Amicus Curiae Brief — South Carolina v. Environmental Technology Council

7 Qa7 ;

MAY 30 W995!

i

No. 96-1102 Ci

SO a Em

In the Supreme Court of the Giuted States

OCTOBER TERM, 1996

SouTH CAROLINA, ET AL., PETITIONERS

Ps

ENVIRONMENTAL TECHNOLOGY COUNCIL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

WALTER DELLINGER

Acting Solicitor General

LOIS J. SCHIFFER

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

ANN HUBBARD

Assistant to the Solicitor

General

ALBERT M. FERLO, JR.

ETHAN G. SHENKMAN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-221?

QUESTIONS PRESENTED

Section 3006 of the Resource Conservation and

Recovery Act of 1976 (RCRA), 42 U.S.C. 6926, author-

izes the Environmental Protection Agency (EPA)

to allow States to implement their own hazardous

waste programs that are consistent with the federal

program. Section 104(c)(9) of the Comprehensive

Environmental Response, Comyensation, and Liabil-

ity Act of 1980, 42 U.S.C. 9604(c)(9), as added by

Section 104(k) of the Superfund Amendments and

Reauthorization Act of 1986 (SARA), Pub. L. No. 99-

449, 100 Stat. 1621, conditions the payment of certain

cleanup funds within a State on EPA approval of the

State’s plan for long-term treatment or disposal of the

hazardous wastes produced within its borders. The

questions presented are:

1. Whether Section 3006 of RCRA or Section

104(c)(9) of SARA indicates an unmistakably clear

congressional intent to allow States to discriminate

against interstate commerce in hazardous wastes.

2. Whether South Carolina’s cap on land disposal of

hazardous wastes and its “demonstration of need” re-

quirement for new and expanded hazardous waste

facilities, both of which differentiate between in-state

and out-of-state wastes, are “neutral” provisions that

must be considered separately from other provisions

of South Carolina’s hazardous waste program.

3. Whether the district court abused its discretion

in declining to refer this case to EPA under the “pri-

mary jurisdiction” doctrine.

(I)

$A ai SDS te

A ehoatmhae: CIRCE. © WO. se

TABLE OF CONTENTS

Page

oe cg ESLER AA LALA EUSA SOE SCR TT l

1. South Carolina’s hazardous waste program ..... 2

2. Federal statutory and regulatory framework . 4

3. EPA approvals and authorizations in South

RE Sita ceeds Litt ipicniekenicicdosipeiat veceuscisenkesis 6

We IEE IIE Gish ute tasenepncicacnekccervetinnspcaaktecessnaies 8

DIU Siclbuii soudiishins ib duncsintnssunnirnndninaadantinacevsuakcaicasonans 1]

UU aisalAininss casa ce sorrcsirnelatis enseccosasecokiviendines's coisas 20

TABLE OF AUTHORITIES

Cases:

C & A Carbone, Inc. v. Town of Clarkstown,

ee ND adidas cniiiccatenidupbsbindeareinsebecenivs 11, 13

Camps Newfound/Owatonna v. Harrison,

No. 94-1988, 1997 WL 255351 (May 19, 1997) ......... 11

Chemical Waste Management, Inc. v. Hunt,

SE SAE ANE TAINED Nancechbsthensinginascdbvosesenetneheacineviecen 1]

Chemical Waste Management, Inc. v. Templet,

967 F.2d 1058 (5th Cir. 1992), cert. denied, 506

Ie WN MII ceased alia che idabey Lag tdaaibachindainionessons 15

Fort Gratiot Sanitary Landfill, Inc. v. Michigan

Dep't of Natural Resources, 504 U.S. 353 (1992) .. 1]

Hunt v. Washington State Apple Advertising

ME 8 | Fey 5 Sane ll

Lower Lake Erie Iron Ore Antitrust Litig., In re,

998 F.2d 1144 (3d Cir. 1993), cert. denied, 510

LE go SERRE SER ae Regen a 20

Maine v. Taylor, 477 U.S. 131 (1986) ..............0000. 13

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130

GE visidinsedasia sa jantaiananescaustiomedobnaiduitadiganeecnniebeboopsbieukioanes 17

(IIT)

IV

Cases—Continued: Page

National Solid Wastes Management Ass’n v.

Alabama Dep't of Envt’'l Management, 910

F.2d 713 (1990), as modified upon denial of

reh’g, 924 F.2d 1001 (11th Cir.), cert. denied,

OE Ti aa: TIP LAMPE? iichscsinevinisechnceasanipaneeiatascorneneens 18

New Energy Co. v. Limbach, 486 U.S. 269

IE aasiccaciss vackanaienateins caacebapins tgp aabaehtaaatasanieiesins 11

New England Power Co. v. New Hampshire,

GI EE-T0.- IRE. CAD nich ntininsscda pense cana haieunnalaneneiis 16

Northeast Bancorp, Inc. v. Board of Governors

of the Federal Reserve Sys., 472 U.S. 159 (1985) ... 17

Northwest Atrines, Inc. v. County of Kent,

TEAAY Uo ek CHORE LEUIED cccoccinceictnninceniocabikvaneiypeitanuntes 13

Oregon Waste Sys., Inc. v. Department of Envt'l

Cheneztita, GEE UG. GS CEIIO) cscscseseccnsacnssenesensetecasias 11, 19

Philadelphia v. New Jersey, 437 U.S. 617

CSTD aninieiciccsdieiaginsivenrtieccchansarealcktieiainintnaananss 1]

South-Central Timber Dev., Inc. v. Wunnicke,

Bc OE CA Sctinteinetiisbiandenerniennee 13

Sporhase v. Nebraska, 458 U.S. 941 (1982) .......... 13, 16

United States v. Western Pac. R.R., 352 U.S. 59

CRIED «x sdachccoicsnsncccenscithinighakeghia:tbaniogbeaeaateemecmniecnaions 19

West Lynn Creamery, Inc. v. Healy, 512 U.S. 186

SRONPES .<cicnscndnneiumisinirhinnhnadiibepastiadcelackeninimnimisenndhuiebien 9, 19

