among the
States in interstate commerce. The “apparent Congres-
sional intent of RCRA and SARA would seem” to be
“that hazardous waste be treated and disposed of some-
where, even if spread disproportionately among the states.”
HWTC, 945 F.2d at 792.
On appeal, South Carolina reframes its purposes as:
(1) complying with the CAP by guaranteeing capacity;
and (2) addressing “orphan” wastes—hazardous waste
from a state which prohibits its disposal and has failed
to enter into a CAP for its disposal. As previously ex-
plained, the CAP requirement does not require or con-
template that a state discriminate against out-of-state
waste in order to comply. Nor does the Commerce Clause
allow states to punish other states for not disposing of
22a
their wastes through a CAP or otherwise. That task is
left exclusively to Congress.
In briefing its appeal, South Carolina pointed to no
specific issue of fact as to any potential purpose for dis-
criminating against out-of-state waste. Rather, the State
merely argued that it is entitled to present evidence that
it has no alternative but to differentiate among out-of-
State wastes to protect its citizens’ health and safety and
to comply with CERCLA.
At the summary judgment stage, South Carolina has a
burden to demonstrate disputed issues of material fact.
South Carolina has failed to meet its burden. None of
the affidavits South Carolina submitted even purport to
justify South Carolina’s discriminatory treatment of out-of-
state wastes. ETC, 901 F.Supp. at 1030." Nor do any of
the affidavits purport to demonstrate that no neutral al-
ternatives exist to discrimination.
C. Limit on Waste Buried In-State and Needs Require-
ment
As for two portions of the South Carolina laws, it is not
so obvious, however, that they discriminate either facially,
in effect, or in purpose, such that the per se test applies.
South Carolina therefore argues that even if we find that
the dormant Commerce Clause applies and that the laws
are invalid, portions of the laws—the overall limit imposed
by Act No. 590 and the needs requirement imposed by
DHEC regulation 61-99—do not discriminate against in-
terstate commerce. Therefore, South Carolina contends,
the valid portions should be severed from the invalid
portions and remain in effect. We disagree.
19 South Carolina merely presents a series of affidavits that de-
scribe its hazardous waste program; the amount of wastes buried
in state, broken down by in-state and out-of-state wastes; and
similar statistics.
23a
1. Limit
An evenhanded cap or limit uniformly burdens both
in-state and out-of-state interests. See, e.g., Chambers
Medical Technologies of S.C. v. Bryant, 52 F.3d 1252,
1258 (4th Cir. 1995). Thus, the Supreme Court has held
that the dormant Commerce Clause allows a state to
impose “an evenhanded cap on the total tonnage land-
filled” with hazardous waste when it “curtail[s] volume
from all sources.” Chemical Waste Management, 504
U.S. at 345. South Carolina contends that its reduction
of the statutory authorization of 135,000 tons per year
to 120,000 tons and then 110,000 tons is an evenhanded
neutral limit that does not burden interstate commerce
any more than intrastate commerce.”
The limit South Carolina seeks to have upheld, how-
ever, is not as evenhanded and neutral as the state would
have the court believe. The limit does not have the same
effect on in-state as out-of-state wastes because the limit
can be lifted upon certification that it is necessary to
protect South Carolina’s citizens, S.C. Code Ann. § 44-56-
60(a)(3)(B) (Law Co-op Supp. 1995), or that the
entire statutory authorization of buried waste during the
relevant 12-month period was generated in South Caro-
lina, S.C. Code Ann. § 44-56-60(a)(3)(B) (Law Co-op
Supp. 1995). The same exceptions are not granted to
out-of-state interests. The Supreme Court has declared
that “[t]he commerce clause forbids discrimination,
whether forthright or ingenious. In each case it is our
duty to determine whether the statute under attack, what-
ever its name may be, will in its practical operation work
20 South Carolina also contends that we expressly excluded the
overall limit as one of the items properly enjoined in our previous
opinion addressing the preliminary injunction. HWTC, 945 F.2d
at 787 n.9. While we referenced the statutory section containing
the limit in our list of sections to be enjoined, we specifically re-
ferred to another subsection. Today, however, for the reasons set
forth below, we clarify that the limit is included as one of the items
that violates the Commerce Clause.
24a
discrimination against interstate commerce.” West Lynn
Creamery, Inc. v. Healy, 511 U.S. : , 114 S. Ct.
2205, 2215-16 (1994) (citing Best & Co. v. Maxwell,
311 U.S. 454, 455-56 (1940); Maryland v. Louisiana,
451 U.S. 725, 756 (1981); Exxon Corp. v. Governor of
Maryland, 437 U.S. 117, 147 (1978)). Here, the excep-
tion favors in-state interests over out-of-state interests.
Thus, the overall limit is not facially neutral, but rather
discriminatory and, therefore, subject to the same per se
test applied to the other discriminatory provisions of Act
590. The limit fails to survive such scrutiny for the same
reasons that the floors and ceilings in Act 590 failed.”
2. Needs Requirement
The needs regulation requires that a permit application
for new or expanded hazardous waste facilities demon-
strate need by reference to the level of waste generated in
21 Even if the limit were nondiscriminatory, it would not be
severable. State law governs the severability of a state statute.
Muller v. Curran, 889 F.2d 54, 57 (4th Cir. 1989), cert. denied, 493
U.S. 1074 (1990). Thus, in determining whether the overall limit
can be severed, we turn to South Carolina law. Under South Caro-
lina law, “[t]he test for severability is whether the constitutional
portion of the statute remains ‘complete in itself, wholly independ-
ent of that which is rejected, and is of such a character as that it
may fairly be presumed that the Legislature would have passed
it independent of that which is in conflict with the Constitution.’ ”
Thayer v. South Carolina Tax Comm’n, 413 §S.E.2d 810, 814-15
(S.C. 1992) (citing Shumpert v. South Carolina Dep’t of Highways
& Public Transp., 409 S.E.2d 771 (1991)) (footnote omitted).
