Hazardous Waste Treatment Council v. State of S.C., 91-2317

• Decision Date: 20 September 1991
• Docket Number: No. 91-2317,91-2317
• Citation: 945 F.2d 781
• Parties: , 21 Envtl. L. Rep. 21,494 HAZARDOUS WASTE TREATMENT COUNCIL, on behalf of itself and its members, Plaintiff-Appellee, v. STATE OF SOUTH CAROLINA; Carroll A. Campbell, Jr., Governor of the State of South Carolina; 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. United States of America, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 781

945 F.2d 781

33 ERC 1729, 21 Envtl. L. Rep. 21,494

HAZARDOUS WASTE TREATMENT COUNCIL, on behalf of itself and its members, Plaintiff-Appellee, v. STATE OF SOUTH CAROLINA; Carroll A. Campbell, Jr., Governor

of the State of South Carolina; 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.

United States of America, Amicus Curiae.

No. 91-2317.

United States Court of Appeals,

Fourth Circuit.

Argued May 6, 1991.

Decided Sept. 20, 1991.

James Patrick Hudson, Deputy Atty. Gen., Columbia, S.C., and Charles F. Lettow, Cleary, Gottlieb, Steen & Hamilton, Washington, D.C., argued (T. Travis Medlock, Atty. Gen. of S.C., Edwin E. Evans, Chief Deputy Atty. Gen., Kenneth P. Woodington, Sr. Asst. Atty. Gen., Columbia, S.C., Matthew D. Slater, Washington, D.C., Treva G. Ashworth, Sr. Asst. Atty. Gen., Mark R. Elam, Sr. Legal Counsel, Office of the Governor, and Walton J. McLeod, III, Gen. Counsel, Jacquelyn S. Dickman, Asst. Gen. Counsel, Samuel L. Finklea, III, Staff Counsel, Columbia, S.C., on brief), for defendants-appellants.

Stuart Henry Newberger, Crowell & Moring, Washington, D.C., argued (Ridgeway M. Hall, Jr., Clifton S. Elgarten, Melissa J. McKenney, Amy J. Mauser, Washington, D.C., Jeter E. Rhodes, Jr., Whaley, McCutchen, Blanton & Rhodes, Columbia, S.C., David Case, Gen. Counsel, Hazardous Waste Treatment Council, Washington, D.C., on brief), for plaintiff-appellee.

Richard B. Stewart, Asst. Atty. Gen., Anne S. Almy, Nancy K. Stoner, U.S. Dept. of Justice, Washington, D.C., for amicus curiae.

Before MURNAGHAN and SPROUSE, Circuit Judges, and MURRAY, Senior District Judge for the District of Maryland, sitting by designation.

OPINION

MURNAGHAN, Circuit Judge:

The case before us arises on appeal from a preliminary injunction granted to Hazardous Waste Treatment Council ("HWTC") ¹ which enjoins South Carolina from enforcing, applying, or attempting to apply portions of two state executive orders, two state statutes, and one regulation, all relating to hazardous waste management, 766 F.Supp. 431. HWTC's contention, seeking declarative and injunctive relief, that the Commerce Clause renders parts of the executive orders and statutes unconstitutional, permitting it to operate free from the constraint of such parts, presents a grave and serious question and we therefore affirm the district court's grant of a preliminary injunction to such an extent. We remand, however, to permit the district court to modify its order to clarify that it neither enjoined aspects of the legislation not implicated by the Commerce Clause argument nor, on the merits, declared the enjoined legislation invalid by reason of the Commerce Clause. In addition, we remand the preliminary injunction inquiry relating to the challenged state regulation to allow the district court to balance the hardships to the parties.

I.

An amalgam of federal acts, federal regulations, state statutes, state regulations, and court opinions, all addressing the hazardous waste problem, comprise the background of the instant appeal. At the preliminary injunction stage, where the merits have not yet been addressed, we need only sketch the broad outlines that enable us to reach a decision. We first touch upon the federal programs that comprise the background to the appeal. We then explain the South Carolina legislation challenged in the appeal. As our colleagues on the Eleventh Circuit recently wrote, "our job is not to make policy, but to interpret the federal legislation and regulations to determine Congress's intent.... We recognize that serious problems associated with hazardous waste management plague our nation; but whatever our own views may be about the effectiveness of what Congress or Alabama has done, we can only apply the law." Nat'l Solid Wastes Management Ass'n v. Alabama Dep't of Envtl. Management, 910 F.2d 713, 715-16 (11th Cir.1990), as modified upon denial of reh'g, 924 F.2d 1001 (11th Cir.1991), cert. denied, --- U.S. ----, 111 S.Ct. 2800, 115 L.Ed.2d 973 (1991).