White v. Massachusetts Council of Construction

Employers, Inc., 460 U.S. 204 (1983) .......... eee 17

Wyoming v. Oklahoma, 502 U.S. 487 (1992) .......... 11

Constitution, statutes and regulations:

U.S. Const.:

Art. I, § 8, Cl. 3 (Commerce Clause) .................. passim

BR, TEA: snsninkcpcaiantsssicnstbenaaksibaniadiekoarmciieiamatice i9

Comprehensive Environmental Response, Compen-

sation, and Liability Act of 1980, 42 U.S.C. 9601

OE BOB. ciiccantiadisarideccavssnsvisiceiintatansiprnarcnunaebisasdeablininns 4

OE UA GOR sacha icenitittnisishtoniions 5

V

Statutes and regulations—Continued: Page

4B 15 BK. FROIN) sivvcciccsattscicsaseriscccsssesvevens 6

MS UBL. GOOTCKOMD) | resccsscccsccecsasscescananpsccese 6, 14, 18

GE REFS, Te akinesiviciaxaceasesvacecsauanicinasiivrusionsies 5

Be TEA, FERN sacihevscsenrcvsssiuisdesecicensisernisnesions 5

OS UAE.. DOE esi tctincicniddpeminetuntie 5

BR CEES, BI TRD sive sasiccvnvinvsicstinssenianssaminavecstentets 5

Low-Level Radioactive Waste Policy Act, 42 U.S.C.

2021b et seq.:

MUsr WANE Sn 16

PEt GON Nene eee eat 17

SUSE MIND sec sacine 17

Resource Conservation and Recovery Act of 1976,

42 U.S.C. 6901 et seq:

§ 1005(b)(1), 42 U.S.C. 6904(b)(1) ....... cc eeeeeeseeees 16

§§ 3001-3020, 42 U.S.C. 6921-6939b ...........:eseeeeees 4

§§ 3002-3005, 42 U.S.C. 6922-6925 .............ssseseeees 4

SI Be CR, GIO Wirirsstcorintvicicsnioncasicns 4, 5, 6, 15

§ BOOTS), 4E UB... GOOD csccccsiscsnvcccessescessscnese 4

Superfund Amendments and Reauthorization Act

of 1986, Pub. L. No. 99-499, 100 Stat. 1618 ............. 4

SOG TAD. Pith TOTS scvscissencc taiewieteerninine snsinstpieaivenane 3

Pit, 206, Te cities -dibdicanininebaaeabaadal adit 3, 8, 11

OO a circa stesesseanesinanihicetnetitesibemnncinanea tekeeiannat alan 3

DF cis sdccahewnkinhonnebsammabiatenaiaiiupalaleekusvbauntieniaiirs 3

FORD B.C Bebe BOGS vcssessecitercrderivcenisianiesisealigrniandavins 3

Bi Fee: TOG scascaecisiiacargiasiokiocs 3, 4, 8, 9, 10, 12, 18, 18

Db i issctincscnprucsessinerthsesmioatnbaanieinneiniaandees 4

Gs iiceaiccininrilenciatvcienmsiaintthen eta acca aes 3, 18

S.C. Code Ann. (Law. Co-op. Supp. 1996):

SF BRB LAD sisic etscecasinevcicsacentcctnmesonaniapnenien 4

DEE iisacoincsiipincktiriesvinasapeadaveaewliaayenalionts 3, 13

DR BING sicnsiccdcsacnacscintiscscsstenieticnndenessukeinkss 3

OS IIE sii csasccccisycatpnncaccsaprnsacdeabtheciatasssatanreans 3

40 C.F.R.:

I Ia wiicckcntncccevernkssvlvtenhibabewakbvutaaceadeintbantual 6

SRN TEED... ivi ccnvannchoianievadsiebnaynataendabninsense 5, 16

eens SER SEAT LG nvssscineestsnceineinsacesiossssnavininvests 7

I BEF EEE. snsianscnecesscintsssntacatersesunouaiaaaerianinem 7

Cte EEG csi snnisnnsciccbsavercerscocsiveronnncdcsaceistasas 7

VI

Regulations—Continued: Page

S.C. Dep’t of Health and Envt’l Control Reg.

BED sase crevsnneirisivtbieastvasecenticvetdodtiniains asbnasniebets 2, 8, 9, 10

S.C. Exec. Order:

DOO. GTS CARE. GH, TOBR) ccccsnensicsceseinnvncconetens 2, 3, 7, 8, 11

DEO: BRD CHU ©, TOBB) ccssseccrissscsccnctccsseoessssesnunns 2, 8, 11

Miscellaneous:

EPA Office of Solid Waste and Emergency

Response, Directive 9010.00a (Oct. 16, 1989) ......... 8

EPA, Policy Regarding Hazardous Waste Manage-

ment Capacity and RCRA Consistency Issues

CEO: TR SE since citestapeincenntineaddcecnaaiigienbcdasietins 15

OB Fatk.. Raee, SEATS IGG) eens sncsscsecisecsocscahovessensentace 16

50 Fed. Reg. (1985):

ih, SEE sbisisebindpsiaddninbacineuaksbainiabeberemmesenaneialaiia des 6

Wi CIEE inisronceavsicenssinecskaviilenvidaniilcdine sdvianeinddeimaniaabeahios 5

i, MEE anvcasiissahncantnipaisnninexidusnieua a bbepekuadeannieiaadgeaas 5

51 Fed. Reg. (1986):

i, FAA \sidicunkaiaiteneivinbsntencapehasultinntvanabieeia 7

i, iia 1 IAL. nk senudaunadndadiienwendendnndbccpecananibéanpasbensinbaneabitel 7