We cannot fairly presume that the South Carolina legislature
would have passed the overall limit without the provision allowing
the limit’s increase if South Carolina wastes exceeded the cap.
Nor can we assume that the limit would have been passed without
the remaining provisions of the statute, which include floors for
in-state-wastes and ceilings for out-of-state wastes. By protecting
capacity for in-state interests, the legislature may have quelched
in-state political interests that might otherwise have lobbied
against the overall limit. Thus, we conclude that the limit provi-
sion is not severable.
25a
South Carolina only. South Carolina contends that the
needs requirement is neutral, functioning similarly to an
evenhanded cap and therefore valid. In our earlier opin-
ion, we found that “[o]n its face [the needs requirement]
appears not to regulate evenhandedly. It permits South
Carolina to refuse to allow new construction if all of its
waste can be disposed of by exportation. The ‘practical
effect’ . . . of the regulation may be to favor in-state inter-
ests over out-of-state interests.” HWTC, 945 F.2d at 791
n.14 (citation omitted). Indeed, currently, the practical
effect may be to establish a ban on building new capacity.
We find that the needs requirement is not similar to an
evenhanded cap with the same effect on both in-state and
out-of-state interests. The effect on out-of-state interests
is to prohibit facilities from expanding to meet out-of-state
needs, but to allow expansion to meet in-state needs. Thus,
just as with the overall limit in question, the needs require-
ment contains an exception for in-state needs allowing
expansion or a raise in the limit where in-state needs dic-
tate such a rise. While the limit once imposed applies
equally to out-of-state and in-state wastes, in effect, it
guarantees in-state generators of waste space because the
limit can always be raised in order to meet in-state needs.
Therefore, we apply the per se test to Regulation 61-99.”
The needs regulation does not survive the per se test for
22 South Carolina’s reliance on Chambers Medical Technologies
of South Carolina v. Bryant, 52 F.3d 1252 (4th Cir. 1995), does
not aid its cause. South Carolina seeks to establish that the needs
regulation is similar to South Carolina’s fluctuating cap for in-
fectious waste based on the amount of waste generated in South
Carolina alone. In Chambers, we held that the fluctuating cap for
infectious waste might pass Commerce Clause scrutiny if it regu-
lated in an evenhanded fashion and had only incidental effects on
interstate commerce; whereas it would not be constitutional if it
discriminated facially, in effect, or in purpose, thus necessitating
that the per se test be applied. Jd. at 1262. Here, the regulation
discriminates in effect. Thus, the per se test applies.
Furthermore, significantly, we noted that the fluctuating cap in
Chambers did not operate as a ban on the expansion of facilities.
26a
the same reasons the remainder of the challenged South
Carolina laws failed to survive. South Carolina has raised
no issue of fact as to a state rationale unrelated to the
origin of the waste for its needs requirement.
D. Primary Jurisdiction
Finally, South Carolina attempts to persuade us that the
district court erred by failing to defer under the doctrine
of primary jurisdiction to the EPA in the first instance as
to whether South Carolina’s laws are constitutional.” “No
fixed formula exists for applying the doctrine of primary
jurisdiction.” United States v. Western Pac. R.R. Co., 352
U.S. 59, 64 (1956). Generally speaking, the doctrine is
designed to coordinate administrative and judicial decision-
making by taking advantage of agency expertise and refer-
ring issues of fact not within the conventional experience
of judges or cases which require the exercise of administra-
tive discretion. Id.; Commonwealth of Massachusetts v.
Blackstone Valley Elec. Co., 67 F.3d 981, 992 (1st Cir.
1995); Mashpee Tribe v. New Seabury Corp., 592 F.2d
575, 580 (1st Cir.), cert. denied, 444 U.S. 866 (1979),
and cert. denied, 464 U.S. 866 (1983).
The district judge refused to refer the instant lawsuit to
the EPA under the doctrine of primary jurisdiction be-
cause he found that there were no issues of fact. Primary
52 F.3d at 1262. It merely limited the amount of infectious waste
any one facility could process. While the South Carolina Code re-
quired that a permit be obtained in order to build a new facility
and that infectious waste generated out-of-state could only be con-
sidered in the needs calculations with DHEC approval, the Cham-
bers court assumed that the DHEC would not deny a permit on a
basis violating the Commerce Clause. Jd. at 1262 n.15. Thus, in
dicta, we suggested in Chambers that outright bans on expansion
based on in-state needs only will most likely not survive dormant
Commerce Clause scrutiny.
23 As conceded in oral argument, however, South Carolina has
r— ~ not requested that the EPA intervene in this case as an amicus
curiae, nor has the EPA sought intervention.
Bac in er Sa
27a
jurisdiction, he held, applied only to the referral of factual,
not legal, issues. He further reasoned that the “constitu-
tional issues . . . [at stake were more] properly within the
traditional purview of an Article III court, and are not
those to which EPA could conceivably lend some degree of
expertise.” ETC, 901 F. Supp. at 1029. We review the
district court’s decision declining to refer the lawsuit to the
EPA under the doctrine of primary jurisdiction for abuse
of discretion. In re Lower Lake Erie Iron Ore Antitrust
Litig., 998 F.2d 1144, 1162 (3d Cir. 1993), cert. denied,
114 S.Ct. 921 (1994) .™
The district court did not abuse its discretion. The
EPA’s special expertise is not needed to decide a question
of law in a constitutional matter.
