Chemical Waste Management, Inc. v. Templet, Civ. A. No. 89-761-B.

• Decision Date: 09 July 1991
• Docket Number: Civ. A. No. 89-761-B.
• Citation: 770 F. Supp. 1142
• Parties: CHEMICAL WASTE MANAGEMENT, INC. v. Paul H. TEMPLET, Ph.D., Secretary of the Louisiana Department of Environmental Quality.
• Court: U.S. District Court — Middle District of Louisiana

770 F. Supp. 1142

CHEMICAL WASTE MANAGEMENT, INC. v. Paul H. TEMPLET, Ph.D., Secretary of the Louisiana Department of Environmental Quality.

Civ. A. No. 89-761-B.

United States District Court, M.D. Louisiana.

July 9, 1991.

COPYRIGHT MATERIAL OMITTED

Gerald L. Walter, Anne J. Crochet, Baton Rouge, La., for plaintiff.

John B. King, Ann Coco, Office of Legal Affairs and Enforcement, Dept. of Environmental Quality, Baton Rouge, La., for defendant.

OPINION

POLOZOLA, District Judge.

This case requires the Court to determine whether Louisiana's ban on the importation of hazardous waste from foreign countries violates the United States Constitution.

Chemical Waste Management, Inc. (ChemWaste) has filed this action seeking declaratory relief against the defendant, Paul H. Templet, Ph.D., Secretary of the Louisiana Department of Environmental Quality (LDEQ),¹ challenging the constitutionality of Louisiana Revised Statutes (La. R.S.) 30:2190 and 30:2191, which govern the importation, storage, and disposal of hazardous waste in the State of Louisiana that is generated in foreign countries.² The issue the Court must decide is whether the State of Louisiana can prohibit a state-authorized treatment, storage, and disposal facility from receiving hazardous waste generated in Mexico by "maquiladoras" companies.³ In reasons which follow, the Court finds that La.R.S. 30:2190 and 30:2191 are unconstitutional and invalid under the Commerce Clause of the United States Constitution.

I. BACKGROUND

The facts involved in this case are not seriously disputed by the parties. ChemWaste owns and operates an LDEQ authorized hazardous waste treatment, storage, and disposal facility in Carlyss, Louisiana (Carlyss).⁴

On September 22, 1989, and September 28, 1989, ChemWaste informed the Regional Administrator of the United States Environmental Protection Agency (EPA), in Dallas, Texas, of its intent to receive foreign hazardous waste generated from Inland System Business Unit of Inland/Matamores, Mexico (Inland), and Trico Technologies of Matamores, Mexico (Trico), two maquiladoras companies, at the Carlyss facility.⁵ ChemWaste advised the EPA that the foreign hazardous waste being shipped to the United States was waste which the maquiladoras companies were mandated to return to the United States by Annex III of the "Agreement Between the United States of America and the United Mexican States on Cooperation for the Protection and Improvement of the Environment in the Border Area" (U.S.-Mexican Agreement).⁶ Annex III provides:

Hazardous waste generated in the processes of economic production, manufacturing, processing or repair, for which raw materials were utilized and temporary admitted, shall continue to be readmitted by the country of origin of the raw materials in accordance with applicable national policies, laws and regulations.⁷

The EPA advised ChemWaste that, since the State of Louisiana was an "authorized" state under the Recovery Conservation and Recovery Act (RCRA), the State of Louisiana and not the EPA was the proper party to be notified regarding the receipt of hazardous waste from Mexico.⁸ Relying on La.R.S. 30:2190 and 30:2191, the LDEQ objected to ChemWaste's importation, storage, and disposal of the Mexican foreign hazardous waste in Louisiana and refused to grant the plaintiff a permit.

ChemWaste filed this suit challenging the constitutionality of the Louisiana statutes on the grounds that the Louisiana statutes are inconsistent with the federal statutory provisions under RCRA and violate both the Commerce Clause and the Supremacy Clause of the United States Constitution.

II. LOUISIANA'S FOREIGN GENERATED HAZARDOUS WASTE LAWS AND THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976

To fully understand the legal issues involved in this case, it is necessary to compare the Louisiana statutes with RCRA.

La.R.S. 30:2190⁹ is entitled "Hazardous wastes from foreign nations; findings; prohibitions" and provides:

A. The legislature finds and declares that:

(1) The laws of the United States require testing, manifesting, and safe transportation of hazardous wastes to insure proper identification and handling from generation to ultimate disposal. These laws are not applicable to hazardous wastes generated in foreign nations until such wastes are actually in this country.

