Rollins Environmental Services (FS), Inc. v. St. James Parish

• Decision Date: 01 November 1985
• Docket Number: No. 85-3092,85-3092
• Citation: 775 F.2d 627
• Parties: , 84 A.L.R.Fed. 895, 54 USLW 2248, 15 Envtl. L. Rep. 21,044 ROLLINS ENVIRONMENTAL SERVICES (FS), INC., a Delaware Corporation, Plaintiff- Appellant, v. The PARISH OF ST. JAMES, a political subdivision of the State of Louisiana, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 627

775 F.2d 627

23 ERC 1452, 84 A.L.R.Fed. 895, 54

USLW 2248,

15 Envtl. L. Rep. 21,044

ROLLINS ENVIRONMENTAL SERVICES (FS), INC., a Delaware Corporation, Plaintiff- Appellant, v. The PARISH OF ST. JAMES, a political subdivision of the State of Louisiana, et al., Defendants-Appellees.

No. 85-3092.

United States Court of Appeals Fifth Circuit.

Nov. 1, 1985.

William H. Lewis, Jr., David F. Tripp, Morgan, Lewis & Bockius, Washington, D.C., and Emile C. Rolfs, III, Robert L. Boese, Broadhurst, Brook, Mangham and Hardy, Baton Rouge, La., for plaintiff-appellant.

Ridgway M. Hall, Jr., Crowell & Moring, Washington, D.C., for amicus, Hazardous Waste Treatment Council.

Stephen M. Irving, Baton Rouge, La., for Parish of St. James.

Peter M. Arnow, Asst. Atty. Gen., Environmental Enforcement Section, John B. Sheppard, Jr., Baton Rouge, La., for Patricia M. Norton, Sec., La. Dept. of Env. Quality.

David C. Shilton, Martin W. Matzen, Atty., Appellate Section, Land & Natural Resources Div. Justice Dept., Washington, D.C., for U.S. E.P.A.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GOLDBERG, REAVLEY and GARWOOD, Circuit Judges.

OPINION

GOLDBERG, Circuit Judge.

This case presents a classic confrontation over the principles of federalism. Appellant Rollins has developed a national system of toxic waste disposal facilities and wishes to locate an intermediate processing plant in St. James Parish, Louisiana. No one contends in this case that Rollins' proposed and existing facilities, and its plans for operating them, do not conform to Congress' directives in the Toxic Substances Control Act and to applicable regulations issued by the Environmental Protection Agency. Nevertheless, the Parish, for reasons that are not difficult to comprehend, does not want this or any other toxic waste disposal facility located within its boundaries. After passing an ordinance that explicitly prohibited the type of toxic waste disposal at issue here, the Parish settled on a version that accomplished indirectly what the earlier ordinance set out to accomplish directly. The district court, Beer, J., found as a fact that the second ordinance amounted to an out-right prohibition of Rollins' activities, but decided ultimately that it lacked subject matter jurisdiction over the case. We hold that there was jurisdiction and conclude that the challenged ordinance has been preempted by the Toxic Substances Control Act.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff-appellant Rollins Environmental Services (FS), Inc. ("Rollins") is in the business of handling, transporting, and cleaning up hazardous wastes. This case arises from Rollins' proposed treatment of certain particularly toxic and deadly substances known as polychlorinated biphenyls ("PCBs") that are found, among other places, in the insulating fluid of large electrical transformers and capacitors. PCBs are carcinogenic agents, and direct exposure even to minute quantities of them can be fatal. For this reason Congress established in the Toxic Substance Control Act ("TOSCA") a broad range of programs to dispose of PCBs safely and to phase out their use. P.L. 94-469, 15 U.S.C. Sec. 2601 et seq. (1976).

In November, 1984, Rollins commenced PCB disposal operations at a facility located in Union, Louisiana, in the Parish of St. James. The site of the facility is about one-quarter mile from the Romeville Elementary School. Rollins planned to receive obsolete electrical transformers (some weighing several thousand pounds) at the facility by truck or rail, to drain off the fluid containing PCBs, and to rinse out the interiors of the transformers with diesel fuel. The insulating fluid and spent diesel fuel would then be placed in containers and shipped to another Rollins facility in Texas for final disposal; the transformers themselves were to be shipped to a landfill in Nevada for burial. 2 Record on Appeal, Transcript of Proceedings ("Tr.") at 88. This procedure was designed by Rollins as part of a national program for the safe disposal of PCBs. Rollins has decontaminated thousands of transformers in this way, as specified by EPA regulations, see 40 C.F.R. 761.40-761.79 (1984), and its Texas incinerator is one of only three in the nation approved for the destruction of large quantities of PCBs. Tr. at 91, 95-98, 100-06. ¹

The first shipment of transformers arrived at Rollins' Union, Louisiana, facility on November 27, 1984. On December 19, 1984, the St. James Parish Council enacted Emergency Ordinance 84-29, "An Ordinance Regulating Hazardous Wastes and PCBs in St. James Parish," which provided in part:

The treatment, storage, and disposal of polychlorinated biphenyls (PCB and PCB's) at commercial waste disposal facilities within the Parish of St. James is hereby prohibited.