53 Fed. Reg. (1988):

Wh TIP. wexinscsisninntentidischunstekautavenenivuntiarsmmmcibileniena 5

Di. SEL UUEP ssskcsciasionsonndiesiahadinchsedetendibdedacehnsbeimeshibsnihandaniataagau 5

GE FG; Tei; THe GIGI sncecaseninneesesicttitnsrmnccetanamesl 7

GD Fadi, Team, GRBAG CIID) . seiseccesassccciaceicniascsabectiestoces 7

60 Fed. Reg. (1995):

Si, LINE Aicancindoansiviecabieldninasiibes hininiahittliaaacaniabaatiebeibaataes 7, 18

a IEE: sniieshaieinasthstedcinieinsinrestnbaidsleiiaibieptaaibiaiiidanalileinabiiaete 13

i, ERAT sedesenadenschniteikintinaniiemunieniiddaadasmunsebccabeians 13

De GERITTIE, citciinddinbbthdednanesnayucdiniiainidesiiecabinmcitan 13

In the Supreme Court of the Cited States

OCTOBER TERM, 1996

No. 96-1102

SOUTH CAROLINA, ET AL., PETITIONERS

Vv.

ENVIRONMENTAL TECHNOLOGY COUNCIL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is submitted in response to the Court’s

order inviting the Solicitor General to express the

views of the United States.

STATEMENT

Respondent Environmental Technology Council

(formerly Hazardous Waste Treatment Council)

brought this challenge under the Commerce Clause,

U.S. Const. Art. I, § 8, Cl. 3, to a series of South Caro-

lina statutory and regulatory provisions governing

the treatment and disposal of hazardous wastes in

that State. The district court granted a preliminary

injunction against enforcement of the challenged pro-

visions, Pet. App. 82a-104a, and that injunction was,

in relevant part, upheld by the court of appeals, id.

(1)

2

at 50a-8la. The United States participated in that

appeal as amicus curiae on behalf of respondent.'

On remand, the district court granted summary

judgment for respondent and permanently enjoined

the challenged provisions. Pet. App. 28a-49a. The

court of appeals affirmed. Jd. at la-27a. The United

States did not participate in that second appeal.

1. South Carolina’s Hazardous Waste Program

Five provisions of South Carolina’s hazardous

waste pregram have been invalidated. The first,

Executive Order No. 89-17, issued in April 1989,

declared that, because the “volume of hazardous waste

disposed of in South Carolina is disproportionately

out-of-state waste,” and because other States have

imposed “barriers and restraints against the disposal

of hazardous waste within their own borders,” hazard-

ous waste treatment facilities in South Carolina

are prohibited from accepting waste originating in a

State that does not permit the disposal of that waste

within its borders. Pet. App. 142a-147a. Under that

provision, all generators of wastes in certain States

were effectively “blacklisted” from using hazardous

waste facilities in South Carolina.

The second provision, issued in July 1989, is Execu-

tive Order No. 89-25, which establishes quotas for the

disposal in South Carolina of out-of-state wastes.

Pet. App. 140a. That order requires all hazardous

waste facilities to reserve a certain capacity for in-

state wastes and to limit the capacity of wastes

accepted from any single other State. /bid. =

The third provision, Regulation 61-99 of the South

Carolina Department of Health and Environmental

Control (DHEC), took effect in January 1990. It

requires a “demonstration of need” before any appli-

cant can receive a permit to establish or expand a

' Respondent has lodged copies of that brief with this

Court. Br. in Opp. 3 n.7.

3

hazardous waste management facility. Pet. App. 134a-

137a. This need can be demonstrated only by refer-

ence to the volume of in-state wastes. Jd. at 134a-

136a.

The final two provisions are statutes enacted in

1989 and 1990. In Act No. 196 (1989 S.C. Acts 1575),

the South Carolina legislature codified the “black-

listing” provision of Executive Order No. 89-17.

Section 9 of the Act, codified at S.C. Code Ann. § 44-

56-130(4)-(6) (Law. Co-op. Supp. 1996), prohibits facili-

ties in South Carolina frem accepting hazardous

waste from generators in another State if that State

has prohibited the treatment, storage or disposal of

that waste within its borders or has not entered into

an interstate or regional agreement for the safe

treatment of hazardous wastes. Pet. App. 127a-128a.

Section 5 of the Act, S.C. Code Ann. § 44-56-205 (Law.

Co-op. Supp. 1996), codifies preferences for in-state

wastes, providing that “[a]ll hazardous waste treat-

ment and disposal facilities in South Carolina shall

give preference to hazardous waste generators within

the State of South Carolina for treatment and dis-

posal of hazardous materials.” Pet. App. 127a.

Act No. 590 (1990 S.C. Acts 2495) discriminates

against out-of-state wastes by establishing a floor for

the disposal of in-state wastes and a ceiling for the

disposal of out-of-state wastes. Section 2 of the Act,

codified at S.C. Code Ann, § 44-56-60(a) (Law. Co-op.

Supp. 1996), requires each hazardous waste facility in

South Carolina to reserve for in-state wastes at least

the same land disposal capacity that it allocated for

in-state wastes during the previous year and limits

the burial of out-of-state wastes to the amount buried

during the previous year. Pet. App. 182a. Act No. 590

also sets a statewide cap on the total amount of

hazardous waste that can be disposed of in South

Carolina landfills, and provides that that cap can be

exceeded by a showing related to the amount of in-

4

state, but not out-of-state, waste disposed of during

the preceding year. J/bid. The legislative “findings”

supporting Act No. 590 (see § 1, codified at S.C. Code

Ann. § 44-56-59(A)(2)-(3) (Law. Co-op. Supp. 1996))

candidly state that it is “essential that [South Caro-

lina’s] limited waste treatment and disposal capacity

* * * be preserved, ready and available to ensure that

the needs of South Carolina are met first,” and that

hazardous waste treatment and disposal facilities in

South Carolina “must give preference to hazardous

waste generators within the State.” Pet. App. 130a.

