# Petition for Writ of Certiorari — South Carolina v. Environmental Technology Council > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0085%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 521 U.S. 1103 ## Text 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 PP RAG TE © sicinineinchigninsertasnicenddeaisdeniscuiaa bapa titdccnavets 108a 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 oo ee 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. a TEE a So eeeeeeeoeoorerereeeee ee Sa hee See ‘a See * 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0085%3A1. Public record. Not legal advice.