ELR Citation: ELR 21494
No(s). 91-2317 (4th Cir. Sep 20, 1991)

The court upholds a preliminary injunction, as modified, barring South Carolina from enforcing, applying, or attempting to apply portions of two state executive orders and two state statutes relating to the management of in-state and out-of-state hazardous waste. The executive orders and statutes compel in-state facilities to give preference to in-state waste, reserve a specific amount of in-state capacity for in-state waste, limit the acceptance of out-of-state waste, and bar waste from specific states. The court finds that the harm to members of plaintiff association of hazardous waste treatment companies from not granting the injunction outweighs the harm to the state from granting it. The court holds that the challenged portions of the executive orders and statutes almost certainly violate the Commerce Clause. They appear facially to discriminate against out-of-state hazardous waste. Also, one of the statutes seems to punish certain hazardous waste generators merely because they reside in states that South Carolina concludes have not fulfilled obligations under §104(c)(9) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). With respect to the remaining legislation, South Carolina seems unlikely to meet the burden of showing that burying in-state hazardous waste rather than out-of-state waste advances the health and safety of South Carolina citizens. Further, neither the Resource Conservation and Recovery Act nor CERCLA §104(c)(9) appears to contain language that indicates an unmistakably clear congressional intent to permit states to burden interstate commerce, and South Carolina has not presented evidence from the legislative history of the two statutes that demonstrate such congressional intent. Finally, the court orders the district court on remand to strike words in the injunction implying that the challenged legislation is invalid, to modify the injunction to apply only to the specific portions of the executive orders and statutes challenged as violating the Commerce Clause, and to balance the hardships of enjoining application of a related state regulation.

[Related decisions are published at 21 ELR 20672 and 21503.]

Counsel for Appellants
James Patrick Hudson, Deputy Attorney General
P.O. Box 11549, Columbia SC 29211
(803) 734-3970

Charles F. Lettow
Cleary, Gottlieb, Steen & Hamilton
1752 N St. NW, Washington DC 20036
(202) 728-2700

Counsel for Appellee
Stuart Henry Newberger
Crowell & Moring
1001 Pennsylvania Ave. NW, Washington DC 20004
(202) 624-2500