Accordingly, the district court’s judgment is
AFFIRMED.
*4South Carolina contends that the district court’s refusal to
apply the doctrine of primary jurisdiction was based wholly on
erroneous conclusions of laws and should therefore be reviewed
de novo. “[D]espite what the term (primary jurisdiction] may im-
ply, [it] does not speak to the jurisdictional power _f the federal
courts. It simply structures the proceedings as a matter of judi-
cial discretion, so as to engender an orderly and sensible coordina-
tion of the work of agencies and courts.” In re Lower Lake Erie
Iron Ore Antitrust Litig., 998 F.2d at 1162 (quoting United States
v. Bessemer & Lake Erie R.R. Co., 717 F.2d 593, 599 (D.C. Cir.
1983)). Thus, the decision not to refer a lawsuit to an agency
under the doctrine of primary jurisdiction is a discretionary mat-
ter which we review for abuse of discretion. Furthermore, because
the matter at issue is a constitutional question which lies within
this court’s expertise, the district court correctly applied the law.
28a
APPENDIX B
[Filed Apr. 13, 1995]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Civil Action No. 3:90-1402-0
ENVIRONMENTAL TECHNOLOGIES COUNCIL,
On behalf of itself and its members,
‘dies Plaintiff,
STATE OF SOUTH CAROLINA, et al.,
Defendants.
FINDINGS OF FACT, CONCLUSIONS
OF LAW AND ORDER
The plaintiff has moved for summary judgment, assert-
ing that there are no genuine issues of material fact and
that it is entitled to judgment as a matter of law. Plaintiff
seeks a declaration that certain executive orders, statutes
and a regulation are invalid under the Interstate Com-
merce Clause of the United States Constitution.’ Pre-
viously, this Court concluded that the plaintiff would prob-
ably prevail on the merits and entered a preliminary in-
junction. Hazardous Waste Treatment Council v. South
Carolina, 766 F. Supp. 431 (D.S.C. 1991).? That deci-
1“Congress shall have the power .... [t]o regulate commerce
with foreign Nations, and among the several States, and with the
Indian Tribes.” U.S. CONST. art. I, § 8, cl. 3.
2The plaintiff has now changed its name from “Hazardous
Waste Treatment Council” to “Environmental Technologies Coun-
cil.”
29a
sion was affirmed by the United States Court of Appeals
for the Fourth Circuit and remanded for modification of
the preliminary injunction. 945 '.2d 781 (4th Cir. 1991).
Thereafter, the defendants and the intervenors filed mo-
tions to modify the preliminary injunction as directed by
the Court of Appeals. The plaintiff has filed a motion for
summary judgment pursuant to Rule 56, Federal Rules of
Civil Procedure. The Court has now considered the exten-
sive memoranda submitted by the parties, together with
the oral arguments and now enters its findings of fact and
conclusions of law.
I. PRIMARY JURISDICTION
At the September 20, 1994 hearing, this Court denied
Defendants’ Motion to stay and refer this case to the
U.S. Environmental Protection Agency (“EPA”) under
the primary jurisdiction doctrine. Primary jurisdiction ap-
plies only to the referral of relevant factual, rather than
legal, issues to a federal agency. See Far East Conference
v. United States, 342 U.S. 570, 574 (1952); Nader v.
Allegheny Airlines, 426 U.S. 290, 304 (1976). In this
case, there are no material facts genuinely in dispute, and
thus there are no factual issues requiring resolution by
EPA.
Moreover, the constitutional issues raised here are prop-
erly within the traditional purview of an Article III court,
and are not those to which EPA could conceivably land
some degree of expertise. See Environmental Defense Fund
v. Wheelabrator Technologies, 725 F. Supp. 758, 775
(S.D.N.Y. 1989), quoting Board of Educ. of City School
Dist. v. Harris, 622 F.2d 599, 607 (2d Cir. 1979), cert.
denied, 499 U.S. 1124 (1981) (“It is well established that
the courts need not defer to an agency where the issue in-
volved is a strictly legal one, involving neither the agency’s
particular expertise nor its fact finding prowess”); See also
Sierra Club v. DOE, 734 F. Supp. 946, 951 (D. Colo.
30a
1990) (“Where, as here, the issue is strictly legal, a court
need not defer to a state agency”). In accordance with
the mandate of the Fourth Circuit, this Court concludes
that referral to EPA is not appropriate. Hazardous Waste
Treatment Council v. South Carolina, 945 F.2d 781, 794
(4th Cir. 1991) (“EPA may change its interpretation of
its own regulation; however, we cannot change the com-
mands of the Constitution and Congress”) (“HWTC II”).
Il. MOTION TO MODIFY THE
PRELIMINARY INJUNCTION
This Court has considered both Plaintiff's Motion for
Summary Judgment and Defendants and Intervenors’ Mo-
tion to Modify the Preliminary Injunction. Because sum-
mary judgment is appropriate, any modification of the pre-
liminary injunction is now moot, ard the motion to modify
is denied. To the extent the permanent injunction issued
herewith differs from the January 20, 1991 preliminary
injunction, see Hazardous Waste Treatment Council v.
South Carolina, 766 F. Supp. 431 (DS.C. 1991)
(“HWTC I”), those changes are reflected below.
Ill. PLAINTIFFS MOTION FOR
SUMMARY JUDGMENT
This case challenges South Carolina’s discriminatory
efforts to regulate the management of hazardous waste
services located in the State.* At issue are two statutes,
two executive orders, and one regulation ‘which constitute
an integrated and interconnected discriminatory program.