(2) The laws of foreign nations are inadequate to insure that hazardous wastes sought to be exported to the United States do not contain unknown or unauthorized pollutants and that such wastes are not released into the environment due to inadequate containment, labeling, or handling during transport.

(3) The only practical method for insuring that the environment and the health of the citizens of this state are not endangered by the importation of hazardous wastes generated in foreign nations is to prohibit the introduction or receipt of such wastes into this state for the purpose of treatment, storage, or disposal.

B. It shall be unlawful for any person to transport or cause or allow to be transported into this state, for the purpose of treatment, storage, or disposal, any hazardous waste generated outside the United States and its territories.

C. It shall be unlawful for any person to receive for treatment, storage, or disposal in this state any hazardous waste generated outside the United States and its territories.

D. This Section shall not apply to any hazardous waste generated outside of the United States and its territories which must be disposed of in accordance with the provisions of Public Law 96-478 adopted by the United States Congress and known as the Act to Prevent Pollution from Ships 33 U.S.C. § 1901 et seq.. This Section shall only apply to hazardous waste which is imported into this state directly from a foreign nation.

E. Notwithstanding any other provisions of law, the importation of spent petroleum catalysts from foreign countries for purposes of recycling utilizing processes which produce no hazardous wastes, is not prohibited.

La.R.S. 30:2191¹⁰ is entitled "Importation of hazardous waste from foreign countries; prohibition" and states:

A. The commission or the assistant secretary shall deny hazardous waste transporter licenses and hazardous waste treatment, storage, and disposal facility permits to all persons who propose to treatment into and dispose of in Louisiana hazardous waste generated in a country other than the United States.

B. The provisions of this Section shall not apply to the disposal or storage of any hazardous or solid waste which must be disposed of according to the provisions of Public Law 96-478, adopted by the United States Congress and known as the Marine Pollution Protocol Law 33 U.S.C. § 1901 et seq..

C. The Commission shall revoke the permit of any permitted hazardous waste facility which hereafter disposed of hazardous waste generated in a country other than the United States. This power shall be in addition to other powers and remedies available to the Commission under this subtitle.

D. The provisions of this Section shall not apply to spent petroleum catalysts from foreign countries imported for purposes of recycling utilizing processes which produce no hazardous wastes.

The LDEQ contends that the above statutes are valid and constitutional because the EPA reviewed and approved Louisiana's environmental laws, and designated the State of Louisiana as an "authorized" state in accordance with RCRA.

The Congress enacted RCRA to be a "cradle-to-grave" regulatory program which established "minimum standards for the generation, treatment, storage, and disposal of hazardous waste."¹¹ It is also clear that the Congress did not intend to preempt all state environmental laws when it enacted RCRA. The legislative history of RCRA provides that "the states are given, if they chose, the authority to establish and implement a state program in lieu of a federal program, if such a program is equivalent to the federal program."¹² In order for the states to implement such a program, RCRA provides a method for a state to have its hazardous waste program authorized by the EPA to operate in lieu of the minimum standards of the federal program.¹³ This procedure requires a state to submit its program to the EPA for review and a public hearing.¹⁴ In order for a state to establish and implement a program in lieu of the federal program, the state program cannot deviate below RCRA's minimum standards and the state program must not be inconsistent "with Federal or State programs applicable in other States."¹⁵ States are not precluded from "adopting or enforcing requirements which are more stringent or more extensive" or "operating a program with greater scope of coverage" than required by the minimum federal standards.¹⁶ However, the state's approved program must operate in accordance with the federal requirements to remain authorized.¹⁷

The State of Louisiana followed the above procedures when it applied for interim authorization from the EPA to operate its hazardous waste program in lieu of the federal program on December 19, 1980, and January 24, 1984. The EPA granted Louisiana final authorization for its program on January 24, 1985. ChemWaste acknowledges that Louisiana is an authorized state under RCRA. However, ChemWaste contends that La.R.S. 30:2190 and 30:2191 are inconsistent with federal programs and, therefore, cannot operate in lieu of the federal RCRA program.¹⁸ In response to ChemWaste's arguments, the LDEQ contends that the statutes were enacted¹⁹ into law prior to the time the State of Louisiana received its authorized status from the EPA. Therefore, the LDEQ argues that the EPA approved the use of §§ 2190 and 2191 when it approved Louisiana as an authorized state.²⁰ The LDEQ further argues that §§ 2190 and 2191 were reviewed and approved by the EPA to operate in lieu of the federal statutes and, therefore, are valid and constitutional.

It is not necessary for the Court to determine whether the Louisiana sta...