The transporting of polychlorinated biphenyls (PCB and PCB's) through the Parish of St. James shall require that the transporting agent supply a manifest to, and obtain a permit from, the Sheriffs [sic ] Department of St. James Parish.

Two days later Rollins brought an action in the United States District Court for the Eastern District of Louisiana, challenging the Ordinance as violative of the Commerce Clause and Supremacy Clause of the U.S. Constitution and demanding declaratory and injunctive relief.

Ordinance 84-29 remained on the books for less than a month. At its next meeting, on January 2, 1985, the St. James Parish Council repealed Ordinance 84-29 and replaced it with Emergency Ordinance 85-1. Tr. at 19, 71. The new Ordinance is styled "An Ordinance Regulating Commercial Solvent Cleaning Businesses in St. James Parish," and it includes the following "prohibitions":

A. No commercial solvent cleaning business may be conducted within one mile of any area of special concern.

B. No commercial solvent cleaning business may be located in an area of special environmental concern or conducted so as to drain or discharge any spent solvent into any area of special environmental concern.

C. No commercial solvent cleaning business may conduct any part of the cleaning operation except in a "contained area" as described in this ordinance. ²

Rollins amended its complaint to challenge Ordinance 85-1, and it is this Ordinance that is at issue in the present case.

A full hearing was held in the district court on Rollins' request for a temporary restraining order. Rollins put on four witnesses: the President of St. James Parish, a civil engineer and land surveyor, a member of the St. James Parish Council, and the Vice-President of Rollins. After hearing their testimony and the arguments of counsel, including that of an Environmental Protection Agency ("EPA") representative, the district court found as a fact that Ordinance 85-1 amounted to, and had the practical effect of, an absolute prohibition of Rollins' activities in the Parish. See Tr. at 137-38, 139, 145, 149-50, 154-55. Nevertheless, the district court determined that it lacked subject matter jurisdiction and dismissed Rollins' suit. The key factor in the court's decision seems to have been the EPA's ambivalent position on the issue of preemption. See id. at 83-85, 117-18, 150, 151, 152-53 (describing EPA administrator's statement as "essentially a punt"). Since the EPA did not unambiguously confirm that Ordinance 85-1 was preempted under TOSCA, the court was reluctant to disturb what it saw as an otherwise legitimate exercise of the Parish's political rulemaking and local police powers.

II. JURISDICTION

The issue of jurisdiction is a threshold matter. Although some consideration of the merits may occasionally be necessary for a decision on jurisdiction, in this case the district court need not have looked very far to find jurisdiction.

The most obvious source of federal jurisdiction in this case is 28 U.S.C. Sec. 1331, which confers original jurisdiction on the district courts to adjudicate "all civil actions arising under the Constitution, laws, or treaties of the United States." In its amended Complaint Rollins invokes, inter alia, the Supremacy Clause of the U.S. Constitution, the Commerce Clause of the U.S. Constitution, and specific provisions of the Toxic Substances Control Act as bases for its claims. For a finding of federal question jurisdiction it is not incumbent on the party asserting jurisdiction to prove in advance that it will ultimately prevail on the merits of its federal claims. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). Rather, the party asserting jurisdiction need only advance plausible, colorable claims that "arise under" federal law. As the Supreme Court stated in Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974), for purposes of jurisdiction it is sufficient that a party present claims that are not "so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy ... whatever may be the ultimate resolution of the federal issues on the merits." Id. at 666-67, 94 S.Ct. at 777; see also SED, Inc. v. City of Dayton, 515 F.Supp. 737, 740-41 (S.D.Ohio 1981) (EPA's position on preemption of ordinance regulating PCBs irrelevant to issue of jurisdiction).

In this case it is clear that federal law supplies essential elements of Rollins' claims. First, Rollins asserts that Ordinance 85-1 regulates an area of concern that is expressly preempted under TOSCA, Sec. 18(a)(2)(B), and thus directly violates the Supremacy Clause of the U.S. Constitution. Second, Rollins maintains that Ordinance 85-1 conflicts with implied Congressional goals and purposes, expressed through enactments in the same field--namely, the comprehensive legislative and regulatory scheme enacted in TOSCA--and is thus unconstitutional under the implied preemption doctrine of the Supremacy Clause. Finally, Rollins alleges that the Ordinance constitutes a substantial...