2. Federal Statutory and Regulatory Framework

South Carolina’s hazardous waste laws were en-

acted against a backdrop of three federal stat-

utes addressing the national problem of hazardous

waste treatment, storage and disposal: the Resource

Conservation and Recovery Act of 1976 (RCRA),

42 U.S.C. 6921-6939b; the Comprehensive Environ-

mental Response, Compensation, and Liability Act of

1980 (CERCLA), 42 U.S.C. 9601 et seq.; and the

Superfund Amendments and Reauthorization Act of

1986 (SARA), Pub. L. No. 99-449, 100 Stat. 1613.

a. RCRA directs EPA to establish a comprehen-

sive “cradle to grave” system regulating the gener-

ation, transport, storage, treatment and disposal of

hazardous wastes. See 42 U.S.C. 6922-6925. Under

Section 3006 of RCRA, 42 U.S.C. 6926, EPA may

authorize a State to implement its own hazardous

waste program “in tieu of” the federal program, as

long as the state program (1) is “equivalent to”

the federal program, (2) is “not [in]eonsistent with”

the federal program or other state programs, and

(3) provides for “adequate enforcement” of compli-

ance with federal requirements. 42 U.S.C. 6926(b).

EPA regulations interpreting the “consistency”

requirement state that:

5

Any aspect of the State program which unrea-

sonably restricts, impedes, or operates as a ban on

the free movement across the State border of haz-

ardous wastes from or to other States for treat-

ment, storage, or disposal at facilities authorized

to operate under the Federal or an approved State

program shall be deemed inconsistent.

40 C.F.R. 271.4(a).’

b. While RCRA provides hazardous waste dispos-

al management standards, CERCLA primarily ad-

dresses abandoned and inactive waste disposal sites.

CERCLA provides a mechanism for cleaning up

contaminated sites, 42 U.S.C. 9606, and imposes the

costs of the cleanup on those responsible for the

contamination, 42 U.S.C. 9607. Under CERCLA,

EPA may itself undertake response actions using the

Hazardous Substances Superfund, 42 U.S.C. 9604,

then seek to recover its costs from responsible

parties, 42 U.S.C. 9607(a), or it can seek to require

responsible parties to undertake response actions,

through administrative orders or judicial injunction,

42 U.S.C. 9606(a).

ec. As part of SARA, Congress enacted Sec-

tion 104(c)(9) of CERCLA, which establishes state

2 In notices approving state programs, EPA has explained

that RCRA Section 3006 does not require the agency to con-

duct a Commerce Clause analysis in determining whether a

state program satisfies the “consistency” criterion. In the

notice announcing final approval of South Carolina’s RCRA

program, EPA explained that it was “not required to adopt the

Constitutional test for impediments or restrictions in interpret-

ing its own regulations, and decline[d] to do so here.” 50 Fed.

Reg. 46,437, 46,439 (1985) (Pet. App. 117a); see also 53 Fed.

Reg. 16,264, 16,265 (1988) (“[T]he Agency does not believe that

it is required either by 40 C.F.R. 271.4 or by RCRA Section

3006 to adjudicate the constitutionality of a state statute in the

absence of any definitive judicial decision applicable to the

statute at hand.”) (approving Maine’s program).

6

hazardous waste capacity requirements. 42 U.S.C.

9604(c)(9). This provision prohibits the United States

from providing money for any remedial actions in a

given State unless that State assures EPA that it

has adequate capacity to treat, destroy, or dispose of

the hazardous wastes projected to be produced in the

state for a 20-year period. 42 U.S.C. 9604(c)(9)(A). |

This capacity need not be provided entirely within

the State; it may also be provided by out-of-state

facilities in accordance with “an interstate agree-

ment or regional agreement or authority.” 42 U.S.C.

9604(c)(9)(B).

3. EPA Approvals and Authorizations in South

Carolina

Pursuant to RCRA Section 3006 and CERCLA

Section 104(c)(9), EPA has authorized South Carolina

to operate its own hazardous waste program and has

approved its Capacity Assurance Plan (CAP), making

it eligible for federal remedial cleanup funds.

a. EPA authorized South Carolina to operate its

hazardous waste program under RCRA Section 3006

in 1985, several years before the five invalidated pro-

visions took effect. See Pet. App. 110a. That 1985

review is EPA’s only comprehensive evaluation of

South Carolina’s hazardous waste program and the

only instance in which the agency has made explicit

findings with respect to the “consistency” of any

aspect of that program.’ EPA did notify South

3’ Before granting final authorization, EPA solicited public

comment on whether a recently-enacted hazardous waste fee

provision (not at issue in this case) should be deemed “incon-

sistent” under 40 C.F.R. 271.4 because it imposed a higher fee

for land disposal of out-of-state hazardous wastes than for

hazardous wastes generated in-state. See 50 Fed. Reg. 37,385

(1985). EPA ultimately determined that the fee provision

satisfied the “consistency” criterion because the evidence

showed that the fee did not “in fact” unreasonably restrict or

P<

7

Carolina in 1989 of potential “consistency” prob!ems

with Executive Order No. 89-17, which requires that

hazardous waste facilities give a preference to in-

state wastes. In response to EPA’s request, South

Carolina’s Attorney General submitted an opinion

that the Order satisfied the “consistency” regula-

tions. 1 C.A. App. 381a. EPA never responded to that

opinion or took any further action.

Since then, in 1993, 1994, and 1995, EPA has

approved three “clusters” of revisions and modifica-

tions to South Carolina’s RCRA program.’ None of

EPA’s approval notices specifically addressed or ap-

proved the provisions challenged in this case.

b. In May 1990, EPA approved South Carolina’s

CAP pursuant to CERCLA Section 104(c)(9). 1 C.A.

App. 246. At that time, EPA’s policy was to approve

a plan if it met three criteria: it provided “reason-

able assurance” that the State would have adequate

capacity to manage its hazardous wastes for the next

20 years; it demonstrated the State’s “commitment

impede the free flow of hazardous wastes across state lines.

Pet. App. 112a-113a.