As this Court and the Court of Appeals concluded at
the preliminary injunction stage, the State’s discriminatory
program violates the Commerce Clause. Because there are
3 There are three facilities in South Carolina licensed to handle
hazardous waste. The largest, located in Pinewood, is a disposal
facility operated by Laidlaw Environmental Services of South
Carolina, Inc. See HWRC I, 766 F. Supp. at 435.
3la
no material facts in dispute regarding the State’s program,
summary judgment is appropriate at this stage. See Phila-
delphia v. New Jersey, 437 U.S. 617 (1978); Chemical
Waste Management, Inc. v. Hunt, 112 S.Ct. 2009 (1992);
Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep’t of
Natural Resources, 112 S.Ct. 209 (1992); C&A Carbone,
Inc. v. Town of Clarkstown, New York, 114 S.Ct. 1677
(1994); Oregon Waste Systems, Inc. v. Dep’t of Environ-
mental Quality, 114 S.Ct. 1345 (1994); National Solid
Waste Management v. Alabama Dep’t of Env’t, 910 F.2d
713 (11th Cir. 1990), cert. denied, 111 S.Ct. 2800
(1991).
Initially, the State and Intervenors must come forward
with competent evidence cemonstrating a genuine issue of
material fact for trial. Fed. R. Civ. P. 56(e). See Ander-
son v. Liberty Lobby, inc., 477 U.S. 242 (1986); Celo-
tex Corp. v. Catrett, 477 U.S. 317 (1986). Defendants
have failed to bring forward any evidence relevant to meet-
ing this burden in the context of a case challenging facial
discrimination against interstate commerce. See, e.g.,
Wyoming v. Oklahoma, 112 S.Ct. 789 (1992); Healy v.
Bear Inst., Inc., 491 U.S. 324 (1989); City of Philadel-
phia v. New Jersey, 437 U.S. 617 (1978).
In particular, none of the eight affidavits the State has
provided raises a material fact in issue. The first, from
Lewis Bedenbaugh of the Department of Health and En-
vironmental Control (“DHEC”), addresses Superfund
clean-up activities in South Carolina, (Exhibit 1, Defend-
ant’s Memorandum In Opposition to Motion for Summary
Judgment.) The second and third, both by David Wilson
of DHEC, address volumes of hazardous waste being
treated, stored and disposed of in South Carolina and the
permitting process. (Exhibits 2 and 3.) The fourth, and
fifth, both by John Buchanan of DHEC, address the trans-
portation and record-keeping of hazardous waste in South
Carolina, and the State enforcement program for haz-
32a
ardous waste facilities. (Exhibits 4 and 5.) The sixth,
seventh, and eighth, all by Robert King of DHEC, ad-
dress 1) hazardous waste management capacities in vari-
ous states, 2) South Carolina’s EPA authorization to ad-
minister its own hazardous waste management program,
and 3) South Carolina’s efforts to enter a Capacity Assur-
ance Regional Agreement. (Exhibits 6-8.) While some of
the attachments to these affidavits do provide breakdowns
for in-state and out-of-state waste, none of the affidavits
even purports to justify South Carolina’s discriminatory
treatment of out-of-state waste.
The State’s failure to raise a factual issue for trial
demonstrates, as a matter of law, that the State cannot
carry its burden under the Commerce’s Clause’s “strict
scrutiny” standard. As the Court of Appeals noted, “[t]he
Commerce Clause directly limits the power of the States
to discriminate against interstate commerce.” HWTC II,
945 F.2d at 789, quoting New Energy Co. of Indiana v.
Limbach, 486 U.S. 269, 273 (1988) (“New Energy”).
A facially discriminatory program such as is at issue here
is invalid “‘unless the discrimination is demonstrably
justified by a valid factor unrelated to economic protec-
tionism.’” 945 F.2d at 790, quoting Maine v. Taylor,
477 U.S. 131 (1986). “Justifying discrimination is diffi-
cult to say the least.” HWTC II, 945 F.2d at 790. Where,
as here, each of the challenged laws “do not regulate even-
handedly but discriminate on their face against out-of-
state hazardous waste,” id. at n. 13, there is a “virtually
per se rule of invalidity ....” New Energy, 486 US. at
278-79, quoting Philadelphia v. New Jersey, 437 U.S. at
624. Therefore, “ ‘the strictest scrutiny of any purported
legitimate local purpose and of the absence of nondis-
criminatory alternatives’” applies. Wyoming v. Okla-
homa, 112 S. Ct. 789, 801 (1982), quoting Hughes v.
Oklahoma, 441 U.S. 322, 337 (1979).
At the preliminary injunction stage this Court noted
that, “[p]laintiff will likely succeed on the merits in their
33a
challenge to these actions under the Commerce Clause.”
HWTC I, 766 F.Supp. at 441. The Court also noted
that, “[I]t may not be gainsaid that the public interest is
best served when unconstitutional laws are enjoined.” Id.
at 442. At this stage, as Defendants have not come for-
ward with any evidence demonstrating a genuine issue of
material fact regarding the State’s purported “legitimate
local purpose” or the “absence of nondiscriminatory alter-
natives,” summary judgment is appropriate.
A. Undisputed Material Facts
1. South Carolina’s Discrimination Program
The program challenged here has five interrelated com-
ponents, comprised of two executive orders, two statutes,
and one DHEC regulation. Together they compose one
overall program designed to provide a system of preferen-
tial treatment for hazardous waste generators in-state at
the expense of out-of-state generators. Section 9 of Act
No. 196 of 1989, which amends S.C. Code Ann. Section
4456-130, and Executive Order (“E.O.”) No. 89-17, the
“blacklisting” provisions, prohibit the introduction into
South Carolina of any hazardous waste from generators in
particular states—those which, as determined by South
_Carolina: (1) prohibit treatment, storage or disposal of
such waste within their borders, or (2) fail to enter into a
regional or interstate agreement with South Carolina re-
garding the management of such wastes. See HWTC I.
