Hazardous Waste Treatment Council v. State of SC, Civ. A. No. 3:90-1402-0.

• Citation: 766 F. Supp. 431
• Decision Date: 11 January 1991
• Docket Number: Civ. A. No. 3:90-1402-0.
• Parties: HAZARDOUS WASTE TREATMENT COUNCIL, on behalf of itself and its members, Plaintiff, v. STATE OF SOUTH CAROLINA, John T. Campbell, Secretary of State, Carroll A. Campbell, Jr., Governor, in his official Capacity, Commissioner, South Carolina Department of Health and Environmental Control, in his official capacity, and South Carolina Department of Health and Environmental Control, Defendants.
• Court: U.S. District Court — District of South Carolina

766 F. Supp. 431

HAZARDOUS WASTE TREATMENT COUNCIL, on behalf of itself and its members, Plaintiff, v. STATE OF SOUTH CAROLINA, John T. Campbell, Secretary of State, Carroll A. Campbell, Jr., Governor, in his official Capacity, Commissioner, South Carolina Department of Health and Environmental Control, in his official capacity, and South Carolina Department of Health and Environmental Control, Defendants.

Civ. A. No. 3:90-1402-0.

United States District Court, D. South Carolina, Columbia Division.

January 11, 1991.

Jeter E. Rhodes, Jr., Whaley, McCutchen, Blanton & Rhode, Columbia, S.C., Stuart H. Newberger, Crowell & Moring, David E. Case, Washington, D.C., for plaintiff.

T. Travis Medlock, Atty. Gen., Edwin E. Evans, Chief Deputy Atty. Gen., James Patrick Hudson, Deputy Atty. Gen., Kenneth P. Woodington, Sr. Asst. Atty. Gen., Columbia, S.C., Charles F. Lettow, Matthew D. Slater, Cleary, Gottlieb, Steen & Hamilton, Washington, D.C., for State of S.C.

Treva G. Ashworth, Sr. Asst. Atty. Gen., Mark R. Elam, Sr. Legal Counsel, Columbia, S.C., for Carroll A. Campbell, Jr.

Walton J. McLeod, III, Gen. Counsel, Jacquelyn S. Dickman, Asst. Gen. Counsel, Samuel L. Finklea, Staff Counsel, Columbia, S.C., for Com'r of South Carolina Dept. of Health & Environmental Control and South Carolina Dept. of Health and Environmental Control, South Carolina Bd. of Health and Environ. Control.

James E. Chandler, Jr., Pawleys Island, S.C., for proposed intervenors Sierra Club and Energy Research.

Robert Guild, Columbia, S.C., for Citizens for Clean Air and Water and Environmentals, Inc.

MEMORANDUM AND ORDER

PERRY, District Judge.

The plaintiff Hazardous Waste Treatment Council, a corporate trade association with approximately seventy member firms providing licensed services of treatment, recycling and disposal of hazardous wastes, commenced this action against the defendants State of South Carolina, its Governor, the South Carolina Department of Health and Environmental Control (DHEC) its Commissioner and its Board for declaratory and injunctive relief, prohibiting implementation of certain restrictions which defendants have placed upon treatment and disposal, in South Carolina facilities, of hazardous wastes generated in other states. The matter is now before the Court pursuant to the plaintiff's motion for a preliminary injunction, barring enforcement of the restrictions.

In its complaint the plaintiff challenges South Carolina's announced purpose, set forth in its statutes, regulations and Executive Orders to (1) prohibit passage and disposition into South Carolina facilities, hazardous wastes generated in states which have not provided within their borders facilities for the disposal of hazardous wastes; (2) impose discriminatory quotas upon the quantities of such wastes otherwise permitted; and (3) create a mandatory preference for wastes generated in South Carolina. Specifically, plaintiff contends that South Carolina's statutes, Executive Orders and regulations:

(1) prohibit plaintiff's member companies located in South Carolina from accepting any hazardous wastes generated outside the State unless the state of origin reciprocates and is free of bans on permitting hazardous waste treatment, storage and disposal within its borders—a blacklisting of generators from certain states, barring them from engaging in commerce within South Carolina;

(2) require plaintiff's member companies located in South Carolina to provide a "preference" in their operations for hazardous wastes within South Carolina over any such wastes generated outside this State—a preferred "right of access" which discriminates against generators from all other states;