4 EPA’s regulations establish procedures for submitting

proposed revisions and modifications to EPA for approval. See

40 C.F.R. 271.21. In particular, States are required to modify

their programs periodically to reflect changes in the federal

RCRA program. 40 C.F.R. 271.21(e). These periodic submis-

sions are referred to as “clusters.” See 51 Fed. Reg. 33,712,

33,714 (1986). South Carolina’s submissions that EPA approved

in 1993, 1994, and 1995 were “clusters” designed to respond to

changes in RCRA. While those submissions were never made

part of the record in this case, EPA’s approvals of those sub-

missions appear at 60 Fed. Reg. 42,046 (1995); 59 Fed. Reg.

60,910 (1994); and 58 Fed. Reg. 7865 (1993).

EPA’s regulations also establish procedures for withdrawing

program authorization. See 40 C.F.R. 271.11-271.23. Neither

the EPA nor any other party has initiated a withdrawal

proceeding.

8

and capability to carry out the plan”; and it “doc-

ument(ed] interstate and/or regional agreements for

imports and exports.” EPA Office of Solid Waste

and Emergency Response, Directive 9010.00a (Oct. 16,

1989), at 2-3 (OSWER Directive). Although South

Carolina attached copies of several of the challenged

provisions to its CAP submission,” EPA’s CAP re-

view precess did not require the agency to analyze,

let alone approve, any of those provisions. Accord-

ingly, EPA’s approval letter stated simply that South

Carolina’s submission was acceptable for purposes of

Section 104(c)(9) and that the State therefore would

be eligible for federal clean: p funds. 1 C.A. App. 246.°

Although the decision in this case has enjoined

specific provisions of South Carolina’s laws that dis-

criminate against out-of-state wastes, the State con-

tinues to operate its hazardous waste program. See

§1 Fed. Reg. 18,502 (1996) (EPA approval of South

Carolina’s revisions to its hazardous waste program).

In addition, it retains its eligibility under SARA to

receive federal funds for remedial cleanup projects.

4. This Litigation

Respondent filed suit in June 1990, alleging that

South Carolina’s hazardous waste program violated

the Commerce Clause and seeking injunctive relief.

The district court granted respondent a preliminary

injunction, enjoining the enforcement of each of the

challenged South Carolina laws. Pet. App. 82a-104a.

® Attached to South Carolina’s 1989 CAP submission were

copies of Act No. 196, Executive Order Nos. 89-17 and 89-25,

and an interim version of DHEC Reg. 61-99. 1 C.A. App. 290,

333-369. Act No. 590 was not yet in e:fect.

6 Less than two weeks later, in approving Alabama’s CAP,

EPA explained that its CAP review focused on issues of waste

management capacity and did not include Alabama’s list of

“banned” or blacklisted States, which was “beyond the scope”

of its review of Alabama’s CAP. 1 C.A. App. 496.

9

It found that the intent and likely effect of the chal-

lenged provisions were to interfere with interstate

commerce in hazardous waste, id. at 102a-103a, and it

rejected petitioners’ argument that the provisions

were immune from Commerce Clause challenge be-

cause EPA had approved South Carolina’s hazardous

waste management program, id. at 10la. The court. of

appeals affirmed the district court’s preliminary

injunction, except as to DHEC Regulation 61-99, and

it remanded the case. Jd. at 50a-8la. The court of

appeals concluded that respondent had a substantial

argument that DHEC Regulation 61-99 violated the

Commerce Clause, but directed the district court on

remand to consider more fully the balance of hard-

ships that would result from a preliminary injunction

of that regulation. Jd. at 64a.

b. On remand, the district court granted summary

judgment for respondent on the ground that all five

challenged provisions violated the Commerce Clause.

Pet. App. 28a-49a. It analyzed the provisions as

“five interrelated components,” id. at 33a, “work[ing]

together to compose an overall discriminatory pro-

gram,” id. at 44a, and found that the “actual purpose

of the program was to discriminate,” id. at 43a. It

therefore rejected petitioners’ efforts to salvage the

allegedly “neutral” aspects of the land disposal quotas

established by Act No. 590, holding that “a dis-

criminatory program cannot be pursued into its

otherwise valid but constituent parts.” Jd. at 46a

(citing West Lynn Creamery, Inc. v. Healy, 512 U.S.

186 (1994)). In addition, it enjoined DHEC Regulation

61-99 as an “obvious effort to hoard the economic re-

sources of [the] state and to isolate th[e] state from

interstate commerce.” Jd. at 48a. The district court

also denied petitioners’ motion to stay the case and

refer it to EPA under the “primary jurisdiction”

doctrine, noting that the constitutional issues

respondent raised were not “those to which EPA

10

could conceivably lend some degree of expertise.” Id.

at 29a.

ce. The court of appeals affirmed. Pet. App. la-27a.

It found no evidence in the language or legislative

history of RCRA, CERCLA, or SARA to support

petitioners’ contention that “Congress intended to

permit the states, directly or by EPA authorization,

to engage in actions otherwise violative of the Com-

merce Clause.” Jd. at 13a-14a. It specifically rejected

petitioners’ argument that Congress contemplated

that EPA’s “consistency” regulations would displace

a constitutional Commerce Clause analysis. I/d. at

14a-15a. As an additional basis for rejecting that

argument, the court concluded that, in any event,

“EPA has not expressly approved any of the contested

South Carolina laws.” Id. at 17a; id. at 1la n.11 (“we

disagree with South Carolina’s contention that EPA

has specifically addressed and authorized some of the

challenged provisions”).

Applying traditional Commerce Clause principles,

the court concluded that the challenged provisions

discriminate in effect and in purpose, Pet. App. 19a,

and are not justified by any legitimate state concerns

that could not be served by nondiscriminatory alter-

natives, id. at 20a-22a. In addition, it declined to sever

and preserve the overall cap on land disposal of

hazardous wastes imposed by Act No. 590 and the

“needs” requirement imposed by DHEC Regulation

61-99, concluding that those provisions were “not as

evenhanded and neutral as the state would have the

court believe.” Jd. at 23a-26a. Alternatively, the

court held that, even if Act No. 590’s overall cap were

nondiscriminatory, it would not be severable, under

applicable principles of state law, from the uncon-

stitutional portions of the Act. Jd. at 24a n.21.