766 F. Supp. at 436-37. This statute and order also re-
quire the State’s treatment and disposal facilities to give
preference to hazardous waste generators within the State.
Section 5, Act No. 196; S.C. Code Ann. 44-56-205; E.O.
89-17. The State and Intervenors have essentially aban-
doned any argument that these two laws pass muster under
the Commerce Clause.
Act No. 590 of 1990, amending S.C. Code Ann.
Section 44-56-59 and Section 44-56-60(a), and E.O. No.
89-25, the “quota” provisions, put inequitable limits on
34a
the amount of hazardous waste that can be disposed of
in South Carolina. See HWTC I, 766 F.Supp. at 437-48.
As proof of iis discriminatory purpose, $.C. Code Ann.
Section 44-56-59 provides:
(A) The General Assembly finds:
(1) The existing commercial land disposal facility
in South Carolina [Pinewood] and available capacity
in this State generally are limited resources;
(2) It is essential that the limited waste treatment
and disposal capacity of the existing commercial fa-
cility [Pinewood] and the State in general be pre-
served, ready and available to ensure that the needs
of South Carolina are met first;
(3) The existing commercial land disposal fa-
cility [Pinewood] as well as other hazardous waste
treatment and disposal facilities must give preference
to hazardous waste generators within the State for
treatment and disposal of hazardous materials at
licensed facilities in the State;
(4) The General Assembly [Act No. 196] and
the Executive branch [E.O. Nos. 89-17 and 89-25]
have mandated restrictions on the importation of out-
of-state wastes and on the capacity of existing haz-
ardous waste landfills; and
(5) Reducing the amount of hazardous waste
shipped to South Carolina commercial facilities will
send a message to all states that South Carolina in-
tends to reduce to the greatest extent ossible the
amount of hazardous waste treated and disposed of
in this State.
(B) Based upon these findings the General Assembly
declares that:
* * * *
(2) As this State reduces its reliance on landfill-
ing—the amount of hazardous waste being shipped
into the State should be reduced and eliminated also.
35a
Accordingly, Section 44-56-60(a)(2) of Act No. 590
subjects Pinewood to a lowered disposal quota of 110,000
tons per year.* Of that quota, E.O. No. 89-25 sets aside
54,000 tons for hazardous waste “generated in South
Carolina.” Thus a substantial portion —45 percent of the
overall quota—is reserved for South Carolina waste.
Section 44-56-60(a)(3) of Act No. 590 requires that
Pinewood reserve at least as much capacity for in-state
waste as the facility disposed during the previous twelve
months. Thus, if more than 54,000 tons is disposed of by
South Carolina, that new amount now serves as a floor
for the next 12 months. Pinewood may not, however,
accept any more out-of-state waste than it accepted during
the previous twelve months. Thus, if Pinewood accepted
less than 56,000 tons from its out-of-state customers over
the previous twelve months, that lower amount now serves
as a new ceiling for the next twelve months. South Caro-
lina generators of waste thus benefit from preferential
treatment contained in Section 44-56-60(a) (3) while out-
of-state customers fight for access to the shrinking portion
of the lowered 110,000 ton total.
Further, under E.O. 89-25 generator-customers located
in other states may only utilize up to 35,000 tons of the
overall out-of-state quota and not more than 10,000 tons
per quarter. E.O. No. 89-25. South Carolina generators,
then, are entitled to bring to Pinewood each year over
50% more waste than generators from any other one
state (54,000 tons as compared with 35,000 tons. )
The final element in this discriminatory program is
DHEC Regulation 6199. This regulation contains require-
ments for the permitting of new or expanded hazardous
waste management facilities, including a “demonstration
of need” for the new or expanded facility. Plaintiff does
*From July 1, 1990 to July 1, 1991, the capacity limit was
120,000 tons. After July 1, 1991, the 110,000 limit was to go into
effect, except for this court’s preliminary injunction.
36a i
not challenge this regulation in its entirety. Instead, plain-
tiff only seeks to declare invalid that portion which pro-
hibits an applicant from including out-of-state waste in
the demonstration of need: “[f]or the purposes of demon-
strating need, Hazardous Waste generated outside the
State of South Carolina shall not be included.” DHEC
Reg. 61-99, I1I(C). HWTC I, 766 F. Supp. at 436.
2. The State Has Failed To Demonstrate That Any
Material Facts Are Genuinely In Dispute
Defendants argue that material facts remain in dispute
which preclude summary judgment and require a trial.
As each of the challenged provisions facially discriminates
against interstate commerce, however, the State bears the
extraordinarily high burden of demonstrating that (1)
there is a legitimate local purpose for the discrimination,
and (2) there are no non-discriminatory alternatives which
could serve this purpose. Wyoming v. Oklahoma, 112
S. Ct. at 801 (“ ‘At a minimum such facial discrimination
invokes the strictest scrutiny of any purported legitimate
local purpose and of the absence of nondiscriminatory
alternatives’”) (emphasis added), quoting Hughes, 441
U.S. at 337; see also Maine v. Taylor, 447 U.S. 131, 144
(1986), quoting Hughes; HWTC II, 945 F.2d at 790
(“[jJustifying discrimination is difficult to say the least”).
Where, as here, each of the challenged laws “do not regu-
late evenhandedly but discriminate on their face against
out-of-state hazardous waste,” id. at n. 13, there is a “vir-
tually per se rule of invalidity ....” New Energy, 486
U.S. at 278-79, quoting Philadelphia v. New Jersey, 437
U.S. at 624. The burden of overcoming the “virtually per
se” rule is extraordinarily high, and it has been accom-
plished only once or twice over the entire history of the
Nation.