A. Federal Laws and Regulations

Fifteen years ago, Congress passed the Resource Conservation and Recovery Act of 1976 ("RCRA"), as amended, 42 U.S.C. §§ 6901-92k. RCRA establishes a national program for hazardous waste management administered by the Environmental Protection Agency ("EPA"). RCRA encompasses most aspects of hazardous waste management, including identification of waste, standards for generators, transporters, and operators of treatment, storage, and disposal facilities, and procedures for permits. Section 3006(b) of RCRA allows a state to implement its own program "in lieu of the federal program." 42 U.S.C. § 6926(b). No aspect of RCRA is to be "construed to prohibit any State ... from imposing any requirements, including those for site selection, which are more stringent than those imposed by such regulations." 42 U.S.C. § 6929. A state's program, however, must be "equivalent to" and "consistent with" the federal program and must provide "adequate enforcement of compliance." 42 U.S.C. § 6926(b). Such a state program, authorized by EPA, "shall have the same force and effect" as action taken by EPA. 42 U.S.C. § 6926(d).

RCRA has been explained and implemented by numerous federal regulations. Of particular concern in the present case, is 40 C.F.R. § 271.4, which implements RCRA § 3006, 42 U.S.C. § 6926:

§ 271.4 Consistency

To obtain approval, a State program must be consistent with the Federal program and State programs applicable in other States and in particular must comply with the provisions below. For purposes of this section the phrase "State programs applicable in other States" refers only to those State hazardous waste programs which have received final authorization under this part.

(a) Any aspect of the State program which unreasonably restricts, impedes, or operates as a ban on the free movement across the State border of hazardous wastes from or to other States for treatment, storage, or disposal at facilities authorized to operate under the Federal or an approved State program shall be deemed inconsistent.

(b) Any aspect of State law or of the State program which has no basis in human health or environmental protection and which acts as a prohibition on the treatment, storage or disposal of hazardous waste in the State may be deemed inconsistent.

(c) If the State manifest system does not meet the requirements of this part, the State program shall be deemed inconsistent.

40 C.F.R. § 271.4.

RCRA attempts to address hazardous waste before it becomes a problem. Congress enacted other federal statutes to deal with the need to cleanup improperly or illegally disposed waste. In 1980, the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S. §§ 9601-75, created a fund--i.e., a "Superfund"--of federal money available for state cleanup efforts. Several years later, when it became apparent that local community actions were resulting in little construction or expansion of hazardous waste management facilities, Congress enacted amendments to CERCLA § 104(c), the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub.L. No. 99-499, 100 Stat. 1613. Of particular importance to the instant appeal, amendment § 104(k) which became CERCLA § 104(c)(9) provided (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). Section 104(c)(9) has been construed to require each state to present a Capacity Assurance Plan ("CAP") to EPA.

EPA's Office of Solid Waste and Emergency Response ("OSWER") issued two directives explaining the CAPs. See OSWER Directive 9010.00a (Oct. 16, 1989) ("Agency Review of SARA Capacity Assurance Plans"); OSWER Directive 9010.00 (December 1988) ("Assurance of Hazardous Waste Capacity: Guidance to State Officials"). The directives emphasize that waste reduction is the preferred method of addressing hazardous waste problems. See OSWER Directive 9010.00a, at 1-2. However, the directives also explain that SARA was enacted to solve the "NIMBY"--"not in my backyard"--problems that arose because of political pressure and public opposition:

Congress believed that some states were not moving aggressively to create facilities needed to manage hazardous wastes and that this inaction could lead to the creation of additional Superfund sites, even though some wastes might be managed at facilities available in other states. This problem would be exacerbated if the costs of interstate waste management were to rise or if states were to take actions that directly or indirectly impeded interstate waste movement. Although any hazardous waste management facilities created would be regulated in an environmentally safe manner under RCRA, existing statutory and regulatory authorities did not adequately address the need to develop and to assure access to such facilities within and among the states.

OSWER...