ELR Citation: ELR 20896
No(s). A-92-CA-079 (W.D. Tex. Feb 3, 1993)

The court holds that a state prohibition against burning fuel derived from hazardous waste within one-half mile of an established residence is not preempted by the Resource Conservation and Recovery Act (RCRA) and does not violate the Commerce Clause or the Equal Protection Clause of the U.S. Constitution. The Texas Air Control Board denied a cement kiln owner's application for a permit to burn hazardous waste derived fuel based on Texas Health & Safety Code §361.102(b), which prohibits new commercial hazardous waste management facilities within one-half mile of, inter alia, established residences. The court notes that it denied the operator's request for a preliminary injunction, being apprised of no need for urgent action. The court then denies the state's motion to dismiss for failure to state a claim, rejecting the argument that a shift of permitting responsibility from one agency to another mooted the action as to the agency to whom the operator submitted its application. The court holds that forcing the plaintiff to reapply to another agency would be "a useless thing." The court holds that RCRA does not preempt the Texas prohibition because the prohibition does not actually conflict with RCRA, does not completely prohibit burning of hazardous waste derived fuels in Texas cement kilns and has a rational basis because it would provide a buffer zone in the event of an emergency. The Texas prohibition does not grant regulators potentially impermissible unfettered discretion to deny permits but provides a clear standard.

The court holds that the Texas prohibition does not violate the Commerce Clause because it applies even-handedly to in-state and out-of-state companies, has only an incidental impact on interstate commerce, and does not impose a clearly excessive burden on interstate commerce in relation to putative local benefits. The Texas law does not violate the Equal Protection Clause because the difference in standards applicable to commercial and noncommercial facilities is rationally related to a legitimate state interest.

Counsel for Plaintiff
James E. Cousar, Jerry M. Keys
Thompson & Knight
98 San Jacinto Blvd., Austin TX 78701
(512) 469-6100

Counsel for Defendants
Linda B. Secord, Ass't Attorney General
Attorney General's Office
P.O. Box 1254-A, Austin TX 78711
(512) 463-2100