South Carolina argues that it is entitled to a trial “to
exercise its right to adduce evidence in justification of the
purpose and basis for its challenged laws.” (Memoran-
|
37a
dum in Opposition at 5). It is the State’s position that
this Court may not enter summary judgment simply be-
cause the Fourth Circuit did not resolve the matter “on
the merits” at the preliminary injunction stage. HWTC
II, 945 F.2d at 789 n. 11.
But this case is no longer at the preliminary injunction
Stage. In declining, “to decide the case on the merits at
the early prelimianry injunction stage,” id., the Fourth
Circuit property was drawing a distinction between a pre-
liminary injunction motion and a decision on the merits.
The present motion is for summary judgment, disposition
of which is every bit an adjudication on the merits as a
trial.
In particlular, at the summary judgment stage, unlike
the preliminary injunction stage, it is not sufficient for
South Carolina to simply assert an “intention to produce
evidence” at some future time. Rather, the time is now
for the State to come forward with actual evidence to
carry its burden under “strict scrutiny” and defeat sum-
mary judgment. See Anderson v. Liberty Lobby, Inc.,
477 US, at 256 (“Rule 56(e) itself provides that a party
opposing a properly supported motion for summary judg-
ment may not rest upon mere allegation or denials of his
pleading, but must set forth specific facts showing that
there is a genuine issue for trial”). This is particularly
true where, as here, it must submit enough evidence to
overcome the heavy burden of the virtual per se rule of
invalidity. See generally Metuskits Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574 (1986): Celotex
Corp. v. Catrett, 477 U.S. at 322, 323 (“[t]he moving
party is ‘entitled to a judgment as a matter of law’ be-
cause the nonmoving party has failed to make a sufficient
showing on an essential element of her case with respect
to which she has the burden of proof”).
Thus the State is obligated to demonstrate that there
is a material fact genuinely in dispute. Mere incantations
will not suffice at this stage of the litigation. Nonetheless
tial issue: why discrimination against interstate com-
merce is necessary to achieve the State’s allegedly legiti-
mate purposes. In particular, South Carolina purports to
list in its Memorandum in Opposition to Motion for Sum-
mary Judgment “factual matters” that “must be ad-
dressed.” (Memorandum in Opposition at 9.) All of the
factual issues listed in the Memorandum in Opposition
and in the State’s Statement of Material Facts, however,
either (1) are undisputed at this stage (i.e., the State’s
presumably legitimate purpose, which Plaintiff concedes
for purposes of this motion only); (2) are irrelevant to
the constitutional issues at hand; or (3) raise questions
of law rather than questions of fact.
Assuming arguendo that the State possesses legitimate
local purposes for placing certain restrictions on hazard-
ous waste, in order to prevail the State must demonstrate
what those goals cannot be achieved without facially vio-
lating the commerce clause: “[W]hatever [a state’s] ulti-
mate purpose, it may not be accomplished by discriminat-
ing against articles of commerce coming from outside the
State unless there is some reason, apart from their origin,
to treat them differently.” Philadelphia v. New Jersey,
437 U.S. at 627 (emphasis added); see also Wyoming v.
Oklahoma, 112 S.Ct. at 800 (discriminatory laws “will
be struck down unless the discrimination is demonstrably
justified by a valid factor unrelated to economic protec-
tionism”) (citations omitted). The fatal flaw in South
| Carolina’s program is that the State has failed even to
suggest that it has some basis—other than state of origin
—for discriminating against out-of-state waste. In fact,
that is the reason for the discrimination. Thus, the State
cannot justify such unconstitutional activity under any
set of alleged facts.
38a
incantations are all the State has provided on the essen-
Certainly Defendants’ Statement of Material Facts does
contain certain incantations regarding alternatives—“The
South Carolina laws reflect the unavailability of neutral
39a
alternatives to achieving the State’s legitimate purposes in
the pertinent circumstances” (Statement of Material Facts
at 2); “The failure of [EPA] and other States to license
new or additional commercial land disposal capacity has
Severely restricted the availability of neutral alternatives
for achieving the State’s legitimate purposes” (Jd. at 3).
Nowhere in the record, however, is there evidence to sup-
port the assertion that neutral alternatives are not avail-
able.
Indeed, nowhere in the record has South Carolina
argued that hazardous waste from out-of-state is any dif-
ferent from hazardous waste generated in-state. As noted
by this Court and the Fourth Circuit at the preliminary
injunction stage, there is no difference: “{h]azardous
wastes generated out-of-state pose no more threat to
human health and the environment than hazardous waste
generated in South Carolina.” HWTC I, 766 F. Supp. at
441-42, quoted in HWTC II, 945 F.2d at 788. In the
absence of a bona fide distinction, any effort to discrim-
inate against out-of-state waste solely because it is from
out-of-state customers must fail. See Philadelphia v. New
Jersey, 437 U.S. at 629 (because “there is no basis to dis-
tinguish out-of-state waste from domestic waste... . [the
State’s] legislative effort is clearly impermissible under the
Commerce Clause... .”).
The State has not presented any evidence to show the
absence of nondiscriminatory alternatives. Although
South Carolina has not precisely articulated its purposes,
there appear to be several alleged concerns, all of which
can be satisfied through nondiscriminatory means.
First, South Carolina mentions its concern for the
“health, safety and welfare of its citizens.” However, as
this Court expressly found (and the Fourth Circuit af-
firmed), “[h]azardous wastes generated out-of-state pose
no more threat to human health and the environment
than hazardous wastes generated in South Carolina.”