Finally, the court of appeals held that the district

court did not abuse its discretion by denying

petitioners’ motion to stay the case and refer it to

11

EPA under the “primary jurisdiction” doctrine. Id.

at 27a.

DISCUSSION

“It has long been accepted that the Commerce

Clause * * * directly limits the power of the States

to discriminate against interstate commerce.” New

Energy Co. v. Limbach, 486 U.S. 269, 273 (1988).

Under this conception of the “negative” or “dormant”

Commerce Clause, state actions that discriminate

facially, in practical effect or in purpose, are subject

to a “virtually per se rule of invalidity.” Wyoming

v. Oklahoma, 502 U.S. 437, 454-455 (1992) (quoting

Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978));

Camps Newfound/Owatonna v. Harrison, No. 94-

1988, 1997 WL 255351, at *16 (May 19, 1997). To sus-

tain a discriminatory action, a State must demon-

strate that the action “is demonstrably justified by

a valid factor unrelated to economic protectionism,”

New Energy Co., 486 U.S. at 274, and that there are

no “nondiscriminatory alternatives adequate to pre-

serve the local interests at stake,” Chemical Waste

Management, Inc. v. Hunt, 504 U.S. 334, 342 (1992)

(quoting Hunt v. Washington State Apple Advertis-

ing Comm’n, 432 U.S. 333, 353 (1977)). These prin-

ciples apply with full force to the interstate com-

merce in hazardous wastes. See, e.g.,C & A Carbone,

Inc. v. Town of Clarkstown, 511 U.S. 383, 389 (1994);

Oregon Waste Sys., Inc. v. Department of Envt’l

Quality, 511 U.S. 93, 100 (1994); Chemical Waste

Management, 504 U.S. at 340 n.3; Fort Gratiot

Sanitary Landfill, Inc. v. Michigan Dep’t of Natural

Resources, 504 U.S. 358, 359 & n.3 (1992); Philadel-

phia, 437 U.S. at 622-623.

Petitioners do not assert that the quotas on out-of-

state wastes (Exec. Order No. 89-25), the “black-

listing” provisions (Act No. 196 and Exec. Order No.

89-17), the preference for in-state wastes (Act. No.

196), or the ceiling on the disposal of out-of-state

12

wastes and floor on the disposal of in-state wastes

(Act No. 590) are nondiscriminatory. Nor do they

challenge the court of appeals’ conclusion that there

are nondiscriminatory alternatives that would

effectively address the State’s legitimate concerns

for the health, safety, and welfare of its citizens.

Instead, petitioners assert that RCRA, CERCLA,

and SARA somehow indicate Congress’s intent to

allow States to discriminate against interstate com-

merce in hazardous wastes. Pet. 12-26.

That argument fails for two reasons. First, as the

court of appeals found, Pet. App. 17a, EPA has not

specifically addressed or approved any of the South

Carolina provisions at issue here. Accordingly, this

case does not present the question whether actual

EPA approval could be interpreted to show con-

gressional intent to allow States to erect other-

wise unconstitutional barriers to out-of-state wastes.

Second, even if that question were properly presented

here, the Fourth Circuit correctly held that nothing

in RCRA, CERCLA, or SARA evinces an “unmis-

takably clear” congressional intent to allow state

discrimination against interstate commerce. Peti-

tioners’ additional assertions are similarly without

merit. Both lower courts correctly concluded that

the overall cap on land disposal of hazardous wastes

and the “needs” requirement improperly discriminate

against out-of-state wastes, and both courts correctly

rejected petitioners’ contention that this matter

should be referred to EPA under the “primary juris-

diction” doctrine. Because the court of appeals’ deci-

sion that those five provisions of South Carolina’s

hazardous waste program impermissibly discriminate

against interstate commerce in hazardous wastes is

correct and does not conflict with any decision of this

Court or of another court of appeals, further review

by this Court is net warranted.

13

1. In the exercise of its plenary authority to regu-

late interstate commerce, Congress may authorize or

validate a state law or regulation that would other-

wise offend the Commerce Clause. South-Central

Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 87-88

(1984). Congress’s intent to do so, however, must be

“expressly stated” or “unmistakably clear.” Jd. at 91;

Northwest Airlines, Inc. v. County of Kent, 510 U.S.

355, 373-374 (1994); Maine v. Taylor, 477 U.S. 131, 139

(1986); Sporhase v. Nebraska, 458 U.S. 941, 960 (1982);

C & A Carbone, 511 U.S. at 408 (O’Connor, J., concur-

ring). Petitioners contend, Pet. 15-23, that RCRA,

CERCLA, and SARA demonstrate Congress’s “un-

mistakably clear” intent to allow EPA to approve and

thereby validate state hazardous waste programs that

discriminate against out-of-state wastes. They fur-

ther contend that, pursuant to those statutes, EPA

expressly approved the five South Carolina provisions

challenged here. Pet. 24-26; Reply Br. 4-7.

a. We address petitioners’ second contention first.

As the Fourth Circuit found, Pet. App. 17a, EPA

has not expressly approved any of these challenged

provisions. Nor has it made any findings as to their

“consistency.” The only time EPA has evaluated

South Carolina’s overall program for consistency,

equivalency, and enforcement capabilities was in

1985 when it granted final authorization for South

Carolina’s hazardous waste program. At that time,

none of the challenged provisions was in effect. Of

the 1993, 1994, and 1995 EPA approvals of modifi-

cations to South Carolina’s program, only the 1995

approval notice mentions one of the challenged pro-

visions, and then only in a context unrelated to dis-

crimination against out-of-state wastes. See 60 Fed.

