ELR Citation: ELR 21142
No(s). 91-5789 (3d Cir. Jun 10, 1992)

The court holds that the classification of recycled byproduct materials, which are exempt from federal regulation, as "solid waste" within the New Jersey hazardous waste regulatory scheme, and the use of federal hazardous waste regulatory scheme, and the use of federal hazardous waste codes to identify state-regulated wastes, do not violate the Commerce Clause of the U.S. Constitution or the Resource Conservation and Recovery Act (RCRA). A New Jersey chemical manufacturing company whose imported raw materials became subject to New Jersey regulations claimed that it may be forced to close its operations, because its suppliers fear that identifying their routinely marketed products as federal hazardous wastes could subject them to federal liability as unlicensed hazardous waste transporters. The court first holds that the heightened level of judicial scrutiny applied to state statutes undermining federal uniformity is not implicated. Hazardous waste management is an area of national importance, but RCRA expressly allows states to adopt more stringent requirements than those imposed federally. Although the federal definition of "solid waste," which is a threshold classification for hazardous wastes, excludes any materials recycled as substitutes for commercial products, and New Jersey's definition includes byproduct materials that are recycled, RCRA's savings clause reveals that hazardous waste regulation does not require one, uniform national system. The form waste generators must file to obtain a federal identification number is further evidence that RCRA envisions a dual federal-state system of hazardous waste regulation that enables states to designate additional wastes as hazardous. The form specifically reserves a space for applicants to list the state-regulated wastes used in their operations, and advises that state requirements may vary from federal regulations by identifying additional wastes as hazardous. To identify the state-regulated wastes, New Jersey allows use of federal codes already familiar to the regulated community, and simply requires that byproduct materials be marked with the same code that they would receive under RCRA if they were not recyclable. Additionally, there is no congressional intent to preempt the entire field of interstate waste. The court concludes that the challenged New Jersey regulation does not burden interstate commerce by directly regulating commerce in other states, conflicting with other states' regulations, or requiring other states to conform their waste management schemes to New Jersey's.

The court holds that the appropriate test for evaluating New Jersey's regulation is the U.S. Supreme Court's balancing test set forth in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Applying the balancing test, the court concludes that the regulation applies evenhandedly to in-state and out-of-state companies and is not an example of protectionist legislation meriting strict scrutiny analysis. Both in-state and out-of-state hazardous waste generators are required to identify recyclable byproduct materials using the appropriate RCRA codes and to transport these materials under a written hazardous waste manifest. Without any burden on interstate commerce, the court declines to undertake either an analysis of the putative benefits of the regulation or, the court states in a footnote, a consideration of whether less burdensome measures are available to the state. The court next holds that New Jersey's classification of the recyclable byproduct materials as solid waste is facially consistent with RCRA. A mere inconsistency between the state and federal schemes does not constitute a violation of RCRA. Finally, the court observes that out-of-state manufacturers shipping solely recyclable byproduct materials to New Jersey need not fear federal liability for shipping nonfederally designated wastes, because they may indicate on their federal notification form that they will be shipping New Jersey-only hazardous wastes.

[A previous related decision is published at 18 ELR 21302.]

Counsel for Appellant
Catriona Glazebrook
Caplan & Luber
40 Darby Rd., Paoli PA 19301
(215) 640-1200

Counsel for Appellee
R. Brian McLaughlin, Deputy Attorney General
R.J. Hughes Justice Complex, CN 093, Trenton NJ 08625
(609) 292-4919

Before Greenberg and Scirica, JJ.