HWTC I, 766 F. Supp. at 441-42, quoted in HWTC II,
40a
945 F.2d at 788. Accordingly, to the extent the State
deems the existing comprehensive federal and State regu-
latory regimes insufficient to protect public health and
safety, the State’s interest can be served by nondiscrim-
inatory hazardous waste management regulations that are
applicable to all waste treated and disposed of within
South Carolina. See Philadelphia v. New Jersey, 437
U.S. at 629; accord New Energy, 486 U.S. at 279.
Second, South Carolina also is concerned with preserv-
ing disposal capacity. As the Fourth Circuit held, how-
ever, it is impermissible for a state to “accord its own
inhabitants a preferred right of access over consumers in
other States to natural resources located within its bor-
ders.” Philadelphia v. New Jersey, 437 U.S. at 627; ac-
cord New England Power Ct. v. New Hampshire, 455
U.S. 331, 338 (1982); cited in HWTC II, 945 F.2d at
792 (“South Carolina has little inherent right to use ca-
pacity located within its borders solely for waste gener-
ated within its borders”). The Commerce Clause thus
bars any attempt to “conserve” hazardous waste capacity
through discriminatory laws. If South Carolina is truly
interested in preserving its in-state capacity, that interest
would be served by the bona fide evenhanded regulations
that apply to in-state and out-of-state waste generators.
See HWTC II, 945 F.2d at 792 (“South Carolina may
preserve the capacity by limiting total disposal and treat-
ment within the state without reference to whether in-state
or out-of-state waste is actually involved”) (Footnote
omitted). Moreover, the Supreme Court recently re-
jected the argument that protectionist and discriminatory
measures are necessary “as landfill space diminishes and
environmental cleanup costs escalate. . . .” Carbone, 114
S. Ct. at 1683. As the Court held in Carbone, there has
never been a showing “that the unobstructed flow of in-
terstate commerce itself is unable to solve the local prob-
lems” «which face all landfills around the country. /d.
Third, South Carolina makes mention of vague “trans-
portation risks,” again without distinguishing between
4la
wastes generated in-state and those generated out-of-state.
There is no evidence that any of the challenged South
Carolina laws even address this purported concern. How-
ever, even if South Carolina were interested in seeking to
minimize the risks associated with transportation of haz-
ardous waste, there would be several nondiscriminatory
methods of addressing that interest. For example, South
Carolina could increase the stringency of its regulations
on an evenhanded basis, effectively addressing the State’s
putative transportation concerns by not exempting South
Carolina waste or waste that is imported through South
Carolina. With alternatives available to it, South Carolina
cannot force only interstate commerce to bear the burden
of its purported concerns.
Finally, it appears to be South Carolina’s perception
that certain other state’s are not bearing their “fair share”
of hazardous waste treatment and disposal. It thus has
tried to influence the public policy of other states to com-
pel them to take action. Suffice it to say that punishing
other states is not a legitimate purpose under the Com-
merce Clause. See HWTC II, 945 F.2d at 791 (South
Carolina does not have the authority “to punish certain
hazardous waste generators merely because they reside
in states that South Carolina concludes have not fulfilled
obligations under CERCLA § 104(e)(9)”). Only Con-
gress has the responsibility and power under the Constitu-
tion to impose national policy on individual states. In-
deed, for South Carolina to try to impose its will on its
neighbors is nothing more than one state making economic
warfare on another of its sister states.
As for its purportedly legitimate local purpose, South
Carolina asserts a range of general justifications. (See
Statement of Material Facts (“South Carolina has legiti-
mate purposes in protecting the health, safety and wel-
fare of its citizens”); (“South Carolina has a legitimate
public purpose in taking actions to reduce reliance upon
land disposal of hazardous waste”); (“South Carolina has
42a
a legitimate public purpose in taking measures to mini-
mize the transportation of hazardous waste in the State”);
(“South Carolina has a legitimate public purpose in tak-
ing measures to minimize the disposal of hazardous waste
in the State”); (“South Carolina has a legitimate public
purpose in carefully regulating the siting of new disposal
facilities” ) ).
South Carolina’s emphasis on this “purpose,” however,
misses the point entirely. The general purpose of such
laws are largely irrelevant when facial or substantial dis-
crimination is involved. See Phildelphia v. New Jersey,
437 U.S. at 626 (“[t]his dispute about ultimate legislative
purpose need not be resolved, because its resolution would
not be relevant to the constitutional issues to be decided
in this case”). Thus, it is “the discrimination [that must
be] demonstrably justified by a valid factor unrelated to
economic protectionism.” New Energy, 486 U.S. at 274
(citation omitted). Every time the State grants a prefer-
ence to in-state waste—by allowing that waste to be dis-
posed in the State, or setting differential quotas, or barring
consideration of out-of-state market needs and customers
in determining whether a facility may be built or ex-
panded—it is engaged in a form of protectionism the Con-
Stitution forbids by granting benefits to its citizens and
businesses while denying them to those of other states. A
state cannot seek to achieve a “presumably legitimate
goal” by “ ‘the illegitimate means of isolating the State
from the national economy.’” Wyoming v. Oklahoma,
112 S. Ct. at 361, quoting Philadelphia v. New Jersey,
437 U.S. at 627. In other words, even if a state demon-
strates a legitimate purpose for its laws, those are imper-
missible if that purpose is accomplished by discriminating
solely on the basis of origin. Thus, the Supreme Court in
Philadelphia v. New Jersey found the State’s salutary
motives irrelevant, stating:
[I]t does not matter whether the ultimate aim of
[the law] is to reduce the waste disposal costs of
neni
43a
[the State’s] residents or to save remaining open lands
from pollution, for we assume [the State] has every
right to protect its residents’ pocketbooks as well as
their environment. . . . But whatever [the State’s]
ultimate purpose, it may not be accomplished by dis-
criminating against articles of commerce coming
from outside the State unless there is some reason,
apart from their origin, to treat them differently.
