Environmental Technology Council v. Sierra Club
| Decision Date | 15 October 1996 |
| Docket Number | Nos. 95-2008,95-2245,s. 95-2008 |
| Parties | , 65 USLW 2319, 27 Envtl. L. Rep. 20,295 ENVIRONMENTAL TECHNOLOGY COUNCIL, formerly known as Hazardous Waste Treatment Council, on behalf of itself and its members, Plaintiff-Appellee, v. SIERRA CLUB; Energy Research Foundation; Citizens for Clean Air and Water; Citizens Asking for a Safe Environment, Incorporated (CASE); Environmentalists, Incorporated, Defendants-Appellants, and State of South Carolina; David M. Beasley, Governor; Commissioner, South Carolina Department of Health and Environmental Control; South Carolina Department of Health and Environmental Control; South Carolina Board of Health and Environmental Control, Defendants. ENVIRONMENTAL TECHNOLOGY COUNCIL, formerly known as Hazardous Waste Treatment Council, on behalf of itself and its members, Plaintiff-Appellee, v. STATE OF SOUTH CAROLINA; David M. Beasley, Governor; Commissioner, South Carolina Department of Health and Environmental Control; South Carolina Department of Health and Environmental Control; South Carolina Board of Health and Environmental Control, Defendants-Appellants, and Sierra Club; Energy Research Foundation; Citizens for Clean Air and Water; Citizens Asking for a Safe Environment, Incorporated (CASE); Environmentalists, Incorporated, Defendants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Charles Frederick Lettow, Cleary, Gottlieb, Steen & Hamilton, Washington, DC; James Stuart Chandler, Jr., South Carolina Environmental Law Project, Pawleys Island, SC, for Appellants. Stuart Henry Newberger, Crowell & Moring, Washington, DC, for Appellee. ON BRIEF: Robert Guild, Columbia, SC; Michael A. Mazzuchi, Cleary, Gottlieb, Steen & Hamilton, Washington, DC; Charles Molony Condon, Attorney General of South Carolina, Treva G. Ashworth, Deputy Attorney General, Kenneth P. Woodington, Senior Assistant Attorney General, Cameron B. Littlejohn, Jr., Assistant Attorney General, Columbia, SC; Carlisle Roberts, Jr., General Counsel, Jacquelyn S. Dickman, Assistant General Counsel, Columbia, SC, for Appellants. Howard B. Crystal, Crowell & Moring, Washington, DC; Jeter E. Rhodes, Jr., McCutchen, Blanton Before MURNAGHAN and MOTZ, Circuit Judges, and YOUNG, Senior United States District Judge for the District of Maryland, sitting by designation.
Rhodes & Johnson, Columbia, SC; David Case, General Counsel, Environmental Technology Council, Washington, DC, for Appellee.
Affirmed by published opinion. Judge MURNAGHAN wrote the opinion, in which Judge MOTZ and Senior Judge YOUNG joined.
The appeal before the court concerns South Carolina's attempt to limit the amount of hazardous waste generated 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 compared to treatment of waste generated within South Carolina, burden out-of-state waste. The discriminating state laws would impact the operations of three commercial hazardous waste facilities owned and operated by members of the appellee-plaintiff Environmental Technologies Council ("ETC"). 1 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. 2
We previously considered a motion by ETC for a preliminary injunction in this same lawsuit based on a Commerce Clause violation. Hazardous Waste Treatment Council v. State of South Carolina, 945 F.2d 781 (4th Cir.1991) ("HWTC "). While remanding to the district court, we, for the most part, affirmed the district court's grant of a preliminary injunction in favor of ETC. 3 On remand, the district court has granted summary judgment in favor of ETC, issuing a permanent injunction as to all the challenged provisions. Environmental Technologies 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.
Disposing of hazardous wastes is a national problem which raises complex technological and political issues. 4 South Carolina is one of few states which contain commercial 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 Resource 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.
RCRA establishes a cradle-to-grave regulatory program for hazardous waste management administered by the Environmental Protection Agency ("EPA"). It attempts to deal with hazardous waste before it becomes a problem by establishing minimum federal standards for the generation, 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 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 enforcement 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. 5
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 ("Superfund").
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 capacity 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 agreements. 42 U.S.C. § 9604(c)(9) (1995). 6 The required 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 incentives for states to submit CAPs. 7
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 reduce the amount of hazardous waste entering its borders. South Carolina's legislature passed two statutes, its Governor signed two Executive Orders, and the South Carolina Department 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-of-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 hazardous 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. 8 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.
The same Act also discriminates between waste generated 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 generated 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, promulgated on July 6, 1989, imposes quota...
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