(3) impose artificial, arbitrary and discriminatory quotas on the volume of hazardous wastes which may be disposed within this State by limiting disposal of wastes originating from other states; and

(4) impose artificial and discriminatory requirements for the permitting of any new or expanded hazardous waste management facility proposed within South Carolina— requiring a "demonstration of in-state need" regarding hazardous waste treatment, storage and disposal in the permit applications from including projections of wastes generated from any other states as a basis for their statement of "need." Memorandum of Points and Authorities in Support of Motion for Preliminary Injunction, pp. 2, 3. Plaintiff contends that these laws (1) discriminate against the free flow of interstate commerce—a violation of the Commerce Clause (U.S. Const. art. 1, § 8 cls. (3) and (2) conflict with and are preempted by the federal hazardous waste management regulatory program—a violation of the Supremacy Clause (U.S. Const. art. VI, cl. 2) and federal regulations prohibiting such laws (40 C.F.R. § 271.4).

Plaintiff asserts that on account of the challenged South Carolina laws, its members are unable to participate fully in the important business of national waste management and that they are losing business revenues for which they lack any remedy at law. Plaintiff argues also that because these laws are adverse to the public interest—i.e. the free movement of hazardous wastes between all states for safe and effective treatment and disposal—this Court should issue a preliminary injunction.

Defendants deny that their statutory laws, executive orders and regulations violate the Constitution as alleged. Defendants assert that "the South Carolina program represents a fully permissible response to the federal mandate; that the State has formulated its own Hazardous Waste Management Program which has been approved by the Environmental Protection Agency (EPA); that the State has submitted and gained federal approval of a Capacity Assurance Plan ("CAP") for managing hazardous wastes generated within the State over the next twenty years and thus has preserved its right to remedial-action Superfund monies supplied by EPA; and the State has entered into a regional agreement that coordinates and provides for the needs of both in-state and out-of-state generators of hazardous waste." DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION, p. 3. Defendants also argue that, because federal law requires that South Carolina ensure that it can provide for the treatment and disposal of all hazardous wastes generated in the State in the next twenty years, South Carolina must consider separately— and fashion an allocation between both instate and out-of-state generators—which has been expressly commanded and thus sanctioned by Congress and that, moreover, South Carolina's particular CAP (including provisions at issue here) has been approved by EPA. Id.

BACKGROUND

The national problem of hazardous waste management has been addressed through a comprehensive Federal regulatory program administered by the United States Environmental Protection Agency (EPA) in cooperation with the states. In addition to Resource Conservation and Recovery Act ("RCRA"), Congress has enacted the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), the "Superfund" statute.¹ While RCRA addressed the management aspects of solid wastes, CERCLA addresses primarily the clean-up of untreated hazardous waste disposal sites. In 1980, exercising its authority under these statutes, EPA issued extensive regulations regarding implementation of state hazardous waste management programs. Thereafter, as a part of this nationwide program, EPA delegated to South Carolina certain authority to regulate hazardous waste management within the state, See 50 Fed.Reg. 46437 (November 8, 1985).

Despite congressional efforts, many states ignored the CERCLA capacity assurance requirement and refused to permit any new treatment, storage, and disposal facilities. In their brief (p. 5) the defendants state that although most states were in agreement that the hazardous waste problem was a threat to the entire nation, many states and localities succumbed to the "not in my backyard" ("NIMBY") syndrome with the resultant effect that most hazardous waste continued to be shipped to the scarce existing facilities in a few select states.

Congress responded with the Superfund Amendments and Reauthorization Act of 1986 ("SARA"). SARA undertook to address the NIMBY problem by requiring states to provide additional assurance of adequate future capacity to treat and dispose of hazardous waste as a condition to the funding of Superfund site cleanups in the states. As added by SARA, section 104(c)(9) of CERCLA 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 reasonably 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 accordance 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 42 U.S.C.A. § 6921 et seq..

42 U.S.C. § 9604(c)(9).

As previously noted, RCRA envisaged that administrative and enforcement activities would primarily be performed by the states. To meet this end, RCRA § 3006(b) provides that states may apply to EPA for authorization to implement a hazardous waste treatment program "in lieu of the Federal program." See 42 U.S.C. § 6926(b). EPA's regulations implementing the statutory requirements for authorization of state...