437 US. at 626-27.
In addition, while it is evident from the alternatives
South Carolina chose not to pursue that there are indeed
nondiscriminatory alternatives, a close look at the pro-
gram South Carolina did put into place reveals that the
actual purpose of the program was to discriminate. In
Act No. 590, Section 44-56-59(A)(1) reflects the State’s
clear and unmistakable efforts to discriminate by voicing
concern about “limited resources” for disposal of hazard-
ous waste. The next provision references South Carolina’s
demand that “the needs of South Carolina are met first”
and that disposal facilities in the State must “give pref-
erence to hazardous waste generators within the State.”
Id. at (A)(2), (3). In addition, the two executive orders
contain “whereas” clauses rife with indicia of the State’s
true purpose.
B. Conclusions of Law
South Carolina is not the only state that has recently
discriminated against the interstate waste services market.
See Philadelphia v. New Jersey, 437 U.S. 617 (1978);
Chemical Waste Management, Inc. vy. Hunt, 112 S.Ct.
2089 (1992); Fort Gratiot Sanitary Landfill, Inc. v.
Michigan Dep’t of Natural Resources, 112 S.Ct. 2019
(1992); C&A Carbone, Inc. v. Town of Clarkstown, New
York, 114 S.Ct. 1677 (1994); Oregon Waste Systems,
Inc. v. Dep’t of Environmental Quality, 114 S.Ct. 1345
(1994). National Solid Waste Management v. Alabama
Dep't of Env’t, 910 F.2d 713 (11th Cir. 1990), cert.
44a
denied, 111 S.Ct. 2808 (1991). As the Fourth Circuit
explained, these attempts to discriminate must fail:
Perhaps most importantly, the effect of every state
designing particular limits and bars for out-of-state
waste could be catastrophic. Indeed, such treatment
of hazardous waste—in essence, ensured nontreat-
ment of some hazardous waste—might destroy not
only the theoretical principle of a national economic
union, but contains the real potential to destroy land,
if not also persons, within the union.
HWTC II, 945 F.2d at 792 (citation omitted).
If South Carolina were entitled to enforce this program,
every state could act similarly. The result would be states
making economic war on other states in connection with
the policies those states choose to pursue for hazardous
waste treatment and disposal:
The practical effect of the [discriminatory] statute
must be evaluated not only by considering the con-
sequences of the statute itself, but also considering
how the challenged statute may interact with the
legitimate regulatory regimes of other states and
what effect would arise if not one, but many or every
state enacted similar legislation.
Healy v. The Beer Institute, 491 U.S. at 336.
Thus, the constituent parts of South Carolina’s program
are unconstitutional, because they discriminate against
out-of-state interests. Further, because those parts work
together to compose an overall discriminatory program
the entire program is unconstitutional.
Defendant’s essentially agree that the blacklisting laws
are invalid. They impose an embargo on any waste from
generators in certain states. This is exactly the sort of
discrimination the commerce clause prohibits:
South Carolina’s Act, No. 196 seems to punish cer-
tain hazardous waste generators merely because they
Serr ener neces
45a
reside in states that South Carolina concludes have
not fulfilled obligations under CERCLA 104(c) (9).
But South Carolina does not appear to have been
empowered to place penalties on businesses in such
States... . And its seems unlikely that South Caro-
lina can penalize its own citizens by prohibiting them
from participating in interstate commerce with other
States’ citizens simply because that state has not met
its obligations under CERCLA 104(c)(9). The
Commerce Clause protects those “engaged in inter-
state commerce.”
HWTC II, 945 F.2d at 791-2 (other citations omitted).
Thus, Section 9 of Act No. 196, amending S.C. Code
Ann. Section 44-56-130, must be enjoined. In addition,
Section 5 of Act No. 196, which requires that preference
be given to in-state generators, must also be enjoined.
S.C. Code Ann. 44-56-205.
Similarly, all of the operative language of Executive
Order No. 89-17 must be permanently enjoined. These
provisions mirror Act No. 196 in blacklisting hazardous
waste from certain other states and granting a preference
for in-state waste.®
The quota laws are also invalid. They systematically
discriminate against out-of-state businesses by allowing in-
State generators to dispose of significantly more hazardous
waste than out-of-state generators. Act No. 590 is thus
invalid in its entirety. Defendants assert that the so-called
“neutral cap” on disposal in Act No. 590 (S.C. Code
Ann, 44-56-60(a)(2)) can be “divorced” from the rest
of the State’s discriminatory program even if the other
discriminatory provisions were invalid. Defendants cite
5 Plaintiff does not object to the Court’s refraining from per-
manently enjoining the “whereas” sections of E.O. 89-25 and E.O.
89-17, as these do not contain any operative language. Therefore,
although these sections do indicate that the operative sections were
designed in toto to discriminate, this Court need not enjoin them
per se.
46a
the Fourth Circuit’s dictum that, with regard to the pre-
liminary injunction, “South Carolina may preserve the
capacity by limiting total disposal and treatment within
the state without reference to whether in-state or out-of-
state waste is actually involved.” HWTC II, 945 F.2d at
792. As shown above, however, the so-called neutral cap
on disposal is set forth in a statute which expressly refer-
ences discrimination, both in the statute itself and in its
references to the blacklisting statute and executive order.
See Act No. 598, Section 1, amending S.C. C
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