Reg. 42,046, 42,048, 42,049, 42,050 (1995). As the court

of appeals correctly noted, Pet. App. 11a n.11, the 1995

approval notice cited S.C. Code Ann. § 44-56-60(a), the

section amended by Act No. 590, only for its relevance

14

to other aspects of the federal program (e.g., loca-

tion standards for salt domes, salt beds, underground

mines, and caves). Thus, nothing in the record indi-

cates that South Carolina sought, or that EPA

granted, approval for the specific provisions chal-

lenged here, and the question whether EPA’s ap-

proval of a state provision under the regulatory

“consistency” standard should affect judicial scrutiny

of that provision under the dormant Commerce

Clause is not properly presented.

Nor did EPA’s approval of the State’s CAP sub-

mission in 1990 “focus” on the effects of the chal-

lenged authorities on interstate commerce, as peti-

tioners claim. Pet. 23 & n.14. EPA’s 1990 CAP

review was a narrow one, focusing solely on the

State’s capacity to handle wastes generated in-state,

not on its laws governing the treatment or disposal of

out-of-state wastes. In measuring that capacity, EPA

considered only in-state waste facilities and out-of-

state capacity guaranteed by “an interstate agree-

ment or regional agreement or authority.” 42 U.S.C.

9604(c)(9)(B).’ Thus, in approving South Carolina’s

CAP submission, EPA did nothing more than deter-

7 As we explained in our amicus brief in the court of

appeals, the narrow scope of the CAP review made consid-

eration of provisions designed to reduce out-of-state wastes

irrelevant:

In effect, for purposes of determining whether a state has

met its capacity assurance obligation, EPA assumes that

there are no imports except those that occur pursuant to

an interstate or regional agreement. * * * Thus, because

the provisions of South Carolina law at issue here are

directed at reducing the total amount of interstate waste

imported for treatment, storage, or disposal, not at chang-

ing the terms of its interstate agreements with respect to

capacity, these provisions were not relevant to EPA’s

approval of South Carolina’s capacity assurance plan.

Govt. C.A. Br. 31 n.17.

15

mine that South Carolina had made adequate arrange-

ments for the disposal or storage of wastes generat-

ed within its borders. It did not review, much less

approve, the State’s policies with regard to out-of-

state wastes.®

b. Even if the question whether EPA approval

would displace judicial Commerce Clause analysis

were properly presented for this Court’s review, it

is clear that nothing in RCRA, CERCLA, or SARA

suggests any congressional intent to permit States

to discriminate against interstate commerce in haz-

ardous wastes.

i. Petitioners contend, Pet. 15-18, that Congress

has intentionally displaced the dormant Commerce

Clause by delegating to EPA, under Section 3006 of

RCRA, 42 U.S.C. 6926, the authority to authorize

States to operate hazardous waste programs. See

Pet. 15-18. That argument finds no support in the

statute or in this Court’s decisions. It has been

rejected by the Fifth Circuit, see Chemical Waste

Management, Inc. v. Templet, 967 F.2d 1058, 1059-

1060 (1992), cert. denied, 506 U.S. 1080 (1993), as well

as the court below, with no contrary decisions from

any other court of appeals.

While RCRA Section 3006 authorizes EPA to allow

a State to administer and enforce its own hazardous

waste program “in lieu” of the federal program, noth-

ing in RCRA indicates that Congress contemplated

that EPA would permit States to enact programs

that discriminate against out-of-state wastes. To the

contrary, the most natural interpretation of RCRA’s

8 In claiming otherwise (Pet. 23 n.14), petitioners misread a

1988 EPA guidance document, which clarifies that EPA would

use the procedures for withdrawal of a State’s RCRA program,

rather than the CAP review process, to address problems with

“unreasonable restrictions on interstate waste movements.”

Policy Regarding Hazardous Waste Management Capacity and

RCRA Consistency Issues (Dec. 23, 1988) (Pet. App. 123a-124a).

16

requirement that state programs be consistent

throughout the nation is that Congress did not intend

for the States selectively to discriminate against

each other or to isolate themselves from interstate

commerce in hazardous wastes. This interpretation

is reflected in EPA’s determination that “[a]ny aspect

of the State program which unreasonably restricts,

impedes, or operates as a ban” on interstate com-

merce of hazardous wastes is inconsistent with the

integrated national program Congress intended. 45

Fed. Reg. 33,465 (1980); 40 C.F.R. 271.4(a). EPA’s

“consistency” determinations are, of course, directed

to questions arising under the statutes it adminis-

ters; the agency does not purport to adjudicate con-

stitutional questions under the dormant Commerce

Clause. Nor has Congress directed it to do so.

Moreover, RCRA expressly contemplates that

States will enter into compacts for “cooperative effort

and mutual assistance for the management of * * *

hazardous waste.” 42 U.S.C. 6904(b)(1). This coopera-

tion is the antithesis of discrimination, protection-

ism, or retaliatory barriers to the interstate ship-

ment of hazardous wastes. At the very least, “the fact

that Congress has been willing to let the States set-

tle their differences over [hazardous wastes] through

mutual agreement [does not] constitute[] persuasive

evidence that Congress consented to the unilateral

imposition of unreasonable burdens on commerce.”

