ELR Citation: ELR 20672
No(s). 3:90-1402-0 (D.S.C. Jan 11, 1991)

The court holds that a state law that restricts and prohibits the import of hazardous wastes generated in other states is unconstitutional. A trade association challenged a series of South Carolina provisions that implemented a ban against hazardous waste imports from states lacking adequate treatment and disposal capacity, aimed at pressuring other states in the region to site additional waste facilities. Specifically, the challenged state law provisions would have required permit applicants to demonstrate the need for a new facility or for expansion of an existing facility; banned waste generated in other states that have not provided hazardous waste facilities within their borders; required commercial facilities to give a preference to wastes generated in South Carolina; and imposed a quota on the volume of hazardous wastes to be imported from other states. The court holds that the South Carolina law violates the commerce clause. Although Congress can authorize states to erect barriers to interstate commerce, Congress has not expressly stated its intent in the Resource Conservation and Recovery Act or in the Comprehensive Environmental Response, Compensation, and Liability Act to allow South Carolina to manage hazardous waste in a manner that adversely affects interstate commerce. The court holds that the plaintiff trade association is entitled to preliminary injunctive relief. The plaintiff is likely to succeed on the merits because longstanding precedent prohibits economic protectionism to the disadvantage of the free flow of interstate commerce. Further, the plaintiff's members will suffer irreparable harm from lost revenue if the state is not enjoined, and they challenge only those portions of state law that discriminate against out-of-state hazardous wastes solely on the basis of origin. Finally, public health and the environment will not be adversely affected by the issuance of injunctive relief because the public interest is best served by developing safe and efficient hazardous waste treatment and disposal systems.

Counsel for Plaintiff
Peter Rhodes Jr.
Whaley, McCutchen, Blanton & Rhodes
P.O. Drawer 11209, Columbia SC 29211
(803) 799-9791

Counsel for Defendants
Travis Medlock, Attorney General; Treva Ashworth, Ass't Attorney General
P.O. Box 11549, Columbia SC 29211
(803) 734-3680

Walton J. McLeod III, General Counsel
South Carolina Department of Health and Environmental Control
2600 Bull St., Columbia SC 29201
(803) 734-4910