Sporhase, 458 U.S. at 960 (quoting New England

Power Co. v. New Hampshire, 455 U.S. 331, 343

(1982)).°

% Indeed, if Congress had intended to authorize such dis-

crimination against interstate commerce in hazardous wastes,

or to allow EPA to validate discriminatory programs, it could

have said so explicitly. In the Low-Level Radioactive Waste

Policy Act, 42 U.S.C. 2021b-2021j, for example, Congress ex-

pressly authorized States that enter into compacts for the

operation of regional radioactive waste disposal facilities to ban

17

RCRA differs markedly from programs that this

Court has found to reflect a congressional intent to

authorize state or local action that otherwise would

violate the Commerce Clause. In White v. Mass-

achusetts Council of Construction Employers, Inc.,

460 U.S. 204, 213 (1983), the Court upheld a municipal

order reserving jobs for city residents in a cum-

munity development program where the federal pro-

gram regulations “affirmatively permit[ted] the type

of parochial favoritism expressed in the order.” In

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 150

& n.21 (1982), the Court concluded that Congress

had “convincingly” “articulate[d]” its intention that

certain taxes imposed by Indian tribes on non-

members “do not threaten its latent power to regulate

interstate commerce.” And in Northeast Bancorp,

Inc. v. Board of Governors of the Federal Reserve

System, 472 U.S. 159, 172 (1985), the Court found

“no other conclusion but that Congress contemplated

that some States might partially lift the ban on inter-

state banking without opening themselves up to

interstate banking from everywhere in the Nation.”

RCRA, by contrast, provides no indication whatso-

ever that Congress intended either directly to

authorize States to discriminate against interstate

commerce or to authorize EPA to validate discrimina-

tory state programs.

ii. Petitioners err in relying, Pet. 18-19, on

CERCLA’s capacity assurance provision, Section

104(c)(9). Contrary to petitioners’ contention, the

CAP provision does not “direct” States to enter into

interstate or regional agreements; it is merely a

radioactive waste shipments from States that fail either to

enter into a regional compact or to meet federal deadlines

for establishing their own facilities. 42 U.S.C. 202le(e)(2) and

(f)(1). Under RCRA, the only consequence of a State’s failure

to submit a “consistent” plan is that the State must abide by the

federal plan.

18

planning provision that recognizes that a State may

assure adequate hazardous waste capacity based

either on facilities within its own borders or on

available facilities in other States pursuant to an

interstate or regional agreement or authority. 42

U.S.C. 9604(c)(9)(B). In any event, if a State wishes to

guarantee access to private hazardous waste facilities

as part of an interstate or regional agreement, it

ean do so through nondiscriminatory means, such as

contracting with private facilities. Far from evincing

an “unmistakably clear” intent to authorize discrim-

ination against out-of-state waste, Section 104(c)(9)

reflects Congress’s goal of encouraging interstate

cooperation and discouraging the balkanization of

a national problem. See National Solid Wastes Man-

agement Ass’n v. Alabama Dep't of Envi’l Manage-

ment, 910 F.2d 713, 721-722 (1990), as modified upon

denial of reh’g, 924 F.2d 1001 (11th Cir.) (the capacity

assurance provision does not authorize discrimina-

tion against interstate commerce), cert. denied, 501

U.S. 1206 (1991).

2. Nor is review warranted of the lower courts’

refusal to sever and uphold two allegedly “neutral”

aspects of these provisions. One is the provision in

Act No. 590 that reduces the annual statewide cap on

land disposal of hazardous waste to 120,000 tons for

the 12 months ending July 1, 1991, and to 110,000 tons

for each 12 months thereafter. See Pet. App. 13la-

132a. Although this cap, standing alone, does not dif-

ferentiate between out-of-state and in-state waste, it

does not stand alone. It is accompanied by a provision

for exceeding those limits based on volumes of in-

state, but not out-of-state, wastes. See Act No. 590,

§ 2 (allowing cap to be exceeded if at least 110,000 tons

of hazardous wastes from in-state generators were

buried during the previous year) (Pet. App. 131a-132a).

The court of appeals’ refusal to assess this one aspect

of Act No. 590 in isolation is consistent with this

19

Court’s precedents. See, e.g., West Lynn Creamery,

Inc. v. Healy, 512 U.S. 186 (1994). The court inde-

pendently ruled that the provision was not severable

under South Carolina law, Pet. App. 24a n.21, and that

state law determination does not warrant this Court’s

review. Of course, nothing in the court of appeals’

opinion prohibits South Carolina from reenacting the .

statewide disposal cap without discriminatory provi-

sions for exceeding it.

The court of appeals invalidated South Carolina’s

“needs regulation” (DHEC Reg. 61-99) because it de-

fines “need” in a manner that clearly favors in-state

generators at the expense of out-of-state generators.

Pet. App. 24a-?6a. That holding is based on a straight-

forward application of this Court’s dormant Com-

merece Clause jurisprudence, see, e.g., Oregon Waste

Sys., 511 U.S. at 99 (“differential treatment of in-state

and out-of-state economic interests that benefits the

former and burdens the latter” are “virtually per se

invalid”), and therefore does not merit further review.

3. Finally, petitioners err in contending, Pet. 28-

30, that the case should have been referred to EPA

under the “primary jurisdiction” doctrine. That doc-

trine provides federal courts with a discretionary tool

“designed to coordinate adminis.rative and judicial

decisionmaking by taking advantage of agency exper-

tise.” Pet. App. 26a (citing United States v. Western

Pac. R.R., 352 U.S. 59 (1956)). The district court

found no unresolved issues of fact and declined to

refer to EPA questions of constitutional law, which

are appropriate for resolution by an Article III court

and are not a matter of agency expertise. J/d. at 29a.

The court’s ruling was particularly appropriate in

this case because EPA already had submitted an

amicus brief expressing its views on both legal and

factual issues. Accordingly, the court of appeals

20

correctly concluded that the district court did not

abuse its discretion” in denying petitioners’ motion.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WALTER DELLINGER

Acting Solicitor General

Lois J. SCHIFFER

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

ANN HUBBARD

Assistant to the Solicitor

General

ALBERT M. FERLO, JR.

ETHAN G. SHENKMAN

Attorneys

MAY 1997

1 Contrary to petitioners’ contention, Pet. 29-30, courts of

appeals have consistently applied an abuse-of-discretion stan-

dard to such determinations. See, e.g., In re Lower Lake Erie

Iron Ore Antitrust Litig., 998 F.2d 1144, 1162 (3d Cir. 1993),

cert. denied, 510 U.S. 1091 (1994). Nor would a more stringent

standard of review warrant a different result on this point.